28 CFR Part 50 — Statements of Policy

PART 50—STATEMENTS OF POLICY Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510, 516, and 519; 42 U.S.C. 1921 et seq., § 50.2 Release of information by personnel of the Department of Justice relating to criminal and civil proceedings. (a) General. (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. (2) At no time shall personnel of the Department of Justice furnish any statement or information for the purpose of influencing the outcome of a defendant's trial, nor shall personnel of the Department furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial. (3) Personnel of the Department of Justice, subject to specific limitations imposed by law or court rule or order, may make public the following information: (i) The defendant's name, age, residence, employment, marital status, and similar background information. (ii) The substance or text of the charge, such as a complaint, indictment, or information. (iii) The identity of the investigating and/or arresting agency and the length or scope of an investigation. (iv) The circumstances immediately surrounding an arrest, including the time and place of arrest, resistance, pursuit, possession and use of weapons, and a description of physical items seized at the time of arrest. Disclosures should include only incontrovertible, factual matters, and should not include subjective observations. In addition, where background information or information relating to the circumstances of an arrest or investigation would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public. (4) Personnel of the Department shall not disseminate any information concerning a defendant's prior criminal record. (5) Because of the particular danger of prejudice resulting from statements in the period approaching and during trial, they ought strenuously to be avoided during that period. Any such statement or release shall be made only on the infrequent occasion when circumstances absolutely demand a disclosure of information and shall include only information which is clearly not prejudicial. (6) The release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Department should refrain from making available the following: (i) Observations about a defendant's character. (ii) Statements, admissions, confessions, or alibis attributable to a defendant, or the refusal or failure of the accused to make a statement. (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. (1) Evidence regarding the occurrence or transaction involved. (2) The character, credibility, or criminal records of a party, witness, or prospective witness. (3) The performance or results of any examinations or tests or the refusal or failure of a party to submit to such. (4) An opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule. (5) Any other matter reasonably likely to interfere with a fair trial of the action. [Order No. 469-71, 36 FR 21028, Nov. 3, 1971, as amended by Order No. 602-75, 40 FR 22119, May 20, 1975] § 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. I. Alternative Courses of Action a. ultimate sanctions The ultimate sanctions under title VI are the refusal to grant an application for assistance and the termination of assistance being rendered. Before these sanctions may be invoked, the Act requires completion of the procedures called for by section 602. That section require the department or agency concerned (1) to determine that compliance cannot be secured by voluntary means, (2) to consider alternative courses of action consistent with achievement of the objectives of the statutes authorizing the particular financial assistance, (3) to afford the applicant an opportunity for a hearing, and (4) to complete the other procedural steps outlined in section 602, including notification to the appropriate committees of the Congress. In some instances, as outlined below, it is legally permissible temporarily to defer action on an application for assistance, pending initiation and completion of section 602 procedures—including attempts to secure voluntary compliance with title VI. Normally, this course of action is appropriate only with respect to applications for noncontinuing assistance or initial applications for programs of continuing assistance. It is not available where Federal financial assistance is due and payable pursuant to a previously approved application. Whenever action upon an application is deferred pending the outcome of a hearing and subsequent section 602 procedures, the efforts to secure voluntary compliance and the hearing and such subsequent procedures, if found necessary, should be conducted without delay and completed as soon as possible. b. available alternatives 1. Court Enforcement Compliance with the nondiscrimination mandate of title VI may often be obtained more promptly by appropriate court action than by hearings and termination of assistance. Possibilities of judicial enforcement include (1) a suit to obtain specific enforcement of assurances, covenants running with federally provided property, statements or compliance or desegregation plans filed pursuant to agency regulations, (2) a suit to enforce compliance with other titles of the 1964 Act, other Civil Rights Acts, or constitutional or statutory provisions requiring nondiscrimination, and (3) initiation of, or intervention or other participation in, a suit for other relief designed to secure compliance. The possibility of court enforcement should not be rejected without consulting the Department of Justice. Once litigation has been begun, the affected agency should consult with the Department of Justice before taking any further action with respect to the noncomplying party. 2. Administrative Action A number of effective alternative courses not involving litigation may also be available in many cases. These possibilities include (1) consulting with or seeking assistance from other Federal agencies (such as the Contract Compliance Division of the Department of Labor) having authority to enforce nondiscrimination requirements; (2) consulting with or seeking assistance from State or local agencies having such authority; (3) bypassing a recalcitrant central agency applicant in order to obtain assurances from, or to grant assistance to complying local agencies; and (4) bypassing all recalcitrant non-Federal agencies and providing assistance directly to the complying ultimate beneficiaries. The possibility of utilizing such administrative alternatives should be considered at all stages of enforcement and used as appropriate or feasible. c. inducing voluntary compliance Title VI requires that a concerted effort be made to persuade any noncomplying applicant or recipient voluntarily to comply with title VI. Efforts to secure voluntary compliance should be undertaken at the outset in every noncompliance situation and should be pursued through each stage of enforcement action. Similarly, where an applicant fails to file an adequate assurance or apparently breaches its terms, notice should be promptly given of the nature of the noncompliance problem and of the possible consequences thereof, and an immediate effort made to secure voluntary compliance. II. Procedures a. new applications The following procedures are designed to apply in cases of noncompliance involving applications for one-time or noncontinuing assistance and initial applications for new or existing programs of continuing assistance. 1. Where the Requisite Assurance Has Not Been Filed or Is Inadequate on Its Face. Where the assurance, statement of compliance or plan of desegregation required by agency regulations has not been filed or where, in the judgment of the head of the agency in question, the filed assurance fails on its face to satisfy the regulations, the agency head should defer action on the application pending prompt initiation and completion of section 602 procedures. The applicant should be notified immediately and attempts made to secure voluntary compliance. If such efforts fail, the applicant should promptly be offered a hearing for the purpose of determining whether an adequate assurance has in fact been filed. If it is found that an adequate assurance has not been filed, and if administrative alternatives are ineffective or inappropriate, and court enforcement is not feasible, section 602 procedures may be completed and assistance finally refused. 