Last updated on April 22nd, 2024 at 11:20 pm
Title 28—Judicial Administration–Volume 2
CHAPTER I—DEPARTMENT OF JUSTICE (CONTINUED)
PART 43—RECOVERY OF COST OF HOSPITAL AND MEDICAL CARE AND TREATMENT FURNISHED BY THE UNITED STATES
§ 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 § 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.
§ 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]
§ 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 the injury or disease resulting in the care and treatment described in § 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 § 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.
§ 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.
PART 44—UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES
§ 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.
§ 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 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);
(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 § 44.301(a) or § 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.
§ 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.
(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 § 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 § 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.
§ 44.201 [Reserved]
§ 44.202 Counting employees for jurisdictional purposes.
The Special Counsel will calculate the number of employees referred to in § 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 § 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.
§ 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 § 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.
§ 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 § 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 § 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 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 § 44.101(a). The Special Counsel may then obtain the additional information specified in § 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.
§ 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.
§ 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.
(e) The Special Counsel may seek to intervene at any time in any proceeding brought by a charging party before OCAHO.
§ 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.
§ 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
§ 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.
§ 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) 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.
§ 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 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),
(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.
§ 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).
§ 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 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 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.
§ 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 § 45.12); and
(c) Any investigation of allegations of criminal misconduct against any Department employee.
§ 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.
§ 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 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.
PART 46—PROTECTION OF HUMAN SUBJECTS
§ 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 § 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 § 46.102(e) must be reviewed and approved, in compliance with § 46.101, § 46.102, and § 46.107 through § 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.
(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
(i) Unless otherwise required by law, department or agency heads may waive the applicability of some or all of the provisions of this policy to specific research activities or classes of research activities otherwise covered by this policy. Except when otherwise required by statute or Executive Order, the department or agency head shall forward advance notices of these actions to the Office for Human Research Protections, Department of Health and Human Services (HHS), or any successor office, and shall also publish them in the
§ 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.
(g) IRB means an institutional review board established in accord with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the research has been reviewed and may be conducted at an institution within the constraints set forth by the IRB and by other institutional and federal requirements.
(i) Minimal risk means that the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution to the supporting department or agency, in accordance with the requirements of this policy, that a research project or activity involving human subjects has been reviewed and approved by an IRB in accordance with an approved assurance.
§ 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 § 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 § 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 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 § 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 § 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 § 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.
§§ 46.104-46.106 [Reserved]
§ 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 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.
§ 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 § 46.103(b)(4) and, to the extent required by, § 46.103(b)(5).
(b) Except when an expedited review procedure is used (see § 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.
§ 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 § 46.116. The IRB may require that information, in addition to that specifically mentioned in § 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 § 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.
§ 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
(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.
(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.
§ 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 § 46.116.
(5) Informed consent will be appropriately documented, in accordance with, and to the extent required by § 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.
§ 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.
§ 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.
§ 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.
§ 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 § 46.103(b)(3).
(6) Written procedures for the IRB in the same detail as described in § 46.103(b)(4) and § 46.103(b)(5).
(7) Statements of significant new findings provided to subjects, as required by § 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.
§ 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 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:
(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.
§ 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 § 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 § 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.
§ 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 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 § 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.
§ 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.
§ 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.
§ 46.121 [Reserved]
§ 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.
§ 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).
§ 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
§ 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.
§ 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.
§ 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 § 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.
§ 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.
§ 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
§ 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.
§ 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.
§ 48.3 Procedure for filing all documents.
All filings required by these regulations shall be accomplished by:
(a) Mailing or delivering five copies of each document (two copies in the case of documents filed by the Assistant Attorney General in charge of the Antitrust Division) to the Assistant Attorney General for Administration, Department of Justice, Washington, DC 20530. He shall place one copy in a numbered public docket; one copy in a duplicate of this file for the use of officials with decisional responsibility; and (except in the case of documents filed by the Assistant Attorney General in charge of the Antitrust Division) shall forward three copies to the Assistant Attorney General in charge of the Antitrust Division; except that documents subject to nondisclosure orders under § 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.
§ 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 § 48.5; except that materials for which nondisclosure has been requested under § 48.5 need not be made available for inspection before the request has been decided.
§ 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 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).
§ 48.6 Public notice.
(a) Upon the filing of the documents required by § 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 § 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 § 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
(c) If a hearing is scheduled pursuant to § 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.
§ 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
(b) In his report he may state (1) that the proposed arrangement should be approved or disapproved without a hearing; or (2) that a hearing should be held to resolve material issues of fact.
(c) The report shall be filed, and a copy shall be sent to the applicants. Upon the filing of the report, the Assistant Attorney General for Administration shall cause to be issued a press release setting forth the substance thereof.
(d) Any person may, within 30 days after filing of the report, file a reply to the report for the consideration of the Attorney General.
§ 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
(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 § 48.7 and this section the Attorney General shall either approve or deny approval of the arrangement, in accordance with § 48.14, or shall order that a hearing be held.
§ 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.
§ 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 § 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 § 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 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.
§ 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 § 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.
§ 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.
§ 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.
§ 48.14 Decision by the Attorney General.
(a) The Attorney General shall decide, on the basis of the record as constituted in accordance with § 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.
§ 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 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 § 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.
§ 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.
PART 49—ANTITRUST CIVIL PROCESS ACT
§ 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.
§ 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 as true copies of the original of the material involved.
§ 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.
§ 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
§ 50.2 Release of information by personnel of the Department of Justice relating to criminal and civil proceedings.
(a) General. (1) The availability to news media of information in criminal and civil cases is a matter which has become increasingly a subject of concern in the administration of justice. The purpose of this statement is to formulate specific guidelines for the release of such information by personnel of the Department of Justice.
(2) While the release of information for the purpose of influencing a trial is, of course, always improper, there are valid reasons for making available to the public information about the administration of the law. The task of striking a fair balance between the protection of individuals accused of crime or involved in civil proceedings with the Government and public understandings of the problems of controlling crime and administering government depends largely on the exercise of sound judgment by those responsible for administering the law and by representatives of the press and other media.
(3) Inasmuch as the Department of Justice has generally fulfilled its responsibilities with awareness and understanding of the competing needs in this area, this statement, to a considerable extent, reflects and formalizes the standards to which representatives of the Department have adhered in the past. Nonetheless, it will be helpful in ensuring uniformity of practice to set forth the following guidelines for all personnel of the Department of Justice.
(4) Because of the difficulty and importance of the questions they raise, it is felt that some portions of the matters covered by this statement, such as the authorization to make available Federal conviction records and a description of items seized at the time of arrest, should be the subject of continuing review and consideration by the Department on the basis of experience and suggestions from those within and outside the Department.
(b) Guidelines to criminal actions. (1) These guidelines shall apply to the release of information to news media from the time a person is the subject of a criminal investigation until any proceeding resulting from such an investigation has been terminated by trial or otherwise.
(2) At no time shall personnel of the Department of Justice furnish any statement or information for the purpose of influencing the outcome of a defendant’s trial, nor shall personnel of the Department furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial.
(3) Personnel of the Department of Justice, subject to specific limitations imposed by law or court rule or order, may make public the following information:
(i) The defendant’s name, age, residence, employment, marital status, and similar background information.
(ii) The substance or text of the charge, such as a complaint, indictment, or information.
(iii) The identity of the investigating and/or arresting agency and the length or scope of an investigation.
(iv) The circumstances immediately surrounding an arrest, including the time and place of arrest, resistance, pursuit, possession and use of weapons, and a description of physical items seized at the time of arrest.
(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.
(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.
§ 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.
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.
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.
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.
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.
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.
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, and court enforcement is not feasible, section 602 procedures may be completed and assistance finally refused.
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.
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.
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 if administrative alternatives are ineffective or inappropriate and court enforcement is not feasible, section 602 procedures may be completed and assistance finally refused.
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.
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.
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.
§ 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. Attorney of the arrest in accordance with numbered paragraph 2 of this statement.
§ 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 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.
§ 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.
§ 50.8 [Reserved]
§ 50.9 Policy with regard to open judicial proceedings.
Because of the vital public interest in open judicial proceedings, the Government has a general overriding affirmative duty to oppose their closure. There is, moreover, a strong presumption against closing proceedings or portions thereof, and the Department of Justice foresees very few cases in which closure would be warranted. The Government should take a position on any motion to close a judicial proceeding, and should ordinarily oppose closure; it should move for or consent to closed proceedings only when closure is plainly essential to the interests of justice. In furtherance of the Department’s concern for the right of the public to attend judicial proceedings and the Department’s obligation to the fair administration of justice, the following guidelines shall be adhered to by all attorneys for the United States.
(a) These guidelines apply to all federal trials, pre- and post-trial evidentiary proceedings, arraignments, bond hearings, plea proceedings, sentencing proceedings, or portions thereof, except as indicated in paragraph (e) of this section.
(b) A Government attorney has a compelling duty to protect the societal interest in open proceedings.
(c) A Government attorney shall not move for or consent to closure of a proceeding covered by these guidelines unless:
(1) No reasonable alternative exists for protecting the interests at stake;
(2) Closure is clearly likely to prevent the harm sought to be avoided;
(3) The degree of closure is minimized to the greatest extent possible;
(4) The public is given adequate notice of the proposed closure; and, in addition, the motion for closure is made on the record, except where the disclosure of the details of the motion papers would clearly defeat the reason for closure specified under paragraph (c)(6) of this section;
(5) Transcripts of the closed proceedings will be unsealed as soon as the interests requiring closure no longer obtain; and
(6) Failure to close the proceedings will produce;
(i) A substantial likelihood of denial of the right of any person to a fair trial; or
(ii) A substantial likelihood of imminent danger to the safety of parties, witnesses, or other persons; or
(iii) A substantial likelihood that ongoing investigations will be seriously jeopardized.
(d) A government attorney shall not move for or consent to the closure of any proceeding, civil or criminal, except with the express authorization of:
(1) The Deputy Attorney General, or,
(2) The Associate Attorney General, if the Division seeking authorization is under the supervision of the Associate Attorney General.
(e) These guidelines do not apply to:
(1) The closure of part of a judicial proceeding where necessary to protect national security information or classified documents; or
(2) In camera inspection, consideration or sealing of documents, including documents provided to the Government under a promise of confidentiality, where permitted by statute, rule of evidence or privilege; or
(3) Grand jury proceedings or proceedings ancillary thereto; or
(4) Conferences traditionally held at the bench or in chambers during the course of an open proceeding; or
(5) The closure of judicial proceedings pursuant to 18 U.S.C. 3509 (d) and (e) for the protection of child victims or child witnesses.
(f) Because of the vital public interest in open judicial proceedings, the records of any proceeding closed pursuant to this section, and still sealed 60 days after termination of the proceeding, shall be reviewed to determine if the reasons for closure are still applicable. If they are not, an appropriate motion will be made to have the records unsealed. If the reasons for closure are still applicable after 60 days, this review is to be repeated every 60 days until such time as the records are unsealed. Compliance with this section will be monitored by the Criminal Division.
(g) The principles set forth in this section are intended to provide guidance to attorneys for the Government and are not intended to create or recognize any legally enforceable right in any person.
§ 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) A free and independent press is vital to the functioning of our democracy. 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 law enforcement tools and actions, whether criminal or civil, that might unreasonably impair newsgathering. The policy is not intended to shield from accountability members of the news media who are subjects or targets of a criminal investigation for conduct outside the scope of newsgathering.
(2) The Department recognizes the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their Government. For this reason, with the exception of certain circumstances set out in this section, the Department of Justice will not use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering.
(3) In determining whether to seek, when permitted by this policy, information from or records of members of the news media, the Department must consider 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 a free press in fostering Government accountability and an open society, including by protecting members of the news media from compelled disclosure of information revealing their sources. These interests have long informed the Department’s view that the use of compulsory legal process to seek information from or records of non-consenting members of the news media constitutes an extraordinary measure, not a standard investigatory practice.
(b) Scope and definitions—(1) Covered persons and entities. The policy in this section governs the use of certain law enforcement tools and actions, whether criminal or civil, to obtain information from or records of members of the news media.
(2) Definitions. (i) Compulsory legal process consists of subpoenas, search warrants, court orders issued pursuant to 18 U.S.C. 2703(d) and 3123, interception orders issued pursuant to 18 U.S.C. 2518, civil investigative demands, and mutual legal assistance treaty requests—regardless of whether issued to members of the news media directly, to their publishers or employers, or to others, including third-party service providers of any of the forgoing, for the purpose of obtaining information from or records of members of the news media, and regardless of whether the compulsory legal process seeks testimony, physical or electronic documents, telephone toll or other communications records, metadata, or digital content.
(ii) Newsgathering is the process by which a member of the news media collects, pursues, or obtains information or records for purposes of producing content intended for public dissemination.
(A) Newsgathering includes the mere receipt, possession, or publication by a member of the news media of Government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.
(B) Except as provided in paragraph (b)(2)(ii)(A) of this section, newsgathering does not include criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.
(3) Exclusions. (i) The protections of the policy in this section do not extend to any person or entity where there is a reasonable ground to believe the person 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, 3 CFR, 2001 Comp., p. 786;
(D) A specially designated terrorist as that term is defined in 31 CFR 595.311;
(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 to commit the crimes of providing material support or resources to terrorists or designated foreign terrorist organizations, providing or collecting funds to finance acts of terrorism, or receiving military-type training from a foreign terrorist organization, as those offenses are defined in 18 U.S.C. 2339A, 2339B, 2339C, and 2339D; or
(H) Aiding, abetting, or conspiring in illegal activity with a person or organization described in paragraphs (b)(3)(i)(A) through (G) of this section.
(ii) The determination that an exclusion in paragraph (b)(3)(i) of this section applies must be made by the Assistant Attorney General for National Security.
(c) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering. Compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering is prohibited except under the circumstances set forth in paragraphs (c)(1) through (3) of this section. (Note that the prohibition in this paragraph (c) on using compulsory legal process applies when a member of the news media has, in the course of newsgathering, only received, possessed, or published government information, including classified information, or has established a means of receiving such information, including from an anonymous or confidential source.) The Department may only use compulsory legal process for the purpose of obtaining information from or records of a member of the news media acting within the scope of newsgathering, as follows:
(1) To authenticate for evidentiary purposes information or records that have already been published, in which case the authorization of a Deputy Assistant Attorney General for the Criminal Division is required;
(2) To obtain information or records after a member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed compulsory legal process, in which case authorization as described in paragraph (i) of this section is required; or
(3) When necessary to prevent an imminent or concrete risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor (as defined in 34 U.S.C. 20911(7)), or incapacitation or destruction of critical infrastructure (as defined in 42 U.S.C. 5195c(e)), in which case the authorization of the Attorney General is required.
(d) Compulsory legal process for the purpose of obtaining information from or records of a member of the news media not acting within the scope of newsgathering. (1) The Department may only use compulsory legal process for the purpose of obtaining information from or records of a member of the news media who is not acting within the scope of newsgathering:
(i) When the member of the news media is the subject or target of an investigation and suspected of having committed an offense;
(ii) To obtain information or records of a non-member of the news media, when the non-member is the subject or target of an investigation and the information or records are in a physical space, device, or account shared with a member of the news media;
(iii) To obtain purely commercial, financial, administrative, technical, or other information or records unrelated to newsgathering; or for information or records relating to personnel not involved in newsgathering;
(iv) To obtain information or records related to public comments, messages, or postings by readers, viewers, customers, or subscribers, over which a member of the news media does not exercise editorial control prior to publication;
(v) To obtain information or records of a member of the news media who may be a victim of or witness to crimes or other events, or whose premises may be the scene of a crime, when such status (as a victim or witness or crime scene) is not based on or within the scope of newsgathering; or
(vi) To obtain only subscriber and other information described in 18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F).
(2) Compulsory legal process under paragraph (d)(1) of this section requires the authorization of a Deputy Assistant Attorney General for the Criminal Division, except that:
(i) To obtain information or records after a member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed compulsory legal process, such compulsory legal process requires authorization as described in paragraph (i) of this section governing voluntary questioning and compulsory legal process following consent by a member of the news media; and
(ii) To seek a search warrant for the premises of a news media entity requires authorization by the Attorney General.
(e) Matters where there is a close or novel question as to the person’s or entity’s status as a member of the news media or whether the member of the news media is acting within the scope of newsgathering. (1) When there is a close or novel question as to the person’s or entity’s status as a member of the news media, the determination of such status must be approved by the Assistant Attorney General for the Criminal Division.
(2) When there is a close or novel question as to whether the member of the news media is acting within the scope of newsgathering, the determination of such status must be approved by the Assistant Attorney General for the Criminal Division. When the Assistant Attorney General finds that there is genuine uncertainty as to whether the member of the news media is acting within the scope of newsgathering, the determination of such status must be approved by the Attorney General.
(f) Compelled testimony. (1) Except as provided in paragraph (f)(2) of this section, members of the Department must obtain the authorization of the Deputy Attorney General when seeking to compel grand jury or trial testimony otherwise permitted by this section from any member of the news media.
(2) When the compelled testimony under paragraph (f)(1) of this section has no nexus to the person’s or entity’s activities as a member of the news media, members of the Department must obtain the authorization of a Deputy Assistant Attorney General for the Criminal Division and provide prior notice to the Deputy Attorney General.
(3) Such authorization may only be granted when all other requirements of this policy regarding compulsory legal process have been satisfied.
(g) Exhaustion. (1) Except as provided in paragraph (g)(2) of this section, the official authorizing the compulsory legal process must find the following exhaustion conditions are met:
(i) The Government has exhausted all reasonable avenues to obtain the information from alternative, non-news-media sources.
(ii) The Government has pursued negotiations with the member of the news media in an attempt to secure the member of the news media’s consent to the production of the information or records to be sought through compulsory legal process, unless the authorizing official determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation or pose the risks described in paragraph (c)(3) of this section. Where the nature of the investigation permits, the Government must have explained to the member of the news media the Government’s need for the information sought in a particular investigation or prosecution, as well as its willingness or ability to address the concerns of the member of the news media.
(iii) The proposed compulsory legal process is narrowly drawn. It must be directed at material and relevant information regarding a limited subject matter, avoid interference with unrelated newsgathering, cover a reasonably limited period of time, avoid requiring production of a large volume of material, and give reasonable and timely notice of the demand as required by paragraph (j) of this section.
(2) When the process is sought pursuant to paragraph (d)(1), (i), or (l) of this section, the authorizing official is not required to find that the exhaustion conditions in paragraphs (g)(1)(i) and (ii) of this section have been satisfied, but should consider requiring those conditions as appropriate.
(h) Standards for authorizing compulsory legal process. (1) In all matters covered by this section, the official authorizing the compulsory legal process must take into account the principles set forth in paragraph (a) of this section.
(2) Except as provided in paragraph (h)(3) of this section, when the member of the news media is not the subject or target of an investigation and suspected of having committed an offense, the official authorizing the compulsory legal process must take into account the following considerations:
(i) In criminal matters, there must be reasonable grounds to believe, based on public information or information from non-news-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution. The compulsory legal process may not be used to obtain peripheral, nonessential, or speculative information.
(ii) In civil matters, there must be reasonable grounds to believe, based on public information or information from non-news-media sources, that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance. The compulsory legal process may not be used to obtain peripheral, nonessential, cumulative, or speculative information.
(3) When paragraph (h)(2) of this section would otherwise apply, but the compulsory legal process is sought pursuant to paragraph (i) or (l) of this section, the authorizing official is not required to, but should, take into account whether the information sought is essential to a successful investigation, prosecution, or litigation as described in paragraphs (h)(2)(i) and (ii) of this section.
(4) When the member of the news media is the subject or target of an investigation and suspected of having committed an offense, before authorizing compulsory legal process, the authorizing official is not required to, but should, take into account the considerations set forth in paragraphs (h)(2)(i) and (ii) of this section as appropriate.
(i) Voluntary questioning and compulsory legal process following consent by a member of the news media. (1) When the member of the news media is not the subject or target of an investigation and suspected of having committed an offense, authorization by a United States Attorney or Assistant Attorney General responsible for the matter must be obtained in order to question a member of the news media on a voluntary basis, or to use compulsory legal process if the member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed process. When there is any nexus to the person’s activities as a member of the news media, such authorization must be preceded by consultation with the Criminal Division.
(2) When the member of the news media is the subject or target of an investigation and suspected of having committed an offense, authorization by a Deputy Assistant Attorney General for the Criminal Division must be obtained in order to question a member of the news media on a voluntary basis, or to use compulsory legal process if the member of the news media agrees to provide or consents to the provision of the requested records or information in response to the proposed process.
(j) Notice of compulsory legal process to the affected member of the news media. (1) Members of the Department must provide notice to the affected member of the news media prior to the execution of authorized compulsory legal process under paragraph (c) of this section unless the authorizing official determines that, for compelling reasons, such notice would pose the risks described in paragraph (c)(3) of this section.
(2) Members of the Department must provide notice prior to the execution of compulsory legal process authorized under paragraphs (d)(1)(ii) through (vi) of this section to a member of the news media that is not the subject or target of an investigation and suspected of having committed an offense, unless the authorizing official determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation or would pose the risks described in paragraph (c)(3) of this section and so informs the Deputy Attorney General in advance.
(3) If the member of the news media has not been given notice under paragraph (j)(1) or (2) of this section, the United States Attorney or Assistant Attorney General responsible for the matter must provide notice to the member of the news media as soon as it is determined that such notice would no longer pose the concerns described in paragraph (j)(1) or (2) of this section, as applicable.
(4) In any event, such notice must be given to the affected member of the news media within 45 days of the Government’s receipt of a complete return made pursuant to all forms of compulsory legal process included in the same authorizing official’s authorization under paragraph (c) or (d)(1)(ii) through (vi) of this section, except that the authorizing official may authorize delay of notice for one additional 45-day period if the official determines that, for compelling reasons, such notice continues to pose the same concerns described in paragraph (j)(1) or (2) of this section, as applicable.
(5) Members of the Department are not required to provide notice to the affected member of the news media of compulsory legal process that was authorized under paragraph (d)(1)(i) of this section if the affected member of the news media is the subject or target of an investigation and suspected of having committed an offense.
(i) The authorizing official may nevertheless direct that notice be provided to the affected member of the news media.
(ii) If the authorizing official does not direct that such notice be provided, the official must so inform the Deputy Attorney General, and members of the Department who are responsible for the matter must provide the authorizing official with an update every 90 days regarding the status of the investigation. That update must include an assessment of any harm to the investigation that would be caused by providing notice to the member of the news media. The authorizing official will consider such update in determining whether to direct that notice be provided.
(6) Notice under the policy in this section may be given to the affected member of the news media or a current employer of that member if that employer is also a member of the news media.
(7) A copy of any notice to be provided to a member of the news media shall be provided to the Director of the Office of Public Affairs and to the Director of the Criminal Division’s Office of Enforcement Operations at least 10 business days before such notice is provided, and immediately after such notice is provided to the member of the news media.
(k) Non-disclosure orders. (1) In seeking authorization to use compulsory legal process to obtain information from or the records of a member of the news media, members of the Department must indicate whether they intend to seek an order directing the recipient of the compulsory legal process not to disclose the existence of the compulsory legal process to any other person or entity and shall articulate the need for such non-disclosure order.
(2) An application for a non-disclosure order sought in connection with compulsory legal process under paragraph (c) of this section may only be authorized if the authorizing official determines that, for compelling reasons, disclosure would pose the risks described in paragraph (c)(3) of this section and the application otherwise complies with applicable statutory standards and Department policies.
(3) An application for a non-disclosure order sought in connection with compulsory legal process under paragraphs (d)(1)(ii) through (vi) of this section regarding a member of the news media that is not the subject or target of an investigation and suspected of having committed an offense may only be authorized if the authorizing official determines that, for compelling reasons, disclosure would pose a clear and substantial threat to the integrity of the investigation or would pose the risks described in paragraph (c)(3) of this section and the application otherwise complies with applicable statutory standards and Department policies.
(4) An application for a non-disclosure order sought in connection with compulsory legal process under paragraph (d)(1)(i) of this section regarding a member of the news media that is a subject or target of an investigation and suspected of having committed an offense may be authorized if the application otherwise complies with applicable statutory standards and Department policies.
(5) Members of the Department must move to vacate any non-disclosure order when notice of compulsory legal process to the affected member of media is required (after any extensions permitted) by paragraph (j) of this section.
(l) Exigent circumstances involving risk of death or serious bodily harm. (1) A Deputy Assistant Attorney General for the Criminal Division may authorize the use of compulsory legal process that would otherwise require authorization from the Attorney General or the Deputy Attorney General if the Deputy Assistant Attorney General for the Criminal Division determines that:
(i) The exigent use of such compulsory legal process is necessary to prevent the risks described in paragraph (c)(3) of this section; and
(ii) Those exigent circumstances require the use of such compulsory legal process before the authorization of the Attorney General or the Deputy Attorney General can, with due diligence, be obtained.
(2) In authorizing the exigent use of compulsory legal process, a Deputy Assistant Attorney General for the Criminal Division should take into account the principles set forth in paragraph (a) of this section; ensure that the proposed process is narrowly tailored to retrieve information or records required to prevent or mitigate the associated imminent risk; and require members of the Department to comply with the safeguarding protocols described in paragraph (p) of this section.
(3) As soon as possible after the approval by a Deputy Assistant Attorney General for the Criminal Division of a request under paragraph (l)(1) of this section, the Deputy Assistant Attorney General must provide notice to the designated authorizing official, the Deputy Attorney General, and the Director of the Office of Public Affairs. Within 10 business days of the authorization under paragraph (l)(1) of this section, the United States Attorney or Assistant Attorney General responsible for the matter shall provide a statement to the designated authorizing official containing the information that would have been provided in a request for prior authorization.
(m) Arresting or charging a member of the news media. (1) Except as provided in paragraph (m)(2) of this section or in circumstances in which prior authorization is not possible, members of the Department must obtain the authorization of the Deputy Attorney General to seek a warrant for an arrest, conduct an arrest, present information to a grand jury seeking a bill of indictment, or file an information against a member of the news media.
(2) Except in circumstances in which prior authorization is not possible, when the arrest or charging of a member of the news media under paragraph (m)(1) of this section has no nexus to the person’s or entity’s activities as a member of the news media, members of the Department must obtain the authorization of a Deputy Assistant Attorney General for the Criminal Division and provide prior notice to the Deputy Attorney General.
(3) When prior authorization was not possible, the member of the Department must ensure that the designated authorizing official is notified as soon as possible.
(n) Applications for authorizations under this section. (1) Whenever any authorization is required under this section, the application must be personally approved in writing by the United States Attorney or Assistant Attorney General responsible for the matter.
(2) Whenever the authorizing official under this section is the Attorney General or the Deputy Attorney General, the application must also be personally approved in a memorandum by the Assistant Attorney General for the Criminal Division.
(3) The member of the Department requesting authorization must provide all facts and applicable legal authority necessary for the authorizing official to make the necessary determinations, as well as copies of the proposed compulsory legal process and any other related filings.
(4) Whenever an application for any authorization is made to the Attorney General or the Deputy Attorney General under this section, the application must also be provided to the Director of the Office of Public Affairs for consultation.
(o) Filter protocols. (1) In conjunction with the use of compulsory legal process, the use of filter protocols, including but not limited to keyword searches and filter teams, may be necessary to minimize the potential intrusion into newsgathering-related materials that are unrelated to the conduct under investigation.
(2) While the use of filter protocols should be considered in all matters involving a member of the news media, the use of such protocols must be balanced against the need for prosecutorial flexibility and the recognition that investigations evolve, and should be tailored to the facts of each investigation.
(3) Unless compulsory legal process is sought pursuant to paragraph (i) or (l) of this section, members of the Department must use filter protocols when the compulsory legal process relates to a member of the news media acting within the scope of newsgathering or the compulsory legal process could potentially encompass newsgathering-related materials that are unrelated to the conduct under investigation. The Attorney General or the Deputy Attorney General may waive the use of filter protocols only upon an express finding that there is a de minimis risk that newsgathering-related materials that are unrelated to the conduct under investigation would be obtained pursuant to the compulsory legal process and that any filter protocol would pose a substantial and unwarranted investigative burden.
(4) Members of the Department should consult the Justice Manual for guidance regarding the use of filter protocols to protect newsgathering-related materials that are unrelated to the conduct under investigation.
(p) Safeguarding. Any information or records that might include newsgathering-related materials obtained from a member of the news media or from third parties pursuant to the policy in this section must be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes. Members of the Department must consult the Justice Manual for specific guidance regarding the safeguarding of information or records obtained from a member of the news media or from third parties pursuant to this section and regarding the destruction and return of information or records as permitted by law.
(q) Privacy Protection Act. All authorizations pursuant to this section must comply with the provisions of the Privacy Protection Act (PPA), 42 U.S.C. 2000aa(a) et seq. Members of the Department must consult the Justice Manual for specific guidance on complying with the PPA. Among other things, members of the Department are not 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, see 42 U.S.C. 2000aa(a)(1) and (b)(1), if the sole purpose is to further the investigation of a person other than the member of the news media.
(r) Anti-circumvention. Members of the Department shall not direct any third party to take any action that would violate a provision of this section if taken by a member of the Department.
(s) Failure to comply. Failure to obtain the prior authorization required by this section may constitute grounds for an administrative reprimand or other appropriate disciplinary action.
(t) General provision. This section 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.
§ 50.12 Exchange of FBI identification records.
(a) The Federal Bureau of Investigation, hereinafter referred to as the FBI, is authorized to expend funds for the exchange of identification records with officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions and, if authorized by state statute and approved by the Director of the FBI, acting on behalf of the Attorney General, with officials of state and local governments for purposes of employment and licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115. Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C. 2169, respectively, such records can be exchanged with certain segments of the securities industry, with registered futures associations, and with nuclear power plants. The records also may be exchanged in other instances as authorized by federal law.
(b) The FBI Director is authorized by 28 CFR 0.85(j) to approve procedures relating to the exchange of identification records. Under this authority, effective September 6, 1990, the FBI Criminal Justice Information Services (CJIS) Division has made all data on identification records available for such purposes. Records obtained under this authority may be used solely for the purpose requested and cannot be disseminated outside the receiving departments, related agencies, or other authorized entities. Officials at the governmental institutions and other entities authorized to submit fingerprints and receive FBI identification records under this authority must notify the individuals fingerprinted that the fingerprints will be used to check the criminal history records of the FBI. The officials making the determination of suitability for licensing or employment shall provide the applicants the opportunity to complete, or challenge the accuracy of, the information contained in the FBI identification record. These officials also must advise the applicants that procedures for obtaining a change, correction, or updating of an 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.
§ 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.
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.
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.
B. Employment decisions. These guidelines apply to tests and other selection procedures which are used as a basis for any employment decision. Employment decisions include but are not limited to hiring, promotion, demotion, membership (for example, in a labor organization), referral, retention, and licensing and certification, to the extent that licensing and certification may be covered by Federal equal employment opportunity law. Other selection decisions, such as selection for training or transfer, may also be considered employment decisions if they lead to any of the decisions listed above.
C. Selection procedures. These guidelines apply only to selection procedures which are used as a basis for making employment decisions. For example, the use of recruiting procedures designed to attract members of a particular race, sex, or ethnic group, which were previously denied employment opportunities or which are currently underutilized, may be necessary to bring an employer into compliance with Federal law, and is frequently an essential element of any effective affirmative action program; but recruitment practices are not considered by these guidelines to be selection procedures. Similarly, these guidelines do not pertain to the question of the lawfulness of a seniority system within the meaning of section 703(h), Executive Order 11246 or other provisions of Federal law or regulation, except to the extent that such systems utilize selection procedures to determine qualifications or abilities to perform the job. Nothing in these guidelines is intended or should be interpreted as discouraging the use of a selection procedure for the purpose of determining qualifications or for the purpose of selection on the basis of relative qualifications, if the selection procedure had been validated in accord with these guidelines for each such purpose for which it is to be used.
D. Limitations. These guidelines apply only to persons subject to title VII, Executive Order 11246, or other equal employment opportunity requirements of Federal law. These guidelines do not apply to responsibilities under the Age Discrimination in Employment Act of 1967, as amended, not to discriminate on the basis of age, or under sections 501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate on the basis of handicap.
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.
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.
B. Applicable race, sex, and ethnic groups for recordkeeping. The records called for by this section are to be maintained by sex, and the following races and ethnic groups: Blacks (Negroes), American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), whites (Caucasians) other than Hispanic, and totals. The race, sex, and ethnic classifications called for by this section are consistent with the Equal Employment Opportunity Standard Form 100, Employer Information Report EEO-1 series of reports. The user should adopt safeguards to insure that the records required by this paragraph are used for appropriate purposes such as determining adverse impact, or (where required) for developing and monitoring affirmative action programs, and that such records are not used improperly. See sections 4E and 17(4), below.
C. Evaluation of selection rates. The “bottom line.” If the information called for by sections 4A and B above shows that the total selection process for a job has an adverse impact, the individual components of the selection process should be evaluated for adverse impact. If this information shows that the total selection process does not have an adverse impact, the Federal enforcement agencies, in the exercise of their administrative and prosecutorial discretion, in usual circumstances, will not expect a user to evaluate the individual components for adverse impact, or to validate such individual components, and will not take enforcement action based upon adverse impact of any component of that process, including the separate parts of a multipart selection procedure or any separate procedure that is used as an alternative method of selection. However, in the following circumstances the Federal enforcement agencies will expect a user to evaluate the individual components for adverse impact and may, where appropriate, take enforcement action with respect to the individual components: (1) Where the selection procedure is a significant factor in the continuation of patterns of assignments of incumbent employees caused by prior discriminatory employment practices, (2) where the weight of court decisions or administrative interpretations hold that a specific procedure (such as height or weight requirements or no-arrest records) is not job related in the same or similar circumstances. In unusual circumstances, other than those listed in (1) and (2) above, the Federal enforcement agencies may request a user to evaluate the individual components for adverse impact 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 (
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.
B. Criterion-related, content, and construct validity. Evidence of the validity of a test or other selection procedure by a criterion-related validity study should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance. See section 14B below. Evidence of the validity of a test or other selection procedure by a content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated. See section 14C below. Evidence of the validity of a test or other selection procedure through a construct validity study should consist of data showing that the procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important in successful performance in the job for which the candidates are to be evaluated. See section 14D below.
C. Guidelines are consistent with professional standards. The provisions of these guidelines relating to validation of selection procedures are intended to be consistent with generally accepted professional standards for evaluating standardized tests and other selection procedures, such as those described in the Standards for Educational and Psychological Tests prepared by a joint committee of the American Psychological Association, the American Educational Research Association, and the National Council on Measurement in Education (American Psychological Association, Washington, DC, 1974) (hereinafter “A.P.A. Standards”) and standard textbooks and journals in the field of personnel selection.
D. Need for documentation of validity. For any selection procedure which is part of a selection process which has an adverse impact and which selection procedure has an adverse impact, each user should maintain and have available such documentation as is described in section 15 below.
E. Accuracy and standardization. Validity studies should be carried out under conditions which assure insofar as possible the adequacy and accuracy of the research and the report. Selection procedures should be administered and scored under standardized conditions.
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.
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.
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.
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.
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.
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.
B. Encouragement of voluntary affirmative action programs. These guidelines are also intended to encourage the adoption and implementation of voluntary affirmative action programs by users who have no obligation under Federal law to adopt them; but are not intended to impose any new obligations in that regard. The agencies issuing and endorsing these guidelines endorse for all private employers and reaffirm for all governmental employers the Equal Employment Opportunity Coordinating Council’s “Policy Statement on Affirmative Action Programs for State and Local Government Agencies” (41 FR 38814, September 13, 1976). That policy statement is attached hereto as appendix, section 17.
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 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 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 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 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.
(1) Simplified recordkeeping for users with less than 100 employees. In order to minimize recordkeeping burdens on employers who employ one hundred (100) or fewer employees, and other users not required to file EEO-1, et seq., reports, such users may satisfy the requirements of this section 15 if they maintain and have available records showing, for each year:
(a) The number of persons hired, promoted, and terminated for each job, by sex, and where appropriate by race and national origin;
(b) The number of applicants for hire and promotion by sex and where appropriate by race and national origin; and
(c) The selection procedures utilized (either standardized or not standardized).
These records should be maintained for each race or national origin group (see section 4 above) constituting more than two percent (2%) of the labor force in the relevant labor area. However, it is not necessary to maintain records by race and/or national origin (see section 4 above) if one race or national origin group in the relevant labor area constitutes more than ninety-eight percent (98%) of the labor force in the area. If the user has reason to believe that a selection procedure has an adverse impact, the user should maintain any available evidence of validity for that procedure (see sections 7A and 8).
(2) Information on impact—(a) Collection of information on impact. Users of selection procedures other than those complying with section 15A(1) above should maintain and have available for each job records or other information showing whether the total selection process for that job has an adverse impact on any of the groups for which records are called for by sections 4B above. Adverse impact determinations should be made at least annually for each such group which constitutes at least 2 percent of the labor force in the relevant labor area or 2 percent of the applicable workforce. Where a total selection process for a job has an adverse impact, the user should maintain and have available records or other information showing which components have an adverse impact. Where the total selection process for a job does not have an adverse impact, information need not be maintained for individual components except in circumstances set forth in subsection 15A(2)(b) below. If the determination of adverse impact is made using a procedure other than the “four-fifths rule,” as defined in the first sentence of section 4D above, a justification, consistent with section 4D above, for the procedure used to determine adverse impact should be available.
(b) When adverse impact has been eliminated in the total selection process. Whenever the total selection process for a particular job has had an adverse impact, as defined in section 4 above, in any year, but no longer has an adverse impact, the user should maintain and have available the information on individual components of the selection process required in the preceding paragraph for the period in which there was adverse impact. In addition, the user should continue to collect such information for at least two (2) years after the adverse impact has been eliminated.
(c) When data insufficient to determine impact. Where there has been an insufficient number of selections to determine whether there is an adverse impact of the total selection process for a particular job, the user should continue to collect, maintain and have available the information on individual components of the selection process required in section 15(A)(2)(a) above until the information is sufficient to determine that the overall selection process does not have an adverse impact as defined in section 4 above, or until the job has changed substantially.
(3) Documentation of validity evidence—(a) Types of evidence. Where a total selection process has an adverse impact (see section 4 above) the user should maintain and have available for each component of that process which has an adverse impact, one or more of the following types of documentation evidence:
(i) Documentation evidence showing criterion-related validity of the selection procedure (see section 15B, below).
(ii) Documentation evidence showing content validity of the selection procedure (see section 15C, below).
(iii) Documentation evidence showing construct validity of the selection procedure (see section 15D, below).
(iv) Documentation evidence from other studies showing validity of the selection procedure in the user’s facility (see section 15E, below).
(v) Documentation evidence showing why a validity study cannot or need not be performed and why continued use of the procedure is consistent with Federal law.
(b) Form of report. This evidence should be compiled in a reasonably complete and organized manner to permit direct evaluation of the validity of the selection procedure. Previously written employer or consultant reports of validity, or reports describing validity studies completed before the issuance of these guidelines are acceptable if they are complete in regard to the documentation requirements contained in this section, or if they satisfied requirements of guidelines which were in effect when the validity study was completed. If they are not complete, the required additional documentation should be appended. If necessary information is not available the report of the validity study may still be used as documentation, but its adequacy will be evaluated in terms of compliance with the requirements of these guidelines.
(c) Completeness. In the event that evidence of validity is reviewed by an enforcement agency, the validation reports completed after the effective date of these guidelines are expected to contain the information set forth below. Evidence denoted by use of the word “(Essential)” is considered critical. If information denoted essential is not included, the report will be considered incomplete unless the user affirmatively demonstrates either its unavailability due to circumstances beyond the user’s control or special circumstances of the user’s study which make the information irrelevant. Evidence not so denoted is desirable but its absence will not be a basis for considering a report incomplete. The user should maintain and have available the information called for under the heading “Source Data” in sections 15B(11) and 15D(11). While it is a necessary part of the study, it need not be submitted with the report. All statistical results should be organized and presented in tabular or graphic form to the extent feasible.
B. Criterion-related validity studies. Reports of criterion-related validity for a selection procedure should include the following information:
(1) User(s), location(s), and date(s) of study. Dates and location(s) of the job analysis or review of job information, the date(s) and location(s) of the administration of the selection procedures and collection of criterion data, and the time between collection of data on selection procedures and criterion measures should be provided (Essential). If the study was conducted at several locations, the address of each location, including city and State, should be shown.
(2) Problem and setting. An explicit definition of the purpose(s) of the study and the circumstances in which the study was conducted should be provided. A description of existing selection procedures and cutoff scores, if any, should be provided.
(3) Job analysis or review of job information. A description of the procedure used to analyze the job or group of jobs, or to review the job information should be provided (Essential). Where a review of job information results in criteria which may be used without a full job analysis (see section 14B(3)), the basis for the selection of these criteria should be reported (Essential). Where a job analysis is required a complete description of the work behavior(s) or work outcome(s), and measures of their criticality or importance should be provided (Essential). The report should describe the basis on which the behavior(s) or outcome(s) were determined to be critical or important, such as the proportion of time spent on the respective behaviors, their level of difficulty, their frequency of performance, the consequences of error, or other appropriate factors (Essential). Where two or more jobs are grouped for a validity study, the information called for in this subsection should be provided for each of the jobs, and the justification for the grouping (see section 14B(1)) should be provided (Essential).
(4) Job titles and codes. It is desirable to provide the user’s job title(s) for the job(s) in question and the corresponding job title(s) and code(s) from U.S. Employment Service’s Dictionary of Occupational Titles.
(5) Criterion measures. The bases for the selection of the criterion measures should be provided, together with references to the evidence considered in making the selection of criterion measures (essential). A full description of all criteria on which data were collected and means by which they were observed, recorded, evaluated, and quantified, should be provided (essential). If rating techniques are used as criterion measures, the appraisal form(s) and instructions to the rater(s) should be included as part of the validation evidence, or should be explicitly described and available (essential). All steps taken to insure that criterion measures are free from factors which would unfairly alter the scores of members of any group should be described (essential).
(6) Sample description. A description of how the research sample was identified and selected should be included (essential). The race, sex, and ethnic composition of the sample, including those groups set forth in section 4A above, should be described (essential). This description should include the size of each subgroup (essential). A description of how the research sample compares with the relevant labor market or work force, the method by which the relevant labor market or work force was defined, and a discussion of the likely effects on validity of differences between the sample and the relevant labor market or work force, are also desirable. Descriptions of educational levels, length of service, and age are also desirable.
(7) Description of selection procedures. Any measure, combination of measures, or procedure studied should be completely and explicitly described or attached (essential). If commercially available selection procedures are studied, they should be described by title, form, and publisher (essential). Reports of reliability estimates and how they were established are desirable.
(8) Techniques and results. Methods used in analyzing data should be described (essential). Measures of central tendency (e.g., means) and measures of dispersion (e.g., standard deviations and ranges) for all selection procedures and all criteria should be reported for each race, sex, and ethnic group which constitutes a significant factor in the relevant labor market (essential). The magnitude and direction of all relationships between selection procedures and criterion measures investigated should be reported for each relevant race, sex, and ethnic group and for the total group (essential). Where groups are too small to obtain reliable evidence of the magnitude of the relationship, need not be reported separately. Statements regarding the statistical significance of results should be made (essential). Any statistical adjustments, such as for less then perfect reliability or for restriction of score range in the selection procedure or criterion should be described and explained; and uncorrected correlation coefficients should also be shown (essential). Where the statistical technique categorizes continuous data, such as biserial correlation and the phi coefficient, the categories and the bases on which they were determined should be described and explained (essential). Studies of test fairness should be included where called for by the requirements of section 14B(8) (essential). These studies should include the rationale by which a selection procedure was determined to be fair to the group(s) in question. Where test fairness or unfairness has been demonstrated on the basis of other studies, a bibliography of the relevant studies should be included (essential). If the bibliography includes unpublished studies, copies of these studies, or adequate abstracts or summaries, should be attached (essential). Where revisions have been made in a selection procedure to assure compatability between successful job performance and the probability of being selected, the studies underlying such revisions should be included (essential). All statistical results should be organized and presented by relevant race, sex, and ethnic group (essential).
(9) Alternative procedures investigated. The selection procedures investigated and available evidence of their impact should be identified (essential). The scope, method, and findings of the investigation, and the conclusions reached in light of the findings, should be fully described (essential).
(10) Uses and applications. The methods considered for use of the selection procedure (e.g., as a screening device with a cutoff score, for grouping or ranking, or combined with other procedures in a battery) and available evidence of their impact should be described (essential). This description should include the rationale for choosing the method for operational use, and the evidence of the validity and utility of the procedure as it is to be used (essential). The purpose for which the procedure is to be used (e.g., hiring, transfer, promotion) should be described (essential). If weights are assigned to different parts of the selection procedure, these weights and the validity of the weighted composite should be reported (essential). If the selection procedure is used with a cutoff score, the user should describe the way in which normal expectations of proficiency within the work force were determined and the way in which the cutoff score was determined (essential).
(11) Source data. Each user should maintain records showing all pertinent information about individual sample members and raters where they are used, in studies involving the validation of selection procedures. These records should be made available upon request of a compliance agency. In the case of individual sample members these data should include scores on the selection procedure(s), scores on criterion measures, age, sex, race, or ethnic group status, and experience on the specific job on which the validation study was conducted, and may also include such things as education, training, and prior job experience, but should not include names and social security numbers. Records should be maintained which show the ratings given to each sample member by each rater.
(12) Contact person. The name, mailing address, and telephone number of the person who may be contacted for further information about the validity study should be provided (essential).
(13) Accuracy and completeness. The report should describe the steps taken to assure the accuracy and completeness of the collection, analysis, and report of data and results.
C. Content validity studies. Reports of content validity for a selection procedure should include the following information:
(1) User(s), location(s) and date(s) of study. Dates and location(s) of the job analysis should be shown (essential).
(2) Problem and setting. An explicit definition of the purpose(s) of the study and the circumstances in which the study was conducted should be provided. A description of existing selection procedures and cutoff scores, if any, should be provided.
(3) Job analysis—Content of the job. A description of the method used to analyze the job should be provided (essential). The work 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 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.
(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).
A. Ability. A present competence to perform an observable behavior or a behavior which results in an observable product.
B. Adverse impact. A substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group. See section 4 of these guidelines.
C. Compliance with these guidelines. Use of a selection procedure is in compliance with these guidelines if such use has been validated in accord with these guidelines (as defined below), or if such use does not result in adverse impact on any race, sex, or ethnic group (see section 4, above), or, in unusual circumstances, if use of the procedure is otherwise justified in accord with Federal law. See section 6B, above.
D. Content validity. Demonstrated by data showing that the content of a selection procedure is representative of important aspects of performance on the job. See section 5B and section 14C.
E. Construct validity. Demonstrated by data showing that the selection procedure measures the degree to which candidates have identifiable characteristics which have been determined to be important for successful job performance. See section 5B and section 14D.
F. Criterion-related validity. Demonstrated by empirical data showing that the selection procedure is predictive of or significantly correlated with important elements of work behavior. See sections 5B and 14B.
G. Employer. Any employer subject to the provisions of the Civil Rights Act of 1964, as amended, including State or local governments and any Federal agency subject to the provisions of section 717 of the Civil Rights Act of 1964, as amended, and any Federal 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 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.
17. Policy statement on affirmative action (see section 13B). The Equal Employment Opportunity Coordinating Council was established by act of Congress in 1972, and charged with responsibility for developing and implementing agreements and policies designed, among other things, to eliminate conflict and inconsistency among the agencies of the Federal Government responsible for administering Federal law prohibiting discrimination on grounds of race, color, sex, religion, and national origin. This statement is issued as an initial response to the requests of a number of State and local officials for clarification of the Government’s policies concerning the role of affirmative action in the overall equal employment opportunity program. While the Coordinating Council’s adoption of this statement expresses only the views of the signatory agencies concerning this important subject, the principles set forth below should serve as policy guidance for other Federal agencies as well.
(1) Equal employment opportunity is the law of the land. In the public sector of our society this means that all persons, regardless of race, color, religion, sex, or national origin shall have equal access to positions in the public service limited only by their ability to do the job. There is ample evidence in all sectors of our society that such equal access frequently has been denied to members of certain groups because of their sex, racial, or ethnic characteristics. The remedy for such past and present discrimination is twofold.
On the one hand, vigorous enforcement of the laws against discrimination is essential. But equally, and perhaps even more important are affirmative, voluntary efforts on the part of public employers to assure that positions in the public service are genuinely and equally accessible to qualified persons, without regard to their sex, racial, or ethnic characteristics. Without such efforts equal employment opportunity is no more than a wish. The importance of voluntary affirmative action on the part of employers is underscored by title VII of the Civil Rights Act of 1964, Executive Order 11246, and related laws and regulations—all of which emphasize voluntary action to achieve equal employment opportunity.
As with most management objectives, a systematic plan based on sound organizational analysis and problem identification is crucial to the accomplishment of affirmative action objectives. For this reason, the Council urges all State and local governments to develop and implement results oriented affirmative action plans which deal with the problems so identified.
The following paragraphs are intended to assist State and local governments by illustrating the kinds of analyses and activities which may be appropriate for a public employer’s voluntary affirmative action plan. This statement does not address remedies imposed after a finding of unlawful discrimination.
(2) Voluntary affirmative action to assure equal employment opportunity is appropriate at any stage of the employment process. The first step in the construction of any affirmative action plan should be an analysis of the employer’s work force to determine whether percentages of sex, race, or ethnic groups in individual job classifications are substantially similar to the percentages of those groups available in the relevant job market who possess the basic job-related qualifications.
When substantial disparities are found through such analyses, each element of the overall selection process should be examined to determine which elements operate to exclude persons on the basis of sex, race, or ethnic group. Such elements include, but are not limited to, recruitment, testing, ranking certification, interview, recommendations for selection, hiring, promotion, etc. The examination of each element of the selection process should at a minimum include a determination of its validity in predicting job performance.
(3) When an employer has reason to believe that its selection procedures have the exclusionary effect described in paragraph 2 above, it should initiate affirmative steps to remedy the situation. Such steps, which in design and execution may be race, color, sex, or ethnic “conscious,” include, but are not limited to, the following:
(a) The establishment of a long-term goal, and short-range, interim goals and timetables for the specific job classifications, all of which should take into account the availability of basically qualified persons in the relevant job market;
(b) A recruitment program designed to attract qualified members of the group in question;
(c) A systematic effort to organize work and redesign jobs in ways that provide opportunities for persons lacking “journeyman” level knowledge or skills to enter and, with appropriate training, to progress in a career field;
(d) Revamping selection instruments or procedures which have not yet been validated in order to reduce or eliminate exclusionary effects on particular groups in particular job classifications;
(e) The initiation of measures designed to assure that members of the affected group 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,
Deputy Attorney General and Chairman of the Equal Employment Coordinating Council.
Under Secretary of Labor.
Acting Chairman, Equal Employment Opportunity Commission.
Chairman, Civil Service Commission.
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.
General Counsel, Department of the Treasury.
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:
29 CFR Part 1607
41 CFR Part 60-3
28 CFR 50.14
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.”
Chair, Equal Employment Opportunity Commission.
Chairman, Civil Service Commission.
Secretary of Labor.
Attorney General.
§ 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 § 15.1 of this chapter, when the actions for which representation is requested reasonably appear to have been performed within the scope of the employee’s employment and the Attorney General or his designee determines that providing representation would otherwise be in the interest of the United States. No special form of request for representation is required when it is clear from the proceedings in a case that the employee is being sued solely in his official capacity and only equitable relief is sought. (See USAM 4-13.000)
(1) When an employee believes he is entitled to representation by the Department of Justice in a proceeding, he must submit forthwith a written request for that representation, together with all process and pleadings served upon him, to his immediate supervisor or whomever is designated by the head of his department or agency. Unless the employee’s employing federal agency concludes that representation is clearly unwarranted, it shall submit, in a timely manner, to the Civil Division or other appropriate litigating division (Antitrust, Civil Rights, Criminal, Land and Natural Resources or the Tax Division), a statement containing its findings as to whether the employee was acting within the scope of his employment and its recommendation for or against providing representation. The statement should be accompanied by all available factual information. In emergency situations the litigating division may initiate conditional representation after a telephone request from the appropriate official of the employing agency. In such cases, the written request and appropriate documentation must be subsequently provided.
(2) Upon receipt of the individual’s request for counsel, the litigating division shall determine whether the employee’s actions reasonably appear to have been performed within the scope of his employment and whether providing representation would be in the interest of the United States. In circumstances where considerations of professional ethics prohibit direct review of the facts by attorneys of the litigating division (e.g. because of the possible existence of inter-defendant conflicts) the litigating division may delegate the fact-finding aspects of this function to other components of the Department or to a private attorney at federal expenses.
(3) Attorneys employed by any component of the Department of Justice who participate in any process utilized for the purpose of determining whether the Department should provide representation to a federal employee, undertake a full and traditional attorney-client relationship with the employee with respect to application of the attorney-client privilege. If representation is authorized, Justice Department attorneys who represent an employee under this section also undertake a full and traditional attorney-client relationship with the employee with respect to the attorney-client privilege. Any adverse information communicated by the client-employee to an attorney during the course of such attorney-client relationship shall not be disclosed to anyone, either inside or outside the Department, other than attorneys responsible for representation of the employee, unless such disclosure is authorized by the employee. Such adverse information shall continue to be fully protected whether or not representation is provided, and even though representation may be denied or discontinued. The extent, if any, to which attorneys employed by an agency other than the Department of Justice undertake a full and traditional attorney-client relationship with the employee with respect to the attorney-client privilege, either for purposes of determining whether representation should be provided or to assist Justice 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 § 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 § 50.16, or provide reimbursement to employees for private attorney fees incurred in connection with such related civil, congressional, or state criminal proceeding, provided no decision has been made to seek an indictment or file an information against the employee.
(8) In any case where it is determined that Department of Justice attorneys will represent a federal employee, the employee must be notified of his right to retain private counsel at his own expense. If he elects representation by Department of Justice attorneys, the employee and his agency shall be promptly informed:
(i) That in actions where the United States, any agency, or any officer thereof in his official capacity is also named as a defendant, the Department of Justice is required by law to represent the United States and/or such agency or officer and will assert all appropriate legal positions and defenses on behalf of such agency, officer and/or the United States;
(ii) That the Department of Justice will not assert any legal position or defense on behalf of any employee sued in his individual capacity which is deemed not to be in the interest of the United States;
(iii) Where appropriate, that neither the Department of Justice nor any 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 § 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 § 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 § 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 § 50.16.
(12) Once undertaken, representation of a federal employee under this subsection will continue until either all appropriate proceedings, including applicable appellate procedures approved by the Solicitor General, have ended, or until any of the bases for declining or withdrawing from representation set forth in this section is found to exist, including without limitation the basis that representation is not in the interest of the United States. If representation is discontinued for any reason, the representing Department attorney on the case will seek to withdraw but will take all reasonable steps to avoid prejudice to the employee.
(b) Representation is not available to a federal employee whenever:
(1) The conduct with regard to which the employee desires representation does not reasonably appear to have been performed within the scope of his 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.
§ 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 § 50.15(a) (4), (7), (10), and (11), and in appropriate circumstances, for the purposes set forth in § 50.15(a)(2).
(b) To ensure uniformity in retention and reimbursement procedures among the litigating divisions, the Civil Division shall be responsible for establishing procedures for the retention of private counsel and the reimbursement to an employee of private counsel fees, including the setting of fee schedules. In all instances where a litigating division decides to retain private counsel or to provide reimbursement of private counsel fees under this section, the Civil Division shall be consulted before the retention or reimbursement is undertaken.
(c) Where private counsel is provided, the following procedures shall apply:
(1) While the Department of Justice will generally defer to the employee’s choice of counsel, the Department must approve in advance any private counsel to be retained under this section. Where national security interests may be involved, the Department of Justice will consult with the agency employing the federal defendant seeking representation.
(2) Federal payments to private counsel for an employee will cease if the private counsel violates any of the terms of the retention agreement or the Department of Justice.
(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.
§ 50.17 Ex parte communications in informal rulemaking proceedings.
In rulemaking proceedings subject only to the procedural requirements of 5 U.S.C. 553:
(a) A general prohibition applicable to all offices, boards, bureaus and divisions of the Department of Justice against the receipt of private, ex parte oral or written communications is undesirable, because it would deprive the Department of the flexibility needed to fashion rulemaking procedures appropriate to the issues involved, and would introduce a degree of formality that would, at least in most instances, result in procedures that are unduly complicated, slow, and expensive, and, at the same time, perhaps not conducive to developing all relevant information.
(b) All written communications from outside the Department addressed to the merits of a proposed rule, received after notice of proposed informal rulemaking and in its course by the Department, its offices, boards, and bureaus, and divisions or their personnel participating in the decision, should be placed promptly in a file available for public inspection.
(c) All oral communications from outside the Department of significant information or argument respecting the merits of a proposed rule, received after notice of proposed informal rulemaking and in its course by the Department, its offices, boards, bureaus, and divisions or their personnel participating in the decision, should be summarized in writing and placed promptly in a file available for public inspection.
(d) The Department may properly withhold from the public files information exempt from disclosure under 5 U.S.C. 552.
(e) The Department may conclude that restrictions on ex parte communications in particular rulemaking proceedings are necessitated by considerations of fairness or for other reasons.
§ 50.18 [Reserved]
§ 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.
§ 50.20 Participation by the United States in court-annexed arbitration.
(a) Considerations affecting participation in arbitration. (1) The Department recognizes and supports the general goals of court-annexed arbitrations, which are to reduce the time and expenses required to dispose of civil litigation. Experimentations with such procedures in appropriate cases can offer both the courts and litigants an opportunity to determine the effectiveness of arbitration as an alternative to traditional civil litigation.
(2) An arbitration system, however, is best suited for the resolution of relatively simple factual issues, not for trying cases that may involve complex issues of liability or other unsettled legal questions. To expand an arbitration system beyond the types of cases for which it is best suited and most competent would risk not only a decrease in the quality of justice available to the parties but unnecessarily higher costs as well.
(3) In particular, litigation involving the United States raises special concerns with respect to court-annexed arbitration programs. A mandatory arbitration program potentially implicates the principles of separation of powers, sovereign immunity, and the Attorney General’s control over the process of settling litigation.
(b) General rule consenting to arbitration consistent with the department’s regulations. (1) Subject to the considerations set forth in the following paragraphs and the restrictions set forth in paragraphs (c) and (d), in a case assigned to arbitration or mediation under a local district court rule, the Department of Justice agrees to participate in the arbitration process under the local rule. The attorney for the government responsible for the case should take any appropriate steps in conducting the case to protect the interests of the United States.
(2) Based upon its experience under arbitration programs to date, and the purposes and limitations of court-annexed arbitration, the Department generally endorses inclusion in a district’s court-annexed arbitration program of civil actions—
(i) In which the United States or a Department, agency, or official of the United States is a party, and which seek only money damages in an amount not in excess of $100,000, exclusive of interest and costs; and
(ii) Which are brought (A) under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq., or (B) under the Longshoreman’s and Harbor Worker’s Compensation Act, 33 U.S.C. 905, or (C) under the Miller Act, 40 U.S.C. 270(b).
(3) In any other case in which settlement authority has been delegated to the U.S. Attorney under the regulations of the Department and the directives of the applicable litigation division and none of the exceptions to such delegation apply, the U.S. Attorney for the district, if he concludes that a settlement of the case upon the terms of the arbitration award would be appropriate, may proceed to settle the case accordingly.
(4) Cases other than those described in paragraph (2) that are not within the delegated settlement authority of the U.S. Attorney for the district ordinarily are not appropriate for an arbitration process because the Department generally will not be able to act favorably or negatively in a short period of time upon a settlement of the case in accordance with the arbitration award. Therefore, this will result in a demand for trial de novo in a substantial proportion of such cases to preserve the interests of the United States.
(5) The Department recommends that any district court’s arbitration rule include a provision exempting any case from arbitration, sua sponte or on motion of a party, in which the objectives of arbitration would not appear to be realized, because the case involves complex or novel legal issues, or because legal issues predominate over factual issues, or for other good cause.
(c) Objection to the imposition of penalties or sanctions against the United States for demanding trial de novo. (1) Under the principle of sovereign immunity, the United States cannot be held liable for costs or sanctions in litigation in the absence of a statutory provision waiving its immunity. In view of the statutory limitations on the costs payable by the United States (28 U.S.C. 2412(a), 2412(b), and 1920), the Department does not consent to provisions in any district’s arbitration program providing for the United States or the Department, agency, or official named as a party to the action to pay any sanction for demanding a trial de novo—either as a deposit in advance or as a penalty imposed after the fact—which is based on the arbitrators’ fees, the opposing party’s attorneys’ fees, or any other costs not authorized by statute to be awarded against the United States. This objection applies whether the penalty or sanction is required to be paid to the opposing party, to the clerk of the court, or to the Treasury of the United States.
(2) In any case involving the United States that is designated for arbitration under a program pursuant to which such a penalty or sanction might be imposed against the United States, its officers or agents, the attorney for the government is instructed to take appropriate steps, by motion, notice of objection, or otherwise, to apprise the court of the objection of the United States to the imposition of such a penalty or sanction.
(3) Should such a penalty or sanction actually be required of or imposed on the United States, its officers or agents, the attorney for the government is instructed to:
(i) Advise the appropriate Assistant Attorney General of this development promptly in writing;
(ii) Seek appropriate relief from the district court; and
(iii) If necessary, seek authority for filing an appeal or petition for mandamus.
(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.
(a) General. The procedures set forth below are intended as a statement of policy of the Department of Justice and will be applied by the Department in exercising its responsibilities under Federal law relating to the destruction of seized contraband drugs.
(b) Purpose. This policy implements the authority of the Attorney General under title I, section 1006(c)(3) of the Anti-Drug Abuse Act of 1986, Public Law 99-570 which is codified at 21 U.S.C. 881(f)(2), to direct the destruction, as necessary, of Schedule I and II contraband substances.
(c) Policy. This regulation is intended to prevent the warehousing of large quantities of seized contraband drugs which are unnecessary for due process in criminal cases. Such stockpiling of contraband drugs presents inordinate security and storage problems which create additional economic burdens on 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)).
(e) Procedures. Responsibilities of the Federal Bureau of Investigation and Drug Enforcement Administration.
(1) Immediately notify the appropriate U.S. Attorney, Assistant U.S. Attorney, or the responsible state/local prosecutor that the amount of seized contraband drug exceeding the threshold amount and its packaging, will be destroyed after sixty days from the date notice is provided of the seizures, unless the agency providing notice is requested in writing by the authority receiving notice not to destroy the excess contraband drug; and
(2) Assure that appropriate tests of samples of the drug are conducted to determined the chemical nature of the contraband substance and its weight sufficient to serve as evidence before the trial courts of that jurisdiction; and
(3) Photographically depict, and if requested by the appropriate prosecutorial authority, videotape, the contraband drugs as originally packaged or an appropriate display of the seized contraband drugs so as to create evidentiary exhibits for use at trial; and
(4) Isolate and retain the appropriate threshold amounts of contraband drug evidence when an amount greater than 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.
§ 50.22 Young American Medals Program.
(a) Scope. There are hereby established two medals, one to be known as the Young American Medal for Bravery and the other to be known as the Young American Medal for Service.
(b) Young American Medal for Bravery. (1)(i) The Young American Medal for Bravery may be awarded to a person—
(A) Who during a given calendar year has exhibited exceptional courage, attended by extraordinary decisiveness, presence of mind, and unusual swiftness of action, regardless of his or her own personal safety, in an effort to save or in saving the life of any person or persons in actual imminent danger;
(B) Who was eighteen years of age or younger at the time of the occurrence; and
(C) Who habitually resides in the United States (including its territories and possessions), but need not be a citizen thereof.
(ii) These conditions must be met at the time of the event.
(2) The act of bravery must have been public in nature and must have been acknowledged by the Governor, Chief Executive Officer of a State, county, municipality, or other political subdivision, or by a civic, educational, or religious institution, group, or society.
(3) No more than two such medals may be awarded in any one calendar year.
(c) Young American Medal for Service. (1) The Young American Medal for Service may be awarded to any citizen of the United States eighteen years of age or younger at the time of the occurrence, who has achieved outstanding or unusual recognition for character and service during a given calendar year.
(2) Character attained and service accomplished by a candidate for this medal must have been such as to make his or her achievement worthy of public report. The outstanding and unusual recognition of the candidate’s character and service must have been public in nature and must have been acknowledged by the Governor, Chief Executive Officer of a State, county, municipality, or other political subdivision, or by a civic, educational, or religious institution, group, or society.
(3) The recognition of the character and service upon which the award of the Medal for Service is based must have been accorded separately and apart from the Young American Medals program and must not have been accorded for the specific and announced purpose of rendering a candidate eligible, or of adding to a candidate’s qualifications, for the award of the Young American Medal for Service.
(4) No more than two such medals may be awarded in any one calendar year.
(d) Eligibility. (1) The act or acts of bravery and the recognition for character and service that make a candidate eligible for the respective medals must have occurred during the calendar year for which the award is made.
(2) A candidate may be eligible for both medals in the same year. Moreover, the receipt of either medal in any year will not affect a candidate’s eligibility for the award of either or both of the medals in a succeeding year.
(3) Acts of bravery performed and recognition of character and service achieved by persons serving in the Armed Forces, which arise from or out of military duties, shall not make a candidate eligible for either of the medals, provided, however, that a person serving in the Armed Forces shall be eligible to receive either or both of the medals if the act of bravery performed or the recognition for character and service achieved is on account of acts and service performed or rendered outside of and apart from military duties.
(e) Request for information. (1) A recommendation in favor of a candidate for the award of a Young American Medal for Bravery or for Service must be accompanied by:
(i) A full and complete statement of the candidate’s act or acts of bravery or recognized character and service (including the times and places) that supports qualification of the candidate to receive the appropriate medal;
(ii) Statements by witnesses or persons having personal knowledge of the facts surrounding the candidate’s act or acts of bravery or recognized character and service, as required by the respective medals;
(iii) A certified copy of the candidate’s birth certificate, or, if no birth certificate is available, other authentic evidence of the date and place of the candidate’s birth; and
(iv) A biographical sketch of the candidate, including information as to his or her citizenship or habitual residence, as may be required by the respective medals.
(f) Procedure. (1)(i) All recommendations and accompanying documents and papers should be submitted to the Governor or Chief Executive Officer of the State, territory, or possession of the United States where the candidate’s act or acts of bravery or recognized character and service were demonstrated. In the case of the District of Columbia, the recommendations should be submitted to the Mayor of the District of Columbia.
(ii) If the act or acts of bravery or recognized character and service did not occur within the boundaries of any State, territory, or possession of the United States, the papers should be submitted to the Governor or Chief Executive Officer of the territory or other possession of the United States wherein the candidate habitually maintains his or her residence.
(2) The Governor or Chief Executive Officer, after considering the various recommendations received after the close of the pertinent calendar year, may nominate therefrom no more than two candidates for the Young American Medal for Bravery and no more than two candidates for the Young American Medal for Service. Nominated individuals should have, in the opinion of the appropriate official, shown by the facts and circumstances to be the most worthy and qualified candidates from the jurisdiction to receive consideration for awards of the above-named medals.
(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.
§ 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.
§ 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 “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 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.
§ 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
(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 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
(ii) Deny the request for assumption of concurrent Federal criminal jurisdiction; or
(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).
§§ 50.26-50.28 [Reserved]
PART 51—PROCEDURES FOR THE ADMINISTRATION OF SECTION 5 OF THE VOTING RIGHTS ACT OF 1965, AS AMENDED
Subpart A—General Provisions
§ 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.
§ 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 § 51.13.
Covered jurisdiction is used to refer to a State, where the determination referred to in § 51.4 has been made on a statewide basis, and to a political subdivision, where the determination has not been made on a statewide basis.
Language minorities or language minority group is used, as defined in the Act, to refer to persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)). See 28 CFR part 55, Interpretative Guidelines: Implementation of the Provisions of the Voting Rights Act Regarding Language Minority Groups.
Political subdivision is used, as defined in the Act, to refer to “any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” (Section 14(c)(2)).
Preclearance is used to refer to the obtaining of the declaratory judgment described in section 5, to the failure of the Attorney General to interpose an objection pursuant to section 5, or to the withdrawal of an objection by the Attorney General pursuant to § 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)).
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.
§ 51.4 Date used to determine coverage; list of covered jurisdictions.
(a) The requirement of section 5 takes effect upon publication in the
(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
§ 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, César E. Chávez, Barbara C. Jordan, William C. Velásquez, 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 may terminate the application of section 5 (“bailout”) by obtaining the declaratory judgment described in section 4(a) of the Act.
§ 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.
§ 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.
§ 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.
§ 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 § 51.35, § 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 § 51.24(f). The 60-day period shall recommence upon the receipt in like manner of a resubmission (see § 51.35), information provided in response to a written request for additional information (see § 51.37(b)), or material, supplemental information or a related submission (see § 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.
§ 51.10 Requirement of action for declaratory judgment or submission to the Attorney General.
Section 5 requires that, prior to enforcement of any change affecting voting, the jurisdiction that has enacted or seeks to administer the change must either:
(a) Obtain a judicial determination from the U.S. District Court for the District of Columbia that 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.
§ 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.
§ 51.12 Scope of requirement.
Except as provided in § 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 § 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.
§ 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.
(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.
§ 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.
§ 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 § 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.
§ 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.
§ 51.17 Special elections.
(a) The conduct of a special election (e.g., an election to fill a vacancy; an initiative, referendum, or recall election; or a bond issue election) is subject to the preclearance requirement to the extent that the jurisdiction makes changes in the practices or procedures to be followed.
(b) Any discretionary setting of the date for a special election or scheduling of events leading up to or following a special election is subject to the preclearance requirement.
(c) A jurisdiction conducting a referendum election to ratify a change in a practice or procedure that affects voting may submit the change to be voted on at the same time that it submits any changes involved in the conduct of the referendum election. A jurisdiction wishing to receive preclearance for the change to be ratified should state clearly that such preclearance is being requested. See § 51.22 of this part.
§ 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 § 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.
§ 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 § 51.24. Such notification will not be considered a submission under section 5.
Subpart B—Procedures for Submission to the Attorney General
§ 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 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.
§ 51.21 Time of submissions.
Changes affecting voting should be submitted as soon as possible after they become final, except as provided in § 51.22.
§ 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 § 51.18.)
§ 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 § 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).
§ 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.
(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/.
§ 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 § 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 § 51.32.
Subpart C—Contents of Submissions
§ 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 § 51.27(c).
(e) A submitting authority that desires the Attorney General to consider any information supplied as part of an earlier submission may incorporate such information by reference by stating the date and subject matter of the earlier submission and identifying the relevant information.
(f) Where information requested by this subpart is relevant but not known or available, or is not applicable, the submission should so state.
(g) The following Office of Management and Budget control number under the Paperwork Reduction Act applies to the collection of information requirements contained in these Procedures: OMB No. 1190-0001 (expires February 28, 1994). See 5 CFR 1320.13.
§ 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 §§ 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 § 51.28 (a)(1) and (b)(1); for annexations only: the items listed under § 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 § 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 § 51.37.
§ 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 § 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:
| Field No. | Description | Total length | Comments |
|---|---|---|---|
| 1 | PL94-171 reference number: GEOID10 | 15 | |
| 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.
(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 preclearance requirement that have not been submitted for review. See § 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 § 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 with the proposed change or who have been active in the political process.
Subpart D—Communications From Individuals and Groups
§ 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 § 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.
§ 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.
§ 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.
§ 51.32 Establishment and maintenance of registry of interested individuals and groups.
The Attorney General shall establish and maintain a Registry of Interested Individuals and Groups, which shall contain the name and address of any individual or group that wishes to receive notice of section 5 submissions. Information relating to this registry and to the requirements of the Privacy Act of 1974, 5 U.S.C. 552a et seq., is contained in JUSTICE/CRT-004. 48 FR 5334 (Feb. 4, 1983).
Subpart E—Processing of Submissions
§ 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 § 51.32. Such notice will also be given when section 5 declaratory judgment actions are filed or decided.
§ 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 § 51.32.
§ 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 § 51.13);
(2) Standards, practices, or procedures that have not been changed (see §§ 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 § 51.18);
(5) Changes that have been superseded or for which a determination is premature (see §§ 51.22, 51.61(b));
(6) Submissions by jurisdictions not subject to the preclearance requirement (see §§ 51.4, 51.5);
(7) Submissions by an inappropriate or unauthorized party or jurisdiction (see § 51.23); and
(8) Deficient submissions (see § 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 § 51.32.
§ 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.
(a) Oral requests for information. (1) If a submission does not satisfy the requirements of § 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 proceed to make a determination within the initial 60-day period. The Attorney General reserves the right as set forth in § 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 § 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 § 51.32.
(b) Written requests for information. (1) If the Attorney General determines that a submission does not satisfy the requirements of § 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 § 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 § 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 § 51.32.
§ 51.38 Obtaining information from others.
(a) The Attorney General may at any time request relevant information from governmental jurisdictions and from interested groups and individuals and may conduct any investigation or other inquiry that is deemed appropriate in making a determination.
(b) If a submission does not contain evidence of adequate notice to the public, and the Attorney General believes that such notice is essential to a determination, steps will be taken by the Attorney General to provide public notice 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.
(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 § 51.32.
§ 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 § 51.37(b), the Attorney General, absent extenuating circumstances and consistent with the burden of proof under section 5 described in § 51.52(a) and (c), may object to the change, giving notice as specified in § 51.44.
§ 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.
§ 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 § 51.22, § 51.27, § 51.35.)
§ 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 § 51.44, and advise the submitting authority that examination of the change in light of the newly raised issues will continue and that a final decision will be rendered as soon as possible.
§ 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 § 51.32.
§ 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 § 51.32. In appropriate cases the Attorney General may request the submitting authority to give local public notice of the request.
§ 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 § 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.
§ 51.47 Conference.
(a) A submitting authority that has requested reconsideration of an objection pursuant to § 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.
§ 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 § 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 § 51.47. The 60-day reconsideration period shall be computed in the manner specified in § 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 § 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 § 51.32.
§ 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.”
§ 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, DC. Such written request may be delivered to the addresses or telefacsimile number specified in § 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 § 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.
Subpart F—Determinations by the Attorney General
§ 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.
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 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.
§ 51.57 Relevant factors.
Among the factors the Attorney General will consider in making determinations with respect to the submitted changes affecting voting are the following:
(a) The extent to which a reasonable and legitimate justification for the change exists;
(b) The extent to which the jurisdiction followed objective guidelines and fair and conventional procedures in adopting the change;
(c) The extent to which the jurisdiction afforded members of racial and language minority groups an opportunity to participate in the decision to make the change;
(d) The extent to which the jurisdiction took the concerns of members of racial and language minority groups into account in making the change; 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.
§ 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 § 51.59), changes in electoral systems (see § 51.60), and annexations (see § 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.
§ 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.
§ 51.60 Changes in electoral systems.
In making determinations with respect to changes in electoral systems (e.g., changes to or from the use of at-large elections, changes in the size of elected bodies) the Attorney General, in addition to the factors described above, will consider the following factors (among others):
(a) The extent to which minority voting strength is reduced by the proposed change.
(b) The extent to which minority concentrations are submerged into larger electoral units.
(c) The extent to which available alternative systems satisfying the jurisdiction’s legitimate governmental interests were considered.
§ 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).
Subpart G—Sanctions
§ 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).
§ 51.63 Enforcement by private parties.
Private parties have standing to enforce section 5.
§ 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 § 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 § 51.32 when bailout actions are filed or decided.
Subpart H—Petition To Change Procedures
§ 51.65 Who may petition.
Any jurisdiction or interested individual or group may petition to have these procedural guidelines amended.
§ 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.
§ 51.67 Disposition of petition.
The Attorney General shall promptly consider and dispose of a petition under this subpart and give notice of the disposition, accompanied by a simple statement of the reasons, to the petitioner.
Appendix to Part 51—Jurisdictions Covered Under Section 4(b ) of the Voting Rights Act, as Amended
The 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).
| 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. |
| 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:
| 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.
PART 52—PROCEEDINGS BEFORE U.S. MAGISTRATE JUDGES
§ 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.
§ 52.02 Criminal proceedings: Pretrial, trial.
(a) A judge of the district court, without the parties’ consent, may designate a magistrate judge to hear and determine criminal pretrial matters pending before the court, except for two named classes of motions; as to the latter, the magistrate judge may conduct a hearing and recommend a decision to the judge. 28 U.S.C. 636(b)(1) (A), (B).
(b) When specially designated by the court to exercise such jurisdiction, a magistrate judge may try, and impose sentence for, any misdemeanor if he has properly and fully advised the defendant that he has a right to elect “trial, judgment, and sentencing by a judge of the district court and * * * may have a right to trial by jury before a district judge or magistrate judge,” and has obtained the defendant’s written consent to be tried by the magistrate judge. 18 U.S.C. 3401 (a), (b). The court may order that proceedings be conducted before a district judge rather than a magistrate judge upon its own motion or, for good cause shown upon petition by the attorney for the government. The petition should note “the novelty, importance, or complexity of the case, or other pertinent factors * * *”. 18 U.S.C. 3401(f).
(1) If the attorney for the government determines that the public interest is better served by trial before a district judge, the attorney may petition the district court for such an order after consulting with the appropriate Assistant Attorney General as provided in paragraph (b)(2) of this section. In making this determination, the attorney shall consider all relevant factors including—
(i) The novelty of the case with respect to the facts, the statute being enforced, and the application of the statute to the facts;
(ii) The importance of the case in light of the nature and seriousness of the offense charged;
(iii) The defendant’s history of criminal activity, the potential penalty upon conviction, and the purposes to be served by prosecution, including punishment, deterrence, rehabilitation, and incapacitation;
(iv) The factual and legal complexity of the case and the amount and nature of the evidence to be presented;
(v) The desirability of prompt disposition of the case; and
(vi) The experience and qualifications of the magistrate judge, and the possibility of the magistrate judge’s actual or apparent bias or conflict of interest.
(2) The attorney for the government shall consult with the Assistant Attorney General having supervisory authority over the subject matter in determining whether to petition for trial before a district judge in a case involving a violation of 2 U.S.C. 192, 441j(a); 18 U.S.C. 210, 211, 242, 245, 594, 597, 599, 600, 601, 1304, 1504, 1508, 1509, 2234, 2235, 2236; or 42 U.S.C. 3631.
(3) In a case in which the government petitions for trial before a district judge, the attorney for the government shall forward a copy of the petition to the Assistant Attorney General having supervisory authority over the subject matter and, if the petition is denied, shall promptly notify the Assistant Attorney General.
PART 54—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
Subpart A—Introduction
§ 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.
§ 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;
(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 §§ 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.
§ 54.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the designated agency official deems necessary to overcome the effects of such discrimination.
(b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action consistent with law to overcome the effects of conditions that resulted in limited participation therein by persons of a particular sex. Nothing in these Title IX regulations shall be interpreted to alter any affirmative action obligations that a recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall, within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX regulations, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient’s education program or activity;
(2) Modify any of these policies and practices that do not or may not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any discrimination that resulted or may have resulted from adherence to these policies and practices.
(d) Availability of self-evaluation and related materials. Recipients shall maintain on file for at least three years following completion of the evaluation required under paragraph (c) of this section, and shall provide to the designated agency official upon request, a description of any modifications made pursuant to paragraph (c)(2) of this section and of any remedial steps taken pursuant to paragraph (c)(3) of this section.
§ 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 § 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.
§ 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 §§ 54.205 through 54.235(a).
§ 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.
§ 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.
§ 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.
§ 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 §§ 54.300 through 54.310 do not apply to the recipient, and that inquiries concerning the application of Title IX and these Title IX regulations to such recipient may be referred to the employee designated pursuant to § 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
§ 54.200 Application.
Except as provided in §§ 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.
§ 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.
§ 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.
§ 54.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations do not apply to the membership practices of social fraternities and sororities that are exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership of which consists primarily of students in attendance at institutions of higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These Title IX regulations do not apply to the membership practices of the Young Men’s Christian Association (YMCA), the Young Women’s Christian Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire Girls.
(c) Voluntary youth service organizations. These Title IX regulations do not apply to the membership practices of a voluntary youth service organization that is exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the membership of which has been traditionally limited to members of one sex and principally to persons of less than nineteen years of age.
§ 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, §§ 54.225 and 54.230, and §§ 54.300 through 54.310, each administratively separate unit shall be deemed to be an educational institution.
(c) Application of §§ 54.300 through 54.310. Except as provided in paragraphs (d) and (e) of this section, §§ 54.300 through 54.310 apply to each recipient. A recipient to which §§ 54.300 through 54.310 apply shall not discriminate on the basis of sex in admission or recruitment in violation of §§ 54.300 through 54.310.
(d) Educational institutions. Except as provided in paragraph (e) of this section as to recipients that are educational institutions, §§ 54.300 through 54.310 apply only to institutions of vocational education, professional education, graduate higher education, and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. §§ 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.
§ 54.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational institution to which §§ 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 §§ 54.300 through 54.310.
§ 54.230 Transition plans.
(a) Submission of plans. An institution to which § 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 § 54.225 applies shall result in treatment of applicants to or students of such recipient in violation of §§ 54.300 through 54.310 unless such treatment is necessitated by an obstacle identified in paragraph (b)(3) of this section and a schedule for eliminating that obstacle has been provided as required by paragraph (b)(4) of this section.
(d) Effects of past exclusion. To overcome the effects of past exclusion of students on the basis of sex, each educational institution to which § 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.
§ 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 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
§ 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 §§ 54.300 through §§ 54.310 apply, except as provided in §§ 54.225 and §§ 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 §§ 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 §§ 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 § 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.
§ 54.305 Preference in admission.
A recipient to which §§ 54.300 through 54.310 apply shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity that admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of §§ 54.300 through 54.310.
§ 54.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which §§ 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 § 54.110(a), and may choose to undertake such efforts as affirmative action pursuant to § 54.110(b).
(b) Recruitment at certain institutions. A recipient to which §§ 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 §§ 54.300 through 54.310.
Subpart D—Discrimination on the Basis of Sex in Education Programs or Activities Prohibited
§ 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 §§ 54.300 through 54.310 do not apply, or an entity, not a recipient, to which §§ 54.300 through 54.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in §§ 54.400 through 54.455, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit, or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution to study at a foreign institution. A recipient educational institution may administer or assist in the administration of scholarships, fellowships, or other awards established by foreign or domestic wills, trusts, or similar legal instruments, or by acts of foreign governments and restricted to members of one sex, that are designed to provide opportunities to study abroad, and that are awarded to students who are already matriculating at or who are graduates of the recipient institution; Provided, that a recipient educational institution that administers or assists in the administration of such scholarships, fellowships, or other awards that are restricted to members of one sex provides, or otherwise makes available, reasonable opportunities for similar studies for members of the other sex. Such opportunities may be derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This paragraph (d) applies to any recipient that requires participation by any applicant, student, or employee in any education program or activity not operated wholly by such recipient, or that facilitates, permits, or considers such participation as part of or equivalent to an education program or activity operated by such recipient, including participation in educational consortia and cooperative employment and student-teaching assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure itself that the operator or sponsor of such other education program or activity takes no action affecting any applicant, student, or employee of such recipient that these Title IX regulations would prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if such action occurs.
§ 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.
§ 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.
§ 54.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.
(b)(1) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.
(3) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards that do not have such effect.
(5) Portions of classes in elementary and secondary schools, or portions of education programs or activities, that deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.
(6) Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.
§ 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.
§ 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.
§ 54.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this section, in providing financial assistance to any of its students, a recipient shall not:
(1) On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance that is of any particular type or source, apply different criteria, or otherwise discriminate;
(2) Through solicitation, listing, approval, provision of facilities, or other services, assist any foundation, trust, agency, organization, or person that provides assistance to any of such recipient’s students in a manner that discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning eligibility for such assistance that treats persons of one sex differently from persons of the other sex with regard to marital or parental status.
(b) Financial aid established by certain legal instruments. (1) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established pursuant to domestic or foreign wills, trusts, bequests, or similar legal instruments or by acts of a foreign government that require that awards be made to members of a particular sex specified therein; Provided, that the overall effect of the award of such sex-restricted scholarships, fellowships, and other forms of financial assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
(i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student’s sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or grants-in-aid for members of each sex as part of separate athletic teams for members of each sex to the extent consistent with this paragraph (c) and § 54.450.
§ 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 §§ 54.500 through 54.550.
§ 54.440 Health and insurance benefits and services.
Subject to § 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 §§ 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.
§ 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 § 54.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan, or policy that such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient’s educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the student’s physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began.
§ 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.
§ 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
§ 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 §§ 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 §§ 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.
§ 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.
§ 54.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees. Where a recipient has been found to be presently discriminating on the basis of sex in the recruitment or hiring of employees, or has been found to have so discriminated in the past, the recipient shall recruit members of the sex so discriminated against so as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or exclusively at entities that furnish as applicants only or predominantly members of one sex if such actions have the effect of discriminating on the basis of sex in violation of §§ 54.500 through 54.550.
§ 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.
§ 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 § 54.550.
§ 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 § 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.
§ 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 § 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 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.
§ 54.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with §§ 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.
§ 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.
§ 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.
§ 54.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by §§ 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
§ 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
§ 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.
PART 55—IMPLEMENTATION OF THE PROVISIONS OF THE VOTING RIGHTS ACT REGARDING LANGUAGE MINORITY GROUPS
Subpart A—General Provisions
§ 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)).
§ 55.2 Purpose; standards for measuring compliance.
(a) The purpose of this part is to set forth the Attorney General’s interpretation of the provisions of the Voting Rights Act which require certain States and political subdivisions to conduct elections in the language of certain “language minority groups” in addition to English.
(b) In the Attorney General’s view the objective of the Act’s provisions is to enable members of applicable language minority groups to participate effectively in the electoral process. This part establishes two basic standards by which the Attorney General will measure compliance:
(1) That materials and assistance should be provided in a way designed to allow members of applicable language minority groups to be effectively informed of and participate effectively in voting-connected activities; and
(2) That an affected jurisdiction should take all reasonable steps to achieve that goal.
(c) The determination of what is required for compliance with section 4(f)(4) and section 203(c) is the responsibility of the affected jurisdiction. These guidelines should not be used as a substitute for analysis and decision by the affected jurisdiction.
(d) Jurisdictions covered under section 4(f)(4) of the Act are subject to the preclearance requirements of section 5. See part 51 of this chapter. Such jurisdictions have the burden of establishing to the satisfaction of the Attorney General or to the U.S. District Court for the District of Columbia that changes made in their election laws and procedures in order to comply with the requirements of section 4(f)(4) are not discriminatory under the terms of section 5. However, section 5 expressly provides that the failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the enforcement of the changes.
(e) Jurisdictions covered solely under section 203(c) of the Act are not subject to the preclearance requirements of section 5, nor is there a Federal apparatus available for preclearance of section 203(c) compliance activities. The Attorney General will not preclear jurisdictions’ proposals for compliance with section 203(c).
(f) Consideration by the Attorney General of a jurisdiction’s compliance with the requirements of section 4(f)(4) occurs in the review pursuant to section 5 of the Act of changes with respect to voting, in the consideration of the need for litigation to enforce the requirements of section 4(f)(4), and in the defense of suits for termination of coverage under section 4(f)(4). Consideration by the Attorney General of a 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.
§ 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
§ 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
(2) The requirements of section 203(c) take effect upon publication in the
(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
§ 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.
(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.
§ 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).
(1) Political subdivision approach. A political subdivision is covered if—
(i) More than 5 percent of its voting age citizens are members of a single language minority group and are limited-English proficient; and
(ii) The illiteracy rate of such language minority citizens in the political subdivision is higher than the national illiteracy rate.
(2) State approach. A political subdivision is covered if—
(i) It is located in a state in which more than 5 percent of the voting age citizens are members of a single language minority and are limited-English proficient;
(ii) The illiteracy rate of such language minority citizens in the state is higher than the national illiteracy rate; and
(iii) Five percent or more of the voting age citizens of the political subdivision are members of such language minority group and are limited-English proficient.
(3) Numerical approach. A political subdivision is covered if—
(i) More than 10,000 of its voting age citizens are members of a single language minority group and are limited-English proficient; and
(ii) The illiteracy rate of such language minority citizens in the political subdivision is higher than the national illiteracy rate.
(4) Indian reservation approach. A political subdivision is covered if there is located within its borders all or any part of an Indian reservation—
(i) In which more than 5 percent of the voting age American Indian or Alaska Native citizens are members of a single language minority group and are limited-English proficient; and
(ii) The illiteracy rate of such language minority citizens is higher than the national illiteracy rate.
(b) Definitions. For the purpose of determinations of coverage under section 203(c), limited-English proficient means unable to speak or understand English adequately enough to participate in the electoral process; Indian reservation means any area that is an American Indian or Alaska Native area, as defined by the Census Bureau for the purposes of the 1990 decennial census; and illiteracy means the failure to complete the fifth primary grade.
