01 CFR 0.0 1 CFR Ch. I (1-1-92 Edition)
01 CFR 0.0 Admin. Comm. of the Federal Register
01 CFR 0.0 Title 1 -- General Provisions
Part
chapter i -- Administrative Committee of the Federal Register 1
chapter ii -- Office of the Federal Register 51
chapter iii -- Administrative Conference of the United States 301
chapter iv -- Miscellaneous Agencies 425
01 CFR 0.0 1 CFR Ch. I (1-1-92 Edition)
01 CFR 0.0 Admin. Comm. of the Federal Register
01 CFR 0.0 CHAPTER I -- ADMINISTRATIVE COMMITTEE
01 CFR 0.0 OF THE FEDERAL REGISTER
Editorial Note: An Index to chapter I appears in the Finding Aids
section of this volume.
01 CFR 0.0 SUBCHAPTER A -- GENERAL
Part
Page
1 Definitions
2 General information
3 Services to the public
01 CFR 0.0
01 CFR 0.0 SUBCHAPTER B -- THE FEDERAL REGISTER
5 General
6 Indexes and ancillaries
01 CFR 0.0
01 CFR 0.0 SUBCHAPTER C -- SPECIAL EDITIONS OF THE FEDERAL REGISTER
8 Code of Federal Regulations
9 The United States Government Manual
10 Presidential Papers
01 CFR 0.0
01 CFR 0.0 SUBCHAPTER D -- AVAILABILITY OF OFFICE OF THE FEDERAL
REGISTER PUBLICATIONS
11 Subscriptions
12 Official distribution within Federal Government
01 CFR 0.0
01 CFR 0.0 SUBCHAPTER E -- PREPARATION, TRANSMITTAL, AND PROCESSING OF
DOCUMENTS
15 Services to Federal agencies
16 Agency representatives
17 Filing for public inspection and publication schedules
18 Preparation and transmittal of documents generally
19 Executive orders and Presidential proclamations
20 Handling of The United States Government Manual statements
21 Preparation of documents subject to codification
22 Preparation of notices and proposed rules
01 CFR 0.0
01 CFR 0.0 1 CFR Ch. I (1-1-92 Edition)
01 CFR 0.0 Admin. Comm. of the Federal Register
01 CFR 0.0 SUBCHAPTER A -- GENERAL
01 CFR 0.0 PART 1 -- DEFINITIONS
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p.189.
01 CFR 1.1 Definitions.
As used in this chapter, unless the context requires otherwise --
Administrative Committee means the Administrative Committee of the
Federal Register established under section 1506 of title 44, United
States Code;
Agency means each authority, whether or not within or subject to
review by another agency, of the United States, other than the Congress,
the courts, the District of Columbia, the Commonwealth of Puerto Rico,
and the territories and possessions of the United States;
Document includes any Presidential proclamation or Executive order,
and any rule, regulation, order, certificate, code of fair competition,
license, notice, or similar instrument issued, prescribed, or
promulgated by an agency;
Document having general applicability and legal effect means any
document issued under proper authority prescribing a penalty or course
of conduct, conferring a right, privilege, authority, or immunity, or
imposing an obligation, and relevant or applicable to the general
public, members of a class, or persons in a locality, as distinguished
from named individuals or organizations; and
Filing means making a document available for public inspection at the
Office of the Federal Register during official business hours. A
document is filed only after it has been received, processed and
assigned a publication date according to the schedule in part 17 of this
chapter.
Regulation and rule have the same meaning.
(37 FR 23603, Nov. 4, 1972, as amended at 50 FR 12466, Mar. 28, 1985)
01 CFR 1.1 PART 2 -- GENERAL INFORMATION
Sec.
2.1 Scope and purpose.
2.2 Administrative Committee of the Federal Register.
2.3 Office of the Federal Register; location; office hours.
2.4 General authority of Director.
2.5 Publication of statutes, regulations, and related documents.
2.6 Unrestricted use.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189; 1 U.S.C. 112; 1 U.S.C. 113.
Source: 37 FR 23603, Nov. 4, 1972, unless otherwise noted.
01 CFR 2.1 Scope and purpose.
(a) This chapter sets forth the policies, procedures, and delegations
under which the Administrative Committee of the Federal Register carries
out its general responsibilities under chapter 15 of title 44, United
States Code.
(b) A primary purpose of this chapter is to inform the public of the
nature and uses of Federal Register publications.
01 CFR 2.2 Administrative Committee of the Federal Register.
(a) The Administrative Committee of the Federal Register is
established by section 1506 of title 44, United States Code.
(b) The Committee consists of --
(1) The Archivist, or Acting Archivist, of the United States, who is
the Chairman;
(2) An officer of the Department of Justice designated by the
Attorney General; and
(3) The Public Printer or Acting Public Printer.
(c) The Director of the Federal Register is the Secretary of the
Committee.
(d) Any material required by law to be filed with the Committee, and
any correspondence, inquiries, or other material intended for the
Committee or which relate to Federal Register publications shall be sent
to the Director of the Federal Register.
01 CFR 2.3 Office of the Federal Register; location; office hours.
(a) The Office of the Federal Register is a component of the National
Archives and Records Administration.
(b) The Office is located at 1100 L Street NW., Washington, DC.
(c) The mailing address is: Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408.
(d) Office hours are 8:45 a.m. to 5:15 p.m., Monday through Friday,
except for official Federal holidays.
(37 FR 23603, Nov. 4, 1972, as amended at 54 FR 9676, Mar. 7, 1989)
01 CFR 2.4 General authority of Director.
(a) The Director of the Federal Register is delegated authority to
administer generally this chapter, the related provisions of chapter 15
of title 44, United States Code, and the pertinent provisions of
statutes and regulations contemplated by section 1505 of title 44,
United States Code.
(b) The Director may return to the issuing agency any document
submitted for publication in the Federal Register, or a special edition
thereof, if in the Director's judgment the document does not meet the
minimum requirements of this chapter.
(37 FR 23603, Nov. 4, 1972, as amended at 54 FR 9676, Mar. 7, 1989)
01 CFR 2.5 Publication of statutes, regulations, and related documents.
(a) The Director of the Federal Register is responsible for the
central filing of the original acts enacted by Congress and the original
documents containing Executive orders and proclamations of the
President, other Presidential documents, regulations, and notices of
proposed rulemaking and other notices, submitted to the Director by
officials of the executive branch of the Federal Government.
(b) Based on the acts and documents filed under paragraph (a) of this
section, the Office of the Federal Register publishes the ''slip laws,''
the ''United States Statutes at Large,'' the daily Federal Register and
the ''Code of Federal Regulations.''
(c) Based on source materials that are officially related to the acts
and documents filed under paragraph (a) of this section, the Office also
publishes ''The United States Government Manual,'' the ''Public Papers
of the Presidents of the United States,'' the ''Weekly Compilation of
Presidential Documents,'' the ''Federal Register Index,'' and the ''LSA
(List of CFR Sections Affected)''.
(37 FR 23603, Nov. 4, 1972, as amended at 54 FR 9676, Mar. 7, 1989)
01 CFR 2.6 Unrestricted use.
Any person may reproduce or republish, without restriction, any
material appearing in any regular or special edition of the Federal
Register.
01 CFR 2.6 PART 3 -- SERVICES TO THE PUBLIC
Sec.
3.1 Information services.
3.2 Public inspection of documents.
3.3 Reproduction and certification of copies of acts and documents.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23604, Nov. 4, 1972, unless otherwise noted.
01 CFR 3.1 Information services.
Except in cases where the time required would be excessive,
information concerning the publications described in 2.5 of this
chapter and the original acts and documents filed with the Office of the
Federal Register is provided by the staff of that Office. However, the
staff may not summarize or interpret substantive text of any act or
document.
01 CFR 3.2 Public inspection of documents.
(a) Documents filed with the Office of the Federal Register pursuant
to law are available for public inspection in Room 8301, 1100 L Street
NW., Washington, DC, during the Office of the Federal Register office
hours. There are no formal inspection procedures or requirements.
(b) The Director of the Federal Register shall cause each document
received by the office to be filed for public inspection not later than
the working day preceding the publication day for that document.
(c) The Director shall cause to be placed on the original and
certified copies of each document a notation of the day and hour when it
was filed and made available for public inspection.
(d) Photocopies of documents or excerpts may be made at the
inspection desk.
(37 FR 23604, Nov. 4, 1972, as amended at 54 FR 9676, Mar. 7, 1989)
01 CFR 3.3 Reproduction and certification of copies of acts and
documents.
The regulations for the public use of records in the National
Archives (36 CFR parts 1252-1258) govern the furnishing of reproductions
of acts and documents and certificates of authentication for them.
Section 1258.14 of those regulations provides for the advance payment of
appropriate fees for reproduction services and for certifying
reproductions.
(51 FR 27017, July 29, 1986, as amended at 54 FR 9676, Mar. 7, 1989)
01 CFR 3.3 SUBCHAPTER B -- THE FEDERAL REGISTER
01 CFR 3.3 PART 5 -- GENERAL
Sec.
5.1 Publication policy.
5.2 Documents required to be filed for public inspection and
published.
5.3 Publication of other documents.
5.4 Publication not authorized.
5.5 Supplement to the Code of Federal Regulations.
5.6 Daily publication.
5.7 Delivery and mailing.
5.8 Form of citation.
5.9 Categories of documents.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23604, Nov. 4, 1972, unless otherwise noted.
01 CFR 5.1 Publication policy.
(a) Pursuant to chapter 15 of title 44, United States Code, and this
chapter, the Director of the Federal Register shall publish a serial
publication called the Federal Register to contain the following:
(1) Executive orders, proclamations, and other Presidential
documents.
(2) Documents required to be published therein by law.
(3) Documents accepted for publication under 5.3.
(b) Each document required or authorized to be filed for publication
shall be published in the Federal Register as promptly as possible,
within limitations imposed by considerations of accuracy, usability, and
reasonable costs.
(c) In prescribing regulations governing headings, preambles,
effective dates, authority citations, and similar matters of form, the
Administrative Committee does not intend to affect the validity of any
document that is filed and published under law.
01 CFR 5.2 Documents required to be filed for public inspection and
published.
The following documents are required to be filed for public
inspection with the Office of the Federal Register and published in the
Federal Register:
(a) Presidential proclamations and Executive orders in the numbered
series, and each other document that the President submits for
publication or orders to be published.
(b) Each document or class of documents required to be published by
act of Congress.
(c) Each document having general applicability and legal effect.
(37 FR 23604, Nov. 4, 1972, as amended at 54 FR 9676, Mar. 7, 1989)
01 CFR 5.3 Publication of other documents.
Whenever the Director of the Federal Register considers that
publication of a document not covered by 5.2 would be in the public
interest, the Director may allow that document to be filed for public
inspection with the Office of the Federal Register and published in the
Federal Register.
(54 FR 9676, Mar. 7, 1989)
01 CFR 5.4 Publication not authorized.
(a) Chapter 15 of title 44, United States Code, does not apply to
treaties, conventions, protocols, or other international agreements, or
proclamations thereof by the President.
(b) Chapter 15 of title 44, United States Code, prohibits the
publication in the Federal Register of comments or news items.
(c) The Director of the Federal Register may not accept any document
for filing and publication unless it is the official action of the
agency concerned. Chapter 15 of title 44, United States Code, does not
authorize or require the filing and publication of other papers from an
agency.
01 CFR 5.5 Supplement to the Code of Federal Regulations.
The Federal Register serves as a daily supplement to the Code of
Federal Regulations. Each document that is subject to codification and
published in a daily issue shall be keyed to the Code of Federal
Regulations.
01 CFR 5.6 Daily publication.
There shall be an edition of the Federal Register published for each
official Federal working day.
(54 FR 9676, Mar. 7, 1989)
01 CFR 5.7 Delivery and mailing.
The Government Printing Office shall distribute the Federal Register
by delivery or by deposit at a post office at or before 9 a.m. on the
publication day, except that each Federal Register dated for a Monday
shall be deposited at a post office at or before 9 a.m. on the
preceding Saturday.
01 CFR 5.8 Form of citation.
Without prejudice to any other form of citation, Federal Register
material may be cited by volume and page number, and the short form
''FR'' may be used for ''Federal Register''. For example, ''37 FR
6803'' refers to material beginning on page 6803 of volume 37 of the
daily issues.
01 CFR 5.9 Categories of documents.
Each document published in the Federal Register shall be placed under
one of the following categories, as indicated:
(a) The President. This category contains each Executive order or
Presidential proclamation and each other Presidential document that the
President submits for publication or orders to be published.
(b) Rules and regulations. This category contains each document
having general applicability and legal effect, except those covered by
paragraph (a) of this section. This category includes documents subject
to codification, general policy statements concerning regulations,
interpretations of agency regulations, statements of organization and
function, and documents that affect other documents previously published
in the rules and regulations section.
(c) Proposed rules. This category contains each notice of proposed
rulemaking submitted pursuant to section 553 of title 5, United States
Code, or any other law, which if promulgated as a rule, would have
general applicability and legal effect. This category includes
documents that suggest changes to regulations in the Code of Federal
Regulations, begin a rulemaking proceeding, and affect or relate to
other documents previously published in the proposed rules section.
(d) Notices. This category contains miscellaneous documents
applicable to the public and not covered by paragraphs (a), (b), and (c)
of this section. This category includes announcements of meetings and
other information of public interest.
(37 FR 23604, Nov. 4, 1972, as amended at 54 FR 9676, Mar. 7, 1989)
01 CFR 5.9 PART 6 -- INDEXES AND ANCILLARIES
Sec.
6.1 Index to daily issues.
6.2 Analytical subject indexes.
6.3 Daily lists of parts affected.
6.4 Monthly list of sections affected.
6.5 Indexes, digests, and guides.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23605, Nov. 4, 1972, unless otherwise noted.
01 CFR 6.1 Index to daily issues.
Each daily issue of the Federal Register shall be appropriately
indexed.
01 CFR 6.2 Analytical subject indexes.
Analytical subject indexes covering the contents of the Federal
Register shall be published as currently as practicable and shall be
cumulated and separately published at least once each calendar year.
01 CFR 6.3 Daily lists of parts affected.
(a) Each daily issue of the Federal Register shall carry a numerical
list of the parts of the Code of Federal Regulations specifically
affected by documents published in that issue.
(b) Beginning with the second issue of each month, each daily issue
shall also carry a cumulated list of the parts affected by documents
published during that month.
01 CFR 6.4 Monthly list of sections affected.
A monthly list of sections of the Code of Federal Regulations
affected shall be separately published on a cumulative basis during each
calendar year. The list shall identify the sections of the Code
specifically affected by documents published in the Federal Register
during the period it covers.
01 CFR 6.5 Indexes, digests, and guides.
(a) The Director of the Federal Register may order the preparation
and publication of indexes, digests, and similar guides, based on laws,
Presidential documents, regulatory documents, and notice materials
published by the Office, which will serve users of the Federal Register.
Indexes, digests, and similar guides will be published yearly or at
other intervals as necessary to keep them current and useful.
(b) Each index, digest, and guide is considered to be a special
edition of the Federal Register whenever the public need requires
special printing or special binding in substantial numbers.
(54 FR 9676, Mar. 7, 1989)
01 CFR 6.5 SUBCHAPTER C -- SPECIAL EDITIONS OF THE FEDERAL REGISTER
01 CFR 6.5 PART 8 -- CODE OF FEDERAL REGULATIONS
Sec.
8.1 Policy.
8.2 Orderly development.
8.3 Periodic updating.
8.4 Indexes.
8.5 Ancillaries.
8.6 General format and binding.
8.7 Agency cooperation.
8.9 Form of citation.
Authority: 44 U.S.C. 1506, 1510; sec. 6, E.O. 10530, 19 FR 2709; 3
CFR, 1954-1958 Comp., p. 189.
Source: 37 FR 23605, Nov. 4, 1972, unless otherwise noted.
01 CFR 8.1 Policy.
(a) Pursuant to chapter 15 of title 44, United States Code, the
Director of the Federal Register shall publish periodically a special
edition of the Federal Register to present a compact and practical code
called the ''Code of Federal Regulations'', to contain each Federal
regulation of general applicability and legal effect.
(b) The Administrative Committee intends that every practical means
be used to keep the Code as current and readily usable as possible,
within limitations imposed by dependability and reasonable costs.
(37 FR 23605, Nov. 4, 1972, as amended at 54 FR 9677, Mar. 7, 1989)
01 CFR 8.2 Orderly development.
To assure orderly development of the Code of Federal Regulations
along practical lines, the Director of the Federal Register may
establish new titles in the Code and rearrange existing titles and
subordinate assignments. However, before taking an action under this
section, the Director shall consult with each agency directly affected
by the proposed change.
01 CFR 8.3 Periodic updating.
(a) Criteria. Each book of the Code shall be updated at least once
each calendar year. If no change in its contents has occurred during
the year, a simple notation to that effect may serve as the supplement
for that year. More frequent updating of any unit of the Code may be
made whenever the Director of the Federal Register determines that the
content of the unit has been substantially superseded or otherwise
determines that such action would be consistent with the intent and
purpose of the Administrative Committee as stated in 8.1.
(b) Staggered publication. The Code will be produced over a 12-month
period under a staggered publication system to be determined by the
Director of the Federal Register.
(c) Cutoff dates. Each updated title of the Code will reflect each
amendment to that title published as a codified regulation in the
Federal Register on or before the ''As of'' date. Thus, each title
updated as of July 1 each year will reflect all amendatory documents
appearing in the daily Federal Register on or before July 1.
(37 FR 23605, Nov. 4, 1972, as amended at 54 FR 9677, Mar. 7, 1989)
01 CFR 8.4 Indexes.
A subject index to the entire Code shall be annually revised and
separately published. An agency-prepared index for any individual book
may be published with the approval of the Director of the Federal
Register.
01 CFR 8.5 Ancillaries.
The Code shall provide, among others, the following-described finding
aids:
(a) Parallel tables of statutory authorities and rules. In the Code
of Federal Regulations Index or at such other place as the Director of
the Federal Register considers appropriate, numerical lists of all
sections of the current edition of the United States Code (except
section 301 of title 5) which are cited by issuing agencies as
rulemaking authority for currently effective regulations in the Code of
Federal Regulations. The lists shall be arranged in the order of the
titles and sections of the United States Code with parallel citations to
the pertinent titles and parts of the Code of Federal Regulations.
(b) Parallel tables of Presidential documents and agency rules. In
the Code of Federal Regulations Index, or at such other place as the
Director of the Federal Register considers appropriate, tables of
proclamations, Executive orders, and similar Presidential documents
which are cited as rulemaking authority in currently effective
regulations in the Code of Federal Regulations.
(c) List of CFR sections affected. Following the text of each Code
of Federal Regulations volume, a numerical list of sections which are
affected by documents published in the Federal Register. (Separate
volumes, ''List of Sections Affected, 1949-1963'' and ''List of CFR
Sections Affected, 1964-1972'', list all sections of the Code which have
been affected by documents published during the period January 1, 1949,
to December 31, 1963, and January 1, 1964, to December 31, 1972,
respectively.) /1/ Listings shall refer to Federal Register pages and
shall be designed to enable the user of the Code to find the precise
text that was in effect on a given date in the period covered.
(37 FR 23605, Nov. 4, 1972, as amended at 54 FR 9677, Mar. 7, 1989)
/1/ A three volume set, ''List of CFR Sections Affected, 1973-1985'',
lists all sections of the Code which have been affected during the
period January 1, 1973 to December 31, 1985.
01 CFR 8.6 General format and binding.
The Director of the Federal Register shall provide for the binding of
the Code into as many separate books as are indicated by the needs of
users and compatible with the facilities of the Government Printing
Office.
01 CFR 8.7 Agency cooperation.
Each agency shall cooperate in keeping publication of the Code
current by complying promptly with deadlines set by the Director of the
Federal Register and the Public Printer.
01 CFR 8.9 Form of citation.
The Code of Federal Regulations may be cited by title and section,
and the short form ''CFR'' may be used for ''Code of Federal
Regulations.'' For example, ''1 CFR 10.2'' refers to title 1, Code of
Federal Regulations, part 10, section 2.
01 CFR 8.9 PART 9 -- THE UNITED STATES GOVERNMENT MANUAL
Sec.
9.1 Publication required.
9.2 Scope.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23606, Nov. 4, 1972, unless otherwise noted.
01 CFR 9.1 Publication required.
The Director of the Federal Register shall separately publish
annually or at times designated by the Administrative Committee of the
Federal Register a special edition of the Federal Register called ''The
United States Government Manual'' or any other title that the
Administrative Committee of the Federal Register considers appropriate.
The Director of the Federal Register may issue special supplements to
the Manual when such supplementation is considered to be in the public
interest.
(54 FR 9677, Mar. 7, 1989)
01 CFR 9.2 Scope.
(a) The Manual shall contain appropriate information about the
Executive, Legislative, and Judicial branches of the Federal Government,
which for the major Executive agencies shall include --
(1) Descriptions of the agency's public purposes, programs and
functions;
(2) Established places and methods whereby the public may obtain
information and make submittals or requests; and
(3) Lists of officials heading major operating units.
(b) Brief information about quasiofficial agencies and supplemental
information that in the opinion of the Director of the Federal Register
is of enough public interest to warrant inclusion shall also be
published in the Manual.
01 CFR 9.2 PART 10 -- PRESIDENTIAL PAPERS
01 CFR 9.2 Subpart A -- Weekly Publication
Sec.
10.1 Publication required.
10.2 Scope and sources.
10.3 Format, indexes, and ancillaries.
01 CFR 9.2 Subpart B -- Annual Publication
10.10 Publication required.
10.11 Scope and sources.
10.12 Format, indexes, and ancillaries.
10.13 Coverage of prior years.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 50 FR 12467, Mar. 28, 1985, unless otherwise noted.
01 CFR 9.2 Subpart A -- Weekly Publication
01 CFR 10.1 Publication required.
The Director of the Federal Register shall publish a special edition
of the Federal Register called the ''Weekly Compilation of Presidential
Documents''.
01 CFR 10.2 Scope and sources.
(a) The basic text of each publication consists of oral statements by
the President or of writing subscribed by the President, and selected
from transcripts or text issued by the Office of the White House Press
Secretary, including --
(1) Communications to Congress;
(2) Public addresses and remarks;
(3) News conferences and interviews;
(4) Public messages and letters;
(5) Statements released on miscellaneous subjects; and
(6) Formal executive documents promulgated in accordance with law.
(b) In addition, each publication includes selections, either in full
text or ancillary form, from the following groups of documents, when
issued by the Press Office.
(1) Announcements of Presidential appointments and nominations;
(2) White House statements and announcements on miscellaneous
subjects;
(3) Statements by the Press Secretary or Deputy Press Secretary;
(4) Statements and news conferences by senior administration
officials; and
(5) Fact sheets.
01 CFR 10.3 Format, indexes, and ancillaries.
(a) The ''Weekly Compilation of Presidential Documents'' is published
in the binding and style that the Administrative Committee of the
Federal Register considers suitable for public and official use.
(b) Each publication is appropriately indexed and contains ancillary
information respecting Presidential activities and documents not printed
in full text. In general, ancillary texts, notes, and tables are
derived from official sources.
01 CFR 10.3 Subpart B -- Annual Publication
01 CFR 10.10 Publication required.
The Director of the Federal Register shall publish annually a special
edition of the Federal Register called the ''Public Papers of the
Presidents of the United States''.
01 CFR 10.11 Scope and sources.
The basic text of the Public Papers consists of the documents printed
in the ''Weekly Compilation of Presidential Documents''.
01 CFR 10.12 Format, indexes, and ancillaries.
(a) Each publication covers one calendar year, unless procedures
require otherwise, and is divided into books according to the amount of
material to be included. The publication is published in the binding
and style that the Administrative Committee of the Federal Register
considers suitable to the dignity of the Office of the President of the
United States.
(b) Each publication is appropriately indexed and contains additional
ancillary information and illustrative material respecting significant
Presidential documents and activities.
01 CFR 10.13 Coverage of prior years.
The Administrative Committee may authorize the publication of volumes
of papers of the Presidents covering specified years before 1945 after
consulting with the National Historical Publications and Records
Commission.
01 CFR 10.13 SUBCHAPTER D -- AVAILABILITY OF OFFICE OF THE FEDERAL REGISTER PUBLICATIONS
01 CFR 10.13 PART 11 -- SUBSCRIPTIONS
Sec.
11.1 Subscription by the public.
11.2 Federal Register.
11.3 Code of Federal Regulations.
11.4 The United States Government Manual.
11.5 Public Papers of the Presidents of the United States.
11.6 Weekly Compilation of Presidential Documents.
11.7 Federal Register Index.
11.8 LSA (List of CFR Sections Affected).
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 54 FR 9677, Mar. 7, 1989, unless otherwise noted.
01 CFR 11.1 Subscription by the public.
The publications described in 2.5 of this chapter are printed by the
Government Printing Office and are sold by the Superintendent of
Documents, Government Printing Office, Washington, DC 20402. All fees
are payable in advance to the Superintendent of Documents, Government
Printing Office. They are not available for free distribution to the
public.
01 CFR 11.2 Federal Register.
Daily issues, including the monthly Federal Register Index and the
LSA (List of CFR Sections Affected), will be furnished by mail to
subscribers for $340 per year in paper form; $195 per year in
microfiche form; or $37,500 per year for the magnetic tape. Six-month
subscriptions are also available at one-half the annual rate. Limited
quantities of current or recent copies may be obtained for $1.50 per
copy in paper or microfiche form, or $175 per magnetic tape.
01 CFR 11.3 Code of Federal Regulations.
A complete set will be furnished by mail to subscribers for $620 per
year for the bound, paper edition; $188 per year for the microfiche
edition; or $21,750 per year for the magnetic tape. Individual copies
of the bound, paper edition of the Code volumes are sold at prices
determined by the Superintendent of Documents under the general
direction of the Administrative Committee. The price of an individual
volume in microfiche form is $2.00 per copy, or $125 per magnetic tape.
01 CFR 11.4 The United States Government Manual.
Copies of the bound, paper edition of the Manual are sold at a price
determined by the Superintendent of Documents under the general
direction of the Administrative Committee. The price of the magnetic
tape is $125 per tape.
01 CFR 11.5 Public Papers of the Presidents of the United States.
Copies of annual clothbound volumes are sold at a price determined by
the Superintendent of Documents under the general direction of the
Administrative Committee.
01 CFR 11.6 Weekly Compilation of Presidential Documents.
Copies will be furnished to subscribers in paper form for $96 per
year by first-class mail or $55 per year by non-priority mail. The
price of an individual copy in paper form, is $2.00.
01 CFR 11.7 Federal Register Index.
The annual subscription price for the monthly Federal Register Index,
purchased separately, in paper form, is $19. Individual copies in paper
form are $1.50 per copy.
01 CFR 11.8 LSA (List of CFR Sections Affected).
The annual subscription price for the monthly LSA (List of CFR
Sections Affected), purchased separately, in paper form, is $21.
Individual copies in paper form are $1.50 per copy.
01 CFR 11.8 PART 12 -- OFFICIAL DISTRIBUTION WITHIN FEDERAL GOVERNMENT
Sec.
12.1 Federal Register.
12.2 Code of Federal Regulations.
12.3 The United States Government Manual.
12.4 Weekly Compilation of Presidential Documents.
12.5 Public Papers of the Presidents of the United States.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 54 FR 9678, Mar. 7, 1989.
01 CFR 12.1 Federal Register.
(a) Copies of the daily Federal Register in paper or microfiche form
shall be made available to the following without charge:
(1) Members of Congress. Each Senator and each Member of the House
of Representatives will be provided with not more than five copies of
each daily issue based on a written request to the Director of the
Federal Register.
(2) Congressional committees. Each committee of the Senate and the
House of Representatives will be provided with the number of copies
needed for official use based on a written request from the chairperson,
or authorized delegate, to the Director of the Federal Register.
(3) Supreme Court. The Supreme Court will be provided with the
number of copies needed for official use based on a written request to
the Director of the Federal Register.
(4) Other courts. Other constitutional or legislative courts of the
United States will be provided with the number of copies needed for
official use based on a written request from the Director of the
Administrative Office of the U.S. Courts, or authorized delegate, to the
Director of the Federal Register.
(5) Executive agencies. Each Federal executive agency will be
provided with the number of copies needed for official use based on a
written request from the agency Federal Register authorizing officer, or
the alternate, designated under 16.1 of this chapter, to the Director
of the Federal Register.
(b) Requisitions for quantity overruns of specific issues to be paid
for by the agency are available as follows:
(1) To meet its needs for special distribution of the Federal
Register in substantial quantity, any agency may request an overrun of a
specific issue.
(2) An advance printing and binding requisition on Standard Form 1
must be submitted by the agency directly to the Government Printing
Office, to be received not later than 12 noon on the working day before
publication.
(c) Requisitions for quantity overruns of separate part issues to be
paid for by the agency are available as follows:
(1) Whenever it is determined by the Director of the Federal Register
to be in the public interest, one or more documents may be published as
a separate part (e.g., part II, part III) of the Federal Register.
(2) Advance arrangements for this service must be made with the
Office of the Federal Register.
(3) Any agency may request an overrun of such a separate part by
submitting an advance printing and binding requisition on Standard Form
1 directly to the Government Printing Office, to be received not later
than 12 noon on the working day before the publication date.
(d) An agency may order limited quantities of extra copies of a
specific issue of the Federal Register for official use, from the
Superintendent of Documents, to be paid for by that agency.
(e) Copies of the Federal Register Index and LSA (List of CFR
Sections Affected) are included with each Federal Register official
distribution.
01 CFR 12.2 Code of Federal Regulations.
(a) Copies of the Code of Federal Regulations in paper or microfiche
form shall be made available to the following without charge:
(1) Congressional committees. Each committee of the Senate and House
of Representatives will be provided with the number of copies needed for
official use based on a written request from the chairperson, or
authorized delegate, to the Director of the Federal Register.
(2) Supreme Court. The Supreme Court will be provided with the
number of copies needed for official use based on a written request to
the Director of the Federal Register.
(3) Other courts. Other constitutional and legislative courts of the
United States will be provided with the number of copies needed for
official use based on a written request from the Director of the
Administrative Office of the U.S. Courts, or authorized delegate, to the
Director of the Federal Register.
(4) Executive agencies. Each Federal executive agency will be
provided with the number of copies needed for official use, not to
exceed 300 copies of individual titles per agency, based on a written
request from the agency Federal Register authorizing officer, or the
alternate, designated under 16.1 of this chapter, to the Director of
the Federal Register.
(b) Legislative, judicial, and executive agencies of the Federal
Government may obtain additional copies of selected units of the Code,
at cost, for official use, by submission, before the press run, of a
printing and binding requisition to the Government Printing Office on
Standard Form 1.
(c) After the press run, each request for extra copies of selected
units of the Code must be addressed to the Superintendent of Documents,
to be paid for by the agency making the request.
01 CFR 12.3 The United States Government Manual.
(a) Copies of The United States Government Manual shall be made
available to the following without charge:
(1) Members of Congress. Each Senator and each Member of the House
of Representatives will be provided with twelve copies.
(2) Congressional committees. Each committee of the Senate and House
of Representatives will be provided with the number of copies needed for
official use based on a written request from the chairperson, or
authorized delegate, to the Director of the Federal Register.
(3) Supreme Court. The Supreme Court will be provided with not more
than 18 copies based on a written request to the Director of the Federal
Register.
(4) Other courts. Other constitutional and legislative courts of the
United States will be provided with one copy based on a written request
from the Director of the Administrative Office of the U.S. Courts, or
authorized delegate, to the Director of the Federal Register.
(5) Executive agencies. Each head of a Federal executive agency and
each liaison officer designated under 16.1 or 20.1 of this chapter will
be provided with one copy.
(b) Legislative, judicial, and executive agencies of the Federal
Government may obtain additional copies of the Manual, at cost, for
official use, by submission, before the press run, of a printing and
binding requisition to the Government Printing Office on Standard Form
1.
(c) After the press run, each request for extra copies of the Manual
must be addressed to the Superintendent of Documents, to be paid for by
the agency making the request.
01 CFR 12.4 Weekly Compilation of Presidential Documents.
(a) Copies of the Weekly Compilation of Presidential Documents shall
be made available to the following without charge:
(1) Members of Congress. Each Senator and each Member of the House
of Representatives will be provided with the number of copies needed for
official use based on a written request to the Director of the Federal
Register.
(2) Congressional committees. Each committee of the Senate and the
House of Representatives will be provided with the number of copies
needed for official use based on a written request from the chairperson,
or authorized delegate, to the Director of the Federal Register.
(3) Supreme Court. The Supreme Court will be provided with the
number of copies needed for official use based on a written request to
the Director of the Federal Register.
(4) Other courts. Other constitutional and legislative courts of the
United States will be provided with the number of copies needed for
official use based on a written request from the Director of the
Administrative Office of the U.S. Courts, or authorized delegate, to the
Director of the Federal Register.
(5) Executive agencies. Each Federal executive agency will be
provided with the number of copies needed for official use based on a
written request from the agency Federal Register authorizing officer, or
the alternate designated under 16.1 of this chapter, to the Director of
the Federal Register.
(b) Legislative, judicial, and executive agencies of the Federal
Government may obtain additional copies of selected issues of the Weekly
Compilation of Presidential Documents, at cost, for official use, by
submission, before the press run, of a printing and binding requisition
to the Government Printing Office on a Standard Form 1.
(c) After the press run, each request for extra copies of selected
issues must be addressed to the Superintendent of Documents, to be paid
for by the agency making the request.
01 CFR 12.5 Public Papers of the Presidents of the United States.
(a) Copies of the Public Papers of the Presidents of the United
States shall be made available to the following without charge:
(1) Members of Congress. Each Senator and each Member of the House
of Representatives will be provided with one copy of each annual
publication published during the Member's term in office based on a
written request to the Director of the Federal Register.
(2) Supreme Court. The Supreme Court will be provided with not more
than 12 copies of each publication based on a written request to the
Director of the Federal Register.
(3) Executive agencies. Each head of a Federal executive agency will
be provided with one copy of each annual publication based on a written
request from the agency Federal Register authorizing officer, or the
alternate, designated under 16.1 of this chapter, to the Director of
the Federal Register.
(b) Legislative, judicial, and executive agencies of the Federal
Government may obtain additional copies, at cost, for official use, by
submission before the press run, of a printing and binding requisition
to the Government Printing Office on Standard Form 1.
(c) After the press run, each request for extra copies must be
addressed to the Superintendent of Documents, to be paid for by the
agency making the request.
01 CFR 12.5 SUBCHAPTER E -- PREPARATION, TRANSMITTAL, AND PROCESSING OF DOCUMENTS
01 CFR 12.5 PART 15 -- SERVICES TO FEDERAL AGENCIES
01 CFR 12.5 Subpart A -- General
Sec.
15.1 Cooperation.
15.2 Information services.
15.3 Staff assistance.
15.4 Reproduction and certification of copies of acts and documents.
01 CFR 12.5 Subpart B -- Special Assistance
15.10 Information on drafting and publication.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23607, Nov. 4, 1972, unless otherwise noted.
01 CFR 12.5 Subpart A -- General
01 CFR 15.1 Cooperation.
The Director of the Federal Register shall assist each agency in
complying with the pertinent publication laws to assure efficient public
service in promulgating administrative documents having the effect of
legal notice or of law.
01 CFR 15.2 Information services.
The Director of the Federal Register shall provide for the answering
of each appropriate inquiry presented in person, by telephone, or in
writing. Each written communication and each matter involving the
Administrative Committee shall be sent to the Director, Office of the
Federal Register, National Archives and Records Administration,
Washington, DC 20408.
(50 FR 12468, Mar. 28, 1985)
01 CFR 15.3 Staff assistance.
The staff of the Office of the Federal Register shall provide
informal assistance and advice to officials of the various agencies with
respect to general or specific programs of regulatory drafting,
procedures, and promulgation practices.
01 CFR 15.4 Reproduction and certification of copies of acts and
documents.
The Director of the Federal Register shall furnish to requesting
agencies, at cost, reproductions or certified copies of original acts
and documents filed with that Office that are needed for official use
unless funds are appropriated for that purpose.
(50 FR 12468, Mar. 28, 1985, as amended at 54 FR 9679, Mar. 7, 1989)
01 CFR 15.4 Subpart B -- Special Assistance
01 CFR 15.10 Information on drafting and publication.
The Director of the Federal Register may prepare, and distribute to
agencies, information and instructions designed to promote effective
compliance with the purposes of chapter 15 of title 44, United States
Code, sections 552-553 of title 5, United States Code, related statutes,
and this chapter. The Director may also develop and conduct programs of
technical instruction.
01 CFR 15.10 PART 16 -- AGENCY REPRESENTATIVES
Sec.
16.1 Designation.
16.2 Liaison duties.
16.3 Certifying duties.
16.4 Authorizing duties.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23608, Nov. 4, 1972, unless otherwise noted.
01 CFR 16.1 Designation.
(a) Each agency shall designate, from its officers or employees,
persons to serve in the following capacities with relation to the Office
of the Federal Register:
(1) A liaison officer and an alternate.
(2) A certifying officer and an alternate.
(3) An authorizing officer and an alternate.
The same person may be designated to serve in one or more of these
positions.
(b) In choosing its liaison officer, each agency should consider that
this officer will be the main contact between that agency and the Office
of the Federal Register and that the liaison officer will be charged
with the duties set forth in 16.2. Therefore, the agency should choose
a person who is directly involved in the agency's regulatory program.
(c) Each agency shall notify the Director of the name, title,
address, and telephone number of each person it designates under this
section and shall promptly notify the Director of any changes.
01 CFR 16.2 Liaison duties.
Each agency liaison officer shall --
(a) Represent the agency in all matters relating to the submission of
documents to the Office of the Federal Register, and respecting general
compliance with this chapter;
(b) Be responsible for the effective distribution and use within the
agency of Federal Register information on document drafting and
publication assistance authorized by 15.10 of this chapter;
(c) Promote the agency's participation in the technical instruction
authorized by 15.10 of this chapter; and
(d) Be available to discuss documents submitted for publication with
the editors of the Federal Register.
(54 FR 9679, Mar. 7, 1989)
01 CFR 16.3 Certifying duties.
The agency certifying officer is responsible for attaching the
required number of true copies of each original document submitted by
the agency to the Office of the Federal Register and for making the
certification required by 18.5 and 18.6 of this chapter.
(54 FR 9679, Mar. 7, 1989)
01 CFR 16.4 Authorizing duties.
The agency authorizing officer is responsible for furnishing, to the
Director of the Federal Register, a current mailing list of officers or
employees of the agency who are authorized to receive the Federal
Register, the Code of Federal Regulations, and the Weekly Compilation of
Presidential Documents for official use.
(54 FR 9679, Mar. 7, 1989)
01 CFR 16.4 PART 17 -- FILING FOR PUBLIC INSPECTION AND PUBLICATION SCHEDULES
01 CFR 16.4 Pt. 17
Sec.
01 CFR 16.4 Subpart A -- Receipt and Processing
17.1 Receipt and processing.
01 CFR 16.4 Subpart B -- Regular Schedule
17.2 Procedure and timing for regular schedule.
01 CFR 16.4 Subpart C -- Emergency Schedule
17.3 Criteria for emergency publication.
17.4 Procedure and timing for emergency publication.
17.5 Criteria for emergency filing for public inspection.
17.6 Procedure and timing for emergency filing for public inspection.
01 CFR 16.4 Subpart D -- Deferred Schedule
17.7 Criteria for deferred schedule.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23608, Nov. 4, 1972, unless otherwise noted.
01 CFR 16.4 Subpart A -- Receipt and Processing
01 CFR 17.1 Receipt and processing.
Unless special arrangements are made with the Director of the Federal
Register, the Office of the Federal Register receives documents only
during official working hours. Upon receipt, each document shall be
held for confidential processing until it is filed for public
inspection.
01 CFR 17.1 Subpart B -- Regular Schedule
01 CFR 17.2 Procedure and timing for regular schedule.
(a) Each document received shall be filed for public inspection only
after it has been received, processed and assigned a publication date.
(b) Except as provided in paragraph (d) of this section, each
document received by 2:00 p.m. which meets the requirements of this
chapter shall be assigned to the regular schedule. Unless the issuing
agency makes special arrangements otherwise, or the Office determines
that the document requires a deferred schedule (see 1 CFR 17.7), receipt
of a document by 2:00 p.m. is considered to be a request for filing for
public inspection and publication on the regular schedule. Documents
received after 2:00 p.m. which meet the requirements of this chapter
shall be assigned to the next working day's regular schedule.
(c) The regular schedule for filing for public inspection and
publication is as follows:
Where a legal Federal holiday intervenes, one additional work day is
added.
(d) Each notice of meeting issued under the ''Government in the
Sunshine Act'' (5 U.S.C. 552b(e)(3)) is placed on immediate public
inspection after it has been received, processed, and assigned a
publication date.
(1) Each notice received before 4:00 p.m. is scheduled to be
published 2 working days later.
(2) Each notice received after 4:00 p.m. is scheduled to be published
3 working days later.
(54 FR 9680, Mar. 7, 1989)
01 CFR 17.2 Subpart C -- Emergency Schedule
01 CFR 17.3 Criteria for emergency publication.
The emergency schedule is designed to provide the fastest possible
publication of a document involving the prevention, alleviation,
control, or relief of an emergency situation.
(37 FR 23608, Nov. 4, 1972, as amended at 54 FR 9680, Mar. 7, 1989)
01 CFR 17.4 Procedure and timing for emergency publication.
(a) Each agency requesting publication on the emergency schedule
shall briefly describe the emergency and the benefits to be attributed
to immediate publication in the Federal Register. The request must be
made by letter.
(b) The Director of the Federal Register shall assign a document to
the emergency schedule whenever the Director concurs with a request for
that action and it is feasible.
(c) Each document assigned to the emergency schedule shall be
published as soon as possible.
(d) Each document assigned to the emergency schedule for publication
will be filed for public inspection on the working day before
publication unless emergency filing for public inspection is also
requested.
(37 FR 23608, Nov. 4, 1972, as amended at 54 FR 9680, Mar. 7, 1989)
01 CFR 17.5 Criteria for emergency filing for public inspection.
An agency may request emergency filing for public inspection for
documents to be published under the regular, emergency or deferred
publication schedules. Emergency filing for public inspection provides
for the fastest possible public access to a document after it has been
received, processed and assigned a publication date. Emergency filing
for public inspection is considered a special arrangement under 17.2 of
this part that results in deviation from the regular schedule for filing
for public inspection. A document receiving emergency filing for public
inspection remains on public inspection until it is published according
to the schedule for publication.
(54 FR 9680, Mar. 7, 1989)
01 CFR 17.6 Procedure and timing for emergency filing for public
inspection.
(a) Each agency requesting emergency filing for public inspection
shall briefly describe the emergency and the benefits to be attributed
to immediate public access. The request must be made by letter.
(b) The Director of the Federal Register shall approve an emergency
filing for public inspection request whenever the Director concurs with
a request for that action and it is feasible.
(c) Each document approved for emergency filing for public inspection
shall be filed as soon as possible following processing and scheduling.
(54 FR 9680, Mar. 7, 1989)
01 CFR 17.6 Subpart D -- Deferred Schedule
01 CFR 17.7 Criteria for deferred schedule.
(a) A document may be assigned to the deferred schedule under the
following conditions:
(1) There are technical problems, unusual or lengthy tables, or
illustrations, or the document is of such size as to require
extraordinary processing time.
(2) The agency concerned requests a deferred publication date.
(b) The Office of the Federal Register staff will notify the agency
if its documents must be assigned to a deferred schedule.
(37 FR 23608, Nov. 4, 1972, as amended at 54 FR 9680, Mar. 7, 1989;
54 FR 23343, May 31, 1989)
01 CFR 17.7 PART 18 -- PREPARATION AND TRANSMITTAL OF DOCUMENTS GENERALLY
01 CFR 17.7 Pt. 18
Sec.
18.1 Original and copies required.
18.2 Prohibition on combined category documents.
18.3 Submission of documents and letters of transmittal.
18.4 Form of document.
18.5 Certified copies.
18.6 Form of certification.
18.7 Signature.
18.8 Seal.
18.9 Style.
18.10 Illustrations, tabular material, and forms.
18.12 Preamble requirements.
18.13 Withdrawal or correction of filed documents.
18.15 Correction of errors in printing.
18.16 Reinstatement of expired regulations.
18.17 Effective dates and time periods.
18.20 Identification of subjects in agency regulations.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23609, Nov. 4, 1972, unless otherwise noted.
01 CFR 18.1 Original and copies required.
Except as provided in 19.2 of this subchapter for Executive orders
and proclamations, each agency submitting a document to be filed and
published in the Federal Register shall send an original and two
duplicate originals or certified copies. /1/ However, if the document
is printed or processed on both sides, one of the copies sent by the
agency must be a collated, single-sided copy.
(54 FR 9680, Mar. 7, 1989)
/1/ Agencies with computer processed data are urged to consult with
the Office of the Federal Register staff about possible use of the data
in the publication process.
01 CFR 18.2 Prohibition on combined category documents.
(a) The Director of the Federal Register will not accept a document
for filing and publication if it combines material that must appear
under more than one category in the Federal Register. For example, a
document may not contain both rulemaking and notice of proposed
rulemaking material.
(b) Where two related documents are to be published in the same
Federal Register issue, the agency may insert a cross-reference in each
document.
(54 FR 9680, Mar. 7, 1989)
01 CFR 18.3 Submission of documents and letters of transmittal.
(a) Each document authorized or required by law to be filed for
public inspection with the Office of the Federal Register and published
in the Federal Register shall be sent to the Director of the Federal
Register.
(b) Except for cases involving special handling or treatment, there
is no need for a letter of transmittal for a document submitted for
filing and Federal Register publication.
(c) Receipt dates are determined at the time a signed original and
clear and legible copies are received.
(37 FR 23609, Nov. 4, 1972, as amended at 54 FR 9680, Mar. 7, 1989)
01 CFR 18.4 Form of document.
(a) A printed or processed document may be accepted for filing for
public inspection and publication if it is on bond or similar quality
paper, legible, and free of adhesive or correction tape. /2/
(b) A document in the form of a letter or press release may not be
accepted for filing for public inspection or publication in the rules
and regulations, proposed rules, or notices categories of the Federal
Register.
(54 FR 9681, Mar. 7, 1989)
/2/ Agencies with computer processed data are urged to consult with
the Office of the Federal Register staff about possible use of the data
in the publication process.
01 CFR 18.5 Certified copies.
The certified copies or duplicate originals of each document must be
submitted with the original. Each copy or duplicate must be entirely
clear and legible.
(54 FR 9681, Mar. 7, 1989)
01 CFR 18.6 Form of certification.
Each copy of each document submitted for filing and publication,
except a Presidential document or a duplicate original, must be
certified as follows:
(Certified to be a true copy of the original)
The certification must be signed by a certifying officer designated
under 16.1 of this chapter.
(54 FR 9681, Mar. 7, 1989)
01 CFR 18.7 Signature.
The original and each duplicate original document must be signed in
ink, with the name and title of the official signing the document typed
or stamped beneath the signature. Initialed or impressed signatures
will not be accepted.
(37 FR 23609, Nov. 4, 1972, as amended at 54 FR 9681, Mar. 7, 1989)
01 CFR 18.8 Seal.
Use of a seal on an original document or certified copy is optional
with the issuing agency.
01 CFR 18.9 Style.
Each document submitted by an agency for filing and publication shall
conform to the current edition of the U.S. Government Printing Office
Style Manual in punctuation, capitalization, spelling, and other matters
of style.
(54 FR 9681, Mar. 7, 1989)
01 CFR 18.10 Illustrations, tabular material, and forms.
(a) If it is necessary to publish a form or illustration, a clear and
legible original form or illustration, or a clear and completely legible
reproduction approximately 8 1/2 by 11 inches, shall be included in the
original document and each certified copy.
(b) A document that includes tabular material may be assigned to the
deferred publication schedule. See 17.7.
(54 FR 9681, Mar. 7, 1989)
01 CFR 18.12 Preamble requirements.
(a) Each agency submitting a proposed or final rule document for
publication shall prepare a preamble which will inform the reader, who
is not an expert in the subject area, of the basis and purpose for the
rule or proposal.
(b) The preamble shall be in the following format and contain the
following information:
AGENCY: ------------------
(Name of issuing agency)
ACTION: ------------------
(Notice of Intent), (Advance Notice of Proposed Rulemaking),
(Proposed Rule), (Final Rule), (Other).
SUMMARY: ------------------
(Brief statements, in simple language, of: (i) the action being
taken; (ii) the circumstances which created the need for the action;
and (iii) the intended effect of the action.)
DATES: ---------- - ----------
(Comments must be received on or before: ---------- .) (Proposed
effective date: ---------- .) (Effective date: ---------- .) (Hearing:
---------- .) (Other: ---------- .)
ADDRESSES: ----------------
(Any relevant addresses.)
FOR FURTHER INFORMATION CONTACT:
(For Executive departments and agencies, the name and telephone
number of a person in the agency to contact for additional information
about the document (Presidential Memorandum, 41 FR 42764, September 28,
1976).)
SUPPLEMENTARY INFORMATION:
(See paragraph (c) of this section.)
(c) The agency may include the following information in the preamble,
as applicable:
(1) A discussion of the background and major issues involved;
(2) In the case of a final rule, any significant differences between
it and the proposed rule;
(3) A response to substantive public comments received; and
(4) Any other information the agency considers appropriate.
(41 FR 56624, Dec. 29, 1976, as amended at 54 FR 9681, Mar. 7, 1989)
01 CFR 18.13 Withdrawal or correction of filed documents.
(a) A document that has been filed for public inspection with the
Office of the Federal Register but not yet published, may be withdrawn
from publication or corrected by the submitting agency. Withdrawals or
minor corrections may be made with a timely letter, signed by a duly
authorized representative of the agency. Extensive corrections may
require agency withdrawal of the document from publication.
(b) Both the originally filed document and the withdrawing or
correcting letter shall remain on file. The original document and the
withdrawing or correcting letter will be retained by the Office of the
Federal Register after the public inspection period expires.
(54 FR 9681, Mar. 7, 1989)
01 CFR 18.15 Correction of errors in printing.
(a) Typographical or clerical errors made in the printing of the
Federal Register shall be corrected by insertion of an appropriate
notation or a reprinting in the Federal Register published without
further agency documentation, if the Director of the Federal Register
determines that --
(1) The error would tend to confuse or mislead the reader; or
(2) The error would affect text subject to codification.
(b) The issuing agency shall review published documents and notify
the Office of the Federal Register of printing errors found in published
documents.
(c) If the error was in the document as submitted by the agency, the
issuing agency must prepare and submit for publication a correction
document.
(50 FR 12468, Mar. 28, 1985)
01 CFR 18.16 Reinstatement of expired regulations.
Agencies may reinstate regulations removed from the Code of Federal
Regulations data base which have expired by their own terms only by
republishing the regulations in full text in the Federal Register.
(54 FR 9681, Mar. 7, 1989)
01 CFR 18.17 Effective dates and time periods.
(a) Each document submitted for publication in the Federal Register
that includes an effective date or time period should either set forth a
date certain or a time period measured by a certain number of days after
publication in the Federal Register. When a document sets forth a time
period measured by a certain number of days after publication, Office of
the Federal Register staff will compute the date to be inserted in the
document as set forth in paragraph (b) of this section.
(b) Dates certain will be computed by counting the day after the
publication day as one, and by counting each succeeding day, including
Saturdays, Sundays, and holidays. However, where the final count would
fall on a Saturday, Sunday, or holiday, the date certain will be the
next succeeding Federal business day.
(c) In the event an effective date is dependent upon Congressional
action, or an act of Congress or a dispositive Federal court decision
establishes or changes the effective date of an agency's regulation, the
issuing agency shall promptly publish a document in the Federal Register
announcing the effective date.
(37 FR 23609, Nov. 4, 1972, as amended at 54 FR 9681, Mar. 7, 1989)
01 CFR 18.20 Identification of subjects in agency regulations.
(a) Federal Register documents. Each agency that submits a document
that is published in the Rules and Regulations section or the Proposed
Rules section of the Federal Register shall --
(1) Include a list of index terms for each Code of Federal
Regulations part affected by the document; and
(2) Place the list of index terms as the last item in the
Supplementary Information portion of the preamble for the document.
(b) Federal Register Thesaurus. To prepare its list of index terms,
each agency shall use terms contained in the Federal Register Thesaurus
of Indexing Terms. Agencies may include additional terms not contained
in the Thesaurus as long as the appropriate Thesaurus terms are also
used. Copies of the Federal Register Thesaurus of Indexing Terms are
available from the Office of the Federal Register, National Archives and
Records Administration, Washington, D.C. 20408.
(46 FR 7163, Jan. 22, 1981, as amended at 54 FR 9681, Mar. 7, 1989)
01 CFR 18.20 PART 19 -- EXECUTIVE ORDERS AND PRESIDENTIAL PROCLAMATIONS
Sec.
19.1 Form.
19.2 Routing and approval of drafts.
19.3 Routing and certification of originals and copies.
19.4 Proclamations calling for the observance of special days or
events.
19.5 Proclamations of treaties excluded.
19.6 Definition.
Authority: Secs. 1 to 6 of E.O. 11030, 27 FR 5847, 3 CFR, 1959-1963
Comp., p. 610; E.O. 11354, 32 FR 7695, 3 CFR, 1966-1970 Comp., p. 652;
and E.O. 12080, 43 FR 42235, 3 CFR, 1978 Comp., p. 224.
Source: 37 FR 23610, Nov. 4, 1972, unless otherwise noted.
01 CFR 19.1 Form.
Proposed Executive orders and proclamations shall be prepared in
accordance with the following requirements:
(a) The order or proclamation shall be given a suitable title.
(b) The order or proclamation shall contain a citation of the
authority under which it is issued.
(c) Punctuation, capitalization, spelling, and other matters of style
shall, in general, conform to the most recent edition of the U.S.
Government Printing Office Style Manual.
(d) The spelling of geographic names shall conform to the decisions
of the Board on Geographic Names, established by section 2 of the Act of
July 25, 1947, 61 Stat. 456 (43 U.S.C. 364a).
(e) Descriptions of tracts of land shall conform, so far as
practicable, to the most recent edition of the ''Specifications for
Descriptions of Tracts of Land for Use in Executive Orders and
Proclamations,'' /1/ prepared by the Bureau of Land Management,
Department of the Interior.
(f) Proposed Executive orders and proclamations shall be typewritten
on paper approximately 8 x 13 inches, shall have a left-hand margin of
approximately 1 1/2 inches and a right-hand margin of approximately 1
inch, and shall be double-spaced except that quotations, tabulations,
and descriptions of land may be single-spaced.
(g) Proclamations issued by the President shall conclude with the
following-described recitation:
IN WITNESS WHEREOF, I have hereunto set my hand this ---- day of
---------- , in the year of our Lord -------------- , and of the
Independence of the United States of America the -------------- .
(37 FR 23610, Nov. 4, 1972, as amended at 54 FR 9681, Mar. 7, 1989)
/1/ Agencies with computer processed data are urged to consult with
the Office of the Federal Register staff about possible use of the data
in the publication process.
01 CFR 19.2 Routing and approval of drafts.
(a) A proposed Executive order or proclamation shall first be
submitted, with seven copies thereof, to the Director of the Office of
Management and Budget, together with a letter, signed by the head or
other properly authorized officer of the originating Federal agency,
explaining the nature, purpose, background, and effect of the proposed
Executive order or proclamation and its relationship, if any, to
pertinent laws and other Executive orders or proclamations.
(b) If the Director of the Office of Management and Budget approves
the proposed Executive order or proclamation, he shall transmit it to
the Attorney General for his consideration as to both form and legality.
(c) If the Attorney General approves the proposed Executive order or
proclamation, he shall transmit it to the Director of the Office of the
Federal Register, National Archives and Records Administration:
Provided, That in cases involving sufficient urgency the Attorney
General may transmit it directly to the President: And provided
further, That the authority vested in the Attorney General by this
section may be delegated by him, in whole or in part, to the Deputy
Attorney General, Solicitor General, or to such Assistant Attorney
General as he may designate.
(d) After determining that the proposed Executive order or
proclamation conforms to the requirements of 19.1 and is free from
typographical or clerical error, the Director of the Office of the
Federal Register shall transmit it and three copies thereof to the
President.
(e) If the proposed Executive order or proclamation is disapproved by
the Director of the Office of Management and Budget or by the Attorney
General, it shall not thereafter be presented to the President unless it
is accompanied by a statement of the reasons for such disapproval.
01 CFR 19.3 Routing and certification of originals and copies.
(a) If the order or proclamation is signed by the President, the
original and two copies shall be forwarded to the Director of the
Federal Register for publication in the Federal Register.
(b) The Office of the Federal Register shall cause to be placed upon
the copies of all Executive orders and proclamations forwarded as
provided in paragraph (a) of this section the following notation, to be
signed by the Director or by some person authorized by him to sign such
notation: ''Certified to be a true copy of the original.''
01 CFR 19.4 Proclamations calling for the observance of special days or
events.
Except as may be otherwise provided by law, responsibility for the
preparation and presentation of proposed proclamations calling for the
observance of special days, or other periods of time, or events, shall
be assigned by the Director of the Office of Management and Budget to
such agencies as he may consider appropriate. Such proposed
proclamations shall be submitted to the Director at least 60 days before
the date of the specified observance. Notwithstanding the provisions of
19.2, the Director shall transmit any approved commemorative
proclamations to the President.
(37 FR 23610, Nov. 4, 1972, as amended at 54 FR 9681, Mar. 7, 1989)
01 CFR 19.5 Proclamations of treaties excluded.
Consonant with the provisions of chapter 15 of title 44 of the United
States Code (44 U.S.C. 1511), nothing in these regulations shall be
construed to apply to treaties, conventions, protocols, or other
international agreements, or proclamations thereof by the President.
01 CFR 19.6 Definition.
The term ''Presidential proclamations and Executive orders,'' as used
in chapter 15 of title 44 of the United States Code (44 U.S.C.
1505(a)), shall, except as the President or his representative may
hereafter otherwise direct, be deemed to include such attachments
thereto as are referred to in the respective proclamations or orders.
01 CFR 19.6 PART 20 -- HANDLING OF THE UNITED STATES GOVERNMENT MANUAL
STATEMENTS
Sec.
20.1 Liaison officers.
20.2 Preparation of agency statements.
20.3 Organization.
20.4 Description of program activities.
20.5 Sources of information.
20.6 Form, style, arrangement and apportionment of space.
20.7 Deadline dates.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23611, Nov. 4, 1972, unless otherwise noted.
01 CFR 20.1 Liaison officers.
(a) Each of the following shall appoint an officer to maintain
liaison with the Office on matters relating to The United States
Government Manual:
(1) Agencies of the legislative and judicial branches.
(2) Executive agencies that do not have a liaison officer designated
under 16.1 of this chapter or who wish to appoint a liaison officer for
Manual matters other than the one designated under such 16.1.
(3) Quasi-official agencies represented in the Manual.
(4) Any other agency that the Director believes should be included in
the Manual.
(b) Each liaison officer will insure agency compliance with part 9 of
this chapter and this part 20.
(37 FR 23611, Nov. 4, 1972, as amended at 50 FR 12468, Mar. 28, 1985;
54 FR 9682, Mar. 7, 1989)
01 CFR 20.2 Preparation of agency statements.
In accordance with schedules established under 20.7 each agency
shall submit for publication in the Manual an official draft of the
information required by 9.2 of this chapter and this part 20.
01 CFR 20.3 Organization.
(a) Information about lines of authority and organization may be
reflected in a chart if the chart clearly delineates the agency's
organizational structure. Charts must be prepared so as to be perfectly
legible when reduced to the size of a Manual page. Charts that do not
meet this requirement will not be included in the Manual.
(b) Listings of heads of operating units should be arranged whenever
possible to reflect relationships between units.
(c) Narrative descriptions of organizational structure or hierarchy
that duplicate information conveyed by charts or by lists of officials
will not be published in the Manual.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 20.4 Description of program activities.
(a) Descriptions should clearly state the public purposes that the
agency serves, and the programs that carry out those purposes.
(b) Descriptions of the responsibilities of individuals or of
administrative units common to most agencies will not be accepted for
publication in the Manual.
(54 FR 9682, Mar. 7, 1989)
01 CFR 20.5 Sources of information.
Pertinent sources of information useful to the public, in areas of
public interest such as employment, consumer activities, contracts,
services to small business, and other topics of public interest should
be provided with each agency statement. These sources of information
shall plainly identify the places at which the public may obtain
information or make submittals or requests.
01 CFR 20.6 Form, style, arrangement and apportionment of space.
The form, style, and arrangement of agency statements and other
materials included in the Manual and the apportionment of space therein
shall be determined by the Director of the Federal Register. The U.S.
Government Printing Office Style Manual is the applicable reference work
in determining style.
01 CFR 20.7 Deadline dates.
The Manual is published on a schedule designed to provide the public
with information about their Government on a timely basis. Therefore,
agencies must comply with the deadline dates established by the Director
of the Federal Register for transmittal of statements and charts and for
the verification of proofs. Failure to do so may result in publication
of an outdated statement or the omission of important material, thus
depriving members of the public of information they have a right to
expect in a particular edition of the Manual.
01 CFR 20.7 PART 21 -- PREPARATION OF DOCUMENTS SUBJECT TO CODIFICATION
01 CFR 20.7 Subpart A -- General
Sec.
21.1 Drafting.
21.6 Notice of expiration of codified material.
21.7 Titles and subtitles.
21.8 Chapters and subchapters.
21.9 Parts, subparts, and undesignated center heads.
21.10 Sections.
21.11 Standard organization of the Code of Federal Regulations.
21.12 Reservation of numbers.
21.14 Deviations from standard organization of the Code of Federal
Regulations.
21.16 Required document headings.
21.18 Tables of contents.
21.19 Composition of part headings.
21.20 General requirements.
21.21 General requirements: References.
21.23 Parallel citations of Code and Federal Register.
21.24 References to 1938 edition of Code.
21.30 General.
21.35 OMB control numbers.
01 CFR 20.7 Subpart B -- Citations of Authority
21.40 General requirements: Authority citations.
21.41 Agency responsibility.
21.42 Exceptions.
21.43 Placing and amending authority citations.
21.45 Nonstatutory authority.
21.51 General.
21.52 Statutory material.
21.53 Nonstatutory materials.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23611, Nov. 4, 1972, unless otherwise noted.
01 CFR 20.7 Subpart A -- General
01 CFR 21.1 Drafting.
(a) Each agency that prepares a document that is subject to
codification shall draft it as an amendment to the Code of Federal
Regulations, in accordance with this subchapter, before submitting it to
the Office of the Federal Register.
(b) Each agency that prepares a document that is subject to
codification shall include words of issuance and amendatory language
that precisely describes the relationship of the new provisions to the
Code.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 21.6 Notice of expiration of codified material.
Whenever a codified regulation expires after a specified period by
its own terms or by law, the issuing agency shall submit a notification
by document for publication in the Federal Register.
(54 FR 9682, Mar. 7, 1989)
01 CFR 21.6 Code Structure
01 CFR 21.7 Titles and subtitles.
(a) The major divisions of the Code are titles, each of which brings
together broadly related Government functions.
(b) Subtitles may be used to distinguish between materials emanating
from an overall agency and the material issued by its various
components. Subtitles may also be used to group chapters within a
title.
01 CFR 21.8 Chapters and subchapters.
(a) The normal divisions of a title are chapters, assigned to the
various agencies within a title descriptive of the subject matter
covered by the agencies' regulations.
(b) Subchapters may be used to group related parts within a chapter.
(c) Chapter and subchapter assignments are made by the Office of the
Federal Register after agency consultation.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 21.9 Parts, subparts, and undesignated center heads.
(a) The normal divisions of a chapter are parts, consisting of a
unified body of regulations applying to a specific function of an
issuing agency or devoted to specific subject matter under the control
of that agency.
(b) Subparts or undesignated center heads may be used to group
related sections within a part. Undesignated center heads may also be
used to group sections within a subpart.
01 CFR 21.10 Sections.
(a) The normal divisions of a part are sections. Sections are the
basic units of the Code.
(b) When internal division is necessary, a section may be divided
into paragraphs, and paragraphs may be further subdivided using the
lettering indicated in 21.11.
01 CFR 21.10 Numbering
01 CFR 21.11 Standard organization of the Code of Federal Regulations.
The standard organization consists of the following structural units:
(a) Titles, which are numbered consecutively in Arabic throughout the
Code;
(b) Subtitles, which are lettered consecutively in capitals
throughout the title;
(c) Chapters, which are numbered consecutively in Roman capitals
throughout each title;
(d) Subchapters, which are lettered consecutively in capitals
throughout the chapter;
(e) Parts, which are numbered in Arabic throughout each title;
(f) Subparts, which are lettered in capitals;
(g) Sections, which are numbered in Arabic throughout each part. A
section number includes the number of the part followed by a period and
the number of the section. For example, the section number for section
15 of part 21 is '' 21.15''; and
(h) Paragraphs, which are designated as follows:
level 1 (a), (b), (c), etc.
level 2 (1), (2), (3), etc.
level 3 (i), (ii), (iii), etc.
level 4 (A), (B), (C), etc.
level 5 (1), (2), (3), etc.
level 6 (i), (ii), (iii), etc.
(54 FR 9682, Mar. 7, 1989; 54 FR 23343, May 31, 1989)
01 CFR 21.12 Reservation of numbers.
In a case where related parts or related sections are grouped under a
heading, numbers may be reserved at the end of each group to allow for
expansion.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 21.14 Deviations from standard organization of the Code of
Federal Regulations.
(a) Any deviation from standard Code of Federal Regulations
designations must be approved in advance by the Office of the Federal
Register. Requests for approval must be submitted in writing at least
five working days before the agency intends to submit the final rule
document for publication and include a copy of the final rule document.
(b) The Director of the Federal Register may allow the keying of
section numbers to correspond to a particular numbering system used by
an agency only when the keying will benefit both that agency and the
public.
(54 FR 9682, Mar. 7, 1989)
01 CFR 21.14 Headings
01 CFR 21.16 Required document headings.
(a) Each rule and proposed rule document submitted to the Office of
the Federal Register shall contain the following headings, when
appropriate, on separate lines in the following order:
(1) Agency name;
(2) Subagency name;
(3) Numerical references to the CFR title and parts affected;
(4) Agency numbers of identifying symbol in brackets, if used;
(5) Brief subject heading describing the document.
(b) Each CFR section in the regulatory text of the document shall
have a brief descriptive heading, preceding the text, on a separate
line.
(50 FR 12468, Mar. 28, 1985)
01 CFR 21.18 Tables of contents.
A table of contents shall be used at the beginning of the part
whenever a new part is introduced, an existing part is completely
revised, or a group of sections is revised or added and set forth as a
subpart or otherwise separately grouped under a center head. The table
shall follow the part heading and precede the text of the regulations in
that part. It shall also list the headings for the subparts,
undesignated center headings, sections in the part, and appendix
headings to the part or subpart.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 21.19 Composition of part headings.
Each part heading shall indicate briefly the general subject matter
of the part. Phrases such as ''Regulations under the Act of July 28,
1955'' or other expressions that are not descriptive of the subject
matter may not be used. Introductory expressions such as ''Regulations
governing'' and ''Rules applicable to'' may not be used.
01 CFR 21.19 Amendments
01 CFR 21.20 General requirements.
(a) Each amendatory document shall identify in specific terms the
unit amended, and the extent of the changes made.
(b) The number and heading of each section amended shall be set forth
in full on a separate line.
01 CFR 21.20 References
01 CFR 21.21 General requirements: References.
(a) Each reference to the Code of Federal Regulations shall be in
terms of the specific titles, chapters, parts, sections, and paragraphs
involved. Ambiguous references such as ''herein'', ''above'',
''below'', and similar expressions may not be used.
(b) Each document that contains a reference to material published in
the Code shall include the Code citation as a part of the reference.
(c) Each agency shall publish its own regulations in full text.
Cross-references to the regulations of another agency may not be used as
a substitute for publication in full text, unless the Office of the
Federal Register finds that the regulation meets any of the following
exceptions:
(1) The reference is required by court order, statute, Executive
order or reorganization plan.
(2) The reference is to regulations promulgated by an agency with the
exclusive legal authority to regulate in a subject matter area, but the
referencing agency needs to apply those regulations in its own programs.
(3) The reference is informational or improves clarity rather than
being regulatory.
(4) The reference is to test methods or consensus standards produced
by a Federal agency that have replaced or preempted private or voluntary
test methods or consensus standards in a subject matter area.
(5) The reference is to the Department level from a subagency.
(37 FR 23611, Nov. 4, 1972, as amended at 50 FR 12468, Mar. 28, 1985)
01 CFR 21.23 Parallel citations of Code and Federal Register.
For parallel reference, the Code of Federal Regulations and the
Federal Register may be cited in the following forms, as appropriate:
------ CFR ------ ( ------ FR ------ ). ------ of this
chapter ( ------ FR ------ ).
01 CFR 21.24 References to 1938 edition of Code.
When reference is made to material codified in the 1938 edition of
the Code of Federal Regulations, or a supplement thereto, the following
forms may be used, as appropriate:
------ CFR, 1938 Ed., ------ . ------ CFR, 1943, Cum. Supp.,
------ . ------ CFR, 1946 Supp., ------ .
01 CFR 21.24 Effective Date Statement
01 CFR 21.30 General.
Each document subject to codification shall include a clear statement
as to the date or dates upon which its contents become effective.
01 CFR 21.30 OMB Control Numbers
01 CFR 21.35 OMB control numbers.
To display OMB control numbers in agency regulations, those numbers
shall be placed parenthetically at the end of the section or displayed
in a table or codified section.
(50 FR 12468, Mar. 28, 1985)
01 CFR 21.35 Subpart B -- Citations of Authority
01 CFR 21.40 General requirements: Authority citations.
Each section in a document subject to codification must include, or
be covered by, a complete citation of the authority under which the
section is issued, including --
(a) General or specific authority delegated by statute; and
(b) Executive delegations, if any, necessary to link the statutory
authority to the issuing agency.
(50 FR 12468, Mar. 28, 1985)
01 CFR 21.41 Agency responsibility.
(a) Each issuing agency is responsible for the accuracy and integrity
of the citations of authority in the documents it issues.
(b) Each issuing agency shall formally amend the citations of
authority in its codified material to reflect any changes therein.
01 CFR 21.42 Exceptions.
The Director of the Federal Register may make exceptions to the
requirements of this subpart relating to placement and form of citations
of authority whenever the Director determines that strict application
would impair the practical use of the citations.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 21.42 Placement
01 CFR 21.43 Placing and amending authority citations.
(a) The requirements for placing authority citations vary with the
type of amendment the agency is making in a document. The agency shall
set out the full text of the authority citation for each part affected
by the document.
(1) If a document sets out an entire CFR part, the agency shall place
the complete authority citation directly after the table of contents and
before the regulatory text.
(2) If a document amends only certain sections within a CFR part, the
agency shall present the complete authority citation to this part as the
first item in the list of amendments.
(i) If the authority for issuing an amendment is the same as the
authority listed for the whole CFR part, the agency shall simply restate
the authority.
(ii) If the authority for issuing an amendment changes the authority
citation for the whole CFR part, the agency shall revise the authority
citation in its entirety. The agency may specify the particular
authority under which certain sections are amended in the revised
authority citation.
(b) The agency shall present a centralized authority citation. The
authority citation shall appear at the end of the table of contents for
a part or after each subpart heading within the text of a part.
Citations of authority for particular sections may be specified within
the centralized authority citation.
(50 FR 12469, Mar. 28, 1985, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 21.45 Nonstatutory authority.
Citation to a nonstatutory document as authority shall be placed
after the statutory citations. For example:
Authority: Sec. 9, Pub. L. 89-670, 80 Stat. 944 (49 U.S.C. 1657).
E.O. 11222, 30 FR 6469, 3 CFR, 1965 Comp., p. 10.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9682, Mar. 7, 1989)
01 CFR 21.45 Form
01 CFR 21.51 General.
(a) Formal citations of authority shall be in the shortest form
compatible with positive identification and ready reference.
(b) The Office of the Federal Register shall assist agencies in
developing model citations.
01 CFR 21.52 Statutory material.
(a) United States Code. All citations to statutory authority shall
include a United States Code citation, where available. Citations to
titles of the United States Code, whether or not enacted into positive
law, may be cited without Public Law or U.S. Statutes at Large citation.
For example:
Authority: 10 U.S.C. 501.
(b) Public Laws and U.S. Statutes at Large. Citations to Public Laws
and U.S. Statutes at Large are optional when the United States Code is
cited. Citations to current public laws and to the U.S. Statutes at
Large shall refer to the section of the public law and the volume and
page of the U.S. Statutes at Large to which they have been assigned.
The page number shall refer to the page on which the section cited
begins. For example:
Authority: Sec. 5, Pub. L. 89-670, 80 Stat. 935 (49 U.S.C. 1654);
sec. 313, Pub. L. 85-726, 72 Stat. 752 (49 U.S.C. 1354).
(54 FR 9682, Mar. 7, 1989)
01 CFR 21.53 Nonstatutory materials.
Nonstatutory documents shall be cited by document designation and by
Federal Register volume and page, followed, if possible, by the parallel
citation to the Code of Federal Regulations. For example:
Authority: Special Civil Air Reg. SR-422A, 28 FR 6703, 14 CFR part
4b. E.O. 11130, 28 FR 12789; 3 CFR 1959-1963 Comp.
(37 FR 23611, Nov. 4, 1972, as amended at 54 FR 9683, Mar. 7, 1989)
01 CFR 21.53 PART 22 -- PREPARATION OF NOTICES AND PROPOSED RULES
01 CFR 21.53 Subpart A -- Notices
Sec.
22.1 Name of issuing agency and subdivision.
22.2 Authority citation.
01 CFR 21.53 Subpart B -- Proposed Rules
22.5 General requirements.
22.6 Code designation.
22.7 Codification.
Authority: 44 U.S.C. 1506; sec. 6, E.O. 10530, 19 FR 2709; 3 CFR,
1954-1958 Comp., p. 189.
Source: 37 FR 23614, Nov. 4, 1972, unless otherwise noted.
01 CFR 21.53 Subpart A -- Notices
01 CFR 22.1 Name of issuing agency and subdivision.
(a) The name of the agency issuing a notice shall be placed at the
beginning of the document.
(b) Whenever a specific bureau, service, or similar unit within an
agency issues a notice, the name of that bureau, service, or unit shall
be placed on a separate line below the name of the agency.
(c) An agency that uses file numbers, docket numbers, or similar
identifying symbols shall place them in brackets immediately below the
other headings required by this section.
(d) A suitable short title identifying the subject shall be provided
beginning on a separate line immediately after the other required
caption or captions. Whenever appropriate, an additional brief caption
indicating the nature of the document shall be used.
01 CFR 22.2 Authority citation.
The authority under which an agency issues a notice shall be cited in
narrative form within text or in parentheses on a separate line
following text.
01 CFR 22.2 Subpart B -- Proposed Rules
01 CFR 22.5 General requirements.
Each proposed rule required by section 553 of title 5, United States
Code, or any other statute, and any similar document voluntarily issued
by an agency shall include a statement of --
(a) The time, place, and nature of public rulemaking proceedings;
and
(b) Reference to the authority under which the regulatory action is
proposed.
(37 FR 23614, Nov. 4, 1972, as amended at 54 FR 9683, Mar. 7, 1989)
01 CFR 22.6 Code designation.
The area of the Code of Federal Regulations directly affected by a
proposed regulatory action shall be identified by placing the
appropriate CFR citation immediately below the name of the issuing
agency. For example:
1 CFR part 22
(37 FR 23614, Nov. 4, 1972, as amended at 54 FR 9683, Mar. 7, 1989)
01 CFR 22.7 Codification.
Any part of a proposed rule document that contains the full text of a
proposed regulation shall also conform to the pertinent provisions of
part 21 of this chapter.
(37 FR 23614, Nov. 4, 1972, as amended at 54 FR 9683, Mar. 7, 1989)
01 CFR 22.7 1 CFR Ch. II (1-1-92 Edition)
01 CFR 22.7 Office of the Federal Register
01 CFR 22.7 CHAPTER II -- OFFICE OF THE FEDERAL REGISTER
Part
Page
51 Incorporation by reference
01 CFR 22.7
01 CFR 22.7 1 CFR Ch. II (1-1-92 Edition)
01 CFR 22.7 Office of the Federal Register
01 CFR 22.7 PART 51 -- INCORPORATION BY REFERENCE
Sec.
51.1 Policy.
51.3 When will the Director approve a publication?
51.5 How does an agency request approval?
51.7 What publications are eligible?
51.9 What is the proper language of incorporation?
51.11 How does an agency change or remove an approved incorporation?
Authority: 5 U.S.C. 552(a).
Source: 47 FR 34108, Aug. 6, 1982, unless otherwise noted.
01 CFR 51.1 Policy.
(a) Section 552(a) of title 5, United States Code, provides, in part,
that ''matter reasonably available to the class of persons affected
thereby is deemed published in the Federal Register when incorporated by
reference therein with the approval of the Director of the Federal
Register.''
(b) The Director will interpret and apply the language of section
552(a) together with other requirements which govern publication in the
Federal Register and the Code of Federal Regulations. Those
requirements which govern publication include --
(1) The Federal Register Act (44 U.S.C. 1501 et seq.)
(2) The Administrative Procedure Act (5 U.S.C. 551 et seq.);
(3) The regulations of the Administrative Committee of the Federal
Register under the Federal Register Act (1 CFR Ch. I); and
(4) The acts which require publication in the Federal Register (See
CFR volume entitled ''CFR Index and Finding Aids.'')
(c) The Director will assume in carrying out the responsibilities for
incorporation by reference that incorporation by reference --
(1) Is intended to benefit both the Federal Government and the
members of the class affected; and
(2) Is not intended to detract from the legal or practical attributes
of the system established by the Federal Register Act, the
Administrative Procedure Act, the regulations of the Administrative
Committee of the Federal Register, and the acts which require
publication in the Federal Register.
(d) The Director will carry out the responsibilities by applying the
standards of part 51 fairly and uniformly.
(e) Publication in the Federal Register of a document containing an
incorporation by reference does not of itself constitute an approval of
the incorporation by reference by the Director.
(f) Incorporation by reference of a publication is limited to the
edition of the publication that is approved. Future amendments or
revisions of the publication are not included.
01 CFR 51.3 When will the Director approve a publication?
(a) The Director will approve the incorporation by reference of a
publication when the following requirements are met:
(1) The publication is eligible for incorporation by reference (See
51.7).
(2) The language of incorporation meets the requirements of this part
(See 51.9).
(3) The publication is on file with the Office of the Federal
Register.
(4) The Director has received a written request from the agency to
approve the incorporation by reference of the publication.
(b) The Director will notify the agency of the approval or
disapproval of an incorporation by reference within 20 working days
after the agency has met all the requirements for requesting approvals
(See 51.5).
01 CFR 51.5 How does an agency request approval?
(a) Formal approval of a publication for incorporation by reference
applies to a final rule document. For timely approval by the Director
of the Federal Register, the agency must --
(1) Make a written request for approval at least 20 working days
before the agency intends to submit the final rule document for
publication;
(2) Send with the written request a copy of the final rule document
that uses the proper language of incorporation; and
(3) Ensure that a copy of the publication is on file at the Office of
the Federal Register.
(b) Agencies may consult with the Office of the Federal Register at
any time with respect to the requirements of this part.
01 CFR 51.7 What publications are eligible?
(a) A publication is eligible for incorporation by reference under 5
U.S.C. 552(a) if it --
(1) Conforms to the policy stated in 51.1;
(2) Is published data, criteria, standards, specifications,
techniques, illustrations, or similar material;
(3) Substantially reduces the volume of material published in the
Federal Register; and
(4) Is reasonably available to and usable by the class of persons
affected by the publication. In determining whether a publication is
usable, the Director will consider --
(i) The completeness and ease of handling of the publication; and
(ii) Whether it is bound, numbered, and organized.
(b) The Director will assume that a publication produced by the same
agency that is seeking its approval is inappropriate for incorporation
by reference. A publication produced by the agency may be approved, if,
in the judgment of the Director, it meets the requirements of paragraph
(a) and possesses other unique or highly unusual qualities. A
publication may be approved if it cannot be printed using the Federal
Register/Code of Federal Regulations printing system.
(c) The following materials are not appropriate for incorporation by
reference:
(1) Material published previously in the Federal Register.
(2) Material published in the United States Code.
01 CFR 51.9 What is the proper language of incorporation?
(a) The language incorporating a publication by reference shall be as
precise and complete as possible and shall make it clear that the
incorporation by reference is intended and completed by the final rule
document in which it appears.
(b) The language incorporating a publication by reference is precise
and complete if it --
(1) Uses the words ''incorporated by reference;''
(2) States the title, date, edition, author, publisher, and
identification number of the publication;
(3) Informs the user that the incorporated publication is a
requirement;
(4) Makes an official showing that the publication is in fact
available by stating where and how copies may be examined and readily
obtained with maximum convenience to the user; and
(5) Refers to 5 U.S.C. 552(a).
(c) If the Director approves a publication for incorporation by
reference, the agency must --
(1) Include the following under the DATES caption of the preamble to
the final rule document (See 1 CFR 18.12 Preamble requirements):
The incorporation by reference of certain publications listed in the
regulations is approved by the Director of the Federal Register as of
------ .
(2) Includes the term ''incorporation by reference'' in the list of
index terms (See 1 CFR 18.20 Identification of subjects in agency
regulations).
01 CFR 51.11 How does an agency change or remove an approved
incorporation?
(a) An agency that seeks approval for a change to a publication that
is approved for incorporation by reference must --
(1) Publish notice of the change in the Federal Register and amend
the Code of Federal Regulations;
(2) Ensure that a copy of the amendment or revision is on file at the
Office of the Federal Register; and
(3) Notify the Director of the Federal Register in writing that the
change is being made.
(b) If a regulation containing an incorporation by reference fails to
become effective or is removed from the Code of Federal Regulations, the
agency must notify the Director of the Federal Register in writing of
that fact within 5 working days of the occurrence.
01 CFR 51.11 1 CFR Ch. III (1-1-92 Edition)
01 CFR 51.11 Admin. Conference of the United States
01 CFR 51.11 CHAPTER III -- ADMINISTRATIVE CONFERENCE OF THE UNITED
STATES
Part
Page
301 Organization and purpose
302 Bylaws of the Administrative Conference of the United States
303 Employee responsibilities and conduct
304 Public availability of documents and records
305 Recommendations of the Administrative Conference of the United
States
310 Miscellaneous statements
315 Model rules for implementation of the Equal Access to Justice Act
in agency proceedings
316 Roster of dispute resolution neutrals
326 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by Administrative Conference of the
United States
01 CFR 51.11
01 CFR 51.11 1 CFR Ch. III (1-1-92 Edition)
01 CFR 51.11 Admin. Conference of the United States
01 CFR 51.11 PART 301 -- ORGANIZATION AND PURPOSE
Sec.
301.1 Establishment; location.
301.2 Purpose.
301.3 Organization.
301.4 Activities.
301.5 Office of the Chairman.
Authority: 5 U.S.C. 552, 571-576.
Source: 40 FR 10441, Mar. 6, 1975, unless otherwise noted.
01 CFR 301.1 Establishment; location.
The Administrative Conference of the United States was established as
a permanent independent agency of the Federal Government by the
Administrative Conference Act (5 U.S.C. 571-576), enacted in 1964. The
Conference offices are located at 2120 L Street, NW., Suite 500,
Washington, DC 20037.
01 CFR 301.2 Purpose.
The purpose of the Administrative Conference is to develop
improvements in the legal procedures by which Federal agencies
administer regulatory, benefit, and other Government programs. As
members of the Conference, agency heads, other Federal officials,
private lawyers, university professors, and other experts in
administrative law and government are provided with a forum in which
they can conduct continuing studies of selected problems involving these
administrative procedures and can combine their experience and judgment
in cooperative efforts toward improving the fairness and effectiveness
of such procedures.
01 CFR 301.3 Organization.
The Chairman of the Administrative Conference of the United States is
appointed by the President, with the advice and consent of the Senate,
for a five-year term. The Council, which is the executive board,
consists of the Chairman and 10 other members who are appointed by the
President for three-year terms, of whom not more than one-half may be
drawn from Federal agencies. It has authority to call plenary sessions
of the Conference and fix their agenda, to recommend subjects for study,
to receive and consider reports and recommendations before they are
considered by the Assembly, and to exercise general budgetary and policy
supervision. The total membership of the Conference may not, by
statute, exceed 91. It comprises, in addition to the Council,
approximately 44 Government members (heads of agencies or their
designees) from 36 departments and agencies, and approximately 36
non-Government or public members (lawyers in private practice,
university faculty members, and others specially informed in law and
government) appointed by the Chairman with the approval of the Council
for two-year terms. The Chairman is the only full-time compensated
member. The entire membership is divided into six committees, each
assigned a broad area of interest as follows: Adjudication,
Administration, Governmental Processes, Judicial Review, Regulation, and
Rulemaking. The membership meeting in plenary session is called the
Assembly of the Administrative Conference. The Council must call at
least one plenary session each year.
(47 FR 58207, Dec. 30, 1982)
01 CFR 301.4 Activities.
Subjects for inquiry are developed by the Chairman, the Council, the
committees, and the Assembly. The committees, with the assistance of
staff and consultants, conduct thorough studies of these subjects and
develop proposed recommendations and supporting reports. Reports and
recommendations are considered by the Council and are distributed to the
membership, with the views and recommendations of the Council, to be
placed on the agenda of the next plenary session. The Assembly has
complete authority to approve, amend, remand, or reject recommendations
presented by the committees. The deliberations of the Assembly are
public. Recommendations adopted by the Conference may call for new
legislation or for action on the part of affected agencies. The
Assembly also has authority to adopt bylaws for carrying out the
functions of the Conference. The Conference collects information and
statistics from departments and agencies and publishes such reports as
it considers useful for evaluating and improving administrative process.
The Conference also serves as a forum for the interchange among
departments and agencies of information which may be useful in improving
administrative practices and procedures.
01 CFR 301.5 Office of the Chairman.
The Chairman is the chief executive of the Conference. He is served
by a small permanent staff. The Chairman is authorized to encourage the
departments and agencies to adopt the recommendations of the Conference
and is required by the Administrative Conference Act to transmit to the
President and to Congress an annual report that interim reports
concerning the activities of the Conference, including reports on the
implementation of its recommendations. The Chairman is authorized to
make independent inquiries into procedural matters he considers
important for Conference consideration, including matters proposed by
individuals inside or outside the Government. The purpose of conducting
inquiries into such individual problems is not to review the results in
particular cases, but rather to determine whether the problems should be
made the subject of Conference study in the interests of developing fair
and effective procedures for such cases. Upon the request of the head
of a department or agency, the Chairman is authorized to furnish advice
and assistance on matters of administrative procedure.
01 CFR 301.5 PART 302 -- BYLAWS OF THE ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES
Sec.
302.1 Establishment and objective.
302.2 Membership.
302.3 Committees.
302.4 Liaison arrangements.
302.5 Avoidance of conflicts of interest.
302.6 General.
Authority: 5 U.S.C. 552, 571-576.
Source: 40 FR 10442, Mar. 6, 1975, unless otherwise noted.
01 CFR 302.1 Establishment and objective.
The Administrative Conference Act, 5 U.S.C. 571 et seq. (1970), 78
Stat. 615 (1964), authorized the establishment of the Administrative
Conference of the United States as a permanent, independent agency of
the Federal Government. The purpose of the Administrative Conference is
to improve the administrative procedure of Federal agencies to the end
that they may fairly and expeditiously carry out their responsibilities
to protect private rights and the public interest. The Administrative
Conference Act provides for the membership, organization, powers and
duties of the Conference.
01 CFR 302.2 Membership.
(a) General. (1) Each member is expected to participate in all
respects according to his own views and not necessarily as a
representative of any agency or other group or organization, public or
private. Each member (other than a member of the Council) shall be
appointed to one of the standing committees of the Conference.
(2) Each member is expected to devote personal and conscientious
attention to the work of the Conference and to attend plenary sessions
and committee meetings regularly. When a member has failed to attend
two consecutive Conference functions, either plenary sessions, committee
meetings, or both, the Chairman shall inquire into the reasons for the
non-attendance. If not satisfied by such reasons, the Chairman shall:
(i) In the case of a Government member, with the approval of the
Council, request the head of the appointing agency to designate a member
who is able to devote the necessary attention; or (ii) in the case of a
non-Government member, with the approval of the Council, terminate the
member's appointment, provided that where the Chairman proposes to
remove a non-Government member, the member first shall be entitled to
submit a written statement to the Council. The foregoing does not imply
that satisfying minimum attendance standards constitutes full discharge
of a member's responsibilities, nor does it foreclose action by the
Chairman to stimulate the fulfillment of a member's obligations.
(b) Terms of Non-Government Members. Non-Government members are
appointed by the Chairman with the approval of the Council. One-half of
the non-Government memberships shall be filled by appointments made on
or after July 1 of each year, and each term will expire on June 30 of
the second year thereafter. To avoid shortening the term of any
non-Government member in service as of the effective date of this
paragraph (b), the Chairman shall, by random selection, designate
one-half of the non-Government members to serve terms terminating on
June 30, 1988, and the other half to serve terms terminating on June 30,
1989. No non-Government members, other than senior fellows, shall at
any time be in continuous service beyond four full terms.
(c) Eligibility and Replacements. (1) A member designated by a
Federal agency shall become ineligible to continue as a member of the
Conference in that capacity or under that designation if he leaves the
service of the agency or department. Designations and re-designations
of members shall be filed with the Chairman promptly.
(2) A person appointed as a non-Government member shall become
ineligible to continue in that capacity if he enters full-time
Government service. In the event a non-Government member of the
Conference resigns or becomes ineligible to continue as a member, the
appointing authority shall appoint a successor for the remainder of the
term.
(d) Alternates. Members may not act through alternates at plenary
sessions of the Conference. Where circumstances justify, a suitably
informed alternate may be permitted, with the approval of a committee,
to participate for a member in a meeting of the committee, but such
alternate shall not have the privilege of a vote in respect to any
action of the committee. Use of an alternate does not lessen the
obligation of regular personal attendance set forth in paragraph (a)(2)
of this section.
(e) Senior Fellows. The Chairman may, with the approval of the
Council, appoint persons who have served as members of the Conference
for eight or more years, or former Chairmen of the Conference, to the
position of senior fellow. The terms of senior fellows shall terminate
at 2-year intervals in even-numbered years. Senior fellows shall have
all the privileges of members, but may not vote, except in committee
deliberations, where the conferral of voting rights shall be at the
discretion of the committee chairman.
(f) Special Counsels. The Chairman may, with the approval of the
Council, appoint persons who do not serve under any of the other
official membership designations, to the position of special counsel.
Special counsels shall advise and assist the membership in areas of
their special expertise. Their terms shall terminate at 2-year
intervals in odd-numbered years. Special counsels shall have all the
privileges of members, but may not vote, except in committee
deliberations, where the conferral of voting rights shall be at the
discretion of the committee chairman.
(40 FR 10442, Mar. 6, 1975, as amended at 41 FR 29653, July 19, 1976;
45 FR 2307, Jan. 11, 1980; 47 FR 30702, July 15, 1982; 51 FR 46986,
Dec. 30, 1986, 54 FR 28965, July 10, 1989)
01 CFR 302.3 Committees.
The Conference shall have the following standing committees:
1. Committee on Adjudication;
2. Committee on Administration;
3. Committee on Governmental Processes;
4. Committee on Judicial Review;
5. Committee on Regulation; and
6. Committee on Rulemaking.
The activities of the committees shall not be limited to the areas
described in their titles, and the Chairman may redefine the
responsibilities of the committees and assign new or additional projects
to them. With the approval of the Council, the Chairman may establish
special ad hoc committees and assign special projects to such
committees. The Chairman shall coordinate the activities of all
committees to avoid duplication of effort and conflict in their
activities.
(40 FR 10442, Mar. 6, 1975, as amended at 47 FR 58208, Dec. 30, 1982)
01 CFR 302.4 Liaison arrangements.
The Chairman may, with the approval of the Council, make liaison
arrangements with representatives of the Congress, the judiciary,
federal agencies that are not represented on the Conference, and
professional associations. Persons appointed under these arrangements
shall have all the privileges of members, but may not vote, except in
committee deliberations, where the conferral of voting rights shall be
at the discretion of the committee chairman.
(54 FR 28965, July 10, 1989)
01 CFR 302.5 Avoidance of conflicts of interest.
(a) Disclosure of Interests. (1) Non-Government members (including
senior fellows) may be deemed to be special government employees within
the meaning of 18 U.S.C. 202 and subject to the provisions of 201-224
of title 18 United States Code, in accordance with their terms. The
Chairman of the Conference is authorized to prescribe requirements for
the filing of statements of employment and financial interests necessary
to comply with part III of Executive Order 11222, as amended, or any
successor Presidential or statutory requirement. Without conceding the
correctness of the view that non-Government members are special
Government employees, the Conference has chosen to adopt the bylaw
provisions that follow in order to eliminate whatever uncertainties
might otherwise exist concerning the propriety of participation in
Conference proceedings.
(2) In addition to complying with any requirement prescribed by
statute or Executive order, each member, public or governmental, shall,
upon appointment to the Conference and annually thereafter, file a brief
general statement describing the nature of his or her practice or
affiliations, including, in the case of a member of a partnership, a
general statement about the nature of the business or practice of the
partnership, to the extent that such business, practice, or affiliations
might reasonably be thought to affect the member's judgment on matters
with which the Conference is concerned. (For example, a member might
state that he or she represents employers or unions before the National
Labor Relations Board, broadcasters before the Federal Communications
Commission, or consumer groups before agencies and courts.) The chairman
will include with the agenda for each plenary session a statement
calling to the attention of the members the requirements of this
section. Each member who believes the content of the agenda calls for
disclosure additional to that already on file will file an amended
statement concerning his or her interests. Current statements of all
members will be open to public inspection at the Office of the Chairman
and will be readily available at any plenary session. Except as
provided in paragraph (b) of this section, members may vote or
participate in matters before the Conference without additional
disclosure of interest.
(b) Disqualifications. (1) In accordance with 18 U.S.C. 208 a member
shall not, except as provided in paragraphs (b) (2) or (3) of this
section, vote or otherwise participate as a member in the disposition of
any particular matter of Conference business, including the adoption of
recommendations and other statements, in which, to his or her knowledge,
the member has a financial interest. For purposes of this paragraph (b)
a member is deemed to have a financial interest in any particular matter
in which the member, the member's spouse, minor child, partner,
organization in which the member is serving as officer, director,
trustee, partner, or employee, or any person or organization with whom
he or she is negotiating or has any arrangement concerning prospective
employment, has a financial interest.
(2) Notwithstanding paragraph (b)(1) of this section, a member may,
at any stage of Conference consideration and without further disclosure,
participate and vote on a proposed recommendation or other Conference
statement or action relating to the procedure of any Federal agency or
agencies, where the Conference action is not directed to and is unlikely
to affect the substantive outcome of any pending judicial matter or
administrative proceeding involving a specific party or parties (other
than the United States) in which to his knowledge he has a financial
interest. The Conference determines pursuant to 18 U.S.C. 208(b) that
in such a case any financial interest which the member may have in the
matter before the Conference is too remote to affect the integrity of
the member's service to the Conference.
(3) Where a member believes that he or she is or may be disqualified
from participating in the disposition of a matter before the Conference
under the provisions of this subsection, the member may advise the
Chairman of the reason for his or her possible disqualification,
including a full disclosure of the financial interest involved. If the
Chairman determines in writing pursuant to 18 U.S.C. 208(b) that the
interest is not so substantial as to be likely to affect the integrity
of the member's service to the Conference, the member may, upon receipt
of such determination, vote and otherwise participate in the disposition
of the matter.
(43 FR 28806, July 3, 1978, as amended at 47 FR 30702, July 15, 1982)
01 CFR 302.6 General.
(a) Meetings. All sessions of the Assembly shall be open to the
public. Privileges of the floor, however, extend only to members of the
Conference, to senior fellows, to liaison representatives, to
consultants and staff members insofar as matters on which they have been
engaged are under consideration, and to persons who, prior to the
commencement of the meeting have obtained the approval of the Chairman
and who speak with the unanimous consent of the Assembly.
(b) Quorums. A majority of the members of the Conference shall
constitute a quorum of the Assembly; a majority of the Council shall
constitute a quorum of the Council.
(c) Separate Statements. (1) A member who disagrees in whole or in
part with a recommendation adopted by the Assembly is entitled to enter
a separate statement in the record of the Conference proceedings and to
have it set forth with the official publication of the recommendation in
the Federal Register. A member's failure to file or join in such a
separate statement does not necessarily indicate his agreement with the
recommendation.
(2) Notification of intention to file a separate statement must be
given to the Executive Secretary not later than the last day of the
plenary session at which the recommendation is adopted. Members may,
without giving such notification, join in a separate statement for which
proper notification has been given.
(3) Separate statements must be filed within 10 days after the close
of the session, but the Chairman may extend this deadline for good
cause.
(d) Amendment of Bylaws. The Conference may amend the bylaws
provided that 30 days' notice of the proposed amendment shall be given
to all members of the Assembly by the Chairman.
(e) Procedure. Robert's Rules of Order shall govern the proceedings
of the Assembly to the extent appropriate.
(40 FR 10442, Mar. 6, 1975. Redesignated at 43 FR 28806, July 3,
1978, and amended at 47 FR 30702, July 15, 1982)
01 CFR 302.6 PART 303 -- EMPLOYEE RESPONSIBILITIES AND CONDUCT
01 CFR 302.6 Pt. 303
Sec.
303.101 Adoption of regulations.
303.102 Definitions.
303.103 Review of statements of employment and financial interests.
303.104 Disciplinary and other remedial action.
303.105 Gifts, entertainment, and favors.
303.106 Outside employment and other activity.
303.107 Specific provisions of agency regulations governing special
Government employees.
303.108 Statements of employment and financial interest.
303.109 Statements of employment of special Government employees.
Authority: E.O. 11222, 30 FR 6469, 3 CFR 1965 Supp.; 5 CFR 735.101
et seq.
Source: 43 FR 28806, July 3, 1978, unless otherwise noted.
01 CFR 303.101 Adoption of regulations.
Pursuant to 5 CFR 735.104(f), the Administrative Conference of the
United States hereby adopts the following sections of part 735 of title
5, Code of Federal Regulations: 735.101, 735.102, 735.201(a), 735.202
(a), (d), (e), (f), 735.203-735.210, 735.302, 735.303(a), 735.304,
735.305(a), 735.306, 735.403(a), 735.404-735.411, 735.412 (b) and (d).
These adopted sections are modified and supplemented as set forth in
this part.
01 CFR 303.102 Definitions.
In this part:
(a) Agency means the Administrative Conference of the United States.
(b) Employee means an employee of the agency, but does not include a
special Government employee.
(c) Executive Order means Executive Order 11222 of May 8, 1965.
(d) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or
any other organization or institution.
(e) Special Government employee means a special Government employee
as defined in section 202 of title 18, United States Code, who is
employed by the Administrative Conference, and shall include
non-Government members of the Conference except where otherwise
provided. 1
1The Department of Justice has concluded that non-Government members
of the Conference are special Government employees, as defined in 18
U.S.C. 202. Without conceding the correctness of this view and in the
interest of eliminating uncertainties, the Conference, in its bylaws and
regulations, treats non-Government members as special Government
employees. See 302.5 of this chapter.
01 CFR 303.103 Review of statements of employment and financial
interests.
Each statement of employment and financial interest submitted under
this part shall be reviewed by the Chairman, or, in the case of
statements submitted by special Government employees, by the Executive
Director. When this review indicates a conflict between the interests
of an employee or special Government employee of the agency and the
performance of his services for the Government, the reviewing official
shall have the indicated conflict brought to the attention of the
employee or special Government employee, grant the employee or special
Government employee an opportunity to explain the indicated conflict,
and attempt to resolve the indicated conflict.
01 CFR 303.104 Disciplinary and other remedial action.
An employee or special Government employee of the agency who violates
any of the regulations in this part or adopted under 303.101 may be
disciplined. The disciplinary action may be in addition to any penalty
prescribed by law for the violation. In addition to or in lieu of
disciplinary action, remedial action to end conflicts or appearance of
conflicts of interest may include but is not limited to:
(a) Changes in assigned duties;
(b) Divestment by the employee or special Government employee of his
conflicting interest; or
(c) Disqualification for a particular assignment.
01 CFR 303.105 Gifts, entertainment, and favors.
The agency authorizes the exceptions to 5 CFR 735.202(a) set forth in
5 CFR 735.202(b) (1) through (4).
01 CFR 303.106 Outside employment and other activity.
An employee of the agency may engage in outside employment or other
outside activity not incompatible with the full and proper discharge of
the duties and responsibilities of his Government employment. An
employee who engages in outside employment shall report that fact in
writing to his supervisor.
01 CFR 303.107 Specific provisions of agency regulations governing
special Government employees.
(a) Special Government employees of the agency shall adhere to the
standards of conduct set forth in 5 CFR 735.302 through 735.306 and
adopted under 303.101.
(b) Special Government employees of the agency may teach, lecture, or
write in a manner not inconsistent with 5 CFR 735.203(c).
(c) Pursuant to 5 CFR 735.305(b), the agency authorizes the same
exceptions concerning gifts, entertainment, and favors for special
Government employees as are authorized for employees by 303.105.
(d) Procedures for the avoidance of conflicts of interest by members
of the Conference in the consideration of matters before the Conference
are set forth in section 5 of the Conference bylaws, 302.5 of this
chapter.
01 CFR 303.108 Statements of employment and financial interest.
(a) Employees in the following named positions shall submit
statements of employment and financial interest, including supplementary
statements, as required by 5 CFR 735.405 and 735.406:
(1) Executive Director.
(2) Executive Secretary.
(3) Research Director.
(b) Each statement of employment and financial interest required by
this section shall be submitted to the Chairman of the Administrative
Conference of the United States.
(c) Pursuant to the authority contained in 18 U.S.C. 208(b) and 5 CFR
735.404a, the following categories of financial interest are determined
to be too remote or too inconsequential to affect the integrity of an
employee's services in any matter in which he may act in his
governmental capacity, and need not be reported under this section:
(1) Any holding in a widely held mutual fund or regulated investment
company.
(2) Ownership of bonds other than corporate bonds.
(3) Any deposit account in a federally insured bank, savings and loan
association, or credit union.
(4) Any life or other insurance policy.
01 CFR 303.109 Statements of employment of special Government
employees.
(a) Each special Government employee, other than a non-Government
member of the Conference, shall at the time of his employment submit a
statement of all other employment and of such other financial
information, as described in section 306 of the Executive order, as the
Executive Director determines is relevant in the light of the duties the
employee is to perform: Provided, That financial interests listed in
303.108(c) need not be reported. The statement shall be kept current
throughout the period of the employee's service.
(b) Each non-Government member of the Administrative Conference shall
submit a statement of all other employment upon appointment to the
Conference. A statement of other financial information as described in
section 306 of the Executive order, shall not be required, unless the
Chairman determines that such additional information is relevant in the
light of the duties the member is to perform. Statements filed by
non-Government members shall be reviewed by the Chairman who shall take
appropriate action to resolve any indicated conflict statements of
financial interests. Statements shall be kept current throughout the
period of the member's service. The provisions of 303.103 and 303.104
of this regulation are not applicable to non-Government members of the
Conference.
01 CFR 303.109 PART 304 -- PUBLIC AVAILABILITY OF DOCUMENTS AND RECORDS
01 CFR 303.109 Pt. 304
01 CFR 303.109 Subpart A -- Freedom of Information Act Implementation
Sec.
304.1 General.
304.2 Publications.
304.3 Requests for records.
304.4 Index.
304.5 Policy with respect to requests for particular kinds of
documents.
304.6 Schedule of fees and methods of payment.
01 CFR 303.109 Subpart B -- Privacy Act Implementation
304.20 Purpose and scope.
304.21 Definitions.
304.22 Procedures for requests pertaining to individual records in a
system of records.
304.23 Request for amendment or correction of a record.
304.24 Disclosure of a record to a person other than the individual
to whom it pertains.
304.25 Schedule of fees.
01 CFR 303.109 Subpart A -- Freedom of Information Act Implementation
Authority: 5 U.S.C. 552, as amended; 5 U.S.C. 571-576.
Source: 40 FR 10442, Mar. 6, 1975, unless otherwise noted.
01 CFR 304.1 General.
This part implements section 552 of title 5, United States Code, and
prescribes rules governing the availability to the public of documents
and records of the Administrative Conference of the United States.
01 CFR 304.2 Publications.
(a) Recommendations and Statements of the Administrative Conference
are published, upon adoption by the Assembly, in the Federal Register,
together with the full texts of any separate statements filed pursuant
to section 575(a)(1) of the Administrative Conference Act, 5 U.S.C.
575(a)(1). Complete lists of Recommendations and Statements, together
with the texts of those Recommendations and Statements deemed to be of
continuing general interest, are published in parts 305 and 310 of this
chapter.
(b) The Annual Report of the Administrative Conference contains the
texts of all Recommendations and Statements of the Conference adopted
during the preceding year, together with the full texts of any separate
statements. It also contains descriptive material regarding the work of
the Conference and its committees. The Annual Report is available from
the Superintendent of Documents. Single copies of current and past
Annual Reports will also be furnished by the Conference on request, to
the extent that supplies on hand permit.
(c) The staff or consultant reports that form the basis for
Conference Recommendations and Statements are collected and published
from time to time in bound volumes under the title Recommendations and
Reports of the Administrative Conference of the United States. These
volumes are available from the Superintendent of Documents.
(d) The Conference endeavors to maintain for distribution to
interested persons an adequate stock of final consultant and staff
reports, copies of congressional testimony, membership lists,
newsletters, minutes of recent committee meetings, and other documents
of general interest. Requests for single copies of such documents will
be filled at no charge to the extent that supplies on hand permit.
01 CFR 304.3 Requests for records.
(a) It is the policy of the Administrative Conference to make records
and documents in its possession available to the public to the greatest
extent possible. All records of the Conference are available for public
inspection and copying in accordance with this section except those
records or portions of records which the Legal Counsel or his designee
specifically determines to be exempt from disclosure under section
552(b) of the Freedom of Information Act.
(b) A request for records, other than for documents which are
published in the Federal Register or available for sale or distribution
as described in 304.2 of this part, shall be made in writing and
directed to the Legal Counsel, Administrative Conference of the United
States, 2120 L Street NW., Washington, DC 20037. Such request shall be
clearly marked ''Freedom of Information Request'' or ''Information
Request'' and shall reasonably describe the record requested. The staff
of the Administrative Conference will make reasonable efforts to assist
a requester in formulating his request. Nothing in this section shall
preclude staff of the Administrative Conference from complying with
oral, unmarked, or generally stated requests for information and
documents.
(c) The Legal Counsel or his designee shall, within ten working days
after its receipt, either comply with or deny a request for records,
provided that when additional time is required because of:
(1) A need to search for, collect and examine a voluminous amount of
separate and distinct records demanded in a single request, or (2) a
need for consultation with another agency having a substantial interest
in the determination of the request, the time limit for disposing of the
request may be extended for up to ten additional working days by a
written notice to the requester setting forth the reasons for and the
anticipated length of the delay.
(d) The requester will be notified promptly of the determination made
pursuant to paragraph (c) of this section. If the determination is to
release the requested record, such record shall promptly be made
available. If the determination is not to release the record, the
person making the request shall, at the same time he is notified of such
determination, be notified of:
(1) The reason for the determination;
(2) The name and title or position of each person responsible for the
denial of the request; and
(3) His right to appeal the determination in writing to the Chairman
of the Administrative Conference, who shall render a decision on an
appeal within 20 days (excepting Saturdays, Sundays, and legal public
holidays) after the receipt of such appeal. The requester shall be
notified promptly of the Chairman's decision and, if the appeal is
denied, the reasons therefor and the requester's right to seek judicial
review of such determination pursuant to the provisions of the Freedom
of Information Act, 5 U.S.C. 552(a)(4).