2. Where it Appears that the Field Assurance Is Untrue or Is Not Being Honored. Where an otherwise adequate assurance, statement of compliance, or plan has been filed in connection with an application for assistance, but prior to completion of action on the application the head of the agency in question has reasonable grounds, based on a substantiated complaint, the agency's own investigation, or otherwise, to believe that the representations as to compliance are in some material respect untrue or are not being honored, the agency head may defer action on the application pending prompt initiation and completion of section 602 procedures. The applicant should be notified immediately and attempts made to secure voluntary compliance. If such efforts fail and court enforcement is determined to be ineffective or inadequate, a hearing should be promptly initiated to determine whether, in fact, there is noncompliance. If noncompliance is found, and if administrative alternatives are ineffective or inappropriate and court enforcement is still not feasible, section 602 procedures may be completed and assistance finally refused. The above-described deferral and related compliance procedures would normally be appropriate in cases of an application for noncontinuing assistance. In the case of an initial application for a new or existing program of continuing assistance, deferral would often be less appropriate because of the opportunity to secure full compliance during the life of the assistance program. In those cases in which the agency does not defer action on the application, the applicant should be given prompt notice of the asserted noncompliance; funds should be paid out for short periods only, with no long-term commitment of assistance given; and the applicant advised that acceptance of the funds carries an enforceable obligation of nondiscrimination and the risk of invocation of severe sanctions, if noncompliance in fact is found. b. requests for continuation or renewal of assistance The following procedures are designed to apply in cases of noncompliance involving all submissions seeking continuation or renewal under programs of continuing assistance. In cases in which commitments for Federal financial assistance have been made prior to the effective date of title VI regulations and funds have not been fully disbursed, or in which there is provision for future periodic payments to continue the program or activity for which a present recipient has previously applied and qualified, or in which assistance is given without formal application pursuant to statutory direction or authorization, the responsible agency may nonetheless require an assurance, statement of compliance, or plan in connection with disbursement or further funds. However, once a particular program grant or loan has been made or an application for a certain type of assistance for a specific or indefinite period has been approved, no funds due and payable pursuant to that grant, loan, or application, may normally be deferred or withheld without first completing the procedures prescribed in section 602. Accordingly, where the assurance, statement of compliance, or plan required by agency regulations has not been filed or where, in the judgment of the head of the agency in question, the filed assurance fails on its face to satisfy the regulations, or there is reasonable cause to believe it untrue or not being honored, the agency head should, if efforts to secure voluntary compliance are unsuccessful, promptly institute a hearing to determine whether an adequate assurance has in fact been filed, or whether, in fact, there is noncompliance, as the case may be. There should ordinarily be no deferral of action on the submission or withholding of funds in this class of cases, although the limitation of the payout of funds to short periods may appropriately be ordered. If noncompliance is found, and if administrative alternatives are ineffective or inappropriate and court enforcement is not feasible, section 602 procedures may be completed and assistance terminated. c. short-term programs Special procedures may sometimes be required where there is noncompliance with title VI regulations in connection with a program of such short total duration that all assistance funds will have to be paid out before the agency's usual administrative procedures can be completed and where deferral in accordance with these guidelines would be tantamount to a final refusal to grant assistance. In such a case, the agency head may, although otherwise following these guidelines, suspend normal agency procedures and institute expedited administrative proceedings to determine whether the regulations have been violated. He should simultaneously refer the matter to the Department of Justice for consideration of possible court enforcement, including interim injunctive relief. Deferral of action on an application is appropriate, in accordance with these guidelines, for a reasonable period of time, provided such action is consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with the action taken. As in other cases, where noncompliance is found in the hearing proceeding, and if administrative alternatives are ineffective or inappropriate and court enforcement is not feasible, section 602 procedures may be completed and assistance finally refused. III. Procedures in Cases of Subgrantees In situations in which applications for Federal assistance are approved by some agency other than the Federal granting agency, the same rules and procedures would apply. Thus, the Federal Agency should instruct the approving agency—typically a State agency—to defer approval or refuse to grant funds, in individual cases in which such action would be taken by the original granting agency itself under the above procedures. Provision should be made for appropriate notice of such action to the Federal agency which retains responsibility for compliance with section 602 procedures. IV. Exceptional Circumstances The Attorney General should be consulted in individual cases in which the head of an agency believes that the objectives of title VI will be best achieved by proceeding other than as provided in these guidelines. V. Coordination While primary responsibility for enforcement of title VI rests directly with the head of each agency, in order to assure coordination of title VI enforcement and consistency among agencies, the Department of Justice should be notified in advance of applications on which action is to be deferred, hearings to be scheduled, and refusals and terminations of assistance or other enforcement actions or procedures to be undertaken. The Department also should be kept advised of the progress and results of hearings and other enforcement actions. [31 FR 5292, Apr. 2, 1966] § 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. [Order No. 375-67, 32 FR 1040, Jan. 28, 1967] § 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. [42 FR 11831, Mar. 1, 1977] § 50.7 Consent judgments in actions to enjoin discharges of pollutants. (a) It is hereby established as the policy of the Department of Justice to consent to a proposed judgment in an action to enjoin discharges of pollutants into the environment only after or on condition that an opportunity is afforded persons (natural or corporate) who are not named as parties to the action to comment on the proposed judgment prior to its entry by the court. (b) To effectuate this policy, each proposed judgment which is within the scope of paragraph (a) of this section shall be lodged with the court as early as feasible but at least 30 days before the judgment is entered by the court. Prior to entry of the judgment, or some earlier