(c) Determinations. Determinations of coverage under section 203(c) are made with regard to specific language groups of the language minorities listed in section 203(e).
§ 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, César E. Chávez, Barbara C. Jordan, William C. Velásquez, 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.
§ 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).
(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.
§ 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.
§ 55.10 Types of elections covered.
(a) General. The language provisions of the Act apply to registration for and voting in any type of election, whether it is a primary, general or special election. Section 14(c)(1). This includes elections of officers as well as elections regarding such matters as bond issues, constitutional amendments and referendums. Federal, State and local elections are covered as are elections of special districts, such as school districts and water districts.
(b) Elections for statewide office. If an election conducted by a county relates to Federal or State offices or issues as well as county offices or issues, a county subject to the bilingual requirements must insure compliance with those requirements with respect to all aspects of the election, i.e., the minority language material and assistance must deal with the Federal and State offices or issues as well as county offices or issues.
(c) Multi-county districts. Regarding elections for an office representing more than one county, e.g., State legislative districts and special districts that include portions of two or more counties, the bilingual requirements are applicable on a county-by-county basis. Thus, minority language material and assistance need not be provided by the government in counties not subject to the bilingual requirements of the Act.
Subpart C—Determining the Exact Language
§ 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.
§ 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.
§ 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 § 55.20.)
(b) Language minority groups having more than one language. In some jurisdictions members of an applicable language minority group speak more than one language other than English. Where a jurisdiction is obligated to provide oral assistance in the language of such a group, the jurisdiction’s obligation is to ascertain the languages that are commonly used by members of that group in the jurisdiction and to provide oral assistance in such languages. (See § 55.20)
Subpart D—Minority Language Materials and Assistance
§ 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.
§ 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.
§ 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.
§ 55.17 Targeting.
The term “targeting” is commonly used in discussions of the requirements of section 4(f)(4) and section 203(c). “Targeting” refers to a system in which the minority language materials or assistance required by the Act are provided to fewer than all persons or registered voters. It is the view of the Attorney General that a targeting system will normally fulfill the Act’s minority language requirements if it is designed and implemented in such a way that language minority group members who need minority language materials and assistance receive them.
§ 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.
§ 55.19 Written materials.
(a) Types of materials. It is the obligation of the jurisdiction to decide what materials must be provided in a minority language. A jurisdiction required to provide minority language materials is only required to publish in the language of the applicable language minority group materials distributed to or provided for the use of the electorate generally. Such materials include, for example, ballots, sample ballots, informational materials, and petitions.
(b) Accuracy, completeness. It is essential that material provided in the language of a language minority group be clear, complete and accurate. In examining whether a jurisdiction has achieved compliance with this requirement, the Attorney General will consider whether the jurisdiction has consulted with members of the applicable language minority group with respect to the translation of materials.
(c) Ballots. The Attorney General will consider whether a jurisdiction provides the English and minority language versions on the same document. Lack of such bilingual preparation of ballots may give rise to the possibility, or to the appearance, that the secrecy of the ballot will be lost if a separate minority language ballot or voting machine is used.
(d) Voting machines. Where voting machines that cannot mechanically accommodate a ballot in English and in the applicable minority language are used, the Attorney General will consider whether the jurisdiction provides sample ballots for use in the polling booths. Where such sample ballots are used the Attorney General will consider whether they contain a complete and accurate translation of the English ballots, and whether they contain or are accompanied by instructions in the minority language explaining the operation of the voting machine. The Attorney General will also consider whether the sample ballots are displayed so that they are clearly visible and at the same level as the machine ballot on the inside of the polling booth, whether the sample ballots are identical in layout to the machine ballots, and whether their size and typeface are the same as that appearing on the machine ballots. Where space limitations preclude affixing the translated sample ballots to the inside of polling booths, the Attorney General will consider whether language minority group voters are allowed to take the sample ballots into the voting booths.
§ 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.
§ 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
§ 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 § 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
§ 55.23 Enforcement by the Attorney General.
(a) The Attorney General is authorized to bring civil actions for appropriate relief against violations of the Act’s provisions, including section 4 and section 203. See sections 12(d) and 204.
(b) Also, certain violations may be subject to criminal sanctions. See sections 12(a) and (c) and 205.
Subpart G—Comment on This Part
§ 55.24 Procedure.
These guidelines may be modified from time to time on the basis of experience under the Act and comments received from interested parties. The Attorney General therefore invites public comments and suggestions on these guidelines. Any party who wishes to make such suggestions or comments may do so by sending them to: Assistant Attorney General, Civil Rights Division, Department of Justice, Washington, DC 20530.
Appendix to Part 55—Jurisdictions Covered Under Sections 4(f )(4) and 203(c ) of the Voting Rights Act of 1965, as Amended [Applicable language minority group(s)]
| Jurisdiction | Coverage under sec. 4(f)(4) 1 | Coverage under sec. 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
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.
PART 56—INTERNATIONAL ENERGY PROGRAM
§ 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.
§ 56.2 Maintenance of records with respect to meetings held to develop voluntary agreements or plans of action pursuant to the Agreement on an International Energy Program.
(a) The Administrator of the Department of Energy shall keep a verbatim transcript of any meeting held pursuant to this subpart.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this section, potential participants shall keep a full and complete record of any communications (other than in a meeting held pursuant to this subpart) between or among themselves for the purpose of developing a voluntary agreement under this part. When two or more potential participants are involved in such a communication, they may agree among themselves who shall keep such record. Such record shall include the names of the parties to the communication and the organizations, if any, which they represent; the date of the communication; the means of communication; and a description of the communication in sufficient detail to convey adequately its substance.
(2) Where any communication is written (including, but not limited to, telex, telegraphic, telecopied, microfilmed and computer printout material), and where such communication demonstrates on its face that the originator or some other source furnished a copy of the communication to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” marked on the 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.
§ 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.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this section, participants shall keep a full and complete record of any communication (other than in a meeting held pursuant to this subpart) between or among themselves or with any other member of a petroleum industry group created by the International Energy Agency (IEA), or subgroup thereof for the purpose of carrying out a voluntary agreement or developing or carrying out a plan of action under this subpart, except that where there are several communications within the same day involving the same participants, they may keep a cumulative record for the day. The parties to a communication may agree among themselves who shall keep such record. Such record shall include the names of the parties to the communication and the organizations, if any, which they represent; the date of communication; the means of communication, and a description of the 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.
PART 57—INVESTIGATION OF DISCRIMINATION IN THE SUPPLY OF PETROLEUM TO THE ARMED FORCES
§ 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.
§ 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.
§ 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.
§ 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
§ 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.
§ 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.
§ 58.3 Qualification for membership on panels of private trustees.
(a) To be eligible for appointment to the panel and to retain eligibility therefor, an individual must possess the qualifications described in paragraph (b) of this section in addition to any other statutory qualifications. A corporation or partnership may qualify as an entity for appointment to the private panel. However, each person who, in the opinion of the U.S. Trustee or of the Director, performs duties as trustee on behalf of a corporation or partnership must individually meet the standards described in paragraph (b) of this section, except that each U.S. Trustee, with the approval of the Director, shall have the discretion to waive the applicability of paragraph (b)(6) of this section as to any individual in a non-supervisory position. No professional corporation, partnership, or similar entity organized for the practice of law or accounting shall be eligible to serve on the panel.
(b) The qualifications for membership on the panel are as follows:
(1) Possess integrity and good moral character.
(2) Be physically and mentally able to satisfactorily perform a trustee’s duties.
(3) Be courteous and accessible to all parties with reasonable inquiries or comments about a case for which such individual is serving as private trustee.
(4) Be free of prejudices against any individual, entity, or group of individuals or entities which would interfere with unbiased performance of a trustee’s duties.
(5) Not be related by affinity or consanguinity within the degree of first cousin to any employee of the Executive Office for United States Trustees of the Department of Justice, or to any employee of the office of the U.S. Trustee for the district in which he or she is applying.
(6)(i) Be a member in good standing of the bar of the highest court of a state or of the District of Columbia; or
(ii) Be a certified public accountant; or
(iii) Hold a bachelor’s degree from a full four-year course of study (or the equivalent) of an accredited college or university (accredited as described in part II, section III of Handbook X118 promulgated by the U.S. Office of Personnel Management) with a major in a business-related field of study or at least 20 semester-hours of business-related courses; or hold a master’s or doctoral degree in a business-related field of study from a college or university of the type described above; or
(iv) Be a senior law student or candidate for a master’s degree in business administration recommended by the relevant law school or business school dean and working under the direct supervision of:
(A) A member of a law school faculty; or
(B) A member of the panel of private trustees; or
(C) A member of a program established by the local bar association to provide clinical experience to students; or
(v) Have equivalent experience as deemed acceptable by the U.S. Trustee.
(7) Be willing to provide reports as required by the U.S. Trustee.
(8) Have submitted an application under oath, in the form prescribed by the Director, to the U.S. Trustee for the District in which appointment is sought: Provided, That this provision may be waived by the U.S. Trustee on approval of the Director.
§ 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 §§ 58.3 (b)(1)-(4), (6)-(8). An individual need not be an attorney to be eligible for appointment as a standing trustee. A corporation or partnership may be appointed as standing trustee only with the approval of the Director.
(c) The United States Trustee shall not appoint as a standing trustee any individuals who, at the time of appointment, is:
(1) A relative of another standing trustee in the region in which the standing trustee is to be appointed;
(2) A relative of a standing trustee (in the region in which the standing trustee is to be appointed), who, within the preceding one-year period, died, resigned, or was removed as a standing trustee from a case;
(3) A relative of a bankruptcy judge or a clerk of the bankruptcy court in the region in which the standing trustee is to be appointed;
(4) An employee of the Department of Justice within the preceding one-year period; or
(5) A relative of a United States Trustee or an Assistant United States Trustee, a relative of an employee in any of the offices of the United States Trustee in the region in which the standing trustee is to be appointed, or a relative of an employee in the Executive Office for United States Trustees.
(d) A standing trustee must, at a minimum, adhere to the following fiduciary standards:
(1) Employment of relatives. (i) A standing trustee shall not employ a relative of the standing trustee.
(ii) A standing trustee shall also not employ a relative of the United States Trustee or of an Assistant United States Trustee in the region in which the trustee has been appointed or a relative of a bankruptcy court judge or of the clerk of the bankruptcy court in the judicial district in which the trustee has been appointed.
(iii)(A) Paragraphs (d)(1) (i) and (ii) of this section shall not apply to a spouse of a standing trustee who was employed by the standing trustee as of August 1, 1995.
(B) For all other relatives employed by a standing trustee as of August 1, 1995, paragraphs (d)(1) (i) and (ii) of this section shall be fully implemented by October 1, 1998, unless specifically provided below:
(1) The United States Trustee shall have the discretion to grant a written waiver for a period of time not to exceed 2 years upon a written showing by the standing trustee of compelling circumstances that make the continued employment of a relative necessary for a standing trustee’s performance of his or her duties and written evidence that the salary to be paid is at or below market rate.
(2) Additional waivers, not to exceed a period of two years each, may be granted under paragraph (d)(1)(iii)(B)(1) of this section provided the standing trustee makes a similar written showing within 90 days prior to the expiration of a present waiver and the United States Trustee determines that the circumstances for waiver are met.
(3) No waivers will be granted for a relative of the United States Trustee or of an Assistant United States Trustee.
(2) Related party transactions. (i) A standing trustee shall not direct debtors or creditors of a bankruptcy case administered by the standing trustee to an individual or entity that provides products or services, such as insurance or financial counseling, if a standing trustee is a relative of that individual or if the standing trustee or relative has a financial or ownership interest in the entity.
(ii) A standing trustee shall not, on behalf of the trust, contract or allocate expenses with himself or herself, with a relative, or with any entity in which the standing trustee or a relative of the standing trustee has a financial or ownership interest if the costs are to be paid as an expense out of the fiduciary expense fund.
(iii)(A) The United States Trustee may grant a waiver from compliance with paragraph (d)(2)(ii) of this section for up to three years following the appointment of a standing trustee if the newly-appointed standing trustee can demonstrate in writing that a waiver is necessary and the cost is at or below market.
(B) The United States Trustee may grant a provisional waiver from compliance with the allocation prohibition contained in paragraph (d)(2)(ii) of this section if one of the following conditions is present:
(1) A standing trustee has insufficient receipts to earn maximum annual compensation as determined by the Director during any one of the last three fiscal years and provides the United States Trustee with an appraisal or other written evidence that the allocation is necessary and the allocated cost is at or below market rate for that good or service, or
(2) A chapter 13 standing trustee also serves as a trustee in chapter 12 cases and provides the United States Trustee with an appraisal or other written evidence that the allocation is necessary and the allocated cost is at or below market rate for that good or service.
(C) Except as otherwise provided in this paragraph, a standing trustee may seek a reasonable extension of time from the United States Trustee to comply with paragraph (d)(2)(ii) of this section. To obtain an extension, a standing trustee must demonstrate by an appraisal or other written evidence, satisfactory to the United States Trustee, that the expense is necessary and at or below market rate. In no event shall an extension be granted for the use and occupation of real estate beyond October 1, 2005. For personal property and personal service contracts, no extension shall be granted beyond October 1, 1998.
(3) Employment of other standing trustees. A standing trustee shall not employ or contract with another standing trustee to provide personal services for compensation payable from the fiduciary expense fund. This section does not prohibit the standing trustee from reimbursing the actual, necessary expenses incurred by another standing trustee who provides necessary assistance to the standing trustee provided that the reimbursement has been pre-approved by the United States Trustee.
(e) Paragraph (d) of this section is effective July 2, 1997. As to those standing trustees who are appointed as of July 2, 1997, paragraph (d) will be applicable on the first day of their next fiscal year (i.e., October 1, 1997, for chapter 13 trustees and January 1, 1998, for chapter 12 trustees).
§ 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).
§ 58.6 Procedures for suspension and removal of panel trustees and standing trustees.
(a) A United States Trustee shall notify a panel trustee or a standing trustee in writing of any decision to suspend or terminate the assignment of cases to the trustee including, where applicable, any decision not to renew the trustee’s term appointment. The notice shall state the reason(s) for the decision and should refer to, or be accompanied by copies of, pertinent materials upon which the United States Trustee has relied and any prior communications in which the United States Trustee has advised the trustee of the potential action. The notice shall be sent to the office of the trustee by overnight courier, for delivery the next business day. The reasons may include, but are in no way limited to:
(1) Failure to safeguard or to account for estate funds and assets;
(2) Failure to perform duties in a timely and consistently satisfactory manner;
(3) Failure to comply with the provisions of the Code, the Bankruptcy Rules, and local rules of court;
(4) Failure to cooperate and to comply with orders, instructions and policies of the court, the bankruptcy clerk or the United States Trustee;
(5) Substandard performance of general duties and case management in comparison to other members of the chapter 7 panel or other standing trustees;
(6) Failure to display proper temperament in dealing with judges, clerks, attorneys, creditors, debtors, the United States Trustee and the general public;
(7) Failure to adequately monitor the work of professionals or others employed by the trustee to assist in the administration of cases;
(8) Failure to file timely, accurate reports, including interim reports, final reports, and final accounts;
(9) Failure to meet the eligibility requirements of 11 U.S.C. 321 or the qualifications set forth in 28 CFR 58.3 and 58.4 and in 11 U.S.C. 322;
(10) Failure to attend in person or appropriately conduct the 11 U.S.C. 341(a) meeting of creditors;
(11) Action by or pending before a court or state licensing agency which calls the trustee’s competence, financial responsibility or trustworthiness into question;
(12) Routine inability to accept assigned cases due to conflicts of interest or to the trustee’s unwillingness or incapacity to serve;
(13) Change in the composition of the chapter 7 panel pursuant to a system established by the United States Trustee under 28 CFR 58.1;
(14) A determination by the United States Trustee that the interests of efficient case administration or a decline in the number of cases warrant a reduction in the number of panel trustees or standing trustees.
(b) The notice shall advise the trustee that the decision is final and unreviewable unless the trustee requests in writing a review by the Director, Executive Office for United States Trustees, no later than 20 calendar days from the date of issuance of the United States Trustee’s notice (“request for review”). In order to be timely, a request for review must be received by the Office of the Director no later than 20 calendar days from the date of the United States Trustee’s notice to the trustee.
(c) A decision by a United States Trustee to suspend or terminate the assignment of cases to a trustee shall take effect upon the expiration of a trustee’s time to seek review from the Director or, if the trustee timely seeks such review, upon the issuance of a final written decision by the Director.
(d) Notwithstanding paragraph (c) of this section, a United States Trustee’s decision to suspend or terminate the assignment of cases to a trustee may include, or may later by supplemented by an interim directive, by which the United States trustee may immediately discontinue assigning cases to a trustee during the review period. A United States Trustee may issue such an interim directive if the United States Trustee specifically finds that:
(1) A continued assignment of cases to the trustee places the safety of estate assets at risk ;
(2) The trustee appears to be ineligible to serve under applicable law, rule, or regulation;
(3) The trustee has engaged in conduct that appears to be dishonest, deceitful, fraudulent, or criminal in nature; or
(4) The trustee appears to have engaged in other gross misconduct that is unbefitting his or her position as trustee or violates the trustee’s duties.
(e) If the United States Trustee issues an interim directive, the trustee may seek a stay of the interim directive from the Director if the trustee has timely filed a request for review under paragraph (b) of this section.
(f) The trustee’s written request for review shall fully describe why the trustee disagrees with the United States Trustee’s decision, and shall be accompanied by all documents and materials that the trustee wants the Director to consider in reviewing the decision. The trustee shall send a copy of the request for review, and the accompanying documents and materials, to the United States Trustee by overnight courier, for delivery the next business day. The trustee may request that specific documents in the possession of the United States Trustee be transmitted to the Director for inclusion in the record.
(g) The United States Trustee shall have 15 calendar days from the date of the trustee’s request for review to submit to the Director a written response regarding the matters raised in the trustee’s request for review. The United States Trustee shall provide a copy of this response to the trustee. Both copes shall be sent by overnight courier, for delivery the next business day.
(h) The Director may seek additional information from any party in the manner and to the extent the Director deems appropriate.
(i) Unless the trustee and the United States Trustee agree to a longer period of time, the Director shall issue a written decision no later than 30 calendar days from the receipt of the United States Trustee’s response to the trustee’s request for review. That decision shall determine whether the United States Trustee’s decision is supported by the record and the action is an appropriate exercise of the United States Trustee’s discretion, and shall adopt, modify or reject the United States Trustee’s decision to suspend or terminate the assignment of future cases to the trustee. The Director’s decision shall constitute final agency action.
(j) In reaching a determination, the Director may specify a person to act as a reviewing official. The reviewing official shall not be a person who was involved in the United States Trustee’s decision or a Program employee who is located within the region of the United States Trustee who made the decision. The reviewing official’s duties shall be specified by the Director on a case by case basis, and may include reviewing the record, obtaining additional information from the participants, providing the Director with written recommendations, or such other duties as the Director shall prescribe in a particular case.
(k) This rule does not authorize a trustee to seek review of any decision to increase the size of the chapter 7 panel or to appoint additional standing trustees in the district or region.
(l) A trustee who files a request for review shall bear his or her own costs and expenses, including counsel fees.
§ 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;
(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;
(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.
§ 58.8 Uniform Periodic Reports in Cases Filed Under Chapter 11 of Title 11.
(a) Scope. The requirements of this section apply to all chapter 11 debtors who do not qualify as a “small business debtor” under 11 U.S.C. 101(51D). Nothing in this section shall excuse, supersede, or otherwise modify any applicable nonbankruptcy reporting obligations, including, but not limited to, those set forth in chapters 2a through 2e of title 15 of the United States Code.
(b) UST Form 11-MOR, Monthly Operating Report. Debtors-in-possession (debtor) and chapter 11 trustees (trustee) must file with the court and serve upon the United States Trustee, any official committee appointed under 11 U.S.C. 1102, any governmental unit charged with responsibility for collection or determination of any tax arising out of the estate’s operation, and any requesting party in interest monthly operating reports using UST Form 11-MOR (MOR). In jointly administered cases, unless otherwise required by the United States Trustee in the United States Trustee’s discretion, each jointly administered debtor is required to file a separate MOR on a nonconsolidated basis. The MOR must contain the following:
(1) Information about the industry classification, published by the Department of Commerce, for the businesses conducted by the debtor;
(2) Length of time the case has been pending as of the end of the reporting period;
(3) Number of full-time employees as of the date of the order for relief and at the end of each reporting period since the case was filed;
(4) Cash receipts, cash disbursements, and profitability of the debtor during the reporting period and cumulatively since the date of the order for relief;
(5) Asset and liability status as of the end of the reporting period;
(6) Assets sold or transferred outside the ordinary course of business (with or without court approval) during the reporting period and cumulatively since the date of the order for relief;
(7) Income statement, commonly referred to as a statement of operations, for the reporting period;
(8) All professional fees approved by the court in the case during the reporting period and cumulatively since the date of the order for relief (separately reported, for the professional fees incurred by or on behalf of the debtor, between those that would have been incurred absent a bankruptcy case and those not);
(9) Information about whether tax returns and tax payments since the date of the order for relief have been timely filed and made;
(10) Payments made on pre-petition debt during the reporting period;
(11) Payments made outside the ordinary course of business without court approval during the reporting period;
(12) Payments made to or on behalf of insiders during the reporting period;
(13) Postpetition borrowing during the reporting period;
(14) Information about insurance, including workers’ compensation, casualty/property, and general liability during the reporting period;
(15) Information about whether disclosure statements and plans of reorganization have been filed with the court during the reporting period; and
(16) Information about the payment of quarterly fees to the United States Trustee during the reporting period.
(c) Individual chapter 11 debtors. Individual debtors also must complete Part 8 of the MOR, which includes the following:
(1) Total income during the reporting period, including income from salary, wages, self-employment, and any other source;
(2) Total expenses during the reporting period, including expenses related to self-employment, and unusual or significant unanticipated expenses;
(3) Difference between total income in paragraph (c)(1) of this section and total expenses in paragraph (c)(2) of this section;
(4) Debts (that are not related to self-employment) that were incurred since the petition filing date, which are past due; and
(5) Information about whether all required domestic support obligation payments (as that term is defined by 11 U.S.C. 101(14A)) have been paid.
(d) Supporting MOR documents. (1) Unless the United States Trustee in the United States Trustee’s discretion provides otherwise, any non-individual debtor or trustee must file with the court and serve upon the United States Trustee, any official committee appointed under 11 U.S.C. 1102, any governmental unit charged with responsibility for collection or determination of any tax arising out of the estate’s operation, and any requesting party in interest the following documentation:
(i) Statement of cash receipts and disbursements that shows all cash receipts and cash disbursements for all bank and investment accounts;
(ii) Balance sheet containing the summary and detail of the assets, liabilities, and equity (net worth) or deficit of the estate. The estate’s prepetition liabilities and retained earnings must be reported separately from the estate’s postpetition liabilities and retained earnings; and
(iii) Statement of operations (profit or loss statement) that compares the estate’s actual performance with projected performance.
(2) At the discretion of the United States Trustee, an individual debtor may be required to file with the court and serve upon the United States Trustee, any official committee appointed under 11 U.S.C. 1102, any governmental unit charged with responsibility for collection or determination of any tax arising out of the estate’s operation, and any requesting party in interest the documentation identified in paragraph (d)(1) of this section.
(3) At the discretion of the United States Trustee, the debtor or trustee may be required to file with the court and serve upon the United States Trustee, any official committee appointed under 11 U.S.C. 1102, any governmental unit charged with responsibility for collection or determination of any tax arising out of the estate’s operation, and any requesting party in interest the following documentation:
(i) Accounts receivable aging, which is an aged summary of accounts receivable including total receivables, net of doubtful accounts;
(ii) Postpetition liabilities aging, which is an aged summary schedule of postpetition liabilities segregated by general payables, amounts owed to professionals, taxes, etc.;
(iii) Statement of capital assets that identifies the book value of all capital assets on the petition date, the book value at the beginning of the reporting period, any additions or deletions including depreciation, and the book value at the end of the reporting period;
(iv) Schedule of payments to professionals that identifies all fees and expenses for all professionals employed in the bankruptcy case;
(v) Schedule of payments to insiders that includes all payments made by the debtor to any person or entity considered an insider under 11 U.S.C. 101(31);
(vi) Bank statements and bank reconciliations that reflect all bank accounts and banking transactions;
(vii) Descriptions of assets sold or transferred outside the ordinary course of business during the reporting period, and the terms of such sales or transfers;
(viii) Registers or ledgers documenting the estate’s cash disbursements during the reporting period;
(ix) Statement of cash flows during the reporting period;
(x) Other transactional documents, including real estate settlement documents, contracts, or loan documents for the reporting period; and
(xi) Other records.
(e) Deadlines for filing and submitting MOR. The MOR must be filed with the court and submitted to the United States Trustee on a monthly basis. Unless otherwise provided by local rule, each MOR must be filed by no later than the 21st day of the month immediately following the reporting period covered by the MOR. The MOR must be filed every month until one of the following occurs:
(1) The effective date of a confirmed plan of reorganization;
(2) The conversion of the case to a case under another chapter; or
(3) The dismissal of the case.
(f) UST Form 11-PCR, Post-confirmation Report. Following the effective date of a confirmed plan, reorganized debtors and any other authorized parties who have been charged with administering the confirmed plan must file with the court and serve upon the United States Trustee, any governmental unit charged with responsibility for collection or determination of any tax arising out of such operation, and any requesting party in interest quarterly post-confirmation reports using UST Form 11-PCR. In jointly administered cases, unless otherwise required by the United States Trustee in the United States Trustee’s discretion, each jointly administered debtor, reorganized debtor, or other authorized party who has been charged with administering a confirmed plan is required to file a separate PCR on a nonconsolidated basis. The PCR must contain the following:
(1) Date the petition was filed and the date of plan confirmation;
(2) Summary of all post-confirmation amounts disbursed. This summary must be segregated into disbursements during the most recent reporting period and total disbursements since the date of the confirmation order;
(3) All preconfirmation professional fees approved by the court in the case for the most recent period and cumulatively since the date of the order for relief (separately reported, for the professional fees incurred by or on behalf of the debtor, between those that would have been incurred absent a bankruptcy case and those not);
(4) Information regarding the recoveries of holders of claims under confirmed plans. This information must be expressed in aggregate dollar values and, in the case of claims, as a percentage of total claims of the class allowed;
(5) Information on whether a final decree has been entered or is anticipated to be entered; and
(6) Information about the payment of quarterly fees to the United States Trustee during the reporting period.
(g) Deadlines for filing and submitting PCR. The PCR must be filed with the court and submitted to the United States Trustee on a quarterly basis. Unless otherwise provided by local rule, each PCR must be filed not later than the 21st day following the last day of the reporting (previous) quarter. The PCR must be filed every quarter until one of the following occurs:
(1) The date of the final decree;
(2) The conversion of the case to a case under another chapter; or
(3) The dismissal of the case.
(h) Accounting methods. Generally Accepted Accounting Principles (GAAP) are required to be used when completing the Periodic Reports, except if the debtor used a different set of accounting standards prepetition or if the United States Trustee or an order of the court otherwise modifies the GAAP requirement. If the debtor uses GAAP accounting, supporting documents must comply with GAAP, such as the Financial Accounting Standards Board’s Accounting Standards Codification 852, “Reorganizations.”
(i) Certification of Periodic Reports’ accuracy. The Periodic Reports must be certified under penalty of perjury that they are true and correct by an individual who is authorized under applicable law to certify on behalf of the debtor, trustee, reorganized debtor, or other authorized party who has been charged with administering a confirmed plan. The debtor’s, trustee’s, reorganized debtor’s, or other authorized party’s attorney must maintain possession of the Periodic Reports with original holographic signatures for five years, unless otherwise provided by local rule. In addition to the obligations imposed by (l)(2), a pro se debtor must submit the Periodic Reports with original holographic signatures to the office of the United States Trustee in the district in which the bankruptcy case is pending.
(j) Mandatory usage of Periodic Reports. The Periodic Reports must be utilized by debtors and trustees when completing their monthly operating reports or post-confirmation reports. The Periodic Reports shall be used without alteration, except as otherwise provided in this rule, in a particular UST Form 11-MOR or UST Form 11-PCR, or in the instructions for UST Form 11-MOR or UST Form 11-PCR. The Periodic Reports may be modified to permit minor changes not affecting wording or the order of presenting information. All debtors and chapter 11 trustees serving in districts where a United States Trustee is serving must use the Periodic Reports in the administration of their cases, in the same manner and with the same content, as set forth in this Rule.
(1) All Periodic Reports may be electronically or mechanically reproduced so long as the content and the form remain consistent with the Periodic Reports as they are posted on EOUST’s website; and
(2) The Periodic Reports shall be filed via the United States Bankruptcy Courts’ Case Management/Electronic Case Filing System (CM/ECF) as a “smart form,” meaning the reports are data-embedded.
§ 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.
(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 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.
§ 58.12 Definitions.
(a) The following definitions apply to §§ 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 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;
(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 § 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 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.
§ 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.
(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.
§ 58.14 Automatic expiration of agencies’ status as approved agencies.
(a) Except as provided in § 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 § 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.
§ 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.
§ 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.
§ 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 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.
§ 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 § 58.13(e).
(c) An approved agency shall not transfer or assign its United States Trustee approval to act as an approved agency.
§ 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.
§ 58.20 Minimum qualifications agencies shall meet to become and remain approved agencies.
To meet the minimum qualifications set forth in § 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:
(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 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 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 § 58.21(b)(1)(i), the number of clients for whom the agency waived all or part of its fees under § 58.21(b)(1)(ii), and the number of clients for whom the agency voluntarily waived all or part of its fees under § 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.
§ 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 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
(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
(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 § 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
(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.
§ 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 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 § 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 § 58.20(l)(1).
§ 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, 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 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. § 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.
§ 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. § 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:
(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 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.
§ 58.25 Definitions.
(a) The following definitions apply to §§ 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 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 § 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 § 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 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.
§ 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.
§ 58.27 Automatic expiration of providers’ status as approved providers.
(a) Except as provided in § 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 § 58.28(c), if an approved provider was an approved provider immediately prior to the date 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.
§ 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.
§ 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.
§ 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.
§ 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 § 58.26(e).
(c) An approved provider shall not transfer or assign its United States Trustee approval to act as an approved provider.
§ 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.
§ 58.33 Minimum qualifications providers shall meet to become and remain approved providers.
To meet the minimum qualifications set forth in § 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:
(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
(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 § 58.33(g)(3)(iii), (iv), and (v); provided, however, that to the extent instruction takes place by Internet, the provider may comply with § 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 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;
(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 § 58.34(b)(1)(i), the number of debtors for whom the provider waived all or part of its fees under § 58.34(b)(1)(ii), and the number of debtors for whom the provider voluntarily waived all or part of its fees under § 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.
§ 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, 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
(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
(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 § 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
(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.
§ 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 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.
§ 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.
(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.
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 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. § 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 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 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.
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 (§ 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 §§ 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 § 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 § 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.
PART 59—GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS HELD BY THIRD PARTIES
§ 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.
§ 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.
§ 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;
(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 § 50.10 of this chapter.
§ 59.4 Procedures.
1
(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,
(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.
(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 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 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.
§ 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
§ 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 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.
§ 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.
The following agencies have law enforcement officers within the categories listed in § 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
(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.
PART 61—PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT
Subpart A—General
§ 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.
§ 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).
§ 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.
§ 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
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 61.11 Environmental information.
Interested persons may contact the Land and Natural Resources Division for information regarding Department Justice compliance with NEPA.
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.)
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: § 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: § 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: § 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.
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: § 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.
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 § 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:
| (1) Actions normally requiring EIS | (2) Actions normally not requiring environmental assessments or EIS (Categorical exclusions) | (3) Actions normally requiring environmental assessments but not necessarily EIS |
|---|---|---|
| None | Scheduling of drugs as controlled substances | Chemical eradication of plant 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 |
(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.
| Principal program | Start of NEPA process | Completion of NEPA process | Key officials or offices required to consider environmental documents |
|---|---|---|---|
| Eradication of plant species from which controlled substances may be extracted | Prepare an environmental assessment | Final review of environmental assessment or Environmental Impact Statement | Office of Science and Technology. |
(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.
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 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 § 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: § 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: § 1507.3(b)(2)(iii)—CEQ Regulations.)
Appendix D to Part 61—Office of Justice Assistance, Research, and Statistics Procedures Relating to the Implementation of the National Environmental Policy Act
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.
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.
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 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).
(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.
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.
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.
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. § 1501.2(d) CEQ Regulations).
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. § 1502.9(c)(3) CEQ Regulations).
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.
Appendix E to Part 61—United States Marshals Service Procedures Relating to the Implementation of the National Environmental Policy Act
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.
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.
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.
(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 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.
(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
(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.
(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
(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.
(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 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.
(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, 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.
(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
(5) If a decision is made to develop an EIS, the USMS will publish a NOI in the
(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.
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.
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.
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.
To the extent practicable, a NEPA document shall include information necessary to assure compliance with all applicable environmental statutes.
Appendix F to Part 61— Federal Bureau of Investigation Procedures Relating to the Implementation of the National Environmental Policy Act
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, regulations of the Department of Justice (DOJ), 28 CFR part 61, the Environmental Quality Improvement Act of 1970, as amended, 42 U.S.C. 4371, et seq., and Executive Order 11514, “Protection and Enhancement of Environmental Quality,” March 5, 1970, as amended by Executive Order 11991, May 24, 1977.
The Federal Bureau of Investigation (FBI) NEPA Program has been established to assist the FBI in integrating environmental considerations into the FBI’s mission and activities. The FBI NEPA regulations have been developed to supplement CEQ and DOJ NEPA regulations by outlining internal FBI policy and procedures. Through these provisions, the FBI shall promote compliance with NEPA and CEQ’s implementing regulations, encourage environmental sustainability by integrating environmental considerations into mission and planning activities, and ensure that environmental analyses reflect consideration of non-regulatory requirements included in Federal orders, directives, and policy guidance.
The FBI is an intelligence-driven national security and law enforcement component within DOJ. The FBI’s mission is to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to Federal, state, municipal, and international agencies and partners. General types of FBI actions include:
(a) Operational activities, including the detection, investigation, and prosecution of crimes against the United States and the collection of intelligence.
(b) Training activities, including the training of Federal, state, local, and foreign law enforcement personnel.
(c) Real estate activities, including acquisitions and transfers of land and facilities and leasing.
(d) Construction, including new construction, renovations, repair, and demolition of facilities, infrastructure, utilities systems, and other systems.
(e) Property maintenance and management activities, including maintenance of facilities, equipment, and grounds and management of natural resources.
(f) Administrative and regulatory activities, including personnel management, procurement of goods and services, and preparation of regulations and policy guidance.
The FBI will use the NEPA process as a tool to ensure an interdisciplinary review of its actions and to ensure that impacts of those actions on the quality of the human environment are given appropriate consideration in FBI decisions; to identify and assess reasonable alternatives to its actions; and to facilitate early and open communication, when practicable, with the public and other agencies and organizations.
(a) Level of NEPA Analysis. The level of NEPA analysis will depend on the context and intensity of the environmental impacts associated with the proposed action. Environmental Assessments (EAs) and Environmental Impact Statements (EISs) should include a range of reasonable alternatives, as well as other alternatives that are eliminated from detailed study with a brief discussion of the reasons for eliminating them. If there are no reasonable alternatives, the EA or EIS must explain why no reasonable alternative exists. The decision maker must consider all the alternatives discussed in the EA or EIS. The decision maker may choose an alternative that is not expressly described in a draft EA or EIS, provided it is qualitatively within the spectrum of alternatives that were discussed in the draft.
(b) Responsibility for NEPA Analysis. (1) The FBI’s responsibility for NEPA review of actions shall be determined on a case-by-case basis depending on the extent to which the entire project is within the FBI’s jurisdiction and on other factors. For example, factors relevant to whether construction of a facility is within FBI’s jurisdiction include the following: The extent of FBI control and funding in the construction or use of the facility, whether the facility is being built solely for FBI requirements, and whether the project would proceed without FBI action.
(2) The extent of the FBI’s responsibility for NEPA review of joint Federal actions, where the FBI and another Federal agency are cooperating on a project, shall be determined on a case-by-case basis depending on which agency is designated as the lead agency and which is the cooperating agency.
(3) In cases where FBI actions are a component of a larger project involving a private action or an action by a local or state government, the FBI’s proposed action analyzed in the NEPA document shall include only the portions of the project over which the FBI has sufficient control and responsibility to warrant Federal review. However, the cumulative impacts analysis shall account for past, present, and reasonably foreseeable future activities affecting the same natural resources as the FBI project. When actions are planned by private or other non-Federal entities, the FBI shall provide the potential applicant reasonably foreseeable requirements for studies or other information for subsequent FBI action. In addition, the FBI shall consult early with appropriate state and local agencies, tribal entities, interested private persons, and organizations when its own involvement is reasonably foreseeable.
(4) Whenever appropriate and practicable, the FBI shall incorporate by reference and rely upon the environmental analyses and reviews of other Federal, tribal, state, and local agencies.
(a) Categorical Exclusion (CATEX) Criteria (40 CFR 1508.4). A CATEX is a category of actions which, barring extraordinary circumstances, does not individually or cumulatively have a significant effect on the quality of the human environment and for which neither an EA nor an EIS is required. Using CATEXs for such activities reduces unnecessary paperwork and delay. Such activities are not excluded from compliance with other applicable Federal, state, or local environmental laws. To qualify for a CATEX, an action must meet all of the following criteria:
(1) The proposed action fits entirely within one or more of the CATEXs;
(2) The proposed action has not been segmented and is not a piece of a larger action. For purposes of NEPA, actions must be considered in the same review if it is reasonably foreseeable that the actions are connected (e.g., where one action depends on another).
(3) No extraordinary circumstances exist that would cause the normally excluded proposed action to have significant environmental effects. Extraordinary circumstances are assumed to exist when the proposed action is likely to involve any of the following circumstances:
(i) An adverse effect on public health or safety;
(ii) An adverse effect on federally listed endangered or threatened species, marine mammals, or critical habitat;
(iii) An adverse effect on archaeological resources or resources listed or determined to be eligible for listing in the National Register of Historic Places;
(iv) An adverse effect on an environmentally sensitive area, including floodplains, wetlands, streams, critical migration corridors, and wildlife refuges;
(v) A material violation of a Federal, state, or local environmental law by the FBI;
(vi) An effect on the quality of the human or natural environment that is likely to be highly scientifically controversial or uncertain, or likely to involve unique or unknown environmental risks;
(vii) Establishment of precedents or decisions in principle for future actions that have the potential for significant impacts (e.g., master plans, Integrated Natural Resource Management Plans, Integrated Cultural Resource Management Plans);
(viii) Significantly greater scope or size than normally experienced for a particular category of action;
(ix) Potential for substantial degradation of already existing poor environmental conditions. Also, initiation of a potentially substantial environmental degrading influence, activity, or effect in areas not already substantially modified; or
(x) A connection to other actions with individually insignificant, but cumulatively significant, impacts.
(b) Documentation of CATEX usage. As noted in paragraph (c) below, certain FBI actions qualifying for a CATEX have been predetermined to have a low risk of extraordinary circumstances and, as such, have been designated as not requiring preparation of a Record of Environmental Consideration (REC) Determination Form. A REC Determination Form must be prepared for all other FBI actions subject to NEPA review. The REC Determination Form shall determine if the proposed action falls within a category of actions that has been excluded from further NEPA review or if the action will require further analysis through an EA or EIS. The REC Determination Form shall also identify any extraordinary circumstances that require the FBI to perform an EA or an EIS for an action that would otherwise qualify for a CATEX.
(c) List of No REC Determination Form Required (NR) FBI CATEXs. (NR1) Reductions, realignments, or relocation of personnel, equipment, or mobile assets that does not result in changing the use of the space in such a way that could cause environmental effects or exceed the infrastructure capacity outside of FBI-managed property. An example of exceeding the infrastructure capacity would be an increase in vehicular traffic beyond the capacity of the supporting road network to accommodate such an increase.
(NR2) Personnel, fiscal, management, and administrative activities, including recruiting, processing, paying, contract administration, recordkeeping, budgeting, personnel actions, and travel.
(NR3) Decisions to close facilities, decommission equipment, or temporarily discontinue use of facilities or equipment, where the facility or equipment is not used to prevent or control environmental impacts. This requirement excludes demolition actions.
(NR4) Preparation of policies, procedures, manuals, and other guidance documents for which the environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and for which the applicability of the NEPA process will be evaluated upon implementation, either collectively or case by case.
(NR5) Grants of licenses, easements, or similar arrangements for use by vehicles (not to include substantial increases in the number of vehicles loaded); electrical, telephone, and other transmission and communication lines; and pipelines, pumping stations, and facilities for water, wastewater, stormwater, and irrigation; and for similar utility and transportation uses. Construction or acquisition of new facilities is not included.
(NR6) Acquisition, installation, operation, and maintenance of temporary equipment, devices, or controls necessary to mitigate effects of the FBI’s missions on health and the environment. This CATEX is not intended to cover facility construction or related activities. Examples include:
(i) Temporary sediment and erosion control measures required to meet applicable Federal, tribal, state, or local requirements;
(ii) Installation of temporary diversion fencing to prevent earth disturbances within sensitive areas during construction activities; and
(iii) Installation of temporary markers to delineate limits of earth disturbances in forested areas to prevent unnecessary tree removal.
(NR7) Routine flying operations and infrequent, temporary (fewer than 30 days) increases in aircraft operations up to 50 percent of the typical FBI aircraft operation rate.
(NR8) Proposed new activities and operations to be conducted in an existing structure that would be consistent with previously established safety levels and would not result in a change in use of the facility. Examples include new types of research, development, testing, and evaluation activities, and laboratory operations conducted within existing enclosed facilities designed to support research and development activities.
(NR9) Conducting audits and surveys; data collection; data analysis; and processing, permitting, information dissemination, review, interpretation, and development of documents. If any of these activities results in proposals for further action, those proposals must be covered by an appropriate CATEX or other NEPA analysis. Examples include:
(i) Document mailings, publication, and distribution, training and information programs, historical and cultural demonstrations, and public affairs actions;
(ii) Studies, reports, proposals, analyses, literature reviews, computer modeling, and intelligence gathering and sharing;
(iii) Activities designed to support improvement or upgrade management of natural resources, such as surveys for threatened and endangered species or cultural resources; wetland delineations; and minimal water, air, waste, and soil sampling;
(iv) Minimally intrusive geological, geophysical, and geo-technical activities, including mapping and engineering surveys;
(v) Conducting facility audits, Environmental Site Assessments, and environmental baseline surveys; and
(vi) Vulnerability, risk, and structural integrity assessments of infrastructure.
(NR10) Routine procurement, use, storage, and disposal of non-hazardous goods and services in support of administrative, operational, or maintenance activities in accordance with executive orders and Federal procurement guidelines. Examples include:
(i) Office supplies and furniture;
(ii) Equipment;
(iii) Mobile assets (i.e., vehicles, vessels, aircraft);
(iv) Utility services; and
(v) Deployable emergency response supplies and equipment.
(NR11) Routine use of hazardous materials (to include procurement, transportation, distribution, and storage of such materials) and reuse, recycling, and disposal of solid, medical, radiological, or hazardous waste in a manner that is consistent with all applicable laws, regulations, and policies. Examples include:
(i) Use of chemicals and low-level radio-nuclides for laboratory applications;
(ii) Refueling of storage tanks;
(iii) Appropriate treatment and disposal of medical waste;
(iv) Temporary storage and disposal of solid waste;
(v) Disposal of radiological waste through manufacturer return and recycling programs; and
(vi) Hazardous waste minimization activities.
(NR12) Acquisition, installation, maintenance, operation, or evaluation of security equipment to screen for or detect dangerous or illegal individuals or materials at existing facilities or to enhance the physical security of existing critical assets. Examples include:
(i) Low-level x-ray devices;
(ii) Cameras and biometric devices;
(iii) Passive inspection devices;
(iv) Detection or security systems for explosive, biological, or chemical substances;
(v) Access controls, screening devices, and traffic management systems;
(vi) Motion detection systems;
(vii) Impact-resistant doors and gates;
(viii) Diver and swimmer detection systems, except sonar; and
(ix) Blast and shock impact-resistant systems for land-based and waterfront facilities.
(NR13) Maintenance of facilities, equipment, and grounds. Examples include interior utility work, road maintenance, window washing, lawn mowing, trash collecting, facility cleaning, and snow removal.
(NR14) Recreation and welfare activities (e.g., picnics and Family Day).
(NR15) Training FBI personnel or persons external to the FBI using existing facilities and where the training occurs in accordance with applicable permitting requirements and other requirements for the protection of the environment. This exclusion does not apply to training that involves the use of live chemical, biological, radiological, or explosive agents, except when conducted at a location designed and constructed to accommodate those materials and their associated hazards. Examples include:
(i) Administrative or classroom training;
(ii) Tactical training, including training in explosives and incendiary devices, arson investigation and firefighting, and emergency preparedness and response;
(iii) Chemical, biological, explosive, or hazardous material handling training;
(iv) Vehicle, aircraft, and small boat operation training;
(v) Small arms and less-than-lethal weapons training;
(vi) Security specialties and terrorist response training;
(vii) Crowd control training, including gas range training;
(viii) Enforcement response, self-defense, and interdiction techniques training; and
(ix) Fingerprinting and drug analysis training.
(NR16) Projects, grants, cooperative agreements, contracts, or activities to design, develop, and conduct national, state, local, or international exercises to test the readiness of the nation to prevent or respond to a terrorist attack or a natural or manmade disaster, where the activity in question is conducted in accordance with existing facility or land use designations. This exclusion does not apply to exercises that involve the use of live chemical, biological, radiological, nuclear, or explosive agents/devices (other than small devices such as practice grenades or flash bang devices used to simulate an attack during exercises), unless these exercises are conducted under the auspices of existing plans or permits that have undergone NEPA review.
(d) List of REC Determination Form Required (R) FBI CATEXs. (R1) Reductions, realignments, or relocation of personnel, equipment, or mobile assets that results in changing the use of the space in such a way that could cause changes to environmental effects, but does not result in exceeding the infrastructure capacity outside of FBI-managed property. An example of exceeding the infrastructure capacity would be an increase in vehicular traffic beyond the capacity of the supporting road network to accommodate such an increase.
(R2) Acquisition or use of space within an existing structure, by purchase, lease, or use agreement. This requirement includes structures that are in the process of construction or were recently constructed, regardless of whether the existing structure was built to satisfy an FBI requirement and the proposed FBI use would not exceed the carrying capacity of the utilities and infrastructure for the use and access to the space. This requirement also includes associated relocation of personnel, equipment, or assets into the acquired space.
(R3) Transfer of administrative control over real property, including related personal property, between another Federal agency and the FBI that does not result in a change in the functional use of the property.
(R4) New construction (e.g., facilities, roads, parking areas, trails, solar panels, and wind turbines) or improvement of land where all of the following conditions are met:
(i) The site is in a developed or a previously disturbed area;
(ii) The proposed use will not substantially increase the number of motor vehicles at the facility or in the area;
(iii) The construction or improvement will not result in exceeding the infrastructure capacity outside of FBI-managed property (e.g., roads, sewer, water, and parking);
(iv) The site and scale of construction or improvement are consistent with those of existing, adjacent, or nearby buildings; and
(v) The structure and proposed use are compatible with applicable Federal, tribal, state, and local planning and zoning standards and consistent with federally approved state coastal management programs.
(R5) Renovation, addition, repair, alteration, and demolition projects affecting buildings, roads, airfields, grounds, equipment, and other facilities, including subsequent disposal of debris, which may be contaminated with hazardous materials such as polychlorinated biphenyls (PCBs), lead, or asbestos. Hazardous materials shall be disposed of at approved sites in accordance with Federal, state, and local regulations. Examples include the following:
(i) Realigning interior spaces of an existing building;
(ii) Adding a small storage shed to an existing building;
(iii) Retrofitting for energy conservation, including weatherization, installation of timers on hot water heaters, installation of energy efficient lighting, installation of low-flow plumbing fixtures, and installation of drip-irrigation systems;
(iv) Installing a small antenna on an already existing antenna tower that does not cause the total height to exceed 200 feet and where the FCC’s NEPA procedures allow for application of a CATEX; or
(v) Closing and demolishing a building not eligible for listing under the National Register of Historic Places.
(R6) Acquisition, installation, reconstruction, repair by replacement, and operation of utility (e.g., water, sewer, electrical), communication (e.g., data processing cable and similar electronic equipment), and security systems that use existing rights-of-way, easements, distribution systems, or facilities.
(R7) Acquisition, installation, operation, and maintenance of permanent equipment, devices, and/or controls necessary to mitigate effects of the FBI’s missions on health and the environment. This CATEX is not intended to cover facility construction or related activities. Examples include:
(i) Pollution prevention and pollution control equipment required to meet applicable Federal, tribal, state, or local requirements;
(ii) Installation of fencing, including security fencing, that would not have the potential to significantly impede wildlife population movement (including migration) or surface water flow;
(iii) Installation and operation of lighting devices;
(iv) Noise abatement measures, including construction of noise barriers, installation of noise control materials, or planting native trees or native vegetation for use as a noise abatement measure; and
(v) Devices to protect human or animal life, such as raptor electrocution prevention devices, and fencing and grating to prevent accidental entry to hazardous or restricted areas.
(R8) Non-routine procurement, use, storage, and disposal of non-hazardous goods and services in support of administrative, operational, or maintenance activities in accordance with executive orders and Federal procurement guidelines.
(R9) Use of hazardous materials (to include procurement, transportation, distribution, and storage of such materials) and reuse, recycling, and disposal of solid, medical, radiological, or hazardous waste in a manner that is consistent with all applicable laws, regulations, and policies, but uncharacteristic of routine FBI use, reuse, recycling, and disposal of hazardous materials and waste. Examples include:
(i) Procurement of a new type of chemical or procurement of a larger quantity of a particular chemical than generally used by the FBI; and
(ii) Disposal of items that contain PCBs (e.g., carpets, lighting, caulk).
(R10) Herbicide application and pest management, including registered pesticide application, in accordance with Federal, state, and local regulations.
(R11) Natural resource management activities on FBI-managed property to aid in the maintenance or restoration of native flora and fauna, including site preparation and control of non-indigenous species, excluding the application of herbicides.
An EA is a concise public document for actions that do not meet the requirements for applying a CATEX, but for which it is unclear whether an EIS is required. An EA briefly provides evidence and analysis for determining whether to prepare an EIS or a Finding of No Significant Impact (FONSI), and facilitates preparation of an EIS when one is required. The requirements and contents of an EA are described in 40 CFR 1508.9. Significance of impacts shall be determined based on the criteria outlined in 40 CFR 1508.27. The FBI will comment on other agencies’ EAs when relevant to the FBI’s mission, or where the FBI has jurisdiction by law or relevant special expertise.
(a) Examples of types of FBI actions that typically require an EA include the following:
(1) Long-term plans for FBI-managed properties and facilities.
(2) Proposed construction, land use, activity, or operation where it is uncertain whether the action will significantly affect environmentally sensitive areas.
(3) New activities for which the impacts are not known with certainty, but where the impacts are not expected to cause significant environmental degradation.
An EIS is a detailed, written statement Federal agencies must prepare for major Federal actions that will significantly affect the quality of the human environment, or when an EA concludes that the significance threshold of the impacts associated with a proposed action would be crossed. An EIS describes effects of the proposed action and any reasonable alternatives. A Notice of Intent (NOI) is published in the
(a) A Record of Decision (ROD) is 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 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 plan for any mitigation. The FBI will comment on other agencies’ EISs when relevant to the FBI’s mission, or where the FBI has jurisdiction by law or relevant special expertise.
(b) Examples of types of actions that typically require an EIS include the following:
(1) Proposed major construction or construction of facilities that would have a significant effect on wetlands, coastal zones, or other environmentally sensitive areas.
(2) Change in area, scope, type, and/or frequency of operations or training that will result in significant environmental effects.
(3) Actions where the effects of a project or operation on the human environment are likely to be highly scientifically uncertain, but are perceived to have potential for significant impacts.
Scoping may be used for all NEPA documents in order to streamline the NEPA process by identifying significant issues and narrowing the scope of the environmental review process. The FBI may seek agencies with specialized expertise or authority in environmental planning requirements that may be beneficial to FBI mission planning and encourage such agencies to be cooperating agencies (40 CFR 1501.6, 1508.5). In cases where an EIS is prepared in response to a finding of significant impact following preparation of an EA, the EIS scoping process shall incorporate the results of the EA development process.
The FBI may use such means as newspaper announcements, electronic media, and public hearings to disseminate information to potentially interested or affected parties about NEPA actions, as appropriate. When preparing an EIS, and in certain cases an EA, the FBI shall invite comment from affected Federal, tribal, state, and local agencies, and other interested persons in accordance with 40 CFR part 1503.
(a) Mitigation measures, such as those described in 40 CFR 1508.20, may be used to offset environmental impacts associated with implementation of an action. If a FONSI or ROD is based on mitigation measures, all mitigation measures stipulated in the EA or EIS must be implemented as described in the FONSI or ROD.
(b) Mitigation measures, where applicable, must be included as conditions in grants, permits, and relevant contract documents. Funding of actions shall be contingent on performance of mitigation measures, where such measures are identified in a FONSI or ROD. If mitigation is required, a mitigation monitoring plan shall be developed prior to the initiation of the proposed action. To the extent practicable, the FBI shall make available the progress or results of monitoring upon request by the public or cooperating/commenting agencies.
(a) Programmatic EAs or EISs may be prepared to cover broad actions, such as programs or plans (e.g., Master Plan EA).
(b) Tiered EAs or EISs may be prepared to cover narrower actions that are a component to previously prepared Programmatic EAs or EISs as described in 40 CFR 1508.28.
(c) Supplemental EAs or EISs shall be prepared when the FBI makes substantial changes to the proposed action that are relevant to environmental concerns; when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts (e.g., new study has revealed rare, threatened, and endangered species in the project vicinity); or when the FBI determines that the purposes of NEPA will be furthered by doing so.
(1) Supplemental EAs may either be prepared by tracking changes in the original EA or by preparing a separate document that only discusses the changes in the project scope and/or new information and the associated changes with regard to impacts. The process concludes with a decision regarding whether to issue a revised FONSI (using one of the methods listed in section 9 of these procedures) or a decision to prepare an EIS.
(2) Supplemental EISs are prepared in the same way as an EIS. If, however, a supplemental EIS is prepared within one year of filing the ROD for the original EIS, no new scoping process is required. The process concludes with a decision regarding whether to issue a revised ROD.
PART 63—FLOODPLAIN MANAGEMENT AND WETLAND PROTECTION PROCEDURES
§ 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.)
§ 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.
§ 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).
§ 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”).
(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)).
§ 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,
(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.
§ 63.6 Procedures.
Prior to taking any action, as defined in § 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 § 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
(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 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 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.
§ 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.
§ 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.
§ 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
§ 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.
§ 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;
(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.
PART 65—EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE
Subpart A—Eligible Applicants
§ 65.1 General.
This subject describes who may apply for emergency Federal law enforcement assistance under the Justice Assistance Act of 1984.
§ 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
§ 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.
§ 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.
(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).
§ 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
§ 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.
§ 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.
§ 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
§ 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.
§ 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 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
§ 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.
§ 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
§ 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.
§ 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.
§ 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 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.
§ 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
§ 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
§ 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.
Subpart I—Immigration Emergency Fund
§ 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.
§ 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.
§ 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.
§ 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 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 § 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 § 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.
§ 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 § 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 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 § 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 § 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);
(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 § 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.
§ 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 § 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 § 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;
(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 § 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.
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
§ 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.
§ 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 is the official who, under the Director, Executive Office for Immigration Review, exercises administrative supervision over the Chief Administrative Law Judge and others assigned to the Office of the Chief Administrative Hearing Officer (OCAHO). Subject to the supervision of the Director, the Chief Administrative Hearing Officer shall be responsible for the management and direction of hearings and duties within the jurisdiction of OCAHO. The Chief Administrative Hearing Officer shall have no authority to direct the result of an adjudication assigned to an administrative law judge unless done so in accordance with the review process in this part, provided, however, that nothing in this part otherwise shall be construed to limit the authority of the Chief Administrative Hearing Officer to carry out his or her duties. In coordination with the Director, and following consultation with the Chief Administrative Law Judge, the Chief Administrative Hearing Officer is authorized to:
(1) Advise the Office of Policy on the issuance of operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities;
(2) Advise the Office of Policy on the provision of appropriate training of the administrative law judges and other OCAHO staff on the conduct of their authorities and duties;
(3) Direct the conduct of employees assigned to OCAHO to ensure the efficient disposition of all pending cases, including the authority to regulate the initial assignment of administrative law judges to cases and to set priorities or time frames for the resolution of cases;
(4) Evaluate the activities performed by OCAHO by making appropriate reports and inspections, and taking corrective action where needed, provided that nothing in this part shall be construed as providing for the performance evaluation of an administrative law judge;
(5) Adjudicate cases on administrative review, as provided in this part; and
(6) Exercise such other authorities as the Director may provide;
Chief Administrative Law Judge means an Administrative Law Judge who, in addition to performing the general duties of an Administrative Law Judge, serves as the immediate supervisor of all other Administrative Law Judges in the Office of the Chief Administrative Hearing Officer and performs other regulatory duties as identified in this part and elsewhere. Subject to the supervision of the Director and the Chief Administrative Hearing Officer, the Chief Administrative Law Judge shall be responsible for the supervision, direction, and scheduling of the administrative law judges in the conduct of the hearings and duties assigned to them. The Chief Administrative Law Judge shall have no authority to direct the result of an adjudication assigned to another Administrative Law Judge, provided, however, that nothing in this part shall otherwise be construed to limit the authority of the Chief Administrative Law Judge to carry out his or her duties. In coordination with the Director and the Chief Administrative Hearing Officer, the Chief Administrative Law Judge is authorized to:
(1) Advise the Office of Policy on the issuance of operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities;
(2) Advise the Office of Policy on the provision of appropriate training of the administrative law judges and other OCAHO staff on the conduct of their authorities and duties;
(3) Direct the conduct of employees assigned to an administrative law judge team in OCAHO to ensure the efficient disposition of all pending cases, including the authority to regulate the assignment of administrative law judges to cases to promote administrative efficiency and the authority to set priorities or time frames for the resolution of cases;
(4) Evaluate the activities performed by administrative law judge teams by making appropriate reports and inspections, and take corrective action where needed, provided that nothing in this part shall be construed as providing for the performance evaluation of an administrative law judge;
(5) Adjudicate cases as an administrative law judge; and
(6) Exercise such other authorities as the Director or Chief Administrative Hearing Officer may provide;
Complainant means the Department of Homeland Security in cases 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;
Complainant means the Department of Homeland Security in cases 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, the Chief Administrative Hearing Officer, or the Attorney General signs the order;
Final agency order is an Administrative Law Judge’s final order, in cases arising under sections 274A, 274B, and 274C of the INA, that has not been modified, vacated, or remanded by the Chief Administrative Hearing Officer pursuant to § 68.54, referred to the Attorney General for review pursuant to § 68.55(a) or accepted by the Attorney General for review pursuant to § 68.55(b)(3). Alternatively, if the Chief Administrative Hearing Officer modifies or vacates the final order pursuant to § 68.54, the modification or vacatur becomes the final agency order if it has not been referred to the Attorney General for review pursuant to § 68.55(a) or accepted by the Attorney General for review pursuant to § 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.
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 immigration-related employment practice;
Pleading means the complaint, the answer thereto, any motions, any supplements or amendments to any motions or amendments, and any 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 Law Judge;
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.
§ 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, the Chief Administrative Law Judge, 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, the Chief Administrative Law Judge, or the Administrative Law Judge encounters difficulty with perfecting service, the Chief Administrative Hearing Officer, the Chief Administrative Law Judge, or the Administrative Law Judge may direct that a party execute service of process.
(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.
§ 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.
§ 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 § 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 § 68.54(c).
§ 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
(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;
(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 § 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.
§ 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, the Chief Administrative Law Judge, or the 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, the Chief Administrative Law Judge, or the Administrative Law Judge.
§ 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.
(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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 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.
The Special Counsel, or any other interested person or private organization, other than an officer of the Department of Homeland Security, 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.
§ 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.
§ 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.
§ 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, 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.
§ 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.
§ 68.20 Production of documents, things, and inspection of land.
(a) Any party may serve on any other party a request to:
(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.
§ 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.
§ 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 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.
§ 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 §§ 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 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 § 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 § 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.
§ 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 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.
§ 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 United States for an order requiring compliance with the order or subpoena.
§ 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 initially designated by the Chief Administrative Hearing Officer. The Chief Administrative Law Judge 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 or Chief Administrative Law Judge to preside.
§ 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.
§ 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 is sitting to request appropriate remedies.
In the event the Administrative Law Judge designated to conduct the hearing becomes unavailable, the Chief Administrative Law Judge, may designate another Administrative Law Judge for the purpose of further hearing or other appropriate action.
§ 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 Law Judge.
(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 Law Judge shall refer the matter to another Administrative Law Judge for further proceedings.
(d) In the event of disqualification or recusal of the Chief Administrative Law Judge as provided in this section, the Chief Administrative Hearing Officer shall refer the matter to another Administrative Law Judge for further proceedings.
(e) The disqualification procedures in this section apply to reviews by the Chief Administrative Hearing Officer conducted under § 68.53 or § 68.54. In the event of disqualification or recusal of the Chief Administrative Hearing Officer as provided in this section, the review shall be referred to the Director for further proceedings. For a case referred to the Director under this paragraph (e), the Director shall exercise delegated authority from the Attorney General identical to that of the Chief Administrative Hearing Officer as described in § 68.53 or 68.54.
§ 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.
§ 68.32 Expedition.
Hearings shall proceed with all reasonable speed, insofar as practicable and with due regard to the convenience of the parties.
§ 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 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 (f) 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 Department of Homeland Security 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.
§ 68.34 Legal assistance.
The Office of the Chief Administrative Hearing Officer does not have authority to appoint counsel.
§ 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.
§ 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.
§ 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 § 68.9(b), may be entered, with prejudice, against any party failing, without good cause, to appear at a hearing.
§ 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.
§ 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 may grant a continuance to enable the objecting party to meet such evidence.
§ 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.
§ 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 the matters so noticed, and shall be given adequate opportunity to show the contrary.
§ 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.
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 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.
§ 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 § 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.
§ 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.
§ 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 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.
§ 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.
§ 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 Administrative Law Judge. The final order entered by the Administrative Law Judge shall be based upon the whole record. It shall be supported by reliable and probative evidence. The standard of proof shall be by a preponderance of the evidence.
(c) Contents of final order with respect to unlawful employment of unauthorized aliens. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the complaint has violated section 274A(a)(1)(A) or (a)(2) of the INA, the final order shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of:
(i) Not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008; not less than $375 and not more than $3,200 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008;
(ii) In the case of a person or entity previously subject to one final order under this paragraph (c)(1), not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring before March 27, 2008, and not less than $3,200 and not more than $6,500 for each unauthorized alien with respect to whom there was a violation of either such paragraph occurring on or after March 27, 2008; or
(iii) In the case of a person or entity previously subject to more than one final order under paragraph (c)(1) of this section, not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring before March 27, 2008, and not less than $4,300 and not more than $16,000 for each unauthorized alien with respect to whom there was a violation of each such paragraph occurring on or after March 27, 2008.
(2) The final order may also require the respondent to participate in, and comply with the terms of, one of the pilot programs set forth in Pub. L. 104-208, Div. C, sections 401-05, 110 Stat. 3009, 3009-655 to 3009-665 (1996) (codified at 8 U.S.C. 1324a (note)), with respect to the respondent’s hiring or recruitment or referral of individuals in a state (as defined in section 101(a)(36) of the INA) covered by such a program.
(3) The final order may also require the respondent to comply with the requirements of section 274A(b) of the INA with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years; and to take such other remedial action as is appropriate.
(4) In the case of a person or entity composed of distinct, physically separate subdivisions, each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and under the control of, or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(5) If, upon a preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the complaint has violated section 274A(a)(1)(B) of the INA, except as set forth in paragraph (c)(6) of this section, the final order under this paragraph shall require the person or entity to pay a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred before March 15, 1999, and not less than $110 and not more than $1,100 for each individual with respect to whom such violation occurred on or after March 15, 1999. In determining the amount of the penalty, due consideration shall be given to the size of the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.
(6) With respect to a violation of section 274A(a)(1)(B) of the INA where a person or entity participating in a pilot program has failed to provide notice of final nonconfirmation of employment eligibility of an individual to the Attorney General as required by Pub. L. 104-208, Div. C, section 403(a)(4)(C), 110 Stat. 3009, 3009-661 (1996) (codified at 8 U.S.C. 1324a (note)), the final order under this paragraph shall require the person or entity to pay a civil penalty in an amount of not less than $500 and not more than $1,000 for each individual with respect to whom such violation occurred before March 27, 2008, and not less than $550 and not more than $1,100 for each individual with respect to whom such violation occurred on or after March 27, 2008.
(7) Prohibition of indemnity bond cases. If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity has violated section 274A(g)(1) of the INA, the final order shall require the person or entity to pay a civil penalty of $1,000 for each individual with respect to whom such violation occurred before March 15, 1999, and $1,100 for each individual with respect to whom such violation occurred on or after March 15, 1999, and require the return of any amounts received in such violation to the individual or, if the individual cannot be located, to the general fund of the Treasury.
(8) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (c) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.
(9) Attorney’s fees. A prevailing respondent may receive, pursuant to 5 U.S.C. 504, an award of attorney’s fees in unlawful employment and prohibition of indemnity bond cases. Any application for attorney’s fees shall be accompanied by an itemized statement from the attorney or representative, stating the actual time expended and the rate at which fees and other expenses were computed. An award of attorney’s fees will not be made if the Administrative Law Judge determines that the complainant’s position was substantially justified or special circumstances make the award unjust.
(d) Contents of final order with respect to unfair immigration-related employment practice cases. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that any person or entity named in the complaint has engaged in or is engaging in an unfair immigration-related employment practice, the final order shall include a requirement that the person or entity cease and desist from such practice. The final order may also require the person or entity:
(i) To comply with the requirements of section 274A(b) of the INA with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years;
(ii) To retain for a period of up to three years, and only for purposes consistent with section 274A(b)(5) of the INA, the name and address of each individual who applies, in person or in writing, for hiring for an existing position, or for recruiting or referring for a fee, for employment in the United States;
(iii) To hire individuals directly and adversely affected, with or without back pay;
(iv) To post notices to employees about their rights under section 274B and employers’ obligations under section 274A;
(v) To educate all personnel involved in hiring and in complying with section 274A or 274B about the requirements of 274A or 274B;
(vi) To order, in an appropriate case, the removal of a false performance review or false warning from an employee’s personnel file;
(vii) To order, in an appropriate case, the lifting of any restrictions on an employee’s assignments, work shifts, or movements;
(viii) Except as provided in paragraph (d)(1)(xii) of this section, to pay a civil penalty of not less than $275 and not more than $2,200 for each individual discriminated against before March 27, 2008, and not less than $375 and not more than $3,200 for each individual discriminated against on or after March 27, 2008;
(ix) Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to a single final order under section 274B(g)(2) of the INA, to pay a civil penalty of not less than $2,200 and not more than $5,500 for each individual discriminated against before March 27, 2008, and not less than $3,200 and not more than $6,500 for each individual discriminated against on or after March 27, 2008;
(x) Except as provided in paragraph (d)(1)(xii) of this section, in the case of a person or entity previously subject to more than one final order under section 274B(g)(2) of the INA, to pay a civil penalty of not less than $3,300 and not more than $11,000 for each individual discriminated against before March 27, 2008, and not less than $4,300 and not more than $16,000 for each individual discriminated against on or after March 27, 2008;
(xi) To participate in, and comply with the terms of, one of the pilot programs set forth in Pub. L. 104-208, Div. C, sections 401-05, 110 Stat. 3009, 3009-655 to 3009-665 (1996) (codified at 8 U.S.C. 1324a (note)), with respect to the respondent’s hiring or recruitment or referral of individuals in a state (as defined in section 101(a)(36) of the INA) covered by such a program; and
(xii) In the case of an unfair immigration-related employment practice where a person or entity, for the purpose or with the intent of discriminating against an individual in violation of section 274B(a), requests more or different documents than are required under section 274A(b) or refuses to honor documents that on their face reasonably appear to be genuine, to pay a civil penalty of not less than $100 and not more than $1,000 for each individual discriminated against before March 15, 1999, and not less than $110 and not more than $1,100 for each individual discriminated against on or after March 15, 1999, or to order any of the remedies listed as paragraphs (d)(1)(i) through (d)(1)(vii) of this section.
(2) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (d) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.
(3) Back pay liability shall not accrue from a date more than two years prior to the date of the filing of a charge with the Special Counsel. In no event shall back pay accrue from before November 6, 1986. Interim earnings or amounts earnable with reasonable diligence by the individual or individuals discriminated against shall operate to reduce the back pay otherwise allowable. No order shall require the hiring of an individual as an employee, or the payment to an individual of any back pay, if the individual was refused employment for any reason other than discrimination on account of national origin or citizenship status unless it is determined that an unfair immigration-related employment practice exists under section 274B(a)(5) of the INA.
(4) In applying paragraph (d) of this section in the case of a person or entity composed of distinct, physically separate subdivisions, each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and not under the control of or common control with another subdivision, each such subdivision shall be considered a separate person or entity.
(5) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity named in the complaint has not engaged in and is not engaging in an unfair immigration-related employment practice, then the final order shall dismiss the complaint.
(6) Attorney’s fees. The Administrative Law Judge in his or her discretion may allow a prevailing party, other than the United States, a reasonable attorney’s fee if the losing party’s argument is without reasonable foundation in law and fact. Any application for attorney’s fees shall be accompanied by an itemized statement from the attorney or representative stating the actual time expended and the rate at which fees and other expenses were computed.
(e) Contents of final order with respect to document fraud cases. (1) If, upon the preponderance of the evidence, the Administrative Law Judge determines that a person or entity has violated section 274C of the INA, the final order shall include a requirement that the respondent cease and desist from such violations and pay a civil money penalty in an amount of:
(i) Not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA before March 27, 2008, and not less than $375 and not more than $3,200 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA on or after March 27, 2008;
(ii) Not less than $250 and not more than $2,000 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA before March 27, 2008, and not less than $275 and not more than $2,200 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA on or after March 27, 2008;
(iii) In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA before March 27, 2008, and not less than $3,200 and not more than $6,500 for each document that is the subject of a violation under section 274C(a)(1) through (4) of the INA on or after March 27, 2008; or
(iv) In the case of a respondent previously subject to one or more final orders under section 274C(d)(3) of the INA, not less than $2,000 and not more than $5,000 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA before March 27, 2008, and not less than $2,200 and not more than $5,500 for each document that is the subject of a violation under section 274C(a)(5) or (6) of the INA on or after March 27, 2008.
(2) In the case of a person or entity composed of distinct, physically separate subdivisions, each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and under the control of, or common control with, another subdivision, each such subdivision shall be considered a separate person or entity.
(3) Civil penalties assessed after August 1, 2016. For civil penalties assessed after August 1, 2016, whose associated violations described in paragraph (e) of this section occurred after November 2, 2015, the applicable civil penalty amounts are set forth in 28 CFR 85.5.
(4) Attorney’s fees. A prevailing respondent may receive, pursuant to 5 U.S.C. 504, an award of attorney’s fees in document fraud cases. Any application for attorney’s fees shall be accompanied by an itemized statement from the attorney or representative, stating the actual time expended and the rate at which fees and other expenses were computed. An award of attorney’s fees shall not be made if the Administrative Law Judge determines that the complainant’s position was substantially justified or special circumstances make the award unjust.
(f) Corrections to orders. An Administrative Law Judge may, in the interest of justice, correct any clerical mistakes or typographical errors contained in a final order entered in a case arising under section 274A or 274C of the INA at any time within thirty (30) days after the entry of the final order. Changes other than clerical mistakes or typographical errors will be considered in cases arising under sections 274A and 274C of the INA by filing a request for review to the Chief Administrative Hearing Officer by a party under § 68.54, or the Chief Administrative Hearing Officer may exercise discretionary review to make such changes pursuant to § 68.54. In cases arising under section 274B of the INA, an Administrative Law Judge may correct any substantive, clerical, or typographical errors or mistakes in a final order at any time within sixty (60) days after the entry of the final order.
(g) Final agency order. In a case arising under section 274A, 274B, or 274C of the INA, the Administrative Law Judge’s order becomes the final agency order sixty (60) days after the date of entry of the Administrative Law Judge’s order, unless:
(1) In a case arising under section 274A or 274C of the INA, the Chief Administrative Hearing Officer modifies, vacates, or remands the Administrative Law Judge’s final order pursuant to § 68.54; or
(2) In a case arising under section 274A, 274B, or 274C of the INA, the order is referred to the Attorney General pursuant to § 68.55.
§ 68.53 Review of an interlocutory order of an Administrative Law Judge in cases arising under section 274A or 274C.
(a) Authority. In a case arising under section 274A or 274C of the Immigration and Nationality Act, the Chief Administrative Hearing Officer may, within thirty (30) days of the date of an Administrative Law Judge’s interlocutory order, issue an order that modifies or vacates the interlocutory order. The Chief Administrative Hearing Officer may review an Administrative Law Judge’s interlocutory order if:
(1) An Administrative Law Judge, when issuing an interlocutory order, states in writing that the Judge believes:
(i) That the order concerns an important question of law on which there is a substantial difference of opinion; and
(ii) That an immediate appeal will advance the ultimate termination of the proceeding or that subsequent review will be an inadequate remedy; or
(2) Within ten (10) days of the date of the entry of an interlocutory order a party requests by motion that the Chief Administrative Hearing Officer review the interlocutory order. This motion shall contain a clear statement of why interlocutory review is appropriate under the standards set out in paragraph (a)(1) of this section; or
(3) Within ten (10) days of the entry of the interlocutory order, the Chief Administrative Hearing Officer, upon the Officer’s own initiative, determines that such order is appropriate for interlocutory review pursuant to the standards set out in paragraph (a)(1) and issues a notification of review. This notification shall state the issues to be reviewed.
(b) Stay of proceedings. Review of an Administrative Law Judge’s interlocutory order will not stay the proceeding unless the Administrative Law Judge or the Chief Administrative Hearing Officer determines that the circumstances require a postponement.
(c) Review by Chief Administrative Hearing Officer. Review by the Chief Administrative Hearing Officer of an interlocutory order shall be conducted in the same manner as is provided for review of final orders in § 68.54(b) through (d). An interlocutory order, or an order modifying, vacating, or remanding an interlocutory order, shall not be considered a final agency order. If the Chief Administrative Hearing Officer does not modify, vacate, or remand an interlocutory order reviewed pursuant to paragraph (a) within thirty (30) days of the date that the order is entered, the Administrative Law Judge’s interlocutory order is deemed adopted.
(d) Effect of interlocutory review. (1) An order by the Chief Administrative Hearing Officer modifying or vacating an interlocutory order shall also remand the case to the Administrative Law Judge. Further proceedings in the case shall be conducted consistent with the Chief Administrative Hearing Officer’s order.
(2) Whether or not an interlocutory order is reviewed by the Chief Administrative Hearing Officer, all parties retain the right to request administrative review of the final order of the Administrative Law Judge pursuant to § 68.54 with respect to all issues in the case.
§ 68.54 Administrative review of a final order of an Administrative Law Judge in cases arising under section 274A or 274C.
(a) Authority of the Chief Administrative Hearing Officer. In a case arising under section 274A or 274C of the INA, the Chief Administrative Hearing Officer has discretionary authority, pursuant to sections 274A(e)(7) and 274C(d)(4) of the INA and 5 U.S.C. 557, to review any final order of an Administrative Law Judge in accordance with the provisions of this section.
(1) A party may file with the Chief Administrative Hearing Officer a written request for administrative review within ten (10) days of the date of entry of the Administrative Law Judge’s final order, stating the reasons for or basis upon which it seeks review.
(2) The Chief Administrative Hearing Officer may review an Administrative Law Judge’s final order on his or her own initiative by issuing a notification of administrative review within ten (10) days of the date of entry of the Administrative Law Judge’s order. This notification shall state the issues to be reviewed.
(b) Written and oral arguments. (1) In any case in which administrative review has been requested or ordered pursuant to paragraph (a) of this section, the parties may file briefs or other written statements within twenty-one (21) days of the date of entry of the Administrative Law Judge’s order.
(2) At the request of a party, or on the Officer’s own initiative, the Chief Administrative Hearing Officer may, at the Officer’s discretion, permit or require additional filings or may conduct oral argument in person or telephonically.
(c) Filing and service of documents relating to administrative review. All requests for administrative review, briefs, and other filings relating to review by the Chief Administrative Hearing Officer shall be filed and served by facsimile or same-day hand delivery, or if such filing or service cannot be made, by overnight delivery, as provided in § 68.6(c). A notification of administrative review by the Chief Administrative Hearing Officer shall also be served by facsimile or same-day hand delivery, or if such service cannot be made, by overnight delivery service.
(d) Review by the Chief Administrative Hearing Officer. (1) On or before thirty (30) days subsequent to the date of entry of the Administrative Law Judge’s final order, but not before the time for filing briefs has expired, the Chief Administrative Hearing Officer may enter an order that modifies or vacates the Administrative Law Judge’s order, or remands the case to the Administrative Law Judge for further proceedings consistent with the Chief Administrative Hearing Officer’s order. However, the Chief Administrative Hearing Officer is not obligated to enter an order unless the Administrative Law Judge’s order is modified, vacated or remanded.
(2) If the Chief Administrative Hearing Officer enters an order that remands the case to the Administrative Law Judge, the Administrative Law Judge will conduct further proceedings consistent with the Chief Administrative Hearing Officer’s order. Any administrative review of the Administrative Law Judge’s subsequent order shall be conducted in accordance with this section.
(3) The Chief Administrative Hearing Officer may make technical corrections to the Officer’s order up to and including thirty (30) days subsequent to the issuance of that order.
(e) Final agency order. If the Chief Administrative Hearing Officer enters a final order that modifies or vacates the Administrative Law Judge’s final order, and the Chief Administrative Hearing Officer’s order is not referred to the Attorney General pursuant to § 68.55, the Chief Administrative Hearing Officer’s order becomes the final agency order thirty (30) days subsequent to the date of the modification or vacation.
§ 68.55 Referral of cases arising under section 274A, 274B, or 274C to the Attorney General for review.
(a) Referral of cases by direction of the Attorney General. The Chief Administrative Hearing Officer shall promptly refer to the Attorney General for review any final order in cases arising under section 274A, 274B, or 274C of the INA if the Attorney General so directs the Chief Administrative Hearing Officer. For cases arising under section 274A and 274C, the Attorney General may so direct the Chief Administrative Hearing Officer within no more than thirty (30) days of the entry of a final order by the Chief Administrative Hearing Officer modifying or vacating an Administrative Law Judge’s final order, or within no more than sixty (60) days of the entry of an Administrative Law Judge’s final order, if the Chief Administrative Hearing Officer does not modify or vacate the Administrative Law Judge’s final order. For cases arising under section 274B, the Attorney General may so direct the Chief Administrative Hearing Officer within no more than sixty (60) days of the entry of a final order by the Administrative Law Judge. When a final order is referred to the Attorney General in accordance with this paragraph (a), the Chief Administrative Hearing Officer shall give the Administrative Law Judge and all parties a copy of the referral.
(b) Request by Secretary of Homeland Security for review by the Attorney General. The Chief Administrative Hearing Officer shall promptly refer to the Attorney General for review any final order in cases arising under sections 274A or 274C of the INA at the request of the Secretary of Homeland Security within thirty (30) days of the entry of a final order modifying or vacating the Administrative Law Judge’s final order or within sixty (60) days of the entry of an Administrative Law Judge’s final order, if the Chief Administrative Hearing Officer does not modify or vacate the Administrative Law Judge’s final order.
(1) The Department of Homeland Security must first seek review of an Administrative Law Judge’s final order by the Chief Administrative Hearing Officer, in accordance with § 68.54 before the Secretary of Homeland Security may request that an Administrative Law Judge’s final order be referred to the Attorney General for review.
(2) To request referral of a final order to the Attorney General, the Secretary of Homeland Security must submit a written request to the Chief Administrative Hearing Officer and transmit copies of the request to all other parties to the case and to the Administrative Law Judge at the time the request is made. The written statement shall contain a succinct statement of the reasons the case should be reviewed by the Attorney General and the grounds for appeal.
(3) The Attorney General, in the exercise of the Attorney General’s discretion, may accept the Secretary of Homeland Security’s request for referral of the case for review by issuing a written notice of acceptance within sixty (60) days of the date of the request. Copies of such written notice shall be transmitted to all parties in the case and to the Chief Administrative Hearing Officer.
(c) Review by the Attorney General. When a final order of an Administrative Law Judge or the Chief Administrative Hearing Officer is referred to the Attorney General pursuant to paragraph (a) of this section, or a referral is accepted in accordance with paragraph (b)(3) of this section, the Attorney General shall review the final order in accordance with the provisions of this section. No specific time limit is established for the Attorney General’s review.
(1) All parties shall be given the opportunity to submit briefs or other written statements pursuant to a schedule established by the Chief Administrative Hearing Officer or the Attorney General.
(2) The Attorney General shall enter an order that adopts, modifies, vacates, or remands the final order under review. The Attorney General’s order shall be stated in writing and shall be transmitted to all parties in the case and to the Chief Administrative Hearing Officer.
(3) If the Attorney General remands the case for further administrative proceedings, the Chief Administrative Hearing Officer or the Administrative Law Judge shall conduct further proceedings consistent with the Attorney General’s order. Any subsequent final order of the Administrative Law Judge or the Chief Administrative Hearing Officer shall be subject to administrative review in accordance with § 68.54 and this section.
(d) Final agency order. (1) The Attorney General’s order pursuant to paragraph (c) of this section (other than a remand as provided in paragraph (c)(3)) shall become the final agency order on the date of the Attorney General’s order.
(2) If the Attorney General declines the Secretary of Homeland Security’s request for referral of a case pursuant to paragraph (b) of this section, or does not issue a written notice of acceptance within sixty (60) days of the date of the Secretary of Homeland Security’s request, then the final order of the Administrative Law Judge or the Chief Administrative Hearing Officer that was the subject of a referral pursuant to paragraph (b) shall become the final agency order on the day after that sixty (60) day period has expired.
§ 68.56 Judicial review of a final agency order in cases arising under section 274A or 274C.
In cases arising under section 274A or 274C of the INA, a person or entity adversely affected by a final agency order issued under § 68.52(c) or (e), § 68.54(e), or § 68.55(d) may file, within forty-five (45) days after the date of the final agency order, a petition in the United States Court of Appeals for the appropriate circuit for review of the final agency order. Failure to request review by the Chief Administrative Hearing Officer of a final order by an Administrative Law Judge shall not prevent a party from seeking judicial review.
§ 68.57 Judicial review of a final agency order in cases arising under section 274B.
In cases arising under section 274B of the INA, any person aggrieved by a final agency order issued under § 68.52(d) or § 68.55(d) may, within sixty (60) days after entry of the order, seek review of the final agency order in the United States Court of Appeals for the circuit in which the violation is alleged to have occurred or in which the employer resides or transacts business. If a final agency order is not appealed, the Special Counsel (or, if the Special Counsel fails to act, the person filing the charge, other than the Department of Homeland Security) may file a petition in the United States District Court for the district in which the violation that is the subject of the final agency order is alleged to have occurred, or in which the respondent resides or transacts business, requesting that the order be enforced.
§ 68.58 Filing of the official record.
Upon timely receipt of notification that an appeal has been taken, a certified copy of the record will be filed promptly with the appropriate United States Court.
PART 69—NEW RESTRICTIONS ON LOBBYING
See also Office of Management and Budget notice published at 54 FR 52306, December 20, 1989.
Subpart A—General
§ 69.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a Federal contract, grant, loan, or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any of the following covered Federal actions: the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative agreement shall file with that agency a certification, set forth in appendix A, that the person has not made, and will not make, any payment prohibited by paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative agreement shall file with that agency a disclosure form, set forth in appendix B, if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action), which would be prohibited under paragraph (a) of this section if paid for with appropriated funds.
(d) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a statement, set forth in appendix A, whether that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a disclosure form, set forth in appendix B, if that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.
§ 69.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive departments and agencies as well as independent regulatory commissions and Government corporations, as defined in 31 U.S.C. 9101(1).
(b) Covered Federal action means any of the following Federal actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(c) Federal contract means an acquisition contract awarded by an agency, including those subject to the Federal Acquisition Regulation (FAR), and any other acquisition contract for real or personal property or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement entered into by an agency.
(e) Federal grant means an award of financial assistance in the form of money, or property in lieu of money, by the Federal Government or a direct appropriation made by law to any person. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, loan insurance, interest subsidies, insurance, or direct United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the intent to influence, any communication to or appearance before an officer or employee or any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency’s guarantee or insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if chartered, established, or otherwise recognized by a State for the performance of a governmental duty, including a local public authority, a special district, an intrastate district, a council of governments, a sponsor group representative organization, and any other instrumentality of a local government.
(k) Officer or employee of an agency includes the following individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government under title 5, U.S. Code, including a position under a temporary appointment;
(2) A member of the uniformed services as defined in section 101(3), title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title 18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix 2.
(l) Person means an individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit or not for profit. This term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the normal compensation for such officer or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other technical services, a payment in an amount that is consistent with the amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier, and subgrantees at any tier of the recipient of funds received in connection with a Federal contract, grant, loan, or cooperative agreement. The term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or a commitment providing for the United States to insure or guarantee a loan, an officer or employee who is employed by such person for at least 130 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person for receipt of such contract, grant, loan, cooperative agreement, loan insurance commitment, or loan guarantee commitment. An officer or employee who is employed by such person for less than 130 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person shall be considered to be regularly employed as soon as he or she is employed by such person for 130 working days.
(q) State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, an agency or instrumentality of a State, and a multi-State, regional, or interstate entity having governmental duties and powers.
§ 69.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if required, with each submission that initiates agency consideration of such person for:
(1) Award of a Federal contract, grant, or cooperative agreement exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding $100,000; or
(2) A Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000,
(c) Each person shall file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person under paragraphs (a) or (b) of this section. An event that materially affects the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal action; or
(2) A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a Federal cooperative agreement,
(e) All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by the person referred to in paragraphs (a) or (b) of this section. That person shall forward all disclosure forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e) of this section shall be treated as a material representation of fact upon which all receiving tiers shall rely. All liability arising from an erroneous representation shall be borne solely by the tier filing that representation and shall not be shared by any tier to which the erroneous representation is forwarded. Submitting an erroneous certification or disclosure constitutes a failure to file the required certification or disclosure, respectively. If a person fails to file a required certification or disclosure, the United States may pursue all available remedies, including those authorized by section 1352, title 31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1989, but not made before that date, certifications shall be required at award or commitment, covering activities occurring between December 23, 1989, and the date of award or commitment. However, for awards and commitments in process prior to the December 23, 1989 effective date of these provisions, but not made before December 23, 1989, disclosure forms shall not be required at time of award or commitment but shall be filed within 30 days.
(h) No reporting is required for an activity paid for with appropriated funds if that activity is allowable under either subpart B or C.
Subpart B—Activities by Own Employees
§ 69.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in § 69.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement if the payment is for agency and legislative liaison activities not directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any information specifically requested by an agency or Congress is allowable at any time.
(c) For purposes of paragraph (a) of this section, the following agency and legislative liaison activities are allowable at any time only where they are not related to a specific solicitation for any covered Federal action:
(1) Discussing with an agency (including individual demonstrations) the qualities and characteristics of the person’s products or services, conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the application or adaptation of the person’s products or services for an agency’s use.
(d) For purposes of paragraph (a) of this section, the following agencies and legislative liaison activities are allowable only where they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but necessary for an agency to make an informed decision about initiation of a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an agency pursuant to the provisions of the Small Business Act, as amended by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are allowable under this section.
§ 69.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in § 69.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or an extension, continuation, renewal, amendment, or modification of a Federal contract, grant, loan, or cooperative agreement if payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, “professional and technical services” shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client’s proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are allowable under this section.
§ 69.210 Reporting.
No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.
Subpart C—Activities by Other Than Own Employees
§ 69.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in § 69.100 (a), does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in § 69.110 (a) and (b) regarding filing a disclosure form by each person, if required, shall not apply with respect to professional or technical services rendered directly in the preparation, submission, or negotiation of any commitment providing for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, “professional and technical services” shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting or a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client’s proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting or receiving a covered Federal action include consultants and trade associations.
(f) Only those services expressly authorized by this section are allowable under this section.