(40 FR 10442, Mar. 6, 1975, as amended at 52 FR 22753, June 16, 1987;
52 FR 23627, June 23, 1987; 52 FR 29498, Aug. 10, 1987)
01 CFR 304.4 Index.
The Freedom of Information Act, 5 U.S.C. 552(a)(2), requires each
agency to maintain and make available for public inspection and copying
a current index of certain materials issued, adopted or promulgated by
the agency. With respect to the materials covered by section
552(a)(2)(B), the Conference maintains currently for distribution and
publishes in the Code of Federal Regulations a complete list of
Conference Recommendations and Statements. See 304.2(a) of this part.
The Conference has no adjudicatory responsibilities of the kind
contemplated by section 552(a)(2)(A) of the Act and does not ordinarily
issue materials of the type described in section 552(a)(2)(C). Should
such materials be issued, appropriate indexes will be maintained.
01 CFR 304.5 Policy with respect to requests for particular kinds of
documents.
This section is intended to amplify the policy set out in 304.3(a)
as applied to specific categories of documents:
(a) All materials which are distributed to the membership of the
Administrative Conference for consideration at a plenary session will
upon distribution be available to the public in accordance with
304.2(d) of these regulations.
(b) Consultant and staff reports which are otherwise exempt from
disclosure under the Freedom of Information Act as interagency or
intra-agency correspondence will, absent special circumstances, be made
available if the reports are in substantially completed form and have
been distributed widely for comment within or outside the Government.
Tentative reports and working drafts which have received only limited
circulation will ordinarily not be made available.
(c) Agency comments on a report or proposed recommendation, if exempt
from disclosure under the Freedom of Information Act, will nevertheless
ordinarily be made available unless the agency indicates to the
Conference that its comment is confidential. Comment of an individual
Conference member, writing in his personal capacity, will not be made
available without the consent of the member.
(d) The following categories of documents are declared to be
available to the public, notwithstanding any applicable exemption in
section 552(b) of the Freedom of Information Act:
(1) Agency reports on the implementation of Conference
recommendations;
(2) Correspondence from the Office of the Chairman of the
Administrative Conference to committees of Congress, commenting on
pending legislation;
(3) Minutes of meetings of the standing committees of the Conference;
(4) Transcripts of plenary sessions of the Conference.
01 CFR 304.6 Schedule of fees and methods of payment.
(a) Definitions. The following definitions apply in this section.
(1) Direct costs means those expenditures which the Conference
actually incurs in searching for, duplicating and (in the case of
commercial use requests) reviewing documents to respond to a FOIA
request.
(2) Search means all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Line-by-line search will
not be done when duplicating an entire document is a less expensive and
quicker method of complying with a request. ''Search'' is distinguished
from ''review'' (see paragraph (a)(4) of this section).
(3) Duplication means the process of making a copy of a document
available to a requester. Copies can take the form of paper copy,
microfilm, audio-visual materials among others; however, copies will be
provided in a form that is reasonably usable by requesters.
(4) Review means the process of examining documents located in
response to an information request to determine whether any portion of
any document is permitted to be withheld under FOIA. It also includes
processing any documents for disclosure, e.g. doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(5) Commercial use request refers to a request from or made on behalf
of one who seeks information to further the commercial, trade, or profit
interests of the requester or the person on whose behalf the request is
made. In determining whether a requester properly belongs in this
category, the Conference may request information concerning the use to
which a requester will put the requested documents.
(6) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education, and
an institution of vocational education, which operates a program or
programs of scholarly research.
(7) Non-commercial scientific institution means an institution that
is not operated on a ''commercial'' basis (as that term is defined in
paragraph (a)(5) of this section) and which is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry.
(8) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ''news'' means information
that is about current events or that would be of current interest to the
public. Examples of news media entities include television or radio
stations broadcasting to the public at large, and publishers of
periodicals (but only in those instances where they qualify as
disseminators of ''news'') who make their products available for
purchase or subscription by the general public. ''Freelance''
journalists may be regarded as working for a news organization if they
can demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but the Conference may also look
to the past publication record of a requester in making this
determination.
(b) Costs to be included in fees. The agency costs included in fees
will vary according to the following categories of requests:
(1) Commercial use requests. Fees will include the Conference's full
direct costs of searching for, reviewing for release, and duplicating
the requested records.
(2) Educational and non-commercial scientific institution requests.
The Conference will provide documents to requesters in this category for
the cost of reproduction alone, excluding charges for the first 100
pages (see paragraph (e) of this section). To be eligible for inclusion
in this category, requesters, must show that the request is being made
under the auspices of a qualifying institution and that the records are
sought in furtherance of scholarly (if the request is from an
educational institution) or scientific (if the request is from a
non-commercial scientific institution) research.
(3) Requests from representatives of the news media. The Conference
will provide documents to requesters in this category for the cost of
reproduction alone, excluding charges for the first 100 pages (see
paragraph (e) of this section). To be eligible for inclusion in this
category a requester must meet the criteria in paragraph (a)(8) of this
section.
(4) All other requests. The Conference will charge requesters who do
not fit into any of the categories in paragraphs (b)(1)-(3) of this
section fees which cover the full direct costs of searching for and
reproducing records that are responsive to the request, except for the
first two hours of search time and the first 100 pages (see paragraph
(e) of this section). However, requests from persons for records about
themselves will continue to be treated under the fee provision of the
Privacy Act of 1975 and 304.25 of this part.
(c) Fee calculation. The Conference will calculate fees as follows:
(1) Manual search. At the salary rate (basic pay plus 16 percent) of
the employees(s) making the search.
(2) Computer search. At the actual direct cost of providing the
search, including computer search time directly attributable to search
for records responsive to the request, runs, and operator salary
apportionable to the search.
(3) Review (commercial-use requests only). At the salary rate (basic
pay plus 16 percent) of the employee(s) conducting the review. Only the
review necessary at the initial administrative level to determine the
applicability of any exemption, and not review at the administrative
appeal level, will be included in the fee.
(4) Duplication. At 20 cents per page for paper copy. For copies of
records prepared by computer (such as tapes or printouts), the actual
cost of production, including operator time, will be charged.
(5) Additional services. Postage and other additional services that
may be arranged for by the requester will be charged at actual cost.
(d) Assessment of interest. The Conference may begin assessing
interest charges on the 31st day following the day the fee bill is sent.
Interest will be at the rate prescribed in section 31 U.S.C. 3717.
(e) Free search and duplication. Except for commercial use requests,
the Conference (in accordance with 5 U.S.C. 552(4)(A)(iv)) will provide
the first 100 pages of duplication and the first two hours of search
time to requesters without charge. In addition, the Conference will not
impose a charge if the cost of collecting a fee will be equal to or
greater than the fee itself. These provisions work together so that the
Conference will not begin to assess fees until after providing the free
search and reproduction. For example, if a request involves two hours
and ten minutes of search time and duplication of 105 pages of
documents, the Conference will charge only for the cost of 10 minutes of
search time and five pages of reproduction. However, if the cost is
equal to or less than the cost of processing the fee collected, no
charge for request will be made.
(f) Waiver or reduction of fees. In accordance with 5 U.S.C.
552(4)(A)(iii), the Conference will furnish documents without charge, or
at a reduced charge, where disclosure of the information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
(g) Remittances. (1) Remittances shall be in the form of either a
personal check or bank draft drawn on a bank in the United States, a
money order, or cash.
(2) Remittances shall be made payable to the order of the
Administrative Conference of the United States and mailed or delivered
to the Administrative Officer, Administrative Conference of the United
States, 2120 L Street, N.W., Suite 500, Washington, DC 20037. The
Conference will assume no responsibility for cash which is lost in the
mail.
(3) A receipt for fees paid will be given only upon request.
(4) Where it is anticipated that the fees chargeable under this
section will amount to more than $25.00, and the requester has not
indicated in advance a willingness to pay fees as high as are
anticipated, the requester will be notified of the amount of the
anticipated fee. If the requester does not agree to pay the estimated
fees, the Conference may suspend the search and processing of records
or, when appropriate (see paragraph (h) of this section), require an
advance deposit. Requesters may confer with Conference personnel in an
attempt to formulate the request so as to meet their needs at lower
cost.
(h) Advance payment of fees. The Conference will not require a
requester to make an advance payment i.e., payment before work is
commenced or continued on a request, except in the following situations.
(1) When the allowable charges that a requester will be required to
pay are projected to exceed $250.00, the Conference may require the
requester to make an advance payment of the entire fee, or a portion of
the fee, before continuing to process the request.
(2) If a requester has previously failed to pay a fee charged in a
timely fashion (i.e. within 30 days of the billing date), the Conference
will require the requester to pay the full amount owed plus any
applicable interest, and to make an advance payment of the full amount
of the estimated fee before it begins to process a new request or a
pending request from the requester.
(i) Other provisions -- (1) Charges for unsuccessful search. The
Conference may assess charges for time spent searching for requested
records, even if the search fails to locate responsive records or the
records are determined, after review, to be exempt from disclosure.
However, as provided in paragraph (g)(4) of this section, a requester
will be given the opportunity to confer with agency personnel with the
object of reformulating the request to meet his or her needs at a lower
cost.
(2) Aggregating requests to avoid fees. When the Conference
reasonably determines that a requester is attempting to break a single
request down into a series of requests for the purpose of evading the
assessment fees, the Conference will aggregate any such requests and
charge the applicable fee. However, the Conference will not aggregate
multiple requests on unrelated subjects from one requester.
(3) Debt Collection Act. The Debt Collection Act, including
disclosure to consumer reporting agencies and use of collection
agencies, will be used to encourage payment where appropriate.
(52 FR 22753, June 16, 1987, as amended at 52 FR 29498, Aug. 10,
1987)
01 CFR 304.6 Subpart B -- Privacy Act Implementation
Authority: 5 U.S.C. 552, 552a, 571-576.
Source: 41 FR 15321, Apr. 12, 1976, unless otherwise noted.
01 CFR 304.20 Purpose and scope.
The purpose of this subpart is the implementation of the Privacy Act
of 1974, 5 U.S.C. 552a, by establishing procedures whereby an individual
can determine if a system of records maintained by the Administrative
Conference contains a record pertaining to himself, and procedures for
providing access to such a record for the purpose of review, amendment,
or correction. Requests for assistance in interpreting or complying
with these regulations should be addressed to the Executive Secretary,
Administrative Conference of the United States, 2120 L Street, NW.,
Suite 500, Washington, DC 20037.
01 CFR 304.21 Definitions.
As used in this subpart, the terms individual, maintain, record,
system of records, and routine use shall have the meaning specified in 5
U.S.C. 552a(a).
01 CFR 304.22 Procedures for requests pertaining to individual records
in a system of records.
(a) An individual can determine if a particular system of records
maintained by the Administrative Conference contains a record pertaining
to himself by submitting a written request for such information to the
Executive Secretary. The Executive Secretary shall respond to a written
request under this subpart within a reasonable time by stating that a
record on the individual either is or is not contained in the system.
(b) If an individual seeks access to a record pertaining to himself
in a system of records, he shall submit a written request to the
Executive Secretary. The Executive Secretary or his designee shall,
within ten working days after its receipt, acknowledge the request and
if possible decide if it should be granted. In any event, a decision
shall be reached promptly and notification thereof provided to the
individual seeking access. If the request is denied, the individual
shall be informed of the reasons therefor and his right to seek judicial
review.
(c) In cases where an individual has been granted access to his
records, the Executive Secretary may, prior to releasing such records,
require the submission of a signed notarized statement verifying the
identity of the individual to assure that such records are disclosed to
the proper person. No verification of identity will be required when
such records are available under the Freedom of Information Act, 5
U.S.C. 552, as amended.
01 CFR 304.23 Request for amendment or correction of a record.
(a) An individual may file a request with the Executive Secretary for
amendment or correction of a record pertaining to himself in a system of
records. Such written request shall state the nature of the information
in the record the individual believes to be inaccurate or incomplete,
the amendment or correction desired and the reasons therefor. The
individual should supply whatever information or documentation he can in
support of his request for amendment or correction of a record.
(b) The Executive Secretary or his designee shall, within ten working
days after its receipt, acknowledge a request for amendment or
correction of a record. A decision shall be reached promptly and
notification thereof provided to the individual seeking to amend or
correct a record. The Executive Secretary may request such additional
information or documentation as he may deem necessary to arrive at a
decision upon the request. If the request is granted, the record as
amended shall be called to the attention of all prior recipients of the
individual's record.
(c) If the request is denied, the individual shall be informed of the
reasons therefor and his right to appeal the denial in writing to the
Chairman of the Conference. The Chairman shall render a decision on an
appeal within thirty working days following the date on which the appeal
is received. The individual shall be notified promptly of the
Chairman's decision and, if the appeal is denied, the reasons therefor
and the individual's right to seek judicial review and his right to file
a concise statement of disagreement, which statement shall be noted in
the records to which it pertains and supplied to all prior and
subsequent recipients of the disputed record. If an appeal is granted,
the record as amended shall be called to the attention of all prior
recipients of the individual's record.
(d) Requests for amendment or correction of a record must be
accompanied by a signed notarized statement verifying the identity of
the requesting party.
01 CFR 304.24 Disclosure of a record to a person other than the
individual to whom it pertains.
Except in accordance with 5 U.S.C. 552a(b), or as required by the
Freedom of Information Act, 5 U.S.C. 552, as amended, or other
applicable statute, the Conference shall not disclose a record to any
individual other than the individual to whom the record pertains without
the written consent of such individual. An accounting of the date,
nature, and purpose of each disclosure of a record as well as the name
and address of the person or agency to whom the disclosure was made will
be maintained. This accounting will be made available to the individual
to whom the record pertains upon the submission of a written, notarized
request to the Executive Secretary.
01 CFR 304.25 Schedule of fees.
Copies of records supplied to any individual at his request shall be
provided for $.10 per copy per page. Copying fees of less than $2 per
request are waived.
01 CFR 304.25 Pt. 305
01 CFR 304.25 PART 305 -- RECOMMENDATIONS OF THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES
Sec.
305.68-1 Adequate Hearing Facilities (Recommendation No. 68-1).
305.68-2 U.S. Government Organization Manual (Recommendation No.
68-2).
305.68-3 Parallel Table of Statutory Authorities and Rules (2 CFR Ch.
I)1 (Recommendation No. 68-3).
305.68-4 Consumer Bulletin (Recommendation No. 68-4).
305.68-5 Representation of the Poor in Agency Rulemaking of Direct
Consequence to Them (Recommendation No. 68-5).
305.68-6 Delegation of Final Decisional Authority Subject to
Discretionary Review by the Agency (Recommendation No. 68-6).
305.68-7 Elimination of Jurisdictional Amount Requirement in Judicial
Review (Recommendation No. 68-7).
305.68-8 Judicial Review of Interstate Commerce Commission Orders
(Recommendation No. 68-8).
305.69-1 Statutory Reform of the Sovereign Immunity Doctrine
(Recommendation No. 69-1).
305.69-2 Judicial Enforcement of Orders of the National Labor
Relations Board (Recommendation No. 69-2).
305.69-3 Publication of a ''Guide to Federal Reporting Requirements''
(Recommendation No. 69-3).
305.69-4 Analytical Subject-Indexes to Selected Volumes of the Code
of Federal Regulations (Recommendation No. 69-4).
305.69-5 Elimination of Duplicative Hearings in FAA Safety
De-certification Cases (Recommendation No. 69-5).
305.69-6 Compilation of Statistics on Administrative Proceedings by
Federal Departments and Agencies (Recommendation No. 69-6).
305.69-7 Consideration of Alternatives in Licensing Procedures
(Recommendation No. 69-7).
305.69-8 Elimination of Certain Exemptions from the APA Rulemaking
Requirements (Recommendation No. 69-8).
305.69-9 Recruitment and Selection of Hearing Examiners; Continuing
Training for Government Attorneys and Hearing Examiners; Creation of a
Center for Continuing Legal Education in Government (Recommendation No.
69-9).
305.70-1 Parties Defendant (Recommendation No. 70-1).
305.70-2 SEC No-Action Letters Under Section 4 of the Securities Act
of 1933 (Recommendation No. 70-2).
305.70-3 Summary Decision in Agency Adjudication (Recommendation No.
70-3).
305.70-4 Discovery in Agency Adjudication (Recommendation No. 70-4).
305.70-5 Practices and Procedures Under the Renegotiation Act of 1951
(Recommendation No. 70-5).
305.71-1 Interlocutory Appeal Procedures (Recommendation No. 71-1).
305.71-2 Principles and Guidelines for Implementation of the Freedom
of Information Act (Recommendation No. 71-2).
305.71-3 Articulation of Agency Policies (Recommendation No. 71-3).
305.71-4 Minimum Procedures for Agencies Administering Discretionary
Grant Programs (Recommendation 71-4).
305.71-5 Procedure of the Immigration and Naturalization Service in
Respect to Change-of-Status Applications (Recommendation No. 71-5).
305.71-6 Public Participation in Administrative Hearings
(Recommendation No. 71-6).
305.71-7 Rulemaking on a Record by the Food and Drug Administration
(Recommendation No. 71-7).
305.71-8 Modification and Dissolution of Orders and Injunctions
(Recommendation No. 71-8).
305.71-9 Enforcement of Standards in Federal Grant-in-Aid Programs
(Recommendation No. 71-9).
305.72-1 Broadcast of Agency Proceedings (Recommendation No. 72-1).
305.72-2 Conflict-of-Interest Problems in Dealing with Natural
Resources of Indian Tribes (Recommendation No. 72-2).
305.72-3 Procedures of the United States Board of Parole
(Recommendation No. 72-3).
305.72-4 Suspension and Negotiation of Rate Proposals by Federal
Regulatory Agencies (Recommendation No. 72-4).
305.72-5 Procedures for the Adoption of Rules of General
Applicability (Recommendation No. 72-5).
305.72-6 Civil Money Penalties as a Sanction (Recommendation No.
72-6).
305.72-7 Pre-induction Review of Selective Service Classification
Orders and Related Procedural Matters (Recommendation No. 72-7).
305.72-8 Adverse Actions Against Federal Employees (Recommendation
No. 72-8).
305.73-1 Adverse Agency Publicity (Recommendation No. 73-1).
305.73-2 Labor Certification of Immigrant Aliens (Recommendation No.
73-2).
305.73-3 Quality Assurance Systems in the Adjudication of Claims of
Entitlement to Benefits or Compensation (Recommendation No. 73-3).
305.73-4 Administration of the Antidumping Law by the Department of
the Treasury (Recommendation No. 73-4).
305.73-5 Elimination of the ''Military or Foreign Affairs Function''
Exemption From APA Rulemaking Requirements (Recommendation No. 73-5).
305.73-6 Procedures for Resolution of Environmental Issues in
Licensing Proceedings (Recommendation No. 73-6).
305.74-1 Subpena Power in Formal Rulemaking and Formal Adjudication
(Recommendation No. 74-1).
305.74-2 Procedures for Discretionary Distribution of Federal
Assistance (Recommendation No. 74-2).
305.74-3 Procedures of the Department of the Interior with Respect to
Mining Claims on Public Lands (Recommendation 74-3).
305.74-4 Preenforcement Judicial Review of Rules of General
Applicability (Recommendation 74-4).
305.75-1 Licensing Decisions of the Federal Banking Agencies
(Recommendation No. 75-1).
305.75-2 Affirmative Action for Equal Opportunity in Nonconstruction
Employment (Recommendation No. 75-2).
305.75-3 The Choice of Forum for Judicial Review of Administrative
Action (Recommendation No. 75-3).
305.75-4 Procedures to Ensure Compliance by Federal Facilities with
Environmental Quality Standards (Recommendation No. 75-4).
305.75-5 Internal Revenue Service Procedures: The Audit and
Settlement Processes (Recommendation No. 75-5).
305.75-6 Internal Revenue Service Procedures: Collection of
Delinquent Taxes (Recommendation No. 75-6).
305.75-7 Internal Revenue Service Procedures: Civil Penalties
(Recommendation No. 75-7).
305.75-8 Internal Revenue Service Procedures: Tax Return
Confidentiality (Recommendation No. 75-8).
305.75-9 Internal Revenue Service Procedures: Taxpayer Services and
Complaints (Recommendation No. 75-9).
305.75-10 Internal Revenue Service Procedures: The IRS Summons Power
(Recommendation No. 75-10).
305.76-1 Exception from Mandatory Retirement for Certain Presidential
Appointees (Recommendation No. 76-1).
305.76-2 Strengthening the Informational and Notice-Giving Functions
of the ''Federal Register'' (Recommendation No. 76-2).
305.76-3 Procedures in Addition to Notice and the Opportunity for
Comment in Informal Rulemaking (Recommendation No. 76-3).
305.76-4 Judicial Review Under the Clean Air Act and Federal Water
Pollution Control Act (Recommendation No. 76-4).
304.76-5 Interpretive Rules of General Applicability and Statements
of General Policy (Recommendation 76-5).
305.77-1 Legislative Veto of Administrative Regulations
(Recommendation No. 77-1).
305.77-2 Judicial Review of Customs Service Actions (Recommendation
No. 77-2).
305.77-3 Ex parte Communications in Informal Rulemaking Proceedings
(Recommendation No. 77-3).
305.78-1 Reduction of Delay in Ratemaking Cases (Recommendation No.
78-1).
305.78-2 Procedures for Determining Social Security Disability Claims
(Recommendation No. 78-2).
305.78-3 Time Limits on Agency Actions (Recommendation No. 78-3).
305.78-4 Federal agency interaction with private standard-setting
organizations in health and safety regulation (Recommendation No.
78-4).
305.79-1 Hybrid Rulemaking Procedures of the Federal Trade Commission
(Recommendation No. 79-1).
305.79-2 Disputes Respecting Federal-State Agreements for
Administration of the Supplemental Security Income Program
(Recommendation No. 79-2).
305.79-3 Agency Assessment and Mitigation of Civil Money Penalties
(Recommendation No. 79-3).
305.79-4 Public Disclosure Concerning the use of Cost-Benefit and
Similar Analyses in Regulation (Recommendation No. 79-4).
305.79-5 Hybrid Rulemaking Procedures of the Federal Trade Commission
-- Administration of the Program to Reimburse Participants' Expenses
(Recommendation No. 79-5).
305.79-6 Elimination of the Presumption of Validity of Agency Rules
and Regulations in Judicial Review, as Exemplified by the Bumpers
Amendment (Recommendation No. 79-6).
305.79-7 Appropriate Restrictions on Participation by a Former Agency
Official in Matters Involving the Agency (Recommendation No. 79-7).
305.80-1 Trade Regulation Rulemaking Under the Magnuson-Moss
Warranty-Federal Trade Commission Improvement Act (Recommendation No.
80-1).
305.80-2 Enforcement of Petroleum Price Regulations (Recommendation
No. 80-2).
305.80-3 Interpretation and Implementation of the Federal Advisory
Committee Act (Recommendation No. 80-3).
305.80-4 Decisional Officials' Participation In Rulemaking
Proceedings (Recommendation No. 80-4).
305.80-5 Eliminating or Simplifying the ''Race to the Courthouse'' in
Appeals from Agency Action (Recommendation No. 80-5).
305.80-6 Intragovernmental Communications in Informal Rulemaking
Proceedings (Recommendation No. 80-6).
305.81-1 Procedures for Assessing and Collecting Freedom of
Information Act fees (Recommendation No. 81-1).
305.81-2 Current Versions of the Bumpers Amendment (Recommendation
No. 81-2).
305.82-1 Exemption (b)(4) of the Freedom of Information Act
(Recommendation No. 82-1).
305.82-2 Resolving Disputes Under Federal Grant Programs
(Recommendation No. 82-2).
305.82-3 Federal Venue Provisions Applicable to Suits Against the
Government (Recommendation No. 82-3).
305.82-4 Procedures for Negotiating Proposed Regulations
(Recommendation No. 82-4).
305.82-5 Federal Regulation of Cancer-causing Chemicals
(Recommendation No. 82-5).
305.82-6 Federal Officials' Liability for Constitutional Violations
(Recommendation No. 82-6).
305.82-7 Judicial Review of Rules in Enforcement Proceedings
(Recommendation No. 82-7).
305.83-1 The Certification Requirement in the Contract Disputes Act
(Recommendation No. 83-1).
305.83-2 The ''Good Cause'' Exemption from APA Rulemaking
Requirements (Recommendation No. 83-2).
305.83-3 Agency Structures for Review of Decisions of Presiding
Officers under the Administrative Procedure Act (Recommendation No.
83-3).
305.83-4 The Use of the Freedom of Information Act for Discovery
Purposes (Recommendation No. 83-4).
305.84-1 Public Regulation of Siting of Industrial Development
Projects (Recommendation No. 84-1).
305.84-2 Procedures for Product Recalls (Recommendation No. 84-2).
305.84-3 Improvements in the Administration of the Government in the
Sunshine Act (Recommendation No. 84-3).
305.84-4 Negotiated Cleanup of Hazardous Waste Sites Under CERCLA
(Recommendation No. 84-4).
305.84-5 Preemption of State Regulation by Federal Agencies
(Recommendation No. 84-5).
305.84-6 Disclosure of Confidential Information Under Protective
Order in International Trade Commission Proceedings (Recommendation No.
84-6).
305.84-7 Administrative Settlement of Tort and Other Monetary Claims
Against the Government (Recommendation No. 84-7).
305.85-1 Legislative preclusion of cost/benefit analysis
(Recommendation No. 85-1).
305.85-2 Agency procedures for performing regulatory analysis of
rules (Recommendation No. 85-2).
305.85-3 Coordination of public and private enforcement of
environmental laws (Recommendation No. 85-3 ).
305.85-4 Administrative Review in Immigration Proceedings
(Recommendation No. 85-4).
305.85-5 Procedures for Negotiating Proposed Regulations
(Recommendation No. 85-5).
305.86-1 Nonlawyer Assistance and Representation (Recommendation No.
86-1).
305.86-2 Use of Federal Rules of Evidence in Federal Agency
Adjudications (Recommendation No. 86-2).
305.86-3 Agencies' Use of Alternative Means of Dispute Resolution
(Recommendation No. 86-3).
305.86-4 The Split-Enforcement Model for Agency Adjudication
(Recommendation No. 86-4).
305.86-5 Medicare Appeals (Recommendation No. 86-5).
305.86-6 Petitions for Rulemaking (Recommendation No. 86-6).
305.86-7 Case Management as a Tool for Improving Agency Adjudication
(Recommendation No. 86-7).
305.86-8 Acquiring the Services of ''Neutrals'' for Alternative Means
of Dispute Resolution (Recommendation No. 86-8).
305.87-1 Priority setting and managment of rulemaking by the
Occupational Safety and Health Administration (Recommendation 87-1).
305.87-2 Federal protection of private sector health and safety
whistleblowers (Recommendation No. 87-2).
305.87-3 Agency hiring of private attorneys (Recommendation No.
87-3).
305.87-4 User fees (Recommendation No. 87-4).
305.87-5 Arbitration in Federal programs (Recommendation No. 87-5).
305.87-6 State-Level Determinations in Social Security disability
cases.
305.87-7 A New Role for the Social Security Appeals Council.
305.87-8 National coverage determinations under the Medicare Program.
305.87-9 Dispute Procedures in Federal Debt Collection.
305.87-10 Regulation by the Occupational Safety and Health
Administration.
305.87-11 Alternatives for Resolving Government Contract Disputes.
305.87-12 Adjudication practices and procedures of the Federal Bank
Regulatory Agencies.
305.88-1 Presidential Transition Workers' Code of Ethical Conduct
(Recommendation No. 88-1).
305.88-2 Federal Government Indemnification of Government Contractors
(Recommendation No. 88-2).
305.88-3 The Federal Reserve Board's Handling of Applications Under
the Bank Holding Company Act (Recommendation No. 88-3).
305.88-4 Deferred Taxation for Conflict-of-Interest Divestitures
(Recommendation No. 88-4).
305.88-5 Agency Use of Settlement Judges (Recommendation No. 88-5).
305.88-6 Judicial Review of Preliminary Challenges to Agency Action
(Recommendation No. 88-6).
305.88-7 Valuation of Human Life in Regulatory Decisionmaking
(Recommendation No. 88-7).
305.88-8 Resolution of Claims Against Savings Receiverships
(Recommendation No. 88-8).
305.88-9 Presidential review of agency rulemaking (Recommendation No.
88-9).
305.88-10 Federal agency use of computers in acquiring and releasing
information (Recommendation No. 88-10).
305.88-11 Encouraging settlements by protecting mediator
confidentiality (Recommendation No. 88-11).
305.89-1 Peer Review and Sanctions in the Medicare Program
(Recommendation No. 89-1).
305.89-2 Contracting Officers' Management of Disputes (Recommendation
No. 89-2).
305.89-3 Conflict-of-interest requirements for Federal Advisory
Committees (Recommendation No. 89-3).
305.89-4 Asylum Adjudication Procedures (Recommendation No. 89-4).
305.89-5 Achieving Judicial Acceptance of Agency Statutory
Interpretations (Recommendation No. 89-5).
305.89-6 Public Financial Disclosure by Executive Branch Officials
(Recommendation No. 89-6).
305.89-7 Federal Regulation of Biotechnology (Recommendation No.
89-7).
305.89-8 Agency Practices and Procedures for the Indexing and Public
Availability of Adjudicatory Decisions (Recommendation No. 89-8).
305.89-9 Processing and Review of Visa Denials (Recommendation No.
89-9).
305.89-10 Improved Use of Medical Personnal in Social Security
Disability determinations (Recommendation No. 89-10).
305.90-1 Civil Money Penalties for Federal Aviation Violations
(Recommendation No. 90-1).
305.90-2 The Ombudsman in Federal Agencies (Recommendation No.
90-2).
305.90-3 Use of Risk Communication by Regulatory Agencies in
Protecting Health, Safety and the Environment (Recommendation No.
90-3).
305.90-4 Social Security Disability Program Appeals Process:
Supplementary recommendation (Recommendation No. 90-4).
305.90-5 Federal Agency Electronic Records Management and Archives
(Recommendation No. 90-5).
305.90-6 Use of Simplified Proceedings in Enforcement Actions Before
the Occupational Safety and Health Review Commission (Recommendation No.
90-6).
305.90-7 Administrative responses to Congressional Demands for
Sensitive information (Recommendation No. 90-7).
305.90-8 Rulemaking and Policymaking in the Medicaid Program
(Recommendation No. 90-8).
305.91-1 Federal Agency Cooperation with Foreign overnment Regulators
(Recommendation No. 91-1).
305.91-2 Fair Administrative Procedure and Judicial Review in
Commerce Department Export Control Proceedings (Recommendation No.
91-2).
305.91-3 The Social Security Representative Payee Program
(Recommendation No. 91-3).
305.91-4 The National Vaccine Injury Compensation Program
(Recommendation No. 91-4).
305.91-5 Facilitating the Use of Rulemaking by the National Labor
Relations Board (Recommendation No. 91-5).
305.91-6 Improving the Supervision of the Safety and Soundness of
Government-Sponsored Enterprises (Recommendation No. 91-6).
305.91-7 Implementation of Farmer-Lender Mediation by the Farmers
Home Administration (Recommendation No. 91-7).
305.91-8 Adjudication of Civil Penalties under the Federal Aviation
Act (Recommendation No. 91-8).
305.91-9 Specializd Review of Administrative Action (Recommendation
No. 91-9).
305.91-10 Administrative Procedures Used in Antidumping and
Countervailing Duty Cases (Recommendation No. 91-10).
Authority: 5 U.S.C. 571-576.
Source: 38 FR 19782, July 23, 1973, unless otherwise noted.
Editorial Note: For an explanation of the publication policy
regarding these recommendations, see 304.2(a) of this chapter.
305.68-1 Adequate Hearing Facilities (Recommendation No. 68-1).
305.68-2 U.S. Government Organization Manual (Recommendation No.
68-2).
305.68-3 Parallel Table of Statutory Authorities and Rules (2 CFR
Ch. I) /1/ (Recommendation No. 68-3).
305.68-4 Consumer Bulletin (Recommendation No. 68-4).
1As of July 1, 1977, codified as Table I of the CFR Index and Finding
Aids Volume.
/1/ As of July 1, 1977, codified as Table I of the CFR Index and
Finding Aids Volume.
01 CFR 305.68-5 Representation of the Poor in Agency Rulemaking of Direct Consequence to Them (Recommendation No. 68-5).
01 CFR 305.68-5 Recommendation
A. Agency efforts. 1. Federal agencies should engage more
extensively in affirmative, self-initiated efforts to ascertain directly
from the poor their views with respect to rulemaking that may affect
them substantially. For this purpose, agencies should make strong
efforts, by use of existing as well as newly devised procedures, to
obtain information and opinion from those whose circumstances may not
permit conventional participation in rulemaking proceedings. The
''rulemaking'' referred to is that defined by the Administrative
Procedure Act, section 2(c), 5 U.S.C. 551 (4) and (5).
2. Agencies should employ as many of the following procedures as are
feasible, practicable, and necessary to assure their being fully
informed concerning the relevant interests of the poor:
(a) Agencies should seek to inform the poor of all rulemaking
proposals that may affect them substantially and should provide
opportunities for the poor to submit their views concerning these and
related proposals.
(b) Agencies should hold formal public hearings or informal
conferences in close geographic proximity to the poor substantially
affected by contemplated rulemaking.
(c) Agencies should take care to invite individuals constituting a
representative cross-section of the poor to submit their views orally or
in writing as to proposed rules substantially affecting the poor.
(d) Agencies should conduct field surveys among the poor to discover
their attitudes concerning particular government policymaking
substantially affecting them.
(e) Agencies should use advisory committees made of representatives
of the poor as continuing consultants for all programs having a
substantial effect on such persons.
(f) When necessary to assure adequate representation for the poor,
agencies should pay the personal expenses and losses incurred by
individuals incident to their participation in rulemaking hearings.
Congress should support agency requests for funds and for authority,
where none exists, to make discretionary payments for this purpose.
Agencies already authorized to make such payments in whole or in part
should use their existing authority and should allocate funds
accordingly.
In deciding whether the use of any one or more of the above devices
is feasible, practicable, or necessary in a given situation, agencies
should resolve doubts in favor of utilizing them; but their enumeration
should not exclude or discourage the development and use of other
devices to achieve the same result.
In carrying out paragraphs 1 and 2 of this recommendation, agencies
should consult with and coordinate their efforts with other Federal
agencies having responsibilities in this area and should make maximum
feasible use of the facilities of such other agencies for communicating
with and obtaining expressions of the views of the poor.
3. Agencies should be encouraged in appropriate circumstances to
determine that the exemptions in 5 U.S.C. 553(a)(2) should not be
applied with respect to rulemaking which may have a substantial impact
on the poor.
B. People's Counsel. 4. (a) An organization should be authorized by
statute to employ a staff to act as ''People's Counsel.'' The People's
Counsel should represent the interests of the poor in all Federal
administrative rulemaking substantially affecting the poor.
(b) The People's Counsel should be charged with assuring that the
views of significant separable minority interests among the poor are
represented in such Federal administrative rulemaking.
(c) The People's Counsel should be required to disseminate to all
interested poor people's organizations pertinent information concerning
rulemaking substantially affecting the poor.
(d) The People's Counsel should be authorized to participate suitably
in its own name to represent the interests of the poor in any Federal
agency proceedings in which the poor have a substantial interest.
(e) The People's Counsel should be authorized to provide
representation for organizations and groups of the poor who seek
judicial review of administrative action substantially affecting their
interests. This recommendation is not to alter the kinds of agency
action amenable to judicial review, the requirements of standing to seek
review, or the scope of that review.
(f) As an incident to its main responsibilities the People's Counsel
should be empowered to recommend to Congress or the President or to both
such legislation or other action as it deems appropriate to correct
deficiencies in or otherwise improve Federal programs having a
substantial impact on the poor.
5. (a) Congress should provide for an appropriate body to perform the
functions outlined in section 4. Deserving of consideration as such
body would be a new single-purpose corporation, to be created by
Congress, modeled on the Corporation for Public Broadcasting, Pub. L.
90-129, 81 Stat. 368 (1967), 47 U.S.C. (Supp. III) 396, and to be known
as the People's Counsel Corporation. In the event this form of
organization is adopted, the following considerations should apply:
(1) The People's Counsel Corporation should be made tax exempt and
authorized to accept grants of private funds. Gifts to the Corporation
should be made deductible as charitable contributions for Federal income
tax purposes.
(2) Federal financing of the Corporation should be made available to
the extent necessary to assure its effective operation.
(3) The governing board of the People's Counsel Corporation should be
constituted to give the poor meaningful representation thereon. Such
body should be constituted to ensure close communication with the poor
and effective representation of the viewpoints of the poor.
6. All Federal agencies should be required by Executive order to
notify the People's Counsel of all proposed rules which would have a
substantial impact on the poor. Agencies also should be required by
that Executive order to give the People's Counsel an opportunity to
present the views of the poor with respect to such proposed rules.
Exceptions to these obligations should be permitted only ''when the
agency for good cause finds (and incorporates the finding and a brief
statement of reasons therefor in the rules issued) that (such) notice
and * * * (an opportunity for the People's Counsel to present its views)
are impracticable, unnecessary, or contrary to the public interest.''
(See 5 U.S.C. 553(b)(B).) In these exceptional cases, agencies should be
required to notify the People's Counsel as soon as practicable of any
consummated rulemaking substantially affecting the poor, and should be
required to give the Counsel as soon as practicable an opportunity to
communicate to the agency its views concerning the desirability of
further action with respect to such rulemaking.
Without prejudice to creating or empowering any other appropriate
body to perform the general functions outlined in paragraphs 4, 5, and
6, any special provision therefor should be so structured as to take
maximum advantage of the capabilities in this field of nongovernment
organizations, and of other public bodies, including notably the Office
of Economic Opportunity.
Editorial Note: Six separate statements were filed concerning this
Recommendation.
01 CFR 305.68-6 Delegation of Final Decisional Authority Subject to Discretionary Review by the Agency (Recommendation No. 68-6).
01 CFR 305.68-6 Recommendation
1. In order to make more efficient use of the time and energies of
agency members and their staffs, to improve the quality of decision
without sacrificing procedural fairness, and to help eliminate delay in
the administrative process, every agency having a substantial caseload
of formal adjudications should consider the establishment of one or more
intermediate appellate boards or the adoption of procedures for
according administrative finality to presiding officers' decisions, with
discretionary authority in the agency to affirm summarily or to review,
in whole or in part, the decisions of such boards or officers.
2. Section 8 of the Administrative Procedure Act, 5 U.S.C. 557,
should be amended as necessary to clarify the authority of agencies to
restructure their decisional processes along either of the following
lines:
(a) Intermediate appellate boards. (1) Whenever an agency deems it
appropriate for the efficient and orderly conduct of its business, it
may, by rule or order:
(A) Establish one or more intermediate appellate boards consisting of
agency employees qualified by training, experience, and competence to
perform review functions,
(B) Authorize these boards to perform functions in connection with
the disposition of cases of the same character as those which may be
performed by the agency,
(C) Prescribe procedures for review of subordinate decisions by such
boards or by the agency, and
(D) Restrict the scope of inquiry by such boards and by the agency in
any review, without impairing the authority of the agency in any case to
decide on its own motion any question of procedure, fact, law, policy,
or discretion as fully as if it were making the initial decision.
(2) Any order or decision of an intermediate appellate board, unless
reviewed by the agency, shall have the same force and effect and shall
be made, evidenced, and enforced in the same manner as orders and
decisions of the agency.
(3) A party aggrieved by an order of such board may file an
application for review by the agency within such time and in such manner
as the agency shall prescribe, and every such application shall be
passed upon by the agency.
(4) In passing upon such applications for review, an agency may
grant, in whole or in part, or deny the application without specifying
any reasons therefor. No such application shall rely upon questions of
fact or law upon which the intermediate appellate board has been
afforded no opportunity to pass.
(5) An agency, on its own initiative, may review in whole or in part,
at such time and in such manner as it shall determine, any order,
decision, report, or other action made or taken by an intermediate
appellate board.
(6) If an agency grants an application for review or undertakes
review on its own motion, it may affirm, modify, reverse, or set aside
the order, decision, report or other action of the intermediate
appellate board, or may remand the proceeding for reconsideration.
(7) The filing of an application for agency review shall be a
condition precedent to judicial review of any order of an intermediate
appellate board.
(8) Agency employees performing review functions shall not be
responsible to or subject to the supervision or direction of any
employee or agent engaged in the performance of investigative or
prosecuting functions for any agency.
(b) Discretionary review of decisions of presiding officers. (1)
When a party to a proceeding seeks administrative review of an initial
decision rendered by the presiding officer (or other officer authorized
by law to make such decision), the agency may accord administrative
finality to the initial decision by denying the petition for its review,
or by summarily affirming the initial decision, unless the party seeking
review makes a reasonable showing that:
(A) Prejudicial procedural error was committed in the conduct of the
proceeding, or
(B) The initial decision embodies
(i) A finding or conclusion of material fact which is erroneous or
clearly erroneous, as the agency may by rule provide,
(ii) A legal conclusion which is erroneous, or
(iii) An exercise of discretion or decision of law or policy which is
important and which the agency should review.
(2) The agency's decision to accord or not to accord administrative
finality to an initial decision shall not be subject to judicial review.
If the initial decision becomes the decision of the agency, however,
because it is summarily affirmed by the agency or because the petition
for its review is denied, such decision of the agency will be subject to
judicial review in accordance with established law.
01 CFR 305.68-7 Elimination of Jurisdictional Amount Requirement in
Judicial Review (Recommendation No. 68-7).
Note: This recommendation has been implemented by Pub. L. 94-574.
01 CFR 305.68-8 Judicial Review of Interstate Commerce Commission
Orders (Recommendation 68-8).
Note: This recommendation has been implemented by Pub. L. 93-584.
01 CFR 305.69-1 Statutory Reform of the Sovereign Immunity Doctrine
(Recommendation 69-1).
Note: This recommendation has been implemented by Pub. L. 94-574.
01 CFR 305.69-2 Judicial Enforcement of Orders of the National Labor
Relations Board (Recommendation 69-2).
The orders of most major independent regulatory agencies normally
become enforceable automatically unless challenged in court. The
statutory requirement that an order of the NLRB can be made effective
only by affirmative action to obtain judicial confirmation of its terms,
even when its validity is wholly uncontested, is contrary to efficient
law enforcement. The Administrative Conference of 1961-62 urged that
NLRB orders be treated, for purposes of judicial review, like those of
the other major independent administrative agencies. That
recommendation remains as sound today as when it was first made. The
present practice burdens the courts with unnecessary proceedings whose
only product is delay rather than added protection against ill-founded
action. In the absence of any challenge after due notice to the
parties, NLRB orders should be enforceable by the U.S. Courts of Appeals
without further intermediate steps.
305.69-3 Publication of a ''Guide to Federal Reporting
Requirements'' (Recommendation No. 69-3).
305.69-4 Analytical Subject-Indexes to Selected Volumes of the Code
of Federal Regulations (Recommendation No. 69-4).
305.69-5 Elimination of Duplicative Hearings in FAA Safety
De-certification Cases (Recommendation No. 69-5).
01 CFR 305.69-6 Compilation of Statistics on Administrative Proceedings
by Federal Departments and Agencies (Recommendation No. 69-6).
Government agencies which conduct formal or informal rulemaking
proceedings or cases of adjudication which directly fix the rights and
obligations of private persons (hereafter referred to as
''proceedings'')1 owe a special duty to the individuals affected and to
the general public to manage their caseloads as efficiently as possible,
to eliminate inordinate delays in the conduct of proceedings, and to
work continuously toward improving the fairness, effectiveness, and
economy of their procedures. The present volume of Federal
administrative proceedings is so great that much of the basic
information needed in these efforts can be developed in intelligible and
useful form only through statistical study. The compilation and
publication of comprehensive statistics on Federal agency proceedings,
at regular intervals would:
(a) Provide each agency with information concerning its business
which would enable it to manage its caseload more effectively,
(b) Augment generally the information concerning its activities which
each agency must furnish to the President, the Congress, and the public.
(c) Afford affected parties and their counsel a better understanding
of the administrative processes which determine their rights and
obligations, and
(d) Provide a basis for specific study of particular agency
procedures by the agency itself, by committees of Congress, the
Administrative Conference of the United States, the organized bar,
research scholars, and other individuals and organizations, public and
private, interested in improving the Federal administrative process.
1The agency compilations proposed by this recommendation should not
be limited to formal proceedings, or limited to ''proceedings'' as that
term has been employed in gathering statistics for past conferences or
Congressional groups. Rather, agency figures should report all matters
directly fixing the rights, privileges, and obligations of private
interests including the routine handling of applications and claims.
01 CFR 305.69-6 Recommendation
1. To the extent deemed useful to advance the purposes of this
recommendation, each Federal administrative agency which conducts
proceedings (as defined above) affecting private persons' rights,
privileges or obligations, should prepare annual statistical data
pertaining to those proceedings, to be compiled in such manner and
presented in such publications as the agency considers appropriate.
2. These statistical compilations should list the kinds of
proceedings pending during the year, with a concise yet meaningful
description of the nature and purpose of each kind of proceeding and
citations for the statutory authority under which the proceedings are
conducted, and the sections of the Code of Federal Regulations which set
forth the rules of practice governing each kind of proceeding.
3. For the purpose of agency efforts that may be made in cooperation
with the Chairman of the Administrative Conference of the United States,
to lessen delays in administrative proceedings, the statistical
compilation should show the number of days which elapsed during each
significant step of the proceedings which were concluded during the
year.
4. In designing each agency's compilation, the following information,
together with the time-study data referred to in 3 above, should be
considered minimal:
(a) The number of proceedings of each kind pending at the beginning
of the year;
(b) The number of new proceedings filed or otherwise commenced during
the year;
(c) The number of proceedings concluded during the year and the
manner of their disposition (i.e., by settlement, dismissal on
procedural grounds, decision on the merits without hearing, final
decision by agency after hearing, and an examiner's initial decision,
etc.);
(d) The number of proceedings remaining at the end of the year; and
(e) The number of proceedings concluded during the year which were
appealed to the courts.
5. Each agency should periodically analyse all of the information
thus compiled and should develop improved techniques fitted to its
particular needs to reduce delays and expense and otherwise to improve
its administrative processes. A copy of this analysis should be
submitted to the Administrative Conference of the United States.
6. In presenting its statistical compilation, each agency should
summarize this analysis and describe the specific steps it has taken
toward the ends referred to in 5 above.
7. Each agency, in its subsequent compilations, should follow a
pattern that makes possible a comparison of data with corresponding data
for earlier periods, thus reflecting changes in backlogs, volumes, and
elapsed times and providing a measure of the agency's experience
following the specific actions referred to in 6 above.
01 CFR 305.69-7 Consideration of Alternatives in Licensing Procedures
(Recommendation No. 69-7).
Note: This recommendation has been largely implemented by sec. 102
of the National Environmental Policy Act, Pub. L. 91-190.
01 CFR 305.69-8 Elimination of Certain Exemptions from the APA Rulemaking Requirements (Recommendation No. 69-8).
01 CFR 305.69-8 Recommendation
In order to assure that Federal agencies will have the benefit of the
information and opinion that can be supplied by persons whom regulations
will affect, the Administrative Procedure Act requires that the public
must have opportunity to participate in rulemaking procedures. The
procedures to assure this opportunity are not required by law, however,
when rules are promulgated in relation to ''public property, loans,
grants, benefits, or contracts.'' These types of rules may nevertheless
bear heavily upon nongovernmental interests. Exempting them from
generally applicable procedural requirements is unwise. The present law
should therefore be amended to discontinue the exemptions to strengthen
procedures that will make for fair, informed exercise of rulemaking
authority in these as in other areas.
Removing these statutory exemptions would not diminish the power of
the agencies to omit the prescribed rulemaking procedures whenever their
observances were found to be impracticable, unnecessary, or contrary to
the public interest. A finding to that effect can be made, and
published in the Federal Register, as to an entire subject matter
concerning which rules may be promulgated. Each finding of this type
should be no broader than essential and should include a statement of
underlying reasons rather than a merely conclusory recital.
Wholly without statutory amendment, agencies already have the
authority to utilize the generally applicable procedural methods even
when formulating rules of the exempt types now under discussion. They
are urged to utilize their existing powers to employ the rulemaking
procedures provided by the Administrative Procedure Act, whenever
appropriate, without awaiting a legislative command to do so.
305.69-9 Recruitment and Selection of Hearing Examiners; Continuing
Training for Government Attorneys and Hearing Examiners; Creation of a
Center for Continuing Legal Education in Government (Recommendation No.
69-9).
01 CFR 305.70-1 Parties Defendant (Recommendation No. 70-1).
Note: This recommendation has been implemented by Pub. L. 94-574.
305.70-2 SEC No-Action Letters Under Section 4 of the Securities Act
of 1933 (Recommendation No. 70-2).
01 CFR 305.70-3 Summary Decision in Agency Adjudication (Recommendation
No. 70-3).
Delays in the administrative process can be avoided by eliminating
unnecessary evidentiary hearings where no genuine issue of material fact
exists. Each agency having a substantial caseload of formal
adjudications should adopt procedures providing for summary judgment or
decision, patterned after the following model rule in suitable cases and
with appropriate modifications to meet the needs of its own hearings:
01 CFR 305.70-3 Recommendation
Section 1. Any party to an adjudicatory or rulemaking proceeding
required by statute to be determined on the record after opportunity for
agency hearing may, after commencement of the proceeding and at least
---- days before the date fixed for the hearing, move with or without
supporting affidavits for a summary decision in his favor of all or any
part of the proceeding. Any other party may, within ---- days after
service of the motion, serve opposing affidavits or countermove for
summary decision. The presiding officer may, in his discretion, set the
matter for argument and call for the submission of briefs.
Sec. 2. The presiding officer may grant such motion if the pleadings,
affidavits, material obtained by discovery or otherwise, or matters
officially noticed, show that there is no genuine issue as to any
material fact and that a party is entitled to summary decision.
Sec. 3. Affidavits shall set forth such facts as would be admissible
in evidence and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. When a motion for summary
decision is made and supported as provided in this rule, a party
opposing the motion may not rest upon the mere allegations or denials of
his pleading; his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine
issue of fact for the hearing.
Sec. 4. Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons stated present by affidavit facts
essential to justify his opposition, the presiding officer may deny the
motion for summary decision or may order a discontinuance to permit
affidavits to be obtained or discovery to be had or may make such other
order as is just.
Sec. 5. The denial of all or any part of a motion for summary
decision by the presiding officer shall not be subject to interlocutory
appeal to the (review authority) unless (a) the presiding officer
certifies in writing (i) that the ruling involves an important question
of law or policy as to which there is substantial ground for difference
of opinion and (ii) that an immediate appeal from the ruling may
materially advance the ultimate termination of the litigation; or (b)
if the presiding officer declines so to certify, a designee of the
(review authority) so certifies upon appropriate application. The
allowance of such an interlocutory appeal shall not stay the proceeding
before the presiding officer unless the (review authority) shall so
order.
305.70-4 Discovery in Agency Adjudication (Recommendation No.
70-4).
01 CFR 305.70-5 Practices and Procedures Under the Renegotiation Act of
1951 (Recommendation No. 70-5).
Note: The Renegotiation Act has expired; see Pub. L. 94-431, 92
Stat. 1043.
01 CFR 305.71-1 Interlocutory Appeal Procedures (Recommendation No.
71-1).
Interlocutory appeal procedures for agency review of rulings by
presiding officers must balance the advantages derived from intermediate
correction of an erroneous ruling against interruption of the hearing
process and other costs of piecemeal review. Striking an appropriate
balance between these competing concerns requires that the exercise of
discretion in individual cases be carefully circumscribed. Procedures
that delegate the responsibility for allowing interlocutory appeals to
presiding officers, with a reserved power in the agency to handle
exceptional situations, have proven most satisfactory.
Recommendation1
Each agency which handles a substantial volume of cases that are
decided on the basis of a record should adopt interlocutory appeal
procedures based on the following principles:
1. Presiding officers should be authorized to rule initially on all
questions raised in the proceeding. A ruling by the presiding officer,
supported by a reasoned statement, usually should precede interlocutory
review of the question raised.
2. In general, interlocutory appeal from a ruling of the presiding
officer should be allowed only when the presiding officer certifies
that: (a) The ruling involves an important question of law or policy
concerning which there is substantial ground for difference of opinion;
and (b) an immediate appeal from the ruling will materially advance the
ultimate termination of the proceeding or subsequent review will be an
inadequate remedy.
3. Allowance of an interlocutory appeal should not stay the
proceeding unless the presiding officer determines that extraordinary
circumstances require a postponement. A stay of more than 30 days must
be approved by the review authority.
4. If the number of interlocutory appeals in an agency is
substantial, the authority to affirm, modify, or reverse the presiding
offficer's interlocutory ruling should be delegated, to the extent
permitted by law, to a review authority designated by the agency.
5. Unless the review authority orders otherwise in the particular
case, the review authority should decide the interlocutory appeal on the
record and briefs submitted to the presiding officer without further
briefs or oral argument. The review authority should summarily dismiss
an interlocutory appeal whenever it determines that the presiding
officer's certification was improvidently granted or that consideration
of the appeal is unnecessary. If the review authority does not specify
otherwise within 30 days after the certification or allowance of the
interlocutory appeal, leave to appeal from the presiding officer's
interlocutory ruling should be deemed to be denied.
6. Interlocutory review by petition to the review authority without
certification by the presiding officer should be restricted to
exceptional situations in which: (a) Vital public or private interests
might otherwise be seriously impaired, and (b) the review authority has
not had an opportunity to develop standards which the presiding officer
can apply in determining whether interlocutory review is appropriate.
1This recommendation supersedes section 5 of Recommendation No. 70-3
and paragraphs 2(6) and 7(b) of Recommendation No. 70-4, adopted June
2-3, 1970, insofar as they deal with interlocutory appeals.
01 CFR 305.71-2 Principles and Guidelines for Implementation of the
Freedom of Information Act (Recommendation No. 71-2).
Note: This recommendation has been largely implemented by Pub. L.
93-502.
01 CFR 305.71-3 Articulation of Agency Policies (Recommendation No.
71-3).
Agencies of the Federal Government should strive to act on the basis
of articulated policies and standards. Concerns of good government and
efficient management support this general principle, as do the
developing views of the Federal courts.
01 CFR 305.71-3 Recommendation
Agency policies which affect the public should be articulated and
made known to the public to the greatest extent feasible. To this end,
each agency which takes actions affecting substantial public or private
interests, whether after hearing or through informal action, should, as
far as is feasible in the circumstances, state the standards that will
guide its determination in various types of agency action, either
through published decisions, general rules or policy statements other
than rules. Each such agency from time to time should review its
precedents, rules and policy statements to assure that they accurately
reflect the agency's developing experience. If rulemaking is used for
these purposes, each agency should establish and publish general or
particular procedures (whether or not such procedures are required by
statute) that define the extent and manner of public participation
appropriate in the circumstances.
305.71-4 Minimum Procedures for Agencies Administering Discretionary
Grant Programs (Recommendation 71-4).
305.71-5 Procedure of the Immigration and Naturalization Service in
Respect to Change-of-Status Applications (Recommendation No. 71-5).
01 CFR 305.71-6 Public Participation in Administrative Hearings
(Recommendation No. 71-6).
Individuals and citizen organizations, often representing those
without a direct economic or personal stake in the outcome, are
increasingly seeking to participate in administrative hearings. Their
concern is to protect interests and present views not otherwise
adequately represented in the proceedings. Agencies are exposed to the
views of their staffs, whose positions necessarily blend a number of
interests, and to the views of those whose immediate stake is so great
that they are willing to undertake the cost of vigorous presentation of
their private interests. The opportunity of citizen groups to intervene
as parties in trial-type proceedings where their views are
unrepresented, formerly challenged on doctrinal grounds that they lacked
a sufficient interest to have ''standing,'' has been greatly broadened
by statutes, administrative actions, and judicial decisions. Agency
decisionmaking benefits from the additional perspectives provided by
informed public participation. However, the scope and manner of public
participation desirable in agency hearings has not been delineated. In
order that agencies may effectively exercise their powers and duties in
the public interest, public participation in agency proceedings should
neither frustrate an agency's control of the allocation of its resources
nor unduly complicate and delay its proceedings. Consequently, each
agency has a prime responsibility to reexamine its rules and practices
to make public participation meaningful and effective without impairing
the agency's performance of its statutory obligations.
01 CFR 305.71-6 Recommendation and Drug Administration (Recommendation
No. 71-7).
In connection with agency proceedings where the agency's decision is
preceded by notice and an opportunity to be heard or otherwise to
participate -- namely, notice-and-comment rulemaking, on-the-record
rulemaking and adjudication -- each agency should, to the fullest extent
appropriate in the light of its capabilities and responsibilities, apply
the following criteria in determining the scope of public participation
and adopt the following methods for facilitating that participation:
A. Intervention or other participation. Agency rules should clearly
indicate that persons whose interests or views are relevant and are not
otherwise represented should be allowed to participate in agency
proceedings whether or not they have a direct economic or personal
interest. Whatever the form of the proceeding, reasonable limits should
be imposed on who may participate in order: (a) To limit the
presentation of redundant evidence, (b) to impose reasonable
restrictions on interrogation and argument, and (c) to prevent avoidable
delay. In every determination of whether participation is appropriate,
the agency should also determine whether the prospective participant's
interests and views are otherwise represented and the effect of
participation on the interests of existing parties.
1. Notice-and-comment rulemaking proceedings. Agencies engaging in
notice-and-comment rulemaking should, to the extent feasible: (a) Make
available documents, materials and public submissions upon which the
proposed rule is based; (b) invite the presentation of all views so
that the agency may be apprised of any relevant consideration before
formulating policy; (c) develop effective means of providing notice to
the affected public and to groups likely to possess useful information;
and (d) if there is a hearing, allocate time fairly among all
participants.
2. On-the-record rulemaking and adjudicative hearings. Public
participation should be freely allowed in trial-type proceedings where
the agency action is likely to affect the interests asserted by the
participants. Intervention or other participation in enforcement or
license revocation proceedings should be permitted when a significant
objective of the adjudication is to develop and test a new policy or
remedy in a precise factual setting or when the prospective intervener
is the de facto charging party. Public participation in enforcement
proceedings, license revocations or other adjudications where the issue
is whether the charged respondent has violated a settled law or policy
should be permitted only after close scrutiny of the effect of
intervention or other participation on existing parties.
B. Selection of interveners. Intervention by a particular group or
person as a party in a trial-type proceeding should demand upon a
balancing of several factors, including:
(a) The nature of the contested issues;
(b) The prospective intervener's precise interest in the subject
matter or possible outcome of the proceeding;
(c) The adequacy of representation provided by the existing parties
to the proceeding, including whether these other parties will represent
the prospective intervener's interest and present its views, and the
availability of other means (e.g., presentation of views or argument as
an amicus curiae) to protect its interest;
(d) The ability of the prospective intervener to present relevant
evidence and argument; and
(e) The effect of intervention on the agency's implementation of its
statutory mandate.
C. Scope of participation. The scope of an intervener's
participation in a trial-type proceeding must assure it a fair
opportunity to present pertinent information and to provide the agency a
sound basis for decision, without rendering the hearing unmanageable.
The nature of the issues, the intervener's interests, its ability to
present relevant evidence and argument, and the number, interests and
capacities of the other parties should determine the dimensions of that
participation. In general, a public intervener should not be allowed to
determine the broad outline of the proceeding, such as the scope or
compass of the issues. A public intervener generally should be allowed
all the rights of any other party including the right to be represented
by counsel, participate in prehearing conferences, obtain discovery,
stipulate facts, present and crossexamine witnesses, make oral and
written argument, and participate in settlement negotiations. Where the
intervener focuses on only one aspect of the proceeding or does not seek
to controvert adjudicative facts, consideration should be given to
limiting its participation to particular issues, written evidence,
argument or the like. Agencies should be cautious in advance of actual
experience in anticipating that intervention will cause undue delays.
D. Cost of participation. The cost of participation in trial-type
proceedings can render the opportunity to participate meaningless.
Agencies have an obligation to minimize transcript charges, to avoid
unnecessary filing requirements; and to provide assistance in making
information available; and they should experiment with allowing access
to their staff experts as advisers and witnesses in appropriate cases.
1. Filing and distribution requirements. Filing and distribution
requirements (e.g., multiple copy rules) should be avoided except as
necessary and provision should be made for a waiver where the
requirement is burdensome. Existing filing and distribution
requirements should be re-examined. Agencies should make every effort
to provide duplication facilities at a minimum cost.
2. Transcripts. The cost of recording formal proceedings should be
borne by the agencies, not by the parties or other participants to the
proceeding (except to the extent that a person requests expedited
delivery). Existing contracts and arrangements should be revised to
provide for the availability, either through a reporting service or the
agency itself, of transcripts at a minimum charge reflecting only the
cost of reproducing copies of the agency's transcript. Transcripts
should be available without charge to indigent participants to the
extent necessary for the effective representation of their interests.
Where the aggregate of these transcript costs imposes a significant
financial burden on the agency, the agency should seek and Congress
should provide the necessary additional appropriation.
3. Availability of information and experts. An agency should provide
assistance to participants in proceedings before it or another agency,
provided that the agency's resources will not be seriously burdened or
its operations impaired. Assistance should include advice and help in
obtaining information from the agency's files. Each agency should
experiment with allowing access to agency experts and making available
experts whose testimony would be helpful in another agency's
proceedings.
E. Notice. Each agency should utilize such methods as may be
feasible, in addition to the Federal Register's official public notice,
to inform the public and citizen groups about proceedings (including
significant applications and petitions) where their participation is
appropriate. Among the techniques which should be considered are
factual press releases written in lay language, public service
announcements on radio and television, direct mailings and
advertisements where the affected public is located, and express
invitations to groups which are likely to be interested in and able to
represent otherwise unrepresented interests and views. The initial
notice should be as far in advance of hearing as possible in order to
allow affected groups an opportunity to prepare. Each agency should
consider publication of a monthly bulletin,1 listing:
(a) The name and docket number or other identification of any
scheduled proceeding in which public intervention may be appropriate;
(b) A brief summary of the purpose of the proceeding;
(c) The date, time and place of the hearing; and
(d) The name of the agency, and the name and address of the person to
contact if participation or further information is sought.
Editorial Note: Five separate statements were filed concerning this
recommendation. 305.71-7 Rulemaking on a Record by the Food
1This recommendation does not supersede Recommendation No. 68-4,
Consumer Bulletin.
01 CFR 305.71-8 Modification and Dissolution of Orders and Injunctions
(Recommendation No. 71-8).
Cease-and-desist orders issued by administrative agencies and
injunctions obtained by administrative agencies from the Federal courts
in the enforcement of regulatory statutes have generally been permanent
in duration. As a result of this practice, many orders and injunctions
now outstanding are decades old. Such outstanding orders and
injunctions may serve no useful purpose and often cause inconvenience
and hardship to the respondents. A number of agencies have experimented
successfully with techniques for limiting the duration of certain types
of orders and injunctions to a set period of time, but this approach is
not appropriate in many circumstances. To deal with this situation
agencies should therefore have available procedures whereby respondents
may seek modification or dissolution of outstanding orders and
injunctions.
01 CFR 305.71-8 Recommendation
A. Agency cease-and-desist orders. Each Federal agency that issues a
significant number of cease-and-desist orders over which it retains
jurisdiction should have a procedure available whereby a respondent may
request the agency to modify or vacate a cease-and-desist order that has
become final. The factors considered by the agency in ruling upon such
a request should include: The period of time the order has been in
effect; changed conditions of fact or law during that period; the
respondent's compliance with the order; the likelihood of further
violations of the order; the hardship which the order imposes on the
respondent; the extent of the respondent's compliance with requirements
of law that are related to those covered by the order; the interests of
other persons or parties affected by the order; the importance of the
order to the agency's overall enforcement program; and the public
interest in the enforcement of the law.
B. Court-enforced orders. Each Federal agency that obtains a
significant number of injunctions in the Federal courts or issues a
significant number of cease-and-desist orders which are enforced by
Federal courts that retain by statute exclusive jurisdiction over the
orders should have a procedure available whereby a respondent may
request the agency to join or concur with it in moving the court to
modify or vacate such an injunction or order or, in the case of an order
issued by the agency, to remand the proceeding to the agency for that
purpose. The factors considered by the agency in acting upon such a
request should include those stated in paragraph A.
305.71-9 Enforcement of Standards in Federal Grant-in-Aid Programs
(Recommendation No. 71-9).
01 CFR 305.72-1 Broadcast of Agency Proceedings (Recommendation No.
72-1).
In recent years radio and television broadcasters have sought live or
delayed coverage of many kinds of public governmental proceedings.
While Canon 35 of the Canons of Judicial Ethics of the American Bar
Association states that broadcasting or televising of court proceedings
''should not be permitted,'' the reasons for this policy, to the extent
they are applicable to administrative proceedings, are often outweighed
by the need to inform the public concerning administrative proceedings,
particularly those of broad social or economic impact, and to encourage
participation in the understanding of the administrative process.
Therefore, the public interest will be served by permitting radio and
television coverage of many administrative proceedings, subject to
appropriate limitations and controls.
01 CFR 305.72-1 Recommendation
A. Audiovisual coverage of public administrative proceedings. An
agency which conducts proceedings of interest to the general public
should adopt regulations, consistent with the principles stated below,
which state whether audiovisual coverage of each type of proceeding is
permitted, precluded or left to the discretion of the presiding officer
or other official under standards determined by the agency.
1. Proceedings in which audiovisual coverage should be encouraged.
Notice-and-comment and on-the-record rulemaking proceedings, and
adjudications in which a public interest standard is applied to
authorize service or determine its level or quality, normally involve
issues of broad public interest. An agency should take affirmative
steps to encourage audiovisual coverage of public hearings or oral
presentations in such proceedings, including provision of adequate space
and facilities, convenient schedules, and the like.
2. Proceedings in which audiovisual coverage should be excluded.
Audiovisual coverage should be excluded in adjudicatory proceedings
involving the rights or status of individuals (including those of small
corporations likely to be indistinguishable in the public mind from one
or a few individuals) in which individual past culpable conduct or other
aspect of personal life is a primary subject of adjudication and the
person in question objects to coverage.
3. Proceedings in which agencies should balance conflicting values.
In adjudicatory proceedings not governed by paragraphs 1 and 2, an
agency should determine whether the drawbacks of audiovisual coverage
outweigh the advantages of informing the public. When audiovisual
coverage is excluded or restricted, the agency should state the reasons
for such exclusion or restriction on the record of the proceeding.
B. Prevention of disruption. Audiovisual coverage should be
conducted with minimal physical intrusion on the normal course of the
proceeding. Agencies should impose reasonable restrictions on lighting,
multiple microphones and other possible sources of disruption.
C. Protection of witnesses. In any public proceeding a witness
should have the right, prior to or during his testimony, to exclude
audiovisual coverage of his testimony.
Editorial Note: A separate statement was filed concerning this
recommendation.
305.72-2 Conflict-of-Interest Problems in Dealing with Natural
Resources of Indian Tribes (Recommendation No. 72-2).
01 CFR 305.72-3 Procedures of the United States Board of Parole
(Recommendation No. 72-3).
Note: This recommendation has been largely implemented by Pub. L.
94-233 and agency regulation.
01 CFR 305.72-4 Suspension and Negotiation of Rate Proposals by Federal
Regulatory Agencies (Recommendation No. 72-4).
The determinations of the Civil Aeronautics Board, Federal
Communications Commission, Federal Power Commission, and Interstate
Commerce Commission whether to exercise or refrain from exercising their
power to suspend and investigate newly filed rate proposals are of great
importance to regulated companies, their customers, and the general
public. Although a decision not to suspend does not preclude an agency
investigation at a later date (either sua sponte or upon complaint),
inertia then plays a significant role. Moreover, once a tariff change
is effectuated, in most cases the burdens of dislodging an existing rate
rest upon its challenger. Since suspension of a rate initiates a
proceeding that is likely to be protracted and costly, a decision to
suspend is also an important action. The procedures by which rate
proposals are suspended, including the various forms of private
negotiation that often accompany the suspension process, can and should
be improved.
01 CFR 305.72-4 Recommendation
A. Suspension of rate proposals -- 1. Statement of reasons for
suspension. A rate-making agency in exercising its statutory power to
suspend rate proposals should state the reasons for suspension to the
extent practicable. Identification by the agency of the limits and
sources of its concern, and not merely a recital of statutory criteria,
will enable the proponent of the rate to make a more informed decision
whether to withdraw the proposal, modify it or persist in it, and will
also serve to focus the areas of controversy in the event that the
regulated company stands on its proposal and the matter goes to hearing.
2. ''Speaking'' orders of suspension. Rate-making agencies which are
not authorized to prescribe rates without public proceedings should not
provide in suspending a rate a detailed statement of a substitute
proposal that the agency would allow to go into permanent effect without
suspension. The expression of detailed agency views concerning an
acceptable rate should not be used as a means of prescribing a rate
without allowing interested persons an opportunity to participate.
B. Negotiation between the agency and the regulated company. A
rate-making agency should not rely on a pattern of regulation consisting
largely or solely of informal negotiation by the members of the agency
with regulated companies in order to influence, shape or pre-audit rate
proposals to be filed in the future. In the short run negotiation may
appear efficient because it avoids the burden of complex public
proceedings. In the long run, however, over-reliance on negotiation may
inhibit the development of an adequate staff, compromise the
independence of the agency in passing on protests and complaints against
negotiated rates, delay the development of an adequate methodology of
regulation, and result in a failure to formulate visible and predictable
standards. The development of such standards is critical to expeditious
disposition of rate proceedings. Since negotiation with respect to
rates could preclude effective participation by others who have a direct
interest in the outcome, any negotiation undertaken should, to the
extent practicable, be conducted in proceedings open to them.
C. Authorization of temporary and partial increases. Regulatory
statutes should be amended, to the extent that existing authority is
lacking, to authorize rate-making agencies, as an adjunct to their power
to suspend, to allow temporary rate increases, including partial
increases, subject to appropriate conditions (including, where
practicable, provision for refund if the interim increase is ultimately
found unjustified). A temporary increase should be authorized only when
the agency makes a preliminary judgment, on the basis of a written
showing by the regulated company and an opportunity for comment thereon
by affected persons, that a proposed increase is justifiable at least in
part. Exercise of authority to grant temporary increases, rather than
suspending a proposed increase in full or allowing it to go into effect
without suspension, would mitigate the effects of regulatory lag.
Similar authority to allow temporary and partial rate reductions, or
other temporary changes, should also be sought where appropriate.
D. Settlement of rate proceedings -- 1. Settlement by agreement of
the parties. Settlement of rate proceedings by agreement among the
parties, either before or after an evidentiary hearing, is appropriate
and desirable if the agency, on the basis of the available record and
any further written submissions, is in a position to determine that the
disposition is in the public interest.
2. Settlement in the absence of agreement. Disposition of a rate
proceeding on the basis of a proposed settlement, in the absence of full
agreement by the parties, should turn upon the nature of the issues
involved in the proceeding and the appropriateness of an evidentiary
hearing for a fair, accurate, and efficient decision of those issues.
The degree of consensus among the parties and the nature of the
interests represented by any objecting parties are factors which the
agency may consider in determining whether a settlement is in the public
interest. In situations in which a participant who is objecting to a
proposed disposition does not show that a genuine issue of material fact
is involved, an agency may dispose of a rate proceeding on the basis of
written submissions without holding an evidentiary hearing for purposes
of cross-examination. The Administrative Procedure Act requires
cross-examination only insofar as it is required ''for a full and true
disclosure of the facts,'' 5 U.S.C. 556(d).
E. Screening of tariff adjustments by the Interstate Commerce
Commission Staff. The disposition of rate matters by the Interstate
Commerce Commission presents special problems because of the enormous
volume of tariff adjustments, given the existing regulatory scheme,
which it receives from a very large number of companies performing a
wide variety of transportation services. The Commission, largely
because of limitations of manpower, now relies almost entirely upon the
self-interest of competitive carriers and of shippers to alert it by the
filing of protests to matters warranting its serious consideration. To
the extent that resources and priorities permit, the Commission should
assume a greater burden of screening tariff adjustments on its own
initiative.
Editorial Note: A separate statement was filed concerning this
recommendation.
01 CFR 305.72-5 Procedures for the Adoption of Rules of General
Applicability (Recommendation No. 72-5).
(a) The Administrative Procedure Act, 5 U.S.C. 553 (1970), provides
simple, flexible and efficient procedure for rulemaking including
publication of a notice of proposed rulemaking in the Federal Register,
opportunity for submission of written comments, and opportunity in the
discretion of the agency for oral presentation. This notice-and-comment
rulemaking procedure is extensively used and on the whole has worked
well. Each agency is of course free to provide additional procedural
protection to private parties in any proceeding.
(b) There are statutes that require procedures in addition to those
required by section 553. Some require opportunity for oral arguments,
some require agency consultation with advisory committees, and some
require trial-type procedure.
(c) The Administrative Conference believes that statutory
requirements going beyond those of section 553 should not be imposed in
absence of special reasons for doing so, because the propriety of
additional procedures is usually best determined by the agency in the
light of the needs of particular rulemaking proceedings. The
Administrative Conference emphatically believes that trial-type
procedures should never be required for rulemaking except to resolve
issues of specific fact.
01 CFR 305.72-5 Recommendation
1. This recommendation applies only to rules of general applicability
and not to rules of particular applicablity, only to substantive rules
and not to procedural rules, only to legislative rules and not to
interpretative rules, and only to rulemaking governed by section 553 and
not to rulemaking excepted from the requirements of section 553.
2. In future grants of rulemaking authority to administrative
agencies, Congress ordinarily should not impose mandatory procedural
requirements other than those required by 5 U.S.C. 553, except that when
it has special reason to do so, it may appropriately require opportunity
for oral argument, agency consultation with an advisory committee, or
trial-type hearings on issues of specific fact.
3. Congress should never require trial-type procedures for resolving
questions of policy or of broad or general fact. Ordinarily it should
not require such procedures for making rules of general applicability,
except that it may sometimes appropriately require such procedures for
resolving issues of specific fact. Existing statutes imposing a
requirement of trial-type procedures for rulemaking of general
applicability should be reexamined in light of these principles.
4. A study of proceedings conducted by the Food and Drug
Administration pursuant to section 701(e) of the Federal Food, Drug and
Cosmetic Act, 21 U.S.C. 371(e) (1970), has demonstrated that that
section should be amended so as to make clear that trial-type hearings
are not required except on issues of specific fact.
5. Each agency should decide in the light of the circumstances of
particular proceedings whether or not to provide procedural protections
going beyond those of section 553, such as opportunity for oral
argument, agency consultation with an advisory committee, opportunity
for parties to comment on each other's written or oral submissions, a
public-meeting type of hearing, or trial-type hearing for issues of
specific fact.
01 CFR 305.72-6 Civil Money Penalties as a Sanction (Recommendation No.
72-6).
(a) Federal administrative agencies enforce many statutory provisions
and administrative regulations for violation of which fixed or variable
civil money penalties may be imposed. 1 During Fiscal 1971, seven
executive departments and thirteen independent agencies collected well
in excess of $10 million, in over 15,000 cases; all evidence points to
a doubling or tripling dollar magnitude and substantially increasing
caseload within the next few years.
(b) Increased use of civil money penalties is an important and
salutary trend. When civil money penalties are not available, agency
administrators often voice frustration at having to render harsh
''all-or-nothing decisions'' (e.g., in license revocation proceedings),
sometimes adversely affecting innocent third parties, in cases in which
enforcement purposes could better be served by a more precise
measurement of culpability and a more flexible response. In many areas
of increased concern (e.g., health and safety, the environment, consumer
protection) availability of civil money penalties might significantly
enhance an agency's ability to achieve its statutory goals.
(c) In developing a range of sanctions adequate to meet enforcement
needs, Congress and agencies must often determine whether a ''criminal
fine'' or a ''civil money penalty,'' or both, should be applied to a
given regulatory offense. The choice they make has large consequences.
Criminal penalties expose an offender to the disgrace and disabilities
associated with ''convictions''; they require special procedural and
other protections; and they can not be imposed administratively. These
factors make it appropriate to consider whether criminal sanctions
should not be supplemented or replaced by civil money penalties.
(d) Under most money penalty statutes, the penalty cannot be imposed
until the agency has succeeded in a de novo adjudication in Federal
district court, whether or not an administrative proceeding has been
held previously. The already critical overburdening of the courts
argues against flooding them with controversies of this type, which
generally have small precedential significance.
(e) Because of such factors as considerations of equity, mitigating
circumstances, and the substantial time, effort and expertise such
litigation often requires in cases usually involving relatively small
sums (an average of less than $1,000 per case), agencies settle well
over 90 percent of their cases by means of compromise, remission, or
mitigation. Settlements are not wrong per se, but the quality of the
settlements under the present system is a matter of concern. Regulatory
needs are sometimes sacrificed for what is collectible. On the other
hand, those accused sometimes charge that they are being denied
procedural protections and an impartial forum and that they are often
forced to acquiesce in unfair settlements because of the lack of a
prompt and economical procedure for judicial resolution. Moreover,
several agency administrators warn that some of the worst offenders, who
will not settle and cannot feasibly be brought to trial, are escaping
penalties altogether.
This recommendation is intended to meet the problems posed above.
1For purposes of this recommendation, no distinction has been drawn
between sanctions denominated ''money penalties'' and sanctions
denominated ''forfeitures'' (e.g., in FCC legislation) and ''fines''
(e.g., in Postal Service legislation) so long as: (i) The sanction is
classified as civil and (ii) money is, in fact, subject to collection by
an agency or a court. Excluded are situations involving penalties or
liquidated damages assessed pursuant to the terms of a government
contract or sums withheld or recovered for failure to comply with the
terms of a government grant.
01 CFR 305.72-6 Recommendation
A. Desirability of Civil Money Penalties as a Sanction. 1. Federal
administrative agencies should evaluate the benefits which may be
derived from the use (or increased use) of civil money penalties as a
sanction. Such penalties should not be adopted as a means of
supplanting or curtailing other private or public civil remedies.
2. Civil money penalties are often particularly valuable, and
generally should be sought, to supplement those more potent sanctions
already available to an agency -- such as license suspension or
revocation -- whose use may prove: (a) Unduly harsh for relatively
minor offenses, or (b) infeasible because, for example, the offender
provides services which cannot be disrupted without serious harm to the
public.
3. Each Federal agency which administers laws that provide for
criminal sanctions should review its experience with such sanctions to
determine whether authorizing civil money penalties as another or
substitute sanction would be in the public interest. Such authority for
civil money penalties would be particularly appropriate, and generally
should be sought, where offending behavior is not of a type readily
recognizable as likely to warrant imprisonment.
B. Adjudication of Civil Money Penalty Cases in an Administrative
Imposition System. 1. In some circumstances it is desirable to commit
the imposition of civil money penalties to agencies themselves, without
subjecting agency determinations to de novo judicial review. Agencies
should consider asking Congress to grant them such authority. 2
Factors whose presence tends to commend such a course with respect to
a particular penalty provision include the following:
(a) A large volume of cases likely to be processed annually;
(b) The availability to the agency of more potent sanctions with the
resulting likelihood that civil money penalties will be used to moderate
an otherwise too harsh response;
(c) The importance to the enforcement scheme of speedy adjudications;
(d) The need for specialized knowledge and agency expertise in the
resolution of disputed issues;
(e) The relative rarity of issues of law (e.g., statutory
interpretation) which require judicial resolution;
(f) The importance of greater consistency of outcome (particularly as
to the penalties imposed) which could result from agency, as opposed to
district court, adjudications; and
(g) The likelihood that an agency (or a group of agencies in
combination) will establish an impartial forum in which cases can be
efficiently and fairly decided.
Considerations such as those set forth above should be weighed
heavily in favor of administrative imposition when the usual monetary
penalty for an offense or a related series of offenses would be
relatively small, and should normally be decisive when the penalty would
be unlikely to exceed $5,000. However, the benefits to be derived from
civil money penalties, and the administrative imposition thereof, should
also be considered when the penalties may be relatively large.
2. An administrative imposition system should provide:
(a) For and adjudication on the record pursuant to the Administrative
Procedure Act, 5 U.S.C. 554-57 (1970), at the option of the alleged
offender or the agency;
(b) For finality of an agency's decision unless appealed within a
specified period of time;
(c) That, if the person on whom the penalty is imposed appeals, an
agency's decision will be reviewed in United States Courts of Appeals
under the substantial evidence rule in accordance with the
Administrative Procedure Act, 5 U.S.C. 706(e);
(d) That issues made final by reason of (b) above and issues which
were raised, or might have been raised, in a proceeding for review under
(c) above may not be raised as a defense to a suit by the United States
for collection of the penalty.
Agencies should adopt rules of practice which will enable just,
inexpensive and speedy determinations. They should provide procedures
for settlement by means of remission, mitigation or compromise.
305.72-7 Pre-induction Review of Selective Service Classification
Orders and Related Procedural Matters (Recommendation No. 72-7).
305.72-8 Adverse Actions Against Federal Employees (Recommendation
No. 72-8).
2Due to the special procedures and status of the United States Tax
Court, the rationale for administrative imposition may have only limited
applicability to civil money penalties administered by the Internal
Revenue Service.
01 CFR 305.73-1 Adverse Agency Publicity (Recommendation No. 73-1).
(a) Adverse agency publicity -- that is, statements made by an agency
or its personnel which invite public attention to an agency's action or
policy and which may adversely affect persons identified therein1 -- can
cause serious and sometimes unfair injury. Where a reasonable and
equally effective alternative is not available, adverse agency publicity
is often necessary to warn of a danger to public health or safety or a
threat of significant economic harm, or to serve other legitimate public
purposes. However, adverse agency publicity is undesirable when it is
erroneous, misleading or excessive or it serves no authorized agency
purpose.
(b) Agency practices regarding adverse publicity vary widely. Some
agencies use adverse publicity as the primary method of enforcement;
for some others it is merely action incidental to formal sanctions.
Agency rules seldom establish procedures or standards for the use of
adverse agency publicity, and it is almost never subject to effective
judicial review.
(c) In meeting these concerns, this recommendation addresses agency
use of adverse publicity in connection with investigatory, rulemaking
and agency adjudicatory processes as well as informal agency actions.
It recommends the adoption of agency rules containing minimum standards
and structured practices governing the issuance of publicity.
1Publicity as used here is distinguished from the mere decision to
make records available to the public rather than preserve their
confidentiality. That decision is governed by separate criteria set
forth in the Freedom of Information Act (5 U.S.C. 552) and is not within
the scope of this recommendation.
01 CFR 305.73-1 Recommendation
Each agency should state in its published rules the procedures and
policies to be followed in publicizing agency action or policy, and
internal operating practices should assure compliance. In the adoption
of such procedures and policies, each agency should balance the need for
adequately serving the public interest and the need for adequately
protecting persons affected by adverse agency publicity in accordance
with the following standards:
1. All adverse agency publicity should be factual in content and
accurate in description. Disparaging terminology should be avoided.
2. Adverse agency publicity relating to regulatory investigations of
specifically identified persons or pending agency trial-type proceedings
should issue only in limited circumstances in accordance with the
criteria outlined below.
a. Where an agency determines that there is a significant risk the
public health or safety may be impaired or substantial economic harm may
occur unless the public is immediately notified, it may use publicity as
one of the means of speedily and accurately notifying the affected
public. However, where public harm can be avoided by immediate
discontinuance of an offending practice, a respondent should be allowed
an opportunity, where feasible, to cease the practice (pending a legal
test) in lieu of adverse agency publicity.
b. Where it is required in order to bring notice of pending agency
adjudication to persons likely to be desirous of participating therein
or likely to be affected by that or a related adjudication, the agency
should rely on publicity to the extent necessary to provide such notice
even though it may be adverse to a respondent.
c. Where information concerning adverse agency action is available to
the public regardless of agency publicity measures and is likely to
result in media publicity, adverse agency publicity should be issued
only to the extent necessary to foster agency efficiency, public
understanding, or the accuracy of news coverage.
3. Adverse agency publicity not included in paragraph 2 above should
issue only after the agency has taken reasonable precautions to assure
that the information stated is accurate and that the publicity fulfills
an authorized purpose.
4. Where information in adverse agency publicity has a limited basis
-- for example, allegations subject to subsequent agency adjudication --
that fact should be prominently disclosed. Any respondent or
prospective respondent in an agency proceeding should, if practicable
and consistent with the nature of the proceeding, be given advance
notice of adverse agency publicity relating to the proceeding and a
reasonable opportunity to prepare in advance a response to such
publicity.
5. Where adverse agency publicity is shown to be erroneous or
misleading and any person named therein requests a retraction or
correction, the agency should issue the retraction or correction in the
same manner (or as close thereto as feasible) as that by which the
original publicity was disseminated.
(38 FR 16839, June 27, 1973)
305.73-2 Labor Certification of Immigrant Aliens (Recommendation No.
73-2).
305.73-3 Quality Assurance Systems in the Adjudication of Claims of
Entitlement to Benefits or Compensation (Recommendation No. 73-3).
305.73-4 Administration of the Antidumping Law by the Department of
the Treasury (Recommendation No. 73-4).
01 CFR 305.73-5 Elimination of the ''Military or Foreign Affairs
Function'' Exemption from APA Rulemaking Requirements (Recommendation
No. 73-5).
(a) The basic principle of the rulemaking provisions of the
Administrative Procedure Act -- that an opportunity for public
participation fosters the fair and informed exercise of rulemaking
authority -- is undercut by various categorical exemptions in 5 U.S.C.
553(a). More than 25 years' experience with rulemaking under the APA has
shown some of these broad exemptions to be neither necessary nor
desirable. The Administrative Conference has previously recommended
elimination of the exemptions for matters ''relating to public property,
loans, grants, benefits, or contracts'' (Recommendation 69-8, October
22, 1969). Since rules on those subjects may bear heavily on
nongovernmental interests, the Conference concluded that their
categorical exemption from generally applicable procedural requirements
was unwise. For similar reasons, the breadth of the present exemption
for all rules which involve a ''military or foreign affairs functions''
is unwarranted.
(b) As with the earlier Recommendation, elimination of the
categorical exemption for military or foreign affairs functions would
not diminish the power of the agencies to omit APA rulemaking procedures
when their observance is found to be impracticable, unnecessary, or
contrary to the public interest, or when other exemptions contained in
section 553 are applicable, such as those for ''general statements of
policy'' or for rules relating to ''agency management or personnel.'' In
addition, the present Recommendation would retain limited exemptive
provisions specially directed to the needs of military and foreign
affairs rulemaking.
01 CFR 305.73-5 Recommendation
(1) The APA's categorical exemption for ''military or foreign affairs
function'' rulemaking should be eliminated.
(2) Two aspects of special concern in the military and foreign
affairs areas should be dealt with by modified exemptive provisions in
place of the present categorical one:
(a) Rulemaking in which the usual procedures are inappropriate
because of a need for secrecy in the interest of national defense or
foreign policy should be exempted on the same basis now applied in the
freedom of information provision, 5 U.S.C. 552(b)(1). That is, section
553(a) should contain an exemption for rulemaking involving matters
specifically required by Executive order to be kept secret in the
interest of national defense or foreign policy.
(b) Some of the agencies affected by elimination of the categorical
exemption issue numerous rules for which public procedures would be
inappropriate or unnecessary. Such agencies would find it burdensome to
make case-by-case findings that the usual procedures are
''impracticable, unnecessary, or contrary to the public interest'' under
section 553(b)(B). Repeal of the categorical exemption for ''military
or foreign affairs functions'' should not be construed to discourage use
of the implicit power to apply the section 553(b)(B) exemption on an
advance basis to narrowly drawn classes of military or foreign affairs
rulemaking. It is therefore recommended that repeal of the exemption be
accompanied by statutory clarification of the agencies' power to
prescribe by rule specified categories of rulemaking exempt by reason of
section 553(b)(B), provided that the appropriate finding and a brief
statement of reasons are set forth with respect to each category.
Though it would not be mandatory, agencies should consider using
notice-and-comment procedures for adoption of the exemptive rule itself.
Statutory amendment should also amplify the existing section 553(b)(B)
standards for exemption by including specific reference to the national
interest in the military-foreign affairs area. 1
(3) Wholly without statutory amendment, agencies already have the
authority to use the generally applicable APA procedures for rulemaking
when formulating rules of the exempt types. They are urged to do so,
wherever appropriate, in matters now excluded by the ''military or
foreign affairs function'' exemption.
Section 553(a) and the relevant part of 553(b), amended in accordance
with this recommendation, might read as follows:
Sec. 553. Rule making. (a) This section applies, according to the
provisions thereof, except to the extent that there is involved --
(1) A matter pertaining to a military or foreign affairs function of
the United States specifically required by Executive order to be kept
secret in the interest of the national defense or foreign policy; or
(2) A matter relating to agency management or personnel (or to public
property, loans, grants, benefits, or contracts). 2
(b) * * *
Except when notice or hearing is required by statute, this subsection
does not apply --
(B) When the agency for good cause finds that notice and public
procedure thereon would be impracticable, unnecessary, or contrary to
the public interest (including national interest factors if a military
or foreign affairs function is involved). The agency shall incorporate
in each rule issued in reliance upon this provision either: (i) The
finding and a brief statement of reasons therefor, or (ii) a statement
that the rule is within a category of rules established by a specified
rule which has been previously published and for which the finding and
statement of reasons have been made.
(39 FR 4847, Feb. 7, 1974)
305.73-6 Procedures for Resolution of Environmental Issues in
Licensing Proceedings (Recommendation No. 73-6).
1An Appendix to this recommendation sets forth suggested language to
effect the changes recommended by paragraph (2).
2Recommendation 69-8 proposes the deletion of the bracketed phrase.
01 CFR 305.74-1 Subpena Power in Formal Rulemaking and Formal
Adjudication (Recommendation No. 74-1).
The present recommendation implements, and somewhat expands, the
statement of principle adopted by the Conference in June 1973 with
respect to the American Bar Association's Resolution No. 10 concerning
proposed amendments to the Administrative Procedure Act. It speaks only
to the issue of subpena authority in formal proceedings under the
Administrative Procedure Act, and does not reflect any judgment as to
the need for general or specific grants of subpena authority in other
situations.
01 CFR 305.74-1 Recommendation
The Administrative Procedure Act should be amended: (1) To make
agency subpenas available in all agency proceedings, both rulemaking and
adjudication, which are subject to sections 556 and 557 of title 5,
United States Code, and (2) to make clear that the power to issue
subpenas in such proceedings shall be delegated to presiding officers.
We propose the following amendments to implement this recommendation:
1. Amend section 555(d) of title 5, United States Code to read as
follows:
(d) Agency subpenas authorized by law shall be issued to a party on
request and, when required by rules of procedure, on a statement or
showing of general relevance and reasonable scope of the evidence
sought. Each agency shall designate by rule the officers, who shall
include the presiding officer in all proceedings subject to section 556
of this title, authorized to sign and issue subpenas. On contest, the
court shall sustain the subpena or similar process or demand to the
extent that it is found to be in accordance with law. In a proceeding
for enforcement, the court shall issue an order requiring the appearance
of the witness or the production of the evidence or data within a
reasonable time under penalty of punishment for contempt in case of
contumacious failure to comply.
2. Amend section 556 of title 5, United States Code to add the words
''subpena authority;'' in the heading after the words ''powers and
duties;'', to delete the words ''authorized by law'' in subparagraph
(c)(2), to redesignate subsections (d) and (e) as (e) and (f)
respectively, and to add the following subsection (d):
(d) In any proceeding subject to the provisions of this section, the
agency is authorized to require by subpena any person to appear and
testify or to appear and produce books, papers, documents or tangible
things, or both, at a hearing or deposition at any designated place.
Subpenas shall be issued and enforced in accordance with the procedures
set forth in section 555(d) of this title. In case of failure or
refusal of any person to obey a subpena, the agency, through the
Attorney General unless otherwise authorized by law, may invoke the aid
of the district court of the United States for any district in which
such person is found or resides or transacts business in requiring the
attendance and testimony of such person and the production by him of
books, papers, documents or tangible things. The authority granted by
this subsection is in addition to and not in limitation of any other
statutory authority for the issuance of agency subpenas and for the
judicial enforcement thereof.
(39 FR 23041, June 26, 1974)
01 CFR 305.74-2 Procedures for Discretionary Distribution of Federal
Assistance (Recommendation No. 74-2).
(a) The provision of assistance by the Government has a major impact
upon the general public, as well as upon those who seek aid and those
who particularly benefit from it. As with other governmental activity
of similar importance, in dispensing assistance agencies should not be
free to act completely within their own discretion, ad hoc, unguided by
standards and insulated from the complaints of those who dispute the
propriety of agency decisions. Such unchannelled discretion not only
creates the occasion for arbitrary action, but also prevents the
agencies from giving their programs the effective policy direction
essential for the achievement of statutory aims.
(b) This Recommendation calls upon each agency which has discretion
in the distribution of assistance under a domestic program to identify
publicly the specific results it expects the assistance to achieve; to
develop criteria based on that formulation for awarding aid; and to
utilize public procedures for developing and enforcing the program's
criteria and other requirements. The adoption of these measures has
advantages for all concerned. For the agencies, it promotes the
rationality of decision-making by creating a stimulus towards analysis
and specification of program aims. Applicants and recipients benefit
from more consistent and predictable assistance terms, and from the open
opportunity to seek an award. The affected public can monitor
compliance in a way that promotes program purposes. And agency actions
become more comprehensible to all involved.
(c) The Conference has previously adopted two recommendations
directed to particular categories of assistance programs covered by the
present Recommendation and urging with respect to those categories, some
of the same measures here proposed. Moreover, those earlier
recommendations, since they were more narrowly focused, set forth
procedures in addition to those here proposed, useful for the particular
types of assistance programs they covered. Recommendation 71-4, dealing
only with discretionary grant programs, urges, as does the present
Recommendation, the development of criteria by rulemaking and sets forth
particularized public notice and applicant notification procedures
appropriate for that type of Federal assistance. Similarly,
Recommendation 71-9, directed only to grant-in-aid programs, describes
in some detail complaint procedures and information systems particularly
applicable to that type of Federal assistance. The present
Recommendation is not meant to supersede those earlier proposals; but
where it suggests additional procedures not there described, it is
intended to supplement them.
01 CFR 305.74-2 Recommendation
A. Scope of the Recommendation. In its broadest sense, Federal
assistance includes any expenditure made by the Government to provide
goods or services to the public, whatever the form of transfer; thus it
includes money grants and benefits, in-kind aid, financing, insurance,
and the permitted use of public goods. This Recommendation is directed
to domestic programs for the provision of all forms of assistance except
services (where personnel considerations must be given special account).
Since, however, the purpose of the Recommendation is to regularize
agency exercise of discretion in the distribution of assistance, its
provisions do not apply to programs in which no such discretion exists
(e.g., ''benefit'' and ''formula'' programs in which aid is distributed
on the basis of statutory entitlement); nor do they apply to
contractual agreements covered by the Government's procurement
regulations and its system of award and dispute procedures.
B. Articulation of Objectives, Criteria and Requirements -- 1.
Statement of Objectives and Criteria. Each agency that has
discretionary authority to determine the recipients under an assistance
program, and the terms, amounts and purposes of awards, should publicly
state the specific results which it expects the assistance to achieve.
The agency should also identify any major technical obstacles hindering
the achievement of these objectives, describe its strategy for
overcoming them and make this statement public where doing so would not
frustrate accomplishment of the program's goals. On the basis of such
formulation, the agency should articulate the criteria guiding its
actions in making awards. Periodically, the agency should review the
adequacy of its program objectives and assistance criteria in light of
the results achieved and changes in the public need.
2. Nature of Assistance Criteria. To ensure performance-related,
impartial choice in selection of recipients, whenever possible the
agency's assistance criteria should provide for the award of aid either
on an entitlement basis, to all who meet specified requirements, or on a
competitive basis, to those who best satisfy stated selection factors.
While considerable judgment may be left to the decision-maker in their
application, the criteria should provide sufficient guidance to enable
determinations to be made on a rational and justifiable basis.
In research, demonstration, developmental and other experimental
programs, however, an agency will not always be able to specify its
assistance criteria fully because of uncertainty about the results to be
sought and the means of their achievement. To a corresponding degree,
the choice of a recipient will involve greater judgment and in many
instances subjective choice. Nevertheless, at each stage of program
development, the agency should refine its selection basis and provide as
equal an opportunity to compete as it can.
3. Requirements imposed on recipients. The agency should state
clearly any specific results it expects the recipient to achieve. Where
possible it should promulgate these and any other requirements it
imposes on the operation or fiscal administration of assisted programs
in the form of generally applicable rules, in preference to attaching
such requirements as special conditions to particular assistance
agreements.
4. Degree of Specificity. Agencies should state their objectives,
criteria and requirements with as much specificity as practicable, and
with clear indication of their purpose. Since, however, flexibility in
the actual operation of assistance programs is useful, and diversity of
approach often necessary, requirements relating to the manner of
operation of recipients should be only as detailed and specific as is
necessary to realize the program objective.
5. Procedures for Development. Agencies should develop their
assistance criteria and generally applicable requirements through a
procedure involving public participation, by following the notice and
comment provisions of the Administrative Procedure Act, 5 U.S.C. 553.
C. Complaint Procedures -- 1. Establishment of Complaint Procedures.
Agencies benefit by encouraging affected persons to report instances in
which, in their belief, Federal standards (including the criteria for
distribution of aid and any statutory or regulatory requirements) are
not being observed in program administration. Such reports provide a
source of information concerning operational problems and successes,
supplementing whatever audits and field inspections the agency may
conduct. Assertions that standards are being disregarded are indicative
of program problems that the Federal agency must solve, by revising its
own operations, by invoking sanctions for non-compliance or by
re-examining the adequacy and appropriateness of the requirements
themselves. Consequently, assistance agencies should make procedures
available by which persons may formally report that Federal standards
intended to benefit or protect them are being violated.
2. Nature of Procedures. Agencies should permit dissatisfied persons
a suitable opportunity to submit information and argument in support of
their assertions. The agency should specify the complaint procedure or
procedures applicable to each of the programs it administers.
D. Application to Delegated Programs. In some programs, assistance
recipients have been delegated an administrative role like that of
Federal agencies in discretionary programs: the delegate-recipient
agency dispenses assistance and exercises some discretionary power to
decide who will receive aid, in what amounts, on what terms, and for
what purposes. An example is the role of community action agencies
under the Economic Opportunity Act, 42 U.S.C. 2701, et seq. In such
programs, if it has the power to do so, the Federal agency should direct
such recipients to observe Part B of this Recommendation, and to adopt
procedures in accordance with Part C for receiving reports alleging
violation by the recipient of its own established objectives, criteria
and requirements. Reports alleging that the recipient's objectives,
criteria and requirements do not accord with Federal standards should be
entertained at the Federal agency level.
Editorial Note: One separate statement was filed concerning the
recommendation.
(39 FR 23041, June 26, 1974)
305.74-3 Procedures of the Department of the Interior with Respect
to Mining Claims on Public Lands (Recommendation No. 74-3).
01 CFR 305.74-4 Preenforcement Judicial Review of Rules of General
Applicability (Recommendation No. 74-4).
(a) With increasing frequency, rules of general applicability adopted
by agencies informally pursuant to 5 U.S.C. 553 are being reviewed by
the courts directly, before they are applied to particular persons in
adjudicative proceedings. Such review may be by courts of appeals under
statutes, mostly older statutes, providing generally for judicial review
or orders of specific agencies, or under recent statutes providing
specifically for the direct review of rules issued by new agencies or by
newly created authority. The district courts also review rules directly
in the exercise of their power under the Administrative Procedure Act to
review agency action not otherwise reviewable.
(b) The trend toward immediate review of agency rules has been
accompanied by confusion over the appropriate scope and standard of
review. In particular, conceptual and practical difficulties have
arisen from the use by Congress and the courts of phrases such as
''hearing,'' ''record'' and ''substantial evidence on the record as a
whole,'' traditionally associated with review of orders entered after a
formal evidentiary hearing, in the new and different context of
preenforcement review of agency rules adopted informally.
(c) This recommendation, addressed to Congress, the Judicial
Conference and the agencies, seeks to dispel the confusion by: (1)
Stating what administrative materials should be included in the record
on review and (2) clarifying the standards for reviewing the adequacy of
the factual basis and rationality of rules. The recommendation accepts
the present pattern of preenforcement review of rules and does not call
for either more or less of such review. Nor does it suggest that any
particular procedures should be followed by agencies in adopting rules.
01 CFR 305.74-4 Recommendation
1. In the absence of a specific statutory requirement to the
contrary, the following are the administrative materials that should be
before a court for its use in evaluating, on preenforcement judicial
review, the factual basis for rules adopted pursuant to informal
procedures prescribed in 5 U.S.C. 553: (1) The notice of proposed
rulemaking and any documents referred to therein; (2) comments and
other documents submitted by interested persons; (3) any transcripts of
oral presentations made in the course of the rulemaking; (4) factual
information not included in the foregoing that was considered by the
authority responsible for promulgation of the rule or that is proffered
by the agency as pertinent to the rule; (5) reports of any advisory
committees; and (6) the agency's concise general statement or final
order and any documents referred to therein. /1/ References to the
''record'' or ''whole record'' in statutes pertaining to judicial review
of rules adopted under section 553 should be construed as references to
the foregoing in the absence of a legislative intent to the contrary.
The Conference does not assume that the reviewing court should
invariably be confined to the foregoing materials in evaluating the
factual basis for the rule.
2. The term ''substantial evidence on the record as a whole,'' or
comparable language, in statutes authorizing judicial review should not,
in and of itself, be taken by agencies or courts as implying that any
particular procedures must be followed by the agency whose actions are
subject to the statute and, in particular, should not be taken as a
legislative prescription that in rulemaking agencies must follow
procedures in addition to those specified in 5 U.S.C. 553.
3. The appropriate standard for determining whether a rule of general
applicability adopted after informal rulemaking rests on an adequate
foundation is stated in 5 U.S.C. 706(2)(A), which provides that a
reviewing court must set aside action found to be ''arbitrary,
capricious (or) an abuse of discretion.'' Where such a rule is attacked
on the ground that an asserted factual basis does not support it or that
a necessary factual foundation is lacking, this standard requires a
reviewing court to decide, in light of the information before it
(including the administrative materials described in paragraph 1),
whether the agency's conclusions concerning the significance of factual
information can be said to be rationally supported.
4. Statutes providing for judicial review of rules adopted after
informal rulemaking should refer only to the standards for review of
such rules set forth in 5 U.S.C. 706, including the ''arbitrary,
capricious, (or) abuse of discretion'' standard of section 706(2)(A)
(but not including the ''substantial evidence'' standard of section
706(2)(E), which by its terms is inapplicable to such rules). Properly
applied, those standards are adequate to insure appropriate judicial
scrutiny of rules adopted informally. Judicial review statutes that
speak in terms of review according to the standard of ''substantial
evidence'' should be construed as establishing a standard of review over
informal rulemaking comparable to that set forth in section 706(2)(A),
unless a contrary intent clearly appears.
Editorial Note: One separate statement was filed concerning the
recommendation.
(39 FR 23044, June 26, 1974)
305.75-1 Licensing Decisions of the Federal Banking Agencies
(Recommendation No. 75-1).
(40 FR 27925, July 2, 1975, as amended at 54 FR 6861, Feb. 15, 1989)
305.75-2 Affirmative Action for Equal Opportunity in Nonconstruction
Employment (Recommendation No. 75-2).
/1/ The court may of course limit its consideration to those
materials that parties cite. Whether the agency may withhold from the
parties to the judicial review proceeding or the court on the ground of
confidentiality any materials otherwise called for is left by the
recommendation to be decided under existing law.
01 CFR 305.75-3 The Choice of Forum for Judicial Review of
Administrative Action (Recommendation No. 75-3).
(a) This recommendation states criteria for use by the Congress in
determining the appropriate forum for judicial review of Federal
administrative action.
(b) The present forum for the review of most agency actions taken on
formal evidentiary records is the court of appeals under specific
statutory provisions. There are some exceptions. An important one
concerns decisions of the Social Security Administration on claims of
old-age, survivors' and disability benefits, which are reviewable in the
first instance by district courts with subsequent recourse to the courts
of appeals.
(c) The jurisdictional picture is less clear with respect to informal
administrative action, both notice-and-comment rulemaking and non-record
adjudication.
(d) Some recent statutes provide specifically for review by courts of
appeals of rules of general applicability promulgated without an
evidentiary hearing. There is much uncertainty, and conflicting
authority, as to whether older statutes providing for direct appellate
review of agency ''orders'' apply to such rules. In the case of
agencies not subject to specific court of appeals review provisions,
rules are ordinarily reviewed by district courts under the general
review provisions of the Administrative Procedure Act.
(e) Orders entered after non-record adjudications by agencies whose
''orders'' generally are subject to court of appeals review typically
are reviewed in the courts of appeals, although there is some old and
more-or-less neglected authority that casts doubt on the practice.
Orders of other agencies entered after non-record adjudications are
reviewed in the district courts under the general review provisions of
the Administrative Procedure Act.
(f) Legislation that conformed to the criteria set forth in this
recommendation would not significantly alter the pattern described above
but would clarify the pattern at its edges. Such legislation would
eliminate the uncertainty and consequent needless jurisdictional
litigation that have resulted from the ambiguity of existing statutory
review provisions in their application to informal agency actions, rules
and orders. It would have the additional desirable effect, particularly
important now because of the acute and increasing caseload pressure on
the courts of appeals, of helping to avoid burdening these courts with
administrative review cases that are less suitable for them than others.
(g) This recommendation rests on three basic premises. First, direct
review by the courts of appeals, where feasible, is generally desirable
in the interest of efficiency and economy, as respects both litigants
and the judicial system. The classic case for the courts of appeals is
review of agency action taken on an evidentiary record. A second
premise, however, is that direct review by the courts of appeals is not
necessarily rendered unfeasible by the absence of such a record; the
records generated by the processes of notice-and-comment rulemaking and
of informal adjudication are frequently adequate to the purpose of
judicial review and, also, can usually be supplemented without the
necessity of a judicial trial. The third, and qualifying, premise is
that review by the courts of appeals, even when review is of a purely
appellate nature or, if not so, can feasibly be conducted by the courts
of appeals, is not invariably desirable. The courts of appeals,
burdened by rapidly increasing caseloads that threaten the quality of
their decisions, constitute a scarce resource that should be reserved,
to the extent possible, for the resolution of issues of law or policy
issues of major impact; administrative review cases that do not present
such issues and that would not ordinarily reach the courts of appeals
unless brought there initially should be assigned instead to the
district courts.
(h) Before the study on which the recommendation is based was made
the Conference necessarily passed upon particular questions of
choice-of-forum for judicial review in connection with individual
studies and the recommendations emanating therefrom. Instances are
Recommendations 72-6 (court of appeals review of civil money penalties
prescribed on a record); 72-7 (district court review of non-record
selective service preinduction orders); 74-3 (court of appeals review
of mining claims decided on a record). The Conference has not caused
these recommendations to be restudied in the light of the new criteria
but believes that the recommendations remain appropriate.
01 CFR 305.75-3 Recommendation
1. Adjudications based on trial-type hearings and rules required by
statute to be based on a hearing with a determination on the record
should generally be made directly reviewable by courts of appeals. For
certain types of formal administrative action, however, initial
district-court review may be appropriate in the interest of conserving
the scarce and over-extended resources of the Federal appellate system.
The district court should not be interposed unless the administrative
action to be reviewed is of a type (a) that rarely involves issues of
law or of broad social or economic impact warranting routine review by a
multi-member court and (b) such that district court review would
significantly reduce the workload of the appellate courts. The latter
condition is met only where the class of orders to be reviewed is
numerous and, if reviewed initially by district courts, would
infrequently give rise to further appeal.
2. For any class of formal administrative action that, even after
initial district-court review, generates a large and burdensome volume
of appeals, only a small proportion of which involve legal issues or
issues of broad social or economic impact, Congress should consider the
advisability of making appeals discretionary or of allowing appeals only
upon certification by the district court. Under a system of
discretionary appeals, leave to appeal, either by the agency or by an
aggrieved party, should be granted only in cases where issues of law or
of broad impact are involved.
3. Orders of the Social Security Administration with respect to
claims for disability, health insurance, retirement or survivors'
benefits should continue to be reviewed in the first instance by
district courts. If the volume of social security appeals increases as
dramatically as projected, Congress should consider the advisability of
placing appellate review on a discretionary basis.
4. Orders of the Department of Labor Benefits Review Board with
respect to black-lung compensation claims under the Black Lung Act of
1972 are now subject to direct review by courts of appeals in accordance
with the provisions of the Longshoremen's and Harbor Workers'
Compensation Act. Congress should consider the advisability of
providing for initial district-court review of such orders.