specified date, the Department of Justice will receive and consider, and file with the court, any written comments, views or allegations relating to the proposed judgment. The Department shall reserve the right (1) to withdraw or withhold its consent to the proposed judgment if the comments, views and allegations concerning the judgment disclose facts or considerations which indicate that the proposed judgment is inappropriate, improper or inadequate and (2) to oppose an attempt by any person to intervene in the action. (c) The Assistant Attorney General in charge of the Land and Natural Resources Division may establish procedures for implementing this policy. Where it is clear that the public interest in the policy hereby established is not compromised, the Assistant Attorney General may permit an exception to this policy in a specific case where extraordinary circumstances require a period shorter than 30 days or a procedure other than stated herein. [Order No. 529-73, 38 FR 19029, July 17, 1973] § 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 (3) Grand jury proceedings or proceedings ancillary thereto; or (4) Conferences traditionally held at the bench or in chambers during the course of an open proceeding; or (5) The closure of judicial proceedings pursuant to 18 U.S.C. 3509 (d) and (e) for the protection of child victims or child witnesses. (f) Because of the vital public interest in open judicial proceedings, the records of any proceeding closed pursuant to this section, and still sealed 60 days after termination of the proceeding, shall be reviewed to determine if the reasons for closure are still applicable. If they are not, an appropriate motion will be made to have the records unsealed. If the reasons for closure are still applicable after 60 days, this review is to be repeated every 60 days until such time as the records are unsealed. Compliance with this section will be monitored by the Criminal Division. (g) The principles set forth in this section are intended to provide guidance to attorneys for the Government and are not intended to create or recognize any legally enforceable right in any person. [Order No. 914-80, 45 FR 69214, Oct. 20, 1980, as amended by Order No. 1031-83, 48 FR 49509, Oct. 26, 1983; Order No. 1115-85, 50 FR 51677, Dec. 19, 1985; Order No. 1507-91, 56 FR 32327, July 16, 1991] § 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. (2) In determining whether to seek information from, or records of, members of the news media, the approach in every instance must be to strike the proper balance among several vital interests: protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society. (3) The Department views the use of certain law enforcement tools, including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) or 3123, and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices. (4) Investigative activities pursuant to this policy may also be subject to the Privacy Protection Act of 1979, 42 U.S.C. 2000aa. (b) Scope Covered individuals and entities. (ii) Regardless of affiliation with the news media, the protections of the policy do not extend to any individual or entity who is or is reasonably likely to be— (A) A foreign power or agent of a foreign power, as those terms are defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); (B) A member or affiliate of a foreign terrorist organization designated under section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)); (C) Designated as a Specially Designated Global Terrorist by the Department of the Treasury under Executive Order 13224 of September 23, 2001 (66 FR 49079); (D) A 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)); (E) Committing or attempting to commit a crime of terrorism, as described in 18 U.S.C. 2331(5) or 2332b(g)(5); (F) Committing or attempting to commit a crime involving the provision of material support or resources to a terrorist organization; or (G) Aiding, abetting, or conspiring in illegal activity with a person or organization described in paragraphs (b)(1)(ii)(A) through (F) of this section. (2) Covered law enforcement tools and records. (ii) The policy also governs applications for warrants to search the premises or property of members of the news media pursuant to Federal Rule of Criminal Procedure 41, or to obtain from third-party communication service providers the communications records of members of the news media, pursuant to 18 U.S.C. 2703(a) and (b). (3) Definitions Communications records. (B) Communications records do not include information described in 18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F). (ii) Communication service provider. (iii) Business records. (B) Business records do not include records unrelated to lawful newsgathering activities, such as those related to the purely commercial, financial, administrative, or technical operations of a news media entity. (C) Business records do not include records that are created or maintained either by the government or by a contractor on behalf of the government. (c) Issuing subpoenas to members of the news media, or using subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 to obtain from third parties communications records or business records of a member of the news media. (2) Requests for the authorization of the Attorney General for the issuance of a subpoena to a member of the news media, or to use a subpoena, 2703(d) order, or 3123 order to obtain communications records or business records of a member of the news media, must be approved by the United States Attorney or Assistant Attorney General responsible for the matter. (3) Exceptions to the Attorney General authorization requirement may be made as follows: (i)(A) A United States Attorney or Assistant Attorney General responsible for the matter may authorize the issuance of a subpoena to a member of the news media ( e.g., (B) In the case of an authorization under paragraph (c)(3)(i)(A) of this section, the United States Attorney or Assistant Attorney General responsible for the matter shall provide notice to the Director of the Criminal Division's Office of Enforcement Operations within 10 business days of the authorization of the issuance of the subpoena. (ii) Authorization of the Attorney General will not be required of members of the Department in the following circumstances: (A) To issue subpoenas to news media entities for purely commercial, financial, administrative, or other information unrelated to lawful newsgathering activities; or for information or records relating to personnel not involved in lawful newsgathering activities. (B) To use subpoenas to obtain information from, or to use subpoenas, 2703(d) orders, or 3123 orders to obtain communications records or business records of, members of the news media who may be perpetrators or victims of, or witnesses to, crimes or other events, when such status (as a perpetrator, victim, or witness) is unrelated to their lawful newsgathering activities. (iii) In the circumstances identified in paragraphs (c)(3)(ii)(A) and (B) of this section, the United States Attorney or Assistant Attorney General responsible for the matter must— (A) Authorize the use of the subpoena or court order; (B) Consult with the Criminal Division regarding appropriate review and safeguarding protocols prior to issuing a subpoena or requesting a court order; and (C) Provide a copy of the subpoena or court order to the Director of the Office of Public Affairs and to the Director of the Criminal Division's Office of Enforcement Operations within 10 business days of the issuance of the subpoena or court order. (4) Considerations for the Attorney General in determining whether to authorize the issuance of a subpoena to a member of the news media, or whether to authorize the use of a subpoena, 2703(d) order, or 3123 order to obtain from third parties the communications records or business records of a member of the news media. (i)(A) In criminal matters, there should be reasonable grounds to believe, based on public information, or