Subpart D—Penalties and Enforcement
§ 69.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see appendix B) to be filed or amended if required herein, shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
(c) A filing or amended filing on or after the date on which an administrative action for the imposition of a civil penalty is commenced does not prevent the imposition of such civil penalty for a failure occurring before that date. An administrative action is commenced with respect to a failure when an investigating official determines in writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount of any such penalty, by reason of a violation by any person, the agency shall consider the nature, circumstances, extent, and gravity of the violation, the effect on the ability of such person to continue in business, any prior violations by such person, the degree of culpability of such person, the ability of the person to pay the penalty, and such other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section shall be subject to a civil penalty of $10,000, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $10,000 and $100,000, as determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not prevent the United States from seeking any other remedy that may apply to the same conduct that is the basis for the imposition of such civil penalty.
§ 69.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these provisions are not inconsistent with the requirements herein.
§ 69.410 Enforcement.
The head of each agency shall take such actions as are necessary to ensure that the provisions herein are vigorously implemented and enforced in that agency.
Subpart E—Exemptions
§ 69.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a covered Federal action from the prohibition whenever the Secretary determines, in writing, that such an exemption is in the national interest. The Secretary shall transmit a copy of each such written exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to implement paragraph (a) of this section.
Subpart F—Agency Reports
§ 69.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure reports (see appendix B) and, on May 31 and November 30 of each year, submit to the Secretary of the Senate and the Clerk of the House of Representatives a report containing a compilation of the information contained in the disclosure reports received during the six-month period ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for public inspection 30 days after receipt of the report by the Secretary and the Clerk.
(c) Information that involves intelligence matters shall be reported only to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection.
(d) Information that is classified under Executive Order 12356 or any successor order shall be reported only to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives or the Committees on Armed Services of the Senate and the House of Representatives (whichever such committees have jurisdiction of matters involving such information) and to the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection.
(e) The first semi-annual compilation shall be submitted on May 31, 1990, and shall contain a compilation of the disclosure reports received from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget (OMB), are required to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives no later than with the compilations due on May 31, 1991. OMB shall provide detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in the official files of the agency.
§ 69.605 Inspector General report.
(a) The Inspector General, or other official as specified in paragraph (b) of this section, of each agency shall prepare and submit to Congress each year, commencing with submission of the President’s Budget in 1991, an evaluation of the compliance of that agency with, and the effectiveness of, the requirements herein. The evaluation may include any recommended changes that may be necessary to strengthen or improve the requirements.
(b) In the case of an agency that does not have an Inspector General, the agency official comparable to an Inspector General shall prepare and submit the annual report, or, if there is no such comparable official, the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged violations relating to the agency’s covered Federal actions during the year covered by the report, the actions taken by the head of the agency in the year covered by the report with respect to those alleged violations and alleged violations in previous years, and the amounts of civil penalties imposed by the agency in the year covered by the report.
Appendix A to Part 69—Certification Regarding Lobbying
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The undersigned states, to the best of his or her knowledge and belief, that:
If any funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required statement shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Appendix B to Part 69—Disclosure Form To Report Lobbying
PART 71—IMPLEMENTATION OF THE PROVISIONS OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986
Subpart A—Implementation for Actions Initiated by the Department of Justice
§ 71.1 Purpose.
This subpart implements the Program Fraud Civil Remedies Act of 1986, Public Law 99-509, 6101-6104, 100 Stat. 1874 (October 21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute. The subpart establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents, and specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
§ 71.2 Definitions.
ALJ means an Administrative Law Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344.
Authority means the United States Department of Justice, including all offices, boards, divisions and bureaus.
Authority head means the Attorney General or his designee. For purposes of these regulations, the Deputy Attorney General is designated to act on behalf of the Attorney General.
Benefit means in the context of statement, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling, status or loan guarantee.
Claim means any request, demand, or submission—
(a) Made to the authority for property, services, or money (including money representing grants, loans or insurance);
(b) Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority—
(1) For property or services if the United States:
(i) Provided such property or services;
(ii) Provided any portion of the funds for the purchase of such property or services; or
(iii) Will reimburse such recipient or party for the purchase of such property or services; or
(2) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States:
(i) Provided any portion of the money requested or demanded; or
(ii) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or
(c) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services, or money.
Complaint means the administrative complaint served by the rviewing official on the defendant under § 71.7.
Defendant means any person alleged in a complaint under § 71.7 to be liable for a civil penalty or assessment under § 71.3.
Government means the United States Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by § 71.10 or § 71.37, and includes a revised initial decision issued following a remand or a motion for reconsideration.
Investigating Official means the Inspector General.
Knows or has reason to know means that a person, with respect to a claim or statement:
(a) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
(b) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
(c) Acts in reckless disregard of the truth or falsity of the claim or statement.
Makes shall include the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, making or made, shall likewise include the corresponding forms of such terms.
Person means any individual, partnership, corporation, association, or private organization, and includes the plural of that term.
Representative means an attorney who is in good standing of the bar of any State, Territory, or possession of the United States or of the District of Columbia or the Commonwealth of Puerto Rico.
Reviewing Official means the Assistant Attorney General for Administration. For purposes of § 71.5 of these rules, the Assistant Attorney General for Administration, personally or through his immediate staff, shall perform the functions of the reviewing official provided that such person is serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule. All other functions of the reviewing official, including administrative prosecution under these rules, shall be performed with respect to the components listed below by the individuals listed below acting on behalf of the Assistant Attorney General for Administration:
(a) For the offices, boards, divisions and any other components not covered below, the General Counsel, Justice Management Division;
(b) For the Bureau of Prisons (BOP), the General Counsel, BOP;
(c) For the Drug Enforcement Administration (DEA), the Chief Counsel, DEA;
(d) For the Federal Bureau of Investigation (FBI), the Assistant Director, Legal Counsel Division;
(e) For the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the Chief Counsel, ATF;
(f) For the Immigration and Naturalization Service (INS), the General Counsel, INS; and
(g) For the United States Marshals Service (USMS), the Associate Director for Administration.
Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made:
(a) With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or
(b) With respect to (including relating to eligibility for):
(1) A contract with, or a bid or proposal for a contract with; or
(2) A grant, loan, or benefit from, the authority, or any State, political subdivision of a State, or other party, if the United States Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the Government will reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
§ 71.3 Basis for civil penalties and assessments.
(a) Any person shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each claim listed in paragraphs (a)(1) through (a)(4) of this section made before September 29, 1999, and not more than $5,500 for each such claim made on or after September 29, 1999, and not more than the applicable amount as provided in 28 CFR 85.5 for civil penalties assessed after August 1, 2016, for each such claim made after November 2, 2015, if that person makes a claim that the person knows or has reason to know:
(1) Is false, fictitious, or fraudulent;
(2) Includes, or is supported by, any written statement which asserts a material fact which is false, fictitious or fraudulent;
(3) Includes or is supported by, any written statement that
(i) Omits a material fact;
(ii) Is false, fictitious, or fraudulent as a result of such omission; and
(iii) Is a statement in which the person making such a statement has a duty to include such material fact; or
(4) Is for payment for the provision of property or services which the person has not provided as claimed.
(b) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.
(c) A claim shall be considered made to the authority, recipient, or party when such claim is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the authority, recipient, or party.
(d) Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid.
(e) If the Government has made any payment (including transferred property or provided services) on a claim, a person subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages sustained by the Government because of such claim.
(f) Any person shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each statement listed in paragraphs (f)(1) and (f)(2) of this section made before September 29, 1999, and not more than $5,500 for each such statement made on or after September 29, 1999, and not more than the applicable amount as provided in 28 CFR 85.5 for civil penalties assessed after August 1, 2016 for each such statement made after November 2, 2015, if that person makes a written statement that:
(1) The person knows or has reason to know
(i) Asserts a material fact which is false ficticious, or fraudulent; or
(ii) Is false, fictitious, or fraudulent because it omits a material fact that the person making the statement has a duty to include in such statement; and
(2) Contains, or is accompanied by, an express certification or affirmation of the truthfulness and accuracy of the contents of the statement.
(g) Each written representation, certification, or affirmation constitutes a separate statement.
(h) A statement shall be considered made to the authority when such statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the authority.
(i) No proof of specific intent to defraud is required to establish liability under this section.
(j) In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each such person may be held liable for a civil penalty under this section.
(k) In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has made payment (including transferred property or provided services), an assessment may be imposed against any such person or jointly and severally against any combination of such persons.
§ 71.4 Investigation.
(a) If an investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted, he may issue a subpoena.
(1) The subpoena so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued and shall identify the records or documents sought;
(2) The investigating official may designate a person to act on his or her behalf to receive the documents sought; and
(3) The person receiving such subpoena shall be required to tender to the investigating official, or the person designated to receive the documents, a certification that
(i) The documents sought have been produced;
(ii) Such documents are not available and the reasons therefor; or
(iii) Such documents, suitably identified, have been withheld based upon the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating official’s discretion to refer allegations within the Department of Justice for suit under the False Claims Act or other civil relief, or to defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the appropriate component of the Department.
§ 71.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under § 71.4(b), the reviewing official determines that there is adequate evidence to believe that a person is liable under § 71.3, the reviewing official shall transmit to the Assistant Attorney General, Civil Division, a written notice of the reviewing official’s intention to have a complaint issued under § 71.7. Such notice shall include
(1) A statement of the reviewing official’s reasons for issuing a complaint;
(2) A statement specifying the evidence that support the allegations of liability;
(3) A description of the claims or statements upon which the allegations of liability are based;
(4) An estimate of the amount of money, or the value of property, services, or other benefits, requested or demanded in violation of § 71.3 of this part;
(5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
§ 71.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under § 71.7 only if
(1) The Assistant Attorney General, Civil Division, approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1), and
(2) In the case of allegations of liability under § 71.3(a) with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in paragraph (b) of this section), the amount of money, or the value of property or services, demanded or requested in violation of § 71.3(a) does not exceed $150,000.
(b) For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand, or submission.
(c) Nothing in this section shall be construed to limit the reviewing official’s authority to join in a single complaint against a person claims that are unrelated or were not submitted simultaneously, regardless of the amount of money, or the value of property or services, demanded or requested.
§ 71.7 Complaint.
(a) On or after the date the Assistant Attorney General, Civil Division, approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in § 71.8.
(b) The complaint shall state the following:
(1) The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the defendant may be held liable;
(3) Instructions for filing an answer to request a hearing, including a specific statement of the defendant’s right to request a hearing by filing an answer and to be represented by a representative; and
(4) The fact that failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in § 71.10.
(c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations.
§ 71.8 Service of complaint.
(a) Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete upon receipt.
(b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging receipt; or
(3) Written acknowledgment of receipt by the defendant or his or her representative.
§ 71.9 Answer.
(a) The defendant may request a hearing by filing an answer with the reviewing official within 30 days of service of the complaint. An answer shall be deemed to be a request for hearing.
(b) In the answer, the defendant
(1) Shall admit or deny each of the allegations of liability made in the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and
(4) Shall state the name, address, and telephone number of the person authorized by the defendant to act as defendant’s representative, if any.
(c) If the defendant is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of paragraph (b) of this section. The reviewing official shall file promptly with the ALJ the complaint, the general answer denying liability, and the request for an extension of time as provided in § 71.11. For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph (b) of this section.
§ 71.10 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time prescribed in § 71.9(a), the reviewing official may refer the complaint to the ALJ.
(b) Upon the referral of the complaint, the ALJ shall promptly serve on the defendant in the manner prescribed in § 71.8, a notice that an initial decision will be issued under this section.
(c) The ALJ shall assume the facts alleged in the complaint to be true and, if such facts establish liability under § 71.3, the ALJ shall issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to file a timely answer the defendant waives any right to further review of the penalties and assessments imposed under paragraph (c) of this section and the initial decision shall become final and binding upon the parties 30 days after it is issued.
(e) If, before such an initial decision becomes final, the defendant files a motion with the ALJ seeking to reopen on the grounds that extraordinary circumstances prevented the defendant from filing an answer, the initial decision shall be stayed pending the ALJ’s decision on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary circumstances excusing the failure to file a timely answer, the ALJ shall withdraw the initial decision in paragraph (c) of this section, if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint.
(g) A decision of the ALJ denying a defendant’s motion under paragraph (e) of this section is not subject to reconsideration under § 71.38.
(h) The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
(i) If the defendant files a timely notice of appeal with the authority head, the ALJ shall forward the record of the proceeding to the authority head.
(j) The authority head shall decide expeditiously whether extraordinary circumstances excuse the defendant’s failure to file a timely answer based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances excused the defendant’s failure to file a timely answer, the authority head shall remand the case to the ALJ with instructions to grant the defendant an opportunity to answer.
(l) If the authority head decides that the defendant’s failure to file a timely answer is not excused, the authority head shall reinstate the initial decision of the ALJ, which shall become final and binding upon the parties 30 days after the authority head issues such decision.
§ 71.11 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ.
§ 71.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall promptly serve a notice of hearing upon the defendant in the manner prescribed by § 71.8. At the same time, the ALJ shall send a copy of such notice to the reviewing official or his designee.
(b) Such notice shall include
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative of the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
§ 71.13 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and the authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the False Claims Act may participate in these proceedings to the extent authorized by the provisions of that Act.
§ 71.14 Separation of functions.
(a) The investigating official, the reviewing official, and any employee or agent of the authority who takes part in investigating, preparing, or presenting a particular case may not, in such case or a factually related case.
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of the initial decision by the authority head, except as a witness or a representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C. 3806.
(b) The ALJ shall not be responsible to or subject to the supervision or direction of the investigating official or the reviewing official.
§ 71.15 Ex parte contacts.
No party or person (except employees of the ALJ’s office) shall communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures.
§ 71.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify himself or herself at any time.
(b) A party may file with the ALJ a motion for disqualification of a reviewing official or an ALJ. Such motion shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the party’s discovery of reasons requiring disqualification, or such objections shall be deemed waived.
(d) Such affidavit shall state specific facts that support the party’s belief that personal bias or other reason for disqualification exists and the time and circumstances of the party’s discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in good faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall proceed no further in the case until he or she resolves the matter of disqualification in accordance with this section.
(1) If the ALJ determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case shall be reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head may determine the matter only as part of his or her review of the initial decision upon appeal, if any.
§ 71.17 Rights of parties.
Except as otherwise limited by this part, all parties may
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which shall be made part of the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ; and
(h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing.
§ 71.18 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to
(1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to find Federal statutes or regulations invalid.
§ 71.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
(3) Stipulations and admissions of fact or as to the contents and authenticity of documents;
(4) Whether the parties can agree to submission of the case on a stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference.
§ 71.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 71.4(b) are based, unless such documents are subject to a privilege under Federal law. Upon payment of fees for duplication, the defendant may obtain copies of such documents.
(b) Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.
(c) The notice sent to the Assistant Attorney General, Civil Division, from the reviewing official as described in § 71.5 is not discoverable under any circumstances.
(d) The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 71.9.
§ 71.21 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and §§ 71.22 and 71.23, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
(c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.
(d) Motions for discovery are to be handled according to the following procedures:
(1) A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
(2) Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 71.24.
(3) The ALJ may grant a motion for discovery only if he or she finds that the discovery sought
(i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under § 71.24.
(e) Depositions are to be handled in the following manner:
(1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 71.8.
(3) The deponent may file with the ALJ within ten days of service a motion to quash the subpoena or a motion for a protective order.
(4) The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
§ 71.22 Exchange of witness lists, statements, and exhibits.
(a) At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with § 71.33(b). At the time the above documents are exchanged, any party that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the ALJ, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
(b) If a party objects, the ALJ may not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the ALJ finds good cause for the failure or that there is no prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of admissibility at the hearing.
§ 71.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
(c) A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the hearing unless otherwise allowed by the ALJ upon a showing of good cause. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner prescribed in § 71.8. A subpoena on a party or upon an individual under the control of a party may be served by first class mail.
(f) A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service.
§ 71.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery other than that requested;
(4) That certain matters not be the subject of inquiry, or that the scope of discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a sealed deposition be opened only by order of the ALJ;
(8) That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ.
§ 71.25 Fees.
The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena.
§ 71.26 Form, filing and service of papers.
(a) Form. Documents filed with the ALJ shall include an original and two copies. Every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the ALJ, and a designation of the paper (e.g., motion to quash subpoena). Every pleading and paper shall be signed by, and shall contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative.
(b) Filing. Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail.
(c) Service. A party filing a document with the ALJ shall, at the time of filing, serve a copy of such document on every other party. Service upon any party of any document other than those required to be served as prescribed in § 71.8 shall be made by delivering a copy or by placing a copy of the document in the United States mail, postage prepaid and addressed, to the party’s last known address. When a party is represented by a representative, service shall be made upon such representative in lieu of the actual party.
(d) Proof of service. A certificate of the individual serving the document by personal delivery or by mail, setting forth the manner of service, shall be proof of service.
§ 71.27 Computation of time.
(a) In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal government, in which event it includes the next business day.
(b) When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal government shall be excluded from the computation.
(c) Where a document has been served or issued by placing it in the mail, an additional five days will be added to the time permitted for any response.
§ 71.28 Motions.
(a) Any application to the ALJ for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties.
(b) Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The ALJ may require that oral motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to such motion.
(d) The ALJ may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.
§ 71.29 Sanctions.
(a) The ALJ may sanction a person, including any party or representative, for the following reasons:
(1) Failure to comply with an order, rule, or procedure governing the proceeding;
(2) Failure to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the proceeding.
(b) Any such sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party’s control, or a request for admission, the ALJ may
(1) Draw an inference in favor of the requesting party with regard to the information sought;
(2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments.
(e) The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion.
§ 71.30 The hearing and burden of proof.
(a) The ALJ shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under § 71.3 and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors.
(b) The authority shall prove defendant’s liability and any aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise closed by the ALJ for good cause shown.
§ 71.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, double damages and a significant civil penalty ordinarily should be imposed.
(b) Although not exhaustive, the following factors are among those that may influence the ALJ and the authority head in determining the amount of penalties and assessments to impose with respect to the misconduct (i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant’s culpability with respect to the misconduct;
(4) The amount of money or the value of the property, services, or benefit falsely claimed;
(5) The value of the Government’s actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;
(6) The relationship of the amount imposed as civil penalties to the amount of the Government’s loss;
(7) The potential or actual impact of the misconduct upon public confidence in the management of Government programs and operations;
(8) Whether the defendant has engaged in a pattern of the same or similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant’s practices fostered or attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting other wrongdoers;
(14) The complexity of the program or transaction, and the degree of the defendant’s sophistication with respect to it, including the extent of the defendant’s prior participation in the program or in similar transactions;
(15) Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a State, directly or indirectly; and
(16) The need to deter the defendant and others from engaging in the same or similar misconduct.
(c) Nothing in this section shall be construed to limit the ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed.
§ 71.32 Location of hearing.
(a) The hearing may be held:
(1) In any judicial district of the United States in which the defendant resides or transacts business;
(2) In any judicial district of the United States in which the claim or statement in issue was made; or
(3) In such other place as may be agreed upon by the defendant and the ALJ.
(b) Each party shall have the opportunity to present argument with respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered by the ALJ.
§ 71.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 71.22(a).
(c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to—
(1) Make the interrogation and presentation effective for the ascertainment of the truth,
(2) Avoid needless consumption of time, and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of the following:
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or employee of the party designated by the party’s representative; or
(3) An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.
§ 71.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided in this part, the ALJ shall not be bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The ALJ shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged under Federal law.
(f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence.
(h) All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the ALJ pursuant to § 71.24.
§ 71.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ at a cost not to exceed the actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the authority head.
(c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 71.24.
§ 71.36 Post-hearing briefs.
ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs.
§ 71.37 Initial decision.
(a) The ALJ shall issue an initial decision based only on the record, which shall contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the following issues:
(1) Whether the claims or statements identified in the complaint, or any portions thereof, violate § 71.3; and
(2) If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments considering any mitigating or aggravating factors that he or she finds in the case, such as those described in § 71.31.
(c) The ALJ shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The ALJ shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the authority head. If the ALJ fails to meet the deadline contained in this paragraph, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the authority head, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued by the ALJ.
§ 71.38 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail, receipt will be presumed to be five days from the date of mailing in the absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of the ALJ.
(d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial decision shall constitute the final decision of the authority head and shall be final and binding on all parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the authority head in accordance with § 71.39.
(g) If the ALJ issues a revised initial decision, that decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the authority head in accordance with § 71.39.
(a) Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the authority head by filing a notice of appeal with the authority head in accordance with this section.
(1) A notice of appeal may be filed at any time within 30 days after the ALJ issues an initial decision. However, if another party files a motion for reconsideration under § 71.38, consideration of the appeal shall be stayed automatically pending resolution of the motion for reconsideration.
(2) If a motion for reconsideration is timely filed, a notice of appeal may be filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever applies.
(3) The authority head may extend the initial 30 day period for an additional 30 days if the defendant files with the authority head a request for an extension within the initial 30 day period and shows good cause.
(b) If the defendant files a timely notice of appeal with the authority head and the time for filing motions for reconsideration under § 71.38 has expired, the ALJ shall forward the record of the proceeding to the authority head.
(c) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
(d) The representative for the Government may file a brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief.
(e) There is no right to appear personally before the authority head.
(f) There is no right to appeal any interlocutory ruling by the ALJ.
(g) In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the ALJ unless the objecting party can demonstrate extraordinary circumstances causing the failure to raise the objection.
(h) If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at such hearing is material and that there was reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the ALJ for consideration of such additional evidence.
(i) The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment, determined by the ALJ in any initial decision.
(j) The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of any person determined to be liable for a penalty or assessment to seek judicial review.
(k) Unless a petition for review is filed as provided in 31 U.S.C. 3805 after a defendant has exhausted all administrative remedies under this part and within 60 days after the date on which the authority head serves the defendant with a copy of the authority head’s decision, a determination that a defendant is liable under § 71.3 is final and not subject to judicial review.
§ 71.40 Stays ordered by the Department of Justice.
If at any time an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this part with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Assistant Attorney General who ordered the stay.
§ 71.41 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision of the authority head.
§ 71.42 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review.
§ 71.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions.
§ 71.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or for which a judgment has been entered under § 71.42 or § 71.43, or any amount agreed upon in a compromise or settlement under § 71.46, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this subsection against a refund of an overpayment of Federal taxes, then or later owing by the United States to the defendant.
§ 71.45 Deposit in Treasury of the United States.
All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g).
§ 71.46 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or settle a case under this part at any time after the date on which the ALJ issues an initial decision, except during the pendency of any review under § 71.42 or during the pendency of any action to collect penalties and assessments under § 71.43.
(d) The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under § 71.42 or of any action to recover penalties and assessments under 31 U.S.C. 3806.
(e) The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
§ 71.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must be served in the manner specified in § 71.8 within 6 years after the date on which such claim or statement is made.
(b) If the defendant fails to file a timely answer, service of a notice under § 71.10(b) shall be deemed a notice of hearing for purposes of this section.
(c) The statute of limitations may be extended by written agreement of the parties.
§§ 71.48-71.50 [Reserved]
Subpart B—Assignment of Responsibilities Regarding Actions by Other Agencies
§ 71.51 Purpose.
This subpart further implements the Program Fraud Civil Remedies Act of 1986. The Act authorizes the Attorney General, or certain officials whom the Attorney General may designate, to make determinations or otherwise act with respect to another agency’s exercise of the provisions of the Program Fraud Civil Remedies Act. See, e.g., 31 U.S.C. 3803(a)(2), 3803(b), 3805. This subpart designates officials within the Department of Justice who are authorized to exercise the authorities conferred upon the Attorney General by the Program Fraud Civil Remedies Act with respect to cases brought or proposed to be brought under it.
§ 71.52 Approval of Agency requests to initiate a proceeding.
(a) The Assistant Attorney General of the Civil Division is authorized to act on notices by an agency submitted to the Department of Justice pursuant to 31 U.S.C. 3803(a)(2) and, pursuant to the provisions of section 3803(b), to approve or disapprove the referral to an agency’s presiding officer of the allegations of liability stated in such notice.
(b) The Assistant Attorney General of the Civil Division may
(1) Require additional information prior to acting as set forth above, in which case the 90 day period shall be extended by the time necessary to obtain such additional information; and
(2) Impose limitations and conditions upon such approval or disapproval as may be warranted in his or her judgment.
§ 71.53 Stays of Agency proceedings at the request of the Department.
With respect to matters assigned to their divisions, the Assistant Attorneys General of the litigating divisions are authorized to determine that the continuation of any hearing under 31 U.S.C. 3803(b)(3) with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, and to so notify the authority head of this determination and thereafter to determine when such hearing may resume.
§ 71.54 Collection and compromise of liabilities imposed by Agency.
The Assistant Attorney General of the Civil Division is authorized to initiate actions to collect assessments and civil penalties imposed under the Program Fraud Civil Remedies Act of 1986, and, subsequent to the filing of a petition for judicial review pursuant to section 3805 of the Act, to defend such actions and/or to approve settlements and compromises of such liability.
PART 72—SEX OFFENDER REGISTRATION AND NOTIFICATION
§ 72.1 Purpose.
(a) This part specifies the registration requirements of the Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. 20901 et seq., and the scope of those requirements’ application. The Attorney General has the authority to specify the requirements of SORNA and their applicability as provided in this part pursuant to provisions of SORNA, including 34 U.S.C. 20912(b), 20913(d), and 20914(a)(8), (c).
(b) This part does not preempt or limit any obligations of or requirements relating to sex offenders under other Federal laws, rules, or policies, or under the laws, rules, or policies of registration jurisdictions or other entities. States and other governmental entities may prescribe registration requirements and other requirements, with which sex offenders must comply, that are more extensive or stringent than those prescribed by SORNA.
§ 72.2 Definitions.
All terms used in this part have the same meaning as in SORNA.
§ 72.3 Applicability of the Sex Offender Registration and Notification Act.
The requirements of SORNA apply to all sex offenders. All sex offenders must comply with all requirements of that Act, regardless of when the conviction of the offense for which registration is required occurred (including if the conviction occurred before the enactment of that Act), regardless of whether a jurisdiction in which registration is required has substantially implemented that Act’s requirements or has implemented any particular requirement of that Act, and regardless of whether any particular requirement or class of sex offenders is mentioned in examples in this regulation or in other regulations or guidelines issued by the Attorney General.
Example 1 to § 72.3. A sex offender is federally convicted of aggravated sexual abuse under 18 U.S.C. 2241 in 1990 and is released following imprisonment in 2009. The sex offender is subject to the requirements of SORNA and could be held criminally liable under 18 U.S.C. 2250 for failing to register or keep the registration current in any jurisdiction in which the sex offender resides, is an employee, or is a student.
Example 2 to § 72.3. A sex offender is convicted by a state jurisdiction in 1997 for molesting a child and is released following imprisonment in 2000. The sex offender initially registers as required but relocates to another state in 2009 and fails to register in the new state of residence. The sex offender has violated the requirement under SORNA to register in any jurisdiction in which he resides, and could be held criminally liable under 18 U.S.C. 2250 for the violation because he traveled in interstate commerce.
§ 72.4 Where sex offenders must register.
A sex offender must register, and keep the registration current, in each jurisdiction in which the offender resides, is an employee, or is a student. For initial registration purposes only, a sex offender must also register in the jurisdiction in which convicted if that jurisdiction is different from the jurisdiction of residence.
§ 72.5 How long sex offenders must register.
(a) Duration. A sex offender has a continuing obligation to register and keep the registration current (except when the sex offender is in custody or civilly committed) for the following periods of time:
(1) 15 years, if the offender is a tier I sex offender;
(2) 25 years, if the offender is a tier II sex offender; and
(3) The life of the offender, if the offender is a tier III sex offender.
(b) Commencement. The registration period begins to run:
(1) When a sex offender is released from imprisonment following conviction for the offense giving rise to the registration requirement, including in cases in which the term of imprisonment is based wholly or in part on the sex offender’s conviction for another offense; or
(2) If the sex offender is not sentenced to imprisonment, when the sex offender is sentenced for the offense giving rise to the registration requirement.
(c) Reduction. If a tier I sex offender has maintained for 10 years a clean record, as described in 34 U.S.C. 20915(b)(1), the period for which the sex offender must register and keep the registration current under paragraph (a) of this section is reduced by 5 years. If a tier III sex offender required to register on the basis of a juvenile delinquency adjudication has maintained a clean record, as described in 34 U.S.C. 20915(b)(1), for 25 years, the period for which the sex offender must register and keep the registration current under paragraph (a) of this section is reduced to the period for which the clean record has been maintained.
§ 72.6 Information sex offenders must provide.
Sex offenders must provide the following information for inclusion in the sex offender registries of the jurisdictions in which they are required to register:
(a) Name, date of birth, and Social Security number. (1) The name of the sex offender, including any alias used by the sex offender.
(2) The sex offender’s date of birth and any date that the sex offender uses as his purported date of birth.
(3) The Social Security number of the sex offender and any number that the sex offender uses as his purported Social Security number.
(b) Remote communication identifiers. All designations the sex offender uses for purposes of routing or self-identification in internet or telephonic communications or postings, including email addresses and telephone numbers.
(c) Residence, temporary lodging, employment, and school attendance. (1) The address of each residence at which the sex offender resides or will reside or, if the sex offender has no present or expected residence address, other information describing where the sex offender resides or will reside with whatever definiteness is possible under the circumstances.
(2) Information about any place in which the sex offender is staying when away from his residence for seven or more days, including the identity of the place and the period of time the sex offender is staying there.
(3) The name and address of any place where the sex offender is or will be an employee or, if the sex offender is or will be employed but with no fixed place of employment, other information describing where the sex offender works or will work with whatever definiteness is possible under the circumstances.
(4) The name and address of any place where the sex offender is a student or will be a student.
(d) International travel. Information relating to intended travel outside the United States, including any anticipated itinerary, dates and places of departure from, arrival in, or return to the United States and each country visited, carrier and flight numbers for air travel, destination country or countries and address or other contact information therein, and means and purpose of travel.
(e) Passports and immigration documents. Information about each passport the sex offender has and, if the sex offender is an alien, information about any document or documents establishing the sex offender’s immigration status, including passport or immigration document type and number.
(f) Vehicle information. The license plate number and a description of any vehicle owned or operated by the sex offender, including watercraft and aircraft in addition to land vehicles. If a vehicle has no license plate but has some other type of registration number or identifier, then the registration number or identifier must be provided. Information must also be provided as to where any vehicle owned or operated by the sex offender is habitually parked, docked, or otherwise kept.
(g) Professional licenses. Information concerning all licensing of the sex offender that authorizes the sex offender to engage in an occupation or carry out a trade or business.
§ 72.7 How sex offenders must register and keep the registration current.
(a) Initial registration—(1) In general. Except as provided in paragraph (a)(2) of this section, a sex offender must register before release from imprisonment following conviction for the offense giving rise to the registration requirement, or, if the sex offender is not sentenced to imprisonment, within three business days after being sentenced for that offense.
(2) Special rules for certain cases. The following special requirements apply:
(i) Federal and military offenders. A sex offender who is released from Federal or military custody, or who is convicted for a Federal or military sex offense but not sentenced to imprisonment, must register within three business days of entering or remaining in a jurisdiction to reside following the release or sentencing.
(ii) Foreign convictions. A sex offender required to register on the basis of a conviction in a foreign country must register within three business days of entering any jurisdiction in the United States to reside, work, or attend school.
(b) Periodic in-person verification. A sex offender must appear in person, allow the jurisdiction to take a current photograph, and verify the information in each registry in which the offender is required to register. In carrying out the required verification of information in each registry, the sex offender must correct any information that has changed or is otherwise inaccurate and must report any new registration information. A sex offender must appear in person for these purposes not less frequently than—
(1) Each year, if the offender is a tier I sex offender;
(2) Every six months, if the offender is a tier II sex offender; and
(3) Every three months, if the offender is a tier III sex offender.
(c) Reporting of initiation and changes concerning name, residence, employment, and school attendance. A sex offender who enters a jurisdiction to reside, or who resides in a jurisdiction and changes his name or his place of residence in the jurisdiction, must appear in person in that jurisdiction and register or update the registration within three business days. A sex offender who commences employment or school attendance in a jurisdiction, or who changes employer, school attended, or place of employment or school attendance in a jurisdiction, must appear in person in that jurisdiction and register or update the registration within three business days.
(d) Reporting of departure and termination concerning residence, employment, and school attendance. (1) A sex offender residing in a jurisdiction must inform that jurisdiction (by whatever means the jurisdiction allows) if the sex offender will be commencing residence, employment, or school attendance in another jurisdiction or outside of the United States. The sex offender must so inform the jurisdiction in which he is residing prior to any termination of residence in that jurisdiction and prior to commencing residence, employment, or school attendance in the other jurisdiction or outside of the United States.
(2) A sex offender who will be terminating residence, employment, or school attendance in a jurisdiction must so inform that jurisdiction (by whatever means the jurisdiction allows) prior to the termination of residence, employment, or school attendance in the jurisdiction.
(e) Reporting of changes in information relating to remote communication identifiers, temporary lodging, and vehicles. A sex offender must report within three business days to his residence jurisdiction (by whatever means the jurisdiction allows) any change in remote communication identifier information, as described in § 72.6(b), temporary lodging information, as described in § 72.6(c)(2), and any change in vehicle information, as described in § 72.6(f).
(f) Reporting of international travel. A sex offender must report intended travel outside the United States, including the information described in § 72.6(d), to his residence jurisdiction (by whatever means the jurisdiction allows). The sex offender must report the travel information to the jurisdiction at least 21 days in advance of the intended travel and, if the sex offender is terminating his residence in the jurisdiction, prior to his termination of residence in the jurisdiction.
(g) Compliance with jurisdictions’ requirements for registering and keeping the registration current. (1) A sex offender who does not comply with a requirement of SORNA in conformity with the time and manner specifications of paragraphs (a) through (f) of this section must comply with the requirement in conformity with any applicable time and manner specifications of a jurisdiction in which the offender is required to register.
Example 1 to paragraph (g)(1). A sex offender convicted in a state does not initially register before release from imprisonment, as required by 34 U.S.C. 20913(b)(1) and paragraph (a)(1) of this section, because the state has no procedure for pre-release registration of sex offenders. Instead, the state informs sex offenders that they must go to a local police station within seven days of release to register. The sex offender must comply with the state’s requirements for initial registration, i.e., the offender must report to the police station to register within seven days of release.
Example 2 to paragraph (g)(1). A sex offender does not register when he is released from custody, or does not register upon entering a jurisdiction to reside as required by 34 U.S.C. 20913(c) and paragraph (c) of this section, because the jurisdiction, at the time, does not register sex offenders based on the offense for which he was convicted. The jurisdiction later sends the sex offender a notice advising that it has extended its registration requirements to include sex offenders like him and directing him to report to a specified agency within 90 days to register. The sex offender must report to the agency to register within the specified timeframe.
Example 3 to paragraph (g)(1). A sex offender registers as required when released from imprisonment or upon entering a jurisdiction to reside, but the jurisdiction has no procedure for sex offenders to appear periodically in person to update and verify the registration information as required by 34 U.S.C. 20918 and paragraph (b) of this section. The jurisdiction later sends the sex offender a notice advising that it has adopted a periodic verification requirement and directing the sex offender to appear at a designated time and place for an initial update meeting. The sex offender must appear and update the registration as directed.
Example 4 to paragraph (g)(1). A sex offender does not report his email address to the jurisdiction in which he resides when he initially registers, or within three business days of a change as required by paragraph (e) of this section, because email addresses are not among the information the jurisdiction accepts for inclusion in its registry. The jurisdiction later notifies the sex offender that it has extended the registration information it collects to include email addresses and directs him to send a reply within a specified time that provides his current email address. The sex offender must comply with this direction.
(2) In a prosecution under 18 U.S.C. 2250, paragraph (g)(1) of this section does not in any case relieve a sex offender of the need to establish as an affirmative defense an inability to comply with SORNA because of circumstances beyond his control as provided in 18 U.S.C. 2250(c) and § 72.8(a)(2).
§ 72.8 Liability for violations.
(a) Criminal liability—(1) Offense. (i) A sex offender may be liable to criminal penalties under 18 U.S.C. 2250(a) if the sex offender—
(A) Is required to register under SORNA;
(B)(1) Is a sex offender as defined for the purposes of SORNA by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(2) Travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(C) Knowingly fails to register or update a registration as required by SORNA.
(ii) A sex offender may be liable to criminal penalties under 18 U.S.C. 2250(b) if the sex offender—
(A) Is required to register under SORNA;
(B) Knowingly fails to provide information required by SORNA relating to intended travel in foreign commerce; and
(C) Engages or attempts to engage in the intended travel in foreign commerce.
(iii) As a condition of liability under 18 U.S.C. 2250(a)-(b) for failing to comply with a requirement of SORNA, a sex offender must have been aware of the requirement he is charged with violating, but need not have been aware that the requirement is imposed by SORNA.
(2) Defense. A sex offender may have an affirmative defense to liability, as provided in 18 U.S.C. 2250(c), if uncontrollable circumstances prevented the sex offender from complying with SORNA, where the sex offender did not contribute to the creation of those circumstances in reckless disregard of the requirement to comply and complied as soon as the circumstances preventing compliance ceased to exist.
Example 1 to paragraph (a)(2). A sex offender changes residence from one jurisdiction to another, bringing into play SORNA’s requirement to register in each jurisdiction where the sex offender resides and SORNA’s requirement to appear in person and report changes of residence within three business days. See 34 U.S.C. 20913(a), (c). The sex offender attempts to comply with these requirements by contacting the local sheriff’s office, which is responsible for sex offender registration in the destination jurisdiction. The sheriff’s office advises that it cannot schedule an appointment for him to register within three business days but that he should come by in a week. The sex offender would have a defense to liability if he appeared at the sheriff’s office at the appointed time and registered as required. The sex offender’s temporary inability to register and inability to report the change of residence within three business days in the new residence jurisdiction was due to a circumstance beyond his control—the sheriff office’s refusal to meet with him until a week had passed—and he complied with the requirement to register as soon as the circumstance preventing compliance ceased to exist.
Example 2 to paragraph (a)(2). A sex offender cannot register in a state in which he resides because its registration authorities will not register offenders on the basis of the offense for which the sex offender was convicted. The sex offender would have a defense to liability because the state’s unwillingness to register sex offenders like him is a circumstance beyond his control. However, if the sex offender failed to register after becoming aware of a change in state policy or practice allowing his registration, the 18 U.S.C. 2250(c) defense would no longer apply, because in such a case the circumstance preventing compliance with the registration requirement would no longer exist.
Example 3 to paragraph (a)(2). A sex offender needs to travel to a foreign country on short notice—less than 21 days—because of an unforeseeable family or work emergency. The sex offender would have a defense to liability for failing to report the intended travel 21 days in advance, as required by § 72.7(f), because it is impossible to report an intention to travel outside the United States before the intention exists. However, if the sex offender failed to inform the registration jurisdiction (albeit on short notice) once he intended to travel, 18 U.S.C. 2250(c) would not excuse that failure, because the preventing circumstance—absence of an intent to travel abroad—would no longer exist.
(b) Supervision condition. For a sex offender convicted of a Federal offense, compliance with SORNA is a mandatory condition of probation, supervised release, and parole. The release of such an offender who does not comply with SORNA may be revoked.
PART 73—NOTIFICATIONS TO THE ATTORNEY GENERAL BY AGENTS OF FOREIGN GOVERNMENTS
§ 73.1 Definition of terms.
(a) The term agent means all individuals acting as representatives of, or on behalf of, a foreign government or official, who are subject to the direction or control of that foreign government or official, and who are not specifically excluded by the terms of the Act or the regulations thereunder.
(b) The term foreign government includes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and includes any subdivision of any such group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated. Such term shall include any faction or body of insurgents within a country assuming to exercise governmental authority whether such faction or body of insurgents has or has not been regarded by the United States as a governing authority.
(c) The term prior notification means the notification letter, telex, or facsimile must be received by the addressee named in § 73.3 prior to commencing the services contemplated by the parties.
(d) When used in 18 U.S.C. 951(d)(1), the term duly accredited means that the sending State has notified the Department of State of the appointment and arrival of the diplomatic or consular officer involved, and the Department of State has not objected.
(e) When used in 18 U.S.C. 951(d) (2) and/or (3), the term officially and publicly acknowledged and sponsored means that the person described therein has filed with the Secretary of State a fully-executed notification of status with a foreign government; or is a visitor, officially sponsored by a foreign government, whose status is known and whose visit is authorized by an agency of the United States Government; or is an official of a foreign government on a temporary visit to the United States, for the purpose of conducting official business internal to the affairs of that foreign government; or where an agent of a foreign government is acting pursuant to the requirements of a Treaty, Executive Agreement, Memorandum of Understanding, or other understanding to which the United States or an agency of the United States is a party and which instrument specifically establishes another mechanism for notification of visits by agents and the terms of such visits.
(f) The term legal commercial transaction, for the purpose of 18 U.S.C. 951(d)(4), means any exchange, transfer, purchase or sale, of any commodity, service or property of any kind, including information or intellectual property, not prohibited by federal or state legislation or implementing regulations.
§ 73.2 Exceptions.
(a) The exemption provided in 18 U.S.C. 951(d)(4) for a “legal commercial transaction” shall not be available to any person acting subject to the direction or control of a foreign government or official where such person is an agent of Cuba or any other country that the President determines (and so reports to the Congress) poses a threat to the national security interest of the United States for purposes of 18 U.S.C. 951; or has been convicted of or entered a plea of nolo contendere to any offense under 18 U.S.C. 792-799, 831, or 2381, or under section 11 of the Export Administration Act of 1979, 50 U.S.C. app. 2410.
(b) The provisions of 18 U.S.C. 951(e)(2)(A) do not apply if the Attorney General, after consultation with the Secretary of State, determines and reports to Congress that the national security or foreign policy interests of the United States require that these provisions do not apply in specific circumstances to agents of such country.
(c) The provisions of 18 U.S.C. 951(e)(2)(B) do not apply to a person described in this clause for a period of more than five years beginning on the date of the conviction or the date of entry of the plea of nolo contendere.
§ 73.3 Form of notification.
(a) Notification shall be made by the agent in the form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of the National Security Division, except for those agents described in paragraphs (b) and (c) of this section. The document shall state that it is a notification under 18 U.S.C. 951, and provide the name or names of the agent making the notification, the firm name, if any, and the business address or addresses of the agent, the identity of the foreign government or official for whom the agent is acting, and a brief description of the activities to be conducted for the foreign government or official and the anticipated duration of the activities. Each notification shall contain a certification, pursuant to 28 U.S.C. 1746, that the notification is true and correct.
(b) Notification by agents engaged in law enforcement investigations or regulatory agency activity shall be in the form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of Interpol-United States National Central Bureau. Notification by agents engaged in intelligence, counterintelligence, espionage, counterespionage or counterterrorism assignment or service shall be in the form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of the nearest FBI Legal Attache. In case of exceptional circumstances, notification shall be provided contemporaneously or as soon as reasonably possible by the agent or the agent’s supervisor. The letter, telex, or facsimile shall include the information set forth in paragraph (a) of this section.
(c) Notification made by agents engaged in judicial investigations pursuant to treaties or other mutual assistance requests or letters rogatory, shall be made in the form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of the Office of International Affairs, Criminal Division. The letter, telex, or facsimile shall include the information set forth in paragraph (a) of this section.
(d) Any subsequent change in the information required by paragraph (a) of this section shall require a notification within 10 days of the change.
(e) Notification under 18 U.S.C. 951 shall be effective only if it has been done in compliance with this section, or if the agent has filed a registration under the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611, et seq., which provides the information required by paragraphs (a) and (d) of this section.
§ 73.4 Partial compliance not deemed compliance.
The fact that a notification has been filed shall not necessarily be deemed full compliance with 18 U.S.C. 951 or these regulations on the part of the agent; nor shall it indicate that the Attorney General has in any way passed on the merits of such notification or the legality of the agent’s activities; nor shall it preclude prosecution, as provided for in 18 U.S.C. 951, for failure to file a notification when due, or for a false statement of a material fact therein, or for an omission of a material fact required to be stated therein.
§ 73.5 Termination of notification.
(a) An agent shall, within 30 days after the termination of his agency relationship, advise the Attorney General of such change.
(b) All notifications pursuant to this part will automatically expire five years from the date of the most recent notification.
(c) An agent, whose notification expires pursuant to (b) above, must file a new notification within 10 days if the relationship continues.
§ 73.6 Relation to other statutes.
The filing of a notification under this section shall not be deemed compliance with the requirements of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611, et seq., nor compliance with any other statute.
PART 74—CIVIL LIBERTIES ACT REDRESS PROVISION
Subpart A—General
§ 74.1 Purpose.
The purpose of this part is to implement section 105 of the Civil Liberties Act of 1988, which authorizes the Attorney General to locate, identify, and make payments to all eligible individuals of Japanese ancestry who were evacuated, relocated, and interned during World War II as a result of government action.
§ 74.2 Definitions.
(a) The Act means the Civil Liberties Act of 1988, Public Law 100-383, 102 Stat. 903, as codified at 50 U.S.C. app. 1989b et seq., (August 10, 1988).
(b) The Administrator means the Administrator in charge of the Office of Redress Administration of the Civil Rights Division.
(c) Assembly centers and relocation centers means those facilities established pursuant to the acts described in § 74.4(i)-(ii).
(d) Child of an eligible individual means a recognized natural child, an adopted child, or a step-child who lived with the eligible person in a regular parent-child relationship.
(e) The Commission means the Commission on Wartime Relocation and Internment of Civilians established by the Commission on Wartime Relocation and Internment Act, 50 U.S.C. app. 1981 note.
(f) Evacuation, relocation, and internment period means that period beginning December 7, 1941, and ending June 30, 1946.
(g) The Fund means the Civil Liberties Public Education Fund in the Treasury of the United States administered by the Secretary of the Treasury pursuant to section 104 of the Civil Liberties Act of 1988.
(h) The Office means the Office of Redress Administration established in the Civil Rights Division of the U.S. Department of Justice to execute the responsibilities and duties assigned the Attorney General pursuant to section 105 of the Civil Liberties Act of 1988.
(i) Parent of an eligible individual means the natural father and mother, or fathers and mothers through adoption.
(j) The Report means the published report by the Commission on Wartime Relocation and Internment of Civilians of its findings and recommendations entitled, Personal Justice Denied, Part I and Part II.
(k) Spouse of an eligible individual means a wife or husband of an eligible individual who was married to that eligible person for at least one year immediately before the death of the eligible individual.
Subpart B—Standards of Eligibility
§ 74.3 Eligibility determinations.
(a) An individual is found to be eligible if such an individual:
(1) Is of Japanese ancestry; and
(2) Was living on the date of enactment of the Act, August 10, 1988; and
(3) During the evacuation, relocation, and internment period was—
(i) A United States citizen; or
(ii) A permanent resident alien who was lawfully admitted into the United States; or
(iii) An alien, who after the evacuation, relocation and internment period, was permitted by applicable statutes to obtain the status of permanent resident alien extending to the internment period; and
(4) Was confined, held in custody, relocated, or otherwise deprived of liberty or property as a result of—
(i) Executive Order 9066, dated February 19, 1942;
(ii) The Act entitled “An Act to provide a penalty for violation of restrictions or orders with respect to persons entering, remaining, leaving, or committing any act in military areas or zones,” approved March 21, 1942; or
(iii) Any other Executive order, Presidential proclamation, law of the United States, directive of the Armed Forces of the United States, or other action taken by or on behalf of the United States or its agents, representatives, officers, or employees, respecting the evacuation, relocation, or internment of individuals solely on the basis of Japanese ancestry.
(b) The following individuals are deemed to have suffered a loss within the meaning of paragraph (a)(4) of this section:
(1) Individuals who were interned under the supervision of the wartime Relocation Authority, the Department of Justice or the United States Army; or
(2) Individuals enrolled on the records of the United States Government during the period beginning on December 7, 1941, and ending June 30, 1946, as being in a prohibited military zone, including those individuals who, during the voluntary phase of the government’s evacuation program between the issuance of Public Proclamation No. l on March 2, 1942, and the enforcement of Public Proclamation No. 4 on March 29, 1942, filed a “Change of Residence” card with the Wartime Civil Control Administration; or
(3) Individuals ordered by the Navy to leave Bainbridge Island, off the coast of the State of Washington, or Terminal Island, near San Pedro, California; or
(4) Individuals who were members of the Armed Forces of the United States at the time of the evacuation and internment period and whose domicile was in a prohibited zone and as a result of the government action lost property; or
(5) Individuals who were members of the Armed Forces of the United States at the time of the evacuation and internment period and were prohibited by government regulations from visiting their interned families or forced to submit to undue restrictions amounting to a deprivation of liberty prior to visiting their families; or
(6) Individuals who, after March 29, 1942, evacuated and relocated from the West Coast as a result of government action, including those who obtained written permission to travel to a destination outside of the unauthorized areas from the Western Defense Command and the Fourth Army; or
(7) Individuals born in assembly centers, relocation centers or internment camps to parents of Japanese ancestry who had been evacuated, relocated or interned pursuant to paragraph (a)(4) of this section, including children born in the United States to parents of Japanese ancestry who were relocated to the United States from other countries in the Americas during the internment period; or
(8) Individuals who, prior to or at the time of evacuation, relocation or internment period, were in institutions, such as a hospital, pursuant to acts described in paragraph (a)(4) and, were placed under the custody of the Wartime Relocation Authority and confined within the grounds of the institution and not permitted to return to their homes or to go anywhere else.
(9) Individuals born on or before January 20, 1945, to a parent or parents who had been evacuated, relocated, or interned from his or her original place of residence in the prohibited military zones on the West Coast, on or after March 2, 1942, pursuant to paragraph (a)(4) of this section, and who were excluded by Executive Order 9066 or military proclamations issued under its authority, from their parent’s or parents’ original place of residence in the prohibited military zones on the West Coast. This also includes those individuals who were born to a parent or parents who had “voluntarily” evacuated from his or her original place of residence in the prohibited military zones on the West Coast, on or after March 2, 1942, pursuant to paragraph (b)(3) of this section, and who were excluded by Executive Order 9066 or military proclamations issued under its authority, from their parent’s or parents’ original place of residence in the prohibited military zones on the West Coast.
(c) Paragraph (b) of this section is not an exhaustive list of individuals who are deemed eligible for compensation; there may be other individuals determined to be eligible under the Act on a case-by-case basis by the Redress Administrator.
§ 74.4 Individuals excluded from compensation pursuant to section 108(B) of the Act.
(a) The term “eligible individual” does not include any individual who, during the period beginning on December 7, 1941, and ending on September 2, 1945, relocated to a country while the United States was at war with that country.
(b) Nothing in paragraph (a) of this section is meant to exclude from eligibility any person who, during the period beginning on December 7, 1941, and ending on September 2, 1945, relocated to a country while the United States was at war with that country, and who had not yet reached the age of 21 and was not emancipated as of the date of departure from the United States, provided that such person is otherwise eligible for redress under these regulations and the following standards:
(1) Persons who were 21 years of age or older, or emancipated minors, on the date they departed the United States for Japan are subject to an irrebuttable presumption that they relocated to Japan voluntarily and will be ineligible.
(2) Persons who served in the active military service on behalf of the Government of Japan or an enemy government during the period beginning on December 7, 1941, and ending on September 2, 1945, are subject to an irrebuttable presumption that they departed the United States voluntarily for Japan. If such individuals served in the active military service of an enemy country, they must inform the Office of such service and, as a result, will be ineligible.
Subpart C—Verification of Eligibility
§ 74.5 Identification of eligible persons.
(a) The Office shall establish an information system with names and other identifying information of potentially eligible individuals from the following sources:
(1) Official sources:
(i) The National Archives;
(ii) The Department of Justice;
(iii) The Social Security Administration;
(iv) Internal Revenue Service;
(v) University libraries;
(vi) State and local libraries;
(vii) State and local historical societies;
(viii) State and local agencies.
(2) Unofficial sources:
(i) Potentially eligible individuals;
(ii) Eligible individuals, relatives, legal guardians, representatives, or attorneys;
(iii) Civic associations;
(iv) Religious organizations;
(v) Such other sources that the Administrator determines are appropriate.
(b) Historic information pertaining to individuals listed in official United States Government records will be analyzed to determine if such persons are eligible for compensation as set forth in section 108 of the Act.
(c) Persons not listed in the historic records of the United States Government who volunteer information pertaining to their eligibility may be required by the Administrator to submit affidavits and documentary evidence to support assertions of eligibility.
§ 74.6 Location of eligible persons.
The Office shall compare the names and other identifying information of eligible individuals from the historical official records of the United States Government with current information from both official and unofficial sources in the information system to determine if such persons are living or deceased and, if living, the present location of these individuals.
Subpart D—Notification and Payment
§ 74.7 Notification of eligibility.
(a) Each individual who has been found to be eligible or their statutory heirs will be sent written notification of such status by the Office. Enclosed with the notification will be a declaration to be completed by the person so notified, or by his or her legal guardian, and a request for documentation of identity.
(b) The declaration and submitted documents (appendix A to part 74) will be used for a final verification of eligibility in order to ensure that the person identified as eligible by the Office is in fact the person who will receive payment, and shall include a request for the following information:
(1) Current legal name;
(2) Proof of name change if the current legal name is different from the name used when evacuated or interned, such as a marriage certificate or other evidence of the name change as described in appendix A;
(3) Date of birth;
(4) Proof of date of birth as set forth in appendix A;
(5) Current address;
(6) Proof of current address as set forth in appendix A;
(7) Current telephone number;
(8) Social Security Number;
(9) Name when evacuated or interned;
(10) Proof of guardianship by a person executing a declaration on behalf of an eligible person as set forth in appendix A.
(11) Proof of the relationship to a deceased eligible individual by a statutory heir as set forth in § 74.13 and appendix A;
(12) Proof of the death of a deceased eligible person as set forth in appendix A.
(c) The individual must submit a signed and dated statement swearing under penalty of perjury to the truth of all the information provided on the declaration. A natural or legal guardian, or any other person, including the spouse of an eligible person, who the Administrator determines is charged with the care of the individual, may submit a signed and dated statement on behalf of the eligible individual who is incompetent or otherwise under a legal disability.
(d) Upon receipt of an individual’s declaration and documentation, the Administrator shall make a determination of verification of the identity of the eligible person.
(e) Each person determined not to be preliminarily eligible after review of the submitted documentation will be notified by the Redress Administrator of the finding of ineligibility and the right to petition for a reconsideration of such a finding.
§ 74.8 Notification of payment.
The Administrator shall, when funds are appropriated for payment, notify an eligible individual in writing of his or her eligibility for payment. Section 104 of the Act limits any appropriation to not more than $500,000,000 for any fiscal year.
§ 74.9 Conditions of acceptance of payment.
(a) Each eligible individual will be deemed to have accepted payment if, after receiving notification of eligibility from the Redress Administrator, the eligible individual does not refuse payment in the manner described in § 74.11.
(b) Acceptance of payment shall be in full satisfaction of all claims arising out of the acts described in § 74.3(a)(4).
§ 74.10 Authorization for payment.
(a) Upon determination by the Administrator of the eligibility of an individual, the authorization for payment of $20,000 to the eligible individual will be certified by the Assistant Attorney General of the Civil Rights Division to the Assistant Attorney General of the Justice Management Division, who will give final authorization to the Secretary of the Treasury for payment out of the funds appropriated for this purpose.
(b) Authorization of payments made to survivors of eligible persons will be certified in the manner described in paragraph (a) of this section to the Secretary of the Treasury for payment to the individual member or members of the class of survivors entitled to receive payment under the procedures set forth in § 74.13. Payments to statutory heirs of a deceased eligible individual will be made only after all the statutory heirs of the deceased person have been identified and verified by the Office.
(c) Any payment to an eligible person under a legal disability, may, in the discretion of the Assistant Attorney General for Civil Rights, be certified for payment for the use of the eligible person, to the natural or legal guardian, committee, conservator or curator, or, if there is no such natural or legal guardian, committee, conservator or curator, to any other person, including the spouse of such eligible person, who the Administrator determines is charged with the care of the eligible person.
§ 74.11 Effect of refusal to accept payment.
If an eligible individual who has been notified by the Administrator of his or her eligibility refuses in writing within eighteen months of the notification to accept payment, the written record of refusal will be filed with the Office and the amount of payment as described in § 74.10 shall remain in the Fund and no payment may be made as described in § 74.12 to such individual or his or her survivors at any time after the date of receipt of the written refusal.
§ 74.12 Order of payment.
Payment will be made in the order of date of birth pursuant to section 105(b) of the Act. Therefore, when funds are appropriated, payment will be made to the oldest eligible individual living on the date of the enactment of the Act, August 10, 1988, (or his or her statutory heirs) who has been located by the Administrator at that time. Payments will continue to be made until all eligible individuals have received payment.
§ 74.13 Payment in the case of a deceased eligible individual.
In the case of an eligible individual as described in § 74.3 who is deceased, payment shall be made only as follows—
(a) If the eligible individual is survived by a spouse who is living at the time of payment, such payment shall be made to such surviving spouse.
(b) If there is no surviving spouse as described in paragraph (a) of this subsection, such payment shall be made in equal shares to all children of the eligible individual who are living at the time of payment.
(c) If there is no surviving spouse described in paragraph (a) of this section, and if there are no surviving children as described in paragraph (b) of this section, such payment shall be made in equal shares to the parents of the deceased eligible individual who are living at the time of payment.
(d) If there are no surviving spouses, children or parents as described in paragraphs (a), (b), and (c) of this section, the amount of such payment shall remain in the Fund and may be used only for the purposes set forth in section 106(b) of the Act.
§ 74.14 Determination of the relationship of statutory heirs.
(a) A spouse of a deceased eligible individual must establish his or her marriage by one (or more) of the following:
(1) A copy of the public record of marriage, certified or attested;
(2) An abstract of the public record, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or other public official authorized to certify the record;
(3) A certified copy of the religious record of marriage;
(4) The official report from a public agency as to a marriage which occurred while the deceased eligible individual was employed by such agency;
(5) An affidavit of the clergyman or magistrate who officiated;
(6) The original certificate of marriage accompanied by proof of its genuineness;
(7) The affidavits or sworn statements of two or more eyewitnesses to the ceremony;
(8) In jurisdictions where “Common Law” marriages are recognized, the affidavits or certified statements of the spouse setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage, including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife and whether they were generally accepted as such in the communities in which they lived; or
(9) Any other evidence which would reasonably support a finding by the Administrator that a valid marriage actually existed.
(b) A child should establish that he or she is the child of a deceased eligible individual by one of the following types of evidence:
(1) A birth certificate showing that the deceased eligible individual was the child’s parent;
(2) An acknowledgment in writing signed by the deceased eligible individual;
(3) Evidence that the deceased eligible individual has been identified as the child’s parent by a judicial decree ordering the deceased eligible individual to contribute to the child’s support or for other purposes; or
(4) Any other evidence that reasonably supports a finding of a parent-child relationship, such as—
(i) A certified copy of the public record of birth or a religious record showing that the deceased eligible individual was the informant and was named as the parent of the child;
(ii) Affidavits or sworn statements of a person who knows that the deceased eligible individual accepted the child as his or hers; or
(iii) Information obtained from public records or a public agency, such as school or welfare agencies, which shows that with the deceased eligible individual’s knowledge, the deceased eligible individual was named as the parent of the child.
(c) Except as may be provided in paragraph (b) of this section, evidence of the relationship by an adopted child must be shown by a certified copy of the decree of adoption. In jurisdictions where petition must be made to the court for release of adoption documents or information, or where the release of such documents or information is prohibited, a revised birth certificate will be sufficient to establish the fact of adoption.
(d) The relationship of a step-child to a deceased eligible individual shall be demonstrated by—
(1) Evidence of birth to the spouse of the deceased eligible individual as required by paragraphs (e) and (f) of this section;
(2) Evidence of adoption as required by section (b) of this section when the step-child was adopted by the spouse;
(3) Other evidence which reasonably supports the finding of a parent-child relationship between the child and the spouse;
(4) Evidence that the step-child was either living with or in a parent-child relationship with the deceased eligible individual at the time of the eligible individual’s death; and
(5) Evidence of the marriage of the deceased eligible individual and the step-child’s natural or adoptive parent, as required by paragraph (a) of this section.
(e) A parent of a deceased eligible individual may establish his or her parenthood of the deceased eligible individual by providing one of the following types of evidence:
(1) A birth certificate that shows the person to be the deceased eligible individual’s parent;
(2) An acknowledgment in writing signed by the person before the eligible individual’s death; or
(3) Any other evidence which reasonably supports a finding of such a parent-child relationship, such as—
(i) A certified copy of the public record of birth or a religious record showing that the person was the informant and was named as the parent of the deceased eligible individual;
(ii) Affidavits or sworn statements of persons who know the person had accepted the deceased eligible individual as his or her child; or
(iii) Information obtained from public records or a public agency such as school or welfare agencies, which shows that with the deceased eligible individual’s knowledge, the person had been named as parent of the child.
(f) An adoptive parent of a deceased eligible individual must show one of the following as evidence—
(1) A certified copy of the decree of adoption and such other evidence as may be necessary; or
(2) In jurisdictions where petition must be made to the court for release of such documents or information, or where release of such documents or information is prohibited, a revised birth certificate showing the person as the deceased eligible individual’s parent will suffice.
Subpart E—Appeal Procedures
§ 74.15 Notice of the right to appeal a finding of ineligibility.
Persons determined to be ineligible by the Administrator will be notified in writing of the determination, the right to petition for a reconsideration of the determination of ineligibility to the Assistant Attorney General for Civil Rights, and the right to submit any documentation in support of eligibility.
§ 74.16 Procedures for filing an appeal.
A request for reconsideration shall be made to the Assistant Attorney General for Civil Rights within 60 days of the receipt of the notice from the Administrator of a determination of ineligibility. The request shall be made in writing, addressed to the Assistant Attorney General of the Civil Rights Division, P.O. Box 65808, Washington, DC 20035-5808. Both the envelope and the letter of appeal itself must be clearly marked: “Redress Appeal.” A request not so addressed and marked shall be forwarded to the Office of the Assistant Attorney General for Civil Rights, or the official designated to act on his behalf, as soon as it is identified as an appeal of eligibility. An appeal that is improperly addressed shall be deemed not to have been received by the Department until the Office receives the appeal, or until the appeal would have been so received with the exercise of due diligence by Department personnel.
§ 74.17 Action on appeal.
(a) The Assistant Attorney General or the official designated to act on his behalf shall:
(1) Review the original determination;
(2) Review additional information or documentation submitted by the individual to support a finding of eligibility;
(3) Notify the petitioner when a determination of ineligibility is reversed on appeal; and
(4) Inform the Redress Administrator.
(b) Where there is a decision affirming the determination of ineligibility, the letter to the individual shall include a statement of the reason or reasons for the affirmance.
(c) A decision of affirmance shall constitute the final action of the Department on that redress appeal.
Appendix A to Part 74—Declarations of Eligibility by Persons Identified by the Office of Redress Administration and Requests for Documentation
This declaration shall be executed by the identified eligible person or such person’s designated representative.
Complete the following information:
Read the following carefully before signing this document. A False Statement may be grounds for punishment by fine (U.S. Code, title 31, section 3729), and fine or imprisonment or both (U.S. Code, title 18, section 287 and section 1001).
I declare under penalty of perjury that the foregoing is true and correct.
Privacy Act Statement: The authority for collecting this information is contained in 50 U.S.C. app. 1989b. The information that you provide will be used principally for verifying eligible persons for payment under the restitution provision of the Civil Liberties Act of 1988.
Required Documentation: The following documentation must be submitted with the above Declaration to complete your verification.
A document with your current legal name and address. For example, you might send a bank or financial statement, or a monthly utility bill. Submit either a notarized copy of the record or an original that you do not need back.
A certified copy of a birth certificate or a copy of another record of birth that has been certified by the custodian of the records. For example, you might send a religious record which shows your date of birth, or a hospital birth record. If you do not have any record of your birth the Administrator will accept affidavits of two or more persons attesting to the date of your birth.
If your notification letter says that the Social Security Administration has confirmed your date of birth, you do not have to send us any further evidence of your birth date.
If your current legal name is the same as your name when evacuated or interned, this section does not apply.
This section is only required for persons whose current legal name is different from the name used when evacuated or interned.
1. A certified copy of the public record of marriage.
2. A certified copy of the divorce decree.
3. A certified copy of the court order of a name change.
4. Affidavits or sworn statements of two or more persons attesting to the name change.
If you are executing this document for the person identified as eligible, you must submit evidence of your authority.
If you are the legally-appointed guardian, committee, or other legally-designated representative of such an individual, the evidence shall be a certificate executed by the proper official of the court appointment.
If you are not such a legally-designated representative, the evidence shall be an affidavit describing your relationship to the recipient or the extent to which you have the care of the recipient or your position as an officer of the institution in which the recipient is institutionalized.
This declaration shall be executed by the spouse of a deceased eligible individual as statutory heir in accordance with section 105(a)(7) of the Civil Liberties Act of 1988, 50 U.S.C. app. 1989b.
Complete the following information:
Read the following carefully before signing this document.
A False Statement may be grounds for punishment by fine (U.S. Code, title 31, section 3729), and fine or imprisonment or both (U.S. Code, title 18, sections 287 and section 1001).
I declare under penalty of perjury that the foregoing is true and correct.
Privacy Act Statement: The authority for collecting this information is contained in 50 U.S.C. app. 1989b. The information that you provide will be used principally for verifying eligible persons for payment under the restitution provision of the Civil Liberties Act of 1988.
Required Documentation: The following documentation must be submitted with the above Declaration to complete your verification.
1. A certified copy or extract from the public records of death, coroner’s report of death, or verdict of a coroner’s jury.
2. A certificate by the custodian of the public record of death.
3. A statement of the funeral director or attending physician, or intern of the institution where death occurred.
4. A certified copy, or extract from an official report or finding of death made by an agency or department of the United States.
5. If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
6. If you cannot obtain any of the above evidence of your spouse’s death, you must submit other convincing evidence to ORA such as the signed statements of two or more people with personal knowledge of the death, giving the place, date, and cause of death.
1. A copy of the public records of marriage, certified or attested, or an abstract of the public records, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or other public official authorized to certify the record, or a certified copy of the religious record of marriage.
2. An offical report from a public agency as to a marriage which occurred while the deceased eligible individual who was employed by such agency.
3. The affidavit of the clergyman or magistrate who officiated.
4. The certified copy of a certificate of marriage attested to by the custodian of the records.
5. The affidavits or sworn statements of two or more eyewitnesses to the ceremony.
6. In jurisdictions where “Common Law” marriages are recognized, the affidavits or certified statements of the spouse setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage, including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife and whether they were generally accepted as such in the communities in which they lived.
7. Any other evidence which would reasonably support a belief by the Administrator that a valid marriage actually existed.
A document with your current legal name and address. For example, you might send a bank or financial statement or a monthly utility bill. Submit either a notarized copy of the record or an original that you do not need back.
A certified copy of a birth certificate or a copy of another record of birth that has been certified by the custodian of the records. For example, you might send a copy of a religious record which shows your date of birth, or a hospital birth record. If you do not have any record of your birth, the Administrator will accept affidavits of two or more persons attesting to the date of your birth.
If your notification letter says that the Social Security Administration has confirmed your date of brith, you do not have to send us any further evidence of your birth date.
If your current legal last name is the same as the last name of the deceased eligible individual or the same as at the time of marriage this section does not apply.
This section is only required for persons whose current legal last name is different from the last name of the deceased eligible.
1. A certified copy of the public record of marriage.
2. A certified copy of the divorce decree.
3. A certified copy of the court order of a name change.
4. Affidavits or sworn statements of two or more persons attesting to the name change.
If you are executing this document for the person identified as eligible, you must submit evidence of your authority.
If you are the legally-appointed guardian, committee, or other legally-designated representative of such an individual, the evidence shall be a certificate executed by the proper official of the court appointment.
If you are not such a legally-designated representative, the evidence shall be an affidavit describing your relationship to the recipient or the extent to which you have the care of the recipient or your position as an officer of the institution in which the recipient is institutionalized.
This declaration shall be executed by the child of a deceased eligible individual as a statutory heir in accordance with section 105(a)(7) of the Civil Liberties Act of 1988, 50 U.S.C. app. 1988b.
Complete the following information:
Read the following carefully before signing this document. A False Statement may be grounds for punishment by fine (U.S. Code, title 31, section 3729), and fine or imprisonment or both (U.S. Code, title 18, section 287 and section 1001).
I declare under penalty or perjury that the foregoing is true and correct.
Privacy Act Statement: The authority for collecting this information is contained in 50 U.S.C. app. 1989b. The information that you provide will be used principally for verifying eligible persons for payment under the restitution provision of the Civil Liberties Act of 1988.
The following documentation must be submitted with the above Declaration to complete your verification.
1. A certified copy or extract from the public records of death, coroner’s report of death, or verdict of a coroner’s jury.
2. A certificate by the custodian of the public record of death.
3. A statement of the funeral director or attending physician, or intern of the institution where death occurred.
4. A certified copy, or extract from an official report or finding of death made by an agency or department of the United States.
5. If death occurred outside the United States, an official report of death by a United States Consul or other employee of the State Department, or a copy of public record of death in the foreign country.
6. If you cannot obtain any of the above evidence of your parent’s death, you must submit other convincing evidence to ORA such as the signed statements of two or more people with personal knowledge of the death, giving the place, date, and cause of death.
1. A certified copy of a birth certificate showing that the deceased eligible individual was your parent.
2. If the birth certificate does not show the deceased eligible individual as your parent, other proof would be a certified copy of:
(a) An acknowledgment in writing signed by the deceased eligible individual.
(b) A judicial decree ordering the deceased eligible individual to contribute to your support or for other purposes.
(c) A certified copy of the public record of birth or a religious record showing that the deceased eligible individual was the informant and was named as your parent.
(d) Affidavits or sworn statements of a person who knows that the deceased eligible individual accepted the child as his or hers.
(e) A record obtained from a public agency or public records, such as school or welfare agencies, which shows that with the deceased eligible individual’s knowledge, the deceased eligible individual was named as the parent of the child.
Evidence of the relationship by an adopted child must be shown by a certified copy of the decree of adoption. In jurisdictions where petition must be made to the court for release of adoption documents or information, or where the release of such documents or information is prohibited, a revised birth certificate will be sufficient to establish the fact of adoption.
Submit all three as evidence of the step-child relationship.
1. One document as evidence of birth to the spouse of the deceased eligible individual as listed under the “natural child” and “adoptive child” sections to show that you were born to or adopted by the deceased individual’s spouse, or other evidence which reasonably supports the existence of a parent-child relationship between you and the spouse of the deceased eligible person.
2. One document as evidence that you were either living with or in a parent-child relationship with the deceased eligible individual at the time of the eligible individual’s death.
3. One document as evidence of the marriage of the deceased eligible individual and the spouse, such as a copy of the record of marriage, certified or attested, or by an abstract of the public records, containing sufficient data to identify the parties and the date and place of marriage issued by the officer having custody of the record, or a certified copy of a religious record of marriage.
A document with your current legal name and address. For example, you might send a bank or financial statement, or a monthly utility bill. Submit either a notarized copy of the record or an original that you do not want back.
A certified copy of a birth certificate or a copy of another record of birth that has been certified by the custodian of the records. For example, you might send a copy of a religious record which shows your date of birth, or a hospital birth record. If you do not have any record of your birth, the Administrator will accept affidavits of two or more persons attesting to the date of your birth.
If your notification letter says that the Social Security Administration has confirmed your date of birth, you do not have to send us any further evidence of your birth date.
If your current legal last name is the same as the last name of the deceased eligible, this section does not apply.
This section is only required for persons whose current legal last name is different from the last name of the deceased eligible.
Submit one of the following as evidence of the change of legal name.
1. A certified copy of the public record of marriage.
2. A certified copy of the divorce decree.
3. A certified copy of the court order of a name change.
4. Affidavits or sworn statements of two or more persons attesting to the name change.
If your are executing this document for the person identified as an eligible beneficiary, you must submit evidence of your authority.
If you are a legally-appointed guardian, committee, or other legally-designated representative of such an individual, the evidence shall be a certificate executed by the proper official of the court appointment.
If you are not such a legally-designated representative, the evidence shall be an affidavit describing your relationship to the recipient or the extent to which you have the care of the recipient or your position as an officer of the institution in which the recipient is institutionalized.
Declaration of Verification by Persons Identified by the Office of Redress Administration as Statutory Heirs
U.S. Department of Justice Civil Rights Division Office of Redress Administration
This declaration shall be executed by the identified parent of a deceased eligible individual as statutory heir in accordance with
Read the following carefully before signing this document. A False Statement may be grounds for punishment by fine (U.S. Code, title 31, section 3729), and fine or imprisonment or both (U.S. Code, title 18, section 287 and section 1001).
The following documentation must be submitted with the above Declaration to complete your verification.
1. A certified copy or extract from the public records of death, coroner’s report of death, or verdict of a coroner’s jury.
2. A certificate by the custodian of the public record of death.
3. A statement of the funeral director or attending physician, or intern of the institution where death occurred.
4. A certified copy, or extract from an official report or finding of death made by an agency or department of the United States.
5. If death occurred outside the United States, an official report of death by a United States Consul or othe employee of the State Department, or a copy of public record of death in the foreign country.
6. If you cannot obtain any of the above evidence, you must submit other convincing evidence to ORA such as the signed statements of two or more people with personal knowledge of the death, giving the place, date, and cause of death.
1. A certified copy of a birth certificate that shows you to be the deceased eligible individual’s parent.
2. A certified acknowledgment in writing signed by you before the eligible individual’s death.
3. Any other evidence which reasonably supports a finding of such a parent-child relationship, such as a certified copy of the public record of birth or a religious record showing that you were the informant and were named as the parent of the deceased eligible individual.
4. Affidavits or sworn statements of persons who know that you had accepted the deceased eligible individual as his or her child.
5. Information obtained from a public agency or public records, such as school or welfare agencies, which shows that with the deceased eligible individual’s knowledge, you were named as parent.
1. A certified copy of the decree of adoption and such other evidence as may be necessary.
2. In jurisdictions where petition must be made to the court for release of such documents or information, or where release of such documents or information is prohibited, a revised birth certificate showing the person as the deceased eligible individual’s parent will suffice.
A document with your current legal name and address. For example, you might send a bank or financial statement, or a monthly utility bill. Submit either a notarized copy or an original that you do not need back.
A certified copy of a birth certificate or a copy of another record of birth that has been certified by the custodian of the records. For example, you might send a copy of a religious record which shows your date of birth, or a hospital birth record. If you do not have any record of your birth, the Administrator will accept affidavits of two or more persons attesting to the date of your birth.
If your notification letter says that the Social Security Administration has confirmed your date of birth, you do not have to send any further evidence of your birth date.
If your current legal last name is the same as the last name of the deceased eligible individual this section does not apply.
This section is only required for persons whose current legal last name is different from the last name of the deceased eligible.
1. A certified copy of the public record of marriage.
2. A certified copy of the divorce decree.
3. A certified copy of the court order of a name change.
4. Affidavits or sworn statements of two or more persons attesting to the name change.
If you are executing this document for the person identified as eligible, you must submit evidence of your authority.
If you are the legally-appointed guardian, committee, or other legally-designated representative of such an individual, the evidence shall be a certificate executed by the proper official of the court appointment.
If you are not such a legally-designated representative, the evidence shall be an affidavit describing your relationship to the recipient or the extent to which you have the care of the recipient or your position as an officer of the institution in which the recipient is institutionalized.
PART 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
§ 75.1 Definitions.
(a) Terms used in this part shall have the meanings set forth in 18 U.S.C. 2257, and as provided in this section. The terms used and defined in these regulations are intended to provide common-language guidance and usage and are not meant to exclude technologies or uses of these terms as otherwise employed in practice or defined in other regulations or federal statutes (i.e., 47 U.S.C. 230, 231).
(b) Picture identification card means a document issued by the United States, a State government, or a political subdivision thereof, or a United States territory, that bears the photograph, the name of the individual identified, and the date of birth of that individual, and provides specific information sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (commonly known as a “Green Card”), or employment authorization document issued by the United States, a driver’s license or other form of identification issued by a State or the District of Columbia; or a foreign government-issued equivalent of any of the documents listed above when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the United States at the time of original production and the producer maintaining the required records, whether a U.S. citizen or non-U.S. citizen, is located outside the United States on the original production date. The picture identification card must be valid as of the original production date.
(c) Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer.
(1) Primary producer is any person who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct. When a corporation or other organization is the primary producer of any particular image or picture, then no individual employee or agent of that corporation or other organization will be considered to be a primary producer of that image or picture.
(2) Secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing. When a corporation or other organization is the secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the secondary producer of that image or picture.
(3) The same person may be both a primary and a secondary producer.
(4) Producer does not include persons whose activities relating to the visual depiction of actual or simulated sexually explicit conduct are limited to the following:
(i) Photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;
(ii) Distribution;
(iii) Any activity, other than those activities identified in paragraphs (c)(1) and (2) of this section, that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;
(iv) The provision of a telecommunications service, or of an Internet access service of Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231));
(v) The transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or alteration of the content of the communication; or
(vi) Unless the activity or activities are described in section 2257(h)(2)(A), the dissemination of a depiction without having created it or altered its content.
(d) Sell, distribute, redistribute, and re-release refer to commercial distribution of a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.
(e) Copy, when used:
(1) In reference to an identification document or a picture identification card, means a photocopy, photograph, or digitally scanned reproduction;
(2) In reference to a visual depiction of sexually explicit conduct, means a duplicate of the depiction itself (e.g., the film, the image on a Web site, the image taken by a webcam, the photo in a magazine); and
(3) In reference to an image on a webpage for purposes of §§ 75.6(a), 75.7(a), and 75.7(b), means every page of a Web site on which the image appears.
(f) Internet means collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which constitute the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire or radio.
(g) Computer site or service means a computer server-based file repository or file distribution service that is accessible over the Internet, World Wide Web, Usenet, or any other interactive computer service (as defined in 47 U.S.C. 230(f)(2)). Computer site or service includes without limitation, sites or services using hypertext markup language, hypertext transfer protocol, file transfer protocol, electronic mail transmission protocols, similar data transmission protocols, or any successor protocols, including but not limited to computer sites or services on the World Wide Web.
(h) URL means uniform resource locator.
(i) Electronic communications service has the meaning set forth in 18 U.S.C. 2510(15).
(j) Remote computing service has the meaning set forth in 18 U.S.C. 2711(2).
(k) Manage content means to make editorial or managerial decisions concerning the sexually explicit content of a computer site or service, but does not mean those who manage solely advertising, compliance with copyright law, or other forms of non-sexually explicit content.
(l) Interactive computer service has the meaning set forth in 47 U.S.C. 230(f)(2).
(m) Date of original production or original production date means the date the primary producer actually filmed, videotaped, or photographed, or created a digitally- or computer-manipulated image or picture of, the visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct. For productions that occur over more than one date, it means the single date that was the first of those dates. For a performer who was not 18 as of this date, the date of original production is the date that such a performer was first actually filmed, videotaped, photographed, or otherwise depicted. With respect to matter that is a secondarily produced compilation of individual, primarily produced depictions, the date of original production of the matter is the earliest date after July 3, 1995, on which any individual depiction in that compilation was produced. For a performer in one of the individual depictions contained in that compilation who was not 18 as of this date, the date of original production is the date that the performer was first actually filmed, videotaped, photographed, or otherwise depicted for the individual depiction at issue.
(n) Sexually explicit conduct has the meaning set forth in 18 U.S.C. 2256(2)(A).
(o) Simulated sexually explicit conduct means conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean not sexually explicit conduct that is merely suggested.
(p) Regularly and in the normal course of business collects and maintains means any business practice(s) that ensure that the producer confirms the identity and age of all employees who perform in visual depictions.
(q) Individually identifiable information means information about the name, address, and date of birth of employees that is capable of being retrieved on the basis of a name of an employee who appears in a specified visual depiction.
(r) All performers, including minor performers means all performers who appear in any visual depiction, no matter for how short a period of time.
(s) Employed by means, in reference to a performer, one who receives pay for performing in a visual depiction or is otherwise in an employer-employee relationship with the producer of the visual depiction as evidenced by oral or written agreements.
§ 75.2 Maintenance of records.
(a) Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that is produced in whole or in part with materials that have been mailed or shipped in interstate or foreign commerce, or is shipped, transported, or intended for shipment or transportation in interstate or foreign commerce, and that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after July 3, 1995, or one or more visual depictions of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, shall, for each performer portrayed in such visual depiction, create and maintain records containing the following:
(1) The legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card prior to production of the depiction. For any performer portrayed in a depiction of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after July 3, 1995, or of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, the records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible hard copy of a picture identification card. For any performer portrayed in a depiction of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after June 23, 2005, or of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, the records shall include a copy of the depiction, and, where the depiction is published on an Internet computer site or service, a copy of any URL associated with the depiction. If no URL is associated with the depiction, the records shall include another uniquely identifying reference associated with the location of the depiction on the Internet. For any performer in a depiction performed live on the Internet, the records shall include a copy of the depiction with running-time sufficient to identify the performer in the depiction and to associate the performer with the records needed to confirm his or her age.
(2) Any name, other than the performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name. For any performer portrayed in a visual depiction of an actual human being engaged in actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) made after July 3, 1995, or of an actual human being engaged in simulated sexually explicit conduct or in actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, such names shall be indexed by the title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, picture, URL, or other matter. Producers may rely in good faith on representations by performers regarding accuracy of the names, other than legal names, used by performers.
(3) Records required to be created and maintained under this part shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, picture, URL, or other matter.
(4) The primary producer shall create a record of the date of original production of the depiction.
(b) A producer who is a secondary producer as defined in § 75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in § 75.1(c), copies of the records described in paragraph (a) of this section. Such a secondary producer shall also keep records of the name and address of the primary producer from whom he received copies of the records. The copies of the records may be redacted to eliminate non-essential information, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm the name and age may not be redacted.
(c) The information contained in the records required to be created and maintained by this part need be current only as of the date of original production of the visual depiction to which the records are associated. If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service) that contains one or more visual depictions of an actual human being engaged in actual or simulated sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer may add the additional title or identifying number and the names of the performer to the existing records maintained pursuant to § 75.2(a)(2). Producers of visual depictions made after July 3, 1995, and before June 23, 2005, may rely on picture identification cards that were valid forms of required identification under the provisions of part 75 in effect during that time period.
(d) For any record of a performer in a visual depiction of actual sexually explicit conduct (except lascivious exhibition of the genitals or pubic area of any person) created or amended after June 23, 2005, or of a performer in a visual depiction of simulated sexually explicit conduct or actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, all such records shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service). If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service) that contains one or more visual depictions of an actual human being engaged in actual or simulated sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer shall add the additional title or identifying number and the names of the performer to the existing records, and such records shall thereafter be maintained in accordance with this paragraph.
(e) Records required to be maintained under this part shall be segregated from all other records, shall not contain any other records, and shall not be contained within any other records.
(f) Records required to be maintained under this part may be kept either in hard copy or in digital form, provided that they include scanned copies of forms of identification and that there is a custodian of the records who can authenticate each digital record.
(g) Records are not required to be maintained by either a primary producer or by a secondary producer for a visual depiction of sexually explicit conduct that consists only of lascivious exhibition of the genitals or pubic area of a person, and contains no other sexually explicit conduct, whose original production date was prior to March 18, 2009.
(h) A primary or secondary producer may contract with a non-employee custodian to retain copies of the records that are required under this part. Such custodian must comply with all obligations related to records that are required by this Part, and such a contract does not relieve the producer of his liability under this part.
§ 75.3 Categorization of records.
Records required to be maintained under this part shall be categorized alphabetically, or numerically where appropriate, and retrievable to: All name(s) of each performer, including any alias, maiden name, nickname, stage name or professional name of the performer; and according to the title, number, or other similar identifier of each book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services). Only one copy of each picture of a performer’s picture identification card and identification document must be kept as long as each copy is categorized and retrievable according to any name, real or assumed, used by such performer, and according to any title or other identifier of the matter.
§ 75.4 Location of records.
Any producer required by this part to maintain records shall make such records available at the producer’s place of business or at the place of business of a non-employee custodian of records. Each record shall be maintained for seven years from the date of creation or last amendment or addition. If the producer ceases to carry on the business, the records shall be maintained for five years thereafter. If the producer produces the book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services) as part of his control of or through his employment with an organization, records shall be made available at the organization’s place of business or at the place of business of a non-employee custodian of records. If the organization is dissolved, the person who was responsible for maintaining the records, as described in § 75.6(b), shall continue to maintain the records for a period of five years after dissolution.
§ 75.5 Inspection of records.
(a) Authority to inspect. Investigators authorized by the Attorney General (hereinafter “investigators”) are authorized to enter without delay and at reasonable times any establishment of a producer where records under § 75.2 are maintained to inspect during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, for the purpose of determining compliance with the record-keeping requirements of the Act and any other provision of the Act (hereinafter “investigator”).
(b) Advance notice of inspections. Advance notice of record inspections shall not be given.
(c) Conduct of inspections. (1) Inspections shall take place during normal business hours and at such places as specified in § 75.4. For the purpose of this part, “normal business hours” are from 9 a.m. to 5 p.m., local time, Monday through Friday, or, for inspections to be held at the place of business of a producer, any other time during which the producer is actually conducting business relating to producing a depiction of actual sexually explicit conduct. To the extent that the producer does not maintain at least 20 normal business hours per week, the producer must provide notice to the inspecting agency of the hours during which records will be available for inspection, which in no case may be less than 20 hours per week.
(2) Upon commencing an inspection, the investigator shall:
(i) Present his or her credentials to the owner, operator, or agent in charge of the establishment;
(ii) Explain the nature and purpose of the inspection, including the limited nature of the records inspection, and the records required to be kept by the Act and this part; and
(iii) Indicate the scope of the specific inspection and the records that he or she wishes to inspect.
(3) The inspections shall be conducted so as not to unreasonably disrupt the operations of the establishment.
(4) At the conclusion of an inspection, the investigator may informally advise the producer or his non-employee custodian of records of any apparent violations disclosed by the inspection. The producer or non-employee custodian or records may bring to the attention of the investigator any pertinent information regarding the records inspected or any other relevant matter.
(d) Frequency of inspections. Records may be inspected once during any four-month period, unless there is a reasonable suspicion to believe that a violation of this part has occurred, in which case an additional inspection or inspections may be conducted before the four-month period has expired.
(e) Copies of records. An investigator may copy, at no expense to the producer or to his non-employee custodian of records, during the inspection, any record that is subject to inspection.
(f) Other law enforcement authority. These regulations do not restrict the otherwise lawful investigative prerogatives of an investigator while conducting an inspection.
(g) Seizure of evidence. Notwithstanding any provision of this part or any other regulation, a law enforcement officer may seize any evidence of the commission of any felony while conducting an inspection.
§ 75.6 Statement describing location of books and records.
(a) Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service) that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made after July 3, 1995, and produced, manufactured, published, duplicated, reproduced, or reissued after July 3, 1995, or of a performer in a visual depiction of simulated sexually explicit conduct or actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person made after March 18, 2009, shall cause to be affixed to every copy of the matter a statement describing the location of the records required by this part. A producer may cause such statement to be affixed, for example, by instructing the manufacturer of the book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter to affix the statement. In this paragraph, the term “copy” includes every page of a Web site on which a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct appears.
(b) Every statement shall contain:
(1) The title of the book, magazine, periodical, film, or videotape, digitally- or computer-manipulated image, digital image, picture, or other matter (unless the title is prominently set out elsewhere in the book, magazine, periodical, film, or videotape, digitally- or computer-manipulated image, digital image, picture, or other matter) or, if there is no title, an identifying number or similar identifier that differentiates this matter from other matters which the producer has produced;
(2) [Reserved]
(3) A street address at which the records required by this part may be made available. A post office box address does not satisfy this requirement.
(c) If the producer is an organization, the statement shall also contain the title and business address of the person who is responsible for maintaining the records required by this part.
(d) The information contained in the statement must be accurate as of the date on which the book, magazine, periodical, film, videotape, digitally or computer-manipulated image, digital image, picture, or other matter is produced or reproduced.
(e) For the purposes of this section, the required statement shall be displayed in typeface that is no less than 12-point type or no smaller than the second-largest typeface on the material and in a color that clearly contrasts with the background color of the material. For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer.
(f) If the producer contracts with a non-employee custodian of records to serve as the person responsible for maintaining his records, the statement shall contain the name and business address of that custodian and may contain that information in lieu of the information required in paragraphs (b)(3) and (c) of this section.
§ 75.7 Exemption statement.
(a) Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter may cause to be affixed to every copy of the matter a statement attesting that the matter is not covered by the record-keeping requirements of 18 U.S.C. 2257(a)-(c) or 18 U.S.C. 2257A(a)-(c), as applicable, and of this part if:
(1) The matter contains visual depictions of actual sexually explicit conduct made only before July 3, 1995, or was last produced, manufactured, published, duplicated, reproduced, or reissued before July 3, 1995. Where the matter consists of a compilation of separate primarily produced depictions, the entirety of the conduct depicted was produced prior to July 3, 1995, regardless of the date of secondary production;
(2) The matter contains only visual depictions of simulated sexually explicit conduct or of actual sexually explicit conduct limited to lascivious exhibition of the genitals or pubic area of any person, made before March 18, 2009;
(3) The matter contains only some combination of the visual depictions described in paragraphs (a)(1) and (a)(2) of this section.