5. The appropriate forum for the review of rules promulgated pursuant
to the notice-and-comment procedures of 5 U.S.C. 553 should be
determined in the light of the following considerations:
(a) Absence of a formal administrative record based on a trial-type
hearing does not preclude direct review of rules by courts of appeals
because: (i) Compliance with procedural requirements of 5 U.S.C. 553,
including the requirement of a statement of reasons for the rule, will
ordinarily produce a record adequate to the purpose of judicial review,
and (ii) the administrative record can usually be supplemented, if
necessary, by means other than an evidentiary trial in a district court.
(b) Direct review by a court of appeals is appropriate whenever: (i)
An initial district court decision respecting the validity of a rule
will ordinarily be appealed or (ii) the public interest requires prompt,
authoritative determination of the validity of the rule.
(c) Rules issued by agencies that regularly engage in formal
adjudication and whose ''orders'' are subject by statute to direct
review by the courts of appeals will normally satisfy the criteria of
(b) above and in any event should be reviewable directly by the courts
of appeals.
(d) Rules of other agencies that do not satisfy the criteria of (b)
above should generally be reviewable in the first instance by the
district courts.
6. (a) Informal administrative actions, other than rules, should
generally be reviewable in the first instance by the district courts.
(b) The court of appeals is the appropriate reviewing forum for
informal actions that, as a class, fulfill all of the following
conditions:
(i) Typically involve issues of law or of broad social or economic
impact,
(ii) Typically do not require an evidentiary trial at the judicial
level to determine either the underlying facts or the grounds or
evidence on which the agency based its actions; and
(iii) Are either few in number or, if numerous, would in most cases
be likely to reach the appellate courts eventually even if reviewed
initially by district courts. Informal orders issued by agencies that
mainly engage in formal adjudication and the formal orders of which are
now subject by statute to direct review by the courts of appeals will
normally satisfy these conditions and should therefore be reviewable by
the courts of appeals. There is, however, at least one exception.
Informal, discretionary orders of immigration officials related to
deportation, but not issued as part of any formal deportation
proceeding, should continue to be reviewable in the first instance by
the district courts.
7. Statutes that give courts of appeals jurisdiction to review
informal orders or rules should contain provisions, similar to that now
contained in the Administrative Orders Review Act, 28 U.S.C. 2347,
authorizing transfer of proceedings to a district court where a factual
issue requiring a judicial trial is presented.
8. A Federal court which determines that it does not have
jurisdiction of a judicial review proceeding should be authorized to
transfer the proceeding, in the interests of justice and expedition, to
a Federal court appearing to have jurisdiction.
Editorial Note: A separate statement was filed concerning this
recommendation.
(40 FR 27926, July 2, 1975)
01 CFR 305.75-4 Procedures To Ensure Compliance by Federal Facilities
with Environmental Quality Standards (Recommendation No. 75-4).
(a) The Federal Government owns or operates over 20,000 facilities,
ranging from huge military establishments, national parks, and systems
of prisons and veterans' hospitals to individual fish hatcheries, Coast
Guard stations and research laboratories. All of these facilities are
required by Federal law to comply with environmental quality standards
established by national, State or local law.
(b) As part of the Federal environmental protection program, a 1973
executive order directs Federal agencies to assess their pollution
control needs, develop plans for improvement and submit those plans and
necessary budget requests for inclusion in the President's Annual
Budget. This program has achieved significant results. Approximately
$2.4 billion has been expended over the past eight years to improve and
install pollution abatement equipment at Federal facilities.
Nonetheless, instances of noncompliance by Federal facilities have
persisted. Moreover, there are wide variations among the respective
programs concerned with air, water, noise, solid waste and ocean
dumping, in the openness and effectiveness of the procedures for
securing Federal facility compliance.
(c) The Clean Air Act, the Federal Water Pollution Control Act, and
the Noise Control Act each require agencies with control over Federal
facilities to comply with both Federal and non-Federal pollution control
standards ''to the same extent (as) any person,'' unless otherwise
exempted by statute. The Marine Protection Act requires all
''persons,'' including Federal officials, to obtain a Federal permit
before dumping waste material in the ocean. Under the Solid Waste
Disposal Act, Federal agencies need comply only with the United States
Environmental Protection Agency's guidelines, which are less stringent
than those of some States and localities.
(d) The Federal air, water, noise control, and solid waste statutes
do not establish or specifically authorize procedures for their
enforcement where Federal facilities are concerned. This problem is
acute when considering non-Federal environmental quality standards,
which constitute the bulk of the environmental standards Federal
facilities must meet, because the non-Federal efforts to impose their
enforcement procedures have been challenged by Federal agencies. Two
United States Courts of Appeals have reached opposite conclusions
concerning the authority of States to require Federal facilities to
obtain air emission control permits required of all non-Federal sources
of air pollution; a third Court of Appeals has held that Federal
facilities must comply with State permit requirements with respect to
water quality. But any decision, even of the Supreme Court, will leave
substantial procedural problems. If the authority of the States to
impose their permit and other enforcement procedures upon Federal
facilities is upheld, some agencies will have to comply with a multitude
of different State and local procedures. Because of the insufficiencies
of the statutory provisions, a result denying such authority to the
States would leave only the present fragmentary and ineffective Federal
procedures to ensure the compliance of Federal facilities with
environmental quality standards.
01 CFR 305.75-4 Recommendation
1. (a) The Clean Air Act, the Noise Control Act and the Federal Water
Pollution Control Act should be amended to vest in a single Federal
agency the exclusive authority to develop and administer procedures to
ensure compliance by Federal facilities with non-Federal environmental
quality standards. That agency should consider the use of emission
control permits where they are not now employed.
(b) If the Congress amends the Solid Waste Disposal Act to require
that Federal facilities comply with non-Federal environmental quality
standards, the amendment should vest in the single Federal agency
referred to in paragraph (a) the exclusive authority to develop and
administer procedures for compliance with such standards by Federal
facilities.
2. Procedures employed to ensure compliance by Federal facilities
with State, interstate and local environmental quality standards should
provide for: (i) Local public notice and notice to local officials,
(ii) opportunity for a public hearing (but not for a trial-type hearing
except on issues of specific fact that the agency finds may best be
resolved by trial-type hearing), and (iii) authority for the presiding
officer at any such hearing to make recommendations concerning
compliance.
(40 FR 27928, July 2, 1975)
305.75-5 Internal Revenue Service Procedures: The Audit and
Settlement Processes (Recommendation No. 75-5).
305.75-6 Internal Revenue Service Procedures: Collection of
Delinquent Taxes (Recommendation No. 75-6).
305.75-7 Internal Revenue Service Procedures: Civil Penalties
(Recommendation No. 75-7).
305.75-8 Internal Revenue Service Procedures: Tax Return
Confidentiality (Recommendation No. 75-8).
305.75-9 Internal Revenue Service Procedures: Taxpayer Services and
Complaints (Recommendation No. 75-9).
305.75-10 Internal Revenue Service Procedures: The IRS Summons
Power (Recommendation No. 75-10).
01 CFR 305.76-1 Exception from Mandatory Retirement for Certain
Presidential Appointees (Recommendation No. 76-1).
Note: This recommendation has become moot as a result of sec. 5,
Pub. L. 95-256.
(41 FR 29653, July 19, 1976; 41 FR 30319, July 23, 1976)
01 CFR 305.76-2 Strengthening the Informational and Notice-Giving
Functions of the ''Federal Register'' (Recommendation No. 76-2).
The primary role of the Federal Register is the publication, as
required by the Federal Register Act and the Administrative Procedure
Act, of legal documents that affect people generally, such as
descriptions of agencies' organization and functions, texts of
substantive and procedural rules, notices of proposed rulemaking, and
statements of general policy or interpretations of general applicability
formulated and adopted by agencies. The Office of the Federal Register
serves as an official depository for the filing of these documents, and
their publication in the Federal Register provides the public with
notice of their contents. Paragraphs A and B of the Recommendation seek
to strengthen this informational function of the Federal Register.
The secondary role of the Federal Register is the publication of
notices pertaining to adjudicatory matters. Statutory requirements and
agency practices with respect to the publication of these notices
conform to no pattern but vary widely among agencies and among different
types of adjudicatory proceedings. Since the establishment of the
Federal Register, Congress has enacted a considerable number of statutes
that specifically require agencies to publish in the Federal Register
notices of applications, hearings or decisions in adjudicatory
proceedings. In addition, agencies have often obtained the approval of
the Director of the Federal Register to publish in the Federal Register
notices pertaining to adjudicatory matters despite the absence of an
express publication requirement. Paragraphs C and D of the
Recommendation seek to define and strengthen this notice-giving function
of the Federal Register.
01 CFR 305.76-2 Recommendation
A. Preservation of Documents in the ''Code of Federal Regulations.''
The Administrative Committee of the Federal Register should require each
agency to the maximum extent practicable to preserve in the ''Code of
Federal Regulations'' documents of general applicability that are
published in the Federal Register and are of continuing interest to the
members of the public. Particularly, actions should be taken to the
extent practicable in the following areas:
1. The Administrative Committee should act to preserve in the ''Code
of Federal Regulations'' descriptions of each agency's organization and
functions required to be published in the Federal Register under
sections 552(a)(1) (A) and (B) of the Administrative Procedure Act. All
agencies should inform the public of their organization and functions by
publishing complete and informative descriptions in each year's edition
of the ''Code of Federal Regulations.'' Subsequent changes in an
agency's description of its organization and functions should appear in
the Rules and Regulations section of the Federal Register where the
codification system adopted for use in the Code controls the order of
publication and provides a useful finding aid for subsequent
developments.
2. The Administrative Committee and the agencies should act to
preserve in the ''Code of Federal Regulations'' those statements of
basis and purpose (or portions thereof) accompanying the publication in
the Federal Register of newly promulgated rules that are of continuing
interest to members of the public. If the preservation of an agency's
basis and purpose statements in successive editions of the ''Code of
Federal Regulations'' is likely to become cumbersome, the texts of the
statements prepared by that agency during each preceding year should be
reprinted only once in that year's edition of the ''Code of Federal
Regulations,'' either at the end of the title or chapter assigned to the
agency or in a special Code volume with statements from other agencies,
so that subscribers to the Code are at least able to preserve the
statements in composite, bound form. Additionally, the annual editions
of the ''Code of Federal Regulations'' should supply the Federal
Register citations to pending rulemaking proceedings that affect present
regulations or add new regulations.
B. Publication in the ''Federal Register'' of Statements of General
Policy and Interpretations of General Applicability. Despite the
requirement of section 552(a)(1)(D) of the Administrative Procedure Act
that each agency currently publish in the Federal Register for the
guidance of the public those ''statements of general policy or
interpretations of general applicability formulated and adopted by the
agency,'' surprisingly few such policy statements and interpretations
are in fact published in the Federal Register. Each agency should
review its practices and take necessary measures to insure the
publication in the Federal Register of all agency statements of general
policy and interpretations of general applicability. In addition, when
an agency utilizes an adjudicatory opinion or an instruction to staff
for the purpose of adopting a general policy or interpretation of
general applicability, it should publish in the Federal Register the
pertinent portion of the opinion or of the instruction, or it should
promptly summarize the policy or interpretation in guideline form and
publish it in the Federal Register. These policy statements and
interpretations should be published in the Rules and Regulations section
of the Federal Register and should be preserved in the ''Code of Federal
Regulations'' when they are of continuing interest to the public.
C. Standards for Publication in the Federal Register of Notices
Pertaining to Adjudicatory Matters. Congress should consider the
following standards in determining whether to impose new requirements
for the publication of notices pertaining to adjudicatory matters and in
reviewing existing publication requirements. The Director of the
Federal Register should also observe these standards in exercising his
discretionary authority to allow the publication in the Federal Register
of notices pertaining to adjudicatory matters that are not required by
law to be published. In both instances agencies should not rely solely
on the publication of notices in the Federal Register to afford notice
to interested persons of adjudicatory matters if other forms of public
notice are practicable.
1. The Federal Register should not routinely be used to publish the
texts of agency orders and opinions in adjudicatory proceedings or
notices of those decisions if there is no further opportunity available
for interested persons to comment or otherwise to participate in the
proceeding, except when such publication serves a necessary legal
purpose. Statements of general applicability adopted by an agency in an
adjudicatory opinion should be published in the Federal Register in
accordance with paragraph B of this Recommendation. Supplementary
agency publications that contain the texts of agency orders and opinions
in adjudicatory proceedings should be listed in the ''Code of Federal
Regulations'' at the head of the applicable title or chapter assigned to
the agency and should be described in greater detail in the agency's
regulations published in the Code.
2. The Federal Register should not be used to publish notices of
applications, hearings and other adjudicatory matters unless the notices
are public notices intended to inform interested members of the public
who are not parties to the proceeding of the opportunity to comment or
otherwise to participate in the proceeding. In addition, specific
categories of public notices (for example, notices of applications or
hearings under a specific statutory provision) should not be published
if there is no substantial public interest in the proceedings or if the
publication of the notices in the Federal Register is unlikely to inform
interested persons about pending adjudicatory proceedings of which they
would not otherwise receive notice.
3. The various categories of public notices of each agency should be
listed and described in detail in the agency's regulations in the ''Code
of Federal Regulations.'' The descriptions should designate which public
notices appear in the Federal Register and which do not.
D. Format for Publication in the ''Federal Register'' of Notices
Pertaining to Adjudicatory Matters. 1. The Administrative Committee of
the Federal Register should act to require that notices pertaining to
adjudicatory matters that are published in the Federal Register adopt an
appropriate public notice format. The notice that appears in the
Federal Register should briefly inform interested persons of the nature
of the proceeding, the agency's legal authority, the matters of fact and
law asserted, and the opportunities available to comment or otherwise to
participate in the proceeding and should designate an agency official
interested persons may contact for additional information. The
published notice should not ordinarily contain the text of any agency
order or opinion or a detailed recitation of the legal or factual
contentions of the agency or other parties to the proceeding.
2. If a notice pertaining to an adjudicatory matter is published in
the Federal Register, it should be published as early in the proceeding
as practicable (e.g., at the time an application is filed rather than
solely when the agency orders a hearing on the application). An agency
may also highlight specific applications or hearings where public
participation is particularly important by publishing notices thereof in
the Federal Register even though the agency does not publish notices of
other applications or hearings under the same statutory provision.
(41 FR 29653, July 19, 1976)
01 CFR 305.76-3 Procedures in Addition to Notice and the Opportunity
for Comment in Informal Rulemaking (Recommendation No. 76-3).
The Conference's Recommendation 72-5 stated that in rulemaking of
general applicability involving substantive rules ''Congress ordinarily
should not impose mandatory procedural requirements other than those
required by 5 U.S.C. 553,'' and that ''Congress should never require
trial-type procedures for resolving questions of policy or of broad or
general fact.'' Paragraph 5 of the Recommendation recognized that
agencies nevertheless may sometimes appropriately utilize such
procedures for resolving issues of specific fact, and it counseled that
in rulemaking proceedings of general applicability ''each agency should
decide in the light of the circumstances of particular proceedings
whether or not to provide procedural protections going beyond'' the
notice-and-comment requirements of Section 553, ''such as opportunity
for oral argument, agency consultation with an advisory committee,
opportunity for parties to comment on each other's written or oral
submissions, a public-meeting type of hearing, or trial-type hearing for
issues of specific fact.''
The present Recommendation enlarges upon paragraph 5 of
Recommendation 72-5 by further specifying for agency consideration
certain procedures going beyond notice-and-comment, and by describing
some of the ''circumstances of particular proceedings'' that should move
agencies to consider such additional procedures.
The Recommendation grows out of a study of decisions, primarily of
the Court of Appeals for the District of Columbia Circuit, in which
rulemaking proceedings have been remanded to agencies for additional
procedures, and of the responses of the affected agencies. The
Recommendation implies no view as to whether those decisions were
authorized by the Constitution or relevant statutes. The Recommendation
is premised, however, on the view that one can learn from the insights
of judges, who on the basis of their study of records reflecting ''the
circumstances of particular proceedings,'' perceived a need for
procedures in addition to notice and the opportunity for comment, and
from the experience of agencies required to provide such additional
procedures.
01 CFR 305.76-3 Recommendations
1. Agencies should afford interested persons the opportunity to
participate as effectively as possible in notice-and-comment rulemaking
proceedings. Therefore, in order to enlarge the opportunity for public
participation and increase its effectiveness, agencies in appropriate
circumstances should utilize procedures such as the following, which go
beyond a single notice and opportunity to comment and supplement or
particularize those listed as examples in Recommendation 72-5. 1
a. Providing from the outset for the possibility of two cycles of
notice-and-comment: (i) When the agency anticipates that the issues
raised by the rulemaking will be unusually complex, or (ii) when it is
in the public interest to utilize the initial notice of proposed
rulemaking to give only a general description of the subjects and issues
involved in the proceeding and to invite public comment upon these
subjects and issues; provided that at the conclusion of the first cycle
the agency may take any action within its powers. In addition an agency
may at any time announce, as by an ''advance notice of proposed
rulemaking'', that it intends to issue a notice of rulemaking, and in
such announcement solicit comments and suggestions with respect to the
contents of such notice.
b. Providing for a second cycle of notice-and-comment or by notice
providing an opportunity for additional comment in any proceeding when
comments filed in the proceeding, or the agency's response to such
comments, present new and important issues or serious conflicts of data.
An agency should consider the desirability of responding to comments as
a means of exposing the agency's tentative views in order to enhance the
usefulness of further comments by the public.
c. Incorporating in the notice of a notice-and-comment cycle a
summation of the agency's current attitudes toward critical issues in
the proceeding and a description of the data on which the agency relies,
indicating where the data may be inspected.
d. Providing an explanation of the tests and other procedures
followed by the agency and the significance the agency has attached to
them, and allowing opportunity for comment thereon. 2
e. Holding conferences open to the public, on adequate notice, when
an opportunity for all interested groups (such as agency staff, directly
affected persons, agency policymakers and public interest groups) to
question one another would be effective in resolving, narrowing or
clarifying the disputed issues.
f. Hearing argument and other oral presentation, when the presiding
agency official or officials may ask questions, including questions
submitted by interested persons.
Important circumstances tending to suggest the desirability of using
such procedural devices are that: (1) The scientific, technical or
other data relevant to the proposed rule are complex; (2) the problem
posed is so open-ended that an agency may profit from receiving diverse
public views before publishing a proposed rule for final comment; and
(3) the costs that errors in the rule may impose, including health,
welfare and environmental losses imposed on the public and pecuniary
expenses imposed on the affected industries and consumers of their
products, are significant.
2. In rulemaking proceedings subject to notice-and-comment
requirements agencies should give interested persons an opportunity to
indicate issues of specific fact as to which they contend that
cross-examination should be considered by the agency to be appropriate.
Cross-examination, where permitted, should be strictly limited as to
subject and duration.
3. An agency should employ any of the devices specified in paragraph
1 or permit cross-examination only to the extent that it believes that
the anticipated costs (including those related to increasing the time
involved and the deployment of additional agency resources) are offset
by anticipated gains in the quality of the rule and the extent to which
the rulemaking procedure will be perceived as having been fair.
(41 FR 29654, July 19, 1976)
305.76-4 Judicial Review Under the Clean Air Act and Federal Water
Pollution Control Act (Recommendation No. 76-4).
(41 FR 56767, Dec. 30, 1976, as amended at 54 FR 6861, Feb. 15, 1989)
1This Recommendation is addressed solely to agency process prior to
the final promulgation of a rule. In addition, the agency statement of
the basis and purpose of the rule incorporated in the rule when it is
adopted should be clear and complete and should fully and fairly inform
the public as to the basis and purpose of the rule.
2This may be accomplished, for example, in a public notice or by
technical reports issued or relied upon by the agency and incorporated
by reference in the proceeding.
01 CFR 305.76-5 Interpretive Rules of General Applicability and
Statements of General Policy (Recommendation 76-5).
(a) Agencies often explain their view of the meaning of statutes or
rules by issuing interpretive rules of general applicability, and
agencies indicate how they will exercise discretion by announcing
statements of general policy. The Administrative Procedure Act requires
that these interpretive rules and policy statements be published in the
Federal Register. But the Act does not require that interested persons
be given advance notice and opportunity to comment upon interpretive
rules and policy declarations. Courts, however, have occasionally
imposed that requirement.
(b) At times policy statements and interpretive rules are barely
distinguishable from substantive rules for which notice and comment is
required. For that and other reasons many agencies have often utilized
the notice-and-comment procedures set forth in section 553 of the Act,
without regard to whether their pronouncements fall into one category or
another. This is, in general, beneficial to both the agencies and
potentially affected elements of the public. Providing opportunity for
comment upon interpretive rules and policy statements of general
applicability, sometimes before and sometimes after their adoption,
makes for greater confidence in and broader acceptance of the ultimate
agency judgments. The following recommendations look toward wider
voluntary adoption of such procedures by the agencies. Nothing here
proposed would in any event alter the existing provisions of
Administrative Procedure Act section 553(e), allowing any person to
petition at any time for the amendment or repeal of a rule, including an
interpretive rule or a statement of general policy. Moreover, the
recommended procedures are not intended to apply to interpretations or
policies set forth in opinions in formal or informal adjudications.
01 CFR 305.76-5 Recommendation
1. Before an agency issues, amends, or repeals an interpretive rule
of general applicability or a statement of general policy which is
likely to have substantial impact on the public, the agency normally
should utilize the procedures set forth in Administrative Procedure Act
subsections 553(b) and (c), by publishing the proposed interpretive rule
or policy statement in the Federal Register, with a concise statement of
its basis and purpose and an invitation to interested persons to submit
written comments, with or without opportunity for oral presentation. If
it is impracticable, unnecessary, or contrary to the public interest to
use such procedures the agency should so state in the interpretive rule
or policy statement, with a brief statement of the reasons therefor.
2. Where there has been no prepromulgation notice and opportunity for
comment, the publication of an interpretive rule of general
applicability or a statement of general policy, even one made effective
immediately, should include a statement of its basis and purpose and an
invitation to interested persons to submit written comments, with or
without opportunity for oral presentation, within a following period of
not less than thirty days. The agency should evaluate the rule or
statement in the light of comments received. Not later than sixty days
after the close of the comment period, the agency should indicate in the
Federal Register its adherence to or alteration of its previous action,
responding as may be appropriate to significant comments received. An
agency may omit these post-adoption comment procedures when it
incorporates in the interpretive rule or policy statement a declaration,
with a brief statement of reasons, that such procedures would serve no
public interest or would be so burdensome as to outweigh any foreseeable
gain.
(41 FR 56769, Dec. 30, 1976)
01 CFR 305.77-1 Legislative Veto of Administrative Regulations
(Recommendation No. 77-1).
Note: This recommendation has become moot as a result of the United
States Supreme Court decision, Immigration and Naturalization Service v.
Chadha, 462 U.S. 919.
(42 FR 54251, Oct. 5, 1977, as amended at 54 FR 6861, Feb. 15, 1989)
01 CFR 305.77-2 Judicial Review of Customs Service Actions
(Recommendation No. 77-2).
Note: This recommendation has been largely implemented by Pub. Laws
95-410, 96-39 and 96-417.
(42 FR 54251, Oct. 5, 1977)
01 CFR 305.77-3 Ex parte Communications in Informal Rulemaking
Proceedings (Recommendation No. 77-3).
In Recommendation 72-5 the Conference expressed the view that,
generally, agency rulemaking is preferably carried out through the
simple, flexible and efficient procedures of 5 U.S.C. 553. That statute
requires publication of notice of proposed rulemaking and provision of
opportunity for submission of written comments; additional procedures
may be utilized by the agencies as they deem necessary or appropriate.
Recommendation 72-5 counseled that Congress ordinarily should not impose
mandatory procedural requirements going beyond those of section 553 in
the absence of special reasons for doing so. In Recommendation 76-3 the
Conference amplified its 1972 recommendation by suggesting ways in which
agencies might usefully supplement the minimum procedures required by
section 553 in appropriate circumstances.
The primary purposes of rulemaking procedures under section 553 are
to enhance the agency's knowledge of the subject matter of the proposed
rule and to afford all interested persons an adequate opportunity to
provide data, views, and arguments with respect to the agency's
proposals and any alternative proposals of other interested persons.
Section 553 procedures, in some instances, also serve to provide the
basis for judicial review. To the extent consistent with all of these
purposes, the agencies should have broad discretion to fashion
procedures appropriate to the nature and importance of the issues in the
proceeding, in order to make rules without undue delay or expense.
Informal rulemaking should not be subject to the constraints of the
adversary process. Ease of access to information and opinions, whether
by recourse to published material, by field research and empirical
studies, by consultation with informed persons, or by other means,
should not be impaired.
While the foregoing considerations militate against a general
prohibition upon ex parte communications in rulemaking subject only to
section 553, certain restraints upon such communications may be
desirable. Ex parte communications during the rulemaking process can
give rise to three principal types of concerns. First, decision makers
may be influenced by communications made privately, thus creating a
situation seemingly at odds with the widespread demand for open
government; second, significant information may be unavailable to
reviewing courts; and third, interested persons may be unable to reply
effectively to information, proposals or arguments presented in an ex
parte communication. In the context of section 553 rulemaking, the
first two problems can be alleviated by placing written communications
addressed to a rule proposal in a public file, and by disclosure of
significant oral communications by means of summaries or other
appropriate techniques. The very nature of such rulemaking, however,
precludes any simple solution to the third difficulty. The opportunity
of interested persons to reply could be fully secured only by converting
rulemaking proceedings into a species of adjudication in which such
persons were identified, as parties, and entitled to be, at least
constructively, present when all information and arguments are assembled
in a record. In general rulemaking, where there may be thousands of
interested persons and where the issues tend to be broad questions of
policy with respect to which illumination may come from a vast variety
of sources not specifically identifiable, the constraints appropriate
for adjudication are neither practicable nor desirable.
01 CFR 305.77-3 Recommendation
In rulemaking proceedings subject only to the procedural requirements
of section 553 of the APA:
1. A general prohibition applicable to all agencies against the
receipt of private oral or written communications is undesirable,
because it would deprive agencies of the flexibility needed to fashion
rulemaking procedures appropriate to the issues involved, and would
introduce a degree of formality that would, at least in most instances,
result in procedures that are unduly complicated, slow and expensive,
and, at the same time, perhaps not conducive to developing all relevant
information.
2. All written communications addressed to the merits, received after
notice of proposed rulemaking and in its course, from outside the agency
by an agency or its personnel participating in the decision should be
placed promptly in a file available for public inspection.
3. Agencies should experiment in appropriate situations with
procedures designed to disclose oral communications from outside the
agency of significant information or argument respecting the merits of
proposed rules, made to agency personnel participating in the decision
on the proposed rule, by means of summaries promptly placed in the
public file, meetings which the public may attend, or other techniques
appropriate to their circumstances. To the extent that summaries are
utilized they ordinarily should identify the source of the
communications, but need not do so when the information or argument is
cumulative. Except to the extent the agencies expressly provide, the
provisions of this paragraph and the preceding paragraph should not be
construed to create new rights to oral proceedings or to extensions of
the periods for comment on proposed rules.
4. An agency may properly withhold from the public file, and exempt
from requirements for making summaries, information exempt from
disclosure under the Freedom of Information Act, 5 U.S.C. 552.
5. Agencies or the Congress or the courts might conclude of course
that restrictions on ex parte communications in particular proceedings
or in limited rulemaking categories are necessitated by considerations
of fairness or the needs of judicial review arising from special
circumstances.
(42 FR 54253, Oct. 5, 1977)
305.78-1 Reduction of Delay in Ratemaking Cases (Recommendation No.
78-1).
01 CFR 305.78-2 Procedures for Determining Social Security Disability
Claims (Recommendation No. 78-2).
(a) For at least two decades the Social Security Administration's
hearings and appeals processes, particularly those for determining
disability claims which account for 90 percent of all hearings, have
been the subject of study, debate, and critical comment. Suggestions
for improvement of these processes abound. It has been proposed that
social security hearings be exempted from the formal hearing
requirements of the Administrative Procedure Act; that administrative
law judges not be used to decide these cases; that the decisions be
made not after ''hearing,'' but after ''examination'' by a panel of
experts; that the hearing process be retained, but made fully
adversary; that one or another level of agency review be abolished;
that judicial review be precluded or shifted to magistrates or to an
article I court; that the substantive standard be changed, or at least
sharpened by the development of regulations or precedent decisions.
(b) The National Center for Administrative Justice has recently
concluded the most comprehensive study yet undertaken of the social
security hearings and appeals system. In developing the present
recommendations, the Administrative Conference has reviewed and built
upon that study, the general conclusion of which is that, given existing
information, the more dramatic proposals for reform of the system are
inadvisable. While the problems that have been identified by others do
in various degrees infect the social security hearings and appeals
system, the difficulties are not so overwhelming that the proposal of a
markedly different system is required. Hence the recommendations that
follow are for the most part interstitial and conservative. Their
purpose is to prescribe improvements while reinforcing sound practice.
01 CFR 305.78-2 Recommendations
01 CFR 305.78-2 a. decisional body
1. The use of administrative law judges appointed in conformity with
the Administrative Procedure Act to decide disability claims should be
continued.
2. The Bureau of Hearings and Appeals (BHA) possesses and should
exercise the authority, consistent with the administrative law judge's
decisional independence, to prescribe procedures and techniques for the
accurate and expeditious disposition of Social Security Administration
claims. After consultation with its administrative law judge corps, the
Civil Service Commission, and other affected interests, BHA should
establish by regulation the agency's expectations concerning the
administrative law judges' performance. Maintaining the administrative
law judges' decisional independence does not preclude the articulation
of appropriate productivity norms or efforts to secure adherence to
previously enunciated standards and policies underlying the Social
Security Administration's fulfillment of statutory duties.
01 CFR 305.78-2 b. evidentiary development
1. Although evidence must sometimes be collected after the
administrative law judge hearing, prehearing development often may be
necessary for an informed and pertinent exchange at the hearing.
Administrative law judges should not therefore adopt an invariant policy
of post-hearing development, but should develop the record during the
prehearing stage whenever sound discretion suggests that such
development is feasible and useful.
2. The Bureau of Hearings and Appeals should experiment with wider
use of prehearing interviews as a means for case development and in
order to provide increased opportunity for grants of benefits without
the necessity of a hearing. Due regard should be paid to the
convenience of the claimants and to the need for a suitable record of
such interviews.
3. Better use should be made of treating physicians as sources of
useful information. In this regard, Bureau of Hearings and Appeals
should make more frequent use of available, standard-form questionnaires
to treating physicians. And when the Bureau of Hearings and Appeals
finds that consulting physicians' reports conflict with evidence
supplied by treating physicians, it should inform claimants of the
opportunity to have their treating physicians comment in writing on the
consulting physicians' reports.
4. The Bureau of Hearings and Appeals should make better use of
claimants as sources of information by: (a) Providing them with
available State agency reasons for denial; (b) providing notice of the
critical issues to be canvassed at the hearing; and (c) engaging in
careful and detailed questioning of the claimant at the hearing.
5. In the absence of regulations structuring the administrative law
judge's discretion when evaluating vocational factors, administrative
law judges should take official notice at the hearing of vocational
facts that can be established by widely recognized documentary sources
or on the basis of agency experience.
6. When vocational experts are called as witnesses they should be
examined in detail concerning: (a) The claimant's job-related skills;
(b) the specific jobs that exist for persons with the claimant's skills
and functional limitations; and (c) the number of regional location of
jobs that the claimant can perform.
7. Claimants should not be asked to waive their rights to see
evidence developed after the hearing.
8. Congressional inquiries should be processed by Bureau of Hearings
and Appeals offices in a manner that will avoid any suggestion of
preferential treatment of claimants either in the scheduling or outcome
of hearings.
01 CFR 305.78-2 c. monitoring, management, and control of the hearing
process
1. The Appeals Council should exercise review on the basis of the
evidence established in the record before the administrative law judge.
If a claimant wishes to offer new evidence after the hearing record has
been closed, petition should be made to the administrative law judge to
reopen the record. Where new evidence is offered when an appeal is
pending in the Appeals Council, the Appeals Council should make that
evidence a part of the record for purposes of the appeal only if a
refusal to do so would result in substantial injustice or unreasonable
delay.
2. The Social Security Administration should devote more attention to
the development and dissemination of precedent materials. These actions
include: (a) Regulatory codification of settled or established
policies; (b) reasoned acquiescence or nonacquiescence in judicial
decisions; (c) publication of fact-based precedent decisions; (d)
periodic conferences of administrative law judges for discussion of new
legal developments or recurrent problems.
3. The Bureau of Hearings and Appeals should continue an aggressive
quality assurance program to identify errors, determine their causes and
prevent their recurrence.
01 CFR 305.78-2 d. judicial review
When seeking a ''Secretary-initiated'' remand, pursuant to section
205 of the Social Security Act, the Secretary should state the reasons
for each request.
01 CFR 305.78-2 e. representation
1. Bureau of Hearings and Appeals offices should fully inform
claimants prior to the hearing of the availability of counsel and lay
representation and of the means by which they may obtain counsel or
representation in their local area on a fee or no-fee basis.
2. The Bureau of Hearings and Appeals should assist and cooperate
with appropriate organizations in the development of training programs
for attorneys and lay representatives.
(43 FR 27508, June 26, 1978)
01 CFR 305.78-3 Time Limits on Agency Actions (Recommendation No.
78-3).
(a) Eliminating undue delay in administrative procedures has long
been a public concern. Congress addressed the problem in general terms
in the Administrative Procedure Act in 1946. Section 6(a) of the
original Act required each agency to conclude any matter presented to it
''with reasonable dispatch.'' Section 10(e)(A) of the Act authorized a
reviewing court to enforce this command by compelling agency action
''unlawfully withheld or unreasonably delayed.'' Although these two
sections (now codified as section 555(b) and section 706(1) of title 5)
contain enforceable prohibitions against unlawful or unreasonable delay,
they have contributed little to the reduction of delay. Because what
constitutes unlawful or unreasonable delay is not readily ascertainable,
courts have afforded relief from administrative dilatoriness only
occasionally and in egregious cases. Courts have also recognized that
the present statutory provisions are too general to deprive agencies of
the broad discretion they need to allocate limited resources among
competing demands for official attention.
(b) Frustration over the inability of agencies and courts to speed
the course of administrative proceedings has occasionally led Congress
to adopt a somewhat mechanistic approach to the problem. In recent
years Congress has with increasing frequency enacted statutory
provisions that require particular agencies to complete adjudicatory or
rulemaking proceedings within prescribed periods of time. In these
instances, the statutory limits are stated in terms of specific numbers
of days or months; the statutes also identify the categories of agency
proceedings that are subject to the prescribed schedules. Congress
evidently expects that if it establishes a deadline for agency action,
the affected agency will meet that deadline, or will at the least
complete its assigned statutory duty more promptly than it would
otherwise have done.
(c) Congressional expectations that statutory time limits would be
effective have remained largely unfulfilled. There has been a
substantial degree of noncompliance with all the statutory time limits
studied. Agency officials often view statutory timetables as
unrealistically rigid demands that disregard the agency's need to adjust
to changing circumstances. Practical experience at diverse agencies
lends support to this appraisal.
(d) Statutory time limits tend to undermine an agency's ability to
establish priorities and to control the course of its proceedings. Such
limits also enable outside interests to impose their priorities on an
agency through suit or threat of suit to enforce them. When asked to
enforce statutory time limits, courts have recognized that an agency's
observance of the prescribed limits may conflict with other requirements
of law (e.g., the right of interested persons or parties to a full and
fair hearing) or with the requirements of sound decisionmaking. Judges
have, therefore, treated the enforcement of statutory time limits as a
matter lying within their own equitable discretion despite the precisely
measured language of the statutes.
(e) A recent task force study for the Senate Committee on
Governmental Affairs1 has concluded that particularized timetables or
deadlines established by individual agencies to govern their own
proceedings can be useful tools for reducing delays and are preferable
to seemingly more rigid legislative prescriptions. This finding fully
accords with those of the study underlying the present recommendation of
the Administrative Conference.
1Senate Committee on Governmental Affairs, 95th Cong., 1st sess., IV
Study on Federal Regulation: Delay in the Regulatory Process, 132-52
(1977).
01 CFR 305.78-3 Recommendation
1. Reasonable timetables or deadlines can help reduce administrative
delay. Generally, it is preferable that such limits be established by
the agencies themselves, rather than by statute.
2. Before determining to impose statutory time limits for the conduct
of agency proceedings, Congress should give due consideration to the
alternative of requiring the agency itself to establish timetables or
guidelines for the prompt disposition of various types of proceedings
conducted by it. It may also require that significant departure from
agency adopted timetables be explained in current status reports.
3. Whether or not required to do so by statute, each agency should
adopt time limits or guidelines for the prompt disposition of its
adjudicatory and rulemaking actions, either by announcing schedules for
particular agency proceedings or by adopting regulations that contain
general timetables for dealing with categories of the agency's
proceedings.
4. Congress ordinarily should not impose statutory time limits on an
agency's adjudicatory proceedings. Statutory time limits may be
appropriate, however, when the beneficial effect of agency adjudication
is directly related to its timeliness, as may be true in certain
licensing cases or in clearance of proposed private activity where a
delayed decision would deprive both the applicant and the public at
large of substantial benefit. If Congress does enact time limits, for
cases of any type, it should recognize that special circumstances (such
as a sudden substantial increase in caseload, or complexity of the
issues raised in a particular proceeding, or the presence of compelling
public interest considerations) may justify an agency's failure to act
within a predetermined time. Statutes fixing limits within which agency
adjudication must be completed should ordinarily require that an
agency's departure from the legislative timetable be explained in
current status reports to affected persons or in a report to Congress.
5. Congress ordinarily should not impose statutory time limits on
rulemaking proceedings. Purely as a practical matter, modern rulemaking
proceedings are too complex and varied, and involve too many stages, to
permit fixing unyielding time frames for agency decisionmaking. Strict
time limits, moreover, may foreclose the use of procedural techniques
that can be valuable in enhancing the degree of public participation and
insuring completeness of information. 2 Congress should therefore enact
statutory time limits applicable to rulemaking only when it can be
relatively specific about what it expects the agency to do, and when it
intends the agency to have relatively little discretion in doing it.
Congress may appropriately indicate by statute the time within which an
agency should respond to individual requests to commence rulemaking, but
it should avoid combining that time limit with a restriction on the
discretion the agency otherwise enjoys to commence or not commence
proceedings and to establish priorities for its rulemaking activities.
6. If Congress does impose a statutory time limit on agency
decisionmaking, whether in adjudicatory or rulemaking matters, it should
be attentive to the need for revision. A time limit considered
desirable at the outset may prove to have been unrealistic because it
was based on incomplete information. If realistic at the time of
enactment, the limit may cease to be so with the passage of time.
Statutes imposing time limits therefore should provide for periodic
reconsideration by the Congress or grant the agency authority to revise
the limits under standards established by the Congress.
7. If a statutory time limit is imposed, Congress should expressly
state whether affected persons may enforce the time limit through
judicial action and, if so, the nature of the relief available for this
purpose. In cases where the time limit is intended only as a norm by
which the agency's performance is to be measured, a requirement that the
agency report deviations from the time limit to Congress may be a
desirable means of assuring oversight of its performance.
(43 FR 27509, June 26, 1978)
2See, for example, Administrative Conference Recommendations 76-3,
72-5, and 77-3.
01 CFR 305.78-4 Federal agency interaction with private
standard-setting organizations in health and safety regulation
(Recommendation No. 78-4).
(a) Many Federal agencies have authority to issue mandatory health or
safety regulations relating to products, materials, processes, practices
or services that may be the subjects of voluntary standards prepared by
non-governmental organizations. Non-governmental standards, though not
legally enforceable, have in fact gained wide acceptance and a high
degree of observance. Many voluntary standards are developed, reviewed,
and periodically revised by technical committees of such
non-governmental organizations that follow open and regular procedures,
including a process for considering and attempting to resolve negative
comments. Membership on technical committees may be broadly based and
''balanced'' in an effort to assure representation of varying points of
view and avoidance of domination by a single interest. Some
standards-developing organizations provide a review mechanism to assure
compliance with prescribed procedures and an appropriately balanced
membership. Standards developed by private organizations that generally
observe such procedures, or under the Department of Commerce voluntary
standards program, are frequently referred to as ''voluntary consensus
standards,'' and are the subject of this recommendation. This
recommendation is directed toward the manner in which agencies should
interact with non-governmental organizations that develop voluntary
consensus standards and the manner in which agencies should utilize such
standards for health and safety regulation.
(b) Not all voluntary standards are developed through the consensus
process just outlined. Other kinds of voluntary standards -- for
example, those developed by trade associations or other organizations
through nonconsensus procedures -- may be valuable for regulatory use by
Federal agencies, but are not treated by this recommendation. Also, the
recommendation does not address the development of international
standards.
(c) Members of technical committees that develop voluntary consensus
standards often have a wealth of technical knowledge and expertise that
agency staffs do not possess. Agency participation in or cooperation
with those technical committees may result in the development of
standards that adequately address considerations of health or safety
more efficiently and effectively than if the agency seeks independently
to formulate standards. The fact that a standard has been developed by
an organization that uses consensus processes, however, does not of
itself assure that it is appropriate for regulatory use. For example,
some standards were developed at a time when less open procedures were
followed, or when the state of relevant knowledge was less advanced,
than at present. Some standards were developed without relevant
accident and injury information. Some organizations and committees
preparing voluntary consensus standards may not always have an adequate
representation of varying interests; in particular, there are problems
in obtaining effective representation of and participation by certain
significant interests, especially consumers, employees, small business,
and certain noneconomic interests that agencies may be charged with
protecting. 1 Moreover, the process of seeking consensus followed by
some standards-developing organizations often may create standards that
are acceptable for business interests but may not be suitable for
regulatory use.
(d) Consequently, the appropriateness of particular voluntary
consensus standards for use by an agency in the development of mandatory
health or safety regulations should be determined on a case-by-case
basis. Of course, before adopting any mandatory standard, the agency
should identify a need for doing so.
(e) Questions have been raised as to the possible applicability of
the Federal Advisory Committee Act to technical committees and
standards-developing organizations. The FACA should not apply to the
technical committees and standards-developing organizations contemplated
by this recommendation, which ordinarily are privately organized and
operated primarily for purposes independent of advising the Federal
government. It would be injurious to the operation of such
organizations, and to their willingness to cooperate with Federal
agencies, to apply to them certain provisions of the FACA which assume
Federal sponsorship and control of committees subject to the Act.
Examples include the vesting of authority in Federal employees to
approve and terminate meetings and to approve the agenda of meetings,
and of authority in the General Services Administration to conduct
annual reviews which can result in recommendations to restructure or
even abolish committees. The recommendation calls upon Congress to
amend the FACA to make explicit that it does not govern the technical
committees and standards-developing organizations here addressed. Of
course, several principles reflected in the FACA -- such as balanced
membership and open decisionmaking -- represent important criteria for
agencies to take into account when considering the use of standards
developed by such organizations (see paragraph 6(c)).
(f) The recommendation that follows is limited to agency interaction
with standards-developing organizations and use of voluntary consensus
standards in the context of regulation of health or safety. 2 The
recommendation may nevertheless be significant in relation to setting
standards for other purposes: For example, in conservation of energy
and resources, environmental issues, and formulation of test methods and
definitions. Agencies that use voluntary consensus standards in
contexts other than health or safety regulation are urged to consider
the recommended measures set forth below and to follow them to the
extent appropriate. However, the recommendation is not intended to have
application to the use of voluntary standards in government procurement,
as to which less elaborate procedures may be appropriate in many cases.
1The Conference is aware that the concept of representing identified
''interests'' in private standards-developing organizations is a complex
one, involving considerations such as what may be identifiable as an
interest, its relevancy, its internal homogeneity, its capacity to be
represented by knowledgeable spokesmen, and its political strength.
2The concept of ''regulation of health or safety'' for purposes of
this recommendation is not intended to encompass all agency functions
aimed at health and safety concerns. For example, the recommendation
does not deal with requirements relating directly to the qualifications
or conduct of individuals engaged in the performance of professional
services in areas of health or safety, or regulations that impose
preconditions on eligibility for Federal funding programs.
01 CFR 305.78-4 Recommendation
01 CFR 305.78-4 coordination and cooperation with standards-developing
organizations
1. An agency having authority to issue mandatory health or safety
regulations should draw on the knowledge and information available in
active technical committees that develop relevant voluntary consensus
standards, and should interact in accordance with this recommendation
with technical committees that follow procedures that are substantially
in accord with the criteria of paragraph 6(c).
(a) To the extent that staff resources permit, the agency should
arrange for an appropriately qualified employee to serve on each
technical committee in which the agency has a significant interest. An
employee so serving should serve as a representative of the agency
rather than in an individual capacity or as a representative of some
other designated ''interest.''3 Where separate representatives of
several agencies may result in an imbalance on the committee, the
agencies should seek to agree on a common representative or on the
attendance of some agency personnel as observers. The representative's
function should be to act as liaison to the committee, to monitor and
participate in its standards-writing activities, and to provide
information and communicate the views of the agency relative to the
standards being developed and the procedures followed by the technical
committee. The representative should have no authority to vote or to
bind the agency to any specific proposal. An agency employee who has
participated in a technical committee's development of a standard may
thereafter participate in the agency's decisionmaking process by
providing information and advice, but should not otherwise participate
in making the agency's decision on whether to adopt or to revise that
standard unless the agency has no other personnel with the requisite
knowledge and expertise.
(b) When considering whether to modify an existing mandatory health
or safety standard or to develop a new mandatory standard, the agency
should normally ask an appropriate technical committee, if an active one
exists, to consider the matter and the data bearing on the possible need
for a modification or a new standard. This should be done before the
agency independently publishes a modification or new standard as a
proposed regulation. The agency should announce the referral in an
advance notice of proposed rulemaking which describes the interaction
between the agency and the technical committee and explains how the
views of the interested public may be communicated to the committee. If
the technical committee promptly takes steps to develop an appropriate
new voluntary consensus standard or to modify a relevant voluntary
consensus standard in a manner acceptable to the agency, or presents an
appropriate existing standard, the agency may incorporate the standard
into its regulations, or may determine that governmental action is not
needed (see paragraph 7). If, however, the committee does not respond
promptly or adequately and the agency determines that regulatory action
is needed, the agency should proceed independently to develop a
mandatory standard. In determining whether to request the assistance of
a technical committee or to defer development of a regulation pending
action by a technical committee, the agency should take into account the
need for prompt development of the standard and whether committee
consideration may be obtained promptly.
(c) The relationship between the agency and the technical committee
should be a cooperative one, and the agency should not seek to dominate
the committee.
(d) In their published rulemaking notices relating to voluntary
consensus standards, agencies should describe their interactions with
the technical committees involved.
(e) Congress should amend the Federal Advisory Committee Act to state
explicitly that the technical committees and standards-developing
organizations of the sort addressed by this recommendation, which are
privately organized and operated primarily for purposes independent of
advising federal agencies, are not within the definition of ''advisory
committee'' for purposes of that Act.
2. In appropriate cases the agency should provide its available
technical information, data on health or safety concerns, and other
relevant material and information to the technical committee. The
agency may also provide financial and other support for the committee
when such action is legally permissible and is in furtherance of the
agency's mission and responsibility.
3. If an active relevant technical committee exists, an agency
undertaking to develop standards ''in-house'' should coordinate its
efforts with the committee as outlined in paragraphs 1 and 2, unless the
agency has strong reasons to believe the committee can make no useful or
timely contribution to the development of an adequate standard.
4. Each agency should, as a matter of general policy, regularly
review standards or revisions proposed by technical committees active in
the areas of regulatory concern of the agency, and should advise such
committees on a regular and informal basis whether the proposed
standards and revisions appear to be consonant with the agency's
regulatory responsibilities.
5. Agencies should adopt and publish regulations or policy statements
implementing the procedures outlined in paragraphs 1 through 4 and
describing the manner in which agency representatives are to be
designated and the authority they are to possess.
3This paragraph should not be construed as indicating disapproval of
the common present practice of permitting agency employees serving with
the consent of their agencies on technical committees in their
individual capacities or as representatives of some other designated
''interest'' rather than as agency representatives.
01 CFR 305.78-4 use of existing voluntary consensus standards in
regulation
6. Agencies with authority to issue health or safety regulations
should consider the use of existing relevant voluntary consensus
standards in developing mandatory standards. Voluntary consensus
standards should be considered with due caution and on a case-by-case
basis. Ordinarily, standards which embody judgmental factors should
receive greater scrutiny when being considered by agencies for adoption
into regulations than standards which specify nomenclature, basic
reference units, or methods of measurement or testing, and which are
primarily empirical in their formulation. In evaluating a voluntary
consensus standard each agency should consider the following factors:
(a) The apparent suitability of the voluntary consensus standard for
use as a mandatory standard, including:
(i) The problems addressed by the standard and changes in the state
of knowledge since the standard was prepared or last revised;
(ii) The extent to which the standard has been complied with, and the
reasons for any noncompliance;
(iii) The extent of injury, accident, or illness known to have
resulted from products, materials, processes, practices or services that
have conformed with the standard;
(iv) The clarity and detail of the standard's language; 4
(v) The extent to which the standard establishes performance rather
than design criteria, where feasible;
(vi) The extent to which a newly developed standard, under which
little experience exists, appears adequately to address the hazards
considered by the developers of the standard or known to the agency;
and
(vii) The enforceability of the standard.
(b) The nature of the agency's statutory mandate to develop health or
safety regulations and the consistency of the provisions of the
voluntary consensus standard with that mandate.
(c) The adequacy of the procedures followed by the organization
preparing the standard to assure that:
(i) The membership of the technical committee represents a broadly
based and balanced array of relevant interests, including, where
appropriate, representatives of consumers, labor, small business, and
other affected groups, and no single interest has a dominating influence
on the committee;
(ii) Reasonable notice that a proposed standard is being considered
is given to interested persons and groups;
(iii) Interested persons and groups have an opportunity to
participate in the deliberations and discussions relating to the
standard;
(iv) Prompt and careful consideration is given to minority points of
view and objections to the standard;
(v) Standards are approved by considerably more than a simple
majority vote of the technical committee, although unanimity is not
necessarily required;
(vi) An adequate opportunity for review is afforded to assure that
fairness is protected and that dissenting views are given full
consideration;
(vii) Adequate records are maintained to document that the
established procedures were actually followed and that the views
presented were duly considered in accordance with those procedures; and
(viii) The entire process is open to public scrutiny and review.
(d) The availability of documentation adequately describing the costs
and benefits, the rationale for and method of arriving at the critical
requirements of the standard, and other factors actually considered by
the technical committee in developing or revising the voluntary
consensus standard.
(e) The number of negative voters and the interests they represent.
(f) Possible anti-competitive effects that may arise from the use of
the voluntary consensus standard.
7. Subject to the procedural requirements of 5 U.S.C. 553 or other
relevant statutes, a voluntary consensus standard that appears to be
partially or wholly suitable for use as a regulation may be adapted by
an agency in various ways,:
(a) If the voluntary consensus standard adequately addresses the
questions of health or safety and is being substantially complied with
by the affected industry, the agency may decide to take no further
regulatory steps, or, alternatively, to adopt the standard into its
regulations (see paragraph (f) below), and direct its primary regulatory
efforts elsewhere. If, under these circumstances, the agency decides to
take no further regulatory steps, it should publish that decision and
the reasons therefor in the Federal Register. The agency should
thereafter review periodically the continued adequacy of the standard
and the extent of compliance with it by the affected industry.
(b) If the voluntary consensus standard adequately addresses the
questions of health or safety, but there has not been substantial
compliance with the standard by the affected industry, or if the
industry is so scattered and diffuse that it is difficult to ascertain
compliance, then the agency should adopt the standard into its
regulations. Where the standard is new, the agency may defer a decision
for a reasonable period to observe the effects of the standard.
(c) If the voluntary consensus standard adequately addresses the
questions of health or safety but the language of the standard lacks the
clarity or detail appropriate for a regulatory standard, then the agency
should accept the substantive provisions of the voluntary consensus
standard and seek to develop the needed clarity or detail by working
with the technical committee. Only if this is unsuccessful or
impractical should the agency alone reformulate the standard. In
evaluating whether a voluntary consensus standard is appropriately
detailed, the agency should consider the extent to which other
regulatory authorities have adopted the standard and have then succeeded
in enforcing it.
(d) If the voluntary consensus standard does not adequately address
the pertinent questions of health or safety, the agency should seek to
develop an adequate standard with the assistance of the relevant
technical committee by following the procedures described in paragraph
1(b).
(e) Agencies should consider the ''regulatory guide'' approach as a
means of effectively making use of voluntary consensus standards. A
''regulatory guide'' is a formal declaration by the agency that
compliance with designated portions, or all, or a voluntary consensus
standard will be considered an acceptable method of compliance with a
general mandatory standard appearing in either the governing statute or
the agency's regulations. When taking this approach, the agency should
suitably publicize its decision and reasons therefor.
(f) The agency may adopt a voluntary standard into its regulations
either by placing the text of the standard in the regulations, or,
preferably, by incorporating the standard by reference pursuant to 1 CFR
part 51.
8. Each regulatory agency must take special care to avoid needless
inconsistencies between voluntary and mandatory standards, as well as to
remain abreast of technological change. An agency that has adopted a
voluntary consensus standard into its regulations must therefore be
aware of and must promptly review all later revisions initiated by the
technical committees. If a revision is consistent with the agency's
regulatory responsibilities, the agency should promptly proceed under
its rulemaking authority to amend its prior standard by adopting the
latest revision. Such procedures should provide for coordinated
consideration by all agencies that have adopted the standard.
4The wording of a standard may contain too much detail as well as too
little.
01 CFR 305.78-4 revisions of standards that have been incorporated by
reference by more than one agency
9. Where a voluntary consensus standard has been incorporated by
reference by two or more agencies, the Office of the Federal Register
should develop, and implement in the form of a regulation, a procedure
by which such agencies may elect in advance to have all proposed changes
in such voluntary consensus standard reviewed pursuant to the following
procedure:
(a) A notice of proposed rulemaking, prepared by or under the
direction of the Office of the Federal Register, should be published
under the name of each electing agency in accordance with the notice and
comment requirements of 5 U.S.C. 553, so that each agency's standard can
be revised promptly in accord with revisions subsequently approved by
the promulgating organizations. The notice should also direct that all
comments on the proposed revision be sent to each electing agency as
well as to the promulgating organization. The Office of the Federal
Register should coordinate the distribution of comments if the number of
electing agencies is large.
(b) Each electing agency should promptly review each proposed
revision to the referenced standard in the light of the comments
received, and should then determine whether or not to adopt the revision
when it has been finally approved by the promulgating organization.
Adoption of the revised standard should be formally announced and should
be officially published, without further public opportunity to comment.
10. In order to implement paragraph 9, the Office of the Federal
Register should promptly ascertain all incorporations by reference of
voluntary standards that have been made in the Code of Federal
Regulations and are currently in effect.
(44 FR 1357, Jan. 5, 1979)
305.79-1 Hybrid Rulemaking Procedures of the Federal Trade
Commission (Recommendation No. 79-1).
(44 FR 38817, July 3, 1979, as amended at 54 FR 6861, Feb. 15, 1989)
305.79-2 Disputes Respecting Federal-State Agreements for
Administration of the Supplemental Security Income Program
(Recommendation No. 79-2).
(44 FR 38823, July 3, 1979)
01 CFR 305.79-3 Agency Assessment and Mitigation of Civil Money
Penalties (Recommendation No. 79-3).
(a) The civil money penalty has become one of the most widely used
techniques in the enforcement programs of Federal administrative
agencies. Most regulatory offenses punishable by civil penalties
involve adverse social consequences of private business activity. The
motivational impact of these penalties depends in large part on the
certainty of imposition and uniformity of amount, although some cases
may require individualized tailoring to the circumstance of the offender
so as to remove the economic benefit of the illegal conduct. Other
civil penalties may also serve a secondary function of compensating
society for the harm caused by unlawful conduct.
(b) Recommendation 72-6 urged that the advantages of civil money
penalties would be best achieved through an ''administrative imposition
system'' in which the agency would be empowered to adjudicate the
violation and impose the penalty after a trial-type hearing, subject to
''substantial evidence'' judicial review. Such a system, it was stated,
would avoid the delays, high costs, and jurisdictional fictions inherent
in the traditional and most common system of imposing civil money
penalties by a court in a civil action initiated on behalf of the agency
by the Department of Justice.
(c) Since adoption of that Recommendation in 1972, the use of civil
money penalties in general and of administratively imposed civil money
penalties in particular has increased significantly, and the
constitutionality and desirability of administratively imposed penalties
has been widely recognized.
(d) Experience has shown that agencies play a crucial role and
exercise broad discretion in the administration of civil penalty
programs, whether or not the statute in question authorizes an
administrative imposition system. Agencies possessing such authority
have found it efficient to try to resolve cases before the formal
hearing stage, through settlement and negotiation. Those agencies not
possessing administrative imposition authority operate under a wide
variety of statutes: some make no express reference to an agency role
in the penalty process, while others confer on the agency only a power
to ''assess'' or to ''mitigate'' penalties, thereby expressly or
implicitly reserving to the respondent the right to seek a subsequent de
novo fact-finding hearing by the court in a collection proceeding.
Agencies typically exercise their statutory authority to ''mitigate'' in
resolving contested penalty assessments prior to the initiation of
formal enforcement action. In these recommendations the term
''mitigation'' refers to any informal process of resolving a contested
initial penalty assessment.
(e) Whatever the statutory framework, the enforcing agency typically
makes the initial assessment, and provides a process for mitigation of
the penalty. Thus, both where there exists administrative imposition
authority and where such authority does not exist, agencies and
respondents customarily utilize these initial assessment and mitigation
processes to resolve the great majority of civil money penalty cases
without reaching the stage of formal administrative adjudication or
court collection proceeding.
(f) These informal processes for the initiation and termination of
civil penalty proceedings represent an area of previously unstudied and
largely discretionary agency action. Appropriate standards and
structures for the exercise of such discretion are needed to improve the
consistency, efficiency and openness of agency assessment and mitigation
processes.
(g) The recommendations that follow focus on: (1) The need for
agencies to develop standards for determining penalty amounts, (2)
agency procedures for initially assessing penalties, (3) agency
mitigation procedures, and (4) the use by agencies of evidentiary
hearings to impose civil penalties where such a procedure, though not
required by statute, might result in a limited scope of judicial review.
01 CFR 305.79-3 Recommendation
01 CFR 305.79-3 a. standards for determination of penalty amount
1. Agencies enforcing regulatory statutes, violation of which is
punishable by a civil money penalty, should establish standards for
determining appropriate penalty amounts for individual cases. In
establishing standards, agencies should specify the factors to be
considered in determining the appropriate penalty amount in a particular
case. To the extent practicable, agencies should specify the relative
weights to be attached to individual factors in the penalty calculation,
and incorporate such factors into formulas for determining penalty
amounts or into fixed schedules of prima facie penalty amounts for the
most common types or categories of violation. A penalty intended to
deter or influence economic behavior should, at a minimum, be designed
to remove the economic benefit of the illegal activity, taking into
account the documented benefit and the likelihood of escaping detection.
Penalty standards should, in addition, specify whether and to what
extent the agency will consider other factors such as compensation for
harm caused by the violation or the impact of the penalty on the
violator's financial condition. In order to reduce the cost of the
penalty calculation process and increase the predictability of the
sanction, simplifying assumptions about the benefit realized from or the
harm caused by illegal activity should be utilized.
2. Agencies should periodically evaluate the continuing effectiveness
of their penalty standards. Such evaluations should be based upon the
results of compliance surveys and internal audits of agency assessment
and mitigation decisions as well as data on the nature and frequency of
violations routinely generated by the agency's enforcement program.
3. Agencies should make such standards known to the public to the
greatest extent feasible through rulemaking or publication of policy
statements. Such an approach is especially desirable where
adjudications that produce written decisions are rare.
4. Agencies should collect and index those written decisions made in
response to mitigation requests or after agency assessment hearings, and
make such decisions available to the public except to the extent that
their disclosure is prohibited by law. Whenever a respondent cites a
previous written decision as a precedent for the agency to follow in the
respondent's case, the agency should either do so, distinguish the two
cases, or explain its reasons for not following the prior decision.
01 CFR 305.79-3 b. initial assessment of penalties
1. Agencies should give adequate written notice to the respondent of
the factual and legal basis for, and amount of, the penalty assessment.
2. Agencies should not mechanically assess variable civil money
penalties at the statutory maximum if reliable evidence in their
possession indicates the presence of mitigating factors. Nor, if they
possess such evidence, should agencies assess at the statutory level
fixed penalties which are subject to an express administrative
''mitigation'' authority.
3. The greater the degree to which an agency decentralizes its
penalty assessment authority, the more it should structure the exercise
of that authority by the use of highly specific standards. Agencies
should not ordinarily delegate discretionary authority to assess civil
money penalties to investigative personnel unless the delay inherent in
review by an independent assessment official would materially impair the
effectiveness of the enforcement process.
01 CFR 305.79-3 c. mitigation of penalties
Respondents in civil money penalty cases have a right to a trial-type
hearing at either the administrative or judicial level. It is
nevertheless desirable that agencies establish fair and economical
procedures whereby respondents may informally contest the initial
assessment of civil penalties without the necessity of going forward to
trial-type hearings. These procedures should be governed by the
following principles:
1. Agencies should provide the respondent with a right to reply in
writing to a penalty claim.
2. Agency staff should not refuse a reasonable request to discuss a
penalty claim orally. But an informal conference need not be built into
the process except in those categories of cases where the use of written
communications is likely to prove inadequate because of such factors as
the unsophistication of violators or the prevalence of factual disputes.
3. Agencies should consider providing an opportunity for
administrative review of a decision denying a request for mitigation.
4. Agency decisions on mitigation requests should be in writing and
should be accompanied by a brief indication of the grounds for the
decision.
5. In regulatory programs typically involving the imposition of small
penalties, agencies may appropriately rely most heavily on readily
ascertainable standards of liability, fixed schedules of prima facie
penalty amounts for the most common types of categories of violations,
and highly objective inspection procedures. Opportunity for mitigation
should be narrowly confined and mitigation requests entertained only if
in written form.
6. In regulatory programs typically involving the imposition of large
penalties, agencies may appropriately provide an opportunity to a
respondent to present a request for mitigation, orally or in writing,
request an oral conference thereon, receive a written decision, and
submit a written petition for review of such decision or for compromise
of such claim at a higher agency level.
01 CFR 305.79-3 d. evidentiary hearings
As expressed in Recommendation 72-6, it is desirable that agencies be
given express authority to employ the procedures of adjudication on the
record pursuant to the APA, 5 U.S.C. 554-557, for the imposition of
civil money penalties. Where its statute does not provide for such
procedure but confers upon the agency authority to ''assess'' or to
''mitigate'' a penalty, particularly if the agency is required to
conduct a ''hearing,'' the agency should consider establishing such
procedures by regulation, especially where by doing so a de novo
proceeding upon judicial review could be avoided. Where such a hearing
procedure has in fact been observed by the agency, and the statute does
not provide for de novo judicial proceedings, the court should
ordinarily utilize a limited scope of review of such agency action
imposing civil money penalties.
(44 FR 38824, July 3, 1979)
01 CFR 305.79-4 Public Disclosure Concerning the use of Cost-Benefit
and Similar Analyses in Regulation (Recommendation No. 79-4).
(a) Federal agencies must frequently weigh competing health, safety,
resource management, environmental, economic, and other societal
interests when seeking to achieve a prescribed statutory objective.
Wise decision-making presupposes that the potential benefits and costs
of the actions under consideration will be identified, will be
quantified if feasible, and will be appraised in relation to each other.
To give structure to the exercise of this responsibility, agencies
sometimes use ''cost-benefit'' or similar analytic approaches to
organize available information to determine the consequences of possible
courses of action in terms of their costs, risks and benefits. Such
techniques seek to display the projected net effects of alternative
courses of action and, when properly used, can assist the decision-maker
in deciding which of the alternatives is most likely to produce a
desired result.
(b) The following recommendation seeks to promote openness in the
decision-making process, to ensure that agencies' analytic methods are
sound and that their assumptions are known, so as to enhance public
confidence in the soundness of conclusions finally reached. The
recommendation is not intended to promote or to discourage the use of
any single kind of analysis as a framework for agency decision-making,
since this choice is normally a matter of agency discretion. The choice
of analytic technique may depend on several factors, including the
technical complexity of the problem, the magnitude of the impacts, the
time frame for agency action, and the extent to which quantification is
possible for the specific costs and benefits to be considered. Any
analysis, of course, should be viewed as an aid to rational
decision-making, and not as an end in itself. The intent of the
recommendation will be served by giving the public adequate advance
notice of the agency's proposed methodologies, either generically or by
means of special notice in a particular proceeding.
01 CFR 305.79-4 Recommendation
1. Agencies, as general policy though not necessarily by binding
rule, should adopt the practice of addressing, in their public notices
of particular proceedings in which cost-benefit or similar analyses are
to be used, the following points:
a. Any statutory or other legal requirements pertaining to or
affecting the agency's conduct of cost-benefit or similar analyses in
the proceeding.
b. The particular analytic technique to be followed by the agency
(e.g., cost-benefit analysis, cost-effectiveness analysis, qualitative
or non-numerative balancing), with a description of the method,
including an identification of any analytic models preliminarily
determined to be used.
c. Any factual assumptions or preliminary findings of the agency to
be utilized in the analyses.
d. The agency's techniques for assessing and revealing uncertainties
in its quantitative estimates, and making explicit the range of error
associated with particular quantitative estimates.
e. The agency's methods for evaluating intangible costs and benefits,
for discounting future costs and benefits, and for taking account of
distributional effects arising under the selected methodology, to the
extent such issues are involved in the analyses.
f. The stages of the proceeding at which the cost-benefit or similar
analyses will be conducted and the results considered.
g. The extent and nature of public participation in the design,
conduct, and evaluation of the cost-benefit or similar analyses.
h. The extent and manner in which the public is to be accorded access
to assumptions and information used in the analyses.
A statement of the weight given the cost-benefit or similar analyses,
and a description of any revisions of assumptions or preliminary
findings, should be included in the final agency determination and made
available to the public.
2. Where a pattern of recurring decisional problems exists for which
a particular analytic technique is appropriate, the agency should
consider adopting a generic regulation or policy statement describing
the use of that technique with respect to those problems. Agencies that
have varied statutory functions may suitably formulate separate
regulations or policy statements for different areas of statutory
responsibility. Generic regulations or policy statements so adopted may
permit the use of different techniques on an ad hoc basis where the
agency determines that to be necessary. Any such regulations or policy
statements should address the points listed in paragraph 1.
(44 FR 38826, July 3, 1979; 44 FR 47755, Aug. 14, 1979)
305.79-5 Hybrid Rulemaking Procedures of the Federal Trade
Commission -- Administration of the Program to Reimburse Participants'
Expenses (Recommendation No. 79-5).
01 CFR 305.79-6 Elimination of the Presumption of Validity of Agency
Rules and Regulations in Judicial Review, as Exemplified by the Bumpers
Amendment (Recommendation No. 79-6).
Note: Legislation opposed by the Conference in this recommendation
was not enacted by the Congress.
(45 FR 2308, Jan. 11, 1980, as amended at 54 FR 6861, Feb. 15, 1989)
01 CFR 305.79-7 Appropriate Restrictions on Participation by a Former
Agency Official in Matters Involving the Agency (Recommendation No.
79-7).
Restrictions on post-employment activities of former Government
employees may be necessary in order to protect the Government's interest
in confidential information made available to its employees, to guard
against the appearance of conflict of interest on the part of its
employees, and to minimize the possibility that a departed employee
might be able to exert undue influence on the decisions of his former
colleagues. However, such restrictions impose burdens on departing
employees and, to the extent they make public employment less
attractive, they burden the Government itself. Consequently, such
restrictions should not be drawn more broadly than necessary to deal
with the dangers realistically presented.
01 CFR 305.79-7 Recommendation
1. The problem of post-employment activities of former Federal
employees is too complicated, and the distinctions between permissable
and impermissible conduct too fine, for fair and effective enforcement
by criminal sanctions in most cases. The primary enforcement tool for
18 U.S.C. 207 should be the administrative remedies provided by
subsection 207(j), with criminal penalties reserved for clearcut and
egregious violations.
2. Section 207 of title 18 of the United States Code should be
amended to limit the restrictions on post-employment activities to the
following:
(a) The present permanent bar (18 U.S.C. 207(a)) on representation of
a private party in any ''particular matter involving a specific party or
parties'' in which the employee participated ''personally and
substantially'' on behalf of the Government should be retained.
However, there should be no restriction on representation, except as
provided in paragraph 2(b), with respect to other matters such as those
which were pending under the employee's official responsibility but as
to which he had no personal and substantial participation.
(b) The present one-year ''cooling off period'' (18 U.S.C. 207(c) and
(d)) on personal advocacy by former high-level personnel before their
former agency is a reasonable compromise and should be retained. The
one-year ban should reach only personal attempts to influence the
agency, not ''aiding or advising'' private colleagues or clients, or
obtaining information from the agency.
(c) Agencies should be authorized to impose, with the concurrence of
the Office of Government Ethics, additional restrictions based on their
particular needs, but the proposed amended section 207 should preempt
the rules of professional organizations or courts imposing additional
post-employment restrictions.
3. Regardless of what action Congress takes on the above proposals,
the disqualification of a former employee to act in a matter ordinarily
should not extend to his firm or organization. Instead, the former
employee should be barred from both personal participation in the matter
and receiving compensation for anyone else's work done on it. An
affidavit that the former employee is thus ''screened'' should be
submitted by a partner in the firm, not as a basis for government
approval, but to assure that the firm has in fact recognized the issue
and taken steps to deal with it. A court should retain its authority to
decide that the circumstances in a particular case require a broader
disqualification. In considering whether to do so, it should give
special weight to the agency's view as to whether the ''screening''
arrangement affords adequate protection to its interests.
(45 FR 2309, Jan. 11, 1980)
305.80-1 Trade Regulation Rulemaking Under the Magnuson-Moss
Warranty-Federal Trade Commission Improvement Act (Recommendation No.
80-1).
305.80-2 Enforcement of Petroleum Price Regulations (Recommendation
No. 80-2).
01 CFR 305.80-3 Interpretation and Implementation of the Federal
Advisory Committee Act (Recommendation No. 80-3).
The Federal Advisory Committee Act was enacted in 1972 in response to
a wide range of criticisms concerning the activities and influence of
advisory committees operating within and alongside government agencies.
The need for the large number of committees in existence was questioned,
and there were complaints over lack of adequate public information
concerning their purposes, their membership, the course of their
deliberations, and the extent of their influence. In addition, fears
were expressed that committees were often inadequately balanced to
reflect the spectrum of interests affected by their recommendations.
Finally, the Government seemed frequently to fail to implement, or even
to respond to, important recommendations offered by prestigious
committees after protracted and expensive research, hearings and study.
It cannot be expected that FACA in operation would have wholly
silenced the criticisms which led to its enactment. Yet, the
Conference's study does indicate certain positive results from FACA,
including more careful evaluation by Government of the need for
establishing or continuing advisory committees, more attention paid to
their makeup and responsibilities, and more openness in their
deliberations. We are not prepared to recommend at this time any major
revision of the statute, either to embrace more activities by committees
and similar groups, or to reduce the coverage and requirements of the
Act. However, there are areas where clarification and perhaps some
narrowing of coverage would ease problems of administration and remove
artificial barriers to communication between the agencies and the
interested public. In addition, a more vigorously coordinated
implementation of FACA by the Executive Branch would provide more
guidance to the agencies and the public and a more consistent
application of FACA within Government and in the courts.
01 CFR 305.80-3 Recommendation
1. The Federal Advisory Committee Act directs the Office of
Management and Budget to ''prescribe administrative guidelines and
management controls applicable to advisory committees.'' This authority
has since been transferred to the General Services Administration by
Reorganization Plan No. 1 of 1977, and Executive Order 12024. Neither
OMB nor GSA has made adequate use of this statutory authority to assist
the agencies in resolving difficult questions involving the coverage of
the Act, particularly the applicability of the Act to ad hoc and
informally established advisory groups. As a result, courts have been
faced with the need to resolve such issues without the assistance of
authoritative administrative guidelines. Accordingly, GSA, in
consultation with OMB and the Department of Justice, should undertake a
revision of the guidelines at present contained in OMB Circular A-63, so
as to provide greater assistance to the agencies, and, in particular, to
deal with the problems of classification of committees experienced under
the Act (see paragraph 2, below). The proposed guidelines should be
made available to agencies and the general public for comment before
they are finally issued, and upon issuance the guidelines should be
widely published. Where a legal dispute concerning the applicability of
the Act to particular advisory bodies cannot be resolved between the
agency and GSA, the dispute may be submitted to the Department of
Justice for resolution pursuant to part 1-4 of Executive Order 12146.
2. The most serious problems regarding the coverage of FACA have
involved the applicability of the Act (a) to groups convened by
agencies, on an ad hoc basis, without formal organization or structure
or continuing existence, to obtain views on particular matters of
immediate concern to the agency, and (b) to privately established groups
whose advice is ''utilized'' by an agency.
(a) Uncertainty as to the applicability of FACA to one-time or
occasional meetings between ad hoc groups and Government officials has
tended to discourage useful contacts with the private sector. It is
impractical to require such meetings to conform with the Act's
requirements regarding chartering, advance notice, and structure of the
committee. The Administrative Conference believes that the Act is not
applicable to ad hoc, unstructured, non-continuing groups and that GSA's
guidelines should make this clear. Coverage of such groups would not
further the purposes of the Act.
(b) The Conference believes that the definition of ''advisory
committee'' is limited to committees either established by Government
action or affirmatively supported and ''utilized'' by the Government
through institutional arrangements which amount to the adoption of the
group as a preferred source of advice. GSA's guidelines should make
this clear.
(c) Agencies should be sensitive to the desirability of making
available to the public advice or information obtained from private or
ad hoc groups not covered by FACA when the agncy is considering action
based on such advice or information.
3. Advisory committees frequently are useful in furnishing expert
technical and scholarly advice to the Government, often at little or
modest cost, and in providing a valuable channel of communication
between the Government and the private sector. FACA has been successful
in bringing about the elimination of many unnecessary advisory
committees. It continues to serve a constructive purpose in requiring
agencies and GSA periodically to evaluate the usefulness of each
advisory committee, but such a review should be objective and should not
be premised on any assumption that fewer advisory committees is a
desirable goal in and of itself.
Editorial Note: A separate statement was filed concerning this
recommendation.
(45 FR 46775, July 11, 1980)
01 CFR 305.80-4 Decisional Officials' Participation in Rulemaking
Proceedings (Recommendation No. 80-4).
Several recent lawsuits have challenged the propriety of an
official's participation in rulemaking proceedings. In those cases,
efforts were made to force the ''disqualification'' of persons whose
judgment might shape an agency's regulations, much as disqualification
might have been sought in an adjudicatory proceeding allegedly tainted
by the adjudicator's bias.
The concepts of bias (real or supposed) pertinent to the fairness of
a judicial trial or an administrative adjudicatory hearing have limited
applicability to rulemaking proceedings. The political, legislative,
and institutional aspects of the rulemaking function and the frequency
with which persons selected for policy-making responsibilities are
selected precisely because they have previously declared their beliefs
make direct application of a judicial test for disqualification
inappropriate. Moreover, the determinants of a ''fair hearing'' that
are implicit in the due process clause are inapplicable in proceedings
of an essentially legislative nature, whose procedures are controlled by
statutory rather than consitutional provisions.
Nevertheless, the acceptability of regulations and, indeed, the
repute of the administrative process may be seriously impaired if the
judgment of agency officials who can determine the content of rules is
considered to have been tainted by a conflict of interest, by an
inflexible prejudgment of pertinent factual propositions, or by
indecorous manifestations of hostility. Each administrative agency that
possesses power to promulgate regulations should adopt procedures and
standards that define whether an official should abstain (or, if need
be, be barred by the agency) from participating in a particular
rulemaking proceeding.
The recommendation that follows proposes minimum standards of
propriety. More exacting standards may be formulated by an agency for
the conduct of its affairs or may be self-imposed by an official who on
his own motion chooses not to participate in a particular proceeding.
The basic proposition underlying the recommendation is that unimpaired
capacity to exercise a fully informed judgment, as well as freedom from
personal, private interest in the outcome of particular matters, is
implicitly demanded of those to whom Congress has granted power to
formulate rules for the future.
The standards sketched here are consonant with those embodied in
statutes that govern government employees' behavior, in statutory
procedures that have generally been provided for rulemakings, and in the
six precepts of ethical employee behavior formulated by the Office of
Personnel Management. 1
The following recommendation is directed toward agencies that conduct
rulemaking proceedings under the informal procedures of the
Administrative Procedure Act, 5 U.S.C. 553, or particular statutes
defining rulemaking procedures other than formal, on-the-record
rulemaking. The recommendation relates solely to agency personnel with
decisional responsibilties in the rulemaking process. Definition will
perforce vary from agency to agency because of differences in internal
organization and allocation of responsibility. No suggestion is made
here that every public employee who, at one stage or another, may
contribute in one manner or another to rulemaking proceedings is to be
subjected to interminable tests of probity and objectivity before the
ultimately responsible ''decisional personnel'' can act.
15 CFR 735.201a:
''An employee shall avoid any action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Government efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a Government decision outside official channels; or
(f) Affecting adversely the confidence of the public in the integrity
of the Government.''
01 CFR 305.80-4 Recommendation
A. Procedures. 1. Each rulemaking agency should promulgate procedures
by means of which persons who desire to participate in a rulemaking
proceeding (or who may be affected by its outcome) can challenge the
suitability of participation by particular decisional personnel in that
proceeding. The procedures should identify the factors that bear on
suitability and should indicate the appropriate time, place, and means
of making challenges, along with an indication of opportunity for
intra-agency review if one be available.
2. The procedures should also make plain that a decisional official,
whether or not challenged, may voluntarily abstain from participating in
a particular proceeding.
B. Conflict of Interests. 1. A decisional official whose financial
interests or those of whose immediate family may be distinctively
favored by choices to be made in a particular rulemaking proceeding
should voluntarily abstain (or be required by the agency to abstain)
from participation in that proceeding, subject to publicly stated and
applied agency exception for de minimis holdings.
2. New agency officials should be subjected to ''cooling off''
periods of variable duration, during which their participation in a
rulemaking proceeding would presumably be inappropriate if
(i) The proceeding specifically affects the financial interests of an
immediately prior employer or client; or
(ii) The official's immediately prior employer or client is a
participant in the proceeding; or
(iii) The official has participated in the proceeding before becoming
a public employee.
An agency's application of a ''cooling off'' requirement should not,
however, reflect absolutes. It should take into account the following
factors, singly or in combination:
(a) The extent of the official's participation in a prior private
capacity in the pending rulemaking proceeding;
(b) The elapse of time between the prior involvement and the
official's present activity as a public employee;
(c) The nature and magnitude of the rulemaking's possible impact on
the interests of the prior employer;
(d) The generality or specificity of the rulemaking's scope;
(e) The extent of the prior employer's participation;
(f) Applicable professional standards;
(g) Senatorial consideration, during the confirmation process, of the
official's prior relationships and activities.
3. An official's non-financial interests, associations, or activities
(whether or not related to past employment) may in some instances
suggest the desirability of recusal or, if need be, a direction to the
official to abstain from participating in a particular proceeding. If
the official's appointment has been confirmed by the Senate with
knowledge of the appointee's past interests and activities, a required
cooling off period would ordinarily be inappropriate. As to officials
of lesser prominence, however, agencies may suitably utilize in respect
of nonfinancial interests the procedures sketched above, related to
financial conflict of interests or to cooling off periods. The question
of precluding participation should arise only when an identifiable
interest is significant in relation to the proceeding and is likely to
be substantially affected by its outcome. Mere membership in an
association would not ordinarily be a ground for disqualification or
recusal.
4. Finally, agency conflict of interests rules should make
emphatically plain that they are in aid of the agency's self-management;
that they are measures in furtherance of its own quality control rather
than in amplification of judicial control; and that they are agency
declarations for guidance of its own staff concerning decorum. An
agency that is insensitive or lax in fulfilling its declared
expectations will no doubt be of concern to the Congress or to the
Executive, but an agency's heightened attentiveness to the qualities of
decisional personnel should plainly not expand the occasions for or the
scope of review of rulemaking proceedings.
C. Prejudgment of Fact. 1. Disqualification for prejudgment in
rulemaking should be limited to prejudgments of particular
''adjudicative'' or ''specific'' facts, where it may be inferred from
the particular statutory framework, agency procedural choices, or other
special circumstances that the agency's determination of those facts is
to be based on the evidentiary record developed in the proceeding.
Cause for disqualification can appropriately be decided by the agency
only after it is established in the proceeding that such facts will be
materially at issue in the proceeding. Such disqualification is
inappropriate for factual judgments that are the consequence of earlier
stages of the proceeding, or for prejudgments of policy.
2. To avoid undue interference with the legislative, policymaking
aspect of the rulemaking process and other agency functions,
disqualification for prejudgment of fact should be considered by the
agency only after it has determined that critical ''adjudicative'' or
''specific'' facts require resolution on the evidentiary record
developed in the proceeding, and should require at least a preponderant
showing that an agency member or decisional employee has a closed mind
regarding those facts.
D. Decorum and Expression of Views. A rulemaking proceeding should
be conducted with decorum and respect for the interests of all
concerned. Agency officials should therefore conscientiously avoid
intemperate expression or other behavior suggestive of an irrevocable
commitment to a predetermined outcome of the proceeding. This does not
mean, however, that agency officials may not express factual judgments
based on previous experience or on information received during a
proceeding; nor does it suggest that officials may not act upon or
voice opinions concerning underlying issues of policy. Expressing those
opinions in interchanges with committees of the Congress, other
administrative bodies, the public, and regulated groups is a desirable
normality of administration, rather than an abnormality to be shunned,
and is not a basis on which exclusion from a proceeding may
appropriately be suggested.
(45 FR 46776, July 11, 1980)
01 CFR 305.80-5 Eliminating or Simplifying the ''Race to the
Courthouse'' in Appeals from Agency Action (Recommendation No. 80-5).
Note: This recommendation has been implemented by Pub. L. 100-236.
(45 FR 84954, Dec. 24, 1980, as amended at 54 FR 6861, Feb. 15, 1989)
01 CFR 305.80-6 Intragovernmental Communications in Informal Rulemaking
Proceedings (Recommendation No. 80-6).
(a) The growing complexity and scope of government regulation
resulting from informal rulemaking proceedings have increased the
importance of communication and coordination among agencies. Because
the President, as the nation's Chief Executive, may be deemed
accountable for what agencies do, efforts to achieve policy coordination
through Presidential channels have become increasingly significant. In
recent years the President has attempted to do this through a variety of
analytical and procedural mechanisms, such as the promulgation of
Executive Order 12044 and establishment of the Regulatory Analysis
Review Group and the Regulatory Council. The exercise of Presidential
direction has not been limited to the establishment of general
mechanisms, however. The President, his advisers, and units of the
Executive Office have also on occasion intervened directly in the
formation of policy during particular rulemaking proceedings. This
intervention has raised questions by private participants about the
manner in which executive influence should be exercised.
(b) This recommendation addresses the appropriate standards for
communication to Executive departments and agencies from the President,
advisers to the President, units of the Executive Office, and other
Executive branch and independent agencies when the recipient agency is
making policy decisions through the process of informal rulemaking. It
pertains to rulemaking of general applicability, not to proceedings
(whether rulemaking or adjudication) that involve the distribution,
modification or withdrawal of valuable privileges to identifiable
private interests. To some degree it is a corollary to ACUS
Recommendation 77-3 which is concerned with restrictions upon private
participants' oral and written communications in informal rulemaking.
The recommendation is based upon the need to accommodate two competing
elements of a good rulemaking process. The first is the desirability of
being able to identify a coherent body of factual information upon which
the rulemaking agency's decision is based, and to make this information
available to all -- other participants in the process, the staff of the
agency itself, and reviewing courts. The second is the desirability of
affording government officials opportunity to engage in uninhibited
internal debate over the policy implications of this body of
information, subject only to the requirement that the ultimate
conclusion be rational and adequately explained. Both principles are
recognized in this recommendation. Units of the government other than
the one conducting the rulemaking may have perspectives or expertise not
readily available to the rulemaking agency that would enhance the
quality of internal debate on the implications of the information in the
public file, and their participation should be encouraged. At the same
time, rulemaking agencies should not permit, and other units of the
government should not request, any opportunity to introduce into the
proceeding material factual information (as distinct from indications of
governmental policy) not made available to other participants.
(c) The Conference is also concerned with avoiding any possibility
that intragovernmental communications from outside the rulemaking agency
might serve as undisclosed or inadvertent conduits for new material
factual information, and with providing adequate opportunities for other
participants to respond to material factual information that is
introduced.
(d) The recommendation addresses the degree to which agencies should
be free to receive certain kinds of intragovernmental communications in
informal rulemaking without having a duty to place them in the public
file of the proceeding. It is not intended to suggest any limitation on
the discretion of any rulemaking agency to disclose such communications
to the public.
01 CFR 305.80-6 Recommendation
1. Any Executive department or agency engaged in informal rulemaking
in accordance with the procedural requirements of section 553 of the
Administrative Procedure Act should be free to receive written or oral
policy advice and recommendations at any time from the President,
advisers to the President, the Executive Office of the President, and
other administrative bodies, without having a duty to place these
intragovernmental communications in the public file of the rulemaking
proceeding except to the extent called for in paragraph 2.
2. When the rulemaking agency receives communications from the
President, advisers to the President, the Executive Office of the
President, or other administrative bodies which contain material factual
information (as distinct from indications of governmental policy)
pertaining to or affecting a proposed rule, the agency should promptly
place copies of the documents, or summaries of any oral communications,
in the public file of the rulemaking proceeding. All communications
from these sources containing or reflecting comments by persons outside
the government should be so identified and placed in the public file,
regardless of their content. A rulemaking agency should consider the
importance of giving public participants adequate opportunity to respond
if the material presents new and important issues or creates serious
conflicts of data.
3. The Administrative Conference takes no position in the present
recommendation concerning rulemaking by other than Executive departments
and agencies.
Editorial Note: Several members joined in a separate statement
concerning this recommendation. The text appears in the Federal
Register.
(45 FR 86407, Dec. 31, 1980)
01 CFR 305.81-1 Procedures for Assessing and Collecting Freedom of
Information Act fees (Recommendation No. 81-1).
Note: This recommendation has been largely implemented by Pub. L.
99-570.
(46 FR 62805, Dec. 29, 1981, as amended at 54 FR 6861, Feb. 15, 1989)
01 CFR 305.81-2 Current Versions of the Bumpers Amendment
(Recommendation No. 81-2).
Note: Legislation opposed by the Conference in this recommendation
was not enacted by the Congress.
(46 FR 62806, Dec. 29, 1981, as amended at 54 FR 6861, Feb. 15, 1989)
01 CFR 305.82-1 Exemption (b)(4) of the Freedom of Information Act
(Recommendation No. 82-1).
Note: The President in 1987 issued Executive Order 12600, which
requires agencies to follow procedures similar to those recommended by
the Administrative Conference.
(47 FR 30702, July 15, 1982, as amended at 54 FR 6862, Feb. 15, 1989)
01 CFR 305.82-2 Resolving Disputes Under Federal Grant Programs
(Recommendation No. 82-2).
Federal grants to governments, public service institutions and other
non-profit organizations have been conspicuous instruments of Federal
policy since the 1930s. During the past two decades the growth in the
number of Federal grant programs, and the level of resources distributed
through grants, has evidenced the expanded influence of the Federal
government on the activities of these entities.
Ensuring proper conduct of Federal assistance programs has assumed
increasing importance as these extraordinarily varied programs have
proliferated. Federal domestic grant spending, which now exceeds $100
billion annually, promotes major social goals. Grants, and the
activities they assist, often are crucial to beneficiaries whom Congress
intends to aid and to recipients who carry out program goals. For
instance, over one-quarter of all expenditures by state and local
governments now come from Federal grants, and thousands of smaller
institutions depend on these funds for their very existence.
Each of these grants represents an understanding on the part of the
Federal government and the grantee that is in the nature of a
contractual commitment. The number and intensity of disputes over
grants have risen in recent years, following both the increased reliance
on Federal grants by other institutions and a growing Federal budget
stringency that has decreased the generosity of Federal funding and
increased the rigor of audit review. These disputes run the gamut from
those that involve nearly pure questions of Federal policy and agency
discretion to those that affect substantial grantee expectations or
involve particularized adverse determinations about individuals.
Disputes may arise initially over the making or withholding of a
grant, the amount of funds committed, or the terms and conditions
imposed. Once the grantee has undertaken the project, controversies may
occur over what actions the grantee has been funded or authorized to
take, the grantee's relationships with program beneficiaries,
subgrantees, or subcontractors, and other incidents of ongoing project
administration, including grantee compliance with the terms and
conditions of the grant. Disputes may arise in the form of audit
disallowances. Finally, an agency may choose to terminate or debar a
grantee or refuse to provide continued funding based on the agency's
belief about the adequacy of a grantee's performance of previous
projects.
In prior recommendations, the Administrative Conference has called on
all Federal grantmaking agencies to adopt informal procedures for
hearing and resolving complaints by the public that a recipient's
administration of a grant fails to meet Federal standards
(Recommendations 71-9 and 74-2). While some agencies have carried out
these recommendations, many still do not afford grantees or other
persons affected by the operation of Federal domestic grant programs any
channels for impartial consideration of their complaints. Congress has
provided few directives in this area, except as to a few agencies like
the Departments of Education and Labor, and actual agency practices in
handling grant disputes have varied considerably.
This recommendation goes beyond the Conference's prior statements to
focus on the rights that agencies should provide to grantees and
applicants for grant funds. Few agencies afforded grant recipients any
substantial appeal rights until the mid-1970's; some still fail to do
so. In recent years, several agencies have begun to create processes to
resolve some types of disputes with grantees and certain types of grant
applicants. Their experience indicates that these appeal procedures,
while sometimes flawed, have been useful for protecting grantees' rights
and for helping agencies to avert needless and troublesome litigation,
improve oversight of significant administrative problems, ensure that
policies are applied fairly and consistently, and make decisions on a
rational, justifiable basis.
Given the importance of these programs, the nature of the interests
involved, public policy factors, and considerations of fairness
enunciated in recent constitutional decisions, the Administrative
Conference believes that all grantmaking agencies should maintain
procedures to hear appeals regarding certain kinds of agency actions.
For example, grantees generally have a special interest in debarment,
termination, suspension, or certain kinds of renewal or entitlement
situations. Also, disputes regarding some expenditure disallowances
arising from audits, or other cost and cost rate determinations, may be
crucial to a grantee, requiring payback of large sums. Because of the
potential significance of these types of action, and their relative
infrequency, agencies should establish appeals procedures for them. On
the other hand, thousands of applications for competitive discretionary
grants are denied each year, and the imposition of any broad appeal
hearing requirement for this type of action could be quite burdensome to
some agencies.
While the variety and complexity of Federal domestic grant programs
(and grant disputes) ultimately renders uniform procedural prescriptions
inappropriate, this recommendation sets forth some general
considerations that agencies should find useful to guide them in
assessing the adequacy of their present methods of resolving grant
appeals. The Conference believes that an agency should have
considerable latitude to tailor procedures to the characteristics of its
programs and grantees, and in the great bulk of appeals agencies need
not match the protections required in adjudications governed by the
Administrative Procedure Act, 5 U.S.C. 554-557. The recommendation
begins with, and centers on, the notion that informal action --
including opportunities for conversations with relevent program
officials and their superiors, mediation or ombudsman services, and
similar devices -- should form the core of the resolution process.
Still, agencies should be aware that at least some disputes may arise,
especially in post-award cases involving contested issues with
substantial funds at stake, in which some kind of more formal agency
review should be made available.
In making this recommendation, the Conference is aware that some
agencies maintain appeal procedures which are more elaborate than those
described below but provide equal or greater safeguards and protective
measures. This recommendation is not intended to cast any doubt on the
propriety of such procedures, or to assess the need therefor in light of
specific programs or agency goals and concerns.
01 CFR 305.82-2 Recommendation
01 CFR 305.82-2 i. scope and intent of the recommendations
The recommendations in part II concern procedures for disputes
involving domestic ''grantees'' and ''vested applicants.'' A ''grantee''
may be a non-profit or community service organization, a unit of state
or local government, a school, corporation or an individual who has
executed a grant agreement or cooperative agreement with a Federal
agency. A ''vested applicant'' is one who is entitled by statute to
receive funds, provided the applicant meets certain minimal
requirements; or one who applies for a noncompetitive continuation
grant, and has been designated in some manner as the service deliverer
for a designated area or is operating within a designated multi-year
project period. part III deals with agency-level processes for handling
complaints by disappointed applicants for discretionary grant funds.
The procedures recommended herein are not intended to displace existing
hearing mechanisms already required by law in some programs. They apply
only to grant programs carried on primarily within the United States.
01 CFR 305.82-2 ii. complaints by grantees and vested applicants
01 CFR 305.82-2 A. Informal Review and Dispute Resolution Procedures
1. Each Federal grantmaking agency should provide informal procedures
under which the agency may attempt to review and resolve complaints by
grantees and vested applicants without resort to formal, adjudicatory
procedures. The informal procedure could take several forms, including,
for example, advance notice of adverse action and the reasons for the
action, opportunity to meet with the Federal officials involved in the
dispute, review by another or higher-level agency official, or use of an
ombudsman or mediator. Attempts to resolve disputes under these
informal procedures should be pursued expeditiously by the agency within
a definite time frame. Notwithstanding these time limits, a
complainant's invocation of more formal appeal procedures should not
prevent further efforts to settle, mediate, or otherwise resolve the
dispute informally.
2. The existence of informal review procedures should be made known
to affected grantees and vested applicants in the manner described in
paragraphs 3 and 12, below. Agencies should encourage their program and
decisional officials to resolve grievances informally, and provide
training to improve their abilities to do so. In undertaking such
training, agencies should work with those agencies that already have
begun to make use of mediation and other conciliatory approaches, such
as the Departmental Grant Appeals Board in the Department of Health and
Human Services, and existing groups with expertise in these methods of
dispute resolution.
01 CFR 305.82-2 B. Notice of Agency Action
3. Upon issuance of an agency decision which (if not appealed)
represents final agency action, each grantmaking agency should provide
prompt notice of its action to the affected grantee or vested applicant.
If the action is adverse to a grantee or vested applicant, the agency's
notice, at a minimum, should provide a brief statement of the legal or
factual basis for the action; state the nature of any sanctions to be
imposed; and describe any available appeal procedures, including
applicable deadlines and the name and address of the agency official to
be contacted in the initial stages of an appeal.
01 CFR 305.82-2 C. Administrative Appeal Procedures
4. Each Federal grantmaking agency should provide the additional
opportunity for some type of administrative appeal in at least certain
kinds of grant-related disputes. This appeal may be conducted orally or
in writing, depending on the nature of the dispute, and may be expedited
where appropriate. In determining whether an administrative appeal
should be afforded and the form of any such appeal for particular
classes of disputes, agencies should consider the probable impact of the
adverse action on the complainant, the importance of procedural
safeguards to accurate decisionmaking in each class of dispute, the
probable nature and complexity of the factual and legal issues, the
financial and administrative burden that would be imposed upon the
agency, the need for a perception of the government's fairness in
dealing with grantees and vested applicants, and the usefulness of
appeal procedures to give feedback on administrative problems.
5. In light of the factors described in paragraph 4, each Federal
grantmaking agency should provide the opportunity for some kind of
administrative appeal with regard to adverse actions involving:
a. The performance of an existing grant, including disputes involving
debarment, termination, suspension, voiding of a grant agreement, cost
disallowances, denials of cost authorizations, and cost rate
determinations;
b. The denial of funding to applicants for entitlement grants,
including disputes involving the applicant's eligibility, amount of
funding to be received, and application of award criteria or
pre-established review procedures; and
c. The denial of applications for noncompetitive continuation awards
where the denial is for failure to comply with the terms of a previous
award.
6. Where an opportunity for an administrative appeal is afforded, the
agency should take into account the factors set forth in paragraph 4 and
select from among the following forms of proceedings to provide the one
most appropriate to the particular case:
a. Decision based on written submissions only;
b. Decision based on oral presentations;
c. Decision on written submissions plus an informal conference or
oral presentation; or
d. Full evidentiary hearing.
Where a hearing or conference is useful to resolve certain issues,
the agency may limit the hearing to those issues and treat remaining
questions less formally. In addition, the agency should provide some
form of discretionary expedited appeal process for disputes. In such
proceedings, the agency may, for example, shorten time deadlines,
curtail record requirements, or simplify procedures for oral or written
presentations.
7. At a minimum, these administrative appeal procedures should afford
grantees and vested applicants the following:
a. Written notice of the adverse decision (See paragraphs 3 and 12);
b. An impartial decisionmaker (for instance, a grant appeals board
member, a high level agency official, a person from outside the agency,
an administrative law judge, or certain other agency personnel from
outside the program office) with authority to conduct the proceedings in
a timely and orderly fashion;
c. Opportunity for the agency, complainant, and any other parties to
the appeal promptly to obtain information from each other, and to
present and rebut significant evidence and arguments;
d. Development of a record sufficient to reflect accurately all
significant factual submissions to the decisionmaker and provide a basis
for a fair decision; and
e. Prompt issuance of a written decision stating briefly the
underlying factual and legal basis.
8. Each Federal grantmaking agency should determine in advance, and
specify by rule or order, the scope of the authority delegated to the
decisionmaker in administrative appeals. For example, agencies should
specify in advance whether the decisionmaker has the authority to review
the validity of agency regulations or the consistency of agency actions
with governing statutes.
9. Agencies should accord finality to the appeal decision, unless
further review is conducted promptly pursuant to narrowly drawn
exceptions and in accordance with preestablished procedures, criteria,
and standards of review. If the decisionmaker is delegated, or asserts,
authority to review the validity of agency regulations, the agency head
should retain an option for prompt final review of the decision in
accordance with applicable procedures.
10. Once these administrative appeal procedures are invoked, the
decisionmaker should discourage all ex parte communications on the
appeal unless the parties consent to such communications. Any ex parte
communications that do occur should be disclosed promptly, and placed in
the appeal record.
11. Agencies should encourage prompt decision of appeals by creating
time limits or other guidelines for processing grant disputes, and
should pay particular attention to resolving appeals over decisions
regarding renewal and continuation grants in a timely manner. These
timetables might be fixed generically or in accordance with the
complexity of particular cases. Decisionmakers' compliance should be
monitored by the agency pursuant to a regular caseload management
system.
01 CFR 305.82-2 D. Public Notice
12. Grantmaking agencies should give advance notice and afford an
opportunity for public comment in developing informal review and
administrative appeal procedures. Agencies should ensure that available
procedures are made known to grantees and vested applicants. Notice of
such procedures should be published in the Federal Register, codified in
the Code of Federal Regulations, and included in grant agreements and
other appropriate documents, in addition to the individual notice
described in paragraph 3.
13. Agencies should collect in a central location, and index, those
written decisions made in administrative appeals. These decisions
should be made available to the public except to the extent that their
disclosure is prohibited by law. Whenever a grantee or vested applicant
cites a previous written decision as a precedent for the agency to
follow in its case, the agency should either do so, distinguish the two
cases, or explain its reasons for not following the prior decision.
01 CFR 305.82-2 iii. complaints by discretionary grant applicants
01 CFR 305.82-2 A. Informal Review Procedures
The Conference previously has called on agencies to develop criteria
for judging discretionary grant applications and to adopt at least
informal complaint mechanisms to ensure compliance with these criteria
and other federal standards. (See Recommendations 71-9 and 74-2.) The
Conference reiterates its belief that these procedures can benefit
agency performance.
01 CFR 305.82-2 B. Public Notice
Each Federal grantmaking agency should ensure that available informal
review procedures and administrative appeal procedures are made known to
grant applicants. Notice of such procedures should be published in the
Federal Register, codified in the Code of Federal Regulations, and
included in application materials and other appropriate documents. (See
also Recommendations 71-4 and 71-9.)
01 CFR 305.82-2 iv. implementation of recommendation
Each Federal grantmaking agency should, within one year of the
adoption of this recommendation, report in writing to the Administrative
Conference the steps the agency intends to take, consistent with the
above guidelines, to improve its dispute resolution process.
(47 FR 30704, July 15, 1982)
01 CFR 305.82-3 Federal Venue Provisions Applicable to Suits Against
the Government (Recommendation No. 82-3).
Note: Legislation opposed by the Conference in this recommendation
was not enacted by the Congress.
(47 FR 30706, July 15, 1982, as amended at 54 FR 6862, Feb. 15, 1989)
01 CFR 305.82-4 Procedures for Negotiating Proposed Regulations
(Recommendation No. 82-4).
The complexity of government regulation has increased greatly
compared to that which existed when the Administrative Procedure Act was
enacted, and this complexity has been accompanied by a formalization of
the rulemaking process beyond the brief, expeditious notice and comment
procedures envisioned by section 553 of the APA. Procedures in addition
to notice and comment may, in some instances, provide important
safeguards against arbitrary or capricious decisions by agencies and
help ensure that agencies develop sound factual bases for the exercise
of the discretion entrusted them by Congress, but the increased
formalization of the rulemaking process has also had adverse
consequences. The participants, including the agency, tend to develop
adversarial relationships with each other causing them to take extreme
positions, to withhold information from one another, and to attack the
legitimacy of opposing positions. Because of the adversarial
relationships, participants often do not focus on creative solutions to
problems, ranking of the issues involved in a rulemaking, or the
important details involved in a rule. Extensive factual records are
often developed beyond what is necessary. Long periods of delay result,
and participation in rulemaking proceedings can become needlessly
expensive. Moreover, many participants perceive their roles in the
rulemaking proceeding more as positioning themselves for the subsequent
judicial review than as contributing to a solution on the merits at the
administrative level. Finally, many participants remain dissatisfied
with the policy judgments made at the outcome of rulemaking proceedings.
Participants in rulemaking rarely meet as a group with each other and
with the agency to communicate their respective views so that each can
react directly to the concerns and positions of the others in an effort
to resolve conflicts. Experience indicates that if the parties in
interest were to work together to negotiate the text of a proposed rule,
they might be able in some circumstances to identify the major issues,
gauge their importance to the respective parties, identify the
information and data necessary to resolve the issues, and develop a rule
that is acceptable to the respective interests, all within the contours
of the substantive statute. For example, highly technical standards are
negotiated that have extensive health, safety, and economic effects;
lawsuits challenging rules are regularly settled by agreement on a
negotiated rule; public law litigation involves sensitive negotiation
over rule-like issues; and many environmental disputes and policies
have been successfully negotiated. These experiences can be drawn upon
in certain rulemaking contexts to provide procedures by which affected
interests and the agency might participate directly in the development
of the text of a proposed rule through negotiation and mediation.
The Federal Advisory Committee Act (FACA) has, however, dampened
administrative enthusiasm for attempts to build on experience with
successful negotiations. Without proposing a general revision of FACA,
the Administrative Conference urges that Congress amend the Act to
facilitate the use of the negotiating procedures contemplated in this
recommendation.
The suggested procedures provide a mechanism by which the benefits of
negotiation could be achieved while providing appropriate safeguards to
ensure that affected interests have the opportunity to participate, that
the resulting rule is within the discretion delegated by Congress, and
that it is not arbitrary or capricious. The premise of the
recommendation is that provision of opportunities and incentives to
resolve issues during rulemaking, through negotiations, will result in
an improved process and better rules. Such rules would likely be more
acceptable to affected interests because of their participation in the
negotiations. The purpose of this recommendation is to establish a
supplemental rulemaking procedure that can be used in appropriate
circumstances to permit the direct participation of affected interests
in the development of proposed rules. This procedure should be viewed
as experimental, and should be reviewed after it has been used a
reasonable number of times.
01 CFR 305.82-4 Recommendation
1. Agencies should consider using regulatory negotiation, as
described in this recommendation, as a means of drafting for agency
consideration the text of a proposed regulation. A proposal to
establish a regulatory negotiating group could be made either by the
agency (for example, in an advance notice of proposed rulemaking) or by
the suggestion of any interested person.
2. Congress should facilitate the regulatory negotiation process by
passing legislation explicitly authorizing agencies to conduct
rulemaking proceedings in the manner described in this recommendation.
This authority, to the extent that it enlarges existing agency
rulemaking authority, should be viewed as an experiment in improving
rulemaking procedures. Accordingly, the legislation should contain a
sunset provision. The legislation should provide substantial
flexibility for agencies to adapt negotiation techniques to the
circumstances of individual proceedings, as contemplated in this
recommendation, free of the restrictions of the Federal Advisory
Committee Act and any ex parte limitations. Legislation should provide
that information tendered to such groups, operating in the manner
proposed, should not be considered an agency record under the Freedom of
Information Act.
3. In legislation authorizing regulatory negotiation, Congress should
authorize agencies to designate a ''convenor'' to organize the
negotiations in a particular proceeding. The convenor should be an
individual, government agency, or private organization, neutral with
respect to the regulatory policy issues under consideration. If the
agency chooses an individual who is an employee of the agency itself,
that person should not be associated with either the rulemaking or
enforcement staff. The convenor would be responsible for (i) advising
the agency as to whether, in a given proceeding, regulatory negotiation
is feasible and is likely to be conducive to the fairer and more
efficient conduct of the agency's regulatory program, and (ii)
determining, in consultation with the agency, who should participate in
the negotiations.
4. An agency considering use of regulatory negotiation should select
and consult with a convenor at the earliest practicable time about the
feasibility of its use. The convenor should conduct a preliminary
inquiry to determine whether a regulatory negotiating group should be
empanelled to develop a proposed rule relating to the particular topic.
The convenor should consider the risks that negotiation procedures would
increase the likelihood of a consensus proposal that would limit output,
raise prices, restrict entry, or otherwise establish or support
unreasonable restraints on competition. Other factors bearing on this
decision include the following:
(a) The issues to be raised in the proceeding should be mature and
ripe for decision. Ideally, there should be some deadline for issuing
the rule, so that a decision on a rule is inevitable within a relatively
fixed time frame. The agency may also impose a deadline on the
negotiations.
(b) The resolution of issues should not be such as to require
participants in negotiations to compromise their fundamental tenets,
since it is unlikely that agreement will be reached in such
circumstances. Rather, issues involving such fundamental tenets should
already have been determined, or not be crucial to the resolution of the
issues involved in writing the proposed regulation.
(c) The interests significantly affected should be such that
individuals can be selected who will adequately represent those
interests. Since negotiations cannot generally be conducted with a
large number of participants, there should be a limited number of
interests that will be significantly affected by the rule and therefore
represented in the negotiations. A rule of thumb might be that
negotiations should ordinarily involve no more than 15 participants.
(d) There should be a number of diverse issues that the participants
can rank according to their own priorities and on which they might reach
agreement by attempting to optimize the return to all the participants.
(e) No single interest should be able to dominate the negotiations.
The agency's representative in the negotiations will not be deemed to
possess this power solely by virtue of the agency's ultimate power to
promulgate the final rule.
(f) The participants in the negotiations should be willing to
negotiate in good faith to draft a proposed rule.
(g) The agency should be willing to designate an appropriate staff
member to participate as the agency's representative, but the
representative should make clear to the other participants that he or
she cannot bind the agency.
5. If the convenor determines that regulatory negotiation would be
appropriate, it would recommend this procedure to the agency. If the
agency and the convenor agree that regulatory negotiation is
appropriate, the convenor should be responsible for determining
preliminarily the interests that will likely be substantially affected
by a proposed rule, the individuals that will represent those interests
in negotiations, the scope of issues to be addressed, and a schedule for
completing the work. It will be important for potential participants to
agree among themselves as to these matters, and their agreement can be
facilitated by either the convenor or a possible participant conducting
a preliminary inquiry among identified interests. Reasonable efforts
should be made to secure a balanced group in which no interest has more
than a third of the members and each representative is technically
qualified to address the issues presented, or has access to qualified
individuals.