information from sources other than the member of the news media who would be the target of the requested compulsory process, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution. The subpoena or court order should not be used to obtain peripheral, nonessential, or speculative information. (B) In civil matters, there should be reasonable grounds to believe, based on public information or information from sources other than the member of the news media who would be the target of the requested compulsory process, that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, cumulative, or speculative information. (ii) The government should have made all reasonable attempts to obtain the information, communications records, or business records from alternative sources. (iii)(A) The government should have pursued negotiations with the affected member of the news media, unless the Attorney General determines that such negotiations would pose a substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. (B) The requirement that members of the Department secure authorization from the Attorney General to question a member of the news media, as required in paragraph (f)(1) of this section, does not apply to negotiations described in paragraph (c)(4)(iii)(A) of this section. Accordingly, members of the Department do not need to secure authorization from the Attorney General to pursue such negotiations. (iv) In investigations of unauthorized disclosures of national defense information or of classified information, where the relevant Department or agency head certifies to the Attorney General the significance of the harm raised by the unauthorized disclosure and that the information disclosed was properly classified, and reaffirms the Department's or agency's continued support for the investigation and prosecution, the Attorney General may authorize the Department of Justice, in such investigations, to issue subpoenas to members of the news media. The Attorney General may also authorize the Department, in such investigations, to use subpoenas, 2703(d) orders, or 3123 orders to obtain communications records or business records of a member of the news media. (v) The proposed subpoena or court order should be narrowly drawn. It should be directed at material and relevant information regarding a limited subject matter, should cover a reasonably limited period of time, should avoid requiring production of a large volume of material, and should give reasonable and timely notice of the demand. (vi) If appropriate, investigators should propose to use search protocols designed to minimize intrusion into potentially protected materials or newsgathering activities unrelated to the investigation, including but not limited to keyword searches (for electronic searches) and filter teams (reviewing teams separate from the prosecution and investigative teams). (d) Applying for warrants to search the premises, property, or communications records of members of the news media. (2) All requests for authorization of the Attorney General to apply for a warrant to search the premises, property, or communications records of a member of the news media must be approved by the United States Attorney or Assistant Attorney General responsible for the matter. (3) In determining whether to authorize an application for a warrant to search the premises, property, or communications records of a member of the news media, the Attorney General should take into account the considerations identified in paragraph (c)(4) of this section. (4) In executing a warrant authorized by the Attorney General or by a Deputy Assistant Attorney General for the Criminal Division, investigators should use search protocols designed to minimize intrusion into potentially protected materials or newsgathering activities unrelated to the investigation, including but not limited to keyword searches (for electronic searches) and filter teams (reviewing teams separate from the prosecution and investigative teams). (e) Notice to affected member of the news media. (ii) The mere possibility that notice to the affected member of the news media, and potential judicial review, might delay the investigation is not, on its own, a compelling reason to delay notice. (2) When the Attorney General has authorized the use of a subpoena, court order, or warrant to obtain communications records or business records of a member of the news media, and the affected member of the news media has not been given notice of the Attorney General's determination before the use of the subpoena, court order, or warrant, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the affected member of the news media notice of the order or warrant as soon as it is determined that such notice will no longer pose a substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. In any event, such notice shall occur within 45 days of the government's receipt of any return made pursuant to the subpoena, court order, or warrant, except that the Attorney General may authorize delay of notice for an additional 45 days if he or she determines that, for compelling reasons, such notice would pose a substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm. No further delays may be sought beyond the 90-day period. (3) The United States Attorney or Assistant Attorney General responsible for the matter shall provide to the Director of the Office of Public Affairs and to the Director of the Criminal Division's Office of Enforcement Operations a copy of any notice to be provided to a member of the news media whose communications records or business records were sought or obtained at least 10 business days before such notice is provided to the affected member of the news media, and immediately after such notice is, in fact, provided to the affected member of the news media. (f) Questioning members of the news media about, arresting members of the news media for, or charging members of the news media with, criminal conduct they are suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as members of the news media. (2) No member of the Department shall seek a warrant for an arrest, or conduct an arrest, of a member of the news media for any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without providing notice to the Director of the Office of Public Affairs and obtaining the express authorization of the Attorney General. (3) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, without providing notice to the Director of the Office of Public Affairs and obtaining the express authorization of the Attorney General. (4) In requesting the Attorney General's authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking an indictment or to file an information against, a member of the news media for an offense that he or she is suspected of having committed in the course of, or arising out of, the coverage or investigation of news, or while engaged in the performance of duties undertaken as a member of the news media, a member of the Department shall state all facts necessary for a determination by the Attorney General. (g) Exigent circumstances. (2) A Deputy Assistant Attorney General for the Criminal Division may authorize an application for a warrant, as described in paragraph (d) of this section, if there is reason to believe that the immediate seizure of the materials at issue is necessary to prevent the death of, or serious bodily injury to, a human being, as provided in 42 U.S.C. 2000aa(a)(2) and (b)(2). (3) Within 10 business days of a Deputy Assistant Attorney General for the Criminal Division approving a request under paragraph (g) of this section, the United States Attorney or Assistant Attorney General responsible for the matter shall provide to the Attorney General and to the Director of the Office of Public Affairs a statement containing the information that would have been given in requesting prior authorization. (h) Failure to comply with policy. (i) General provision. [90 FR 18786, May 2, 2025] § 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. [Order