(b) If the primary producer and the secondary producer are different entities, the primary producer may certify to the secondary producer that the visual depictions in the matter satisfy the standards under paragraphs (a)(1) through (a)(3) of this section. The secondary producer may then cause to be affixed to every copy of the matter a statement attesting that the matter is not covered by the record-keeping requirements of 18 U.S.C. 2257(a)-(c) or 18 U.S.C. 2257A(a)-(c), as applicable, and of this part.
§ 75.8 Location of the statement.
(a) All books, magazines, and periodicals shall contain the statement required in § 75.6 or suggested in § 75.7 either on the first page that appears after the front cover or on the page on which copyright information appears.
(b) In any film or videotape which contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement referred to in § 75.6 or § 75.7 shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer.
(c) Any other film or videotape shall contain the required statement within one minute from the start of the film or videotape, and before the opening scene, and shall display the statement for a sufficient duration to be read by the average viewer.
(d) A computer site or service or Web address containing a digitally- or computer-manipulated image, digital image, or picture shall contain the required statement on every page of a Web site on which a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct appears. Such computer site or service or Web address may choose to display the required statement in a separate window that opens upon the viewer’s clicking or mousing-over a hypertext link that states, “18 U.S.C. 2257 [and/or 2257A, as appropriate] Record-Keeping Requirements Compliance Statement.”
(e) For purpose of this section, a digital video disc (DVD) containing multiple depictions is a single matter for which the statement may be located in a single place covering all depictions on the DVD.
(f) For all other categories not otherwise mentioned in this section, the statement is to be prominently displayed consistent with the manner of display required for the aforementioned categories.
§ 75.9 Certification of records.
(a) In general. The provisions of §§ 75.2 through 75.8 shall not apply to a visual depiction of actual sexually explicit conduct constituting lascivious exhibition of the genitals or pubic area of a person or to a visual depiction of simulated sexually explicit conduct if all of the following requirements are met:
(1) The visual depiction is intended for commercial distribution;
(2) The visual depiction is created as a part of a commercial enterprise;
(3) Either—
(i) The visual depiction is not produced, marketed or made available in circumstances such that an ordinary person would conclude that the matter contains a visual depiction that is child pornography as defined in 18 U.S.C. 2256(8), or,
(ii) The visual depiction is subject to regulation by the Federal Communications Commission acting in its capacity to enforce 18 U.S.C. 1464 regarding the broadcast of obscene, indecent, or profane programming; and
(4) The producer of the visual depiction certifies to the Attorney General that he regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer. (A producer of materials depicting sexually explicit conduct not covered by the certification regime is not disqualified from using the certification regime for materials covered by the certification regime.)
(b) Form of certification. The certification shall take the form of a letter addressed to the Attorney General signed either by the chief executive officer or another executive officer of the entity making the certification, or in the event the entity does not have a chief executive officer or other executive officer, the senior manager responsible for overseeing the entity’s activities.
(c) Content of certification. The certification shall contain the following:
(1) A statement setting out the basis under 18 U.S.C. 2257A and this part under which the certifying entity and any sub-entities, if applicable, are permitted to avail themselves of this exemption, and basic evidence justifying that basis.
(2) The following statement: “I hereby certify that [name of entity] [and all sub-entities listed in this letter] regularly and in the normal course of business collect and maintain individually identifiable information regarding all performers employed by [name of entity]”; and
(3) If applicable because the visual depictions at issue were produced outside the United States, the statement that: “I hereby certify that the foreign producers of the visual depictions produced by [name of entity] either collect and maintain the records required by sections 2257 and 2257A of title 18 of the U.S. Code, or have certified to the Attorney General that they collect and maintain individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer, in accordance with 28 CFR part 75; and [name of entity] has copies of those records or certifications.” The producer may provide the following statement instead: “I hereby certify that with respect to foreign primary producers who do not either collect and maintain the records required by sections 2257 and 2257A of title 18 of the U.S. Code, or certify to the Attorney General that they collect and maintain individually identifiable information regarding all performers, including minor performers, whom they employ pursuant to tax, labor, or other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the names, addresses, and dates of birth of the performers, in accordance with 28 CFR part 75, [name of entity] has taken reasonable steps to confirm that the performers in any depictions that may potentially constitute simulated sexually explicit conduct or lascivious exhibition of the genitals or pubic area of any person were not minors at the time the depictions were originally produced.” “Reasonable steps” for purposes of this statement may include, but are not limited to, a good-faith review of the visual depictions themselves or a good-faith reliance on representations or warranties from a foreign producer.
(d) Entities covered by each certification. A single certification may cover all or some subset of all entities owned by the entity making the certification. However, the names of all sub-entities covered must be listed in such certification and must be cross-referenced to the matter for which the sub-entity served as the producer.
(e) Timely submission of certification. An initial certification is due June 16, 2009. Initial certifications of producers who begin production after December 18, 2008, but before June 16, 2009, are due on June 16, 2009. Initial certifications of producers who begin production after June 16, 2009 are due within 60 days of the start of production. A subsequent certification is required only if there are material changes in the information the producer certified in the initial certification; subsequent certifications are due within 60 days of the occurrence of the material change. In any case where a due date or last day of a time period falls on a Saturday, Sunday, or federal holiday, the due date or last day of a time period is considered to run until the next day that is not a Saturday, Sunday, or federal holiday.
PART 76—RULES OF PROCEDURE FOR ASSESSMENT OF CIVIL PENALTIES FOR POSSESSION OF CERTAIN CONTROLLED SUBSTANCES
§ 76.1 Purpose.
This part implements section 6486 of the Anti-Drug Abuse Act of 1988 (the Act), 21 U.S.C. 844a. This part establishes procedures for imposing civil penalties against persons who knowingly possess a controlled substance for personal use that is listed in 21 CFR 1316.91(j)(2) in violation of 21 U.S.C. 844a and specifies the appeal rights of persons subject to a civil penalty pursuant to section 6486 of the Act.
§ 76.2 Definitions.
(a) Act means the Anti-Drug Abuse Act of 1988, Public Law 100-690.
(b) Adjudicatory proceeding means a judicial-type proceeding leading to the formulation of a final order.
(c) Administrative Procedure Act means those provisions of the Administrative Procedure Act, as codified, which are contained in 5 U.S.C. 551 through 559.
(d) Attorney General means the Attorney General of the United States or his or her designee.
(e) Department means the United States Department of Justice.
(f) Judge means an Administrative Law Judge appointed pursuant to the provisions of 5 U.S.C. 3105.
(g) Penalty means the amount described in 28 CFR 76.3 and includes the plural of that term.
(h) The term Personal Use Amount means possession of controlled substances in circumstances where there is no other evidence of an intent to distribute, or to facilitate the manufacturing, compounding, processing, delivering, importing or exporting of any controlled substance. Evidence of personal use amounts shall not include sweepings or other evidence of possession of amounts of a controlled substance for other than personal use. The following criteria shall be used to determine whether an amount of controlled substance in a particular case is in fact a personal use amount. The absence of any of the factors listed in paragraphs (h)(1) through (h)(5) of this section and the existence of the factor in paragraph (h)(6) of this section shall be relevant, although not necessarily conclusive, to establish that the possession was for personal use, and amounts in excess of those listed in paragraph (h)(6) of this section may be determined to be personal use amounts where circumstances indicate possession of the substance without an intent to distribute or to facilitate the manufacturing, compounding, processing, delivering, importing or exporting of the controlled substance.
(1) Evidence, such as drug scales, drug distribution paraphernalia, drug records, drug packaging material, method of drug packaging, drug “cutting” agents and other equipment, that indicates an intent to process, package or distribute a controlled substance;
(2) Other information indicating possession of a controlled substance with intent to distribute;
(3) The controlled substance is related to large amounts of cash or any amount of prerecorded government funds;
(4) The controlled substance is possessed under circumstances that indicate such a controlled substance is a sample intended for distribution in anticipation of a transaction involving large amounts, or is part of a larger delivery; or
(5) Statements by the possessor, or otherwise attributable to the possessor, including statements of co-conspirators, that indicate possession with intent to distribute.
(6) The amounts do not exceed the following:
(i) One gram of a mixture or substance containing a detectable amount of heroin;
(ii) One gram 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 derivations of ecgonine 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 (h)(6)(ii) (A) through (C) of this section;
(iii)
(iv)
(v) 500 micrograms of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
(vi) One ounce of a mixture or substance containing a detectable among of marijuana;
(vii) One gram of methamphetamine, its salts, isomers, and salts of its isomers, or one gram of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.
(i) United States Attorney means the United States Attorney in the federal district in which the alleged violation occurred, or his or her designees, or an Assistant Attorney General.
(j) Commencement of proceeding is the service upon a respondent of a Notice of Intent to Assess a Civil Penalty.
(k) Complainant means the United States.
(l) Complaint means the formal document initiating adjudicatory proceedings.
(m) 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 Judge.
(n) Hearing means that part of a proceeding which involves the submission of evidence, either by oral presentation or written submission.
(o) Motion means an oral or written request, made by a person or party, for some action by a Judge.
(p) Order means the whole or any part of a final procedural or substantive disposition of a matter by the Judge.
(q) Party includes the United States of America and any person named as a respondent.
(r) Respondent means any person alleged in a Notice of Intent to Assess a Civil Penalty or Complaint under 28 CFR 76.4 and 76.5 to be liable for a civil penalty under 28 CFR 76.3.
§ 76.3 Basis for civil penalty.
(a) Any individual who knowingly possesses a controlled substance that is listed in § 76.2(h) in violation of 21 U.S.C. 844a shall be liable to the United States for a civil penalty in an amount of not to exceed $10,000 for each such violation occurring before September 29, 1999, and not to exceed $11,000 for each such violation occurring on or after September 29, 1999. For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the civil penalty amount as provided in 28 CFR 85.5.
(b) The income and net assets of an individual shall not be relevant to the determination whether to assess a civil penalty under this part or to prosecute the individual criminally. However, if a decision is made to assess a civil penalty, the income and net assets of an individual shall be considered in determining the amount of a penalty under this part.
(c) A civil penalty may not be assessed under this part if the individual previously was convicted of a federal or state offense relating to a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).
(d) A civil penalty may not be assessed on an individual under this part on more than two separate occasions.
(e) A civil penalty under this part may be assessed by the Attorney General only after an order has been issued on the record and after an opportunity for a hearing has been given in accordance with 5 U.S.C. 554. The Attorney General by and through the United States Attorney having jurisdiction over the matter shall provide written notice to the individual who is the subject of the proposed order informing the individual of the opportunity to receive such a hearing with respect to the proposed order. The hearing may be held only if the individual makes a request for the hearing before the expiration of the thirty (30) day period beginning on the date such notice is served.
§ 76.4 Enforcement procedures.
(a) Commencement of proceedings. If the United States Attorney’s office having jurisdiction over the matter determines that a person has violated section 6486 of the Act, the proceeding to assess a civil penalty under section 6486 of the Act shall be commenced by the United States Attorney issuing a Notice of Intent to Assess Civil Penalty. Service of this Notice shall be accomplished pursuant to 28 CFR 76.6.
(b) Notice of intent to assess a civil penalty. The Notice of Intent to Assess Civil Penalty (Notice) will contain a concise statement of factual allegations informing the respondent of the act or conduct alleged to be in violation of law, the statutory and regulatory provisions alleged to have been violated, and the amount of penalty for which the respondent could be liable. The Notice will advise the respondent of the following, in addition to any other specific information determined by the United States Attorney to be necessary:
(1) That the respondent has the right to representation by counsel, but not at government expense;
(2) That any statement given during the course of the proceeding may be used against the person in this or any other proceeding, including any criminal prosecution;
(3) That a respondent may be able to assert a privilege, such as the privilege against self-incrimination;
(4) That failure to file a response to the allegations listed in the Notice within thirty (30) days of the date of service may result in the entry of a non-appealable final order assessing a penalty in an amount to be determined by the Attorney General;
(5) That the respondent has the right to request an adjudicatory proceeding, including a hearing, before a Judge pursuant to 5 U.S.C. 554-557 and this part, and that such request, in accordance with paragraph (c) of this section, must be made within thirty (30) days from the date the notice is served;
(6) That a respondent may waive an adjudicatory proceeding at any time and agree to pay a penalty in an amount to be determined by the Attorney General; and
(7) That in determining the amount of the penalty the respondent’s income and net assets must be considered.
(c) Answer to notice. To timely request an adjudicatory proceeding in response to a Notice, a respondent must serve upon the United States Attorney designated in the Notice a written answer responding to each allegation listed in the Notice and request a hearing, in accordance with 28 CFR 76.4(b), within thirty (30) days from the date the Notice was served upon the respondent. If the respondent does not serve an answer within thirty (30) days, the Attorney General or his designee may enter a final order, from which there is no appeal, ordering a payment of a civil penalty.
§ 76.5 Complaint.
(a) If the respondent requests an adjudicatory proceeding, the United States Attorney, within fifteen (15) days after receipt of the request, shall file a complaint against the respondent with a Judge who has been assigned to hear and decide the case and shall serve a copy of the complaint on the respondent as provided in 28 CFR 76.6(b).
(b) The complaint shall contain a concise statement of factual allegations informing the respondent of the act or conduct alleged to be in violation of law, the approximate date, place and location of the alleged violation including the federal district, the statutory provisions alleged to have been violated, the amount of penalty for which the respondent could be held liable, and the amount of the proposed penalty. It shall also indicate the date upon which the Notice of Intent to Assess Civil Penalty was served and shall be accompanied by a copy of that notice.
§ 76.6 Service and filing of documents.
(a) Generally. Unless ordered otherwise, an original and one copy of the complaint and all other pleadings shall be filed with the Judge who has been assigned to the case. Each party shall deliver or mail, in accordance with paragraph (b) of this section, a copy of all pleadings, including any attachments to the other party. Each pleading filed shall be clear and legible.
(b) By and on parties. The Notice of Intent to Assess Civil Penalty and the Complaint shall be served by personal delivery or by certified or registered mail, return receipt requested, to the respondent. When it is known that a party is represented by an attorney, service of any other pleading, paper or document subsequent to the Notice and Complaint shall be made upon the party’s attorney. Service of such other pleadings, papers, or documents may be made by personal delivery or by mailing, by first class mail, a copy to the party or attorney at the party’s or attorney’s last known address. The party serving the document shall certify the manner and date of service.
(c) By the judge. Except as provided in paragraph (d) of this section, service of Notices, Orders and Decisions shall be made by first class mail to the last known address of a party or, if the party is known to be represented by an attorney, to the attorney.
(d) Service of notice of hearing. Service of Notice of the Date Set for Hearing shall be made by the Judge with whom the complaint has been filed either by delivering a copy to the individual party or, if known, to the attorney of record of a party; or by mailing, by certified or registered mail, return receipt requested, a copy to the last known address of a party or a party’s attorney.
(e) Service is complete upon delivery to the addressee or, in the case of service by mail, upon mailing.
(f) Filing of pleadings, papers or other documents shall be deemed completed upon delivery to the Judge assigned to the case or the Judge’s designee.
§ 76.7 Content 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 Judge, the names of all parties, and a designation of the type of pleading or paper (e.g., complaint, motion to dismiss). The pleading shall be signed and shall contain the address and telephone number of the party or person representing the party. The pleadings should be typewritten when possible on standard-size (8
(b) Illegible documents, whether handwritten, typewritten, photocopied, or otherwise, will not be accepted. Papers may be reproduced by any duplicating process, provided all copies are clear and legible.
(c) All documents presented by a party in a proceeding must be in English or, if in a foreign language, accompanied by a certified translation.
§ 76.8 Time computations.
(a) Generally. In computing any period of time under this part or in an order issued hereunder, the time begins with the day following the act, event, or default requiring service, and includes the last day of the period unless it is a 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 eleven (11) days or less, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation.
(b) Date of entry of orders. In computing any period of time involving the date of the entry of an order, the date of entry shall be the date the order is signed by the Judge.
(c) Computation of time for service by mail. Whenever a party has a right or is required to do some act or take some action within a prescribed period after service of a pleading, paper, or notice and the pleading, paper, or notice is served upon the party by mail, three (3) days shall be added to the prescribed period.
§ 76.9 Responsive pleading—answer.
(a) Time for answer. A respondent shall file and serve on the United States Attorney having jurisdiction over the matter an answer within thirty (30) days after the service of a complaint.
(b) Default. Failure of the respondent to file and serve an answer within the time provided shall be deemed to constitute a waiver of his or her right to appear and contest the allegations of the complaint. In such cases, the Judge may enter a judgment by default.
(c) Answer. Any respondent contesting any material fact alleged in a complaint, or contending that he or she is entitled to judgment as a matter of law, shall file an answer in writing.
(1) The answer shall include a statement of the facts supporting each affirmative defense.
(2) The answer shall include a statement that the respondent admits, denies, does not have and is unable to obtain sufficient information to admit or deny each allegation, or that an answer to the allegation is protected by a privilege, including the privilege against self-incrimination.
(3) A statement of lack of information or a statement that the answer to the allegation is privileged shall have the effect of a denial.
(4) Any allegation not denied shall be deemed to be admitted.
(d) Reply. A complainant may file a reply responding to each affirmative defense arrested if the Judge, pursuant to 28 CFR 76.10, so provides.
(e) Amendments and supplemental pleadings. If it will facilitate resolution of the controversy, the 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 Judge’s 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 pleadings conform to the evidence. The Judge may, upon reasonable notice and such terms as are just, permit supplemental pleadings setting forth transactions, occurrences, or events which have happened or new law promulgated since the date of the pleadings and which are relevant to any of the issues involved.
§ 76.10 Motions and requests.
(a) Generally. Any application for an order or any other request shall: be made by motion which shall be in writing (unless the Judge in the course of an oral hearing or appearance consents to accept such motion orally), state with particularity the grounds therefor, and set forth the relief or order sought. Motions or requests made during the course of any oral hearing or appearance before a Judge may be stated orally or in writing and made part of the transcript. All parties shall be given reasonable opportunity to respond or 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 Judge may fix, the other party to the proceeding may file a response to the motion, accompanied by such affidavits or other evidence as the party desires to rely upon. Unless the Judge provides otherwise, no reply to a response shall be filed.
(c) Oral arguments or briefs. No oral argument will be heard on motions unless the Judge otherwise directs. Written memoranda or briefs may be filed with motions or responses to motions, stating the points and authorities relied upon in support of the position taken.
§ 76.11 Notice of hearing.
(a) When the Judge receives the complaint and answer, the Judge shall cause to be served a Notice of Hearing upon the parties in the manner prescribed by 28 CFR 76.6(d).
(b) Such notice shall include:
(1) The time and place and nature of the hearing. In fixing the time and place of the hearing, the Judge will attempt to minimize the costs to the parties;
(2) The legal authority and jurisdiction under which the hearing is to be held;
(3) The description of the procedures for the conduct of the hearing;
(4) A notice that the respondent party may waive the right to an oral hearing and request that the matter be determined on written motions and written submission of the evidence; and
(5) Such other matters as the Judge deems appropriate.
§ 76.12 Prehearing statements.
(a) At any time prior to the commencement of the hearing, the Judge may order any party to file a prehearing statement of position.
(b) A prehearing statement shall state the name of the party on whose behalf it is presented and shall briefly set forth the following matters, unless otherwise ordered by the Judge:
(1) Issues involved in the proceedings and whether the respondent requests an oral hearing;
(2) Facts stipulated;
(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 case; and
(8) Any appropriate comments, suggestions, or information which might assist the parties or the Judge in preparing for the hearing or otherwise aid in the disposition of the proceeding.
§ 76.13 Parties to the hearing.
The parties to the hearing shall be the United States of America and the respondent.
§ 76.14 Separation of functions.
An employee or an agent of the Department who is or was engaged in investigative or prosecutive functions for or on behalf of the United States in a case may not participate in the decision of that case.
§ 76.15 Ex parte communications.
(a) Generally. The Judge shall not consult with any party, attorney or person (except persons in the office of the Judge) on any legal or factual issue unless upon notice and opportunity for all parties to participate. No party or attorney representing a party shall communicate in any instance with the Judge on any matter at issue in a case, unless notice and opportunity has been afforded for the other party to participate. This provision does not prohibit a party or attorney from inquiring about the status of a case or asking questions concerning administrative functions or procedures.
(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 sanctions. An attorney who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to sanctions, including, but not limited to, exclusion from the proceedings.
§ 76.16 Disqualification of a Judge.
(a) When a 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 for the district in which the case is brought or, if there is no Chief Administrative Hearing Officer, to the Attorney General.
(b) Whenever any party shall deem the Judge for any reason to be disqualified to preside, or to continue to preside, in a particular proceeding, that party shall file with the Judge a motion to recuse. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The Judge shall rule upon the motion.
(c) In the event of disqualification or recusal of a Judge as provided in paragraph (a) or (b) of this section, the Chief Administrative Hearing Officer or the Attorney General shall refer the matter to another Judge for further proceedings.
(d) If the Judge denies a motion to disqualify, the Attorney General may determine the matter only as part of the Attorney General’s review of the initial decision on appeal, if any.
§ 76.17 Rights of parties.
Except as otherwise limited by this part, all parties may:
(a) Be represented, advised and accompanied by an attorney at law who is a member in good standing of the bar of the District of Columbia or of any state, territory or commonwealth of the United States;
(b) Participate in any conference held by the Judge;
(c) Conduct discovery in accordance with 28 CFR 76.18 and 76.21;
(d) Agree to stipulations of fact or law, which shall be made part of the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral argument at the adjudicatory proceeding as permitted by the Judge; and
(h) Submit a written brief and a proposed final order after the hearing.
§ 76.18 Authority of the Judge.
(a) The Judge shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
(b) The Judge has the authority to:
(1) Set and change the date, time and place of the hearing upon reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas in accordance with 21 U.S.C. 875 and 876 requiring the attendance of witnesses and the production of documents at dispositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in person or by telephone; and
(14) Exercise such other authority as necessary to carry out the responsibilities of the Judge under this part.
(c) The Judge does not have the authority to rule upon the validity of federal statutes or regulations.
§ 76.19 Prehearing conferences.
(a) Purpose and scope. Upon motion of a party or in the Judge’s discretion, the Judge may direct the parties or their counsel to participate in a prehearing conference at any reasonable time prior to a hearing, or during the course of a hearing, when the Judge finds that the proceeding would be expedited by such a conference. Prehearing conferences normally shall be conducted by telephone unless, in the opinion of the 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. At the conference, the following matters may be considered:
(1) The simplification of issues;
(2) The necessity of amendments to pleadings;
(3) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of documents, which will avoid unnecessary proof;
(4) The limitations on the number of expert or other witnesses;
(5) Negotiation, compromise, or settlement of issues;
(6) The exchange of copies of proposed exhibits;
(7) The identification of documents or matters of which official notice may be required;
(8) A schedule to be followed by the parties for completion of the actions decided at the conference; and
(9) Such other matters, including the disposition of pending motions and resolution of issues regarding the admissibility of evidence, as may expedite and aid in the disposition of the proceeding.
(b) Reporting. A verbatim record of the conference shall not be kept unless directed by the Judge.
(c) Order. Actions taken as a result of a prehearing conference shall be reduced to a written order unless the Judge concludes that a stenographic report shall suffice or, if the conference takes place within seven (7) days of the beginning of a hearing, and the Judge elects to make a statement on the record at the hearing summarizing the actions taken.
§ 76.20 Consent Order or settlement prior to hearing.
(a) Generally. At any time after the commencement of a proceeding, the parties jointly may move to defer the hearing for a reasonable time to permit negotiation of a settlement or an agreement containing findings and an order disposing of the whole or any part of the proceeding. The allowance of such deferment and the duration thereof shall be at the discretion of the Judge, after consideration of such factors as the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of reaching an agreement which will result in a just disposition of the issue involved. The Judge may require the parties to submit progress reports on a regular basis as to the status of negotiations.
(b) Consent orders. Any agreement containing consent findings and an order disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order made after full hearing;
(2) That the entire record on which any order may be based shall consist solely of the complaint or notice of administrative determination (or amended notice, if one is filed), as appropriate, and the agreement;
(3) A waiver of any further procedural steps before the Judge; and
(4) A waiver of any right to challenge or contest the validity of the order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for negotiations, the parties or their counsel may:
(1) Submit the proposed agreement containing consent findings and an order for consideration by the Judge; or
(2) Notify the Judge that the parties have reached a full settlement and have agreed to dismissal of the action; or
(3) Inform the Judge that agreement cannot be reached.
(d) Disposition. In the event that an agreement containing consent findings and an order is submitted, the Judge, within thirty (30) days or as soon as practicable thereafter may, if satisfied with its timeliness, form, and substance, accept such agreement by issuing a decision based upon the agreed findings. The Judge has the discretionary authority to conduct a hearing to determine the fairness of the agreement, consent findings, and proposed order.
§ 76.21 Discovery.
(a) Scope. Discovery under this part covers any matter not otherwise privileged or protected by law, which is directly relevant to the issues involved in the case, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons having knowledge of relevant facts. To the extent not inconsistent with this part, the Federal Rules of Civil Procedure may be used as a general guide for discovery practices in proceedings before the Judge. However, unless otherwise stated in this part, the Federal Rules shall be deemed to be instructive rather than controlling.
(b) Methods. Discovery may be obtained by one or more of the methods provided under the Federal Rules of Civil Procedure, including: written interrogatories, depositions, requests for production of documents or things for inspection or copying, and requests for admission addressed to parties.
(c) Procedures governing discovery—(1) Discovery from a party. A party seeking discovery from another party shall initiate the process by serving a request for discovery on the other party. The request for discovery shall:
(i) State the time limit for responding, as prescribed in 28 CFR 76.21(c)(4);
(ii) In the case of a request for a deposition of a party or an employee of a party shall
(A) Specify the time and place of the taking of the deposition, and
(B) Be served on the person to be deposed.
(2) Discovery from a nonparty. Whenever possible, a party seeking a deposition and/or production of documents from a nonparty shall attempt to obtain the nonparty’s voluntary cooperation. A party seeking such discovery from a nonparty may initiate such discovery by serving a request for discovery on the nonparty directly and by serving the other party. Upon failure to obtain voluntary cooperation, discovery from a nonparty may be sought by a written motion directed to the Judge in accordance with paragraph (c)(3) of this section.
(3) Discovery motions. (i) A party shall answer a discovery request within the time provided by 28 CFR 76.21(c)(4), either by furnishing to the requesting party the information or testimony requested, agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the particular request and the reasons for objection. Upon the failure of a party to respond in full to a discovery request, the requesting party may file with the Judge a motion to compel. A copy of the motion shall be served on the other party. The motion shall be accompanied by:
(A) A copy of the original request and a statement showing the relevance and materiality of the information sought; and
(B) A copy of the objections to discovery or, where appropriate, a statement with accompanying affidavit that no response has been received.
(ii) If a nonparty will not voluntarily respond to a discovery request in full, the requesting party may file with the Judge a written motion seeking a subpoena. A copy of the motion shall be served on the other party in accordance with 28 CFR 76.23. The motion shall be accompanied by:
(A) A copy of the original request and a statement showing the relevance, materiality and reasonable scope of the information sought;
(B) A copy of the objections to discovery or, where appropriate, a statement with accompanying affidavit that no response has been received; and
(C) In the case of a deposition, the date, time, and place of the proposed deposition.
(iii) The other party may respond to a motion to compel discovery or for issuance of a subpoena requiring a deposition or production of documents under this section by filing an opposition and/or a motion for a protective order in accordance with 28 CFR 76.24 within the time limits set forth in paragraph (c)(4)(iv) of this section.
(4) Time limits. (i) Discovery may be initiated after the filing of a complaint and shall be completed within the time designated by the Judge, but no later than seventy-five (75) days after the filing of the answer, unless a different time limit is set by the Judge after due consideration of the particular situation, including the dates set for hearing.
(ii) A party or nonparty shall file and serve a response to a discovery request promptly, but not later than twenty (20) days after the date of service of the request or order of the Judge.
(iii) A motion seeking a subpoena for the deposition testimony of a nonparty or for the production of documents by a nonparty, or a motion for an order compelling discovery from a party, shall be filed with the Judge and served upon the other party within ten (10) days of the date of service of objections, or within ten (10) days of the expiration of the time limit for response when no response is received, unless otherwise ordered by the Judge.
(iv) An opposition to a motion to compel, an opposition to a motion for an order to depose a nonparty or for the production of documents by a nonparty, or a motion for a protective order must be filed with the Judge and served upon the other party within ten (10) days of the date of service of the motion to which such motion relates.
(5) Orders for discovery. (i) Any order issued compelling discovery shall include, as appropriate:
(A) Provision for notice to the person to be deposed as to the time and place of such deposition;
(B) Such conditions or limitations concerning the conduct or scope of the discovery or the subject matter of the discovery as may be necessary to prevent undue delay or to protect a party or other individual or entity from undue expense, embarrassment or oppression;
(C) Limitations upon the time for conducting depositions, answering written interrogatories, or producing documentary evidence; and
(D) Other restrictions upon the discovery process as determined by the Judge.
(ii) The order will be served on the parties by the Judge, together with a subpoena, if approved in the case of discovery sought from nonparties, directed to the individual or entity from which discovery is sought, specifying the manner and time limit for compliance. It shall be the responsibility of the party seeking discovery from a nonparty to serve or arrange for service of an approved discovery request and subpoena on the nonparty from whom discovery is sought and on the other party.
(iii) Failure to comply with an order compelling discovery may subject the noncomplying party to sanctions under 28 CFR 76.26.
(6) Costs. Each party shall bear its own costs of discovery unless otherwise agreed by the parties or ordered by the Judge. The party seeking the deposition shall provide for a verbatim transcript of the description, which shall be available to all parties for inspection and copying.
§ 76.22 Exchange of witness lists, statements and exhibits.
(a) At least twenty-one (21) days before the hearing or at such other time as may be ordered by the Judge, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the respondent intends to offer in lieu of live testimony in accordance with 28 CFR 76.29. At the time these documents are exchanged, any party that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the Judge, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
(b) If a party objects to admission, the Judge may not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the Judge finds good cause for the failure and that there is no prejudice to the objecting party.
(c) Unless a party objects within the times set by the Judge, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of admissibility at the hearing.
§ 76.23 Subpoenas.
(a) Requests for the issuance of subpoenas requiring the attendance and testimony of witnesses or the production of documents or other evidence under 21 U.S.C. 875 and 876 shall be filed with the Judge. Subpoenas are not ordinarily required to obtain the attendance of federal employees as witnesses, but such testimony shall be sought first by filing a request with the United States Attorney.
(b) Requests for subpoenas shall be filed with the Judge in writing and shall specify with particularity the books, papers, or testimony desired, supported by a showing of general relevance and reasonable scope, and a statement of the facts expected to be proven thereby. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses or documents to be found.
(c) A party seeking a subpoena for the attendance of a witness at a hearing shall file a written request therefor not less than fifteen (15) days before the date fixed for the hearing unless otherwise allowed by the Judge upon a showing of good cause.
(d) The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
(e) Unless otherwise ordered by the Judge, the party seeking the subpoena is responsible for service of the subpoena. A subpoena may be served by any person at least eighteen (18) years of age who is not a party, including a private process server or other person authorized to serve process in actions brought in state courts of general jurisdiction or in Federal courts. Service shall be by personal delivery. Proof of service shall be made by affidavit of the person serving a subpoena entered on a true copy of the subpoena.
(f) A party or the individual to whom the subpoena is directed may file with the Judge a motion to quash the subpoena within ten (10) days after service of the subpoena, or on or before the time specified in the subpoena for compliance if it is less than ten (10) days after service.
(g) Upon failure of any person to comply with a subpoena issued by the Judge, the Attorney General, in the name of the Judge, but on relation of the party, shall institute proceedings in the appropriate district court for the enforcement of the subpoena, unless the enforcement of the subpoena would be inconsistent with law. Neither the Attorney General nor the Judge shall be deemed thereby to have assumed responsibility for prosecution of the same before the court.
§ 76.24 Protective order.
(a) A party or a prospective witness or deponent may seek to limit the availability or disclosure of evidence by filing a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing.
(b) In issuing a protective order, the Judge may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, or to protect privileged information including one or more of the following orders:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery other than that requested;
(4) That certain matters not be the subject of inquiry, or that the scope of discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons designated by the Judge;
(6) That the contents of discovery or evidence be sealed;
(7) That a sealed deposition be opened only by order of the Judge;
(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Judge.
§ 76.25 Fees.
Unless otherwise ordered by the Judge, the party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed. Such costs shall be in the amounts that would be payable to a witness in a proceeding in United States district court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the complainant, a check for witness fees and mileage need not accompany the subpoena.
§ 76.26 Sanctions.
(a) As necessary to meet the ends of justice, the Judge may impose sanctions upon any party or a party’s counsel, including, but not limited to sanctions based upon the following reasons:
(1) Failure to comply with an order, rule, or procedure governing the proceeding;
(2) Failure to prosecute an action; or
(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the proceeding.
(b) Any such sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party’s control, or a request for admission the Judge may, as appropriate under law:
(1) Draw an inference in favor of the requesting party with regard to the information sought;
(2) In the case of requests for admission as to unprivileged matters, deem admitted each matter of which an admission is requested;
(3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought;
(4) Strike any appropriate part of the pleadings or other submissions of the party failing to comply with such order; and
(5) Permit the requesting party to introduce secondary evidence concerning the information sought.
(d) If a party fails to prosecute an action under this part commenced by service of a notice of hearing, the Judge may dismiss the action.
(e) If a respondent who has requested a hearing pursuant to 28 CFR 76.4, and who has been served with a Notice of a Hearing under 28 CFR 76.6, fails to appear at the hearing, absent good cause shown by the respondent, the Judge may issue an initial decision imposing a penalty.
(f) The Judge may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion.
§ 76.27 The hearing and burden of proof.
(a) The Judge shall conduct a hearing on the record in order to determine whether the respondent is liable for a civil penalty under 28 CFR 76.3 and, if so, the appropriate amount of any such civil penalty, considering the income and net assets of the respondent.
(b) The United States Attorney shall prove respondent’s liability and appropriateness of the amount of the penalty by a preponderance of the evidence.
(c) The respondent shall prove any affirmative defenses by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise closed by the Judge for good cause shown.
§ 76.28 Location of hearing.
The hearing shall be held in the judicial district of the United States Attorney’s Office having jurisdiction over the matter.
§ 76.29 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
(b) At the discretion of the Judge and to the extent otherwise permitted by law, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties, along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena, if necessary, such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in 28 CFR 76.22.
(c) The Judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The Judge shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e) At the discretion of the Judge, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination.
(f) Upon motion of any party, the Judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This part does not authorize exclusion of the following:
(1) The respondent;
(2) An individual whose presence is shown by a party to be essential to the presentation of its case.
§ 76.30 Evidence.
(a) The Judge shall determine the admissibility of evidence.
(b) Except as provided in this part, the Judge shall not be bound by the Federal Rules of Evidence. However, the Judge may apply the Federal Rules of Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The Judge shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
(e) Relevant evidence may be excluded if it is privileged under federal law.
(f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
(g) The Judge shall permit the parties to introduce rebuttal witnesses and evidence.
(h) All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the Judge pursuant to 28 CFR 76.27.
§ 76.31 Standards of conduct.
(a) All persons appearing in proceedings before a Judge are expected to act with integrity and in an ethical manner.
(b) The Judge may exclude parties, witnesses, and their attorneys 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 Judge shall state in the record the cause for suspending or barring an attorney from participation in a proceeding. Any attorney so suspended or barred may appeal to the Chief Administrative Hearing Officer for the District, or if there is no Chief Administrative Hearing Officer, to the Attorney General but no proceeding shall be delayed or suspended pending disposition of the appeal; provided, however, that the Judge shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney.
§ 76.32 Hearing room conduct.
Proceedings shall be conducted in an orderly manner. The consumption of food or beverage, smoking, or rearranging of courtroom furniture, unless specifically authorized by the Judge, is prohibited.
§ 76.33 Legal assistance.
The Judge does not have authority to appoint counsel, nor can it refer a party to an attorney.
§ 76.34 Record of hearings.
(a) General. Unless otherwise agreed by the parties, a verbatim written record of all hearings shall be kept. All evidence upon which the 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. Upon completion of the transcript, the transcript shall be filed by the official court reporter with the Judge, who will notify the parties. Transcripts may be obtained by the parties and the public from the official court reporter of record. Unless otherwise ordered by the Judge, 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 corrections must be submitted within ten (10) days of the service by the Judge of the notice of the filing of the transcript, or such other time as may be permitted by the Judge. Corrections of the official transcript will be permitted only when errors of substance are involved and only upon approval of the Judge.
(c) The record of the proceedings shall consist of the notices, pleadings, motions, rulings, exhibits, orders, the findings, decisions or opinions of the Judge, the stipulations and briefs, and the transcript(s) of the hearing(s).
§ 76.35 Decision and Order of the Judge.
(a) Proposed decision and order. Within twenty (20) days of the filing of the transcript of the testimony, or such additional time as the Judge may allow, a party, if authorized by the Judge, may file proposed Findings of Fact, Conclusions of Law, and Order together with a supporting brief 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.
(b) Decision. Within a reasonable time, but not later than forty-five (45) days after the filing of the hearing transcript, and the time allowed for the filing of the post-hearing briefs, proposed Findings of Fact, Conclusions of Law, and Order, if any, or within thirty (30) days after receipt of an agreement containing Consent Findings and Order disposing of the disputed matter in whole, the Judge shall make a decision. The decision of the Judge shall include Findings of Fact and Conclusions of Law upon each material issue of fact or law presented on the record. The decision of the Judge shall be based upon the whole record. It shall be supported by reliable and probative evidence. The standard of proof shall be a preponderance of the evidence. Such decision shall be in accordance with the regulations and the statutes conferring jurisdiction. If the Judge fails to meet the deadline contained in this paragraph, he or she shall notify the parties and the Attorney General of the reason for the delay and shall set a new deadline.
(c) Order. If the Judge determines, by a preponderance of the evidence, that the respondent knowingly possessed a controlled substance that is listed in section 401(b)(1)(A) of the Controlled Substances Act (21 U.S.C. 841(b)) in violation of 21 U.S.C. 844, in an amount that, as specified by this part, is a personal use amount, the order shall require the respondent to pay a civil penalty of not more than $10,000 for each violation. If the Judge determines that a preponderance of the evidence does not establish that the respondent knowingly possessed a controlled substance as described above, for his or her personal use, then the order shall dismiss the complaint. A copy of the decision and order together with a record of the proceedings will be forwarded to the Attorney General.
§ 76.36 Administrative and judicial review.
(a) Upon entry of an order by a Judge, any party may file with the Attorney General, within ten (10) days of the date of the Judge’s decision and order, a written request for review of the decision and order together with supporting arguments. Within thirty (30) days from the date of the filing of the request for review, the Attorney General may enter an order which adopts, affirms, modifies or vacates the Judge’s order.
(b) If a party does not seek review of the Judge’s decision, or if the Attorney General enters no order within thirty (30) days from the date of the filing of the request for review, the order of the Judge becomes the final order of the Attorney General. If the Attorney General modifies or vacates the order, the order of the Attorney General becomes the final order.
(c) An individual subject to an order assessing a penalty after a hearing may, before the expiration of the thirty (30) day period beginning on the date the final order is entered, either by the Judge or the Attorney General, whichever is applicable, bring a civil action in the appropriate District Court of the United States pursuant to the provisions of 21 U.S.C. 844a(g) and obtain de novo judicial review of the final order.
§ 76.37 Collection of civil penalties.
(a) Collection of any penalty shall be the responsibility of the United States Attorney having jurisdiction over the matter.
(b) The United States Attorney having jurisdiction over the matter may commence a civil action in any appropriate district court of the United States for the purpose of recovering the amount assessed and an amount representing interest at a rate computed in accordance with 28 U.S.C. 1961.
§ 76.38 Deposit in the United States Treasury.
All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the United States Treasury.
§ 76.39 Compromise or settlement after Decision and Order of a Judge.
(a) The United States Attorney having jurisdiction over the case may, at any time before the Attorney General issues an order, compromise, modify, or remit, with or without conditions, any civil penalty imposed under this section.
(b) Any compromise or settlement must be in writing.
§ 76.40 Records to be public.
All documents contained in the records of formal proceedings for imposing a penalty under this part may be inspected and copied, unless ordered sealed by the Judge.
§ 76.41 Expungement of records.
(a) The Attorney General shall expunge all official Department records created pursuant to this part upon application of a respondent at any time after the expiration of three (3) years from the date of the final order of assessment if:
(1) The respondent has not previously been assessed a civil penalty under this section;
(2) The respondent has paid the penalty;
(3) The respondent has complied with any conditions imposed by the Attorney General;
(4) The respondent has not been convicted of a federal or state offense relating to a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802); and
(5) The respondent agrees to submit to a drug test, and such test shows the individual to be drug free.
(b) A non-public record of a disposition under this part shall be retained by the Department solely for the purpose of determining in any subsequent proceeding whether the person qualifies for a civil penalty or expungement under this part.
(c) If a record is expunged under this part, the individual for whom such an expungement was made shall not be held guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge a proceeding under this part or the results thereof in response to an inquiry made of him for any purpose.
§ 76.42 Limitations.
No action under this part shall be entertained unless commenced within five (5) years from the date on which the violation occurred.
PART 77—ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT
(a) The Department of Justice is committed to ensuring that its attorneys perform their duties in accordance with the highest ethical standards. The purpose of this part is to implement 28 U.S.C. 530B and to provide guidance to attorneys concerning the requirements imposed on Department attorneys by 28 U.S.C. 530B.
(b) Section 530B requires Department attorneys to comply with state and local federal court rules of professional responsibility, but should not be construed in any way to alter federal substantive, procedural, or evidentiary law or to interfere with the Attorney General’s authority to send Department attorneys into any court in the United States.
(c) Section 530B imposes on Department attorneys the same rules of professional responsibility that apply to non-Department attorneys, but should not be construed to impose greater burdens on Department attorneys than those on non-Department attorneys or to alter rules of professional responsibility that expressly exempt government attorneys from their application.
(d) The regulations set forth in this part seek to provide guidance to Department attorneys in determining the rules with which such attorneys should comply.
§ 77.2 Definitions.
As used in this part, the following terms shall have the following meanings, unless the context indicates otherwise:
(a) The phrase attorney for the government means the Attorney General; the Deputy Attorney General; the Solicitor General; the Assistant Attorneys General for, and any attorney employed in, the Antitrust Division, Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources Division, and Tax Division; the Chief Counsel for the DEA and any attorney employed in that office; the Chief Counsel for ATF and any attorney employed in that office; the General Counsel of the FBI and any attorney employed in that office or in the (Office of General Counsel) of the FBI; any attorney employed in, or head of, any other legal office in a Department of Justice agency; any United States Attorney; any Assistant United States Attorney; any Special Assistant to the Attorney General or Special Attorney duly appointed pursuant to 28 U.S.C. 515; any Special Assistant United States Attorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to conduct criminal or civil law enforcement investigations or proceedings on behalf of the United States; and any other attorney employed by the Department of Justice who is authorized to conduct criminal or civil law enforcement proceedings on behalf of the United States. The phrase attorney for the government also includes any independent counsel, or employee of such counsel, appointed under chapter 40 of title 28, United States Code. The phrase attorney for the government does not include attorneys employed as investigators or other law enforcement agents by the Department of Justice who are not authorized to represent the United States in criminal or civil law enforcement litigation or to supervise such proceedings.
(b) The term case means any proceeding over which a state or federal court has jurisdiction, including criminal prosecutions and civil actions. This term also includes grand jury investigations and related proceedings (such as motions to quash grand jury subpoenas and motions to compel testimony), applications for search warrants, and applications for electronic surveillance.
(c) The phrase civil law enforcement investigation means an investigation of possible civil violations of, or claims under, federal law that may form the basis for a civil law enforcement proceeding.
(d) The phrase civil law enforcement proceeding means a civil action or proceeding before any court or other tribunal brought by the Department of Justice under the authority of the United States to enforce federal laws or regulations, and includes proceedings related to the enforcement of an administrative subpoena or summons or civil investigative demand.
(e) The terms conduct and activity means any act performed by a Department attorney that implicates a rule governing attorneys, as that term is defined in paragraph (h) of this section.
(f) The phrase Department attorney[s] is synonymous with the phrase “attorney[s] for the government” as defined in this section.
(g) The term person means any individual or organization.
(h) The phrase state laws and rules and local federal court rules governing attorneys means rules enacted or adopted by any State or Territory of the United States or the District of Columbia or by any federal court, that prescribe ethical conduct for attorneys and that would subject an attorney, whether or not a Department attorney, to professional discipline, such as a code of professional responsibility. The phrase does not include:
(1) Any statute, rule, or regulation which does not govern ethical conduct, such as rules of procedure, evidence, or substantive law, whether or not such rule is included in a code of professional responsibility for attorneys;
(2) Any statute, rule, or regulation that purports to govern the conduct of any class of persons other than attorneys, such as rules that govern the conduct of all litigants and judges, as well as attorneys; or
(3) A statute, rule, or regulation requiring licensure or membership in a particular state bar.
(i) The phrase state of licensure means the District of Columbia or any State or Territory where a Department attorney is duly licensed and authorized to practice as an attorney. This term shall be construed in the same manner as it has been construed pursuant to the provisions of Pub. L. 96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the Departments of Commerce, Justice and State, the Judiciary, and Related Agency Appropriations Act, 1999, Pub. L. 105-277.
(j)(1) The phrase where such attorney engages in that attorney’s duties identifies which rules of ethical conduct a Department attorney should comply with, and means, with respect to particular conduct:
(i) If there is a case pending, the rules of ethical conduct adopted by the local federal court or state court before which the case is pending; or
(ii) If there is no case pending, the rules of ethical conduct that would be applied by the attorney’s state of licensure.
(2) A Department attorney does not “engage[] in that attorney’s duties” in any states in which the attorney’s conduct is not substantial and continuous, such as a jurisdiction in which an attorney takes a deposition (related to a case pending in another court) or directs a contact to be made by an investigative agent, or responds to an inquiry by an investigative agent. Nor does the phrase include any jurisdiction that would not ordinarily apply its rules of ethical conduct to particular conduct or activity by the attorney.
(k) The phrase to the same extent and in the same manner as other attorneys means that Department attorneys shall only be subject to laws and rules of ethical conduct governing attorneys in the same manner as such rules apply to non-Department attorneys. The phrase does not, however, purport to eliminate or otherwise alter state or federal laws and rules and federal court rules that expressly exclude some or all government attorneys from particular limitations or prohibitions.
§ 77.3 Application of 28 U.S.C. 530B.
In all criminal investigations and prosecutions, in all civil investigations and litigation (affirmative and defensive), and in all civil law enforcement investigations and proceedings, attorneys for the government shall conform their conduct and activities to the state rules and laws, and federal local court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State, as these terms are defined in § 77.2 of this part.
§ 77.4 Guidance.
(a) Rules of the court before which a case is pending. A government attorney shall, in all cases, comply with the rules of ethical conduct of the court before which a particular case is pending.
(b) Inconsistent rules where there is a pending case. (1) If the rule of the attorney’s state of licensure would prohibit an action that is permissible under the rules of the court before which a case is pending, the attorney should consider:
(i) Whether the attorney’s state of licensure would apply the rule of the court before which the case is pending, rather than the rule of the state of licensure;
(ii) Whether the local federal court rule preempts contrary state rules; and
(iii) Whether application of traditional choice-of-law principles directs the attorney to comply with a particular rule.
(2) In the process of considering the factors described in paragraph (b)(1) of this section, the attorney is encouraged to consult with a supervisor or Professional Responsibility Officer to determine the best course of conduct.
(c) Choice of rules where there is no pending case. (1) Where no case is pending, the attorney should generally comply with the ethical rules of the attorney’s state of licensure, unless application of traditional choice-of-law principles directs the attorney to comply with the ethical rule of another jurisdiction or court, such as the ethical rule adopted by the court in which the case is likely to be brought.
(2) In the process of considering the factors described in paragraph (c)(1) of this section, the attorney is encouraged to consult with a supervisor or Professional Responsibility Officer to determine the best course of conduct.
(d) Rules that impose an irreconcilable conflict. If, after consideration of traditional choice-of-law principles, the attorney concludes that multiple rules may apply to particular conduct and that such rules impose irreconcilable obligations on the attorney, the attorney should consult with a supervisor or Professional Responsibility Officer to determine the best course of conduct.
(e) Supervisory attorneys. Each attorney, including supervisory attorneys, must assess his or her ethical obligations with respect to particular conduct. Department attorneys shall not direct any attorney to engage in conduct that violates section 530B. A supervisor or other Department attorney who, in good faith, gives advice or guidance to another Department attorney about the other attorney’s ethical obligations should not be deemed to violate these rules.
(f) Investigative Agents. A Department attorney shall not direct an investigative agent acting under the attorney’s supervision to engage in conduct under circumstances that would violate the attorney’s obligations under section 530B. A Department attorney who in good faith provides legal advice or guidance upon request to an investigative agent should not be deemed to violate these rules.
§ 77.5 No private remedies.
The principles set forth herein, and internal office procedures adopted pursuant hereto, are intended solely for the guidance of attorneys for the government. They are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party to litigation with the United States, including criminal defendants, targets or subjects of criminal investigations, witnesses in criminal or civil cases (including civil law enforcement proceedings), or plaintiffs or defendants in civil investigations or litigation; or any other person, whether or not a party to litigation with the United States, or their counsel; and shall not be a basis for dismissing criminal or civil charges or proceedings or for excluding relevant evidence in any judicial or administrative proceeding. Nor are any limitations placed on otherwise lawful litigative prerogatives of the Department of Justice as a result of this part.
PART 79—CLAIMS UNDER THE RADIATION EXPOSURE COMPENSATION ACT
Subpart A—General
§ 79.1 Purpose.
The purpose of the regulations in this part is to implement the Radiation Exposure Compensation Act (“Act”), as amended by the Radiation Exposure Compensation Act Amendments of 2000 (“2000 Amendments”) and by the 21st Century Department of Justice Appropriations Authorization Act (“Appropriations Authorization Act”). The Act authorizes the Attorney General of the United States to establish procedures for making certain payments to qualifying individuals who contracted one of the diseases listed in the Act. The amount of each payment and a general statement of the qualifications are indicated in § 79.3(a). The procedures established in this part are designed to utilize existing records so that claims can be resolved in a reliable, objective, and non-adversarial manner, quickly and with little administrative cost to the United States or to the person filing the claim.
§ 79.2 General definitions.
(a) Act means the Radiation Exposure Compensation Act, Public Law 101-426, as amended by sections 3139 and 3140 of Public Law 101-510, the Radiation Exposure Compensation Act Amendments of 2000, Public Law 106-245 (see 42 U.S.C. 2210 note), and the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273.
(b) Child means a recognized natural child of the claimant, a stepchild who lived with the claimant in a regular parent-child relationship, or an adopted child of the claimant.
(c) Claim means a petition for compensation under the Act filed with the Radiation Exposure Compensation Program by a claimant or by his or her eligible surviving beneficiary or beneficiaries.
(d) Claimant means the individual, living or deceased, who is alleged to satisfy the criteria for compensation set forth either in section 4 or in section 5 of the Act.
(e) Contemporaneous record means any document created at or around the time of the event that is recorded in the document.
(f) Eligible surviving beneficiary means a spouse, child, parent, grandchild or grandparent who is entitled under section 6(c)(4)(A) or (B) of the Act to file a claim or receive a payment on behalf of a deceased claimant.
(g) Grandchild means a child of a child of the claimant.
(h) Grandparent means a parent of a parent of the claimant.
(i) Immediate family member of a person means a spouse or child if the person is an adult; but if the person is a minor, immediate family member means a parent.
(j) Indian Tribe means any Indian Tribe, band, nation, pueblo, or other organized group or community that is recognized as eligible for special programs and services provided by the United States to Indian Tribes.
(k) Medical document, documentation, or record means any contemporaneous record of any physician, hospital, clinic, or other certified or licensed health care provider, or any other records routinely and reasonably relied on by physicians in making a diagnosis.
(l) Onset or incidence of a specified compensable disease means the date a physician first diagnosed the disease.
(m) Parent means the natural or adoptive father or mother of the claimant.
(n) Program or Radiation Exposure Compensation Program means the component of the Constitutional and Specialized Torts Litigation Section of the Torts Branch of the Civil Division of the United States Department of Justice designated by the Attorney General to execute the powers, duties, and responsibilities assigned to the Attorney General pursuant to pertinent provisions of the Act.
(o) Spouse means a wife or husband who was married to the claimant for a period of at least one (1) year immediately before the death of the claimant.
(p) Tribal organization means any formally organized group or other entity that is chartered, registered or sponsored by an Indian Tribe to perform duties for an Indian Tribe and is accountable for its actions to the tribal government.
(q) Trust Fund or Fund means the Radiation Exposure Compensation Trust Fund in the Department of the Treasury, administered by the Secretary of the Treasury pursuant to section 3 of the Act.
§ 79.3 Compensable claim categories under the Act.
(a) In order to receive a compensation payment, each claimant or eligible surviving beneficiary must establish that the claimant meets each and every criterion of eligibility for at least one of the following compensable categories designated in the Act:
(1) Claims of leukemia. (i) For persons exposed to fallout from the atmospheric detonation of nuclear devices at the Nevada Test Site due to their physical presence in an affected area during a designated time period, the amount of compensation is $50,000.
(ii) For persons exposed to fallout from the atmospheric detonation of nuclear devices due to their participation onsite in a test involving the atmospheric detonation of a nuclear device, the amount of compensation is $75,000. The regulations governing these claims are set forth in subpart B of this part.
(2) Claims related to the Nevada Test Site fallout. For persons who contracted certain specified diseases after being exposed to fallout from the atmospheric detonation of nuclear devices at the Nevada Test Site due to their physical presence in an affected area during a designated time period, the amount of compensation is $50,000. The regulations governing these claims are set forth in subpart C of this part.
(3) Claims of onsite participants. For persons who contracted certain specified diseases after onsite participation in the atmospheric detonation of a nuclear device, the amount of compensation is $75,000. The regulations governing these claims are set forth in subpart D of this part.
(4) Miners’ claims. For persons who contracted lung cancer or certain nonmalignant respiratory diseases after being employed in uranium mines located in specified states during the designated time period who were exposed to a specified minimum level of radiation during the course of their employment or worked for at least one year (12 consecutive or cumulative months) in a uranium mine in specified states during the designated time period, the amount of compensation is $100,000. The regulations governing these claims are set forth in subpart E of this part.
(5) Millers’ claims. For persons who contracted lung cancer, certain nonmalignant respiratory diseases, renal cancer, or chronic renal disease (including nephritis and kidney tubal tissue injury) following employment for at least one year (12 consecutive or cumulative months) in a uranium mill in specified states during the designated time period, the amount of compensation is $100,000. The regulations governing these claims are set forth in subpart F of this part.
(6) Ore transporters’ claims. For persons who contracted lung cancer, certain nonmalignant respiratory diseases, renal cancer, or chronic renal disease (including nephritis and kidney tubal tissue injury) following employment for at least one year (12 consecutive or cumulative months) as a transporter of uranium ore or vanadium-uranium ore from a uranium mine or uranium mill located in specified states during the designated time period, the amount of compensation is $100,000. The regulations governing these claims are set forth in subpart G of this part.
(b) Any claim that does not meet all the criteria for at least one of these categories, as set forth in paragraph (a) of this section, must be denied.
(c) All claims for compensation under the Act must comply with the claims procedures and requirements set forth in subpart H of this part before any payment can be made from the Fund.
§ 79.4 Determination of claims and affidavits.
(a) The claimant, eligible surviving beneficiary, or beneficiaries bear the burden of providing evidence of the existence of each element necessary to establish eligibility under any compensable claim category set forth in § 79.3(a).
(b) In the event that reasonable doubt exists with regard to whether a claim meets the requirements of the Act, that doubt shall be resolved in favor of the claimant or eligible surviving beneficiary.
(c) Written affidavits or declarations, subject to penalty for perjury, will be accepted only for the following purposes:
(1) To establish eligibility of family members as set forth in § 79.71(e), (f), (g), (h), or (i);
(2) To establish other compensation received as set forth in § 79.75(c) or (d);
(3) To establish employment in a uranium mine, mill or as an ore transporter on the standard claim form in the manner set forth in §§ 79.43(d), 79.53(d) and 79.63(d), respectively; and
(4) To substantiate the claimant’s uranium mining employment history for purposes of determining working level months of radiation exposure by providing the types of information set forth in § 79.43(d), so long as the affidavit or declaration:
(i) Is provided in addition to any other material that may be used to substantiate the claimant’s employment history as set forth in § 79.43;
(ii) Is made subject to penalty for perjury;
(iii) Attests to the employment history of the claimant; and
(iv) Is made by a person other than the individual filing the claim.
§ 79.5 Requirements for medical documentation, contemporaneous records, and other records or documents.
(a) All medical documentation, contemporaneous records, and other records or documents submitted by a claimant or eligible surviving beneficiary to prove any criterion provided for in this part must be originals, or certified copies of the originals, unless it is impossible to obtain an original or certified copy of the original. If it is impossible for a claimant to provide an original or certified copy of an original, the claimant or eligible surviving beneficiary must provide a written statement with the uncertified copy setting forth the reason why it is impossible to provide an original or a certified copy of an original.
(b) All documents submitted by a claimant or eligible surviving beneficiary must bear sufficient indicia of authenticity or a sufficient guarantee of trustworthiness. The Program shall not accept as proof of any criterion of eligibility any document that does not bear sufficient indicia of authenticity, or is in such a physical condition, or contains such information, that otherwise indicates the record or document is not reliable or trustworthy. When a record or document is not accepted by the Program under this section, the claimant or eligible surviving beneficiary shall be notified and afforded the opportunity to submit additional documentation in accordance with § 79.72(b) or (c).
(c) To establish eligibility the claimant or eligible surviving beneficiary may be required to provide additional records to the extent they exist. Nothing in this section shall be construed to limit the Assistant Director’s (specified in § 79.70(a)) ability to require additional documentation.
Subpart B—Eligibility Criteria for Claims Relating to Leukemia
§ 79.10 Scope of subpart.
The regulations in this subpart describe the criteria for eligibility for compensation under section 4(a)(1) of the Act and the evidence that will be accepted as proof of the various eligibility criteria. Section 4(a)(1) of the Act provides for a payment of $50,000 to individuals exposed to fallout from the detonation of atmospheric nuclear devices at the Nevada Test Site due to their physical presence in an affected area during a designated time period and who later developed leukemia, and $75,000 to individuals who participated onsite in a test involving the atmospheric detonation of a nuclear device and who later developed leukemia.
§ 79.11 Definitions.
(a) Affected area means one of the following geographical areas, as they were recognized by the state in which they are located, as of July 10, 2000:
(1) In the State of Utah, the counties of Beaver, Garfield, Iron, Kane, Millard, Piute, San Juan, Sevier, Washington, and Wayne;
(2) In the State of Nevada, the counties of Eureka, Lander, Lincoln, Nye, White Pine, and that portion of Clark County that consists of townships 13 through 16 at ranges 63 through 71;
(3) In the State of Arizona, the counties of Coconino, Yavapai, Navajo, Apache, Gila, and that part of Arizona that is north of the Grand Canyon.
(b) Atmospheric detonation of a nuclear device means only a test conducted by the United States prior to January 1, 1963, as listed in § 79.31(d).
(c) Designated time period means the period beginning on January 21, 1951, and ending on October 31, 1958, or the period beginning on June 30, 1962, and ending on July 31, 1962, whichever is applicable.
(d) First exposure or initial exposure means the date on which the claimant was first physically present in the affected area during the designated time period, or the date on which the claimant first participated onsite in an atmospheric detonation of a nuclear device, whichever is applicable.
(e) Leukemia means any medically recognized form of acute or chronic leukemia other than chronic lymphocytic leukemia.
(f) Onsite means physical presence above or within the official boundaries of any of the following locations:
(1) The Nevada Test Site (NTS), Nevada;
(2) The Pacific Test Sites (Bikini Atoll, Enewetak Atoll, Johnston Island, Christmas Island, the test site for the shot during Operation Wigwam, the test site for Shot Yucca during Operation Hardtack I, and the test sites for Shot Frigate Bird and Shot Swordfish during Operation Dominic I) and the official zone around each site from which non-test affiliated ships were excluded for security and safety purposes;
(3) The Trinity Test Site (TTS), New Mexico;
(4) The South Atlantic Test Site for Operation Argus and the official zone around the site from which non-test affiliated ships were excluded for security and safety purposes;
(5) Any designated location within a Naval Shipyard, Air Force Base, or other official government installation where ships, aircraft, or other equipment used in an atmospheric nuclear detonation were decontaminated; or
(6) Any designated location used for the purpose of monitoring fallout from an atmospheric nuclear test conducted at the Nevada Test Site.
(g) Participant means an individual—
(1) Who was:
(i) A member of the armed forces;
(ii) A civilian employee or contract employee of the Manhattan Engineer District, the Armed Forces Special Weapons Project, the Defense Atomic Support Agency, the Defense Nuclear Agency, or the Department of Defense or its components or agencies or predecessor components or agencies;
(iii) An employee or contract employee of the Atomic Energy Commission, the Energy Research and Development Administration, or the Department of Energy;
(iv) A member of the Federal Civil Defense Administration or the Office of Civil and Defense Mobilization; or
(v) A member of the United States Public Health Service; and
(2) Who:
(i) Performed duties within the identified operational area around each atmospheric detonation of a nuclear device;
(ii) Participated in the decontamination of any ships, planes, or equipment used during the atmospheric detonation of a nuclear device;
(iii) Performed duties as a cloud tracker or cloud sampler;
(iv) Served as a member of the garrison or maintenance forces on the atoll of Enewetak between June 21, 1951, and July 1, 1952; between August 7, 1956, and August 7, 1957; or between November 1, 1958, and April 30, 1959; or
(v) Performed duties as a member of a mobile radiological safety team monitoring the pattern of fallout from an atmospheric detonation of a nuclear device.
(h) Period of atmospheric nuclear testing means any of the periods associated with each test operation specified in § 79.31(d), plus an additional six-month period thereafter.
(i) Physically present (or physical presence) means present (or presence) for a substantial period of each day.
§ 79.12 Criteria for eligibility for claims relating to leukemia.
To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary must establish each of the following:
(a)(1) That the claimant was physically present at any place within the affected area for a period of at least one year (12 consecutive or cumulative months) during the period beginning on January 21, 1951, and ending on October 31, 1958;
(2) That the claimant was physically present at any place within the affected area for the entire, continuous period beginning on June 30, 1962, and ending on July 31, 1962; or
(3) That the claimant was present onsite at any time during a period of atmospheric nuclear testing and was a participant during that period in the atmospheric detonation of a nuclear device;
(b) That after such period of physical presence or onsite participation the claimant contracted leukemia;
(c) That the claimant’s initial exposure occurred prior to age 21; and
(d) That the onset of the leukemia occurred more than two years after the date of the claimant’s first exposure to fallout.
§ 79.13 Proof of physical presence for the requisite period and proof of participation onsite during a period of atmospheric nuclear testing.
(a) Proof of physical presence may be made by the submission of any trustworthy contemporaneous record that, on its face or in conjunction with other such records, establishes that the claimant was present in the affected area for the requisite period during the designated time period. Examples of such records include:
(1) Records of the federal government (including verified information submitted for a security clearance), any tribal government, or any state, county, city or local governmental office, agency, department, board or other entity, or other public office or agency;
(2) Records of any accredited public or private educational institution;
(3) Records of any private utility licensed or otherwise approved by any governmental entity, including any such utility providing telephone services;
(4) Records of any public or private library;
(5) Records of any state or local historical society;
(6) Records of any religious organization;
(7) Records of any regularly conducted business activity or entity;
(8) Records of any recognized civic or fraternal association or organization; and
(9) Medical records created during the designated time period.
(b) Proof of physical presence by contemporaneous records may also be made by submission of original postcards and envelopes from letters (not copies) addressed to the claimant or an immediate family member during the designated time period that bear a postmark and a cancelled stamp(s).
(c) The Program will presume that an individual who resided or was employed on a full-time basis within the affected area was physically present during the time period of residence or full-time employment.
(d) For purposes of establishing eligibility under § 79.12(a)(1), the Program will presume that proof of a claimant’s residence at one or more addresses or proof of full-time employment at one location within the affected area on any two dates less than three years apart during the period beginning on January 21, 1951, and ending on October 31, 1958, establishes the claimant’s presence within the affected area for the period between the two dates reflected in the documentation submitted as proof of presence.
(e) For purposes of establishing eligibility under § 79.12(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on two dates, one of which is before January 21, 1951, and another of which is within the specified time period, establishes the claimant’s presence in the affected area between January 21, 1951, and the date within the specified time period, provided the dates are not more than three years apart.
(f) For purposes of establishing eligibility under § 79.12(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on two dates, one of which is after October 31, 1958, and another of which is within the specified time period, establishes the claimant’s presence in the affected area between the date within the specified time period and October 31, 1958, provided the dates are not more than three years apart.
(g) For purposes of establishing eligibility under § 79.12(a)(2), the Program will presume that proof of residence or proof of full-time employment within the affected area at least one day during the period beginning June 30, 1962, and ending July 31, 1962, and proof of residence or proof of full-time employment at the same address or location within six months before June 30, 1962, and six months after July 31, 1962, establishes the claimant’s physical presence for the necessary one-month-and-one-day period.
(h) For purposes of establishing eligibility under § 79.12(a)(2), the Program will presume that proof of residence or full-time employment at the same address or location on two separate dates at least 14 days apart within the time period beginning June 30, 1962, and ending July 31, 1962, establishes the claimant’s physical presence for the necessary one-month-and-one-day period.
(i) For purposes of establishing eligibility under § 79.12(a)(3), the claimant must establish, in accordance with § 79.33, that he or she participated onsite in the atmospheric detonation of a nuclear device.
§ 79.14 Proof of initial exposure prior to age 21.
(a) Proof of the claimant’s date of birth must be established by the submission of any of the following:
(1) Birth certificate;
(2) Baptismal certificate;
(3) Tribal records; or
(4) Hospital records of birth.
(b) Absent any indication to the contrary, the Program will assume that the earliest date within the designated time period indicated on any records accepted by the Program as proof of the claimant’s physical presence in the affected area or participation during a period of atmospheric nuclear testing was also the date of initial exposure.
§ 79.15 Proof of onset of leukemia more than two years after first exposure.
The Program will presume that the date of onset was the date of diagnosis as indicated in the medical documentation accepted by the Program as proof of the claimant’s leukemia. The date of onset must be more than two years after the date of first exposure as determined under § 79.14(b).
§ 79.16 Proof of medical condition.
(a) Medical documentation is required in all cases to prove that the claimant suffered from or suffers from leukemia. Proof that the claimant contracted leukemia must be made either by using the procedure outlined in paragraph (b) of this section or by submitting the documentation required in paragraph (c) of this section.
(b) If a claimant was diagnosed as having leukemia in Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, the claimant or eligible surviving beneficiary need not submit any medical documentation of disease at the time the claim is filed (although medical documentation may subsequently be required). Instead, the claimant or eligible surviving beneficiary must submit with the claim an Authorization To Release Medical and Other Information, valid in the state of diagnosis, that authorizes the Program to contact the appropriate state cancer or tumor registry. The Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of one type of leukemia. If the designated state does not possess medical records or abstracts of medical records that contain a verified diagnosis of leukemia, the Radiation Exposure Compensation Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit the medical documentation required in paragraph (c) of this section, in accordance with the provisions of § 79.72(b).
(c)(1) Proof that the claimant contracted leukemia may be made by the submission of one or more of the following contemporaneous medical records provided that the specified document contains an explicit statement of diagnosis or such other information or data from which appropriate authorities at the National Cancer Institute can make a diagnosis of leukemia to a reasonable degree of medical certainty:
(i) Bone marrow biopsy or aspirate report;
(ii) Peripheral white blood cell differential count report;
(iii) Autopsy report;
(iv) Hospital discharge summary;
(v) Physician summary report;
(vi) History and physical report; or
(vii) Death certificate, provided that it is signed by a physician at the time of death.
(2) If the medical record submitted does not contain sufficient information or data to make such a diagnosis, the Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit additional medical records identified in this paragraph, in accordance with the provisions of § 79.72(b). Any such additional medical documentation submitted must also contain sufficient information from which appropriate authorities at the National Cancer Institute can determine the type of leukemia contracted by the claimant.
Subpart C—Eligibility Criteria for Claims Relating to Certain Specified Diseases Contracted After Exposure in an Affected Area (“Downwinders”)
§ 79.20 Scope of subpart.
The regulations in this subpart describe the criteria for eligibility for compensation under sections 4(a)(2) (A) and (B) of the Act and the evidence that will be accepted as proof of the various eligibility criteria. Sections 4(a)(2) (A) and (B) of the Act provide for a payment of $50,000 to individuals who were exposed to fallout from the atmospheric detonation of nuclear devices at the Nevada Test Site due to their physical presence in an affected area during a designated time period and who later developed one or more specified compensable diseases.
§ 79.21 Definitions.
(a) The definitions listed in § 79.11 (a) through (e) and (i) apply to this subpart.
(b) Indication of disease means any medically significant information that suggests the presence of a disease, whether or not the presence of the disease is later confirmed.
(c) Leukemia, chronic lymphocytic leukemia, multiple myeloma, lymphomas, Hodgkin’s disease, primary cancer of the thyroid, primary cancer of the male breast, primary cancer of the female breast, primary cancer of the esophagus, primary cancer of the stomach, primary cancer of the pharynx, primary cancer of the small intestine, primary cancer of the pancreas, primary cancer of the bile ducts, primary cancer of the gallbladder, primary cancer of the salivary gland, primary cancer of the urinary bladder, primary cancer of the brain, primary cancer of the colon, primary cancer of the ovary, primary cancer of the liver, and primary cancer of the lung mean the physiological conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.
(d) Specified compensable diseases means leukemia (other than chronic lymphocytic leukemia), provided that initial exposure occurred after the age of 20 and that the onset of the disease was at least two years after first exposure, and the following diseases, provided onset was at least five years after first exposure: multiple myeloma; lymphomas (other than Hodgkin’s disease); and primary cancer of the thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gallbladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or hepatitis B is indicated), or lung.
§ 79.22 Criteria for eligibility for claims relating to certain specified diseases contracted after exposure in an affected area (“downwinders”).
To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary must establish each of the following:
(a)(1) That the claimant was physically present at any place within the affected area for a period of at least two years (24 consecutive or cumulative months) during the period beginning on January 21, 1951, and ending on October 31, 1958; or
(2) That the claimant was physically present at any place within the affected area for the entire, continuous period beginning on June 30, 1962, and ending on July 31, 1962; and
(b) That after such period of physical presence the claimant contracted one of the following specified compensable diseases:
(1) Leukemia (other than chronic lymphocytic leukemia), provided that:
(i) The claimant’s initial exposure occurred after the age of 20; and
(ii) The onset of the disease occurred at least two years after first exposure;
(2) Multiple myeloma, provided onset occurred at least five years after first exposure;
(3) Lymphomas, other than Hodgkin’s disease, provided onset occurred at least five years after first exposure;
(4) Primary cancer of the thyroid, provided onset occurred at least five years after first exposure;
(5) Primary cancer of the male or female breast, provided onset occurred at least five years after first exposure;
(6) Primary cancer of the esophagus, provided onset occurred at least five years after first exposure;
(7) Primary cancer of the stomach, provided onset occurred at least five years after first exposure;
(8) Primary cancer of the pharynx, provided onset occurred at least five years after first exposure;
(9) Primary cancer of the small intestine, provided onset occurred at least five years after first exposure;
(10) Primary cancer of the pancreas, provided onset occurred at least five years after first exposure;
(11) Primary cancer of the bile ducts, provided onset occurred at least five years after first exposure;
(12) Primary cancer of the gallbladder, provided onset occurred at least five years after first exposure;
(13) Primary cancer of the salivary gland, provided onset occurred at least five years after first exposure;
(14) Primary cancer of the urinary bladder, provided onset occurred at least five years after first exposure;
(15) Primary cancer of the brain, provided onset occurred at least five years after first exposure;
(16) Primary cancer of the colon, provided onset occurred at least five years after first exposure;
(17) Primary cancer of the ovary, provided onset occurred at least five years after first exposure;
(18) Primary cancer of the liver, provided,
(i) Onset occurred at least five years after first exposure;
(ii) There is no indication of the presence of hepatitis B; and
(iii) There is no indication of the presence of cirrhosis; or
(19) Primary cancer of the lung, provided onset occurred at least five years after first exposure.
§ 79.23 Proof of physical presence for the requisite period.
(a) Proof of physical presence for the requisite period may be made in accordance with the provisions of § 79.13(a) and (b). An individual who resided or was employed on a full-time basis within the affected area is presumed to have been physically present during the time period of residence or full-time employment.
(b) For purposes of establishing eligibility under § 79.22(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on any two dates less than three years apart, during the period beginning on January 21, 1951, and ending on October 31, 1958, establishes the claimant’s presence within the affected area for the period between the two dates reflected in the documentation submitted as proof of presence.
(c) For purposes of establishing eligibility under § 79.22(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on two dates, one of which is before January 21, 1951, and another of which is within the specified time period, establishes the claimant’s presence in the affected area between January 21, 1951, and the date within the specified time period, provided the dates are not more than three years apart.
(d) For purposes of establishing eligibility under § 79.22(a)(1), the Program will presume that proof of residence at one or more addresses or proof of full-time employment at one location within the affected area on two dates, one of which is after October 31, 1958, and another of which is within the specified time period, establishes the claimant’s presence in the affected area between the date within the specified time period and October 31, 1958, provided the dates are not more than three years apart.
(e) For purposes of establishing eligibility under § 79.22(a)(2), the Program will apply the presumptions contained in § 79.13(g) and (h).
§ 79.24 Proof of initial or first exposure after age 20 for claims under § 79.22(b)(1).
(a) Proof of the claimant’s date of birth must be established in accordance with the provisions of § 79.14(a).
(b) Absent any indication to the contrary, the Program will presume that the earliest date within the designated time period indicated on any records accepted by the Program as proof of the claimant’s physical presence in the affected area was the date of initial or first exposure.
§ 79.25 Proof of onset of leukemia at least two years after first exposure, and proof of onset of a specified compensable disease more than five years after first exposure.
The date of onset will be the date of diagnosis as indicated in the medical documentation accepted by the Radiation Exposure Compensation Program as proof of the claimant’s specified compensable disease. The date of onset must be at least five years after the date of first exposure as determined under § 79.24(b). In the case of leukemia, the date of onset must be at least two years after the date of first exposure.
§ 79.26 Proof of medical condition.
(a) Medical documentation is required in all cases to prove that the claimant suffered from or suffers from any specified compensable disease. Proof that the claimant contracted a specified compensable disease must be made either by using the procedure outlined in paragraph (b) of this section or by submitting the documentation required in paragraph (c) of this section. (For claims relating to primary cancer of the liver, the claimant or eligible surviving beneficiary must also submit the additional medical documentation prescribed in § 79.27.)
(b) If a claimant was diagnosed as having one of the specified compensable diseases in Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, the claimant or eligible surviving beneficiary need not submit any medical documentation of disease at the time the claim is filed (although medical documentation subsequently may be required). Instead, the claimant or eligible surviving beneficiary may submit with the claim an Authorization to Release Medical and Other Information, valid in the state of diagnosis, that authorizes the Program to contact the appropriate state cancer or tumor registry. The Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of one of the specified compensable diseases. If the designated state does not possess medical records or abstracts of medical records that contain a verified diagnosis of one of the specified compensable diseases, the Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit the written medical documentation required in paragraph (c) of this section, in accordance with the provisions of § 79.72(b).
(c) Proof that the claimant contracted a specified compensable disease may be made by the submission of one or more of the contemporaneous medical records listed in this paragraph, provided that the specified document contains an explicit statement of diagnosis and such other information or data from which the appropriate authorities with the National Cancer Institute can make a diagnosis to a reasonable degree of medical certainty. If the medical record submitted does not contain sufficient information or data to make such a diagnosis, the Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit additional medical records identified in this paragraph, in accordance with the provisions of § 79.72(b). The medical documentation submitted under this section to establish that the claimant contracted leukemia or a lymphoma must also contain sufficient information from which the appropriate authorities with the National Cancer Institute can determine the type of leukemia or lymphoma contracted by the claimant. Proof of leukemia shall be made by submitting one or more of the documents listed in § 79.16(c).
(1) Multiple myeloma.
(i) Pathology report of tissue biopsy;
(ii) Autopsy report;
(iii) Report of serum electrophoresis;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Hematology summary or consultation report;
(D) Medical oncology summary or consultation report; or
(E) X-ray report; or
(v) Death certificate, provided that it is signed by a physician at the time of death.
(2) Lymphomas.
(i) Pathology report of tissue biopsy;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Hematology consultation or summary report; or
(D) Medical oncology consultation or summary report; or
(iv) Death certificate, provided that it is signed by a physician at the time of death.
(3) Primary cancer of the thyroid.
(i) Pathology report of tissue biopsy or fine needle aspirate;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Operative summary report;
(D) Medical oncology summary or consultation report; or
(iv) Death certificate, provided that it is signed by a physician at the time of death.
(4) Primary cancer of the male or female breast.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Operative report;
(D) Medical oncology summary or consultation report; or
(E) Radiotherapy summary or consultation report;
(iv) Report of mammogram;
(v) Report of bone scan; or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
(5) Primary cancer of the esophagus.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) Endoscopy report;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Operative report;
(D) Radiotherapy report; or
(E) Medical oncology consultation or summary report;
(v) One of the following radiological studies:
(A) Esophagram;
(B) Barium swallow;
(C) Upper gastrointestinal (GI) series;
(D) Computerized tomography (CT) scan; or
(E) Magnetic resonance imaging (MRI); or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
(6) Primary cancer of the stomach.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) Endoscopy or gastroscopy report;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Operative report;
(D) Radiotherapy report; or
(E) Medical oncology summary report;
(v) One of the following radiological studies:
(A) Barium swallow;
(B) Upper gastrointestinal (GI) series;
(C) Computerized tomography (CT) series; or
(D) Magnetic resonance imaging (MRI); or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
(7) Primary cancer of the pharynx.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) Endoscopy report;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Report of otolaryngology examination;
(D) Radiotherapy summary report;
(E) Medical oncology summary report; or
(F) Operative report;
(v) Report of one of the following radiological studies:
(A) Laryngograms;
(B) Tomograms of soft tissue and lateral radiographs;
(C) Computerized tomography (CT) scan; or
(D) Magnetic resonance imaging (MRI); or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
(8) Primary cancer of the small intestine.
(i) Pathology report of tissue biopsy;
(ii) Autopsy report;
(iii) Endoscopy report, provided that the examination covered the duodenum and parts of the jejunum;
(iv) Colonoscopy report, provided that the examination covered the distal ileum;
(v) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Report of gastroenterology examination;
(D) Operative report;
(E) Radiotherapy summary report; or
(F) Medical oncology summary or consultation report;
(vi) Report of one of the following radiologic studies:
(A) Upper gastrointestinal (GI) series with small bowel follow-through;
(B) Angiography;
(C) Computerized tomography (CT) scan; or
(D) Magnetic resonance imaging (MRI); or
(vii) Death certificate, provided that it is signed by a physician at the time of death.
(9) Primary cancer of the pancreas.
(i) Pathology report of tissue biopsy or fine needle aspirate;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Radiotherapy summary report; or
(D) Medical oncology summary report;
(iv) Report of one of the following radiographic studies:
(A) Endoscopic retrograde cholangiopancreatography (ERCP);
(B) Upper gastrointestinal (GI) series;
(C) Arteriography of the pancreas;
(D) Ultrasonography;
(E) Computerized tomography (CT) scan; or
(F) Magnetic resonance imaging (MRI); or
(v) Death certificate, provided that it is signed by a physician at the time of death.
(10) Primary cancer of the bile ducts.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Operative report;
(D) Gastroenterology consultation report; or
(E) Medical oncology summary or consultation report;
(iv) Report of one of the following radiographic studies:
(A) Ultrasonography;
(B) Endoscopic retrograde cholangiography;
(C) Percutaneous cholangiography; or
(D) Computerized tomography (CT) scan; or
(v) Death certificate, provided that it is signed by a physician at the time of death.
(11) Primary cancer of the gallbladder.
(i) Pathology report of tissue from surgical resection;
(ii) Autopsy report;
(iii) Report of one of the following radiological studies:
(A) Computerized tomography (CT) scan;
(B) Magnetic resonance imaging (MRI); or
(C) Ultrasonography (ultrasound);
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Operative report;
(D) Radiotherapy report; or
(E) Medical oncology summary or report; or
(v) Death certificate, provided that it is signed by a physician at the time of death.
(12) Primary cancer of the liver.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Medical oncology summary report;
(D) Operative report; or
(E) Gastroenterology report;
(iv) Report of one of the following radiological studies:
(A) Computerized tomography (CT) scan;
(B) Magnetic resonance imaging (MRI); or
(v) Death certificate, provided that it is signed by a physician at the time of death.
(13) Primary cancer of the lung.
(i) Pathology report of tissue biopsy or resection, including, but not limited to specimens obtained by any of the following methods:
(A) Surgical resection;
(B) Endoscopic endobronchial or transbronchial biopsy;
(C) Bronchial brushings and washings;
(D) Pleural fluid cytology;
(E) Fine needle aspirate;
(F) Pleural biopsy; or
(G) Sputum cytology;
(ii) Autopsy report;
(iii) Report of bronchoscopy, with or without biopsy;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Radiotherapy summary report;
(D) Medical oncology summary report; or
(E) Operative report;
(v) Report of one of the following radiology examinations:
(A) Computerized tomography (CT) scan;
(B) Magnetic resonance imaging (MRI);
(C) X-rays of the chest; or
(D) Chest tomograms; or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
(14) Primary cancer of the salivary gland.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) Report of otolaryngology or oral maxillofacial examination;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Radiotherapy summary report;
(D) Medical oncology summary report; or
(E) Operative report;
(v) Report of one of the following radiology examinations:
(A) Computerized tomography (CT) scan; or
(B) Magnetic resonance imaging (MRI); or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
(15) Primary cancer of the urinary bladder.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) Report of cytoscopy, with or without biopsy;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Radiotherapy summary report;
(D) Medical oncology summary report; or
(E) Operative report;
(v) Report of one of the following radiology examinations:
(A) Computerized tomography (CT) scan; or
(B) Magnetic resonance imaging (MRI); or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
(16) Primary cancer of the brain.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Radiotherapy summary report;
(D) Medical oncology summary report; or
(E) Operative report;
(iv) Report of one of the following radiology examinations:
(A) Computerized tomography (CT) scan;
(B) Magnetic resonance imaging (MRI); or
(C) CT or MRI with enhancement; or
(v) Death certificate, provided that it is signed by a physician at the time of death.
(17) Primary cancer of the colon.
(i) Pathology report of tissue biopsy;
(ii) Autopsy report;
(iii) Endoscopy report, provided the examination covered the duodenum and parts of the jejunum;
(iv) Colonoscopy report, provided that the examination covered the distal ileum;
(v) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Report of gastroenterology examination;
(D) Operative report;
(E) Radiotherapy summary report; or
(F) Medical oncology summary or consultation report;
(vi) Report of one of the following radiologic studies:
(A) Upper gastrointestinal (GI) series with small bowel follow-through;
(B) Angiography;
(C) Computerized tomography (CT) scan; or
(D) Magnetic resonance imaging (MRI); or
(vii) Death certificate, provided that it is signed by a physician at the time of death.
(18) Primary cancer of the ovary.
(i) Pathology report of tissue biopsy or surgical resection;
(ii) Autopsy report;
(iii) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Radiotherapy summary report;
(D) Medical oncology summary report; or
(E) Operative report; or
(iv) Death certificate, provided that it is signed by a physician at the time of death.
§ 79.27 Indication of the presence of hepatitis B or cirrhosis.
(a)(1) If the claimant or eligible surviving beneficiary is claiming eligibility under this subpart for primary cancer of the liver, the claimant or eligible surviving beneficiary must submit, in addition to proof of the disease, all medical records pertaining to the claimant listed below from any hospital, medical facility, or health care provider that were created within the period six months before and six months after the date of diagnosis of primary cancer of the liver:
(i) All history and physical examination reports;
(ii) All operative and consultation reports;
(iii) All pathology reports; and
(iv) All physician, hospital, and health care facility admission and discharge summaries.
(2) In the event that any of the records in paragraph (a)(1) of this section no longer exist, the claimant or eligible surviving beneficiary must submit a certified statement by the custodian(s) of those records to that effect.
(b) If the medical records listed in paragraph (a) of this section, or information possessed by the state cancer or tumor registries, indicates the presence of hepatitis B or cirrhosis, the Radiation Exposure Compensation Program will notify the claimant or eligible surviving beneficiary and afford that individual the opportunity to submit other written medical documentation or contemporaneous records in accordance with § 79.72(b) to establish that in fact there was no presence of hepatitis B or cirrhosis.
(c) The Program may also require that the claimant or eligible surviving beneficiary provide additional medical records or other contemporaneous records, or an authorization to release such additional medical and contemporaneous records, as may be needed to make a determination regarding the indication of the presence of hepatitis B or cirrhosis.
Subpart D—Eligibility Criteria for Claims by Onsite Participants
§ 79.30 Scope of subpart.
The regulations in this subpart describe the criteria for eligibility for compensation under section 4(a)(2)(C) of the Act, and the evidence that will be accepted as proof of the various eligibility criteria. Section 4(a)(2)(C) of the Act provides for a payment of $75,000 to individuals who participated onsite in the atmospheric detonation of a nuclear device and later developed a specified compensable disease.
§ 79.31 Definitions.
(a) The definitions listed in § 79.11(b), (e), (f), (g), and (h), and in § 79.21, apply to this subpart.
(b) Atmospheric detonation of a nuclear device means only a test conducted by the United States prior to January 1, 1963, as listed in paragraph (d) of this section.
(c) First exposure or initial exposure means the date on which the claimant first participated onsite in an atmospheric detonation of a nuclear device.