6. The subject matter of the proposed regulation may be within the
jurisdiction of an existing committee of a non-governmental standards
writing organization that has procedures to ensure the fair
representation of the respective interests and a process for determining
whether the decision actually reflects a consensus among them. If such
a committee exists and appears to enjoy the support and confidence of
the affected interests, the convenor should consider recommending that
negotiations be conducted under that committee's auspices instead of
establishing an entirely new framework for negotiations. In such a
case, the existing committee could be regarded as a regulatory
negotiation group for purposes of this recommendation. (Alternatively,
the product of the committee could be used as the basis of a proposed
regulation pursuant to Administrative Conference Recommendation 78-4.
/3/ )
7. To ensure that the appropriate interests have been identified and
have had the opportunity to be represented in the negotiating group, the
agency should publish in the Federal Register a notice that it is
contemplating developing a rule by negotiation and indicate in the
notice the issues involved and the participants and interests already
identified. If an additional person or interest petitions for
membership or representation in the negotiating group, the convenor, in
consultation with the agency, should determine (i) whether that interest
would be substantially affected by the rule, (ii) if so, whether it
would be represented by an individual already in the negotiating group,
and (iii) whether, in any event, the petitioner should be added to the
negotiating group, or whether interests can be consolidated and still
provide adequate representation.
8. The agency should designate a senior official to represent it in
the negotiations and should identify that official in the Federal
Register notice.
9. It may be that, in particular proceedings, certain affected
interests will require reimbursement for direct expenses to be able to
participate at a level that will foster broadly-based, successful
negotiations. Unlike intervenors, the negotiating group will be
performing a function normally performed within the agency, and the
agency should consider reimbursing the direct expenses of such
participants. The agency should also provide financial or other support
for the convenor and the negotiating group. Congress should clarify the
authority of agencies to provide such financial resources.
10. The convenor and the agency might consider whether selection of a
mediator is likely to facilitate the negotiation process. Where
participants lack relevant negotiating experience, a mediator may be of
significant help in making them comfortable with the process and in
resolving impasses.
11. The goal of the negotiating group should be to arrive at a
consensus on a proposed rule. Consensus in this context means that each
interest represented in the negotiating group concurs in the result,
unless all members of the group agree at the outset on another
definition. Following consensus, the negotiating group should prepare a
report to the agency containing its proposed rule and a concise general
statement of its basis and purpose. The report should also describe the
factual material on which the group relied in preparing its proposed
regulation, for inclusion in the agency's record of the proceeding. The
participants may, of course, be unable to reach a consensus on a
proposed rule, and, in that event, they should identify in the report
both the areas in which they are agreed and the areas in which consensus
could not be achieved. This could serve to narrow the issues in
dispute, identify information necessary to resolve issues, rank
priorities, and identify potentially acceptable solutions.
12. The negotiating group should be authorized to close its meeting
to the public only when necessary to protect confidential data or when,
in the judgment of the participants, the likelihood of achieving
consensus would be significantly enhanced.
13. The agency should publish the negotiated text of the proposed
rule in its notice of proposed rulemaking. If the agency does not
publish the negotiated text as a proposed rule, it should explain its
reasons. The agency may wish to propose amendments or modifications to
the negotiated proposed rule, but it should do so in such a manner that
the public at large can identify the work of the agency and of the
negotiating group.
14. The negotiating group should be afforded an opportunity to review
any comments that are received in response to the notice of proposed
rulemaking so that the participants can determine whether their
recommendations should be modified. The final responsibility for
issuing the rule would remain with the agency.
(47 FR 30708, July 15, 1982)
/3/ Federal Agency Interaction with Private Standard-Setting
Organizations in Health and Safety Regulation, 1978 ACUS Recommendations
and Reports 13, 1 CFR 305.78-4.
01 CFR 305.82-5 Federal Regulation of Cancer-Causing Chemicals
(Recommendation No. 82-5).
The following recommendations broadly address the procedures by which
Federal agencies identify, evaluate, and regulate substances that pose a
potential risk of human cancer. For many years these regulatory
activities have been among the most controversial engaged in by federal
agencies. They implicate important health and economic values and
attract the interest of groups throughout society. Some of the issues
dealt with in these recommendations are not peculiar to the context of
carcinogen regulation. The statutory procedures agencies follow in
regulating human exposure to cancer hazards, for example, are applicable
to many other environmental and health hazards. While these
recommendations may thus have broader application or impact, they are
based on an evaluation of agency performance in this context alone.
01 CFR 305.82-5 i. priority setting
Estimates of the number of chemicals that may pose a risk of human
cancer describe a universe larger than government agencies can evaluate
or regulate. Agency resources for scientific review and regulatory
proceedings are shrinking, and the capacity of manufacturers and users
of chemicals to implement costly controls is likewise limited. In these
circumstances, attention should be concentrated on those chemicals that
pose the greatest risks and can be controlled most economically. As
agencies have increasingly recognized, accomplishing this objective
requires establishment of priorities.
Priority setting should be part of any program directed at
determining the health effects of chemicals, as well as of programs
designed to establish exposure limits. Each regulatory agency should
set its own priorities, but there is also value in interagency selection
of candidates for regulation and, particularly, for further testing.
Although candidates for evaluation and regulation should be carefully
selected, any ranking based on abstract criteria, however rational, will
be vulnerable to new information about human exposure or health effects
and to public concerns. Agencies should explain departures from
established priorities, but should retain flexibility to respond to new
problems.
Criteria for selecting candidates for regulation should include the
extent of the hazard posed by a chemical -- a function of its potency,
the conditions of exposure, and the number of people exposed. The
extent of the hazard can often be expressed in quantitative terms.
Agencies should also consider the effectiveness and cost of alternative
control measures as well as other effects of regulation. Estimates of
the cost-effectiveness of regulating specific chemicals can be helpful
in selecting priorities. Because of the complexity of these criteria
and the continuing need to obtain additional information, selection of
candidates for regulation will often be an iterative process.
Priority setting should be a public process which affords interested
persons an opportunity to communicate their own views to the agency.
Varied techniques exist short of rulemaking under the Administrative
Procedure Act for providing such opportunities, including public
meetings, use of expert advisory panels, and publication in the Federal
Register of invitations to submit data and views. Under whatever
system, preliminary rankings risk being misinterpreted as definitive
judgments about the hazards of chemicals before manufacturers and users
have had an opportunity to present evidence or arguments. Accordingly,
agency announcements of priorities should make clear the tentative
character of underlying scientific assessments and describe the
opportunities for interested persons to supply contrary or confirmatory
information.
01 CFR 305.82-5 Recommendation
1. To the extent compatible with other demands on their resources,
agencies should establish and follow systems for ranking chemicals as
candidates for scientific evaluation or regulation. Agencies should
generally adhere to the priorities thus established, but must retain the
flexibility to respond to new hazards or to public concerns about other
chemicals.
2. Priority setting should be part of selecting chemicals (a) for
further testing, (b) for intensive scientific and regulatory evaluation,
and (c) for administrative action to limit or eliminate exposure.
3. To the extent allowed by law, priorities should be set by agencies
with the objective of maximizing the net benefits to society of agency
action. Thus, in setting priorities, the agency should consider the
expected benefits and costs of various alternatives. Although the
criteria for selecting chemicals for further testing may be different,
the criteria for selecting chemicals for regulation should take account
of the health hazards posed by chemicals, including the potency of the
chemicals, levels of exposure, the number of people likely to be
exposed, and the costs and cost-effectiveness of methods for controlling
exposure, to the extent that these may be known.
4. Because agencies differ in their functions and their selection of
candidates for evaluation and regulation must be coordinated with other
agency programs, each agency should establish its own priorities. The
several agencies responsible for regulating carcinogens should, however,
periodically compare their rankings and, where feasible, coordinate
their testing, evaluation, and regulatory efforts. Consultation with
scientific, industrial, and public interest organizations should be
encouraged.
5. Agency procedures for setting priorities should permit interested
members of the public to submit information and views concerning
specific candidates. Agencies should consider adopting priority-setting
systems through rulemaking, but more informal methods are appropriate
for ranking individual chemicals for evaluation and regulation. Any
agency announcement that a product or chemical is a candidate for
further evaluation or for regulation should explain both the bases of
that assessment and its preliminary nature and should describe available
procedures for confirming or negating its preliminary conclusions.
01 CFR 305.82-5 ii. interagency coordination
Responsibility for regulating chemicals that pose a risk of human
cancer is shared by several agencies, including most notably the
Environmental Protection Agency (EPA), Occupational Safety and Health
Administration (OSHA), Food and Drug Administration (FDA), and Consumer
Product Safety Commission (CPSC). Only in recent years have these
agencies attempted to coordinate their activities to assure consistency
and enhance the benefits of regulation. While the agencies' criteria
for identifying and evaluating potential carcinogens have in fact not
been conflicting, their decisions have sometimes appeared difficult to
reconcile, usually because of differences in legislation.
The creation of the Interagency Regulatory Liaison Group in 1977
rested on the premises that Federal regulation of chemical carcinogens
should proceed from common principles of scientific evaluation and
should be coordinated administratively. While these premises remain
valid, other mechanisms may be equally effective in assuring
coordination. Opportunities for productive coordination exist in
several areas: establishment of government-wide principles of
scientific evaluation; agreement on test guidelines for toxicological
experiments and other studies of health effects; ranking of chemicals
for testing; and monitoring and enforcement of exposure controls.
The four agencies have on several recent occasions cooperated in the
regulation of specific chemicals. They once assembled a central
scientific working group to evaluate formaldehyde, a chemical of common
interest, and they agreed on a common list of chemicals that were high
priorities for coordinated regulation. Though diverse statutory
procedures have sometimes discouraged joint administrative proceedings,
opportunities at the preproposal stage for cooperation in evaluating
health effects and performing economic analysis have not yet been fully
exploited.
01 CFR 305.82-5 Recommendation
1. Interagency coordination in identifying, evaluating, and
regulating potential human carcinogens should be encouraged. Effective
coordination can reduce governmental costs, minimize inconsistency among
the agencies, and better illuminate the economic costs of alternative
control options.
2. Agencies should continue to cooperate in identifying chemicals for
which further testing is needed to permit regulatory assessments. The
National Toxicology Program should continue to elicit joint agency
rankings of candidates for testing.
3. Regulatory agencies should collaborate with government scientific
bodies, including the National Toxicology Program, National Institute of
Environmental Health Sciences, and National Center for Toxicological
Research, to obtain agreement on guidelines for the conduct and
evaluation of toxicological tests. This effort need not result in
public rulemaking to adopt test protocols, but scientists outside
government should have an opportunity to contribute to the development
of test guidelines. Cooperative guidelines should also be considered
for short-term tests and epidemiological studies, but current guidelines
should not discourage development of improved test methods.
4. To the extent permitted by statute, agencies responsible for
regulating carcinogens should adhere to common criteria for evaluating
and interpreting health effects data. Agencies should avoid
inconsistency in their approaches to mixed scientific-policy issues,
such as whether to assume a no-threshold model of carcinogenesis,
whether to perform quantitative estimates of human risk, or whether to
allow evidence that a chemical produces an increase in cancer in
laboratory animals through mechanisms that do not suggest human risk.
5. Agencies responsible for regulating carcinogens should continue to
explore joint evaluation of the potential health hazards of chemicals
that are candiates for regulation by more than one agency, for instance,
by use of a multi-agency advisory panel for any particular substance.
6. Agencies should explore other opportunities to collaborate before
the initiation of formal administrative proceedings to regulate a
chemical. These may include joint development of exposure estimates and
joint preparation of economic analyses of alternative regulatory
approaches.
7. Agencies should, after eliciting the views of interested persons,
consider conducting joint administrative proceedings when they
contemplate regulating the same chemical. Statutory diversity may,
however, complicate or even preclude such proceedings.
01 CFR 305.82-5 iii. chemical selection and guidelines for testing and
evaluation
The selection of chemicals for study, the design of protocols for
laboratory experiments, and the establishment of criteria for
interpreting study results are important parts of the process for
regulating substances that pose a risk of human cancer. These are
essentially scientific functions which should not be dictated by narrow
policy considerations. The important desiderate are scientific
integrity and consistency.
At the same time, it remains true that much toxicological testing
performed in the United States -- by government laboratories and by or
on behalf of private industry -- is performed to aid regulatory
decisionmaking. Numerous toxicological studies are performed to support
marketing approval for food additives, pesticides, and pharmaceuticals.
FDA and EPA have both conducted similar studies on substances within
their regulatory jurisdiction. The agencies have also relied on studies
commissioned by the National Cancer Institute. The NCI bioassay program
has more recently fallen under the supervision of the National
Toxicology Program, whose supervisory board includes representatives of
the regulatory agencies. NTP currently accepts nominations of chemicals
for testing from the agencies.
Under the auspices of the former Interagency Regulatory Liaison
Group, the four agencies studied here (EPA, OSHA, FDA, and CPSC)
actively sought agreement on joint protocols for toxicological testing
and on criteria for evaluation of study results.
01 CFR 305.82-5 Recommendation
1. In conjunction with the National Toxicology Program and in
consultation with scientific organizations outside government,
regulatory agencies should continue efforts to develop consistent
guidelines for toxicological testing. These test guidelines should
reflect current scientific consensus but also awareness of the resource
limitations that constrain both government and industry. The guidelines
developed or espoused by the agencies should not be issued as formal
regulations. Rulemaking would needlessly prolong the process of
reaching agreement, and formal regulations would limit the ability of
agencies, producers, and testing laboratories to design protocols or
adapt existing guidelines to new circumstances.
2. Agencies should adhere to similar test guidelines and similar
criteria for interpreting test results. Any departure from common
standards should be specifically and convincingly justified.
3. The National Toxicology Program should continue to encourage the
participation of EPA, OSHA, FDA, and CPSC in its selection of chemicals
for testing. It should be willing, on request, to assist agencies in
their evaluation of study findings. The NTP special working group to
evaluate the carcinogenicity of formaldehyde for all of the four
regulatory agencies represents one promising experiment in the effort to
assure consistency among the agencies.
01 CFR 305.82-5 iv. advisory panels
Assessment of the health risks posed by chemicals requires
substantial information about their toxicity and about the conditions
under which humans are exposed to them, as well as understanding of the
techniques for obtaining such information. Techniques for toxicological
evaluation, exposure estimation, and quantitative assessment of human
risk increasingly demand state-of-the-art expertise. Evaluation of
potential human carcinogens also requires impartiality in assessing the
quality and interpreting the results of toxicological and
epidemiological studies. In the scientific world, new research findings
are customarily exposed to peer review before they become accepted as
reliable. Increasingly, regulatory agencies have concluded that the
data on which they rely, and the interpretations they give these data,
should be subjected to peer review before becoming the bases for
regulatory decisions.
Several proposals have recently been advanced to mandate and
institutionalize this peer review function. Some of these proposals
call for strict separation of risk assessment from the process of
evaluating and selecting regulatory options. These proposals raise
difficult issues respecting the design of procedures for administrative
decisionmaking about chemical carcinogens. The function of assessing
risk can be distinguished analytically from the choice of regulatory
responses, but separating them in practice is more difficult. The close
relationships among issues of toxicity, exposure, and the cost of
controls make the process of agency evaluation an interactive one.
Accordingly, mechanisms for exposing agency judgments to peer review
should be flexible enough to permit frequent interchange with agency
policy makers.
One method that agencies have successfully used for
institutionalizing peer review is consultation with expert advisory
panels. These panels have taken several forms, ranging from informal
working groups of agency scientists assigned to review a single chemical
to standing committees of independent experts who advise on numerous
candidates for regulation. Advisory panels can contribute objectivity
as well as expertise to agency decisions. Their advice has sometimes
prevented erroneous regulatory actions; more frequently, their role has
been to illuminate complex issues and enhance the quality, and thus the
credibility, of agency scientific analysis.
Advisory panels comprised in whole or in part of non-Federal
employees are governed by the Federal Advisory Committee Act (FACA),
unless exempted by specific legislation. The FACA requires individual
chartering and biennial reapproval and mandates practices that are
designed to assure the balance, openness, and integrity of advisory
committees. Most of these requirements are salutary, and the following
recommendations endorse their observance by panels even where not
formally subject to the FACA. Certain of the Act's provisions, however,
have discouraged agencies from seeking outside peer review. The
recommendations advanced here are intended to encourage agency resort to
expert advisory panels without necessarily endorsing every requirement
of the FACA. None of these recommendations should be construed as
superseding either that Act, where applicable, or Federal conflict of
interest laws.
01 CFR 305.82-5 Recommendation
1. Peer review of experimental findings and scientific judgments is
an important means of validating the technical bases of regulatory
decisions concerning carcinogens. To the extent compatible with
existing law, agencies should structure their decisional processes to
incorporate mechanisms for scientific peer review.
2. Expert advisory panels represent one valuable means for obtaining
scientific peer review of agency decisions. Advisory panels can provide
information that will aid agencies in setting priorities, in evaluating
scientific data prior to initiation of administrative proceedings, and
in evaluating evidence submitted by interested persons during public
proceedings.
3. The design, composition, and operation of an advisory panel should
fit the function it is to perform; no uniform approach is optimal. A
standing advisory panel, with responsibility for reviewing the
scientific bases of major actions by a particular program, can
contribute consistency in addition to expertise, and it provides a ready
forum for agency consultation. To assure that the panel has access to
relevant expertise, sub-units can be appointed to evaluate specific
chemicals or issues. An agency that lacks a standing advisory panel,
however, should not forgo opportunities to create ad hoc panels to
review the scientific bases of contemplated regulatory actions.
4. The role of an expert advisory panel may embrace evaluating data
concerning the health effects of chemicals, interpreting those data and
characterizing the chemicals' effects, and estimating the likely
frequency of those effects under different exposure conditions. When an
agency rejects an advisory panel's scientific judgment, it should
explain the bases for that rejection. When an agency selects a
regulatory approach whose bases appear inconsistent with a panel's
advice, it should explain the legal, social, or other reasons that
dictate or justify that choice.
5. Members of an expert advisory panel should be selected primarily
for their expertise in relevant scientific fields. Qualified
scientists, even if employed by the agency they are to advise, by other
government agencies, or by commercial organizations, may appropriately
be selected to serve on advisory panels. In the selection of panel
members, attention should be given to assuring balance in scientific
orientation and viewpoint. The organizational affiliations of all panel
members should be a matter of public record. The financial holdings and
relationships of potential panel members should be carefully screened by
the appointing officials and periodically reviewed thereafter to prevent
conflicts of interest. If a panel includes members who are not
disinterested with respect to a particular substance, those members
should not participate in the panel's discussions of that substance.
6. Advisory panels should be accessible for consultation by the
appointing agency at frequent intervals and on short notice.
Consultation should usually occur before any announcement of a plan to
regulate a chemical. Even when the Federal Advisory Committee Act does
not apply, many of its requirements represent appropriate guides for the
operation of advisory panels. Referrals of issues to advisory panels
and meetings of agency officials with panel members should be matters of
public record. Advance public notice of panel meetings should be
provided where practicable. Panels should meet in open session except
when reviewing data that are entitled to confidential treatment or,
unless restricted by statute, when the panel members vote to close their
deliberations. All panel conclusions and recommendations should be
reduced to writing and become a part of the material to be considered in
any ensuing administrative proceeding.
7. Advisory panels established to evaluate scientific data for, and
provide advice to, more than one agency may often be useful. Such
panels can be particularly valuable in recommending chemicals for
further study or testing. Where a chemical is of interest to more than
one regulatory agency, a single advisory panel may be an efficient way
of obtaining an independent assessment of its potential health effects.
Interagency panels should be subject to the same restrictions as to
composition, operation, and scope of responsibility as panels appointed
to serve a single agency.
01 CFR 305.82-5 v. generic rulemaking
Agencies responsible for regulating potential carcinogens have
attempted to develop and publish criteria for evaluating scientific data
that underlie their decisions. These efforts have included informal
statements of policy, proposed interpretative regulations, binding
substantive standards, and interagency policy statements. The motives
underlying these efforts to establish a framework for evaluating
evidence concerning individual chemicals have been as diverse as the
forms they have taken. One objective has been to obtain agreement among
the agencies on the scientific criteria and policies that inform
regulation of carcinogens. Another objective has been to improve
understanding, among the public and within agency staffs, of the
principles that guide agency decisions. Some agencies have also
attempted to frame these principles as rules of decision in order to
forestall repetitive disputes in proceedings to regulate individual
chemicals.
The desirability of assuring agency adherence to common principles of
scientific interpretation seems clear. Equally important is conformity
of these principles with the best current understanding of the
mechanisms of carcinogenesis, of toxicological and epidemiological
research, and of quantitative risk assessment. Attempts to treat
decisional guides as though they were binding substantive rules may
conflict with the need to remain sensitive to developments in rapidly
changing fields.
The efforts of individual agencies to establish criteria for
identifying and evaluating potential human carcinogens have been
criticized on several counts. In addition to disputing the content of
agency judgments, industry critics have questioned the appropriateness
of analytic frameworks that discourage individualized assessment of the
capacity of chemicals to cause cancer. The duration of agency
rulemaking proceedings suggests difficulty in obtaining scientific
agreement in this area, but the controversy more often betrays
disagreement over agency policy judgments rather than over their
distillation of scientific consensus.
01 CFR 305.82-5 Recommendation
1. In appropriate cases generic rules legitimately may be the basis
for summary administrative resolution of recurrent issues, provided they
do not foreclose reexamination of scientific conclusions respecting
carcinogenicity of particular substances. Agencies should proceed
cautiously in using this technique because the complexity and
uncertainty of the issues involved and continuing advances in scientific
understanding of the mechanisms of human cancer impede development of
binding general principles.
2. Agencies should be encouraged to develop systematic statements of
the principles that they will apply in identifying, ranking, and
evaluating chemicals that may pose a risk of human cancer. The
systematizing process should ordinarily involve opportunity for
submission of data and views by interested persons outside the agency.
Whenever an agency expects to limit argument over principles that will
guide decisions in proceedings to regulate individual chemicals,
compliance with statutory requirements for rulemaking is essential
before the principles are formulated.
3. Agency statements may appropriately address the design and
interpretation of scientific studies, the measurement or estimation of
human exposure, the performance of quantitative risk assessment, and the
selection of regulatory responses. These statements should attempt to
distinguish between elements that are intended to summarize current
scientific consensus and others that represent policy judgments reached
in the absence of consensus. Policy judgments are an inevitable
component of regulatory decisions and, where similar issues arise
recurrently, are appropriately resolved on a generic basis. But where
scientific developments in the near term are likely to require
modification, or where individual studies or chemicals are often likely
to deviate from the ''norm,'' they should not be framed as binding
rules.
4. Many issues involved in identifying, evaluating, and regulating
potential carcinogens are common to all agencies and should be resolved
consistently. These issues range from the criteria for interpreting
scientific studies to the selection of mathematical models for
estimating human risk. Though scientific uncertainty surrounding many
of these issues requires considerations of value and policy, disparate
agency responses should be avoided or convincingly justified.
01 CFR 305.82-5 vi. quantitative assessment of risk
Various pressures and incentives have encouraged regulatory agencies
to explore methods for quantifying the risk of potential carcinogens.
At the same time the use of quantitative risk assessment in making
regulatory decisions has provoked fierce controversy. Industrial
interests have generally urged agencies to regard quantification as an
essential step in evaluating measures for controlling carcinogens.
Consumer groups and labor unions, on the other hand, have cautioned
against excessive reliance on techniques whose reliability remains
uncertain. The agencies themselves have for some time had difficulty
reaching consensus on the issue.
Criticism of quantitative risk assessment stems in part from doubts
about its reliability. Reliance on animal models as qualitative
predictors of human risk often may be unavoidable, and the further
extrapolation from effects observed at high doses to the unmeasurable
effects predicted at low doses compounds uncertainty. Critics also
point to the wide range of risks at low doses predicted by different
extrapolation models. A further criticism is that quantitative risk
assessment can too easily be exploited to compute the dollar value
implicitly assigned by regulators to human life.
Despite these criticisms, quantitative risk estimation has an appeal
for both analysts and decisionmakers. Without some means of describing
the magnitude of the health effects associated with exposure to a
carcinogen an agency must find some other basis for deciding what
controls to require. Legislation sometimes provides an answer. The
Delaney Clause, for example, makes quantification of the risk of a
carcinogenic food additive superfluous. Under any statute that permits
or instructs the agency to weigh the costs against the health
consequences of alternative means of controlling exposure, however, a
method to quantify risks has proved essential.
Quantitative risk assessment can help illuminate many of the choices
that agencies confront in regulating carcinogens. Even with its
uncertainties, the technique facilitates comparison of the risks posed
by different substances, which can aid in establishing priorities for
regulation. Similarly, quantitative risk assessment can illuminate the
choice among diverse regulatory options. A common unit of measurement
for evaluating the health benefits of different options can materially
advance analysis of a multidimensional decision even if the measurements
are unverifiable and the benefits are not converted into dollars.
01 CFR 305.82-5 Recommendation
1. Quantitative risk estimates can be valuable in setting priorities
for regulation of carcinogens, comparing the human health consequences
of alternative control measures, and in analyzing the costs and benefits
of regulatory options. To the extent regulatory statutes allow and
available data permit, agencies should attempt to estimate and describe
the magnitude of the risk posed by prevailing levels of exposure to
substances considered for regulation. Within the same constraints,
agencies should also attempt to describe the size of the health benefits
provided by measures required to reduce or eliminate human exposure.
2. Given the limitations of techniques for quantitative risk
assessment and different statutory criteria for limiting or eliminating
exposure, risk estimates ordinarily will be only one consideration. The
weight accorded such estimates should reflect:
(a) The statutory criteria governing agency decisions;
(b) The adequacy of available data on carcinogenic potency and on the
type, levels, and duration of human exposure; and
(c) The acceptance of the methods used to estimate future health
effects.
3. Any description of the magnitude of the risk associated with
prevailing exposures or of the estimated health benefits of exposure
controls should explicitly identify:
(a) The toxicological, epidemiological, and exposure data on which it
rests;
(b) The assumptions underlying any extrapolations from animals to man
or from high to low exposure levels;
(c) Other assumptions about the behavior of the substance or about
the characteristics of human exposure to it; and
(d) The range of uncertainty associated with the estimates.
4. Quantitative estimates of risk associated with exposure to a
substance -- particularly when expressed in terms of lives likely to be
lost or cases of cancer likely to occur -- have a power to captivate
public and press attention. Such estimates should be accompanied by
statements stressing their imprecision and uncertainty. When the
available health effects data are seriously deficient or little is known
about human exposures to a substance, the risk of misinterpretation may
justify an agency decision not to attempt quantitative estimates of risk
or health benefits.
01 CFR 305.82-5 vii. public participation
Several values are served by public participation in the regulatory
process. Perhaps preeminent is the value of fairness to those who may
be directly affected by government action. The ''right to be heard''
before government acts adversely to important private interests is well
established in American administrative law. This is reflected in the
Administrative Procedure Act and by most regulatory statutes.
A second purpose served by broad public participation in agency
decisionmaking is avoidance of mistaken even though well intentioned
judgments that rest on incomplete information. In the context of
carcinogen regulation this value enjoys a high rank. Decisions
concerning human exposure to potential carcinogens should rest on sound
scientific and economic judgments. Estimates of risk and cost require
information that agencies often lack, as well as analytical skills that
are found in industry and many public interest organizations.
Accordingly, agency procedures should facilitate participation by those
in the private sector with relevant scientific and economic expertise.
A third important value served by public participation is balance.
Agency decisions concerning environmental health hazards require
government to take large chances with both human life and private
business. Data are invariably inadequate and estimates of future
consequences are problematical; these uncertainties simply complicate
an already difficult task. Determining the appropriate level of human
exposure to a substance reasonably found to cause cancer is
fundamentally a normative exercise in which there are no experts.
Because decisions are left to regulators with sometimes scant
Congressional guidance, agency procedures should facilitate broad
participation and vigorous debate to assure agency understanding of
diverse viewpoints.
Finally, the opportunity to influence agency thinking, coupled with
an awareness that agency procedures permit broad participation,
contributes to the acceptability of agency decisions.
Public health or scientific interests may not have participated in
the regulatory process on equal footing with commercial interests. The
extent to which this disparity, if it exists, is a function of lack of
resources and whether it should be addressed through public funding of
citizen participation are questions that transcend carcinogen
regulation. The arguments for and against funding should be considered
in the broader context.
01 CFR 305.82-5 Recommendation
1. In setting exposure limits for carcinogens, agencies ordinarily
should follow procedures that assure opportunities for all affected
interests, commercial and non-commercial alike, to submit information
and views before final decisions are reached. Procedures may
appropriately vary with the requirements of agency organic statutes,
with the characteristics of the activity or products whose regulation is
contemplated, and with the need for prompt action to limit exposure.
2. Agencies should encourage and facilitate the participation of
independent experts in toxicology, epidemiology, risk and exposure
estimation, and other relevant technical disciplines. A useful way of
eliciting participation in the regulatory process by independent
scientists is through the use of standing or ad hoc advisory panels.
3. Congress should refrain from imposing procedural requirements,
such as section 701(e) of the Federal Food, Drug, and Cosmetic Act,
which are so burdensome that agencies search for regulatory approaches
that have the effect of precluding effective participation in their
decisionmaking processes by affected interests. /4/
(47 FR 30710, July 15, 1982)
/4/ See also Administrative Conference Recommendation 71-7
(Rulemaking on a Record by the Food and Drug Administration), 2 ACUS
Recommendations and Reports 42 (1973); and Recommendation 72-5
(Procedures for the Adoption of Rules of General Applicability), 2 ACUS
Recommendations and Reports 66 (1973), 1 CFR 305.72-5.
01 CFR 305.82-6 Federal Officials' Liability for Constitutional
Violations (Recommendation No. 82-6).
This recommendation focuses on the increasing risk to Federal
executive branch officials of civil liability for monetary damages for
alleged violations of Federal constitutional rights. This vulnerability
has expanded dramatically in recent years, as a result of
judicially-discovered rights enunciated in Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), and subsequent court cases involving
allegations of official misconduct. Under the present system of
officials' liability, as developed piecemeal by the courts, an
individual Federal employee (except certain categories of officials,
including the President, who have been ruled to have absolute immunity)
may be held personally liable for acts that, though committed while the
employee was acting within the scope of office or employment, may
subsequently be found to violate a constitutional provision. Juries may
hold officials liable for actual damages where they cannot show that
their actions were taken in good faith -- that is, in the belief that
their conduct was lawful -- and for punitive damages where they are
shown to have acted maliciously or with reckless disregard of the
plaintiff's constitutional rights. At present, damages may not be
recovered against the United States for violations of constitutional
rights as such, although claims arising out of the same conduct may or
may not be stated against the Government under the Federal Tort Claims
Act, 28 U.S.C. 2671-2680.
The existing system of civil sanctions for constitutional violations
by Federal officials does not provide adequate assurance of compensation
for victims of such violations and discourages proper conduct by
Government officials. In addition, the Federal Government often has
interests at stake in constitutional tort litigation involving its
officials which may not be represented adequately when individual
officials themselves are the defendants on trial.
In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court suggested
that the courts may properly refuse to entertain monetary damage actions
against Federal officials if Congress has expressly substituted a
different remedy or made available an alternative to the Bivens remedy.
In the Conference's view, such an alternative system is likely to
improve the effectiveness with which Federal programs and laws are
administered.
To serve the primary goals of compensation, deterrence, and fairness
in dealing with constitutional violations assertedly committed by
Federal officials, and to afford a solution to the problems perceived to
flow from the current system of individual liability, Congress should
replace the existing system by accepting public liability for wrongs
done in the public's name and by strengthening the means of dealing with
the wrongdoers. When defending against constitutional tort claims, the
Government should be able to assert any immunity or good faith defense
available to the officials.
Since the Conference's mandate extends only to matters affecting the
administration of Federal agencies' programs, this recommendation
addresses only actions against executive agency officials. We do not
intend to suggest that the same considerations do not apply to officials
of the legislative and judicial branches.
01 CFR 305.82-6 Recommendation
1. Congress should enact legislation providing that the United States
shall be substituted as the exclusive party defendant in all actions for
damages for violations of rights secured by the Constitution of the
United States committed by Federal executive branch officers and
employees while acting within the scope of their office or employment.
The legislation should provide adequate procedures to ensure that, where
a damage action for violation of such rights is brought against an
executive branch officer or employee, such action should be deemed to
have been brought against the United States upon certification by the
Attorney General that the defendant officer or employee was acting
within the scope of his office or employment at the time of the incident
out of which the suit arose. The Attorney General's failure to make
such certification should be judicially reviewable.
2. Such legislation should provide that, in actions alleging
constitutional violations, the United States may assert as a defense any
qualified immunity or good faith defense available to the executive
branch officer or employee whose conduct gave rise to the claim, or his
reasonable good faith belief in the lawfulness of his conduct. The
United States should also be free to assert such other defenses as may
be available, including the absolute immunity of those officers entitled
to such immunity.
3. The agency that employed the offending officer should be
responsible for investigation and, where appropriate, for disciplining
the official and implementing any other appropriate corrective measures.
The Office of Personnel Management should assure, via guidance
promulgated through the Federal Personnel Manual and other devices, that
agencies are authorized to employ existing mechanisms to impose
sanctions on officers and employees who have violated the constitutional
rights of any person. Employees should be permitted to assert as a
defense in any disciplinary proceeding their good faith in taking the
action in question, as well as such other defenses as may be available.
4. Congressional legislation should preserve the opportunity for jury
trial only with respect to claims that arose prior to the effective date
of the legislation implementing this recommendation.
(47 FR 58208, Dec. 30, 1982)
01 CFR 305.82-7 Judicial Review of Rules in Enforcement Proceedings
(Recommendation No. 82-7).
A person adversely affected by an agency rule may ordinarily obtain
judicial review of that rule either by instituting a direct review
proceeding against the agency in an appropriate court (preenforcement
review) /1/ or by asserting the invalidity of the rule as a defense in a
civil or criminal proceeding to apply or enforce the rule (enforcement
review). Prior to the Supreme Court's decision in Abbott Laboratories
v. Gardner, 387 U.S. 136 (1967), direct review was generally difficult
to obtain because of technical defenses such as lack of ripeness or lack
of standing, and most review of rules took place in the context of
enforcement proceedings.
Under Abbott Laboratories and subsequent decisions, direct review of
agency rules has become increasingly available. Congress in much recent
regulatory legislation has specifically provided for immediate resort to
judicial review at the conclusion of the rulemaking proceeding. As a
result, direct judicial review of rules has come to be regarded as the
norm and review in an enforcement proceeding is less common. In a
number of statutes, in fact, Congress has sought to encourage prompt
direct review by explicitly precluding or limiting the availability of
review at the enforcement stage.
At the same time, and perhaps largely as a result of the increasing
importance of direct judicial review of rules, courts have intensified
their scrutiny of the administrative process preceding promulgation of
the rule. Whereas in the pre-Abbott Laboratories era challenges to
rules were most frequently based on assertions of lack of agency
authority or on inapplicability of the rule to the party's particular
circumstances, today the issues in direct review proceedings
increasingly include whether the agency made the proper procedural
choices in the rulemaking proceeding and whether the rule finds adequate
support in the administrative record.
The Administrative Procedure Act does not by its terms establish
different standards of review for direct review proceedings and
enforcement proceedings, and few courts have considered the implications
for review in enforcement proceedings of the increasingly intensive
standard developed in direct review proceedings. Moreover, in adopting
statutory provisions precluding enforcement review Congress has not
distinguished between these process-related objections and other types
of objections to rules.
In Recommendation 76-4, the Conference criticized provisions
precluding enforcement review in the Clean Air Act and the Federal Water
Pollution Control Act. In view of the increasing reliance on direct
review and the proliferation of issues concerning the adequacy of the
rulemaking process rather than the agency's authority to promulgate a
particular rule, however, the Conference now believes that limitations
on judicial review of rules in enforcement proceedings may sometimes be
appropriate. The purpose of this recommendation is twofold: to
identify factors that Congress should consider in deciding whether to
preclude enforcement judicial review, and to distinguish between types
of challenges to rules that should ordinarily be covered by any
preclusion provisions Congress decides to adopt and types of issues that
should ordinarily remain available in enforcement proceedings even where
preclusion provisions have been adopted.
Sound principles of administrative law favor prompt and dispositive
resolution of disputed issues arising from an administrative rulemaking
proceeding. Direct review in the court of appeals is more likely to
afford such a resolution than later enforcement review in one or more
district courts. /2/ The uncertainty caused by the potential for
conflicting court decisions and by the possibility that a rule may be
overturned several years after its promulgation can be extremely
disruptive of the regulatory scheme. In addition, reopening a
rulemaking proceeding to correct any defects will become increasingly
difficult as the original record grows stale over time and the situation
of the interested parties changes.
On the other hand, those affected by a rule should have a full and
fair opportunity to challenge the rule on all available grounds. These
interests must be balanced in determining when limitations on
enforcement review of rules are appropriate. The balance will tip in
favor of limitations on enforcement review when the impact of
foreclosing review on those affected by a rule is the least and when the
costs of regulatory uncertainty or of declaring a rule invalid after
several years are the greatest. Thus one factor favoring limitations on
enforcement review is the likelihood that the groups affected by rules
promulgated under a particular statute will be well represented in the
agency rulemaking proceeding because, for example, those groups are well
defined and/or well organized. Widespread participation in the
rulemaking proceeding reduces the probability that any significant issue
concerning the rule, particularly one pertaining to the rulemaking
process itself, will be overlooked on direct review.
The likelihood that a rulemaking proceeding will involve complex
procedures or intensive factual exploration also militates in favor of
limits on enforcement review. The more elaborate and formal the
administrative rulemaking proceeding (such as those required by hybrid
rulemaking statutes /3/ ), the more likely it is that the rule will be
subject to challenge on the basis of a relatively narrow issue involving
the procedures used or the record support for some aspect of the rule.
As time passes, reopening such a complex proceeding after a court
reversal will be increasingly burdensome. Encouraging the dispositive
resolution of challenges to a rule on direct review (perhaps while
effectiveness of the rule has been stayed) is also advisable when the
costs of regulatory uncertainty are particularly high. Sometimes
compliance with a rule entails substantial expense that will not be
fully recoverable if the rule is later overturned. Similarly, when
Congress determines that there is a need to achieve important regulatory
goals promptly nationwide, or when it is particularly important that
rules apply industry-wide in order to avoid unfair competitive advantage
to noncomplying businesses, repeated litigation over the validity of the
rules in various district courts should be avoided if possible.
Even when Congress decides that limits on enforcement review are
warranted, it should not foreclose all challenges to rules at the
enforcement stage. Some grounds for review can be precluded with little
unfairness to parties who may be unaware of the original rulemaking
proceeding or are otherwise unable to seek direct review, while others
raise fundamental questions about the substance of the rule or its
application in circumstances that may have been unforeseen at the time
of promulgation. Challenges based on asserted errors in the
administrative process are those most suitable for preclusion. When
objections on procedural grounds are raised early, errors may be
remedied promptly and the rulemaking process recommenced with a minimum
of disruption to the interests of those affected by the rule. And
objections based on asserted inadequacy of the administrative record may
lose their relevance as that record itself becomes dated. These
objections, moreover, do not ordinarily turn on the situation of a
particular individual or entity or on a particular interpretation of the
rule and can be raised as well by one party as by another.
On the other hand, considerations of fairness and judicial economy
may argue for retaining a right to raise in enforcement proceedings
those objections based on asserted lack of statutory authority or the
inapplicability or unreasonableness of the rule as applied to the facts
of the case. Moreover, there may be constitutional inhibitions against
precluding or restricting at any time challenges based on the asserted
unconstitutionality of a rule either on its face or as applied.
The Conference recognizes that the line between issues of process and
those of statutory authority may not always be a bright one. For
example, the question of whether there is statutory authority to apply a
rule to a particular situation may tend to converge with the issue of
the adequacy of record support for the rule. However, if the
distinctions suggested below are made, statutory provisions will afford
the courts adequate guidance in most situations. When ambiguity
nonetheless results, the well established presumption of reviewability
will continue to apply.
/1/ We use the term ''direct review'' to refer to judicial review of
a rule of general applicability before the rule is applied to a
particular person in an adjudicative proceeding. Such review may be by
the court of appeals pursuant to a special statutory review procedure or
by the district court in the exercise of its power under the
Administrative Procedure Act to review agency action not otherwise
reviewable. See ACUS Recommendations 74-4 (Preenforcement Judicial
Review of Rules of General Applicability) and 75-3 (The Choice of Forum
for Judicial Review of Administrative Action).
/2/ The recommendation is based on the assumption that, where
Congress has provided by statute for direct review of rules, that review
will ordinarily lie in the court of appeals rather than in the district
court. See ACUS Recommendation 75-3.
/3/ See, e.g., ACUS Recommendations 79-1 (Hybrid Rulemaking
Procedures of the Federal Trade Commission) and 80-1 (Trade Regulation
Rulemaking Under the Magnuson-Moss Warranty-Federal Trade Commission
Improvement Act).
01 CFR 305.82-7 Recommendation
1. In drafting a statute that provides for adequate preenforcement
judicial review of rules, Congress should consider whether to limit the
availability of review at the enforcement stage. In deciding whether to
limit the availability of enforcement review in a particular statute,
Congress should consider the following factors as favoring such a
limitation:
(a) The likelihood that the rulemaking proceeding will attract
widespread participation;
(b) The likelihood that the proceeding will involve complex
procedures or intensive exploration of factual issues;
(c) The likelihood that those affected by the rule will incur
substantial and immediate costs in order to comply with it; and
(d) The need for prompt compliance with the rule on a national or
industry-wide basis.
2. When Congress decides to limit the availability of judicial review
of rules at the enforcement stage, it should ordinarily preclude review
only of issues relating to procedures employed in the rulemaking or the
adequacy of factual support for the rule in the administrative record.
Judicial review of issues relating to the constitutional basis for the
rule or the application of the rule to a particular respondent or
defendant should be permitted when these issues are raised in subsequent
suits or as defenses to subsequent enforcement actions (subject to the
principles of collateral estoppel and stare decisis). Judicial review
of issues relating to the statutory authority for the rule should be
precluded at the enforcement stage only where Congress has concluded
that there is a compelling need to achieve prompt compliance with the
rule on a national or industry-wide basis.
3. When Congress limits the availability of judicial review of rules
at the enforcement stage as described in paragraph 2, it should provide
that, in an exceptional case when foreclosure of issues will work a
severe hardship or otherwise produce a manifestly unjust outcome, a
court may either dismiss or stay the proceedings and refer the rule to
the affected agency for its reconsideration.
4. Paragraph D of Recommendation No. 76-4, 1 CFR 305.76-4, Judicial
Review Under the Clean Air Act and Federal Water Pollution Control Act,
is hereby superseded to the extent that it is inconsistent with this
recommendation.
(47 FR 58208, Dec. 30, 1982)
01 CFR 305.83-1 The Certification Requirement in the Contract Disputes
Act (Recommendation No. 83-1).
The Contract Disputes Act, 41 U.S.C. 601-613, enacted in 1978,
established a comprehensive system for resolving disputes arising out of
federal government contracts. Under the Act, disputes initiated by or
brought against executive branch agencies relating to a contract must
first be submitted in writing to the agency's contracting officer for
decision. Appeals from that decision may then be taken either to an
agency board of contract appeals or to the United States Claims Court.
The Act specifies in section 605(c) that claims submitted to the
contracting officer by a contractor for more than $50,000 must be
certified: ''the contractor shall certify that the supporting data are
accurate and complete to the best of his knowledge and belief, and that
the amount requested accurately reflects the contract adjustment for
which the contractor believes the government is liable.'' It is
generally recognized that this requirement was inserted to discourage
the submission of frivolous or unwarranted contractor claims. (Defense
contractor claims are also subject to a second certification
requirement, contained in section 813 of the Department of Defense
Appropriation Authorization Act, Pub. L. 95-485, that predates the
Contract Disputes Act. It requires a similar certification, but applies
only to claims exceeding $100,000.)
Decisions by the Court of Claims1 have held the certification
requirement in the Contract Disputes Act to be jurisdictional. The
Court has ruled that unless a contractor has presented a proper
certification to the contracting officer prior to the officer's
decision, any such decision is a nullity, and the court will dismiss any
appeal based on such a decision. Moreover, the Court has intimated in
dicta that agency boards of contract appeals should likewise dismiss
appeals from decision on uncertified claims -- a position followed in
several board decisions.
This formalistic approach presents significant problems for
contractors. Sometimes a contractor cannot state the exact amount of a
claim at the time the claim first arises because damages have not fully
accrued or because the necessary information is otherwise unavailable.
Also, a contractor who believes his certification is correct when made
may later discover new information affecting the amount of the claim.
In these situations, under existing law, the contractor may have to
return to the starting point of the whole process, at the cost of delay
and added expense, if he seeks to amend his certification. Contractors
have also been required to begin again, even when their cases have
reached the Court of Appeals for the Federal Circuit, when contracting
officers have issued decisions before receiving certification.
The Conference believes that the certification requirement serves a
valid purpose -- that of discouraging frivolous or unwarranted claims.
However, this purpose can be achieved in the context of a more flexible
certification requirement. When the exact amount of a claim is not
definitely known, a contractor should be permitted to certify the
validity of his claim without specifying an exact amount, providing
instead his best estimate of the amount along with an explanation of why
the exact amount cannot be stated. Customary standards of proof should
continue to apply in establishing the precise measure of liability,
including the protections available under section 604 of the Contract
Disputes Act and 18 U.S.C. 1001. Where a matter is later appealed to a
board of contract appeals or the Claims Court, that body should require
the contractor to state an exact amount before trial on the merits.
In addition, if for any reason a contractor has failed to make
certification at the proper time or in the proper amount, this failure
should not automatically nullify any action already taken on the
contractor's claim. On a finding that the interests of justice so
require, the contracting officer, board of contract appeals, or Claims
Court should have authority to permit the contractor to make or amend
the certification at any time before that officer or reviewing body
issues a decision on the claim.
The $50,000 threshold, coupled with the jurisdictional certification
requirement, also creates some problems. A contractor who files an
uncertified claim, believing it to be worth less than $50,000, and who
then discovers that the value is higher may have to start the process
over, regardless of any decision by the contracting officer. Moreover,
the benefits of certification apply equally to claims above $50,000 and
those below that figure. If the certification requirement is modified
as suggested above, the $50,000 threshold for certification should be
eliminated.
This recommendation does not address the question of when interest
should begin to accrue on a contractor's claim. Congress should examine
this question in connection with its consideration of this
recommendation.
1The Court of Claims has been replaced by the United States Claims
Court and the Court of Appeals for the Federal Circuit (Pub. L. No.
97-264). However, the Claims Court has adopted the decisions of the
Court of Claims as binding precedent. General Order No. 1, United
States Claims Court, preceding Rule 1, Rules of the United States Claims
Court, 28 U.S.C.A. (October 7, 1982). The Court of Appeals for the
Federal Circuit has also adopted the decisions of the Court of Claims as
precedent, subject to its power to overrule earlier holdings when
sitting en banc. South Corp. v. United States, 690 F.2d 1368, 1370
(Fed. Cir. 1982).
01 CFR 305.83-1 Recommendation
1. Congress should amend section 605(c) of the Contract Disputes Act
to provide that:
(a) When the contractor believes that the exact amount of a claim
cannot be determined at the time the claim is filed, the certification
shall include the contractor's best estimate of the amount of the claim
and an explanation of why the exact amount cannot be stated, provided,
however, that the Claims Court or board of contract appeals shall set a
date a reasonable time before trial on the merits of the claim for
filing of a statement of the exact amount of the claim;
(b) On an express finding that justice so requires, the contracting
officer, the board of contract appeals, or the Claims Court may permit
certification to be made or amended at any point up to the issuance of
their respective final decisions on the claim;
(c) This revised certification requirement should apply to all
claims, not just those over $50,000.
2. The certification requirement contained in section 813 of the
Department of Defense Appropriation Authorization Act of 1979, Pub. L.
95-485, should either be eliminated or conformed to the requirement
recommended in paragraph 1.
(48 FR 31179, July 7, 1983)
01 CFR 305.83-2 The ''Good Cause'' Exemption from APA Rulemaking
Requirements (Recommendation No. 83-2).
The Administrative Procedure Act (APA) provides for public
participation in agency rulemaking. The Act's minimum requirements for
informal rulemaking are notice and an opportunity to comment on proposed
rules. The advantages of public participation in agency rulemaking are
widely recognized: the agency benefits because interested persons are
encouraged to submit information the agency needs to make its decision;
the public benefits for an opportunity to participate in shaping the
final agency action. Congress recognized, however, that in some
situations the normal public participation procedures should not be
required. Consequently, the APA contains a number of exemptions,
including a ''good cause'' exemption which allows agencies to dispense
with notice and comment if those procedures are ''impracticable,
unnecessary, or contrary to the public interest.'' /2/
Experience has confirmed the need for a ''good cause'' exemption from
the APA's notice and comment requirements. The situations in which the
exemption is invoked are diverse, and it is not feasible to identify
them all in advance. Some recurring examples of the types of situations
requiring use of the exemption are those in which (1) advance notice of
rulemaking will defeat the regulatory objective, (2) immediate action in
necessary to reduce or avoid health hazards or imminent harm to persons
or property, (3) immediate action is required to prevent serious
dislocation in the marketplace, and (4) delay in promulgation will cause
an injurious inconsistency between an agency rule and a newly enacted
statute or judicial decision. A survey of court opinions in cases
involving challenges to agency invocation of the good cause exemption
shows that agencies generally have used the exemption with due regard to
Congress' admonition that exemptions from section 553 requirements be
construed narrowly.
However, experience with good cause exemption also underscores the
value of public participation in rulemaking. The risk of error is
heightened when an agency acts summarily, and some rules promulgated
under the good cause exemption have been based on faulty or inadequate
information and have produced unanticipated and undesirable effects.
Public participation probably would have led to better decisions in
these cases, and it might also have increased interested persons'
perceptions of the fairness of the rulemaking process as well as their
acceptance of the rule.
The Administrative Conference's study of the good cause exemption
coincides with a reexamination of the exemption by the Congress. In the
97th Congress, the Senate passed a regulatory reform bill (S. 1080)
that, among other things, would have amended the good cause exemption as
follows: except for rules having an insignificant impact, an agency
invoking the good cause exemption would be required to comply with
public participation requirements to the maximum extent feasible prior
to promulgation and to fully comply after promulgation. A bill
introduced in the House of Representatives in the 98th Congress (H.R.
1776) would make rules adopted under the good cause exemption interim
rules that cease to be effective unless replaced by permanent rules
within a prescribed period of time.
The Administrative Conference recommends that agencies provide a
post-promulgation comment opportunity for rules they adopt under the
good cause exemption. This opportunity should be provided whether the
agency invokes the exemption on its own initiative or in response to a
statutory or judicial requirement. The post-promulgation comment
opportunity will give interested persons a chance to expose any errors
or oversights that occurred in the formulation of the rule and to
present policy arguments for changing the rule. The agency should
publish a response to any relevant and significant comments, as well as
its reasons for changing or not changing the rule in light of the
comments. The responsive statement should be published within a
reasonable time after receipt of public comments, taking into account
the nature and number of comments and the agency's other
responsibilities. Of course, the agency's decision to amend or repeal
the rule, or its decision to deny commenters' requests for changes, will
be judicially reviewable under the APA.
The Conference recommends, however, that the post-promulgation
comment opportunity not extend to rules for which the agency determines
public procedure to be ''unnecessary,'' as that term has been
interpreted by courts. Generally, courts have applied the
''unnecessary'' ground to rules that are minor or merely technical
amendments in which the public has little interest; they generally have
not upheld its application to rulemaking involving agency discretion on
matters having a substantial impact on the public. Finally, in
Paragraph 3, the Conference advises agencies to consider other measures
that might appropriately be employed in particular rulemakings under the
good cause exemption.
In making this recommendation, the Conference cautions agencies
against more readily invoking the good cause exemption on the belief
that the post-promulgation comment opportunity will be an adequate
substitute for the opportunity to comment prior to adoption of a rule.
Comment after promulgation is less likely to cause an agency to
reconsider the basic policy choices it made in formulating the rule.
And even if the agency does reconsider the basis of the rule, it may be
impossible to reverse the effects of a rule that is already in place.
25 U.S.C. 553(b)(3)(B). The Administrative Conference has already
addressed other exemptions from notice-and-comment rulemaking procedure:
Recommendation 69-8 (proprietary matters); Recommendation 73-5
(military and foreign affairs functions), and Recommendation 76-5
(interpretive rules and statements of general policy).
01 CFR 305.83-2 Recommendation
1. Agencies adopting rules under the good cause exemption in the
Administrative Procedure Act should provide interested persons an
opportunity for post-promulgation comment when the agencies determine
notice and comment prior to adoption is ''impracticable'' or ''contrary
to the public interest.'' However, a post-promulgation comment
opportunity should not be required when the agency determines public
procedures are ''unnecessary'' as that term has been interpreted by
courts reviewing agency use of the good cause exemption.
2. To implement paragraph 1, agencies should:
a. Publish a notice of the post-promulgation comment opportunity in
the Federal Register along with the rule and the agency's statement of
reasons for its finding of good cause;
b. Give interested persons an appropriate period of time to submit
comments on the rule; and
c. Within a reasonable time after close of the comment period,
publish a statement in the Federal Register indicating the agency's
adherence to, or plans to change, the rule and include in the statement
a response to significant and relevant issues raised by the public
comments.
3. In addition to the post-promulgation comment procedures specified
in paragraph 2, agencies adopting rules under the good cause exemption
should consider:
a. Framing the rule as narrowly as possible while still accomplishing
the regulatory objective;
b. Using notice and comment procedure to develop general criteria to
be applied by the agency in foreseeable, recurring situations that
require emergency action;
c. Promulgating the rule as an interim rule, to be followed by an
amended rule promulgated after complying with notice and comment
requirements; and
d. Taking appropriate alternative steps to obtain the views of
interested persons before adopting the rule.
4. If Congress amends the good cause exemption in 5 U.S.C. 553(b), it
should impose requirements no more stringent than are here recommended.
(48 FR 31180, July 7, 1983)
01 CFR 305.83-3 Agency Structures for Review of Decisions of Presiding
Officers under the Administrative Procedure Act (Recommendation No.
83-3).
This recommendation is addressed to the organizational structures
which agencies establish to review decisions of presiding officers
(ordinarily, administrative law judges) in proceedings governed by
sections 556 and 557 of the Administrative Procedure Act or otherwise
involving agency determinations on the record after opportunity for a
hearing. It is based on a study of structures now in use and their
relationship to the accuracy, efficiency and acceptability of the
adjudicatory process.
The study concludes that variations in the characteristics and
numbers of adjudicatory proceedings in different agencies and in the
organization and functions of such agencies caution against recommending
any single structure for review of adjudicatory decisions made by
presiding officers. By and large the present review structures in the
agencies studied seem well adapted to the particular circumstances of
the agency. Consequently, the purpose of this recommendation is not to
effect any drastic change in present structures, but to provide general
guidance to agencies which are establishing new review structures or
revising present ones.
In selecting among possible structures for review of adjudicatory
decisions four basic precepts should be kept in mind. The first two
involve considerations of efficiency; the others involve considerations
of accuracy and acceptability.
First, efficiency is generally served by spreading the review load
over a number of reviewers adequate to keep review time low relative to
initial decision time. Application of this precept requires attention
to three variables: the total relevant adjudicatory caseload, the
difficulty of the cases, and the number of reviewers.
Second, efficiency also is served by minimizing repetition; the same
matter seldom should be put in issue more than once. This cautions
against de novo review, instead favoring more limited review of issues
properly committed to a subordinate.
Third, accuracy depends on matching the skills of the reviewer to the
issues presented. Officials integrated into the agency's policymaking
apparatus should review decisions that significantly involve policy
issues while officials trained in factfinding should review decisions
presenting fact issues. Furthermore, the level of the reviewer should
match the magnitude of the issue. Agency heads with numerous other
responsibilities should be insulated from routine cases, but attempts to
force resolution of major policy issues at lower levels seem misguided
except when those issues can readily be addressed by rulemaking.
Similarly, individual reviewers easily can address relatively simple
issues, whether of fact or of policy, while more complex questions may
call for collegial consideration.
Fourth, acceptability generally requires that some review by a higher
agency authority be available at the instance of the aggrieved party, at
least in cases of great impact on individual parties. Inspection of a
substantial penalty and removal of a valuable government benefit are
obvious candidates for review as of right.
01 CFR 305.83-3 Recommendation
01 CFR 305.83-3 1. Agency Head Review
a. In drafting legislation governing the institutional structure for
agency adjudicatory proceedings, Congress should favor delegation of
decisional authority and should not prescribe detailed review
structures. The presumption should be that each agency head is best
able to allocate review functions within the agency.
b. Congress should authorize agency heads /1/ --
(i) To review initial decisions of presiding officers in adjudicatory
matters on a discretionary basis, as described in Administrative
Conference Recommendation 68-6, section 2(b); and
(ii) To delegate review authority on an ad hoc basis or with respect
to any or all classes of decisions to a subordinate official or board of
officials either with possibility for further review by the agency head
in his discretion or without further administrative review.
Where the agency head retains the right of discretionary review of an
initial or intermediate decision, the agency should provide by
regulation the grounds and procedures for invoking such review, in
accordance with the guidelines set forth in section 2(b) of this
Recommendation.
c. Only in the rarest circumstances should Congress require agency
heads to review decisions personally. These circumstances are where:
(i) In the case of an agency headed by an individual, the subject
matter at issue is of such importance that attention at the very highest
level is imperative; or
(ii) In the case of an agency headed by a collegial body, the subject
matter at issue is of special importance, the cases comprising the
relevant class of decisions are few in number, and the agency either has
no other significant non-adjudicatory functions or has few such
functions and has a sufficient number of members adequately to perform
review and other tasks. This paragraph does not address requirements
for discretionary review procedure under which a case may be brought
before the agency for review on the vote of one or more members of the
agency.
Nothing in this section is intended to deal with the appropriate
allocation of responsibilities between the agency head and his
subordinates in connection with the decisions in cases which he
personally reviews.
/1/ ''Agency head'' is used in the functional sense of the individual
or body politically responsible for the administration of the program in
question whether this responsibility is vested by statute or by
delegation from a superior official, such as the Secretary of a
department.
01 CFR 305.83-3 2. Forms of Delegations
a. General. Agency heads having powers of delegation should delegate
review authority on a class, rather than case-by-case, basis whenever a
substantial number of cases is adjudicated at the agency. Delegations
on an ad hoc basis should be limited to situations where adjudicatory
proceedings are relatively few and of such varied nature as to make
selection of a single qualified reviewing authority difficult.
b. Reservation of Authority. Where an agency head delegates review
authority, any authority he retains to grant further review should
normally be exercisable only in his discretion on a showing that
important policy issues are presented or that the delegate erroneously
interpreted agency policy. Multilevel review of purely factual issues
should be avoided.
01 CFR 305.83-3 3. Choice of Delegate
When an agency head determines to make a standing delegation of his
review authority, either unconditionally or subject to further
discretionary review, he may choose between delegating to a subordinate
authorized to act individually, e.g., a judicial officer, or to an
employee board authorized to act collegially. A multi-member agency
might also delegate to one of its members or a panel made up of its
members. In choosing the form of reviewing authority, the agency head
should consider the function to be performed by the authority and the
degree of finality expected of its decisions. This section sets forth
some factors which may guide an agency head in his choice among these
forms. The list is not intended to be exclusive, nor to suggest that in
every case there are clear grounds for preferring one form to another.
a. Individual Delegates. Where a standing delegation of review
authority is to be adopted, the following factors favor a delegation to
an individual delegate (or to a number of delegates authorized to review
decisions individually) rather than to several delegates acting jointly:
the number of cases is large, the cases are relatively simple, and the
predominant issues concern descriptive facts, or, to the extent complex
issues are presented, their resolution generally depends on application
of a single skill or discipline, such as legal interpretation, or
application of knowledge uniquely associated with the medical or
engineering professions or with a discrete branch of science rather than
on some combination of skills or disciplines.
b. Review Boards. In deciding whether a delegation instead should be
made to a group of persons jointly charged with review of ALJ decisions,
among the factors that should be considered as favoring such delegation
are: the caseload is substantial (but somewhat less than that
contemplated by paragraph (a) above), and includes more complex cases
that consume a significant amount of time at the initial decision stage,
and cases presenting a class of issues dependent for resolution on the
application of several different skills or disciplines.
c. Agency Panels. In some circumstances, a multi-member agency may
find it desirable to make a standing delegation of review authority to a
panel of agency members. Factors favoring such delegation include a
large adjudicatory caseload and difficulty in elaborating or clarifying
agency policy (especially through formal mechanisms such as rulemaking)
in a manner that will substantially limit the number of significance of
policy issues presented in adjudications.
01 CFR 305.83-3 4. Standards for Grant of Review
a. Review of Right; Discretionary Review. Delegation of review
authority does not necessarily imply that such review must be available
as of right. While review of right is appropriate in certain cases
because of the severe consequences to the parties, such as cases
involving the imposition of a substantial penalty or the revocation of a
license, agency heads should consider the desirability in routine cases
of authorizing the review authority to decline review in the absence of
a reasonable showing that:
(i) A prejudicial procedural error was committed in the conduct of
the proceeding, or
(ii) The initial decision embodies (i) a finding or conclusion of
material fact which is erroneous or clearly erroneous, as the agency may
by rule provide; (ii) a legal conclusion which is erroneous; or (iii)
an exercise of discretion or decision of law or policy which is
important and which should be reviewed.
b. Review Sua Sponte. Normally, a reviewing authority should call up
a case for review sua sponte only where policy issues are involved and
the functions of that authority include the resolution of such issues.
(48 FR 57461, Dec. 30, 1983)
01 CFR 305.83-4 The Use of the Freedom of Information Act for Discovery
Purposes (Recommendation No. 83-4).
The Freedom of Information Act (FOIA) and discovery provide separate
mechanisms for obtaining the disclosure of Government documents. Any
person may invoke at any time the release provisions of the FOIA by
requesting an agency to disclose any reasonably described agency
records. A requester's need for the records and his purpose in making
the request normally do not affect the right to obtain disclosure. The
agency must release the records unless they fall within one of the nine
exemptions specified in the Act. On the other hand, a person may obtain
the disclosure of Government documents through discovery only if he is a
party to a judicial or administrative proceeding and if the procedural
rules governing the proceeding include provisions for discovery. If
both these conditions are satisfied, the party may normally obtain from
the Government through discovery unprivileged documents relevant to the
subject matter of the pending proceeding.
The separate disclosure mechanisms established by the FOIA and by
discovery serve different purposes. Congress' fundamental objective in
enacting the FOIA was to permit the public to inform itself about the
operations of the Government. All members of the public are
beneficiaries of the Act because Congress' goal was a better informed
citizenry. A requester's rights under the Act are therefore neither
diminished nor enhanced by his status as a party to litigation or by his
litigation-generated need for the requested records. Discovery, on the
other hand, serves as a device for narrowing and clarifying the issues
to be resolved in litigation and for ascertaining the facts, or
information as to the existence or whereabouts of facts, relevant to
those issues. In the discovery context, a party's litigation-generated
need for documents does affect the access available to him and may
result in the disclosure to him of documents not available to the public
at large.
Discovery does in fact provide parties to litigation with the more
reliable mechanism for obtaining from the Government the information
which they need to prepare for trial or hearing. Parties to litigation
nevertheless sometimes use the FOIA for discovery purposes because they
hope to obtain the release of additional agency records for use in
litigation, or to obtain the release of records at an earlier time.
Limitations on the availability of discovery explain these uses of the
FOIA. Discovery is a pretrial procedure designed to permit the parties
to a proceeding to prepare for trial or, if possible, to resolve the
controversy without a trial. It is not designed to provide the parties
with the level of access to Government documents furnished to the
general public by the FOIA; and even the most generous rules of
discovery do not always provide the parties with that level of access.
There are several limitations on the Government's disclosure
obligations in the discovery context that account for use of the FOIA as
a supplemental discovery device. First, discovery is normally available
to the parties only after a proceeding has begun and then only for a
short period of time before trial or hearing. Second, it may be used
only to obtain documents that are relevant, or that may lead to
information that is relevant, to the pending action. Recent reform
efforts have sought to keep civil discovery in the federal courts within
reasonable bounds by emphasizing that the purpose of discovery is not
the disclosure of information but the simplification of the matters in
dispute. More specifically, the 1980 and 1983 amendments to the
discovery rules in the Federal Rules of Civil Procedure seek to prevent
''overdiscovery'' by increasing the trial judge's supervisory role.
Less generous discovery is available in criminal proceedings than in
civil actions; and, in some administrative adjudications, no formal
discovery is available at all.
The Conference believes that the use of the FOIA for discovery
purposes is a matter of valid concern to the Government because that
use, unlike other uses of the FOIA, may disadvantage the Government's
position in litigation in several ways. First, a party in litigation
with the Government may obtain the release of agency records without the
knowledge of Government counsel and then seek to use those records to
surprise Government counsel at trial or hearing. Second, a party in
litigation with the Government may disrupt the Government counsel's
trial preparation by seeking, perhaps on the eve of the trial or
hearing, the release under the FOIA of records in the Government's
litigation files. In these cases, the Government counsel must divert
attention from trial preparation in order to prevent a FOIA release to
an opposing party of sensitive, nondisclosable records. Under the FOIA,
unlike in discovery, the Government does not enjoy the protection of a
cut-off date after which no further requests can be made. Third, a
party in litigation with the Government may request production of the
same documents under the FOIA and in discovery, thus necessitating
duplicative searches and releases. In these cases, the Government's
primary concern is not the extra burden imposed on the agency's public
information office in processing the party's FOIA request, but the
burden imposed on counsel representing the Government to protect himself
from duplicative effort and to keep himself informed of the Government
documents obtained by opposing parties.
Some recent proposals to amend the FOIA address the problem by
temporarily denying the use of the FOIA to a party to a pending
administrative or judicial proceeding where the agency records in
question may be requested from the Government through discovery. /1/
The Conference declines to take a position on these proposals, but
prefers to endorse a relatively modest change in the law because the
evidence is inconclusive that a substantial burden to the Government is
caused by use of the FOIA for discovery purposes and because the
proposals raise significant concerns of coverage (i.e., applicability to
proceedings where discovery is limited) and enforceability.
If the FOIA does remain fully available to a party in civil
litigation with the Government, the potential disadvantages to the
Government will be at least partially alleviated by requiring the party
to notify Government counsel of all FOIA requests made by or on behalf
of the party for the purpose of obtaining information for use in that
litigation. Through notice of these FOIA requests, Government counsel
will be able to learn what records the agency is releasing in response
to the requests. This should eliminate any danger of surprise at trial
or hearing. Also, a simple inquiry to the other side or to the agency
FOIA office at the inception of discovery can determine whether the
party made any prior FOIA requests that relate to the litigation.
Advance notice of a party's FOIA requests may also permit Government
counsel to coordinate FOIA and discovery searches for the same records
and to avoid duplicative searches. Counsel will therefore be in a
stronger position to protect his litigation files, although he may still
need to divert his attention from trial preparation in order to assist
the agency's public information office in resisting the disclosure of
exempt records.
Finally, courts have recognized that the FOIA should not be used to
delay judicial or administrative proceedings. 2 The Conference believes
that parties to litigation should not be able to use the FOIA to delay
ongoing litigation in any fashion. Congress, or the courts and the
administrative agencies through exercise of their rulemaking or
decisional powers, may properly provide that pendency of a FOIA request,
or of proceedings related to such a request, should not affect the
progress of litigation to which the requested information may arguably
pertain.
/1/ See, e.g., S. 774, 98th Cong., 1st Sess. (1983).
2See, e.g., the ''DeLorean case,'' United States v. United States
District Court, Central District of California, 717 F. 2d 478 (9th Cir.
1983).
01 CFR 305.83-4 Recommendations
1. Congress should amend the Freedom of Information Act (FOIA) to
require a party to a judicial action or to an administrative
adjudication or formal rulemaking proceeding, to which the Government is
also a party, to notify counsel for the Government promptly of any FOIA
requests made by the party, by his counsel, or by some other person
acting on the party's behalf, during the pendency of the proceeding for
the purpose of securing the release of agency records that may be
relevant to the proceeding.
2. Congress should also provide that, if a party does not comply with
this notice requirement, the court or agency conducting the proceeding
may preclude the party from offering in the proceeding any agency
records released in response to the request.
(48 FR 57463, Dec. 30, 1983)
01 CFR 305.84-1 Public Regulation of Siting of Industrial Development
Projects (Recommendation No. 84-1).
Major industrial development projects often have significant
environmental effects and require permit approvals and preparation of
environmental reviews by agencies under legislation such as the National
Environmental Policy Act (NEPA) and the Clean Air Act. Although
governmental permitting and review processes -- aimed at protecting the
environment, reducing safety risks, and assisting the planning of
livable communities -- necessarily extend the time required to complete
projects, unnecessary delays associated with the complexity of lengthy
processes can have serious negative consequences. Project costs can
rise dramatically over initial estimates, resulting in increased costs
to consumers for the products or services eventually delivered. Project
approval delays have led to pressure to circumvent environmental laws by
means of special legislation for particular projects or types of
projects. The consuming public can further suffer from process delay by
being deprived for substantial periods of time -- and, in cases of
project abandonment caused by delay, forever -- of the benefits of
emerging new technology. The Administrative Conference1 believes that,
when many agencies at different levels of government must approve a
project proposal, the complexity and uncertainty of the process can be
reduced through an appropriate degree of interagency coordination and
the use of adequate procedures.
Many Federal, state, and local agencies must review environmentally
sensitive industrial projects. Project developers need assistance in
determining which agencies must be consulted for project approval, what
permits are required, what applications must be completed, and what
information is need for each application. Developers' informational
needs could be met by a clearinghouse established at the level of
government closest to initial project review.
When relatively few agencies must consider a project application,
agreements can be worked out among the agencies to coordinate agency
review or to resolve jurisdictional or interpretative conflicts. These
agreements can facilitate more timely project review, reduce overlapping
review, decrease uncertainty, and provide for joint State-Federal agency
review of a project.
When many agencies with different responsibilities, distinct agency
missions, and different governing statutes must approve a project
proposal there is a strong need for coordination. Selection of a
coordinating agency early in the application process is desirable to
facilitate the permitting process. The coordinating agency can
facilitate the exchange of information, can encourage more efficient
review, and can reduce the mistrust by scheduling regular face-to-face
meetings among the project developer, governmental agencies, interest
groups, and residents of the community in which a project is to be
located. The coordinating agency often will have permitting duties but
may be a non-permitting body such as the Colorado Joint Review Process.
2 To be effective a non-permitting body must be supported by key
government leaders in the jurisdiction. The coordinating agency may be
a body different from the clearinghouse agency or the lead agency for
environmental review preparation.
Citizens of the community in which a project is to be sited have a
strong interest in the project and will seek information about the
project particularly when it has major environmental effects.
Environmental groups and other members of the public also have similar
interests. Severely limiting legitimate public participation can
unnecessarily increase opposition to a project and can lead to lawsuits
to stop a project. Facilitating public participation can reduce fears
and concerns, can mitigate the not-in-my-backyard attitude of a
community, and can lessen public mistrust of the developer and
government. The public can also contribute useful information to a
project. Developers can allay concerns by sharing information about
their project with the public and can work more effectively by
cooperating with the community in which a project is to be sited.
Public participation at an early stage of agency review ensures that
changes can be made before substantial developer funds are committed to
a specific project design. Public participation can be enhanced when
meetings or hearings are held in the project community and when the
agency designates a public advisor to help citizens understand the
process.
Under the provisions of NEPA and similar state legislation,
environmental reviews often must be prepared by agencies prior to
approving a project application. When both Federal and state
environmental review statutes apply to a project application, preparing
a joint review can reduce duplication and overlap. The approach taken
in the regulations of the Council on Environmental Quality -- in which a
''lead agency'' is designated to coordinate the preparation of an
environmental impact statement -- provides an excellent model adaptable
even when there is no major Federal interest in a project. Early
identification of environmental impacts through the ''scoping of
issues'' process facilitates statutory compliance and allows project
changes by a developer when they are least expensive. Identifying
commenting agencies early in the proces ensures that the concerns of
every agency are addressed in the review. Face-to-face meetings of all
participants in the review process are useful for identifying impacts,
exchanging information, and getting to know the other participants in
the process and their concerns. The lead agency can ensure a more
timely review process by negotiating a decision schedule -- in which a
completion date for each step of the process is agreed upon -- with the
project proponent, other agencies, and representatives of other
identified interested groups. The lead agency can play a major
coordinating role by identifying other agencies, setting up meetings,
organizing the stages of review preparation, and negotiating decision
schedules for each stage.
Developers must file applications in which they provide information
about their project. Developers and agencies may disagree as to what
information is required and how much information is adequate for a
complete application. There may also be uncertainty over procedural and
substantive requirements that must be met. Agencies can assist
developers by specifying in advance the information needed for an
application to be complete and the standards that must be met for a
permit to be approved. The agency can clarify what is required by
holding pre-application meetings with developers. The agency can
resolve informational, procedural, and substantive problems by holding
post-application meetings with the developer. Agencies need adequate
information and full cooperation from developers to make pemitting or
compliance decisions. Duplication, overlap, and paperwork can be
reduced if agencies with joint permit responsibilities for a project
adopt common application requirements, standardized information
requirements, and common procedures such as joint hearings. Sharing of
staff and budgetary resources can make these approaches easier to
implement.
Legitimate concerns are expressed by developers and others that too
much time is required by agencies to review and permit major industrial
projects. Legislatures have reacted by passing time limit statutes that
mandate an agency's preparation of an environmental review or action on
a permit application within a set period of time. 3 When setting a time
limit by statute, a legislature must be sensitive to the agency's needs
by allowing in the statute sufficient time to complete the decision --
including time that may be required for action by other agencies that
have concurrent review responsibilities, by giving the agency adequate
resources, and by allowing the agency flexibility to extend the deadline
for good cause. Agencies often have the most knowledge about how long a
particular type of decision can take, and agencies can specify by
regulation an appropriate time limit. Agency compliance with time limit
statutes can be monitored if the legislature requires agencies
periodically to report their performance under the statute and to
identify any problems encountered in meeting the time limits.
An alternative to mandated statutory time limits is a requirement
that agencies establish decision schedules which set deadlines for the
completion of specific actions (e.g., comment periods, drafting of
required agency reports) within each phase of project review. A
decision schedule is desirable because it is individualized for each
project and because it requires the developer and all responsible
agencies to make commitments to meet the agreed schedule. Commitment by
the developer is crucial since developers can speed up or slow down
development of a project depending upon internal or external economic
considerations. Also some agencies may not be sufficiently committed to
timeliness; if agencies are required to agree to a schedule, they are
more likely to make that commitment.
1Congress requested that the Administrative Conference (ACUS) work
cooperatively with the Advisory Commission on Intergovernmental
Relations (ACIR) toward resolving regulatory conflicts and overlap among
federal, state, and local agencies. ACUS and ACIR were specifically
asked to address the issue of streamlining the permit process based on
approaches that lead to improved intergovernmental cooperation.
Congress was concerned with the complexity and costs associated with the
permit process in the review of energy and port development projects.
Congress expects ACIR and ACUS to work together to assess alternative
ways to resolve intergovernmental problems and conflicts in permitting.
In conducting this joint effort, the agencies have sought and will
continue to seek the input of business, government, and environmental
experts. House Committee on Appropriations, Report on Treasury, Postal
Service, and General Government Appropriation Bill, 1983, H.R. Doc. No.
854, 97th Cong., 2nd Sess. 39 (1982). ACIR has cooperated in the
development of this recommendation, but has not formally adopted the
recommendation at this time.
2The Colorado Joint Review Process (JRP) is an innovative new
approach to coordinating governmental review of energy projects.
Originally part of the Colorado Department of natural Resources, it is
now a wholly separate body, fully supported by the Governor and other
key state officials. The JRP has no permitting responsibilities but
performs a coordinating role and operates on a voluntary basis. A
developer must choose to have its project application accepted into the
JRP. The JRP works with the developer, the public, and all levels of
government to identify affected agencies and permit processes, to
determine what environmental and other issues must be addressed, to
clarify what information is necessary, and to establish a decision
schedule for all governmental review processes that must be completed
for that project. The JRP sponsors periodic meetings with all affected
actors and otherwise seeks to ensure a smoother and more organized
review.
3In Recommendation 78-3 the Conference stated: ''Congress ordinarily
should not impose statutory time limits on an agency's adjudicatory
proceedings. Statutory time limits may be appropriate, however, when
the beneficial effect of agency adjudication is directly related to its
timeliness, as may be true in certain licensing cases or in clearance of
proposed private activity where a delayed decision would deprive both
the applicant and the public at large of substantial benefit.'' 1 CFR
305.78-3, para. 3. These concerns for timeliness are particularly
pertinent here.
01 CFR 305.84-1 Recommendation
These recommendations are directed primarily to Federal, state,
regional, and local agencies that have permitting and environmental
review responsibilities. In addition, many of the time limit
recommendations are directed to Congress and state legislatures. To the
extent statutory changes are necessary to implement the other
recommendations, they are also directed to the appropriate legislative
bodies. 4
4See statement regarding joint ACUS -- A CIR effort in note 1.
01 CFR 305.84-1 a. interagency coordination
1. Clearinghouses should be established at the level of government
closest to initial review of a particular project to provide information
to project developers about applications, agencies to be consulted, and
permitting requirements.
2. Agencies should make agreements to coordinate review of a
particular project, or to resolve jurisdictional or interpretive
conflicts.
3. A coordinating agency should be selected to coordinate
governmental review of projects when many agencies are involved. The
coordinating agency may be either a permitting or a non-permitting
agency.
4. The coordinating agency should schedule regular face-to-face
meetings among developers, agencies, and the public.
5. The Colorado Joint Review Process approach (note 2, supra) in
which a non-permitting agency coordinates project review by all agencies
is one possibility that should be considered.
01 CFR 305.84-1 b. public participation5
1. In order to facilitate approval processes, agencies with
permitting and environmental review responsibilities should solicit and
consider the views of public participants, including citizens of the
community in which a project is to be sited.
2. To make public participation more meaningful, agencies should
develop procedures such as holding local meetings or hearings and
designating public advisors who can provide assistance on procedural
aspects of agency proceedings to participants.
3. Agencies should encourage developers to provide information to the
community about a project application and to be responsive to legitimate
community concerns.
4. Agencies should ensure that public participation occurs at an
early stage of project review and developer planning so that changes in
project design can be made before substantial funds are committed to a
specific project design.
5This part does not overrule or supersede Recommendation 71-6:
Public Participation in Administrative Proceedings (1 CFR 305.71-6).
01 CFR 305.84-1 c. environmental review
1. When several agencies are involved in environmental review
preparation for a single project, a lead agency (Federal, state,
regional, or local, as appropriate) should be designated to coordinate
the activities. The approach taken in the regulations of the Council on
Environmental Quality (40 CFR parts 1500-1508) is recommended, even when
a formal environmental impact statement is not required. 6
2. The lead agency should identify commenting agencies and should
schedule face-to-face meetings of all participants in the review
process.
3. The lead agency should utilize the scoping of issues process to
identify environmental impacts early in the review process before a
draft review is prepared.
4. The lead agency should negotiate decision schedules -- setting
deadlines for completion of scoping, draft review preparation and
comments, final review preparation and comments, and issuance of a
review -- with the developers, all affected agencies, and
representatives of other identified interested groups.
5. When appropriate, agencies should agree to prepare joint
state-federal environmental reviews.
6The Conference is not suggesting that an environmental impact
statement be prepared when none is required by law, but only that, if
environmental review is to involve several agencies, a lead agency be
selected.
01 CFR 305.84-1 d. permit approvals
1. Whenever feasible permitting agencies should specify in advance
what informational, procedural, and substantive requirements will apply
to a particular permit application.
2. Agencies should be available for pre-application meetings with the
project developer to clarify informational, procedural, and substantive
requirements.
3. Within a short period of time after the filing of an application,
agencies should determine whether the application is complete. Agencies
should hold post-application meetings with developers to discuss
procedural, informational, and substantive deficiencies in an
application, and should promptly advise developers of any deficiences
throughout the pendency of the permitting process.
4. Agencies should make clear to developers that the developers must
supply necessary information in an application and that their
cooperation will greatly assist in the permitting process.
5. Whenever feasible, agencies with joint permitting responsibility
for a project should be encouraged to reduce duplication and paperwork
by accepting common applications, by standardizing informational
requirements, by using in one agency proceeding relevant information
developed in the proceeding of another agency, and by adopting common
procedures such as joint hearings.
01 CFR 305.84-1 e. time limits for decisionmaking7
1. Agencies should negotiate a decision schedule with the project
developer, all affected agencies, and representatives of other
identified interested groups within existing statutory deadlines. The
schedule should set a deadline for the completion of specific stages of
project review. The schedule should be contained in an agreement in
which the developer and the agencies make a commitment to meet the
deadlines.
2. If a legislature8 wishes to limit the time available for a
proceeding, it is preferable that the statute require the agency to fix
the time limit by rule, rather than to specify the time limit in the
statute itself.
3. A legislatively mandated time limit should allow an appropriate
amount of time for the type of decision involved, should specify the
consequences of not meeting the time limit, and should provide the
agency with the option of extending the time limit for good cause
explicitly stated.
4. Legislatures should provide adequate resources for agencies to
meet time limit requirements and should periodically review agency
compliance with time limits.
(49 FR 29938, July 25, 1984)
7See generally, Recommendation 78-3: Time Limits on Agency Action (1
CFR 305.78-3), which is consistent with this part.
8As used here, ''legislature'' includes Congress, as well as state,
regional, and local legislative bodies.
01 CFR 305.84-2 Procedures for Product Recalls (Recommendation No.
84-2).
Each year manufacturers recall millions of consumer products --
ranging from toys and household appliances to drugs and autos -- under
an array of Federal health and safety statutes. Most recalls are
undertaken voluntarily, either on the manufacturer's own initiative or
at the urging of a Federal agency with recall authority. The recall
remedy, while a valuable enforcement tool, is also one that is difficult
to implement. A recall must be undertaken promptly if it is to serve
its purpose of preventing injury. Further, to be effective, it must be
implemented in a way that encourages public responsiveness.
For purposes of this recommendation, the term ''recall'' encompasses
a variety of post-sale remedial actions by manufacturers and sellers of
products, including: (1) Notifying consumers of problems or potential
problems with products; (2) offering to repair products; and (3)
offering to refund the cost or to replace products. The recommendation
is based, in part, on a study of the recall programs of three Federal
agencies that account for the great majority of recalls -- the National
Highway Traffic Safety Administration (NHTSA), the Food and Drug
Administration (FDA) and the Consumer Product Safety Commission (CPSC).
1 Each of the three agencies studied has the authority to order at least
one of the post-sale remedial actions noted above. Each is actively
involved in recalls of consumer products that pose health or safety
risks to the general public, instances where the need for effective use
of the recall remedy is the greatest and its implementation is the most
difficult. However, these recall programs differ with respect to
standards for ordering recalls, the scope of the remedy, and
administrative procedures. Some of the differences are statutorily
based; others grow out of varied methods of implementing the programs.
Although all three agencies make extensive use of recalls to
implement their statutes, recalls have certain inherent limitations as
enforcement tools. Consumers can, and sometimes do, render them
ineffective by failing to respond. Further, recalls generally work well
only if they are undertaken promptly and after a minimum of agency
prodding. Recalcitrant firms can often thwart the effectiveness of the
remedy merely by invoking available administrative procedures. There
are a number of reasons for firms to be recalcitrant when faced with a
possible recall. Companies may not enjoy much protection against
product liability claims by recalling defective products -- indeed,
recalls can stimulate additional law suits. Recalls often bring adverse
publicity, and they can be very expensive, requiring refunds or
replacements of products that have already been produced and marketed.
Because recalls often work better than other remedies, however, they
are a major enforcement tool of the three agencies studied. There are a
number of reasons for their popularity. From the agencies' standpoint:
-- Recalls do promote safety. Although response rates are lower
than agencies would like, consumers in significant numbers do return or
discard recalled products or use them more safely.
-- Recalls establish precedents for what constitutes an
unacceptably hazardous product.
-- Recalls operate more quickly and efficiently than most
standard setting. In recall cases, government and industry often share
a sense of urgency that a hazardous product should be removed from the
marketplace. This has led agencies to adopt informal, flexible
settlement procedures which have made it easier for companies to agree
to undertake recalls.
Industry also may prefer recalls to standards as an enforcement tool
because recalls generally affect only the makers of unsafe products
rather than all product manufacturers. Recalls, unlike many standards,
do not impose across-the-board certification requirements and may impose
fewer recordkeeping requirements.
Agencies must reconcile several interests in implementing their
recall programs. They must be sensitive to the potential for consumers
to disregard recalls if the remedy is overused. They must stress
voluntary agreements to achieve prompt -- and therefore effective --
recalls, yet be willing to use their enforcement powers if voluntary
efforts stall. They must be flexible in negotiating the terms of
recalls to encourage voluntarism, yet assure that the notice and remedy
are adequate to inform and protect product owners.
In general, agencies should work together to develop a more uniform
approach to recalls. Despite the differences in the agencies' programs,
they share common characteristics and goals, and they must all deal with
the general public. Agencies could benefit from sharing with each other
what they have learned about recalls, and the public could benefit from
more consistency in the recall programs.
Agencies should also consider publicly classifying their recalls
according to risk to help the public assess the hazards of recalled
products. While this approach may present some problems in negotiating
recalls, it recognizes the important role that the consumer plays as a
partner with government and business in the recall process and the need
to provide that partner with adequate information.
Moreover, additional enforcement tools are warranted for some
agencies. As a practical matter, agencies cannot bring many enforcement
actions, but the availability of these additional powers, and their
occasional use when necessary, can assist agencies in negotiating
voluntary recalls and in carrying out the overall aims of the recall
programs. Even a relatively small number of enforcement actions
ultimately serves the broader aim of encouraging voluntary compliance by
others, and should therefore be streamlined where possible.
Three procedural reforms are recommended for the consideration of
agencies with recall programs. First, such agencies should consider
seeking broader statutory authority to require manufacturers to report
safety defects. A provision similar to section 15(b) of the Consumer
Product Safety Act, which requires reporting of defects that ''could
create'' a potential hazard, would give agencies earlier warning of
defects and reduce their information gathering burden, without changing
the standard for recalls.
The second recommended change would give agencies additional
authority in cases involving serious or imminent safety problems. In
general, if a case must be taken through both administrative and
judicial proceedings, the process may be so lengthy that the recall
could be ineffective, since most of the injuries will have occurred and
the response rate will be low. Therefore, agencies should consider
asking for authority in especially hazardous cases to bypass the
administrative hearing and to seek court-ordered recalls.
The third general reform is based on the premise that the
availability of a variety of enforcement tools, such as court-ordered
seizures and civil penalties, helps to induce voluntary cooperation with
an agency's recall program. Seizure is not always an effective tool,
however, unless the agency is able to detain products administratively
at the point of distribution prior to filing a seizure action. CPSC and
FDA, which have authority to seek court-ordered seizures, should
consider the desirability of detention authority where it would aid
their use of this enforcement tool. FDA should also consider seeking
civil penalty authority for statutory violations where it now only may
seek criminal penalties.
Paragraph B.4 of the recommendation is addressed specifically to the
CPSC. The CPSC enforces four significant safety statutes: the Consumer
Product Safety Act (CPSA), the Federal Hazardous Substances Act (FHSA),
the Flammable Fabrics Act (FFA), and the Poison Prevention Packaging Act
(PPPA). Both the CPSA and the FHSA give the agency the authority to
order recalls, and this has become a favored enforcement tool of the
agency. Under these two Acts, if a voluntary recall is not achieved,
the agency must conduct a formal administrative hearing prior to
ordering a recall. Under the CPSA, the agency may go directly to court
to seek a recall if the product involved is ''imminently hazardous.''
Under the FHSA, the agency may proceed adminstratively against
imminently hazardous products. Neither Act contains a judicial review
provision, with the result that ''non-statutory'' review of agency
recall orders occurs in the United States District Courts. The absence
of a judicial review provision for recall orders under the CPSA and FHSA
should be corrected. Congress should provide for judicial review in the
United States Courts of Appeals under 5 U.S.C. 706.2 This would
eliminate the existing, lengthy, two-tiered judicial review procedure.
The FFA and PPPA omit recall provisions entirely, causing uncertainty as
to the Commission's ability to use recalls against unsafe products
governed by either of these Acts. It would promote recall uniformity
and reduce delay if the Commission could address the risks posed by all
products under its jurisdiction under the procedures of section 15 of
the CPSA.
1Other agencies that engage in product recalls include EPA, FAA, HUD
and USDA.
2See ACUS Recommendation 75-3, The Choice of Forum for Judicial
Review of Administrative Action, 1 CFR 305.75-3.
01 CFR 305.84-2 Recommendations
01 CFR 305.84-2 a. coordination of recall activities
1. Interagency recall liaison group. A group consisting of
representatives from all agencies with recall programs should be
established to inform each other about their programs and to share
research in areas of common interest, such as how to improve consumer
response rates and how to use new technology to improve recall
notification.
2. Recall notices. Recall notices should clearly describe the nature
of the defect and the nature and extent of the risk of harm that prompts
the recall. Individual agencies should consider whether their mission
would be advanced by classifying recalls according to risk. The
interagency liaison group could explore the possibility of coordinating
the classification systems so that the agencies use similar terminology
to designate levels of risk.
3. Improved handling of consumer inquiries and complaints. Consumers
do not always know which agency takes complaints or has information
about recalls. Agencies with recall programs should establish a central
interagency switchboard to take all calls and refer them to the
appropriate agency. As an alternative, agency personnel designated to
receive inquiries or complaints relating to product defects should be
made aware of the recall programs of other agencies, so that inquiries,
or complaints will be referred to the proper office.
4. Publicizing recalls. Each agency should seek to develop a method
of publishing periodically an up-to-date list of active recalls within
the agency's jurisdiction.
01 CFR 305.84-2 b. procedural improvements
1. Agencies with recall programs should consider whether to ask
Congress for authority to require manufacturers to give such agencies
information in their possession about potential safety-related defects
in their products which could create a substantial risk of injury to the
public. Such authority, if granted, should be accompanied by
appropriate incentives for compliance.
2. Agencies with recall programs for defective products should
consider whether to ask Congress for authority to bypass administrative
hearings and to seek court-ordered recalls in cases of serious safety
problems as defined by the relevant statute.
3. Agencies authorized to seek seizures should consider whether to
ask Congress to augment their seizure authority by giving them the power
to detain defective products administratively prior to seizure.
4. Congress should streamline the Consumer Product Safety
Commission's recall authority by amending the Consumer Product Safety
Act (a) to give the Commission specific authority under that Act to seek
recalls of all products within its jurisdiction, including those now
subject to the Federal Hazardous Substances Act, the Flammable Fabrics
Act and the Poison Prevention Packaging Act; and (b) to provide for
judicial review of agency ordered recalls in the United States Court of
Appeals under 5 U.S.C. 706.
5. The Food and Drug Administration should consider whether to ask
Congress for civil money penalty authority as an option where only
criminal penalties are now available. 3
6. The foregoing recommendations are not intended to encourage
agencies to use recalls as a substitute for rulemaking, but merely to
streamline the process of obtaining recalls where appropriate.
(49 FR 29940, July 25, 1984)
3See ACUS Recommendation 72-6, Civil Money Penalties as a Sanction, 1
CFR 305.72-6.
01 CFR 305.84-3 Improvements in the Administration of the Government in
the Sunshine Act (Recommendation No. 84-3).
A. Periodic Agency Review of Sunshine Practices. Members of the
public voice several criticisms of the manner in which agencies employ
the Government in the Sunshine Act and conduct open meetings. Among the
most significant are that meetings are often closed on technical legal
grounds without substantive reason for doing so, that at times
discussion in meetings is inadequate to allow those in attendance to
understand fully the proceedings, and that frequently members of the
public have insufficient access to explanatory materials and underlying
documents to allow them to follow the discussion and comprehend the
content of meetings. At issue is not so much compliance with the letter
of the law as progress toward fuller realization of its general
objective of enlarged, meaningful public access to information. To the
extent that problems exist, they are a function of agency practice and
are appropriately addressed in their particulars on an agency-by-agency
basis.
B. Impact of Sunshine on the Collegiality of Agency Decisionmaking.
The desirability of the collegial form of agency organization, as
opposed to the agency headed by a single executive, has long been the
subject of debate. Congress has, however, chosen to delegate certain
administrative functions to collegial bodies.
One of the most frequently offered justifications for collegial
decisionmaking is that stated by the First Hoover Commission's Committee
on Independent Regulatory Commissions:
A distinctive attribute of commission action is that it requires
concurrence by a majority of members of equal standing after full
discussion and deliberation. At its best, each decision reflects the
combined judgment of the group after critical analysis of the relevant
facts and divergent views. This provides both a barrier to arbitrary or
capricious action and a source of decisions based on different points of
view and experience * * * . The member of the commission must expose
his reasons and judgments to the critical scrutiny of his fellow members
and must persuade them to his point of view. He must analyze and
understand the views of his colleagues if only to refute them.
Though no generally accepted standard for measuring the quality of
agency decisions under the Government in the Sunshine Act has been
devised, one of the clearest and most significant results of the
Government in the Sunshine Act is to diminish the collegial character of
the agency decisionmaking process. The open meeting requirement has
generated reluctance to discuss certain important matters; and
discussions, when they occur, may not contribute to achieving a
consensus position. In some agencies the pattern of decisionmaking has
shifted from collegial exchanges to one-on-one encounters, transmission
of views through staff, and exchanges of memoranda or notation
procedure. The inhibition of collegial exchanges, in turn, impedes the
members in the collective exercise of their responsibilities, and tends
to weaken the role of the collegium vis-a-vis that of the staff and the
agency chairman.
Congress was aware of the inherent and unavoidable tension between
the values of openness in government and collegiality in decision making
when it enacted the Government in the Sunshine Act, and it consciously
chose a result that would maximize openness. Concessions were made in
the statute to the need for maintaining the confidentiality of certain
categories of information under discussion, but few if any concessions
were made to the needs of the deliberative process as such. Although
the legislative history indicates Congress believed that, after the
initial period of adjustment, sunshine would not have a significant
inhibiting effect on collegial exchanges, unfortunately this has not
been the case.
01 CFR 305.84-3 Recommendation
1. Agencies should continually strive to reflect fully in their
activities the basic purpose of the Government in the Sunshine Act,
which is to enlarge public access to information about the operations of
government. Agencies are strongly encouraged to review periodically
their sunshine policies and practices in light of experience and the
spirit of the law for the purpose of making adjustments that would
enlarge public access to meaningful information, such as (a) invoking
the exemptions of the Act to close meetings only when there is
substantial reason to do so; and (b) making open meetings more useful
through comprehensible discussion of agenda items and provision of
background material and documentation pertaining to the issues under
consideration.
2. Under the Government in the Sunshine Act the degree of
collegiality in the multi-member agencies has diminished. Congress
should consider whether the present restrictions on closing agency
meetings are advisable and, if not, how they might best be revised
without undercutting the basic principle of the Act that ''the public is
entitled to the fullest practicable information regarding the decision
making processes of the Federal Government.''
If a new balance is to be struck between the values of collegiality
and openness, the Administrative Conference suggests that agency members
be permitted some opportunity to discuss the broad outlines of agency
policies and priorities (including enforcement priorities) in closed
meetings, when the discussions are preliminary in nature or pertain to
matters, such as budget or legislative proposals, which are to be
considered in a public forum prior to final action.
(49 FR 29942, July 25, 1984)
01 CFR 305.84-4 Negotiated Cleanup of Hazardous Waste Sites Under
CERCLA (Recommendation No. 84-4).
By enacting the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA) in 1980, Congress undertook to provide a Federal
solution for the problem of abandoned and inactive hazardous waste
disposal sites. Approximately 2,000 sites will require action, at a
cost of tens of billions of dollars. CERCLA created a $1.6 billion
revolving ''Superfund'' for direct Federal action to clean up these
sites and respond to hazardous waste emergencies. The Act supplements
this public works authority with provisions for negotiating cleanups by
''potentially responsible parties'' -- site owners and operators and
users of sites such as transporters and waste generators. It also
empowers the Federal government to sue such parties for the cost of
cleanups paid for out of the Superfund and, if waste disposal may
present an ''imminent and substantial endangerment,'' to sue for orders
directing responsible parties to clean up sites themselves. The Act is
administered by the Environmental Protection Agency (EPA).
By early 1984, although EPA had responded to hazardous waste
emergencies at many sites, only a handful of sites listed on a statutory
national priority list by the agency had been completely cleaned up by
the Federal government. A few more sites had been cleaned up by private
parties. The causes of delay were varied: uncertainty about the extent
of the problem and the efficacy of technical remedies; start-up
problems inherent in a new program; and a two-year long effort to
negotiate cleanups so that no Superfund revenues would have to be spent.
By mid-1983, the strategy of conserving the Superfund had fallen apart
amidst a major leadership crisis within the EPA. In a policy reversal,
Superfund expenditures for cleaning up sites then took priority over
other means available under the statute for effecting cleanups.
The current agency approach to CERCLA emphasizes cleanups paid for
out of the Superfund coupled with actions to recover the expenditures
but also relies to a limited extent on negotiated cleanups and on
lawsuits to compel responsible parties to act under CERCLA's imminent
endangerment provision. This strategy has resulted in a CERCLA
implementation effort that is slow and expensive.
Congress, the EPA, responsible parties, and other critics have
suggested several means of speeding up and economizing on site cleanups.
These include enlarging the Superfund, setting program deadlines,
expanding the EPA program offices, empowering citizens to sue, and
encouraging voluntary cleanup by industry. Although enlarging the Fund,
providing more staff, and setting program deadlines would tend to
accelerate the CERCLA effort, the Administrative Conference believes
that a properly designed site cleanup negotiation process, through which
responsible parties or third parties would agree to act directly to
cleanup sites, would also hasten cleanup while reducing its expense by
tapping the technical and financial resources of the private sector.
Involvement of the Federal government and affected citizens in this
process would ensure adequate protection of public health and the
environment.
Although current EPA policy permits the negotiation of cleanups, the
agency puts too little stress on negotiations and has adopted a series
of procedural and substantive requirements that unnecessarily constrict
the number of negotiated cleanup agreements that the agency might
beneficially conclude. The Conference recognizes, of course, that
successful negotiations can only occur when private parties as well as
the Federal government are willing to respond to the problem of
hazardous waste cleanup in good faith. The Conference intends no
criticism of aggressive EPA enforcement efforts where responsible
parties refuse to cooperate.
In this recommendation the Administrative Conference suggests a
series of steps that the EPA might take to encourage and facilitate
greater reliance on negotiated private party cleanups, in those
situations where negotiations have a realistic chance of success.
01 CFR 305.84-4 Recommendation
1. The Environmental Protection Agency (EPA) should emphasize the
negotiation of voluntary cleanups at hazardous waste dump sites. The
negotiation process for any site should include, at an appropriate time
and in an appropriate manner, the key interests, such as Federal, State
and local governments, parties potentially responsible for cleanup
(including site users, site owners and operators, and waste
transporters), and local citizens. Whenever possible, efforts to
negotiate a cleanup agreement should begin well before the commencement
of litigation concerning a site. To increase the likelihood that
negotiations will succeed, the Administrator and other leading EPA
officials, both at headquarters and in the regional offices, should
support the negotiation process, follow its implementation, and be
available to explain specific negotiated agreements before congressional
oversight committees if necessary.
2. Citizens living in the vicinity of or otherwise directly affected
by a site have a substantial interest in some issues related to the
cleanup process -- for example, medical diagnostic testing, relocation
of public service facilities, measures to isolate the site, and the
overall adequacy of the cleanup effort. Their interest in other aspects
of the process, such as the allocation of costs among potentially
responsible parties (or between potentially responsible parties and the
government) is more problematic. EPA should consider means beyond
complete reliance on local political institutions for involving these
citizens, including the negotiation of collateral arrangements,
participation of citizens' groups in negotiations over the type and
scope of the remedy, and the like. Even if not participants, local
citizens ordinarily should be permitted to observe those aspects of the
negotiations that concern them.
3. Many negotiations can be conducted by EPA without outside
assistance. In other cases, where outside assistance is desirable, EPA
should encourage efforts by independent mediating organizations or
individuals to convene negotiations. This can be accomplished by asking
such a convenor at an early stage -- no later than the commencement of
''remedial investigations and feasibility studies'' (a statutory cleanup
stage) -- to determine whether conditions are favorable for negotiations
at a site. Favorable conditions include: Issues that are ripe for
decision; absence of fundamental conflict about values among those with
a stake in the outcome; adequate representation and organization of key
interests; opportunity for mutual gain for those with a stake; a
balance of power among participants; willingness to bargain in good
faith and share information; and willingness of units of government to
participate as equal parties. Where negotiation appears feasible, the
convenor should attempt to organize a site negotiation group from among
the parties with a stake in the site cleanup. If an initial meeting of
the parties is successful, the participants should consider retaining
the convenor or another person to serve as mediator for the duration of
negotiations. EPA should consider using Superfund resources to support
an entity, such as a non-profit corporation or another agency, that
would undertake this initial convening effort and provide mediation
services if the parties desired them. Alternatively, EPA should
consider providing these services through personal service contracts
with skilled mediators.
4. In order to take advantage of private funds and expertise while
they remain available, EPA should encourage and participate in
negotiations for cleanup of sites where there is a high likelihood of
successful negotiations, even if they have not yet been allocated
Federal funding for remedial investigations or been added to the
National Priority List, unless such negotiations will distort the
agency's priorities by diverting substantial agency resources or causing
undue delay.
5. EPA should avoid wasting agency resources on unproductive
negotiations by establishing, with the concurrence of other negotiating
parties, reasonable deadlines for the conclusion of negotiations.
6. Successful negotiation requires that participation by all
interests by through persons who, if not principals, have the confidence
of, and easy access to, principals with the authority to make binding
commitments. For EPA, the negotiators or persons readily accessible to
the negotiators should have explicit, broad delegated authority to
commit the agency to a negotiated outcome. To the extent that peer
review and approval of agreements within the agency are nonetheless
required, EPA should provide expedited means for obtaining them. One
method of achieving this end would be for EPA headquarters to
consolidate review of negotiated cleanups in a single panel of key
officials.
7. The final agreement should take the form of an administrative
consent order under section 106 of CERCLA or a judicial consent decree.
Like other parties to the agreement, EPA should bind itself to undertake
appropriate actions and follow agreed-upon schedules.
8. Negotiations undertaken in the context of litigation require
procedures and standards different from the procedures and standards
applicable to negotiations occurring before a matter reaches litigation.
EPA should acknowledge that existing agency guidance memoranda on
''case settlement policy'' are appropriate for use only in litigation
situations; to implement the proposed negotiation process, the agency
should prepare new guidance memoranda that bring more appropriate
factors to bear on prelitigation negotiations.
9. The Conference recognizes EPA's need to maintain a strong
litigation posture in CERCLA cases in order to strengthen its ability to
negotiate agreements in the public interest. However, the Conference
also urges the agency to consider the possible advantages of greater
flexibility in situations where cleanup arrangements are being
negotiated rather than litigated. For example, in some cases it might
be desirable for EPA to begin to negotiate even if 80% of cleanup costs
has not been offered or to agree with the parties about the amounts of
their individual responsibilities to pay cleanup costs even if the total
responsibility adds up to less than 100 percent of cleanup costs
(allocating Superfund resources to pay for the rest), as an incentive
for cooperating parties to join promptly in an agreement. The
intransigence of a few responsible parties should not be permitted to
block agreement with others prepared to accept reasonable shares of
responsibility; moreover, such partial agreements may free agency
resources to pursue the intransigent parties.
10. Although the Conference believes that its recommendation can be
implemented without additional legislation, it acknowledges that the
effectiveness of expanded reliance on negotiated cleanups would depend
upon the degree of support or opposition from relevant congressional
committees. If EPA undertakes efforts to clean up dump sites through a
negotiation process like that described in this recommendation,
congressional committees should support and encourage these efforts,
recognizing that negotiated solutions inevitably involve compromises.
11. To promote achievement of its site cleanup management objectives,
EPA should publish statements of its CERCLA policies, such as conditions
for undertaking voluntary cleanup negotiations, procedures for public
involvement in site cleanup decisions, and site study criteria, in the
Federal Register and allow for public comment.
(49 FR 29942, July 25, 1984)
01 CFR 305.84-5 Preemption of State Regulation by Federal Agencies
(Recommendation No. 84-5).
States have the power to regulate many forms of conduct. Each state
must have broad power to regulate in ways that it believes to be in the
best interests of its citizens, subject to the limitations stated in the
federal and state constitutions. The nature and magnitude of the
problems that require regulatory action vary substantially among the
states, and state governments are normally in a better position than the
federal government to determine the types of regulations that will serve
the interests of the states' citizens. States sometimes have an
incentive, however, to impose regulations that advance state interests
at the expense of other states' interests or of national interests.
Federal courts have applied the Commerce Clause to limit state power
to affect national interests only in those few cases where the state
action clearly discriminates against interstate commerce or protects
in-state economic interests from out-of-state competition.
Institutionally, however, courts are ill-suited to attempt to limit
state power to harm national interests when state regulation furthers
in-state interests of one type while it simultaneously frustrates a
national interest of a different type.
Congress can limit state power to harm national interests by (i)
expressing in a statute a congressional intent to occupy a field
completely, (ii) explicitly preempting the specific type of state
regulation at issue, or (iii) imposing a Federal regulatory duty
directly in conflict with a duty imposed by a state. The conflict,
delay, and uncertainty of outcome that occurs when preemption questions
must be resolved by the judiciary can be avoided if Congress addresses
preemption issues clearly and explicitly when enacting regulatory
statutes. The congressional agenda is so crowded, however, that
Congress cannot be expected to consider explicitly and in detail all of
the forms of state regulation that may harm the national interest.
Congress experiences particular difficulty anticipating and resolving
directly the many arguable conflicts between the national interest and
new state regulations issued in the aftermath of a Federal decision to
deregulate an area of conduct.
Because of the limited ability of Congress and the judiciary to act
as checks on state regulation that harms the national interest, states
possess, in practice, the power to make regulatory choices that produce
net benefits within the state but that produce substantial net
detriments on a national level. Without an additional Federal
constraint on state regulatory power, states can be expected to regulate
in this manner frequently.
Federal agencies can play a valuable role in supplementing judicial
and congressional constraints on state regulation. Courts regularly
affirm federal agency actions that preempt state regulations when the
preemptive effect of the Federal action is no broader than can be
justified by the evidence of need for preemption. Federal agencies
sometimes consider preemption of a state law or regulation, however,
without providing affected states notice and an opportunity to
participate effectively in the agencies' proceedings.
A Federal agency considering a regulatory action -- whether to expand
or reduce regulatory constraints -- should be sensitive both to the need
to preempt state laws that seriously disrupt the Federal program, and to
the need to take into account the states' special needs and
circumstances.
01 CFR 305.84-5 Recommendation
1. Congress should address foreseeable preemption issues clearly and
explicitly when it enacts a statute affecting regulation or deregulation
of an area of conduct.
2. Each Federal agency should establish procedures to ensure
consideration of the need to preempt state laws or regulations that harm
federally protected interests in the areas of regulatory responsibility
delegated to that agency by Congress, and each agency should clearly and
explicitly address preemption issues in the course of regulatory
decision-making. Particularly in the circumstances where a Federal
regulatory program is being reduced or eliminated (deregulation), an
agency needs to be alert to the form and magnitude of state regulation
that may exist -- or may be quickly adopted to fill a perceived void
left by the diminished Federal regulation.
3. When a Federal agency foresees the possibility of a conflict
between a state law or regulation and federally protected interests
within the federal agency's area of regulatory responsibility, the
agency should, when practicable, engage in informal dialogue with state
authorities in an effort to avoid such a conflict.
4. When a Federal agency proposes to act through agency adjudication
or rulemaking to preempt a state law or regulation, the agency should
attempt to provide all affected states, as well as other affected
interests, notice and an opportunity for appropriate participation in
the proceedings.
(49 FR 49838, Dec. 24, 1984)
01 CFR 305.84-6 Disclosure of Confidential Information Under Protective
Order in International Trade Commission Proceedings (Recommendation No.
84-6).
This recommendation concerns the protective orders practice of the
United States International Trade Commission in antidumping and
countervailing duty proceedings. Under the Trade Agreements Act of
1979, the Commission has authority to release to counsel, under
protective order, certain confidential business and financial
information that is submitted to it by parties in such proceedings.