No. 2258-99, 64 FR 52229, Sept. 28, 1999] § 50.14 Guidelines on employee selection procedures. The guidelines set forth below are intended as a statement of policy of the Department of Justice and will be applied by the Department in exercising its responsibilities under Federal law relating to equal employment opportunity. Uniform Guidelines on Employee Selection Procedures (1978) Note: These guidelines are issued jointly by four agencies. Separate official adoptions follow the guidelines in this part IV as follows: Civil Service Commission, Department of Justice, Equal Employment Opportunity Commission, Department of Labor. For official citation see section 18 of these guidelines. Table of Contents general principles 1. Statement of Purpose A. Need for Uniformity—Issuing Agencies B. Purpose of Guidelines C. Relation to Prior Guidelines 2. Scope A. Application of Guidelines B. Employment Decisions C. Selection Procedures D. Limitations E. Indian Preference Not Affected 3. Discrimination Defined: Relationship Between Use of Selection Procedures and Discrimination A. Procedure Having Adverse Impact Constitutes Discrimination Unless Justified B. Consideration of Suitable Alternative Selection Procedures 4. Information on Impact A. Records Concerning Impact B. Applicable Race, Sex and Ethnic Groups For Record Keeping C. Evaluation of Selection Rates. The “Bottom Line” D. Adverse Impact And The “Four-Fifths Rule” E. Consideration of User's Equal Employment Opportunity Posture 5. General Standards for Validity Studies A. Acceptable types of Validity Studies B. Criterion-Related, Content, and Construct Validity C. Guidelines Are Consistent with Professional Standards D. Need For Documentation of Validity E. Accuracy and Standardization F. Caution Against Selection on Basis of Knowledges, Skills or Abilities Learned in Brief Orientation Period G. Method of Use of Selection Procedures H. Cutoff Scores I. Use of Selection Procedures for Higher Level Jobs J. Interim Use of Selection Procedures K. Review of Validity Studies for Currency 6. Use of Selection Procedures Which Have Not Been Validated A. Use of Alternate Selection Procedures to Eliminate Adverse Impact B. Where Validity Studies Cannot or Need Not Be Performed (1) Where Informal or Unscored Procedures Are Used (2) Where Formal And Scored Procedures Are Used 7. Use of Other Validity Studies A. Validity Studies not Conducted by the User B. Use of Criterion-Related Validity Evidence from Other Sources (1) Validity Evidence (2) Job Similarity (3) Fairness Evidence C. Validity Evidence from Multi-Unit Study D. Other Significant Variables 8. Cooperative Studies A. Encouragement of Cooperative Studies B. Standards for Use of Cooperative Studies 9. No Assumption of Validity A. Unacceptable Substitutes for Evidence of Validity B. Encouragement of Professional Supervision 10. Employment Agencies and Employment Services A. Where Selection Procedures Are Devised by Agency B. Where Selection Procedures Are Devised Elsewhere 11. Disparate Treatment 12. Retesting of Applicants 13. Affirmative Action A. Affirmative Action Obligations B. Encouragement of Voluntary Affirmative Action Programs technical standards 14. Technical Standards for Validity Studies A. Validity Studies Should be Based on Review of Information about the Job B. Technical Standards for Criterion-Related Validity Studies (1) Technical Feasibility (2) Analysis of the Job (3) Criterion Measures (4) Representativeness of the Sample (5) Statistical Relationships (6) Operational Use of Selection Procedures (7) Over-Statement of Validity Findings (8) Fairness (a) Unfairness Defined (b) Investigation of Fairness (c) General Considerations in Fairness Investigations (d) When Unfairness Is Shown (e) Technical Feasibility of Fairness Studies (f) Continued Use of Selection Procedures When Fairness Studies not Feasible C. Technical Standards for Content Validity Studies (1) Appropriateness of Content Validity Studies (2) Job Analysis for Content Validity (3) Development of Selection Procedure (4) Standards For Demonstrating Content Validity (5) Reliability (6) Prior Training or Experience (7) Training Success (8) Operational Use (9) Ranking Based on Content Validity Studies D. Technical Standards For Construct Validity Studies (1) Appropriateness of Construct Validity Studies (2) Job Analysis For Construct Validity Studies (3) Relationship to the Job (4) Use of Construct Validity Study Without New Criterion-Related Evidence (a) Standards for Use (b) Determination of Common Work Behaviors documentation of impact and validity evidence 15. Documentation of Impact and Validity Evidence A. Required Information (1) Simplified Recordkeeping for Users With Less Than 100 Employees (2) Information on Impact (a) Collection of Information on Impact (b) When Adverse Impact Has Been Eliminated in The Total Selection Process (c) When Data Insufficient to Determine Impact (3) Documentation of Validity Evidence (a) Type of Evidence (b) Form of Report (c) Completeness B. Criterion-Related Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Job Analysis or Review of Job Information (4) Job Titles and Codes (5) Criterion Measures (6) Sample Description (7) Description of Selection Procedure (8) Techniques and Results (9) Alternative Procedures Investigated (10) Uses and Applications (11) Source Data (12) Contact Person (13) Accuracy and Completeness C. Content Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Job Analysis—Content of the Job (4) Selection Procedure and its Content (5) Relationship Between Selection Procedure and the Job (6) Alternative Procedures Investigated (7) Uses and Applications (8) Contact Person (9) Accuracy and Completeness D. Construct Validity Studies (1) User(s), Location(s), and Date(s) of Study (2) Problem and Setting (3) Construct Definition (4) Job Analysis (5) Job Titles and Codes (6) Selection Procedure (7) Relationship to Job Performance (8) Alternative Procedures Investigated (9) Uses and Applications (10) Accuracy and Completeness (11) Source Data (12) Contact Person E. Evidence of Validity from Other Studies (1) Evidence from Criterion-Related Validity Studies (a) Job Information (b) Relevance of Criteria (c) Other Variables (d) Use of the Selection Procedure (e) Bibliography (2) Evidence from Content Validity Studies (3) Evidence from Construct Validity Studies F. Evidence of Validity from Cooperative Studies G. Selection for Higher Level Jobs H. Interim Use of Selection Procedures definitions 16. Definitions appendix 17. Policy Statement on Affirmative Action (see Section 13B) 18. Citations General Principles Section 1. Statement of purpose Need for uniformity—Issuing agencies. B. Purpose of guidelines. C. Relation to prior guidelines. Sec. 2. Scope Application of guidelines. B. Employment decisions. C. Selection procedures. D. Limitations. E. Indian preference not affected. Sec. 3. Discrimination defined: Relationship between use of selection procedures and discrimination Procedure having adverse impact constitutes discrimination unless justified. B. Consideration of suitable alternative selection procedures. Sec. 4. Information on impact Records concerning impact. B. Applicable race, sex, and ethnic groups for recordkeeping. C. Evaluation of selection rates. The “bottom line.” D. Adverse impact and the “four-fifths rule.” 4/5 E. Consideration of user's equal employment opportunity posture. Sec. 5. General standards for validity studies Acceptable types of validity studies. B. Criterion-related, content, and construct validity. C. Guidelines are consistent with professional standards. D. Need for documentation of validity. E. Accuracy and standardization. F. Caution against selection on basis of knowledges, skills, or ability learned in brief orientation period. G. Method of use of selection procedures. H. Cutoff scores. I. Use of selection procedures for higher level jobs. (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. K. Review of validity studies for currency. Sec. 6. Use of