(d) Period of atmospheric nuclear testing means one of the periods listed in this paragraph that are associated with each test operation, plus an additional six-month period thereafter:
(1) For Operation Trinity, the period July 16, 1945, through August 6, 1945:
| Event name | Date | Location |
|---|---|---|
| Trinity | 07/16/45 | Trinity Test Site |
(2) For Operation Crossroads, the period June 28, 1946, through August 31, 1946, for all activities other than the decontamination of ships involved in Operation Crossroads; the period of atmospheric nuclear testing for the decontamination of ships involved in Operation Crossroads shall run from June 28, 1946, through November 30, 1946:
| Event name | Date | Location |
|---|---|---|
| Able | 07/01/46 | Bikini |
| Baker | 07/25/46 | Bikini |
(3) For Operation Sandstone, the period April 13, 1948, through May 20, 1948:
| Event name | Date | Location |
|---|---|---|
| X-ray | 04/15/48 | Enewetak |
| Yoke | 05/01/48 | Enewetak |
| Zebra | 05/15/48 | Enewetak |
(4) For Operation Ranger, the period January 27, 1951, through February 7, 1951:
| Event name | Date | Location |
|---|---|---|
| Able | 01/27/51 | Nevada Test Site (“NTS”) |
| Baker | 01/28/51 | NTS |
| Easy | 02/01/51 | NTS |
| Baker-2 | 02/02/51 | NTS |
| Fox | 02/06/51 | NTS |
(5) For Operation Greenhouse, the period April 5, 1951, through June 20, 1951, for all activities other than service as a member of the garrison or maintenance forces on the atoll of Enewetak between June 21, 1951, and July 1, 1952; the period of atmospheric nuclear testing for service as a member of the garrison or maintenance forces on the atoll of Enewetak shall run from April 5, 1951, through July 1, 1952:
| Event name | Date | Location |
|---|---|---|
| Dog | 04/08/51 | Enewetak |
| Easy | 04/21/51 | Enewetak |
| George | 05/09/51 | Enewetak |
| Item | 05/25/51 | Enewetak |
(6) For Operation Buster-Jangle, the period October 22, 1951, through December 20, 1951:
| Event name | Date | Location |
|---|---|---|
| Able | 10/22/51 | NTS |
| Baker | 10/28/51 | NTS |
| Charlie | 10/30/51 | NTS |
| Dog | 11/01/51 | NTS |
| Sugar | 11/19/51 | NTS |
| Uncle | 11/29/51 | NTS |
(7) For Operation Tumbler-Snapper, the period April 1, 1952, through June 20, 1952:
| Event name | Date | Location |
|---|---|---|
| Able | 04/01/52 | NTS |
| Baker | 04/15/52 | NTS |
| Charlie | 04/22/52 | NTS |
| Dog | 05/01/52 | NTS |
| Easy | 05/07/52 | NTS |
| Fox | 05/25/52 | NTS |
| George | 06/01/52 | NTS |
(8) For Operation Ivy, the period October 29, 1952, through December 31, 1952:
| Event name | Date | Location |
|---|---|---|
| Mike | 11/01/52 | Enewetak |
| King | 11/16/52 | Enewetak |
(9) For Operation Upshot-Knothole, the period March 17, 1953, through June 20, 1953:
| Event name | Date | Location |
|---|---|---|
| Annie | 03/17/53 | NTS |
| Nancy | 03/24/53 | NTS |
| Ruth | 03/31/53 | NTS |
| Dixie | 04/06/53 | NTS |
| Ray | 04/11/53 | NTS |
| Badger | 04/18/53 | NTS |
| Simon | 04/25/53 | NTS |
| Encore | 05/08/53 | NTS |
| Harry | 05/19/53 | NTS |
| Grable | 05/25/53 | NTS |
| Climax | 06/04/53 | NTS |
(10) For Operation Castle, the period February 27, 1954, through May 31, 1954
| Event name | Date | Location |
|---|---|---|
| Bravo | 03/01/54 | Bikini |
| Romeo | 03/27/54 | Bikini |
| Koon | 04/07/54 | Bikini |
| Union | 04/26/54 | Bikini |
| Yankee | 05/05/54 | Bikini |
| Nectar | 05/14/54 | Enewetak |
(11) For Operation Teapot, the period February 18, 1955, through June 10, 1955:
| Event name | Date | Location |
|---|---|---|
| Wasp | 02/18/55 | NTS |
| Moth | 02/22/55 | NTS |
| Tesla | 03/01/55 | NTS |
| Turk | 03/07/55 | NTS |
| Hornet | 03/12/55 | NTS |
| Bee | 03/22/55 | NTS |
| Ess | 03/23/55 | NTS |
| Apple-1 | 03/29/55 | NTS |
| Wasp Prime | 03/29/55 | NTS |
| Ha | 04/06/55 | NTS |
| Post | 04/09/55 | NTS |
| Met | 04/15/55 | NTS |
| Apple-2 | 05/05/55 | NTS |
| Zucchini | 05/15/55 | NTS |
(12) For Operation Wigwam, the period May 14, 1955, through May 15, 1955:
| Event name | Date | Location |
|---|---|---|
| Wigwam | 05/14/55 | Pacific |
(13) For Operation Redwing, the period May 2, 1956, through August 6, 1956, for all activities other than service as a member of the garrison or maintenance forces on the atoll of Enewetak from August 7, 1956, through August 7, 1957; the period of atmospheric nuclear testing for service as a member of the garrison or maintenance forces on the atoll of Enewetak shall run from May 2, 1956, through August 7, 1957:
| Event name | Date | Location |
|---|---|---|
| Lacrosse | 05/05/56 | Enewetak |
| Cherokee | 05/21/56 | Bikini |
| Zuni | 05/28/56 | Bikini |
| Yuma | 05/28/56 | Enewetak |
| Erie | 05/31/56 | Enewetak |
| Seminole | 06/06/56 | Enewetak |
| Flathead | 06/12/56 | Bikini |
| Blackfoot | 06/12/56 | Enewetak |
| Kickapoo | 06/14/56 | Enewetak |
| Osage | 06/16/56 | Enewetak |
| Inca | 06/22/56 | Enewetak |
| Dakota | 06/26/56 | Bikini |
| Mohawk | 07/03/56 | Enewetak |
| Apache | 07/09/56 | Enewetak |
| Navajo | 07/11/56 | Bikini |
| Tewa | 07/21/56 | Bikini |
| Huron | 07/22/56 | Enewetak |
(14) For Operation Plumbbob, the period May 28, 1957, through October 22, 1957:
| Event name | Date | Location |
|---|---|---|
| Boltzmann | 05/28/57 | NTS |
| Franklin | 06/02/57 | NTS |
| Lassen | 06/05/57 | NTS |
| Wilson | 06/18/57 | NTS |
| Priscilla | 06/24/57 | NTS |
| Hood | 07/05/57 | NTS |
| Diablo | 07/15/57 | NTS |
| John | 07/19/57 | NTS |
| Kepler | 07/24/57 | NTS |
| Owens | 07/25/57 | NTS |
| Stokes | 08/07/57 | NTS |
| Shasta | 08/18/57 | NTS |
| Doppler | 08/23/57 | NTS |
| Franklin Prime | 08/30/57 | NTS |
| Smoky | 08/31/57 | NTS |
| Galileo | 09/02/57 | NTS |
| Wheeler | 09/06/57 | NTS |
| Laplace | 09/08/57 | NTS |
| Fizeau | 09/14/57 | NTS |
| Newton | 09/16/57 | NTS |
| Whitney | 09/23/57 | NTS |
| Charleston | 09/28/57 | NTS |
| Morgan | 10/07/57 | NTS |
(15) For Operation Hardtack I, the period April 26, 1958, through October 31, 1958, for all activities other than service as a member of the garrison or maintenance forces on the atoll of Enewetak from November 1, 1958, through April 30, 1959; the period of atmospheric nuclear testing for service as a member of the garrison or maintenance forces on the atoll of Enewetak shall run from April 26, 1958, through April 30, 1959:
| Event name | Date | Location |
|---|---|---|
| Yucca | 04/28/58 | Pacific |
| Cactus | 05/06/58 | Enewetak |
| Fir | 05/12/58 | Bikini |
| Butternut | 05/12/58 | Enewetak |
| Koa | 05/13/58 | Enewetak |
| Wahoo | 05/16/58 | Enewetak |
| Holly | 05/21/58 | Enewetak |
| Nutmeg | 05/22/58 | Bikini |
| Yellowwood | 05/26/58 | Enewetak |
| Magnolia | 05/27/58 | Enewetak |
| Tobacco | 05/30/58 | Enewetak |
| Sycamore | 05/31/58 | Bikini |
| Rose | 06/03/58 | Enewetak |
| Umbrella | 06/09/58 | Enewetak |
| Maple | 06/11/58 | Bikini |
| Aspen | 06/15/58 | Bikini |
| Walnut | 06/15/58 | Enewetak |
| Linden | 06/18/58 | Enewetak |
| Redwood | 06/28/58 | Bikini |
| Elder | 06/28/58 | Enewetak |
| Oak | 06/29/58 | Enewetak |
| Hickory | 06/29/58 | Bikini |
| Sequoia | 07/02/58 | Enewetak |
| Cedar | 07/03/58 | Bikini |
| Dogwood | 07/06/58 | Enewetak |
| Poplar | 07/12/58 | Bikini |
| Scaevola | 07/14/58 | Enewetak |
| Pisonia | 07/18/58 | Enewetak |
| Juniper | 07/22/58 | Bikini |
| Olive | 07/23/58 | Enewetak |
| Pine | 07/27/58 | Enewetak |
| Teak | 07/31/58 | Johnston Isl |
| Qunice | 08/06/58 | Enewetak |
| Orange | 08/11/58 | Johnston Isl |
| Fig | 08/18/58 | Enewetak |
(16) For Operation Argus, the period August 25, 1958, through September 10, 1958:
| Event name | Date | Location |
|---|---|---|
| Argus I | 08/27/58 | South Atlantic |
| Argus II | 08/30/58 | South Atlantic |
| Argus III | 09/06/58 | South Atlantic |
(17) For Operation Hardtack II, the period September 19, 1958, through October 31, 1958:
| Event name | Date | Location |
|---|---|---|
| Eddy | 09/19/58 | NTS |
| Mora | 09/29/58 | NTS |
| Quay | 10/10/58 | NTS |
| Lea | 10/13/58 | NTS |
| Hamilton | 10/15/58 | NTS |
| Dona Ana | 10/16/58 | NTS |
| Rio Arriba | 10/18/58 | NTS |
| Socorro | 10/22/58 | NTS |
| Wrangell | 10/22/58 | NTS |
| Rushmore | 10/22/58 | NTS |
| Sanford | 10/26/58 | NTS |
| De Baca | 10/26/58 | NTS |
| Humboldt | 10/29/58 | NTS |
| Mazama | 10/29/58 | NTS |
| Santa Fe | 10/30/58 | NTS |
(18) For Operation Dominic I, the period April 23, 1962, through December 31, 1962:
| Event name | Date | Location |
|---|---|---|
| Adobe | 04/25/62 | Christmas Isl |
| Aztec | 04/27/62 | Christmas Isl |
| Arkansas | 05/02/62 | Christmas Isl |
| Questa | 05/04/62 | Christmas Isl |
| Frigate Bird | 05/06/62 | Pacific |
| Yukon | 05/08/62 | Christmas Isl |
| Mesilla | 05/09/62 | Christmas Isl |
| Muskegon | 05/11/62 | Christmas Isl |
| Swordfish | 05/11/62 | Pacific |
| Encino | 05/12/62 | Christmas Isl |
| Swanee | 05/14/62 | Christmas Isl |
| Chetco | 05/19/62 | Christmas Isl |
| Tanana | 05/25/62 | Christmas Isl |
| Nambe | 05/27/62 | Christmas Isl |
| Alma | 06/08/62 | Christmas Isl |
| Truckee | 06/09/62 | Christmas Isl |
| Yeso | 06/10/62 | Christmas Isl |
| Harlem | 06/12/62 | Christmas Isl |
| Rinconada | 06/15/62 | Christmas Isl |
| Dulce | 06/17/62 | Christmas Isl |
| Petit | 06/19/62 | Christmas Isl |
| Otowi | 06/22/62 | Christmas Isl |
| Bighorn | 06/27/62 | Christmas Isl |
| Bluestone | 06/30/62 | Christmas Isl |
| Starfish | 07/08/62 | Johnston Isl |
| Sunset | 07/10/62 | Christmas Isl |
| Pamlico | 07/11/62 | Christmas Isl |
| Androscoggin | 10/02/62 | Johnston Isl |
| Bumping | 10/06/62 | Johnston Isl |
| Chama | 10/18/62 | Johnston Isl |
| Checkmate | 10/19/62 | Johnston Isl |
| Bluegill | 10/25/62 | Johnston Isl |
| Calamity | 10/27/62 | Johnston Isl |
| Housatonic | 10/30/62 | Johnston Isl |
| Kingfish | 11/01/62 | Johnston Isl |
| Tightrope | 11/03/62 | Johnston Isl |
(19) For Operation Dominic II, the period July 7, 1962, through August 15, 1962:
| Event name | Date | Location |
|---|---|---|
| Little Feller II | 07/07/62 | NTS |
| Johnie Boy | 07/11/62 | NTS |
| Small Boy | 07/14/62 | NTS |
| Little Feller I | 07/17/62 | NTS |
(20) For Operation Plowshare, the period July 6, 1962, through July 7, 1962, covering Project Sedan.
§ 79.32 Criteria for eligibility for claims by onsite participants.
To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary must establish each of the following:
(a) That the claimant was present onsite at any time during a period of atmospheric nuclear testing;
(b) That the claimant was a participant during that period in the atmospheric detonation of a nuclear device; and
(c) That after such participation, the claimant contracted a specified compensable disease as set forth in § 79.22(b).
§ 79.33 Proof of participation onsite during a period of atmospheric nuclear testing.
(a) Claimants associated with Department of Defense (DoD) Components or DoD Contractors. (1) A claimant or eligible surviving beneficiary who alleges that the claimant was present onsite during a period of atmospheric nuclear testing as a member of the armed forces or an employee or contractor employee of the DoD, or any of its components or agencies, must submit the following information on the claim form:
(i) The claimant’s name;
(ii) The claimant’s military service number;
(iii) The claimant’s Social Security number;
(iv) The site at which the claimant participated in the atmospheric detonation of a nuclear device;
(v) The name or number of the claimant’s military organization or unit assignment at the time of his or her onsite participation;
(vi) The dates of the claimant’s assignment onsite; and
(vii) As full and complete a description as possible of the claimant’s official duties, responsibilities, and activities while participating onsite.
(2) A claimant or eligible surviving beneficiary under this section need not submit any additional documentation of onsite participation during the atmospheric detonation of a nuclear device at the time the claim is filed; however, additional documentation may be required as set forth in paragraph (a)(3) of this section.
(3) Upon receipt under this subpart of a claim that contains the information set forth in paragraph (a)(1) of this section, the Radiation Exposure Compensation Program will forward the information to the DoD and request that the DoD conduct a search of its records for the purpose of gathering facts relating to the claimant’s presence onsite and participation in the atmospheric detonation of a nuclear device. If the facts gathered by the DoD are insufficient to establish the eligibility criteria in § 79.32, the claimant or eligible surviving beneficiary will be notified and afforded the opportunity to submit military, government, or business records in accordance with the procedure set forth in § 79.72(c).
(b) Claimants Associated with the Atomic Energy Commission (AEC) or the Department of Energy (DOE), or Who Were Members of the Federal Civil Defense Administration or the Office of Civil and Defense Mobilization. (1) A claimant or eligible surviving beneficiary who alleges that the claimant was present onsite during the atmospheric detonation of a nuclear device as an employee of the AEC, the DOE or any of their components, agencies or offices, or as an employee of a contractor of the AEC, or DOE, or as a member of the Federal Civil Defense Administration or the Office of Civil and Defense Mobilization, must submit the following information on the claim form:
(i) The claimant’s name;
(ii) The claimant’s Social Security number;
(iii) The site at which the claimant participated in the atmospheric detonation of a nuclear device;
(iv) The name or other identifying information associated with the claimant’s organization, unit, assignment, or employer at the time of the claimant’s participation onsite;
(v) The dates of the claimant’s assignment onsite; and
(vi) As full and complete a description as possible of the claimant’s official duties, responsibilities, and activities while participating onsite.
(2) A claimant or eligible surviving beneficiary under this section need not at the time the claim is filed submit any additional documentation demonstrating the claimant’s presence onsite during the atmospheric detonation of a nuclear device; however, additional documentation may thereafter be required as set forth in paragraph (b)(3) of this section.
(3) Upon receipt under this subpart of a claim that contains the information set forth in paragraph (b)(1) of this section, the Radiation Exposure Compensation Program will forward the information to the Nevada Field Office of the Department of Energy (DOE/NV) and request that the DOE/NV conduct a search of its records for the purpose of gathering facts relating to the claimant’s presence onsite and participation in the atmospheric detonation of a nuclear device. If the facts gathered by the DOE/NV are insufficient to establish the eligibility criteria in § 79.32, the claimant or eligible surviving beneficiary will be notified and afforded the opportunity to submit military, government, or business records in accordance with the procedure set forth in § 79.72(c).
§ 79.34 Proof of medical condition.
Proof of medical condition under this subpart will be made in the same manner and according to the same procedures and limitations as are set forth in § 79.16 and § 79.26.
§ 79.35 Proof of onset of leukemia at least two years after first exposure, and proof of onset of a specified compensable disease more than five years after first exposure.
Absent any indication to the contrary, the earliest date of onsite participation indicated on any records accepted by the Radiation Exposure Compensation Program as proof of the claimant’s onsite participation will be presumed to be the date of first or initial exposure. The date of onset will be the date of diagnosis as indicated on the medical documentation accepted by the Radiation Exposure Compensation Program as proof of the specified compensable disease. Proof of the onset of leukemia shall be established in accordance with § 79.15.
§ 79.36 Indication of the presence of hepatitis B or cirrhosis.
Possible indication of hepatitis B or cirrhosis will be determined in accordance with the provisions of § 79.27.
Subpart E—Eligibility Criteria for Claims by Uranium Miners
§ 79.40 Scope of subpart.
The regulations in this subpart define the eligibility criteria for compensation under section 5 of the Act pertaining to miners, i.e., uranium mine workers, and the nature of the evidence that will be accepted as proof of the various eligibility criteria. Section 5 of the Act provides for a payment of $100,000 to miners who contracted primary lung cancer or one of a limited number of nonmalignant respiratory diseases following exposure to a defined minimum level of radiation during employment in aboveground or underground uranium mines or following employment for at least one year in aboveground or underground uranium mines in specified states during the period beginning January 1, 1942, and ending December 31, 1971.
§ 79.41 Definitions.
(a) Cor pulmonale means heart disease, including hypertrophy of the right ventricle, due to pulmonary hypertension secondary to fibrosis of the lung.
(b) Designated time period means the period beginning on January 1, 1942, and ending on December 31, 1971.
(c) Employment for at least one year means employment for a total of at least one year (12 consecutive or cumulative months).
(d) Fibrosis of the lung or pulmonary fibrosis means chronic inflammation and scarring of the pulmonary interstitium and alveoli with collagen deposition and progressive thickening.
(e) Miner or uranium mine worker means a person who operated or otherwise worked in a uranium mine.
(f) National Institute for Occupational Safety and Health (NIOSH) certified “B” reader means a physician who is certified as such by NIOSH. A list of certified “B” readers is available from the Radiation Exposure Compensation Program upon request.
(g) Nonmalignant respiratory disease means fibrosis of the lung, pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, silicosis, or pneumoconiosis.
(h) Pneumoconiosis means a chronic lung disease resulting from inhalation and deposition in the lung of particulate matter, and the tissue reaction to the presence of the particulate matter. For purposes of this subpart, the claimant’s exposure to the particulate matter that led to the disease must have occurred during employment in a uranium mine.
(i) Primary lung cancer means any physiological condition of the lung, trachea, or bronchus that is recognized under that name or nomenclature by the National Cancer Institute. The term includes in situ lung cancers.
(j) Readily available documentation means documents in the possession, custody, or control of the claimant or an immediate family member.
(k) Silicosis means a pneumoconiosis due to the inhalation of the dust of stone, sand, flint, or other materials containing silicon dioxide, characterized by the formation of pulmonary fibrotic changes.
(l) Specified state means Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon, or Texas. Additional states may be included, provided:
(1) A uranium mine was operated in such state at any time during the period beginning on January 1, 1942, and ending on December 31, 1971;
(2) The state submits an application to the Assistant Director (specified in § 79.70(a)) to include such state; and
(3) The Assistant Director makes a determination to include such state.
(m) Uranium mine means any underground excavation, including “dog holes,” as well as open-pit, strip, rim, surface, or other aboveground mines, where uranium ore or vanadium-uranium ore was mined or otherwise extracted.
(n) Working level means the concentration of the short half-life daughters of radon that will release (1.3 × 10
(o) Working level month of radiation means radiation exposure at the level of one working level every work day for a month, or an equivalent cumulative exposure over a greater or lesser amount of time.
(p) Written diagnosis by a physician means a written determination of the nature of a disease made from a study of the signs and symptoms of a disease that is based on a physical examination of the patient, medical imaging or a chemical, microscopic, microbiologic, immunologic or pathologic study of physiologic and functional tests, secretions, discharges, blood, or tissue. For purposes of satisfying the requirement of a “written diagnosis by a physician” for living claimants specified in § 79.46, a physician submitting a written diagnosis of a nonmalignant respiratory disease must be employed by the Indian Health Service or the Department of Veterans Affairs or be board certified, and must have a documented, ongoing physician-patient relationship with the claimant. An “ongoing physician-patient relationship” can include referrals made to specialists from a primary care provider for purposes of diagnosis or treatment. “Board certification” requires, in addition to physician licensing, the successful completion of a residency training program and passage of a Board exam in a relevant field or specialty. Relevant specialties include: family practice, internal medicine, pathology, preventive medicine, radiology, surgery, and thoracic surgery (and including subspecialties such as cardiovascular disease, medical oncology, pulmonary disease) as listed by the American Board of Medical Specialties.
§ 79.42 Criteria for eligibility for claims by miners.
To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary must establish each of the following:
(a) The claimant was employed as a miner in a specified state;
(b) The claimant was so employed at any time during the period beginning on January 1, 1942, and ending on December 31, 1971;
(c) The claimant was exposed during the course of his or her mining employment to 40 or more working level months of radiation or worked for at least one year in a uranium mine or mines during the period identified in paragraph (b) of this section; and
(d) The claimant contracted lung cancer or a nonmalignant respiratory disease following such exposure.
§ 79.43 Proof of employment as a miner.
(a) The Department will accept, as proof of employment for a designated time period, information contained in any of the following records:
(1) Records created by or gathered by the Public Health Service (PHS) in the course of any health studies of uranium workers during or including the period 1942-1990;
(2) Records of a uranium worker census performed by the PHS at various times during the period 1942-1990;
(3) Records of the Atomic Energy Commission (AEC), or any of its successor agencies; and
(4) Records of federally supported, health-related studies of uranium workers, including:
(i) Studies conducted by Geno Saccamanno, M.D., St. Mary’s Hospital, Grand Junction, Colorado; and
(ii) Studies conducted by Jonathan Samet, M.D., University of New Mexico School of Medicine.
(b) The Program will presume that the employment history for the time period indicated in records listed in paragraph (a) of this section is correct. If the claimant or eligible surviving beneficiary wishes to contest the accuracy of such records, then the claimant or eligible surviving beneficiary may provide one or more of the records identified in paragraph (c) of this section, and the Assistant Director will determine whether the employment history indicated in the records listed in paragraph (a) is correct.
(c) If the sources in paragraph (a) of this section do not contain information regarding the claimant’s uranium mine employment history, do not contain sufficient information to establish exposure to at least 40 working level months of radiation, do not contain sufficient information to establish uranium mining employment for one year during the period identified in § 79.42(b), or if a claimant or eligible surviving beneficiary wishes to contest the accuracy of such records, then the claimant or eligible surviving beneficiary may submit records from any of the following sources, and the Assistant Director shall consider such records (in addition to any sources listed in paragraph (a) of this section) in order to determine whether the claimant has established the requisite employment history:
(1) Governmental records of any of the specified states, including records of state regulatory agencies, containing information on uranium mine workers and uranium mines;
(2) Records of any business entity that owned or operated a uranium mine, or its successor-in-interest;
(3) Records of the Social Security Administration reflecting the identity of the employer, the years and quarters of employment, and the wages received during each quarter;
(4) Federal or State income tax records that contain relevant statements regarding the claimant’s employer and wages;
(5) Records containing factual findings by any governmental judicial body, state worker’s compensation board, or any governmental administrative body adjudicating the claimant’s rights to any type of benefits (which will be accepted only to prove the fact of and duration of employment in a uranium mine);
(6) Statements in medical records created during the period 1942-1971 indicating or identifying the claimant’s employer and occupation;
(7) Records of an academic or scholarly study, not conducted in anticipation of or in connection with any litigation, and completed prior to 1990; and
(8) Any other contemporaneous record that indicates or identifies the claimant’s occupation or employer.
(d) To the extent that the documents submitted from the sources identified in this section do not so indicate, the claimant or eligible surviving beneficiary must set forth under oath on the standard claim form the following information, if known:
(1) The names of the mine employers for which the claimant worked during the time period identified in the documents;
(2) The names and locations of any mines in which the claimant worked;
(3) The actual time period the claimant worked in each mine;
(4) The claimant’s occupation in each mine; and
(5) Whether the mining employment was conducted aboveground or underground.
(e) If the claimant or eligible surviving beneficiary cannot provide the name or location of any uranium mine at which the claimant was employed as required under paragraph (d)(2) of this section, then the Program shall, if possible, determine such information from records reflecting the types of mines operated or owned by the entity for which the claimant worked.
(f) If the information provided under paragraphs (a) and (c) of this section is inadequate to determine the time period during which the claimant was employed in each uranium mine, then the Program will, where possible, calculate such employment periods in the following manner, for purposes of calculating working level months of exposure:
(1) If records of the Social Security Administration exist that indicate the claimant’s work history, the Program will estimate the period of employment by dividing the gross quarterly income by the average pay rate per hour for the claimant’s occupation;
(2) If such Social Security Administration records do not exist, but other records exist that indicate that the claimant was employed in a uranium mine on the date recorded in the record, but do not indicate the period of employment, then the Program will apply the following presumptions:
(i) If the records indicate that the claimant worked at the same mine or for the same uranium mining company on two different dates at least three months apart but less than 12 months apart, then the Program will presume that the claimant was employed at the mine or for the mining company for the entire 12-month period beginning on the earlier date.
(ii) If the records indicate that the claimant worked at the same mine or for the same uranium mining company on two different dates at least one month apart but less than three months apart, then the Program will presume that the claimant was employed at the mine or for the mining company for the entire six-month period beginning on the earlier date.
(iii) If the records indicate that the claimant worked at any mine or for a uranium mining company on any date within the designated time period, but the presumptions listed in this paragraph (f) are not applicable, then the Program will presume that the claimant was employed at the mine or for the mining company for a six-month period, consisting of three months before and three months after the date indicated.
(g) In determining whether a claimant satisfies the employment and exposure criteria of the Act, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. If the Assistant Director concludes that the claimant has not satisfied the employment or exposure requirements of the Act, the claimant or eligible surviving beneficiary will be notified and afforded the opportunity, in accordance with the provisions of § 79.72(c), to submit additional records to establish that the statutory criteria are satisfied.
§ 79.44 Proof of working level month exposure to radiation.
(a) If one or more of the sources in § 79.43(a) contain a calculated total of working level months (WLMs) of radiation for the claimant equal to or greater than 40 WLMs, then the Program will presume that total to be correct, absent evidence to the contrary, in which case the claimant or eligible surviving beneficiary need not submit additional records.
(b) If the sources in § 79.43(a) do not contain a calculated total of WLMs of radiation for the claimant, or contain a calculated total that is less than 40 WLMs, a claimant or eligible surviving beneficiary may submit the following records reflecting a calculated number of WLMs of radiation for periods of employment established under § 79.43(c):
(1) Certified copies of records of regulatory agencies of the specified states, provided that the records indicate the mines at which the claimant was employed, the time period of the claimant’s employment in each mine, the exposure level in each mine during the claimant’s employment, and the calculations on which the claimant’s WLMs are based, unless the calculation is apparent;
(2) Certified copies of records of the owner or operator of a uranium mine in the specified states, provided that the records indicate the mines at which the claimant was employed, the time period of the claimant’s employment in each mine, the exposure level in each mine during the claimant’s employment, and the calculations on which the claimant’s WLMs are based, unless the calculation is apparent.
(c) If the number of WLMs established under paragraphs (a) and (b) of this section is equal to or greater than 40 WLMs of radiation, the claimant or eligible surviving beneficiary need not submit additional records. When the sources referred to in paragraphs (a) and (b) of this section do not establish a calculated number of at least 40 WLMs, the Program will, where possible, calculate additional WLMs in the manner set forth in paragraphs (d) through (g) of this section for the periods of employment for which the sources in paragraphs (a) and (b) do not establish calculated totals. When calculating an exposure level for a particular period of a claimant’s employment history, the Program will apply aboveground exposure levels with respect to those periods in which the claimant worked principally aboveground and will apply underground exposure levels with respect to those periods in which the claimant worked principally underground.
(d) To the extent the sources referenced in paragraphs (a) and (b) of this section do not contain a calculated number of WLMs, but do contain annual exposure levels measured in Working Levels (WLs) for mines in which the claimant was employed, the Program will calculate the claimant’s exposure to radiation measured in WLMs in the manner set forth in paragraph (h) of this section.
(e) For periods of employment in a uranium mine that a claimant establishes under § 79.43(c) as to which paragraph (d) of this section is not applicable, the Program will, where possible, use any or all of the following sources in computing the annual exposure level measured in WLs in each mine for the period of the claimant’s employment, in the manner set forth in paragraph (g) of this section:
(1) Records of the AEC, or its successor agencies;
(2) Records of the PHS, including radiation-level measurements taken in the course of health studies conducted of uranium miners during or including the period 1942-1971;
(3) Records of the United States Bureau of Mines;
(4) Records of regulatory agencies of the specified states; or
(5) Records of the business entity that was the owner or operator of the mine.
(f) For periods of employment in unidentified or misidentified uranium mines that a claimant establishes under § 79.43(c) through (f), the Program will determine annual exposure levels measured in WLs in the unidentified or misidentified mines by calculating an average of the annual exposure levels measured in WLs in all the uranium mines owned or operated by the entities for which the claimant worked during the appropriate time periods and in the identified states.
(g) With respect to periods of employment in a uranium mine that a claimant establishes under § 79.43(c) as to which paragraph (d) of this section is not applicable, and periods of employment in unidentified or misidentified uranium mines that a claimant establishes under § 79.43(c) through (f), the Program will use the following methodology to calculate the annual exposure level measured in WLs for each mine:
(1) If one or more radiation measurements are available for a mine in a given year, such values will be averaged to generate the WLs for the mine for that year.
(2) If radiation measurements exist for the mine, but not for the year in which the claimant was employed in the mine, the WLs for the mine for that year will be estimated if possible as follows:
(i) If annual average measurements exist within four years of the year in which the claimant was employed in the mine, the measurements for the two closest years will be averaged, and that value will be assigned to the year the claimant was employed in the mine;
(ii) If one or more annual average measurements exist for a mine, but are not more than five years from the year the claimant was employed, the annual average closest in time will be assigned either forward or backward in time for two years.
(3) If the methods described in paragraph (g)(2) of this section interpolate or project the annual exposure level measured in WLs for a mine in a year in which the claimant was employed in the mine, the Program will use an estimated average for mines of the same or similar type, ventilation, and ore composition in the same geographical area for that year. An estimated area average will be calculated as follows:
(i) If actual measurements from three or more mines of the same or similar type, ventilation, and ore composition are available from mines in the same locality as the mine in which the claimant was employed, the average of the measurements for the mines within that locality will be used.
(ii) If there are insufficient actual measurements from mines in the same locality to use the method in paragraph (g)(3)(i) of this section, an average of exposure levels in mines in the same mining district will be used.
(iii) If there is no average of exposure levels from mines in the same mining district, the average of exposure levels in mines in the same state will be used.
(iv) If there are insufficient actual measurements from mines in the same state, the estimated average for the State of Colorado for the relevant year will be used.
(4) With respect to a year between 1942 and 1949, if the claimant was employed in a mine for which no exposure levels are available for that year, then the Program will estimate the annual exposure levels measured in WLs by averaging the two earliest exposure levels recorded from that mine after the year 1941. If there are not two exposure levels recorded from that mine, the Program will estimate the WLs by averaging the two earliest exposure levels after the year 1941 from the mines identified according to the methods set forth in paragraphs (g)(3)(i) through (iv).
(h) The Program will calculate a claimant’s total exposure to radiation expressed in WLMs, for purposes of establishing eligibility under § 79.42(c), by adding together the WLMs for each period of employment that the claimant has established. For those periods of a claimant’s employment for which the Program has obtained or calculated WLs pursuant to paragraphs (d) through (g) of this section, the Program shall determine WLMs by multiplying the WL by the pertinent time period, measured in months, yielding a claimant’s exposure to radiation expressed in WLMs.
(i) In addition to any other material that may be used to substantiate employment history for purposes of determining WLMs, an individual filing a claim may make such a substantiation by means of an affidavit described in § 79.4(c)(4).
§ 79.45 Proof of primary lung cancer.
(a) In determining whether a claimant developed primary lung cancer following pertinent employment as a miner, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed primary lung cancer must be supported by medical documentation. To prove that a claimant developed primary lung cancer, the claimant or beneficiary may submit any form of medical documentation specified in paragraph (e) of this section. In all cases, the Program will review submitted medical documentation, and will, in addition and where appropriate, review any pertinent records discovered within the sources identified in paragraphs (b), (c), and (d) of this section.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. (In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary lung cancer.)
(c) If a claimant was diagnosed as having primary lung cancer in Arizona, Colorado, Nevada, New Mexico, Utah, or Wyoming, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information, valid in the state of diagnosis, that authorizes the Radiation Exposure Compensation Program to contact the appropriate state cancer or tumor registry, the Program will, where appropriate, request the relevant information from that registry and will review records that it obtains from the registry. (In cases where the claimant is deceased, the Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary lung cancer.)
(d) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. (In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of primary lung cancer.)
(e)(1) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted primary lung cancer. Such documentation will be most useful where it contains an explicit statement of diagnosis or such other information or data from which the appropriate authorities at the National Cancer Institute can make a diagnosis to a reasonable degree of medical certainty:
(i) Pathology report of tissue biopsy, including, but not limited to, specimens obtained by any of the following methods:
(A) Surgical resection;
(B) Endoscopic endobronchial or transbronchial biopsy;
(C) Bronchial brushings and washings;
(D) Pleural fluid cytology;
(E) Fine needle aspirate;
(F) Pleural biopsy; or
(G) Sputum cytology;
(ii) Autopsy report;
(iii) Bronchoscopy report;
(iv) One of the following summary medical reports:
(A) Physician summary report;
(B) Hospital discharge summary report;
(C) Operative report;
(D) Radiation therapy summary report; or
(E) Oncology summary or consultation report;
(v) Reports of radiographic studies, including:
(A) X-rays of the chest;
(B) Chest tomograms;
(C) Computer-assisted tomography (CT); or
(D) Magnetic resonance imaging (MRI); or
(vi) Death certificate, provided that it is signed by a physician at the time of death.
§ 79.46 Proof of nonmalignant respiratory disease.
(a) In determining whether a claimant developed a nonmalignant respiratory disease following pertinent employment as a miner, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed a nonmalignant respiratory disease must be supported by medical documentation. In cases where the claimant is deceased, the claimant’s beneficiary may submit any form of medical documentation specified in paragraph (d)(1) of this section, and for proof of cor pulmonale must also submit one or more forms of documentation specified in paragraph (d)(2). A living claimant must at a minimum submit the medical documentation required in paragraph (d)(3) of this section, and for proof of cor pulmonale must also submit one or more forms of documentation specified in paragraph (d)(2). In all cases, the Program will review submitted medical documentation, and will, in addition and where appropriate, review any pertinent records discovered within the sources referred to in paragraphs (b) and (c) of this section. With respect to a deceased claimant, the Program will treat as equivalent to a diagnosis of pulmonary fibrosis any diagnosis of “restrictive lung disease” made by a physician employed by the Indian Health Service.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of a nonmalignant respiratory disease.
(c) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of a nonmalignant respiratory disease.
(d) (1) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted a nonmalignant respiratory disease, including pulmonary fibrosis, fibrosis of the lung, cor pulmonale related to fibrosis of the lung, silicosis, and pneumoconiosis:
(i) Pathology report of tissue biopsy;
(ii) Autopsy report;
(iii) If an x-ray exists, the x-ray and interpretive reports of the x-ray by a maximum of two NIOSH certified “B” readers classifying the existence of disease of category 1/0 or higher according to a 1989 report of the International Labor Office (known as the “ILO”), or subsequent revisions;
(iv) If no x-rays exist, an x-ray report;
(v) Physician summary report;
(vi) Hospital discharge summary report;
(vii) Hospital admitting report;
(viii) Death certificate, provided that it is signed by a physician at the time of death; or
(ix) Documentation specified in paragraphs (d)(3)(i) and (d)(3)(ii) of this section.
(2) In order to demonstrate that the claimant developed cor pulmonale related to fibrosis of the lung, the claimant or beneficiary must, at a minimum, submit one or more of the following medical records:
(i) Right heart catheterization;
(ii) Cardiology summary or consultation report;
(iii) Electrocardiogram;
(iv) Echocardiogram;
(v) Physician summary report;
(vi) Hospital discharge summary report;
(vii) Autopsy report;
(viii) Report of physical examination; or
(ix) Death certificate, provided that it is signed by a physician at the time of death.
(3) Notwithstanding any other documentation provided, a living claimant must at a minimum provide the following medical documentation:
(i) Either:
(A) An arterial blood gas study administered at rest in a sitting position, or an exercise arterial blood gas test, reflecting values equal to or less than the values set forth in the tables in appendix B to this part; or
(B) A written diagnosis by a physician in accordance with § 79.41(p); and
(ii) One of the following:
(A) A chest x-ray administered in accordance with standard techniques accompanied by interpretive reports of the x-ray by a maximum of two NIOSH certified “B” readers, classifying the existence of disease of category 1/0 or higher according to a 1989 report of the International Labor Office (known as the “ILO”), or subsequent revisions;
(B) High-resolution computed tomography scans (commonly known as “HRCT scans”), including computer-assisted tomography scans (commonly known as “CAT scans”), magnetic resonance imaging scans (commonly known as “MRI scans”), and positron emission tomography scans (commonly known as “PET scans”), and interpretive reports of such scans;
(C) Pathology reports of tissue biopsies; or
(D) Pulmonary function tests indicating restrictive lung function and consisting of three reproducible time/volume tracings recording the results of the forced expiratory volume in one second (FEV1) and the forced vital capacity (FVC) administered and reported in accordance with the Standardization of Spirometry—1994 Update by the American Thoracic Society, and reflecting values for FEV1 or FVC that are less than or equal to the lower limit of normal for an individual of the claimant’s age, sex, height, and ethnicity as set forth in the tables in appendix A to this part.
(e) The Assistant Director shall treat any documentation described in paragraph (d)(3)(i)(B) or paragraph (d)(3)(ii)(A) of this section as conclusive evidence of the claimant’s nonmalignant respiratory disease; provided, however, that the Program may subject such documentation to a fair and random audit to guarantee its authenticity and reliability for purposes of treating it as conclusive evidence; and provided further that, in order to be treated as conclusive evidence, a written diagnosis described in paragraph (d)(3)(i)(B) must be by a physician who is employed by the Indian Health Service or the Department of Veterans Affairs or who is board certified (as described in § 79.41(p)), and who must have a documented, ongoing physician-patient relationship with the claimant. Notwithstanding the conclusive effect given to certain evidence, nothing in this paragraph shall be construed as relieving a living claimant of the obligation to provide the Program with the forms of documentation required under paragraph (d)(3).
Subpart F—Eligibility Criteria for Claims by Uranium Millers
§ 79.50 Scope of subpart.
The regulations in this subpart define the eligibility criteria for compensation under section 5 of the Act pertaining to millers, i.e., uranium mill workers, and the nature of evidence that will be accepted as proof that a claimant satisfies such eligibility criteria. Section 5 of the Act provides for a payment of $100,000 to “millers” who contracted primary lung cancer, one of a limited number of nonmalignant respiratory diseases, primary renal cancer, or chronic renal disease, following employment for at least one year as a uranium mill worker in specified states during the period beginning January 1, 1942, and ending December 31, 1971.
§ 79.51 Definitions.
(a) Chronic renal disease means the chronic, progressive, and irreversible destruction of the nephron. It is exhibited by diminution of renal function.
(b) Cor pulmonale means heart disease, including hypertrophy of the right ventricle, due to pulmonary hypertension secondary to fibrosis of the lung.
(c) Designated time period means the period beginning on January 1, 1942, and ending on December 31, 1971.
(d) Employment for at least one year means employment for a total of at least one year (12 consecutive or cumulative months).
(e) Fibrosis of the lung or pulmonary fibrosis means chronic inflammation and scarring of the pulmonary interstitium and alveoli with collagen deposition and progressive thickening.
(f) Kidney tubal (tubular) tissue injury means structural or functional damage to the kidney tubules that results in renal disease and dysfunction.
(g) Miller or uranium mill worker means a person who operated or otherwise worked in a uranium mill.
(h) National Institute for Occupational Safety and Health (NIOSH) certified “B” reader means a physician who is certified as such by NIOSH. A list of certified “B” readers is available from the Radiation Exposure Compensation Program upon request.
(i) Nephritis means an inflammatory process of the kidneys resulting in chronic renal dysfunction.
(j) Nonmalignant respiratory disease means fibrosis of the lung, pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, silicosis, and pneumoconiosis.
(k) Pneumoconiosis means a chronic lung disease resulting from inhalation and deposition in the lung of particulate matter, and the tissue reaction to the presence of the particulate matter. For purposes of this subpart, the claimant’s exposure to the particulate matter that led to the disease must have occurred during employment in a uranium mill.
(l) Primary lung cancer means any physiological condition of the lung, trachea, or bronchus that is recognized under that name or nomenclature by the National Cancer Institute. The term includes in situ lung cancers.
(m) Readily available documentation means documents in the possession, custody, or control of the claimant or an immediate family member.
(n) Primary renal cancer means any physiological condition of the kidneys that is recognized under that name or nomenclature by the National Cancer Institute.
(o) Silicosis means a pneumoconiosis due to the inhalation of the dust of stone, sand, flint, or other materials containing silicon dioxide, characterized by the formation of pulmonary fibrotic changes.
(p) Specified state means Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon, or Texas. Additional states may be included, provided:
(1) A uranium mine was operated in such state at any time during the period beginning on January 1, 1942, and ending on December 31, 1971;
(2) The state submits an application to the Assistant Director (specified in § 79.70(a)) to include such state; and
(3) The Assistant Director makes a determination to include such state.
(q) Uranium mill means any milling operation involving the processing of uranium ore or vanadium-uranium ore, including carbonate plants and acid leach plants. The term applies to ore-buying stations where ore was weighed and sampled prior to delivery to a mill for processing; “upgrader” or “concentrator” facilities located at the mill or at a remote location where uranium or vanadium-uranium ore was processed prior to delivery to a mill; and pilot plants where uranium ore or vanadium-uranium ore was processed.
(r) Uranium mine means any underground excavation, including “dog holes,” as well as open-pit, strip, rim, surface, or other aboveground mines, where uranium ore or vanadium-uranium ore was mined or otherwise extracted.
(s) Written diagnosis by a physician means a written determination of the nature of a disease made from a study of the signs and symptoms of a disease that is based on a physical examination of the patient, medical imaging or a chemical, microscopic, microbiologic, immunologic, or pathologic study of physiologic and functional tests, secretions, discharges, blood, or tissue. For purposes of satisfying the requirement of a “written diagnosis by a physician” for living claimants specified in § 79.55, a physician submitting a written diagnosis of a nonmalignant respiratory disease must be employed by the Indian Health Service or the Department of Veterans Affairs or be board certified, and must have a documented, ongoing physician-patient relationship with the claimant. An “ongoing physician-patient relationship” can include referrals made to specialists from a primary care provider for purposes of diagnosis or treatment. “Board certification” requires, in addition to physician licensing, the successful completion of a residency training program and passage of a Board exam in a relevant field or specialty. Relevant specialties include: family practice, internal medicine, pathology, preventive medicine, radiology, surgery, and thoracic surgery (and including subspecialties such as cardiovascular disease, medical oncology, pulmonary disease) as listed by the American Board of Medical Specialties.
§ 79.52 Criteria for eligibility for claims by uranium millers.
To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary of a claimant must establish each of the following:
(a) The claimant was employed as a miller in a specified state;
(b) The claimant was so employed for at least one year (12 consecutive or cumulative months) during the period beginning on January 1, 1942, and ending on December 31, 1971; and
(c) The claimant contracted primary lung cancer, a nonmalignant respiratory disease, primary renal cancer, or chronic renal disease (including nephritis and kidney tubal tissue injury) following at least one year of such employment.
§ 79.53 Proof of employment as a miller.
(a) The Department will accept, as proof of employment for the time period indicated, information contained in any of the following records:
(1) Records created by or gathered by the Public Health Service (PHS) in the course of any health studies of uranium workers during or including the period 1942-1990;
(2) Records of a uranium worker census performed by the PHS at various times during the period 1942-1990;
(3) Records of the Atomic Energy Commission (AEC), or any of its successor agencies; and
(4) Records of federally supported, health-related studies of uranium workers.
(b) The Program will presume that the employment history for the time period indicated in records listed in paragraph (a) of this section is correct. If the claimant or eligible surviving beneficiary wishes to contest the accuracy of such records, then the claimant or eligible surviving beneficiary may provide one or more of the records identified in paragraph (c) of this section, and the Assistant Director will determine whether the employment history indicated in the records listed in paragraph (a) is correct.
(c) If the sources in paragraph (a) of this section do not contain information regarding the claimant’s uranium mill employment history, do not contain sufficient information to establish employment for at least one year in a uranium mill during the specified time period to qualify under § 79.52(b), or if a claimant or eligible surviving beneficiary wishes to contest the accuracy of such records, then the claimant or eligible surviving beneficiary may submit records from any of the following sources, which the Assistant Director shall consider (in addition to any sources listed in paragraph (a) of this section) in order to determine whether the claimant has established the requisite employment history:
(1) Records of any of the specified states, including records of state regulatory agencies, containing information on uranium mill workers and uranium mills;
(2) Records of any business entity that owned or operated a uranium mill, or its successor-in-interest;
(3) Records of the Social Security Administration reflecting the identity of the employer, the years and quarters of employment, and the wages received during each quarter;
(4) Federal or state income tax records that contain relevant statements regarding the claimant’s employer and wages;
(5) Records containing factual findings by any governmental judicial body, state worker’s compensation board, or any governmental administrative body adjudicating the claimant’s rights to any type of benefits (which will be accepted only to prove the fact of and duration of employment in a uranium mill);
(6) Statements in medical records created during the period 1942-1971 indicating or identifying the claimant’s employer and occupation;
(7) Records of an academic or scholarly study, not conducted in anticipation of or in connection with any litigation, and completed prior to 1990; or
(8) Any other contemporaneous record that indicates or identifies the claimant’s occupation or employer.
(d) To the extent that the documents submitted from the sources identified in this section do not so indicate, the claimant or eligible surviving beneficiary must set forth under oath on the standard claim form the following information, if known:
(1) The names of the mill employers for which the claimant worked during the time period identified in the documents;
(2) The names and locations of any mills in which the claimant worked;
(3) The actual time period the claimant worked in each mill; and
(4) The claimant’s occupation in each mill.
(e) The Program may, for the purpose of verifying information submitted pursuant to this section, require the claimant or any eligible surviving beneficiary to provide an authorization to release any record identified in this section, in accordance with the provisions of § 79.72(c).
(f) In determining whether a claimant satisfies the employment criteria of the Act, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. If the Assistant Director concludes that the claimant has not satisfied the employment requirements of the Act, the claimant or eligible surviving beneficiary will be notified and afforded the opportunity, in accordance with the provisions of § 79.72(c), to submit additional records to establish that the statutory employment criteria are satisfied.
§ 79.54 Proof of primary lung cancer.
(a) In determining whether a claimant developed primary lung cancer following pertinent employment as a miller, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed primary lung cancer must be supported by medical documentation. To prove that a claimant developed primary lung cancer, the claimant or beneficiary may submit any form of medical documentation specified in paragraph (e) of this section. In all cases, the Program will review submitted medical documentation, and will, in addition and where appropriate, review any pertinent records discovered within the sources identified in paragraphs (b), (c) and (d) of this section.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. (In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary lung cancer.)
(c) If a claimant was diagnosed as having primary lung cancer in Arizona, Colorado, Nevada, New Mexico, Utah, or Wyoming, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information, valid in the state of diagnosis, that authorizes the Radiation Exposure Compensation Program to contact the appropriate state cancer or tumor registry, the Program will, where appropriate, request the relevant information from that registry and will review records that it obtains from the registry. (In cases where the claimant is deceased, the Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary lung cancer.)
(d) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. (In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of primary lung cancer.)
(e) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted primary lung cancer. Such documentation will be most useful where it contains an explicit statement of diagnosis or such other information or data from which the appropriate authorities at the National Cancer Institute can make a diagnosis to a reasonable degree of medical certainty:
(1) Pathology report of tissue biopsy, including, but not limited to, specimens obtained by any of the following methods:
(i) Surgical resection;
(ii) Endoscopic endobronchial or transbronchial biopsy;
(iii) Bronchial brushings and washings;
(iv) Pleural fluid cytology;
(v) Fine needle aspirate;
(vi) Pleural biopsy; or
(vii) Sputum cytology;
(2) Autopsy report;
(3) Bronchoscopy report;
(4) One of the following summary medical reports:
(i) Physician summary report;
(ii) Hospital discharge summary report;
(iii) Operative report;
(iv) Radiation therapy summary report; or
(v) Oncology summary or consultation report;
(5) Reports of radiographic studies, including:
(i) X-rays of the chest;
(ii) Chest tomograms;
(iii) Computer-assisted tomography (CT); or
(iv) Magnetic resonance imaging (MRI); or
(6) Death certificate, provided that it is signed by a physician at the time of death.
§ 79.55 Proof of nonmalignant respiratory disease.
(a) In determining whether a claimant developed a nonmalignant respiratory disease following pertinent employment as a miller, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed a nonmalignant respiratory disease must be supported by medical documentation. In cases where the claimant is deceased, the claimant’s beneficiary may submit any form of medical documentation specified in paragraph (d)(1) of this section, and for proof of cor pulmonale must also submit one or more forms of documentation specified in paragraph (d)(2). A living claimant must at a minimum submit the medical documentation required in paragraph (d)(3) of this section, and for proof of cor pulmonale must also submit one or more forms of documentation specified in paragraph (d)(2). In all cases, the Program will review submitted medical documentation, and will, in addition and where appropriate, review any pertinent records discovered within the sources referred to in paragraphs (b) and (c) of this section. With respect to a deceased claimant, the Program will treat as equivalent to a diagnosis of pulmonary fibrosis any diagnosis of “restrictive lung disease” made by a physician employed by the Indian Health Service.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. (In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of a nonmalignant respiratory disease.)
(c) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. (In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of a nonmalignant respiratory disease.)
(d) (1) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted a nonmalignant respiratory disease, including pulmonary fibrosis, fibrosis of the lung, cor pulmonale related to fibrosis of the lung, silicosis, and pneumoconiosis:
(i) Pathology report of tissue biopsy;
(ii) Autopsy report;
(iii) If an x-ray exists, the x-ray and interpretive reports of the x-ray by a maximum of two NIOSH certified “B” readers classifying the existence of disease of category 1/0 or higher according to a 1989 report of the International Labor Office (known as the “ILO”), or subsequent revisions;
(iv) If no x-rays exist, an x-ray report;
(v) Physician summary report;
(vi) Hospital discharge summary report;
(vii) Hospital admitting report;
(viii) Death certificate, provided that it is signed by a physician at the time of death; or
(ix) Documentation specified in paragraphs (d)(3)(i) and (d)(3)(ii) of this section.
(2) In order to demonstrate that the claimant developed cor pulmonale related to fibrosis of the lung, the claimant or beneficiary must, at a minimum, submit one or more of the following medical records:
(i) Right heart catheterization;
(ii) Cardiology summary or consultation report;
(iii) Electrocardiogram;
(iv) Echocardiogram;
(v) Physician summary report;
(vi) Hospital discharge summary report;
(vii) Autopsy report;
(viii) Report of physical examination; or
(ix) Death certificate, provided that it is signed by a physician at the time of death.
(3) Notwithstanding any other documentation provided, a living claimant must at a minimum provide the following medical documentation:
(i) Either:
(A) An arterial blood gas study administered at rest in a sitting position, or an exercise arterial blood gas test, reflecting values equal to or less than the values set forth in the tables to appendix B of this part; or
(B) A written diagnosis by a physician in accordance with § 79.51(s); and
(ii) One of the following:
(A) A chest x-ray administered in accordance with standard techniques accompanied by interpretive reports of the x-ray by a maximum of two NIOSH certified “B” readers, classifying the existence of disease of category 1/0 or higher according to a 1989 report of the International Labor Office (known as the “ILO”) or subsequent revisions;
(B) High-resolution computed tomography scans (commonly known as “HRCT scans”), including computer-assisted tomography scans (commonly known as “CAT scans”), magnetic resonance imaging scans (commonly known as “MRI scans”), and positron emission tomography scans (commonly known as “PET scans”), and interpretive reports of such scans;
(C) Pathology reports of tissue biopsies; or
(D) Pulmonary function tests indicating restrictive lung function and consisting of three reproducible time/volume tracings recording the results of the forced expiratory volume in one second (FEV1) and the forced vital capacity (FVC) administered and reported in accordance with the Standardization of Spirometry—1994 Update by the American Thoracic Society, and reflecting values for FEV1 or FVC that are less than or equal to the lower limit of normal for an individual of the claimant’s age, sex, height, and ethnicity as set forth in the tables in appendix A to this part.
(e) The Assistant Director shall treat any documentation described in paragraph (d)(3)(i)(B) or paragraph (d)(3)(ii)(A) of this section as conclusive evidence of the claimant’s nonmalignant respiratory disease; provided, however, that the Program may subject such documentation to a fair and random audit to guarantee its authenticity and reliability for purposes of treating it as conclusive evidence; and provided further that, in order to be treated as conclusive evidence, a written diagnosis described in paragraph (d)(3)(i)(B) must be by a physician who is employed by the Indian Health Service or the Department of Veterans Affairs or who is board certified (as described in § 79.51(s)), and who must have a documented, ongoing physician-patient relationship with the claimant. Notwithstanding the conclusive effect given to certain evidence, nothing in this paragraph shall be construed as relieving a living claimant of the obligation to provide the Program with the forms of documentation required under paragraph (d)(3).
§ 79.56 Proof of primary renal cancer.
(a) In determining whether a claimant developed primary renal cancer following pertinent employment as a miller, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed primary renal cancer must be supported by medical documentation. In all cases, the Program will review submitted medical documentation, and will, in addition and where appropriate, review any pertinent records discovered within the sources referred to in paragraphs (b) and (c) of this section.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. (In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary renal cancer.)
(c) If a claimant was diagnosed as having primary renal cancer in the State of Arizona, Colorado, Nevada, New Mexico, Utah, or Wyoming, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information, valid in the state of diagnosis, that authorizes the Radiation Exposure Compensation Program to contact the appropriate state cancer or tumor registry, the Program will, where appropriate, request the relevant information from that registry and will review records that it obtains from the registry. (In cases where the claimant is deceased, the Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary renal cancer.)
(d) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. (In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of primary renal cancer.)
(e) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted primary renal cancer. Such documentation will be most useful where it contains an explicit statement of diagnosis or such other information or data from which the appropriate authorities at the National Cancer Institute can make a diagnosis to a reasonable degree of medical certainty:
(1) Pathology report of tissue biopsy or resection;
(2) Autopsy report;
(3) One of the following summary medical reports:
(i) Physician summary report;
(ii) Hospital discharge summary report;
(iii) Operative report;
(iv) Radiotherapy summary report; or
(v) Medical oncology summary or consultation report;
(4) Report of one of the following radiology examinations:
(i) Computerized tomography (CT) scan; or
(ii) Magnetic resonance imaging (MRI); or
(5) Death certificate, provided that it is signed by a physician at the time of death.
§ 79.57 Proof of chronic renal disease.
(a) In determining whether a claimant developed chronic renal disease following pertinent employment as a miller, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed chronic renal disease must be supported by medical documentation.
(b) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted chronic renal disease.
(1) Pathology report of tissue biopsy;
(2) If laboratory or radiographic tests exist:
(i) Abnormal plasma creatinine values; and
(ii) Abnormal glomerular filtration rate (by either measured creatinine or iothalamate clearance or calculated by MDRD equation); and
(iii) Renal tubular dysfunction as evidenced by:
(A) Glycosuria in the absence of diabetes mellitus;
(B) Proteinuria less than one gram daily without other known etiology; or
(C) Hyperphosphaturia, aminoaciduria, B-2 microglobinuria or alkaline phosphaturia or other marker of proximal tubular injury; or
(iv) Radiographic evidence of chronic renal disease;
(3) Autopsy report;
(4) Physician summary report;
(5) Hospital discharge summary report;
(6) Hospital admitting report; or
(7) Death certificate, provided that it is signed by a physician at the time of death.
Subpart G—Eligibility Criteria for Claims by Ore Transporters
§ 79.60 Scope of subpart.
The regulations in this subpart define the eligibility criteria for compensation under section 5 of the Act pertaining to uranium or vanadium-uranium ore transporters and the nature of evidence that will be accepted as proof that a claimant satisfies such eligibility criteria. Section 5 of the Act provides for a payment of $100,000 to persons who contracted lung cancer, one of a limited number of nonmalignant respiratory diseases, renal cancer, or chronic renal disease, following employment for at least one year as a transporter of uranium ore or vanadium-uranium ore from a uranium mine or uranium mill located in a specified state during the period beginning January 1, 1942, and ending December 31, 1971.
§ 79.61 Definitions.
(a) Chronic renal disease means the chronic, progressive, and irreversible destruction of the nephron. It is exhibited by diminution of renal function.
(b) Cor pulmonale means heart disease, including hypertrophy of the right ventricle, due to pulmonary hypertension secondary to fibrosis of the lung.
(c) Designated time period means the period beginning on January 1, 1942, and ending on December 31, 1971.
(d) Employment as an ore transporter means employment involving the transporting or hauling of uranium ore or vanadium-uranium ore from a uranium mine or uranium mill, including the transportation or hauling of ore from an ore buying station, “upgrader,” “concentrator” facility, or pilot plant by means of truck, rail or barge.
(e) Employment for at least one year means employment for a total of at least one year (12 consecutive or cumulative months).
(f) Fibrosis of the lung or pulmonary fibrosis means chronic inflammation and scarring of the pulmonary interstitium and alveoli with collagen deposition and progressive thickening.
(g) Kidney tubal (tubular) tissue injury means structural or functional damage to the kidney tubules that results in renal disease and dysfunction.
(h) National Institute for Occupational Safety and Health (NIOSH) certified “B” reader means a physician who is certified as such by NIOSH. A list of certified “B” readers is available from the Radiation Exposure Compensation Program upon request.
(i) Nephritis means an inflammatory process of the kidneys resulting in chronic renal dysfunction.
(j) Nonmalignant respiratory disease means fibrosis of the lung, pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, silicosis, and pneumoconiosis.
(k) Pneumoconiosis means a chronic lung disease resulting from inhalation and deposition in the lung of particulate matter, and the tissue reaction to the presence of the particulate matter. For the purposes of this Act, the claimant’s exposure to the particulate matter that led to the disease must have occurred during employment as an ore transporter.
(l) Primary lung cancer means any physiological condition of the lung, trachea, or bronchus that is recognized under that name or nomenclature by the National Cancer Institute. The term includes in situ lung cancers.
(m) Readily available documentation means documents in the possession, custody, or control of the claimant or an immediate family member.
(n) Primary renal cancer means any physiological condition of the kidneys that is recognized under that name or nomenclature by the National Cancer Institute.
(o) Silicosis means a pneumoconiosis due to the inhalation of the dust of stone, sand, flint or other materials containing silicon dioxide, characterized by the formation of pulmonary fibrotic changes.
(p) Specified state means Colorado, New Mexico, Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, Oregon, or Texas. Additional states may be included, provided:
(1) A uranium mine was operated in such state at any time during the period beginning on January 1, 1942, and ending on December 31, 1971;
(2) The state submits an application to the Assistant Director (specified in § 79.70(a)) to include such state; and
(3) The Assistant Director makes a determination to include such state.
(q) Uranium mill means any milling operation involving the processing of uranium ore or vanadium-uranium ore, including carbonate plants and acid leach plants. The term applies to ore-buying stations where ore was weighed and sampled prior to delivery to a mill for processing; “upgrader” or “concentrator” facilities located at the mill or at a remote location where uranium or vanadium-uranium ore was processed prior to delivery to a mill; and pilot plants where uranium ore or vanadium-uranium ore was processed.
(r) Uranium mine means any underground excavation, including “dog holes,” as well as open-pit, strip, rim, surface, or other aboveground mines, where uranium ore or vanadium-uranium ore was mined or otherwise extracted.
(s) Written diagnosis by a physician means a written determination of the nature of a disease made from a study of the signs and symptoms of a disease that is based on a physical examination of the patient, medical imaging or a chemical, microscopic, microbiologic, immunologic, or pathologic study of physiologic and functional tests, secretions, discharges, blood, or tissue. For purposes of satisfying the requirement of a “written diagnosis by a physician” for living claimants specified in § 79.65, a physician submitting a written diagnosis of a nonmalignant respiratory disease must be employed by the Indian Health Service or the Department of Veterans Affairs or be board certified, and must have a documented, ongoing physician-patient relationship with the claimant. An “ongoing physician-patient relationship” can include referrals made to specialists from a primary care provider for purposes of diagnosis or treatment. “Board certification” requires, in addition to physician licensing, the successful completion of a residency training program and passage of a Board exam in a relevant field or specialty. Relevant specialties include: family practice, internal medicine, pathology, preventive medicine, radiology, surgery, and thoracic surgery (and including subspecialties such as cardiovascular disease, medical oncology, pulmonary disease) as listed by the American Board of Medical Specialties.
§ 79.62 Criteria for eligibility for claims by ore transporters.
To establish eligibility for compensation under this subpart, a claimant or eligible surviving beneficiary of a claimant must establish each of the following:
(a) The claimant was employed as an ore transporter in a specified state;
(b) The claimant was so employed for at least one year (12 consecutive or cumulative months) during the period beginning on January 1, 1942, and ending on December 31, 1971; and
(c) The claimant contracted primary lung cancer, a nonmalignant respiratory disease, primary renal cancer, or chronic renal disease (including nephritis and kidney tubal tissue injury) following at least one year of such employment.
§ 79.63 Proof of employment as an ore transporter.
(a) The Department will accept, as proof of employment for the time period indicated, information contained in any of the following records:
(1) Records created by or gathered by the Public Health Service (PHS) in the course of any health studies of uranium workers during or including the period 1942-1990;
(2) Records of a uranium worker census performed by the PHS at various times during the period 1942-1990;
(3) Records of the Atomic Energy Commission (AEC), or any of its successor agencies; and
(4) Records of federally supported, health-related studies of uranium workers.
(b) The employment history for the time period indicated in such records will be presumed to be correct. If the claimant or eligible surviving beneficiary wishes to contest the accuracy of such records, then the claimant or eligible surviving beneficiary may provide one or more of the records identified in paragraph (c) of this section, and the Assistant Director will determine whether the employment history indicated in the records listed in paragraph (a) of this section is correct.
(c) If the sources in paragraph (a) of this section do not contain information regarding the claimant’s ore transporting employment history, do not contain sufficient information to establish employment for at least one year as an ore transporter during the specified time period to qualify under § 79.62(b), or if a claimant or eligible surviving beneficiary wishes to contest the accuracy of such records, then the claimant or eligible surviving beneficiary may submit records from any of the following sources, which the Assistant Director shall consider (in addition to any sources listed in paragraph (a) of this section) in order to determine whether the claimant has established the requisite employment history:
(1) Records of any of the specified states, including records of state regulatory agencies, containing information on uranium ore transporters and ore-transporting companies;
(2) Records of any business entity that owned or operated an ore-transporting company, or its successor-in-interest;
(3) Records of the Social Security Administration reflecting the identity of the employer, the years and quarters of employment, and the wages received during each quarter;
(4) Federal or state income tax records that contain relevant statements regarding the claimant’s employer and wages;
(5) Records containing factual findings by any governmental judicial body, state worker’s compensation board, or any governmental administrative body adjudicating the claimant’s rights to any type of benefits (which will be accepted only to prove the fact of and duration of employment as an ore transporter);
(6) Statements in medical records created during the period 1942-1971 indicating or identifying the claimant’s employer and occupation;
(7) Records of an academic or scholarly study, not conducted in anticipation of or in connection with any litigation, and completed prior to 1990; or
(8) Any other contemporaneous record that indicates or identifies the claimant’s occupation or employer.
(d) To the extent that the documents submitted from the sources identified in this section do not so indicate, the claimant or eligible surviving beneficiary must set forth under oath on the standard claim form the following information, if known:
(1) The name or other identifying symbol of each employer for which the claimant worked during the time period identified in the documents;
(2) The name of each mine or mill from which uranium or uranium-vanadium ore was transported;
(3) The county and state in which each mine or mill was located;
(4) The actual time period the claimant worked as an ore transporter; and
(5) The method of transportation used to transport the ore.
(e) The Program may, for the purpose of verifying information submitted pursuant to this section, require the claimant or any eligible surviving beneficiary to provide an authorization to release any record identified in this section, in accordance with the provisions of § 79.72(c).
(f) In determining whether a claimant satisfies the employment criteria of the Act, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. If the Assistant Director concludes that the claimant has not satisfied the employment requirements of the Act, the claimant or eligible surviving beneficiary will be notified and afforded the opportunity, in accordance with the provisions of § 79.72(c), to submit additional records to establish that the statutory employment criteria are satisfied.
§ 79.64 Proof of primary lung cancer.
(a) In determining whether a claimant developed primary lung cancer following pertinent employment as an ore transporter, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed primary lung cancer must be supported by medical documentation. To prove that a claimant developed primary lung cancer, the claimant or beneficiary may submit any form of medical documentation specified in paragraph (e) of this section. In all cases, the Program will review submitted medical documentation, and will, in addition and where appropriate, review any pertinent records discovered within the sources identified in paragraphs (b), (c), and (d) of this section.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. (In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary lung cancer.)
(c) If a claimant was diagnosed as having primary lung cancer in Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information, valid in the state of diagnosis, that authorizes the Radiation Exposure Compensation Program to contact the appropriate state cancer or tumor registry, the Program will, where appropriate, request the relevant information from that registry and will review records that it obtains from the registry. (In cases where the claimant is deceased, the Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary lung cancer.)
(d) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. (In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of primary lung cancer.)
(e) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted lung cancer. Such documentation will be most useful where it contains an explicit statement of diagnosis or such other information or data from which the appropriate authorities at the National Cancer Institute can make a diagnosis to a reasonable degree of medical certainty:
(1) Pathology report of tissue biopsy, including, but not limited to, specimens obtained by any of the following methods:
(i) Surgical resection;
(ii) Endoscopic endobronchial or transbronchial biopsy;
(iii) Bronchial brushings and washings;
(iv) Pleural fluid cytology;
(v) Fine needle aspirate;
(vi) Pleural biopsy; or
(vii) Sputum cytology;
(2) Autopsy report;
(3) Bronchoscopy report;
(4) One of the following summary medical reports:
(i) Physician summary report;
(ii) Hospital discharge summary report;
(iii) Operative report;
(iv) Radiation therapy summary report; or
(v) Oncology summary or consultation report;
(5) Reports of radiographic studies, including:
(i) X-rays of the chest;
(ii) Chest tomograms;
(iii) Computer-assisted tomography (CT); or
(iv) Magnetic resonance imaging (MRI); or
(6) Death certificate, provided that it is signed by a physician at the time of death.
§ 79.65 Proof of nonmalignant respiratory disease.
(a) In determining whether a claimant developed a nonmalignant respiratory disease following pertinent employment as an ore transporter, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed a nonmalignant respiratory disease must be supported by medical documentation. In cases where the claimant is deceased, the claimant’s beneficiary may submit any form of medical documentation specified in paragraph (d)(1) of this section, and for proof of cor pulmonale must also submit one or more forms of documentation specified in paragraph (d)(2). A living claimant must at a minimum submit the medical documentation required in paragraph (d)(3) of this section, and for proof of cor pulmonale must also submit one or more forms of documentation specified in paragraph (d)(2). In all cases, the Program will review submitted medical documentation, and will, in addition and where appropriate, review any pertinent records discovered within the sources referred to in paragraphs (b) and (c) of this section. With respect to a deceased claimant, the Program will treat as equivalent to a diagnosis of pulmonary fibrosis any diagnosis of “restrictive lung disease” made by a physician employed by the Indian Health Service.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. (In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of a nonmalignant respiratory disease.)
(c) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. (In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of a nonmalignant respiratory disease.)
(d)(1) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted a nonmalignant respiratory disease, including pulmonary fibrosis, fibrosis of the lung, cor pulmonale related to fibrosis of the lung, silicosis and pneumoconiosis:
(i) Pathology report of tissue biopsy;
(ii) Autopsy report;
(iii) If an x-ray exists, the x-ray and interpretive reports of the x-ray by a maximum of two NIOSH certified “B” readers classifying the existence of disease of category 1/0 or higher according to a 1989 report of the International Labor Office (known as the “ILO”), or subsequent revisions;
(iv) If no x-rays exist, an x-ray report;
(v) Physician summary report;
(vi) Hospital discharge summary report;
(vii) Hospital admitting report;
(viii) Death certificate, provided that it is signed by a physician at the time of death; or
(ix) Documentation specified in paragraphs (d)(3)(i) and (d)(3)(ii) of this section.
(2) In order to demonstrate that the claimant developed cor pulmonale related to fibrosis of the lung, the claimant or beneficiary must, at a minimum, submit one or more of the following medical records:
(i) Right heart catheterization;
(ii) Cardiology summary or consultation report;
(iii) Electrocardiogram;
(iv) Echocardiogram;
(v) Physician summary report;
(vi) Hospital discharge summary report;
(vii) Autopsy report;
(viii) Report of physical examination; or
(ix) Death certificate, provided that it is signed by a physician at the time of death.
(3) Notwithstanding any other documentation provided, a living claimant must at a minimum provide the following medical documentation:
(i) Either:
(A) An arterial blood gas study administered at rest in a sitting position, or an exercise arterial blood gas test, reflecting values equal to or less than the values set forth in the tables in appendix B to this part; or
(B) A written diagnosis by a physician in accordance with § 79.61(s); and
(ii) One of the following:
(A) A chest x-ray administered in accordance with standard techniques accompanied by interpretive reports of the x-ray by a maximum of two NIOSH certified “B” readers, classifying the existence of disease of category 1/0 or higher according to a 1989 report of the International Labor Office (known as the “ILO”), or subsequent revisions;
(B) High-resolution computed tomography scans (commonly known as “HRCT scans”), including computer-assisted tomography scans (commonly known as “CAT scans”), magnetic resonance imaging scans (commonly known as “MRI scans”), and positron emission tomography scans (commonly known as “PET scans”), and interpretive reports of such scans;
(C) Pathology reports of tissue biopsies; or
(D) Pulmonary function tests indicating restrictive lung function and consisting of three reproducible time/volume tracings recording the results of the forced expiratory volume in one second (FEV1) and the forced vital capacity (FVC) administered and reported in accordance with the Standardization of Spirometry—1994 Update by the American Thoracic Society, and reflecting values for FEV1 or FVC that are less than or equal to the lower limit of normal for an individual of the claimant’s age, sex, height, and ethnicity as set forth in the tables in appendix A to this part.
(e) The Assistant Director shall treat any documentation described in paragraph (d)(3)(i)(B) or paragraph (d)(3)(ii)(A) of this section as conclusive evidence of the claimant’s nonmalignant respiratory disease; provided, however, that the Program may subject such documentation to a fair and random audit to guarantee its authenticity and reliability for purposes of treating it as conclusive evidence; and provided further that, in order to be treated as conclusive evidence, a written diagnosis described in paragraph (d)(3)(i)(B) must be by a physician who is employed by the Indian Health Service or the Department of Veterans Affairs or who is board certified (as described in § 79.61(s)), and who must have a documented, ongoing physician-patient relationship with the claimant. Notwithstanding the conclusive effect given to certain evidence, nothing in this paragraph shall be construed as relieving a living claimant of the obligation to provide the Program with the forms of documentation required under paragraph (d)(3).
§ 79.66 Proof of primary renal cancer.
(a) In determining whether a claimant developed primary renal cancer following pertinent employment as an ore transporter, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed primary renal cancer must be supported by medical documentation. In all cases, the Program will review submitted medical documentation, and, in addition and where appropriate, will review any pertinent records discovered within the sources referred to in paragraphs (b) and (c) of this section.
(b) Where appropriate, the Radiation Exposure Compensation Program will search the records of the PHS (including NIOSH), created or gathered during the course of any health study of uranium workers conducted or being conducted by these agencies, to determine whether those records contain proof of the claimant’s medical condition. (In cases where the claimant is deceased, the Program will accept as proof of medical condition the verification of the PHS or NIOSH that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary renal cancer.)
(c) If a claimant was diagnosed as having primary renal cancer in Arizona, Colorado, Nevada, New Mexico, Utah or Wyoming, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information, valid in the state of diagnosis, that authorizes the Radiation Exposure Compensation Program to contact the appropriate state cancer or tumor registry, the Program will, where appropriate, request the relevant information from that registry and will review records that it obtains from the registry. (In cases where the claimant is deceased, the Program will accept as proof of medical condition verification from the state cancer or tumor registry that it possesses medical records or abstracts of medical records of the claimant that contain a verified diagnosis of primary renal cancer.)
(d) If medical records regarding the claimant were gathered during the course of any federally supported, health-related study of uranium workers, and the claimant or eligible surviving beneficiary submits with the claim an Authorization To Release Medical or Other Information that authorizes the Program to contact the custodian of the records of the study to determine if proof of the claimant’s medical condition is contained in the records of the study, the Program will, where appropriate, request such records from that custodian and will review records that it obtains from the custodian. (In cases where the claimant is deceased, the Program will accept as proof of the claimant’s medical condition such medical records or abstracts of medical records containing a verified diagnosis of primary renal cancer.)
(e) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted primary renal cancer. Such documentation will be most useful where it contains an explicit statement of diagnosis or such other information or data from which the appropriate authorities at the National Cancer Institute can make a diagnosis to a reasonable degree of medical certainty:
(1) Pathology report of tissue biopsy or resection;
(2) Autopsy report;
(3) One of the following summary medical reports:
(i) Physician summary report;
(ii) Hospital discharge summary report;
(iii) Operative report;
(iv) Radiotherapy summary report; or
(v) Medical oncology summary or consultation report;
(4) Report of one of the following radiology examinations:
(i) Computerized tomography (CT) scan;
(ii) Magnetic resonance imaging (MRI); or
(5) Death certificate, provided that it is signed by a physician at the time of death.
§ 79.67 Proof of chronic renal disease.
(a) In determining whether a claimant developed chronic renal disease following pertinent employment as an ore transporter, the Assistant Director shall resolve all reasonable doubt in favor of the claimant. A conclusion that a claimant developed chronic renal disease must be supported by medical documentation.
(b) A claimant or beneficiary may submit any of the following forms of medical documentation in support of a claim that the claimant contracted chronic renal disease.
(1) Pathology report of tissue biopsy;
(2) If laboratory or radiographic tests exist:
(i) Abnormal plasma creatinine values;
(ii) Abnormal glomerular filtration rate (by either measured creatinine or iothalamate clearance or calculated by MDRD equation); and
(iii) Renal tubular dysfunction as evidenced by:
(A) Glycosuria in the absence of diabetes mellitus;
(B) Proteinuria less than one gram daily without other known etiology; or
(C) Hyperphosphaturia, aminoaciduria, B-2 microglobinuria or alkaline phosphaturia or other marker of proximal tubular injury; or
(iv) Radiographic evidence of chronic renal disease;
(3) Autopsy report;
(4) Physician summary report;
(5) Hospital discharge summary report;
(6) Hospital admitting report; or
(7) Death certificate, provided that it is signed by a physician at the time of death.
Subpart H—Procedures
(a) An Assistant Director within the Constitutional and Specialized Torts Staff, Torts Branch, Civil Division, shall be assigned to manage the Radiation Exposure Compensation Program and issue a decision on each claim filed under the Act, and otherwise act on behalf of the Attorney General in all other matters relating to the administration of the Program, except for rulemaking authority. The Assistant Director may delegate any of his or her responsibilities under the regulations in this part to an attorney working under the supervision of the Assistant Director.
(b) The Assistant Attorney General, Civil Division, shall designate an Appeals Officer to act on appeals from the Assistant Director’s decisions.
§ 79.71 Filing of claims.
(a) All claims for compensation under the Act must be in writing and submitted on a standard claim form designated by the Assistant Director for the filing of compensation claims. Except as specifically provided in this part, the claimant or eligible surviving beneficiary must furnish the medical documentation required by this part with his or her standard form. Except as specifically provided in this part, the claimant or eligible surviving beneficiary must also provide with the standard form any records establishing the claimant’s physical presence in an affected area, onsite participation, employment in a uranium mine or mill, or employment as an ore transporter, in accordance with this part. The standard claim form must be completed, signed under oath either by a person eligible to file a claim under the Act or by that person’s legal guardian, and mailed with supporting documentation to the following address: Radiation Exposure Compensation Program, U.S. Department of Justice, P.O. Box 146, Ben Franklin Station, Washington, DC 20044-0146. Copies of the standard form, as well as the regulations, guidelines, and other information, may be obtained by requesting the document or publications from the Assistant Director at that address or by accessing the Program’s Web site at http://www.usdoj.gov/civil/reca.
(b) The Assistant Director will file a claim after receipt of the standard form with supporting documentation and examination for substantial compliance with this part. The date of filing shall be recorded by a stamp on the face of the standard form. The Assistant Director shall file only claims that substantially comply with paragraph (a) of this section. If a claim substantially fails to comply with paragraph (a), the Assistant Director shall promptly return the claim unfiled to the sender with a statement identifying the reason(s) why the claim does not comply with this part. The sender may return the claim to the Assistant Director after correcting the deficiencies. For those cases that are filed, the Assistant Director shall promptly acknowledge receipt of the claim with a letter identifying the number assigned to the claim, the date the claim was filed, and the period within which the Assistant Director must act on the claim.
(c) The following persons or their legal guardians are eligible to file claims for compensation under the Act in the following order:
(1) The claimant;
(2) If the claimant is deceased, the spouse of the claimant, provided that he or she was married to the claimant for at least one year immediately prior to the claimant’s death;
(3) If there is no surviving spouse or if the spouse is ineligible because he or she was not married to the claimant for at least one year immediately prior to the claimant’s death, a child of the claimant;
(4) If there is no eligible surviving spouse and no child, a parent of the claimant;
(5) If there is no eligible surviving spouse and no child or parent, a grandchild of the claimant; or
(6) If there is no eligible surviving spouse and no child, parent or grandchild, a grandparent of the claimant.
(7) Only the beneficiaries listed in this paragraph (c) are eligible to file a claim on behalf of the claimant.
(d) The identity of the claimant must be established by submitting a birth certificate or one of the other documents identified in § 79.14(a) when the person has no birth certificate. Additionally, documentation demonstrating any and all name changes must be provided.
(e)(1) The spouse of a claimant must establish his or her eligibility to file a claim by furnishing:
(i) His or her birth certificate and, if applicable, documentation demonstrating any and all name changes;
(ii) The birth and death certificates of the claimant;
(iii) One of the following documents to establish a marriage to the claimant:
(A) The public record of marriage;
(B) A certificate of marriage;
(C) The religious record of marriage; or
(D) A judicial or other governmental determination that a valid marriage existed, such as the final opinion or order of a probate court or a determination of the Social Security Administration that the person filing the claim is the spouse of the decedent;
(iv) A death certificate or divorce decree for each spouse of the claimant (if applicable); and
(v) An affidavit (or declaration under oath on the standard claim form) stating that the spouse was married to the claimant for at least one year immediately prior to the claimant’s death.
(2) If the spouse is a member of an Indian Tribe, he or she need not provide any of the documents listed in paragraph (e)(1) of this section at the time the claim is filed (although these records may later be required), but should instead furnish a signed release of private information that the Assistant Director will use to obtain a statement of verification of all of the information listed in paragraph (e)(1) directly from the tribal records custodian. In identifying those individuals eligible to receive compensation by virtue of marriage, relationship, or survivorship, the Assistant Director shall, to the maximum extent practicable, take into consideration and give effect to established law, tradition, and custom of the particular affected Indian Tribe.
(f)(1) A child of a claimant must establish his or her eligibility to file a claim by furnishing:
(i) His or her birth certificate and, if applicable, documentation demonstrating any and all name changes;
(ii) The birth and death certificates of the claimant;
(iii) One of the documents listed in paragraph (e)(1)(iii) of this section to establish each marriage of the claimant (if applicable);
(iv) A death certificate or divorce decree for each spouse of the claimant (if applicable);
(v) A death certificate for each of the other children of the claimant (if applicable);
(vi) An affidavit (or declaration under oath on the standard claim form) stating the following:
(A) That the claimant was never married, or, if the claimant was ever married, the name of each spouse, the date each marriage began and ended, and the date and place of divorce or death of the last spouse of the claimant; and
(B) That the claimant had no other children, or, if the claimant did have other children, the name of each child, the date and place of birth of each child, and the date and place of death or current address of each child; and
(vii) One of the following:
(A) In the case of a natural child, a birth certificate showing that the claimant was the child’s parent, or a judicial decree identifying the claimant as the child’s parent;
(B) In the case of an adopted child, the judicial decree of adoption; or
(C) In the case of a stepchild, evidence of birth to the spouse of the claimant as outlined in paragraph (f)(1)(vii) of this section, and records reflecting that the stepchild lived with the claimant in a regular parent-child relationship.
(2) If the child is a member of an Indian Tribe, he or she need not provide any of the documents listed in paragraph (f)(1) of this section at the time the claim is filed (although these records may later be required), but should instead furnish a signed release of private information that the Assistant Director will use to obtain a statement of verification of all of the information listed in paragraph (f)(1) directly from the tribal records custodian. In identifying those individuals eligible to receive compensation by virtue of survivorship, the Assistant Director shall, to the maximum extent practicable, take into consideration and give effect to established law, tradition, and custom of the particular affected Indian Tribe.
(g)(1) A parent of a claimant must establish his or her eligibility to file a claim by furnishing:
(i) His or her birth certificate and, if applicable, documentation demonstrating any and all name changes;
(ii) The birth and death certificates of the claimant;
(iii) One of the documents listed in paragraph (e)(1)(iii) of this section to establish each marriage of the claimant (if applicable);
(iv) A death certificate or divorce decree for each spouse of the claimant (if applicable);
(v) A death certificate for each child of the claimant (if applicable);
(vi) A death certificate for the other parent(s) (if applicable);
(vii) An affidavit (or declaration under oath on the standard claim form) stating the following:
(A) That the claimant was never married, or, if the claimant was ever married, the name of each spouse, the date each marriage began and ended, and the date and place of divorce or death of the last spouse of the claimant;
(B) That the claimant had no children, or, if the claimant did have children, the name of each child, the date and place of birth of each child, and the date and place of death of each child; and
(C) The name and address, or date and place of death, of the other parent(s) of the claimant; and
(viii) One of the following:
(A) In the case of a natural parent, a birth certificate showing that the claimant was the parent’s child, or a judicial decree identifying the claimant as the parent’s child; or
(B) In the case of an adoptive parent, the judicial decree of adoption.
(2) If the parent is a member of an Indian Tribe, he or she need not provide any of the documents listed in paragraph (g)(1) of this section at the time the claim is filed (although these records may later be required), but should instead furnish a signed release of private information that the Assistant Director will use to obtain a statement of verification of all of the information listed in paragraph (g)(1) directly from the tribal records custodian. In identifying those individuals eligible to receive compensation by virtue of survivorship, the Assistant Director shall, to the maximum extent practicable, take into consideration and give effect to established law, tradition, and custom of the particular affected Indian Tribe.
(h)(1) A grandchild of a claimant must establish his or her eligibility to file a claim by furnishing:
(i) His or her birth certificate and, if applicable, documentation demonstrating any and all name changes;
(ii) The birth and death certificates of the claimant;
(iii) One of the documents listed in paragraph (e)(1)(iii) of this section to establish each marriage of the claimant (if applicable);
(iv) A death certificate or divorce decree for each spouse of the claimant (if applicable);
(v) A death certificate for each child of the claimant;
(vi) A death certificate for each parent of the claimant;
(vii) A death certificate for each of the other grandchildren of the claimant (if applicable);
(viii) An affidavit (or declaration under oath on the standard claim form) stating the following:
(A) That the claimant was never married, or, if the claimant was ever married, the name of each spouse, the date each marriage began and ended, and the date and place of divorce or death of the last spouse of the claimant;
(B) The name of each child, the date and place of birth of each child, and the date and place of death of each child;
(C) The names of each parent of the claimant together with the dates and places of death of each parent; and
(D) That the claimant had no other grandchildren, or, if the claimant did have other grandchildren, the name of each grandchild, the date and place of birth of each grandchild, and the date and place of death or current address of each grandchild; and
(ix) One of the following:
(A) In the case of a natural grandchild, a combination of birth certificates showing that the claimant was the grandchild’s grandparent;
(B) In the case of an adopted grandchild, a combination of judicial records and birth certificates showing that the claimant was the grandchild’s grandparent; or
(C) In the case of a stepgrandchild, evidence of birth to the spouse of the child of the claimant, as outlined in this paragraph (h)(1), and records reflecting that the stepchild lived with a child of the claimant in a regular parent-child relationship; or evidence of birth to the spouse of the stepchild of the claimant or the stepchild of the claimant, as outlined in this paragraph (h)(1), and records reflecting that the stepchild of the claimant lived with the claimant in a regular parent-child relationship.
(2) If the grandchild is a member of an Indian Tribe, he or she need not provide any of the documents listed in paragraph (h)(1) of this section at the time the claim is filed (although these records may later be required), but should instead furnish a signed release of private information that the Assistant Director will use to obtain a statement of verification of all of the information listed in paragraph (h)(1) directly from the tribal records custodian. In identifying those individuals eligible to receive compensation by virtue of survivorship, the Assistant Director shall, to the maximum extent practicable, take into consideration and give effect to established law, tradition, and custom of the particular affected Indian Tribe.
(i)(1) A grandparent of the claimant must establish his or her eligibility to file a claim by furnishing:
(i) His or her birth certificate and, if applicable, documentation demonstrating any and all name changes;
(ii) The birth and death certificates of the claimant;
(iii) One of the documents listed in paragraph (e)(1)(iii) of this section to establish each marriage of the claimant (if applicable);
(iv) A death certificate or divorce decree for each spouse of the claimant (if applicable);
(v) A death certificate for each child of the claimant (if applicable);
(vi) A death certificate for each parent of the claimant;
(vii) A death certificate for each grandchild of the claimant (if applicable);
(viii) A death certificate for each of the other grandparents of the claimant (if applicable);
(ix) An affidavit stating the following:
(A) That the claimant was never married, or if the claimant was ever married, the name of each spouse, the date each marriage began and ended, and the date and place of divorce or death of the last spouse of the claimant;
(B) That the claimant had no children, or, if the claimant did have children, the name of each child, the date and place of birth of each child, and the date and place of death of each child;
(C) The names of each parent of the claimant together with the dates and places of death of each parent;
(D) That the claimant had no grandchildren, or, if the claimant did have grandchildren, the name of each grandchild, the date and place of birth of each grandchild, and the date and place of death of each grandchild; and
(E) The names of all other grandparents of the claimant together with the dates and places of birth of each grandparent, and the dates and places of death of each other grandparent or the current address of each other grandparent; and
(x) One of the following:
(A) In the case of a natural grandparent, a combination of birth certificates showing that the claimant was the grandparent’s grandchild;
(B) In the case of an adoptive grandparent, a combination of judicial records and birth certificates showing that the claimant was the grandparent’s grandchild.
(2) If the grandparent is a member of an Indian Tribe, he or she need not provide any of the documents listed in paragraph (i)(1) of this section at the time the claim is filed (although these records may later be required), but should instead furnish a signed release of private information that the Assistant Director will use to obtain a statement of verification of all of the information listed in paragraph (i)(1) directly from the tribal records custodian. In identifying those individuals eligible to receive compensation by virtue of survivorship, the Assistant Director shall, to the maximum extent practicable, take into consideration and give effect to established law, tradition, and custom of the particular affected Indian Tribe.
(j) A claim that was filed and denied may be filed again in those cases where the claimant or eligible surviving beneficiary obtains documentation that he or she did not possess when the claim was filed previously and that redresses the deficiency for which the claim was denied, including, where applicable, documentation addressing:
(1) An injury specified in the Act;
(2) Residency in the affected area;
(3) Onsite participation in a nuclear test;
(4) Exposure to 40 WLMs of radiation while employed in a uranium mine or mines during the designated time period;
(5) Employment for one year (12 consecutive or cumulative months) as a miner, miller or ore transporter; or
(6) The identity of the claimant and/or the eligible surviving beneficiary.
(k) A claimant or eligible surviving beneficiary may not refile a claim more than three times. Claims filed prior to July 10, 2000, will not be included in determining the number of claims filed.
§ 79.72 Review and resolution of claims.
(a) Initial review. The Assistant Director shall conduct an initial review of each claim that has been filed to determine whether:
(1) The person submitting the claim represents that he or she is an eligible surviving beneficiary in those cases where the claimant is deceased;
(2) The medical condition identified in the claim is a disease specified in the Act for which the claimant or eligible surviving beneficiary could recover compensation;
(3) For claims submitted under subparts B and C of this part, as relevant, the period and place of physical presence set forth in the claim falls within the designated time period and affected areas identified in § 79.11;
(4) For claims submitted under subparts B and D of this part, as relevant, the place and period of onsite participation set forth in the claim falls within the places and times set forth in § 79.11 and § 79.31; and
(5) For claims submitted under subparts E, F, and G of this part, the period and place of uranium mining, mill working or ore transporting set forth in the claim falls within the designated time period and specified states identified in §§ 79.41, 79.51, and 79.61. If the Assistant Director determines from the initial review that any one of the applicable criteria is not met, or that any other criterion of this part is not met, the Assistant Director shall so advise the claimant or eligible surviving beneficiary in writing, setting forth the reasons for the determination, and allow the claimant or eligible surviving beneficiary 60-days from the date of such notification to correct any deficiency in the claim. If the claimant or eligible surviving beneficiary fails adequately to correct the deficiencies within the 60-day period, the Assistant Director shall, without further review, issue a Decision denying the claim.