The export to the United States of goods at less than their fair
value (called ''dumping'') and the subsidization by foreign governments
of exports of their countries' products to the United States are treated
by American law as unfair methods of international trade. If dumped or
subsidized imports are found to cause or threaten material injury to an
industry in the United States, the Tariff Act of 1930, as amended by the
Trade Agreements Act of 1979, provides for imposition of a duty in an
amount intended to offset the margin of dumping or subsidy. There must
be two determinations: (1) Whether the imports in question have been
dumped or subsidized, which is decided by the International Trade
Administration of the Department of Commerce (''ITA''), and (2) whether
the imports are causing or threatening injury to an industry in the
United States, which is decided by the International Trade Commission
(''ITC'').
The injury proceeding at the ITC is substantially the same for both
types of cases, known respectively as antidumping and countervailing
duty proceedings. The ITC conducts a preliminary investigation in which
it must determine within 45 days whether there is a ''reasonable
indication'' that the injury test will be met. If its determination is
negative, the entire antidumping or countervailing duty proceeding
(including the portion conducted by the ITA) is terminated. If the
ITC's determination is affirmative, and the ITA has made an affirmative
determination that the imports are being dumped or subsidized, the ITC
conducts a final investigation to reach a determination, which usually
must be made within 120 days, whether the imports are threatening or
causing injury to an industry in the United States.
In both stages of the proceeding, the ITC gathers extensive
information from American producers, importers, and purchasers of the
products in question. The Trade Agreements Act of 1979 authorizes the
ITC to make available, under protective order, confidential business
information that it has received in these proceedings. Under this
authority, the ITC releases the confidential data of one party to
counsel for other parties. In almost all cases those other parties, to
whose counsel the confidential information is disclosed, are business
competitors of the party that submitted the information. The only
companies whose confidential information is disclosed are those American
companies that complain of injury from the alleged unfair import
practices. Confidential data concerning their prices and cost of
production can be released to counsel for both their domestic
competitors and their foreign competitors. In addition, all
confidential information submitted to the ITC, regardless of the
submitter's identity, may ultimately be disclosed, under judicial
protective order, in proceedings to review ITC determinations before the
Court of International Trade (''CIT'').
Throughout its proceedings, the ITC devotes great care to maintaining
the security of confidential business information which is submitted to
it or is gathered in its investigations. Agency regulations provide
procedures for requesting confidential treatment of proffered
information, and the staff in practice accords confidential treatment
without specific request to information acquired in response to
questionnaires and other investigative inquiries. The record of each
antidumping and countervailing duty injury proceeding is divided into
public and nonpublic sections. Pleadings, staff documents, and ITC
opinions are prepared and submitted under procedures designed to avoid
the public disclosure of confidential information.
The principal concern here is not with the agency's internal
procedures, but with the potential misuse of parties' information which
has been received under protective order by lawyers or other parties. A
particular concern is that such information will, willfully or
inadvertently, be passed along by a lawyer to his client, who then can
make competitive use of it against the American company that submitted
it. Though there is little hard evidence of such improper disclosure,
there is much suspicion that it occurs. It is believed that the
perceived risk of wrongful disclosure generates a chilling effect which,
by discouraging voluntary submission of essential information, hampers
the International Trade Commission's ability to do its job. The ITC's
responsibility is to determine whether the allegedly unfair imports are
threatening or causing ''injury'' -- not simply injury to individual
American companies as such, but injury to the entire ''industry''
affected by competition from the imports. If American companies fear
that their confidential business data will leak to their competitors,
and for that reason refuse to submit such information, the Commission
will be unable to assemble the complete industry figures it needs for a
soundly-based determination of injury. Although the agency has the
power to subpoena the necessary information, the short statutory
deadlines it must meet and its own limited resources to procure
enforcement of subpoenas make heavy reliance on voluntary cooperation a
practical necessity.
Another area of concern arises from the circumstance the existing ITC
practices do not adequately inform submitters of information of the high
likelihood that confidential price and cost of production information
will be disclosed, nor of the possibility that other confidential
information may be disclosed, without further warning, in review
proceedings before the CIT.
These recommendations propose that the ITC (and, in one case, the
CIT) establish a series of measures intended to reduce the risks of
disclosure, protect submitters and safeguard the process of making
disclosure of price and cost of production data. In some circumstances,
these measures would preclude disclosures that are now permitted. No
recommendation is made to reduce the categories of information that are
required by statute to be disclosed. Indeed, the ITC might
appropriately consider some enlargement of the classes of information it
will release under protective order to facilitate more meaningful
analysis of the information now disclosed. Any broader disclosure
should be accompanied by the safeguards herein recommended, and should
be provided only if the Commission's investigative and decisional
processes will clearly be improved thereby.
01 CFR 305.84-6 Recommendations
01 CFR 305.84-6 A. Limiting the Exposure of Confidential Information
1. The International Trade Commission should provide for the
disclosure of confidential information during the preliminary
investigation phase of its antidumping and countervailing duty injury
proceedings only in circumstances in which disclosure is important to
achieving the limited purposes of the preliminary investigation itself.
2. Confidential information submitted by a domestic producer party
should not be disclosed to counsel for any other domestic party (except
a United States importer which is an interested party within 19 U.S.C.
1677(9)(A)).
3. The Commission by regulation or policy statement should define and
specify the kinds of data which are disclosable as ''information
concerning the domestic price and cost of production of the like
product.''
01 CFR 305.84-6 B. Protection of Submitters' Interests
1. The Commission's questionnaires should more clearly inform
petitioners and supporters of the petition about the likelihood that
their confidential price and cost of production information (whether
submitted in response to the questionnaire or otherwise) will be
disclosed by the Commission under protective order to counsel for
competitors of the submitter.
2. The Commission's questionnaires and other inquiries, by which
confidential information is requested from parties and nonparties,
should be accompanied by a statement that all such information of
whatever kind (not merely that in the price and cost of production
categories) is subject to disclosure by the Court of International
Trade, under protective order, to counsel for any party to a judicial
review proceeding involving such information.
3. Although in practice the Commission does not require the
submitters of responses to questionnaires and follow-up inquiries to
make specific request that the information submitted be treated as
confidential by the Commission, its regulations (19 CFR 201.6) do
require such a specific request. The regulations should be modified to
reflect the practice.
4. The Commission's regulations should be conformed to 19 U.S.C.
1677f(b), which requires the Commission to treat as confidential any
information so designated by the submitter, unless the Commission
requests an explanation and is unpersuaded by it, in which event it must
return the information to the submitter.
5. The Commission should establish by regulation an informal
procedure whereunder the submitter may object to disclosure of its
information under protective order, except in cases of extraordinary
urgency. Commission regulations should also provide that, when the
submitter is given notice of an application for disclosure of its
information, it also be advised specifically of the procedures
whereunder it may object.
6. With respect to a requirement that the requester show a need for
confidential information before it can be released under protective
order, for the ordinary case the Commission should continue its present
practice whereunder a simple statement of need, rather then a showing of
need, suffices. Where extraordinary sensitivity or other unusual
considerations are demonstrated by the submitter, the Commission should
require an actual showing of substantial need before releasing the
information. The Commission's regulation (19 CFR 207.7(a)), which
purports to require the requester to ''demonstrate( ) a substantial need
for the information in the preparation of his case'' in all instances,
should be modified accordingly. In all cases the statement of need
should be accompanied by a statement of the requester's intent to
participate actively in the proceeding.
7. The Court of International Trade should seek to provide in
proceedings for judicial review of ITC injury determinations in
antidumping and countervailing duty cases, that nonparty submitters be
given notice and a meaningful opportunity to object to the release under
protective order of any confidential information which they had
submitted to the International Trade Commission.
01 CFR 305.84-6 C. Counsel's Responsibilities Under Protective Orders
The Commission's regulations and protective orders should provide by
specific language that the attorney who has received information under
protective order may be personally liable to sanctions (1) for a breach
of the protective order by other persons -- such as attorneys, experts,
and support staff working on the case -- to whom the attorney, under the
authority of the protective order, has divulged the confidential
information or (2) where the attorney has been shown to have been
negligent in the custody of such information and unauthorized disclosure
has resulted.
01 CFR 305.84-6 D. Possible Broader Disclosures
1. Confidential price and cost of production information submitted to
the Commission by importer and foreign parties to the investigation
should be made available under protective order to counsel for domestic
parties to the investigation, or at least to those who support the
petition.
2. The Commission should consider disclosing under protective order
further kinds of confidential information pertaining to price and cost
production, beyond what is now disclosed, to the extent such further
information can facilitate more meaningful analysis of the kinds of
information that are now disclosed.
3. The Conference takes no position on whether or not the Commission
should consider disclosing confidential information in categories other
than price and cost of production. If the Commission does consider such
disclosure, it should make such disclosure only (a) in categories where
party analysis of such information is likely to assist the Commission's
investigation without impeding its fulfillment of statutory deadlines,
(b) in cases in which the requester shows a substantial need for access
to the information and (c) under additional safeguards including as
appropriate those recommended herein.
(49 FR 49838, Dec. 24, 1984)
01 CFR 305.84-7 Administrative Settlement of Tort and Other Monetary
Claims Against the Government (Recommendation No. 84-7).
In the Federal Tort Claims Act and dozens of other statutes, /1/
Congress has authorized agencies to provide compensation for losses
occasioned by a variety of agency actions. The FTCA, the centerpiece of
this array, essentially waives the government's sovereign immunity to
damage actions arising out of the negligent or otherwise wrongful acts
committed by Federal employees while acting within the scope of their
employment. Previously Congress had been burdened by numerous private
bills to redress government torts. The FTCA sought initially to shift
to the courts primary responsibility for determining whether redress was
warranted. In 1966 the FTCA was amended to transfer much of that load
to agencies. At that time, Congress required claimants to present
claims to the responsible agency as a prerequisite to suit and gave the
agency a minimum of six months in which to act upon them. The agencies
were also given an unprecedented degree of settlement autonomy. The
FTCA requires that the exercise of this authority be ''in accordance
with regulations prescribed by the Attorney General,'' but does not
subject it to detailed procedural mandates apart from the requirement
that the Department of Justice approve large settlements.
This relatively inconspicuous administrative process has taken on
considerable significance in dealings between agencies and individual
claimants, and could gain even more if Congress acts to displace suits
against individual Federal officials by an expansion of the government's
liability under the FTCA. /2/ Available information suggests that the
administrative process resolves a high proportion of claims worth paying
at the same time as it exposes the unmeritorious character of many of
the thousands of claims filed annually. In both ways, it effectively
replaces litigation with a largely informal, relatively open, and
potentially nonadversarial means of dispute resolution.
Although the present system seems generally to be serving Congress'
purposes, it has not been without difficulties. In particular, the
extent to which administrative settlement should be taken as an
autonomous dispute resolution process, is unclear. In some agencies the
claims officer approximates a neutral decisionmaker, objectively
appraising something in the nature of an inchoate entitlement. Other
agencies view their claims officers as adversaries of the claimant
engaged in tactical maneuvers that are preludes to litigation or to
bargaining for a financially advantageous settlement of sustainable
claims.
The Conference, though not recommending any radical restructuring of
the agency claims process, believes that this ambiguity has sometimes
produced undesirable results. Inappropriately adversarial responses to
technical deficiencies, restrictive policies on information disclosure
in connection with pending claim, and less than fully fair and objective
approaches to determining the merits and monetary value of a claim do
not serve the purposes of the FTCA, nor do they enhance confidence in
claims officers' determinations. Claimants, who may obtain a trial de
novo before a Federal judge after a wait of only six months, are finding
the judiciary to be increasingly sympathetic, perhaps in part because
some of the judges doubt the fairness and efficiency of some of the
agencies' claims handling. To further administrative effectiveness, the
Conference recommends the following fine-tuning of the FTCA, of certain
agency practices, and of the Department of Justice's regulations.
/1/ ''Meritorious claims'' statutes allowing agencies to entertain
some kinds of claims even where no fault can be shown, include the
Military and Foreign Claims Acts and statutes covering certain actions
of the Departments of Agriculture and Justice, NASA, the NRC, the Peace
Corps, and the Postal Service. Other ancillary statutes, like the Suits
in Admiralty Act, Public Vessels Act, Copyright Infringement Act,
Trading with the Enemy Act, and Swine Flu Immunization Act, complement
the FTCA, for instance by addressing claims likely to be exempt from
that Act.
/2/ See ACUS Recommendation 82-6, Federal Officials' Liability for
Constitutional Violations.
01 CFR 305.84-7 Recommendations
01 CFR 305.84-7 A. Agency Exercise of Settlement Authority
1. Providing Guidance to Claimants. (a) Agency claims officers, as
part of their duties, should take reasonable steps to save a claimant
who has come forward with a potentially deserving claim from innocently
failing to perfect a valid statutory demand, committing technical error,
or running afoul of a statute of limitations. Among other things,
claims officers should promptly advise claimants of formal deficiencies
so as to give claimants an opportunity to cure them. Further, in the
case of deficiencies relating solely to the requirements of the Attorney
General's or agency's regulations, as opposed to jurisdictional
requirements of the FTCA itself, the agency should consider extending
the claimant an opportunity to cure such deficiencies for a reasonable
time beyond the ordinary limitations period.
(b) Each agency General Counsel's office should compile and publish
in the CFR a list briefly describing statutes under which the agency is
authorized to entertain monetary claims and the name and telephone
number of the agency personnel in charge of each program. In
appropriate circumstances, claims officers should make a copy of the
list available to claimants.
2. Filing the Claim. (a) The Attorney General should amend his
regulations to treat an FTCA administrative claim as still timely though
received after expiration of the statute of limitations, provided that
the claimant can demonstrate that he or she sent it by an ordinarily
effective means of delivery before expiration of that period.
(b) Agencies should require claims officers to advise claimants that
the absence of a sum certain for all categories of claims may preclude
their consideration by both agency and court, and that, subject to
timely amendment and the existing statutory exceptions, the amount of
the administrative claim constitutes a ceiling on the damages that may
later be sought in court.
3. Substantiation of Claims. Where exchanges with a claimant reveal
an insufficiency of information submitted in support of the claim,
agency claims officers should promptly and clearly advise the claimant
whether the continued nonproduction of designated information will, in
the officer's view, warrant dismissal of the claim as invalid because of
incomplete documentation.
4. Access to Information. Agencies should endeavor, particularly
when a claimant seeks access to his or her claim file or to other
information relating to a pending claim, to promote a mutually free and
open exchange of relevant information. Agencies should consider release
even when applicable statutes would not require it if more extensive
disclosure might advance settlement. Specifically, agency claims
officers should not routinely regard the information they assemble in
connection with an administrative tort claim as falling within the
government's executive privilege for deliberative materials, or the
attorney-client, expert witness, or qualified attorney work product
privileges, and in appropriate circumstances claims officers should be
prepared to disclose information falling within those privileges.
5. Claims Decisions. (a) Agencies should give a brief statement of
the grounds for denial whenever an FTCA or other claim is rejected.
(b) An agency claims officer's ultimate goal should be a fair and
objective assessment of the merits of a claim and of its monetary worth.
In addition, the Department of Justice should not exercise its
statutory approval authority over large administrative settlements in a
manner that would tend to discourage claims officers from making serious
efforts to reach a fair and objective settlement with a deserving
claimant.
6. Reconsideration. (a) Claim denial letters should inform claimants
that they may request the agency's reconsideration of its denial, and
that such a request extends the six month waiting period before suit may
be filed in federal district court.
(b) In cases where the claimant communicates with the claims officer
following final denial, the officer should promptly indicate whether or
not, in his or her view, the communication constitutes a request for
reconsideration and state specifically the procedural implications of
that determination.
01 CFR 305.84-7 B. Statutory Changes
1. Congress should conduct a comprehensive reexamination of the
meritorious and other ancillary claims statutes in force to ensure that
each is warranted and that, together, they form a coherent whole both on
their own terms and in relation to the FTCA. Congress should
systematically raise ceilings on all agency authority to settle claims
where inflation has rendered obsolete the present levels.
2. Congress should amend 28 U.S.C. 2401(b) to provide that, where a
claim has been filed with the wrong agency in a timely manner and
transferred to the appropriate agency, the original date of filing will
be used for determining timeliness. To help ensure that agencies have
an adequate and predictable length of time to investigate and consider
claims, Congress should provide that the six-month period given the
agencies for that purpose not commence until the claim has been received
by the appropriate agency.
3. Congress should further amend 28 U.S.C. 2401(b) to provide that,
where an otherwise timely damage action against a person for whose
tortious conduct Congress has made the federal government exclusively
liable is converted into a suit against the government under the FTCA
and then dismissed for failure to file a prior administrative claim, the
plaintiff shall have 60 days from the date of such dismissal or two
years from the date the claim arose, whichever is later, in which to
file such a prior claim.
(49 FR 49840, Dec. 24, 1984)
01 CFR 305.85-1 Legislative preclusion of cost/benefit analysis
(Recommendation No. 85-1).
Cost/benefit analysis1 may ordinarily be applied by an agency to a
regulatory action, except when Congress has forbidden its use or has
specified, in the authorizing legislation, the precise regulatory
outcome Congress desired. Any legislative directive short of complete
specificity, however, can lead to disputes as to whether Congress
intended -- or even contemplated -- the application of cost/benefit
analysis by the agency in the agency's adoption of legislative rules to
carry out the program. Disputes about the agency's authority can
undermine the regulatory program, and may last for decades, only to be
resolved, and then perhaps only temporarily, in a judicial -- rather
than a legislative -- forum. Protracted disputes over an agency's
authority to apply cost/benefit analysis can be largely avoided by
direct congressional attention to the matter.
1The term ''cost/benefit analysis'' is used here to include all forms
of analysis (cost/benefit, cost effectiveness, risk/benefit, etc.) in
which the potential costs, benefits, and risks of a proposed action,
along with possible alternative courses of action, are quantified if
feasible and appraised in relation to one another. See Recommendation
79-4.
01 CFR 305.85-1 Recommendation
When enacting regulatory legislation, if Congress intends to prohibit
the application of cost/benefit analysis by the agency charged with
administering the regulatory program, Congress should explicitly so
state.
(50 FR 28363, July 12, 1985)
01 CFR 305.85-2 Agency procedures for performing regulatory analysis of
rules (Recommendation No. 85-2).
Since 1974 executive branch agencies have been subject to a series of
Presidential executive orders that required agencies to prepare
comprehensive impact analyses for major rulemaking proposals. Variously
termed ''inflation impact statements,'' ''regulatory analyses,'' and
''regulatory impact analyses,'' these analyses were all designed to
identify or measure the costs and benefits of rulemaking options being
considered by Federal administrative agencies. Congress also has
imposed impact analysis requirements on administrative agencies through
the National Environmental Policy Act of 1969, the Regulatory
Flexibility Act of 1980, and by amendments to authorizing statutes for
particular agencies.
The regulatory analysis function has become increasingly formalized
within agencies as a result of the proliferation and durability of these
requirements. This Recommendation is based on a Conference study of the
ways agencies have incorporated the regulatory analysis function into
their decisionmaking process. A general conclusion from this study is
that regulatory analysis can be a useful device in rulemaking if it is
taken seriously by upper level agency decisionmakers; the regulatory
analysis function is effectively integrated into the rulemaking process,
and the limitations of regulatory analysis are recognized by those who
rely upon it.
The Recommendation contains specific advice on the use and limits of
regulatory analysis and on integration of regulatory analysis into the
agency rulemaking process. Unless expressly so stated, the
Recommendation is not intended to address application of the Freedom of
Information Act to agency records used in regulatory analysis. In
particular, it is not intended to expand or decrease the statutory
protections afforded trade secrets and commercial or financial
information obtained for use in regulatory analysis.
01 CFR 305.85-2 Recommendation
01 CFR 305.85-2 1. The Use of Regulatory Analysis to Identify Options
Regulatory analysis1 can be most useful to agency decisionmakers in
identifying regulatory options if the regulatory analysis function is an
integral part of the agency decisionmaking process. To make regulatory
analysis a more effective device for identifying options, agencies
should adopt the following practices:
a. When an agency begins intensive information-gathering and other
analytical efforts on a rule, the agency's technical staff and
regulatory analysts should attempt, at an early stage, to identify a
broad range of regulatory options.
b. Agencies should experiment with a phase system of reducing
options. Under a phased system, the agency initially should identify as
large a number of options as it can for brief study. As options are
considered and rejected, the remaining options should be analyzed with
increasing thoroughness. As resource constraints preclude further
consideration of an option, the agency should list the option in its
regulatory analysis document and explain briefly why the option did not
warrant further study.
c. Although the extent to which options are identified and analyzed
in regulatory analysis documents is largely a matter for individual
agency management, regulatory analysis documents normally should attempt
to identify and analyze several realistic regulatory options.
1The following definitions are used in this recommendation:
''Regulatory analysis'' is a comprehensive analysis of the economic,
social, and environmental impacts of one or more alternatives for
addressing a problem undertaken in connection with an agency rulemaking
effort. A regulatory analysis may include or be separate from an
environmental impact assessment of a rule prepared in compliance with
the National Environmental Policy Act of 1969.
A ''regulatory analysis document'' is a written regulatory analysis,
whether drafted to comply with Executive Order 12,291, the Regulatory
Flexibility Act, or other statutes and executive orders. Regulatory
analysis documents also may include similar documents which, though not
required by statute or executive order, are prepared to comply with
agency regulations or directives stating that the agency intends to
treat the documents as regulatory analyses. The term ''regulatory
analysis document'' is intended to include only final analyses prepared
in connection with a proposed or a final rule.
A ''regulatory analyst'' is an agency employee who prepares the whole
or part of a regulatory analysis. Regulatory analysts often are
economists or policy analysts by training, and they often are assigned
to a separate institutional unit within an agency.
The ''technical staff'' is composed of agency employees within a
program office who conduct investigations, prepare technical support
documents, and often draft preambles and recommended language for
proposed and final agency rules. When a member of the technical staff
is assigned to perform a regulatory analysis, he or she then is both a
regulatory analyst and a member of the technical staff.
01 CFR 305.85-2 2. Integrating Regulatory Analysis Into the
Decisionmaking Process
a. Timing of Analytical Input. If regulatory analysis is to be used
in a rulemaking, the agency decisionmaking process should be structured
to involve agency regulatory analysts early in the evolution of the
rule, before alternatives have been eliminated. Regulatory analysis
should not be used to produce post hoc rationalizations for decisions
already made, nor should it be allowed to unduly delay rulemaking
proceedings.
b. Communicating Policy to Regulatory Analysts. Regulatory analysis
can be a valuable tool for communicating policy within regulatory
agencies because a primary function of regulatory analysis is to measure
regulatory options against agency policy goals. Upper level
policymakers in agencies should provide clear guidance to subordinate
decisionmaking units (such as steering committees and working groups) on
the policies that should guide the agency in choosing among options in
individual rulemaking proceedings.
c. High Level Involvement at Important Decisionmaking Junctures.
Because of the different prespectives of an agency's regulatory analysts
and its technical staff, disagreements over appropriate agency policy
will often result when both staffs are relied upon in the decisionmaking
process. The agency should adopt procedures that will encourage
resolution of such disagreements at important decisionmaking junctures
at a high policy level.
d. Regulatory Analyst's Role in Responding to Comments. When an
agency solicits public comment on a regulatory analysis document or on
provisions of a proposed rule that are supported by the regulatory
analysis document, the agency should structure its decisionmaking
process to ensure that the agency's regulatory analysts participate in
developing the agency's response to the public comments.
e. Intragovernmental Comments. Agencies should palce in the public
file of the rulemaking proceeding any material factual information (as
distinct from indications of governmental policy) from other agencies
that is directed to the contents of regulatory analysis documents. See
ACUS Recommendation 80-6 (1 CFR 305.80-6).
f. Public Availability of Regulatory Analysis Documents. Agencies
should make regulatory analysis documents available to the public when
they publish proposed and final rules in the Federal Register, even if
the Freedom of Information Act's exemption for intra-agency memoranda, 5
U.S.C. 552(b)(5), might apply to portions of the documents. As
appropriate, agencies also should prepare brief summaries of regulatory
analysis documents and make them available to the public and appropriate
congressional committees. The summaries should contain tables, charts,
and other devices, as needed, to make the information contained in the
regulatory analysis documents understandable.
01 CFR 305.85-2 3. Use of Regulatory Analysis Where Not Required or
Where Options Are Foreclosed
a. Regulatory analysis documents should identify the costs and
benefits of reasonable options, even if the agency may lack the
statutory authority to implement some of the options. If the agency
determines that the best options cannot be implemented under its
statutory authority, the agency should so inform the institutions with
power to implement them, such as Congress and other agencies.
b. Agencies should consider using regulatory analysis when
undertaking significant rulemaking proceedings with projected impacts
falling below the established thresholds for requiring formal regulatory
analyses.
01 CFR 305.85-2 4. Information in Regulatory Analysis Documents
This part of the Recommendation addresses the information that should
be included in regulatory analysis documents for use by the public and
agency decisionmakers. 2
a. When agencies use quantitative models to quantify important
variables in regulatory analysis documents, the known limitations of
those models should be clearly stated.
b. To prevent quantitative models from oversimplifying complex
decisionmaking factors, agencies should require regulatory analysis
documents to (1) state clearly the major assumptions that undergird the
models relied upon in the regulatory analysis, and (2) describe
important decisionmaking variables that are not subject to quantitative
analysis.
c. Agencies should require that regulatory analysis documents attempt
to characterize the uncertainties that are included in quantitative
predictions by using tools such as confidence intervals, multiple
assessment models, sensitivity analysis, and worst case analysis.
d. Agencies should require that regulatory analysis documents address
explicitly the distributional impacts of rulemaking options and the
methods used for discounting future costs and benefits. Agencies should
consider using more than one discount rate to clarify the sensitivity of
the analytical projections to the discount rate.
e. Agency regulatory analysis documents should make explicit
reference to any agency policies that motivate the agency to choose one
set of assumptions over another, draw one inference rather than another,
or choose one quantitative model over another.
2The Conference has previously recommended that agencies using
cost-benefit and similar analyses include in notices of particular
proceedings certain information about the analytical methods and
assumptions used in conducting the analyses. See ACUS Recommendation
79-4 (1 CFR 305.79-4).
01 CFR 305.85-2 5. Informational Needs for Regulatory Analysis
a. Agency Access to Information. Adequate information on the costs
and economic impacts of proposed rules is essential to the regulatory
process, and often the most important source of this information is a
regulated party. Therefore, in exercising its authority under the
Paperwork Reduction Act, the Office of Management and Budget should
allow agencies to address reasonable requests for cost and economic
impact information to regulated parties when the information is needed
for regulatory analysis. The Office of Management and Budget should
continue to coordinate its regulatory analysis review function with its
paperwork reduction function to ensure that it approves
information-gathering activities that are designed to yield information
that it is likely to require later in the rulemaking review process.
b. Coordination of Information Gathering Activities. Agencies should
coordinate their sponsored research activities with their regulatory
analysis initiatives. More specifically, agencies should include
regulatory analysts in their process for setting long-term research
priorities. In addition, agencies should encourage the participation of
representatives from the office responsible for agency-sponsored
research in the rulemaking process at the very early stages when
informational needs are defined.
c. Cooperative Regulatory Analysis. Agencies should consider whether
the techniques suggested for negotiation of proposed regulations in ACUS
Recommendation 82-4 (1 CFR 305.82-4) might be useful in undertaking, in
specific proceedings, ''cooperative regulatory analysis.'' This would
consist of bringing representatives of all affected parties together,
consistent with the Federal Advisory Committee Act where applicable, to
assess the validity of particular studies prior to relying upon those
studies in regulatory analysis documents.
d. Reducing Potential Bias. Agencies should attempt to reduce the
impact of bias in the sources of the information that they use in
preparing regulatory analysis documents. Though agencies should
consider the source of information in giving it weight, this does not
mean that they should automatically attach less value to information
simply because it comes from a source with an interest in the outcome of
the rulemaking. Agencies should reduce the impact of bias by:
(i) Consulting, whenever possible, multiple sources of information in
preparing regulatory analysis documents;
(ii) Carefully citing in regulatory analysis documents all
information upon which the analysis draws, and making the information
available for public scrutiny at convenient times and places;
(iii) Actively soliciting comment and criticism from acknowledged
experts in the fields that the documents address.
e. Retrospective Assessments of Previous Analyses. Agencies should
regularly perform retrospective assessments of the predictions made
previously in regulatory analysis documents. Retrospective analysis can
provide information on the accuracy of past agency predictions and
thereby enable an agency to increase the accuracy of future predictions
or make judgments about the value of regulatory analysis to its
regulatory effort.
01 CFR 305.85-2 6. Use of Consultants in Preparing Regulatory Analysis
Documents
Agencies can benefit from entering into consulting contracts with
qualified experts to aid in gathering and analyzing information for
regulatory analysis documents. However, agency personnel should retain
the ultimate responsibility for the contents of regulatory analysis
documents and guard against consultant conflict of interest. To these
ends, agencies should ensure that: (1) Agency employees, not
consultants, draft regulatory analysis documents, and (2) when a
regulatory analysis document relies upon consultant reports, the reports
are placed in the public file of the rulemaking proceeding, even if the
Freedom of Information Act's exemption for intra-agency memoranda, 5
U.S.C. 552(b)(5), might apply to portions of the reports.
01 CFR 305.85-2 7. The Scope and Limits of Regulatory Analysis
a. Cost-benefit analysis is an effective tool for marshalling and
analyzing information and for establishing regulatory priorities.
b. Other analytical techniques, such as cost-effectiveness analysis
and multi-objective analysis, are also useful for rulemaking that
involves health, environmental, historical, artistic, and aesthetic
considerations for which markets do not exist.
c. Agency rulemaking decisions must take into account the limits of
the agency's statutory authority and its overall policy goals, as well
as the limits of the methods and data used in the regulatory analysis.
d. The same criteria should be used in granting exemptions from
regulatory analysis requirements, irrespective of whether the proceeding
has been commenced to formulate new rules or to amend or repeal existing
rules.
(50 FR 28364, July 12, 1985)
01 CFR 305.85-3 Coordination of public and private enforcement of
environmental laws (Recommendation No. 85-3).
Congress has incorporated into the Clean Air Act, the Clean Water
Act, the Resource Conservation and Recovery Act, and other Federal
environmental statutes provisions authorizing private parties to bring
enforcement actions in the Federal courts. These ''citizen suit''
provisions generally permit any person or organization to seek
injunctions abating activities that violate agency rules, standards, or
permits. In addition, the Clean Water Act and the Hazardous and Solid
Waste Amendments of 1984 permit plaintiffs to seek civil penalties in
private enforcement actions.
As use of private enforcement actions has grown, issues related to
coordinating public and private enforcement activities have arisen.
Coordination in the development and use of criteria regarding the
bringing of cases and maintaining basic consistency in the imposition of
penalties is important for several reasons. Notwithstanding the
different enforcement perspectives and goals of public and private
plaintiffs, inconsistencies in case selection or penalty policy may
create actual and perceived unfairness to regulated entities, as
similarly situated parties receive varying treatment. Uncertainties
about the likelihood or outcome of enforcement actions may increase
litigation and decrease voluntary compliance. Lack of coordination may
also make it difficult for the Environmental Protection Agency and
cooperating state agencies to deploy their limited enforcement resources
in the most efficient and effective manner. The recommendation that
follows proposes administrative steps which the Environmental Protection
Agency can take to provide better guidance to those involved in the
enforcement process, and to achieve better coordination between public
and private enforcement.
01 CFR 305.85-3 Recommendation
01 CFR 305.85-3 1. Articulation of Enforcement Policy
In order to achieve better coordination between public and private
enforcement efforts, the Environmental Protection Agency should, as
feasible, enunciate its views concerning enforcement criteria,
calculating penalties, and settling contested cases. When enunciated,
the agency's views, or an announcement of their availability, should be
published in the Federal Register. 1 Public knowledge of the means by
which the EPA calculates penalties will be particularly helpful to
courts performing similar calculations in private enforcement actions,
and the agency should consider whether more detailed specification of
its policies in this respect is feasible. EPA should offer
opportunities, consistent with Recommendation 76-5, for public comment
on statements of policy regarding calculation of penalties. 2
1In administering the Clean Water Act, for example, the EPA has begun
this process by issuing a proposed rule to revise program reporting
requirements for the assessment of permit noncompliance. See, e.g., 49
FR 29720 (July 23, 1984).
2See Recommendation 76-5, Interpretive Rules of General Applicability
and Statements of General Policy, 4 ACUS Recommendations and Reports 62
(1979), 1 CFR 305.76-5. The Administrative Conference recommended that
agencies adopting significant interpretive rules or policy statements
normally should provide an opportunity for public comment.
01 CFR 305.85-3 2. Improvement of Information Systems
The availability of accurate, complete, and current information about
(a) the compliance status of regulated persons and firms, and (b) the
outcome of public and private enforcement actions, is essential both for
the formulation and implementation of agency enforcement strategies and
for the effective use of private enforcement actions. When designing
management information systems and reporting requirements, the
Environmental Protection Agency should consider improving the quality of
such information and its availability for private enforcement, subject
to statutory limitations on disclosure of confidential information. The
Office of Management and Budget should give similar consideration to the
role of compliance information when reviewing EPA data-gathering
proposals.
01 CFR 305.85-3 3. Notice of Private Actions
When the Environmental Protection Agency receives from a private
party notice of an alleged violation, the EPA should request from that
party copies of all complaints3 and other significant pleadings,
settlement agreements, and judicial decrees in any action relating to
the alleged violation, in which the EPA is not a party. 4
(50 FR 28366, July 12, 1985)
3The Hazardous and Solid Waste Amendments of 1984, Pub. L. 98-616,
section 401 (to be codified at 42 U.S.C. 6972 (b)(2)(F)), provide that a
plaintiff bringing an action under the citizen suit provision of the
Resource Conservation and Recovery Act must serve a copy of the
complaint on the Attorney General and the Administrator of the EPA.
4Nothing in this Recommendation is intended to suggest that a request
for or receipt of any such notice or other information or document has
or should have any preclusive effect upon the Federal government's
ability to take enforcement action against the alleged violator.
01 CFR 305.85-4 Administrative Review in Immigration Proceedings
(Recommendation No. 85-4).
The Immigration and Nationality Act of 1952, as amended, requires the
Justice Department to make two major types of decisions affecting aliens
-- whether to exclude aliens seeking to enter the United States and
whether to deport those already in the country. The Act and the
accompanying regulations also require a host of collateral decisions
concerning visa petitions, waivers of grounds for exclusion or
deportation, adjustment of status from non-immigrant to permanent
resident, and many other immigration-related matters. Responsibility
for making these decisions resides in two very different types of
officials. Immigration judges, who are part of the Justice Department's
Executive Office for Immigration Review, conduct formal evidentiary
hearings in deportation, exclusion, and certain other proceedings.
District directors and their subordinates are part of the Immigration
and Naturalization Service (I.N.S.). They decide numerous other matters
in far less formal proceedings. While the immigration judges have only
adjudicative responsibilities, the district directors are principally
responsible for the administration and enforcement of the immigration
laws within their local geographic districts.
Similarly, there are two channels of administrative appeal for the
Justice Department's immigration decisions. The Board of Immigration
Appeals (B.I.A.), like the immigration judges, is located within the
Executive Office for Immigration Review. The Board reviews almost all
immigration judge decisions and some district director decisions. It is
composed of five attorney members, all of whom normally participate in
every case. It reviews cases de novo on the basis of the administrative
record and publishes precedential opinions binding on the immigration
judges and on the I.N.S.
Twenty-five other categories of district director decisions are
appealable to the Associate Commissioner for Examinations, an I.N.S.
policymaking official whose appellate jurisdiction has been subdelegated
to the Administrative Appeals Unit (A.A.U.) In that unit, cases are
decided de novo by individual non-attorney staff members and reviewed by
the unit chief. The A.A.U. does not ordinarily publish its decisions.
The Justice Department's current regulations specify with a high
degree of clarity which immigration decisions are administratively
appealable and to which appellate body. However, reasons for the
various assignments are not always evident.
The factors that should influence the choices of forum for
administrative review of agency adjudication can be developed through a
three-part methodology: (1) identify those attributes of the possible
review forums that affect the accuracy, the efficiency, the
acceptability, or the consistency of the administrative process; (2)
identify the attributes of cases that favor the selection of a review
forum with particular forum attributes; (3) determine the extent to
which those case attributes tend to be present in the particular class
of cases under consideration.
In Recommendation 75-3, the Administrative Conference set forth
criteria to guide Congress in selecting the appropriate forum for
judicial review of administrative agency action. Using the methodology
described above, the present recommendation suggests some additional
criteria and describes ways in which that expanded list of factors, with
only slight modification, can be employed also to select a forum for
administrative review. Applying those criteria, the recommendation then
suggests forums for administrative review of various classes of
immigration decisions.
01 CFR 305.85-4 Recommendation
01 CFR 305.85-4 A. Forum For Administrative Review
1. The Justice Department should undertake a comprehensive review of
its regulations governing the assignment of forums for administrative
review of immigration orders. In examining the categories of Board of
Immigration Appeals (B.I.A.) and Administrative Appeals Unit (A.A.U.)
jurisdiction, the Justice Department should consider the following
factors to the extent applicable.
a. Factors favoring selection of the B.I.A. for a particular class of
cases include (i) high likelihood of a substantial impact on the
litigants; (ii) the prevalence of issues of law or discretion,
particularly when the public impact of a decision will be widespread;
(iii) the desirability of providing for judicial review of the class of
cases in the courts of appeals.
b. Factors favoring selection of the A.A.U. for a particular class of
cases include (i) a high volume of cases; (ii) the prevalence of
questions of descriptive fact, rather than issues of law or discretion;
(iii) high likelihood that administrative review will require the taking
of additional evidence.
c. Once one class of cases is committed to a particular review forum,
there is benefit in assigning to that same forum (i) other classes of
cases tending to raise similar issues and (ii) other cases which, if
sent elsewhere, would frequently result in the bifurcation of
proceedings affecting the same individual.
d. With all else equal, the status quo should be preserved.
2. In revising its regulations, the Justice Department should make
the following specific case assignments:
a. Appeals from orders of deportation and exclusion should continue
to be heard by the B.I.A.
b. Appeals from orders rescinding adjustment of status should
continue to be heard by the B.I.A.
3. The Justice Department should also, subject to the development of
new information in the review recommended in paragraph 1, make the
following case assignments:
a. All appeals from district directors' denials of visa petitions
should be heard by the B.I.A.; thus orphan, fiance(e), and occupational
petitions should be transferred from the A.A.U. to the B.I.A.
b. If administrative appeals from district directors' denials of
waivers of the grounds of exclusion under section 212(c) of the
Immigration and Nationality Act (applicable to aliens who are returning
to a lawful unrelinquished domicile in the United States of seven years)
are preserved,* they should continue to be heard by the B.I.A.
c. Appeals from district directors' denials of waivers under sections
212(h) and 212(i) of the Act (applicable to certain close relatives of
American citizens and permanent residents) should be transferred from
the A.A.U. to the B.I.A.
d. Appeals from district directors' denials of applications to waive
the two-year foreign residence requirement for exchange visitors should
be transferred from the A.A.U. to the B.I.A.
e. Appeals from denials of waivers under section 212(d)(3) of the Act
(applicable to nonimmigrants) should be transferred from the B.I.A. to
the A.A.U.
f. Appeals from district directors' denials of applications for
permission to reapply for admission after exclusion or deportation
should continue to be heard by the A.A.U.
*A pending Justice Department proposal would eliminate administrative
appeals from these orders. The issue of whether these orders should be
administratively appealable is beyond the scope of this recommendation.
01 CFR 305.85-4 B. Structure and Independence of the Board of
Immigration Appeals
1. The B.I.A. should adopt a system of randomly selected three-member
panels to decide cases. En banc review should be afforded, upon a
determination by a majority of the B.I.A., only in the following
circumstances: (a) When invoked by any B.I.A. member; (b) at the
request of the I.N.S. Commissioner or the Attorney General following
decision; or (c) when the aggrieved party petitions for review of a
split panel decision.
2. If necessary to accommodate the case transfers recommended in part
A above, the B.I.A.'s membership should be slightly increased.
3. Congress should enact legislation to give the B.I.A. statutory
recognition. Under the legislation, the B.I.A. should remain within the
Department of Justice. The statute should confer jurisdiction over
deportation, exclusion and rescission orders, and should authorize the
Attorney General to adjust the Board's jurisdiction as to other matters.
4. The Attorney General should retain the power to review individual
B.I.A. decisions. In accordance with current practice, this power should
be exercised only in extraordinary circumstances.
(50 FR 52894, Dec. 27, 1985)
01 CFR 305.85-5 Procedures for Negotiating Proposed Regulations
(Recommendation No. 85-5).
Negotiations among persons representing diverse interests have proven
to be effective in some cases in developing proposals for agency rules.
In 1982, the Administrative Conference of the United States adopted
Recommendation 82-4, 1 CFR 305.82-4, encouraging the use of negotiated
rulemaking by Federal agencies in appropriate situations. 1 The concept
of negotiated rulemaking arose from dissatisfaction with the rulemaking
process, which since the 1960's, in many agencies, had become
increasingly adversarial and formalized -- unlike the brief, expeditious
notice and comment procedure envisioned in section 553 of the
Administrative Procedure Act. Experience has now shown that negotiated
rulemaking can be a practical technique in appropriate instances.
Since Recommendation 82-4 was adopted, its recommended procedures
have been followed four times by Federal agencies. The Federal Aviation
Administration used negotiated rulemaking to develop a new flight and
duty time regulation for pilots. The Environmental Protection Agency
used negotiated rulemaking to develop proposed rules on nonconformance
penalties for vehicle emissions and on emergency exemptions from
pesticide regulations. The Occupational Safety and Health
Administration encouraged labor, public interest, and industry
representatives to negotiate a standard for occupational exposure to
benzene. The benzene negotiations did not result in agreement among the
parties on a proposed rule, but the other three negotiations did lead to
substantial agreement resulting in two final rules (which have thus far
not been challenged) and one draft rule which, after public comment, is
pending before the agency.
The experience of these four cases has shown that the original
recommendation was basically sound, and has provided a basis for the
Administrative Conference to use in supplementing Recommendation 82-4.
It is important to view Recommendation 82-4 and the present
recommendation, taken together, as a guide to issues to be considered
rather than a formula to be followed. Negotiation is intrinsically a
fluid process that cannot be delineated in advance. Accordingly, what
will ''work'' in a particular case depends on the substantive issues,
the perception of the agency's position by interested parties, past and
current relationships among the parties, the authority of party
representatives in the negotiations, the negotiating style of the
representatives, the number and divergence of views within each
constituency represented, and the skill of the participants and
mediators. These factors are mostly dynamic and their charcter is
likely to change during the negotiating process. Proponents of
negotiated rulemaking must recognize the unavailability of neat formal
solutions to questions of who should participate, how the negotiations
should be conducted, or even the definition of ''successful''
negotiations.
Agencies undertaking negotiated rulemaking must be prepared to deal
with these real world uncertainties by pursuing a thoughtfully flexible
approach. Elements of Recommendation 82-4 and the present
recommendation provide a conceptual framework within which to plan and
conduct negotiations in a particular proceeding, but should not be taken
as a formal model. An agency cannot merely transplant a pattern
followed successfully by another agency, or even by itself on another
occasion. Nevertheless, agencies that are considering negotiated
rulemaking for the first time should find it helpful to discuss their
plans with other agencies and persons experienced with the process.
Some agencies have indicated a concern about the effect of the
Federal Advisory Committee Act on negotiated rulemaking proceedings.
The four agency experiences reviewed by the Administrative Conference
have not shown that the Act, as interpreted by the sponsoring agencies
and participants, impeded effective negotiations. Under current
judicial and agency interpretations of the Act, it appears that caucuses
and other working group meetings may be held in private, where this is
necessary to promote an effective exchange of views.
Another concern expressed by some agencies has been the potential
costs associated with negotiated rulemaking. While aspects of the
recommended process may entail some short-term additional costs, the
Conference believe that potential long-range savings will more than
offset the costs. Moreover, agencies should be aware of opportunities
for assistance from within the government, for example, training
provided by the Legal Education Institute of the Department of Justice,
and mediation assistance by the Federal Mediation and Conciliation
Service and the Community, Relations Service.
1Recommendation 82-4 used the term ''regulatory negotiation'' to
refer to this process. The present recommendation substitutes
''negotiated rulemaking'' to emphasize that it is addressing negotiation
of rules, and not other uses of negotiations in the regulatory process.
01 CFR 305.85-5 Recommendation
1. An agency sponsoring a negotiated rulemaking proceeding should
take part in the negotiations. Agency participation can occur in
various ways. The range of possibilities extends from full
participation as a negotiator to acting as an observer and commenting on
possible agency reactions and concerns. Agency representatives
participating in negotiations should be sufficiently senior in rank to
be able to express agency views with credibility.
2. Negotiations are unlikely to succeed unless all participants
(including the agency) are motivated throughout the process by the view
that a negotiated agreement will provide a better alternative than a
rule developed under traditional processes. The agency, accordingly,
should be sensitive to each participant's need to have a reasonably
clear expectation of the consequences of not reaching a consensus.
Agencies must be mindful, from the beginning to the end of negotiations,
of the impact that agency conduct and statements have on party
expectations. The agency, and others involved in the negotiations, may
need to communicate with other participants -- perhaps with the
assistance of a mediator or facilitator -- to ensure that each one has
realistic expectations about the outcome of agency action in the absence
of a negotiated agreement. Communications of this character always
should consist of an honest expression of agency actions that are
realistically possible.
3. The agency should recognize that negotiations can be useful at
several stages of rulemaking proceedings. For example, negotiating the
terms of a final rule could be a useful procedure even after publication
of a proposed rule. Usually, however, negotiations should be used to
help develop a notice of proposed rulemaking, with negotiations to be
resumed after comments on the notice are received, as contemplated by
paragraphs 13 and 14 of Recommendation 82-4.
4. The agency should consider providing the parties with an
opportunity to participate in a training session in negotiation skills
just prior to the beginning of the negotiations.
5. The agency should select a person skilled in techniques of dispute
resolution to assist the negotiating group in reaching an agreement. In
some cases, that person may need to have prior knowledge of the subject
matter of the negotiations. The person chosen may be styled
''mediator'' or ''facilitator,'' and may be, but need not be, the same
person as the ''convenor'' identified in Recommendation 82-4. There may
be specific proceedings, however, where party incentives to reach
voluntary agreement are so strong that a mediator or facilitator is not
necessary.
6. In some circumstances, Federal agencies such as the Federal
Mediation and Conciliation Service or the Community Relations Service of
the Department of Justice may be appropriate sources of mediators or
facilitators. These agencies should consider making available a small
number of staff members with mediation experience to assist in the
conduct of negotiated rulemaking proceedings.
7. The agency, the mediator or facilitator, and, where appropriate,
other participants in negotiated rulemaking should be prepared to
address internal disagreements within a particular constituency. In
some cases, it may be helpful to retain a special mediator or
facilitator to assist in mediating issues internal to a constituency.
The agency should consider the potential for internal constituency
disagreements in choosing representatives, in planning for successful
negotiations, and in selecting persons as mediators or facilitators.
The agency should also recognize the possibility that a group viewed as
a single constituency at the outset of negotiations may later become so
divided as to suggest modification of the membership of the negotiating
group.
8. Where appropriate, the agency, the mediator or facilitator, or the
negotiating group should consider appointing a neutral outside
individual who could receive confidential data, evaluate it, and report
to the negotiators. The parties would need to agree upon the protection
to be given confidential data. A similar procedure may also be
desirable in order to permit neutral technical advice to be given in
connection with complex data.
9. Use of a ''resource pool'' may be desirable, to support travel,
training, or other appropriate costs, either incurred by participants or
expended on behalf of the negotiating group. The feasibility of
creating such a pool from contributions by private sources and the
agency should be considered in the pre-negotiation stages.
(50 FR 52895, Dec. 27, 1985)
01 CFR 305.86-1 Nonlawyer Assistance and Representation (Recommendation
No. 86-1).
A substantial number of individuals involved in Federal ''mass
justice'' /1/ agency proceedings need and desire assistance /2/ in
filling out forms, filing claims, and appearing in agency proceedings,
but are unable to afford assistance or representation by lawyers. A
lack of assistance or representation reduces the probability that an
individual will obtain favorable results in dealing with an agency.
Further, unassisted individuals are more likely than those who are
assisted to cause a loss of agency efficiency by requiring more time,
effort, and help from the agency.
Federal agencies currently provide help to persons involved in agency
proceedings through information given by agency personnel and through
funding of legal aid programs and approval or payment of attorney fee
awards. This recommendation does not deal with whether government aid
may be needed for persons who cannot afford any form of assistance.
This recommendation focuses on the potential for increasing the
availability of assistance by nonlawyers. Federal agency experience and
statistics indicate that qualified persons who are not lawyers generally
are capable of providing effective assistance to individuals in mass
justice agency proceedings.
While it is recognized that no established privilege protects the
confidentiality of communications between nonlawyers and their clients,
agencies may adopt some protections covering their own proceedings. The
possible limitation of such protections does not outweigh the benefits
of increased assistance and representation.
Agency practices do not currently maximize the potential for free
choice of assistance, and, in some instances, may hinder the
availability of qualified, low-cost assistance by nonlawyers. Agencies
should take the steps necessary to encourage -- as well as eliminate
inappropriate barriers to -- nonlawyer assistance and representation.
Agencies generally have the authority to authorize any person to act
as a representative for another person having business with the agency.
Where an agency intends to permit nonlawyers to assist individuals in
agency matters, the agency needs to state that intention affirmatively
in its regulations for two reasons. First, an affirmative statement is
essential, under existing case law, to protect a nonlawyer from
prosecution -- under state ''unauthorized practice of law'' prohibitions
-- for assisting and advising a Federal client preparatory to commencing
agency proceedings, as well as for advertising the availability of
services. Second, an affirmative agency position is needed to overcome
a common assumption of nonlawyers that agencies welcome only lawyers as
representatives, and thereby to encourage an increase in the provision
of nonlawyer services.
/1/ The term ''mass justice'' is used here to categorize an agency
program in which a large number of individual claims or disputes
involving personal, family, or personal business matters come before an
agency; e.g., the Old Age Survivors and Disability Insurance program
administered by the Social Security Administration. To the extent that
principles incorporated in this Recommendation may be applicable to
other programs in which non-lawyer assistance or representation is (or
could be made) available, the Conference recommends the consideration of
these principles by the agencies involved.
/2/ The term ''assistance'' is used here to indicate all forms of
help, including representation, that may be beneficial to a person in
dealing with an agency. The term ''representation'' is used whenever
the most likely form of assistance involves such activities as making an
appearance, signing papers, or speaking for the assisted individual.
Neither term is meant to be exclusive.
01 CFR 305.86-1 Recommendation
1. The Social Security Administration, the Immigration and
Naturalization Service, the Veterans Administration, the Internal
Revenue Service, and other Federal agencies that deal with a significant
number of unassisted individuals who have personal, family, or personal
business claims or disputes before the agency, should review their
regulatioins regarding assistance and representation. The review should
be directed toward the goals of authorizing increased assistance by
nonlawyers, and of maximizing the potential for free choice of
representative to the fullest extent allowed by law.
2. If an agency determines that some subject areas or types of its
proceedings are so complex or specialized that only specially qualified
persons can adequately provide representation, then the agency may need
to adopt appropriate measures to ensure that nonlawyers meet specific
eligibility criteria at some or all stages of representation. Agencies
should tailor any eligibility requirements so as not to exclude
nonlawyers (including nonlawyers who charge fees) as a class, if there
are nonlawyers who, by reason of their knowledge, experience, training,
or other qualification, can adequately provide assistance or
representation.
3. Agencies should declare unambiguously their intention to authorize
assistance and representation by nonlawyers meeting agency criteria.
Where a declaration by an agency may have the effect of preempting state
law (such as ''unauthorized practice of law'' prohibitions), then the
agency should employ the procedures set out in Recommendation 84-5 with
regard to notification of and cooperation with the states and other
affected groups.
4. Agencies should review their rules of practice that deal with
attorney conduct (such as negligence, fee gouging, fraud,
misrepresentation, and representation when there is a conflict of
interest) to ensure that similar rules are made applicable to nonlawyers
as appropriate, and should establish effective agency procedures for
enforcing those rules of practice and for receiving complaints from the
affected public.
(51 FR 25641, July 16, 1986)
01 CFR 305.86-2 Use of Federal Rules of Evidence in Federal agency
adjudications (Recommendation No. 86-2).
Federal agencies have adopted hundreds of different sets of rules
governing admission of evidence in formal adjudications. While those
rules vary in their details, they can be placed in three general
categories: (1) Rules that reflect the wide open standard of APA
section 556(d); (2) rules that require presiding officers to apply the
Federal Rules of Evidence (FRE) ''so far as practicable;'' and, (3)
rules that permit presiding officers to use the FRE as a source of
guidance in making evidentiary rulings. In a few instances, Congress
has required the agency to adopt a standard that refers to the FRE; in
other cases the agency voluntarily adopted such a standard.
Presiding officers vary substantially in the extent of their use of
the FRE as a source of guidance in making evidentiary rulings.
Presiding officers at agencies whose rules refer to the FRE rely on the
FRE as a source of guidance much more frequently than presiding officers
at agencies whose rules reflect only the APA standard. Presiding
officers at agencies with rules that refer to the FRE are more satisfied
with the rule they apply than presiding officers at agencies with rules
that reflect only the APA standard. The relative dissatisfaction
expressed by many presiding officers in the latter group seems to be
based on their perception that the APA standard does not accord them
sufficient discretion to engage in responsible case management. Because
they perceive that they do not have the discretion to exclude evidence
they consider clearly unreliable, they must devote valuable hearing and
opinion-writing time to reception and consideration of such evidence.
Because the APA evidentiary standard is broadly permissive, courts
routinely decline to reverse agencies that have adopted this standard on
the basis of alleged erroneous admission of evidence. However, courts
seem confused by the FRE ''so far as practicable'' evidence standard.
Some courts apparently interpret it to accord near total discretion to
agencies. Other courts interpret it as a mandate to comply with the FRE
except in unusual cirumstances. Still others apparently view the
standard as a mandate to admit evidence inadmissible under the FRE
except when unusual circumstances require application of the FRE.
Independent of the evidentiary standard adopted by the agency,
reviewing courts apply three general rules: (1) An agency must respect
evidentiary privileges; (2) an agency can be reversed if it declines to
admit evidence admissible under the FRE; and (3) an agency will be
reversed if it bases a finding on unreliable evidence.
The FRE ''so far as practicable'' standard has four significant
disadvantages; (1) Courts seem confused as to what it means or how to
enforce it; (2) instructing presiding officers to exclude evidence
based on the standard forces them to undertake a difficult and hazardous
task; (3) excluding evidence on the basis that it is inadmissible in a
jury trial is totally unnecessary to insure that agencies act only on
the basis of reliable evidence; and (4) agencies, like other experts,
should be permitted to rely on classes of evidence broader than those
that can be considered by lay jurors. Yet the APA standard alone has
the disadvantage that presiding officers perceive it as an inadequate
tool for effective case management, despite the fact that it permits
presiding officers to use relevant parts of the FRE and scholarly texts
as sources of general guidance in making evidentiary rulings in formal
adversarial adjudications. Federal Rule 403 can be particularly
valuable to presiding officers in discharging their case management
responsibilities. That rule authorizes exclusion of evidence the
probative value of which is substantially outweighed by other factors,
including the consideration of undue delay. In addition, under any set
of evidentiary rules, an agency can assist presiding officers in their
evidentiary decisionmaking by specifying, insofar as they can be
foreseen, the factual issues the agency considers material to the
resolution of various classes of adjudications and the types of evidence
it considers reliable and probative with respect to recurring factual
issues.
01 CFR 305.86-2 Recommendation
1. Congress should not require agencies to apply the Federal Rules of
Evidence, with or without the qualification ''so far as practicable,''
to limit the discretion of presiding officers to admit evidence in
formal adjudications. /1/
2. Agencies should adopt evidentiary regulations applicable to formal
adversarial adjudications that clearly confer on presiding officers
discretion to exclude unreliable evidence and to use the weighted
balancing test in Rule 403 of the Federal Rules of Evidence, which
allows exclusion of evidence the probative value of which is
substantially outweighed by other factors, including its potential for
undue consumption of time.
3. To facilitate the efficient and fair management of the proceeding,
when otherwise appropriate, an agency should announce in advance of a
formal adjudication as many of the factual issues as the agency can
foresee to be material to the resolution of the adjudication.
(51 FR 25642, July 16, 1986)
/1/ The term ''formal adjudications'' refers to adjudications
required by statute to be determined on the record after opportunity for
an agency hearing in accordance with the Administrative Procedure Act,
U.S.C. 554, 556 and 557, and also includes agency adjudications which by
regulation or by agency practice are conducted in conformance with these
provisions. The recommendation does not apply to nonadversarial
hearings, e.g., many Social Security disability proceedings.^
01 CFR 305.86-3 Agencies' Use of Alternative Means of Dispute
Resolution (Recommendation No. 86-3).
Federal agencies now decide hundreds of thousands of cases annually
-- far more than do Federal courts. The formality, costs and delays
incurred in administrative proceedings have steadily increased, and in
some cases now approach those of courts. Many agencies act pursuant to
procedures that waste litigants' time and society's resources and whose
formality can reduce the chances for consensual resolution. The recent
trend toward elaborate procedures has in many cases imposed safeguards
whose transaction costs, to agencies and the public in general, can
substantially outweigh their benefits.
A comprehensive solution to reducing these burdens is to identify
instances where simplification is appropriate. This will require a
careful review of individual agency programs and the disputes they
involve. A more immediate step is for agencies to adopt alternative
means of dispute resolution, typically referred to as ''ADR,'' or to
encourage regulated parties to develop their own mechanisms to resolve
disputes that would otherwise be handled by agencies themselves. ADR
methods have been employed with success in the private sector for many
years, and when used in appropriate circumstances, have yielded
decisions that are faster, cheaper, more accurate or otherwise more
acceptable, and less contentious. These processes include voluntary
arbitration, mandatory arbitration, factfinding, minitrials, mediation,
facilitating, convening and negotiation. (A brief lexicon defining
these terms is included in the Appendix to this recommendation.) The
same forces that make ADR methods attractive to private disputants can
render them useful in cases which a federal agency decides, or to which
the government is a party. For these methods to be effective, however,
some aspects of current administrative procedure may require
modification.
It is premature to prescribe detailed procedures for a myriad of
government activities since the best procedure for a program, or even an
individual dispute, must grow out of its own needs. These
recommendations therefore seek to promote increased, and thoughtful, use
of ADR methods. They are but a first step, and ideally should be
supplemented with further empirical research, consultation with experts
and interested parties, and more specific Conference proposals.
01 CFR 305.86-3 Recommendation
01 CFR 305.86-3 A. General
1. Administrative agencies, where not inconsistent with statutory
authority, should adopt the alternative methods discussed in this
recommendation for resolving a broad range of issues. These include
many matters that arise as a part of formal or informal adjudication, in
rulemaking, /1/ in issuing or revoking permits, and in settling
disputes, including litigation brought by or against the government.
Until more experience has been developed with respect to their use in
the administrative process, the procedures should generally be offered
as a voluntary, alternative means to resolve the controversy.
2. Congress and the courts should not inhibit agency uses of the ADR
techniques mentioned herein by requiring formality where it is
inappropriate.
/1/ See ACUS Recommendations 82-4 and 85-5, ''Procedures for
Negotiating Proposed Regulations,'' 1 CFR 305.82-4 and 305.85-5.
01 CFR 305.86-3 B. Voluntary Arbitration
3. Congress should act to permit executive branch officials to agree
to binding arbitration to resolve controversies. This legislation
should authorize any executive official who has authority to settle
controversies on behalf of the government to agree to arbitration,
either prior to the time a dispute may arise or after a controversy has
matured, subject to whatever may be the statutory authority of the
Comptroller General to determine whether payment of public funds is
warranted by applicable law and available appropriations.
4. Congress should authorize agencies to adopt arbitration procedures
to resolve matters that would otherwise be decided by the agency
pursuant to the Administrative Procedure Act (''APA'') or other formal
procedures. These procedures should provide that --
(a) All parties to the dispute must knowingly consent to use the
arbitration procedures, either before or after a dispute has arisen.
(b) The parties have some role in the selection of arbitrators,
whether by actual selection, by ranking those on a list of qualified
arbitrators, or by striking individuals from such a list.
(c) Arbitrators need not be permanent government employees, but may
be individuals retained by the parties or the government for the purpose
of arbitrating the matter.
(d) Agency review of the arbitral award be pursuant to the standards
for vacating awards under the U.S. Arbitration Act, 9 U.S.C. 10, unless
the award does not become an agency order or the agency does not have
any right of review.
(e) The award include a brief, informal discussion of its factual and
legal basis, but neither formal findings of fact nor conclusions of law.
(f) Any judicial review be pursuant to the limited scope-of-review
provisions of the U.S. Arbitration Act, rather than the broader
standards of the APA.
(g) The arbitral award be enforced pursuant to the U.S. Arbitration
Act, but is without precedential effect for any purpose.
5. Factors bearing on agency use of arbitration are:
(a) Arbitration is likely to be appropriate where --
(1) The benefits that are likely to be gained from such a proceeding
outweigh the probable delay or costs required by a full trial-type
hearing.
(2) The norms which will be used to resolve the issues raised have
already been established by statute, precedent or rule, or the parties
explicitly desire the arbitrator to make a decision based on some
general standard, such as ''justice under the circumstances,'' without
regard to a prevailing norm.
(3) Having a decisionmaker with technical expertise would facilitate
the resolution of the matter.
(4) The parties desire privacy, and agency records subject to
disclosure under the Freedom of Information Act are not involved.
(b) Arbitration is likely to be inappropriate where --
(1) A definitive or authoritative resolution of the matter is
required or desired for its precedential value.
(2) Maintaining established norms or policies is of special
importance.
(3) The case significantly affects persons who are not parties to the
proceeding.
(4) A full public record of the proceeding is important.
(5) The case involves significant decisions as to government policy.
6. Agency officials, and particularly regional or other officials
directly responsible for implementing an arbitration or other ADR
procedure, should make persistent efforts to increase potential parties'
awareness and understanding of these procedures.
01 CFR 305.86-3 C. Mandatory Arbitration
7. Arbitration is not in all instances an adequate substitute for a
trial-type hearing pursuant to the APA or for civil litigation. Hence,
Congress should consider mandatory arbitration only where the advantages
of such a proceeding are clearly outweighed by the need to (a) save the
time or transaction costs involved or (b) have a technical expert
resolve the issues.
8. Mandatory arbitration is likely to be appropriate only where the
matters to be resolved --
(a) Are not intended to have precedential effect other than the
resolution of the specific dispute, except that the awards may be
published or indexed as informal guidance;
(b) May be resolved through reference to an ascertainable norm such
as statute, rule or custom; /2/
(c) Involve disputes between private parties; and
(d) Do not involve the establishment or implementation of major new
policies or precedents.
9. Where Congress mandates arbitration as the exclusive means to
resolve a dispute, it should provide the same procedures as in Paragraph
4, above.
/2/ For example, the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. 136 et seq., provides for mandatory arbitration with
respect to the amount of compensation one company must pay another and
yet provides no guidance with respect to the criteria to be used to make
these decisions. The program has engendered considerable controversy
and litigation.
01 CFR 305.86-3 D. Settlement Techniques
10. In many situations, agencies already have the authority to use
techniques to achieve dispute settlements. Agencies should use this
authority by routinely taking advantage of opportunities to:
(a) Explicitly provide for the use of mediation.
(b) Provide for the use of a settlement judge or other neutral agency
offical to aid the parties in reaching agreement. /3/ These persons
might, for instance, advise the parties as to the likely outcome should
they fail to reach settlement.
(c) Implement agreements among the parties in interest, provided that
some means have been employed to identify other interested persons and
afford them an opportunity to participate.
(d) Provide for the use of minitrials.
(e) Develop criteria that will help guide the negotiation of
settlements. /4/
11. Agencies should apply the criteria developed in ACUS
Recommendations 82-4 and 85-5, pertaining to negotiated rulemaking, /5/
in deciding when it may be appropriate to negotiate, mediate or use
similar ADR techniques to resolve any contested issue involving an
agency. Settlement procedures may not be appropriate for decisions on
some matters involving major public policy issues or having an impact on
persons who are not parties, unless notice and comment procedures are
used.
12. Factors bearing on agency use of minitrials as a settlement
technique are:
(a) Minitrials are likely to be appropriate where --
(1) The dispute is at a stage where substantial additional litigation
costs, such as for discovery, are anticipated.
(2) The matter is worth an amount sufficient to justify the senior
executive time required to complete the process.
(3) The issues involved include highly technical mixed questions of
law and fact.
(4) The matter involves materials that the government or other
parties believe should not be revealed.
(b) Minitrials are likely to be inappropriate where --
(1) Witness credibility is of critical importance.
(2) The issues may be resolved largely through reference to an
ascertainable norm.
(3) Major questions of public policy are involved.
13. Proposed agency settlements are frequently subjected to multiple
layers of intra-agency or other review and therefore may subsequently be
revised. This uncertainty may discourage other parties from negotiating
with federal officials. To encourage settlement negotiations, agencies
should provide means by which all appropriate agency decisionmakers are
involved in, or regularly apprised of, the course of major negotiations;
agencies should also endeavor to streamline intra-agency review of
settlements. These efforts should serve to ensure that the concerns of
interested segments of the agency are reflected as early as possible in
settlement negotiations, and to reduce the likehood that tentative
settlements will be upset.
14. In cases where agencies must balance competing public policy
interests, they should adopt techniques to enable officials to assess,
in as objective a fashion as possible, the merits of a proposed
settlement. These efforts might include establishing a small review
panel of senior officials or neutral advisors, using a minitrial,
publishing the proposed settlement in the Federal Register for comment,
securing tentative approval of the settlement by the agency head or
other senior official, or employing other means to ensure the integrity
of the decision.
15. Some agency lawyers, administrative law judges, and other agency
decisionmakers should be trained in arbitration, negotiation, mediation,
and similar ADR skills, so they can (a) be alert to take advantage of
alternatives or (b) hear and resolve other disputes involving their own
or another agency.
/3/ See, e.g., the procedure used by the Federal Energy Regulatory
Commission.
/4/ See ACUS Recommendation 79-3, ''Agency Assessment and Mitigation
of Civil Money Penalties,'' 1 CFR 305.79-3.
/5/ See also, ACUS Recommendation 84-4, ''Negotiated Cleanup of
Hazardous Waste Sites Under CERCLA,'' 1 CFR 305.84-4.
01 CFR 305.86-3 E. Private Sector Dispute Mechanisms
16. Agencies should review the areas that they regulate to determine
the potential for the establishment and use of dispute resolution
mechanisms by private organizations as an alternative to direct agency
action. Where such use is appropriate, the agency should --
(a) Specify minimal procedures that will be acceptable to qualify as
an approved dispute resolution mechanism.
(b) Oversee the general operation of the process; ordinarily, it
should not review individual decisions.
(c) Tailor its requirements to provide an organization with
incentives to establish such a program, such as forestalling other
regulatory action, while ensuring that other interested parties view the
forum as fair and effective.
Arbitration. Arbitration is closely akin to adjudication in that a
neutral third party decides the submitted issue after reviewing evidence
and hearing argument from the parties. It may be binding on the
parties, either through agreement or operation of law, or it may be
non-binding in that the decision is only advisory. Arbitration may be
voluntary, where the parties agree to resolve the issues by means of
arbitration, or it may be mandatory, where the process is the exclusive
means provided.
Factfinding. A ''factfinding'' proceeding entails the appointment of
a person or group with technical expertise in the subject matter to
evaluate the matter presented and file a report establishing the
''facts.'' The factfinder is not authorized to resolve policy issues.
Following the findings, the parties may then negotiate a settlement,
hold further proceedings, or conduct more research.
Minitrial. A minitrial is a structured settlement process in which
each side presents a highly abbreviated summary of its case before
senior officials of each party authorized to settle the case. A neutral
adviser sometimes presides over the proceeding and will render an
advisory opinion if asked to do so. Following the presentations, the
officials seek to negotiate a settlement.
Mediation. Mediation involves a neutral third party to assist the
parties in negotiating an agreement. The mediator has no independent
authority and does not render a decision; any decision must be reached
by the parties themselves.
Facilitating. Facilitating helps parties reach a decision or a
satisfactory resolution of the matter to be addressed. While often used
interchangeably with ''mediator,'' a facilitator generally conducts
meetings and coordinates discussions, but does not become as involved in
the substantive issues as does a mediator.
Convening. Convening is a technique that helps identify issues in
controversy and affected interests. The convenor is generally called
upon to determine whether direct negotiations among the parties would be
a suitable means of resolving the issues, and if so, to bring the
parties together for that purpose. Convening has proved valuable in
negotiated rulemaking.
Negotiation. Negotiation is simply communication among people or
parties in an effort to reach an agreement. It is used so routinely
that it is frequently overlooked as a specific means of resolving
disputes. In the administrative context, it means procedures and
processes for settling matters that would otherwise be resolved by more
formal means.
(51 FR 25643, July 16, 1986)
01 CFR 305.86-4 The Split-Enforcement Model for Agency Adjudication
(Recommendation No. 86-4).
Separation of functions in administrative adjudication has usually
been achieved through internal barriers within the agency which separate
and insulate those employees who judge from those who investigate and
prosecute. The chains of command, however, come together at the top in
the person of the head or heads of the agency, who, through
subordinates, are responsible for all three functions. Internal
separation of functions is sanctioned and contemplated by the
Administrative Procedure Act. When combined with the protections
accorded to administrative law judges who preside over adjudicatory
hearings, it appears, on the whole, to have worked satisfactorily in
providing fair and impartial factfinding, while permitting the agency to
speak with a single voice on matters of law and policy. Yet the
experience with internal separation of functions has never entirely
silenced the critics who argue that it is impossible to achieve
evenhanded justice when enforcement and adjudicative functions are
lodged in the same agency.
Congress has, therefore, on a number of occasions sought to carry
separation of functions a step further. In the Occupational Safety and
Health Act of 1970, an agency in the Department of Labor, the
Occupational Safety and Health Administration (OSHA), was assigned the
responsibility for promulgating industrial health and safety standards
and for enforcing these standards through inspections and the filing of
complaints against employers. The responsibility for adjudicating such
complaints, however, was assigned to a wholly independent three-member
agency, the Occupational Safety and Health Review Commission (OSHRC),
which employs administrative law judges to hear enforcement cases
brought by OSHA and to issue initial decisions subject to commission
review. A similar division of responsibilities was created in the area
of mine safety and health in the Federal Mine Safety and Health
Amendments Act of 1977. This statute assigned rulemaking and
enforcement to the Mine Safety and Health Administration in the
Department of Labor and adjudication to the independent Federal Mine
Safety and Health Review Commission (FMSHRC). /1/
An Administrative Conference study of the experience with the
''split-enforcement model'' used in the occupational safety and mine
safety legislation was unable to conclude whether this model achieves
greater fairness in adjudication than does the traditional structural
model. Fairness is an important but an unquantifiable and subjective
value. Therefore, the Conference takes no position on whether the
split-enforcement model is preferable to a structure in which
responsibilities for rulemaking, enforcement and adjudication are
combined within a single agency. Our study did reveal, however, that
because Congress, in enacting the Occupational Safety and Health Act,
did not specify clearly the respective responsibilities of OSHA and
OSHRC in resolving questions of law and policy, unnecessary conflicts
have arisen between the agencies and there has been confusion expressed
by reviewing courts over which agency's views were entitled to the
greater deference. For a variety of reasons these conflicts and
confusion have been largely avoided in the later enacted mine safety
legislation.
/1/ The system for enforcing certain provisions of the Federal
Aviation Act also conforms generally to this model but was not part of
the study. See 49, App. U.S.C. 1903(a)(9).
01 CFR 305.86-4 Recommendation
1. Where Congress establishes an enforcement scheme in which
rulemaking and prosecution are assigned to one agency and adjudication
to another agency, it should make clear in which agency it intends to
place programmatic responsibility and direct the courts to look to that
agency for authoritative expressions of law or policy. Congress should
also attempt to foresee other areas of potential conflict, such as
control over litigation and settlements, and should so far as possible
specify the respective responsibilities of each agency and the
procedures for resolving disagreements.
2. Generally speaking, Congress should provide that in adjudicatory
challenges to standards promulgated pursuant to agency statutory
authority, the adjudicatory agency must accept the rulemaking agency's
interpretation of the standard unless it can be shown that the
rulemaking agency's interpretation is arbitrary, capricious, or
otherwise not in accordance with the law. So far as is practical, the
rulemaking agency should provide notice to the affected public
concerning the administrative interpretation of its rules and
regulations, the policies that they represent, and their intended
implementation in enforcement.
3. Where uncertainties exist with regard to the responsibilities of
agencies already implementing split-enforcement schemes, Congress should
act to resolve those uncertainties consistent with the foregoing, if the
agencies are unable to do so.
(51 FR 46986, Dec. 30, 1986)
01 CFR 305.86-5 Medicare Appeals (Recommendation No. 86-5).
The Medicare program, since 1965, provides health insurance for
nearly all elderly and most disabled Americans. The program relies on
hospitals, nursing homes and other health care institutions (under
''Part A'' of the program) and physicians and suppliers (under ''Part
B'') to provide benefits to its beneficiaries.
This program, serving 30 million persons, has been administered since
1977 by the Health Care Financing Administration (HCFA), within the
Department of Health and Human Services (HHS). Congress purposefully
created a decentralized system, with implementation by localized
carriers and intermediaries, primarily insurance companies. HCFA
contracts with these organizations to administer the millions of claims
made by beneficiaries each year and the resulting payments to providers.
For Part A these organizations are known as ''fiscal intermediaries''
and for Part B they are referred to as ''carriers.'' Additionally,
statutorily-mandated peer review organizations (PROs), made up of
physician controlled organizations under contract with HCFA, have been
given new responsibility to decide many disputes raised by beneficiaries
and hospitals under Part A. To guide its contractors, HCFA issues
health insurance manuals containing detailed instructions, though they
normally are not published through notice-and-comment rulemaking.
HCFA also issues ''national coverage decisions'' on whether new
medical technologies and procedures are covered by Medicare. These
decisions are sometimes made after a recommendation is sought from the
HHS Office of Health Technology Assessment (OHTA). Only when OHTA
advice is sought does HCFA publish notice in the Federal Register. In
most cases, affected manufacturers, providers, and beneficiaries have no
notice or opportunity to file comments on proposed action, and neither
HCFA nor OHTA has published its decisionmaking procedures or its
criteria for making these decisions.
Rapidly rising program expenditures, especially inflation in hosptial
care costs, led Congress to take a number of steps to control costs. In
1982, the PRO system was created and was delegated important
responsibility to deny Medicare payment for inappropriate or unnecessary
services and to sanction providers for improper practices. In the
following two years Congress froze physician charges for fifteen months
and completely revamped the reimbursement system for hospitals by
creating the ''prospective payment system'' under which Medicare pays
hosptials a predetermined fixed price for each patient case (according
to a classification system of some 470 Diagnosis Related Groupings or
DRGs), regardless of the actual costs incurred in treating the patient.
The prices are subject to annual updating and the classification system
is to be reviewed annually. Congress created the advisory Prospective
Payment Assessment Commission to participate in this process.
Additionally, to mitigate fears that the prospective payment system
might lead to unnecessary brief admissions or premature release of
patients, Congress charged the PROs with the responsibility for
monitoring hospital admissions and discharge practices. In the first
years of this program, hospital admissions for the elderly declined for
the first time since 1965, the average length of stay also declined and
there was a greater utilization of outpatient services. Moreover, many
hospitals have made record profits under the new system while reducing
the rate of inflation in hospitals costs. There has also been a marked
increase in physician (Part B) services, as patients have moved out of
hospital and into outpatient care, and to greater reliance on home
health services.
The Medicare appeals system is a patchwork with differing
administrative and judicial review requirements for beneficiaries and
providers and differing rules for Part A and Part B appeals.
Under Part A, most cases are beneficiary appeals primarily involving
coverage determinations. Initial determinations are by PROs if hospital
services are involved and by fiscal intermediaries for other Part A
services. A reconsideration step is built in. After this ''paper
review,'' administrative review is then available by an administrative
law judge in the Social Security Office of Hearings and Appeals if the
amount in controversy exceeds $100 ($200 in hospital cases). The SSA
Appeals Council may review and reverse the ALJ's decision on its own
motion. Judicial review in the district court is available for the
beneficiary if the amount in controversy is $1000 ($2000 in hospital
cases).
Providers who have disputes concerning reimbursement under Part A
(over $10,000) may bring appeals to the Provider Reimbursement Review
Board (PRRB), a five-member board within HHS. (Appeals involving
amounts between $1,000 and $10,000 are heard by fiscal intermediaries.)
The Secretary may review PRRB decisions on his own motion and providers
have a right to judicial review. The PRRB's effectiveness as an
independent adjudicator of provider payments disputes has been called
into question by provider groups who have raised concerns about its
independence, jurisdiction, slowness and its procedures for handling
group appeals. Moreover, the PRRB's role under the prospective payment
system has been changing. The Board does retain jurisdiction over
appeals remaining under the old system and over some key issues
concerning allowable costs, and availability of payments under the new
system. But, HCFA rulings and regulations have constrained the PRRB's
jurisdiction in prospective payment rate cases and provided that it may
not order retrospective correction of errors in those rates. Moreover,
some key provider appeals such as those involving errors in DRG
assignment have been transferred to PROs. No further review is
available in such cases.
Until passage of the Omnibus Budget Reconciliation Act of 1986, Pub.
L. 99-509, there was no administrative and judicial review of Part B
claims. However, under the new law, beneficiaries with disputed claims
of over $500 (and physicians who have accepted assignment of such
claims) have a right to a hearing before an administrative law judge,
and to subsequent judicial review if the claim exceeds $1,000.
Previously there was no judicial review and beneficiaries with Part B
claims exceeding $100 were limited to a ''fair hearing'' before an
officer selected by the carrier. (This procedure will continue for
claims between $100 and $500 under the new legislation.)
The new legislation also made several other important changes in the
laws affecting Medicare. The legislation:
-- authorized persons affiliated with providers to represent
beneficiaries in Part A appeals as long as no financial liability is
imposed in connection with the representation;
-- requires that HCFA regulations regarding the Medicare program
provide for a 60-day comment period;
-- requires expanded notice procedures for medicare patients
concerning their hospital discharge rights;
-- mandates various new requirements on PROs to review
beneficiary complaints and to review the quality of care provided; and
-- expands appeal rights in home health care cases involving
so-called ''technical denials'' of benefits.
The Conference welcomes these changes. Indeed, at the time of their
enactment, the Conference was actively considering recommendations
concerning some of them. Other aspects of the process, however, also
deserve modification or, at least, further study. We therefore call
upon HCFA to continue its efforts to improve the implementation of this
important program by heeding the following specific suggestions.
01 CFR 305.86-5 Recommendation
01 CFR 305.86-5 I. Publication of Policies
A. The Health Care Financing Administration (HCFA) should keep up to
date and provide reasonable access to all standards, guidelines and
procedures used in making coverage and payment determinations under Part
A and Part B of the Medicare program.
B. In promulgating interpretations of Medicare benefits likely to
have substantial impact on the public, HCFA should adopt procedures that
allow for public comment (either pre-promulgation or post-adoption).
See ACUS Recommendation 76-5.
C. HCFA by regulation (or Congress by legislation if necessary)
should require fiscal intermediaries and carriers to publish and provide
reasonable access to all insurance industry rules or other screening
devices used in making coverage and payment determinations under Part A
and Part B.
D. HHS should introduce more openness and regularity into the
procedure for issuing ''national coverage decisions'' pertaining to new
medical technologies and procedures, through: (1) Development of
published decisional criteria; (2) providing for notice and inviting
comments in such cases, both in HCFA's decisionmaking process and in the
process by which the HHS Office of Health Technology Assessment supplies
recommendations to HCFA; and (3) providing for internal administrative
review or reconsideration of such decisions.
01 CFR 305.86-5 II. Administrative Appeal Procedures
A. HCFA should continue to develop and assess the adequacy and timing
of notice to beneficiaries about coverage and payment decisions on
medical benefits and appeal rights regarding these decisions.
B. Because of the increased caseload in Medicare appeals adjudication
anticipated after the recent enactment of new appeal rights in Part B
cases, HHS should consider whether modification of the existing
adjudicatory system is necessary, including whether to establish a
Medicare appeals division with its own administrative law judges and
review procedure.
C. When resolving hospital rate appeals under the prospective payment
system, the Provider Reimbursement Review Board should be authorized, by
regulation (or, if necessary, by legislation) to assume jurisdiction of
an individual hospital's appeal in a manner that affords timely relief
to successful appellants.
01 CFR 305.86-5 III. Suggestions for Further Study
HCFA should undertake or support additional research in the following
areas:
A. An empirical study of the role, performance and procedures of:
(1) Fiscal intermediaries and carriers in making coverage and payment
determination under Part A and Part B;
(2) Peer review organizations in adjudicating Part A appeals by
beneficiaries and by hospitals under the prospective payment system.
B. A comprehensive analysis of the current administrative arrangement
by which hospital payment rates are updated under the prospective
payment system (taking into account the need for fair ratemaking, timely
resolution of disputes and budgetary controls), including an assessment
of the Prospective Payment Assessment Commission in this process.
C. An examination of the future role and responsibilities of the
Provider Reimbursement Review Board under the prospective payment
system, including its jurisdiction, need for expedited review procedures
for group appeals, qualifications for membership, adequacy of budget and
administrative support, and the need for independence from the rest of
the Department.
D. An examination of whether or not the implementation of the
statutorily-mandated peer review program should be done to a greater
extent through notice-and-comment rulemaking, rather than through
reliance upon program instructions and contract provisions.
E. A study of HCFA's use of statistical sampling techniques to
determine project overpayments to a provider for a given year, and
whether the use of these techniques may effectively deny beneficaries or
providers the opportunity to challenge payment determinations based on
actual claims experience.
F. A study of whether, in hospital rate appeals, HCFA should allow
retroactive correction of erroneous calculations of a hospital's payment
rate for affected prior years under the prospective payment system, and
payment to hospital accordingly.
G. A study of the process by which ALJ reversals of claim denials are
implemented by intermediaries and providers, including the need for
tighter accounting of payments to beneficiaries and reimbursements to
providers.
H. An examination of the feasibility and utility of setting internal
time guidelines for each stage of the Medicare appeals process,
including reconsiderations; ALJ hearings and Appeals Council review.
(51 FR 46987, Dec. 30, 1986)
01 CFR 305.86-6 Petitions for Rulemaking (Recommendation No. 86-6).
The Administrative Procedure Act (APA) requires each Federal agency
to give interested persons the right to petition for the issuance,
amendment, or repeal of a rule, 5 U.S.C. 553(e). The APA also requires
that agencies conclude matters presented to them within a reasonable
time, 5 U.S.C. 555(b), and give prompt notice of the denial of actions
requested by interested persons, 5 U.S.C. 555(e). The APA does not
specify the procedures agencies must follow in receiving, considering,
or disposing of public petitions for rulemaking. /1/ However, agencies
are expected to establish and publish such procedures in accordance with
the public information section of the APA. See Attorney General's
Manual on the Administrative Procedure Act 38 (1947). An Administrative
Conference study of agency rulemaking petition procedures and practices
found that while most agencies with rulemaking power have established
some procedures governing petitions for rulemaking, few agencies have
established sound practices in dealing with petitions or responded
promptly to such petitions.
This Recommendation sets forth the basic procedures that the
Conference believes should be incorporated into agency procedural rules
governing petitions for rulemaking. In addition, the Conference
encourages agencies to adopt certain other procedures and policies where
appropriate and feasible. The Conference feels that, beyond this basic
level, uniform specification of agency petition procedures would be
undesirable because there are significant differences in the number and
nature of petitions received by agencies and in the degree of
sophistication of each agency's community of interested persons.
Agencies should review their rulemaking petition procedures and
practices and, in accordance with this Recommendation, adopt measures
that will ensure that the right to petition is a meaningful one. The
existence of the right to petition reflects the value Congress has
placed on public participation in the agency rulemaking process. The
Administrative Conference has recognized, in past recommendations, the
benefits flowing from public participation in agency rulemaking and from
publication of the means for such participation. /2/ The absence of
published petition procedures, excessive or rigidly-enforced format
requirements, and the failure to act promptly on petitions for
rulemaking may undermine the public's right to file petitions for
rulemaking.
Some agencies currently have petition-for-rulemaking procedures that
are more elaborate than those recommended in this Recommendation. This
Recommendation is not intended to express a judgment that such
procedures are inappropriate or that the statutes mandating particular
procedures should be amended. Nor is the Recommendation intended to
alter the prior position of the Conference recommending elimination of
the categorical exemptions of certain types of rulemaking from the APA's
rulemaking requirements. See Recommendations 69-8 and 73-5. To the
extent Congress or agencies adopt those recommendations, they should
also expressly apply the right to petition to those types of rulemaking.
/1/ But other statutes expressly create the right to petition for
rulemaking, and some of these statutes specify procedures to be followed
in the petitioning process.
/2/ See Recommendation 69-8, Elimination of Certain Exemptions from
the APA Rulemaking Requirements, 1 C.F.R. 305.69-8; Recommendation
71-6, Public Participation in Administrative Hearings, 1 C.F.R.
305.71-6; Recommendation 73-5, Elimination of the ''Military or Foreign
Affairs Function'' Exemption from APA Rulemaking Requirements, 1 C.F.R.
305.73-5; Recommendation 76-5, Interpretive Rules of General
Applicability and Statements of General Policy. 1 C.F.R. 305.76-5;
and Recommendation 83-2, The ''Good Cause'' Exemption from APA
Rulemaking Requirements, 1 C.F.R. 305.83-2.
01 CFR 305.86-6 Recommendation
1. Agencies should establish by rule basic procedures for the
receipt, consideration, and prompt disposition of petitions for
rulemaking. These basic procedures should include: (a) Specification
of the address(es) for the filing of petitions and an outline of the
recommended contents of the petition, such as the name, address, and
telephone number of the petitioner, the statutory authority for the
action requested, and a description of the rule to be issued, amended,
or repealed; (b) maintenance of a publicly available petition file;
and (c) provision for prompt notification to the petitioner of the
action taken on the petition, with a summary explanatory statement.
2. In addition, agencies should, where appropriate and feasible:
a. Make their petition procedures expressly applicable to all types
of rules the agency has authority to adopt;
b. Provide guidance on the type of data, argumentation, or other
information the agency needs to consider petitions;
c. Develop effective methods for providing notice to interested
persons that a petition has been filed and identify the agency office or
official to whom inquiries and comments should be made; and,
d. Establish internal management controls to assure the timely
processing of petitions for rulemaking, including deadlines for
completing interim actions and reaching conclusions on petitions and
systems to monitor compliance with those deadlines.
(51 FR 46988, Dec. 30, 1986)
01 CFR 305.86-7 Case Management as a Tool for Improving Agency
Adjudication (Recommendation No. 86-7).
Reducing the delay, expense and unproductive legal maneuvering found
in many adjudications is recognized as a crucial factor in achieving
substantive justice. In recent years, the negative side effects of
civil litigation and agency adjudication procedures have begun to
receive increased attention, and many judges, informed scholars and
other experienced observers now cite lawyer control of the pace and
scope of most cases as a major impediment. In the Federal judicial
sphere, and increasingly in the state judiciary, a consensus is
developing that efficient case management is part of the judicial
function, on a par with the traditional duties of offering a fair
hearing and a wise, impartial decision. Many Federal district judges
have begun to practice and advocate increased intervention to shape and
delimit the pretrial or prehearing process.
Some Federal agencies have begun to make regular use of case
management processes wherein those who decide cases interject their
informed judgment and experience early in the pretrial stage, and
consistently thereafter, to move cases along as quickly as possible
within the bounds of procedural fairness. One such agency is the
Department of Health and Human Services (''HHS''), whose Departmental
Grant Appeals Board (''DGAB'' or ''Board'') makes active, planned use of
special managerial procedures. The Board, which decides cases brought
by State and local governments or other recipients of HHS grant funds,
has a three-tiered process that relies extensively on use of
action-forcing procedures for completing each stage of a case. The
Board adjudicates almost all its cases -- well over two hundred
dispositions and one hundred written decisions annually with an average
''amount in controversy'' in excess of one million dollars -- in three
to nine months. Most disputes before it involve financial issues
concerning the allowability of grantee expenditures, but the Board's
jurisdiction extends also to disputes over grant terminations and some
renewals. A recent study /1/ indicates that the Board's process reduces
the opportunity for maneuvering by the parties, facilitates an
expeditious, inexpensive disposition of all but the most complex cases,
and is overwhelmingly approved by most attorneys who practice before it.
The Board's success should not be discounted because won in an
environment unusually favorable to efficient dispute resolution. /2/
The fact is that similar procedures are now used with apparently
equal success at other agencies. They merit the attention of appeals
boards, administrative panels, administrative law judges (''ALJs'') and
all others involved in the decisional process. Though recognizing that
many factors affect the procedures to be followed in any particular
dispute, the Administrative Conference encourages this trend toward
reducing the transaction costs of agency proceedings and believes that
this is a key responsibility of all presiding officers and their
supervisors. The Conference has, in several contexts, already called on
Federal agencies to make greater use of internal time limits, /3/
alternative means of dispute resolution, /4/ and case management and
other techniques /5/ to expedite and improve their case handling. The
Conference now calls upon all personnel who conduct or oversee
processing of adjudicative proceedings for the Federal government to
make more determined efforts to use the kinds of case management methods
described below as may be appropriate.
/1/ This Recommendation is based largely on the report ''Model for
Case Management: The Grant Appeals Board'' by Richard B. Cappalli
(1986), which explores how the methods described separately below
interact in an integrated case management system.
/2/ E.g., a moderate caseload per judge, a shared program objective
among all parties and a long-term relationship between the agency and
the claimant.
/3/ Recommendation 78-3 calls on all agencies to use particularized
deadlines or time limits for the prompt disposition of adjudicatory and
rulemaking proceedings, either by announcing schedules for particular
cases or adopting rules with general timetables for their various
categories of proceedings. Time Limits on Agency Actions, 1 CFR
305.78-3. The Conference has also called on agencies to establish
productivity norms and otherwise exercise their authority to prescribe
procedures and techniques for accurate, expeditious disposition of
Social Security claims and disputes under grants. E.g., Procedures for
Determining Social Security Disability Claims, 1 CFR 305.78-2;
Resolving Disputes under Federal Grant Programs, 1 CFR 305.82-2.
/4/ Recommendation 86-3 calls on agencies to make greater use of
mediation, negotiation, minitrials, and other ''ADR'' methods to reduce
the delay and contentiousness accompanying many agency decisions.
Agency Use of Alternative Means of Dispute Resolution, 1 CFR 305.86-3.
The Conference has called previously for using mediation, negotiation,
informal conferences and similar innovations to decide certain kinds of
disputes more effectively. E.g., Procedures for Negotiating Proposed
Regulations, 1 CFR 305.82-4, .85-5; Negotiated Cleanup of Hazardous
Waste Sites Under CERCLA, 1 CFR 305.84-4; Resolving Disputes under
Federal Grant Programs, 1 CFR 305.82-2.
/5/ Many of the practices recommended herein reflect the advice
contained in the Manual for Administrative Law Judges, prepared for the
Conference by Merritt Ruhlen. Recommendation 73-3 advises on using case
management in adjudicating benefit and compensation claims. It calls
for continuous evaluation of adjudicative performance pursuant to
standards for measuring the accuracy, timeliness and fairness of agency
procedures. Quality Assurance Systems in the Adjudication of Claims of
Entitlement to Benefits or Compensation, 1 CFR 305.73-3. In addition,
Recommendation 69-6 urges agencies to compile and use statistical
caseload data about their proceedings. Compilation of Statistics on
Administrative Proceedings by Federal Departments and Agencies, 1 CFR
305.69-6.
01 CFR 305.86-7 Recommendation
The Conference encourages the prompt, efficient and inexpensive
processing of adjudicative proceedings. Federal agencies engaged in
formal and informal adjudication should consider applying the following
case management methods to their proceedings, among them the following:
1. Personnel management devices. Use of internal agency guidelines
for timely case processing and measurements of the quality of work
products can maintain high levels of productivity and responsibility.
If appropriately fashioned, they can do so without compromising
independence of judgment. Agencies possess and should exercise the
authority, consistent with the ALJ's or other presiding officer's
decisional independence, to formulate written criteria for measuring
case handling efficiency, prescribe procedures, and develop techniques
for the expeditious and accurate disposition of cases. The experiences
and opinions of presiding officers should play a large part in shaping
these criteria and procedures. The criteria should take into account
differences in categories of cases assigned to judges and in types of
disposition (e.g., dismissals, dispositions with and without hearing).
Where feasible, regular, computerized case status reports and
supervision by higher level personnel should be used in furthering the
systematic application of the criteria once they have been formulated.
2. Step-by-step time goals. Case management by presiding officers
and their supervisors should be combined with procedures designed to
move cases promptly through each step in the proceeding. These include
(a) a program of step-by-step time goals for the main stages of a
proceeding, (b) a monitoring system that pinpoints problem cases, and
(c) a management committed to expeditious processing. Time guidelines
should be fixed in all cases for all decisional levels within the
agency, largely with the input of presiding officers and others
affected. While the guidelines should be flexible enough to accommodate
exceptional cases and should maintain their non-obligatory nature, they
should be sufficiently fixed to keep routine items moving and ensure
that any delays are justified. Agencies should encourage a management
commitment by including specific goals or duties of timely case
processing in pertinent job descriptions.
3. Expedited options. Agencies should develop, and in some instances
require parties to use, special expedited procedures. Different rules
may need to be developed for handling small cases as well as for larger
ones that do not raise complex legal or factual issues.
4. Case file system.
(a) Agencies should develop procedures to ensure early compilation of
relevant documents in a case file. This will help the presiding officer
delineate the legal and factual issues, the parties' positions and the
basis for the action as promptly as possible. The presiding officer may
then structure the process suitably and issue preliminary management
directives.
(b) Disputes preceded by party interactions or investigations which
create a substantial factual record, as in most contract and grant
disputes, are especially amenable to this approach. Cases involving
strong fact conflicts or in which data are peculiarly within the
possession of one party who has motivations to suppress them may be less
suitable for a case file system.
5. Two stage resolution approaches. In proceedings where the case
file system is less appropriate, as where factual conflicts render
discovery important, agencies should consider using a two-phase
procedure.
(a) Phase one might be an abbreviated discovery phase directed by a
responsible official, with the product of that discovery forming the
''appeal file'' for the next phase. Alternatively, parties could be
channeled into a private dispute resolution mode, such as mediation,
negotiation or arbitration, which, even if unsuccessful, can serve to
define major issues and to advance development of the record. Before
employing this alternative, agencies would have to determine whether the
confidentiality rule that normally attaches to arbitration, medication
and negotiation is so critical that it cannot be abandoned for the sake
of a more efficient second stage.
(b) A second stage, if necessary, should proceed under active case
management, as recommended.
6. Seeking party concessions and offering mediation. Presiding
officers should promote party agreement and concessions on procedural
and substantive issues, as well as on matters involving facts and
documents, to reduce hearing time and sometimes avoid hearings
altogether. Agencies should also (a) encourage decisional officers to
resolve cases (or parts thereof) informally, (b) provide their officers
training in mediation and other ADR methods, and (c) routinely offer
parties the services of trained mediators.
7. Questioning techniques. (a) Requests for clarification or
development of record. If a party makes a statement in a notice of
appeal, brief, or other submission which a presiding officer does not
understand, doubts, or wishes clarified, the officer should consider
requiring the party to expand upon its position. The ambiguity may
relate to a factual matter, or an interpretation of a legal precedent or
a document. Similarly, by preliminary study of the case file, the
presiding officer could identify missing information and require the
party with access to such infomation to remedy the deficiency. The
officer could also issue ''invitations to brief'' difficult questions of
statutory interpretation or the like.
(b) Written questions for conference or hearing. The presiding
officer should manage cases so as to limit issues, proof, and argument
to core matters. Having ascertained the factual and legal ambiguities
in each side's case by careful study of the briefs and documentation
submitted, the presiding officer should structure a prehearing
conference or hearing as a forum for addressing these ambiguities by
seeking responses to carefully formulated questions and providing
appropriate opportunity for rebuttal. In this way, and by otherwise
seeking to identify the specific questions in dispute early on, the
presiding officer would focus parties' attention on key issues and
deflect unproductive procedural maneuvers.
8. Time extension practices. Time extensions should be granted only
upon strong, documented justification. While procedural fairness
mandates that deadlines may be extended for good cause, presiding
officers should be aware that casual, customary extensions have serious
negative effects on an adjudicatory system, its participants, and those
wishing access thereto. Stern warnings accompanying justified
extensions have had good success in curtailing lawyers' requests for
additional time.
9. Joint consideration of cases with common issues. Whenever
practicable and fair, cases involving common questions of law or fact
should be consolidated and heard jointly. Consolidation could include
unification of schedules, briefs, case files and hearings.
10. Use of telephone conferences and hearings. Presiding officers
should take full advantage of telephone conferences as a means to hear
motions, to hold prehearing conferences, and even to hear the merits of
administrative proceedings where appropriate. While telephone
conferences may be either employed regularly for handling selected
matters or limited to a case-by-case basis at the suggestion of the
presiding officer or counsel, experience suggests that maximum benefits
are derived when telephone conferences are made presumptive for certain
matters.
11. Intra-agency review. Any subsequent intra-agency review of an
initial adjudicative decision should generally be conducted promptly
pursuant to flexible, preestablished time guidelines and review
standards.
12 Training. Agencies should offer, and presiding officers seek,
training in case management, mediation, negotiation and similar methods,
and should be alert to take advantage of them. The training should be
carried out with the advice and aid of other Federal agencies and groups
with expertise.
(51 FR 46989, Dec. 30, 1986)
01 CFR 305.86-8 Acquiring the Services of ''Neutrals'' for Alternative
Means of Dispute Resolution (Recommendation No. 86-8).
The Administrative Conference has repeatedly encouraged agencies to
take advantage of mediation, negotiation, minitrials, binding
arbitration and other alternative means of dispute resolution (''ADR'').
/1/ While some agencies have begun to employ these methods to reduce
transaction costs and reach better results, many disputes are still
being resolved with unnecessary formality, contentiousness and delay.
This Recommendation is aimed at helping agencies begin to explore
specific avenues to expand their use of ADR services.
A key figure in the effective working of various modes of ADR,
including negotiated rulemaking, is the ''neutral'' -- a person, usually
serving at the will of the parties, who generally presides and seeks to
help the parties reach a resolution of their dispute. These neutrals,
often highly skilled professionals with considerable training in
techniques of dispute resolution, can be crucial to using ADR methods
with success. /2/ For agencies to use ADR effectively, they should take
steps to develop routines for deciding when and how these persons can be
employed, to identify qualified neutrals, and to acquire their services.
The diversity of roles played by neutrals and the uncertainty as to
certain applicable legal requirements present complications for agencies
considering uses of ADR. Neutrals may be specially trained and
accredited, or may simply hold themselves out as having certain
expertise, experience or credibility. They may be called on to make
binding decisions, consistent with applicable statutory and regulatory
requirements, when opposing positions cannot be reconciled, or they may
simply render advice to the parties. Time may be of the essence in
acquiring their services, as in many arbitrations, but in some instances
may be a minor consideration. Costs of using outside neutrals may range
from a few thousand dollars (for the services of a minitrial advisor) to
six figures (for convening and facilitating a large-scale negotiated
rulemaking). These differences render specific advice difficult to give
in advance. Agencies, Congress, courts, and others who employ ADR
methods or review their use should nonetheless observe certain
guidelines intended to accomplish the following goals:
e Supply. Broadening the base of qualified, acceptable individuals
or organizations, inside and outside the government, to provide ADR
services.
e Qualifications. Insuring that neutrals have adequate skills,
technical expertise, experience or other competence necessary to promote
settlement, while avoiding being too exclusive in the selection process.
e Acquisition. Identifying existing methods, or developing new
techniques, for expeditiously acquiring the services of neutrals at a
reasonable cost and in a manner which (a) insures a full and open
opportunity to compete and (b) enables agencies to select the most
qualified person to serve as a neutral, given that the protracted nature
of the government procurement process is often inconsistent with the
goals of ADR and the need to avoid delays. /3/
e Authority. Minimizing any uncertainty under the ''delegation''
doctrine or similar theories that may adversely affect the authority of
some neutrals to render a binding decision. This consideration,
however, should not prove troublesome where neutrals merely aid the
parties in reaching agreement (as in nearly all mediations, minitrials
and negotiated rulemakings).
These proposals are intended to help agencies meet the challenge of
reaching these goals in a time of reduced resources and in a milieu in
which many affected interests may oppose change.
/1/ In Recommendation 86-3, the Conference called on agencies, where
not inconsistent with statutory authority, to adopt alternatives to
litigation and trial-type hearings such as mediation, minitrials,
arbitration and other ''ADR'' methods. Agencies' Use of Alternative
Means of Dispute Resolution, 1 CFR 305.86-3. In the rulemaking sphere,
Recommendations 82-4 and 85-5 have been instrumental in promoting agency
experimentation with negotiated rulemaking, which involves convening
potentially interested parties to negotiate the details of a proposed
rule. Procedures for Negotiating Proposed Regulations, 1 CFR 305.82-4
and .85-5. See also, Negotiated Cleanup of Hazardous Waste Sites Under
CERCLA, 1 CFR 305.84-4; Resolving Disputes Under Federal Grant
Programs, 1 CFR 305.82-2; and Case Management as a Tool for Improving
Agency Adjudication, 1 CFR 305.86-7.
/2/ See the Glossary in the Appendix for brief descriptions of the
roles of neutrals in various proceedings.
/3/ While there may be situations in which agencies can obtain the
services of a qualified outside neutral without following formal
procurement procedures, acquisitions of neutrals' services are generally
governed by the Competition in Contracting Act, Pub. L. No. 98-369,
title VII, 98 Stat. 1175, which mandates full and open competition for
contracts to supply goods and services to the Federal government, and
the Federal Acquisition Regulations, 48 CFR chapter 1, parts 1-53, which
sets forth detailed procedures for conducting competitive procurements.
01 CFR 305.86-8 Recommendation
01 CFR 305.86-8 A. Availability and Qualifications of Neutrals
1. Agencies and reviewing bodies should pursue policies that will
lead to an expanded, diverse supply of available neutrals, recognizing
that the skills required to perform the services of a dispute resolution
neutral will vary greatly depending on the nature and complexity of the
issues, the ADR method employed, and the importance of the dispute.
Agencies should avoid unduly limiting the pool of acceptable individuals
though the use of overly restrictive qualification requirements,
particularly once agencies have begun to make more regular use of ADR
methods. While skill or experience in the process of resolving
disputes, such as that possessed by mediators and arbitrators, is
usually an important criterion in the selection of neutrals, and
knowledge of the applicable statutory and regulatory schemes may at
times be important, other specific qualifications should be required
only when necessary for resolution of the dispute. For example:
(a) Agencies should not necessarily disqualify persons who have
mediation, arbitration or judicial experience but no specific experience
in the particular ADR process being pursued.
(b) While agencies should be careful not to select neutrals who have
a personal or financial interest in the outcome, insisting upon
''absolute neutrality'' -- e.g., no prior affiliation with either the
agency or the private industry involved -- may unduly restrict the pool
of available neutrals, particularly where the neutral neither renders a
decision nor gives formal advice as to the outcome.
(c) Agencies should insist upon technical expertise in the
substantive issues underlying the dispute or negotiated rulemaking only
when the technical issues are so complex that the neutral could not
effectively understand and communicate the parties' positions without
it.
2. Agencies should take adavantage of opportunities to make use of
government personnel as neutrals in resolving disputes. These persons
may include agency officials not otherwise involved in the dispute or
employees from other agencies with appropriate skills, administrative
law judges, members of boards of contract appeals, and other responsible
officials. The Administrative Conference, Federal Mediation and
Conciliation Service (''FMCS''), the Department of Justice (particularly
the Community Relations Service (''CRS'')) and other interested agencies
should work to encourage imaginative efforts at sharing the services of
Federal ''neutrals,'' to remove obstacles to such sharing, and to
increase parties' confidence in the selection process.
3. Congress should consider providing FMCS, CRS and other appropriate
agencies with funding to train their own and other agencies' personnel
in the particular skills needed to serve in minitrials, negotiated
rulemakings, and other ADR proceedings.
4. The Administrative Conference, in consultation with FMCS, should
assist other agencies in identifying neutrals and acquiring their
services and in establishing rosters of neutral advisors, arbitrators,
convenors, facilitators, mediators and other experts on which Federal
agencies could draw when they wished. The rosters should be based,
insofar as possible, on full disclosure of relevant criteria (education,
experience, skills, possible bias, and the like) rather than on strict
requirements of actual ADR experience or professional certification.
Agencies should also consider using rosters of private groups (e.g., the
American Arbitration Association). The Conference, FMCS or another
information center should routinely compile data identifying disputes or
rulemakings in which neutrals have participated so that agencies and
parties in future proceedings can be directed to sources of information
pertinent to their selection of neutrals.
5. Agencies should take advantage of opportunities to expose their
employees to ADR proceedings for training purposes, and otherwise
encourage their employees to acquire ADR skills. Employees trained in
ADR should be listed on the rosters described above, and their services
made available to other agencies.
01 CFR 305.86-8 B. Acquiring Outside Neutrals' Services
1. In situations where it is necessary or desirable to acquire
dispute resolution services from outside the government, agencies should
explore the following methods:
(a) When authorized to employ consultants or experts on a temporary
basis (e.g., 5 U.S.C. 3109), agencies should consider utilizing that
authorization in furtherance of their ADR or negotiated rulemaking
endeavors.
(b) Agencies contemplating ADR or negotiated rulemaking projects
involving private neutrals should, as part of their acquisition planning
process pursuant to the Federal Acquisition Regulation (''FAR'') part 7,
/4/ periodically give notice in the Commerce Business Daily and in
professional publications of their needs and intentions, /5/ so as to
allow interested organizations and individual ADR neutrals to inform the
agency of their interest and qualifications.
(c) Where speed is important and the amount of the contract is
expected to be less than $25,000, agencies should use the streamlined
small purchase procedures of subpart 13.1 of the Federal Acquisition
Regulation /6/ in acquiring the services of outside neutrals,
particularly minitrial neutral advisors, mediators and arbitrators.
(d) Agencies that foresee the need to hire private neutrals for
numerous proceedings should consider the use of indefinite quantity
contracts as vehicles for identifying and competitively acquiring the
services of interested and qualified neutrals who can then be engaged on
an expedited basis as the need arises. Agencies should, where possible,
seek contracts with more than one supplier. In fashioning such
indefinite quantity contracts, agencies should take care to comply with
the following:
(1) Agency contracts should specify a minimum quantity, which could
be a non-nominal dollar amount rather than a minimum quantity of
services. /7/
(2) Negotiation of individual orders under the contract is desirable,
but should generally adhere to the personnel, statements of work, and
cost rates or ceilings set forth in the basic indefinite quantity
contract, so as to minimize ''sole source'' issues.
(e) Agencies should also consider:
(1) Entering into joint projects for acquiring neutrals' services by
using other agencies' contractual vehicles.
(2) Using other contracting techniques, such as basic ordering
agreements and schedule contracts, where appropriate to meet their needs
for neutrals' services.
(3) Proposing a deviation from the FAR or amending their FAR
supplements, where appropriate.
(f) Agencies should evaluate contract proposals for ADR neutrals'
services on the qualifications of the offeror, but cost alone should not
be the controlling factor. /8/
2. The Civilian Agency Acquisition Council and Defense Acquisition
Regulatory Council should be receptive to agency or Administrative
Conference proposals for deviations from, /9/ or amendments to, the FAR
to adapt procurement procedures to the unique requirements of ADR
processes, consistent with statutory mandates.
3. In the absence of appropriate considerations suggesting a
different allocation of costs, in minitrials and arbitration the parties
customarily should share equally in the costs of the neutrals' services.
/4/ 48 CFR part 7.