selection procedures which have not been validated Use of alternate selection procedures to eliminate adverse impact. B. Where validity studies cannot or need not be performed. (1) Where informal or unscored procedures are used. (2) Where formal and scored procedures are used. Sec. 7. Use of other validity studies Validity studies not conducted by the user. B. Use of criterion-related validity evidence from other sources. (1) Validity evidence. (2) Job similarity. (3) Fairness evidence. C. Validity evidence from multiunit study. D. Other significant variables. Sec. 8. Cooperative studies Encouragement of cooperative studies. B. Standards for use of cooperative studies. Sec. 9. No assumption of validity Unacceptable substitutes for evidence of validity. B. Encouragement of professional supervision. Sec. 10. Employment agencies and employment services Where selection procedures are devised by agency. B. Where selection procedures are devised elsewhere. Sec. 11. Disparate treatment. Sec. 12. Retesting of applicants. Sec. 13. Affirmative action Affirmative action obligations. B. Encouragement of voluntary affirmative action programs. Technical Standards Sec. 14. Technical standards for validity studies. A. Validity studies should be based on review of information about the job. B. Technical standards for criterion-related validity studies Technical feasibility. (2) Analysis of the job. (3) Criterion measures. (4) Representativeness of the sample. 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. (6) Operational use of selection procedures. (7) Overstatement of validity findings. (8) Fairness. (a) Unfairness defined. (b) Investigation of fairness. (c) General considerations in fairness investigations. (d) When unfairness is shown. (e) Technical feasibility of fairness studies. (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. C. Technical standards for content validity studies Appropriateness of content validity studies. 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. (3) Development of selection procedures. (4) Standards for demonstrating content validity. (5) Reliability. (6) Prior training or experience. (7) Content validity of training success. (8) Operational use. (9) Ranking based on content validity studies. D. Technical standards for construct validity studies Appropriateness of construct validity studies. (2) Job analysis for construct validity studies. (3) Relationship to the job. (4) Use of construct validity study without new criterion-related evidence Standards for use. (b) Determination of common work behaviors. Documentation of Impact and Validity Evidence Sec. 15. Documentation of impact and validity evidence Required information. (1) Simplified recordkeeping for users with less than 100 employees. et seq., (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 Collection of information on impact. (b) When adverse impact has been eliminated in the total selection process. (c) When data insufficient to determine impact. (3) Documentation of validity evidence Types of 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. (c) Completeness. B. Criterion-related validity studies. (1) User(s), location(s), and date(s) of study. (2) Problem and setting. (3) Job analysis or review of job information. (4) Job titles and codes. (5) Criterion measures. (6) Sample description. (7) Description of selection procedures. (8) Techniques and results. (9) Alternative procedures investigated. (10) Uses and applications. (11) Source data. (12) Contact person. (13) Accuracy and completeness. C. Content validity studies. (1) User(s), location(s) and date(s) of study. (2) Problem and setting. (3) Job analysis—Content of the job. (4) Selection procedure and its content. (5) Relationship between the selection procedure and the job. (6) Alternative procedures investigated. (7) Uses and applications. (8) Contact person. (9) Accuracy and completeness. D. Construct validity studies. (1) User(s), location(s), and date(s) of study. (2) Problem and setting. (3) Construct definition. (4) Job analysis. (5) Job titles and codes. (6) Selection procedure. (7) Relationship to job performance. (8) Alternative procedures investigated. (9) Uses and applications. (10) Accuracy and completeness. (11) Source data. (12) Contact person. E. Evidence of validity from other studies. (1) Evidence from criterion-related validity studies Job information. b. Relevance of criteria. c. Other variables. d. Use of the selection procedure. e. Bibliography. (2) Evidence from content validity studies. (3) Evidence from construct validity studies. F. Evidence of validity from cooperative studies. G. Selection for higher level job. H. Interim use of selection procedures. Definitions Sec. 16. Definitions. A. Ability. B. Adverse impact. C. Compliance with these guidelines. D. Content validity. E. Construct validity. F. Criterion-related validity. G. Employer. H. Employment agency. I. Enforcement action. J. Enforcement agency. K. Job analysis. L. Job description. M. Knowledge. N. Labor organization. O. Observable. P. Race, sex, or ethnic group. Q. Selection procedure. R. Selection rate. S. Should. T. Skill. U. Technical feasibility. V. Unfairness of selection procedure. W. User. X. Validated in accord with these guidelines or properly validated. Y. Work behavior. Appendix 17. Policy statement on affirmative action (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, Harold R. Tyler, Deputy Attorney General and Chairman of the Equal Employment Coordinating Council. Michael H. Moskow, Under Secretary of Labor. Ethel Bent Walsh, Acting Chairman, Equal Employment Opportunity Commission. Robert E. Hampton, Chairman, Civil Service Commission. Arthur E. Flemming, Chairman, Commission on Civil Rights. Because of its equal employment opportunity responsibilities under the State and Local Government Fiscal Assistance Act of 1972 (the revenue sharing act), the Department of Treasury was invited to participate in the formulation of this policy statement; and it concurs and joins in the adoption of this policy statement. Done this 26th day of August 1976. Richard Albrecht, General Counsel, Department of the Treasury. Section 18. Citations. The official citation is: “Section ____, Uniform Guidelines on Employee Selection Procedure (1978); 43 FR ____ (August 25, 1978).” The short form citation is: “Section __, U.G.E.S.P. (1978); 43 FR __ (August 25, 1978).” When the guidelines are cited in connection with the activities of one of the issuing agencies, a specific citation to the regulations of that agency can be added at the end of the above citation. The specific additional citations are as follows: Equal Employment Opportunity Commission 29 CFR Part 1607 Department of Labor Office of Federal Contract Compliance Programs 41 CFR Part 60-3 Department of Justice 28 CFR 50.14 Civil Service Commission 5 CFR 300.103(c) Normally when citing these guidelines, the section number immediately preceding the title of the guidelines will be from these guidelines series 1-18. If a section number from the codification for an individual agency is needed it can also be added at the end of the agency citation. For example, section 6A of these guidelines could be cited for EEOC as follows: “Section 6A, Uniform Guidelines on Employee Selection Procedures (1978); 43 FR __, (August 25, 1978); 29 CFR part 1607, section 6A.” Eleanor Holmes Norton, Chair, Equal Employment Opportunity Commission. Alan K. Campbell, Chairman, Civil Service Commission. Ray Marshall, Secretary of Labor. Griffin B. Bell, Attorney General. [Order No. 668-76, 41 FR 51735, Nov. 23, 1976, as amended at 43 FR 38295, Aug. 25, 1978] § 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. [Order No. 970-82, 47 FR 8172, Feb. 25, 1982, as amended at Order No. 1139-86, 51 FR 27022, July 29, 1986; Order No. 1409-90, 55 FR 13130, Apr. 9, 1990] § 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. [Order No. 970-82, 47 FR 8174, Feb. 25, 1982, as amended by Order No. 1409-90, 55 FR 13130, Apr. 9, 1990] § 50.17 Ex parte 