(b) Review of medical documentation. The Assistant Director will examine the medical documentation submitted in support of the claim and determine whether it satisfies the criteria for eligibility established by the Act and this part. The Assistant Director may, for the purpose of verifying eligibility, require the claimant or eligible surviving beneficiary to provide an authorization to release any medical record identified in this part. If the Assistant Director determines that the documentation does not satisfy the criteria for eligibility established by the Act and this part, the Assistant Director shall so advise the claimant or eligible surviving beneficiary in writing, setting forth the reason(s) for the determination, and shall allow the claimant or eligible beneficiary 60 days from the date of notification, or such greater period as the Assistant Director permits, to furnish additional medical documentation that meets the requirements of the Act and this part. Where appropriate, the Assistant Director may require the claimant or eligible surviving beneficiary to provide an authorization to release additional records. If the claimant or eligible beneficiary fails, within 60 days or the greater period approved by the Assistant Director, to provide sufficient medical documentation or a valid release when requested by the Assistant Director, then the Assistant Director shall, without further review, issue a Decision denying the claim.
(c) Review of the records. The Assistant Director will examine the other records submitted in support of the claim to prove those matters set forth in all other sections of the Act and this part, and will determine whether such records satisfy all other criteria for eligibility. For the purposes of verifying such eligibility, the Assistant Director may require the claimant or eligible surviving beneficiary to provide an authorization to release any record identified in this part. If the Assistant Director determines that the records do not satisfy the criteria for eligibility established by the Act and this part, the Assistant Director shall so advise the claimant or eligible surviving beneficiary in writing, setting forth the reasons for the determination, and shall provide the claimant or eligible surviving beneficiary 60 days from the date of notification, or such greater period as the Assistant Director permits, to furnish additional records to satisfy the requirements of the Act and this part. Where appropriate, the Assistant Director may require the claimant or eligible surviving beneficiary to provide an authorization to release additional records as an alternative to, or in addition to, the claimant or eligible beneficiary furnishing such additional records. If the claimant or eligible beneficiary fails within 60 days or the greater period approved by the Assistant Director, to provide sufficient records or a valid release when requested by the Assistant Director, then the Assistant Director shall, without further review, issue a Decision denying the claim.
(d) Decision. The Assistant Director shall review each claim and issue a written Decision on each claim within 12 months of the date the claim was filed. The Assistant Director may request from any claimant, or from any individual or entity on behalf of the claimant, any relevant additional information or documentation necessary to complete the determination of eligibility under paragraphs (a), (b), or (c) of this section. The period beginning on the date on which the Assistant Director makes a request for such additional information or documentation and ending on the date on which the claimant or individual or entity acting on behalf of the claimant submits that information or documentation (or informs the Assistant Director that it is not possible to provide that information or that the claimant or individual or entity will not provide that information) shall not apply to the 12-month period. Any Decision denying a claim shall set forth reason(s) for the denial, shall indicate that the Decision of the Assistant Director may be appealed to the Assistant Attorney General, Civil Division, in writing within 60 days of the date of the Decision, or such greater period as may be permitted by the Assistant Attorney General, Civil Division, and shall identify the address to which the appeal should be sent.
§ 79.73 Appeals procedures.
(a) An appeal must be in writing and must be received by the Radiation Exposure Compensation Program within 60 days of the date of the Decision denying the claim, unless a greater period has been permitted. Appeals must be sent to the following address: Radiation Exposure Compensation Program, Appeal of Decision, U.S. Department of Justice, P.O. Box 146, Ben Franklin Station, Washington, DC 20044-0146.
(b) The claimant or eligible surviving beneficiary must set forth in the appeal the reason(s) why he or she believes that the Decision of the Assistant Director is incorrect.
(c) Upon receipt of an appeal, the Radiation Exposure Compensation Program shall forward the appeal, the Decision, the claim, and all supporting documentation to the Appeals Officer for action on the appeal. If the appeal is not received within the 60-day period, or such greater period as may be permitted, the appeal may be denied without further review.
(d) The Appeals Officer shall review any appeal and other information forwarded by the Program. Within 90 days after the receipt of an appeal, the Appeals Officer shall issue a Memorandum either affirming or reversing the Assistant Director’s Decision or, when appropriate, remanding the claim to the Assistant Director for further action. The Memorandum shall include a statement of the reason(s) for such reversal, affirmance, or remand. The Memorandum and all papers relating to the claim shall be returned to the Radiation Exposure Compensation Program, which shall promptly inform the claimant or eligible surviving beneficiary of the action of the Appeals Officer. A Memorandum affirming or reversing the Assistant Director’s Decision shall be deemed to be the final action of the Department of Justice on the claim.
(e) Before seeking judicial review of a decision denying a claim under the Act, an individual must first seek review by the designated Appeals Officer. Once the appeals procedures are completed, an individual whose claim for compensation under the Act is affirmed on appeal may seek judicial review in a district court of the United States.
§ 79.74 Representatives and attorney’s fees.
(a) Representation. In submitting and presenting a claim to the Program, a claimant or beneficiary may, but need not, be represented by an attorney or by a representative of an Indian Tribe or tribal organization. Non-attorneys (other than representatives of an Indian Tribe or tribal organization) are not permitted to represent claimants or beneficiaries before the Program. To the extent that resources are available, the Assistant Director will provide assistance to all persons who file claims for compensation. Only qualified attorneys, as described in paragraph (c) of this section, may receive from a claimant or beneficiary any fee in connection with a successful claim.
(b) Fees. (1) Notwithstanding any contract, the attorney of a claimant or beneficiary, along with any assistants or experts retained by the attorney on behalf of the claimant or beneficiary, may not receive from a claimant or beneficiary any fee for services rendered in connection with an unsuccessful claim. The attorney of a claimant or beneficiary may recover costs incurred in connection with an unsuccessful claim.
(2) Notwithstanding any contract and except as provided in paragraph (b)(3) of this section, the attorney of a claimant or beneficiary, along with any assistants or experts retained by the attorney on behalf of the claimant or beneficiary, may receive from a claimant or beneficiary no more than 2% of the total award for all services rendered in connection with a successful claim, exclusive of costs.
(3)(i) If an attorney entered into a contract with the claimant or beneficiary for services before July 10, 2000, with respect to a particular claim, then that attorney may receive up to 10% of the total award for services rendered in connection with a successful claim, exclusive of costs.
(ii) If an attorney resubmits a previously denied claim, then that attorney may receive up to 10% of the total award to the claimant or beneficiary for services rendered in connection with that subsequently successful claim, exclusive of costs. Resubmission of a previously denied claim includes only those claims that were previously denied and refiled under the Act.
(4) Any violation of paragraph (b) of this section shall result in a fine of not more than $5,000.
(c) Attorney qualifications. An attorney may not represent a claimant or beneficiary unless the attorney is engaged in the private practice of law and an active member in good standing of the bar of the highest court of a state. Attorneys who are members of multiple state bars, and who are suspended, sanctioned, disbarred, or disqualified from the practice of law for professional misconduct in one state may not represent a claimant or beneficiary even though the attorney continues to remain in good standing of the bar of another state. If a claimant or beneficiary is represented by an attorney, then the attorney must submit the following documents to the Program along with the claim:
(1) A statement of the attorney’s active membership in good standing of the bar of the highest court of a state; and
(2) A signed representation agreement, retainer agreement, fee agreement, or contract, documenting the attorney’s authorization to represent the claimant or beneficiary. The document must acknowledge that the Act’s fee limitations are satisfied.
§ 79.75 Procedures for payment of claims.
(a) All awards for compensation are made in the form of one time lump sum payments and shall be made to the claimant or to the legal guardian of the claimant, unless the claimant is deceased at the time of the payment. In cases involving a claimant who is deceased, payment shall be made to each eligible surviving beneficiary or to the legal guardian acting on his or her behalf, in accordance with the terms and conditions specified in the Act. Once the Program has received the claimant’s or eligible surviving beneficiary’s election to accept the payment, the Assistant Director shall ensure that the claim is paid within six weeks. All time frames for processing claims under the Act are suspended during periods when the Radiation Trust Fund is not funded.
(b) In cases involving the approval of a claim, the Assistant Director shall take all necessary and appropriate steps to determine the correct amount of any offset to be made to the amount awarded under the Act and to verify the identity of the claimant or, in the case of a deceased claimant, the existence of eligible surviving beneficiaries who are entitled by the Act to receive the payment the claimant would have received. The Assistant Director may conduct any investigation, and may require any claimant or eligible surviving beneficiary to provide or execute any affidavit, record, or document or authorize the release of any information the Assistant Director deems necessary to ensure that the compensation payment is made in the correct amount and to the correct person(s). If the claimant or eligible surviving beneficiary fails or refuses to execute an affidavit or release of information, or to provide a record or document requested, or fails to provide access to information, such failure or refusal may be deemed to be a rejection of the payment, unless the claimant or eligible surviving beneficiary does not have and cannot obtain the legal authority to provide, release or authorize access to the required information, records or documents.
(c) Prior to authorizing payment, the Assistant Director shall require the claimant or each eligible surviving beneficiary to execute and provide an affidavit (or declaration under oath on the standard claim form) setting forth the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for worker’s compensation), against any person, that is based on injuries incurred by the claimant on account of:
(1) Exposure to radiation from an atmospheric detonation of a nuclear device while present in an affected area (as defined in § 79.11(a)) at any time during the periods described in § 79.11(c) or § 79.11(h);
(2) Exposure to radiation while participating onsite in an atmospheric detonation of a nuclear device (as defined in § 79.11(b)) at any time during the periods described in § 79.11(h) (This paragraph (c) only applies to claims filed under section 4(a)(1)(A)(i)(III) of the Act); or
(3) Exposure to radiation during employment in a uranium mine at any time during the period described in section 5 of the Act. For purposes of this paragraph, a “claim” includes, but is not limited to, any request or demand for money made or sought in a civil action or made or sought in anticipation of the filing of a civil action, but shall not include requests or demands made pursuant to a life insurance or health insurance contract. If any such award or settlement payment was made, the Assistant Director shall subtract the sum of such award or settlement payments from the payment to be made under the Act.
(d) In the case of a claim filed under section 4(a)(2)(C) of the Act, the Assistant Director shall require the claimant or each eligible surviving beneficiary to execute and provide an affidavit (or declaration under oath on the standard claim form) setting forth the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for worker’s compensation) against any person or any payment made by the Department of Veterans Affairs, that is based on injuries incurred by the claimant on account of exposure to radiation as a result of onsite participation in a test involving the atmospheric detonation of a nuclear device. For purposes of this paragraph, a “claim” includes, but is not limited to, any request or demand for money made or sought in a civil action or made or sought in anticipation of a civil action, but shall not include requests or demands made pursuant to a life-or health-insurance contract.
(1) Payments by the Department of Veterans Affairs shall include:
(i) Any disability payments or compensation benefits paid to the claimant and his or her dependents while the claimant is alive; and
(ii) Any Dependency and Indemnity Compensation payments made to survivors due to death related to the illness for which the claim under the Act is submitted.
(2) Payments by the Department of Veterans Affairs shall not include:
(i) Active duty pay, retired pay, retainer pay, or payments under the Survivor Benefits Plan;
(ii) Death gratuities;
(iii) SGLI, VGLI, or mortgage, life, or health insurance payments;
(iv) Burial benefits or reimbursement for burial expenses;
(v) Loans or loan guarantees;
(vi) Education benefits and payments;
(vii) Vocational rehabilitation benefits and payments;
(viii) Medical, hospital, and dental benefits; or
(ix) Commissary and PX privileges.
(e) If any such award, settlement, or payment was made as described in paragraphs (c) or (d) of this section, the Assistant Director shall calculate the actuarial present value of such payment(s), and subtract the actuarial present value from the payment to be made under the Act. The actuarial present value shall be calculated using the worksheet in appendix C to this part in the following manner:
(1) Step 1. The sums of the past payments received in each year are entered in the appropriate rows in column (2). Additional rows will be added as needed to calculate the present value of payments received in the years prior to 1960 and after 1990.
(2) Step 2. The present CPI-U (to be obtained monthly from the Bureau of Labor Statistics, Department of Labor) is entered in column (3).
(3) Step 3. The CPI (Major Expenditure Classes—All Items) for each year in which payments were received is entered in the appropriate row in column (4). (This measure is provided for 1960 through 1990. The measure for subsequent years will be obtained from the Bureau of Labor Statistics.)
(4) Step 4. For each row, the amount in column (2) is multiplied by the corresponding inflator (column (3) divided by column (4)) and the product is entered in column (5).
(5) Step 5. The products in column (5) are added together and the sum is entered on the line labeled “Total of column (5) equals actuarial present value of past payments.”
(6) Step 6. The sum in Step 5 is subtracted from the statutory payment of $75,000 and the remainder is entered on the line labeled “Net Claim Owed to Claimant.”
(f) When the Assistant Director has verified the identity of the claimant or each eligible surviving beneficiary who is entitled to the compensation payment or to a share of the compensation payment, and has determined the correct amount of the payment or the share of the payment, he or she shall notify the claimant or each eligible surviving beneficiary, or his or her legal guardian, and require such person(s) to sign an Acceptance of Payment Form. Such form shall be signed and returned within 60 days of the date of the form or such greater period as may be allowed by the Assistant Director. Failure to return the signed form within the required time may be deemed to be a rejection of the payment. Signing and returning the form within the required time shall constitute acceptance of the payment, unless the individual who has signed the form dies prior to receiving the actual payment, in which case the person who possesses the payment shall return it to the Assistant Director for redetermination of the correct disbursement of the payment.
(g) Rejected compensation payments or shares of compensation payments shall not be distributed to other eligible surviving beneficiaries, but shall be returned to the Trust Fund for use in paying other claims.
(h) Upon receipt of the Acceptance of Payment Form, the Assistant Director or the Constitutional and Specialized Torts Staff Director or Deputy Director, or their designee, shall authorize the appropriate authorities to issue a check to the claimant or to each eligible surviving beneficiary who has accepted payment out of the funds appropriated for this purpose.
(i) Multiple payments. (1) No claimant may receive payment under more than one subpart of this part for illnesses that he or she contracted. In addition to one payment for his or her illnesses, he or she may also receive one payment for each claimant for whom he or she qualifies as an eligible surviving beneficiary.
(2) An eligible surviving beneficiary who is not also a claimant may receive one payment for each claimant for whom he or she qualifies as an eligible surviving beneficiary.
Appendix A to Part 79—FVC and FEV-1 Lower Limits of Normal Values
Table 1—Caucasian Males FVC Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: −0.1933 + (0.00064)(age) + (−0.000269)(age
2) + (0.00015695)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.96 | 2.91 | 2.85 | 2.79 | 2.74 | 2.67 | 2.61 | 2.55 | 2.48 | 2.41 | 2.34 | 2.26 | 2.19 | 2.11 | 2.03 | 1.94 | 1.86 |
| 61.5 | 156.2 | 3.02 | 2.97 | 2.91 | 2.86 | 2.80 | 2.74 | 2.67 | 2.61 | 2.54 | 2.47 | 2.40 | 2.33 | 2.25 | 2.17 | 2.09 | 2.01 | 1.92 |
| 62.0 | 157.5 | 3.09 | 3.03 | 2.98 | 2.92 | 2.86 | 2.80 | 2.74 | 2.67 | 2.61 | 2.54 | 2.46 | 2.39 | 2.31 | 2.23 | 2.15 | 2.07 | 1.99 |
| 62.5 | 158.8 | 3.15 | 3.10 | 3.04 | 2.99 | 2.93 | 2.87 | 2.80 | 2.74 | 2.67 | 2.60 | 2.53 | 2.45 | 2.38 | 2.30 | 2.22 | 2.14 | 2.05 |
| 63.0 | 160.0 | 3.21 | 3.16 | 3.10 | 3.05 | 2.99 | 2.93 | 2.86 | 2.80 | 2.73 | 2.66 | 2.59 | 2.51 | 2.44 | 2.36 | 2.28 | 2.20 | 2.11 |
| 63.5 | 161.3 | 3.28 | 3.22 | 3.17 | 3.11 | 3.05 | 2.99 | 2.93 | 2.86 | 2.80 | 2.73 | 2.65 | 2.58 | 2.50 | 2.43 | 2.34 | 2.26 | 2.18 |
| 64.0 | 162.6 | 3.34 | 3.29 | 3.23 | 3.18 | 3.12 | 3.06 | 2.99 | 2.93 | 2.86 | 2.79 | 2.72 | 2.65 | 2.57 | 2.49 | 2.41 | 2.33 | 2.24 |
| 64.5 | 163.8 | 3.40 | 3.35 | 3.30 | 3.24 | 3.18 | 3.12 | 3.06 | 2.99 | 2.92 | 2.85 | 2.78 | 2.71 | 2.63 | 2.55 | 2.47 | 2.39 | 2.30 |
| 65.0 | 165.1 | 3.47 | 3.42 | 3.36 | 3.31 | 3.25 | 3.19 | 3.12 | 3.06 | 2.99 | 2.92 | 2.85 | 2.77 | 2.70 | 2.62 | 2.54 | 2.46 | 2.37 |
| 65.5 | 166.4 | 3.54 | 3.48 | 3.43 | 3.37 | 3.31 | 3.25 | 3.19 | 3.12 | 3.06 | 2.99 | 2.91 | 2.84 | 2.76 | 2.69 | 2.61 | 2.52 | 2.44 |
| 66.0 | 167.6 | 3.60 | 3.55 | 3.50 | 3.44 | 3.38 | 3.32 | 3.26 | 3.19 | 3.12 | 3.05 | 2.98 | 2.91 | 2.83 | 2.75 | 2.67 | 2.59 | 2.50 |
| 66.5 | 168.9 | 3.67 | 3.62 | 3.56 | 3.51 | 3.45 | 3.39 | 3.32 | 3.26 | 3.19 | 3.12 | 3.05 | 2.97 | 2.90 | 2.82 | 2.74 | 2.66 | 2.57 |
| 67.0 | 170.2 | 3.74 | 3.69 | 3.63 | 3.57 | 3.52 | 3.45 | 3.39 | 3.33 | 3.26 | 3.19 | 3.12 | 3.04 | 2.97 | 2.89 | 2.81 | 2.72 | 2.64 |
| 67.5 | 171.5 | 3.81 | 3.76 | 3.70 | 3.64 | 3.59 | 3.52 | 3.46 | 3.40 | 3.33 | 3.26 | 3.19 | 3.11 | 3.04 | 2.96 | 2.88 | 2.79 | 2.71 |
| 68.0 | 172.7 | 3.87 | 3.82 | 3.77 | 3.71 | 3.65 | 3.59 | 3.53 | 3.46 | 3.39 | 3.32 | 3.25 | 3.18 | 3.10 | 3.02 | 2.94 | 2.86 | 2.77 |
| 68.5 | 174.0 | 3.94 | 3.89 | 3.84 | 3.78 | 3.72 | 3.66 | 3.60 | 3.53 | 3.46 | 3.39 | 3.32 | 3.25 | 3.17 | 3.09 | 3.01 | 2.93 | 2.85 |
| 69.0 | 175.3 | 4.02 | 3.96 | 3.91 | 3.85 | 3.79 | 3.73 | 3.67 | 3.60 | 3.53 | 3.47 | 3.39 | 3.32 | 3.24 | 3.16 | 3.08 | 3.00 | 2.92 |
| 69.5 | 176.5 | 4.08 | 4.03 | 3.97 | 3.92 | 3.86 | 3.80 | 3.73 | 3.67 | 3.60 | 3.53 | 3.46 | 3.39 | 3.31 | 3.23 | 3.15 | 3.07 | 2.98 |
| 70.0 | 177.8 | 4.15 | 4.10 | 4.05 | 3.99 | 3.93 | 3.87 | 3.81 | 3.74 | 3.67 | 3.60 | 3.53 | 3.46 | 3.38 | 3.30 | 3.22 | 3.14 | 3.06 |
| 70.5 | 179.1 | 4.23 | 4.17 | 4.12 | 4.06 | 4.00 | 3.94 | 3.88 | 3.81 | 3.75 | 3.68 | 3.60 | 3.53 | 3.45 | 3.38 | 3.30 | 3.21 | 3.13 |
| 71.0 | 180.3 | 4.29 | 4.24 | 4.19 | 4.13 | 4.07 | 4.01 | 3.95 | 3.88 | 3.81 | 3.74 | 3.67 | 3.60 | 3.52 | 3.44 | 3.36 | 3.28 | 3.20 |
| 71.5 | 181.6 | 4.37 | 4.32 | 4.26 | 4.20 | 4.15 | 4.08 | 4.02 | 3.96 | 3.89 | 3.82 | 3.75 | 3.67 | 3.60 | 3.52 | 3.44 | 3.35 | 3.27 |
| 72.0 | 182.9 | 4.44 | 4.39 | 4.34 | 4.28 | 4.22 | 4.16 | 4.10 | 4.03 | 3.96 | 3.89 | 3.82 | 3.75 | 3.67 | 3.59 | 3.51 | 3.43 | 3.34 |
| 72.5 | 184.2 | 4.52 | 4.46 | 4.41 | 4.35 | 4.29 | 4.23 | 4.17 | 4.10 | 4.04 | 3.97 | 3.90 | 3.82 | 3.75 | 3.67 | 3.59 | 3.50 | 3.42 |
| 73.0 | 185.4 | 4.59 | 4.53 | 4.48 | 4.42 | 4.36 | 4.30 | 4.24 | 4.17 | 4.11 | 4.04 | 3.97 | 3.89 | 3.81 | 3.74 | 3.66 | 3.57 | 3.49 |
| 73.5 | 186.7 | 4.66 | 4.61 | 4.56 | 4.50 | 4.44 | 4.38 | 4.32 | 4.25 | 4.18 | 4.11 | 4.04 | 3.97 | 3.89 | 3.81 | 3.73 | 3.65 | 3.56 |
| 74.0 | 188.0 | 4.74 | 4.69 | 4.63 | 4.58 | 4.52 | 4.46 | 4.39 | 4.33 | 4.26 | 4.19 | 4.12 | 4.04 | 3.97 | 3.89 | 3.81 | 3.73 | 3.64 |
| 74.5 | 189.2 | 4.81 | 4.76 | 4.70 | 4.65 | 4.59 | 4.53 | 4.46 | 4.40 | 4.33 | 4.26 | 4.19 | 4.11 | 4.04 | 3.96 | 3.88 | 3.80 | 3.71 |
| 75.0 | 190.5 | 4.89 | 4.84 | 4.78 | 4.72 | 4.66 | 4.60 | 4.54 | 4.48 | 4.41 | 4.34 | 4.27 | 4.19 | 4.12 | 4.04 | 3.96 | 3.87 | 3.79 |
| 75.5 | 191.8 | 4.97 | 4.91 | 4.86 | 4.80 | 4.74 | 4.68 | 4.62 | 4.55 | 4.49 | 4.42 | 4.34 | 4.27 | 4.19 | 4.12 | 4.03 | 3.95 | 3.87 |
| 76.0 | 193.0 | 5.04 | 4.99 | 4.93 | 4.87 | 4.82 | 4.75 | 4.69 | 4.63 | 4.56 | 4.49 | 4.42 | 4.34 | 4.27 | 4.19 | 4.11 | 4.02 | 3.94 |
| 76.5 | 194.3 | 5.12 | 5.06 | 5.01 | 4.95 | 4.89 | 4.83 | 4.77 | 4.70 | 4.64 | 4.57 | 4.50 | 4.42 | 4.35 | 4.27 | 4.19 | 4.10 | 4.02 |
| 77.0 | 195.6 | 5.20 | 5.14 | 5.09 | 5.03 | 4.97 | 4.91 | 4.85 | 4.78 | 4.72 | 4.65 | 4.57 | 4.50 | 4.42 | 4.35 | 4.27 | 4.18 | 4.10 |
| 77.5 | 196.9 | 5.28 | 5.22 | 5.17 | 5.11 | 5.05 | 4.99 | 4.93 | 4.86 | 4.80 | 4.73 | 4.66 | 4.58 | 4.50 | 4.43 | 4.35 | 4.26 | 4.18 |
| 78.0 | 198.1 | 5.35 | 5.30 | 5.24 | 5.19 | 5.13 | 5.07 | 5.00 | 4.94 | 4.87 | 4.80 | 4.73 | 4.66 | 4.58 | 4.50 | 4.42 | 4.34 | 4.25 |
| 78.5 | 199.4 | 5.43 | 5.38 | 5.33 | 5.27 | 5.21 | 5.15 | 5.09 | 5.02 | 4.95 | 4.88 | 4.81 | 4.74 | 4.66 | 4.58 | 4.50 | 4.42 | 4.33 |
| 79.0 | 200.7 | 5.51 | 5.46 | 5.41 | 5.35 | 5.29 | 5.23 | 5.17 | 5.10 | 5.03 | 4.96 | 4.89 | 4.82 | 4.74 | 4.66 | 4.58 | 4.50 | 4.42 |
| 79.5 | 201.9 | 5.59 | 5.54 | 5.48 | 5.43 | 5.37 | 5.31 | 5.24 | 5.18 | 5.11 | 5.04 | 4.97 | 4.89 | 4.82 | 4.74 | 4.66 | 4.58 | 4.49 |
| 80.0 | 203.2 | 5.67 | 5.62 | 5.57 | 5.51 | 5.45 | 5.39 | 5.33 | 5.26 | 5.19 | 5.12 | 5.05 | 4.98 | 4.90 | 4.82 | 4.74 | 4.66 | 4.57 |
| 80.5 | 204.5 | 5.76 | 5.70 | 5.65 | 5.59 | 5.53 | 5.47 | 5.41 | 5.34 | 5.28 | 5.21 | 5.13 | 5.06 | 4.98 | 4.91 | 4.82 | 4.74 | 4.66 |
| 81.0 | 205.7 | 5.83 | 5.78 | 5.73 | 5.67 | 5.61 | 5.55 | 5.49 | 5.42 | 5.35 | 5.28 | 5.21 | 5.14 | 5.06 | 4.98 | 4.90 | 4.82 | 4.73 |
| 81.5 | 207.0 | 5.92 | 5.86 | 5.81 | 5.75 | 5.69 | 5.63 | 5.57 | 5.50 | 5.44 | 5.37 | 5.30 | 5.22 | 5.15 | 5.07 | 4.99 | 4.90 | 4.82 |
| 82.0 | 208.3 | 6.00 | 5.95 | 5.89 | 5.84 | 5.78 | 5.72 | 5.65 | 5.59 | 5.52 | 5.45 | 5.38 | 5.31 | 5.23 | 5.15 | 5.07 | 4.99 | 4.90 |
| 82.5 | 209.6 | 6.09 | 6.03 | 5.98 | 5.92 | 5.86 | 5.80 | 5.74 | 5.67 | 5.61 | 5.54 | 5.47 | 5.39 | 5.32 | 5.24 | 5.16 | 5.07 | 4.99 |
Table 1A—Caucasian Males FEV-1 Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.5536 + (−0.01303)(age) + (−0.000172)(age
2) + (0.00011607)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.29 | 2.23 | 2.16 | 2.10 | 2.04 | 1.97 | 1.90 | 1.84 | 1.76 | 1.69 | 1.62 | 1.55 | 1.47 | 1.39 | 1.32 | 1.24 | 1.15 |
| 61.5 | 156.2 | 2.33 | 2.27 | 2.21 | 2.15 | 2.08 | 2.02 | 1.95 | 1.88 | 1.81 | 1.74 | 1.67 | 1.59 | 1.52 | 1.44 | 1.36 | 1.28 | 1.20 |
| 62.0 | 157.5 | 2.38 | 2.32 | 2.26 | 2.20 | 2.13 | 2.07 | 2.00 | 1.93 | 1.86 | 1.79 | 1.71 | 1.64 | 1.57 | 1.49 | 1.41 | 1.33 | 1.25 |
| 62.5 | 158.8 | 2.43 | 2.37 | 2.31 | 2.24 | 2.18 | 2.11 | 2.05 | 1.98 | 1.91 | 1.84 | 1.76 | 1.69 | 1.61 | 1.54 | 1.46 | 1.38 | 1.30 |
| 63.0 | 160.0 | 2.47 | 2.41 | 2.35 | 2.29 | 2.22 | 2.16 | 2.09 | 2.02 | 1.95 | 1.88 | 1.81 | 1.73 | 1.66 | 1.58 | 1.50 | 1.42 | 1.34 |
| 63.5 | 161.3 | 2.52 | 2.46 | 2.40 | 2.34 | 2.27 | 2.21 | 2.14 | 2.07 | 2.00 | 1.93 | 1.86 | 1.78 | 1.71 | 1.63 | 1.55 | 1.47 | 1.39 |
| 64.0 | 162.6 | 2.57 | 2.51 | 2.45 | 2.39 | 2.32 | 2.25 | 2.19 | 2.12 | 2.05 | 1.98 | 1.90 | 1.83 | 1.75 | 1.68 | 1.60 | 1.52 | 1.44 |
| 64.5 | 163.8 | 2.62 | 2.56 | 2.49 | 2.43 | 2.37 | 2.30 | 2.23 | 2.16 | 2.09 | 2.02 | 1.95 | 1.88 | 1.80 | 1.72 | 1.64 | 1.56 | 1.48 |
| 65.0 | 165.1 | 2.67 | 2.61 | 2.54 | 2.48 | 2.42 | 2.35 | 2.28 | 2.21 | 2.14 | 2.07 | 2.00 | 1.93 | 1.85 | 1.77 | 1.69 | 1.61 | 1.53 |
| 65.5 | 166.4 | 2.71 | 2.65 | 2.59 | 2.53 | 2.46 | 2.40 | 2.33 | 2.26 | 2.19 | 2.12 | 2.05 | 1.97 | 1.90 | 1.82 | 1.74 | 1.66 | 1.58 |
| 66.0 | 167.6 | 2.76 | 2.70 | 2.64 | 2.58 | 2.51 | 2.45 | 2.38 | 2.31 | 2.24 | 2.17 | 2.10 | 2.02 | 1.95 | 1.87 | 1.79 | 1.71 | 1.63 |
| 66.5 | 168.9 | 2.81 | 2.75 | 2.69 | 2.63 | 2.56 | 2.50 | 2.43 | 2.36 | 2.29 | 2.22 | 2.15 | 2.07 | 2.00 | 1.92 | 1.84 | 1.76 | 1.68 |
| 67.0 | 170.2 | 2.86 | 2.80 | 2.74 | 2.68 | 2.61 | 2.55 | 2.48 | 2.41 | 2.34 | 2.27 | 2.20 | 2.12 | 2.05 | 1.97 | 1.89 | 1.81 | 1.73 |
| 67.5 | 171.5 | 2.92 | 2.86 | 2.79 | 2.73 | 2.67 | 2.60 | 2.53 | 2.46 | 2.39 | 2.32 | 2.25 | 2.18 | 2.10 | 2.02 | 1.94 | 1.86 | 1.78 |
| 68.0 | 172.7 | 2.96 | 2.90 | 2.84 | 2.78 | 2.71 | 2.65 | 2.58 | 2.51 | 2.44 | 2.37 | 2.30 | 2.22 | 2.15 | 2.07 | 1.99 | 1.91 | 1.83 |
| 68.5 | 174.0 | 3.02 | 2.96 | 2.89 | 2.83 | 2.77 | 2.70 | 2.63 | 2.56 | 2.49 | 2.42 | 2.35 | 2.28 | 2.20 | 2.12 | 2.04 | 1.96 | 1.88 |
| 69.0 | 175.3 | 3.07 | 3.01 | 2.95 | 2.88 | 2.82 | 2.75 | 2.69 | 2.62 | 2.55 | 2.48 | 2.40 | 2.33 | 2.25 | 2.18 | 2.10 | 2.02 | 1.94 |
| 69.5 | 176.5 | 3.12 | 3.06 | 3.00 | 2.93 | 2.87 | 2.80 | 2.73 | 2.67 | 2.60 | 2.52 | 2.45 | 2.38 | 2.30 | 2.22 | 2.15 | 2.07 | 1.99 |
| 70.0 | 177.8 | 3.17 | 3.11 | 3.05 | 2.99 | 2.92 | 2.86 | 2.79 | 2.72 | 2.65 | 2.58 | 2.50 | 2.43 | 2.36 | 2.28 | 2.20 | 2.12 | 2.04 |
| 70.5 | 179.1 | 3.23 | 3.16 | 3.10 | 3.04 | 2.98 | 2.91 | 2.84 | 2.77 | 2.70 | 2.63 | 2.56 | 2.48 | 2.41 | 2.33 | 2.25 | 2.17 | 2.09 |
| 71.0 | 180.3 | 3.28 | 3.21 | 3.15 | 3.09 | 3.03 | 2.96 | 2.89 | 2.82 | 2.75 | 2.68 | 2.61 | 2.53 | 2.46 | 2.38 | 2.30 | 2.22 | 2.14 |
| 71.5 | 181.6 | 3.33 | 3.27 | 3.21 | 3.14 | 3.08 | 3.01 | 2.95 | 2.88 | 2.81 | 2.74 | 2.66 | 2.59 | 2.51 | 2.44 | 2.36 | 2.28 | 2.20 |
| 72.0 | 182.9 | 3.38 | 3.32 | 3.26 | 3.20 | 3.13 | 3.07 | 3.00 | 2.93 | 2.86 | 2.79 | 2.72 | 2.64 | 2.57 | 2.49 | 2.41 | 2.33 | 2.25 |
| 72.5 | 184.2 | 3.44 | 3.38 | 3.32 | 3.25 | 3.19 | 3.12 | 3.06 | 2.99 | 2.92 | 2.85 | 2.77 | 2.70 | 2.62 | 2.55 | 2.47 | 2.39 | 2.31 |
| 73.0 | 185.4 | 3.49 | 3.43 | 3.37 | 3.31 | 3.24 | 3.18 | 3.11 | 3.04 | 2.97 | 2.90 | 2.83 | 2.75 | 2.68 | 2.60 | 2.52 | 2.44 | 2.36 |
| 73.5 | 186.7 | 3.55 | 3.49 | 3.43 | 3.36 | 3.30 | 3.23 | 3.16 | 3.10 | 3.03 | 2.95 | 2.88 | 2.81 | 2.73 | 2.65 | 2.58 | 2.50 | 2.42 |
| 74.0 | 188.0 | 3.60 | 3.54 | 3.48 | 3.42 | 3.35 | 3.29 | 3.22 | 3.15 | 3.08 | 3.01 | 2.94 | 2.86 | 2.79 | 2.71 | 2.63 | 2.55 | 2.47 |
| 74.5 | 189.2 | 3.66 | 3.60 | 3.53 | 3.47 | 3.41 | 3.34 | 3.27 | 3.20 | 3.13 | 3.06 | 2.99 | 2.92 | 2.84 | 2.76 | 2.69 | 2.61 | 2.52 |
| 75.0 | 190.5 | 3.71 | 3.65 | 3.59 | 3.53 | 3.46 | 3.40 | 3.33 | 3.26 | 3.19 | 3.12 | 3.05 | 2.97 | 2.90 | 2.82 | 2.74 | 2.66 | 2.58 |
| 75.5 | 191.8 | 3.77 | 3.71 | 3.65 | 3.59 | 3.52 | 3.46 | 3.39 | 3.32 | 3.25 | 3.18 | 3.11 | 3.03 | 2.96 | 2.88 | 2.80 | 2.72 | 2.64 |
| 76.0 | 193.0 | 3.83 | 3.77 | 3.70 | 3.64 | 3.58 | 3.51 | 3.44 | 3.37 | 3.30 | 3.23 | 3.16 | 3.08 | 3.01 | 2.93 | 2.85 | 2.77 | 2.69 |
| 76.5 | 194.3 | 3.88 | 3.82 | 3.76 | 3.70 | 3.63 | 3.57 | 3.50 | 3.43 | 3.36 | 3.29 | 3.22 | 3.14 | 3.07 | 2.99 | 2.91 | 2.83 | 2.75 |
| 77.0 | 195.6 | 3.94 | 3.88 | 3.82 | 3.76 | 3.69 | 3.63 | 3.56 | 3.49 | 3.42 | 3.35 | 3.28 | 3.20 | 3.13 | 3.05 | 2.97 | 2.89 | 2.81 |
| 77.5 | 196.9 | 4.00 | 3.94 | 3.88 | 3.82 | 3.75 | 3.69 | 3.62 | 3.55 | 3.48 | 3.41 | 3.34 | 3.26 | 3.19 | 3.11 | 3.03 | 2.95 | 2.87 |
| 78.0 | 198.1 | 4.06 | 4.00 | 3.93 | 3.87 | 3.81 | 3.74 | 3.67 | 3.61 | 3.53 | 3.46 | 3.39 | 3.32 | 3.24 | 3.16 | 3.09 | 3.01 | 2.92 |
| 78.5 | 199.4 | 4.12 | 4.06 | 3.99 | 3.93 | 3.87 | 3.80 | 3.73 | 3.67 | 3.59 | 3.52 | 3.45 | 3.38 | 3.30 | 3.22 | 3.15 | 3.07 | 2.98 |
| 79.0 | 200.7 | 4.18 | 4.12 | 4.06 | 3.99 | 3.93 | 3.86 | 3.79 | 3.73 | 3.66 | 3.58 | 3.51 | 3.44 | 3.36 | 3.28 | 3.21 | 3.13 | 3.05 |
| 79.5 | 201.9 | 4.23 | 4.17 | 4.11 | 4.05 | 3.98 | 3.92 | 3.85 | 3.78 | 3.71 | 3.64 | 3.57 | 3.49 | 3.42 | 3.34 | 3.26 | 3.18 | 3.10 |
| 80.0 | 203.2 | 4.29 | 4.23 | 4.17 | 4.11 | 4.04 | 3.98 | 3.91 | 3.84 | 3.77 | 3.70 | 3.63 | 3.55 | 3.48 | 3.40 | 3.32 | 3.24 | 3.16 |
| 80.5 | 204.5 | 4.36 | 4.30 | 4.23 | 4.17 | 4.11 | 4.04 | 3.97 | 3.90 | 3.83 | 3.76 | 3.69 | 3.62 | 3.54 | 3.46 | 3.38 | 3.30 | 3.22 |
| 81.0 | 205.7 | 4.41 | 4.35 | 4.29 | 4.23 | 4.16 | 4.10 | 4.03 | 3.96 | 3.89 | 3.82 | 3.75 | 3.67 | 3.60 | 3.52 | 3.44 | 3.36 | 3.28 |
| 81.5 | 207.0 | 4.48 | 4.42 | 4.35 | 4.29 | 4.23 | 4.16 | 4.09 | 4.02 | 3.95 | 3.88 | 3.81 | 3.73 | 3.66 | 3.58 | 3.50 | 3.42 | 3.34 |
| 82.0 | 208.3 | 4.54 | 4.48 | 4.42 | 4.35 | 4.29 | 4.22 | 4.15 | 4.09 | 4.02 | 3.94 | 3.87 | 3.80 | 3.72 | 3.64 | 3.57 | 3.49 | 3.41 |
| 82.5 | 209.6 | 4.60 | 4.54 | 4.48 | 4.42 | 4.35 | 4.29 | 4.22 | 4.15 | 4.08 | 4.01 | 3.93 | 3.86 | 3.79 | 3.71 | 3.63 | 3.55 | 3.47 |
Table 2—Caucasian Females FVC Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: −0.356 + (0.0187)(age) + (−0.000382)(age
2) + (0.00012198)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.57 | 2.53 | 2.49 | 2.44 | 2.40 | 2.34 | 2.29 | 2.23 | 2.17 | 2.11 | 2.04 | 1.97 | 1.90 | 1.82 | 1.75 | 1.66 | 1.58 |
| 61.5 | 156.2 | 2.62 | 2.58 | 2.54 | 2.49 | 2.44 | 2.39 | 2.34 | 2.28 | 2.22 | 2.16 | 2.09 | 2.02 | 1.95 | 1.87 | 1.80 | 1.71 | 1.63 |
| 62.0 | 157.5 | 2.67 | 2.63 | 2.59 | 2.54 | 2.49 | 2.44 | 2.39 | 2.33 | 2.27 | 2.21 | 2.14 | 2.07 | 2.00 | 1.92 | 1.84 | 1.76 | 1.68 |
| 62.5 | 158.8 | 2.72 | 2.68 | 2.64 | 2.59 | 2.54 | 2.49 | 2.44 | 2.38 | 2.32 | 2.26 | 2.19 | 2.12 | 2.05 | 1.97 | 1.90 | 1.81 | 1.73 |
| 63.0 | 160.0 | 2.77 | 2.73 | 2.68 | 2.64 | 2.59 | 2.54 | 2.49 | 2.43 | 2.37 | 2.30 | 2.24 | 2.17 | 2.10 | 2.02 | 1.94 | 1.86 | 1.78 |
| 63.5 | 161.3 | 2.82 | 2.78 | 2.74 | 2.69 | 2.64 | 2.59 | 2.54 | 2.48 | 2.42 | 2.36 | 2.29 | 2.22 | 2.15 | 2.07 | 1.99 | 1.91 | 1.83 |
| 64.0 | 162.6 | 2.87 | 2.83 | 2.79 | 2.74 | 2.69 | 2.64 | 2.59 | 2.53 | 2.47 | 2.41 | 2.34 | 2.27 | 2.20 | 2.12 | 2.04 | 1.96 | 1.88 |
| 64.5 | 163.8 | 2.92 | 2.88 | 2.83 | 2.79 | 2.74 | 2.69 | 2.64 | 2.58 | 2.52 | 2.45 | 2.39 | 2.32 | 2.25 | 2.17 | 2.09 | 2.01 | 1.93 |
| 65.0 | 165.1 | 2.97 | 2.93 | 2.89 | 2.84 | 2.79 | 2.74 | 2.69 | 2.63 | 2.57 | 2.51 | 2.44 | 2.37 | 2.30 | 2.22 | 2.14 | 2.06 | 1.98 |
| 65.5 | 166.4 | 3.02 | 2.98 | 2.94 | 2.89 | 2.85 | 2.79 | 2.74 | 2.68 | 2.62 | 2.56 | 2.49 | 2.42 | 2.35 | 2.27 | 2.20 | 2.11 | 2.03 |
| 66.0 | 167.6 | 3.07 | 3.03 | 2.99 | 2.94 | 2.90 | 2.85 | 2.79 | 2.73 | 2.67 | 2.61 | 2.54 | 2.47 | 2.40 | 2.33 | 2.25 | 2.17 | 2.08 |
| 66.5 | 168.9 | 3.12 | 3.08 | 3.04 | 3.00 | 2.95 | 2.90 | 2.84 | 2.79 | 2.73 | 2.66 | 2.60 | 2.53 | 2.45 | 2.38 | 2.30 | 2.22 | 2.13 |
| 67.0 | 170.2 | 3.18 | 3.14 | 3.10 | 3.05 | 3.00 | 2.95 | 2.90 | 2.84 | 2.78 | 2.72 | 2.65 | 2.58 | 2.51 | 2.43 | 2.35 | 2.27 | 2.19 |
| 67.5 | 171.5 | 3.23 | 3.19 | 3.15 | 3.10 | 3.06 | 3.01 | 2.95 | 2.89 | 2.83 | 2.77 | 2.70 | 2.63 | 2.56 | 2.49 | 2.41 | 2.32 | 2.24 |
| 68.0 | 172.7 | 3.28 | 3.24 | 3.20 | 3.16 | 3.11 | 3.06 | 3.00 | 2.94 | 2.88 | 2.82 | 2.75 | 2.68 | 2.61 | 2.54 | 2.46 | 2.38 | 2.29 |
| 68.5 | 174.0 | 3.34 | 3.30 | 3.26 | 3.21 | 3.16 | 3.11 | 3.06 | 3.00 | 2.94 | 2.88 | 2.81 | 2.74 | 2.67 | 2.59 | 2.51 | 2.43 | 2.35 |
| 69.0 | 175.3 | 3.39 | 3.35 | 3.31 | 3.27 | 3.22 | 3.17 | 3.11 | 3.05 | 2.99 | 2.93 | 2.86 | 2.79 | 2.72 | 2.65 | 2.57 | 2.49 | 2.40 |
| 69.5 | 176.5 | 3.44 | 3.40 | 3.36 | 3.32 | 3.27 | 3.22 | 3.16 | 3.11 | 3.05 | 2.98 | 2.92 | 2.85 | 2.77 | 2.70 | 2.62 | 2.54 | 2.45 |
| 70.0 | 177.8 | 3.50 | 3.46 | 3.42 | 3.37 | 3.32 | 3.27 | 3.22 | 3.16 | 3.10 | 3.04 | 2.97 | 2.90 | 2.83 | 2.75 | 2.68 | 2.59 | 2.51 |
| 70.5 | 179.1 | 3.56 | 3.52 | 3.47 | 3.43 | 3.38 | 3.33 | 3.28 | 3.22 | 3.16 | 3.09 | 3.03 | 2.96 | 2.89 | 2.81 | 2.73 | 2.65 | 2.57 |
| 71.0 | 180.3 | 3.61 | 3.57 | 3.53 | 3.48 | 3.43 | 3.38 | 3.33 | 3.27 | 3.21 | 3.15 | 3.08 | 3.01 | 2.94 | 2.86 | 2.78 | 2.70 | 2.62 |
| 71.5 | 181.6 | 3.67 | 3.63 | 3.58 | 3.54 | 3.49 | 3.44 | 3.39 | 3.33 | 3.27 | 3.20 | 3.14 | 3.07 | 3.00 | 2.92 | 2.84 | 2.76 | 2.68 |
| 72.0 | 182.9 | 3.72 | 3.68 | 3.64 | 3.60 | 3.55 | 3.50 | 3.44 | 3.39 | 3.33 | 3.26 | 3.20 | 3.13 | 3.05 | 2.98 | 2.90 | 2.82 | 2.73 |
| 72.5 | 184.2 | 3.78 | 3.74 | 3.70 | 3.66 | 3.61 | 3.56 | 3.50 | 3.44 | 3.38 | 3.32 | 3.25 | 3.18 | 3.11 | 3.04 | 2.96 | 2.88 | 2.79 |
| 73.0 | 185.4 | 3.84 | 3.80 | 3.75 | 3.71 | 3.66 | 3.61 | 3.56 | 3.50 | 3.44 | 3.37 | 3.31 | 3.24 | 3.17 | 3.09 | 3.01 | 2.93 | 2.85 |
| 73.5 | 186.7 | 3.89 | 3.86 | 3.81 | 3.77 | 3.72 | 3.67 | 3.62 | 3.56 | 3.50 | 3.43 | 3.37 | 3.30 | 3.23 | 3.15 | 3.07 | 2.99 | 2.90 |
| 74.0 | 188.0 | 3.95 | 3.92 | 3.87 | 3.83 | 3.78 | 3.73 | 3.67 | 3.62 | 3.56 | 3.49 | 3.43 | 3.36 | 3.28 | 3.21 | 3.13 | 3.05 | 2.96 |
| 74.5 | 189.2 | 4.01 | 3.97 | 3.93 | 3.88 | 3.84 | 3.78 | 3.73 | 3.67 | 3.61 | 3.55 | 3.48 | 3.41 | 3.34 | 3.26 | 3.19 | 3.10 | 3.02 |
| 75.0 | 190.5 | 4.07 | 4.03 | 3.99 | 3.94 | 3.90 | 3.84 | 3.79 | 3.73 | 3.67 | 3.61 | 3.54 | 3.47 | 3.40 | 3.32 | 3.25 | 3.16 | 3.08 |
| 75.5 | 191.8 | 4.13 | 4.09 | 4.05 | 4.00 | 3.96 | 3.90 | 3.85 | 3.79 | 3.73 | 3.67 | 3.60 | 3.53 | 3.46 | 3.39 | 3.31 | 3.22 | 3.14 |
| 76.0 | 193.0 | 4.19 | 4.15 | 4.11 | 4.06 | 4.01 | 3.96 | 3.91 | 3.85 | 3.79 | 3.73 | 3.66 | 3.59 | 3.52 | 3.44 | 3.36 | 3.28 | 3.20 |
| 76.5 | 194.3 | 4.25 | 4.21 | 4.17 | 4.12 | 4.07 | 4.02 | 3.97 | 3.91 | 3.85 | 3.79 | 3.72 | 3.65 | 3.58 | 3.50 | 3.42 | 3.34 | 3.26 |
| 77.0 | 195.6 | 4.31 | 4.27 | 4.23 | 4.18 | 4.14 | 4.08 | 4.03 | 3.97 | 3.91 | 3.85 | 3.78 | 3.71 | 3.64 | 3.56 | 3.49 | 3.40 | 3.32 |
| 77.5 | 196.9 | 4.37 | 4.33 | 4.29 | 4.25 | 4.20 | 4.15 | 4.09 | 4.04 | 3.97 | 3.91 | 3.84 | 3.78 | 3.70 | 3.63 | 3.55 | 3.47 | 3.38 |
| 78.0 | 198.1 | 4.43 | 4.39 | 4.35 | 4.30 | 4.26 | 4.20 | 4.15 | 4.09 | 4.03 | 3.97 | 3.90 | 3.83 | 3.76 | 3.68 | 3.61 | 3.52 | 3.44 |
| 78.5 | 199.4 | 4.49 | 4.45 | 4.41 | 4.37 | 4.32 | 4.27 | 4.21 | 4.16 | 4.10 | 4.03 | 3.97 | 3.90 | 3.82 | 3.75 | 3.67 | 3.59 | 3.50 |
| 79.0 | 200.7 | 4.56 | 4.52 | 4.48 | 4.43 | 4.38 | 4.33 | 4.28 | 4.22 | 4.16 | 4.10 | 4.03 | 3.96 | 3.89 | 3.81 | 3.73 | 3.65 | 3.57 |
| 79.5 | 201.9 | 4.62 | 4.58 | 4.53 | 4.49 | 4.44 | 4.39 | 4.34 | 4.28 | 4.22 | 4.15 | 4.09 | 4.02 | 3.95 | 3.87 | 3.79 | 3.71 | 3.62 |
| 80.0 | 203.2 | 4.68 | 4.64 | 4.60 | 4.55 | 4.51 | 4.45 | 4.40 | 4.34 | 4.28 | 4.22 | 4.15 | 4.08 | 4.01 | 3.93 | 3.86 | 3.77 | 3.69 |
| 80.5 | 204.5 | 4.74 | 4.71 | 4.66 | 4.62 | 4.57 | 4.52 | 4.46 | 4.41 | 4.35 | 4.28 | 4.22 | 4.15 | 4.07 | 4.00 | 3.92 | 3.84 | 3.75 |
| 81.0 | 205.7 | 4.80 | 4.77 | 4.72 | 4.68 | 4.63 | 4.58 | 4.52 | 4.47 | 4.41 | 4.34 | 4.28 | 4.21 | 4.13 | 4.06 | 3.98 | 3.90 | 3.81 |
| 81.5 | 207.0 | 4.87 | 4.83 | 4.79 | 4.74 | 4.70 | 4.64 | 4.59 | 4.53 | 4.47 | 4.41 | 4.34 | 4.27 | 4.20 | 4.12 | 4.05 | 3.96 | 3.88 |
| 82.0 | 208.3 | 4.94 | 4.90 | 4.85 | 4.81 | 4.76 | 4.71 | 4.66 | 4.60 | 4.54 | 4.47 | 4.41 | 4.34 | 4.27 | 4.19 | 4.11 | 4.03 | 3.94 |
| 82.5 | 209.6 | 5.00 | 4.96 | 4.92 | 4.88 | 4.83 | 4.78 | 4.72 | 4.66 | 4.60 | 4.54 | 4.47 | 4.40 | 4.33 | 4.26 | 4.18 | 4.10 | 4.01 |
Table 2A—Caucasian Females FEV-1 Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.4333 + (−0.00361)(age) + (−0.000194)(age
2) + (0.00009283)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.02 | 1.97 | 1.92 | 1.88 | 1.82 | 1.77 | 1.72 | 1.66 | 1.61 | 1.55 | 1.49 | 1.43 | 1.36 | 1.30 | 1.23 | 1.16 | 1.10 |
| 61.5 | 156.2 | 2.06 | 2.01 | 1.96 | 1.91 | 1.86 | 1.81 | 1.76 | 1.70 | 1.64 | 1.59 | 1.53 | 1.46 | 1.40 | 1.34 | 1.27 | 1.20 | 1.13 |
| 62.0 | 157.5 | 2.09 | 2.05 | 2.00 | 1.95 | 1.90 | 1.85 | 1.79 | 1.74 | 1.68 | 1.62 | 1.56 | 1.50 | 1.44 | 1.37 | 1.31 | 1.24 | 1.17 |
| 62.5 | 158.8 | 2.13 | 2.09 | 2.04 | 1.99 | 1.94 | 1.89 | 1.83 | 1.78 | 1.72 | 1.66 | 1.60 | 1.54 | 1.48 | 1.41 | 1.35 | 1.28 | 1.21 |
| 63.0 | 160.0 | 2.17 | 2.12 | 2.07 | 2.02 | 1.97 | 1.92 | 1.87 | 1.81 | 1.76 | 1.70 | 1.64 | 1.58 | 1.51 | 1.45 | 1.38 | 1.31 | 1.24 |
| 63.5 | 161.3 | 2.21 | 2.16 | 2.11 | 2.06 | 2.01 | 1.96 | 1.91 | 1.85 | 1.79 | 1.74 | 1.68 | 1.61 | 1.55 | 1.49 | 1.42 | 1.35 | 1.28 |
| 64.0 | 162.6 | 2.24 | 2.20 | 2.15 | 2.10 | 2.05 | 2.00 | 1.95 | 1.89 | 1.83 | 1.77 | 1.71 | 1.65 | 1.59 | 1.53 | 1.46 | 1.39 | 1.32 |
| 64.5 | 163.8 | 2.28 | 2.24 | 2.19 | 2.14 | 2.09 | 2.04 | 1.98 | 1.93 | 1.87 | 1.81 | 1.75 | 1.69 | 1.63 | 1.56 | 1.50 | 1.43 | 1.36 |
| 65.0 | 165.1 | 2.32 | 2.27 | 2.23 | 2.18 | 2.13 | 2.08 | 2.02 | 1.97 | 1.91 | 1.85 | 1.79 | 1.73 | 1.67 | 1.60 | 1.54 | 1.47 | 1.40 |
| 65.5 | 166.4 | 2.36 | 2.31 | 2.27 | 2.22 | 2.17 | 2.11 | 2.06 | 2.01 | 1.95 | 1.89 | 1.83 | 1.77 | 1.71 | 1.64 | 1.57 | 1.51 | 1.44 |
| 66.0 | 167.6 | 2.40 | 2.35 | 2.31 | 2.26 | 2.21 | 2.15 | 2.10 | 2.04 | 1.99 | 1.93 | 1.87 | 1.81 | 1.74 | 1.68 | 1.61 | 1.55 | 1.48 |
| 66.5 | 168.9 | 2.44 | 2.39 | 2.35 | 2.30 | 2.25 | 2.19 | 2.14 | 2.08 | 2.03 | 1.97 | 1.91 | 1.85 | 1.78 | 1.72 | 1.65 | 1.59 | 1.52 |
| 67.0 | 170.2 | 2.48 | 2.43 | 2.39 | 2.34 | 2.29 | 2.23 | 2.18 | 2.12 | 2.07 | 2.01 | 1.95 | 1.89 | 1.83 | 1.76 | 1.69 | 1.63 | 1.56 |
| 67.5 | 171.5 | 2.52 | 2.47 | 2.43 | 2.38 | 2.33 | 2.28 | 2.22 | 2.17 | 2.11 | 2.05 | 1.99 | 1.93 | 1.87 | 1.80 | 1.74 | 1.67 | 1.60 |
| 68.0 | 172.7 | 2.56 | 2.51 | 2.47 | 2.42 | 2.37 | 2.31 | 2.26 | 2.20 | 2.15 | 2.09 | 2.03 | 1.97 | 1.90 | 1.84 | 1.77 | 1.71 | 1.64 |
| 68.5 | 174.0 | 2.60 | 2.56 | 2.51 | 2.46 | 2.41 | 2.36 | 2.30 | 2.25 | 2.19 | 2.13 | 2.07 | 2.01 | 1.95 | 1.88 | 1.82 | 1.75 | 1.68 |
| 69.0 | 175.3 | 2.64 | 2.60 | 2.55 | 2.50 | 2.45 | 2.40 | 2.34 | 2.29 | 2.23 | 2.17 | 2.11 | 2.05 | 1.99 | 1.92 | 1.86 | 1.79 | 1.72 |
| 69.5 | 176.5 | 2.68 | 2.64 | 2.59 | 2.54 | 2.49 | 2.44 | 2.38 | 2.33 | 2.27 | 2.21 | 2.15 | 2.09 | 2.03 | 1.96 | 1.90 | 1.83 | 1.76 |
| 70.0 | 177.8 | 2.73 | 2.68 | 2.63 | 2.58 | 2.53 | 2.48 | 2.43 | 2.37 | 2.31 | 2.26 | 2.20 | 2.13 | 2.07 | 2.01 | 1.94 | 1.87 | 1.80 |
| 70.5 | 179.1 | 2.77 | 2.72 | 2.67 | 2.63 | 2.57 | 2.52 | 2.47 | 2.41 | 2.36 | 2.30 | 2.24 | 2.18 | 2.11 | 2.05 | 1.98 | 1.92 | 1.85 |
| 71.0 | 180.3 | 2.81 | 2.76 | 2.71 | 2.67 | 2.61 | 2.56 | 2.51 | 2.45 | 2.40 | 2.34 | 2.28 | 2.22 | 2.15 | 2.09 | 2.02 | 1.96 | 1.89 |
| 71.5 | 181.6 | 2.85 | 2.81 | 2.76 | 2.71 | 2.66 | 2.61 | 2.55 | 2.50 | 2.44 | 2.38 | 2.32 | 2.26 | 2.20 | 2.13 | 2.07 | 2.00 | 1.93 |
| 72.0 | 182.9 | 2.90 | 2.85 | 2.80 | 2.75 | 2.70 | 2.65 | 2.60 | 2.54 | 2.48 | 2.43 | 2.37 | 2.30 | 2.24 | 2.18 | 2.11 | 2.04 | 1.97 |
| 72.5 | 184.2 | 2.94 | 2.89 | 2.85 | 2.80 | 2.75 | 2.69 | 2.64 | 2.59 | 2.53 | 2.47 | 2.41 | 2.35 | 2.29 | 2.22 | 2.15 | 2.09 | 2.02 |
| 73.0 | 185.4 | 2.98 | 2.94 | 2.89 | 2.84 | 2.79 | 2.74 | 2.68 | 2.63 | 2.57 | 2.51 | 2.45 | 2.39 | 2.33 | 2.26 | 2.20 | 2.13 | 2.06 |
| 73.5 | 186.7 | 3.03 | 2.98 | 2.93 | 2.88 | 2.83 | 2.78 | 2.73 | 2.67 | 2.61 | 2.56 | 2.50 | 2.43 | 2.37 | 2.31 | 2.24 | 2.17 | 2.10 |
| 74.0 | 188.0 | 3.07 | 3.03 | 2.98 | 2.93 | 2.88 | 2.83 | 2.77 | 2.72 | 2.66 | 2.60 | 2.54 | 2.48 | 2.42 | 2.35 | 2.29 | 2.22 | 2.15 |
| 74.5 | 189.2 | 3.11 | 3.07 | 3.02 | 2.97 | 2.92 | 2.87 | 2.81 | 2.76 | 2.70 | 2.64 | 2.58 | 2.52 | 2.46 | 2.39 | 2.33 | 2.26 | 2.19 |
| 75.0 | 190.5 | 3.16 | 3.11 | 3.07 | 3.02 | 2.97 | 2.91 | 2.86 | 2.80 | 2.75 | 2.69 | 2.63 | 2.57 | 2.50 | 2.44 | 2.37 | 2.31 | 2.24 |
| 75.5 | 191.8 | 3.21 | 3.16 | 3.11 | 3.06 | 3.01 | 2.96 | 2.91 | 2.85 | 2.79 | 2.74 | 2.68 | 2.61 | 2.55 | 2.49 | 2.42 | 2.35 | 2.28 |
| 76.0 | 193.0 | 3.25 | 3.20 | 3.15 | 3.11 | 3.06 | 3.00 | 2.95 | 2.89 | 2.84 | 2.78 | 2.72 | 2.66 | 2.59 | 2.53 | 2.46 | 2.40 | 2.33 |
| 76.5 | 194.3 | 3.30 | 3.25 | 3.20 | 3.15 | 3.10 | 3.05 | 3.00 | 2.94 | 2.88 | 2.83 | 2.77 | 2.70 | 2.64 | 2.58 | 2.51 | 2.44 | 2.37 |
| 77.0 | 195.6 | 3.34 | 3.30 | 3.25 | 3.20 | 3.15 | 3.10 | 3.04 | 2.99 | 2.93 | 2.87 | 2.81 | 2.75 | 2.69 | 2.62 | 2.56 | 2.49 | 2.42 |
| 77.5 | 196.9 | 3.39 | 3.34 | 3.30 | 3.25 | 3.20 | 3.14 | 3.09 | 3.03 | 2.98 | 2.92 | 2.86 | 2.80 | 2.73 | 2.67 | 2.60 | 2.54 | 2.47 |
| 78.0 | 198.1 | 3.43 | 3.39 | 3.34 | 3.29 | 3.24 | 3.19 | 3.13 | 3.08 | 3.02 | 2.96 | 2.90 | 2.84 | 2.78 | 2.71 | 2.65 | 2.58 | 2.51 |
| 78.5 | 199.4 | 3.48 | 3.44 | 3.39 | 3.34 | 3.29 | 3.24 | 3.18 | 3.13 | 3.07 | 3.01 | 2.95 | 2.89 | 2.83 | 2.76 | 2.70 | 2.63 | 2.56 |
| 79.0 | 200.7 | 3.53 | 3.48 | 3.44 | 3.39 | 3.34 | 3.28 | 3.23 | 3.18 | 3.12 | 3.06 | 3.00 | 2.94 | 2.88 | 2.81 | 2.74 | 2.68 | 2.61 |
| 79.5 | 201.9 | 3.57 | 3.53 | 3.48 | 3.43 | 3.38 | 3.33 | 3.28 | 3.22 | 3.16 | 3.10 | 3.04 | 2.98 | 2.92 | 2.86 | 2.79 | 2.72 | 2.65 |
| 80.0 | 203.2 | 3.62 | 3.58 | 3.53 | 3.48 | 3.43 | 3.38 | 3.32 | 3.27 | 3.21 | 3.15 | 3.09 | 3.03 | 2.97 | 2.90 | 2.84 | 2.77 | 2.70 |
| 80.5 | 204.5 | 3.67 | 3.63 | 3.58 | 3.53 | 3.48 | 3.43 | 3.37 | 3.32 | 3.26 | 3.20 | 3.14 | 3.08 | 3.02 | 2.95 | 2.89 | 2.82 | 2.75 |
| 81.0 | 205.7 | 3.72 | 3.67 | 3.62 | 3.58 | 3.53 | 3.47 | 3.42 | 3.36 | 3.31 | 3.25 | 3.19 | 3.13 | 3.06 | 3.00 | 2.93 | 2.87 | 2.80 |
| 81.5 | 207.0 | 3.77 | 3.72 | 3.67 | 3.63 | 3.57 | 3.52 | 3.47 | 3.41 | 3.36 | 3.30 | 3.24 | 3.18 | 3.11 | 3.05 | 2.98 | 2.92 | 2.85 |
| 82.0 | 208.3 | 3.82 | 3.77 | 3.72 | 3.68 | 3.63 | 3.57 | 3.52 | 3.46 | 3.41 | 3.35 | 3.29 | 3.23 | 3.16 | 3.10 | 3.03 | 2.97 | 2.90 |
| 82.5 | 209.6 | 3.87 | 3.82 | 3.78 | 3.73 | 3.68 | 3.62 | 3.57 | 3.51 | 3.46 | 3.40 | 3.34 | 3.28 | 3.21 | 3.15 | 3.08 | 3.02 | 2.95 |
Table 3—African American Males FVC Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: −0.1517 + (−0.01821)(age) + (0.0001367)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.24 | 2.20 | 2.16 | 2.13 | 2.09 | 2.05 | 2.02 | 1.98 | 1.94 | 1.91 | 1.87 | 1.84 | 1.80 | 1.76 | 1.73 | 1.69 | 1.65 |
| 61.5 | 156.2 | 2.29 | 2.25 | 2.22 | 2.18 | 2.15 | 2.11 | 2.07 | 2.04 | 2.00 | 1.96 | 1.93 | 1.89 | 1.85 | 1.82 | 1.78 | 1.74 | 1.71 |
| 62.0 | 157.5 | 2.35 | 2.31 | 2.27 | 2.24 | 2.20 | 2.16 | 2.13 | 2.09 | 2.06 | 2.02 | 1.98 | 1.95 | 1.91 | 1.87 | 1.84 | 1.80 | 1.76 |
| 62.5 | 158.8 | 2.40 | 2.37 | 2.33 | 2.29 | 2.26 | 2.22 | 2.18 | 2.15 | 2.11 | 2.08 | 2.04 | 2.00 | 1.97 | 1.93 | 1.89 | 1.86 | 1.82 |
| 63.0 | 160.0 | 2.46 | 2.42 | 2.38 | 2.35 | 2.31 | 2.27 | 2.24 | 2.20 | 2.16 | 2.13 | 2.09 | 2.05 | 2.02 | 1.98 | 1.95 | 1.91 | 1.87 |
| 63.5 | 161.3 | 2.51 | 2.48 | 2.44 | 2.40 | 2.37 | 2.33 | 2.29 | 2.26 | 2.22 | 2.18 | 2.15 | 2.11 | 2.08 | 2.04 | 2.00 | 1.97 | 1.93 |
| 64.0 | 162.6 | 2.57 | 2.53 | 2.50 | 2.46 | 2.42 | 2.39 | 2.35 | 2.32 | 2.28 | 2.24 | 2.21 | 2.17 | 2.13 | 2.10 | 2.06 | 2.02 | 1.99 |
| 64.5 | 163.8 | 2.62 | 2.59 | 2.55 | 2.51 | 2.48 | 2.44 | 2.41 | 2.37 | 2.33 | 2.30 | 2.26 | 2.22 | 2.19 | 2.15 | 2.11 | 2.08 | 2.04 |
| 65.0 | 165.1 | 2.68 | 2.65 | 2.61 | 2.57 | 2.54 | 2.50 | 2.46 | 2.43 | 2.39 | 2.35 | 2.32 | 2.28 | 2.25 | 2.21 | 2.17 | 2.14 | 2.10 |
| 65.5 | 166.4 | 2.74 | 2.70 | 2.67 | 2.63 | 2.59 | 2.56 | 2.52 | 2.48 | 2.45 | 2.41 | 2.38 | 2.34 | 2.30 | 2.27 | 2.23 | 2.19 | 2.16 |
| 66.0 | 167.6 | 2.80 | 2.76 | 2.72 | 2.69 | 2.65 | 2.62 | 2.58 | 2.54 | 2.51 | 2.47 | 2.43 | 2.40 | 2.36 | 2.32 | 2.29 | 2.25 | 2.21 |
| 66.5 | 168.9 | 2.86 | 2.82 | 2.78 | 2.75 | 2.71 | 2.67 | 2.64 | 2.60 | 2.56 | 2.53 | 2.49 | 2.46 | 2.42 | 2.38 | 2.35 | 2.31 | 2.27 |
| 67.0 | 170.2 | 2.92 | 2.88 | 2.84 | 2.81 | 2.77 | 2.73 | 2.70 | 2.66 | 2.62 | 2.59 | 2.55 | 2.52 | 2.48 | 2.44 | 2.41 | 2.37 | 2.33 |
| 67.5 | 171.5 | 2.98 | 2.94 | 2.90 | 2.87 | 2.83 | 2.79 | 2.76 | 2.72 | 2.69 | 2.65 | 2.61 | 2.58 | 2.54 | 2.50 | 2.47 | 2.43 | 2.39 |
| 68.0 | 172.7 | 3.03 | 3.00 | 2.96 | 2.92 | 2.89 | 2.85 | 2.81 | 2.78 | 2.74 | 2.71 | 2.67 | 2.63 | 2.60 | 2.56 | 2.52 | 2.49 | 2.45 |
| 68.5 | 174.0 | 3.09 | 3.06 | 3.02 | 2.99 | 2.95 | 2.91 | 2.88 | 2.84 | 2.80 | 2.77 | 2.73 | 2.69 | 2.66 | 2.62 | 2.58 | 2.55 | 2.51 |
| 69.0 | 175.3 | 3.16 | 3.12 | 3.08 | 3.05 | 3.01 | 2.97 | 2.94 | 2.90 | 2.87 | 2.83 | 2.79 | 2.76 | 2.72 | 2.68 | 2.65 | 2.61 | 2.57 |
| 69.5 | 176.5 | 3.21 | 3.18 | 3.14 | 3.11 | 3.07 | 3.03 | 3.00 | 2.96 | 2.92 | 2.89 | 2.85 | 2.81 | 2.78 | 2.74 | 2.70 | 2.67 | 2.63 |
| 70.0 | 177.8 | 3.28 | 3.24 | 3.20 | 3.17 | 3.13 | 3.10 | 3.06 | 3.02 | 2.99 | 2.95 | 2.91 | 2.88 | 2.84 | 2.80 | 2.77 | 2.73 | 2.69 |
| 70.5 | 179.1 | 3.34 | 3.30 | 3.27 | 3.23 | 3.20 | 3.16 | 3.12 | 3.09 | 3.05 | 3.01 | 2.98 | 2.94 | 2.90 | 2.87 | 2.83 | 2.79 | 2.76 |
| 71.0 | 180.3 | 3.40 | 3.36 | 3.33 | 3.29 | 3.25 | 3.22 | 3.18 | 3.14 | 3.11 | 3.07 | 3.04 | 3.00 | 2.96 | 2.93 | 2.89 | 2.85 | 2.82 |
| 71.5 | 181.6 | 3.46 | 3.43 | 3.39 | 3.35 | 3.32 | 3.28 | 3.25 | 3.21 | 3.17 | 3.14 | 3.10 | 3.06 | 3.03 | 2.99 | 2.95 | 2.92 | 2.88 |
| 72.0 | 182.9 | 3.53 | 3.49 | 3.46 | 3.42 | 3.38 | 3.35 | 3.31 | 3.27 | 3.24 | 3.20 | 3.16 | 3.13 | 3.09 | 3.06 | 3.02 | 2.98 | 2.95 |
| 72.5 | 184.2 | 3.59 | 3.56 | 3.52 | 3.48 | 3.45 | 3.41 | 3.38 | 3.34 | 3.30 | 3.27 | 3.23 | 3.19 | 3.16 | 3.12 | 3.08 | 3.05 | 3.01 |
| 73.0 | 185.4 | 3.65 | 3.62 | 3.58 | 3.55 | 3.51 | 3.47 | 3.44 | 3.40 | 3.36 | 3.33 | 3.29 | 3.25 | 3.22 | 3.18 | 3.14 | 3.11 | 3.07 |
| 73.5 | 186.7 | 3.72 | 3.68 | 3.65 | 3.61 | 3.58 | 3.54 | 3.50 | 3.47 | 3.43 | 3.39 | 3.36 | 3.32 | 3.28 | 3.25 | 3.21 | 3.17 | 3.14 |
| 74.0 | 188.0 | 3.79 | 3.75 | 3.71 | 3.68 | 3.64 | 3.61 | 3.57 | 3.53 | 3.50 | 3.46 | 3.42 | 3.39 | 3.35 | 3.31 | 3.28 | 3.24 | 3.20 |
| 74.5 | 189.2 | 3.85 | 3.81 | 3.78 | 3.74 | 3.70 | 3.67 | 3.63 | 3.59 | 3.56 | 3.52 | 3.49 | 3.45 | 3.41 | 3.38 | 3.34 | 3.30 | 3.27 |
| 75.0 | 190.5 | 3.92 | 3.88 | 3.84 | 3.81 | 3.77 | 3.73 | 3.70 | 3.66 | 3.63 | 3.59 | 3.55 | 3.52 | 3.48 | 3.44 | 3.41 | 3.37 | 3.33 |
| 75.5 | 191.8 | 3.98 | 3.95 | 3.91 | 3.88 | 3.84 | 3.80 | 3.77 | 3.73 | 3.69 | 3.66 | 3.62 | 3.58 | 3.55 | 3.51 | 3.47 | 3.44 | 3.40 |
| 76.0 | 193.0 | 4.05 | 4.01 | 3.98 | 3.94 | 3.90 | 3.87 | 3.83 | 3.79 | 3.76 | 3.72 | 3.68 | 3.65 | 3.61 | 3.57 | 3.54 | 3.50 | 3.47 |
| 76.5 | 194.3 | 4.12 | 4.08 | 4.04 | 4.01 | 3.97 | 3.93 | 3.90 | 3.86 | 3.83 | 3.79 | 3.75 | 3.72 | 3.68 | 3.64 | 3.61 | 3.57 | 3.53 |
| 77.0 | 195.6 | 4.19 | 4.15 | 4.11 | 4.08 | 4.04 | 4.00 | 3.97 | 3.93 | 3.89 | 3.86 | 3.82 | 3.79 | 3.75 | 3.71 | 3.68 | 3.64 | 3.60 |
| 77.5 | 196.9 | 4.26 | 4.22 | 4.18 | 4.15 | 4.11 | 4.07 | 4.04 | 4.00 | 3.96 | 3.93 | 3.89 | 3.86 | 3.82 | 3.78 | 3.75 | 3.71 | 3.67 |
| 78.0 | 198.1 | 4.32 | 4.28 | 4.25 | 4.21 | 4.17 | 4.14 | 4.10 | 4.07 | 4.03 | 3.99 | 3.96 | 3.92 | 3.88 | 3.85 | 3.81 | 3.77 | 3.74 |
| 78.5 | 199.4 | 4.39 | 4.35 | 4.32 | 4.28 | 4.25 | 4.21 | 4.17 | 4.14 | 4.10 | 4.06 | 4.03 | 3.99 | 3.95 | 3.92 | 3.88 | 3.84 | 3.81 |
| 79.0 | 200.7 | 4.46 | 4.43 | 4.39 | 4.35 | 4.32 | 4.28 | 4.24 | 4.21 | 4.17 | 4.13 | 4.10 | 4.06 | 4.03 | 3.99 | 3.95 | 3.92 | 3.88 |
| 79.5 | 201.9 | 4.53 | 4.49 | 4.46 | 4.42 | 4.38 | 4.35 | 4.31 | 4.27 | 4.24 | 4.20 | 4.16 | 4.13 | 4.09 | 4.05 | 4.02 | 3.98 | 3.95 |
| 80.0 | 203.2 | 4.60 | 4.56 | 4.53 | 4.49 | 4.45 | 4.42 | 4.38 | 4.35 | 4.31 | 4.27 | 4.24 | 4.20 | 4.16 | 4.13 | 4.09 | 4.05 | 4.02 |
| 80.5 | 204.5 | 4.67 | 4.64 | 4.60 | 4.56 | 4.53 | 4.49 | 4.45 | 4.42 | 4.38 | 4.35 | 4.31 | 4.27 | 4.24 | 4.20 | 4.16 | 4.13 | 4.09 |
| 81.0 | 205.7 | 4.74 | 4.70 | 4.67 | 4.63 | 4.59 | 4.56 | 4.52 | 4.49 | 4.45 | 4.41 | 4.38 | 4.34 | 4.30 | 4.27 | 4.23 | 4.19 | 4.16 |
| 81.5 | 207.0 | 4.81 | 4.78 | 4.74 | 4.70 | 4.67 | 4.63 | 4.59 | 4.56 | 4.52 | 4.49 | 4.45 | 4.41 | 4.38 | 4.34 | 4.30 | 4.27 | 4.23 |
| 82.0 | 208.3 | 4.89 | 4.85 | 4.81 | 4.78 | 4.74 | 4.71 | 4.67 | 4.63 | 4.60 | 4.56 | 4.52 | 4.49 | 4.45 | 4.41 | 4.38 | 4.34 | 4.30 |
| 82.5 | 209.6 | 4.96 | 4.93 | 4.89 | 4.85 | 4.82 | 4.78 | 4.74 | 4.71 | 4.67 | 4.63 | 4.60 | 4.56 | 4.52 | 4.49 | 4.45 | 4.42 | 4.38 |
Table 3A—African American Males FEV-1 Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.3411 + (−0.02309)(age) + (0.00010561)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 1.74 | 1.70 | 1.65 | 1.61 | 1.56 | 1.51 | 1.47 | 1.42 | 1.37 | 1.33 | 1.28 | 1.24 | 1.19 | 1.14 | 1.10 | 1.05 | 1.00 |
| 61.5 | 156.2 | 1.79 | 1.74 | 1.69 | 1.65 | 1.60 | 1.56 | 1.51 | 1.46 | 1.42 | 1.37 | 1.32 | 1.28 | 1.23 | 1.19 | 1.14 | 1.09 | 1.05 |
| 62.0 | 157.5 | 1.83 | 1.78 | 1.74 | 1.69 | 1.64 | 1.60 | 1.55 | 1.51 | 1.46 | 1.41 | 1.37 | 1.32 | 1.28 | 1.23 | 1.18 | 1.14 | 1.09 |
| 62.5 | 158.8 | 1.87 | 1.83 | 1.78 | 1.73 | 1.69 | 1.64 | 1.60 | 1.55 | 1.50 | 1.46 | 1.41 | 1.36 | 1.32 | 1.27 | 1.23 | 1.18 | 1.13 |
| 63.0 | 160.0 | 1.91 | 1.87 | 1.82 | 1.77 | 1.73 | 1.68 | 1.64 | 1.59 | 1.54 | 1.50 | 1.45 | 1.41 | 1.36 | 1.31 | 1.27 | 1.22 | 1.17 |
| 63.5 | 161.3 | 1.96 | 1.91 | 1.87 | 1.82 | 1.77 | 1.73 | 1.68 | 1.63 | 1.59 | 1.54 | 1.50 | 1.45 | 1.40 | 1.36 | 1.31 | 1.26 | 1.22 |
| 64.0 | 162.6 | 2.00 | 1.96 | 1.91 | 1.86 | 1.82 | 1.77 | 1.72 | 1.68 | 1.63 | 1.59 | 1.54 | 1.49 | 1.45 | 1.40 | 1.36 | 1.31 | 1.26 |
| 64.5 | 163.8 | 2.04 | 2.00 | 1.95 | 1.90 | 1.86 | 1.81 | 1.77 | 1.72 | 1.67 | 1.63 | 1.58 | 1.54 | 1.49 | 1.44 | 1.40 | 1.35 | 1.30 |
| 65.0 | 165.1 | 2.09 | 2.04 | 2.00 | 1.95 | 1.90 | 1.86 | 1.81 | 1.77 | 1.72 | 1.67 | 1.63 | 1.58 | 1.53 | 1.49 | 1.44 | 1.40 | 1.35 |
| 65.5 | 166.4 | 2.13 | 2.09 | 2.04 | 1.99 | 1.95 | 1.90 | 1.86 | 1.81 | 1.76 | 1.72 | 1.67 | 1.62 | 1.58 | 1.53 | 1.49 | 1.44 | 1.39 |
| 66.0 | 167.6 | 2.18 | 2.13 | 2.09 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 | 1.72 | 1.67 | 1.62 | 1.58 | 1.53 | 1.48 | 1.44 |
| 66.5 | 168.9 | 2.22 | 2.18 | 2.13 | 2.08 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 | 1.71 | 1.67 | 1.62 | 1.58 | 1.53 | 1.48 |
| 67.0 | 170.2 | 2.27 | 2.22 | 2.18 | 2.13 | 2.08 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 | 1.71 | 1.67 | 1.62 | 1.58 | 1.53 |
| 67.5 | 171.5 | 2.32 | 2.27 | 2.22 | 2.18 | 2.13 | 2.09 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 | 1.72 | 1.67 | 1.62 | 1.58 |
| 68.0 | 172.7 | 2.36 | 2.31 | 2.27 | 2.22 | 2.17 | 2.13 | 2.08 | 2.04 | 1.99 | 1.94 | 1.90 | 1.85 | 1.81 | 1.76 | 1.71 | 1.67 | 1.62 |
| 68.5 | 174.0 | 2.41 | 2.36 | 2.31 | 2.27 | 2.22 | 2.18 | 2.13 | 2.08 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 | 1.71 | 1.67 |
| 69.0 | 175.3 | 2.46 | 2.41 | 2.36 | 2.32 | 2.27 | 2.22 | 2.18 | 2.13 | 2.09 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 | 1.72 |
| 69.5 | 176.5 | 2.50 | 2.45 | 2.41 | 2.36 | 2.31 | 2.27 | 2.22 | 2.18 | 2.13 | 2.08 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 |
| 70.0 | 177.8 | 2.55 | 2.50 | 2.46 | 2.41 | 2.36 | 2.32 | 2.27 | 2.23 | 2.18 | 2.13 | 2.09 | 2.04 | 1.99 | 1.95 | 1.90 | 1.86 | 1.81 |
| 70.5 | 179.1 | 2.60 | 2.55 | 2.50 | 2.46 | 2.41 | 2.37 | 2.32 | 2.27 | 2.23 | 2.18 | 2.14 | 2.09 | 2.04 | 2.00 | 1.95 | 1.90 | 1.86 |
| 71.0 | 180.3 | 2.64 | 2.60 | 2.55 | 2.50 | 2.46 | 2.41 | 2.37 | 2.32 | 2.27 | 2.23 | 2.18 | 2.13 | 2.09 | 2.04 | 2.00 | 1.95 | 1.90 |
| 71.5 | 181.6 | 2.69 | 2.65 | 2.60 | 2.55 | 2.51 | 2.46 | 2.42 | 2.37 | 2.32 | 2.28 | 2.23 | 2.18 | 2.14 | 2.09 | 2.05 | 2.00 | 1.95 |
| 72.0 | 182.9 | 2.74 | 2.70 | 2.65 | 2.60 | 2.56 | 2.51 | 2.47 | 2.42 | 2.37 | 2.33 | 2.28 | 2.23 | 2.19 | 2.14 | 2.10 | 2.05 | 2.00 |
| 72.5 | 184.2 | 2.79 | 2.75 | 2.70 | 2.65 | 2.61 | 2.56 | 2.52 | 2.47 | 2.42 | 2.38 | 2.33 | 2.29 | 2.24 | 2.19 | 2.15 | 2.10 | 2.05 |
| 73.0 | 185.4 | 2.84 | 2.79 | 2.75 | 2.70 | 2.66 | 2.61 | 2.56 | 2.52 | 2.47 | 2.42 | 2.38 | 2.33 | 2.29 | 2.24 | 2.19 | 2.15 | 2.10 |
| 73.5 | 186.7 | 2.89 | 2.84 | 2.80 | 2.75 | 2.71 | 2.66 | 2.61 | 2.57 | 2.52 | 2.48 | 2.43 | 2.38 | 2.34 | 2.29 | 2.24 | 2.20 | 2.15 |
| 74.0 | 188.0 | 2.94 | 2.90 | 2.85 | 2.80 | 2.76 | 2.71 | 2.67 | 2.62 | 2.57 | 2.53 | 2.48 | 2.43 | 2.39 | 2.34 | 2.30 | 2.25 | 2.20 |
| 74.5 | 189.2 | 2.99 | 2.94 | 2.90 | 2.85 | 2.81 | 2.76 | 2.71 | 2.67 | 2.62 | 2.57 | 2.53 | 2.48 | 2.44 | 2.39 | 2.34 | 2.30 | 2.25 |
| 75.0 | 190.5 | 3.04 | 3.00 | 2.95 | 2.90 | 2.86 | 2.81 | 2.77 | 2.72 | 2.67 | 2.63 | 2.58 | 2.53 | 2.49 | 2.44 | 2.40 | 2.35 | 2.30 |
| 75.5 | 191.8 | 3.09 | 3.05 | 3.00 | 2.96 | 2.91 | 2.86 | 2.82 | 2.77 | 2.73 | 2.68 | 2.63 | 2.59 | 2.54 | 2.49 | 2.45 | 2.40 | 2.36 |
| 76.0 | 193.0 | 3.14 | 3.10 | 3.05 | 3.01 | 2.96 | 2.91 | 2.87 | 2.82 | 2.77 | 2.73 | 2.68 | 2.64 | 2.59 | 2.54 | 2.50 | 2.45 | 2.40 |
| 76.5 | 194.3 | 3.20 | 3.15 | 3.10 | 3.06 | 3.01 | 2.97 | 2.92 | 2.87 | 2.83 | 2.78 | 2.73 | 2.69 | 2.64 | 2.60 | 2.55 | 2.50 | 2.46 |
| 77.0 | 195.6 | 3.25 | 3.20 | 3.16 | 3.11 | 3.07 | 3.02 | 2.97 | 2.93 | 2.88 | 2.83 | 2.79 | 2.74 | 2.70 | 2.65 | 2.60 | 2.56 | 2.51 |
| 77.5 | 196.9 | 3.30 | 3.26 | 3.21 | 3.17 | 3.12 | 3.07 | 3.03 | 2.98 | 2.93 | 2.89 | 2.84 | 2.80 | 2.75 | 2.70 | 2.66 | 2.61 | 2.57 |
| 78.0 | 198.1 | 3.35 | 3.31 | 3.26 | 3.22 | 3.17 | 3.12 | 3.08 | 3.03 | 2.98 | 2.94 | 2.89 | 2.85 | 2.80 | 2.75 | 2.71 | 2.66 | 2.62 |
| 78.5 | 199.4 | 3.41 | 3.36 | 3.32 | 3.27 | 3.22 | 3.18 | 3.13 | 3.09 | 3.04 | 2.99 | 2.95 | 2.90 | 2.85 | 2.81 | 2.76 | 2.72 | 2.67 |
| 79.0 | 200.7 | 3.46 | 3.42 | 3.37 | 3.33 | 3.28 | 3.23 | 3.19 | 3.14 | 3.09 | 3.05 | 3.00 | 2.96 | 2.91 | 2.86 | 2.82 | 2.77 | 2.72 |
| 79.5 | 201.9 | 3.51 | 3.47 | 3.42 | 3.38 | 3.33 | 3.28 | 3.24 | 3.19 | 3.15 | 3.10 | 3.05 | 3.01 | 2.96 | 2.91 | 2.87 | 2.82 | 2.78 |
| 80.0 | 203.2 | 3.57 | 3.52 | 3.48 | 3.43 | 3.39 | 3.34 | 3.29 | 3.25 | 3.20 | 3.15 | 3.11 | 3.06 | 3.02 | 2.97 | 2.92 | 2.88 | 2.83 |
| 80.5 | 204.5 | 3.63 | 3.58 | 3.53 | 3.49 | 3.44 | 3.40 | 3.35 | 3.30 | 3.26 | 3.21 | 3.16 | 3.12 | 3.07 | 3.03 | 2.98 | 2.93 | 2.89 |
| 81.0 | 205.7 | 3.68 | 3.63 | 3.59 | 3.54 | 3.49 | 3.45 | 3.40 | 3.36 | 3.31 | 3.26 | 3.22 | 3.17 | 3.12 | 3.08 | 3.03 | 2.99 | 2.94 |
| 81.5 | 207.0 | 3.73 | 3.69 | 3.64 | 3.60 | 3.55 | 3.50 | 3.46 | 3.41 | 3.37 | 3.32 | 3.27 | 3.23 | 3.18 | 3.13 | 3.09 | 3.04 | 3.00 |
| 82.0 | 208.3 | 3.79 | 3.75 | 3.70 | 3.65 | 3.61 | 3.56 | 3.51 | 3.47 | 3.42 | 3.38 | 3.33 | 3.28 | 3.24 | 3.19 | 3.15 | 3.10 | 3.05 |
| 82.5 | 209.6 | 3.85 | 3.80 | 3.76 | 3.71 | 3.66 | 3.62 | 3.57 | 3.53 | 3.48 | 3.43 | 3.39 | 3.34 | 3.30 | 3.25 | 3.20 | 3.16 | 3.11 |
Table 4—African American Females FVC Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: −0.3039 + (0.00536)(age) + (−0.000265)(age
2) + (0.00010916)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 1.94 | 1.90 | 1.85 | 1.81 | 1.76 | 1.71 | 1.66 | 1.60 | 1.54 | 1.48 | 1.42 | 1.36 | 1.29 | 1.23 | 1.16 | 1.08 | 1.01 |
| 61.5 | 156.2 | 1.99 | 1.94 | 1.90 | 1.85 | 1.80 | 1.75 | 1.70 | 1.65 | 1.59 | 1.53 | 1.47 | 1.40 | 1.34 | 1.27 | 1.20 | 1.13 | 1.05 |
| 62.0 | 157.5 | 2.03 | 1.99 | 1.94 | 1.90 | 1.85 | 1.80 | 1.74 | 1.69 | 1.63 | 1.57 | 1.51 | 1.45 | 1.38 | 1.32 | 1.25 | 1.17 | 1.10 |
| 62.5 | 158.8 | 2.08 | 2.03 | 1.99 | 1.94 | 1.89 | 1.84 | 1.79 | 1.73 | 1.68 | 1.62 | 1.56 | 1.49 | 1.43 | 1.36 | 1.29 | 1.22 | 1.14 |
| 63.0 | 160.0 | 2.12 | 2.07 | 2.03 | 1.98 | 1.94 | 1.88 | 1.83 | 1.78 | 1.72 | 1.66 | 1.60 | 1.54 | 1.47 | 1.40 | 1.33 | 1.26 | 1.19 |
| 63.5 | 161.3 | 2.16 | 2.12 | 2.08 | 2.03 | 1.98 | 1.93 | 1.88 | 1.82 | 1.76 | 1.71 | 1.64 | 1.58 | 1.52 | 1.45 | 1.38 | 1.31 | 1.23 |
| 64.0 | 162.6 | 2.21 | 2.17 | 2.12 | 2.08 | 2.03 | 1.98 | 1.92 | 1.87 | 1.81 | 1.75 | 1.69 | 1.63 | 1.56 | 1.49 | 1.42 | 1.35 | 1.28 |
| 64.5 | 163.8 | 2.25 | 2.21 | 2.16 | 2.12 | 2.07 | 2.02 | 1.97 | 1.91 | 1.85 | 1.79 | 1.73 | 1.67 | 1.60 | 1.54 | 1.47 | 1.39 | 1.32 |
| 65.0 | 165.1 | 2.30 | 2.26 | 2.21 | 2.16 | 2.12 | 2.07 | 2.01 | 1.96 | 1.90 | 1.84 | 1.78 | 1.72 | 1.65 | 1.58 | 1.51 | 1.44 | 1.37 |
| 65.5 | 166.4 | 2.34 | 2.30 | 2.26 | 2.21 | 2.16 | 2.11 | 2.06 | 2.00 | 1.95 | 1.89 | 1.83 | 1.76 | 1.70 | 1.63 | 1.56 | 1.49 | 1.41 |
| 66.0 | 167.6 | 2.39 | 2.35 | 2.30 | 2.26 | 2.21 | 2.16 | 2.10 | 2.05 | 1.99 | 1.93 | 1.87 | 1.81 | 1.74 | 1.68 | 1.61 | 1.53 | 1.46 |
| 66.5 | 168.9 | 2.44 | 2.39 | 2.35 | 2.30 | 2.26 | 2.20 | 2.15 | 2.10 | 2.04 | 1.98 | 1.92 | 1.86 | 1.79 | 1.72 | 1.65 | 1.58 | 1.51 |
| 67.0 | 170.2 | 2.48 | 2.44 | 2.40 | 2.35 | 2.30 | 2.25 | 2.20 | 2.14 | 2.09 | 2.03 | 1.97 | 1.90 | 1.84 | 1.77 | 1.70 | 1.63 | 1.55 |
| 67.5 | 171.5 | 2.53 | 2.49 | 2.45 | 2.40 | 2.35 | 2.30 | 2.25 | 2.19 | 2.14 | 2.08 | 2.01 | 1.95 | 1.89 | 1.82 | 1.75 | 1.68 | 1.60 |
| 68.0 | 172.7 | 2.58 | 2.54 | 2.49 | 2.45 | 2.40 | 2.35 | 2.29 | 2.24 | 2.18 | 2.12 | 2.06 | 2.00 | 1.93 | 1.86 | 1.79 | 1.72 | 1.65 |
| 68.5 | 174.0 | 2.63 | 2.59 | 2.54 | 2.49 | 2.45 | 2.39 | 2.34 | 2.29 | 2.23 | 2.17 | 2.11 | 2.05 | 1.98 | 1.91 | 1.84 | 1.77 | 1.70 |
| 69.0 | 175.3 | 2.68 | 2.63 | 2.59 | 2.54 | 2.50 | 2.44 | 2.39 | 2.34 | 2.28 | 2.22 | 2.16 | 2.10 | 2.03 | 1.96 | 1.89 | 1.82 | 1.75 |
| 69.5 | 176.5 | 2.72 | 2.68 | 2.64 | 2.59 | 2.54 | 2.49 | 2.44 | 2.38 | 2.33 | 2.27 | 2.20 | 2.14 | 2.08 | 2.01 | 1.94 | 1.87 | 1.79 |
| 70.0 | 177.8 | 2.77 | 2.73 | 2.69 | 2.64 | 2.59 | 2.54 | 2.49 | 2.43 | 2.38 | 2.32 | 2.26 | 2.19 | 2.13 | 2.06 | 1.99 | 1.92 | 1.84 |
| 70.5 | 179.1 | 2.82 | 2.78 | 2.74 | 2.69 | 2.64 | 2.59 | 2.54 | 2.48 | 2.43 | 2.37 | 2.31 | 2.24 | 2.18 | 2.11 | 2.04 | 1.97 | 1.89 |
| 71.0 | 180.3 | 2.87 | 2.83 | 2.78 | 2.74 | 2.69 | 2.64 | 2.59 | 2.53 | 2.47 | 2.41 | 2.35 | 2.29 | 2.22 | 2.16 | 2.09 | 2.01 | 1.94 |
| 71.5 | 181.6 | 2.92 | 2.88 | 2.84 | 2.79 | 2.74 | 2.69 | 2.64 | 2.58 | 2.52 | 2.47 | 2.40 | 2.34 | 2.28 | 2.21 | 2.14 | 2.07 | 1.99 |
| 72.0 | 182.9 | 2.97 | 2.93 | 2.89 | 2.84 | 2.79 | 2.74 | 2.69 | 2.63 | 2.58 | 2.52 | 2.46 | 2.39 | 2.33 | 2.26 | 2.19 | 2.12 | 2.04 |
| 72.5 | 184.2 | 3.03 | 2.98 | 2.94 | 2.89 | 2.84 | 2.79 | 2.74 | 2.69 | 2.63 | 2.57 | 2.51 | 2.44 | 2.38 | 2.31 | 2.24 | 2.17 | 2.10 |
| 73.0 | 185.4 | 3.07 | 3.03 | 2.99 | 2.94 | 2.89 | 2.84 | 2.79 | 2.73 | 2.68 | 2.62 | 2.56 | 2.49 | 2.43 | 2.36 | 2.29 | 2.22 | 2.14 |