/5/ Agencies are required to give Commerce Business Daily notice for
all contract solicitations in which the government's share is likely to
exceed $10,000. 15 U.S.C. 637(e); 48 CFR 5.201(a). For procurements
between $10,000 and $25,000 in which the agency reasonably expects to
receive at least two offers, no such notice is required. Pub. L. No.
99-591, October 18, 1986, title IX, section 922.
/6/ 48 CFR subpart 13.1. This subpart allows agencies to make
purchases in amounts less than $25,000 without following all of the
formalities prescribed in the FAR for ordinary procurements. If the
procurement is for less than $10,000, the agency need not advertise it
in advance in the Commerce Business Daily. 48 CFR 5.201(a). None of
these provisions relieves the agency of its mandate to obtain
competition.
/7/ 48 CFR 16.504(a)(2).
/8/ 48 CFR 15.605(c).
/9/ 48 CFR 1.402.
01 CFR 305.86-8 Glossary
Mediator. A mediator is a neutral third party who attempts to assist
parties in negotiating the substance of a settlement. A mediator has no
authority to make any decisions that are binding on either party.
Convenor/Facilitator. Negotiated rulemakings generally proceed in two
phases, one using a ''convenor'' and the other a ''facilitator.'' In the
first (convening) phase, a neutral called a convenor studies the
regulatory issues, attempts to identify the potentially affected
interests, and then advises the agency concerning the feasibility of
convening representatives of these interests to negotiate a proposed
rule. If the agency decides to go forward with negotiating sessions,
the convenor assists in bringing the parties together. In the second
(negotiating) phase, a neutral called a facilitator manages the meetings
and coordinates discussions among the parties. When the parties
request, a facilitator may act as a mediator, assisting the negotiators
to reach consensus on the substance of a proposed rule. The roles of
convenor and facilitator sometimes overlap, and often both functions are
performed by the same person or persons. Neither a convenor nor a
facilitator has authority to make decisions that are binding on the
agency or on the participating outside parties.
Neutral Advisor. A minitrial is a structured settlement process in
which each party to a dispute presents a highly abbreviated summary of
its case before senior officials of each party authorized to settle the
case. In this recommendation, it is presumed that the government is one
party to the dispute. In some (but not all) minitrials, a neutral
advisor participates by hearing the presentations of the parties and,
optionally, providing further assistance in any subsequent attempt to
reach a settlement. Typically, a neutral advisor is an individual
selected by the parties. Duties of a neutral advisor may include
presiding at the presentation, questioning witnesses, mediating
settlement negotiations, and rendering an advisory opinion to the
parties. In no event does a neutral advisor render a decision that is
binding on any party to a minitrial.
Arbitrator. An arbitrator is a neutral third party who issues a
decision on the issues in dispute after receiving evidence and hearing
argument from the parties. Arbitration is a less formal alternative to
adjudication or litigation, and an arbitrator's decision may or may not
be binding. Arbitration may be chosen voluntarily by the parties, or it
may be required by contract or statute as the exclusive dispute
resolution mechanism.
(51 FR 46990, Dec. 30, 1986)
01 CFR 305.87-1 Priority setting and management of rulemaking by the
Occupational Safety and Health Administration (Recommendation 87-1).
The Administrative Conference has undertaken a study of the
rulemaking process at the Occupational Safety and Health Administration.
It is recognized that OSHA's mandate to regulate any substance or
hazard that poses a significant risk to workers and, to the extent
feasible, make every workplace safe is daunting, and that alternative
approaches to substance-by-substance regulation may be necessary. The
Conference plans to address this larger issue in its continuing study.
In this recommendation, the Conference suggests procedures that OSHA can
institute administratively to improve two aspects of its current process
for developing health and safety standards.
In part 1, the Conference recommends to OSHA a procedure for
systematically setting long-term priorities for promulgating standards
for regulating health and safety hazards. Once established, the
recommended regulatory priorities lists will serve as a baseline against
which additions or modications of the lists can be considered. The task
of developing the priority lists would be assigned to a permanent,
internal agency committee, with additional representation from the
National Institute for Occupational Safety and Health (NIOSH). The
committee would work closely with other health and environmental
agencies in developing initial priority lists which would be submitted
for decision to the Assistant Secretary for Occupational Safety and
Health, Department of Labor. /1/
Although these regulatory priorities lists should generally govern
when OSHA initiates rulemaking, the Conference does not intend that this
priority-setting process should in any way diminish the Assistant
Secretary's authority to promulgate rules on an expedited basis under
the Occupational Safety and Health Act or the Administrative Procedure
Act. Moreover, the recommendation (in paragraph 1.d.) takes account of
the need for an expedited priority decision process in certain
situations, such as referral by the Environmental Protection Agency of
rulemaking topics under the Toxic Substances Control Act or the filing
of rulemaking petitions.
The Conference believes that the procedures suggested in part 1 would
be infeasible if OSHA's regulatory priority rankings could be challenged
in suits for judicial review. Therefore, the Conference urges that the
regulatory priorities lists not be treated as rules for which judicial
review would be appropriate. /2/ Nonetheless, public participation is
desirable, and the Conference sets forth specific steps OSHA should take
to involve the public in its priority-setting process.
Part 2 of the recommendation suggests procedures for OSHA's
management of rulemaking. The Conference's study revealed the need for
systematic monitoring of the progress of individual rulemakings and for
greater coordination at the staff and policy levels. Thus, the
recommendation suggests that OSHA adopt a computer-based tracking
system, a team approach to rulemaking, and an options review process to
involve high-level agency policymaking oficials in designated major
rulemakings.
The Conference does not intend either the priority-setting or
management procedures in this recommendation to affect OSHA's compliance
with any other procedural requirements to which it is subject pursuant
to statute or executive order.
/1/ In 1982 the Conference addressed the importance of interagency
cooperation in identifying and ranking potentially cancer-causing
chemicals for regulation and recognized the important role played by the
National Toxicology Program in fostering such cooperation, see ACUS
Recommendation 82-5, Federal Regulation of Cancer-Causing Chemicals,
part II, 1 CFR 305.82-5.
/2/ The tentative nature of agency rankings and the need for
flexibility were previously recognized by the Conference in considering
priority-setting for the regulation of cancer-causing chemicals. See
ACUS Recommendation 82-5, id., part I, 5.
01 CFR 305.87-1 Recommendation
01 CFR 305.87-1 1. Setting of Priorities for Rulemaking
This part recommends procedures that the Occupational Safety and
Health Administration should follow in establishing priorities for
promulgating standards for regulating health and safety hazards.
a. Regulatory Priorities Committee. OSHA should establish a
permanent committee charged with developing regulatory priorities which,
once they are approved by the Assistant Secretary for Occupational
Safety and Health, Department of Labor, will presumptively apply when
the agency undertakes rulemaking to establish health and safety
standards.
(1) This committee should include high-level management officials and
experienced professionals from OSHA and a representative from the
National Institute for Occupational Safety and Health (NIOSH). To
provide continuity, committee members should be appointed for staggered
terms and be eligible for reappointment. The committee should otherwise
be no larger than necessary to discharge its duties.
(2) OSHA should provide adequate staff support for the committee and
additional resources as necessary to enable it to gather information on
potential rulemaking topics and, where appropriate, to perform risk
assessments and priority-setting.
(3) The committee should establish initial priority lists for health
and safety regulation and, thereafter, meet regularly to consider
addition, deletions or revisions of the lists and to conduct periodic
reviews.
(i) In developing an initial priority list, the committee should use
existing information, including risk assessments and other technical and
policy considerations. The committee should avoid elaborate risk
assessments or weighting systems, and it should not incorporate by
reference lists prepared by other agencies for other purposes.
(ii) It may be appropriate, however, for the committee to utilize
more sophisticated risk assessments or weighting systems when it
conducts a periodic review of, or considers modifications to, a priority
list.
(4) OSHA should work closely with NIOSH, other relevant health and
environmental agencies, and the National Toxicology Program in
developing its initial priority lists and in revising these lists. In
addition, OSHA and NIOSH should establish procedures that will permit
rapid exchanges of information on projects that OSHA assigns to the
expedited decision process (see paragraph d. below).
b. Judicial Review. The Assistant Secretary's decision to place a
topic on a regulatory priorities list, the ranking of a topic on a list,
and subsequent modification of a topic's priority on a list should not
be treated as rules for which judicial review would be appropriate.
However, the Assistant Secretary should allow public participation in
the priority-setting process (in accordance with paragraph c. below) and
provide an explanation of priority decisions.
c. Public Participation. OSHA should take the following steps to
involve the public in its regulatory priority-setting process:
(1) Before establishing the initial priority lists, OSHA should hold
public workshops at which interested persons are invited to comment on
regulatory priorities.
(2) The results of meetings of the regulatory priorities committee
should be made public after the Assistant Secretary has had an
opportunity to review any proposed decisions of the committee.
(3) The Assistant Secretary should publish for public comment the
proposed initial priority lists of rulemaking topics and, thereafter,
any proposed modifications to the lists. The topics on the lists should
either be ranked individually or assigned to classes.
d. Expedited action. Once the initial priority lists are developed,
OSHA should establish a procedure for expediting priority decisions on
additional topics or modifications that are presented by referrals from
EPA under the Toxic Substances Control Act, rulemaking petitions, or
requests from Congress, the President, or other agencies. While
separate from the agency's routing priority-setting process, this
expedited process should be coordinated with it. The outcome of the
expedited process should be the placement of the topic on the
appropriate list, modification of a list (e.g., deletion or changed
ranking of a topic), or a determination not to place, or modify the
placement of the topic, on the list, together with a public explanation
for the action.
01 CFR 305.87-1 2. Management of the Rulemaking Process.
This part recommends procedures that OSHA should adopt for the
management of its rulemaking process.
a. Action Tracking System. OSHA should establish a computer status
system to set deadlines for meeting established milestones in rulemaking
and to provide for systematic review of the progress of ongoing
rulemaking. Under this system, management officials, representing all
interested agency components, should meet at regular intervals with the
Assistant Secretary or a Deputy Assistant Secretary to discuss progress
toward designated milestones.
b. The Team Approach. OSHA should establish a team concept in
rulemaking. A team for each individual rulemaking, consisting of
representatives of all potentially interested components of OSHA and the
Department of Labor (e.g., the Office of the Solicitor), should be
appointed early in the rulemaking process to gather and analyze
information, draft documents, respond to comments and advise the
Assistant Secretary. Successfully functioning teams should be assigned
to additional rulemakings where feasible.
c. Options Review Process. OSHA should implement an ''options
review'' process to provide policy guidance to teams working on
designated health and safety standard rulemaking. This process /3/
would provide that at least once in the early development of such rules
(and perhaps again at later stages of rulemaking), the rulemaking team
will identify and analyze regulatory options for consideration by a
high-level agency policymaking official in an options review meeting.
This meeting should produce discussion of alternative approaches for
rulemaking and a narrowing of the range of options to be considered in
the future; any decisions should be recorded in a memorandum that is
available to the team. The options review meeting could be held in
conjunction with the regular action tracking meetings recommended above
(paragraph 2.a.).
(52 FR 23629, June 24, 1987)
/3/ The options review process herein recommended is currently
employed successfully by the Environmental Protection Agency.
01 CFR 305.87-2 Federal protection of private sector health and safety
whistleblowers (Recommendation 87-2).
Private sector employees who make disclosures concerning health and
safety matters pertaining to the workplace are protected against
retaliatory actions by over a dozen Federal laws. By common usage these
employees, as well as others who make similar disclosures concerning
fraud or other misconduct (but who are byond the Conference's current
study), /1/ have become known as whistleblowers. Under current
statutes, for example, nuclear power plant workers, miners, truckers,
and farm laborers are specifically protected when acting as
whistleblowers. Other workers may be covered under the more general
protections granted by the Occupational Safety and Health Act (OSHA) or
various environmental laws.
The protection provided employees by the so-called whistleblower
statutes under study serves the important public interest of helping
ensure the health and safety of workers in the various regulated
industries or activities, as well as that of the general public. The
statutes are intended to create an environment in which an individual
can bring a hazardous or unlawful situation to the attention of the
public or the government without fear of personal reprisal. Such
disclosures can be a valuable source of information especially where the
public lacks the knowledge or access to information necessary to be
fully informed on these important issues.
In its examination of the current Federal statutory scheme designed
to protect whistleblowers in the private sector, the Conference found
that, as currently written, the various whistleblower statutes lack
uniformity in a number of areas including the following:
1. Investigative responsibility is assigned to numerous agencies,
including the Department of the Interior and several within the
Department of Labor (DOL), with little coordination among them.
2. Adjudicatory responsibility is similarly divided. For example,
while several statutes provide for adjudication by a DOL administrative
law judge, others provide for decisions by different agencies or for
trial in the district court.
3. Judicial review likewise differs. Some statutes provide for
review in the district court, some in the court of appeals. And for
some, no review is available.
4. Statutes of limitations for filing a complaint range from 30 days
to 180 days.
5. Definitions of protected conduct differ according to statute. For
example, protected disclosure may include any disclosure or may be more
narrowly defined as disclosure to ''the public,'' to the media, to the
responsible agency, or to a union or employer. Protected conduct may or
may not include refusals to work.
6. In certain cases where the designated agency declines to proceed
with the complaint (under either the OSHA or the Asbestos Hazard
Emergency Response Act), the complaining employee is left without any
further administrative or judicial review.
As a result of these statutory incongruities, available procedures
and protections may differ depending solely upon the industry to which
an aggrieved employee belongs. For example, an employee seeking
protection under the Clean Air Act (CAA) has 30 days in which to file a
complaint, while an employee filing under provisions of the Migrant
Seasonal and Agricultural Worker Protection Act (MSAWPA) has 180 days.
And while both CAA and MSAWPA violations are investigated by the Wage
and Hour Division of the Department of Labor, adjudication of CAA
complaints is before a DOL administrative law judge, while MSAWPA
complaints are adjudicated in the district courts. The Conference has
concluded that this lack of uniformity does not appeal to be reasoned,
but most likely reflects the incremental enactment of the various
statutes over a period of years.
Accordingly, the Conference believes that omnibus whistleblower
legislation providing for centralization of the investigative and
adjudicative functions is needed. Because the Department of Labor now
investigates and adjudicates such complaints under the majority of
existing statutes, centralization in that Department is the logical
choice. Although specialized expertise possessed by agencies
responsible for the various regulatory programs covered by whistleblower
provisions may be required in exceptional circumstances to resolve these
disputes, the Conference believes that centralization is preferable and
that enforcement and adjudicative responsibilities should where feasible
be assigned to the DOL.
The Conference study also discussed areas of regulation where gaps in
whistleblower protection exist. These include the aviation and
aeronautics industries, vessel construction and operation, and
manufacturing and production of food, drugs, medical devices or consumer
products generally. Where Congress has judged it necessary to regulate
an industry so as to ensure the safety of its workplace, products,
services or the environment, Congress should consider whether it is
appropriate that enforcement of the regulatory scheme be strengthened by
providing whistleblower protection for the industry's employees who
report statutory violations.
The study also indicated that access to written decisional precedents
in these cases needs to be improved. The Department of Labor's Office
of Administrative Law Judges does not yet publish its decisions
(although it has recently announced plans to do so), and a unified index
for these decisions and those of other agency adjudicative bodies does
not exist. Publication and indexing of existing case law should help
narrow the issues for future adjudications, contribute to a sense of
fairness in the adjudicatory process, and improve case management. In
addition, the study found that, with certain exceptions, there is little
interation between the program agency and the investigating/adjudicating
agency, thus diminishing the involvement of the lead program agencies.
Procedures should be established by which program agencies provide
assistance to investigative agencies, and adjudicatory agencies report
decisions back to the program agency.
Finally, the Conference notes that there is a growing amount of
litigation in state courts concerning whistleblowers, but does not take
a position on whether Federal statutes do or should preempt state law in
this field. (ACUS Recommendation 84-5, Preemption of State Regulation
by Federal Agencies, recommends that Congress address foreseeable
preemption issues, and advises regulatory agencies to be aware of
situations where a conflict might arise.)
With the increasing interest in these matters by Congress, the media
and the general public, the Conference hopes that its study will provide
a foundation for needed improvements.
/1/ The Conference has limited its study to health and safety related
disclosures because in this area a pattern of Federal statutory
protections has emerged with sufficient experience to allow a study.
01 CFR 305.87-2 Recommendation
1. In the interest of uniform treatment of private sector health and
safety whistleblowers, Congress should enact omnibus legislation for the
handling and resolution of whistleblowers' complaints. In enacting this
legislation, Congress should review the categories of workers to which
it is appropriate to extend whistleblower protection. As a general
matter, the administration of this program should be centralized in the
Department of Labor in furtherance of efficiency and harmony of results.
If, however, Congress deems it necessary for a program agency to retain
or receive investigative or adjudicative responsibility for
whistleblower complaints. Congress should strive for uniformity in the
substantive protections and procedures applicable to the separate
program. /2/ The omnibus and any other whistleblower legislation should
include:
(A) A uniform definition of protected conduct;
(B) A uniform statute of limitations of not less than 180 days
governing the filing of complaints;
(C) A uniform provision for remedies:
(D) Assignment of preliminary investigative responsibility to the
Secretary of Labor /3/ for all private sector health and safety
whistleblowing retaliation cases;
(E) Authorization for the Secretary of Labor to employ alternative
means of resolving these disputes, with the consent of the parties (see
ACUS Recommendation 86-3, Agencies' Use of Alternative Means of dispute
Resolution);
(F) Provision for an opportunity by any affected person to request an
on-the-record APA hearing before a Department of Labor administrative
law judge and for discretionary review by the Secretary of Labor,
judicial review in the courts of appeals, and enforcement in the
district courts;
(G) A grant of subpoena power to the Secretary of Labor for
whistleblowing investigations and hearings, with provision for judicial
enforcement; and
(H) A grant of rulemaking authority to the Secretary of Labor with
respect to investigative and adjudicatory procedures, notice-posting
requirements and mandatory coordination with other agencies.
II. Whether or not Congress enacts omnibus whislteblowing
legislation, the Secretary of Labor should:
(A) Promulgate rules of appellate procedure governing practice and
procedure in connection with the Secretary's review of administrative
law judge decisions in whistleblower cases;
(B) Transfer primary private sector health and safety whistleblowing
investigative responsibility to a single entity within the Department of
Labor, absent compelling reasons to the contrary;
(C) Develop, in consultation with the agencies responsible for the
substantive regulatory programs, detailed written procedures for
coordinating investigation, adjudication and follow-up in whistleblowing
cases; and
(D) In accordance with the Freedom of Information Act, 5 U.S.C.
552(a)(2)(A), index and publish all ALJ and Secretarial decisions in
whistleblowing cases, including those rendered prior to the date of this
recommendation.
(52 FR 23631, June 24, 1987)
/2/ The Conference does not intend to suggest that whistleblower
protection provisions now administered by the Department of Labor be
reassigned. Nor is this recommendation intended to affect the existing
jurisdiction of the National Labor Relations Board to investigate and
adjudicate allegations of unfair labor practices.
/3/ All references to the Secretary of Labor in recommendations
I(D)-I(H) encompass other appropriate agency heads in instances where
Congress deems it necessary for a program agency to retain
responsibility.
01 CFR 305.87-3 Agency hiring of private attorneys (Recommendation
87-3).
In 1985 the Federal Government employed over 20,000 lawyers in
various positions. At the same time it spent millions of dollars to
retain private attorneys to provide diverse legal services. The Federal
Deposit Insurance Corporation (FDIC) and the Federal Home Loan Bank
Board/Federal Savings and Loan Insurance Corporation (FHLBB) accounted
for most of these expenditures. The attorney fees paid by the FDIC and
the FHLBB have increased rapidly since 1982 and have been incurred
primarily in their capacities as receivers or liquidators of failed
financial institutions for which they have provided deposit insurance.
In those cases, the legal fees and other expenses are borne by the
estate of the failed bank. However, many other Federal agencies,
including government corporations, utilize the services of private
attorneys -- in some instances on a regular basis -- and the fees are
usually paid from appropriated funds.
This recommendation results from a survey of the use of private
attorneys by government agencies and consideration by the Conference of
the process that should be employed in deciding whether to retain
outside counsel, including the ethical concerns that may arise when
outside counsel are retained. The recommendation applies to any agency
that hires private attorneys to represent the agency or to provide it
with legal advice, i.e., where an attorney-client relationship is
established. The scope of the recommendation accordingly does not
extend to instances where an agency hires an individual who may be an
attorney but is clearly not being hired to act in that capacity. The
scope may therefore exclude some persons who are hired to do independent
research, arbitrators hired to decide personnel or other disputes, or
persons hired to provide mediation or similar services in connection
with negotiated rulemaking. /1/
Retention of private attorneys for litigation, where lawfully
authorized, is within the scope of this recommendation. Congress has
generally vested the power to litigate in the Department of Justice,
although several agencies have been granted independent litigating
authority by statute. Unless an agency is granted such authority, the
consent of the Department of Justice is required for another agency to
retain outside counsel for those purposes (5 U.S.C. 3106).
While some elements of the recommendation may state principles that
are relevant to obtaining the services of other professionals, the
Conference has studied only the retention of private attorneys. The
focus of this recommendation on attorneys recognizes the role of the
lawyer in implementing and enforcing government policy and the ethical
requirements that are peculiarly applicable to attorneys.
In the private sector, it is cost-effective both to employ a
full-time legal staff and to contract out some legal assignments. Many
corporations have focused attention on methods to ensure that the size
of the in-house staff is optimal and that work is contracted out only
when necessary or for certain categories of work. Corporations have
developed guidelines, criteria, and procedures to control the cost and
ensure the quality of legal services.
In the public sector, concern for cost-effectiveness, a multi-faceted
goal which does not look at the factor of price in isolation, is also
clearly appropriate. The Conference has considered whether there should
be a fixed cap on hourly fees to be paid to private attorneys hired by
agencies, and has concluded that a government-wide limitation is
inadvisable because it may prevent the government from obtaining high
quality legal services. In many cases, the aggregate cost of legal
services does not depend on hourly rates alone, and all relevant facts
should be considered in determining the economic efficiency of a
proposed contract for legal services. It may, however, be appropriate
for individual agencies to limit hourly rates for certain types of
services, if such limits are set at realistic levels. In hiring private
counsel, agencies can also take into consideration the attorney's
willingness to negotiate fees, seeking the most competitive fees
available, while securing the skills and efficiency required.
Important additional considerations bear on the decision of the
Federal government to rely on outside counsel. An agency should be
acutely aware of the need for control over the activities of outside
counsel to ensure, among other things, that the constitutional vesting
of governmental authority in ''officers'' of the United States is
observed in fact. The need for close control may vary with the
circumstances, but it must assume preeminent importance in litigation.
In procuring the services of attorneys, agencies must also
scrupulously avoid favoritism, or the appearance of favoritism, which
can erode public confidence in the integrity and fairness of the
government. Competitive procedures, whether mandated by procurement
statutes or imposed as a matter of agency policy, will reduce the
prospect or appearance of favoritism and result in higher quality legal
services and savings in cost. Depending on the circumstances, the
requisite procedures may range from a public solicitation of formal
proposals to informal telephone requests to several sources for
information relating to qualifications, availability, and fees.
Appropriate competitive procedures should consider both cost and the
more subjective elements of professional skill and efficiency.
Attorneys performing work for the goverment must maintain the highest
ethical standards. They should be particularly sensitive to questions
of appearances and propriety. Neither the circumstances of their
retention nor their conduct of their engagement should provide the
slightest basis for loss of public confidence in the administration of
justice or the integrity of the governmental process.
The hiring of outside counsel may raise important questions regarding
conflicts between the interests of the government and others, which
Federal criminal law (18 U.S.C. 202 et seq.), ethics rules applicable to
Federal employees, and codes of professional responsibility seek to
guard against. The principal ethical problem for outside attorneys
involves simultaneous representation of the agency and, in a separate
matter, a private party whose interests are adverse to the agency or the
related interests of another agency. An important additional question
is presented when an attorney or firm appears before an agency in a
non-adversarial role on behalf of one client while simultaneously acting
as attorney for the agency in a different matter.
The government, like any client of a private attorney, may consent to
representation of adverse interests by its outside counsel. Any such
consent, however, should be fully informed. Accordingly, to afford full
protection to the government and the public, every effort must be made
to identify conflicts or potential conflicts before work is contracted
out, and to assure that, during the course of the representation,
previously unanticipated problems are immediately disclosed so that the
agency may take appropriate action.
Retainer agreements should identify the ''client'' with specificity
and address questions related to existing or potential adverse
representations. In many instances, only the agency that retains the
private attorney will have an interest in the subject matter of the
engagement, and in those instances that agency should ordinarily be
considered the ''client.'' This would have the effect of allowing
outside counsel to appear before, or represent interests adverse to,
other Executive Branch agencies in unrelated matters. Where broader
interests of the government may be implicated, the agency retaining
outside counsel will need to take those interests into account when
drafting the retainer agreement.
To assure that all of these concerns are taken into account, any
agency that anticipates a need to hire private attorneys should prepare
written public guidelines concerning when and how it will seek outside
counsel. As an element of agency control and to avoid later
misunderstandings, appropriate written instructions should be given to
attorneys when they are retained. The FDIC, FHLBB, and the Department
of Justice have developed documents for these purposes, and agencies
drafting guidelines and instructions should refer to them as possible
models. Agencies may also find useful models in the private sector for
some elements of their guidelines.
To respond to the concerns surrounding government use of outside
counsel, agencies should prepare an annual public report listing basic
information relating to legal service contracts awarded.
/1/ The Administrative Conference has not studied the appointment of
independent counsel under the Ethics in Government Act, 28 U.S.C.
591-598, and this recommendation does not address the selection of such
counsel.
01 CFR 305.87-3 Recommendation
01 CFR 305.87-3 1. Scope of Recommendation
This recommendation applies to any agency that hires private
attorneys to represent the agency or to provide it with legal advice,
i.e., where an attorney-client relationship is established.
01 CFR 305.87-3 2. Use of In-House Government Attorneys
(a) Government agencies should continue to obtain most of the legal
services that they need from government attorneys.
(b) When agencies cannot develop the necessary legal resources
in-house, they should explore the possibility of utilizing the expertise
found at other agencies of the government, on a temporary or short-term
basis. The Office of Personnel Management should establish a procedure
for sharing information among agencies on the kinds of legal resources
available within the government.
01 CFR 305.87-3 3. Guidelines for Hiring Outside Counsel
Each agency that anticipates a need to hire private attorneys should
prepare written public guidelines detailing: (a) The criteria for
deciding whether or not to seek outside legal assistance, (b) the
factors relevant to the choice of attorney or firm, (c) the procedures
for procurement, (d) appropriate limitations on counsel's authority, (e)
conflict of interest and other ethical considerations, (f) billing
practices, and (g) procedures for review of fees.
01 CFR 305.87-3 4. The Decision to Hire Outside Counsel
When an agency is considering whether to hire outside counsel, the
agency should first assure itself (a) that it is authorized by law to
hire outside counsel for the particular matter, (b) that it can exercise
sufficient control over the performance of the services to be obtained,
and (c) that such employment is cost-effective. The price of the
services should not, however, be the sole test of cost-effectiveness.
Also of importance in assessing the benefit to be gained from the use of
outside counsel are the quality of the services provided, the
availability of necessary expertise within the agency, and the need for
an outside independent perspective.
01 CFR 305.87-3 5. Competition
In obtaining outside counsel, the agency should employ appropriate
competitive procedures to assure that the requisite quality of service
is obtained at a reasonable price without the fact or appearance of
favoritism. The Office of Federal Procurement Policy should review the
existing provisions of the Federal Acquisition Regulation to ensure that
legal services can be procured consistently with the objectives of this
recommendation.
01 CFR 305.87-3 6. Control of Performance
The contracting agency should retain such control over the
performance of outside counsel as is necessary to assure that the
governmental and public interests at stake are fully protected. To
facilitate control, the agency should at the outset provide the attorney
with specific written instructions regarding the conduct of the
professional representation. Control is particularly important where
the outside counsel is engaged to represent an agency in litigation.
01 CFR 305.87-3 7. Public Reports
Each agency that hires outside counsel should prepare and maintain in
the office of its chief legal officer an annual public report, listing
for each occasion on which outside counsel has been retained: (a) The
attorney or firm and the type of work involved, (b) the reasons for
engaging outside counsel, (c) the competitive procedures used, if any,
(d) the fee range or other basis for compensation, and (e) the actual
fee paid. For cases involving small amounts, aggregate figures would be
acceptable.
01 CFR 305.87-3 8. Ethical Considerations
(a) An agency should require outside counsel whom it plans to hire to
disclose fully and in writing all existing or potential conflicts of
interest. The disclosure should include all matters that the attorney's
firm has pending before, or reasonably expects to come before, that
agency. The agency should then decide whether to proceed with the
hiring in light of the information provided. If the attorney-client
privilege or other rules prevent outside counsel from making full
disclosure to the agency, then the outside counsel should not be
employed. The agency's agreements with outside counsel should
specifically identify the types of professional employment that cannot
be undertaken because of the attorney's service to the agency.
(b) Federal agencies and such private attorneys as they retain should
be mindful of the constraints imposed by statutes, regulations,
executive orders, codes of professional conduct, and any applicable
guidelines that pertain to conflict of interest and other potential
ethical problems. Such provisions and guidelines should be explicitly
identified and incorporated in the agency's contracts with outside
counsel. /2/
(c) When an attorney retained by an agency is not a special
government employee within the meaning of 18 U.S.C. 202(a), at a minimum
those restrictions which apply to such employees should be adopted by
the contract with the attorney unless they are clearly inappropriate.
Such restrictions include rules of employee responsibilities and conduct
contained, for example, in 5 CFR part 735. /3/
(d) The Department of Justice and the Office of Government Ethics
should provide guidance on the applicability of 18 U.S.C. 203-208 to
agency hiring of outside counsel. Subject to that guidance, agency
guidelines should provide that, for purposes of disqualification based
on prohibitions against simultaneous or sequential representation of
opposing parties, different departments or independent agencies of the
Federal government should normally be considered to be different
clients. /4/ The guidelines should also provide that, if more than one
agency has a common interest in the matter, then the definition of
''client'' should include any such agency or agencies. The guidelines
should also make clear that all lawyers in the firm, including all
branch offices of the firm, are subject to the applicable restrictions
on simultaneous or sequential representation, and that these
restrictions apply not merely to litigation, but to all matters in which
an attorney-client relationship has been established. /5/
(e) The guidelines should also address the varying circumstances in
which an attorney may represent other clients in matters involving the
agency. The guidelines should identify those situations that should be
avoided.
(f) If a private attorney represents the same agency frequently, then
their relationship should be considered as a continuing one. In such a
situation, neither the attorney nor the attorney's firm should agree to
represent another client in a matter involving the client agency without
the agency's explicit consent, even if, at that time, the attorney is
not representing or advising the agency on a specific matter.
/2/ The contract should indicate whether and to what extent outside
counsel may take inconsistent positions on behalf of an agency and a
private client.
/3/ See 5 CFR 735.301-306, which prescribe ethics and conduct rules
for special government employees. See, particularly, 5 CFR 735.301,
which advises agencies that appropriate ethics and conduct rules for
regular employees, stated elsewhere in part 735, may also be made
applicable by regulation to special government employees.
/4/ This paragraph of the recommendation refers to ''clients'' solely
for the purpose of determining disqualification. The implicit premise
of the recommendation is that the Executive Branch is a unitary entity
whose interests and legal positions are determined by the President or
his delegates, including the Attorney General.
/5/ The Department of Justice should consider, in accordance with
Recommendation 84-5, 1 CFR 305.84-5, whether to issue a regulation that
explicitly preempts any state rule of attorney practice that is in
conflict with its guidance.
01 CFR 305.87-3 9. Limitations on Hourly Rates
No government-wide limitation on hourly rates should be established
for hiring of private counsel. It may be appropriate for agencies to
set a fixed cap on hourly rates that they pay to private attorneys for
routine legal tasks; a higher fee cap may be appropriate for unusual or
complex legal work. Such limits, if adopted, should be set at realistic
levels, in line with fees typically charged for similar services in the
same locale, so that agencies hiring outside counsel will be able to
obtain the needed degree of expertise.
(52 FR 23632, June 24, 1987)
01 CFR 305.87-4 User fees (Recommendation 87-4).
There is widespread interest in Congress and the Executive Branch in
instituting user fees in certain government programs. Although a
general user fee statute (31 U.S.C. 9701) dates to 1952, recent studies,
including a report of the President's Private Sector Survey on Cost
Control, have urged expanded application of such fees. In light of
these developments, the Administrative Conference has undertaken a study
of the user fee concept in cooperation with the Office of Management and
Budget and other Federal agencies.
The decision to institute a user fee for a particular service or good
is a policy decision for Congress and the Executive Branch to determine,
and the Conference does not address this subject. Nevertheless, when
Congress or an agency establishes a user fee, that action should be
based upon general principles that guide the setting and implementation
of fees. The Conference, therefore, in this recommendation seeks to
provide a set of such basic principles.
In this recommendation ''user fee'' means a price charged
identifiable individuals or entities by the Federal government for a
service or good which the government controls. The recommendation
addresses only the institution and implementation of user fees to
promote the efficient and fair allocation of government services and
goods. Accordingly, the Conference does not address the imposition of
charges intended primarily to enhance Federal revenues or primarily to
encourage or discourage behavior unrelated to resource allocation.
01 CFR 305.87-4 Recommendation
01 CFR 305.87-4 A. Benefits
A government service for which a user fee is charged should directly
benefit fee payers. A service provided by the government as a condition
to the pursuit of commercial or other activity (e.g., inspections) may
properly be regarded as a benefit to the fee payer where it confers an
advantage on the fee payer or lessens the fee payer's imposition of
costs or risks on others or on society as a whole.
01 CFR 305.87-4 B. Basic Considerations for Establishing Fee Levels
01 CFR 305.87-4 1. Market and Cost Considerations
When Congress or an agency establishes a user fee for a service or
good provided by an agency, the fee should rest on market factors where
possible. In the absence of a reliable market price, the fee normally
should cover the agency's costs, including all related processing costs
and that portion of other agency costs properly allocable to the service
or good provided (such as anticipated capital replacement or repair
costs).
01 CFR 305.87-4 2. Other Considerations
a. When criteria other than those set forth in paragraph 1 above
(e.g., national policy objectives, program goals or fairness) influence
the decision to establish fees, the costs to be recovered, or the
granting of waivers or reductions, agencies should explain the criteria
used and the rationale for their selection.
b. Where third parties or the general public benefit significantly
from a governmental service, user fees need not be set to recover fully
the cost of providing that service. Agencies should consider the
practicability to allocating costs between fee payers and others when
determining the proportion of service costs to be recovered by user fees
(as opposed to alternative financing mechanisms).
c. The fee level may be set without regard to the distribution of
benefits among the customers, employees and owners of the fee payers.
However, selection of the point of collection should take into account
the costs of administration.
01 CFR 305.87-4 C. Disposition of Fee Receipts
The Conference takes no position on whether fee receipts should be
deposited in the Treasury general fund or earmarked to a specific fund.
In either event, agencies administering programs that collect fees
should be provided with funds sufficient to provide adequate service.
In enacting a user fee, Congress should specifically address the issue
of how the proceeds are to be used.
01 CFR 305.87-4 D. Implementation of Principles
Congress in revising or enacting user fee legislation, and the Office
of Management and Budget in providing implementation guidance and other
information on user fees to agencies, should incorporate the principles
set out in this recommendation. Agencies should review thier user fee
statutes and existing programs to determine whether changes are
necessary to implement these principles.
(52 FR 23634, June 24, 1987)
01 CFR 305.87-5 Arbitration in Federal programs (Recommendation 87-5).
The Administrative Conference has recommended that agencies employ
alternative means of dispute resolution (ADR) in Federal programs. /1/
ADR techniques for rulemaking include structured negotiation and
mediation; for adjudication, they also include arbitration, factfinding
and minitrials. /2/ The bulk of these techniques do not alter the
placement of policymaking authority within the agencies, and therefore
pose few of the legal and policy concerns of binding arbitration, which
typically involves the use of outside arbitrators authorized to make
descisions binding upon the government. If an arbitrator decides a
claim by or against the government, public money will be involved.
Arbitration decisions concerning other issues in administering a federal
program, such as the resolution of enforcement cases or disputes between
the agency and its employees, affect administration of the program. In
programs where the agency's role is to resolve disputes between private
parties, arbitrated disputes will relate to the purposes of the program,
for example by resolving disputes related to program administration. In
addition, the Constitution requires that significant duties pursuant to
public law must be performed by Officers of the United States and their
employees. These concerns can be met if Congress, in authorizing the
use of arbitration, or the agency, when adopting arbitration, confines
it to appropriate issues and provides for the agency's supervision of
arbitration.
Existing law authorizes resort to arbitration in a variety of
different contexts, including claims by and against the government,
disputes between private individuals that are related to program
administration, and labor relations issues between the government and
its employees. Recommendation 86-3 calls on Congress to act to
authorize agency officials to choose arbitration to resolve many
additional disputes.
This recommendation contains procedural advice for Congress, and
occasionally agencies, in an effort to ensure the fairness and
acceptability of arbitration in federal programs. The criteria are
necessarily general, and the appropriateness of particular arbitral
procedures must be judged in the context of the particular functions
they serve. Agencies are generally in the best position to assess the
need for informal and expeditious process, and to weigh that need
against considerations of accuracy, satisfaction, and fairness. While
the Conference encourages granting agency officials broad
''on-the-spot'' discretion to use arbitration, it recognizes the need
for preliminary steps to meet concerns that the process provide some
executive oversight, preserve judicial functions and ensure quality
decisions, and maintain legality and fairness. This recommendation sets
forth procedural criteria to aid Congress and agencies in taking these
first steps.
/1/ See generally Recommendation 86-3, Agencies' Use of Alternative
Means of Dispute Resolution, 1 CFR 305.86-3.
/2/ See Recommendation 82-2, Resolving Disputes Under Federal Grant
Programs, 1 CFR 305.82-2; Recommendations 82-4 and 85-5, procedures for
Negotiating Proposed Regulations, 1 CFR 305.82-4 and 85-5; and
Recommendation 84-4, Negotiated Cleanup of Hazardous Waste Sites Under
CERCLA, 1 CFR 305.84-4.
01 CFR 305.87-5 Recommendation
1. In all cases, congressional authorization for voluntary binding
arbitration, whether performed by government employees or private
arbitrators, should ensure that Congress has made, or the agency will
make, an explicit judgment that arbitration is appropriate for the case
or class of cases in question. Criteria for determining whether
arbitration is appropriate include the following:
(a) Cases subject to arbitration should involve questions of fact or
the application of well-established norms, even if statutory, rather
than precedential issues or application of fundamental legal norms that
are evolving.
(b) In determining whether to employ arbitration, Congress or the
agency should consider the nature and weight of the private interests
involved, the nature and weight of the government's interests, and the
tradeoffs between the costs and benefits of arbitration and those of
more formal processes. A heavy adjudicative caseload and the
particularization of decisions in accord with previously declared
guidelines justify the use of private arbitrators or other
non-government persons.
2. Congress should assess the desirability of mandatory arbitration
in light of the extent to which a person's participation in the
affiliated program is voluntary. /3/ For example, participation in an
entitlement program is more likely to reflect need than consent, and
should not be regarded as consent to arbitration of eligibility.
3. Congressional authorization for arbitration should ensure that:
(a) The agency has an opportunity to choose whether to resort to
arbitration, /4/ and to review the overall composition of any arbitral
pool to ensure its neutrality and, where appropriate, specialized
competence. Agencies should either employ arbitral pools and procedures
that are well-established, such as those of the AAA, or should develop
rosters or pools to meet their special needs; /5/
(b) Parties to an arbitrable controversy, including an agency, have a
role in the selection of the arbitrator, consistent with preserving the
neutrality of the decider, for example by striking names from a list;
and
(c) Arbitral awards are review by agencies or by courts under the
criteria of the U.S. Arbitration Act, which authorizes review of the
facial validity of the award and the intergrity of the process.
Agencies can be authorized ordinarily to review individual awards with
no specific provision for judicial review. /6/ If so, no special
provision need be made for judical review of individual awards.
Judicial review of the overall structure and fairness of the arbitration
program should suffice. In the rare case in which a serious
constitutional issue attends an individual arbitration, such as an
allegation of a taking, existing law provides avenues for relief.
4. Agencies should ensure that the standard for arbitral decisions is
reasonably specific, by promulgating administrative standards where
statutes do not sufficiently guide arbitral decision. A substantial
justice standard for arbitral awards should be used only when explicitly
approved by the agency, because of the resulting difficulties of
administrative or judicial review of the outcome. The sufficiency of
other standards should be judged by whether the parties can consent
meaningfully to arbitration and can prepare their cases, whether the
arbitrators can produce reasonably consistent decisions, and whether
reviewing entities can judge the facial validity of awards.
5. The following considerations should govern the ongoing
administration of arbitral programs:
(a) Agencies should be careful to preserve the objectivity of
arbitration by avoiding instructions or forms of oversight that would
threaten to undermine the arbitrator's neutrality in a particular case.
Plainly, however, generally applicable indicators of pertinent
government policy, such as interpretive regulations, are meant to be
controlling, whether proceedings be in the form of arbitration or agency
adjudication.
(b) Authority to determine the arbitrability of particular disputes
can be placed in the courts, as under the U.S. Arbitration Act, or in
another neutral third party, such as the administering agency where
arbitration concerns private parties, or in an agency other than one
which is a party to arbitration.
(c) Interpretive rulemaking can alter the standards for future
arbitration when monitoring of awards reveals outcomes inconsistent with
the agency's expectations in employing arbitration.
(52 FR 23635, June 24, 1987)
/3/ See Recommendation 86-3, 7-9, Agencies' Use of Alternative
Means of Dispute Resolution, for other limitations on the use of
mandatory arbitration.
/4/ See Id.
/5/ See Recommendation 86-8, 1(c), Acquiring the Services of
Neutrals for Alternative Means of Dispute Resolution.
/6/ See Recommendation 86-3, 4, Agencies' Use of Alternative Means
of Dispute Resolution.
01 CFR 305.87-6 State-Level Determinations in Social Security
disability cases.
In Fiscal Year 1986, nearly two and one half million individuals
applied for disability benefits under two federal programs administered
by the Social Security Administration: Retirement, Survivors,
Disability and Health Insurance (RSDHI), and Supplemental Security
Income (SSI). Payments made annually to their seven million
beneficiaries totalled twenty-nine billion dollars during that period.
Certain aspects of this enormous benefit program have recently been
subject to close scrutiny to determine whether greater efficiency is
possible.
In order to be eligible for either program, a claimant must meet
medical and other criteria. The RSDHI program operates as an insurance
plan. A worker qualifies by earning a sufficient amount of wages for a
required period of time. By contrast, the SSI program is a welfare
program whose non-medical criteria are met by a demonstration of need.
If a claimant meets the criteria for either plan, he or she must then
meet the medical criteria for disability in order to establish
eligibility for benefits. The basic statutory test is identical for
both RSDHI and SSI:
''Inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months. 42 U.S.C.
423(d)(1)(A); 1382c(a)(3)(A). (See also 43 U.S.C. 423(d)(2)(A) which
liberalizes the work requirement somewhat.)''
Claimants begin the application process by filing an application at a
Social Security Administration office. If a claimant meets the
non-medical criteria, the file is then forwarded to a federally-funded
and SSA-regulated state Disability Determination Service (DDS) for a
determination as to disability. A two-person team consisting of a
''disability examiner'' and medical consultant (a physician employed by
DDS) reviews the medical evidence and reaches its decision. The
claimant is not present at any time during the process.
A claimant who is dissatisfied with the initial determination (about
60% are denials) has 60 days in which to seek a reconsideration.
Reconsiderations are also performed at the state DDS level, and are
essentially a repeat of the initial determination process, but with
different personnel acting as decisionmakers. The record may be
supplemented at this time, but as with the initial determination
process, the claimant does not appear. In FY 1986, about 40% of denied
claimants (totalling 380,000) sought reconsideration and about 17% of
those received favorable re-determinations.
Further review is available at the ALJ and Appeals Council stages.
See Recommendation 87-7 for a description of these later review stages.
Several areas pertaining to the disability determination, hearing and
review process have been subject to criticism. First, the current
system, with its four tiers of successive review, often results in the
replacement of one decisionmaker's determination with that of the next,
but without necessarily improving the quality of any of the actual
decisions. Second, because there is little cost to filing an
administrative appeal (and everything to gain in doing so), there is
correspondingly little incentive for a claimant to accept any
unfavorable determination as final. Accordingly, there is a wide stream
of cases all the way to the end of the process. Moreover, claimants
whose cases are decided without a personal appearance before the
decisionmaker (as is the case in three of the four review stages)
frequently feel dissatisfied with the process, that they have not
received their ''day in court.''
In addition, courts, members of Congress, and the system's clients
have all indicated that their confidence in the system has deteriorated
to the point that its integrity has suffered. The public's faith in the
institution is essential to its success in the long run.
In efforts to improve the administration of the state-level
determination process, the stage at which the caseload stream is the
widest, Congress and SSA have engaged in some modifications of the
system as well as some experimental procedures. By 1983, a large
increase in appeals from terminations of benefits in continuing
disability review (CDR) cases had begun to flood the system. In such
cases SSA performs reviews on existing beneficiaries to determine
whether the disability still exists. If the determination is negative,
a notice of termination is sent, triggering the above-described review
process. Congress reacted to this by passing Pub. L. 97-455, which
gave the option to claimants of an ''evidentiary hearing'' at the
reconsideration stage in all CDR cases. Although a moratorium in CDR
cases slowed the institution of this procedure, it is now in place and
specially trained hearing officers are conducting these relatively
formal proceedings.
In 1984 (Pub. L. 98-460), Congress mandated demonstration projects in
selected DDS offices to try a one-step proceeding, allowing a personal
interview but eliminating the reconsideration step. In five states, the
interview was to be used in initial determinations, and in five other
states it was to be used in place of the evidentiary hearing in CDR
cases. These demonstration projects are currently underway, and results
are limited. Although preliminary, the experience with evidentiary
hearings and the demonstration projects with personal interviews give
rise to the following conclusions:
-- Face-to-face procedures are more satisfactory to claimants
than are paper reviews, resulting in claimants feeling that they
received a fair hearing;
-- Face-to-face procedures are helpful to decisionmakers, in many
instances providing them with evidence not ascertainable from the paper
file.
If the final results of the demonstration projects are consistent
with these initial findings, it is probable that by implementing some
kind of a face-to-face proceeding at the state level, awards of benefits
that ultimately would be made later in the system will be made at the
outset. This will have the effect of decreasing the caseload at later
levels, both for ALJs and the Appeals Council, and for federal courts.
Overall costs to the system would thereby be reduced as well.
At the request of the Social Security Administration, the
Administrative Conference has undertaken a preliminary review of the
disability determination process at the state level. The Conference
makes the following Recommendations, based on that study.
01 CFR 305.87-6 Recommendation
The Conference supports Congressional and Social Security
Administration (SSA) efforts to improve the procedure by which initial
and reconsidered disability determinations are made by state Disability
Determination Service (DDS) offices. Although existing experience with
use of evidentiary hearings at reconsideration is sparse, and
experiments using a single-step determination (after a personal
interview, but without reconsideration) are at an early stage, some
preliminary suggestions can be made to SSA:
1. Experiments and demonstration projects concerning use of
face-to-face procedures at the initial determination stage should be
continued and encouraged. SSA should conduct thorough and careful
evaluations of both the evidentiary hearing procedure now used in
continuing disability review (CDR) cases and the personal interviews now
being tried in selected state demonstration projects and should make
prompt reports to Congress.
2. Full implementation of evidentiary hearings (for other than CDR
cases) or personal interviews (either at the initial or reconsideration
stage) should await the final report on the current experiments by the
Department of Health and Human Services (HHS).
3. HHS's reports concerning the use of face-to-face procedures should
include consideration of the cost of full implementation of evidentiary
hearings or personal interviews at the initial or reconsideration stage.
Should cost considerations militate against full implementation of such
hearings or interviews, SSA should consider the feasibility and fairness
of permitting some kind of a hearing or interview on a discretionary
basis subject to appropriate published guidelines where either the
claimant's file, type of medical condition or the opinion of the
examiner indicates that such a procedure would be of significant
assistance to the ultimate determination.
4. In analyzing the results of the procedures and the ongoing
experiments at the DDS level, SSA should develop accurate measures of
efficiency and associated record-keeping requirements. Specifically,
such measures of processing time should take into account post-interview
time expended waiting for third party responses to requests for
additional case development. Any measures of efficiency adopted by SSA
should not serve to discourage the use of comprehensive interviews.
5. In analyzing the procedures and ongoing experiments (and in any
future analyses), SSA should review the reasonableness of variations
between DDS offices in their award rates and other aspects of case
handling, in light of state-by-state variables that can affect the
disability determination process.
6. SSA should proceed with caution before taking the position that
face-to-face hearings or interviews at the DDS level would be an
adequate substitute for the opportunity for an adjudicatory hearing
before a SSA administrative law judge (ALJ). Rather, such modifications
to the DDS process should be seen as a possible way of reducing the
number of appeals to the later stages of the process.
7. Close scrutiny should be given to any legislative or other
proposals to completely eliminate the reconsideration stage, taking into
account the impact of that step on overall processing costs, and on the
caseload at the ALJ stage. Any such proposals to convert the two DDS
stages into a single stage should consider the need to allow some type
of a face-to-face proceeding at that stage, as provided for in the
demonstration projects.
8. Before instituting evidentiary hearings (for other than CDR cases)
or personal interviews in all DDS offices, SSA should consider (a)
decentralization of DDS offices into decisional units to minimize travel
costs and (b) the need to select and train a sufficient number of
personnel qualified to conduct such hearings or interviews.
9. The record in disability appeals should not be closed until
completion of the ALJ stage -- that point in the process at which
claimants now are more likely to be represented by attorneys or other
advocates.
10. SSA should conduct a study of: (a) The reference sources of
claimants (e.g., referrals from state welfare agencies, private
insurance carriers, etc.) to determine whether such referrals are a
source of excessive numbers of claims that are later determined to be
unmeritorious, (b) the nature of ''dropouts,'' claimants who fail to
pursue their appeal rights, to determine why this occurs, and (c) the
number of claimants who reapply in lieu of appealing, and the reasons
therefor.
(52 FR 49142, Dec. 30, 1987)
01 CFR 305.87-7 A New Role for the Social Security Appeals Council.
The Social Security disability system is described generally in
Recommendation 87-6 which focuses on the initial determination process
at the state-level Disability Determination Service (DDS) offices. This
Recommendation addresses the later stages of review by the Social
Security Administration (SSA). /1/
The first stage of review by federal decisionmakers is the third step
in the process for disability claimants. Claimants disappointed after
state-level initial and reconsideration determinations may then demand a
hearing before an administrative law judge (ALJ) employed by the Social
Security Administration. About 65% of such claimants do so. This is
the first time in the process (except in certain demonstration projects
or cases involving the termination of benefits) that a claimant has a
face-to-face encounter with the decisionmaker. The hearings are de
novo, and generally follow Administrative Procedure Act guidelines.
Approximately 50% of appeals taken to an ALJ hearing result in the award
of benefits.
The fourth, and final, level of administrative review is to the
Social Security Appeals Council. This twenty member body, created by
regulation, and chaired by the Associate Commissioner for Hearings and
Appeals, disposes of a staggering 50,000 cases annually. (About 40% of
claimants who lose at the ALJ stage appeal.) In addition to appeals from
ALJ decisions, the Appeals Council reviews, on its ''own motion,''
selected cases where there has been a grant of benefits. The Appeals
Council relies on analysts in its companion unit, the Office of Appeals
Operations (OAO), to screen cases and make recommendations concerning
disposition of the cases. Council members hold the same salary grade
level as SSA ALJs. They perform purely a paper review on cases that are
forwarded to them by OAO and assigned to them individually based on the
geographical origin of the case. The Appeals Council acts on each
appeal, although in most cases the request for review is summarily
denied or dismissed. Because of the demands on each member (up to 500
cases per member per month), a typical case is likely to receive less
than 15 minutes of paper review by the member. The Council almost never
sits in panels or conducts oral arguments. In recent years,
approximately 5% of the cases reviewed result in reversals (i.e., awards
of benefits), and another 7 to 15% are remanded to the ALJ.
After exhaustion of state and federal administrative remedies, a
claimant may seek judicial review in the federal district court. In the
years 1981 to 1986 the number of new SSA disability cases filed in the
courts ranged from 9,000 to 26,000 per year.
In past years, the Appeals Council has to some extent played a
policy-relevant role. Yet, as its caseload increased, it was by
necessity limited to a narrow case correction function. Accordingly,
its members had little time to devote to policy matters. Recently, the
Appeals Council has come under attack from many fronts, including
Congress, claimants and their representatives, and academicians, who
have questioned both the Appeals Council's usefulness as an additional
step in the adjudicative chain and the resulting delays caused to
claimants who wish to proceed to court.
Critics have complained that the rate of reversals is so low that it
fails to compensate for the additional delay caused to claimants who
wish to seek judicial review. The Conference's study noted that because
its members are so driven by the ''tyranny of the caseload,'' it has
failed to take advantage of its unique position as the final
administrative review body -- one that sees a diverse number of
disability cases, and accordingly, can detect emerging problems, and
identify new issues to be resolved and policies to be developed. Thus,
any capabilities it should have in promoting consistency of lower-level
decisionmaking, and policy integrity throughout the system, are
thwarted, and it is left with little more than a case-handling role.
The Social Security Administration requested the Administrative
Conference to study and analyze the operation of the Appeals Council.
Serious consideration was given to recommending outright abolition of
the Appeals Council. This view was premised on the Appeals Council's
present inability to do little more than add one more layer to the
already-lengthy review bureaucracy. (This criticism was not intended as
a denigration of Appeals Council members, whom the study found to be
competent, dedicated, and cooperative.) Before recommending such a
drastic, and irreversible step, however, the Conference felt that an
attempt should be made to use the unique perspective and expertise of
the Appeals Council to help correct the existing problem. The
Conference believes that fundamental changes are needed to reduce the
Council's caseload to a more manageable volume, so that individual cases
can be given more attention and the Council can be a significant
contributor to agency policymaking. Accordingly, to implement a
system-reform function for the Appeals Council, the Conference makes the
following Recommendations for modification of its structure, purpose and
operations.
While the recommendation anticipates a reduced volume of cases for
the Appeals Council, the Conference believes that improved fact-finding
will result from the changes in initial determinations (see
Recommendation 87-6), and that this will compensate for diminished
factual review at the Appeals Council stage.
/1/ The Conference has previously addressed elements of the Social
Security appeals process (focusing primarily on the ALJ hearing stage)
in Recommendation 78-2, Procedures for Determining Social Security
Disability Claims, 1 CFR 305.78-2.
01 CFR 305.87-7 Recommendation
1. The Social Security Administration (SSA) should, as soon as
feasible, restructure the Appeals Council in a fashion that redirects
the institution's goals and operation from an exclusive focus on
processing the stream of individual cases and toward an emphasis on
improved organizational effectiveness. To that end, the Appeals Council
should be provided the authority to reduce significantly its caseload
and also be given, as its principal mandate, the responsibility to
recommend and, where appropriate, develop and implement adjudicatory
principles and decisional standards for the disability determination
process. In particular, SSA should adopt the following structural
reforms to improve the Appeals Council's ability to perform its new
function.
a. Focus on System Improvements. SSA should make clear that the
primary function of the Appeals Council is to focus on adjudicatory
principles and decisional standards concerning disability law and
procedures and transmit advice thereon to SSA policymakers and guidance
to lower-level decisionmakers. Thus the Appeals Council should advise
and assist SSA policymakers and decisionmakers by:
(1) Conducting independent studies of the agency's cases and
procedures, and providing appropriate advice and recommendations to SSA
policymakers; and
(2) Providing appropriate guidance to agency adjudicators (primarily
ALJs, but conceivably DDS hearing officers in some cases) by: (a)
Issuing, after coordination with other SSA policymakers, interpretive
''minutes'' on questions of adjudicatory principles and procedures, and
(b) articulating the proper handling of specific issues in case review
opinions to be given precedential significance. The minutes and
opinions should be consistent with the Commissioner's Social Security
Rulings. Such guidance papers should be distributed throughout the
system, made publicly available, and indexed.
b. Control of its Caseload. On order to fulfill its responsibility
to develop, and to encourage utilization of, sound decisional principles
and practices throughout SSA, the Appeals Council must be empowered to
exercise its review sparingly, so that it may concentrate its attention
on types of cases identified in advance by the Appeals Council. These
types of cases might include a small sample of random cases or
categories identified by the Secretary of Health and Human Services from
time to time. To that end, the Secretary should direct the Appeals
Council to design a new review process, subject to the Secretary's
approval, that would continue to be part of the available administrative
remedy for a claimant dissatisfied with an administrative law judge's
(ALJ's) initial decision, but that would enable the Appeals Council to
deny a petition for review if the issues it sought to raise are deemed
inappropriate for the Appeals Council's attention. If a petition for
review is denied, the ALJ's decision should be deemed to be final agency
action.
c. Improved Review of Individual Cases. The Appeals Council, given a
reduced caseload, should upgrade its handling of individual cases. In
particular the Council should:
(1) Work more collaboratively, including as appropriate, considering
cases en banc or in panels;
(2) Encourage claimant's representatives to submit briefs (including
amicus briefs) on selected issues and evaluate the benefits of
encouraging oral arguments in appropriate cases (utilizing existing
authority to reimburse participants as necessary);
(3) Write more elaborate opinions, providing better reasoning and
legal analysis and relying less on boilerplate and verbatim recitation
of records;
(4) Avoid substitution of judgment on ALJ factual determinations;
/2/
(5) Significantly reduce the time needed to initiate or deny review
of cases and issue a final decision in most cases within 90 days of
accepting review, unless an extension or delay request by a claimant is
granted for good cause; and
(6) Specify that once the period for accepting review has passed, ALJ
decisions should be deemed to be final agency action, and should be
subject to reopening by the Appeals Council only in accordance with
existing standards.
d. Enhancement of Status of Appeals Council. SSA should improve the
status of the Appeals Council and insure high caliber appointment by:
(1) Reducing the size of the Council so that the Council can meet and
act more collegially;
(2) Upgrading the salary level of members so that it is one level
above SSA ALJs;
(3) Providing the members, by regulation, with the same civil service
protections as accorded to career service personnel and by providing
ALJs who agree to serve on the Council with assurances that they will
receive reappointment to their former position upon completion of
service; and
(4) Establishing merit selection criteria for appointment to the
Appeals Council, giving preference to prior experience as an ALJ.
e. Enhancement of Support Systems. SSA should improve the support
system provided to its Appeals Council by reorganizing the Office of
Appeals Operations, providing law clerks to assist members, and updating
production and communication systems.
f. Enhance the Appeals Council's Visibility. The Appeals Council
should enhance its visibility both inside and outside the agency by
reinstating the ''visiting ALJ'' program, /3/ instituting exchange
programs with other SSA components, seeking publication of precedent by
a recognized reporter service, and encouraging other outreach and
bar-related activities.
2. If the reconstituted Appeals Council does not result in improved
policy development or case-handling performance within a certain number
of years (to be determined by Congress and SSA), serious consideration
should be given to abolishing it.
(52 FR 49143, Dec. 30, 1987)
/2/ In conjunction with this reliance on the record below, the
Appeals Council should not permit new evidence to be introduced without
good cause, although motions to remand to the hearing stage should be
permitted. See Recommendation 78-2, (c)(1); 1 CFR 305.78-2(c)(1).
/3/ The visiting ALJ program allowed for one-month temporary duty by
an ALJ on the Appeals Council. SSA should consider longer intra-agency
details in the future.
01 CFR 305.87-8 National coverage determinations under the Medicare
Program.
In 1986, the Administrative Conference undertook a broad overview of
the administrative procedures employed by the federal government
(primarily the Health Care Financing Administration within the
Department of Health and Human Services) in administering and deciding
appeals under the Medicare program. Recommendation 86-5, Medicare
Appeals, 1 CFR 305.86-5, urged the Health Care Financing Administration
(HCFA) to improve its system for publishing, updating, and making
accessible the standards, guidelines and procedures used in making
coverage and payment determinations in the Medicare program. The
recommendation also suggested some improvements in the administrative
appeals system and listed some fruitful areas for further research.
This recommendation builds on Recommendation 86-5 by focusing on a
major aspect of the Medicare program: the making of policy concerning
what aspects of medical care are covered by, and therefore reimbursable
by, the Medicare program. Implementation determinations must be made
every day on a case-by-case basis by Medicare contractors (peer review
organizations, carriers and fiscal intermediaries such as Blue Cross).
In most of these cases the coverage question involves a determination of
whether an item or service was medically necessary for the individual or
was furnished in the appropriate setting. Typically, the Medicare
contractor has considerable discretion in ruling on individual claims
although that discretion is bounded by policy pronouncements made in
various ways by HCFA. If an individual claim for reimbursement is
denied by the Medicare contractor, the claimant (whether a beneficiary
or provider of care) may appeal the denial of claims over $500 to an
administrative law judge and then further appeal to a federal district
court for claims over $1,000. Recent legislative restrictions, however,
have further limited claimant's opportunities to challenge coverage
determinations in court or before an ALJ, and it is difficult for
equipment manufacturers to participate in or challenge national coverage
determinations even though their financial stakes can be significant.
HCFA makes coverage policy in a number of ways. /1/ In some cases
Medicare contractors refer questions about new medical procedures or
technologies to the HCFA regional or national office which makes an
informal judgment for application in that case. In other cases HCFA
makes ''national coverage determinations'' which apply in all future
similar cases. Since the beginning of the program HCFA (and its
predecessor agency) have made about 200 such national determinations on
medical procedures and technologies, and the number made each year is
growing. However, in its recent Federal Register notice, HCFA stated
that a ''national coverage determination'' included any coverage policy
published in any HCFA manual. Such rulings are published either in the
Federal Register or the Medicare Coverage Issues Manual, although many
other coverage policies are published in other manuals that are less
widely available, and are not designated as national coverage
determinations.
Although the making of these national coverage determinations
constitutes rulemaking, HCFA does not use a notice-and-comment procedure
in most cases. HCFA's Bureau of Eligibility, Reimbursement and Coverage
normally simply makes rulings on coverage determinations referred from
contractors unless it determines that a medical question is presented.
In such cases the question is referred to the in-house HCFA Physicians
Panel which meets in private to decide on these referrals. The
Physicians Panel may recommend a further referral to the Public Health
Service's Office of Health Technology Assessment (OHTA). Most referrals
to OHTA are in the form of informal inquiries, without public notice,
after which OHTA simply conducts in-house investigations and reports
back to HCFA. Requests for full OHTA assessments, on the other hand,
usually result in a Federal Register notice, and widespread consultation
with affected groups. In either event OHTA makes a recommendation to
HCFA which then makes and publishes the determination. Only then are
the OHTA findings disclosed.
Except in these ''formal OHTA assessments,'' beneficiaries, providers
and manufacturers have no opportunity to participate in this
policymaking process. Nor are the criteria used by HCFA and the
Medicare contractors in making this policy identified or published.
Moreover, once the policy is announced, opportunities to challenge it
have been severely circumscribed by the 1986 Omnibus Budget
Reconciliation Act. (Pub. L. 99-509, 9341; 42 U.S.C.A. 1395ff(b)(3)
(1987)). The Act provides that administrative law judges may not review
national coverage determinations in administrative appeals. It also
limits judicial review by providing that national coverage
determinations may not be held unlawful on the grounds of violation of
the AP or lack of opportunity for public comment, and further provides
that reviewing courts cannot overturn a denial based on coverage
determinations without first remanding to HHS for supplementation of the
record.
In Recommendation 86-5, the Conference recommended that HHS
''introduce more openness and regularity'' into these important
determinations through ''(1) (d)evelopment of published decisional
criteria; (2) providing for notice and inviting comments in such cases,
both in HCFA's decisionmaking process and in the process by which (OHTA)
supplies recommendations to HCFA; and (3) providing for internal
administrative review or reconsideration of such decisions.'' The
Conference commends the recent HCFA notice and request for comments on
its procedures as a good first step, but urges that further steps be
taken to open up the decisional criteria and procedure to public
participation and also urges Congress to consider modifying the
statutory limitations on the review of the reasonableness and the
procedural fairness of such national coverage determinations.
/1/ HCFA's procedures for making national coverage policy had not
been published until April 29, 1987, when under court order, the agency
issued a notice in the Federal Register describing its process (though
not its criteria) and sought comments.
01 CFR 305.87-8 Recommendation
01 CFR 305.87-8 1. Publication of Procedures and Criteria Through
Rulemaking
The Health Care Financing Administration (HCFA) should continue its
recent steps toward describing and seeking comments upon the procedures
it uses for making national coverage determinations in the Medicare
program. HCFA should follow its recent informational notice with a
notice-and-comment rulemaking proceeding setting forth the procedures as
well as all decisional criteria for making national coverage
determinations.
01 CFR 305.87-8 2. Elements of the National Coverage Determination
Process
HCFA's proposed and final rule on national coverage determinations
procedures and criteria should:
(a) Specify the procedure by which HCFA selects coverage questions
that will be considered in this process;
(b) Identify and describe what categories of coverage issues will be
left to the decision of Medicare contractors and HCFA regional offices;
and address the extent to which, and the manner in which, significant
coverage determinations made by contractors and regional offices can be
identified and disseminated more widely;
(c) Provide for the opportunity for public comment prior to
promulgation (or if that is infeasible, an opportunity for comment after
adoption) /2/ of all national coverage policies whether or not the
determination is referred to the HCFA Physicians Panel or to the Office
of Health Technology Assessment;
(d) Establish internal management controls to facilitate the timely
processing of requests from Medicare contractors and petitions filed by
beneficiaries, providers and other affected persons for initiation of a
national coverage determination; /3/
(e) Develop techniques to encourage the HCFA Physicians Panel, the
Office of Health Technology Assessment, and the Public Health Service to
respond expeditiously to referrals; and
(f) Identify all publications in which coverage policy will be
published, and the method by which those publications will be made
reasonably accessible to beneficiaries and other affected groups.
/2/ The agency should then re-evaluate the policy after receiving
comments. See ACUS Recommendation 76-5, Interpretive Rules of General
Applicability and Statements of General Policy, 1 CFR 305.76-5.
/3/ See ACUS Recommendation 86-6, Petitions for Rulemaking, Para.
2(d), 1 CFR 305.86-6(2)(d).
01 CFR 305.87-8 3. Use of Negotiated Rulemaking
In addition to providing for a national coverage decisionmaking
process that accords beneficiaries, providers, equipment manufacturers
and other interested parties an opportunity to have input into the
formulation of specific national coverage determinations; HCFA should
in appropriate cases also consider use of elements of a negotiated
rulemaking procedures. /4/
/4/ See ACUS Recommendations 82-4 and 85-5, Procedures of Negotiating
Proposed Regulations, 1 CFR 305.82-4, 85-5.
01 CFR 305.87-8 4. Modification of Recent Legislative Restrictions on
Administrative and Judicial Review
Congress should reconsider and, at minimum clarify its intent, /5/
with regard to the recent restrictions it placed upon adminstrative and
judicial review of national coverage determinations. In so doing,
Congress should:
(a) Consider whether to clarify the restriction against
administrative law judge review of national coverage determinations (42
U.S.C.A. 1395ff(b)(3)(A)) by (i) making clear that administrative law
judges may review the application of such determinations to claimants
and (ii) Specifying that this limitation only applies to those national
coverage determinations that are properly published and indexed, and
that have been issued after an adequate opportunity for public comment.
(b) Consider repealing 42 U.S.C.A. 1395ff(b)(3)(B), which restricts
judicial review of procedures used in promulgating national coverage
determinations.
(c) Eliminate the provision (42 U.S.C.A. 1395ff(b)(3)(C)) that limits
reviewing courts' ability to review the validity of a national coverage
determination applied in a particular case without first remanding the
case to the agency for supplementation of the record.
(52 FR 49144, Dec. 30, 1987)
/5/ In particular, Congress should, for the purposes of these
restrictions, clarify its definition of ''national coverage
determination'' and explain whether or not policies other than those
concerning medical procedures and technologies and published in the
Federal Register or Medicare Coverage Issues Manual are included.
01 CFR 305.87-9 Dispute Procedures in Federal Debt Collection
The Debt Collection Act of 1982 (DCA) /1/ was passed in response to
concern over the vast amount of delinquent debt owed to the federal
government and the haphazard collection record of many agencies. While
Congress appears to have been concerned mainly with various mass loan
and loan guarantee programs, most conspicuously the student loan
programs, the effects of the Act extend well beyond such programs. The
Act included about a dozen provisions designed to facilitate collection,
in many instances by removing obstacles created by other federal statues
and case law. It also contained provisions authorizing the use of
collection agencies, /2/ charging of interest and penalty fees,
reporting of delinquent debtors to credit bureaus, and use of IRS
information to locate debtors.
While the purpose of the DCA was to enhance collection efforts,
Congress was also concerned about the due process rights of debtors
against whom the government was to take action. In adopting provisions
for collection by offset against salaries and other money owed by the
federal government, Congress provided for pre-offset opportunities for
debtors to contest the relevant debts. Agencies implementing the offset
authority under the DCA have used advantageously the latitude afforded
under the DCA to develop a range of procedures. The Act provides two
basic forms of debt collection by offset -- ''salary'' offset and
''administrative'' offset -- with differing procedures for each. A
proceeding with an independent decisionmaker and adversary factfinding
has been required in most salary offsets, and by a few agencies
elsewhere. A range of less formal models, in which collection offices
simply reconsider their decisions based on debtor-supplied data and
other available information, has been employed in administrative
offsets, i.e., those not involving the salaries of government employees.
The framework for offset dispute resolution established by the DCA,
Federal Claims Collection Standards (issued jointly by the General
Accounting Office and Department of Justice), and the Office of
Personnel Management's Pay Administration Standards make possible
reasonably adequate evaluation of disputes without seriously impeding
collection of general government debts. No major changes are needed.
However, the procedural requirements of the DCA and the OPM Standards
are overly burdensome when applied to routine pay adjustments.
Moreover, some advice to agencies on implementing their dispute
processes, reducing uncertainty over the relationship of the DCA to
other statutes (e.g., the Contract Disputes Act) affecting government
claims, and some other issues raised by the DCA's attempt to integrate
due process with effective debt collection, may be useful as agencies
make greater use of their authority to collect debts.
/1/ 4 U.S. Code 552a (b) and (m), 5514; 18 U.S.C. 2415(i); 31
U.S.C. 3701, 3711(f), 3716-3719; Pub. L. No. 97-365.
/2/ The Act was later amended to authorize, on an experimental basis,
contracting with private attorneys to bring collection actions.
01 CFR 305.87-9 Recommendation
01 CFR 305.87-9 1. Agency Procedures Under the Debt Collection Act
a. In connection with salary offsets, the General Accounting Office
and Department of Justice should amend the Federal Claims Collection
Standards /3/ and the Office of Personnel Management should amend the
Pay Administration Standards /4/ so as to reduce the formality of
procedures for handling routine adjustments of pay and travel
allowances. Informal forms of review, including review on a ''class''
basis where a single error has a broad effect, should suffice in most
cases involving computer errors, simple miscalculations, and similar
kinds of mistakes or adjustments.
b. In connection with administrative offset, informal types of
intra-agency review procedures appear consistent with the purposes of
the DCA, and can provide a satisfactory balance between protecting
debtors and assuring effective collection. /5/ However, agencies should
ensure, where possible, that the reviewer does not participate in the
initial claims determination, particularly where a dispute involves
substantive issues that go beyond allegations of mechanical or other
simple kinds of error.
c. Procedures with an independent decisionmaker and adversarial
factfinding may occasionally be desirable in administrative offset cases
where a debtor raises relatively complex legal or factual issues or
where assessments of credibility are required. However, these
procedures may be needlessly burdensome for agencies even in some
procedurally complex situations, such as where other proceedings with
respect to the claim may be occurring and preservation of the
government's flexibility is necessary. Taking into account these
factors, agencies should consider whether to make use of such procedures
even though apparently not required to do so by the DCA.
d. Agencies should take steps to enhance the awareness of, and access
to, offset dispute procedures by debtors with limited ability to present
a case in writing or otherwise cope with offset procedures. These steps
may appropriately be confined to measures that are inexpensive and do
not significantly interfere with efficient collection activity.
Examples might include follow-up telephone calls to debtors with vague
or inadequate written submissions, review of agency records to see if
they support debtor allegations, and use of telephone hearings. In
connection with salary offset disputes, these steps should be taken by
independent hearing officials (or persons associated with them) as well
as by collection staff. Experience should be monitored to see if
measures to enhance accessibility of the dispute process in fact result
in more debtors asserting meritorious defenses.
e. Some techniques that have been employed and should be considered
to keep offset procedures expeditious and efficient are:
(i) Adoption of objective criteria to assist in making decisions
respecting hardship and other potentially nebulous matters; and
(ii) Avoiding the need for oral hearings on issues of credibility by
treating debtors' factual allegations as proven where
(a) Circumstances do not give rise to significant doubts as to
reliability and
(b) Either the amount in dispute is small or the issue of credibility
is not critical to the disputed facts.
/3/ 4 CFR parts 101-105
/4/ 5 CFR 550.1101-.1106
/5/ This recommendation should not be read as detracting from the
procedures for resolving disputes relating to federal grants that were
recommended by the Conference in Recommendation 82.2. 1 CFR 305.82-2.
Where administrative offset issues are addressed at the same time as
post-award grant disputes, the proceedings should include a notice, an
impartial decisionmaker, an opportunity to present significant evidence
and argument, and a written decision, as called for in Recommendation
82-2.
01 CFR 305.87-9 2. Clarifying the Act's Relation to Offsets in
Government Contracts
a. Congress should clarify the applicability of the DCA provision on
administrative offset (31 U.S.C. 3716) to make clear that government
acquisition contracts are not covered, but that the government retains
the right of offset to collect debts in such cases. At the same time,
Congress should ensure that, under relevant agency procedures, before a
contracting officer's decision can serve as the basis for offset under
any other authority,
(i) The contractor receives notice of the proposed government claims
and the basis for them and an informal opportunity to present its
position, and
(ii) The decision is informally reviewed by an agency official not
directly connected with administering the contract.
b. The withholding of funds in connection with a single contract,
where final payment has not occurred, should continue to be governed by
existing law.
(52 FR 49146, Dec. 30, 1987)
01 CFR 305.87-10 Regulation by the Occupational Safety and Health
Administration.
This is the second of two recommendations adopted by the
Administrative Conference this year on Occupational Safety and Health
Administration (OSHA) regulation. In its first recommendation, /1/ the
Conference recommended that OSHA make specific changes in its management
of rulemaking and its process for establishing regulatory priorities.
At that time, the Conference accepted OSHA's request that it continue to
study possible broader changes to its regulatory process, including
alternatives to the traditional hazard-by-hazard /2/ regulation.
Having completed this study, the Conference recommends more extensive
procedural changes to assist OSHA in fulfilling its statutory mandate of
assuring adequate safeguards for American workers. OSHA has promulgated
a small number of safety and health standards each year using the
traditional hazard-by-hazard approach. /3/ But the task before the
agency is overwhelming existing processes. OSHA is responsible for
regulating dangerous chemicals included in the tens of thousands of
chemicals in the nation's workplaces, to which approximately one
thousand new chemicals are added each year. OSHA also is charged with
enforcing safety standards in American workplaces.
The Conference, therefore, recommends that OSHA undertake rulemaking
to develop generic or class standards, including updating the 1971
national consensus standards, where appropriate. In addition, the
Conference recommends a regulatory planning process and use of other
procedures to supplement its traditional rulemaking process. It is
important to add, however, that the Conference has found no alternative
regulatory approach that is always appropriate or better than the
traditional regulation. Rather, this recommendation identifies factors
or conditions that favor the use of the various alternative regulatory
approaches.
One uncertainty clouding OSHA's use of generic or class rulemaking is
whether OSHA can obtain the information it needs to meet the burden of
proof required by the Occupational Safety and Health Act (''Act'') for
safety and health standards. As interpreted by the courts, OSHA is
required to show that a hazard poses a ''significant risk'' to workers
and, if so, to set the standard at a level that assures ''to the extent
feasible'' that no employee will suffer ''material impairment of health
or functional capacity.'' If OSHA is unable to obtain the information
needed for its risk and feasibility determinations, the use of generic
rulemaking, as well as other internal reforms, is not likely to lead to
a more efficient regulatory process.
Experience with generic or class rulemaking may show that statutory
changes are required to enable OSHA to adopt this procedure. The
Conference, therefore, recommends amendments of the Occupational Safety
and Health Act that Congress should consider if OSHA's administrative
efforts to promulgate generic standards are not successful. One
recommendation is that Congress provide an expedited procedure for
updating the 1971 Table Z national consensus standards. The Conference
also recommends that Congress reconsider the Act's regulatory standard
in light of its judicial construction and agency experience.
Specifically, Congress should consider giving OSHA greater flexibility
in fashioning remedies to correspond to the level of workplace risks.
Congress, for example, could allow OSHA to regulate some hazards to a
level of ''best available technology,'' as the Environmental Protection
Agency is allowed to do under various statutes. The Conference also
recommends that the Act's rigid statutory deadlines and detailed
restrictions on advisory committees be removed. A final recommendation
is that Congress replace the Act's ''substantial evidence'' judicial
review standard with a standard that reflects the nature of rulemaking
decisions.
/1/ ACUS Recommendation 87-1, Priority Setting and Management of
Rulemaking by the Occupational Safety and Health Administration, 52 FR
23629 (1987).
/2/ As used in this recommendation, the term ''hazard'' without
further modification refers to both safety hazards and health hazards
(e.g., exposure to toxic substances).
/3/ During its first sixteen years, OSHA promulgated eighteen new
health standards (setting permissible exposure limitations for
twenty-three substances) and twenty-six safety standards.
01 CFR 305.87-10 Recommendation
1. Updating the 1971 Consensus Standards. The Occupational Safety
and Health Administration, as an interim step, should continue to update
the Table Z national consensus standards adopted in 1971 if updating can
be accomplished by an expedited rulemaking procedure (e.g., including
more concise preambles) appropriate to the nature of the revised Table.
OSHA should update the 1971 standards on a generic basis (i.e., include
multiple standards in one proceeding) when consensus recommendations are
available, which are generally accepted by employers and workers in the
affected industries, and when the new standards can be evaluated on the
basis of risk and feasibility information reasonably available to the
agency. This interim step should not interfere with OSHA's continuing
responsibility to promulgate and modify safety and health standards.
2. Rulemaking to Develop Generic or Class Standards. OSHA should
expand its use of generic or class standards regulating multiple health
and safety hazards where appropriate and consistent with its legal
mandate.
a. Industry-wide standards. OSHA should consider the following
criteria when deciding if industry-wide generic standards will be more
efficient and effective than hazard-by-hazard regulation: (1) Whether
hazards are in an industry that can be discretely defined, (2) whether
most of the hazards to be regulated are unique to the industry to be
regulated, (3) whether the hazards in the industry are relatively static
over time, and (4) whether industry-wide rulemaking will impose lower
aggregate compliance costs on the regulated industry than rulemaking on
a hazard-by-hazard basis.
b. Multi-hazard standards. OSHA should consider adopting
multi-hazard standards whenever scientific knowledge and policy judgment
make it possible to use the same or a similar risk assessment for a
group of included hazards and the feasibility analysis can be simplified
or expedited because standard abatement techniques are available.
c. Generic work-practice standards. OSHA should consider adopting
work-practice standards (e.g., training, worker protective devices, and
engineering controls) applicable to multiple industries when the
following factors are present: (1) A similar hazard exists in the
industries that can be regulated by one rule, (2) the same or a similar
work-practice requirement would be effective in all such industries, and
(3) generic risk and feasibility findings are appropriate.
3. Regulatory Alternatives and Procedures. In addition to generic or
class rulemaking, OSHA should adopt the following rulemaking
alternatives and procedures as appropriate:
a. Performance standards. OSHA should generally use performance
standards (i.e., standards that prescribe the regulatory result to be
achieved) whenever they will provide equivalent protection as that
provided by design standards (i.e., standards that prescribe a specific
technology or precise procedure for compliance). In deciding which type
of standard to employ, OSHA also should consider whether the standard
can be readily understood and monitored and whether it may lower
industry compliance costs.
b. Information disclosure. OSHA should continue to approve
information disclosure requirements as a complement to regualtory
standards.
c. Negotiated rulemaking. OSHA should continue to experiment with
negotiated rulemaking procedures; /4/ in so doing it should develop
methods (such as specific deadlines for termination of any negotiation)
to assure that the negotiated rulemaking procedure is discontinued in a
timely manner if it is not working.
d. Advisory committees. OSHA should reactivate rulemaking advisory
committees for difficult scientific and technological questions. The
scientific orientation in such committees should be assured by including
a high proportion of independent and government scientists on
committees. In addition, questions assigned to such committees should
be limited so that current statutory deadlines can be met. (See also
section 5.c. below.) OSHA also should require its advisory committees to
submit written reports which include the committee's evaluation of
relevant data.
e. Advance notice of proposed rulemaking. OSHA should not routinely
use advance notices of proposed rulemaking as an information-gathering
technique; it should use an advance notice when information that is not
available through other vehicles is likely to be forthcoming in response
to such notice.
f. Interagency coordination. OSHA should continue to cooperate with
other health and safety agencies and OMB to coordinate where possible
the testing, evaluation, and regulation of potential health hazards.
/5/
4. Developing a Regulatory Plan. OSHA should periodically develop
and review regulatory plans which specify how the agency intends to
regulate hazards on its priority lists, including identification of
potential candidates for generic rulemaking, negotiated rulemaking, use
of advisory committees and other regulatory approaches or techniques.
To avoid duplication, OSHA should coordinate its regulatory plans with
any submission required by the Office of Management and Budget.
a. Regulatory planning committee. OSHA should assign the initial
responsibility for developing regulatory plans to an internal regulatory
planning committee that includes representatives from all appropriate
department and agency offices.
b. Public availability. OSHA should make a synopsis of the results
of regulatory planning committee meetings available to the public after
the Assistant Secretary has had an opportunity to review any proposed
committee recommendations. In addition, OSHA should periodically
provide an opportunity for public comment on its regulatory plan.
5. Statutory Change. OSHA should include in its periodic reports to
Congress the status of its implementation of the administrative changes
recommended in paragraphs 1 through 4 above. If statutory impediments
or judicial decisions inhibit efficient and effective regulation,
Congress should consider amendments of the Occupational Safety and
Health Act, including the following:
a. Consensus standards update. Congress should amend the Act to
provide an expedited procedure for the generic updating of the
permissible exposure levels in Table Z, incorporated into OSHA standards
at 29 CFR 1910.1000. This procedure, while not including all the steps
specified in 29 U.S.C. 655(b) as construed by the courts, should afford
an opportunity for public comment.
b. Regulatory standard. Congress should amend the Act to give OSHA
greater flexibility in regulating workplace hazards. Following its
experience in envioronmental regulation, /6/ Congress should consider
establishing a classification scheme that would vary OSHA's burden of
justification for safety and health standards to correspond to the
degree of risk posed by a hazard and the level of control to be required
by the OSHA standard.
c. Rulemaking deadlines. Congress should amend the Act to replace
the existing statutory deadlines for various stages of rulemaking with a
provision requiring OSHA to set timetables or deadlines for each
rulemaking proceeding. /7/
d. Advisory committees. Congress should amend 29 U.S.C. 656(b) to
replace the detailed restrictions on standard-setting advisory committee
membership with a general provision authorizing use of advisory
committees subject only to the Federal Advisory Committee Act, 5 U.S.C.
App.
e. Judicial review standard. Congress should amend the standard of
judicial review for OSHA safety and health standards, 29 U.S.C. 655(f),
so that agency policy judgments are subject to the traditional standard
of ''arbitrariness'' and the factual premises on which they are based
are subject to a standard of ''substantial support in the administrative
record viewed as a whole.'' /8/
(52 FR 49147, Dec. 30, 1987)
/4/ The Conference has previously provided guidance to agencies on
the use of negotiated rulemaking, see ACUS Recommendations 82-4 and
85-5, Procedures for Negotiating Proposed Regulations, 1 CFR 305.82-4,
85-5 (1987).
/5/ The need for interagency coordination of federal regulation of
cancer-causing chemicals is addressed in Part II of ACUS Recommendation
82-5, 1 CFR 305.82-5 (1987).
/6/ Under the Federal Water Pollution Control Act, 33 U.S.C.
1251-1376 (1982), and the Clean Air Act, 42 U.S.C. 7401-7642 (1982),
Congress has authorized different classes of regulation, specified an
initial designation, established a lower burden of proof for regulation
that is less strict, and has indicated that the agency is to receive
deference for its final choice of which class of regulation to apply. A
similar approach is used for Food and Drug Administration regulation
under the Medical Devices Amendments to the Food, Drug, and Cosmetic
Act, 21 U.S.C. 360c-360k (1982).
/7/ See ACUS Recommendation 78-3, Time Limits on Agency Actions, 1
CFR 305.78-3 (1987).
/8/ The recommended standard follows ACUS Recommendation 74-4, 1 CFR
305.74-4, 3, 4 (1987). It is also consistent with the Restatement of
the Scope of Review Doctrine adopted by the Administrative Law Section
of the American Bar Association.
01 CFR 305.87-11 Alternatives for Resolving Government Contract
Disputes.
Government procurement is a major component of federal spending. It
now comprises an important part of the nation's economy. The recent
expansion of government contracting has been matched, perhaps exceeded,
by the rise in disputes between agencies and contractors. Increasingly,
management problems are handed over to lawyers and accountants to be
resolved contentiously by criteria that are often only marginally
relevant. Causal factors include increased regulatory requirements;
reduced authority of agency contracting officers; a greater willingness
among contractors to resort to litigation; an expanding government
contracts bar; broadened notions of due process; enhanced
congressional oversight that can discourage settlement; and the
establishment (or expansion) of offices of inspector general and
intra-agency audit offices.
Most knowledgeable government officials, contractors and attorneys
agree that government contract appeals have become too onerous, too
expensive and too time-consuming. Despite Congress' goals in enacting
the Contract Disputes Act of 1978 (''CDA'') to provide an expeditious
alternative to court litigation and to encourage negotiated settlements,
most appeals are not now resolved either promptly or inexpensively.
Agency boards of contract appeals (''BCAs''), originally intended to be
alternatives to courts, have become ''judicialized,'' with depositions,
discovery and lenghty opinions common.
The system established by the CDA /1/ begins with the contracting
officer (''CO''), an agency official whose function is to enter into and
administer government contracts. Any claim arising out of a contract is
to be presented to the CO. The CO has a dual role: to represent the
government as a party to the contract, and also to make initial
decisions on claims subject to certain procedural safeguards. If the
dispute is not amicably resolved, the CDA requires the CO to issue a
brief written decision stating his or her reasons. A contractor
dissatisfied with a CO's decision may appeal either to an agency BCA or
directly to the United States Claims Court. The proceedings become
considerably more formal at this stage. While agency boards and their
rules are hardly uniform, they typically involve written notice of
appeal and complaint, discovery, depositions, subpoenas, hearings that
result in transcripts, and board decisions signed by three-member
panels. ''Accelerated'' procedures are available for claims under
$50,000, and a more streamlined ''expedited'' process for claims under
$10,000.
A variety of remedies have been prescribed for the growing cost,
delay, and other problems encountered in federal disputes. They range
from marginal revisions of the boards (e.g., enlargement of BCA
resources), to increased professionalization of COs, to structural
changes in the ways agencies do business. While a number of these
proposals have merit, the Conference is focusing herein only on the
cluster of methods that have come to be known as alternative means of
dispute resolution (''ADR'') /2/ These methods are consistent with the
CDA's goals, and have proven efficient and fair. They serve to involve
decisionmakers, rather than their representatives, in the conflict
resolution process. ADR methods have regularly aided private parties to
resolve disputes similar to those decided by BCAs.
Several ADR methods are particularly appropriate to resolving many
government contract claims, and a few agencies have begun to experiment
successful with them. The Conference urges all major contracting
agencies, and persons who deal with them, to explore seriously the
potential uses for ADR and to begin creating an atmosphere in which
these methods can be readily employed. /3/ This recommendation offers
advice on the application of commonly used ADR methods to post-award
contract disputes before agency boards of contract appeals.
/1/ 41 U.S.C. 601.613; 5 U.S.C. 5108 (c)(3); 28 U.S.C. 1346(a) (2),
149(a) (2), 2401(a), 2414, 2510, 2517; 31 U.S.C. 1304(a)(3)(C) (1982);
enacted November 1, 1978 by Pub. L. No. 95-563, 92 Stat. 2383.
/2/ These include arbitration, factfinding, minitrial, mediation,
facilitation, convening, conciliation, and negotation.
/3/ The Conference has repeatedly recommended that agencies employ
ADR. Recommendation 86-3 calls on agencies to make greater use of
mediation, negotiation, minitrials, and other ''ADR'' methods to reduce
the delay and contentiousness accompanying many agency decisions.
Agencies' Use of Alternative Means of Dispute Resolution, 1 CFR
305.86-3. The Conference has previously called for using mediation,
negotiations, informal conferences and similar innovations to decide
certain kinds of disputes more effectively. E.g., Procedures for
Negotiating Proposed Regulations, 1 CFR 305.82-4, 85-5; Negotiated
Cleanup of Hazardous Waste Sites Under CERCLA, 1 CFR 305.84-4;
Resolving Disputes under Federal Grant Programs, 1 CFR 305.82-2.
01 CFR 305.87-11 Recommendation
01 CFR 305.87-11 1. Agencies' ADR Policies and Practices
a. Congress should amend the Contract Disputes Act (1) to make
indisputably clear that the contractor and the government may agree to
use arbitration /4/ or any other mutually agreeable ADR procedures for
resolving claims relating to agency contracts and (2) to encourage COs
to make all reasonable efforts to resolve a claim or dispute
consensually, either prior to issuance of a CO decision or subsequently.
b. The President should promulgate an Executive Order that encourages
voluntary use of ADR procedures to resolve contract disputes at the CO
and BCA levels.
c. The Office of Federal Procurement Policy should issue a policy
statement, and the Civilian Agency Acquisition Council and the Defense
Acquisition Regulatory Council should amend the Federal Acquisition
Regulation, /5/ to encourage COs, before issuing a decision likely to be
unacceptable to a claimant, to recommend to the parties and their
representatives that they seek to explore the use of ADR to resolve
their differences. The policy statement and FAR should also encourage
agencies to adopt policies or rules concerning ADR, as set forth below.
d. Agencies should adopt policies encouraging voluntary use of ADR in
contract disputes. The policies should place the responsibility for
implementing ADR with contracting officers, government counsel, and BCA
judges. These policies should make clear that superior agency officials
will support reasonable settlements reached by means of properly
selected ADR methods. The policy should also provide for systematic
review of all cases for susceptibility to ADR, specify who has authority
to approve the selection of case for ADR, and set forth guidance on
documenting the negotiation processes or justifying settlements.
Agencies should also consider, as a matter of general policy, offering
certain forms of ADR to contractors in specified kinds of disputes
(e.g., those involving less than a stated maximum amount).
e. Agencies should adopt regulations that (1) authorize agency
officers to make use of ADR in contract disputes; (2) make provisions
for automatically alerting the parties, both at the CO level and as soon
as an appeal is filed, that one or more ADR methods is available; (3)
authorize BCA judges to encourage ADR use and to require the attendance,
at any conference held for the purpose of proposing or implementing ADR,
of at least one representative of each party who has authority to
negotiate concerning the resolution of all issues in controversy; (4)
briefly describe the alternative procedures; (5) authorize the parties
to agree to vary any procedural rule in their case; and (6) insure
confidentiality of communications made during use of ADR methods.
f. Agency boards of contract appeals should:
(1) Routinely include in docketing notices an announcement indicating
the availability of ADR, describing the available methods, and telling
how interested persons can follow up to explore potential ADR use in
their cases.
(2) Amend their procedural rules to provide explicitly for
conferences to consider the possible use of ADR in each case to help
dispose of any or all issues in dispute.
g. Presiding and chief judges at BCAs should regularly review their
dockets and suggest use of a settlement judge, mediation, minitrial, or
other ADR methods whenever appropriate.
/4/ Such arbitration authority should be consistent with the
procedures and safeguards set forth in Conference Recommendations 86-3,
id, and 87-5, Assuring the Fairness and Acceptability of Arbitration in
Federal Programs, 1 CFR 305.87-5.
/5/ 48 CFR part 7
01 CFR 305.87-11 2. Employing Alternatives in Contract Disputes
01 CFR 305.87-11 a. Finding Neutrals /6/
(1) To facilitate the parties' choice of appropriate neutrals, the
Administrative Conference, in consultation with the Federal Mediation
and Conciliation Service and other knowledgeable groups, should
establish a central roster of minitrial advisors and other neutrals
available to help resolve government contract disputes. Use of the
list, however, should not be mandatory. The list should include, at a
minimum:
(a) All persons who have experience as neutral advisors in government
contracts minitrials;
(b) Any BCA judges and administrative law judges who wish to serve as
neutral advisors for disputes within their own agency, another agency,
or both. (Some safeguards to ensure interagency reciprocity and to
assure no other involvement with the dispute may be necessary); and
(c) Any retired federal or state court judges, BCA judges, and
administrative law judges who are interested.
(2) Each BCA should take steps to make available its judges to serve
as settlement judges, minitrial advisors, or other neutrals to help
resolve disputes before other agencies' BCAs.
/6/ In Recommendation 86-8 Acquiring the Services of ''Neutrals'' for
Alternative Means of Dispute Resolution, 1 CFR 305.86-8, the Conference
addressed issues involving neutrals' availability, qualifications and
acquisition. The present Recommendation seeks to elaborate on 86-8 in
the specific context of contract appeals.
01 CFR 305.87-11 b. Minitrials
(1) Agencies should develop and distribute minitrial guidelines that
include sections dealing with criteria for identifying appropriate
cases; contents of minitrial agreements; rules as to any discovery;
roles of the participants, including any neutral; authority of the
principals; exchange of position papers, audit reports, quantum
submissions, and other documents and exhibits; procedure and format of
the hearing; possible time limit on the negotiations; fees and
expenses; and procedures for ensuring the confidentiality of the
proceedings. The guidelines, which should be used only as procedural
suggestions, should also give each party the right to terminate the
minitrial procedure at any time for any reason. Any guidelines
acceptable to the parties, together with other provisions relevant to
the resolution of the dispute, should be incorporated.
(2) In selecting principals to represent the agency in a minitrial,
agencies should ensure that principals in the minitrial agreement:
(a) Are of sufficient rank in the agency to negotiate, and
successfully defend, a binding settlement.
(b) Have authority to bind their organizations in the dispute at
hand, or at least to make recommendations that will be accorded
substantial weight.
(c) Ideally have little prior involvement with the case so as to be
able to evaluate objectively the issues and the agency's potential
liability.
(d) Have enough background to grasp the main issues quickly.
(e) Not be at such a high level that his or her involvement will
detract in a major way from the agency's operations.
Agencies should meet the concerns by, among other things, tailoring
the rank of the principal to suit the magnitude of the case and by
encouraging ADR use earlier in the case (e.g., the CO level).
(3) Agencies should take steps to make participation as a principal
an attractive career step and encourage or provide training in
negotiation and mediation skills among groups of potential principals.
(4) Principals should generally have access to technical, legal,
accounting, or other advice from agency staff during the hearings and
negotiations so as to produce a more well-informed, defensible
resolution, enhance accountability, and build intra-organizational
support for any settlement. Unless secrecy in especially important, it
will ordinarily be unwise to sequester most minitrial witnesses,
particularly experts, since a looser format may encourage dialogs or
exchanges that can help focus issues and sometimes promote agreement.
(5) Once the principals have had a chance to assess the strengths and
weaknesses of both sides' positions, their negotiations should take
place promptly and should be final and binding. The responsible
principals ordinarily should have authority to resolve all issues before
them without seeking further agency approval following the close of
negotiations.
(6) While the ''neutral advisor'' who helps the principals at a
minitrial assess the merits of a case can be quite useful, the parties
should consider foregoing such aid in cases where the principals already
have a good working relationship, where issues are simple or amounts
small, or, conversely, where complex technical issues predominate to
such an extent that it would be futile to waste time trying to educate a
neutral. Neutrals probably will also be less needed where the minitrial
occurs early on -- for instance, at the CO level -- when positions may
be less rigid, formal procedures not yet invoked, and fewer parts of the
agency involved. In those cases, the CO might well serve as a sort of
presider-principal.
(7) A neutral advisor's role should be defined by the parties (at
least tentatively) prior to the hearing by the principals. Any shift
during the proceeding should be only with the concurrence of the
principals.
(8) Where minitrial neutral advisors are used, the parties should
consider whether to seek their assistance in any of the following ways:
(a) Presiding over the hearing;
(b) Serving as a source of information, responding to technical legal
questions, or offering insights and observations on issues in
controversy;
(c) Posing questions at the hearing so as to ensure that the basic
facts are ascertained;
(d) Suggesting novel approaches to presenting relevant information;
(e) Working actively during the principals' negotiation sessions to
aid settlement, as by advising each side on the strengths and weaknesses
of its case, relevant legal principles, and how the law might apply to
the facts established;
(f) Serving as a mediator;
(g) Suggesting that certain advisors or staff members be brought into
the negotiations or briefed; or
(h) Providing a written, nonbinding opinion to the principals, or
helping them prepare a justification for the settlement agreed on.
01 CFR 305.87-11 c. Mediation
Agency boards of contract appeals should establish mediation programs
in which parties can be required to attend an initial session with a
mediator. The boards should require parties to be represented at the
session by a person with authority to negotiate concerning the
resolution of all issues in controversy. The boards may wish to exclude
from these programs certain kinds of cases. Counsel should be required,
where appropriate, to provide specified documents to the mediator, and
to prepare short position papers.
01 CFR 305.87-11 d. Settlement Judges
(1) Agency boards of contract appeals should institute a procedure
under which a settlement judge -- not the presiding judge in the case --
may be appointed to preside over settlement conferences or negotiations,
assess settlement potential, and work with the parties to explore
possible settlement of a dispute. The settlement judge device should be
capable of being invoked at the discretion of the chief judge on his or
her own motion or that of any participant or the presiding judge. An
order appointing a settlement judge should specify whether, and to what
extent, the proceeding is suspended during the settlement negotiations
and may define the scope of any negotiations to specified issues. The
order may also expressly limit the period for settlement negotiations
and require a brief report from the settlement judge. Each party should
have the right to refuse to use the process, or to withdraw at any time.
(2) The settlement judge should be deemed to have the power to
suggest privately what concessions a party should consider, to confer
privately as to the reasonableness of each party's case or settlement
position, and to require that representatives with authority to
negotiate concerning resolution of all issues in controversy be present
at the settlement conference. The settlement judge shall be prohibited
from discussing the merits of a case with any other BCA judge or other
person, and shall not be called as a witness in the case.
01 CFR 305.87-11 3. Documentation and Oversight
a. Agencies should offer guidance to their personnel on the degree of
documentation that is appropriate to justify settlements that have been
reached via ADR; the guidance should emphasize the needs for
flexibility without undermining accountability. For instance, the
guidance could require the principal representing the agency in
negotiations or his advisor to set down cost and other factors taken
into consideration, the principal elements of the negotiation,
likelihood of success at trial, and other significant facts or
considerations justifying any significant differences between
prenegotiation objectives and negotiated result; in short, a reflection
of the thought process or rationale of officials who agreed to the
settlement. This documentation should not exceed what would ordinarily
be used to justify negotiated settlements of contract disputes, and
should generally be written after the fact so that ongoing negotiations
are not jeopardized or delayed. A neutral advisor who has helped the
parties resolve a potentially serious case may be asked to help draw up
the justification memo, or offer a brief advisory decision.
b. Since the effectiveness of expanded reliance on ADR will depend in
part on the degree of support or opposition from congressional
committees and offices of inspector general, agencies should seek to
document, and furnish periodically to relevant committees and oversight
offices information on, the relative costs and benefits of ADR methods
in cases where they have been used. Documentation should include case
results, estimated savings, identities of principals and advisors, and
nature of processes used.
01 CFR 305.87-11 4. Training and Outreach
a. Agencies should give priority attention to offering training in
negotiation and other ADR skills to BCA judges, government attorneys,
COs, and others involved in contract appeals. Training courses or
seminars should be developed by agencies jointly or in cooperation with
the Administrative Conference, Federal Mediation and Conciliation
Service, Board of Contract Appeals Judges Association, American Bar
Association, or other professional organizations. Agencies should also
work with other interested groups to sponsor similar programs or
outreach sessions for contractors and their representatives, and seek to
incorporate materials on ADR into the training curricula for COs and
project managers.
b. Agencies should designate an employee to serve as an ADR
specialist in connection with contract disputes, and should consider
retaining the services of a trained mediator or similar professional to
review cases for susceptibility to ADR, advise BCA judges, and mediate
selected cases.
(52 FR 49148, Dec. 30, 1987)
01 CFR 305.87-12 Adjudication practices and procedures of the Federal
Bank Regulatory Agencies.
The five federal agencies that regulate the activities of depository
institutions /1/ have broad statutory enforcement authority, including
the power to issue cease-and-desist orders, impose civil money
penalties, or order the suspension and removal of officers. Such
enforcement actions ordinarily allow the target of the proposed sanction
to request a formal APA hearing before an administrative law judge.
In recent years, enforcement actions taken by the bank regulatory
agencies have increased markedly, although the preponderance of these
actions are taken without a formal hearing -- based on consent
agreements or waivers of formal hearing. The current level of formal
hearings has, however, reached the point where attention should be paid
to the procedures and practices of the bank regulatory agencies in this
regard.
Three basic concerns have emerged from an evaluation of the formal
hearing procedures of the bank regulatory agencies, which may be
summarized as the need for: (1) Consistency and greater uniformity in
the agencies' implementation of shared statutory reponsibilities, (2)
greater accessibility of agency decisions and the basis for decisions,
and (3) more efficient use of administrative law judges.
Although the Conference study did not specifically address the need
for change in the division of regulatory responsibilities among the five
agencies, it did conclude that the interpretation of identical or
similar regulatory authorities does not appear to be inconsistent. By
contrast, the formal hearing procedures of the agencies vary
significantly, both in their specific provisions and in their level of
detail. Moreover, all of the regulations are lacking in detail on rules
concerning prehearing practice, discovery and evidence. Given the
similar statutory bases for these enforcement actions, the five agencies
jointly should be able to develop substantially similar rules of
procedure and practice for formal enforcement proceedings.
There is currently limited publication or public dissemination of the
bank regulatory agencies' enforcement decisions. This hinders counsel
in advising and representing clients and makes it difficult for
administrative law judges (who currently are all on loan from other
agencies) to apply the complicated statutes and regulations that are
involved. This situation would be remedied by improved availability or
publication of appropriately redacted agency decisions. Such
publication would heighten public awareness of enforcement actions which
now are described only in aggregate data published in annual reports.
This may be especially beneficial because the agencies have not
regularly supplemented or clarified their enforcement policies through
interpretive rules or policy statements.
None of the five agencies employs administrative law judges (ALJs) to
hear enforcement cases. Rather, they rely exclusively on the
interagency ALJ loan program administered by the Office of Personnel
Management (OPM) to furnish them with needed ALJs. OPM has attempted to
accommodate agency concerns by providing lengthier loan periods and
repeat loans. Nevertheless, the system seems to produce needless
discontinuity and inefficiency. To improve this situation, the bank
regulatory agencies should, in consultation with OPM, consider the
advisability of an arrangement by which a pool of administrative law
judges could handle all bank regulatory agencies' formal adjudications
-- subject to an agency's decision to have its own ALJs, should the
caseload warrant. If so, ways should be explored to effect such an
arrangement. For example, one or more full-time judges could be hired
by one of the agencies, which would then serve as the lending agency for
the others.
Finally, the Conference urges the agencies to explore whether a
pre-complaint procedure (modeled on that used by the Securities and
Exchange Commission) would be appropriate in their individual
circumstances and should be established. This would enable targets of
enforcement investigations to file a submission to the agency head or
other agency official charged with the responsibility to initiate formal
enforcement proceedings, before such an action is initated.
/1/ The term ''depository institutions'' refers to commercial banks,
savings banks and savings and loan associations, and credit unions. The
five agencies are the Office of the Comptroller of the Currency (in the
Department of the Treasury), the Board of Governors of the Federal
Reserve System, the Federal Deposit Insurance Corporation, the Federal
Home Loan Bank Board (including the Federal Savings and Loan Insurance
Corporation), and the National Credit Union Administration. In the
aggregate they will be referred to as the ''bank regulatory agencies.''
01 CFR 305.87-12 Recommendation
The bank regulatory agencies should take the following actions to
improve their formal adjudicatory processes, with respect to regulatory
enforcement actions:
1. Uniform Rules of Procedures. The agencies should develop, so far
as feasible, a uniform set of rules of practice and procedure for formal
adjudications, including more explicit provisions covering prehearing
practice and discovery rules /2/ and the receipt of evidence. /3/
2. Availability of Decisions. The agencies should make available
through regular publication, or other accessible means of dissemination,
the appropriately redacted decisions and accompanying opinions issued in
formal enforcement adjudications.
3. Policy Articulation. The agencies should supplement and
periodically clarify enforcement policies set forth in adjudicative
opinions by regularly articulating their enforcement policies through
rules of general applicability (including interpretive rules) and policy
statements.
4. Administrative Law Judges. The agencies, in consultation with the
Office of Personnel Management, should consider the advisability of an
arrangement by which a pool of administrative law judges could handle
all bank regulatory agencies' enforcement adjudications required to be
conducted according to the Administrative Procedure Act, and, if so,
should explore ways to develop such an arrangement.
5. Precomplaint Notice. The agencies should explore, in their
circumstances, the utility of establishing a formal or informal
procedure to allow targets of investigations an opportunity to file a
submission with the appropriate agency official before official action
is taken to initiate an enforcement proceeding.
(52 FR 49151, Dec. 30, 1987)
/2/ See ACUS Recommendation 70-4, Discovery in Agency Adjudication, 1
CFR 305.70-4.
/3/ See ACUS Recommendation 86-2, Use of the Federal Rules of
Evidence in Agency Adjudications, 1 CFR 305.86-2.
01 CFR 305.88-1 Presidential Transition Workers' Code of Ethical
Conduct (Recommendation No. 88-1).
The orderly and peaceful transfer of governmental authority following
presidential elections is a hallmark of American government. The
Presidential Transition Act of 1963 recognizes that a smooth transition
is necessary to ''assure continuity in the faithful execution of the
laws and in the conduct of the affairs of the Federal Government, both
domestic and foreign,'' and it directs all officers of the government to
take steps to promote the orderly transition of power between the
outgoing and incoming administrations. /1/
Since 1933, when Inauguration Day was moved forward from March 4 to
January 20, the length of presidential transitions has been moved
between 71 and 79 days. However, the size and complexity of the
transition task has grown steadily over time, corresponding to the
tremendous growth in federal responsibilities. Each new President-elect
has required a larger and more sophisticated transition organization
than his predecessor.
The President-elect's transition organization must, in this brief
period, prepare to provide the new leadership with comprehensive
information on the organization and responsibilities of each federal
agency; on the resources within each agency, including the budget,
legislative initiatives, personnel and grants or contracts; and on the
policy questions that will require decision by the new administration.
This information is the basis for the President-elect's personnel,
budgetary and policy decisions during the critical initial period of the
new administration.
A large number of private citizens must be relied upon to accomplish
these important tasks. During the 1980-81 presidential transition, over
six hundred persons, most serving as volunteers, had active assignments
on agency transition teams. Many of these persons were selected because
of their substantive knowledge of the agency's mission, acquired either
through past service in the government or in private sector jobs that
brought them in contact with the agency. The magnitude and importance
of the transition tasks, and the limited time available to complete
them, suggest that future Presidents-elect will continue to rely upon
large numbers of private citizens, some of whom later will be offered
government appointments but many of whom will return to their private
sector jobs.
The Administrative Conference wishes to encourage the participation
of well qualified individuals in presidential transitions, but it
recognizes that the presence of large numbers of private transition
workers dealing with federal agencies offers the potential for conflicts
of interest or abuse of the public trust that accompanies their special
access to government information and facilities. The Conference is not
acting upon knowledge of serious problems in this regard in recent
transitions, but rather upon the need to prevent such problems from
occurring in the future.