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 (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 [Order No. 801-78, 43 FR 43297, Sept. 25, 1978, as amended at Order No. 1409-90, 55 FR 13130, Apr. 9, 1990] § 50.18 Petitions for rulemaking. (a) Applicability of this section. General. (2) Exception. (3) Department discretion. (b) Definitions. Component. Department. Petition for rulemaking. Petitioner. (c) Formatting and submission requirements. (1) Format. (i) The words “Petition for Rulemaking”; and (ii) The petitioner's name and mailing address, in addition to any other contact information (such as telephone number or email address) that the petitioner chooses to include. (2) Submission. (3) Content. (i) If requesting that the Department amend or repeal an existing rule or regulation, a citation to that rule or provision in the Code of Federal Regulations; (ii) If requesting that the Department issue a new rule or amend an existing rule or regulation, the language the petitioner recommends for the new or amended rule or regulatory text; (iii) The reasons supporting the proposed action, including the factual or legal problem the petitioner seeks to address; (iv) An explanation of how the proposed action would address the problem or problems identified; (v) An explanation of why the proposed action would be in the public interest; and (vi) The interest that each petitioner has in the action sought. (4) Submissions by parties to proceedings before the Department. (d) Additional recommended content for a petition for rulemaking. (1) Sources in support of the petitioner's request as well as those counseling against it; (2) The legal authority pursuant to which the Department may issue, amend, or repeal the rule in question; (3) The name of the component, if known, under whose authority the rule exists or would exist if the petition requests that the Department issue a rule; (4) An explanation of why rulemaking is the most appropriate means to address the problem identified in the petition, and why other ways to resolve the problem, such as adjudication or agency guidance, are insufficient; and (5) An analysis of reasons for not adopting possible alternative rulemaking approaches to achieve the intended result. (e) Docketing and public display. (f) Logging and internal Department review of response. (2) The Office of Legal Policy will maintain a log that tracks each petition for rulemaking that the Department receives and the status of each such petition, in addition to any similar logs maintained by the Justice Management Division and the component tasked with drafting a response. (3) The component tasked with drafting a response to a petition shall submit the draft response to the Office of Legal Policy for appropriate review and clearance and shall coordinate with the Office of Legal Policy on the appropriate means for issuing the response. (g) Determination. (1) The merits of the petition; (2) Whether addressing the issues raised in the petition is consistent with the Department's policy preferences and priorities; (3) The immediacy of the concern raised; (4) The availability of resources and the priority of the issues raised in relation to other Department rulemaking actions; (5) Whether the problems or issues raised are already under consideration by the Department in other actions; and (6) Whether rulemaking is the appropriate means to address the problems or issues raised. (h) Resolution Notification. (2) Delegation of authority for denying petitions. (3) Effect of grant of petition for rulemaking. (4) Timing. [AG Order No. 7028-2026, 91 FR 47959, July 30, 2026] § 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., (b) Prior to seeking such approval, Justice Department lawyer(s) handling the litigation shall timely seek the recommendations of the U.S. Attorney for the district in which the matter is pending, and the views of the client agencies, if any. Similarly, if agency attorneys are primarily handling any such suit, they shall seek the recommendations of the U.S. Attorney and provide them to the Department of Justice with the request for approval. In actions where the United States Attorneys are primarily handling the litigation in question, they shall seek the recommendation of the client agencies, if any, for submission to the Assistant Attorney General. (c) In the event that the conduct and pace of the litigation does not allow sufficient time to seek the prior written approval by the Assistant Attorney General, prior oral authorization shall be sought and a written record fully reflecting that authorization shall be subsequently prepared and submitted to the Assistant Attorney General. (d) Assistant Attorneys General may delegate the authority to approve or deny requests made pursuant to this section, but only to Deputy Assistant Attorneys General or an equivalent position. (e) This policy statement does not create or enlarge any legal obligations upon the Department of Justice in civil or criminal litigation, and it is not intended to create any private rights enforceable by private parties in litigation with the United States. [Order No. 977-82, 47 FR 22094, May 21, 1982] § 50.20 Participation by the United States in court-annexed arbitration. (a) Considerations affecting participation in arbitration. (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. (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., (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. (2) In any case involving the United States that is designated for arbitration under a program pursuant to which such a penalty or sanction might be imposed against the United States, its officers or agents, the attorney for the government is instructed to take appropriate steps, by motion, notice of objection, or otherwise, to apprise the court of the objection of the United States to the imposition of such a penalty or sanction. (3) Should such a penalty or sanction actually be required of or imposed on the United States, its officers or agents, the attorney for the government is instructed to: (i) Advise the appropriate Assistant Attorney General of this development promptly in writing; (ii) Seek appropriate relief from the district court; and (iii) If necessary, seek authority for filing an appeal or petition for mandamus. The Solicitor General, the Assistant Attorneys General, and the U.S. Attorneys are instructed to take all appropriate steps to resist the imposition of such penalties or sanctions against the United States. (d) Additional restrictions. (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., (e) Notification of new or revised arbitration rules. (1) Advise the district court of the provisions of this section and the limitations on the delegation of settlement authority to the United States Attorney pursuant to the Department's regulations and the directives of the litigation divisions; and (2) Forward to the Executive Office for United States Attorneys a notice that such a program is under consideration or has been adopted, or is being revised, together with a copy of the rules or proposed rules, if available, and a recommendation as to whether United States participation in the program as proposed, adopted, or revised, would be advisable, in whole or in part. [Order No. 1109-85, 50 FR 40524, Oct. 4, 1985] § 50.21 Procedures governing the destruction of contraband drug evidence in the custody of Federal law enforcement authorities. (a) General. (b) Purpose. (c) Policy. (d) Definitions. (1) The term Contraband drugs (2) The term Marijuana (3) The term Representative sample (4) The term Threshold amount (i) Two kilograms of a mixture or substance containing a detectable amount of heroin; (ii) Ten kilograms of a mixture or substance containing a detectable amount of— (A) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecognine or their salts have been removed; (B) Cocaine, its salts, optical and geometric isomers, and salts of isomers; (C) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (D) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in