| 73.5 | 186.7 | 3.13 | 3.09 | 3.04 | 2.99 | 2.95 | 2.89 | 2.84 | 2.79 | 2.73 | 2.67 | 2.61 | 2.55 | 2.48 | 2.41 | 2.34 | 2.27 | 2.20 |
| 74.0 | 188.0 | 3.18 | 3.14 | 3.09 | 3.05 | 3.00 | 2.95 | 2.90 | 2.84 | 2.78 | 2.72 | 2.66 | 2.60 | 2.53 | 2.47 | 2.40 | 2.32 | 2.25 |
| 74.5 | 189.2 | 3.23 | 3.19 | 3.14 | 3.10 | 3.05 | 3.00 | 2.94 | 2.89 | 2.83 | 2.77 | 2.71 | 2.65 | 2.58 | 2.52 | 2.45 | 2.37 | 2.30 |
| 75.0 | 190.5 | 3.28 | 3.24 | 3.20 | 3.15 | 3.10 | 3.05 | 3.00 | 2.94 | 2.89 | 2.83 | 2.77 | 2.70 | 2.64 | 2.57 | 2.50 | 2.43 | 2.35 |
| 75.5 | 191.8 | 3.34 | 3.30 | 3.25 | 3.20 | 3.16 | 3.11 | 3.05 | 3.00 | 2.94 | 2.88 | 2.82 | 2.76 | 2.69 | 2.62 | 2.55 | 2.48 | 2.41 |
| 76.0 | 193.0 | 3.39 | 3.35 | 3.30 | 3.26 | 3.21 | 3.16 | 3.10 | 3.05 | 2.99 | 2.93 | 2.87 | 2.81 | 2.74 | 2.67 | 2.60 | 2.53 | 2.46 |
| 76.5 | 194.3 | 3.44 | 3.40 | 3.36 | 3.31 | 3.26 | 3.21 | 3.16 | 3.10 | 3.05 | 2.99 | 2.93 | 2.86 | 2.80 | 2.73 | 2.66 | 2.59 | 2.51 |
| 77.0 | 195.6 | 3.50 | 3.46 | 3.41 | 3.37 | 3.32 | 3.27 | 3.21 | 3.16 | 3.10 | 3.04 | 2.98 | 2.92 | 2.85 | 2.78 | 2.71 | 2.64 | 2.57 |
| 77.5 | 196.9 | 3.55 | 3.51 | 3.47 | 3.42 | 3.37 | 3.32 | 3.27 | 3.21 | 3.16 | 3.10 | 3.04 | 2.97 | 2.91 | 2.84 | 2.77 | 2.70 | 2.62 |
| 78.0 | 198.1 | 3.61 | 3.56 | 3.52 | 3.47 | 3.42 | 3.37 | 3.32 | 3.27 | 3.21 | 3.15 | 3.09 | 3.02 | 2.96 | 2.89 | 2.82 | 2.75 | 2.68 |
| 78.5 | 199.4 | 3.66 | 3.62 | 3.58 | 3.53 | 3.48 | 3.43 | 3.38 | 3.32 | 3.27 | 3.21 | 3.14 | 3.08 | 3.02 | 2.95 | 2.88 | 2.81 | 2.73 |
| 79.0 | 200.7 | 3.72 | 3.68 | 3.63 | 3.59 | 3.54 | 3.49 | 3.43 | 3.38 | 3.32 | 3.26 | 3.20 | 3.14 | 3.07 | 3.00 | 2.93 | 2.86 | 2.79 |
| 79.5 | 201.9 | 3.77 | 3.73 | 3.69 | 3.64 | 3.59 | 3.54 | 3.49 | 3.43 | 3.37 | 3.32 | 3.25 | 3.19 | 3.12 | 3.06 | 2.99 | 2.92 | 2.84 |
| 80.0 | 203.2 | 3.83 | 3.79 | 3.74 | 3.70 | 3.65 | 3.60 | 3.54 | 3.49 | 3.43 | 3.37 | 3.31 | 3.25 | 3.18 | 3.11 | 3.04 | 2.97 | 2.90 |
| 80.5 | 204.5 | 3.89 | 3.85 | 3.80 | 3.75 | 3.71 | 3.65 | 3.60 | 3.55 | 3.49 | 3.43 | 3.37 | 3.31 | 3.24 | 3.17 | 3.10 | 3.03 | 2.96 |
| 81.0 | 205.7 | 3.94 | 3.90 | 3.85 | 3.81 | 3.76 | 3.71 | 3.66 | 3.60 | 3.54 | 3.48 | 3.42 | 3.36 | 3.29 | 3.23 | 3.16 | 3.08 | 3.01 |
| 81.5 | 207.0 | 4.00 | 3.96 | 3.91 | 3.87 | 3.82 | 3.77 | 3.71 | 3.66 | 3.60 | 3.54 | 3.48 | 3.42 | 3.35 | 3.28 | 3.22 | 3.14 | 3.07 |
| 82.0 | 208.3 | 4.06 | 4.02 | 3.97 | 3.93 | 3.88 | 3.83 | 3.77 | 3.72 | 3.66 | 3.60 | 3.54 | 3.48 | 3.41 | 3.34 | 3.27 | 3.20 | 3.13 |
| 82.5 | 209.6 | 4.12 | 4.08 | 4.03 | 3.98 | 3.94 | 3.89 | 3.83 | 3.78 | 3.72 | 3.66 | 3.60 | 3.54 | 3.47 | 3.40 | 3.33 | 3.26 | 3.19 |
Table 4A—African American Females FEV-1 Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.3433 + (−0.01283)(age) + (−0.000097)(age
2) + (0.00008546)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 1.53 | 1.49 | 1.44 | 1.39 | 1.35 | 1.30 | 1.25 | 1.20 | 1.15 | 1.10 | 1.05 | 0.99 | 0.94 | 0.89 | 0.83 | 0.77 | 0.72 |
| 61.5 | 156.2 | 1.57 | 1.52 | 1.48 | 1.43 | 1.38 | 1.33 | 1.28 | 1.24 | 1.18 | 1.13 | 1.08 | 1.03 | 0.97 | 0.92 | 0.87 | 0.81 | 0.75 |
| 62.0 | 157.5 | 1.60 | 1.56 | 1.51 | 1.46 | 1.42 | 1.37 | 1.32 | 1.27 | 1.22 | 1.17 | 1.12 | 1.06 | 1.01 | 0.96 | 0.90 | 0.84 | 0.79 |
| 62.5 | 158.8 | 1.64 | 1.59 | 1.55 | 1.50 | 1.45 | 1.40 | 1.35 | 1.31 | 1.25 | 1.20 | 1.15 | 1.10 | 1.04 | 0.99 | 0.94 | 0.88 | 0.82 |
| 63.0 | 160.0 | 1.67 | 1.62 | 1.58 | 1.53 | 1.48 | 1.44 | 1.39 | 1.34 | 1.29 | 1.24 | 1.18 | 1.13 | 1.08 | 1.02 | 0.97 | 0.91 | 0.86 |
| 63.5 | 161.3 | 1.71 | 1.66 | 1.61 | 1.57 | 1.52 | 1.47 | 1.42 | 1.37 | 1.32 | 1.27 | 1.22 | 1.17 | 1.11 | 1.06 | 1.00 | 0.95 | 0.89 |
| 64.0 | 162.6 | 1.74 | 1.70 | 1.65 | 1.60 | 1.56 | 1.51 | 1.46 | 1.41 | 1.36 | 1.31 | 1.26 | 1.20 | 1.15 | 1.09 | 1.04 | 0.98 | 0.93 |
| 64.5 | 163.8 | 1.77 | 1.73 | 1.68 | 1.64 | 1.59 | 1.54 | 1.49 | 1.44 | 1.39 | 1.34 | 1.29 | 1.24 | 1.18 | 1.13 | 1.07 | 1.02 | 0.96 |
| 65.0 | 165.1 | 1.81 | 1.77 | 1.72 | 1.67 | 1.63 | 1.58 | 1.53 | 1.48 | 1.43 | 1.38 | 1.33 | 1.27 | 1.22 | 1.16 | 1.11 | 1.05 | 1.00 |
| 65.5 | 166.4 | 1.85 | 1.80 | 1.76 | 1.71 | 1.66 | 1.61 | 1.57 | 1.52 | 1.46 | 1.41 | 1.36 | 1.31 | 1.26 | 1.20 | 1.15 | 1.09 | 1.03 |
| 66.0 | 167.6 | 1.88 | 1.84 | 1.79 | 1.75 | 1.70 | 1.65 | 1.60 | 1.55 | 1.50 | 1.45 | 1.40 | 1.35 | 1.29 | 1.24 | 1.18 | 1.13 | 1.07 |
| 66.5 | 168.9 | 1.92 | 1.87 | 1.83 | 1.78 | 1.74 | 1.69 | 1.64 | 1.59 | 1.54 | 1.49 | 1.43 | 1.38 | 1.33 | 1.27 | 1.22 | 1.16 | 1.11 |
| 67.0 | 170.2 | 1.96 | 1.91 | 1.87 | 1.82 | 1.77 | 1.72 | 1.68 | 1.63 | 1.58 | 1.52 | 1.47 | 1.42 | 1.37 | 1.31 | 1.26 | 1.20 | 1.14 |
| 67.5 | 171.5 | 2.00 | 1.95 | 1.90 | 1.86 | 1.81 | 1.76 | 1.71 | 1.66 | 1.61 | 1.56 | 1.51 | 1.46 | 1.40 | 1.35 | 1.29 | 1.24 | 1.18 |
| 68.0 | 172.7 | 2.03 | 1.99 | 1.94 | 1.89 | 1.85 | 1.80 | 1.75 | 1.70 | 1.65 | 1.60 | 1.55 | 1.49 | 1.44 | 1.38 | 1.33 | 1.27 | 1.22 |
| 68.5 | 174.0 | 2.07 | 2.02 | 1.98 | 1.93 | 1.88 | 1.84 | 1.79 | 1.74 | 1.69 | 1.64 | 1.58 | 1.53 | 1.48 | 1.42 | 1.37 | 1.31 | 1.26 |
| 69.0 | 175.3 | 2.11 | 2.06 | 2.02 | 1.97 | 1.92 | 1.87 | 1.83 | 1.78 | 1.73 | 1.67 | 1.62 | 1.57 | 1.52 | 1.46 | 1.41 | 1.35 | 1.29 |
| 69.5 | 176.5 | 2.14 | 2.10 | 2.05 | 2.01 | 1.96 | 1.91 | 1.86 | 1.81 | 1.76 | 1.71 | 1.66 | 1.61 | 1.55 | 1.50 | 1.44 | 1.39 | 1.33 |
| 70.0 | 177.8 | 2.18 | 2.14 | 2.09 | 2.05 | 2.00 | 1.95 | 1.90 | 1.85 | 1.80 | 1.75 | 1.70 | 1.65 | 1.59 | 1.54 | 1.48 | 1.43 | 1.37 |
| 70.5 | 179.1 | 2.22 | 2.18 | 2.13 | 2.09 | 2.04 | 1.99 | 1.94 | 1.89 | 1.84 | 1.79 | 1.74 | 1.68 | 1.63 | 1.58 | 1.52 | 1.47 | 1.41 |
| 71.0 | 180.3 | 2.26 | 2.21 | 2.17 | 2.12 | 2.07 | 2.03 | 1.98 | 1.93 | 1.88 | 1.83 | 1.77 | 1.72 | 1.67 | 1.61 | 1.56 | 1.50 | 1.45 |
| 71.5 | 181.6 | 2.30 | 2.26 | 2.21 | 2.16 | 2.12 | 2.07 | 2.02 | 1.97 | 1.92 | 1.87 | 1.81 | 1.76 | 1.71 | 1.65 | 1.60 | 1.54 | 1.49 |
| 72.0 | 182.9 | 2.34 | 2.30 | 2.25 | 2.20 | 2.16 | 2.11 | 2.06 | 2.01 | 1.96 | 1.91 | 1.86 | 1.80 | 1.75 | 1.69 | 1.64 | 1.58 | 1.53 |
| 72.5 | 184.2 | 2.38 | 2.34 | 2.29 | 2.24 | 2.20 | 2.15 | 2.10 | 2.05 | 2.00 | 1.95 | 1.90 | 1.84 | 1.79 | 1.74 | 1.68 | 1.62 | 1.57 |
| 73.0 | 185.4 | 2.42 | 2.37 | 2.33 | 2.28 | 2.23 | 2.19 | 2.14 | 2.09 | 2.04 | 1.99 | 1.93 | 1.88 | 1.83 | 1.77 | 1.72 | 1.66 | 1.61 |
| 73.5 | 186.7 | 2.46 | 2.42 | 2.37 | 2.32 | 2.28 | 2.23 | 2.18 | 2.13 | 2.08 | 2.03 | 1.98 | 1.92 | 1.87 | 1.81 | 1.76 | 1.70 | 1.65 |
| 74.0 | 188.0 | 2.50 | 2.46 | 2.41 | 2.36 | 2.32 | 2.27 | 2.22 | 2.17 | 2.12 | 2.07 | 2.02 | 1.96 | 1.91 | 1.86 | 1.80 | 1.74 | 1.69 |
| 74.5 | 189.2 | 2.54 | 2.50 | 2.45 | 2.40 | 2.36 | 2.31 | 2.26 | 2.21 | 2.16 | 2.11 | 2.06 | 2.00 | 1.95 | 1.89 | 1.84 | 1.78 | 1.73 |
| 75.0 | 190.5 | 2.58 | 2.54 | 2.49 | 2.45 | 2.40 | 2.35 | 2.30 | 2.25 | 2.20 | 2.15 | 2.10 | 2.04 | 1.99 | 1.94 | 1.88 | 1.83 | 1.77 |
| 75.5 | 191.8 | 2.63 | 2.58 | 2.53 | 2.49 | 2.44 | 2.39 | 2.34 | 2.29 | 2.24 | 2.19 | 2.14 | 2.09 | 2.03 | 1.98 | 1.92 | 1.87 | 1.81 |
| 76.0 | 193.0 | 2.67 | 2.62 | 2.57 | 2.53 | 2.48 | 2.43 | 2.38 | 2.33 | 2.28 | 2.23 | 2.18 | 2.13 | 2.07 | 2.02 | 1.96 | 1.91 | 1.85 |
| 76.5 | 194.3 | 2.71 | 2.66 | 2.62 | 2.57 | 2.52 | 2.48 | 2.43 | 2.38 | 2.33 | 2.27 | 2.22 | 2.17 | 2.12 | 2.06 | 2.01 | 1.95 | 1.89 |
| 77.0 | 195.6 | 2.75 | 2.71 | 2.66 | 2.61 | 2.57 | 2.52 | 2.47 | 2.42 | 2.37 | 2.32 | 2.27 | 2.21 | 2.16 | 2.11 | 2.05 | 1.99 | 1.94 |
| 77.5 | 196.9 | 2.79 | 2.75 | 2.70 | 2.66 | 2.61 | 2.56 | 2.51 | 2.46 | 2.41 | 2.36 | 2.31 | 2.26 | 2.20 | 2.15 | 2.09 | 2.04 | 1.98 |
| 78.0 | 198.1 | 2.84 | 2.79 | 2.74 | 2.70 | 2.65 | 2.60 | 2.55 | 2.50 | 2.45 | 2.40 | 2.35 | 2.30 | 2.24 | 2.19 | 2.13 | 2.08 | 2.02 |
| 78.5 | 199.4 | 2.88 | 2.83 | 2.79 | 2.74 | 2.69 | 2.65 | 2.60 | 2.55 | 2.50 | 2.45 | 2.39 | 2.34 | 2.29 | 2.23 | 2.18 | 2.12 | 2.07 |
| 79.0 | 200.7 | 2.92 | 2.88 | 2.83 | 2.79 | 2.74 | 2.69 | 2.64 | 2.59 | 2.54 | 2.49 | 2.44 | 2.39 | 2.33 | 2.28 | 2.22 | 2.17 | 2.11 |
| 79.5 | 201.9 | 2.97 | 2.92 | 2.87 | 2.83 | 2.78 | 2.73 | 2.68 | 2.63 | 2.58 | 2.53 | 2.48 | 2.43 | 2.37 | 2.32 | 2.26 | 2.21 | 2.15 |
| 80.0 | 203.2 | 3.01 | 2.97 | 2.92 | 2.87 | 2.83 | 2.78 | 2.73 | 2.68 | 2.63 | 2.58 | 2.52 | 2.47 | 2.42 | 2.36 | 2.31 | 2.25 | 2.20 |
| 80.5 | 204.5 | 3.06 | 3.01 | 2.96 | 2.92 | 2.87 | 2.82 | 2.77 | 2.72 | 2.67 | 2.62 | 2.57 | 2.52 | 2.46 | 2.41 | 2.35 | 2.30 | 2.24 |
| 81.0 | 205.7 | 3.10 | 3.05 | 3.01 | 2.96 | 2.91 | 2.86 | 2.82 | 2.77 | 2.72 | 2.66 | 2.61 | 2.56 | 2.51 | 2.45 | 2.40 | 2.34 | 2.28 |
| 81.5 | 207.0 | 3.14 | 3.10 | 3.05 | 3.01 | 2.96 | 2.91 | 2.86 | 2.81 | 2.76 | 2.71 | 2.66 | 2.61 | 2.55 | 2.50 | 2.44 | 2.39 | 2.33 |
| 82.0 | 208.3 | 3.19 | 3.14 | 3.10 | 3.05 | 3.00 | 2.96 | 2.91 | 2.86 | 2.81 | 2.76 | 2.70 | 2.65 | 2.60 | 2.54 | 2.49 | 2.43 | 2.38 |
| 82.5 | 209.6 | 3.24 | 3.19 | 3.15 | 3.10 | 3.05 | 3.00 | 2.95 | 2.90 | 2.85 | 2.80 | 2.75 | 2.70 | 2.64 | 2.59 | 2.53 | 2.48 | 2.42 |
Table 5—Mexican American Males FVC Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.2376 + (−0.00891)(age) + (−0.00182)(age
2) + (0.0014947)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.95 | 2.90 | 2.84 | 2.78 | 2.72 | 2.66 | 2.60 | 2.54 | 2.48 | 2.41 | 2.34 | 2.27 | 2.20 | 2.13 | 2.06 | 1.98 | 1.91 |
| 61.5 | 156.2 | 3.01 | 2.96 | 2.90 | 2.84 | 2.79 | 2.73 | 2.66 | 2.60 | 2.54 | 2.47 | 2.40 | 2.33 | 2.26 | 2.19 | 2.12 | 2.04 | 1.97 |
| 62.0 | 157.5 | 3.07 | 3.02 | 2.96 | 2.90 | 2.85 | 2.79 | 2.72 | 2.66 | 2.60 | 2.53 | 2.46 | 2.40 | 2.33 | 2.25 | 2.18 | 2.11 | 2.03 |
| 62.5 | 158.8 | 3.13 | 3.08 | 3.02 | 2.97 | 2.91 | 2.85 | 2.79 | 2.72 | 2.66 | 2.59 | 2.53 | 2.46 | 2.39 | 2.31 | 2.24 | 2.17 | 2.09 |
| 63.0 | 160.0 | 3.19 | 3.14 | 3.08 | 3.02 | 2.96 | 2.90 | 2.84 | 2.78 | 2.72 | 2.65 | 2.58 | 2.51 | 2.44 | 2.37 | 2.30 | 2.22 | 2.15 |
| 63.5 | 161.3 | 3.25 | 3.20 | 3.14 | 3.09 | 3.03 | 2.97 | 2.91 | 2.84 | 2.78 | 2.71 | 2.65 | 2.58 | 2.51 | 2.43 | 2.36 | 2.29 | 2.21 |
| 64.0 | 162.6 | 3.32 | 3.26 | 3.21 | 3.15 | 3.09 | 3.03 | 2.97 | 2.91 | 2.84 | 2.78 | 2.71 | 2.64 | 2.57 | 2.50 | 2.42 | 2.35 | 2.27 |
| 64.5 | 163.8 | 3.37 | 3.32 | 3.26 | 3.21 | 3.15 | 3.09 | 3.03 | 2.96 | 2.90 | 2.83 | 2.77 | 2.70 | 2.63 | 2.56 | 2.48 | 2.41 | 2.33 |
| 65.0 | 165.1 | 3.44 | 3.38 | 3.33 | 3.27 | 3.21 | 3.15 | 3.09 | 3.03 | 2.96 | 2.90 | 2.83 | 2.76 | 2.69 | 2.62 | 2.55 | 2.47 | 2.40 |
| 65.5 | 166.4 | 3.50 | 3.45 | 3.39 | 3.33 | 3.28 | 3.22 | 3.15 | 3.09 | 3.03 | 2.96 | 2.89 | 2.82 | 2.75 | 2.68 | 2.61 | 2.54 | 2.46 |
| 66.0 | 167.6 | 3.56 | 3.51 | 3.45 | 3.40 | 3.34 | 3.28 | 3.22 | 3.15 | 3.09 | 3.02 | 2.96 | 2.89 | 2.82 | 2.75 | 2.67 | 2.60 | 2.52 |
| 66.5 | 168.9 | 3.63 | 3.57 | 3.52 | 3.46 | 3.40 | 3.34 | 3.28 | 3.22 | 3.15 | 3.09 | 3.02 | 2.95 | 2.88 | 2.81 | 2.74 | 2.66 | 2.59 |
| 67.0 | 170.2 | 3.69 | 3.64 | 3.58 | 3.53 | 3.47 | 3.41 | 3.35 | 3.28 | 3.22 | 3.15 | 3.09 | 3.02 | 2.95 | 2.88 | 2.80 | 2.73 | 2.65 |
| 67.5 | 171.5 | 3.76 | 3.71 | 3.65 | 3.59 | 3.53 | 3.47 | 3.41 | 3.35 | 3.29 | 3.22 | 3.15 | 3.08 | 3.01 | 2.94 | 2.87 | 2.79 | 2.72 |
| 68.0 | 172.7 | 3.82 | 3.77 | 3.71 | 3.65 | 3.60 | 3.54 | 3.47 | 3.41 | 3.35 | 3.28 | 3.21 | 3.15 | 3.08 | 3.00 | 2.93 | 2.86 | 2.78 |
| 68.5 | 174.0 | 3.89 | 3.84 | 3.78 | 3.72 | 3.66 | 3.60 | 3.54 | 3.48 | 3.41 | 3.35 | 3.28 | 3.21 | 3.14 | 3.07 | 3.00 | 2.92 | 2.85 |
| 69.0 | 175.3 | 3.96 | 3.90 | 3.85 | 3.79 | 3.73 | 3.67 | 3.61 | 3.55 | 3.48 | 3.42 | 3.35 | 3.28 | 3.21 | 3.14 | 3.07 | 2.99 | 2.92 |
| 69.5 | 176.5 | 4.02 | 3.97 | 3.91 | 3.85 | 3.79 | 3.73 | 3.67 | 3.61 | 3.55 | 3.48 | 3.41 | 3.34 | 3.27 | 3.20 | 3.13 | 3.05 | 2.98 |
| 70.0 | 177.8 | 4.09 | 4.03 | 3.98 | 3.92 | 3.86 | 3.80 | 3.74 | 3.68 | 3.61 | 3.55 | 3.48 | 3.41 | 3.34 | 3.27 | 3.20 | 3.12 | 3.05 |
| 70.5 | 179.1 | 4.16 | 4.10 | 4.05 | 3.99 | 3.93 | 3.87 | 3.81 | 3.75 | 3.68 | 3.62 | 3.55 | 3.48 | 3.41 | 3.34 | 3.27 | 3.19 | 3.12 |
| 71.0 | 180.3 | 4.22 | 4.17 | 4.11 | 4.06 | 4.00 | 3.94 | 3.88 | 3.81 | 3.75 | 3.68 | 3.62 | 3.55 | 3.48 | 3.40 | 3.33 | 3.26 | 3.18 |
| 71.5 | 181.6 | 4.29 | 4.24 | 4.18 | 4.13 | 4.07 | 4.01 | 3.95 | 3.88 | 3.82 | 3.75 | 3.69 | 3.62 | 3.55 | 3.47 | 3.40 | 3.33 | 3.25 |
| 72.0 | 182.9 | 4.36 | 4.31 | 4.25 | 4.20 | 4.14 | 4.08 | 4.02 | 3.95 | 3.89 | 3.82 | 3.76 | 3.69 | 3.62 | 3.55 | 3.47 | 3.40 | 3.32 |
| 72.5 | 184.2 | 4.44 | 4.38 | 4.33 | 4.27 | 4.21 | 4.15 | 4.09 | 4.03 | 3.96 | 3.90 | 3.83 | 3.76 | 3.69 | 3.62 | 3.54 | 3.47 | 3.39 |
| 73.0 | 185.4 | 4.50 | 4.45 | 4.39 | 4.33 | 4.28 | 4.22 | 4.15 | 4.09 | 4.03 | 3.96 | 3.89 | 3.83 | 3.76 | 3.68 | 3.61 | 3.54 | 3.46 |
| 73.5 | 186.7 | 4.57 | 4.52 | 4.46 | 4.41 | 4.35 | 4.29 | 4.23 | 4.16 | 4.10 | 4.03 | 3.97 | 3.90 | 3.83 | 3.76 | 3.68 | 3.61 | 3.53 |
| 74.0 | 188.0 | 4.65 | 4.59 | 4.54 | 4.48 | 4.42 | 4.36 | 4.30 | 4.24 | 4.17 | 4.11 | 4.04 | 3.97 | 3.90 | 3.83 | 3.76 | 3.68 | 3.60 |
| 74.5 | 189.2 | 4.71 | 4.66 | 4.60 | 4.55 | 4.49 | 4.43 | 4.37 | 4.30 | 4.24 | 4.17 | 4.11 | 4.04 | 3.97 | 3.90 | 3.82 | 3.75 | 3.67 |
| 75.0 | 190.5 | 4.79 | 4.73 | 4.68 | 4.62 | 4.56 | 4.50 | 4.44 | 4.38 | 4.31 | 4.25 | 4.18 | 4.11 | 4.04 | 3.97 | 3.90 | 3.82 | 3.75 |
| 75.5 | 191.8 | 4.86 | 4.81 | 4.75 | 4.70 | 4.64 | 4.58 | 4.52 | 4.45 | 4.39 | 4.32 | 4.25 | 4.19 | 4.12 | 4.04 | 3.97 | 3.90 | 3.82 |
| 76.0 | 193.0 | 4.93 | 4.88 | 4.82 | 4.76 | 4.71 | 4.65 | 4.58 | 4.52 | 4.46 | 4.39 | 4.32 | 4.26 | 4.18 | 4.11 | 4.04 | 3.97 | 3.89 |
| 76.5 | 194.3 | 5.01 | 4.95 | 4.90 | 4.84 | 4.78 | 4.72 | 4.66 | 4.60 | 4.53 | 4.47 | 4.40 | 4.33 | 4.26 | 4.19 | 4.12 | 4.04 | 3.96 |
| 77.0 | 195.6 | 5.08 | 5.03 | 4.97 | 4.92 | 4.86 | 4.80 | 4.74 | 4.67 | 4.61 | 4.54 | 4.47 | 4.41 | 4.34 | 4.26 | 4.19 | 4.12 | 4.04 |
| 77.5 | 196.9 | 5.16 | 5.10 | 5.05 | 4.99 | 4.93 | 4.87 | 4.81 | 4.75 | 4.68 | 4.62 | 4.55 | 4.48 | 4.41 | 4.34 | 4.27 | 4.19 | 4.12 |
| 78.0 | 198.1 | 5.23 | 5.18 | 5.12 | 5.06 | 5.00 | 4.94 | 4.88 | 4.82 | 4.76 | 4.69 | 4.62 | 4.55 | 4.48 | 4.41 | 4.34 | 4.26 | 4.19 |
| 78.5 | 199.4 | 5.31 | 5.25 | 5.20 | 5.14 | 5.08 | 5.02 | 4.96 | 4.90 | 4.83 | 4.77 | 4.70 | 4.63 | 4.56 | 4.49 | 4.42 | 4.34 | 4.26 |
| 79.0 | 200.7 | 5.38 | 5.33 | 5.27 | 5.22 | 5.16 | 5.10 | 5.04 | 4.97 | 4.91 | 4.84 | 4.78 | 4.71 | 4.64 | 4.57 | 4.49 | 4.42 | 4.34 |
| 79.5 | 201.9 | 5.46 | 5.40 | 5.35 | 5.29 | 5.23 | 5.17 | 5.11 | 5.05 | 4.98 | 4.92 | 4.85 | 4.78 | 4.71 | 4.64 | 4.57 | 4.49 | 4.41 |
| 80.0 | 203.2 | 5.54 | 5.48 | 5.43 | 5.37 | 5.31 | 5.25 | 5.19 | 5.13 | 5.06 | 5.00 | 4.93 | 4.86 | 4.79 | 4.72 | 4.64 | 4.57 | 4.49 |
| 80.5 | 204.5 | 5.61 | 5.56 | 5.51 | 5.45 | 5.39 | 5.33 | 5.27 | 5.20 | 5.14 | 5.07 | 5.01 | 4.94 | 4.87 | 4.80 | 4.72 | 4.65 | 4.57 |
| 81.0 | 205.7 | 5.69 | 5.63 | 5.58 | 5.52 | 5.46 | 5.40 | 5.34 | 5.28 | 5.21 | 5.15 | 5.08 | 5.01 | 4.94 | 4.87 | 4.80 | 4.72 | 4.65 |
| 81.5 | 207.0 | 5.77 | 5.71 | 5.66 | 5.60 | 5.54 | 5.48 | 5.42 | 5.36 | 5.29 | 5.23 | 5.16 | 5.09 | 5.02 | 4.95 | 4.88 | 4.80 | 4.73 |
| 82.0 | 208.3 | 5.85 | 5.80 | 5.74 | 5.68 | 5.62 | 5.56 | 5.50 | 5.44 | 5.37 | 5.31 | 5.24 | 5.17 | 5.10 | 5.03 | 4.96 | 4.88 | 4.81 |
| 82.5 | 209.6 | 5.93 | 5.88 | 5.82 | 5.76 | 5.70 | 5.64 | 5.58 | 5.52 | 5.46 | 5.39 | 5.32 | 5.25 | 5.18 | 5.11 | 5.04 | 4.96 | 4.89 |
Table 5A—Mexican American Males FEV-1 Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.6306 + (−0.02928)(age) + (0.0001267)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.24 | 2.18 | 2.12 | 2.06 | 2.00 | 1.94 | 1.88 | 1.83 | 1.77 | 1.71 | 1.65 | 1.59 | 1.53 | 1.47 | 1.42 | 1.36 | 1.30 |
| 61.5 | 156.2 | 2.29 | 2.23 | 2.17 | 2.11 | 2.05 | 1.99 | 1.94 | 1.88 | 1.82 | 1.76 | 1.70 | 1.64 | 1.58 | 1.53 | 1.47 | 1.41 | 1.35 |
| 62.0 | 157.5 | 2.34 | 2.28 | 2.22 | 2.16 | 2.10 | 2.05 | 1.99 | 1.93 | 1.87 | 1.81 | 1.75 | 1.69 | 1.64 | 1.58 | 1.52 | 1.46 | 1.40 |
| 62.5 | 158.8 | 2.39 | 2.33 | 2.27 | 2.22 | 2.16 | 2.10 | 2.04 | 1.98 | 1.92 | 1.86 | 1.81 | 1.75 | 1.69 | 1.63 | 1.57 | 1.51 | 1.45 |
| 63.0 | 160.0 | 2.44 | 2.38 | 2.32 | 2.26 | 2.21 | 2.15 | 2.09 | 2.03 | 1.97 | 1.91 | 1.85 | 1.80 | 1.74 | 1.68 | 1.62 | 1.56 | 1.50 |
| 63.5 | 161.3 | 2.49 | 2.43 | 2.38 | 2.32 | 2.26 | 2.20 | 2.14 | 2.08 | 2.02 | 1.97 | 1.91 | 1.85 | 1.79 | 1.73 | 1.67 | 1.61 | 1.56 |
| 64.0 | 162.6 | 2.55 | 2.49 | 2.43 | 2.37 | 2.31 | 2.25 | 2.19 | 2.14 | 2.08 | 2.02 | 1.96 | 1.90 | 1.84 | 1.78 | 1.73 | 1.67 | 1.61 |
| 64.5 | 163.8 | 2.60 | 2.54 | 2.48 | 2.42 | 2.36 | 2.30 | 2.24 | 2.19 | 2.13 | 2.07 | 2.01 | 1.95 | 1.89 | 1.83 | 1.78 | 1.72 | 1.66 |
| 65.0 | 165.1 | 2.65 | 2.59 | 2.53 | 2.47 | 2.42 | 2.36 | 2.30 | 2.24 | 2.18 | 2.12 | 2.06 | 2.01 | 1.95 | 1.89 | 1.83 | 1.77 | 1.71 |
| 65.5 | 166.4 | 2.70 | 2.64 | 2.59 | 2.53 | 2.47 | 2.41 | 2.35 | 2.29 | 2.23 | 2.18 | 2.12 | 2.06 | 2.00 | 1.94 | 1.88 | 1.82 | 1.77 |
| 66.0 | 167.6 | 2.76 | 2.70 | 2.64 | 2.58 | 2.52 | 2.46 | 2.41 | 2.35 | 2.29 | 2.23 | 2.17 | 2.11 | 2.05 | 2.00 | 1.94 | 1.88 | 1.82 |
| 66.5 | 168.9 | 2.81 | 2.75 | 2.69 | 2.64 | 2.58 | 2.52 | 2.46 | 2.40 | 2.34 | 2.28 | 2.23 | 2.17 | 2.11 | 2.05 | 1.99 | 1.93 | 1.87 |
| 67.0 | 170.2 | 2.87 | 2.81 | 2.75 | 2.69 | 2.63 | 2.57 | 2.51 | 2.46 | 2.40 | 2.34 | 2.28 | 2.22 | 2.16 | 2.10 | 2.05 | 1.99 | 1.93 |
| 67.5 | 171.5 | 2.92 | 2.86 | 2.81 | 2.75 | 2.69 | 2.63 | 2.57 | 2.51 | 2.45 | 2.40 | 2.34 | 2.28 | 2.22 | 2.16 | 2.10 | 2.04 | 1.99 |
| 68.0 | 172.7 | 2.97 | 2.92 | 2.86 | 2.80 | 2.74 | 2.68 | 2.62 | 2.56 | 2.51 | 2.45 | 2.39 | 2.33 | 2.27 | 2.21 | 2.15 | 2.10 | 2.04 |
| 68.5 | 174.0 | 3.03 | 2.97 | 2.91 | 2.86 | 2.80 | 2.74 | 2.68 | 2.62 | 2.56 | 2.50 | 2.45 | 2.39 | 2.33 | 2.27 | 2.21 | 2.15 | 2.09 |
| 69.0 | 175.3 | 3.09 | 3.03 | 2.97 | 2.91 | 2.86 | 2.80 | 2.74 | 2.68 | 2.62 | 2.56 | 2.50 | 2.45 | 2.39 | 2.33 | 2.27 | 2.21 | 2.15 |
| 69.5 | 176.5 | 3.14 | 3.08 | 3.03 | 2.97 | 2.91 | 2.85 | 2.79 | 2.73 | 2.67 | 2.62 | 2.56 | 2.50 | 2.44 | 2.38 | 2.32 | 2.26 | 2.21 |
| 70.0 | 177.8 | 3.20 | 3.14 | 3.08 | 3.03 | 2.97 | 2.91 | 2.85 | 2.79 | 2.73 | 2.67 | 2.62 | 2.56 | 2.50 | 2.44 | 2.38 | 2.32 | 2.26 |
| 70.5 | 179.1 | 3.26 | 3.20 | 3.14 | 3.08 | 3.03 | 2.97 | 2.91 | 2.85 | 2.79 | 2.73 | 2.67 | 2.62 | 2.56 | 2.50 | 2.44 | 2.38 | 2.32 |
| 71.0 | 180.3 | 3.31 | 3.26 | 3.20 | 3.14 | 3.08 | 3.02 | 2.96 | 2.90 | 2.85 | 2.79 | 2.73 | 2.67 | 2.61 | 2.55 | 2.49 | 2.44 | 2.38 |
| 71.5 | 181.6 | 3.37 | 3.32 | 3.26 | 3.20 | 3.14 | 3.08 | 3.02 | 2.96 | 2.91 | 2.85 | 2.79 | 2.73 | 2.67 | 2.61 | 2.55 | 2.50 | 2.44 |
| 72.0 | 182.9 | 3.43 | 3.38 | 3.32 | 3.26 | 3.20 | 3.14 | 3.08 | 3.02 | 2.97 | 2.91 | 2.85 | 2.79 | 2.73 | 2.67 | 2.61 | 2.56 | 2.50 |
| 72.5 | 184.2 | 3.49 | 3.44 | 3.38 | 3.32 | 3.26 | 3.20 | 3.14 | 3.08 | 3.03 | 2.97 | 2.91 | 2.85 | 2.79 | 2.73 | 2.67 | 2.62 | 2.56 |
| 73.0 | 185.4 | 3.55 | 3.49 | 3.43 | 3.38 | 3.32 | 3.26 | 3.20 | 3.14 | 3.08 | 3.02 | 2.97 | 2.91 | 2.85 | 2.79 | 2.73 | 2.67 | 2.61 |
| 73.5 | 186.7 | 3.61 | 3.55 | 3.50 | 3.44 | 3.38 | 3.32 | 3.26 | 3.20 | 3.14 | 3.09 | 3.03 | 2.97 | 2.91 | 2.85 | 2.79 | 2.73 | 2.68 |
| 74.0 | 188.0 | 3.67 | 3.62 | 3.56 | 3.50 | 3.44 | 3.38 | 3.32 | 3.26 | 3.21 | 3.15 | 3.09 | 3.03 | 2.97 | 2.91 | 2.85 | 2.80 | 2.74 |
| 74.5 | 189.2 | 3.73 | 3.67 | 3.61 | 3.56 | 3.50 | 3.44 | 3.38 | 3.32 | 3.26 | 3.20 | 3.15 | 3.09 | 3.03 | 2.97 | 2.91 | 2.85 | 2.79 |
| 75.0 | 190.5 | 3.79 | 3.74 | 3.68 | 3.62 | 3.56 | 3.50 | 3.44 | 3.38 | 3.33 | 3.27 | 3.21 | 3.15 | 3.09 | 3.03 | 2.97 | 2.92 | 2.86 |
| 75.5 | 191.8 | 3.86 | 3.80 | 3.74 | 3.68 | 3.62 | 3.56 | 3.51 | 3.45 | 3.39 | 3.33 | 3.27 | 3.21 | 3.15 | 3.10 | 3.04 | 2.98 | 2.92 |
| 76.0 | 193.0 | 3.92 | 3.86 | 3.80 | 3.74 | 3.68 | 3.62 | 3.56 | 3.51 | 3.45 | 3.39 | 3.33 | 3.27 | 3.21 | 3.15 | 3.10 | 3.04 | 2.98 |
| 76.5 | 194.3 | 3.98 | 3.92 | 3.86 | 3.80 | 3.74 | 3.69 | 3.63 | 3.57 | 3.51 | 3.45 | 3.39 | 3.33 | 3.28 | 3.22 | 3.16 | 3.10 | 3.04 |
| 77.0 | 195.6 | 4.04 | 3.98 | 3.93 | 3.87 | 3.81 | 3.75 | 3.69 | 3.63 | 3.57 | 3.52 | 3.46 | 3.40 | 3.34 | 3.28 | 3.22 | 3.16 | 3.11 |
| 77.5 | 196.9 | 4.11 | 4.05 | 3.99 | 3.93 | 3.87 | 3.82 | 3.76 | 3.70 | 3.64 | 3.58 | 3.52 | 3.46 | 3.41 | 3.35 | 3.29 | 3.23 | 3.17 |
| 78.0 | 198.1 | 4.17 | 4.11 | 4.05 | 3.99 | 3.93 | 3.88 | 3.82 | 3.76 | 3.70 | 3.64 | 3.58 | 3.52 | 3.47 | 3.41 | 3.35 | 3.29 | 3.23 |
| 78.5 | 199.4 | 4.23 | 4.17 | 4.12 | 4.06 | 4.00 | 3.94 | 3.88 | 3.82 | 3.77 | 3.71 | 3.65 | 3.59 | 3.53 | 3.47 | 3.41 | 3.36 | 3.30 |
| 79.0 | 200.7 | 4.30 | 4.24 | 4.18 | 4.12 | 4.07 | 4.01 | 3.95 | 3.89 | 3.83 | 3.77 | 3.71 | 3.66 | 3.60 | 3.54 | 3.48 | 3.42 | 3.36 |
| 79.5 | 201.9 | 4.36 | 4.30 | 4.24 | 4.18 | 4.13 | 4.07 | 4.01 | 3.95 | 3.89 | 3.83 | 3.78 | 3.72 | 3.66 | 3.60 | 3.54 | 3.48 | 3.42 |
| 80.0 | 203.2 | 4.43 | 4.37 | 4.31 | 4.25 | 4.19 | 4.13 | 4.08 | 4.02 | 3.96 | 3.90 | 3.84 | 3.78 | 3.72 | 3.67 | 3.61 | 3.55 | 3.49 |
| 80.5 | 204.5 | 4.49 | 4.44 | 4.38 | 4.32 | 4.26 | 4.20 | 4.14 | 4.08 | 4.03 | 3.97 | 3.91 | 3.85 | 3.79 | 3.73 | 3.67 | 3.62 | 3.56 |
| 81.0 | 205.7 | 4.56 | 4.50 | 4.44 | 4.38 | 4.32 | 4.26 | 4.21 | 4.15 | 4.09 | 4.03 | 3.97 | 3.91 | 3.85 | 3.80 | 3.74 | 3.68 | 3.62 |
| 81.5 | 207.0 | 4.62 | 4.57 | 4.51 | 4.45 | 4.39 | 4.33 | 4.27 | 4.21 | 4.16 | 4.10 | 4.04 | 3.98 | 3.92 | 3.86 | 3.81 | 3.75 | 3.69 |
| 82.0 | 208.3 | 4.69 | 4.63 | 4.58 | 4.52 | 4.46 | 4.40 | 4.34 | 4.28 | 4.22 | 4.17 | 4.11 | 4.05 | 3.99 | 3.93 | 3.87 | 3.81 | 3.76 |
| 82.5 | 209.6 | 4.76 | 4.70 | 4.64 | 4.59 | 4.53 | 4.47 | 4.41 | 4.35 | 4.29 | 4.24 | 4.18 | 4.12 | 4.06 | 4.00 | 3.94 | 3.88 | 3.83 |
Table 6—Mexican American Females FVC Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.121 + (0.00307)(age) + (−0.000237)(age
2) + (0.00011570)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.48 | 2.44 | 2.39 | 2.35 | 2.30 | 2.25 | 2.20 | 2.15 | 2.10 | 2.04 | 1.98 | 1.92 | 1.86 | 1.79 | 1.73 | 1.66 | 1.59 |
| 61.5 | 156.2 | 2.53 | 2.48 | 2.44 | 2.40 | 2.35 | 2.30 | 2.25 | 2.20 | 2.14 | 2.09 | 2.03 | 1.97 | 1.91 | 1.84 | 1.78 | 1.71 | 1.64 |
| 62.0 | 157.5 | 2.57 | 2.53 | 2.49 | 2.44 | 2.40 | 2.35 | 2.30 | 2.24 | 2.19 | 2.13 | 2.07 | 2.01 | 1.95 | 1.89 | 1.82 | 1.75 | 1.68 |
| 62.5 | 158.8 | 2.62 | 2.58 | 2.54 | 2.49 | 2.44 | 2.39 | 2.34 | 2.29 | 2.24 | 2.18 | 2.12 | 2.06 | 2.00 | 1.94 | 1.87 | 1.80 | 1.73 |
| 63.0 | 160.0 | 2.66 | 2.62 | 2.58 | 2.53 | 2.49 | 2.44 | 2.39 | 2.34 | 2.28 | 2.22 | 2.17 | 2.11 | 2.04 | 1.98 | 1.91 | 1.85 | 1.78 |
| 63.5 | 161.3 | 2.71 | 2.67 | 2.63 | 2.58 | 2.54 | 2.49 | 2.44 | 2.38 | 2.33 | 2.27 | 2.21 | 2.15 | 2.09 | 2.03 | 1.96 | 1.89 | 1.82 |
| 64.0 | 162.6 | 2.76 | 2.72 | 2.68 | 2.63 | 2.58 | 2.54 | 2.49 | 2.43 | 2.38 | 2.32 | 2.26 | 2.20 | 2.14 | 2.08 | 2.01 | 1.94 | 1.87 |
| 64.5 | 163.8 | 2.81 | 2.77 | 2.72 | 2.68 | 2.63 | 2.58 | 2.53 | 2.48 | 2.42 | 2.37 | 2.31 | 2.25 | 2.19 | 2.12 | 2.06 | 1.99 | 1.92 |
| 65.0 | 165.1 | 2.86 | 2.81 | 2.77 | 2.73 | 2.68 | 2.63 | 2.58 | 2.53 | 2.47 | 2.42 | 2.36 | 2.30 | 2.24 | 2.17 | 2.11 | 2.04 | 1.97 |
| 65.5 | 166.4 | 2.90 | 2.86 | 2.82 | 2.78 | 2.73 | 2.68 | 2.63 | 2.58 | 2.52 | 2.47 | 2.41 | 2.35 | 2.28 | 2.22 | 2.15 | 2.09 | 2.02 |
| 66.0 | 167.6 | 2.95 | 2.91 | 2.87 | 2.82 | 2.78 | 2.73 | 2.68 | 2.63 | 2.57 | 2.51 | 2.46 | 2.40 | 2.33 | 2.27 | 2.20 | 2.14 | 2.07 |
| 66.5 | 168.9 | 3.00 | 2.96 | 2.92 | 2.87 | 2.83 | 2.78 | 2.73 | 2.67 | 2.62 | 2.56 | 2.51 | 2.45 | 2.38 | 2.32 | 2.25 | 2.19 | 2.12 |
| 67.0 | 170.2 | 3.05 | 3.01 | 2.97 | 2.92 | 2.88 | 2.83 | 2.78 | 2.73 | 2.67 | 2.61 | 2.56 | 2.50 | 2.43 | 2.37 | 2.30 | 2.24 | 2.17 |
| 67.5 | 171.5 | 3.11 | 3.06 | 3.02 | 2.98 | 2.93 | 2.88 | 2.83 | 2.78 | 2.72 | 2.67 | 2.61 | 2.55 | 2.49 | 2.42 | 2.36 | 2.29 | 2.22 |
| 68.0 | 172.7 | 3.15 | 3.11 | 3.07 | 3.02 | 2.98 | 2.93 | 2.88 | 2.82 | 2.77 | 2.71 | 2.66 | 2.60 | 2.53 | 2.47 | 2.40 | 2.34 | 2.27 |
| 68.5 | 174.0 | 3.21 | 3.16 | 3.12 | 3.08 | 3.03 | 2.98 | 2.93 | 2.88 | 2.82 | 2.77 | 2.71 | 2.65 | 2.59 | 2.52 | 2.46 | 2.39 | 2.32 |
| 69.0 | 175.3 | 3.26 | 3.22 | 3.17 | 3.13 | 3.08 | 3.03 | 2.98 | 2.93 | 2.87 | 2.82 | 2.76 | 2.70 | 2.64 | 2.57 | 2.51 | 2.44 | 2.37 |
| 69.5 | 176.5 | 3.31 | 3.27 | 3.22 | 3.18 | 3.13 | 3.08 | 3.03 | 2.98 | 2.92 | 2.87 | 2.81 | 2.75 | 2.69 | 2.62 | 2.56 | 2.49 | 2.42 |
| 70.0 | 177.8 | 3.36 | 3.32 | 3.28 | 3.23 | 3.18 | 3.13 | 3.08 | 3.03 | 2.98 | 2.92 | 2.86 | 2.80 | 2.74 | 2.68 | 2.61 | 2.54 | 2.47 |
| 70.5 | 179.1 | 3.41 | 3.37 | 3.33 | 3.28 | 3.24 | 3.19 | 3.14 | 3.09 | 3.03 | 2.97 | 2.92 | 2.86 | 2.79 | 2.73 | 2.66 | 2.60 | 2.53 |
| 71.0 | 180.3 | 3.46 | 3.42 | 3.38 | 3.33 | 3.29 | 3.24 | 3.19 | 3.13 | 3.08 | 3.02 | 2.97 | 2.91 | 2.84 | 2.78 | 2.71 | 2.65 | 2.58 |
| 71.5 | 181.6 | 3.52 | 3.48 | 3.43 | 3.39 | 3.34 | 3.29 | 3.24 | 3.19 | 3.13 | 3.08 | 3.02 | 2.96 | 2.90 | 2.83 | 2.77 | 2.70 | 2.63 |
| 72.0 | 182.9 | 3.57 | 3.53 | 3.49 | 3.44 | 3.40 | 3.35 | 3.30 | 3.24 | 3.19 | 3.13 | 3.07 | 3.01 | 2.95 | 2.89 | 2.82 | 2.75 | 2.69 |
| 72.5 | 184.2 | 3.63 | 3.59 | 3.54 | 3.50 | 3.45 | 3.40 | 3.35 | 3.30 | 3.24 | 3.19 | 3.13 | 3.07 | 3.01 | 2.94 | 2.88 | 2.81 | 2.74 |
| 73.0 | 185.4 | 3.68 | 3.64 | 3.59 | 3.55 | 3.50 | 3.45 | 3.40 | 3.35 | 3.30 | 3.24 | 3.18 | 3.12 | 3.06 | 3.00 | 2.93 | 2.86 | 2.79 |
| 73.5 | 186.7 | 3.74 | 3.69 | 3.65 | 3.61 | 3.56 | 3.51 | 3.46 | 3.41 | 3.35 | 3.30 | 3.24 | 3.18 | 3.12 | 3.05 | 2.99 | 2.92 | 2.85 |
| 74.0 | 188.0 | 3.79 | 3.75 | 3.71 | 3.66 | 3.62 | 3.57 | 3.52 | 3.46 | 3.41 | 3.35 | 3.29 | 3.23 | 3.17 | 3.11 | 3.04 | 2.97 | 2.90 |
| 74.5 | 189.2 | 3.84 | 3.80 | 3.76 | 3.71 | 3.67 | 3.62 | 3.57 | 3.52 | 3.46 | 3.40 | 3.35 | 3.29 | 3.22 | 3.16 | 3.09 | 3.03 | 2.96 |
| 75.0 | 190.5 | 3.90 | 3.86 | 3.82 | 3.77 | 3.72 | 3.68 | 3.63 | 3.57 | 3.52 | 3.46 | 3.40 | 3.34 | 3.28 | 3.22 | 3.15 | 3.08 | 3.01 |
| 75.5 | 191.8 | 3.96 | 3.92 | 3.87 | 3.83 | 3.78 | 3.73 | 3.68 | 3.63 | 3.58 | 3.52 | 3.46 | 3.40 | 3.34 | 3.27 | 3.21 | 3.14 | 3.07 |
| 76.0 | 193.0 | 4.01 | 3.97 | 3.93 | 3.88 | 3.84 | 3.79 | 3.74 | 3.68 | 3.63 | 3.57 | 3.51 | 3.45 | 3.39 | 3.33 | 3.26 | 3.19 | 3.12 |
| 76.5 | 194.3 | 4.07 | 4.03 | 3.99 | 3.94 | 3.89 | 3.85 | 3.79 | 3.74 | 3.69 | 3.63 | 3.57 | 3.51 | 3.45 | 3.39 | 3.32 | 3.25 | 3.18 |
| 77.0 | 195.6 | 4.13 | 4.09 | 4.04 | 4.00 | 3.95 | 3.90 | 3.85 | 3.80 | 3.75 | 3.69 | 3.63 | 3.57 | 3.51 | 3.44 | 3.38 | 3.31 | 3.24 |
| 77.5 | 196.9 | 4.19 | 4.15 | 4.10 | 4.06 | 4.01 | 3.96 | 3.91 | 3.86 | 3.80 | 3.75 | 3.69 | 3.63 | 3.57 | 3.50 | 3.44 | 3.37 | 3.30 |
| 78.0 | 198.1 | 4.24 | 4.20 | 4.16 | 4.11 | 4.07 | 4.02 | 3.97 | 3.91 | 3.86 | 3.80 | 3.74 | 3.68 | 3.62 | 3.56 | 3.49 | 3.42 | 3.36 |
| 78.5 | 199.4 | 4.30 | 4.26 | 4.22 | 4.17 | 4.13 | 4.08 | 4.03 | 3.97 | 3.92 | 3.86 | 3.80 | 3.74 | 3.68 | 3.62 | 3.55 | 3.48 | 3.41 |
| 79.0 | 200.7 | 4.36 | 4.32 | 4.28 | 4.23 | 4.19 | 4.14 | 4.09 | 4.03 | 3.98 | 3.92 | 3.86 | 3.80 | 3.74 | 3.68 | 3.61 | 3.54 | 3.48 |
| 79.5 | 201.9 | 4.42 | 4.38 | 4.33 | 4.29 | 4.24 | 4.19 | 4.14 | 4.09 | 4.04 | 3.98 | 3.92 | 3.86 | 3.80 | 3.73 | 3.67 | 3.60 | 3.53 |
| 80.0 | 203.2 | 4.48 | 4.44 | 4.40 | 4.35 | 4.30 | 4.25 | 4.20 | 4.15 | 4.10 | 4.04 | 3.98 | 3.92 | 3.86 | 3.80 | 3.73 | 3.66 | 3.59 |
| 80.5 | 204.5 | 4.54 | 4.50 | 4.46 | 4.41 | 4.36 | 4.32 | 4.26 | 4.21 | 4.16 | 4.10 | 4.04 | 3.98 | 3.92 | 3.86 | 3.79 | 3.72 | 3.65 |
| 81.0 | 205.7 | 4.60 | 4.56 | 4.51 | 4.47 | 4.42 | 4.37 | 4.32 | 4.27 | 4.21 | 4.16 | 4.10 | 4.04 | 3.98 | 3.91 | 3.85 | 3.78 | 3.71 |
| 81.5 | 207.0 | 4.66 | 4.62 | 4.58 | 4.53 | 4.48 | 4.43 | 4.38 | 4.33 | 4.28 | 4.22 | 4.16 | 4.10 | 4.04 | 3.98 | 3.91 | 3.84 | 3.77 |
| 82.0 | 208.3 | 4.72 | 4.68 | 4.64 | 4.59 | 4.55 | 4.50 | 4.45 | 4.39 | 4.34 | 4.28 | 4.22 | 4.16 | 4.10 | 4.04 | 3.97 | 3.90 | 3.83 |
| 82.5 | 209.6 | 4.79 | 4.74 | 4.70 | 4.66 | 4.61 | 4.56 | 4.51 | 4.46 | 4.40 | 4.35 | 4.29 | 4.23 | 4.17 | 4.10 | 4.04 | 3.97 | 3.90 |
Table 6A—Mexican American Females FEV-1 Lower Limit of Normal Values, Hankinson, et al. (1999)
[Reference value equation: 0.4529 + (−0.01178)(age) + (−0.000113)(age
2) + (0.00009890)(height
2)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 1.98 | 1.93 | 1.88 | 1.84 | 1.79 | 1.74 | 1.69 | 1.64 | 1.58 | 1.53 | 1.48 | 1.42 | 1.36 | 1.31 | 1.25 | 1.19 | 1.13 |
| 61.5 | 156.2 | 2.02 | 1.97 | 1.92 | 1.88 | 1.83 | 1.78 | 1.73 | 1.68 | 1.62 | 1.57 | 1.52 | 1.46 | 1.40 | 1.35 | 1.29 | 1.23 | 1.17 |
| 62.0 | 157.5 | 2.06 | 2.01 | 1.96 | 1.92 | 1.87 | 1.82 | 1.77 | 1.72 | 1.66 | 1.61 | 1.56 | 1.50 | 1.44 | 1.39 | 1.33 | 1.27 | 1.21 |
| 62.5 | 158.8 | 2.10 | 2.05 | 2.01 | 1.96 | 1.91 | 1.86 | 1.81 | 1.76 | 1.70 | 1.65 | 1.60 | 1.54 | 1.48 | 1.43 | 1.37 | 1.31 | 1.25 |
| 63.0 | 160.0 | 2.14 | 2.09 | 2.04 | 2.00 | 1.95 | 1.90 | 1.85 | 1.79 | 1.74 | 1.69 | 1.63 | 1.58 | 1.52 | 1.47 | 1.41 | 1.35 | 1.29 |
| 63.5 | 161.3 | 2.18 | 2.13 | 2.08 | 2.04 | 1.99 | 1.94 | 1.89 | 1.84 | 1.78 | 1.73 | 1.68 | 1.62 | 1.56 | 1.51 | 1.45 | 1.39 | 1.33 |
| 64.0 | 162.6 | 2.22 | 2.17 | 2.13 | 2.08 | 2.03 | 1.98 | 1.93 | 1.88 | 1.82 | 1.77 | 1.72 | 1.66 | 1.61 | 1.55 | 1.49 | 1.43 | 1.37 |
| 64.5 | 163.8 | 2.26 | 2.21 | 2.16 | 2.12 | 2.07 | 2.02 | 1.97 | 1.92 | 1.86 | 1.81 | 1.76 | 1.70 | 1.64 | 1.59 | 1.53 | 1.47 | 1.41 |
| 65.0 | 165.1 | 2.30 | 2.25 | 2.21 | 2.16 | 2.11 | 2.06 | 2.01 | 1.96 | 1.91 | 1.85 | 1.80 | 1.74 | 1.69 | 1.63 | 1.57 | 1.51 | 1.45 |
| 65.5 | 166.4 | 2.34 | 2.30 | 2.25 | 2.20 | 2.15 | 2.10 | 2.05 | 2.00 | 1.95 | 1.89 | 1.84 | 1.78 | 1.73 | 1.67 | 1.61 | 1.55 | 1.49 |
| 66.0 | 167.6 | 2.38 | 2.34 | 2.29 | 2.24 | 2.19 | 2.14 | 2.09 | 2.04 | 1.99 | 1.94 | 1.88 | 1.83 | 1.77 | 1.71 | 1.66 | 1.60 | 1.54 |
| 66.5 | 168.9 | 2.43 | 2.38 | 2.33 | 2.28 | 2.24 | 2.19 | 2.14 | 2.08 | 2.03 | 1.98 | 1.92 | 1.87 | 1.81 | 1.76 | 1.70 | 1.64 | 1.58 |
| 67.0 | 170.2 | 2.47 | 2.42 | 2.38 | 2.33 | 2.28 | 2.23 | 2.18 | 2.13 | 2.07 | 2.02 | 1.97 | 1.91 | 1.86 | 1.80 | 1.74 | 1.68 | 1.62 |
| 67.5 | 171.5 | 2.51 | 2.47 | 2.42 | 2.37 | 2.32 | 2.27 | 2.22 | 2.17 | 2.12 | 2.07 | 2.01 | 1.96 | 1.90 | 1.84 | 1.78 | 1.73 | 1.67 |
| 68.0 | 172.7 | 2.55 | 2.51 | 2.46 | 2.41 | 2.36 | 2.31 | 2.26 | 2.21 | 2.16 | 2.11 | 2.05 | 2.00 | 1.94 | 1.88 | 1.83 | 1.77 | 1.71 |
| 68.5 | 174.0 | 2.60 | 2.55 | 2.51 | 2.46 | 2.41 | 2.36 | 2.31 | 2.26 | 2.20 | 2.15 | 2.10 | 2.04 | 1.99 | 1.93 | 1.87 | 1.81 | 1.75 |
| 69.0 | 175.3 | 2.64 | 2.60 | 2.55 | 2.50 | 2.45 | 2.40 | 2.35 | 2.30 | 2.25 | 2.20 | 2.14 | 2.09 | 2.03 | 1.97 | 1.92 | 1.86 | 1.80 |
| 69.5 | 176.5 | 2.69 | 2.64 | 2.59 | 2.54 | 2.50 | 2.45 | 2.39 | 2.34 | 2.29 | 2.24 | 2.18 | 2.13 | 2.07 | 2.01 | 1.96 | 1.90 | 1.84 |
| 70.0 | 177.8 | 2.73 | 2.68 | 2.64 | 2.59 | 2.54 | 2.49 | 2.44 | 2.39 | 2.34 | 2.28 | 2.23 | 2.17 | 2.12 | 2.06 | 2.00 | 1.94 | 1.88 |
| 70.5 | 179.1 | 2.78 | 2.73 | 2.68 | 2.64 | 2.59 | 2.54 | 2.49 | 2.43 | 2.38 | 2.33 | 2.27 | 2.22 | 2.16 | 2.11 | 2.05 | 1.99 | 1.93 |
| 71.0 | 180.3 | 2.82 | 2.77 | 2.73 | 2.68 | 2.63 | 2.58 | 2.53 | 2.48 | 2.42 | 2.37 | 2.32 | 2.26 | 2.21 | 2.15 | 2.09 | 2.03 | 1.97 |
| 71.5 | 181.6 | 2.87 | 2.82 | 2.77 | 2.72 | 2.68 | 2.63 | 2.58 | 2.52 | 2.47 | 2.42 | 2.36 | 2.31 | 2.25 | 2.20 | 2.14 | 2.08 | 2.02 |
| 72.0 | 182.9 | 2.91 | 2.87 | 2.82 | 2.77 | 2.72 | 2.67 | 2.62 | 2.57 | 2.52 | 2.46 | 2.41 | 2.36 | 2.30 | 2.24 | 2.18 | 2.13 | 2.07 |
| 72.5 | 184.2 | 2.96 | 2.91 | 2.87 | 2.82 | 2.77 | 2.72 | 2.67 | 2.62 | 2.57 | 2.51 | 2.46 | 2.40 | 2.35 | 2.29 | 2.23 | 2.17 | 2.11 |
| 73.0 | 185.4 | 3.00 | 2.96 | 2.91 | 2.86 | 2.81 | 2.76 | 2.71 | 2.66 | 2.61 | 2.56 | 2.50 | 2.45 | 2.39 | 2.33 | 2.28 | 2.22 | 2.16 |
| 73.5 | 186.7 | 3.05 | 3.01 | 2.96 | 2.91 | 2.86 | 2.81 | 2.76 | 2.71 | 2.66 | 2.60 | 2.55 | 2.49 | 2.44 | 2.38 | 2.32 | 2.26 | 2.20 |
| 74.0 | 188.0 | 3.10 | 3.05 | 3.01 | 2.96 | 2.91 | 2.86 | 2.81 | 2.76 | 2.71 | 2.65 | 2.60 | 2.54 | 2.49 | 2.43 | 2.37 | 2.31 | 2.25 |
| 74.5 | 189.2 | 3.14 | 3.10 | 3.05 | 3.00 | 2.95 | 2.90 | 2.85 | 2.80 | 2.75 | 2.70 | 2.64 | 2.59 | 2.53 | 2.47 | 2.42 | 2.36 | 2.30 |
| 75.0 | 190.5 | 3.19 | 3.15 | 3.10 | 3.05 | 3.00 | 2.95 | 2.90 | 2.85 | 2.80 | 2.75 | 2.69 | 2.64 | 2.58 | 2.52 | 2.46 | 2.41 | 2.35 |
| 75.5 | 191.8 | 3.24 | 3.20 | 3.15 | 3.10 | 3.05 | 3.00 | 2.95 | 2.90 | 2.85 | 2.79 | 2.74 | 2.69 | 2.63 | 2.57 | 2.51 | 2.46 | 2.40 |
| 76.0 | 193.0 | 3.29 | 3.24 | 3.20 | 3.15 | 3.10 | 3.05 | 3.00 | 2.95 | 2.89 | 2.84 | 2.79 | 2.73 | 2.67 | 2.62 | 2.56 | 2.50 | 2.44 |
| 76.5 | 194.3 | 3.34 | 3.29 | 3.24 | 3.20 | 3.15 | 3.10 | 3.05 | 3.00 | 2.94 | 2.89 | 2.84 | 2.78 | 2.72 | 2.67 | 2.61 | 2.55 | 2.49 |
| 77.0 | 195.6 | 3.39 | 3.34 | 3.29 | 3.25 | 3.20 | 3.15 | 3.10 | 3.05 | 2.99 | 2.94 | 2.89 | 2.83 | 2.77 | 2.72 | 2.66 | 2.60 | 2.54 |
| 77.5 | 196.9 | 3.44 | 3.39 | 3.35 | 3.30 | 3.25 | 3.20 | 3.15 | 3.10 | 3.04 | 2.99 | 2.94 | 2.88 | 2.83 | 2.77 | 2.71 | 2.65 | 2.59 |
| 78.0 | 198.1 | 3.49 | 3.44 | 3.39 | 3.34 | 3.30 | 3.25 | 3.20 | 3.14 | 3.09 | 3.04 | 2.98 | 2.93 | 2.87 | 2.81 | 2.76 | 2.70 | 2.64 |
| 78.5 | 199.4 | 3.54 | 3.49 | 3.44 | 3.40 | 3.35 | 3.30 | 3.25 | 3.19 | 3.14 | 3.09 | 3.03 | 2.98 | 2.92 | 2.87 | 2.81 | 2.75 | 2.69 |
| 79.0 | 200.7 | 3.59 | 3.54 | 3.49 | 3.45 | 3.40 | 3.35 | 3.30 | 3.25 | 3.19 | 3.14 | 3.09 | 3.03 | 2.97 | 2.92 | 2.86 | 2.80 | 2.74 |
| 79.5 | 201.9 | 3.64 | 3.59 | 3.54 | 3.49 | 3.45 | 3.40 | 3.35 | 3.29 | 3.24 | 3.19 | 3.13 | 3.08 | 3.02 | 2.97 | 2.91 | 2.85 | 2.79 |
| 80.0 | 203.2 | 3.69 | 3.64 | 3.59 | 3.55 | 3.50 | 3.45 | 3.40 | 3.35 | 3.29 | 3.24 | 3.19 | 3.13 | 3.07 | 3.02 | 2.96 | 2.90 | 2.84 |
| 80.5 | 204.5 | 3.74 | 3.69 | 3.65 | 3.60 | 3.55 | 3.50 | 3.45 | 3.40 | 3.35 | 3.29 | 3.24 | 3.18 | 3.13 | 3.07 | 3.01 | 2.95 | 2.89 |
| 81.0 | 205.7 | 3.79 | 3.74 | 3.70 | 3.65 | 3.60 | 3.55 | 3.50 | 3.45 | 3.39 | 3.34 | 3.29 | 3.23 | 3.18 | 3.12 | 3.06 | 3.00 | 2.94 |
| 81.5 | 207.0 | 3.84 | 3.80 | 3.75 | 3.70 | 3.65 | 3.60 | 3.55 | 3.50 | 3.45 | 3.39 | 3.34 | 3.28 | 3.23 | 3.17 | 3.11 | 3.05 | 3.00 |
| 82.0 | 208.3 | 3.90 | 3.85 | 3.80 | 3.75 | 3.71 | 3.66 | 3.61 | 3.55 | 3.50 | 3.45 | 3.39 | 3.34 | 3.28 | 3.22 | 3.17 | 3.11 | 3.05 |
| 82.5 | 209.6 | 3.95 | 3.90 | 3.86 | 3.81 | 3.76 | 3.71 | 3.66 | 3.61 | 3.55 | 3.50 | 3.45 | 3.39 | 3.34 | 3.28 | 3.22 | 3.16 | 3.10 |
Table 7—Navajo Males FVC Lower Limit of Normal Values, Crapo, et al. (1988)
[Reference value equation: [−6.2404 + (−0.0264)(age) + (0.0686)(height)] × (.817)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.53 | 2.48 | 2.44 | 2.40 | 2.35 | 2.31 | 2.27 | 2.22 | 2.18 | 2.14 | 2.09 | 2.05 | 2.01 | 1.97 | 1.92 | 1.88 | 1.84 |
| 61.5 | 156.2 | 2.60 | 2.56 | 2.51 | 2.47 | 2.43 | 2.38 | 2.34 | 2.30 | 2.25 | 2.21 | 2.17 | 2.12 | 2.08 | 2.04 | 2.00 | 1.95 | 1.91 |
| 62.0 | 157.5 | 2.67 | 2.63 | 2.59 | 2.54 | 2.50 | 2.46 | 2.41 | 2.37 | 2.33 | 2.28 | 2.24 | 2.20 | 2.15 | 2.11 | 2.07 | 2.02 | 1.98 |
| 62.5 | 158.8 | 2.74 | 2.70 | 2.66 | 2.62 | 2.57 | 2.53 | 2.49 | 2.44 | 2.40 | 2.36 | 2.31 | 2.27 | 2.23 | 2.18 | 2.14 | 2.10 | 2.05 |
| 63.0 | 160.0 | 2.81 | 2.77 | 2.73 | 2.68 | 2.64 | 2.60 | 2.55 | 2.51 | 2.47 | 2.42 | 2.38 | 2.34 | 2.29 | 2.25 | 2.21 | 2.17 | 2.12 |
| 63.5 | 161.3 | 2.88 | 2.84 | 2.80 | 2.76 | 2.71 | 2.67 | 2.63 | 2.58 | 2.54 | 2.50 | 2.45 | 2.41 | 2.37 | 2.32 | 2.28 | 2.24 | 2.19 |
| 64.0 | 162.6 | 2.96 | 2.91 | 2.87 | 2.83 | 2.79 | 2.74 | 2.70 | 2.66 | 2.61 | 2.57 | 2.53 | 2.48 | 2.44 | 2.40 | 2.35 | 2.31 | 2.27 |
| 64.5 | 163.8 | 3.03 | 2.98 | 2.94 | 2.90 | 2.85 | 2.81 | 2.77 | 2.72 | 2.68 | 2.64 | 2.59 | 2.55 | 2.51 | 2.46 | 2.42 | 2.38 | 2.33 |
| 65.0 | 165.1 | 3.10 | 3.05 | 3.01 | 2.97 | 2.93 | 2.88 | 2.84 | 2.80 | 2.75 | 2.71 | 2.67 | 2.62 | 2.58 | 2.54 | 2.49 | 2.45 | 2.41 |
| 65.5 | 166.4 | 3.17 | 3.13 | 3.08 | 3.04 | 3.00 | 2.95 | 2.91 | 2.87 | 2.82 | 2.78 | 2.74 | 2.69 | 2.65 | 2.61 | 2.57 | 2.52 | 2.48 |
| 66.0 | 167.6 | 3.24 | 3.20 | 3.15 | 3.11 | 3.07 | 3.02 | 2.98 | 2.94 | 2.90 | 2.85 | 2.81 | 2.77 | 2.72 | 2.68 | 2.64 | 2.59 | 2.55 |
| 66.5 | 168.9 | 3.31 | 3.27 | 3.23 | 3.18 | 3.14 | 3.10 | 3.05 | 3.01 | 2.97 | 2.92 | 2.88 | 2.84 | 2.79 | 2.75 | 2.71 | 2.66 | 2.62 |
| 67.0 | 170.2 | 3.38 | 3.34 | 3.30 | 3.25 | 3.21 | 3.17 | 3.12 | 3.08 | 3.04 | 3.00 | 2.95 | 2.91 | 2.87 | 2.82 | 2.78 | 2.74 | 2.69 |
| 67.5 | 171.5 | 3.46 | 3.41 | 3.37 | 3.33 | 3.28 | 3.24 | 3.20 | 3.15 | 3.11 | 3.07 | 3.03 | 2.98 | 2.94 | 2.90 | 2.85 | 2.81 | 2.77 |
| 68.0 | 172.7 | 3.52 | 3.48 | 3.44 | 3.39 | 3.35 | 3.31 | 3.27 | 3.22 | 3.18 | 3.14 | 3.09 | 3.05 | 3.01 | 2.96 | 2.92 | 2.88 | 2.83 |
| 68.5 | 174.0 | 3.60 | 3.55 | 3.51 | 3.47 | 3.42 | 3.38 | 3.34 | 3.29 | 3.25 | 3.21 | 3.17 | 3.12 | 3.08 | 3.04 | 2.99 | 2.95 | 2.91 |
| 69.0 | 175.3 | 3.67 | 3.63 | 3.58 | 3.54 | 3.50 | 3.45 | 3.41 | 3.37 | 3.32 | 3.28 | 3.24 | 3.20 | 3.15 | 3.11 | 3.07 | 3.02 | 2.98 |
| 69.5 | 176.5 | 3.74 | 3.69 | 3.65 | 3.61 | 3.56 | 3.52 | 3.48 | 3.43 | 3.39 | 3.35 | 3.31 | 3.26 | 3.22 | 3.18 | 3.13 | 3.09 | 3.05 |
| 70.0 | 177.8 | 3.81 | 3.77 | 3.72 | 3.68 | 3.64 | 3.59 | 3.55 | 3.51 | 3.46 | 3.42 | 3.38 | 3.34 | 3.29 | 3.25 | 3.21 | 3.16 | 3.12 |
| 70.5 | 179.1 | 3.88 | 3.84 | 3.80 | 3.75 | 3.71 | 3.67 | 3.62 | 3.58 | 3.54 | 3.49 | 3.45 | 3.41 | 3.36 | 3.32 | 3.28 | 3.24 | 3.19 |
| 71.0 | 180.3 | 3.95 | 3.91 | 3.86 | 3.82 | 3.78 | 3.73 | 3.69 | 3.65 | 3.60 | 3.56 | 3.52 | 3.48 | 3.43 | 3.39 | 3.35 | 3.30 | 3.26 |
| 71.5 | 181.6 | 4.02 | 3.98 | 3.94 | 3.89 | 3.85 | 3.81 | 3.76 | 3.72 | 3.68 | 3.63 | 3.59 | 3.55 | 3.51 | 3.46 | 3.42 | 3.38 | 3.33 |
| 72.0 | 182.9 | 4.10 | 4.05 | 4.01 | 3.97 | 3.92 | 3.88 | 3.84 | 3.79 | 3.75 | 3.71 | 3.66 | 3.62 | 3.58 | 3.53 | 3.49 | 3.45 | 3.41 |
| 72.5 | 184.2 | 4.17 | 4.13 | 4.08 | 4.04 | 4.00 | 3.95 | 3.91 | 3.87 | 3.82 | 3.78 | 3.74 | 3.69 | 3.65 | 3.61 | 3.56 | 3.52 | 3.48 |
| 73.0 | 185.4 | 4.24 | 4.19 | 4.15 | 4.11 | 4.06 | 4.02 | 3.98 | 3.93 | 3.89 | 3.85 | 3.80 | 3.76 | 3.72 | 3.67 | 3.63 | 3.59 | 3.55 |
| 73.5 | 186.7 | 4.31 | 4.27 | 4.22 | 4.18 | 4.14 | 4.09 | 4.05 | 4.01 | 3.96 | 3.92 | 3.88 | 3.83 | 3.79 | 3.75 | 3.70 | 3.66 | 3.62 |
| 74.0 | 188.0 | 4.38 | 4.34 | 4.30 | 4.25 | 4.21 | 4.17 | 4.12 | 4.08 | 4.04 | 3.99 | 3.95 | 3.91 | 3.86 | 3.82 | 3.78 | 3.73 | 3.69 |
| 74.5 | 189.2 | 4.45 | 4.41 | 4.36 | 4.32 | 4.28 | 4.23 | 4.19 | 4.15 | 4.10 | 4.06 | 4.02 | 3.97 | 3.93 | 3.89 | 3.84 | 3.80 | 3.76 |
| 75.0 | 190.5 | 4.52 | 4.48 | 4.44 | 4.39 | 4.35 | 4.31 | 4.26 | 4.22 | 4.18 | 4.13 | 4.09 | 4.05 | 4.00 | 3.96 | 3.92 | 3.87 | 3.83 |
| 75.5 | 191.8 | 4.59 | 4.55 | 4.51 | 4.46 | 4.42 | 4.38 | 4.34 | 4.29 | 4.25 | 4.21 | 4.16 | 4.12 | 4.08 | 4.03 | 3.99 | 3.95 | 3.90 |
| 76.0 | 193.0 | 4.66 | 4.62 | 4.58 | 4.53 | 4.49 | 4.45 | 4.40 | 4.36 | 4.32 | 4.27 | 4.23 | 4.19 | 4.14 | 4.10 | 4.06 | 4.01 | 3.97 |
| 76.5 | 194.3 | 4.73 | 4.69 | 4.65 | 4.61 | 4.56 | 4.52 | 4.48 | 4.43 | 4.39 | 4.35 | 4.30 | 4.26 | 4.22 | 4.17 | 4.13 | 4.09 | 4.04 |
| 77.0 | 195.6 | 4.81 | 4.76 | 4.72 | 4.68 | 4.63 | 4.59 | 4.55 | 4.51 | 4.46 | 4.42 | 4.38 | 4.33 | 4.29 | 4.25 | 4.20 | 4.16 | 4.12 |
| 77.5 | 196.9 | 4.88 | 4.84 | 4.79 | 4.75 | 4.71 | 4.66 | 4.62 | 4.58 | 4.54 | 4.49 | 4.45 | 4.41 | 4.36 | 4.32 | 4.28 | 4.23 | 4.19 |
| 78.0 | 198.1 | 4.95 | 4.90 | 4.86 | 4.82 | 4.77 | 4.73 | 4.69 | 4.65 | 4.60 | 4.56 | 4.52 | 4.47 | 4.43 | 4.39 | 4.34 | 4.30 | 4.26 |
| 78.5 | 199.4 | 5.02 | 4.98 | 4.93 | 4.89 | 4.85 | 4.80 | 4.76 | 4.72 | 4.68 | 4.63 | 4.59 | 4.55 | 4.50 | 4.46 | 4.42 | 4.37 | 4.33 |
| 79.0 | 200.7 | 5.09 | 5.05 | 5.01 | 4.96 | 4.92 | 4.88 | 4.83 | 4.79 | 4.75 | 4.70 | 4.66 | 4.62 | 4.58 | 4.53 | 4.49 | 4.45 | 4.40 |
| 79.5 | 201.9 | 5.16 | 5.12 | 5.07 | 5.03 | 4.99 | 4.94 | 4.90 | 4.86 | 4.82 | 4.77 | 4.73 | 4.69 | 4.64 | 4.60 | 4.56 | 4.51 | 4.47 |
| 80.0 | 203.2 | 5.23 | 5.19 | 5.15 | 5.10 | 5.06 | 5.02 | 4.97 | 4.93 | 4.89 | 4.85 | 4.80 | 4.76 | 4.72 | 4.67 | 4.63 | 4.59 | 4.54 |
| 80.5 | 204.5 | 5.31 | 5.26 | 5.22 | 5.18 | 5.13 | 5.09 | 5.05 | 5.00 | 4.96 | 4.92 | 4.87 | 4.83 | 4.79 | 4.75 | 4.70 | 4.66 | 4.62 |
| 81.0 | 205.7 | 5.37 | 5.33 | 5.29 | 5.24 | 5.20 | 5.16 | 5.11 | 5.07 | 5.03 | 4.99 | 4.94 | 4.90 | 4.86 | 4.81 | 4.77 | 4.73 | 4.68 |
| 81.5 | 207.0 | 5.45 | 5.40 | 5.36 | 5.32 | 5.27 | 5.23 | 5.19 | 5.14 | 5.10 | 5.06 | 5.01 | 4.97 | 4.93 | 4.89 | 4.84 | 4.80 | 4.76 |
| 82.0 | 208.3 | 5.52 | 5.48 | 5.43 | 5.39 | 5.35 | 5.30 | 5.26 | 5.22 | 5.17 | 5.13 | 5.09 | 5.04 | 5.00 | 4.96 | 4.92 | 4.87 | 4.83 |
| 82.5 | 209.6 | 5.59 | 5.55 | 5.51 | 5.46 | 5.42 | 5.38 | 5.33 | 5.29 | 5.25 | 5.20 | 5.16 | 5.12 | 5.07 | 5.03 | 4.99 | 4.94 | 4.90 |
Table 7A—Navajo Males FEV-1 Lower Limit of Normal Values, Crapo, et al. (1988)
[Reference value equation: [−4.7504 + (−0.0283)(age) + (0.0558)(height)] × (0.812)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.04 | 1.99 | 1.94 | 1.90 | 1.85 | 1.81 | 1.76 | 1.71 | 1.67 | 1.62 | 1.58 | 1.53 | 1.48 | 1.44 | 1.39 | 1.35 | 1.30 |
| 61.5 | 156.2 | 2.09 | 2.05 | 2.00 | 1.96 | 1.91 | 1.86 | 1.82 | 1.77 | 1.73 | 1.68 | 1.63 | 1.59 | 1.54 | 1.50 | 1.45 | 1.40 | 1.36 |
| 62.0 | 157.5 | 2.15 | 2.11 | 2.06 | 2.02 | 1.97 | 1.92 | 1.88 | 1.83 | 1.79 | 1.74 | 1.69 | 1.65 | 1.60 | 1.56 | 1.51 | 1.46 | 1.42 |
| 62.5 | 158.8 | 2.21 | 2.17 | 2.12 | 2.07 | 2.03 | 1.98 | 1.94 | 1.89 | 1.84 | 1.80 | 1.75 | 1.71 | 1.66 | 1.61 | 1.57 | 1.52 | 1.48 |
| 63.0 | 160.0 | 2.27 | 2.22 | 2.17 | 2.13 | 2.08 | 2.04 | 1.99 | 1.94 | 1.90 | 1.85 | 1.81 | 1.76 | 1.71 | 1.67 | 1.62 | 1.58 | 1.53 |
| 63.5 | 161.3 | 2.33 | 2.28 | 2.23 | 2.19 | 2.14 | 2.10 | 2.05 | 2.00 | 1.96 | 1.91 | 1.87 | 1.82 | 1.77 | 1.73 | 1.68 | 1.64 | 1.59 |
| 64.0 | 162.6 | 2.38 | 2.34 | 2.29 | 2.25 | 2.20 | 2.15 | 2.11 | 2.06 | 2.02 | 1.97 | 1.92 | 1.88 | 1.83 | 1.79 | 1.74 | 1.69 | 1.65 |
| 64.5 | 163.8 | 2.44 | 2.39 | 2.35 | 2.30 | 2.25 | 2.21 | 2.16 | 2.12 | 2.07 | 2.02 | 1.98 | 1.93 | 1.89 | 1.84 | 1.79 | 1.75 | 1.70 |
| 65.0 | 165.1 | 2.50 | 2.45 | 2.41 | 2.36 | 2.31 | 2.27 | 2.22 | 2.18 | 2.13 | 2.08 | 2.04 | 1.99 | 1.95 | 1.90 | 1.85 | 1.81 | 1.76 |
| 65.5 | 166.4 | 2.55 | 2.51 | 2.46 | 2.42 | 2.37 | 2.33 | 2.28 | 2.23 | 2.19 | 2.14 | 2.10 | 2.05 | 2.00 | 1.96 | 1.91 | 1.87 | 1.82 |
| 66.0 | 167.6 | 2.61 | 2.57 | 2.52 | 2.47 | 2.43 | 2.38 | 2.34 | 2.29 | 2.24 | 2.20 | 2.15 | 2.11 | 2.06 | 2.01 | 1.97 | 1.92 | 1.88 |
| 66.5 | 168.9 | 2.67 | 2.62 | 2.58 | 2.53 | 2.49 | 2.44 | 2.39 | 2.35 | 2.30 | 2.26 | 2.21 | 2.16 | 2.12 | 2.07 | 2.03 | 1.98 | 1.93 |
| 67.0 | 170.2 | 2.73 | 2.68 | 2.64 | 2.59 | 2.54 | 2.50 | 2.45 | 2.41 | 2.36 | 2.31 | 2.27 | 2.22 | 2.18 | 2.13 | 2.08 | 2.04 | 1.99 |
| 67.5 | 171.5 | 2.79 | 2.74 | 2.70 | 2.65 | 2.60 | 2.56 | 2.51 | 2.47 | 2.42 | 2.37 | 2.33 | 2.28 | 2.24 | 2.19 | 2.14 | 2.10 | 2.05 |
| 68.0 | 172.7 | 2.84 | 2.80 | 2.75 | 2.70 | 2.66 | 2.61 | 2.57 | 2.52 | 2.47 | 2.43 | 2.38 | 2.34 | 2.29 | 2.24 | 2.20 | 2.15 | 2.11 |
| 68.5 | 174.0 | 2.90 | 2.85 | 2.81 | 2.76 | 2.72 | 2.67 | 2.62 | 2.58 | 2.53 | 2.49 | 2.44 | 2.39 | 2.35 | 2.30 | 2.26 | 2.21 | 2.17 |
| 69.0 | 175.3 | 2.96 | 2.91 | 2.87 | 2.82 | 2.78 | 2.73 | 2.68 | 2.64 | 2.59 | 2.55 | 2.50 | 2.45 | 2.41 | 2.36 | 2.32 | 2.27 | 2.22 |
| 69.5 | 176.5 | 3.01 | 2.97 | 2.92 | 2.88 | 2.83 | 2.78 | 2.74 | 2.69 | 2.65 | 2.60 | 2.55 | 2.51 | 2.46 | 2.42 | 2.37 | 2.32 | 2.28 |
| 70.0 | 177.8 | 3.07 | 3.03 | 2.98 | 2.93 | 2.89 | 2.84 | 2.80 | 2.75 | 2.71 | 2.66 | 2.61 | 2.57 | 2.52 | 2.48 | 2.43 | 2.38 | 2.34 |
| 70.5 | 179.1 | 3.13 | 3.09 | 3.04 | 2.99 | 2.95 | 2.90 | 2.86 | 2.81 | 2.76 | 2.72 | 2.67 | 2.63 | 2.58 | 2.53 | 2.49 | 2.44 | 2.40 |
| 71.0 | 180.3 | 3.19 | 3.14 | 3.09 | 3.05 | 3.00 | 2.96 | 2.91 | 2.86 | 2.82 | 2.77 | 2.73 | 2.68 | 2.63 | 2.59 | 2.54 | 2.50 | 2.45 |
| 71.5 | 181.6 | 3.24 | 3.20 | 3.15 | 3.11 | 3.06 | 3.02 | 2.97 | 2.92 | 2.88 | 2.83 | 2.79 | 2.74 | 2.69 | 2.65 | 2.60 | 2.56 | 2.51 |
| 72.0 | 182.9 | 3.30 | 3.26 | 3.21 | 3.17 | 3.12 | 3.07 | 3.03 | 2.98 | 2.94 | 2.89 | 2.84 | 2.80 | 2.75 | 2.71 | 2.66 | 2.61 | 2.57 |
| 72.5 | 184.2 | 3.36 | 3.32 | 3.27 | 3.22 | 3.18 | 3.13 | 3.09 | 3.04 | 3.00 | 2.95 | 2.90 | 2.86 | 2.81 | 2.77 | 2.72 | 2.67 | 2.63 |
| 73.0 | 185.4 | 3.42 | 3.37 | 3.33 | 3.28 | 3.23 | 3.19 | 3.14 | 3.10 | 3.05 | 3.00 | 2.96 | 2.91 | 2.87 | 2.82 | 2.77 | 2.73 | 2.68 |
| 73.5 | 186.7 | 3.48 | 3.43 | 3.38 | 3.34 | 3.29 | 3.25 | 3.20 | 3.15 | 3.11 | 3.06 | 3.02 | 2.97 | 2.92 | 2.88 | 2.83 | 2.79 | 2.74 |
| 74.0 | 188.0 | 3.53 | 3.49 | 3.44 | 3.40 | 3.35 | 3.31 | 3.26 | 3.21 | 3.17 | 3.12 | 3.08 | 3.03 | 2.98 | 2.94 | 2.89 | 2.85 | 2.80 |
| 74.5 | 189.2 | 3.59 | 3.54 | 3.50 | 3.45 | 3.41 | 3.36 | 3.31 | 3.27 | 3.22 | 3.18 | 3.13 | 3.08 | 3.04 | 2.99 | 2.95 | 2.90 | 2.85 |
| 75.0 | 190.5 | 3.65 | 3.60 | 3.56 | 3.51 | 3.46 | 3.42 | 3.37 | 3.33 | 3.28 | 3.23 | 3.19 | 3.14 | 3.10 | 3.05 | 3.00 | 2.96 | 2.91 |
| 75.5 | 191.8 | 3.71 | 3.66 | 3.62 | 3.57 | 3.52 | 3.48 | 3.43 | 3.39 | 3.34 | 3.29 | 3.25 | 3.20 | 3.16 | 3.11 | 3.06 | 3.02 | 2.97 |
| 76.0 | 193.0 | 3.76 | 3.72 | 3.67 | 3.62 | 3.58 | 3.53 | 3.49 | 3.44 | 3.39 | 3.35 | 3.30 | 3.26 | 3.21 | 3.16 | 3.12 | 3.07 | 3.03 |
| 76.5 | 194.3 | 3.82 | 3.77 | 3.73 | 3.68 | 3.64 | 3.59 | 3.54 | 3.50 | 3.45 | 3.41 | 3.36 | 3.31 | 3.27 | 3.22 | 3.18 | 3.13 | 3.08 |
| 77.0 | 195.6 | 3.88 | 3.83 | 3.79 | 3.74 | 3.70 | 3.65 | 3.60 | 3.56 | 3.51 | 3.47 | 3.42 | 3.37 | 3.33 | 3.28 | 3.24 | 3.19 | 3.14 |
| 77.5 | 196.9 | 3.94 | 3.89 | 3.85 | 3.80 | 3.75 | 3.71 | 3.66 | 3.62 | 3.57 | 3.52 | 3.48 | 3.43 | 3.39 | 3.34 | 3.29 | 3.25 | 3.20 |
| 78.0 | 198.1 | 3.99 | 3.95 | 3.90 | 3.85 | 3.81 | 3.76 | 3.72 | 3.67 | 3.62 | 3.58 | 3.53 | 3.49 | 3.44 | 3.40 | 3.35 | 3.30 | 3.26 |
| 78.5 | 199.4 | 4.05 | 4.01 | 3.96 | 3.91 | 3.87 | 3.82 | 3.78 | 3.73 | 3.68 | 3.64 | 3.59 | 3.55 | 3.50 | 3.45 | 3.41 | 3.36 | 3.32 |
| 79.0 | 200.7 | 4.11 | 4.06 | 4.02 | 3.97 | 3.93 | 3.88 | 3.83 | 3.79 | 3.74 | 3.70 | 3.65 | 3.60 | 3.56 | 3.51 | 3.47 | 3.42 | 3.37 |
| 79.5 | 201.9 | 4.16 | 4.12 | 4.07 | 4.03 | 3.98 | 3.93 | 3.89 | 3.84 | 3.80 | 3.75 | 3.71 | 3.66 | 3.61 | 3.57 | 3.52 | 3.48 | 3.43 |
| 80.0 | 203.2 | 4.22 | 4.18 | 4.13 | 4.09 | 4.04 | 3.99 | 3.95 | 3.90 | 3.86 | 3.81 | 3.76 | 3.72 | 3.67 | 3.63 | 3.58 | 3.53 | 3.49 |
| 80.5 | 204.5 | 4.28 | 4.24 | 4.19 | 4.14 | 4.10 | 4.05 | 4.01 | 3.96 | 3.91 | 3.87 | 3.82 | 3.78 | 3.73 | 3.69 | 3.64 | 3.59 | 3.55 |
| 81.0 | 205.7 | 4.34 | 4.29 | 4.24 | 4.20 | 4.15 | 4.11 | 4.06 | 4.02 | 3.97 | 3.92 | 3.88 | 3.83 | 3.79 | 3.74 | 3.69 | 3.65 | 3.60 |
| 81.5 | 207.0 | 4.40 | 4.35 | 4.30 | 4.26 | 4.21 | 4.17 | 4.12 | 4.07 | 4.03 | 3.98 | 3.94 | 3.89 | 3.84 | 3.80 | 3.75 | 3.71 | 3.66 |
| 82.0 | 208.3 | 4.45 | 4.41 | 4.36 | 4.32 | 4.27 | 4.22 | 4.18 | 4.13 | 4.09 | 4.04 | 4.00 | 3.95 | 3.90 | 3.86 | 3.81 | 3.77 | 3.72 |
| 82.5 | 209.6 | 4.51 | 4.47 | 4.42 | 4.38 | 4.33 | 4.28 | 4.24 | 4.19 | 4.15 | 4.10 | 4.05 | 4.01 | 3.96 | 3.92 | 3.87 | 3.82 | 3.78 |
Table 8—Navajo Females FVC Lower Limit of Normal Values, Crapo, et al. (1988)
[Reference value equation: [−2.9769 + (−0.0207)(age) + (0.0448)(height)] × (0.815)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 2.40 | 2.37 | 2.34 | 2.30 | 2.27 | 2.23 | 2.20 | 2.17 | 2.13 | 2.10 | 2.07 | 2.03 | 2.00 | 1.96 | 1.93 | 1.90 | 1.86 |
| 61.5 | 156.2 | 2.45 | 2.42 | 2.38 | 2.35 | 2.32 | 2.28 | 2.25 | 2.21 | 2.18 | 2.15 | 2.11 | 2.08 | 2.05 | 2.01 | 1.98 | 1.94 | 1.91 |
| 62.0 | 157.5 | 2.50 | 2.46 | 2.43 | 2.40 | 2.36 | 2.33 | 2.30 | 2.26 | 2.23 | 2.19 | 2.16 | 2.13 | 2.09 | 2.06 | 2.03 | 1.99 | 1.96 |
| 62.5 | 158.8 | 2.55 | 2.51 | 2.48 | 2.44 | 2.41 | 2.38 | 2.34 | 2.31 | 2.28 | 2.24 | 2.21 | 2.17 | 2.14 | 2.11 | 2.07 | 2.04 | 2.01 |
| 63.0 | 160.0 | 2.59 | 2.56 | 2.52 | 2.49 | 2.45 | 2.42 | 2.39 | 2.35 | 2.32 | 2.29 | 2.25 | 2.22 | 2.18 | 2.15 | 2.12 | 2.08 | 2.05 |
| 63.5 | 161.3 | 2.64 | 2.60 | 2.57 | 2.54 | 2.50 | 2.47 | 2.43 | 2.40 | 2.37 | 2.33 | 2.30 | 2.27 | 2.23 | 2.20 | 2.16 | 2.13 | 2.10 |
| 64.0 | 162.6 | 2.68 | 2.65 | 2.62 | 2.58 | 2.55 | 2.52 | 2.48 | 2.45 | 2.41 | 2.38 | 2.35 | 2.31 | 2.28 | 2.25 | 2.21 | 2.18 | 2.14 |
| 64.5 | 163.8 | 2.73 | 2.69 | 2.66 | 2.63 | 2.59 | 2.56 | 2.53 | 2.49 | 2.46 | 2.42 | 2.39 | 2.36 | 2.32 | 2.29 | 2.26 | 2.22 | 2.19 |
| 65.0 | 165.1 | 2.78 | 2.74 | 2.71 | 2.67 | 2.64 | 2.61 | 2.57 | 2.54 | 2.51 | 2.47 | 2.44 | 2.40 | 2.37 | 2.34 | 2.30 | 2.27 | 2.24 |
| 65.5 | 166.4 | 2.82 | 2.79 | 2.75 | 2.72 | 2.69 | 2.65 | 2.62 | 2.59 | 2.55 | 2.52 | 2.48 | 2.45 | 2.42 | 2.38 | 2.35 | 2.32 | 2.28 |
| 66.0 | 167.6 | 2.87 | 2.83 | 2.80 | 2.77 | 2.73 | 2.70 | 2.67 | 2.63 | 2.60 | 2.56 | 2.53 | 2.50 | 2.46 | 2.43 | 2.40 | 2.36 | 2.33 |
| 66.5 | 168.9 | 2.91 | 2.88 | 2.85 | 2.81 | 2.78 | 2.75 | 2.71 | 2.68 | 2.64 | 2.61 | 2.58 | 2.54 | 2.51 | 2.48 | 2.44 | 2.41 | 2.37 |
| 67.0 | 170.2 | 2.96 | 2.93 | 2.89 | 2.86 | 2.83 | 2.79 | 2.76 | 2.73 | 2.69 | 2.66 | 2.62 | 2.59 | 2.56 | 2.52 | 2.49 | 2.46 | 2.42 |
| 67.5 | 171.5 | 3.01 | 2.98 | 2.94 | 2.91 | 2.87 | 2.84 | 2.81 | 2.77 | 2.74 | 2.71 | 2.67 | 2.64 | 2.60 | 2.57 | 2.54 | 2.50 | 2.47 |
| 68.0 | 172.7 | 3.05 | 3.02 | 2.99 | 2.95 | 2.92 | 2.88 | 2.85 | 2.82 | 2.78 | 2.75 | 2.72 | 2.68 | 2.65 | 2.61 | 2.58 | 2.55 | 2.51 |
| 68.5 | 174.0 | 3.10 | 3.07 | 3.03 | 3.00 | 2.97 | 2.93 | 2.90 | 2.86 | 2.83 | 2.80 | 2.76 | 2.73 | 2.70 | 2.66 | 2.63 | 2.59 | 2.56 |
| 69.0 | 175.3 | 3.15 | 3.11 | 3.08 | 3.05 | 3.01 | 2.98 | 2.95 | 2.91 | 2.88 | 2.84 | 2.81 | 2.78 | 2.74 | 2.71 | 2.68 | 2.64 | 2.61 |
| 69.5 | 176.5 | 3.19 | 3.16 | 3.12 | 3.09 | 3.06 | 3.02 | 2.99 | 2.96 | 2.92 | 2.89 | 2.85 | 2.82 | 2.79 | 2.75 | 2.72 | 2.69 | 2.65 |
| 70.0 | 177.8 | 3.24 | 3.21 | 3.17 | 3.14 | 3.10 | 3.07 | 3.04 | 3.00 | 2.97 | 2.94 | 2.90 | 2.87 | 2.83 | 2.80 | 2.77 | 2.73 | 2.70 |
| 70.5 | 179.1 | 3.29 | 3.25 | 3.22 | 3.19 | 3.15 | 3.12 | 3.08 | 3.05 | 3.02 | 2.98 | 2.95 | 2.92 | 2.88 | 2.85 | 2.81 | 2.78 | 2.75 |
| 71.0 | 180.3 | 3.33 | 3.30 | 3.26 | 3.23 | 3.20 | 3.16 | 3.13 | 3.09 | 3.06 | 3.03 | 2.99 | 2.96 | 2.93 | 2.89 | 2.86 | 2.82 | 2.79 |
| 71.5 | 181.6 | 3.38 | 3.34 | 3.31 | 3.28 | 3.24 | 3.21 | 3.18 | 3.14 | 3.11 | 3.07 | 3.04 | 3.01 | 2.97 | 2.94 | 2.91 | 2.87 | 2.84 |
| 72.0 | 182.9 | 3.43 | 3.39 | 3.36 | 3.32 | 3.29 | 3.26 | 3.22 | 3.19 | 3.16 | 3.12 | 3.09 | 3.05 | 3.02 | 2.99 | 2.95 | 2.92 | 2.89 |
| 72.5 | 184.2 | 3.47 | 3.44 | 3.41 | 3.37 | 3.34 | 3.30 | 3.27 | 3.24 | 3.20 | 3.17 | 3.14 | 3.10 | 3.07 | 3.03 | 3.00 | 2.97 | 2.93 |
| 73.0 | 185.4 | 3.52 | 3.48 | 3.45 | 3.42 | 3.38 | 3.35 | 3.31 | 3.28 | 3.25 | 3.21 | 3.18 | 3.15 | 3.11 | 3.08 | 3.04 | 3.01 | 2.98 |
| 73.5 | 186.7 | 3.56 | 3.53 | 3.50 | 3.46 | 3.43 | 3.40 | 3.36 | 3.33 | 3.29 | 3.26 | 3.23 | 3.19 | 3.16 | 3.13 | 3.09 | 3.06 | 3.02 |
| 74.0 | 188.0 | 3.61 | 3.58 | 3.54 | 3.51 | 3.48 | 3.44 | 3.41 | 3.38 | 3.34 | 3.31 | 3.27 | 3.24 | 3.21 | 3.17 | 3.14 | 3.11 | 3.07 |
| 74.5 | 189.2 | 3.66 | 3.62 | 3.59 | 3.55 | 3.52 | 3.49 | 3.45 | 3.42 | 3.39 | 3.35 | 3.32 | 3.28 | 3.25 | 3.22 | 3.18 | 3.15 | 3.12 |
| 75.0 | 190.5 | 3.70 | 3.67 | 3.64 | 3.60 | 3.57 | 3.53 | 3.50 | 3.47 | 3.43 | 3.40 | 3.37 | 3.33 | 3.30 | 3.26 | 3.23 | 3.20 | 3.16 |
| 75.5 | 191.8 | 3.75 | 3.72 | 3.68 | 3.65 | 3.62 | 3.58 | 3.55 | 3.51 | 3.48 | 3.45 | 3.41 | 3.38 | 3.35 | 3.31 | 3.28 | 3.24 | 3.21 |
| 76.0 | 193.0 | 3.79 | 3.76 | 3.73 | 3.69 | 3.66 | 3.63 | 3.59 | 3.56 | 3.52 | 3.49 | 3.46 | 3.42 | 3.39 | 3.36 | 3.32 | 3.29 | 3.25 |
| 76.5 | 194.3 | 3.84 | 3.81 | 3.77 | 3.74 | 3.71 | 3.67 | 3.64 | 3.61 | 3.57 | 3.54 | 3.50 | 3.47 | 3.44 | 3.40 | 3.37 | 3.34 | 3.30 |
| 77.0 | 195.6 | 3.89 | 3.86 | 3.82 | 3.79 | 3.75 | 3.72 | 3.69 | 3.65 | 3.62 | 3.59 | 3.55 | 3.52 | 3.48 | 3.45 | 3.42 | 3.38 | 3.35 |
| 77.5 | 196.9 | 3.94 | 3.90 | 3.87 | 3.84 | 3.80 | 3.77 | 3.73 | 3.70 | 3.67 | 3.63 | 3.60 | 3.57 | 3.53 | 3.50 | 3.46 | 3.43 | 3.40 |
| 78.0 | 198.1 | 3.98 | 3.95 | 3.91 | 3.88 | 3.85 | 3.81 | 3.78 | 3.74 | 3.71 | 3.68 | 3.64 | 3.61 | 3.58 | 3.54 | 3.51 | 3.47 | 3.44 |
| 78.5 | 199.4 | 4.03 | 3.99 | 3.96 | 3.93 | 3.89 | 3.86 | 3.83 | 3.79 | 3.76 | 3.72 | 3.69 | 3.66 | 3.62 | 3.59 | 3.56 | 3.52 | 3.49 |
| 79.0 | 200.7 | 4.08 | 4.04 | 4.01 | 3.97 | 3.94 | 3.91 | 3.87 | 3.84 | 3.81 | 3.77 | 3.74 | 3.70 | 3.67 | 3.64 | 3.60 | 3.57 | 3.54 |
| 79.5 | 201.9 | 4.12 | 4.09 | 4.05 | 4.02 | 3.98 | 3.95 | 3.92 | 3.88 | 3.85 | 3.82 | 3.78 | 3.75 | 3.71 | 3.68 | 3.65 | 3.61 | 3.58 |
| 80.0 | 203.2 | 4.17 | 4.13 | 4.10 | 4.07 | 4.03 | 4.00 | 3.96 | 3.93 | 3.90 | 3.86 | 3.83 | 3.80 | 3.76 | 3.73 | 3.69 | 3.66 | 3.63 |
| 80.5 | 204.5 | 4.21 | 4.18 | 4.15 | 4.11 | 4.08 | 4.05 | 4.01 | 3.98 | 3.94 | 3.91 | 3.88 | 3.84 | 3.81 | 3.78 | 3.74 | 3.71 | 3.67 |
| 81.0 | 205.7 | 4.26 | 4.22 | 4.19 | 4.16 | 4.12 | 4.09 | 4.06 | 4.02 | 3.99 | 3.95 | 3.92 | 3.89 | 3.85 | 3.82 | 3.79 | 3.75 | 3.72 |
| 81.5 | 207.0 | 4.31 | 4.27 | 4.24 | 4.20 | 4.17 | 4.14 | 4.10 | 4.07 | 4.04 | 4.00 | 3.97 | 3.93 | 3.90 | 3.87 | 3.83 | 3.80 | 3.77 |
| 82.0 | 208.3 | 4.35 | 4.32 | 4.29 | 4.25 | 4.22 | 4.18 | 4.15 | 4.12 | 4.08 | 4.05 | 4.02 | 3.98 | 3.95 | 3.91 | 3.88 | 3.85 | 3.81 |
| 82.5 | 209.6 | 4.40 | 4.37 | 4.33 | 4.30 | 4.27 | 4.23 | 4.20 | 4.16 | 4.13 | 4.10 | 4.06 | 4.03 | 4.00 | 3.96 | 3.93 | 3.89 | 3.86 |
Table 8A—Navajo Females FEV-1 Lower Limit of Normal Values, Crapo, et al. (1988)
[Reference value equation: [−1.8110 + (−0.0233)(age) + (0.0347)(height)] × (0.808)]
| Height in inches | Height in centimeters | Age in years | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 49 | 51 | 53 | 55 | 57 | 59 | 61 | 63 | 65 | 67 | 69 | 71 | 73 | 75 | 77 | 79 | 81 | ||
| 61.0 | 154.9 | 1.96 | 1.92 | 1.88 | 1.84 | 1.81 | 1.77 | 1.73 | 1.69 | 1.66 | 1.62 | 1.58 | 1.54 | 1.51 | 1.47 | 1.43 | 1.39 | 1.35 |
| 61.5 | 156.2 | 1.99 | 1.96 | 1.92 | 1.88 | 1.84 | 1.81 | 1.77 | 1.73 | 1.69 | 1.65 | 1.62 | 1.58 | 1.54 | 1.50 | 1.47 | 1.43 | 1.39 |
| 62.0 | 157.5 | 2.03 | 1.99 | 1.95 | 1.92 | 1.88 | 1.84 | 1.80 | 1.77 | 1.73 | 1.69 | 1.65 | 1.62 | 1.58 | 1.54 | 1.50 | 1.47 | 1.43 |
| 62.5 | 158.8 | 2.07 | 2.03 | 1.99 | 1.95 | 1.92 | 1.88 | 1.84 | 1.80 | 1.77 | 1.73 | 1.69 | 1.65 | 1.61 | 1.58 | 1.54 | 1.50 | 1.46 |
| 63.0 | 160.0 | 2.10 | 2.06 | 2.02 | 1.99 | 1.95 | 1.91 | 1.87 | 1.84 | 1.80 | 1.76 | 1.72 | 1.69 | 1.65 | 1.61 | 1.57 | 1.54 | 1.50 |
| 63.5 | 161.3 | 2.14 | 2.10 | 2.06 | 2.02 | 1.99 | 1.95 | 1.91 | 1.87 | 1.84 | 1.80 | 1.76 | 1.72 | 1.68 | 1.65 | 1.61 | 1.57 | 1.53 |
| 64.0 | 162.6 | 2.17 | 2.14 | 2.10 | 2.06 | 2.02 | 1.98 | 1.95 | 1.91 | 1.87 | 1.83 | 1.80 | 1.76 | 1.72 | 1.68 | 1.65 | 1.61 | 1.57 |
| 64.5 | 163.8 | 2.21 | 2.17 | 2.13 | 2.09 | 2.06 | 2.02 | 1.98 | 1.94 | 1.91 | 1.87 | 1.83 | 1.79 | 1.75 | 1.72 | 1.68 | 1.64 | 1.60 |
| 65.0 | 165.1 | 2.24 | 2.21 | 2.17 | 2.13 | 2.09 | 2.05 | 2.02 | 1.98 | 1.94 | 1.90 | 1.87 | 1.83 | 1.79 | 1.75 | 1.72 | 1.68 | 1.64 |
| 65.5 | 166.4 | 2.28 | 2.24 | 2.20 | 2.17 | 2.13 | 2.09 | 2.05 | 2.02 | 1.98 | 1.94 | 1.90 | 1.86 | 1.83 | 1.79 | 1.75 | 1.71 | 1.68 |
| 66.0 | 167.6 | 2.31 | 2.28 | 2.24 | 2.20 | 2.16 | 2.13 | 2.09 | 2.05 | 2.01 | 1.98 | 1.94 | 1.90 | 1.86 | 1.82 | 1.79 | 1.75 | 1.71 |
| 66.5 | 168.9 | 2.35 | 2.31 | 2.27 | 2.24 | 2.20 | 2.16 | 2.12 | 2.09 | 2.05 | 2.01 | 1.97 | 1.94 | 1.90 | 1.86 | 1.82 | 1.79 | 1.75 |
| 67.0 | 170.2 | 2.39 | 2.35 | 2.31 | 2.27 | 2.24 | 2.20 | 2.16 | 2.12 | 2.08 | 2.05 | 2.01 | 1.97 | 1.93 | 1.90 | 1.86 | 1.82 | 1.78 |
| 67.5 | 171.5 | 2.42 | 2.39 | 2.35 | 2.31 | 2.27 | 2.23 | 2.20 | 2.16 | 2.12 | 2.08 | 2.05 | 2.01 | 1.97 | 1.93 | 1.90 | 1.86 | 1.82 |
| 68.0 | 172.7 | 2.46 | 2.42 | 2.38 | 2.34 | 2.31 | 2.27 | 2.23 | 2.19 | 2.16 | 2.12 | 2.08 | 2.04 | 2.00 | 1.97 | 1.93 | 1.89 | 1.85 |
| 68.5 | 174.0 | 2.49 | 2.46 | 2.42 | 2.38 | 2.34 | 2.30 | 2.27 | 2.23 | 2.19 | 2.15 | 2.12 | 2.08 | 2.04 | 2.00 | 1.97 | 1.93 | 1.89 |
| 69.0 | 175.3 | 2.53 | 2.49 | 2.45 | 2.42 | 2.38 | 2.34 | 2.30 | 2.27 | 2.23 | 2.19 | 2.15 | 2.12 | 2.08 | 2.04 | 2.00 | 1.96 | 1.93 |
| 69.5 | 176.5 | 2.56 | 2.53 | 2.49 | 2.45 | 2.41 | 2.37 | 2.34 | 2.30 | 2.26 | 2.22 | 2.19 | 2.15 | 2.11 | 2.07 | 2.04 | 2.00 | 1.96 |
| 70.0 | 177.8 | 2.60 | 2.56 | 2.52 | 2.49 | 2.45 | 2.41 | 2.37 | 2.34 | 2.30 | 2.26 | 2.22 | 2.19 | 2.15 | 2.11 | 2.07 | 2.03 | 2.00 |
| 70.5 | 179.1 | 2.64 | 2.60 | 2.56 | 2.52 | 2.49 | 2.45 | 2.41 | 2.37 | 2.33 | 2.30 | 2.26 | 2.22 | 2.18 | 2.15 | 2.11 | 2.07 | 2.03 |
| 71.0 | 180.3 | 2.67 | 2.63 | 2.59 | 2.56 | 2.52 | 2.48 | 2.44 | 2.41 | 2.37 | 2.33 | 2.29 | 2.26 | 2.22 | 2.18 | 2.14 | 2.10 | 2.07 |
| 71.5 | 181.6 | 2.71 | 2.67 | 2.63 | 2.59 | 2.56 | 2.52 | 2.48 | 2.44 | 2.40 | 2.37 | 2.33 | 2.29 | 2.25 | 2.22 | 2.18 | 2.14 | 2.10 |
| 72.0 | 182.9 | 2.74 | 2.70 | 2.67 | 2.63 | 2.59 | 2.55 | 2.52 | 2.48 | 2.44 | 2.40 | 2.37 | 2.33 | 2.29 | 2.25 | 2.22 | 2.18 | 2.14 |
| 72.5 | 184.2 | 2.78 | 2.74 | 2.70 | 2.67 | 2.63 | 2.59 | 2.55 | 2.52 | 2.48 | 2.44 | 2.40 | 2.36 | 2.33 | 2.29 | 2.25 | 2.21 | 2.18 |
| 73.0 | 185.4 | 2.81 | 2.77 | 2.74 | 2.70 | 2.66 | 2.62 | 2.59 | 2.55 | 2.51 | 2.47 | 2.44 | 2.40 | 2.36 | 2.32 | 2.29 | 2.25 | 2.21 |
| 73.5 | 186.7 | 2.85 | 2.81 | 2.77 | 2.74 | 2.70 | 2.66 | 2.62 | 2.59 | 2.55 | 2.51 | 2.47 | 2.43 | 2.40 | 2.36 | 2.32 | 2.28 | 2.25 |
| 74.0 | 188.0 | 2.89 | 2.85 | 2.81 | 2.77 | 2.73 | 2.70 | 2.66 | 2.62 | 2.58 | 2.55 | 2.51 | 2.47 | 2.43 | 2.40 | 2.36 | 2.32 | 2.28 |
| 74.5 | 189.2 | 2.92 | 2.88 | 2.84 | 2.81 | 2.77 | 2.73 | 2.69 | 2.66 | 2.62 | 2.58 | 2.54 | 2.50 | 2.47 | 2.43 | 2.39 | 2.35 | 2.32 |
| 75.0 | 190.5 | 2.96 | 2.92 | 2.88 | 2.84 | 2.80 | 2.77 | 2.73 | 2.69 | 2.65 | 2.62 | 2.58 | 2.54 | 2.50 | 2.47 | 2.43 | 2.39 | 2.35 |
| 75.5 | 191.8 | 2.99 | 2.95 | 2.92 | 2.88 | 2.84 | 2.80 | 2.77 | 2.73 | 2.69 | 2.65 | 2.62 | 2.58 | 2.54 | 2.50 | 2.46 | 2.43 | 2.39 |
| 76.0 | 193.0 | 3.03 | 2.99 | 2.95 | 2.91 | 2.87 | 2.84 | 2.80 | 2.76 | 2.72 | 2.69 | 2.65 | 2.61 | 2.57 | 2.54 | 2.50 | 2.46 | 2.42 |
| 76.5 | 194.3 | 3.06 | 3.02 | 2.99 | 2.95 | 2.91 | 2.87 | 2.84 | 2.80 | 2.76 | 2.72 | 2.69 | 2.65 | 2.61 | 2.57 | 2.53 | 2.50 | 2.46 |
| 77.0 | 195.6 | 3.10 | 3.06 | 3.02 | 2.99 | 2.95 | 2.91 | 2.87 | 2.83 | 2.80 | 2.76 | 2.72 | 2.68 | 2.65 | 2.61 | 2.57 | 2.53 | 2.50 |
| 77.5 | 196.9 | 3.13 | 3.10 | 3.06 | 3.02 | 2.98 | 2.95 | 2.91 | 2.87 | 2.83 | 2.80 | 2.76 | 2.72 | 2.68 | 2.65 | 2.61 | 2.57 | 2.53 |
| 78.0 | 198.1 | 3.17 | 3.13 | 3.09 | 3.06 | 3.02 | 2.98 | 2.94 | 2.90 | 2.87 | 2.83 | 2.79 | 2.75 | 2.72 | 2.68 | 2.64 | 2.60 | 2.57 |
| 78.5 | 199.4 | 3.20 | 3.17 | 3.13 | 3.09 | 3.05 | 3.02 | 2.98 | 2.94 | 2.90 | 2.87 | 2.83 | 2.79 | 2.75 | 2.72 | 2.68 | 2.64 | 2.60 |
| 79.0 | 200.7 | 3.24 | 3.20 | 3.17 | 3.13 | 3.09 | 3.05 | 3.02 | 2.98 | 2.94 | 2.90 | 2.86 | 2.83 | 2.79 | 2.75 | 2.71 | 2.68 | 2.64 |
| 79.5 | 201.9 | 3.28 | 3.24 | 3.20 | 3.16 | 3.12 | 3.09 | 3.05 | 3.01 | 2.97 | 2.94 | 2.90 | 2.86 | 2.82 | 2.79 | 2.75 | 2.71 | 2.67 |
| 80.0 | 203.2 | 3.31 | 3.27 | 3.24 | 3.20 | 3.16 | 3.12 | 3.09 | 3.05 | 3.01 | 2.97 | 2.93 | 2.90 | 2.86 | 2.82 | 2.78 | 2.75 | 2.71 |
| 80.5 | 204.5 | 3.35 | 3.31 | 3.27 | 3.23 | 3.20 | 3.16 | 3.12 | 3.08 | 3.05 | 3.01 | 2.97 | 2.93 | 2.90 | 2.86 | 2.82 | 2.78 | 2.75 |
| 81.0 | 205.7 | 3.38 | 3.34 | 3.31 | 3.27 | 3.23 | 3.19 | 3.16 | 3.12 | 3.08 | 3.04 | 3.01 | 2.97 | 2.93 | 2.89 | 2.85 | 2.82 | 2.78 |
| 81.5 | 207.0 | 3.42 | 3.38 | 3.34 | 3.31 | 3.27 | 3.23 | 3.19 | 3.15 | 3.12 | 3.08 | 3.04 | 3.00 | 2.97 | 2.93 | 2.89 | 2.85 | 2.82 |
| 82.0 | 208.3 | 3.45 | 3.42 | 3.38 | 3.34 | 3.30 | 3.27 | 3.23 | 3.19 | 3.15 | 3.12 | 3.08 | 3.04 | 3.00 | 2.96 | 2.93 | 2.89 | 2.85 |
| 82.5 | 209.6 | 3.49 | 3.45 | 3.42 | 3.38 | 3.34 | 3.30 | 3.26 | 3.23 | 3.19 | 3.15 | 3.11 | 3.08 | 3.04 | 3.00 | 2.96 | 2.93 | 2.89 |
Appendix B to Part 79—Blood-Gas Study Tables
For arterial blood-gas studies performed at test locations between sea level and 2,999 feet above sea level:
| Arterial pCO | and arterial pO |
|---|---|
| 25 mmHg or below | 80 mmHg or below. |
| 26 mmHg | 79 mmHg or below. |
| 27 mmHg | 78 mmHg or below. |
| 28 mmHg | 77 mmHg or below. |
| 29 mmHg | 76 mmHg or below. |
| 30 mmHg | 75 mmHg or below. |
| 31 mmHg | 74 mmHg or below. |
| 32 mmHg | 73 mmHg or below. |
| 33 mmHg | 72 mmHg or below. |
| 34 mmHg | 71 mmHg or below. |
| 35 mmHg | 70 mmHg or below. |
| 36 mmHg | 69 mmHg or below. |
| 37 mmHg | 68 mmHg or below. |
| 38 mmHg | 67 mmHg or below. |
| 39 mmHg | 66 mmHg or below. |
| 40-49 mmHg | 65 mmHg or below. |
| Above 50 mmHg | Any value. |
For arterial blood-gas studies performed at test locations above 3,000 feet above sea level:
| Arterial pCO | and arterial pO |
|---|---|
| 25 mmHg or below | 75 mmHg or below. |
| 26 mmHg | 74 mmHg or below. |
| 27 mmHg | 73 mmHg or below. |
| 28 mmHg | 72 mmHg or below. |
| 29 mmHg | 71 mmHg or below. |
| 30 mmHg | 70 mmHg or below. |
| 31 mmHg | 69 mmHg or below. |
| 32 mmHg | 68 mmHg or below. |