In this recommendation the Conference urges the President to issue an
executive order to the heads of all federal agencies (including
independent regulatory agencies), conditioning special access to federal
agency records and facilities by members of the President-elect's
transition team upon their agreement in writing to the standards of
conduct set forth in the Appendix to this recommendation. The
recommended executive order would cover the activities only of ''special
transition team members,'' i.e., transition workers, who are not
existing government employees, who serve with or without compensation,
and who are authorized by the President-elect's transition organization
to seek or obtain access to non-public government information. The
Conference believes that private citizens are not, and should not be
considered, special government employees and thereby subject to federal
conflict-of-interest laws, solely because of their activities as special
transition team members.
Two concerns are addressed by this recommendation. First, federal
agency officials need to know who actually represents the
President-elect before granting special access to information. Second,
the public needs assurance that authorized transition workers will not
use such information to further their own financial interests or the
interests of their present or future employers or other private persons.
The Conference believes that the recommended executive order and
transition standards of conduct will alleviate these concerns without
reducing the flexibility of the President-elect's transition effort. By
urging the President to direct federal agencies affirmatively to
cooperate with authorized transition personnel to the extent permitted
by law and consistent with their official duties, the recommendation
should facilitate the President-elect's transition efforts.
The Conference's recommendation includes requirements contained in
pending legislation to amend the Presidential Transition Act of 1963 for
minimal disclosure of personal or financial information by transition
team workers. /2/ The Conference believes that transition team members
should supply this limited information to agencies, whether or not the
pending legislation is enacted. The Conference also recommends that
special transition team members agree not to use non-public government
information, or to take any action as transition team members which
could further their own financial interests.
/1/ 78 Stat. 153, section 2; 3 U.S.C. 102 note.
/2/ H.R. 3932, passed by the House of Representatives on March 31,
1988, and S. 2037, passed by the Senate on April 26, 1988, would
require disclosure of the names of transition team workers, their most
recent employment and the source of funding of their transition
activities as a condition of receipt of public funds for transition
activities.
01 CFR 305.88-1 Recommendation
1. The Conference recommends that the President issue an executive
order that conditions access by special transition team members to
government facilities or non-public information upon their agreement in
writing to the standards of conduct set forth in the Appendix to this
recommendation. The term ''special transition team member'' is used
herein to mean a person who is not a government employee, who serves
with or without compensation as a member of a transition team, and who
is authorized by the President-elect to seek or obtain access to
non-public government information or facilities.
2. The executive order should direct the heads of all federal
agencies to require the President-elect's transition organization to
provide each agency with a list of the special transition team members
for that agency, copies of their written agreements to comply with the
standards of conduct and copies of information disclosure statements, as
a condition of access by such members. The agencies should be required
to maintain and make those documents available to the public upon
request.
3. The executive order should direct all agency heads, subject to the
above conditions, to cooperate with persons named by the President-elect
or his designees as special transition team members to the extent
permitted by law and consistent with the performance of official duties.
4. The executive order should direct all agency heads to take
appropriate action against any person found to have violated the
standards of conduct agreement, including, where authorized and in
accordance with applicable procedures, barring the person from
employment, receipt of contracts, representation of others before the
agency, or referral of the matter to appropriate professional
disciplinary bodies.
Each person who is not an employee or special government employee of
the federal government and who assists in the presidential transition,
with or without compensation, and who is designated by the
President-elect to seek or obtain access to non-public government
information or facilities during the transition period (herein referred
to as a ''special transition team member''), shall agree to comply with
the following standards of conduct as a condition of such access.
A special transition team member shall supply the agency with a
statement as to his or her present employment and the sources of funding
which support his or her transition activities.
A special transition team member shall not use, permit others to use,
or disclose nonpublic information except for the public purposes of the
transition.
During the transition period, a special transition team member shall
not knowingly take any action on a particular matter involving the
federal agency which could have a direct effect upon a financial
interest of the transition team member, his or her spouse, a family
member, or any individual with whom the transition team member has a
business, professional or close personal relationship.
During the transition period, a special transition team member shall
not advise or represent, with or without compensation, anyone in any
particular matter involving a federal agency to which he or she has had
access to non-public information. This restriction does not extend to
the special transition team member's firm or organization, but the team
member should advise his or her firm or organization to establish
procedures to assure that the team member does not participate in any
way in any such agency proceeding.
A special transition team member shall conserve and protect federal
property entrusted to him or her, and shall not use federal property,
including equipment and supplies, other than for purposes directly
related to transition activities.
For two years after the transition, a former special transition team
member shall not represent, with or without compensation, any person
before an agency in any particular matter involving a specific party or
parties as to which he or she obtained government information not then
available to the public and not made public prior to the request for
advice or representation.
As used in this Appendix (Order), the terms ''employee,'' ''special
government employee,'' ''particular matter'' /3/ and ''particular matter
involving a specific party or parties'' shall have the same meaning as
in title 18, United States Code 202-209. The term ''transition period''
shall extend from the date of the general election in which the identity
of the President-elect is established until Inauguration Day, or if the
transition organization continues to operate after the inauguration,
such later date through which the special transition team member
continues to serve in that capacity.
(53 FR 26026, July 11, 1988)
/3/ It is noted that the term ''particular matter'' has been
interpreted to include rulemaking and general policy matters, and
extends to all discrete matters that are the subject of agency action,
no matter how general the effect.
01 CFR 305.88-2 Federal Government Indemnification of Government
Contractors (Recommendation No. 88-2).
Indemnification of government contractors for third-party liability
involves this issue: Who should bear the risk of liability for injury
or damage to a third party caused by products and services supplied by
government contractors? This issue is especially significant when the
products and services involve high-risk or hazardous governmental
activities.
The liability of the government is limited by the doctrine of
sovereign immunity, which has been waived only in certain situations,
such as the Federal Tort Claims Act. Some courts have recognized a
common law immunity for government contractors who have complied with
pertinent government specifications and have disclosed all known defects
or hazards to the government.* In the absence of insurance or indemnity,
government contracts may be exposed to claims based, for example, on
alleged failure to follow specifications or adequately warn the
government or others about product design defects.
No government-wide legislation provides generally for indemnification
of government contractors for third-party liability, although a number
of individual departments and agencies are authorized to indemnify
contractors. /1/ All of the laws authorizing government indemnification
of contractors state conditions that must be met before contractual
indemnity been met. Thus some statutes restrict indemnification to
unusually hazardous governmental activities or activities that may
result in catastrophic losses and further require the contractor to
obtain such insurance as is available. Indemnification clauses included
in contracts usually contain further conditions, some of which are
required by agency rule. A common restriction is that the indemnity
does not cover claims resulting from the contractor's willful
misconduct.
Indemnification clauses are reserved for unusual circumstances, and
few contractors are actually provided with indemnity. The Department of
Defense, for example, included indemnification clauses in an average of
about 70 contracts per year in the five-year period 1980-1984; by way
of comparison, during fiscal year 1984 alone, the Department entered
into over 14.8 million contract actions.
The Conference's study of contractual indemnification found virtually
no evidence of claims made on the basis of indemnification clauses or
litigation over such claims. Although there is no indication that the
government has incurred significant costs under contractual indemnity
provisions in the 30 years that have passed since enactment of the
National Defense Contracts Act in 1958 and the Price-Anderson Act in
1957, the space shuttle disaster and the Three Mile Island nuclear
incident suggest that contingent liabilities under indemnity agreements
are potentially costly. /2/
The Conference's study found that agencies generally do not believe
that current practices and limits on indemnities discourage potential
contractors from bidding. Federal agencies, with few exceptions, see
little need for greater indemnification authority or for broad
legislation that would extend indemnities to government contractors
generally. However, this view is not shared by many federal
contractors. They take the position that the decreasing availability of
private insurance for a broad range of hazardous activities is greatly
reducing the pool of bidders for contracts involving those activities in
the absence of government indemnification. This legislative debate is
beyond the scope of the present recommendation.
While the Conference takes no position on the current debate over
proposals to expand agency authority to indemnify contractors for
hazardous activities, mass injuries, or other special circumstances, the
Conference does recommend the compilation of certain information that
would provide a better basis in the future for ascertaining the need for
and risks associated with broader indemnification.
This recommendation identifies several factors that agencies should
consider when they determine whether to grant an indemnity clause to a
particular contractor. It is appropriate for agencies to consider the
scope of the indemnity proposed to be granted, including the proper mix
of self-insurance, private insurance, and government indemnity. The
factors listed should also be considered by Congress in deciding whether
to grant new authority to an agency to indemnify its contractors.
Decisions to indemnify ordinarily require an assessment of whether
the activity in question involves an unacceptable hazard or degree of
risk. Sometimes the degree of risk is defined in terms of availability
of insurance. Agencies regularly engaged in high-risk activities and
able to grant indemnity clauses, such as the Department of Energy,
Nuclear Regulatory Commission, or National Aeronautics and Space
Administration, would normally have the resources to perform risk
assessments. However, other agencies that confront these issues less
frequently may not have adequate technical expertise to decide. It has
been asserted that there is often great uncertainty, and such decisions
may be made inconsistently. The recommendation suggests referral and
interagency cooperation as a way of meeting this problem.
*Subsequent to adoption of the recommendation, in a case involving
military equipment, the Supreme Court accepted this view. See Boyle v.
United Technologies, 108 S. Ct. 2510 (1988).
/1/ Examples are the National Defense Contracts Act, 50 U.S.C. 1431,
as implemented by Executive Order 10789 (providing for indemnification
under national defense contracts for unusually hazardous or nuclear
risks); section 2354 of title 10 of the United States Code (providing
for indemnification for unusually hazardous defense research and
development activities); section 170 of the Atomic Energy Act, as
amended by the Price-Anderson Act of 1957, 42 U.S.C. 2210(d) (providing
indemnification for activities involving the risk of a substantial
nuclear incident); the Federal Aviation Act, as amended, 49 U.S.C. 1531
et seq. (providing for indemnification for risks where aircraft
operations are necessary to carry out U.S. foreign policy); and the
National Aeronautics and Space Act, as amended, 42 U.S.C. 2458b
(providing for indemnification for damages related to the launch,
operation or recovery of space vehicles).
/2/ In 1982, the Comptroller General issued an opinion (B-201072, May
2, 1982; reconsid. 62 Comp. Gen. 361 (1983)) stating that to comply
with the Federal Anti-Deficiency Act, 31 U.S.C. 1341, indemnity clauses
in government contracts must specify that the indemnity is available
only to the extent of available authorized appropriations. This
limitation, however, has limited impact where Congress has set maximum
indemnity limits by statute, as in the Price-Anderson Act, or where no
ceiling is set, as in the National Defense Contracts Act. The
Price-Anderson Act reauthorization is pending as of the date of this
recommendation.
01 CFR 305.88-2 Recommendation
1. Identification of Agency Authority to Indemnify. Each agency that
has, and intends to exercise, the authority to indemnify any of its
contractors against liability to third parties should set forth, in a
policy statement or regulation, the agency's understanding of the extent
and source of its authority to indemnify contractors. The agency should
consult with the Department of Justice and the Office of Federal
Procurement Policy in drafting the statement or regulation.
2. Agency Decision Whether to Grant an Indemnity Clause. Before
deciding to grant an indemnity clause to a contractor, an agency should
identify the public benefits expected to be gained by such a grant and
should take into account:
(a) The nature and magnitude of the risks involved in the covered
activities, including the danger inherent in the work to be performed,
the adequacy of the state of the art to assess the inherent danger, the
aggregate liability that could be incurred, when the liabilities might
be incurred, and how current insurance policies would apply to such
liabilities;
(b) The scope of the indemnity proposed to be granted;
(c) The source of funds that would be used to pay an award under the
indemnity clause, including the possible application of the Federal
Anti-Deficiency Act, and the impact, if any, that such an award will
have on the programs of the agency or other units of the government;
(d) The incentives that either providing or denying an
indemnification clause would give the agency for supervising contractual
performance, so as to provide for maximum protection of the public from
injury and to protect the government from unwarranted liability in light
of the identifiable risks;
(e) The incentives that the contractor would have, assuming
indemnification were granted, for performing under the contract in a
safe and prudent manner;
(f) The incentives that the contractor would have, assuming
indemnification were granted, to defend itself or to help defend the
government in any subsequent litigation; and
(g) Any effects, assuming indemnification were granted, on the
ability or the willingness of the insurance industry to make available
private insurance for the kinds of activities to which the
indemnification would apply.
3. The Need for More Information. Each agency that has paid out any
sum of money or received any claims for payment under a contractual
obligation to indemnify a contractor, or on whose behalf such sums have
been paid by the federal government, should report all such payments and
claims to the Office of Federal Procurement Policy (OFPP) on an annual
basis. The OFPP should periodically issue a report summarizing the
information received. All such reports should be made available to the
public except to the extent that release of any information included is
prohibited by law. The OFPP should also obtain from each affected
agency a list, updated periodically, of all existing contracts
containing indemnity clauses.
4. Contracting Office Expertise. Where an agency is considering
whether to grant an indemnity clause, but the contracting office does
not have sufficient technical expertise to assess the degree of risk,
the extent of the hazard, or the availability of insurance, these
questions should be referred to an office of the agency that does have
the requisite expertise to assist the contracting office in making such
decisions. If the contracting agency as a whole lacks the expertise
required to assess these matters adequately (for example, where unusual
or newly emerging technological risks are involved), the agency should
seek the assistance and cooperation of other agencies. Agencies with
pertinent experience or knowledge should cooperate to make available to
requesting agencies staff members whose experience in risk assessment
may be helpful. It may be appropriate to create a small,
highly-qualified risk assessment office to furnish or coordinate such
assistance.
(53 FR 26027, July 11, 1988; 53 FR 39588, Oct. 11, 1988)
01 CFR 305.88-3 The Federal Reserve Board's Handling of Applications
Under the Bank Holding Company Act (Recommendation 88-3).
Among the Federal Reserve Board's (FED's) responsibilities is
implementation of the Bank Holding Company Act (BHCA) (12 U.S.C. 1841 et
seq.). The BHCA's principal purposes are to ensure the safe and sound
operation of bank holding companies (BHCs), to promote competition
within the banking industry, and to separate banking from commerce.
Under the BHCA, the FED has also been authorized to determine the
extent to which BHCs may engage in ''non-banking'' activities in the
parent BHC and in non-bank subsidiaries. Because the banking industry
has undergone rapid changes in the face of new technologies, the line
between banking and other financial activities has been blurred.
Under section 3 of the BHCA, the FED receives applications for the
formation of or acquisition of banks by BHCs. The statutory factors
which the Board must apply in acting on section 3 applications include
an evaluation of the competitive impact of the transaction, the
convenience and needs of the community to be served, and the financial
and managerial resources of the applicant.
Under section 4(c)(8) of the Act, the FED receives applications by
BHCs to acquire non-banking interests. Such applications are to be
approved only when the activities involved are ''closely related'' to
and a ''proper incident'' to banking. These questions have become of
particular significance most recently in applications involving proposed
securities and insurance activities of BHCs.
Applications under both sections are generally resolved without the
need for an evidentiary hearing, although informal hearings and meetings
are sometimes held. Both sections do, however, provide for an overall
91-day time limit on the FED's action on individual applications
''beginning on the date of submission to the Board of the complete
record on the application.'' The FED routinely processes well over 90
percent of the applications received by the FED within 60 days of
''acceptance'' of the application by the Reserve Bank (the Bank is
permitted to request information, but otherwise must adhere to a short
deadline in accepting the application and fowarding it to the FED). The
FED's regulations specifically provide that, in every case in which an
application has not been considered by the FED within 60 days of
acceptance, the applicant will be notified and provided a written
explanation for the delay.
In its regulations, the FED defines when the record on a particular
application is complete for purposes of determining when the statutory
91-day period has begun. Under the FED's regulations, the 91-day period
begins on the the latest of four dates: (1) The date of acceptance of
the application; (2) the last day of the public comment period (which
is usually after acceptance of the application, and is the date upon
which the 91-day period begins in the majority of cases); (3) the date
of receipt of any relevant material information regarding the
application; and (4) the date of completion of any hearing or other
proceeding regarding the application.
Because the statute provides that the 91-day period does not begin
until the complete record has been submitted to the FED, the courts have
determined that the 91-day period may be tolled or retriggered after the
close of the public comment period if new material information is
submitted during the processing of the application. Examples of this
type of information include comments or protests from interested
parties, changes in the financial condition of the applicant, proposed
efforts by the applicant to raise additional capital, or proposed
divestiture plans to accommodate competitive problems.
Because there is always the possibility that submission of additional
material information may toll or retrigger the 91-day period, the 91-day
period is rendered rather uncertain in practice. Therefore, the
Conference suggests that the FED's regulations on this issue ensure that
there is a point in the application process at which the FED will
declare that the applicant's file is deemed to be informationally
complete, thus triggering the 91-day rule, unless additional information
of a highly significant nature relating to the application is received.
The nature of the regulatory process established under the BHCA
encourages a participatory approach to decisionmaking on the part of
applicants and the FED. Various kinds of conditional order are used by
the FED to tailor its regulatory decisions to the specific applicant
before it. These regulatory conditions appear or are referenced in the
FED's final order, and such conditions are subject to judicial review.
Other decisions, however, reflect voluntary commitments made by the
applicant. Such commitments often are the result of a decision by the
applicant to expedite processing of a particular application by
committing to resolve questions that might otherwise result in denial of
the application. These commitments usually do not appear in the FED's
order and, while reviewed by the Board in every case, are not subject to
judicial review at the instance of the applicant.
The Conference believes that conditions and commitments are important
regulatory tools used by the FED that, for the most part, add
flexibility to and encourage efficiency in the consideration of
applications to individual cases, providing a wide range of regulatory
choices between unconditional approval and complete denial of an
application.
01 CFR 305.88-3 Recommendation
The Board of Governors of the Federal Reserve System should take the
following actions with respect to the FED's handling of applications
under the Bank Holding Company Act.
1. Clarification of the 91-day rule. When acting on such
applications, the Federal Reserve Board should by regulation provide
that only receipt of information of a highly significant nature
pertaining to the application will be deemed to warrant reopening an
applicant's file, thereby deferring the date by which the Fed must act
finally on the application.
2. Conditions and Voluntary Commitments. Conditions established by
the FED regarding applications and voluntary commitments offered by
applicants should be unambiguous and reasonably related to an
articulated policy of the Federal Reserve Board. Voluntary commitments,
when offered by applicants, should, consistent with the Freedom of
Information Act, ordinarily be made part of final orders of the Board.
Moreover, the Board should, from time to time, summarize the thrust of
these commitments and publish and disseminate these summaries.
(53 FR 26028, July 11, 1988)
01 CFR 305.88-4 Deferred Taxation for Conflict-of-Interest Divestitures
(Recommendation 88-4).
Individuals appointed to government positions are sometimes required
to divest themselves of property to satisfy conflict-of-interest
requirements, such as the prohibition in 18 U.S.C. 208 on participation
in matters affecting one's financial interest. In other instances,
divestiture of property by such appointees would be simpler and serve
conflict-of-interest purposes better than the establishment of qualified
blind trusts or subsequent and sometimes frequent recusals by an
official from participation in particular decisions. In addition,
persons serving in the government occasionally are required to divest
themselves of property before accepting a new position or as a condition
to participating in a particular matter.
Divestiture of property to avoid conflicts of interest will often
result, under current law, in financial losses in the form of taxation
of the gains realized as a result of divestiture. The Administrative
Conference believes that this tax burden is a disincentive to
individuals who would otherwise accept a federal appointment, and in the
case of present officials, an unnecessary burden resulting from their
performance of official responsibilities. The adverse effects of this
disincentive to government service are most acute with respect to the
most senior positions involving major policymaking roles. Failure to
obtain the best people for those positions, or the frequent recusals of
people in those positions, may have serious adverse consequences on both
the individuals involved and the government.
The Conference accordingly recommends that Congress amend the
Internal Revenue Code to permit deferred taxation of gains for
presidential appointees subject to Senate confirmation and other
individuals entering the government to accept high level executive
branch positions, whenever they are requested or ordered by an
appropriate authority to divest themselves of property to avoid actual
or potential conflicts of interests. The Conference also recommends
that Congress consider amending the Code to extend similar tax treatment
to persons serving in the executive branch. /1/
The Conference proposes that this defined class of persons be
permitted to sell such property and to place the proceeds in a neutral
investment vehicle and maintain their original basis in the divested
property. Taxation would not be eliminated by this proposal, but only
postponed until the individual ultimately disposes of the proceeds of a
reinvestment vehicle. The Conference also suggests specific factors and
other matters to be taken into account in amending the Code to
accomplish these purposes.
The Conference believes that revenue impact of the recommendation
will be minimal considering the narrow class of persons that would be
eligible for tax deferral.
/1/ This recommendation is limited to executive branch appointees and
employees because the Conference by statute is limited to studying and
recommending improvements to administrative procedure, 5 U.S.C. 571-576.
The Conference, therefore, takes no position on whether or not similar
tax treatment should be accorded to officials of the judicial branch.
01 CFR 305.88-4 Recommendation
1. Congress should amend the Internal Revenue Code to permit
presidential appointees who are subject to Senate confirmation and other
officials entering the government to accept high level executive branch
appointments, to divest property, such as securities, and reinvest the
proceeds in a neutral investment vehicle and thereby defer realization
of taxable gains.
2. Such amendment should take into account the following factors:
(a) The need to assure that the divestiture is undertaken to avoid
actual or potential conflicts of interests, by conditioning the deferral
on an order or request of the President (or his delegate such as the
White House Counsel or the Director of the Office of Government Ethics);
(b) The need for divestiture by spouses, dependent children, and
others whose assets may be imputed to the federal official for
conflict-of-interest purposes, by making deferral available to them
also; and
(c) The need to assure that the reinvestment vehicle avoids conflicts
of interests with respect to the position to be held, by having the
person ordering or requesting divestiture approve the vehicle.
3. Congress should consider whether the amendment should contain
provisions dealing with the following matters:
(a) A minimum period of required government service after divestiture
to qualify for deferral;
(b) Requiring the appointee to defer gains or losses for all property
within the class of divested property (e.g., all energy stock), in order
to prohibit the appointee from recognizing losses and deferring gains;
(c) Permitting the appointee a second deferral on leaving government
service (or within a brief period of time thereafter) if the appointee
chooses to dispose of the neutral investment held during government
service in order to make another investment.
4. The Conference recognizes that other persons serving in the
executive branch may be ordered or requested to divest specific property
in order for them to perform their duties free of actual or potential
conflicts of interest, and believes that Congress should also consider,
at the appropriate time, whether to extend similar tax treatment to
them.
(53 FR 26029, July 11, 1988)
01 CFR 305.88-5 Agency Use of Settlement Judges (Recommendation 88-5).
Many cases over which administrative law judges, administrative
judges, and other agency hearing officers preside do not involve broad
regulatory issues and are often appropriately resolved by settlement.
Following in the footsteps of several innovative federal judges, /1/
some administrative agencies have begun to provide additional
mechanisms for resolving these cases. The Federal Energy Regulatory
Commission and the Occupational Safety and Health Review Commission have
used a ''settlement judge'' -- not the presiding judge in the case -- to
work with parties to explore possibilities for consensual resolution.
Other alternatives that agencies have used include prehearing
conferences and summary procedures, /2/ and more recently, minitrials,
mediation and binding and nonbinding arbitrations. /3/
Agency prehearing conferences have historically been utilized as a
means for either settling an entire case or narrowing the issues.
Today, some presiding judges are exceptionally effective at using these
conferences to promote settlement without overstepping bounds of
proprietary. Still, while the presiding judge may be the ideal person
to suggest that the parties talk settlement in a reasonable manner, he
or she often cannot help the parties' explorations in any comprehensive
way without risking the appearance of impropriety. In broad classes of
cases, a separate settlement judge, not so limited, can exercise greater
settlement-inducing authority than the presiding judge.
The Conference does not intend to suggest that use of settlement
judges is a dispute resolution method that is necessarily better or
worse than adjudication, arbitration, minitrials, mediation by staff
personnel or nongovernment mediators, or settlement by the presiding
judge; parties should retain maximum flexibility to use the best
procedure for their case. The best solution of all is to settle before
an action has been instituted, and agencies should also do far more to
instill consensual methods of dispute resolution into investigatory,
preenforcement, and other stages. The settlement judge technique,
nonetheless, is a useful means of facilitating settlements that, in
appropriate adjudications, may be of greater value.
The settlement judge can command a degree of deference similar to
that of the presiding judge without the need to observe all of the
commands that establish and maintain impartiality. A separate
settlement judge, once appointed, can engage in ex parte and
off-the-record conversations, frank assessments of the merits, and other
techniques to aid settlement that the presiding judge is less free to
use. The settlement judge is generally knowledgeable about the kind of
case and the parties' interests, and is in a position to lend structure
to the negotiations, control their pace, reduce the adversarial nature
of the process, and help the parties to assess objectively both the
strengths and weaknesses of the case and to find reasoned solutions.
The settlement judge is familiar with how the presiding judge is likely
to handle such cases, how much time and effort they take, how evidence
is weighed, and what kind of a reception the legal and factual issues
will be given in light of agency precedent and policy. The settlement
judge, who carries a judge's power and authority, may greatly reduce the
scope of parties' disagreements over likely outcomes. Parties also are
less likely to be skeptical about the informal settlement judge process
and more likely to view this device as a legitimate and potentially
valuable means of reaching an enforceable, legally defensible
settlement.
Several other advantages may accrue. Initiating the settlement judge
technique may be an excellent way for agencies to introduce the idea of
settlement in proceedings in which it is not now frequently pursued but
which the presence of other factors seems to make apt candidates. In
such circumstances, an agency could make special efforts to make the
technique available in the interest of breaking the adversarial mold,
perhaps preceded by siminars or other devices to permit its presiding
judges to study mediation, negotiation and other settlement-inducing
techniques. In individual cases, use of a settlement judge might lead
the parties to turn to mediation or other non-adjudicatory means of
pursuing a settlement agreement. Presiding judges' experiences as
settlement judges, and possible enhanced expertise as mediators, should
help them in resolving later cases.
Settlement judges are not a panacea, and their use must take into
account caseloads, possible abuses in exteme cases, and likelihood of
success. The very potency of the judicial office means that it must be
carefully employed to avoid abuse. Even so, the Conference sees great
merit in the settlement judge technique and urges that it receive much
wider consideration and application as a means of actually settling
matters, or convincing the parties to undertake other consensual dispute
resolution methods.
These recommendations suggest procedures for using the settlement
judge as a final effort to obviate formal proceedings, as well as
guidelines that seek to increase potential gains in efficiency while
minimizing possible abuses that may result from a greater reliance on
settlement in agencies' adjudicatory proceedings.
/1/ In addition to settlement conferences, courts have engaged in
broad and growing use of other means for facilitating an early
disposition of a case including arbitration, special masters, mediators,
and the use of summary jury trials. Rule 16(c) of the Federal Rules of
Civil Procedure was amended in 1983 to provide that settlement and
''extrajudicial procedures'' for resolving disputes are desirable and
may be a subject at pretrial conferences, while subsection (f) of the
rule provides for sanctions for failure to appear at, to be prepared
for, and ''to participate in good faith'' at such conferences.
/2/ See ACUS Recommendation 70-4(1) (urging presiding officers to
hold prehearing conferences on own motion or at the request of the
parties) and Recommendation 70-3 (summary decision).
/3/ See ACUS Recommendation 86-3 (alternative means of dispute
resolution) and Recommendation 87-11 (alternative means of dispute
resolution in government contract disputes). In both recommendations,
use of settlement judges is specifically recommended, 86-3(D), 87-11(d).
See also Recommendation 72-4(D) (settlement of ratemaking cases).
01 CFR 305.88-5 Recommendation
A. Encouraging Use of Settlement Judges. 1. As part of efforts to
encourage use of consensual means of dispute resolution, federal
agencies that decide cases presided over by administrative law judges,
administrative judges, or other hearing officers should encourage and
facilitate settlement of adjudicatory proceedings by the voluntary use
of settlement judges and other consensual methods.
2. Agency offices of administrative law judges, boards of contract
appeals, and other hearing offices should adopt rules for appropriate
use of settlement judges.
3. In urging regularized and amplified utilization of settlement
judges, the Administrative Conference has no intention of discouraging
reliance on other methods of dispute resolution without recourse to
formal procedures. In many instances, cases of the types deemed
suitable for reference to a settlement judge (paragraph B, below) can
and should be settled at preliminary stages of disagreement. At times,
moreover, early recourse to mediation or arbitration (where authorized)
may be appropriate. /4/ The Administrative Conference urges constant
attention to settlement possibilities long before a controversy has
reached the docket of a trial judge.
B. Appropriate Cases. In general, the agency use of settlement
judges may be appropriate where one, and particularly more than one, of
the following factors appear.
1. Crowded dockets with relatively few cases being settled.
2. Presence of a large proportion of factual issues that are not of
major precedential importance and do not raise broad policy or legal
issues, particularly where the facts are undisputed and the primary
issues concern the interpretation or characterization of such facts.
3. Remedies susceptible to gradation and, thus, to compromise.
Examples are money claims, rates, /5/ and degrees of restrictions or
activity.
C. Administrative Issues. 1. The chief judge should retain
discretion in assigning settlement judges on the basis of the
situations, issues, judges' aptitudes and personalities, and so forth.
He should also remain free to refuse to appoint a settlement judge.
2. The agency head should ordinarily not suggest use of a settlement
judge, since he is much less likely to know when a particular case is
suitable for settlement and much more likely to desire a case to be
settled to avoid having to decide it.
3. Given the workload of presiding judges and possible limited
availability for appointment as a settlement judge, agencies should use,
as an alternative source of settlement judges, currently retired ALJs
who have notified the Office of Personnel Management that they would
accept temporary appointment (pursuant to 5 U.S.C. 3323(b), enacted in
1984), retired administrative judges or hearing officers, or active
hearing officers from another agency.
4. Agency presiding judges, and especially chief judges, should
regularly review their dockets to identify cases where use of settlement
judges may be useful, and consult regularly with experienced mediators
to locate cases ripe for settlement.
5. Agencies should give attention to offering training in
negotiation, mediation, and other consensual dispute resolution skills
to administrative law judges, administrative judges, and other hearing
officers. Training courses or seminars should be developed by agencies
jointly or in cooperation with the Administrative Conference, Federal
Mediation and Conciliation Service, Board of Contract Appeals Judges
Association, American Bar Association, or other professional
organizations. Agencies should also work with other interested groups
to sponsor similar programs or outreach sessions for representatives who
regularly appear in agency proceedings.
D. Procedures. Agency regulations or guidelines implementing the use
of settlement judges should consider the following:
1. Suggesting use of a settlement judge. (a) The suggestion that a
settlement judge be consulted may be made to the agency's chief judge by
any party or by the presiding judge (although the agency head's
invocation of the technique should be restrained (see C.2, above)).
Because it will usually be difficult to predict at what points in the
prehearing process settlement will be possible, the presiding judge and
the parties should be free to request appointment of a settlement judge
at any time. Any party or the presiding judge may veto such a
suggestion.
(b) The chief judge should seek to ensure that all parties who appear
pro se consent knowingly and voluntarily before he decides to invoke the
aid of a settlement judge.
2. Appointment. (a) When appointing a settlement judge, the chief
judge should issue an order specifying the length of time for such
negotiations and confining the scope of any settlement negotiations to
specified issues.
(b) When a settlement judge is appointed, the presiding judge may
suspend discovery or other proceedings during the time the matter is
assigned to the settlement judge.
(c) If settlement negotiations are terminated, the chief judge may
subsequently appoint a settlement judge in the same proceeding to
conduct further negotiations.
(d) To ensure that proceedings are not unnecessarily interrupted,
agency regulations or guidelines should provide that any decision
concerning the appointment of a settlement judge or termination of
settlement negotiations is not subject to review or rehearing.
3. Conduct of negotiations. (a) The regulations should afford the
settlement judge broad authority to:
(1) Confer with the parties on the subject of whole or partial
settlement,
(2) Suggest privately to a party's representative what concessions be
considered by the party,
(3) Assess privately with each representative the reasonableness of
the party's case or settlement position,
(4) Facilitate communications between the parties,
(5) Mediate,
(6) Seek resolution of as many issues in the case as is feasible, and
(7) Recommend use of minitrials, mediation, factfinding, or other
consensual resolution means, and, if the parties genuinely wish some
method of presenting evidence in a settlement context or having the
dispute mediated, the settlement judge should be free to refer them to a
separate minitrial or mediation process.
(b) To increase the likelihood of settlement, the regulations should:
(1) Provide that the settlement judge may recommend that the
representative who is expected to try the case be present at a
settlement conference and that the parties, or their agents having full
settlement authority, be present.
(2) Set forth specific guidelines for conducting settlement
conferences (including by telephone) where appropriate.
(3) Exhort all parties and their representatives to be candid with
the settlement judge so that he may properly guide settlement
discussions.
(4) Provide the settlement judge with flexibility to impose any
additional requirements proper to expedite resolution of the case.
(c) The settlement judge should, within days after appointment, meet
or talk with the parties together and (usually) separately to determine
what obstructs settlement. Proceedings before a settlement judge should
not ordinarily be lengthy or elaborate.
4. Confidentiality. (a) To encourage the candor often necessary to
achieve a settlement, the regulations should provide that no evidence of
statements or conduct by parties, counsel or settlement judge in the
settlement proceedings shall be admissible in any subsequent hearing,
except by stipulation of the parties. The regulations should further
provide that documents disclosed in a settlement process may not be used
in litigation unless obtained by appropriate discovery or subpoena.
Agencies should provide sanctions against any violators.
(b) The regulations should prohibit the settlement judge from
discussing the merits of the case with the presiding judge or any other
person /6/ and preclude the settlement judge from being called as a
witness in any hearing of the case.
5. Settlement and reports. (a) At the conclusion of the settlement
procedures, either the parties should tell the presiding judge that they
have settled, or the settlement judge should advise the trial judge,
without elaboration, that settlement has not been reached. The report
should not attribute any view to any party or assess any positions
taken. The agency's regulations should describe the method by which the
presiding judge is advised that settlement has not been reached.
(b) To protect against unnecessary delay, the settlement judge's
first report should be made within a specified period after appointment.
The agency head or chief judge should be authorized to order additional
reports at any time.
(c) In reporting, the settlement judge may recommend the termination
or continuation of settlement negotiations.
(d) A settlement arrived at with the help of a settlement judge
should be treated like any other settlement.
(53 FR 26030, July 11, 1988)
/4/ See Recommendation 86-3 and 87-11, id.
/5/ See Recommendation 72-4, supra, note 3.
/6/ This should not prevent judges within the same office from
engaging in discussions of settlement or mediation techniques that may
aid the settlement judge in resolving particular cases and assist in a
judge's professional development.
01 CFR 305.88-6 Judicial Review of Preliminary Challenges to Agency
Action (Recommendation No. 88-6).
The Administrative Conference of the United States has long had an
interest in forum allocation in administrative cases. In Recommendation
No. 75-3, ''The Choice of Forum for Judicial Review of Administrative
Action'' (1975), the Conference stated criteria for determining the
appropriate judicial forum for the review of final administrative
action. The Recommendation urged that agency actions taken on the basis
of a formal evidentiary record should normally be directly reviewable by
courts of appeals, and that rules and other informal orders issued by
agencies whose formal orders are subject to review in the courts of
appeals should be reviewable by those same courts.
Building upon the principles underlying that recommendation, the
Conference now addresses the proper forum for judicial review where an
agency has issued no final order, but agency action (or inaction) is
nevertheless considered reviewable by a court. /1/ For example, a party
may allege that agency action has been ''unlawfully withheld or
unreasonably delayed'' within the meaning of 5 U.S.C. 706. What level of
court -- trial or appellate -- should have jurisdiction over such a
preliminary challenge? Most direct review statutes do not specifically
address this question, and difficult jurisdictional questions have
arisen as a result.
The leading decision on this subject is Telecommunications Research
and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (TRAC), a case
involving a challenge to allegedly unreasonable agency delay. In TRAC,
the United States Court of Appeals for the District of Columbia Circuit
concluded that when the relevant statute assigns review of final agency
action (when and if it occurs) exclusively to the court of appeals, then
a preliminary challenge also will be subject to exclusive appellate
review so long as relief in relation to it might affect the court's
ultimate jurisdiction. Based on a court's authority to issue writs in
aid of its jurisdiction under the All Writs Act, TRAC's holding strongly
favors consolidating preliminary challenges in the courts of appeals
even when the agency's organic statute does not settle the point.
However, some confusion has followed the TRAC decision. Subsequent
opinions have grappled at length with the question of what ''might
affect'' the court's jurisdiction and, in some cases, have carved out
exceptions to the TRAC doctrine. Some district courts, for example,
have distinguished certain constitutional claims, for which they have
upheld district court jurisdiction.
In addition, some problems have remained because TRAC cannot readily
be applied to situations in which the agency's final action might take
different forms, with different jurisdictional consequences. For
example, in some cases the Occupational Safety and Health Administration
may decide to issue ''standards'', which are reviewable in the courts of
appeals, or ''regulations'', which are reviewable in district court.
Jurisdictional uncertainty can also occur in preliminary challenges
involving Food and Drug Administration approval of new drug applications
under the Food, Drug and Cosmetic Act, 21 U.S.C. 355. When the FDA
refuses to approve an application, the statute authorizes the applicant
to appeal directly to the courts of appeals; this special review
provision does not apply, however, to parties challenging FDA approval
of a new drug application, who thus must proceed in district court. In
cases like these, the TRAC rule may require courts to make premature
jurisdictional analyses based on speculation about the nature of the
action the agency may ultimately take in order to determine whether they
can hear the preliminary challenge.
The Conference believes that there is a need for greater clarity in
this area. Unless Congress has reason to believe otherwise in a
specific statute, jurisdiction over all such preliminary challenges
should follow the principle of TRAC. The requirement that preliminary
challenges be heard exclusively by the court that will ultimately review
final agency action may influence a litigator's decision whether to
raise an issue preliminarily and thus discourage the bringing of
preliminary review proceedings that have little merit but offer some
potential for creating delay. In addition, the courts that review final
agency action may be more familiar with the substantive programs
adminstered by an agency, and thus better able to evaluate the issues
raised in preliminary challenges. To avoid further confusion over
proper jurisdiction, the TRAC rule should be interpreted to include all
cases in which final action would be reviewable in the courts of
appeals, and the exceptions that have been carved out by the district
courts should be rejected. Where jurisdiction over the final action is
unclear, however, preliminary challenges should be cognizable in either
the district courts or the courts of appeals.
Some special consideration may be necessary where preliminary
challenges involve allegedly unlawful delay by an agency. For these
challenges, by definition, time is generally of the essence; moreover,
they usually do not require elaborate analysis of the relevant facts or
applicable law. Frequently these claims may be resolved more easily and
expeditiously through the use of simpler or less formal approaches than
through the ordinary course of briefing and oral argument. The courts
of appeals should develop techniques for dealing with these cases
promplty and practically when they arise. While the most effective
measures may vary depending upon the procedural rules applicable in
individual courts, possible approaches might include rules permitting,
in appropriate cases, decision on the briefs without oral argument, the
filing of petitioners' briefs simultaneously with the notice of appeal,
expedited calendaring of delay cases, informal status or settlement
conferences involving a single judge, and, where the record may require
expansion through factfinding, prompt assignment to a district court,
magistrate, or other official for that purpose.
Accordingly, the Conference offers the following recommendation.
/1/ The Administrative Conference takes no position in this
recommendation on whether and under what circumstances such preliminary
actions should be deemed judicially reviewable before issuance of a
final order by an agency.
01 CFR 305.88-6 Recommendation
1. In considering legislation that would assign jurisdiction to
review agency action to either district courts or courts of appeals,
Congress should:
(a) Follow the principles stated in ACUS Recommendation 75-3, The
Choice of Forum for Judicial Review of Agency Action; and
(b) Take special care to consider where preliminary challenges to
agency decisionmaking should be brought, specifying whether the district
courts or the courts of appeals or both have jurisdiction over such
challenges. As a general rule, jurisdiction over reviewable preliminary
challenges should be assigned to the forum that would have jurisdiction
if an appeal were taken from final agency action growing out of the
proceeding.
(c) Provide that when the proper forum for judicial review of final
agency action may be either the district courts or the courts of
appeals, depending upon matters such as the form the agency's action
will eventually take or the outcome of the proceeding, any of the courts
that might have jurisdiction over final agency action should have
jurisdiction over reviewable challenges to the agency's preliminary
action (or inaction).
2. In the absence of Congressional direction, the principles
identified in paragraph 1 (b) and (c) of this recommendation should
govern the choice of forum for otherwise reviewable preliminary
challenges to agency action.
3. Where jurisdiction over claims involving unlawful delay by an
agency lies in the courts of appeals, those courts should assure that
their procedures provide adequately for prompt and efficient disposition
of such claims.
(53 FR 39585, Oct. 11, 1988)
01 CFR 305.88-7 Valuation of Human Life in Regulatory Decisionmaking
(Recommendation No. 88-7).
Regulations intended to lessen risks of accidents and illness
ordinarily impose compliance costs on regulated entities and on
rulemaking agencies. In return, society gains numerous benefits, most
notably the avoidance of fatalities, injuries and disease, and in some
instances a reduction in property damage. Promulgation of such
regulations is a multi-faceted process, and this recommendation
addresses one set of issues frequently encountered in agency
decisionmaking -- the valuation of human life.
Agencies often make reasoned estimates of the reduction in fatalities
likely to follow implementation of a particular regulation, or of
alternative regulations. It is rarely if ever possible to eliminate
risk altogether, and it is nearly always the case that greater risk
reduction raises compliance costs. Faced with such situations, agencies
cannot avoid placing a value -- either explicitly or implicitly -- on
the societal benefits of risk reduction. Although similar issues are
obviously involved when agencies seek to evaluate the benefit of
avoiding illnesses or injuries, this recommendation is limited to agency
practices and constraints in benefits valuation when the benefit at
issue is future lives saved.
Placement of a dollar value on human life is controversial and
complex, and a wide array of approaches may be employed. A broad range
of dollar values per life saved can be observed in regulatory outcomes
across programs and departments. In part, this reflects differing views
about what explicit value is suitable for a given type of hazard, and in
part it reflects judgments that, for reasons of policy or legal
constraints, decisions should take no account of the value of life
implict in those decisions. Some agencies reject all explicit efforts
to place a monetary value on human life, while others routinely build
such estimates into their regulatory proposals. This diversity can be
sharp even within the same department. Those agencies that are willing
to utilize explicit normative benchmarks for the value of life appear to
be moving toward reliance on the same basic estimation technique,
generally referred to as ''willingness-to-pay.'' This technique is
premised on the assumption that by examination of marketplace behavior,
one can roughly ascertain how much individuals would be willing to pay
in order to reduce the probability of death from a particular hazard or
cause, or how much they would require in the form of salary increases or
other payments to be willing to accept the increased probability. While
willingness-to-pay provides the most inclusive analysis currently
available for evaluating the benefits derived from regulatory reduction
of fatalities, it falls far short of an ideal process and can produce
results that are misleading because the analysis often fails to take
into account all relevant variables.
The Conference recognizes the rudimentary state of knowledge on this
issue, and realizes that both methodologies and results are likely to
continue to vary among agencies. In this environment, however, it would
be useful for agencies to take measures that would reveal publicly the
processes through which they have determined the valuation of life
incorporated in policy decisions. /1/ Such a procedure would provide
useful clarification and exposition of the unavoidable trade-offs in
regulating hazards, and would also assist in drawing attention to those
hazards where further protection may be feasible at acceptable cost.
In this way, agency practice may also be measured against
developments in the valuation techniques and evaluated for consistency
with other agencies as well as with other regulations in the same
agency. The Office of Management and Budget (OMB), in its oversight of
executive branch regulatory activities, could facilitate consistency by
providing a central clearinghouse for research and information on life
valuation issues. OMB should also assist agencies by updating its
guidance concerning discount rates used by agencies in deriving present
value equivalents of future effects. The current government-wide
general guidance on discounting is contained in OMB Circular A-94 which
has not been updated since 1972.
/1/ In 1979, the Conference made a similar recommendation about
cost-benefit analyses, Recommendation 79-4, Public Disclosure Concerning
the Use of Cost-Benefit and Similar Analyses in Regulation, 1 C.R.F.
305.79-4 (1988).
01 CFR 305.88-7 Recommendation
1. When an agency adopts a regulation that is intended to reduce the
risk to human life, based on a judgment that the associated compliance
costs are justified, the agency should disclose the dollar value per
statistical life used for the purposes of that determination. Such
statements and disclosures should also set forth the human life
valuation implications of alternative levels of regulatory stringency
considered by the agency. Exceptions to this principle may be
appropriate where empirical information about either the costs or
benefits of the regulation is highly conjectural, or where the benefits
include values which cannot be quantified in market terms, e.g.,
aesthetic gains. In such cases, agencies should explain the nature and
degree of imprecision in the valuation process so that the public will
not be misled. When an agency declines to adopt a regulation due to
these considerations, it should provide similar information.
2. In implementing paragraph 1, agencies that develop and use
methodologies for placing a monetary value on human life should
recognize that there remain substantial limitations of current
methodology to incorporate all the variables that affect societal
valuations of human life. An agency should explain the factors included
or considered in its valuation. The agency also should explain how it
weighs such factors.
3. Whenever agencies choose to discount costs and benefits in
implementing paragraph 1, they should clearly and fully disclose what
rates they are using, the methodology that generated those rates, and
the sensitivity of outcomes to the particular rates applied. The Office
of Management and Budget (OMB) should revise its guidance concerning the
use of a discount rate in the valuation of costs and benefits to reflect
recent learning on the subject, either through updating OMB Circular
A-94 or by other means. Such guidance should articulate the various
methods by which a discount rate can be derived and the scope of
subjects to which it can be applied.
4. OMB should serve federal agencies as a central clearinghouse for
research and information on life valuation issues. To this end, OMB
should continue and expand its discussion of agency practices in the
life valuation area, initiated in the 1987-88 edition of the annual
Regulatory Program of the United States Government.
(53 FR 39586, Oct. 11, 1988)
01 CFR 305.88-8 Resolution of Claims Against Savings Receiverships
(Recommendation 88-8).
When a federally insured savings and loan institution (''thrift'')
fails, the Federal Home Loan Bank Board (FHLBB) exercises overall
regulatory control. The Federal Savings and Loan Insurance Corporation
(FSLIC), under the direction of the FHLBB, ordinarily acts as receiver
for federally insured thrifts, and, in that capacity, must pay the valid
credit obligations of the failed thrift. In the process of accepting,
settling or rejecting a diverse and complex range of creditor claims,
the FSLIC attempts to resolve disputes informally. If this cannot be
done, claimants may resort to an adjudicative process. The locus of
this adjudication -- agency or court -- and its elements are the
concerns of this recommendation.
Exclusivity of the Agency Adjudication Process. The FHLBB and its
sister agency, the FSLIC, have asserted exclusive jurisdiction to
adjudicate creditor claims against thrift receiverships. To establish
and enforce its asserted power as receiver to adjudicate creditor
claims, the FSLIC has adopted the practice of seeking to have claims
litigation that has been initiated in state courts removed to the
federal courts, where the FSLIC then moves for dismissal for want of
subject matter jurisdiction. The agency has sometimes moved to override
court judgments granted to creditors that were entered before a thrift
was place in receivership.
The FSLIC's argument is that, as receiver, it has been vested with
exclusive power to determine the validity of creditor claims, and that
the jurisdiction of the courts to make independent determinations has
been precluded. It is further argued by the FHLBB and FSLIC that their
final administrative determinations are subject not to de novo judicial
review, but only to the limited judicial review provided under the
Administrative Procedure Act. This agency position has become known as
the Hudspeth doctrine, after the Fifth Circuit decision in which it was
first accepted (North Mississippi Savings and Loan Association v.
Hudspeth, 756 F.2d 1096 (5th Cir. 1985)). But other courts have declined
to follow Hudspeth. See e.g., Morrison-Knudsen Co., Inc. v. CHG
International, Inc. , 811 F.2d 1209 (9th Cir. 1987), holding that the
FSLIC has no statutory authority to adjudicate claims to the exclusion
of the courts. The U.S. Supreme Court has granted certiorari to resolve
the differences. See Coit Independence Joint Venture v. FirstSouth,
F.A, 829 F.2d 563 (5th Cir. 1987), cert. granted, 108 S. Ct. 1105
(1988).
Because of the considerable adjudicatory power that the Hudspeth
doctrine potentially grants to the FSLIC, the doctrine has provoked
controversy concerning the fairness, efficiency, and legal and
constitutional validity of the administrative procedures. In fact, the
position of the Solicitor General in its brief for the Government in the
Coit case does not endorse the FHLBB's argument that it is statutorily
empowered to ''adjudicate'' these claims. The Solicitor General
maintains that, while Congress could have provided for administrative
adjudication in this context, it has simply (and appropriately) provided
for a claims review step in the process that must be exhausted by
claimants before they seek judicial resolution of claims.
The Conference takes no position on the statutory and constitutional
power of the FHLBB to resolve these claims. Unless the Supreme Court
finds administrative adjudication in this context to be constitutionally
impermissible, Congress should examine the need for agency adjudication
of such claims, as an alternative to, or at least a required prelude to,
de novo resolution of such claims in state and federal courts. For this
reason, the Conference has examined the fairness and efficiency of the
current administrative procedure for determining creditor claims against
thrift receiverships.
Current Claims Procedures. Claims against failed thrifts are
institutionally and procedurally separated at the FSLIC. Those made by
insured depositors on the one hand, and uninsured depositors and other
creditors on the other, are handled by separate divisions within the
FSLIC. Although many claims are resolved at the division level
(so-called ''receiver's determinations''), rejected claimants may seek
administrative review by the Adjudication Division of the FHLBB's Office
of General Counsel, with final administrative review by the Board itself
in complex cases. Though the case law is unsettled, de novo judicial
review has been allowed in the case of insured depositor claims and,
under the Hudspeth decision, limited judicial review under the
Administrative Procedure Act was contemplated in the case of non-insured
and general creditor claims.
Need for Congressional Attention. As thrift receiverships
proliferate, the Conference urges Congress to consider whether it is
more appropriate for disputes over claims filed against such
receiverships to be decided by the FHLBB, or whether it is better to
leave them to de novo resolution in state and federal courts -- with or
without a prior administrative claims review step at the FHLBB.
If Congress does determine that an administrative adjudication
process (coupled with appropriate judicial review) is the preferable
approach, it should clarify the FHLBB's statutory authority. It should
provide for an adjudicative system that makes clear that claimants have
an opportunity to have their claims heard by adjudicators who are
completely independent of other offices of the FHLBB or FSLIC, which may
be perceived to have a financial interest in the outcome of such claims.
To that end, a bifurcated hearing process should be established,
offering claimants who can demonstrate that an issue of material fact is
genuinely presented an opportunity for an on-the-record APA hearing
presided over by an administrative law judge. An alternative,
simplified procedure should be authorized for other cases or where
parties agree to use it.
The FHLBB's current program of adjudicating claims against
receiverships requires two additional improvements. First, final rules
of practice need to be issued, /1/ and time limits should be
established. Second, the agency should refrain from attempting to
override prereceivership judgments entered in federal or state courts.
/1/ On November 8, 1985 the FHLBB published proposed rules governing
its claims adjudication process (see 50 Fed. Reg. 48970). On April 21,
1988 the FHLBB published interim procedures pending the adoption of
final regulations, giving notice that the interim procedures that have
been in effect in practice since July 1, 1986 will remain in effect
pending the adoption of final regulations. See 53 Fed. Reg. 13105.
01 CFR 305.88-8 Recommendation
1. Congress should determine whether disputes over claims filed
against thrift receiverships are better decided by the Federal Home Loan
Bank Board (FHLBB) in an administrative adjudication process (coupled
with judicial review) or by the judiciary through de novo resolution in
state or federal courts (with or without a prior administrative claims
review step at the FHLBB). /2/
2. If Congress does determine that an administrative adjudication
process is the more desirable approach, it should clarify the FHLBB's
statutory authority by providing for an FHLBB adjudicative process along
the lines set forth below:
(a) A bifurcated process should be established for adjudicating
claimant appeals from determinations of thrift receivers. Where the
claimant affirmatively demonstrates that an issue of material fact is
genuinely presented, the FHLBB should offer an opportunity for an
on-the-record APA hearing, presided over by an administrative law judge.
In all other cases, or where the parties voluntarily agree, the FHLBB
should be authorized to use simplified, less formal procedures, presided
over by persons who need not be ALJs but who should be institutionally
separate from the receiver. /3/ All parties, including receivers,
should be encouraged to engage in alternative means of dispute
resolution. /4/
(b) Final FHLBB decision on such claims should be based on the
administrative record and subject to direct judicial review in
accordance with the principles stated in ACUS Recommendation 75-3 (''The
Choice of Forum for Judicial Review of Administrative Action'').
3. The FHLBB should publish, after a notice-and-comment rulemaking
procedure, final rules setting forth its rules of practice for claims
determinations. The rules should provide for strict, albeit reasonable,
time limits /5/ applicable not only to claimants but also to receivers
and their agents.
4. The FHLBB (and FSLIC as receiver) should not override
prereceivership judgments entered in federal and state courts. The
agenies' power to adjudicate claims should not encompass judgments in
favor of creditors that have been entered by a court of competent
jurisdiction before the thrift was placed in receivership. The FSLIC as
receiver should either acquiesce in these judgments or pursue post-trial
remedies.
5. Congress should include in any legislation responsive to this
recommendation a requirement that the FHLBB adopt appropriate
regulations and policies as set out in paragraphs 3 and 4.
(53 FR 39587, Oct. 11, 1988)
/2/ The Conference, at this time, does not intend to express an
opinion on which of these alternatives is preferable.
/3/ See ACUS Statement, ''Dispute Resolution Procedure in Reparations
and Similar Cases'', 1 CFR 310.13 (1988).
/4/ See ACUS Recommendation 86-3, ''Agencies' Use of Alternative
Means of Dispute Resolution'', 1 CFR 305.86-3 (1988).
/5/ See ACUS Recommendation 78-3, ''Time Limits on Agency Action,'' 1
CFR 305.78-3 (1988).
01 CFR 305.88-9 Presidential review of agency rulemaking
(Recommendation 88-9).
Federal regulation has grown in both scope and complexity in recent
decades. Among its wide variety of national goals are: Ensuring
competitive markets, spurring economic growth, checking inflation,
reducing unemployment, protecting national security, assuring equal
opportunity, increasing social security, protecting the environment,
ensuring safety, and improving energy sufficiency. Policies
implementing these goals compete for scarce resources and sometimes
conflict with one another. Thus, a central task of modern democratic
government is to make wise choices among the courses of action that
pursue one or more of these goals.
While Congress establishes the goals, it seldom legislates the
details of every action taken in pursuit of these goals or makes the
balancing choices that these decisions require. It has assigned this
task to the regulatory agencies. Each regulatory agency, however,
usually is given a set of primary goals, without specific regard for
whether proposed actions in pursuit of those goals might conflict with
the pursuit of other goals by other agencies. An effective mechanism is
needed to coordinate agency decisions with the judgments of officials
having a broader perspective, such as the President and Congress. /1/
Some form of presidential review of agency rulemaking has been the
practice since at least 1971. Like its predecessors, the current
program is established by presidential executive order. /2/ The
responsible officer (the Administrator, Office of Information and
Regulatory Affairs, in the Office of Management and Budget) is appointed
by the President, subject to Senate confirmation.
The Conference believes that there is sufficient experience under
these executive orders to warrant continuing such review with certain
guidelines as to its implementation. The Recommendation below sets
forth standards that should be followed whether review is governed by
executive order or by a general statute. It also assumes that the
President has the authority to enunciate principles to guide agency
rulemaking, even though the programmatic responsibilities are by statute
delegated to agencies. In addressing the presidential review process,
the Conference recognizes that some of the issues are analogous to
congressional involvement in agency rulemaking, but it does not address
this latter subject at this time.
/1/ The need for greater coordination of federal regulation was
recognized in 1979 by the American Bar Association's Commission on Law
and the Economy.
/2/ Exec. Orders Nos. 11,821, 11,949 (President Ford), Exec. Order
12,044 (President Carter), Exec. Orders Nos. 12,291, 12,498 (President
Reagan). For a thorough analysis of the experince under the executive
orders, see National Academy of Public Administration, Presidential
Management of Rulemaking in Regulatory Agencies (Jan. 1987).
01 CFR 305.88-9 Recommendation
The Conference recommends that the following principles should guide
any program of presidential review /3/ of agency rulemaking.
/3/ Presidential review, as used in this Recommendation, refers to a
program of systematic executive oversight and dialogue that involves
coordinating agency actions where conflicts exist, and in all cases
probing the agency's fact and policy judgments, with the purpose of
ensuring that the agency considers factors of importance to the
President's policies to the extent permitted by law. Such review does
not displace responsibilities placed in the agency by law nor authorize
the use of factors not otherwise permitted by law. Other review of an
ad hoc nature by the President (or the President's delegates) of agency
rulemaking pursuant to the President's constitutional authority is not
within the scope of this Recommendation.
01 CFR 305.88-9 1. General Applicability
Presidential review should apply generally to federal rulemaking.
Such review can improve the coordination of agency actions and resolve
conflicts among agency rules and assist in the implementation of
national priorities. However, not all agency rules or categories of
rules may be appropriate for such presidential review. Exempt
categories include formal rulemaking, ratemaking, and rulemaking that
resolves conflicting private claims to a valuable privilege.
01 CFR 305.88-9 2. Applicability to Independent Regulatory Agencies
As a matter of principle, presidential review of rulemaking should
apply to independent regulatory agencies to the same extent it applies
to the rulemaking of Executive Branch departments and other agencies.
01 CFR 305.88-9 3. Timeliness of Review
The process of presidential review of rulemaking, including agency
participation, should be completed in a timely fashion by the reviewing
office and, when so required, by the agencies, with due regard to
applicable administrative, executive, judicial and statutory deadlines.
01 CFR 305.88-9 4. Public Disclosure of Documents
(a) Proposed or Final Rules. Where an agency submits a draft
proposed or final rule for presidential review, the agency submission
and any additional formal analyses /4/ submitted for presidential review
should be made available to the public when the proposed or final rule
to which they pertain is published. If a decision is made to terminate
a rulemaking after a notice of proposed rulemaking has been published,
agency submissions to the office responsible for presidential review and
any additional formal analyses submitted for review should be made
available to the public when the decision to terminate is announced.
(b) Review of Agendas or Other Summaries or Schedules of Agency
Rulemaking Actions. Where an agency submits agendas or other summaries
or schedules of pending or planned rulemakings for presidential review,
the agency submission and any supporting documents submitted for
presidential review should be made available to the public once the
agenda or other summary or schedule is made known to the public in an
official publication.
/4/ See ACUS Recommendation 85-2, Agency Procedures for Performing
Regulatory Analysis of Rules, 1 CFR 305.85-2.
01 CFR 305.88-9 5. Executive Branch Communications Relating to
Presidential Review of Rulemaking
(a) Policy Guidance. An agency engaged in informal rulemaking should
be free to receive guidance concerning that rulemaking at any time from
the President, members of the Executive Office of the President, and
other members of the Executive Branch, without having a duty to place
these communications in the public file of the rulemaking unless
otherwise required by law. However, official written policy guidance
from the officer responsible for presidential review of rulemaking
should be included in the public file of the rulemaking once a notice of
proposed rulemaking or final rule to which it pertains is issued or when
the rulemaking is terminated without issuance of a final rule. /5/
(b) Factual Information. When an agency engaged in rulemaking
receives a communication from the office responsible for presidential
review which contains factual information relating to the substance of
the rulemaking that is not already in the public file, the agency should
promptly place the communication (or if oral, a summary) in the public
file of the rulemaking. /6/
(c) Communications Transmitting Outside Comments. When an agency
receives a communication from the office responsible for presidential
review which transmits any factual submissions or the views or positions
of persons outside the government, the agency should promptly place the
communication (or if oral, a summary) in the public file of the
rulemaking. /7/
/5/ The Conference's position on the public availability of official
written policy guidance stated in this Recommendation modifies its
earlier position in Recommendation 80-6, Intragovernmental
Communications in Informal Rulemaking Proceedings, 1 CFR 305.80-6, 1.
/6/ Agencies also should place factual information received from
other sources in the public file of the rulemaking, see Recommendation
80-6, 2.
/7/ This reaffirms the Conference's position on the handling of
comments by persons outside the government stated in Recommendation
80-6, 2.
01 CFR 305.88-9 6. Responsibility of the Reviewing Office Regarding
Outside Comments
The officer responsible for presidential review of rulemaking should
not allow the process of review to serve as a conduit to the rulemaking
agency for unrecorded communications from persons outside the
government. To guard against such occurrence, the responsible officer
should take appropriate steps -- and the following should be considered:
(a) Identifying any communications to the rulemaking agency that
transmit the views or positions of persons outside the government;
(b) Promptly transmitting written communications received by the
office responsible for presidential review from persons outside the
government relating to the substance of a proposed agency rule to the
rulemaking agency for inclusion in the public file of the rulemaking;
(c) Maintaining a list identifying the time and general topic of oral
communications that pertain to the substance of an agency rule under
review with persons outside the government and making such list
available to the rulemaking agency for inclusion in the public file;
and
(d) Inviting a representative of the rulemaking agency to attend any
meetings between the reviewing office and persons outside the government
which pertain to any agency rulemaking under review by that office. The
agency representative attending any such meeting should prepare an
appropriate summary of the discussion and promptly place it in the
public file of the rulemaking.
01 CFR 305.88-9 7. Not Judicially Reviewable
The presidential review process should be designed to improve the
internal management of the federal government and should not create any
substantive or procedural rights enforceable by judicial review.
(54 FR 5207, Feb. 2, 1989)
01 CFR 305.88-10 Federal agency use of computers in acquiring and
releasing information (Recommendation 88-10).
The rapid evolution of computer technology raises many economic and
policy issues that affect the acquisition and release of information by
government agencies. New information technologies can improve public
access to public information and reduce paperwork burdens. They can
also impose significant economic burdens, however, and they may
stimulate competition between government agencies and established
electronic information enterprises.
The essential role of information in a democratic system underscores
the need to examine with care the opportunities that electronic
information storage and transmission provide for improving the flow of
information between government agencies and the public.
The following recommendations are intended to guide agencies in
addressing the questions that will arise when an agency considers
whether to acquire or release information in electronic form, either to
facilitate performance of the agency's mission or to fulfill
requirements established by the Freedom of Information Act (FOIA) or
other laws. /1/
At the present stage in the evolution of government electronic
information policy, the most one can do is to suggest an analytical
framework within which agency electronic system designers, policy
makers, and budget planners can assess their opinions. The process and
substance of decisionmaking within this framework should, of course,
conform with general principles of administrative law.
Because experience is now relatively limited and information
technology is subject to rapid evolution, when Congress sets policy it
should do so on as broad a basis as possible. Because changes in
electronic information capability occur at a different pace in different
sectors of the society, transitional arrangements will be necessary to
ensure that electronic acquisition and release do not disadvantage major
segments of the population.
The pertinent considerations depend on the context in which
electronic acquisition or release of information is addressed. For
example, the factors relevant to the release of information in
electronic form in response to discrete FOIA requests differ from those
that bear on discretionary agency decisions to release information
broadly through electronic publishing. As a further example, resolution
of issues pertaining to the acquisition of information in electronic
form might depend on such factors as the technological capacity of the
private parties from whom electronic filing is to be requested.
Recommendation A addresses the Freedom of Information Act. The FOIA
was written with paper records in mind. The problem is to apply the Act
to information maintained in electronic form. This recommendation does
not seek to provide comprehensive guidance but does address in general
terms such matters as whether electronic records should be deemed
records subject to the FOIA and whether an agency should be expected to
write new computer programs for the purpose of responding to a FOIA
request.
Recommendations B and C discuss principles applicable to electronic
acquisition and release of information, respectively. Recommendation D
offers principles for defining the appropriate roles of the public and
private sectors in the provision of electronic acquisition and release
systems.
Recommendations C and D envision a three-step process for evaluating
possible new electronic information products. The first step in the
evaluation process is to identify the current level of release of the
information that would be contained in a new electronic information
product. There are in general terms three possible levels of agency
activity in releasing information: (i) ''dissemination'' or
''publishing'', leading to the broadest availability of information;
(ii) ''disclosure'', involving wholesaling to private information
suppliers or providing electronic release capability in public reference
rooms; and (iii) ''access'', involving ad hoc release in response to
discrete requests. For the special meaning of these and other related
terms used in this recommendation, it is important to refer to the
appended glossary.
The second step is to identify the benefits and costs of replacing or
supplementing existing means of release with various levels of
electronic release. An agency should not offer an electronic
information product unless the cost-benefit analysis demonstrates that
the electronic alternative analyzed is likely to be superior to existing
means. The third step is to define the most desirable public and
private sector roles, applying principles described in Recommendation D.
Deciding to ''promote'' electronic publishing does not necessarily
mean a direct, retail, electronic publishing and distribution role for
the government, if private sector electronic publishing activities and
commitments are more cost effective (see Recommendation D). Electronic
publishing contemplated by this recommendation also can occur through
depository libraries. In some cases it may be appropriate to retain
both paper and electronic versions of the same information, even though
costs almost certainly will be higher than for either form alone.
Recommendation E identifies cost and benefit categories that should
be considered in applying Recommendations B, C and D. Recommendations F
through J deal with discrete questions of policy and technology: For
example, the use of private telecommunications systems, the
undesirability of exclusive private or public control of information,
and the need to stay abreast of developing technologies.
These recommendations do not address such important issues as
protection of trade secrets or privileged commercial information,
invasion of personal privacy, or the need for Congress and agencies to
consider allocating budgetary resources so that FOIA staffs will include
persons skilled in using electronic databases. Nor do they address in
detail the security of electronic databases. These subjects deserve
separate investigation.
The recommendations also do not address issues pertaining to
automation of internal agency functions including important questions of
records retention, evidentiary use of electronic records, and program
administration. Rather the recommendations assume that an agency has
automated or will automate an identifiable portion of its activities and
therefore is confronted with the questions of whether and how to
establish interfaces between internal electronic information systems and
the outside world.
/1/ OMB Circular A-130 (50 FR 52730, Dec. 24, 1985) provides a
general framework for management of federal information resources. The
relationship between parts of this recommendation and provisions of the
OMB Circular is as follows. Recommendation A reflects the same policy
as Paragraph 7(g) of the Circular, but provides additional detail.
Recommendation B deals with electronic acquisition, a subject addressed
in proposed OMB guidelines, but not in detail in the existing version of
Circular A-130. Recommendation C suggests a cost-benefit approach to
defining agency electronic dissemination activities essentially
consistent with that prescribed by the Circular, but offers a finer
level of analytical detail to guide agency selection among three
different levels of release. Recommendation D suggests defining the
boundary between public and private sectors based on a cost-benefit
analysis; this is endorsed by Paragraph 7(e) of Circular A-130, but
Recommendation D defers less to private sector activities than the
Circular. Recommendation E lists more specific cost and benefit
categories to be considered than does the Circular. Recommendation F
reflects the same policy as that set forth in Appendix IV to Circular
A-130 (discussing paragraph 11(a)). Recommendations G and H have no
counterparts in the Circular. Recommendation I discusses the role and
limits of governmentwide policy; Circular A-130 is an example of such a
policy. Recommendation J is consistent with Paragraph 9(c) of the
Circular.
01 CFR 305.88-10 Recommendation
01 CFR 305.88-10 A. Freedom of Information Act
1. In interpreting the Freedom of Information Act, agencies should
recognize that a ''record'' includes information maintained in
electronic form.
2. Agencies using electronic databases rather than paper records
should not deny access to the electronic data on the grounds that the
electronic data are not ''records,'' that retrieval of the electronic
information is equivalent to creation of a ''new'' record, or that
programming is required for retrieval. In responding to FOIA requests,
agencies should provide electronic information in the form in which it
is maintained or, if so requested, in such other form as can be
generated directly and with reasonable effort from existing databases
with existing software. Agencies, however, should not be obligated
under the FOIA to create large new databases for private advantage, thus
using agency resources for private purposes. Agencies should use a
standard of reasonableness in determining the nature and extent of the
programming that provides an appropriate search for and retrieval of
records in responding to FOIA requests, and in determining the extent to
which FOIA requesters may ask the agency to produce data organized in
formats other than those used by the agency in the regular course of its
operation. /2/
3. Differences in technologies and database structures used by
individual agencies make it necessary, for the near term, to define FOIA
obligations on a case-by-case basis. Further experience with electronic
information systems is a prerequisite to the formulation of general
rules applicable to such controversies under the Act as how requesters
must identify the records sought, how much programming, if any, an
agency must do, and how costs shall be borne. The concept of
reasonableness applied to searches for paper information made in
response to FOIA requests should provide a useful guideline for
resolving controversies over the application of FOIA to electronically
maintained data.
/2/ Agencies should be able to recover the costs of complying with
FOIA requests, including programming costs, in a manner consistent with
the Freedom of Information Reform Act of 1986, 100 Stat. 3207, 3207-48
(1986), amending 5 U.S.C. 552(a)(4)(A), and related OMB guidance, 52 FR
10012, 10017 (1987).
01 CFR 305.88-10 B. Acquisition of Information in Electronic Form
1. Agencies should acquire information in electronic form when they
use, or will use, the information in that form and when most information
submitters already maintain information electronically, or have ready
access to intermediaries who will prepare and submit it in electronic
form. When agencies sponsor electronic acquisition programs, they
should make clear their intention that all information required will
eventually be available to them in electronic form, either by strictly
administering exceptions to mandatory programs, or by undertaking the
conversion of paper submissions into electronic form themselves.
2. When most providers of information (''filers'') are
technologically sophisticated, it is appropriate for agencies to require
electronic filing of information, after developing standard formats in
consultation with the filer community, and after appropriate testing and
transition periods.
3. In determining whether to require or permit electronic filing of
information and in designing the particulars of an electronic
acquisition program, agencies should carefully weigh the costs and
benefits of electronic acquisition of information. The analysis should
address the factors identified in Recommendation D together with other
considerations made relevant by the agency's mandate.
4. Agencies initiating electronic acquisition programs should take
steps to facilitate electronic filing by entities having limited
technological capacity (without raising the costs for sophisticated
entities), including the optional use of ''smart forms.'' When a
significant proportion of the filer community is technologically
unsophisticated, electronic acquisition may be feasible only through
intermediaries. In such cases, agencies should create economic
incentives for electronic filing rather than mandating it. Part of the
economic incentive to file electronically under voluntary electronic
acquisition programs can be the imposition of a fee on technologically
sophisticated filers who choose to file on paper, assuming the statutory
authority to do so exists.
01 CFR 305.88-10 C. Release of Information in Electronic Form
1. Electronic information release policies should depend on such
factors as
(a) whether the desired level of release consists of electronic
publishing, electronic disclosure, or electronic access in response to
FOIA requests (see the glossary for definitions of these terms);
(b) the agency's policies in releasing like information maintained in
paper records; and
(c) the costs and benefits of replacing or supplementing an existing
paper medium with an electronic medium.
2. When a statute or agency policy mandates the publishing of
information, the agency should itself electronically publish the
information or facilitate its electronic publication by others, unless
the cost-benefit analysis suggests the desirability of restricting
publishing to the paper medium, possibly accompanied by a lower level of
electronic release. /3/ If the agency publishes the information only on
paper, it should consider electronic publication of the availability of
the paper information products. Where an agency publishes information
electronically, it should consider the feasibility of providing dial-up
access.
3. When a statute mandates public reference room disclosure, or paper
products presently are made available through a public reference room,
agencies should provide electronic disclosure in public reference rooms
of information already in electronic form. Such agencies should
consider the costs and benefits of upgrading from electronic disclosure
to electronic publishing. Agencies should also make information
disclosed electronically available to any requester in an electronic
form that would be easily usable by information resellers.
4. In those instances where an agency maintaining information in
electronic form has no mandate to release information other than in
response to FOIA requests, the agency should consider upgrading release
of appropriate parts of this information to electronic disclosure
through public reference rooms and wholesaling in electronic bulk form
to private sector requesters. /4/
/3/ When a statute mandates electronic publishing, the agency would
not have discretion to restrict publication to a paper medium or to a
lower level of electronic release.
/4/ The prices for such electronic information would be determined
under the general user fee statute, 31 U.S.C. 9701, or under the FOIA.
See OMB's user fee guidelines, restated in App. IV to OMB Circular
A-130, 50 FR 52748 (1985).
01 CFR 305.88-10 D. Allocation of Responsibilities Between Public and
Private Sectors
1. Agencies that have decided under Recommendations B and C to
acquire or release information in electronic form should define the
appropriate roles of the public and private sectors in providing that
information and related products (including telecommunications
facilities, indexes and retrieval software as well as raw data). That
choice should depend on the relative costs and benefits of privately
versus publicly provided information products.
2. When choosing between publishing and a lower level of electronic
release of information, an agency should determine whether private
sector providers are willing to supply electronic products having
features (e.g., user-friendly menus) that will give the public greater
benefits or lower costs than would electronic publishing by the agency.
When an agency relies on the private sector for electronic publishing of
agency information, the agency should seek to establish by contract the
nature of the products to be provided.
3. When an agency determines that its mission warrants new electronic
means of acquisition or release of information and the private sector
will not commit to provide them at appropriate prices, the agency should
provide them, if clearly identified non-economic and economic benefits
outweigh the capital and marginal costs. Agencies should recognize,
however, that there may be circumstances where the costs to an agency
would suggest the wisdom of creating incentives for the private
provision of the desired electronic information product -- for example,
the free use of agency-developed software.
01 CFR 305.88-10 E. Determination of Costs and Benefits
1. Agencies should take into account the following costs in the
decisionmaking processes suggested in Recommendations B, C and D:
(a) Capital costs to the agency of establishing the product, and the
probable economic life and other uses over which the costs should be
allocated;
(b) Capital costs to information consumers and information providers
to utilize the product, and the probable economic life and other uses
over which these costs should be allocated;
(c) The marginal costs to the agency of user access;
(d) Marginal costs to users for obtaining the information;
(e) Marginal costs to electronic information providers of updating
the electronic information;
(f) Unrecovered costs associated with existing government or private
sector capital that would be made obsolete by the new product;
(g) The costs of updates and upgrades in service levels or capacity
necessary to permit intended benefits to be realized at levels of demand
expected over the long term; and
(h) Costs of changing to standard formats or of handling different
formats.
2. Agencies should take into account the following benefits in
decisionmaking processes suggested in Recommendations B, C and D:
(a) Savings associated with eliminating the cost of producing and
maintaining existing paper products;
(b) Savings to agencies and consumers associated with upgrading the
level of information release from ad hoc FOIA disclosure to electronic
disclosure in a public reference room;
(c) Savings to agencies and consumers associated with upgrading paper
public reference room disclosure to electronic publishing;
(d) Increase in the number of interested persons having access to
information;
(e) Improvements in the utility of information for its intended
purpose because of improved organization and retrieval capabilities;
and
(f) Reductions in delays associated with transferring information
from an agency to eventual consumers.
3. Cost-benefit analyses should take into account FOIA obligations,
including obligations to protect trade secrets and other exempt
information. In designing electronic databases, agencies should
consider the types of FOIA requests likely to be received for data in
the database, consulting with representative users when feasible.
Insofar as it is consistent with agency mission performance, databases
should be designed so as to facilitate reponses to FOIA requests. A
proper rule of thumb is that it should not be any more difficult to
obtain information under the FOIA after automation than before.
4. In some cases, effective design may require some sacrifices in
electronic FOIA retrieval capability. In these cases, agency designers
of electronic databases and retrieval software should consider how FOIA
requests can be satisfied consistent with the spirit of the Act. For
example, an agency might choose to make raw data available to requesters
in computer-readable form along with retrieval software, so that
requesters can effect their own retrievals. In other situations, new
electronic information products may reduce costs of FOIA requests, to
both requesters and agencies. This would occur, for example, if
information were published or otherwise made accessible electronically
in a public reference room, rather than provided only on paper in
response to FOIA requests.
01 CFR 305.88-10 F. Exclusive Control of Public Information
An agency generally should not grant a private party exclusive
control of its electronic information or of the acquisition or release
thereof. Nor should the agency itself as a general matter maintain such
control in the absence of a compelling public purpose. Where an agency
has, and wishes to exercise, authority to enter into an exclusive
arrangement providing a private sector vendor with a preferential right
to electronic information, the agency should first consider whether the
analysis suggested in Recommendations B, C, D and E demonstrates that
efficiencies can be achieved through such an arrangement. The agency
should also guard against the possibility that the arrangement may be
inconsistent with its responsibilities under the FOIA or may impair the
ability of the agency and the public to benefit from subsequent
technological developments.
01 CFR 305.88-10 G. Technology Issues
1. Agencies should use proven technologies in their electronic
acquisition and release systems. They should stay abreast of the
state-of-the-art in all matters related to the electronic acquisition
and release of information and should be particularly alert to the need
for up-to-date and effective access control and other techniques
required to maintain an appropriate level of security.
2. Agencies should seek to base electronic information formats on
existing standards efforts such as American National Standards Institute
standards on Electronic Business Data Interchange /5/ before developing
their own distinctive format definitions. /6/
3. Whenever possible, agencies should use public data networks rather
than developing their own communications links for public filers or
consumers.
4. Agencies should consider conducting demonstration projects to
experiment with evolving electronic information technology.
/5/ These standards are currently designated as ''X.12''.
/6/ Cf. Recommendation 78-4, Federal Agency Interaction with Private
Standard-setting Organizations in Health and Safety Regulation, 1 CFR
305.78-4.
01 CFR 305.88-10 H. Electronic Participation in Administrative
Proceedings
Agencies should experiment with electronic means of providing public
participation in rulemaking, adjudication and other administrative
proceedings, while retaining a means of effective participation for
persons who lack the means to access the electronic information system.
01 CFR 305.88-10 I. Government-wide Policy on Electronic Information
1. A government-wide policy on electronic information is desirable to
afford guidance to agencies. Such a policy should articulate goals
consistent with those expressed in the foregoing recommendations.
2. Congress should formulate the larger value judgments necessary for
a government-wide policy on electronic information. /7/ These include
the roles of public and private sectors; who ought to pay for increased
information utility; and the level of funding to be provided by the
government.
3. Because agencies often are in the best position to apply the
considerations identified in this recommendation, Congess should
normally defer to agency judgment in selecting methods to implement
congressionally enacted policies when the agencies have offered rational
justifications for their electronic information program decisions.
/7/ See, e.g., U.S. Congress, Office of Technology Assessment,
Informing the Nation: Federal Information Dissemination in an
Electronic Age (October 1988).
01 CFR 305.88-10 J. National Institute of Standards and Technology
The National Institute of Standards and Technology should continue to
work with the U.S. Patent and Trademark Office to advance electronic
data storage and transmission technology, as, for example, its work with
high-capacity storage technology, and should inform agencies about
commercially available products and services to facilitate electronic
acquisition and communications.
01 CFR 305.88-10 Glossary
Bulk form: Large quantities of data in nearly raw form, with little
formatting information or other added value, usually maintained and
transferred on magnetic tape or cassettes or high capacity optical or
magnetic disks.
Data product: A specific form of electronic information, sometimes
including data structures, indices, retrieval software, and
telecommunications links.
Database: A body of information maintained in electronic form, from
which parts can be retrieved electronically.
Dial-up: A form of electronic dissemination through which anyone
with a computer, a modem, and access to an ordinary telephone line can
retrieve information from an electronic database.
Electronic access: The lowest level of electronic release; the
ability to obtain agency information; communicating information to
consumers.
Electronic acquisition: Obtaining information from the public
electronically; includes electronic filing; submitting information to
an agency in electronic form.
Electronic disclosure: An intermediate level of electronic release;
making information available electronically to the public at one or only
a few places.
Electronic dissemination: The highest level of electronic release;
using electronic means to make information widely available to the
public at places where it is used; same as electronic publishing.
Electronic publishing: Same as electronic dissemination.
Electronic release: Communicating information to users in electronic
form; a generic term that includes access, disclosure, and
dissemination.
Hardware: Computers and associated peripherals.
Public data networks: Communications common carriers that aggregate
small volume data communications and thereby reduce the cost of
high-quality transmission of data.
Retailing: Providing information in a format different from that
used by the government, or with accompanying analysis, aggregation or
segregated subsets, enhanced search or retrieval capabilities, or
otherwise tailored to be of value to specialized or individual end
users; also may include distribution components of electronic release.
Retrieval: Extracting a part of a database and presenting it to the
requester in a form understandable by humans.
Smart forms: Interactive computer data acquisition programs that
guide the filer in answering questions.
Software: Computer programs or data.
Wholesaling: Providing resellers or large end users information only
in the form used by the government or only in bulk form.
(54 FR 5209, Feb. 2, 1989)
01 CFR 305.88-11 Encouraging settlements by protecting mediator
confidentiality (Recommendation 88-11).
The resolution of issues through negotations among the affected
parties has long been recognized as an essential ingredient of the
administrative process. /1/ Settlements bring to bear parties'
experience, foster creative solutions, and result in faster decisions
requiring fewer resources than formal litigation. Most settlements now
occur simply through ad hoc negotiations among the lawyers for the
parties, generally on the eve of hearing. The Administrative Conference
has recommended that agencies adopt alternative means of dispute
resolution (''ADR'') to enhance negotiations and stimulate the
possibility of reaching agreement expeditiously within the confines of
the agency's authority and policy. /2/
This recommendation seeks to encourage agency use of alternative
means of dispute resolution by affording appropriate protection to
communications between the parties and the neutral in settlement
negotiations. The Conference, of course, recognizes the principle that
decisions affecting the public welfare ought to be made in the open and
subject to public and judicial scrutiny. Nevertheless, since
settlements are essential to administrative agencies, a careful balance
must be struck between the openness required for the legitimacy of many
agency agreements and the confidentiality that is critical if sensitive
negotiations are to yield agreements. This recommendation attempts to
strike that balance, without thwarting open decisionmaking.
Most ADR techniques, including mediation, non-binding arbitration,
factfinding and minitrials, /3/ involve a neutral third party who aids
the parties in reaching agreement that resolves the issues in
controversy. A skillful mediator can speed negotiations and increase
chances for agreement by holding separate confidential meetings with the
parties, where each party may give the mediator a relatively full and
candid account of its own interests (rather than its litigating
position), discuss what it would be willing to accept, and consider
alternative approaches. The mediator, armed with this information but
avoiding premature disclosure of its details, can then help to shape the
negotiations in such a way that they will proceed most directly to their
goal. The mediator may also carry messages between the parties, launch
''trial balloons,'' and act as an agent of reality to reduce the
likelihood of miscalculation. This structure can make it safe for the
parties to talk candidly and to raise sensitive issues and creative
ideas. In non-binding arbitration, minitrials and factfinding, the
neutral may play a different role from that of a mediator, because he
may issue a tentative decision that is then used as a basis for
negotiations, but all of these neutrals have the common characteristic
of helping the parties negotiate an agreement.
With all of these neutrals, many of the benefits of ADR can be
achieved only if the proceedings are held confidential. Confidentiality
assures the parties that what is said in the discussions will be limited
to the negotiations alone so they can be free to be forthcoming. This
need extends to the neutral's materials, such as notes and reports,
which are produced solely to assist the neutral in the negotiation
process and which others could misconstrue as indicating a bias against
some party or interest. This is why many mediators routinely destroy
their personal notes and drafts and return all other materials to the
parties. Moreover, if the neutral were to testify in a subsequent
proceeding as to what went on during the negotiations, his neutrality
might be destroyed. The ADR process could be jeopardized because one
party or another is likely to feel disadvantaged. Also, the parties
ould justifiably feel their confidences might be threatened. All this
would certainly inhibit future participation by parties and neutrals.
Limited protection for settlement negotiations and work product
developed in preparation for litigation is provided by Rule 408 of the
Federal Rules of Evidence and Rule 26(b)(3) of the Federal Rules of
Civil Procedure. However, uncertainties as to their application -- not
to mention the effects on confidentiality of the Freedom of Information
Act -- may raise obstacles to protecting communications with ADR
neutrals in federal agencies' disputes. As a result, many statutes,
rules, and guidelines have explicitly provided for some degree of
confidentiality of mediation and similar materials.
The Administrative Conference takes the view that maintaining
confidentiality of settlement discussions is consistent with the
principles underlying the FOIA, Rule 408 of the FRE, Rule 26(b)(3) of
the FRCP, and the work product doctrine. To encourage the use of ADR in
negotiations, the recommendation contains a model rule seeking to
protect the communications between the neutral and the parties or other
participants in the course of the negotiations as well as the neutral's
own notes and impressions. It does so in recognition that the mediator
will virtually never have information or evidence that is not shared by
at least one other person, excepting of course the neutral's own notes,
recollections, and judgments. The rule does not address (1) when
meetings or negotiations should be held in public session, (2) what
justification should be prepared to support any agreement reached, or
(3) what information should be available from a party to the
negotiations. The rule covers oral communications or actions that are
related to a settlement proceeding, as well as documents that are
created specifically for the negotiations or other, previously existing
documents that are furnished to the neutral in confidence by a
participant in the negotiation. The restrictions on the neutral's
disclosing information from the negotiation are not categorically
absolute, being subject to several narrow exceptions that deal with
extraordinary cases. Finally, the model rule does not attempt to impose
its terms on all parties for all issues; they would be free to vary the
terms for their particular negotiations.
/1/ As the influential Attorney General's Manual on the
Administrative Procedure Act explained in 1947,
(t)he settlement of cases and issues by informal methods is nothing
new in Federal administrative procedure. In its Final Report, the
Attorney General's Committee on Administrative Procedure pointed out * *
* that ''even where formal proceedings are fully available, informal
procedures constitute the vast bulk of administrative adjudication and
are truly the lifeblood of the administrative process.''
/2/ The Conference has repeatedly recommended that agencies employ
ADR. Recommendation 86-3 calls on agencies to make greater use of
mediation, facilitation, negotiation, minitrials, and other ''ADR''
methods to reduce the delay and contentiousness that accompany many
agency decisions. E.g., Agencies' Use of Alternative Means of Dispute
Resolution, 1 CFR 305.86-3; Alternatives for Resolving Government
Contract Disputes, 1 CFR 305.87-11; Procedures for Negotiating Proposed
Regulations, 1 CFR 305.82-4, 85-5; Negotiated Cleanup of Hazardous
Waste Sites Under CERCLA, 1 CFR 305.84-4; Resolving Disputes under
Federal Grant Programs, 1 CFR 305.82-2.
/3/ For brief definitions of these terms, see the Appendix to
Conference Recommendation 86-3, supra.
01 CFR 305.88-11 Recommendation
1. Agencies that use the services of neutrals in settlement
proceedings:
(a) Should explicitly indicate that as a matter of policy they will
not seek to discover or otherwise force disclosure of a neutral's notes,
memoranda or recollections or of documents provided to the neutral in
confidence in the course of settlement negotiations;
(b) In arranging with an individual or organization to serve as a
neutral in settlement proceedings, should include a provision in any
agreement with the neutral that
(i) the agency makes no claim to the neutral's notes, memoranda or
recollecitons or to documents provided to the neutral in confidence in
the course of the settlement negotiations and
(ii) that such material is outside the scope of the agency's right to
any data developed pursuant to the agreement; and
(c) Should adopt a procedual rule, consistent with the model rule
contained in the appendix below, for all cases where the agency itself
is a party to the negotiations or where private parties are negotiating
the resolution of an issue in controversy concerning a statute,
regulation, or policy administered by the agency.
2. The neutral, including a neutral (as defined in the model rule)
who serves as a presiding officer, /4/ should carefully segregate, and
identify as settlement documents, all materials received or developed
during the course of a settlement proceeding, including any retained
following its conclusion, so they will be used solely to assist the
neutral in working to settle the issues in controversy.
3. Agencies should interpret the FOIA, Rule 408 of the Federal Rules
of Evidence, Rule 26(b)(3) of the Federal Rules of Civil Procedure, and
the work product doctrine to avoid disclosure of settlement
communications by neutrals serving in administrative settlement
proceedings.
/4/ See, e.g., Recommendation 88-5, Agency Use of Settlement Judges,
1 CFR 305.88-5.
01 CFR 305.88-11 Appendix
01 CFR 305.88-11 Model Rule
01 CFR 305.88-11 xxx.1 Introduction; Encouraging Settlement; ADR
Techniques.
(a) To facilitate a vigorous enforcement program and expeditious
administrative decisionmaking, (the agency) encourages the resolution of
issues in controversy through negotiations among the affected parties.
Voluntary settlement processes within (the agency's) statutory mandates
and existing policies can produce decisions more efficiently than
traditional procedures, and often yield decisions that are more
effective than those reached without the concurrence of persons with
firsthand involvement. Settlement agreements thereby enable the agency
and the parties to accomplish their goals with expenditure of fewer
resources.
(b) In addition to unassisted negotiations among the affected
interests, alternative means of dispute resolution (''ADR'') can aid the
parties in reaching agreement in appropriate cases. These techniques
include facilitation, mediation, minitrials, factfinding, and
non-binding arbitration. In each, a neutral third party helps the
parties reach a voluntary agreement. (The agency) encourages the use of
these ADR processes as part of its policy favoring settlements.
(c) The voluntary settlement of issues in controversy through a
dispute resolution process requires integrity, objectivity, and fairness
on the part of the neutral and of the process itself. Moreover, the
parties must feel free to discuss the dispute with the neutral without
fear of being disadvantaged by the negotiations. (The agency) takes the
position that the public policy favoring voluntary resolution of
disputes therefore requires that the neutral not reveal, either
voluntarily or through legal compulsion, information learned in
confidence during the negotiations. To encourage the parties to
negotiate, this rule enunciates an agency policy seeking to protect the
confidentiality of settlement negotiations involving the neutral.
01 CFR 305.88-11 xxx.2 Definitions.
As used in this rule:
(a) ''Issue in controversy'' means a question that is material to a
decision involving a statute, regulation, or policy administered by (the
agency) about which persons who would be substantially affected or the
agency disagree.
(b) ''Settlement proceeding'' means any process, such as
facilitation, mediation, minitrial, factfinding, or non-binding
arbitration, that is used to resolve issues in controversy by agreement
of the parties in which a neutral serves, whether or not administrative
or judicial proceedings have been instituted.
(c) ''Neutral'' means an individual who with respect to the issues in
controversy --
(1) Is not a party;
(2) Does not have any official, financial, or personal conflict of
interest unless such interest has been fully disclosed in writing and
all parties agree that the individual may nevertheless serve as a
neutral; and
(3) Works to aid the parties in arriving at settlement of the issues
in controversy through agreement.
(d) ''Settlement communication'' means any oral or written
communication or conduct made in confidence and in connection with a
settlement proceeding by any party, neutral, non-party participant, or
other source of information relevant to the proceeding.
(e) ''Settlement document'' means any written material that is --
(1) Prepared for the purpose of, in the course of, or pursuant to a
settlement proceeding, including memoranda, notes, and work product of
the neutral and the parties, or
(2) Provided to the neutral in confidence for purposes of the
settlement proceeding.
An agreement reached as a result of a settlement proceeding is not a
settlement document unless the parties agree in writing, and the law
allows, that it shall be regarded as such.
(f) ''In confidence'' means with the expressed desire of the source
that the information be kept confidential or provided under
circumstances that would create the reasonable expectation that it will
not be disclosed.
(g) ''Party'' means a person or entity whose dispute is the subject
of the settlement proceeding, including representatives of such a party.
(h) ''Non-party participant'' means a person or entity who is not a
party to the dispute but who participates in the settlement proceeding,
such as by providing information, analysis, advice, or views.
01 CFR 305.88-11 xxx.3 Applicability of the Rule.
(a) This rule applies to any settlement proceeding whether or not
(the agency) is a party if the parties communicate with the neutral
under circumstances that reasonably imply that the parties expect that
the communications will be held confidential. Prior to beginning
substantive negotiations, the parties may
(1) agree that this rule does not apply to their negotiations or
(2) modify the terms of this rule by agreement in which case that
agreement will prevail to the extent it is authorized by law or is
otherwise consistent with this rule.
So that the neutral can decide whether he wishes to serve under those
conditions, the parties shall so inform the neutral otherwise prior to
commencing settlement proceedings. If they fail to do so, this rule
shall apply.
(b) The provisions of the rule take effect when --
(1) A person has been specifically requested or accepted by at least
one party to
(i) serve as the neutral in the settlement proceeding, or
(ii) discuss the potential of conducting a settlement proceeding, or
(iii) contact other potential parties to determine whether it would
be appropriate to convene a settlement proceeding to resolve the issues
in controversy;
(2) The other parties with whom the neutral has contact knows that he
or she is occupying the role of a neutral; and
(3) They communicate with the neutral in that capacity.
(c) The rule does not address --
(1) The extent to which a party may disclose settlement documents and
communications either voluntarily or in response to discovery or legal
process; or,
(2) The information that is required to support a decision or
agreement reached in a settlement proceeding.
01 CFR 305.88-11 xxx.4 Neutral Impartiality and Confidentiality of
Settlement Negotiations.
(a) A neutral shall not voluntarily or through compulsory process
disclose or testify concerning settlement communications or settlement
documents, unless --
(1) All parties to the settlement proceeding and the neutral consent
in writing, and if the settlement communication or document was provided
by a non-party participant, that participant also consents in writing;
(2) The request is for a settlement document that was provided to the
neutral in a public meeting or is otherwise already in the public
domain;
(3) The settlement document is required by law to be made public, but
only if it is not available from the person who prepared it or from any
other source;
(4) A court determines that there is a need for such testimony or
disclosure. The agency takes the position that any such determination
should be pursuant to a finding that the need for disclosure to --
(i) prevent a manifest injustice,
(ii) reveal a violation of law, or
(iii) protect the public health or safety is of sufficient magnitude
in the particular case to outweigh the integrity of settlement
proceedings in general by reducing the confidence of parties in future
cases that their communications will remain confidential; or
(5) The settlement document or communication is relevant to the
resolution of a dispute between the neutral and a party or participant,
but only to the extent that the document or communication is used for
purposes of resolving that dispute and not any issue in controversy in
the settlement proceeding.
(b) If a demand, by way of discovery request or other legal process,
is made for disclosure by the neutral of a settlement document or
communication, the neutral shall make reasonable efforts to notify the
parties and any affected non-party participant so that countermeasures
may be taken if desired.
01 CFR 305.88-11 xxx.5 Agency Records.
(a) The agency makes no claim of control or ownership over the notes,
memoranda, and other work product prepared by a neutral or by his or her
staff in connection with a settlement proceeding.
(b) The agency takes the position that settlement documents and
communications are not agency records solely on account of their having
been received by the neutral during a settlement proceeding; a document
or other material that is otherwise an agency record remains as such.
(54 FR 5212, Feb. 2, 1989)
01 CFR 305.89-1 Peer Review and Sanctions in the Medicare Program
(Recommendation 89-1).
As the Administrative Conference noted in Recommendation 86-5 /1/
, the Medicare program relies heavily on implementation of federal
requirements by localized carriers, intermediaries and, increasingly,
peer review organizations (PROs).
The PRO system was created in 1982. It is made up of state-wide,
Physician-controlled organizations under individual contracts with the
Department of Health and Human Services (HHS). These contracts are
negotiated pursuant to a general contractual ''Scope-of-Work''
promulgated by HHS every three years. PROs are delegated a number of
important responsibilities under the Medicare system. They identify
substandard, unnecessary or inappropriate services rendered to Medicare
beneficiaries, and oversee education and corrective actions for
substandard providers (e.g., hospitals) and medical practitioners. They
also recommend to HHS that it sanction providers and practitioners when
they find seriously improper practices, deny Medicare payment for
inappropriate or unnecessary services, and protect the rights of
beneficiaries.
This recommendation follows the suggestion made in Recommendation
86-5 that the PRO program was deserving of further study. It
recongnizes the evolutionary nature of the PRO's role in Medicare, and
the administrative difficulties posed for HHS in overseeing this
decentralized program -- especially since new legislative directions
affecting the program appear regularly, often contained in year-end
omnibus budget reconciliation acts. Nevertheless, the Conference urges
the Department (and, where necessary, Congress) to make changes designed
to improve the accessibility of PRO-related policies, the fairness and
firmness of PRO sanctions imposed on providers and practitioners, and
the effectiveness of PRO safeguards for beneficiary rights.
In Paragraph A of the Recommendation, the Conference urges several
enhancements of HHS' current practices in disseminating, making
accessible, and soliciting comments on, PRO program guidelines of
general applicability, including the scopes of work, manuals, and the
criteria and norms used to evaluate medical care. Paragraph B seeks to
promote improvements in the PRO's assigned duty of investigating
complaints by beneficiaries, and urges Congress to allow PROs to act in
response to oral complaints.
Paragraph C recommends invigorating the process of investigating and
adjudicating sanctions against health care practitioners and providers
charged with violations of their obligations under the Medicare program.
The current sanction process begins when a PRO gives formal notice to
the practioner or provider involved that it considers that poor quality
care may have been rendered or that other violations have occurred. The
PRO is required to have at least one quite formalized meeting with the
practitioner or provider to discuss the allegations that the care
rendered either ''failed in a substantial number of cases substantially
to comply'' with the statutory obligations to render proper medical
care, or ''grossly and flagrantly violated such obligations in one or
more instances.'' 42 U.S.C. 1320c-5(b). (In the former type of case, at
least two meetings are required.) If, after the meeting, the PRO
believes that violations have occurred, it recommends to the HHS Office
of Inspector General (OIG) that a sanction be imposed, either in the
form of an exclusion from participation in the Medicare program for some
period of time, or a civil monetary penalty of no more than the amount
of the cost of medically improper or unnecessary services. If the OIG
agrees that violations have occurred, and in addition finds that the
practitioner or provider is unwilling or unable to comply with the
obligations to render proper care, the OIG may impose one of these
sanctions. If the sanction is exclusion, it becomes effective fifteen
days after notice. /2/ The sanction is appealable to an ALJ, then to
the Appeals Council; judicial review is subsequently available.
This recommendation seeks to balance the vital interest in protecting
the health and safety of program beneficiaries and the need to assure
fairness to the accused provider or practitioner whose livelihood is at
stake and whose services might be needed. The Conference urges that the
current PRO sanction process be streamlined. It also urges that all
providers and practitioners, not just some, be permitted to seek a stay
of an HHS order to exclude them from the Medicare program, in a
proceeding akin to that of a temporary restraining order at the
administrative law judge adjudication stage of that process. However,
the burden would be on the practitioner or provider to show that no
serious risk would be posed to beneficiaries during the pendency of the
administrative appeal. The Conference also urges changes that, while
maintaining the requirement that the OIG prove that violations have
occured, would eliminate the additional requirement of proving that the
practitioner or provider is unwilling or unable to comply with the
obligations to provide quality care. The offenses or oversights, which
have been found both by peers (PROs) and regulators (OIG) to be
substantial or gross and flagrant, already serve as indicators of
inability or unwillingness to comply. Under the current law, before
excluding a provider or practitioner on the basis of these findings, the
government must bear an additional evidentiary burden that is
inappropriate for this type of proceeding. It must prove what amounts
to a speculative negative -- that violators would be unwilling or unable
to comply with the law in the future. The apparent result of this
evidentiary requirement has been to chill the initiation of exclusion
proceedings against providers and practitioners who are providing
improper care or otherwise violating the law. Further, the Conference
recommends legislative changes to provide for meaningful civil money
penalties, as well as for the current sanction of exluding providers and
practitioners from the program. It should be noted that the Conference
views the changes in the sanction procedure contained in this paragraph
as a unified package, one that in its present form balances conflicting
interests but that will become unbalanced if any one significant portion
were not to be accepted.
Paragraph D urges changes in the PRO statute and regulations to
ensure that beneficiaries are better informed of their rights to appeal
decisions concerning their lack of coverage or discharge from a hospital
or other facility, and that they will not be discharged until such
appeals are resolved. Paragraph E covers the PRO's role in denials of
payment for care determined to be unnecessary, substandard or rendered
in an inappropriate setting. It recommends that HHS implement in final
rules 1985 legislation concerning PRO denials for substandard care. /3/
It also urges HHS to amend its rules to require that PROs not make any
final decisions affecting payment without adequate review by medical
practitioners who are qualified in the relevant area. Finally,
Paragraph F urges HHS to take steps to permit PROs to share information
with provider facilities and state medical boards.
/1/ ACUS Recommendation 86-5, Medicare Appeals, 1 CFR 305.86-5.
/2/ Certain practitioners in rural areas are permitted to have the
exclusion stayed, pending OIG proof that the practitioner would pose a
''serious risk'' to program beneficiaries if allowed to remain in the
program during the pendency of the administrative appeal.
/3/ On January 18, 1989, HHS published a proposed rule covering this
subject. 54 Fed. Reg. 1956.
01 CFR 305.89-1 Recommendation
A. Publication and Dissemination of PRO Program Guidelines. 1. HHS
should enhance its current practice of publishing and disseminating all
Peer Review Organization (PRO) program rules having a substantial effect
on providers, medical practitioners and beneficiaries by taking the
following steps:
(a) Notice-and-comment procedures should be used for rulemaking
except when the agency for good cause finds that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the
public interest. /4/
(b) Proposed PRO ''scopes of work'' and any generally applicable
modifications or interpretations of the responsibilities of PROs during
a contract cycle should be published in the Federal Register and
disseminated to relevant interest groups. Interested parties should be
allowed 30-45 days of commenting, unless explicit Congressional
deadlines would be contravened thereby, or unless there is good cause
for immediate implementation.
(c) HHS should make PRO contracts, manual instructions, and other
guidelines of general applicability regarding the PRO program readily
available to the public at convenient locations, including social
security offices. HHS should publish an updated list of such materials
in the Federal Register at least quarterly.
2. HHS should encourage PROs to use outreach and consensus-building
techniques analogous to negotiated rulemaking when they are developing
criteria and norms for PRO review of the quality, necessity and
appropriateness of medical care. /5/ HHS should further encourage PROs
to make these criteria and norms consistent nationwide.
B. PRO Investigations of Beneficiary Complaints. 1. Congress and HHS
should coordinate the system of PRO review of beneficiary complaints
concerning quality of services with other federal and state regulatory
schemes. Initially, priority consideration should be given to complaint
investigations in the hospital setting, where PROs have the most
expertise and where alternative means to investigate complaints are
least available.
2. Congress should amend 42 U.S.C. 1320c-3(a)(14) to permit PROs to
investigate and otherwise act on oral complaints concerning the quality
of services. Until it does so, HHS should require PROs to receive such
oral complaints from beneficiaries or witnesses, and reduce them to
writing, before acting on them.
3. HHS should require PROs to use investigative techniques that, so
far as may be feasible, protect from disclosure the identity of
complainants who do not expressly and voluntarily consent to such
disclosure. Where the identity of a complainant who desires anonymity
cannot be kept confidential, the PRO should give the complainant the
option of withdrawing the complaint in lieu of disclosure, although the
PRO may at its discretion continue to investigate the underlying
problem.
4. HHS should amend the PRO Scope of Work to conform to the 1986
Omnibus Budget Reconcilation Act by requiring PROs to inform
beneficiaries fully regarding the final disposition of all complaints,
whether involving providers or practitioners. PROs also should be
required promptly to inform providers and practitioners of the final
disposition of investigations involving them.
5. HHS should establish guidelines and a significantly more expedited
schedule than the current several-month process for PROs to complete
initial investigations of complaints of potentially life-threatening
quality deficiencies. HHS also should establish procedures for
receiving and acting on requests for intervention in cases where PROs do
not process complaints on a timely basis.
C. Sanctions Against Providers or Practitioners Who Have Provided
Improper or Unnecessary Services. Congress should streamline the
sanction process by taking the following interrelated steps to promote
heightened enforcement, while preserving fairness to the accused
provider or practitioner.
1. HHS should seek to ensure greater uniformity among PROs through
training and the development of a model sanction referral form. To
preserve needed healthcare resources, HHS and the PROs should continue
to emphasize education and corrective action rather than sanctions as
the primary means of addressing quality problems. HHS should also amend
its rules (a) to require that, once a PRO determines that there is a
quality problem for which a sanction is the appropriate intervention, it
immediately start the sanction process, and (b) to provide that,
ordinarily, there will be only one formal meeting between the PRO and
the accused provider or practitioner after the sanction proceeding has
been initiated.
2. Congress should amend the PRO statute to offer all providers and
practitioners (urban and rural), upon their receipt of an HHS notice of
exclusion pursuant to 42 U.S.C. 1320c-5(b), the opportunity for a
preliminary hearing and decision. Such a proceeding would be conducted
by an ALJ on the issue of whether the provider or practitioner would
pose a serious risk to patients during the pendency of the subsequent
ALJ proceeding on the merits of the exclusion. The preliminary hearing
would be in the nature of a temporary restraining order proceeding, and
would arise and be conducted according to the following procedures:
(a) If, within 10 days of receipt of notice of the exclusion, the
provider or practitioner appeals the decision of the HHS Office of
Inspector General (OIG) imposing an exclusion, a preliminary hearing on
the ''serious risk'' issue should take place before the exclusion takes
effect.
(b) If the provider or practitioner establishes at the preliminary
hearing that continued participation in the Medicare program pending the
ALJ's decision on the underlying appeal will not pose a serious risk to
patients, or that such participation can be restricted to preclude such
risk, the HHS exclusion order shall be stayed or modified by the ALJ
until the ALJ issues a final decision on the merits of the exclusion.
(c) The ALJ must render the preliminary decision on the ''serious
risk'' issue as quickly as possible but within no more than 30 days
after the filing of the appeal, and a final decision on the exclusion
within a time period reflecting assignment of the highest priority to
the adjudication.
3. Congress should retain the requirement in 42 U.S.C. 1320c-5(b)(1)
that sanctions be based on determinations that a practitioner or
provider has either (A) ''failed in a substantial number of cases
substantially to comply'' with statutory obligations to render
appropriate and quality care, or (B) ''grossly and flagrantly violated
such obligations in one or more instances.'' However, Congress should
eliminate the separate and additional requirement in 42 U.S.C.
1320c-5(b)(1) that the OIG must determine the provider's or
practitioner's ''unwillingness or lack of ability substantially to
comply'' with program obligations before imposing sanctions on the
provider or practitioner.
4. Currently the PRO statute (42 U.S.C. 1320c-5(b)(3)) limits
monetary penalties to ''the actual or estimated cost of * * * medically
improper or unnecessary services.'' In order to provide for a wider
range of sanctions, Congress should amend the PRO statute to allow the
OIG to assess a substantial civil money penalty for each violation
against providers and practitioners who are found to have grossly and
flagrantly violated their obligations on one or more occasions, or to
have substantially violated such obligations in a substantial number of
cases. The OIG should be given the discretion to impose such monetary
penalties in addition to an exclusion where appropriate.
5. HHS should assign PRO sanction cases to ALJs attached to the
Departmental Appeals Board (who currently hear other sanction cases in
the Department) rather than to Social Security ALJs, as is the current
practice.
D. Notice to Beneficiaries of Noncoverage. 1. Congress should amend
42 U.S.C. 1320c-3(e)(3) to assure that hospitalized beneficiaries who
appeal the hospital's notice of noncoverage by noon of the day following
receipt of the notice, should not have such coverage discontinued until
the PRO rules on their request for review.
2. HHS should amend the PRO regulations to assure that, at the time a
hospital informs beneficiaries of its decision to discharge them or of
the discontinuance of coverage, they are informed of their discharge
appeal rights under the PRO program.
3. The notice of a right to appeal should be on a form drafted by HHS
(developed in consultation with beneficiary organizations and other
interested parties), and should include a concise and easily understood
statement of the basic beneficiary right to a no-liability appeal to the
PRO. If the current system of separate appeal tracks (depending on
whether the hospital and attending physician concur or not) is retained,
separate notices should be given for each track to avoid the confusion
caused by a notice that describes multiple procedures.
E. PRO Denials of Payment for Substandard or Unnecessary Care. 1.
HHS should proceed expeditiously to final rulemaking to implement PRO
authority, contained in 42 U.S.C. 1320c-3(a)(2), to deny payment to
practitioners or providers for care that does not meet professionally
recognized standards.