paragraphs (d)(4)(ii) (A) through (C) of this section; (iii) Ten kilograms of a mixture or substance described in paragraph (d)(4)(ii)(B) of this section which contains cocaine base; (iv) Two hundred grams of powdered phencyclidine (PCP) or two kilograms of a powdered mixture or substance containing a detectable amount of phencyclidine (PCP) or 28.35 grams of a liquid containing a detectable amount of phencyclidine (PCP); (v) Twenty grams of a mixture or substance containing a detectable amount of Lysergic Acid Diethylamide (LSD); (vi) Eight hundred grams of a mixture or substance containing a detectable amount of N-phenyl-N[1-(2-phenylethyl)-4-piperidiny] propanamide (commonly known as fentanyl) or two hundred grams of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl propanamide; or (vii) Twenty kilograms of hashish or two kilograms of hashish oil (21 U.S.C. 841(b)(1)(D), 960(b)(4)). In the event of any changes to section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1) as amended occurring after the date of these regulations, the threshold amount of any substance therein listed, except marijuana, shall be twice the minimum amount required for the most severe mandatory minimum sentence. (e) Procedures. When contraband drug substances in excess of the threshold amount or in the case of marijuana a quantity in excess of the representative sample are seized pursuant to a criminal investigation and retained in the custody of the Federal Bureau of Investigation or Drug Enforcement Administration, the Agency having custody shall: (1) Immediately notify the appropriate U.S. Attorney, Assistant U.S. Attorney, or the responsible state/local prosecutor that the amount of seized contraband drug exceeding the threshold amount and its packaging, will be destroyed after sixty days from the date notice is provided of the seizures, unless the agency providing notice is requested in writing by the authority receiving notice not to destroy the excess contraband drug; and (2) Assure that appropriate tests of samples of the drug are conducted to determined the chemical nature of the contraband substance and its weight sufficient to serve as evidence before the trial courts of that jurisdiction; and (3) Photographically depict, and if requested by the appropriate prosecutorial authority, videotape, the contraband drugs as originally packaged or an appropriate display of the seized contraband drugs so as to create evidentiary exhibits for use at trial; and (4) Isolate and retain the appropriate threshold amounts of contraband drug evidence when an amount greater than 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. (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. [Order No. 1256-88, 53 FR 8453, Mar. 15, 1988, as amended by Order No. 2920-2007, 72 FR 69144, Dec. 7, 2007] § 50.22 Young American Medals Program. (a) Scope. (b) Young American Medal for Bravery. (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. (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. (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. (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. (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. (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. (i) Young American Medals Committee. (1) Director of the FBI, Chairman; (2) Administrator of the Drug Enforcement Administration, Member; (3) Director of the U.S. Marshals Service, Member; and (4) Assistant Attorney General, Office of Justice Programs, Member and Executive Secretary. (Authority: The United States Department of Justice is authorized under 42 U.S.C. 1921 et seq. [61 FR 49260, Sept. 19, 1996] § 50.23 Policy against entering into final settlement agreements or consent decree that are subject to confidentiality provisions and against seeking or concurring in the sealing of such documents. (a) It is the policy of the Department of Justice that, in any civil matter in which the Department is representing the interests of the United States or its agencies, it will not enter into final settlement agreements or consent decrees that are subject to confidentiality provisions, nor will it seek or concur in the sealing of such documents. This policy flows from the principle of openness in government and is consistent with the Department's policies regarding openness in judicial proceedings (see 28 CFR 50.9) and the Freedom of Information Act (see Memorandum for Heads of Departments and Agencies from the Attorney General Re: The Freedom of Information Act (Oct. 4, 1993)). (b) There may be rare circumstances that warrant an exception to this general rule. In determining whether an exception is appropriate, any such circumstances must be considered in the context of the public's strong interest in knowing about the conduct of its Government and expenditure of its resources. The existence of such circumstances must be documented as part of the approval process, and any confidentiality provision must be drawn as narrowly as possible. Non-delegable approval authority to determine that an exception justifies use of a confidentiality provision in, or seeking or concurring in the sealing of, a final settlement or consent decree resides with the relevant Assistant Attorney General or United States Attorney, unless authority to approve the settlement itself lies with a more senior Department official, in which case the more senior official will have such approval authority. (c) Regardless of whether particular information is subject to a confidentiality provision or to seal, statutes and regulations may prohibit its disclosure from Department of Justice files. Thus, before releasing any information, Department attorneys should consult all appropriate statutes and regulations (e.g., 5 U.S.C. 552a (Privacy Act); 50 U.S.C. 403-3(c)(6) (concerning intelligence sources and methods), and Execution Order 12958 (concerning national security information). In particular, in matters involving individuals, the Privacy Act regulates disclosure of settlement agreements that have not been made part of the court record. (d) The principles set forth in this section are intended to provide guidance to attorneys for the Government and are not intended to create or recognize any legally enforceable right in any person. [Order No. 2270-99, 64 FR 59122, Nov. 2, 1999] § 50.24 Annuity broker minimum qualifications. (a) Minimum standards. (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. http://www.usdoj.gov/civil/home.html (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. (2) By submitting a Declaration to the Department of Justice, the individual annuity broker agrees that the Declaration and the list each may be made public in its entirety, and the annuity broker expressly consents to such release and disclosure of the Declaration and list. [Order No. 2667-2003, 68 FR 18120, Apr. 15, 2003] § 50.25 Assumption of concurrent Federal criminal jurisdiction in certain areas of Indian country. (a) Assumption of concurrent Federal criminal jurisdiction. (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. (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. (i) Acknowledge receipt; and (ii) Open a file. (2) Within 30 days of receipt of a tribal request, the Office of Tribal Justice shall: (i) Publish a notice in the Federal Register, (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. (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. (2) The Deputy Attorney General will: (i) Consent to the request for assumption of concurrent Federal criminal jurisdiction, effective as of some future date certain within the next twelve months (and, if feasible, within the next six months), with or without conditions, and publish a notice of the consent in the Federal Register (ii) Deny the request for assumption of concurrent Federal criminal jurisdiction; or (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. [AG Order No. 3314-2011, 76 FR 76042, Dec. 6, 2011] §§ 50.26-50.28 [Reserved]

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