| 33 mmHg | 67 mmHg or below. |
| 34 mmHg | 66 mmHg or below. |
| 35 mmHg | 65 mmHg or below. |
| 36 mmHg | 64 mmHg or below. |
| 37 mmHg | 63 mmHg or below. |
| 38 mmHg | 62 mmHg or below. |
| 39 mmHg | 61 mmHg or below. |
| 40-49 mmHg | 60 mmHg or below. |
| Above 50 mmHg | Any value. |
Appendix C to Part 79—Radiation Exposure Compensation Act Offset Worksheet—On Site Participants
Radiation Exposure Compensation Act Offset Worksheet—On Site Participants
[Present CPI = 185.20]
| VA payments year | Payment | Indicated year CPI | Claim # * inflated PV |
|---|---|---|---|
| 1960 | 29.60 | $0.00 | |
| 1961 | 29.90 | $0.00 | |
| 1962 | 30.20 | $0.00 | |
| 1963 | 30.60 | $0.00 | |
| 1964 | 31.00 | $0.00 | |
| 1965 | 31.50 | $0.00 | |
| 1966 | 32.40 | $0.00 | |
| 1967 | 33.40 | $0.00 | |
| 1968 | 34.80 | $0.00 | |
| 1969 | 36.70 | $0.00 | |
| 1970 | 38.80 | $0.00 | |
| 1971 | 40.50 | $0.00 | |
| 1972 | 41.80 | $0.00 | |
| 1973 | 44.40 | $0.00 | |
| 1974 | 49.30 | $0.00 | |
| 1975 | 53.80 | $0.00 | |
| 1976 | 56.90 | $0.00 | |
| 1977 | 60.60 | $0.00 | |
| 1978 | 65.20 | $0.00 | |
| 1979 | 72.60 | $0.00 | |
| 1980 | 82.40 | $0.00 | |
| 1981 | 90.90 | $0.00 | |
| 1982 | 96.50 | $0.00 | |
| 1983 | 99.60 | $0.00 | |
| 1984 | 103.90 | $0.00 | |
| 1985 | 107.60 | $0.00 | |
| 1986 | 109.60 | $0.00 | |
| 1987 | 113.60 | $0.00 | |
| 1988 | 118.30 | $0.00 | |
| 1989 | 124.00 | $0.00 | |
| 1990 | 130.70 | $0.00 | |
| 1991 | 136.20 | $0.00 | |
| 1992 | 140.30 | $0.00 | |
| 1993 | 144.50 | $0.00 | |
| 1994 | 148.20 | $0.00 | |
| 1995 | 152.40 | $0.00 | |
| 1996 | 156.90 | $0.00 | |
| 1997 | 160.50 | $0.00 | |
| 1998 | 163.00 | $0.00 | |
| 1999 | 166.60 | $0.00 | |
| 2000 | 172.20 | $0.00 | |
| 2001 | 177.10 | $0.00 | |
| 2002 | 179.90 | $0.00 | |
| 2003 | 184.00 | $0.00 | |
| 2004 | |||
| Total, Column 4 | “Actuarial Present Value” of past payments = | $0.00 | |
| NET AMOUNT OWED CLAIMANT ($75,000 less APV) | $75,000.00 | ||
| Past CPI | |||
| xxxx | ?? | ||
* Inflated PV is computed as {payment X (current CPI÷Year’s CPI)}.
PART 80—FOREIGN CORRUPT PRACTICES ACT OPINION PROCEDURE
§ 80.1 Purpose.
These procedures enable issuers and domestic concerns to obtain an opinion of the Attorney General as to whether certain specified, prospective—not hypothetical—conduct conforms with the Department’s present enforcement policy regarding the antibribery provisions of the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. 78dd-1 and 78dd-2. An opinion issued pursuant to these procedures is a Foreign Corrupt Practices Act opinion (hereinafter FCPA Opinion).
§ 80.2 Submission requirements.
A request for an FCPA Opinion must be submitted in writing. An original and five copies of the request should be addressed to the Assistant Attorney General in charge of the Criminal Division, Attention: FCPA Opinion Group. The mailing address is P.O. Box 28188, Central Station, Washington, DC 20038. The address for hand delivery is room 2424, Bond Building, 1400 New York Avenue, NW., Washington, DC 20005.
§ 80.3 Transaction.
The entire transaction which is the subject of the request must be an actual—not a hypothetical—transaction but need not involve only prospective conduct. However, a request will not be considered unless that portion of the transaction for which an opinion is sought involves only prospective conduct. An executed contract is not a prerequisite and, in most—if not all—instances, an opinion request should be made prior to the requestor’s commitment to proceed with a transaction.
§ 80.4 Issuer or domestic concern.
The request must be submitted by an issuer or domestic concern within the meaning of 15 U.S.C. 78dd-1 and 78dd-2, respectively, that is also a party to the transaction which is the subject of the request.
§ 80.5 Affected parties.
An FCPA Opinion shall have no application to any party which does not join in the request for the opinion.
§ 80.6 General requirements.
Each request shall be specific and must be accompanied by all relevant and material information bearing on the conduct for which an FCPA Opinion is requested and on the circumstances of the prospective conduct, including background information, complete copies of all operative documents, and detailed statements of all collateral or oral understandings, if any. The requesting issuer or domestic concern is under an affirmative obligation to make full and true disclosure with respect to the conduct for which an opinion is requested. Each request on behalf of a requesting issuer or corporate domestic concern must be signed by an appropriate senior officer with operational responsibility for the conduct that is the subject of the request and who has been designated by the requestor’s chief executive officer to sign the opinion request. In appropriate cases, the Department of Justice may require the chief executive officer of each requesting issuer or corporate domestic concern to sign the request. All requests of other domestic concerns must also be signed. The person signing the request must certify that it contains a true, correct and complete disclosure with respect to the proposed conduct and the circumstances of the conduct.
§ 80.7 Additional information.
If an issuer’s or domestic concern’s submission does not contain all of the information required by § 80.6, the Department of Justice may request whatever additional information or documents it deems necessary to review the matter. The Department must do so within 30 days of receipt of the opinion request, or, in the case of an incomplete response to a previous request for additional information, within 30 days of receipt of such response. Each issuer or domestic concern requesting an FCPA Opinion must promptly provide the information requested. A request will not be deemed complete until the Department of Justice receives such additional information. Such additional information, if furnished orally, shall be promptly confirmed in writing, signed by the same person or officer who signed the initial request and certified by this person or officer to be a true, correct and complete disclosure of the requested information. In connection with any request for an FCPA Opinion, the Department of Justice may conduct whatever independent investigation it believes appropriate.
§ 80.8 Attorney General opinion.
The Attorney General or his designee shall, within 30 days after receiving a request that complies with the foregoing procedure, respond to the request by issuing an opinion that states whether the prospective conduct, would, for purposes of the Department of Justice’s present enforcement policy, violate 15 U.S.C. 78dd-1 and 78dd-2. The Department of Justice may also take such other positions or action as it considers appropriate. Should the Department request additional information, the Department’s response shall be made within 30 days after receipt of such additional information.
§ 80.9 No oral opinion.
No oral clearance, release or other statement purporting to limit the enforcement discretion of the Department of Justice may be given. The requesting issuer or domestic concern may rely only upon a written FCPA Opinion letter signed by the Attorney General or his designee.
§ 80.10 Rebuttable presumption.
In any action brought under the applicable provisions of 15 U.S.C. 78dd-1 and 78dd-2, there shall be a rebuttable presumption that a requestor’s conduct, which is specified in a request, and for which the Attorney General has issued an opinion that such conduct is in conformity with the Department’s present enforcement policy, is in compliance with those provisions of the FCPA. Such a presumption may be rebutted by a preponderance of the evidence. In considering the presumption, a court, in accordance with the statute, shall weigh all relevant factors, including but not limited to whether information submitted to the Attorney General was accurate and complete and whether the activity was within the scope of the conduct specified in any request received by the Attorney General.
§ 80.11 Effect of FCPA Opinion.
Except as specified in § 80.10, an FCPA Opinion will not bind or obligate any agency other than the Department of Justice. It will not affect the requesting issuer’s or domestic concern’s obligations to any other agency, or under any statutory or regulatory provision other than those specifically cited in the particular FCPA Opinion.
§ 80.12 Accounting requirements.
Neither the submission of a request for an FCPA Opinion, its pendency, nor the issuance of an FCPA Opinion, shall in any way alter the responsibility of an issuer to comply with the accounting requirements of 15 U.S.C. 78m(b)(2) and (3).
§ 80.13 Scope of FCPA Opinion.
An FCPA Opinion will state only the Attorney General’s opinion as to whether the prospective conduct would violate the Department’s present enforcement policy under 15 U.S.C. 78dd-1 and 78dd-2. If the conduct for which an FCPA Opinion is requested is subject to approval by any other agency, such FCPA Opinion shall in no way be taken to indicate the Department of Justice’s views on the legal or factual issues that may be raised before that agency, or in an appeal from the agency’s decision.
§ 80.14 Disclosure.
(a) Any document or other material which is provided to, received by, or prepared in the Department of Justice or any other department or agency of the United States in connection with a request by an issuer or domestic concern under the foregoing procedure shall be exempt from disclosure under 5 U.S.C. 552 and shall not, except with the consent of the issuer or domestic concern, be made publicly available, regardless of whether the Attorney General responds to such a request or the issuer or domestic concern withdraws such request before receiving a response.
(b) Nothing contained in paragraph (a) of this section shall limit the Department of Justice’s right to issue, at its discretion, a release describing the identity of the requesting issuer or domestic concern, the identity of the foreign country in which the proposed conduct is to take place, the general nature and circumstances of the proposed conduct, and the action taken by the Department of Justice in response to the FCPA Opinion request. Such release shall not disclose either the identity of any foreign sales agents or other types of identifying information. The Department of Justice shall index such releases and place them in a file available to the public upon request.
(c) A requestor may request that the release not disclose proprietary information.
§ 80.15 Withdrawal.
A request submitted under the foregoing procedure may be withdrawn prior to the time the Attorney General issues an opinion in response to such request. Any request so withdrawn shall have no force or effect. The Department of Justice reserves the right to retain any FCPA Opinion request, documents and information submitted to it under this procedure or otherwise and to use them for any governmental purposes, subject to the restrictions on disclosures in § 80.14.
§ 80.16 Additional requests.
Additional requests for FCPA Opinions may be filed with the Attorney General under the foregoing procedure regarding other prospective conduct that is beyond the scope of conduct specified in previous requests.
PART 81—CHILD ABUSE AND CHILD PORNOGRAPHY REPORTING DESIGNATIONS AND PROCEDURES
§ 81.1 Purpose.
The regulations in this subpart designate the agencies that are authorized to receive and investigate reports of child abuse under the provisions of section 226 of the Victims of Child Abuse Act of 1990, Public Law 101-647, 104 Stat. 4806, codified at 42 U.S.C. 13031.
§ 81.2 Submission of reports; designation of agencies to receive reports of child abuse.
Reports of child abuse required by 42 U.S.C. 13031 shall be made to the local law enforcement agency or local child protective services agency that has jurisdiction to investigate reports of child abuse or to protect child abuse victims in the land area or facility in question. Such agencies are hereby respectively designated as the agencies to receive and investigate such reports, pursuant to 42 U.S.C. 13031(d), with respect to federal lands and federally operated or contracted facilities within their respective jurisdictions, provided that such agencies, if non-federal, enter into formal written agreements to do so with the Attorney General, her delegate, or a federal agency with jurisdiction for the area or facility in question. If the child abuse reported by the covered professional pursuant to 42 U.S.C. 13031 occurred outside the federal area or facility in question, the designated local law enforcement agency or local child protective services agency receiving the report shall immediately forward the matter to the appropriate authority with jurisdiction outside the federal area in question.
§ 81.3 Designation of Federal Bureau of Investigation.
For federal lands, federally operated facilities, or federally contracted facilities where no agency qualifies for designation under § 81.2, the Federal Bureau of Investigation is hereby designated as the agency to receive and investigate reports of child abuse made pursuant to 42 U.S.C. 13031 until such time as another agency qualifies as a designated agency under § 81.2.
§ 81.4 Referral of reports where the designated agency is not a law enforcement agency.
Where a report of child abuse received by a designated agency that is not a law enforcement agency involves allegations of sexual abuse, serious physical injury, or life-threatening neglect of a child, that agency shall immediately report such occurrence to a law enforcement agency with authority to take emergency action to protect the child.
§ 81.5 Definitions.
Local child protective services agency means that agency of the federal government, of a state, of a tribe or of a local government that has the primary responsibility for child protection within a particular portion of the federal lands, a particular federally operated facility, or a particular federally contracted facility in which children are cared for or reside.
Local law enforcement agency means that federal, state, tribal or local law enforcement agency that has the primary responsibility for the investigation of an instance of alleged child abuse occurring within a particular portion of the federal lands, a particular federally operated facility, or a particular federally contracted facility in which children are cared for or reside.
Subpart B—Child Pornography Reporting Designations and Procedures
§ 81.11 Purpose.
The regulations in this subpart B designate the agencies that are authorized to receive and investigate reports of child pornography that are forwarded from the National Center for Missing and Exploited Children under the provisions of 42 U.S.C. 13032.
§ 81.12 Submission of reports to the “Cyber Tipline” at the National Center for Missing and Exploited Children.
(a) When a provider of electronic communications services or remote computing services to the public (“provider”) obtains knowledge of facts or circumstances concerning an apparent violation of Federal child pornography statutes designated by 42 U.S.C. 13032(b)(1), it shall, as soon as reasonably possible, report all such facts or circumstances to the “Cyber Tipline” at the National Center for Missing and Exploited Children Web site (http://www.CyberTipline.com), which contains a reporting form for use by providers.
(b) A provider should initially call the National Center for Missing and Exploited Children to receive an identification number and a password that will enable it to log on to the section of the “Cyber Tipline” that is designed for provider reporting.
§ 81.13 Submission of reports by the National Center for Missing and Exploited Children to designated agencies; designation of agencies.
When the National Center for Missing and Exploited Children receives a report from a provider concerning an apparent violation of Federal child pornography statutes specified in 42 U.S.C. 13032(b)(1), it shall immediately forward that report, to the Federal Bureau of Investigation, the Bureau of Immigration and Customs Enforcement, the United States Postal Inspection Service, and the United States Secret Service, designated pursuant to 42 U.S.C. 13032(b)(2).
PART 83—GOVERNMENT-WIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
Subpart A—Purpose and Coverage
§ 83.100 What does this part do?
This part carries out the portion of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also applies the provisions of the Act to cooperative agreements and other financial assistance awards, as a matter of Federal Government policy.
§ 83.105 Does this part apply to me?
(a) Portions of this part apply to you if you are either—
(1) A recipient of an assistance award from the Department of Justice; or
(2) A(n) Department of Justice awarding official. (See definitions of award and recipient in §§ 83.605 and 83.660, respectively.)
(b) The following table shows the subparts that apply to you:
| If you are . . . | see subparts . . . |
|---|---|
| (1) A recipient who is not an individual | A, B and E. |
| (2) A recipient who is an individual | A, C and E. |
| (3) A(n) Department of Justice awarding official | A, D and E. |
§ 83.110 Are any of my Federal assistance awards exempt from this part?
This part does not apply to any award that the Attorney General or designee determines that the application of this part would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government.
§ 83.115 Does this part affect the Federal contracts that I receive?
It will affect future contract awards indirectly if you are debarred or suspended for a violation of the requirements of this part, as described in § 83.510(c). However, this part does not apply directly to procurement contracts. The portion of the Drug-Free Workplace Act of 1988 that applies to Federal procurement contracts is carried out through the Federal Acquisition Regulation in chapter 1 of Title 48 of the Code of Federal Regulations (the drug-free workplace coverage currently is in 48 CFR part 23, subpart 23.5).
Subpart B—Requirements for Recipients Other Than Individuals
§ 83.200 What must I do to comply with this part?
There are two general requirements if you are a recipient other than an individual.
(a) First, you must make a good faith effort, on a continuing basis, to maintain a drug-free workplace. You must agree to do so as a condition for receiving any award covered by this part. The specific measures that you must take in this regard are described in more detail in subsequent sections of this subpart. Briefly, those measures are to—
(1) Publish a drug-free workplace statement and establish a drug-free awareness program for your employees (see §§ 83.205 through 83.220); and
(2) Take actions concerning employees who are convicted of violating drug statutes in the workplace (see § 83.225).
(b) Second, you must identify all known workplaces under your Federal awards (see § 83.230).
§ 83.205 What must I include in my drug-free workplace statement?
You must publish a statement that—
(a) Tells your employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in your workplace;
(b) Specifies the actions that you will take against employees for violating that prohibition; and
(c) Lets each employee know that, as a condition of employment under any award, he or she:
(1) Will abide by the terms of the statement; and
(2) Must notify you in writing if he or she is convicted for a violation of a criminal drug statute occurring in the workplace and must do so no more than five calendar days after the conviction.
§ 83.210 To whom must I distribute my drug-free workplace statement?
You must require that a copy of the statement described in § 83.205 be given to each employee who will be engaged in the performance of any Federal award.
§ 83.215 What must I include in my drug-free awareness program?
You must establish an ongoing drug-free awareness program to inform employees about—
(a) The dangers of drug abuse in the workplace;
(b) Your policy of maintaining a drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee assistance programs; and
(d) The penalties that you may impose upon them for drug abuse violations occurring in the workplace.
§ 83.220 By when must I publish my drug-free workplace statement and establish my drug-free awareness program?
If you are a new recipient that does not already have a policy statement as described in § 83.205 and an ongoing awareness program as described in § 83.215, you must publish the statement and establish the program by the time given in the following table:
| If . . . | then you . . . |
|---|---|
| (a) The performance period of the award is less than 30 days | must have the policy statement and program in place as soon as possible, but before the date on which performance is expected to be completed. |
| (b) The performance period of the award is 30 days or more | must have the policy statement and program in place within 30 days after award. |
| (c) You believe there are extraordinary circumstances that will require more than 30 days for you to publish the policy statement and establish the awareness program | may ask the Department of Justice awarding official to give you more time to do so. The amount of additional time, if any, to be given is at the discretion of the awarding official. |
§ 83.225 What actions must I take concerning employees who are convicted of drug violations in the workplace?
There are two actions you must take if an employee is convicted of a drug violation in the workplace:
(a) First, you must notify Federal agencies if an employee who is engaged in the performance of an award informs you about a conviction, as required by § 83.205(c)(2), or you otherwise learn of the conviction. Your notification to the Federal agencies must—
(1) Be in writing;
(2) Include the employee’s position title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days after you learn of the conviction; and
(5) Be sent to every Federal agency on whose award the convicted employee was working. It must be sent to every awarding official or his or her official designee, unless the Federal agency has specified a central point for the receipt of the notices.
(b) Second, within 30 calendar days of learning about an employee’s conviction, you must either—
(1) Take appropriate personnel action against the employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal, State or local health, law enforcement, or other appropriate agency.
§ 83.230 How and when must I identify workplaces?
(a) You must identify all known workplaces under each Department of Justice award. A failure to do so is a violation of your drug-free workplace requirements. You may identify the workplaces_
(1) To the Department of Justice official that is making the award, either at the time of application or upon award; or
(2) In documents that you keep on file in your offices during the performance of the award, in which case you must make the information available for inspection upon request by Department of Justice officials or their designated representatives.
(b) Your workplace identification for an award must include the actual address of buildings (or parts of buildings) or other sites where work under the award takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).
(c) If you identified workplaces to the Department of Justice awarding official at the time of application or award, as described in paragraph (a)(1) of this section, and any workplace that you identified changes during the performance of the award, you must inform the Department of Justice awarding official.
Subpart C—Requirements for Recipients Who Are Individuals
§ 83.300 What must I do to comply with this part if I am an individual recipient?
As a condition of receiving a(n) Department of Justice award, if you are an individual recipient, you must agree that—
(a) You will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity related to the award; and
(b) If you are convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity, you will report the conviction:
(1) In writing.
(2) Within 10 calendar days of the conviction.
(3) To the Department of Justice awarding official or other designee for each award that you currently have, unless § 83.301 or the award document designates a central point for the receipt of the notices. When notice is made to a central point, it must include the identification number(s) of each affected award.
§ 83.301 [Reserved]
Subpart D—Responsibilities of Department of Justice Awarding Officials
§ 83.400 What are my responsibilities as a(n) Department of Justice awarding official?
As a(n) Department of Justice awarding official, you must obtain each recipient’s agreement, as a condition of the award, to comply with the requirements in—
(a) Subpart B of this part, if the recipient is not an individual; or
(b) Subpart C of this part, if the recipient is an individual.
Subpart E—Violations of this Part and Consequences
§ 83.500 How are violations of this part determined for recipients other than individuals?
A recipient other than an individual is in violation of the requirements of this part if the Attorney General or designee determines, in writing, that—
(a) The recipient has violated the requirements of subpart B of this part; or
(b) The number of convictions of the recipient’s employees for violating criminal drug statutes in the workplace is large enough to indicate that the recipient has failed to make a good faith effort to provide a drug-free workplace.
§ 83.505 How are violations of this part determined for recipients who are individuals?
An individual recipient is in violation of the requirements of this part if the Attorney General or designee determines, in writing, that—
(a) The recipient has violated the requirements of subpart C of this part; or
(b) The recipient is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity.
§ 83.510 What actions will the Federal Government take against a recipient determined to have violated this part?
If a recipient is determined to have violated this part, as described in § 83.500 or § 83.505, the Department of Justice may take one or more of the following actions—
(a) Suspension of payments under the award;
(b) Suspension or termination of the award; and
(c) Suspension or debarment of the recipient under 28 CFR Part 67, for a period not to exceed five years.
§ 83.515 Are there any exceptions to those actions?
The Attorney General may waive with respect to a particular award, in writing, a suspension of payments under an award, suspension or termination of an award, or suspension or debarment of a recipient if the Attorney General determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.
Subpart F—Definitions
§ 83.605 Award.
Award means an award of financial assistance by the Department of Justice or other Federal agency directly to a recipient.
(a) The term award includes:
(1) A Federal grant or cooperative agreement, in the form of money or property in lieu of money.
(2) A block grant or a grant in an entitlement program, whether or not the grant is exempted from coverage under the Governmentwide rule 28 CFR Part 70 that implements OMB Circular A-102 (for availability, see 5 CFR 1310.3) and specifies uniform administrative requirements.
(b) The term award does not include:
(1) Technical assistance that provides services instead of money.
(2) Loans.
(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.
(6) Direct appropriations.
(7) Veterans’ benefits to individuals (i.e., any benefit to veterans, their families, or survivors by virtue of the service of a veteran in the Armed Forces of the United States).
§ 83.610 Controlled substance.
Controlled substance means a controlled substance in schedules I through V of the Controlled Substances Act (21 U.S.C. 812), and as further defined by regulation at 21 CFR 1308.11 through 1308.15.
§ 83.615 Conviction.
Conviction means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes.
§ 83.620 Cooperative agreement.
Cooperative agreement means an award of financial assistance that, consistent with 31 U.S.C. 6305, is used to enter into the same kind of relationship as a grant (see definition of grant in § 83.650), except that substantial involvement is expected between the Federal agency and the recipient when carrying out the activity contemplated by the award. The term does not include cooperative research and development agreements as defined in 15 U.S.C. 3710a.
§ 83.625 Criminal drug statute.
Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance.
§ 83.630 Debarment.
Debarment means an action taken by a Federal agency to prohibit a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions. A recipient so prohibited is debarred, in accordance with the Federal Acquisition Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, Government-wide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order 12689.
§ 83.635 Drug-free workplace.
Drug-free workplace means a site for the performance of work done in connection with a specific award at which employees of the recipient are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.
§ 83.640 Employee.
(a) Employee means the employee of a recipient directly engaged in the performance of work under the award, including—
(1) All direct charge employees;
(2) All indirect charge employees, unless their impact or involvement in the performance of work under the award is insignificant to the performance of the award; and
(3) Temporary personnel and consultants who are directly engaged in the performance of work under the award and who are on the recipient’s payroll.
(b) This definition does not include workers not on the payroll of the recipient (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the payroll; or employees of subrecipients or subcontractors in covered workplaces).
§ 83.645 Federal agency or agency.
Federal agency or agency means any United States executive department, military department, government corporation, government controlled corporation, any other establishment in the executive branch (including the Executive Office of the President), or any independent regulatory agency.
§ 83.650 Grant.
Grant means an award of financial assistance that, consistent with 31 U.S.C. 6304, is used to enter into a relationship—
(a) The principal purpose of which is to transfer a thing of value to the recipient to carry out a public purpose of support or stimulation authorized by a law of the United States, rather than to acquire property or services for the Federal Government’s direct benefit or use; and
(b) In which substantial involvement is not expected between the Federal agency and the recipient when carrying out the activity contemplated by the award.
§ 83.655 Individual.
Individual means a natural person.
§ 83.660 Recipient.
Recipient means any individual, corporation, partnership, association, unit of government (except a Federal agency) or legal entity, however organized, that receives an award directly from a Federal agency.
§ 83.665 State.
State means any of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.
§ 83.670 Suspension.
Suspension means an action taken by a Federal agency that immediately prohibits a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions for a temporary period, pending completion of an investigation and any judicial or administrative proceedings that may ensue. A recipient so prohibited is suspended, in accordance with the Federal Acquisition Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, Government-wide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order 12689. Suspension of a recipient is a distinct and separate action from suspension of an award or suspension of payments under an award.
PART 85—CIVIL MONETARY PENALTIES INFLATION ADJUSTMENT
§ 85.1 In general.
(a) For violations occurring on or before November 2, 2015, and for civil penalties assessed before August 1, 2016, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department of Justice and listed in section 85.3 are adjusted as set forth in that section, in accordance with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 104-410, 104 Stat. 890, in effect prior to November 2, 2015.
(b) For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department of Justice are adjusted as set forth in section 85.5, in accordance with the requirements of the Bipartisan Budget Act of 2015, Public Law 114-74, section 701 (Nov. 2, 2015), 28 U.S.C. 2461 note.
§ 85.2 [Reserved]
§ 85.3 Adjustments to penalties for violations occurring on or before November 2, 2015.
For all violations occurring on or before November 2, 2015, and for assessments made before August 1, 2016, for violations occurring after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the respective components of the Department, as set forth in paragraphs (a) through (d) of this section, are adjusted as provided in this section in accordance with the inflation adjustment procedures prescribed in section 5 of the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, as in effect prior to November 2, 2015. The adjusted penalties set forth in paragraphs (a), (c), and (d) of this section are effective for violations occurring on or after September 29, 1999, and on or before November 2, 2015, and for assessments made before August 1, 2016, for violations occurring after November 2, 2015. For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the adjusted penalty amounts in section 85.5.
(a) Civil Division. (1) 5 U.S.C. App. 4 102(f)(6)(C)(i), Ethics in Government Act of 1978, knowing and willful disclosure, solicitation, or receipt of information with respect to blind trusts: from $10,000 to $11,000.
(2) 5 U.S.C. App. 4 102(f)(6)(C)(ii), Ethics in Government Act of 1978, negligent disclosure, solicitation, or receipt of information with respect to blind trusts: from $5,000 to $5,500.
(3) 5 U.S.C. App. 4 104(a), Ethics in Government Act of 1978, falsification or failure to file required reports: from $10,000 to $11,000.
(4) 5 U.S.C. App. 4 105(c)(2), Ethics in Government Act of 1978, unlawful acquisition or use of public reports: from $10,000 to $11,000.
(5) 5 U.S.C. App. 4 504(a), Ethics Reform Act of 1989, violations of limitations on outside earned income and employment: from $10,000 to $11,000.
(6) 12 U.S.C. 1833a(b)(1), Financial Institutions Reform, Recovery, and Enforcement Act of 1989, violation: from $1,000,000 to $1,100,000.
(7) 12 U.S.C. 1833a(b)(2), Financial Institutions Reform, Recovery, and Enforcement Act of 1989, continuing violations (per day): minimum from $1,000,000 to $1,100,000; maximum from $5,000,000 to $5,500,000.
(8) 22 U.S.C. 2399b(a)(3)(A), Foreign Assistance Act of 1961, fraudulent claim for assistance: from $2,000 to $2,200.
(9) 31 U.S.C. 3729(a), False Claims Act, violations: minimum from $5,000 to $5,500; maximum from $10,000 to $11,000.
(10) 31 U.S.C. 3802(a)(1), Program Fraud Civil Remedies Act, violation involving false claim: from $5,000 to $5,500.
(11) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act, violation involving false statement: from $5,000 to $5,500.
(12) 40 U.S.C. 489(b)(1), Federal Property and Administrative Services Act of 1949, violation involving surplus government property: from $2,000 to $2,200.
(13) 41 U.S.C. 55(a)(1)(B), Anti-Kickback Act of 1986, violation involving kickbacks: from $10,000 to $11,000.
(b) Civil Rights Division. (1) 18 U.S.C. 248(c)(2)(B), Freedom of Access to Clinic Entrances Act of 1994 (Nonviolent Physical Obstruction):
(i) The civil monetary penalty amount for a first order for nonviolent physical obstruction, initially set at $10,000, is adjusted to $11,000 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $16,000 for a violation occurring on or after April 28, 2014.
(ii) The civil monetary penalty amount for a subsequent order for nonviolent physical obstruction, initially set at $15,000, is adjusted to $16,500 for a violation occurring on or after April 28, 2014.
(2) 18 U.S.C. 248(c)(2)(B), Freedom of Access to Clinic Entrances Act of 1994 (Other Violations):
(i) The civil monetary penalty amount for a first order other than for nonviolent physical obstruction, initially set at $15,000, is adjusted to $16,500 for a violation occurring on or after April 28, 2014.
(ii) The civil monetary penalty amount for a subsequent order other than for nonviolent physical obstruction, initially set at $25,000, is adjusted to $27,500 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $37,500 for a violation occurring on or after April 28, 2014.
(3) 42 U.S.C. 3614(d)(1)(C), Fair Housing Act of 1968, as amended (Pattern or Practice Violation):
(i) The civil monetary penalty amount for a first order, initially set at $50,000, is adjusted to $55,000 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $75,000 for a violation occurring on or after April 28, 2014.
(ii) The civil monetary penalty amount for a subsequent order, initially set at $100,000, is adjusted to $110,000 for a violation occurring on or after September 29, 1999, and before April 28, 2014, and is adjusted to $150,000 for a violation occurring on or after April 28, 2014.
(4) 50 U.S.C. App. 597(b)(3), Servicemembers Civil Relief Act of 2003, as amended:
(i) The civil monetary penalty amount for a first violation, initially set at $55,000, is adjusted to $60,000 for a violation occurring on or after April 28, 2014.
(ii) The civil monetary penalty amount for a subsequent violation, initially set at $110,000, is adjusted to $120,000 for a violation occurring on or after April 28, 2014.
(c) Criminal Division. 18 U.S.C. 216(b), Ethics Reform Act of 1989, violation: from $50,000 to $55,000.
(d) Drug Enforcement Administration. 21 U.S.C. 961(1), Controlled Substances Import Export Act, transshipment and in-transit shipment of controlled substances: from $25,000 to $27,500.
§ 85.5 Adjustments to penalties for violations occurring after November 2, 2015.
(a) For civil penalties assessed after February 12, 2024, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are adjusted as set forth in the seventh column of table 1 to this section.
(b) For civil penalties assessed after January 30, 2023, and on or before February 12, 2024 whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in the sixth column of table 1 to this section. For civil penalties assessed after May 9, 2022, and on or before January 30, 2023, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in the fifth column of table 1 to this section. For civil penalties assessed after December 13, 2021, and on or before May 9, 2022, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in the fourth column of table 1 to this section.
(c) For civil penalties assessed on or before December 13, 2021, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in 28 CFR 85.5 (July 1, 2020).
(d) All figures set forth in table 1 to this section are maximum penalties, unless otherwise indicated.
Table 1 to § 85.5
| U.S.C. citation | Name/description | CFR citation | DOJ penalty assessed after 12/13/2021 | DOJ penalty assessed after 5/9/2022 | DOJ penalty assessed after 1/30/2023 FN1 | DOJ penalty assessed after 2/12/2024 FN2 |
|---|---|---|---|---|---|---|
| 18 U.S.C. 922(t)(5) | Brady Law—Nat’l Instant Criminal Check System (NICS); Transfer of firearm without checking NICS | 8,935 | 9,491 | 10,226 | 10,557 | |
| 18 U.S.C. 924(p) | Child Safety Lock Act; Secure gun storage or safety device, violation | 3,268 | 3,471 | 3,740 | 3,861 | |
| 12 U.S.C. 1833a(b)(1) | Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) Violation | 28 CFR 85.3(a)(6) | 2,073,133 | 2,202,123 | 2,372,677 | 2,449,575 |
| 12 U.S.C. 1833a(b)(2) | FIRREA Violation (continuing) (per day) | 28 CFR 85.3(a)(7) | 2,073,133 | 2,202,123 | 2,372,677 | 2,449,575 |
| 12 U.S.C. 1833a(b)(2) | FIRREA Violation (continuing) | 28 CFR 85.3(a)(7) | 10,365,668 | 11,010,620 | 11,863,393 | 12,247,886 |
| 22 U.S.C. 2399b(a)(3)(A) | Foreign Assistance Act; Fraudulent Claim for Assistance (per act) | 28 CFR 85.3(a)(8) | 6,021 | 6,396 | 6,891 | 7,114 |
| 31 U.S.C. 3729(a) | False Claims Act; FN3 Violations | 28 CFR 85.3(a)(9) | Min 11,803,
Max 23,607 | Min 12,537,
Max 25,076 | Min 13,508,
Max 27,018 | Min 13,946,
Max 27,894 |
| 31 U.S.C. 3802(a)(1) | Program Fraud Civil Remedies Act; Violations Involving False Claim (per claim) | 28 CFR 71.3(a) | 11,803 | 12,537 | 13,508 | 13,946 |
| 31 U.S.C. 3802(a)(2) | Program Fraud Civil Remedies Act; Violation Involving False Statement (per statement) | 28 CFR 71.3(f) | 11,803 | 12,537 | 13,508 | 13,946 |
| 40 U.S.C. 123(a)(1)(A) | Federal Property and Administrative Services Act; Violation Involving Surplus Government Property (per act) | 28 CFR 85.3(a)(12) | 6,021 | 6,396 | 6,891 | 7,114 |
| 41 U.S.C. 8706(a)(1)(B) | Anti-Kickback Act; Violation Involving Kickbacks FN4 (per occurrence) | 28 CFR 85.3(a)(13) | 23,607 | 25,076 | 27,018 | 27,894 |
| 18 U.S.C. 2723(b) | Driver’s Privacy Protection Act of 1994; Prohibition on Release and Use of Certain Personal Information from State Motor Vehicle Records—Substantial Non-compliance (per day) | 8,708 | 9,250 | 9,966 | 10,289 | |
| 18 U.S.C. 216(b) | Ethics Reform Act of 1989; Penalties for Conflict of Interest Crimes FN5 (per violation) | 28 CFR 85.3(c) | 103,657 | 110,107 | 118,635 | 122,480 |
| 41 U.S.C. 2105(b)(1) | Office of Federal Procurement Policy Act; FN6 Violation by an individual (per violation) | 108,315 | 115,054 | 123,965 | 127,983 | |
| 41 U.S.C. 2105(b)(2) | Office of Federal Procurement Policy Act; FN6 Violation by an organization (per violation) | 1,083,140 | 1,150,533 | 1,239,642 | 1,279,819 | |
| 42 U.S.C. 5157(d) | Disaster Relief Act of 1974; FN7 Violation (per violation) | 13,685 | 14,536 | 15,662 | 16,170 | |
| 18 U.S.C. 248(c)(2)(B)(i) | Freedom of Access to Clinic Entrances Act of 1994 (“FACE Act”); Nonviolent physical obstruction, first violation | 28 CFR 85.3(b)(1)(i) | 17,364 | 18,444 | 19,872 | 20,516 |
| 18 U.S.C. 248(c)(2)(B)(ii) | FACE Act; Nonviolent physical obstruction, subsequent violation | 28 CFR 85.3(b)(1)(ii) | 26,125 | 27,750 | 29,899 | 30,868 |
| 18 U.S.C. 248(c)(2)(B)(i) | FACE Act; Violation other than a nonviolent physical obstruction, first violation | 28 CFR 85.3(b)(2)(i) | 26,125 | 27,750 | 29,899 | 30,868 |
| 18 U.S.C. 248(c)(2)(B)(ii) | FACE Act; Violation other than a nonviolent physical violation) | 28 CFR 85.3(b)(2)(ii) | 43,543 | 46,252 | 49,834 | 51,449 |
| 42 U.S.C. 3614(d)(1)(C)(i) | Fair Housing Act of 1968; first violation | 28 CFR 85.3(b)(3)(i) | 108,315 | 115,054 | 123,965 | 127,983 |
| 42 U.S.C. 3614(d)(1)(C)(ii) | Fair Housing Act of 1968; subsequent violation | 28 CFR 85.3(b)(3)(ii) | 216,628 | 230,107 | 247,929 | 255,964 |
| 42 U.S.C. 12188(b)(2)(C)(i) | Americans With Disabilities Act; Public accommodations for individuals with disabilities, first violation | 28 CFR 36.504(a)(3)(i) | 97,523 | 103,591 | 111,614 | 115,231 |
| 42 U.S.C. 12188(b)(2)(C)(ii) | Americans With Disabilities Act; Public accommodations for individuals with disabilities subsequent violation | 28 CFR 36.504(a)(3)(ii) | 195,047 | 207,183 | 223,229 | 230,464 |
| 50 U.S.C. 4041(b)(3) | Servicemembers Civil Relief Act of 2003; first violation | 28 CFR 85.3(b)(4)(i) | 65,480 | 69,554 | 74,941 | 77,370 |
| 50 U.S.C. 4041(b)(3) | Servicemembers Civil Relief Act of 2003; subsequent violation | 28 CFR 85.3(b)(4)(ii) | 130,961 | 139,109 | 149,883 | 154,741 |
| 18 U.S.C. 983(h)(1) | Civil Asset Forfeiture Reform Act of 2000; Penalty for Frivolous Assertion of Claim | Min 374,
Max 7,482 | Min 397,
Max 7,948 | Min 428,
Max 8,564 | Min 442,
Max 8,842 | |
| 18 U.S.C. 1956(b) | Money Laundering Control Act of 1986; Violation FN8 | 23,607 | 25,076 | 27,018 | 27,894 | |
| 21 U.S.C. 844a(a) | Anti-Drug Abuse Act of 1988; Possession of small amounts of controlled substances (per violation) | 28 CFR 76.3(a) | 21,663 | 23,011 | 24,793 | 25,597 |
| 21 U.S.C. 961(1) | Controlled Substance Import Export Act; Drug abuse, import or export | 28 CFR 85.3(d) | 75,267 | 79,950 | 86,142 | 88,934 |
| 21 U.S.C. 842(c)(1)(A) | Controlled Substances Act (“CSA”); Violations of 842(a)—other than (5), (10), (16) and (17)—Prohibited acts re: controlled substances (per violation) | 68,426 | 72,683 | 78,312 | 80,850 | |
| 21 U.S.C. 842(c)(1)(B)(i) | CSA; Violations of 842(a)(5), (10), and (17)—Prohibited acts re: controlled substances | 15,876 | 16,864 | 18,170 | 18,759 | |
| 21 U.S.C. 842(c)(1)(B)(ii)- | SUPPORT for Patients and Communities Act; FN9 Violations of 842(b)(ii)—Failures re: opioids | 102,967 | 109,374 | 117,845 | 121,664 | |
| 21 U.S.C. 842(c)(1)(C) | CSA; Violation of 825(e) by importer, exporter, manufacturer, or distributor—False labeling of anabolic steroids (per violation) | 548,339 | 582,457 | 627,568 | 647,907 | |
| 21 U.S.C. 842(c)(1)(D) | CSA; Violation of 825(e) at the retail level—False labeling of anabolic steroids (per violation) | 1,097 | 1,165 | 1,255 | 1,296 | |
| 21 U.S.C. 842(c)(2)(C) | CSA; Violation of 842(a)(11) by a business—Distribution of laboratory supply with reckless disregard FN10 | 411,223 | 436,809 | 470,640 | 485,893 | |
| 21 U.S.C. 842(c)(2)(D) | SUPPORT for Patients and Communities Act; FN9 Violations of 842(a)(5), (10) and (17) by a registered manufacture or distributor of opioids. Failures re: opioids | 514,834 | 546,867 | 589,222 | 608,319 | |
| 21 U.S.C. 856(d) | Illicit Drug Anti-Proliferation Act of 2003; Maintaining drug-involved premises FN11 | 379,193 | 402,786 | 433,982 | 448,047 | |
| 8 U.S.C. 1324a(e)(4)(A)(i) | Immigration Reform and Control Act of 1986 (“IRCA”); Unlawful employment of aliens, first order (per unauthorized alien) | 28 CFR 68.52(c)(1)(i) | Min 590,
Max 4,722 | Min 627,
Max 5,016 | Min 676,
Max 5,404 | Min 698,
Max 5,579 |
| 8 U.S.C. 1324a(e)(4)(A)(ii) | IRCA; Unlawful employment of aliens, second order (per such alien) | 28 CFR 68.52(c)(1)(ii) | Min 4,722,
Max 11,803 | Min 5,016,
Max 12,537 | Min 5,404,
Max 13,508 | Min 5,579,
Max 13,946 |
| 8 U.S.C. 1324a(e)(4)(A)(iii) | IRCA; Unlawful employment of aliens, subsequent order (per such alien) | 28 CFR 68.52(c)(1)(iii) | Min 7,082,
Max 23,607 | Min 7,523,
Max 25,076 | Min 8,106,
Max 27,018 | Min 8,369,
Max 27,894 |
| 8 U.S.C. 1324a(e)(5) | IRCA; Paperwork violation (per relevant individual) | 28 CFR 68.52(c)(5) | Min 237,
Max 2,360 | Min 252,
Max 2,507 | Min 272,
Max 2,701 | Min 281,
Max 2,789 |
| 8 U.S.C. 1324a (note) | IRCA; Violation relating to participating employer’s failure to notify of final nonconfirmation of employee’s employment eligibility (per relevant individual) | 28 CFR 68.52(c)(6) | Min 823,
Max 1,644 | Min 874,
Max 1,746 | Min 942,
Max 1,881 | Min 973,
Max 1,942 |
| 8 U.S.C. 1324a(g)(2) | IRCA; Violation/prohibition of indemnity bonds (per violation) | 28 CFR 68.52(c)(7) | 2,360 | 2,507 | 2,701 | 2,789 |
| 8 U.S.C. 1324b(g)(2)(B)(iv)(I) | IRCA; Unfair immigration-related employment practices, first order (per individual discriminated against) | 28 CFR 68.52(d)(1)(viii) | Min 487,
Max 3,901 | Min 517,
Max 4,144 | Min 557,
Max 4,465 | Min 575,
Max 4,610 |
| 8 U.S.C. 1324b(g)(2)(B)(iv)(II) | IRCA; Unfair immigration-related employment practices, second order (per individual discriminated against) | 28 CFR 68.52(d)(1)(ix) | Min 3,901,
Max 9,753 | Min 4,144,
Max 10,360 | Min 4,465,
Max 11,162 | Min 4,610,
Max 11,524 |
| 8 U.S.C. 1324b(g)(2)(B)(iv)(III) | IRCA; Unfair immigration-related employment practices, subsequent order (per individual discriminated against) | 28 CFR 68.52(d)(1)(x) | Min 5,851,
Max 19,505 | Min 6,215,
Max 20,719 | Min 6,696,
Max 22,324 | Min 6,913,
Max 23,048 |
| 8 U.S.C. 1324b(g)(2)(B)(iv)(I V) | IRCA; Unfair immigration-related employment practices, unfair documentary practices (per individual discriminated against) | 28 CFR 68.52(d)(1)(xii) | Min 195,
Max 1,951 | Min 207,
Max 2,072 | Min 223,
Max 2,232 | Min 230,
Max 2,304 |
| 8 U.S.C. 1324c(d)(3)(A) | IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) | 28 CFR 68.52(e)(1)(i) | Min 487,
Max 3,901 | Min 517,
Max 4,144 | Min 557,
Max 4,465 | Min 575,
Max 4,610 |
| 8 U.S.C. 1324c(d)(3)(B) | IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(1)-(4) (per document) | 28 CFR 68.52(e)(1)(iii) | Min 3,901,
Max 9,753 | Min 4,144,
Max 10,360 | Min 4,465,
Max 11,162 | Min 4,610,
Max 11,524 |
| 8 U.S.C. 1324c(d)(3)(A) | IRCA; Document fraud, first order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) | 28 CFR 68.52(e)(1)(ii) | Min 412,
Max 3,289 | Min 438,
Max 3,494 | Min 472,
Max 3,765 | Min 487,
Max 3,887 |
| 8 U.S.C. 1324c(d)(3)(B) | IRCA; Document fraud, subsequent order—for violations described in U.S.C. 1324c(a)(5)-(6) (per document) | 28 CFR 68.52(e)(1)(iv) | Min 3,289,
Max 8,224 | Min 3,494,
Max 8,736 | Min 3,765,
Max 9,413 | Min 3,887,
Max 9,718 |
| 49 U.S.C. 30505(a) | National Motor Vehicle Title Identification System; Violation (per violation) | 1,742 | 1,850 | 1,993 | 2,058 | |
| 34 U.S.C. 10231(d) | Confidentiality of information; State and Local Criminal History Record Information Systems—Right to Privacy Violation | 28 CFR 20.25 | 30,107 | 31,980 | 34,457 | 35,574 |
1 The figures set forth in this column represent the penalty as last adjusted by Department of Justice regulation on January 30, 2023.
2 All figures set forth in this table are maximum penalties, unless otherwise indicated.
3 Section 3729(a)(1) of Title 31 provides that any person who violates this section is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the Government sustains because of the act of that person. 31 U.S.C. 3729(a)(1) (2015). Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to not less than 2 times the amount of damages which the Government sustains because of the act of that person. Id. section 3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty amounts stated in subsection (a)(1), which is only one component of the civil penalty imposed under section 3729(a)(1).
4 Section 8706(a)(1) of Title 41 provides that the Federal Government in a civil action may recover from a person that knowingly engages in conduct prohibited by section 8702 of Title 44 a civil penalty equal to twice the amount of each kickback involved in the violation and not more than $10,000 for each occurrence of prohibited conduct. 41 U.S.C. 8706(a)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one component of the civil penalty imposed under section 8706.
5 Section 216(b) of Title 18 provides that the civil penalty should be no more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. 18 U.S.C. 216(b) (2015). Therefore, the adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b), which is only one aspect of the possible civil penalty imposed under section 216(b).
6 Section 2105(b) of Title 41 provides that the Attorney General may bring a civil action in an appropriate district court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of Title 41. 41 U.S.C. 2105(b) (2015). Section 2105(b) further provides that on proof of that conduct by a preponderance of the evidence, an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct, and an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct. Id. section 2105(b). The adjustments made by this regulation are only applicable to the specific statutory penalty amounts stated in subsections (b)(1) and (b)(2), which are each only one component of the civil penalties imposed under sections 2105(b)(1) and (b)(2).
7 The Attorney General has authority to bring a civil action when a person has violated or is about to violate a provision under this statute. 42 U.S.C. 5157(b) (2015). The Federal Emergency Management Agency has promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR 206.14(d) (2015). The Department of Health and Human Services (HHS) has also promulgated a regulation regarding the penalty under this statute. 42 CFR 38.8 (2015).
8 Section 1956(b)(1) of Title 18 provides that whoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of the value of the property, funds, or monetary instruments involved in the transaction; or $10,000. 18 U.S.C. 1956(b)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b)(1)(B), which is only one aspect of the possible civil penalty imposed under section 1956(b).
9 The SUPPORT for Patients and Communities Act, Public Law 115-221 was enacted Oct. 24, 2018.
10 Section 842(c)(2)(C) of Title 21 provides that in addition to the penalties set forth elsewhere in the subchapter or subchapter II of the chapter, any business that violates paragraph (11) of subsection (a) of the section shall, with respect to the first such violation, be subject to a civil penalty of not more than $250,000, but shall not be subject to criminal penalties under the section, and shall, for any succeeding violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty, whichever is greater. 21 U.S.C. 842(c)(2)(C) (2015). The adjustment made by this regulation regarding the penalty for a succeeding violation is only applicable to the specific statutory penalty amount stated in subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation imposed under section 842(c)(2)(C).
11 Section 856(d)(1) of Title 21 provides that any person who violates subsection (a) of the section shall be subject to a civil penalty of not more than the greater of $250,000; or 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person. 21 U.S.C. 856(d)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible civil penalty imposed under section 856(d)(1).
12 The date of assessment for purposes of calculating the minimum and maximum civil money penalties for violations of 8 U.S.C. 1324a under 28 CFR 85.5 is the date of the OCAHO final order, rather than the date of service of the Notice of Intent to Fine.
PART 90—VIOLENCE AGAINST WOMEN
Subpart A—General Provisions
§ 90.1 General.
(a) This part implements certain provisions of the Violence Against Women Act (VAWA), and subsequent legislation as follows:
(1) The Violence Against Women Act (VAWA), Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Public Law 103-322 (Sept. 13, 1994);
(2) The Violence Against Women Act of 2000 (VAWA 2000), Division B of the Victims of Trafficking and Violence Protection Act of 2000, Public Law 106-386 (Oct. 28, 2000);
(3) The Violence Against Women Office Act, Title IV of the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273 (Nov. 2, 2002);
(4) The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162 (January 5, 2006); and,
(5) The Violence Against Women Reauthorization Act of 2013 (VAWA 2013), Public Law 113-4 (Mar. 7, 2013).
(b) Subpart B of this part defines program eligibility criteria and sets forth requirements for application for and administration of formula grants to States to combat violent crimes against women. This program is codified at 42 U.S.C. 3796gg through 3796gg-5 and 3796gg-8.
(c) Subpart C of this part was removed on September 9, 2013.
(d) Subpart D of this part defines program eligibility criteria and sets forth requirements for the discretionary Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program.
(e) Subpart A of this part applies to all grants made by OVW and subgrants made under the STOP Violence Against Women Formula Program (STOP Program) and the Sexual Assault Services Formula Grant Program after the effective date of this rule. Subpart B of this part applies to all STOP Program grants issued by OVW after the effective date of the rule and to all subgrants issued by states under the STOP Program after the effective date of the rule, even if the underlying grant was issued by OVW prior to the effective date of the rule.
§ 90.2 Definitions.
(a) In addition to the definitions in this section, the definitions in 42 U.S.C. 13925(a) apply to all grants awarded by the Office on Violence Against Women and all subgrants made under such awards.
(b) The term “community-based program” has the meaning given the term “community-based organization” in 42 U.S.C. 13925(a).
(c) The term “forensic medical examination” means an examination provided to a victim of sexual assault by medical personnel to gather evidence of a sexual assault in a manner suitable for use in a court of law.
(1) The examination should include at a minimum:
(i) Gathering information from the patient for the forensic medical history;
(ii) Head-to-toe examination of the patient;
(iii) Documentation of biological and physical findings; and
(iv) Collection of evidence from the patient.
(2) Any costs associated with the items listed in paragraph (c)(1) of this section, such as equipment or supplies, are considered part of the “forensic medical examination.”
(3) The inclusion of additional procedures (e.g., testing for sexually transmitted diseases) may be determined by the State, Indian tribal government, or unit of local government in accordance with its current laws, policies, and practices.
(d) The term “prevention” includes both primary and secondary prevention efforts. “Primary prevention” means strategies, programming, and activities to stop both first-time perpetration and first-time victimization. Primary prevention is stopping domestic violence, dating violence, sexual assault, and stalking before they occur. “Secondary prevention” is identifying risk factors or problems that may lead to future domestic violence, dating violence, sexual assault, or stalking and taking the necessary actions to eliminate the risk factors and the potential problem. “Prevention” is distinguished from “outreach,” which has the goal of informing victims and potential victims about available services.
(e) The term “prosecution” means any public agency charged with direct responsibility for prosecuting criminal offenders, including such agency’s component bureaus (such as governmental victim services programs). Public agencies that provide prosecution support services, such as overseeing or participating in Statewide or multi-jurisdictional domestic violence, dating violence, sexual assault, or stalking task forces, conducting training for State, tribal, or local prosecutors or enforcing victim compensation and domestic violence, dating violence, sexual assault, or stalking-related restraining orders also fall within the meaning of “prosecution” for purposes of this definition.
(f) The term “public agency” has the meaning provided in 42 U.S.C. 3791.
(g) For the purpose of this part, a “unit of local government” is any city, county, township, town, borough, parish, village, or other general purpose political subdivision of a State. The following are not considered units of local government for purposes of this part:
(1) Police departments;
(2) Pre-trial service agencies;
(3) District or city attorneys’ offices;
(4) Sheriffs’ departments;
(5) Probation and parole departments;
(6) Shelters;
(7) Nonprofit, nongovernmental victim service agencies including faith-based or community-based organizations; and
(8) Universities.
(h) The term “victim services division or component of an organization, agency, or government” refers to a division within a larger organization, agency, or government, where the division has as its primary purpose to assist or advocate for domestic violence, dating violence, sexual assault, or stalking victims and has a documented history of work concerning such victims.
§ 90.3 Participation by faith-based organizations.
The funds provided under t