2. HHS should require by regulation that PROs not make final
utilization review denials (denials of payment for care that has been
determined to be unnecessary or rendered in an inappropriate setting)
until a proposed denial and the response to it by the affected provider
or practitioner have been reviewed by at least one practitioner
qualified by professional training and experience relevant to the
matters in controversy. Although HHS should at a minimum apply the same
standard to reviews of denials of payment for failure to meet
professional standards of care, it may be appropriate in this context to
require that the review be performed by a physician practicing in the
same care specialty.
F. PRO Sharing of Information. 1. HHS should issue PRO manual
instructions and amend the Scope of Work in order to implement the
Congressional mandate requiring the sharing of information among the
PROs and state medical boards and licensing authorities regarding
practitioners and providers who violate quality standards, and should
modify its current confidentiality and disclosure regulations to require
that a copy of any PRO final sanction recommendation be provided to such
bodies. HHS should explore the feasibility of including sanction
recommendations in the National Practitioner Data Bank.
2. HHS should amend PRO regulations to require PROs to share with
hospitals information about confirmed violations of quality of care
standards involving doctors on the staffs of such hospitals, including
the contents of corrective action plans.
(54 FR 28965, July 10, 1989)
/4/ See ACUS Recommendation 83-2, The ''Good Cause'' Exemption from
APA Rulemaking Requirements, 1 CFR 305.83-2.
/5/ See ACUS Recommendations 82-4, 85-5, Procedures for Negotiating
Proposed Regulations, 1 CFR 305.82-4, 85-5.
01 CFR 305.89-2 Contracting Officers' Management of Disputes
(Recommendation 89-2).
An increasing number of problems in the management of government
contracts are now referred to lawyers, accountants, and judges for
resolution. This accelerating trend has tended to deemphasize the
responsibility of the agency contracting officers, who (in most
agencies) have traditionally played a key role in the procurement
process, including dispute handling. /1/ Many contracting officers
(''COs'') today are subject to restrictive regulations and close
oversight that can inhibit their willingness to negotiate settlements.
For this and other reasons, many cases proceed to needless litigation
that are in fact susceptible to prompt, direct resolution by COs at an
early stage when parties are often less entrenched and more congizant of
program interests. /2/
Several Conference studies have demonstrated opportunities for
improving agencies' resolution of contract disputes consonant with the
Contract Disputes Act's /3/ goal of expeditious resolution without
disrupting performance. /4/ While a few agencies have experimented with
alternative means of dispute resolution at the appeal level, these
methods are even more likely to be useful prior to issuance of a
contracting officer decision. This potential has been neglected.
Current training for COs does not address ADR and gives minimal
attention to negotiation skills. These methods /5/ serve the agency by
helping to expedite dispute handling. They serve the parties by keeping
outcomes in the control of the contracting parties, preserving
cooperative business relations, avoiding litigation (and the concomitant
loss of control as to results), and -- most important -- allowing the
parties to return to concentrating on productive work rather than
conflict.
This recommendation builds on an earlier one (87-11), in which the
Conference focused primarily on possible uses for consensual means of
resolving contract disputes at the appeal level. It identified the
decreased authority of COs as a major factor contributing to the
inefficiency and cost of resolving many conflicts. Recommendation 87-11
(in pertinent part) calls for (1) legislation, an executive order, by
the Office of Federal Procurement Policy, policy statement, and Federal
Acquisition Regulation changes to encourage COs, before issuing a
decision likely to be unacceptable to a claimant, to explore use of ADR
to resolve their differences; (2) agency adoption of policies
encouraging ADR and regular use of rules or notices to alert COs and
other parties to ADR availability; (3) agency designation of an
employee to serve as an ADR specialist in connection with contract
disputes; and (4) agency attention to the need to offer training in
negotiation and other ADR skills to COs and others involved in contract
disputes.
The instant recommendation seeks to go further to enhance the CO's
ability and authority in the resolution of contract disputes. Calling
for CO training in negotiation and dispute handling, as well as
increased use of ADR techniques as part of a CO's decisionmaking
process, it supplements the prior recommendation by focusing on the
integration of consensual dispute resolution into already existing
dispute and training systems at the CO level, overcoming obstacles to
ADR use, and practical guidance in improving CO-level dispute
resolution.
/1/ Conference Recommendation 87-11, Alternatives for Resolving
Government Contract Disputes, 1 CFR 306.87-11, describes one aspect:
''The dispute handling system established by the Contract Disputes
Act begins with the contracting officer (''CO''), an agency official
whose function is to enter into and administer government contracts.
Any claim arising out of a contract is to be presented to the CO. The
CO has a dual role: to represent the government as a party to the
contract, but also to make initial decisions on claims subject to
certain procedural safeguards. If the dispute is not amicably resolved,
the CDA requires the CO to issue a brief written decision stating his or
her reasons. A contractor dissatisfied with a CO's decision may appeal
either to an agency board of contract appeals or directly to the U.S.
Claims Court, where proceedings become considerably more formal.''
/2/ This report addresses only dispute resolution during contract
performance; it does not extend to controveries which arise during the
contract formation process.
/3/ 41 U.S. Code 601-613; 5 U.S.C. 5108(c)(3); 28 U.S.C.
1346(a)(2), 149(a)(2), 2401(a), 2414, 2510, 2517, 31 U.S.C.
1304(a)(3)(C) (1982); enacted November 1, 1978 by Pub. L. No. 95-563,
92 Stat. 2383.
/4/ Section 33.204 of the Federal Acquisition Regulation, which
guides agency procurement practices, includes the following possible
inducement to ADR:
''In appropriate circumstances, the contracting officer, before
issuing a decision on a claim, should consider the use of informal
discussions between the parties by individuals who have not participated
substantially in the matter in dispute, to aid in resolving the
differences.''
This suggestion for a ''fresh look'' at the issues recognizes the
potential usefulness of an objective evaluation.
/5/ They include arbitration, mediation, minitrial, factfinding,
convening, facilitation and negotiation. These are defined in the
Appendix to Conference Recommendation 86-3, Agencies' Use of Alternative
Means of Dispute Resolution, 1 CFR 306.86-3.
01 CFR 305.89-2 Recommendation
1. Agencies with significant acquisition activity, acting in
consultation with expert groups, should encourage COs, and other key
personnel involved in the resolution of contract disputes, to make
greater efforts routinely to consider and utilize ADR to help resolve
claims. Since dispute resolution at the CO level is very much a shared
activity, these persons may include progrm and project managers,
attorneys, auditors, engineers, specialists in pricing, packaging,
production, maintenance and quality control, and other technical experts
or contracting officials. These agencies should undertake comprehensive
programs of promotion ADR at the CO level. The programs should include
application of ADR techniques in specific test cases, conduct of
training, case screening, and information and guidance for personnel and
contractors.
2. Agency heads should direct senior officials within the acquisition
hierarchy to act as proponents for dispute resolution, with the specific
mission of developing more effective contact dispute resolution
practices. Agencies with extensive acquisition activity should
designate a senior official within the acquisition hierarchy with the
specific mission of developing more effective contract disputes
resolution practices. This official's mission would include challenging
barriers to wider ADR use, educating disputants in industry and
government, and improving understanding and use of ADR procedures at the
CO level.
3. The Federal Acquisition Regulation should be amended to describe
specifically the full range of dispute resolution methods available for
consideration by the parties at or before the time a claim is presented
to the CO for resolution under the Contract Disputes Act.
4. COs involved in the disputes process should be specifically
evaluated, as part of the annual performance evaluation cycle, on their
effectiveness in managing contract disputes.
5. In addition to those techniques set forth in Recommendation 87-11,
agencies should be encouraged to use the following specific methods in
CO-level disputes:
(1) Employing factfinding to offer an advisory decision, or
designating a CO who was not involved in the disputed issues, or a
particular distinguished government official or other knowledgeable
person, to make an advisory decision;
(b) Employing minitrial or other processes to permit a structured
presentation of facts and arguments to the CO or other government
officer with authority to settle;
(c) Agreeing in advance that disputes arising under a particular
contract will be voluntarily submitted to an expert or panel for
nonbinding opinion as soon as a disagreement occurs; and
(d) Encouraging agency COs to employ the services of mediators or
other neutrals to enhance negotiations to settle contract disputes.
6. Board of Contract Appeals judges should take greater advantage of
opportunities to suggest returning to the CO cases which evidently
should be pursued more vigorously for settlement.
7. ADR training programs, for both industry and government personnel,
should be integrated into existing management training programs, as
follows:
(a) Training should focus on the use of these techniques as tools to
improve the contract formation and contract administration process, so
as to abate conditions which later lead to disputes, and to expedite
decisionmaking under the Contract Disputes Act.
(b) Training should reflect the fact that negotiation is a key
dispute resolution method, and that most COs would become more effective
professionals by devoting increased training and attention to these
methods. The Federal Acquisition Institute and other government
entities specializing in acquisition training should devote increased
attention to listening and communications skills, use of ''interest''
and ''principled'' rather than ''positional'' bargaining, and systematic
attention to negotiation techniques. The training should also enable a
CO to engage in meaningful discussion with a contractor by first working
as a ''team builder'' to develop a coherent intraagency position that
takes into account the views and needs of attorneys, auditors, program
managers, engineers and others within the agency. Consistent with best
management practice and the Packard Commission Report for greater
efficiency in procurement, /6/
the training should encourage the CO, even without the assistance of
a third-party neutral, to avert appeals by reducing the number of
situations where disputes, encumbered by internal disagreements or
incoherent positions, are passed on to boards of contract appeals.
(c) Professional organizations concerned with the public contract
disputes process, such as the American Bar Association, Federal Bar
Association, and National Contract Management Association, should
develop and encourage increased learning opportunities in effective
dispute resolution techniques for representatives of the government and
private sector.
(54 FR 28967, July 10, 1989)
/6/ A Quest for Excellence, Final Report by the President's Blue
Ribbon Commission on Defense Management (June 1986).
01 CFR 305.89-3 Conflict-of-Interest Requirements for Federal Advisory
Committees (Recommendations 89-3).
The Law and practice regarding conflict-of-interest requirements for
federal advisory committee members have developed from the interaction
of three statutory schemes: the Federal Advisory Committee Act, /1/ the
conflict-of-interest laws, and the federal personnel laws. However,
none of these statutory schemes was drafted to deal specifically with
conflict-of-interest standards for government advisers.
In 1982 the Office of Government Ethics issued guidance to agencies
that sought to meld a coherent analytical framework from the three
statutory schemes. In determining whether the conflict-of-interest laws
applied, the Office distinguished between those advisers who were
selected as committee members because of their individual
qualifications, and were thus deemed to be special government employees
(SGE's), and those who instead were selected as representatives of
nongovernmental groups or organizations (or in some cases, as
independent contractors). While this guidance has reduced the confusion
somewhat, the determination of a committee member's status as an SGE or
a representative of a nongovernmental group or organization remains
difficult, and agency practice in classifying advisory committee members
as SGE's or representatives varies greatly and often appears arbitary.
The classification of an advisory committee member as an SGE or a
representative is significant because only the former are subject to the
conflict-of-interest and financial disclosure laws. The most
significant of these laws for advisory committee members is section 208
of title 18, United States Code, which makes it a criminal offense to
participate ''personally and substantially'' as a government employee
''through decision'', * * * recommendation, the rendering of advice,
investigation, or otherwise in * * * any particular matter in which to
his knowledge, he, his spouse, minor child, partner, organization * * *
has a financial interest.'' The term ''particular matter'' in Section
208 has been interpreted broadly by the Department of Justice and the
Office of Government Ethics to extend to all discrete matters that are
the subject of agency action, including rulemaking and general policy
matters. /2/
Section 208 is especially a problem for advisory committee members.
Often they have been selected precisely because they are especially well
qualified to provide advice concerning problems in a particular field in
which they themselves may be active both professionally and financially.
Because of its breadth, Congress provided for agency waivers of
Section 208's prohibition, either by rule or on a case-by-case basis,
where the appointing official makes a determination that the employee's
interest is too remote or insubstantial to affect the integrity of his
or her services. Agencies, however, may be unable or reluctant under
current law to grant a waiver where a financial interest is significant,
even though the agency concludes that any bias arising from that
interest will be offset through committee balance, disclosure of the
interest, or the individual's status as only an adviser and not as a
decisionmaker.
Faced with the specter of criminal liability and the limitations of
waivers, or simply for administrative convenience, some agencies have
adopted a policy of declaring most or all of their advisory committee
members to be interest group representatives, rather than SGE's, except
in the clearest cases. Thus, in practice, agencies may be requiring too
little disclosure from members who are not SGE's, while imposing
significant burdens, principally potential criminal liability, on those
members who are SGE's.
In this recommendation the Conference urges the establishment of a
uniform minimal disclosure requirement for all advisory committee
members, whether or not they are classified as SGE's. /3/ The
recommendation seeks to balance the government's and the public's need
for information to evaluate potential conflicts of interest and the
burden placed on the individual who agrees to serve on an advisory
committee, frequently without pay.
The Conference also recommends that Congress direct agencies to
determine, when chartering or renewing the charter of an advisory
committee, whether or not the committee's responsibilities require
indentifying its members as special government employees for purposes of
the conflict-of-interest laws. The recommendation ( 2) includes
criteria for making this determination. This approach places the burden
of foreseeing and preventing conflicts of interest on the agency that
seeks an individual's services on an advisory committee, rather than on
the individual asked to serve, as does reliance on 208 waivers.
This recommendation does not extend to privately established advisory
committees that are utilized for advice in particular matters because
the members of these committees are not appointed by a federal agency.
Consequently, an agency's relationship with such committees must be
considered on a ad hoc basis. Nevertheless, the Conference believes
agencies should be alert to possibilities for bias or self-interest in
the advice of utilized committees and, where appropriate, should request
information respecting the affiliations and interests of the members.
/1/ 5 U.S.C. App. I.
/2/ The test of whether a financial interest exists with respect to
the matter is whether the government action in which the employee
participates will have a ''direct and predictable effect'' on the entity
in question. Participation in the presence of a known conflict
constitutes a violation of Section 208, whether or not the employee's
action furthers or is likely to further his or her financial interest.
/3/ The Conference recognizes that advisory committee members who are
classified as special government employees may be required to furnish
financial information pursuant to regulations of the appointing agency
or the Office of Government Ethics. It is further noted that the Office
of Government Ethics has under consideration a proposed regulation
governing financial disclosure for all government employees, including
special government employees.
01 CFR 305.89-3 Recommendation
1. Disclosure by Advisory Committee Members. (a) Congress should
require that each individual selected to serve on a federal advisory
committee, excluding a regular government employee, furnish to the
agency or appointing authority at the time of the appointment or
designation --
(1) The identity of the individual's principal employment;
(2) A list of positions held (whether paid or unpaid) and any
contractual relationships for the performance of services with any
corporation, company, firm, partnership or other business enterprise,
any non-profit organization, any labor organization, or any educational
or other institution whose activities or purposes may be (or may
forseeably become) relevant to the purposes and functions of the
advisory committee as determined by the agency or appointing authority
and described in the committee charter;
(3) The identity, but not value or amount, of any other sources of
income or any interests in a trade or business, real estate, or other
asset held for investment or production of income, exceeding $1,000 in
value which are relevant to the purposes and functions of the advisory
committee as determined by the agency or appointing authority and
described in the committee charter;
(b) Advisory committee members should be required to file updated
disclosure reports annually.
(c) The agency or appointing authority should make publicly available
the information furnished pursuant to subparagraphs (a)(1) and (a)(2)
above. The financial information described in subparagraph (a)(3)
should ordinarily be held confidential unless the member consents to its
release or the agency determines after consulting with the member that
public disclosure is required in the public interest.
2. Classification of Advisory Committee Members. Congress, by
amendment to the Federal Advisory Committee Act or other pertinent
statute, should require that each agency determine, when chartering or
renewing the charter of an advisory committee, whether its
responsibilities are such as to require some or all of its members to be
identified as special government employees for purposes of the
conflict-of-interest laws. Congress should require the agency to
consult with the Office of Government Ethics in making such a
determination, and it should direct the agency to be guided by the
following considerations --
(a) Ordinarily, where an advisory committee is expected to provide
advice of a general nature from which no preference or advantage over
others might be gained by a particular person or organization, the
members of the committee need not be special government employees.
(b) The members of an advisory committee which renders advice with
respect to the agency's disposition of particular matters involving a
specific party or parties should be considered special government
employees.
(c) The principal consideration in classifying an advisory committee
member should be the nature of the committee's function rather than
whether or not the member receives compensation.
3. Coverage. This recommendation applies to advisory committees which
are established and whose members are appointed or designated by the
federal government, and to advisory committees whose operations are
funded by the government. It does not apply to privately established
advisory committees which are ''utilized'' by the federal agencies in
particular matters.
4. Technical Amendment. Congress should amend 18 U.S.C. 207(g) to
provide that a partner of a special government employee shall not be
barred from any representational activity because of that employee's
participation in a particular matter where the employee himself would
not be barred from such representation by 18 U.S.C. 203 or 205.
(54 FR 28969, July 10, 1989)
01 CFR 305.89-4 Asylum Adjudication Procedures (Recommendation 89-4.
Providing asylum to the persecuted is a vital and treasured part of
the American humanitarian tradition. It deserves reaffirmation and
continued commitment. The asylum process, however, can also become a
misused exception in the nation's immigration laws, especially in a time
of improved transcontinental travel and communications. Two important
public values thus come into conflict in the asylum program. On the one
hand stands the promise of refuge to the persecuted; on the other
stands the demand for reasonable assurance of national control over the
entry of aliens. This tension becomes acute whenever application
numbers rise.
In the 1970s, the United States received approximately 2000
applications for asylum each year. By 1988, that number had risen to
approximately 60,000 applications. The Immigration and Naturalization
Service (INS) projects 100,000 applications in 1989. Government
expenditures for coping with the increase have risen rapidly, both for
adjudication and for detaining or otherwise arranging to shelter and
feed the applicants. But this is necessarily only a stopgap measure.
It would be far more cost effective in the long run to devote the
resources necessary to improve asylum adjudication procedures.
Although it should be possible to distinguish qualified from
unqualified asylum applicants and thereby both honor the humanitarian
tradition and avoid misuse of the asylum provision, several factors
hinder our ability to do so. First, the ''well-founded fear of
persecution'' standard, upon which asylum is based, is far from
self-defining; there is no uniform understanding of its application to
particular cases. Second, judgments about the relative risks faced by
asylum seekers upon return to their native countries are unavoidably
affected by preconceptions about what conditions may be like in those
countries. It may also be misleading to posit a sharp distinction
between economic migrants and political refugees. Asylum seekers
represent a spectrum of motivations, and many leave their home countries
because of a mix of political and economic reasons. Third, the facts
upon which adjudication must rest are elusive, largely because they turn
on conditions in distant countries. Moreover, the individual applicant,
often inarticulate and uneasy, may be the only available witness to the
specific events that underlie the claim. Therefore, credibility
determinations can be crucial, but they are complicated by barriers to
effective crosscultural communication. Improvements in the system must
make allowance for all these difficulties.
The central standard for determining whether an applicant will be
granted asylum derives from the definition of ''refugee'' contained in a
United Nations (UN) treaty, the 1951 Convention relating to the Status
of Refugees, amended by its 1967 Protocol. Under section 208 of the
Immigration and Nationality Act (INA), the Attorney General may, in his
descretion, provide asylum to applicants who establish that they have a
''well-founded fear of persecution'' in the home country because of
race, religion, nationality, membership in a particular social group, or
political opinion. Additionally, section 243(h) of the INA establishes
a mandatory country-specific protection which is known as
nonrefoulement. Section 243(h) provides that the government may not
return an alien to a country where his ''life or freedom would be
threatened'' on any of the same five grounds. Under current
administrative practice, the most important test has become the
''well-founded fear'' standard, because people granted asylum status are
necessarily shielded against removal from the United States.
Historically, the United States has employed a mix of adversarial and
nonadversarial procedures for deciding on asylum and nonrefoulement
claims. Currently, ''walk-in'' claims are adjudicated by examiners in
the district offices of the INS after an essentially nonadversarial
interview. It typically lasts about twenty minutes as the interviewer
reviews the application form (I-589) and the applicant's supporting
information, and also prepares and issues work authorization papers
(provided that the claim is adjudged ''nonfrivolous''). The file is
then sent to the State Department for its advisory views. The applicant
is given fifteen days to respond to any recommendation by the State
Department to deny the application. Subsequently, an INS examiner will
review the file and issue a decision. This process may take eight
months or more. Informal review of district office decisions is
provided by the Asylum Policy and Review Unit (APRU), a small office in
the Department of Justice created in April 1987.
Denials in the district office are not appealable, but unsuccessful
applicants may renew the application in adversarial exclusion or
deportation proceedings before an immigration judge, who will consider
the matter de novo. These judges are officials in the Executive Office
of Immigration Review (EOIR), which is wholly separate from INS but is
also a part of the Department of Justice. Aliens who do not file for
asylum until such proceedings have started have no access to the
district office; they will be heard only by an immigration judge.
The immigration judge's ruling on asylum is appealable to the Board
of Immigration Appeals (BIA), which is also located in EOIR. Appeals
can easily consume a year or more, largely because of delays in
receiving transcripts of immigration court hearings. No further
administrative appeals are possible at the instance of the applicant,
but on rare occasions, cases are considered by the Attorney General
personally upon certification or referral. Judicial review of
individual asylum denials almost always occurs as part of the review of
exclusion or deportation orders under section 106 of the INA.
Administrative adjudication alone involves five distinct
administrative units (the District Office, the State Department, APRU,
the Immigration Judges, and BIA), only two of which see the applicant in
person. This multiplicity of agencies spreads resources thin, resources
that should be concentrated efficiently so as to improve the quality of
the procedure and assure that genuine refugees are granted asylum.
Adjudication of an asylum claim through the various administrative
and judicial levels requires several months and often consumes years.
Such delays increase the attraction for marginal applicants because
applicants can enjoy substantial benefits, including work authorization
and freedom of movement, throughout the period their claim is pending.
Deterrents such as detention or limitations on work authorization could
be used to minimize this magnet effect. Those measures, however, carry
substantial disadvantages. Primarily, they are indiscriminate in their
impact and may fall most heavily on genuine refugees who have already
suffered greatly. These measures also entail higher costs for the
federal government, especially when asylum claims remain pending for
lengthy periods.
The Conference believes that fair but speedy conclusion of
adjudication, leading either to a grant of asylum or to an enforceable
removal order, is crucial to any healthy asylum adjudication system.
This objective can be promoted through attention to two elements.
First, delay derives in part from the point of two separate rounds of de
novo consideration of asylum claims. One unified initial asylum
proceeding should be established instead. (If the alien has other
defenses to deportation or exclusion, those other defenses should
continue to be heard by immigration judges in contemporaneous and
separate proceedings). Second, additional delay derives from the
qualified right to counsel as specified by current statutes and
regulations, which provide for counsel in exclusion or deportation cases
''at no expense to the government''. Because so many applicants are
indigent, delays often result from the need to accommodate the schedules
of those attorneys who are willing to take the cases on a pro bono basis
-- a problem that is compounded when applications increase in a
particular geographic location. A healthy system of asylum adjudication
must be able to schedule hearings expeditiously, even if pro bono
counsel are not immediately available in sufficient numbers. Fairness
must be sought, therefore, through hearing procedures, training, and
monitoring that assure a special role for the adjudicator in developing
a complete record when the applicant is not represented.
The conference also believes that a healthy asylum adjudication
process must foster the greatest possible accuracy as well as public
confidence that decisions are rigorous, professional, and unbiased.
Reliance on a specialized adjudicative board without routine reference
of applications to the State Department would serve these ends and
minimize any perception that asylum decisions are influenced by
political considerations. Additionally, arrangements must be made to
provide the adjudicators with information concerning foreign country
conditions that is as accurate and complete as possible, derived from a
wide variety of sources, both to help dislodge any preconceptions and to
foster systematic expertise for use in developing the record and making
the ultimate judgment on the claim.
For several years the Department of Justice has been considering
amended asylum regulations that would serve many of these ends. A
version proposed in August 1987 (52 Fed. Reg. 32552) would have
established a specially-trained corps of adjudicators, responsible to
the INS Central Office rather than to the district directors, and it
would have eliminated de novo reconsideration of asylum claims by
immigration judges. These regulations drew criticism, in part because
of concern about the professionalism and independence of the
adjudicators, and the Department responded with modified proposed
regulations in April 1988 (53 Fed. Reg. 11300) that retained the new
corps of adjudicators but also restored the availability of de novo
consideration before the immigration judges. Those regulations are
still pending in the Attorney General's office and the Department has
encouraged this study and analysis.
01 CFR 305.89-4 Recommendation
The Attorney General should adopt regulations creating a new asylum
adjudication process that would eliminate much of the duplication and
division of responsibility associated with the current complicated
system. Resources should be applied to enhance the professionalism,
independence, and expertise of the adjudicators, and to assure fair and
expeditious adjudications, so that genuine refugees may be speedily
given a secure status and unqualified applicants, absent circumstances
which would allow them to remain in this country, may be promptly
deported.
01 CFR 305.89-4 I. Creation of a New Asylum Board
The Attorney General should create a new Asylum Board located, for
administrative purposes, within the Executive Office of Immigration
Review (EOIR) of the Department of Justice and consisting of an
adjudication division, an appellate division, and a documentation
center. The chairperson of the Asylum Board would be responsible for
administrative support and supervision of the operation of all three
units.
A. The Adjudication Division -- 1. Jurisdiction. All claims for
asylum under section 208 of the Immigration and Nationality Act (INA) or
withholding of deportation under INA section 243(h) (hereinafter
collectively ''asylum'' claims) should be heard exclusively by asylum
adjudicators in the adjudication division of the Asylum Board.
2. Nature of the asylum hearing. Asylum claim proceedings should be
recorded. /1/ The asylum adjudicator should be responsible for
developing a complete record of the specific facts relating to the
applicant's claim, including those which might support a grant of asylum
and those which might cast doubt on the claim or on the applicant's
credibility. Care should be taken to assure the service of skilled
interpreters. The adjudicator should be responsible for most of the
questioning, with a reasonable and adequate opportunity for additional
questioning and entry of relevant information, including the
presentation of witnesses, by the applicant and counsel. The
Immigration and Naturalization Service (INS) should not be represented
as an opposing party in the proceedings. /2/
3. Representation of applicants. Applicants should be encouraged to
secure counsel (or a qualified nonattorney representative) to develop
the initial claim and to provide representation during the asylum
proceedings. Although reasonable accommodation should be provided for
counsel to be obtained, proceedings should not be unduly delayed,
because expeditious initial decisions are essential.
4. Use of official notice of country conditions. Asylum adjudicators
should develop substantial cumulative expertise regarding country
conditions, to be used in developing the record, and should be
responsible for posing illuminating questions to the applicant and other
witnesses, for evaluating evidence, and for reaching the ultimate
determination about likely risks to the applicant upon return to the
home country. The accepted standards for official notice, in accordance
with the Administrative Procedure Act, should govern use of such
information. Ordinarily, these standards will simply require an
adequate statement of reasons for accepting or rejecting the asylum
claim, reflecting such expertise. In instances when specific and
detailed facts developed from the documentation center or other sources
(and not from information supplied by the applicant) appear to be
crucial, the applicant should be given notice of intent to deny based on
such information, along with an opportunity to offer information or
argument in rebuttal.
5. The adjudicators. Asylum adjudicators should be recruited from
among attorneys possessing adjudicative skills and appropriate judgment
and temperament, with close attention given to those who are familiar
with international relations and refugee affairs and who are sensitive
to the difficulties of cross-culture communication. Adjudicators should
receive salary, benefits, and guarantees of adjudicative independence
equivalent to those of immigration judges, and they should be assigned
no other enforcement or adjudication responsibilities. The adjudicators
should be given thorough and ongoing training, especially on techniques
for fairly conducting this specialized type of proceeding and on
conditions in those countries from which a substantial number of asylum
applications is received. If, alternatively, a separate Asylum Board is
not created and the adjudication assignment is given to immigration
judges, then such judges should be assigned to a separate unit in EOIR.
B. Appellate Division -- 1. Composition and functions. The
appellate division of the Asylum Board should consist of the chairperson
and two additional members, assisted by staff attorneys and other
support personnel. The division's principal responsibilities should be
to consider appeals filed by persons denied asylum at the initial stage,
in light of the administrative record compiled before an adjudicator,
and such other information as the applicant may wish to submit or of
which official notice may be taken. The division, however, should also
monitor cases, and should have the authority to require certification to
it of selected cases, either granting or denying asylum, in order to
foster consistency, fairness, and political neutrality. It will thus
absorb the principal functions now performed by the Asylum Policy and
Review Unit.
2. Certification or referral to the Attorney General. The Attorney
General should retain the authority to review decisions of the Asylum
Board, upon formal certification or referral or sua sponte.
3. Expeditious completion of appeals. A high priority should be
placed on completing all asylum appeals expeditiously, preferably within
three months of filing. The Department of Justice should ensure that
transcripts, where required, are made from recorded hearings in a timely
fashion.
C. Documentation Center. A documentation center, staffed with
regional specialists, should maintain current and detailed information
on country conditions, from both governmental and nongovernmental
sources, periodically compile and publish usable summaries on selected
countries, and respond to requests for more specific information
received from officials of the Asylum Board. Special effort should be
devoted to assuring complete compilations of ongoing reports from
established nongovernmental human rights organizations, and to drawing
upon information from documentation centers in other countries.
Information and procedures developed by other countries can be
particularly useful in minimizing start-up costs. The center's
collections and publications shall be accessible to the public.
D. Role of the Department of State and the United Nations High
Commissioner for Refugees. The Department of Justice should take
advantage of resources, assistance, and information available through
the State Department and the United Nations High Commissioner for
Refugees (UNHCR). In particular, arrangements should be made with both
to assist in training adjudicators and to augment information available
through the documentation center.
If it so requests, on an across-the-board or country-specific basis,
the State Department should receive notice of individual asylum
applications, so that it may offer its judgment, in particular, about
appropriate responses in sensitive, such cases, as those involving
foreign government officials.
/1/ The Administrative Conference recommends experimentation with
other methods for creating a record that would maintain flexibility but
preserve objectivity, professionalism, and fairness to the applicant.
/2/ The Administrative Conference takes no position on the possible
application of the Equal Access to Justice Act to asylum proceedings.
01 CFR 305.89-4 II. Detention
Where detention of asylum seekers is deemed necessary, /3/ the
Department should limit it to short-term detention in ''asylum
processing centers'', as recommended by the Select Commission on
Immigration and Refugee Policy. Such centers should also keep families
together wherever possible, minimize the length of detention, provide
assistance in securing representation, and otherwise foster conditions
which reflect that the purpose of detention is not punitive.
/3/ The Administrative Conference does not take a position on the
suitability of detention in asylum proceedings.
01 CFR 305.89-4 III. Deportation
The Department of Justice should ensure that individuals denied
asylum are removed promptly if they are otherwise excludable or
deportable, subject to any policy decision by the Attorney General to
grant extended voluntary departure to nationals of particular countries.
01 CFR 305.89-4 IV. Judicial Review
Judicial review of asylum denials should be available as part of the
review under section 106 of the INA for orders of deportation or
exclusion. Appropriate arrangements therefore should be made to
combine, for purposes of judicial review, the record of proceedings
before the Asylum Board with that of the regular deportation or
exclusion proceedings before the immigration judges and the Board of
Immigration Appeals.
(54 FR 28970, July 10, 1989)
01 CFR 305.89-5 Achieving Judicial Acceptance of Agency Statutory
Interpretations (Recommendation 89-5).
Agencies continually interpret the statutes they administer. Their
interpretations are expressed in a great variety of formats --
including, among others, legislative regulations, adjudicatory opinions,
court briefs, interpretive rules, policy statements, staff instructions,
correspondence, informal advice, press releases, guidance manuals,
testimony before Congress, speeches, and internal memoranda. This
recommendation addresses the relationship between the procedures used by
an agency in interpreting a statute and the role of the courts in
statutory interpretation.
Interpretation of a statute presents a question of law, traditionally
the province of the judicial branch (see the scope of review provision
of the APA, 5 U.S.C. 706). However, for many years courts have accorded
respectful attention or even controlling effect to interpretations of
statutes made by the agencies that administer them. In some situations,
in which the courts reserve the power to arrive independently at their
own interpretations, they will give respectful consideration to an
agency's construction but may reject it, even if it seems reasonable.
In other cases, courts consider themselves bound to accept an agency's
interpretation outright, provided only that it is consistent with the
statute and is reasonable. The law governing judicial acceptance of
agency statutory interpretations is now dominated by Chevron U.S.A. v.
Natural Resources Defense Council, 467 U.S. 837 (1984). In that case,
one involving legislative rulemaking, the Supreme Court laid out a
general framework for reviewing agency interpretations of statutes.
First, the court is to determine whether Congress has directly spoken to
the precise question at issue. If the intent of Congress is clear, the
court (like the agency) must give effect to the congressional intent.
Where Congress' intent is not clear, however, the court must determine
whether the agency's interpretation is based on a reasonable
construction of the statute. Chevron thus requires a reviewing court to
accept an agency interpretation that (a) is not contrary to statute or
specific statutory intent and (b) is reasonable.
When an agency issues a legislative rule or interprets its statute in
a formal adjudication, its interpretation of the statute it administers
is entitled to judicial acceptance under the Chevron standard.
Similarly, acceptance under the Chevron standard is appropriate if the
reviewing court finds a congressional delegation of authority to make
definitive interpretations in an informal format such as the informal
agency staff ruling involved in Ford Motor Credit Co. v. Milhollin, 444
U.S. 555 (1980). But agencies rarely possess congressionally delegated
authority to make definitive interpretations, carrying the force of law,
by informal means. Thus, when an agency states its interpretation of a
statute in an informal format, it should understand that courts
ordinarily will not be bound to accept such an interpretation.
This is not to say that reviewing courts may ignore an agency
interpretation set forth in an informal format. Numerous decisions of
courts at all levels indicate that the views of the agencies charged
with responsibility for administering a statute are accorded weight and
may be highly influential in shaping courts' decisions. In this way
courts retain the advantage of administrative agencies' expertise and
remain free to adopt agencies' interpretations, even though not required
to do so.
Even when interpretations are expressed informally, however, agencies
have in some instances successfully asserted that these interpretations
should be accepted as definitive by the courts, without consideration of
whether the agency possesses the authority to make binding
interpretations in the format it has used.
When an agency interprets a statute without using procedures
authorized by Congress for the development of definitive statutory
interpretations, it should not expect that its interpretation will be
entitled to judicial acceptance as definitive. Procedures so authorized
by Congress, in almost all cases, will be relatively formal ones that
ensure some level of public participation and encourage reasoned and
thoughtful decisionmaking by the agencies. However, this recommendation
is not intended to discourage agencies and their staffs from using
informal means to keep the public apprised of their views on questions
of statutory interpretation. It is often useful and appropriate for
agencies to provide informal guidance of this type. The agency may
reasonably expect that interpretations like these are entitled to such
special consideration as their nature and the circumstances of their
adoption warrant. But it is important for both agencies and courts to
remember that these informal expressions should not be accorded the same
weight as definitive agency interpretations.
This recommendation relates solely to the procedures that should be
preconditions to agencies' assertion of the Chevron standard of review.
It thus takes no position concerning any other aspect of the Chevron
standard.
Accordingly, the Administrative Conference recommends that the
following process be observed.
01 CFR 305.89-5 Recommendation
In developing an interpretation of a statute that is intended to be
definitive, an agency should use procedures such as rulemaking, formal
adjudication, or other procedures authorized by Congress for, and
otherwise appropriate to, the development of definitive agency statutory
interpretations.
(54 FR 28972, July 10, 1989)
01 CFR 305.89-6 Public Financial Disclosure by Executive Branch
Officials (Recommendation 89-6).
Public financial disclosure by federal officials is intended to make
it possible to monitor actual or potential conflicts of interest of such
officials. This, in turn, may deter public officials from even
considering conduct that would present the appearance of a conflict of
interest. However, these benefits of public financial disclosure must
be balanced against the burdens imposed on the federal officials who are
subject to them.
Determining appropriate public financial disclosure requirements
requires an assessment and accommodation of three concerns: the
relevance of the information to conflicts of interest which might be
faced by the individual in his or her official capacity; the practical
burden faced by an individual who must assemble and report information
accurately (including whether a nominee or employee would reasonably be
expected to have at hand the information which he or she is required to
report); and the psychological burden imposed on an individual who must
make his or her financial status publicly available to others (i.e.,
whether public disclosure constitutes an excessive invasion of privacy).
The Administrative Conference has studied the Ethics in Government
Act's executive branch financial disclosure requirements (codified at 5
U.S.C. 201-209) and in this recommendation urges Congress to make
specific changes to those requirements, consistent with an appropriate
balance of the benefits and costs of such disclosure.
This recommendation is not made with the intention of generally
requiring either more or less disclosure of public officials. Rather,
the Conference's goal is to rationalize the Ethics in Government Act's
requirements and eliminate those that appear to bear no reasonable
relationship to the Act's purposes. On the one hand, the recommendation
increases disclosure by reducing the current threshold level for the
reporting of a covered individual's liabilities from $10,000 to $1,000,
to be consistent with the current threshold level of $1,000 for the
reporting of assets ( 2 b (1)). On the other hand, the recommendation
would lessen disclosure by reducing the number of categories of value
for the reporting of assets from the current six to two, which the
Conference believes is sufficient for conflict-of-interest analysis and
the maintenance of public confidence in the integrity of executive
branch officials ( 2 b (2)).
Because the Act's executive branch financial disclosure provisions
are so detailed, this recommendation has been organized to clearly
distinguish between current provisions that the Conference believes
generally further the Act's purposes and, therefore, should be retained,
and those provisions that appear unnecessary to achieve the Act's
purposes and, therefore, should be eliminated or changed. However, in
recommending the retention of particular provisions, the Conference does
not mean to imply that such provisions cannot be improved. To the
contrary, the Conference urges the Congress to systematically review the
coverage and language of all of the Act's public financial disclosure
provisions, and to rewrite those that can be made clearer and simpler.
To illustrate, the Conference recommends continuation of the current
requirement that nominees for positions covered by the Act report the
source of all earned income in excess of $5,000 received by a reporting
individual from one source in the two years preceding the year of filing
( 2a(2)). However, the current statutory provision (5 U.S.C.
202(a)(6)(B)) requires reporting of such compensation paid ''in any of
the two calendar years prior to the calendar year during which the
individual files his first report * * *.'' If strictly applied, a
nominee who filed a report in October of 1989 would be required to
disclose such compensation for calendar years 1987 and 1988, but not for
the period in 1989 prior to his or her entering government service.
This theoretical gap in coverage should be closed whether or not in
practice it has proven to be a problem.
The same statutory provision exempts from the ''over-$5,000 from one
source'' disclosure requirement the reporting of ''any information with
respect to any person for whom services were provided by any firm or
association of which such individual was a member, partner, or employee
unless such individual was directly involved in the provision of such
services.'' 5 U.S.C. 202(a)(6)(B) (emphasis added). In redrafting this
provision, Congress should consider either defining the term ''directly
involved'' or delegating to the Office of Government Ethics the
responsibility to clarify its meaning by regulation, especially as
applied to individuals who provide services to others, such as lawyers.
Therefore, although the Conference supports the retention of the
substance of this and other of the Act's financial reporting provisions,
it is clear that improvements to the language and coverage can be made.
Because of its limited mandate, /1/ the Conference takes no position
on the public financial disclosure requirements applicable to
legislative and judicial branch officials. However, the similarity of
those requirements to executive branch requirements suggests the
desirability of reviewing and possibly amending legislative and judicial
branch requirements as well.
/1/ The Conference is authorized by statute to study and make
recommendations relating to administrative procedure used by
administrative agencies in carrying out administrative programs, 5
U.S.C. 574.
01 CFR 305.89-6 Recommendation
1. Persons Required To File. a. Positions For Which Coverage Should
Be Retained. Congress should continue to require the following
categories of executive branch personnel to make public financial
disclosure:
(1) The President, Vice President, and nominees for and incumbents in
positions which require Senate confirmation;
(2) Full-time officers and employees of the executive branch
(including independent agencies) whose positions are classified as GS-16
or above or who are paid at or above the minimum rate of pay fixed for
GS-16;
(3) Each member of a uniformed service whose pay grade is at or in
excess of O-7;
(4) The Postmaster General, Deputy Postmaster General, each Governor
of the United States Postal Service, and each Postal Service and Postal
Rate Commission officer or employee whose rate of pay equals or exceeds
the minimum rate of basic pay for GS-16;
(5) Each administrative law judge appointed pursuant to 5 U.S.C.
3105; and
(6) All other employees determined by the Director of the Office of
Government Ethics to be in positions equal in responsibility to those
normally classified at GS-16 or above.
b. Positions For Which Coverage Should Be Removed. Congress should
amend the Ethics in Government Act to remove the reporting requirement,
except as may be required under subsection c below, from the following
persons:
(1) Candidates for the offices of President and Vice President who
are not receiving federal funds under the federal election laws and who
are not government officials otherwise required to report; /2/
(2) Special government employees; /3/ and
(3) Designated agency ethics officers whose rate of pay or other
responsibilities would not otherwise subject them to the reporting
requirement.
c. Administrative Extensions of Coverage. Congress should amend the
Ethics in Government Act to permit the Director of the Office of
Government Ethics to extend the reporting requirement, on a position or
categorical basis, to any officer, employee or special government
employee of the executive branch not covered by the Act, whose position
is determined by the Director to present an unusual opportunity for
conflicts of interest.
d. Administrative Exemption From Coverage. Congress should amend the
Ethics in Government Act to permit the Director of the Office of
Government Ethics to exempt from the reporting requirement those
positions included in subsection a above whose responsibilities are
identified by their agencies and determined by the Director to be
unlikely to place their incumbents in situations of conflict of
interest.
e. Review of Coverage Extensions and Exemptions. Congress should
require the Office of Government Ethics annually to review, based on the
recommendaton of the designated agency ethics officials, all
determinations currently in effect under c and d above.
2. Information Required To Be Filed. a. Reporting Requirements That
Should Be Retained. Congress should leave the Ethics in Government Act
unchanged in the following respects:
(1) Reporting by Both Incumbent and Nominated Officials. Congress
should continue to require both incumbent executive branch officers and
employees whose positions are covered by the Ethics in Government Act,
and nominees for those positions, to disclose publicly the following
categories of information:
(a) the identity of any interest in a trade or business or asset held
for investment or production of income, if the value of the interest
exceeds $1,000;
(b) the identity of all positions held by the reporting individual as
an officer, director, trustee, partner, proprietor, representative,
employee or consultant of any corporation, company, firm, partnership,
or other business enterprise, any non-profit organization, any labor
organization, or any educational or other institution other than the
United States, but not including positions held in religious, social,
fraternal, or political entities, or positions solely of an honorary
nature; and
(c) the date, parties to, and terms of any future employment
arrangements negotiated by the reporting individual, leaves of absence
during the period of federal service, continuing payments from a former
employer, or continuing participation in a former employer's welfare or
benefit plan.
(2) Reporting Only by Nominated Officials. In addition to the
information required to be reported by incumbent and nominated executive
branch officers and employees under subsection (1) above, Congress
should continue to require that nominees for positions covered by the
Ethics in Government Act report the source of all earned income in
excess of $5,000 received by the reporting individual from one source in
the two years preceding the one in which the nominee files, and a brief
description of the services for which the compensation was paid. As
current law provides, this requirement should not apply to information
about any person for whom services were provided by the firm or
association of which the nominee was a member, partner, or employee,
unless the nominee was directly involved in the provision of such
services.
(3) Reporting Only by Incumbent Officials. In addition to the
information required to be reported by incumbent and nominated executive
branch officers and employees under subsection (1) above, Congress
should continue to require covered incumbent executive branch officers
and employees to disclose the following categories of information: /4/
(a) the source, type and amount of non-governmental earned income
received by the reporting individual, including honoraria, which in the
aggregate exceeded $100; and
(b) the date and a brief description of each purchase, sale or
exchange of real property, stocks, bonds, commodities futures or other
property with a value over $1,000, except (i) transactions between the
reporting individual and a spouse or dependent children, (ii)
transactions involving a personal residence of the reporting individual
or the individual's spouse, and (iii) transactions involving an
investment in the nature of a cash equivalent (e.g., a money market
fund, certificate of deposit, or personal bank account.)
(4) Interests of Spouses and Dependent Children. The present
statutory provisions on reporting of the interests of spouses and
dependent children of the reporting official should be retained.
b. Reporting Requirements That Should be Changed. Congress should
amend the Ethics in Government Act to change the reporting requirements
in the following ways:
(1) Liabilities. The present requirement of reporting the identity
of liabilities in excess of $10,000 owed by the reporting individual
should be changed to a requirement of reporting liabilities in excess of
$1,000, the same value which the statute now uses for reporting of
assets. As present law provides, the reporting requirement should not
extend to the individual's home mortgage, loans for the purchase of
personal property which are secured by the property purchased and which
do not exceed the value of the security, sums owed to a relative, and
revolving charge accounts with a balance less than a specified amount at
the end of the reporting period (currently $10,000).
(2) Categories of Value. The present requirement that assets,
liabilities, and transactions in assets above the $1,000 threshold be
reported in numerous categories of value should be eliminated. However,
in order to distinguish large interests from those of lesser
significance, the reporting individual should be required to state
whether each particular asset, liability or transaction was in excess of
a specified higher amount (e.g., $50,000 or $100,000 each).
(3) Sources of Earned Income Prior to Government Service. The
requirement that all nominees for covered positions report the source,
type and amount of non-government earned income which they received in
the year prior to entering government service should be eliminated,
except for amounts in excess of $5,000 received from one source (see 2 a
(2) above).
(4) Income from Assets Otherwise Reported. The requirement that both
incumbents and nominated officials report income in excess of $100 from
each of their investments should be eliminated because the assets
themselves are already reported.
(5) Reimbursements and Gifts. (i) Reporting Period. The date after
which all covered reimbursements and gifts should be required to be
reported should be the date on which the official is nominated for or
appointed to the position covered by the Ethics in Government Act, not
the date the official takes office.
(ii) Reimbursement and Gifts of Travel or Entertainment. The
threshold amount for reporting reimbursements and gifts of
transportation, lodging, food or entertainment, other than personal
hospitality from an individual, received by the reporting individual
from any source other than a relative during the reporting period should
be changed from $250 per year to a per event amount (e.g., $100 or $150)
to avoid reporting de minimis information. The statute should be
amended further to require, in addition to the source and a brief
description, the reporting of the value or amount of such reimbursements
or gifts in broad categories (e.g., under $1,000; $1,000 to $10,000;
over $10,000) in accordance with regulations issued by the Office of
Government Ethics.
(iii) All Other Covered Gifts. The requirement of reporting all
gifts to the reporting individual, other than gifts of transportation,
lodging, food or entertainment, which aggregated more than $100 in value
over the reporting period, excluding gifts from relatives of the
reporting individual, and not aggregating gifts of $35 or less in
calculating the $100, should be retained. However, the statute should
be amended to require, in addition to the source and a brief
description, the reporting of the value or amount of such gifts in broad
categories (e.g., under $1,000; $1,000 to $10,000; over $10,000) in
accordance with regulations issued by the Office of Government Ethics.
(54 FR 28973, July 10, 1989)
/2/ The Conference recognizes that candidates for these offices are
not executive branch officials; nonetheless, this recommendation
addresses coverage of candidates because they are included in the
current statute setting forth executive personnel financial disclosure
requirements.
/3/ It is noted that the Administrative Conference has recommended
minimal financial disclosure for all members of federal advisory
committees, including those members who are special government
employees. See ACUS Recommendation 89-3, Conflict-of-Interest
Requirements for Federal Advisory Committees, 1 CFR 305.89-3.
/4/ Under current practice individuals who joined the government in
the preceding calendar year are only required to report this information
for their period of government service and not before.
01 CFR 305.89-7 Federal Regulation of Biotechnology (Recommendation
89-7).
New biotechnology techniques promise great benefits in fields such as
medicine, agriculture, and manufacturing. However, these new
techniques, which involve alteration of the genetic structure of an
organism, have raised concerns that some new organisms or products may
be dangerous to individuals or detrimental to the environment. This
recommendation addresses coordination of federal regulation in this area
and the procedures agencies use to regulate biotechnology development,
testing and use.
Genetically-engineered organisms are regulated under a variety of
statutes enacted to prevent or reduce society's exposure to unsafe or
harmful products or substances. The agencies with such statutory
authorities currently share responsibilities for regulation of
biotechnology in accordance with policy statements issue in 1986 by the
agencies and by the Director of the Office of Science and Technology
Policy (who serves as the President's Science Adviser). /1/ In its
policy statement, the Office of Science and Technology Policy (OSTP)
attempted to clarify the responsibility of each agency where more than
one agency shared jurisdiction to regulate biotechnology areas.
The Conference recommends a continuation of interagency coordination
under the auspices of the OSTP. Experience does not currently indicate
that new legislation is needed for effective interagency coordination of
biotechnology regulation. On the other hand, the Conference believes
that both the President and the Congress should monitor closely the
coordination process because of the importance of this area to the
nation's economic and social well-being.
The Conference also recommends that the President and the Congress,
through the OSTP and the Office of Technology Assessment (OTA), survey
biotechnology developments and agency regulation of biotechnology under
existing statutes to determine whether current law and regulation
provide adequate authority to protect public and private interests or
whether in particular instances current regulation is unnecessary. The
survey should identify whether nonregulation of any particular area
reflects an agency decision not to use its authority to regulate or an
absence of regulatory authority.
The Conference also urges changes in the coordination role for
biotechnology regulation performed by the President's Office of Science
and Technology Policy. Most importantly, the Conference urges the
President to make the work of the Office's Biotechnology Science
Coordinating Committee (BSCC) a high priority. A revitalized BSCC can
help agencies coordinate their activities concerning biotechnology
development, regulation, funding, and biosafety research. To fulfill
this mandate, the Conference believes the BSCC's role should emphasize
fact-finding, reporting, and serving as a clearinghouse for information
relating to biotechnology.
The Conference recommends that agencies engaged in biotechnology
regulation articulate their policies through generic rules and policy
statements to the extent possible. Since public acceptance of agency
decisions is especially important in this area and because of the
novelty and uncertainty of the risks associated with biotechnology, the
Conference encourages agencies to adopt appropriate procedures to allow
public participation. Agencies are also encouraged to seek ways to make
biosafety information available to the public to the maximum extent
consistent with protection of the proprietary interests of submitters of
confidential business information.
/1/ OSTP, Coordinated Framework for Regulation of Biotechnology;
Announcement of Policy and Notice for Public Comment, 51 FR 23302
(1986).
01 CFR 305.89-7 Recommendation
1. Biotechnology Regulatory Structure
(a) Interagency coordination is critically needed to mitigate
problems caused by concurrent regulation of biotechnology by two or more
agencies. The Office of Science and Technology Policy's Biotechnology
Science Coordinating Committee (BSCC) should have primary responsibility
for identifying issues, exchanging information and preparing reports
concerning issues common to several agencies. Responsibility for
establishing uniform government policies should be retained by the
Office of Management and Budget working in coordination with the BSCC.
(b) The President and Congress should survey biotechnology
developments and agency regulation of biotechnology under existing
statutes to consider whether and in what respects current regulation of
biotechnology is inadequate or excessive. To facilitate this, the
President's Office of Science and Technology Policy (OSTP) and Congress'
Office of Technology Assessment (OTA) should, jointly or separately,
identify all areas of biotechnology activity and determine the extent to
which they are being regulated. OSTP and OTA should assess whether or
not additional or diminished regulatory authority is desirable in such
areas and furnish their findings and recommendations to the President
and Congress.
2. Regulatory Coordination
(a) The President should make coordination of the government's
activities relating to biotechnology a high priority. This should
include:
(1) Monitoring the effectiveness of interagency coordination;
(2) Directing the Science Adviser to enlarge the membership of the
BSCC to include all federal agencies that have substantial
responsibilities for biotechnology research, development, or regulatory
policy; and
(3) Directing the Science Adviser to invite representatives of other
agencies to participate in the BSCC's activities, as appropriate, such
as when their regulatory or other official responsibilities may be
affected.
(b) The BSCC should have a broad subject-matter mandate, including
issues of biotechnology development, regulation, funding, and biosafety
research. The Committee's role should emphasize fact-finding,
reporting, and serving as a clearinghouse for information relating to
biotechnology.
(c) The Science Adviser should establish a policy for the BSCC that
will foster opening its proceedings to the public.
(1) Meetings of the BSCC should be open to the public unless they
involve confidential information.
(2) Members of the public should be allowed to provide comments to
the BSCC either orally or in writing.
(3) The BSCC may invite advice from experts outside the government.
(4) The BSCC should keep minutes or other records of its proceedings,
including the reasons for closing any meetings.
3. Regulatory Procedures
(a) Agencies should, where appropriate, seek opportunities to
promulgate generic biotechnology rules to address recurring regulatory
issues.
(b) Agencies should consider the adoption of rules or policy
statements to enunciate the principles or criteria they will include in
their risk assessment and management decisions. When adopting policy
statements, agencies should follow the public participation procedures
set forth in Conference Recommendation 76-5. /2/
(c) Agencies should consider adopting appropriate procedures to allow
public participation and other forms of input when making regulatory
determinations concerning biotechnology. Such procedures might include:
(1) Giving notice to the public with an invitation to submit comments
concerning the determination;
(2) Providing additional notice of pending regulatory actions to
persons who live near sites where proposed activities would take place;
(3) Holding informal public hearings to supplement written
procedures; or
(4) Utilizing advisory committees under the Federal Advisory
Committee Act. /3/
(d) Agencies should seek ways to meet the public's need for biosafety
information about substances or organisms produced through
biotechnology, without divulging confidential business information. /4/
Such steps might include:
(1) Requesting submitters of confidential business information to
focus their claims for confidentiality as much as possible;
(2) Requiring submitters of data that include confidential business
information to identify those portions that are claimed to be
confidential and to substantiate their claims at the time of submission;
and
(3) Summarizing or aggregating confidential data in a manner that
does not compromise confidentiality.
(54 FR 53494, Dec. 29, 1989)
/2/ ACUS Recommendation 76-5, Interpretive Rules of General
Applicability and Statements of General Policy, 1 CFR 305.76-5 (1989).
/3/ See ACUS Recommendation, 82-5, Federal Regulation of
Cancer-Causing Chemicals, Part IV, 1 CFR 305.82-5 (1989).
/4/ See ACUS Recommendation 82-1, Exemption (b)(4) of the Freedom of
Information Act, 1 CFR 305.82-1 (1988).
01 CFR 305.89-8 Agency Practices and Procedures for the Indexing and
Public Availability of Adjudicatory Decisions (Recommendation 89-8).
This recommendation examines the obligation of agencies to index and
make their adjudicatory decisions available to the public.
The Freedom of Information Act (FOIA) imposes numerous affirmative
disclosure obligations on agencies. Under 5 U.S.C. 552(a)(2), each
agency, in accordance with published rules, is required to make final
adjudicatory decisions and orders /1/ available for public inspection
and copying unless the materials are promptly published and copies are
offered for sale. In addition, each agency shall maintain and make
available for public inspection and copying current indexes that provide
identifying information for the public as to any matter issued, adopted,
or promulgated. FOIA further mandates that each agency shall promptly
publish, quarterly or more frequently, and distribute copies of each
index unless it determines, by order published in the Federal Register,
that such publication is unnecessary and impracticable.
Many agencies do, in fact, index and publish or otherwise make
available to the public their adjudicatory decisions, as required under
FOIA (e.g., the National Labor Relations Board, the Merit Systems
Protection Board, the Interstate Commerce Commission, the Securities and
Exchange Commission). This recommendation, then, is addressed to those
agencies which either entirely fail to index, publish or make their
decisions available to the public or fail to do so adequately, whether
or not they use adjudicatory precedent to pronounce and develop agency
policy.
Debate has surrounded consideration of an appropriate test for
determining which types of adjudicatory decisions are included in this
affirmative disclosure obligation. The Attorney General initially
expressed the opinion that FOIA requires that agencies index only those
decisions cited by an agency or relied upon as precedent. This
limitation, in the view of the Attorney General, was derived from both
the enforcement provision in the statute, which precludes the agency
from giving precedential effect to matters not indexed, and the
legislative history of the statute, which indicates that the disclosure
provision was intended to make available documents having precedential
significance. The Attorney General also was influenced by the
impracticality of indexing all agency decisions.
Application of the affirmative disclosure requirements, beyond simply
precedential decisions, however, offers several advantages. First, if
agencies index all significant decisions, and not just those decisions
deemed to be precedential, agencies would be less inclined to be
restrictive or one-sided in the selection of cases to be accorded
precedential effect. Second, private parties affected by agency action
would be in a better position to learn of and influence agency policy.
Third, a broader application of affirmative disclosure requirements
would implement the underlying aim of the FOIA indexing requirements
which is to afford citizens the essential information needed to deal
effectively and knowledgeably with federal agencies and to guard against
the development of secret law. Lastly, a current index of final
decisions may assist agencies in developing standards and policies with
respect to general issues and recurring questions.
The few cases dealing with the FOIA affirmative disclosure
obligations have generally read the precedential test broadly. They
require disclosure not only of decisions that an agency considers to be
binding but also all decisions that an agency retains for general
reference and research. The recommended approach to the indexing and
public availability of final decisions focuses less on the binding
nature of the precedent and more on the value that decisions can have to
inform and assist the public.
/1/ This subsection also covers agency statements of policy and
interpretations, as well as administrative staff manuals and
instructions to staff that affect a member of the public. The
Conference has already recommended that agency policies that affect the
public should be articulated and made known to the public to the
greatest extent feasible, ACUS Recommendation 71-3 ''Articulation of
Agency Policies.'' See also ACUS Recommendation 70-3, ''SEC No-Action
Letters Under section 4 of the Securities Act of 1933.''
01 CFR 305.89-8 Recommendation
1. Indexing of Agency Decisions
Agencies that do not already do so should compile a subject-matter
index of their adjudicatory decisions so as to afford citizens
information useful in dealing with the agencies and to assist the
development of agency standards and policies on general issues and
recurring questions. /2/
In meeting FOIA indexing requirements, agencies should ensure that a
subject-matter index is made of their decisions and that the index
includes all significant decisions, whether or not the decisions are
designated as precedential.
2. Level and Scope of Decisions Indexed
The index should cover the adjudicatory decisions of the agency's
highest level tribunal. The agency should also consider whether to
index significant lower level decisions that have become final. The
adjudicatory decisions intended to be covered by this recommendation are
those made with an accompanying written opinion or rationale in
contested cases after an opportunity for a hearing at some stage of the
proceeding.
3. Index Contents
Agency indexes should be designed for effective and efficient use.
These indexes should contain sufficient information on each indexed
decision to identify the major issues decided and the location of the
case file. Agencies should adopt one of the following practices in
indexing their adjudicatory decisions:
A. Universal Index. Index all final decisions; or
B. Selective Index. Where the volume of decisions makes a universal
index impracticable or uninformative, selectively index final decisions
omitting those decisions that are repetitive. The selective index
should include all significant decisions. Decisions may be significant
because they are deemed by the agency to be precedential or otherwise
establish a principle to govern recurring cases with similar facts,
develop agency policy and exceptions to the policy in areas where the
law is unsettled, deal with important emerging trends, or provide
examples of the appropriate resolution of major types of cases not
otherwise indexed.
4. Public Notice of the Index
Agency indexes should be fully disclosed and readily available.
Appropriate notice of the existence of unpublished decisions should also
be given in both the agency's FOIA regulations and the procedural or
substantive regulations governing the specific program.
5. Computer Technology
Agencies should explore the use of computer technology in order to
promote accessibilty and reduce costs of indexing.
(54 FR 53495, Dec. 29, 1989)
/2/ In programs where the agency has established a policy that none
of its decisions have precedential effect, the Conference urges that the
agency re-examine the feasibility of creating a system that accords
certain decisions precedential value to provide guidance about the
factors that influence their decisions and to ensure better development
of agency policy and standards. See ACUS Recommendation 87-7, ''A New
Role for the Social Security Appeals Council,'' 1 CFR 305.87-7. See also
ACUS Recommendation 71-5, ''Procedures of the Immigration and
Naturalization Service In Respect to Change-of-Status Applications.''
01 CFR 305.89-9 Processing and Review of Visa Denials (Recommendation
89-9).
United States consulates around the world complete the processing of
some nine million applications for immigrant and nonimmigrant visas each
year. Approximately ninety percent are granted; ten percent are
denied. Under current practice, the only review of a consular
official's denial of a visa may be by a more senior officer in the
consulate, or, on points of law, by the Visa Office in the State
Department. The Immigration and Nationality Act has been read to
preclude administrative review, and the courts, with a few exceptions,
have declined to review visa denials.
Immigrant visas are available to persons with close family
relationships to U.S. citizens and residents, or with particular
abilities or skills that are needed but not otherwise available in the
United States. Nonimmigrant visas are available in a long list of
classes, ranging from tourists to students to certain types of business
personnel to diplomats.
Whatever the visas category or class, there clearly are important
interests at stake. These interests are not just those of the
applicants themselves, but also of citizens and residents of the United
States who are sponsoring the applicant or have some other interest in
the applicant's presence in the United States. These interests warrant
a close look at whether initial decisions in this important program of
mass adjudication should be more fully reviewable than at present.
Federal law and State Department regulations give consular officers
substantial discretion in adjudicating visa applications. For example,
consular officials exercise absolute discretion in determining whether
an applicant may be represented by an attorney or other qualified
representative at the visa application interview. Furthermore, although
current Department regulations, at 22 CFR 41.121(c), require that a
denial of a visa application be reviewed by a more senior officer, the
high volume of applications at some posts has resulted in only a random
sample of denials being reviewed. Review by a senior official may also
be a problem in single-officer posts.
Consular posts send a few hundred cases a year presenting significant
legal issues to the Visa Office of the State Department for an advisory
opinion that is binding only with respect to legal issues. The
applicant typically has no notice of this proceeding. Such review
affects the results in only a small number of cases, since most visa
denials are based on a factual determination.
Current law has been read by some to limit both administrative and
judicial review. Section 104(a) of the INA, 8 U.S.C.1104(a), excepts
the Secretary of State from the administration or enforcement of ''those
powers, duties and functions conferred upon the consular officers
relating to the granting or refusal of visas.'' This language has been
considered by some to preclude the establishment of a more formal review
mechanism within the State Department. Further, courts have generally
limited the extent of available judicial review.
The Conference believes that it is important that there be at least
some level of review of consular discretion to deny or grant visas. The
availability of such review would not only encourage consistency and
care in the initial adjudication, but would serve interests of fairness
and legitimacy. On the other hand, a review scheme in this area can be
crafted in a fashion that keeps procedure to a minimum, takes account of
the extremely high volume of visa applications, and avoids
over-judicialization of the process.
The Recommendation reflects a two-pronged approach to administrative
review of visa denials, aimed both at improving the review at the
consular level and at considering the creation of a level of centralized
administrative review. The suggestions directed at the consular offices
are intended to encourage quick, consistently applied, and
cost-effective review that would resolve many of the issues on which
review might be requested. The Recommendation also asks the State
Department to study the issues, and develop and submit to Congress a
proposed process for administrative review of consular actions. The
Conference recognizes that there are currently competing priorities for
resources that might be required by implementation of the
Recommendation, but believes that these proposals should be implemented
as quickly as is feasible under the circumstances.
01 CFR 305.89-9 Recommendation
1. The State Department should adopt a regulation ensuring that
applicants may be accompanied by an attorney or other authorized
representative during the course of the visa application interview
process. To the extent practicable, the State Department should take
steps to reply promptly to communications from applicants or authorized
representatives and to ensure that facilities are available to enable
applicants to meet with their representatives during the application
interview process.
2. The State Department should require consular officers to provide
brief but explicit written statements of the factual and legal bases and
reasons for denying a visa application, except where reasons of national
security or potential adverse effects on foreign policy dictate
otherwise.
3. The State Department should modify its regulations to allow Visa
Office advisory opinions to be made available to applicants and their
authorized representatives except where national security or potential
adverse effects on foreign policy dictate otherwise.
4. The State Department should either comply with its regulation
found at 22 CFR 41.121(c) requiring review within a consulate of each
denial of a visa application, or examine alternative systems to review
visa denials at consular posts. In such a study, the State Department
should keep in mind the goal of ensuring consistency in visa
adjudications and consider possible alternatives to address exigencies
created by busy consular posts, for example, by reviewing random samples
of visa denials, or selecting for review certain types of denials.
5. The State Department should, after appropriate study, develop and
submit for Congressional review a proposed process for administrative
review of consular visa actions. /1/
(54 FR 53496, Dec. 29, 1989)
/1/ If it is thought that current law precludes such a State
Department study, Congress should authorize the State Department to
undertake the study.
01 CFR 305.89-10 Improved Use of Medical Personnel in Social Security
Disability Determinations (Recommendation 89-10).
The Social Security Administration annually processes more than 1.5
million requests for Disability Insurance Benefits and Supplemental
Security Income requiring a determination whether the claimant is
disabled. The Administrative Conference has addressed various aspects
of the Social Security Administration's administrative procedures in
earlier recommendations. /1/ This recommendation focuses more
specifically on the appropriate use of medical personnel in making
disability determinations.
The Social Security Administration (SSA) uses medical personnel
currently in two ways. First, initial and reconsideration
determinations are made for SSA by federally funded state agencies that
use teams composed of one lay disability examiner and one medical doctor
or psychologist. /2/ Second, medical sources are used to provide
evidence of disability in individual cases and to explain or elaborate
upon medical evidence obtained from other sources. Medical sources
provide evidence relating to individual claims to state agencies at the
initial decision and reconsideration levels, to administrative law
judges at the hearing level, and to the Appeals Council. Requests can
be made to the claimant's treating physician or to an independent
physician who is asked to examine the claimant and report on his or her
findings. Doctors are asked by some administrative law judges to
explain or elaborate upon existing medical evidence; other
administrative law judges and most state agency personnel do not use
independent medical doctors for these purposes. Medical personnel are
involved in the disability determination process for other federal
disability programs as well. Although the extent to which they are used
varies from program to program, programs typically concentrate the use
of medical personnel at the initial decision stage, as does the Social
Security Administration. /3/
There is no doubt that medical personnel can offer valuable
assistance in making disability determinations called for by the Social
Security Act. Notwithstanding the mixed medical and legal content of
the Social Security Act's disability standards, most disability
determinations require the resolution of medical issues in one form or
another. At the same time, it must be recognized that doctors cannot
simply apply their general medical expertise to the work of determining
disability under a complex and multi-faceted statutory disability
standard. Doctors are accustomed to evaluating a person's limitations
in the context of treatment; they are oriented professionally to
identify the cause of and resolve limitations, rather than to identify
limitations and then measure them against stated requirements for
receipt of benefits. These recommendations are intended to help
reconcile the needs of the Social Security Administration disability
determination process for medical expertise and the ability of the
medical profession to meet those needs.
Medical personnel perform three main functions in current practice.
First, they assist in developing the medical records on which disability
decisions are based. Second, they provide medical evidence for the
record, including medical findings and opinions relating to an
individual claimant's impairments and explanations of other medical
evidence already in the record. Third, they participate in making
disability decisions at the initial and reconsideration levels based on
the record.
Each of these functions suggests models for using medical
decisionmakers in Social Security disability determinations. The first
model would increase the responsibility of medical personnel for
compiling all relevant medical evidence. Medical personnel would
concentrate on evaluating the adequacy of the record and following up
with requests for clarification and additional information from treating
and consulting medical sources. Medical personnel would also be given
specific responsibility for assuring that all medical evidence in the
record is clear and understandable to both medical and non-medical
decisionmakers. The second model would improve the use of doctors as
sources for supplying medical data and opinions on which disability
decisions can be based. This model also supports the use of medical
personnel to evaluate and resolve certain specified medical issues
relevant to a claim if, in a particular case, there are medical issues
that can be identified as appropriate for separate decision. The third
model would make more effective use of medical personnel in
decisionmaking role. This model would concentrate medical resources at
the initial decision level, where a doctor would share the
responsibility for decisionmaking with a non-medical disability
examiner. The doctor member of the team would be given special
responsibility for certain tasks, and would undertake a full and
independent review of the entire record in each case. The expectation
is that through open exchange of information between the two
decisionmakers and a reasonable allocation of responsibility based on
each member's expertise, most disability determinations will be made by
consensus. If conflicts arise on medical issues, separate medical
personnel would be given the authority to resolve those conflicts.
The following recommendations would implement the important
provisions of each of these models. Implementing these recommendations
would require greater expenditures for medical personnel and related
support at the state agencies. However, additional costs should be
offset by savings resulting from elimination of the reconsideration
level and reduced numbers of administrative and federal court appeals.
/1/ See Recommendations 78-2 (ALJ hearing stage), 87-6 (state level
determinations), 87-7 (Appeals Council).
/2/ For cases involving mental impairments, Social Security
regulations provide that either psychologists or psychiatrists may
assist in determining disability. Accordingly, references to the terms
''medical sources,'' ''physicians,'' and ''doctors'' in these
recommendations are intended to include psychologists used in those
cases.
/3/ While the Conference has examined the other federal disability
programs and believes that these recommendations hold valuable lessons
for the agencies administering those programs, these recommendations are
addressed solely to the Social Security Administration.
01 CFR 305.89-10 Recommendation
01 CFR 305.89-10 A. Improvements at the Initial Decision Level
The Social Security Administration (SSA) should enhance the
decisionmaking role of medical personnel at the initial decision level.
This can be accomplished by improving upon the current practice of using
two-member teams -- consisting of a medical member who is a licensed
physician or psychologist and a non-medical member who is a disability
examiner -- to determine disability, as follows:
1. Responsibility for developing medical evidence. SSA should ensure
that the medical member of the team is given primary responsibility for
developing the medical evidence /4/ in the record.
(a) Staff and resources should be allocated so as to assure that a
complete record of all evidence relevant to a disability claim is
obtained before an initial decision is made on the claim.
(b) Specially trained support staff, including nurses and non-medical
personnel, should be made available to assist the medical member in
developing the medical evidence.
(c) The medical member should, whenever possible, be assigned direct
responsibility for evaluating the adequacy of reports from physicians
and for following up with requests for clarification or additional
information from these sources.
2. Identifying and deciding discrete medical issues. SSA should
develop a list of discrete issues raised by the applicable disability
standards that may arise in individual claims and that are appropriate
for decision by medical staff. The medical member of the team assigned
to a claim should be made responsible for identifying any such discrete
issues raised in the claim, developing all evidences relevant to the
issue, and reaching a decision on that issue.
3. Resolving medical conflicts. SSA should ensure that medical
personnel are used to resolve any conflicts on medical issues that arise
in the course of team evaluations of disability at the initial decision
level.
(a) Senior medical staff should be given the authority to review
claims where the team members are unable to agree and to recommend
further action, including the development of additional medical
evidence, to resolve the conflict.
(b) If the conflict persists, the state agency's medical personnel
should assume primary responsibility for evaluating the record with
respect to the medical issues and for making a determination based on
that record.
(c) As part of this process, independent medical experts, or panels
of experts, should be identified and retained for use as examining and
non-examining consultants, as appropriate.
4. Notice of deficiencies in medical evidence. SSA should require
that claimants be informed specifically of any deficiencies in the
medical evidence that could lead to an adverse determination before the
initial decision is made.
(a) This notice should be prepared by the medical member of the team,
should clearly explain any deficiency in the medical evidence, and
should encourage the claimant to provide additional information and
explanation, as needed. This notice should also state that the agency
will assist claimants in obtaining this information when they are unable
to do so on their own due to financial or other constraints.
(b) As part of this process, either the claimant or the medical
member should have the authority to initiate a face-to-face interview.
5. Ensuring quality of evidence. SSA should take steps to improve
the quality of evidence provided by medical sources for disability
adjudications.
(a) Guidelines should be established that identify priorities for the
use of treating physicians, examining physicians and non-examining
physicians, including specialists, for these purposes.
(b) Selection and evaluation of physicians asked to provide medical
information should be performed by medical personnel independent from
the agency staff responsible for making disability decisions and should
be supported by a system for quality control covering both the selection
of physicians and the reports submitted.
(c) Physicians asked to provide medical information should be
adequately compensated and should be provided with instructions as to
applicable agency standards.
(d) Medical personnel should be able, when appropriate, to consult
with specialists before ordering examinations or tests.
(e) All contacts with medical sources relating to the determination
of disability for a particular claim should be documented routinely in
writing and included in the record. SSA should ensure that claimants
are provided a copy of any reports prior to issuance of the decision and
accorded an opportunity to object and rebut appropriately.
6. Training and supervision of medical personnel. SSA should ensure
that all medical personnel are trained fully on legal and program issues
and work under the supervision of the chief medical officer in the state
agency. SSA should also ensure that medical staff act in accordance
with the rules established by the Social Security Act and relevant
federal court decisions, including the requirement to obtain and give
appropriate weight to the opinions of claimants' treating physicians, in
performing the functions described in paragraphs 2, 3(b), and 5(a).
/4/ ''Medical evidence'' includes (1) medical findings and opinions
relating to an individual claimant's impairments, (2) other evidence,
including subjective symptoms, that is relevant to determining the
existence or severity of the claimant's condition, and (3) explanations
of other medical evidence already in the record. The recommendations'
focus on development of medical evidence is not intended to minimize the
importance of the development of other evidence, including vocational
evidence.
01 CFR 305.89-10 B. Reconsideration
7. Elimination of Reconsideration. SSA should seek to concentrate
the efforts of the disability determination team on a single initial
decision process, as outlined in these recommendations. Together with
implementations of these recommendations, the separate reconsideration
stage should be eliminated.
01 CFR 305.89-10 C. Appeal Level
8. ALJ use of medical experts. SSA should encourage its
administrative law judges to call on an independent medical expert in
appropriate cases to assess the need for any additional medical evidence
and to explain or clarify medical evidence in the record. /5/ SSA
should make clear by regulation that a medical expert's evidence can be
presented orally or in writing. The regulations should also provide
that claimants are notified of the inclusion of an expert's report in
the record and should assure that claimants' rights to object to the
inclusion of the report, submit rebuttal evidence, and cross-examine the
expert are not abridged. The regulations should also provide that all
information and opinions provided by medical experts must be included in
the record.
(54 FR 53496, Dec. 29, 1989, as amended at 55 FR 1665, Jan. 18, 1990)
/5/ SSA should also ensure that its ALJs receive appropriate training
on medical issues relevant to their decisional responsibilities.
01 CFR 305.90-1 Civil Money Penalties for Federal Aviation Violations
(Recommendation 90-1).
In late 1987, Congress enacted an administrative civil money penalty
program for violations of the Federal Aviation Act and its implementing
safety regulations. The Civil Penalty Assessment Demonstration Program,
a 2-year temporary program, was originally due to expire December 31,
1989. It was extended for 4 months in anticipation of the completion of
a study of the program undertaken by the Administrative Conference of
the United States at the request of the Department of Transportation.
Congress extended the program an additional ninety days, after receiving
a draft of this recommendation from the Conference's Committee on
Adjudication.
The demonstration program currently authorizes
administratively-imposed civil money penalties of amounts of up to
$50,000. The cases are initiated by the Federal Aviation Administration
(FAA), an agency within the Department of Transportation (DOT). The
cases are heard by DOT administrative law judges (ALJs), with appeal to
the FAA Administrator. Judicial review is available in the federal
court of appeals.
The FAA has substantive regulatory authority under the Federal
Aviation Act. It promulgates regulations to promote aviation safety,
conducts investigations to ensure compliance, and brings enforcement
actions. It also has responsibility for issuing certificates for most
aviation businesses and functions.
The civil money penalty program supplements previously available
sanctions, which include judicially-imposed civil money penalties and
FAA administrative actions to suspend or revoke certificates. FAA
certificate actions, if appealed, are adjudicated by the National
Transportation Safety Board (NTSB). The NTSB is an independent agency
that has as its primary responsibilities investigating accidents and
issuing air safety recommendations, in addition to adjudicating
certificate cases.
The civil money penalty program has been in operation since September
1988, when the FAA promulgated its procedural regulations as final rules
with opportunity for subsequent comment. In March 1989, the FAA
addressed the comments received, but made no changes in the regulations.
The FAA recently announced revisions in its policy on some issues
relating to its rules of practice for the civil penalty program, and in
April 1990, the FAA published a notice of proposed rulemaking on its
civil penalty program rules of practice. /1/ These proposed rules
substantially incorporate the recommendations presented below in
paragraph 4.
The Administrative Conference believes that administrative assessment
of aviation civil money penalties should be made permanent, but that the
changes presented below would improve the program's operation and
enhance perceptions of fairness.
The Conference has long advocated the administrative imposition of
civil money penalties as an alternative to reliance on judicial
enforcement. /2/ Administratively-imposed sanctions are generally
faster, less expensive, and more effective in enforcing regulatory
schemes than is reliance on judicial enforcement, and the FAA experience
appears consistent with this view. Therefore, the Conference recommends
that administrative assessment of civil money penalties be made a
permanent feature of federal regulation of aviation safety.
Administrative imposition of civil money penalties for violations of
safety regulations is at present limited by statute to penalties not in
excess of $50,000. The Conference notes that many agencies do in fact
-- and without untoward consequences -- exercise power to impose far
heavier monetary penalties than those now authorized in the civil
aviation area. The Conference recognizes that the severity of possible
sanctions for violations of law is a matter for Congressional choice,
but the Conference believes that, in this instance, expanding the scope
of money penalties following appropriate administrative hearings would
enhance efficient administration without risking loss of fairness.
The Conference takes no position at this time on whether the
adjudication of civil penalty actions under this program should remain a
function of the DOT, or whether it should be shifted to the NTSB. There
are arguments on both sides. Such a determination should respond to
interests of administrative simplicity and efficiency, fairness and the
appearance of fairness, and accountability for aviation safety. The
NTSB currently adjudicates violations of federal aviation law in the
context of certificate proceedings, so it already has experience in the
substantive area, as well as established and respected adjudicatory
procedures. A transfer of these proceedings to the NTSB would place
almost all administrative sanctions for aviation safety violations in
one forum. Moreover, the independence of the NTSB from the prosecuting
agency would promote the appearance of fairness, by formally separating
the agency prosecuting the case from the one adjudicating it. /3/
On the other hand, any transfer of civil penalty adjudicative
responsibility to the NTSB would entail legislative consideration of
whether and to what degree deference should be given by the Board to FAA
policies and whether the FAA Administrator should be entitled to seek
judicial review of adverse NTSB decisions. Moreover, retaining the
adjudicative function in the FAA would allow for coordinated regulatory
and enforcement policy in one agency, a model that is used by most
federal agencies. If it is important to have hearings in both
certificate and money penalty cases heard in the same forum,
theoretically the former function could be transferred to the FAA.
Although there has been criticism of the FAA's rules of practice, the
agency is about to complete a rulemaking in which it has proposed
significant changes in its rules. Finally, aviation safety and related
enforcement are the chief missions of the FAA.
The better choice between the two is not self-evident. Factors that
could not be adequately studied in the available time include the
relative capacities of DOT and the NTSB to adjudicate cases promptly and
fairly, any effect that the location of adjudicative authority might
have on aviation safety, and the two agencies' respective capabilities
to procure necessary resources. If Congress extends the aviation civil
penalty program either permanently or for a substantial period, it is
the Conference's intention to study the issue of the more appropriate
location for adjudicatory authority.
As long as the adjudicatory authority is lodged in the DOT, the
Conference recommends some procedural changes that would improve the
program's operation. The FAA previously interpreted its statutory
authority as contemplating a formal finding of a violation (order
assessing civil penalty) as a prerequisite to compromising a disputed
civil money penalty case. As a result, fewer cases settled than under
former agency practice, and a substantial backlog developed. As part of
the ongoing rulemaking proceeding, the FAA has been reconsidering its
position and has concluded that the enabling law does not preclude
compromising cases without a finding of a violation. In any event,
Congress should make explicit that the FAA has the discretion to
compromise disputed cases without a formal finding of a violation.
It is important that rules of practice governing adjudication of
civil money penalty cases be fair, and that they appear fair. In most
cases, the regulations that the FAA previously adopted were adequate,
but several provisions led to some misunderstanding and perceptions of
unfairness. The rules of practice should be therefore be revised to
eliminate existing ambiguities, pursuant to the ongoing notice and
comment rulemaking. /4/
/1/ The FAA's rulemaking has been in two steps. In early March 1990,
the FAA issued a notice of proposed rulemaking on a number of specific
issues in the civil penalty procedural rules that had been particularly
controversial. In mid-April, the FAA issued a final rule in this
rulemaking, with a delayed effective date. At the same time the FAA put
out its entire set of procedural rules, incorporating these changes, for
notice and comment. 55 FR 15110, 15111, 15134, 15135 (April 20, 1990).
At the time this recommendation was adopted, June 7, 1990, the comment
period in the second proceeding had closed, but a final rule had not
been issued.
/2/ See Recommendation 72-6, ''Civil Money Penalties as a Sanction,''
1 CFR 305.72-6; Recommendation 79-3, ''Agency Assessment and Mitigation
of Civil Money Penalties,'' 1 CFR 305.79-3. Many statutes have since
incorporated the administrative penalty system recommended by the
Conference.
/3/ See Recommendation 86-4, ''The Split-Enforcement Model for Agency
Adjudication,'' 1 CFR 305.86-4.
/4/ As noted earlier, the proposed rule in the rulemaking ongoing at
the time this recommendation was adopted substantially incorporates the
provisions of paragraph 4 of the recommendation.
01 CFR 305.90-1 Recommendation
1. Congress should authorize on a permanent basis the administrative
imposition of civil money penalties for violations of the Federal
Aviation Act (Act) and its implementing safety regulations.
2. Congress should eliminate the current ceiling of $50,000
applicable to administratively-imposed civil money penalties for
violations of the Act and its implementing safety regulations.
3. Legislation providing for continued administrative imposition of
civil money penalties should make explicit that the Federal Aviation
Administration (FAA) has administrative discretion to compromise
disputed cases without requiring a formal finding of a violation.
4. As long as adjudicatory responsibility is lodged at the Department
of Transportation, the Department should adopt revised rules of practice
governing adjudication of civil money penalty cases following
notice-and-comment procedures. Such rules should address the following
issues:
a. Separation of functions: The regulations should make clear that
employees with investigatory or prosecutorial responsibilities in a case
in this program will not communicate with the administrative law judge
or agency decisionmaker in that case or a factually related case, except
as counsel or a witness in the public proceedings.
b. Testimony of FAA employees: 1. The regulations should permit FAA
employees to testify as to facts relevant to any disputed issue. Within
the scope of this rule, hearsay testimony from FAA employees should be
treated the same as other hearsay testimony.
2. FAA employees testifying as experts should be subject to full
cross examination.
c. Designation of documents: The regulations should avoid
denominating the document used to commence formal civil penalty
proceedings as an ''order,'' and should use a term such as
''complaint.''
d. Use of briefs: The regulations should permit the filing of
post-hearing briefs whenever, in the ALJ's view, the interests of
justice so require.
e. Explanation of basis for sanctions imposed: The regulations
should establish a uniform standard for explanation of sanctions imposed
in initial decisions, regardless of whether the ALJ affirms or modifies
the proposed sanction.
(55 FR 34209, Aug. 22, 1990)
01 CFR 305.90-2 The Ombudsman in Federal Agencies (Recommendation
90-2).
The ombudsman /1/ is an institution frequently used in other
countries, and increasingly used in this country, as a means of
inquiring into citizen grievances about administrative acts or failures
to act and, in suitable cases, to criticize or to make recommendations
concerning future official conduct. Typically, an ombudsman
investigates selected complaints and issues nonbinding reports, with
recommendations addressing problems or future improvements deemed to be
desirable. In cases involving the agencies of the government, an
ombudsman may deal with complaints arising from maladministration,
abusive or indifferent treatment, tardiness, unresponsiveness, and the
like. /2/ To succeed, an ombudsman must have influence with, and the
confidence of, top levels of an agency, be independent, and be able to
conduct meaningful investigations into a complaint without being
thwarted by the agency staff whose work is being examined. The most
successful occupants of that office have generally been persons of high
rank and status with direct access to the highest level of authority.
The experiences of several federal agencies show that an effective
ombudsman can materially improve citizen satisfaction with the workings
of the government, and, in the process, increase the disposition toward
voluntary compliance and cooperation with the government, reduce the
occasions for litigation, and provide agency decisionmakers with the
information needed to identify and treat problems. Agencies currently
employing an ombudsman with success in various programs include, among
others, the Internal Revenue Service and the Army Materiel Command.
The Conference urges the President and Congress to support federal
agency initiatives to create and fund an effective ombudsman in those
agencies with significant interaction with the public. The Conference
believes that these agencies would benefit from establishing an office
of ombudsman either on an agency-wide basis or to assist in the
administration of particular programs.
/1/ ''Ombudsman'' is a Swedish word meaning ''agent'' or
''representative,'' and its use here is not intended to discourage
others form using more gender neutral terminology.
/2/ An ombudsman may be appointed by the legislature or by the
executive and with a variety of possible powers, missions, and available
resources. While there is no universally accepted notion of what an
ombudsman should do, under one approach, that of the Model Ombudsman
Statute, the ombudsman could address ''an administrative act that might
be:
1. contrary to law or regulation;
2. unreasonable, unfair, oppressive, or inconsistent with the general
course of an administrative agency's functioning;
3. mistaken in law or arbitrary in ascertainments of fact;
4. improper in motivation or based on irrelevant considerations;
5. unclear or inadequately explained when reasons should have been
revealed;
6. inefficiently performed; or
7. otherwise objectionable * * *.''
The Comment to the Model Statute adds, ''Very clearly, the ombudsman
must not attempt to be a super-administrator, doing over again what
specialized administrators have already done and, if he disagrees,
substituting his judgment for theirs.''
01 CFR 305.90-2 Recommendation
01 CFR 305.90-2 A. Establishment of Ombudsmen
1. Federal agencies that administer programs with major
responsibilities involving significant interactions with members of the
general public are likely to benefit from establishing an ombudsman
service. Examples of such programs include the following: licensing;
revenue collection; procurement; award and distribution of welfare,
pension, or disability benefits; oversight of public lands;
administration of detention facilities; public assistance programs;
immigration programs; and subsidy or grant programs.
2. In cases where agencies with significant interaction with the
public seek legislation to provide funds or other statutory
underpinnings for an ombudsman, the legislation should conform generally
to the guidelines set forth in paragraph B, below, and should be
prepared in consultation with knowledgeable agency personnel and outside
entities and affected members of the public or their representatives.
3. Whether or not legislation is enacted, each federal agency with
major responsibilities involving significant interaction with members of
the general public should consider setting up an agency-wide or
program-specific ombudsman as a means of gaining experience with the
concept and improving service to the public. Agencies should follow the
guidelines in paragraph B in establishing an agency ombudsman.
01 CFR 305.90-2 B. Guidelines for Ombudsman Legislation and Agency Programs
01 CFR 305.90-2 1. Powers, Duties
a. Ombudsman legislation or agency guidelines should set out the
functions to be performed by the ombudsman and confer the powers needed
to enable the ombudsman to (i) receive and inquire into complaints, (ii)
recommend solutions in individual matters and make recommendations for
administrative and regulatory adjustments to deal with chronic problems
and other systemic difficulties, (iii) advise within the agency
concerning procedures, forms, and similar issues affecting the nature
and delivery of services; and (iv) call attention to agency problems
not yet adequately considered within.
b. The legislation or agency guidelines should require the ombudsman
to submit periodic reports summarizing the grievances considered;
investigations completed; recommendations for action, improvement in
agency operations, or statutory changes; agency response; and any
other matters the ombudsman believes should be brought to the attention
of the agency head, Congress or the public.
c. The legislation or guidelines should also provide that the
ombudsman should refrain from involvement in the merits of individual
matters that are the subject of ongoing adjudication or litigation or
investigations incident thereto.
01 CFR 305.90-2 2. Qualifications, Term
The legislation or guidelines should set forth the qualifications
required for the position of ombudsman, the tenure of office, salary,
safeguards protecting the independence and neutrality of the ombudsman,
and means for ensuring access to the ombudsman. The Conference
recommends that the ombudsman be a respected, senior person known for
his or her judgment, probity, and persuasiveness.
01 CFR 305.90-2 3. Confidentiality
a. The legislation or guidelines should protect communications to or
from the ombudsman in connection with any investigation (other than
reports intended to be made public), as well as the ombudsman's notes,
memoranda and recollections, and documents provided in confidence to the
ombudsman. The legislation or guidelines should provide protection
against disclosure in judicial, administrative, and congressional
proceedings consistent with that recommended by Administrative
Conference Recommendation 88-11, Encouraging Settlements by Protecting
Mediator Confidentiality, 1 CFR 305.88-11. /3/
b. An agency, when establishing an ombudsman, should explicitly
disclaim authority ordinarily, /4/ to discover or otherwise force
disclosure of an ombudsman's notes, memoranda or recollections, or of
documents provided to the ombudsman in confidence.
/3/ As a practical matter, confidentiality guarantees in pending
legislation -- the Administrative Dispute Resolution Act, S. 971 and
H.R. 2497 (101st Congress 1st Session) -- if enacted, would likely
protect communications in ombudsman proceedings.
/4/ Exceptions might include cases where there is a duty to warn of a
threat to personal health or safety, criminal matters, and other
compelling exigent circumstances.
01 CFR 305.90-2 4. Judicial Review, Liability
Any such legislation should provide that (i) no inquiry, report,
recommendation, or other action of the ombudsman shall be subject to
examination or review in any court, unless the ombudsman is subject to
criminal investigation; and (ii) no civil action shall lie against the
ombudsman for any action, failure to act, or statement made in
discharging the ombudsman's responsibilities.
01 CFR 305.90-2 5. Access to Agency Officials and Records
The ombudsman should be given direct access to the head of the agency
and to high-ranking officials within it. The legislation or guidelines
should authorize the ombudsman to request agency officials to provide
information (in person or in writing) or records the ombudsman deems
necessary for the discharge of its responsibilities; and should
require, absent countervailing compelling concerns relating to
confidentiality or privacy, that such information be supplied to the
extent permitted by law.
01 CFR 305.90-2 6. Outreach
An agency with an ombudsman should take effective steps to ensure
that persons who deal with the agency are aware of the existence,
purpose, and availability of the ombudsman service. These steps could
include active campaigns to inform the public of the service.
(55 FR 34211, Aug. 22, 1990)
01 CFR 305.90-3 Use of Risk Communication by Regulatory Agencies in
Protecting Health, Safety and the Environment (Recommendation 90-3).
The term ''risk communication is commonly used to describe procedures
by which a public agency or other party possessing information about the
hazardous attributes of an activity or product transfers this
information to others. For several decades, the Freedom of Information
and National Environmental Policy Acts have, in effect, provided for
government risk communication by requiring federal agencies to transfer
information they possess or risk (among other matters) to members of the
public on their request.
More recently, Congress and federal agencies have created an
additional form of risk communication, one that requires other persons
or entities to produce and distribute certain information on the
hazardous attributes of their activities and products to third parties.
The intended recipients may include employees, product users, and the
representatives and residents of communities that host certain types of
activities. These recent enactments establish risk communications
duties for the private sector, at times creating concomitant rights to
such information for designated parties. This recommendation addresses
the class of risk communication aimed at providing to third parties.
Risk communication can be a significant feature of programs to
control risks that have been identified and assessed by Congress and the
regulatory agencies. Its benefits may include widespread acceptability,
greater effectiveness and less demand on resources than alternative
approaches.
Risk communication programs are now being implemented to foster risk
education and reduction in several contexts. The Occupational Safety
and Health Administration's (OSHA) ''hazard communication'' or ''worker
right-to-know'' standard requires firms producing or using designated
hazardous chemicals to provide workers with risk information and
training on workplace hazards so that the workers will understand the
hazards, determine personal risks, and take appropriate actions to
reduce these risks.
The Federal Emergency Planning and Community Right-to-Know Act,
administered by the Environmental Protection Agency (EPA), requires
companies producing or using designated hazardous chemicals to provide
state and local communities and EPA with information about the
chemicals, accident risks, spills, and other actual releases of the
chemicals to educate these recipients and enable them to develop
emergency response plans and other strategies for protecting public
health and the environment. The law expressly provides for public
access to the information disclosed by industry.
Experience with the OSHA and EPA programs suggests that risk
communication can advance statutory objectives for risk reduction and
can, when properly implemented, reduce the costliness of risk reduction
efforts. Workers and community residents now have access to relevant
industrial hazard information and are beginning to use the information
to take protective measures. Worker training and community emergency
planning are also being gradually achieved. State and local officials
are taking legislative and regulatory actions to reduce industrial
risks. Efforts to achieve international harmonization are also under
way. Companies and trade associations are voluntarily initiating new
risk reduction practices and some chemical manufacturers are now
voluntarily transferring their superior knowledge of chemical risk
management to their downstream commercial customers to enhance
marketing.
However, these new programs have raised special problems for agency
administration and for compliance, particularly for small business. For
example, the OSHA and EPA programs require that three basic functions be
carried out by various parties: (i) producing the reports and other
information materials to be disclosed; (ii) distributing the
information to persons at risk; and (iii) using the information for
developing worker training programs and community emergency response
plans. In both programs, compliance with production function
requirements has generally been more effective than compliance with
distribution and use function requirements.
Agency programs requiring risk communication also have implications
for concurrent regulatory efforts and traditional standard-setting that
have not been adequately addressed by the agencies or Congress. Risk
communication is not necessarily an adequate substitute for prescriptive
standards. When these kinds of programs co-exist, they should be
mutually supportive.
The existing risk communication programs pose further difficulties in
that they require federal agencies to supervise and coordinate the
activities of thousands of private firms, 50 state committees, and more
than 3000 local committees. However, the agencies' enforcement
strategies and capabilities have not developed sufficiently to ensure
compliance with program requirements. OSHA and EPA, as well as any
other agency considering a program requiring numerous private and public
parties to disclose, distribute, and use risk information, should
develop means of fostering compliance efforts of numerous designated
parties, such as by joint government-private sector efforts -- for
example, by means of a joint council on chemical risk management. OSHA
and EPA have identified the need to develop new collaborative
relationships with private firms and state and local officials to
achieve communication program goals. Current outreach efforts should be
expanded as a supplement to agency enforcement strategy for private
sector compliance. EPA should provide technical assistance and guidance
to promote the compliance of state and local emergency response
officials.
In addition, OSHA and EPA are now aware that the transfer of risk
information to workers, local officials and community residents is
creating additional needs for interpreting the information and guiding
these recipients about appropriate actions to reduce risk. These
agencies should therefore cooperate with appropriate state officials to
ensure that workers and community residents will be able to understand
and use the risk information they receive.
The Conference supports improvements in the use of risk information
disclosure as a component of federal regulatory programs. The
recommended measures can help ensure that the promise of this policy
alternative is fulfilled.
01 CFR 305.90-3 Recommendation
01 CFR 305.90-3 A. Existing Program of OSHA and EPA
1. OSHA and EPA should undertake a joint effort to improve the format
and content of Material Safety Data Sheets (MSDSs), which are
informational documents that must be provided and used by various
designated parties for diverse purposes under both agencies' risk
communication program. /1/ This joint effort should include
participation by industrial firms, trade associations, labor and
environmental organizations, medical and public health professionals,
and state and local officials. OSHA and EPA should consider bringing
representatives of these groups together for appropriate negotiations.
/2/ Particular attention should be given to improving the organization,
clarity, consistency of terminology, and readability of the information
provided in MSDSs so that they can be used more easily for developing
safe workplace practices and worker training activities under the OSHA
program and for developing emergency response plans by local officials
under the EPA program.
2. OSHA and EPA should undertake a similar joint effort, including
the participation of affected private parties, to facilitate the
development of uniform MSDSs for commonly-used hazardous chemical
substances. This effort should reduce the confusion caused by the
proliferation of different MSDSs for the same substance and duplicative
efforts by manufacturers in producing the MSDSs.
3. OSHA and EPA should improve the effectiveness of their compliance
programs by providing increased technical assistance and guidance to the
parties responsible for distributing and using the disclosed information
-- for example, by using their regional offices to conduct educational
programs designed to promote awareness of program requirements and
improve performance by designating parties. These agencies should also
develop constructive relationships with industrial firms, trade
associations, labor and environmental organizations, health
professionals, the media, state and local officials, and affected
communities to strengthen the worker training and local emergency
response planning functions mandated by the programs.
4. OSHA and EPA should inform and guide state health officials with
respect to their medical and health advisory functions, to improve the
ability of those officials to provide useful guidance to workers and
community residents in interpreting the risk information disclosed under
the federal agency programs.
/1/ MSDSs contain information about hazardous chemicals, including
the identity of the chemical, its physical and chemical characteristics,
the nature of the hazards, primary routes of human exposure, permissible
exposure limits, appropriate precautions, and first aid procedures. See
29 CFR 1910.1200(g).
/2/ See, for example, ACUS Recommendations 82-4, 85-5, Procedures for
Negotiating Proposed Regulations, 1 CFR 305.82-4 and 305.85-5.
01 CFR 305.90-3 B. Generic Recommendations
1. Each federal agency with authority to regulate risks to health,
safety, or the environment should evaluate its regulatory program and
its statutory authority, to determine whether a program to communicate
risk information to educate persons at risk would be beneficial. The
agency should also determine whether such a program would be a
permissible and useful component of the agency's regulatory program, as
an alternative or complement to other measures. If the results of this
evaluation are affirmative, the agency should take appropriate steps to
develop a cost-effective risk communication program, being careful to
prevent conflicts with any agency standard-setting or other regulatory
activities. Agencies establishing new risk communication programs
should work jointly with other agencies, as appropriate, to avoid
duplication or conflict with existing regulatory programs.
2. In implementing a risk communication program, an agency should:
a. Ensure that the information content and communication procedures
are appropriate for the intended purposes including: (i) Informing and
educating persons at risk as to hazardous conditions and suitable
protective measures; and (ii) informing other parties, such as private
firms and public agencies, so that they can discharge their designated
responsibilities for producing, distributing, and using information
appropriately.
b. Evaluate the performance of the various parties required to
produce, distribute, and use the information, and identify obstacles to
achieving program goals. The agency should then take appropriate
remedial actions such as the provision of assistance to enable the
intended recipients of the risk information to understand and use it to
reduce risk; and the initiation of cooperative efforts with industrial
firms, trade associations, labor and other interest groups, and other
government agencies to improve the quality and usefulness of risk
communication and compliance with program requirements.
c. Supplement traditional enforcement measures with additional
methods for ensuring awareness of requirements and compliance by
designated parties with very limited resources or expertise. Such
methods may include, for example, cooperative programs with private
firms, trade associations, and state and local officials to promote
compliance.
3. In refining the scope of new or existing risk communication
programs, agencies should, to the extent permitted by law, exclude from
coverage insignificant or unlikely risks, to enhance the overall
usefulness of the information to recipients.
(55 FR 34212, Aug. 22, 1990)
01 CFR 305.90-4 Social Security Disability Program Appeals Process:
Supplementary Recommendation (Recommendation 90-4).
The Administrative Conference of the United States has undertaken
numerous studies over the years relating to the appeals process in the
Social Security Administration (SSA) disability program. It has issued
four recommendations specifically involving the various levels of review
in that program. It has also issued other more general recommendations
involving various aspects of adjudicatory procedure. This
Recommendation is intended to supplement those previous recommendations
to reflect the passage of time and experience. It is consistent with
previous recommendations, but in some cases, it goes further, or makes
suggestions in areas previously left unaddressed. Unless specifically
noted, existing recommendations have not been superseded, and their
provisions will not be repeated in this Recommendation.
The SSA disability appeals process involves several steps. The
initial determination of disability is made by federally-funded state
Disability Determination Services (DDS). A dissatisfied claimant may
seek a reconsideration by a different individual in the DDS. This
reconsideration decision is appealable to an administrative law judge
(ALJ) in SSA's Office of Hearings and Appeals, who holds a hearing on
issues on appeal. If the claimant continues to be dissatisfied, he or
she may appeal to the Appeals Council, which reviews the case and may in
some instances permit supplementation of the record. Judicial review in
the United States district court is available from an Appeals Council
decision, which is considered to be final agency action.
01 CFR 305.90-4 Prior Recommendations
In 1978, ACUS issued Recommendation 78-2, Procedures for Determining
Social Security Disability Claims, 1 CFR 305.78-2, which primarily
addressed the administrative law judge stage of the Social Security
disability program. It recommended the continued use of ALJs, and made
suggestions concerning the development of the evidentiary hearing
record, including recommending that ALJs take more care in questioning
claimants, seek to collect as much evidence prior to the hearing as
possible, make greater use of prehearing interviews, and make better use
of treating physicians as sources of information.
In 1987, ACUS issued two recommendations relating to the disability
program. Recommendation 87-6, State-Level Determinations in Social
Security Disability Cases, 1 CFR 305.87-6, addressed the first level of
determination and review in the disability program. Recommendation
87-7, A New Role for the Social Security Appeals Council, 1 CFR
305.87-7, addressed the organization and function of the Appeals
Council. Recommendation 87-6 was based on early results from
demonstration projects involving the state-level disability
determination process. It recommended additional experimentation with
face-to-face procedures. Recommendation 87-7 suggested wide-ranging and
substantial changes in the workings of the Appeals Council, including
that it move away from its historical primary function as a case review
panel. The recommendation suggested that the caseload be significantly
limited, and that the Appeals Council focus on important issues on which
it could issue precedential opinions.
In 1989, ACUS issued two further recommendations affecting the
disability program. Recommendation 89-10, Improved Use of Medical
Personnel in Social Security Disability Determinations, addresses a
variety of issues involving medical decisionmaking at the state-level
determination stage. It proposes enhancement of the role of medical
decisionmakers, increased effort to develop medical evidence in the
record, and improved training of medical staff on legal and program
issues. It recommends use of optional face-to-face interviews and
elimination of the reconsideration step. It also recommends that
claimants be informed of deficiencies in the medical evidence prior to
the issuance of a state-level determination, and that the opinion of a
claimant's treating physician be given the weight required by court
decisions and SSA rules. In addition, Recommendation 89-8, Agency
Practices and Procedures for the Indexing and Public Availability of
Adjudicatory Decisions, recommends that agencies index and make publicly
available adjudicatory decisions of their highest level tribunals, and
further suggests that agencies not treating decisions as precedential
reexamine those policies. This general recommendation would apply to
the SSA Appeals Council.
01 CFR 305.90-4 Supplementary Recommendation
In 1989, the Social Security Administration asked the Administrative
Conference to prepare a report that would describe the SSA disability
process, review the relevant statutes, compare the process with
disability programs under other statutes, and synthesize the relevant
ACUS recommendations. The following supplementary recommendations are
suggested by this report. These recommendations are consistent with the
spirit, and in most cases, also with the letter of previous
recommendations described earlier, but they address issues that have
heretofore not been addressed by the Conference or have been addressed
in a manner for which additional refinement is appropriate.
Decisions on social security claims that are issued at each level of
the process need to contain information sufficient to allow the claimant
to make an informed decision whether to appeal to a higher level. It is
therefore important that the basis for the decision, including the facts
found, be stated clearly. Further, where the record appears not to be
complete, the decision should indicate what information is lacking, so
that it can be provided at the subsequent level. These suggestions
apply both to the initial decision at the state level and to the ALJ
decision. The Conference recognizes that SSA rules already require most
of this information in ALJ decisions, but more consistent implementation
of these rules is needed.
The Social Security Act provides claimants the right to subpoena
witnesses and information. Moreover, the Supreme Court made clear in
Richardson v. Perales, 402 U.S. 389 (1971), that the availability of
subpoenas may be critical to a claimant's ability to present relevant
evidence. However, subpoenas are seldom issued in disability
proceedings. The Conference believes that ALJs should be encouraged to
issue subpoenas, and that claimants should be encouraged to seek them to
complete the record. While the Conference recognizes that concerns
exist about effective enforcement, it believes that such concerns should
not prevent the issuance of subpoenas, and that enforcement issue should
be addressed separately. If enforcement of subpoenas appears to be a
problem in the future, the Conference will consider studying the issue
separately.
Prehearing conferences at the ALJ level could be used to streamline
the hearing process by narrowing issues and ensuring the necessary
evidence will be available at the hearing; in some cases the prehearing
conference may eliminate the need for a hearing. However, such
conferences should not be used to discourage claimants from seeking a
hearing. Nor, except in rare cases, should they be used in cases
involving pro se claimants, who might unknowingly waive rights or later
opportunities to present evidence.
The Conference believes it is important that the evidentiary record
be as complete as possible as early in the process as possible. It
believes that the increased use of subpoenas will make this possible, in
conjunction with the provision in Recommendation 89-10, 5(c), that
physicians asked to provide medical information in disability
proceedings be adequately compensated. If a claimant is informed by the
ALJ what information is still needed after the hearing, and is given an
opportunity to supplement the record at that time, the need to
supplement the record after the ALJ hearing should decrease.
The Conference is also recommending that the record before the ALJ be
closed at a set time after the hearing. The procedure would give the
claimant sufficient time to acquire such information as is needed to
complete the record, and would also provide for extensions of time upon
a showing of good cause.
As a corollary to this, the Conference is recommending that a
procedure be developed for the ALJ to reopen a record upon petition by
the claimant where there is new and material evidence relating to the
period covered by the hearing. Such petitions could be filed within one
year of the ALJ decision or while the case is pending before the Appeals
Council if it has been appealed. /1/ Under such a procedure, new
evidence would be considered first by the ALJ, thereby giving the
adjudicator most familiar with the case the first opportunity to review
new evidence, potentially reducing the number of cases that would be
presented to the Appeals Council, and giving the Appeals Council more of
an appellate role. See generally Recommendation 87-7. The ALJ's
decision not to reopen should be appealable to the Appeals Council. If
the Appeals Council finds that new and material evidence did exist, it
should generally remand to the ALJ for consideration of the evidence,
except where substantial injustice or unreasonable delay would result.
These recommended procedural changes are not designed to limit the
record in a disability case, but rather to impose additional structure
on the process, by clarifying the rules and encouraging the timely
production of evidence. It is expected that these changes will result
in evidentiary records being completed in a more timely and efficient
manner, thereby increasing the quality of the decisions based on those
records.
The issues addressed in paragraph 5 of the recommendation, discussed
above, were considered in Recommendations 78-2(C)(1) and 89-7(1)(c)n.2
These previous provisions are subsumed within this Recommendation.
/1/ These proposed procedures are distinct from the supplementary to
SSA's generic ''reopening'' procedures set forth at 20 CFR
404.987-404.989; 416.1487-89.
01 CFR 305.90-4 Recommendation
The Social Security Administration (SSA) should make the following
changes in the disability determination and appeals process:
1. Contents of Decisions: SSA should require that disability benefit
decisions, both at the state-level determination stage and at the
administrative law judge stage, clearly provide in language
comprehensible to claimants at least the following information:
a. The date the application for benefits was filed.
b. The date of onset of disability as alleged by the claimant.
c. The date of onset of disability, if any, that has been determined
by SSA.
d. The period of time or category for which benefits have been
denied, if any. Where benefits have been awarded for one period or
category and denied for another period or category, the notice should
clearly state that benefits have been partially denied.
e. If any category of benefits has been denied for any period, a list
of evidence considered, and an explanation of why benefits were denied,
including why the evidence of record did not support the grant of
benefits.
f. The date of expiration of claimant's disability insured status
(i.e., the ''date last insured'').
g. The adverse consequences, if any, including preclusive effects,
that will result from failure to appeal the decision.
2. Prehearing Conferences: The use of prehearing conferences should
be encouraged in appropriate cases to frame the issues involved in the
ALJ hearing, identify matters not in dispute, and decide appropriate
cases favorably without hearings. Except in rare cases, such
conferences should be held only where claimants are represented by
counsel, and they could be held over the telephone where will parties
agreed. A report on the conference, reflecting any actions taken,
should be included in the record. Issues that should be considered at a
prehearing conference include:
a. Additional information that is required.
b. Subpoenas that may be necessary.
c. Witnesses that may be required.
d. What issues are or are not in dispute.
3. Subpoenas: Administrative law judges' use of their subpoena power
should be encouraged. Subpoenas should be issued sua sponte where
necessary to ensure that medical evidence is complete, and to obtain
other necessary evidence not otherwise available. Subpoenas should be
issued when requested by the claimant except where the ALJ finds good
cause not to issue a particular subpoena. SSA should develop form
subpoenas for use by disability claimants, and provide instructions for
their use. This recommendation is to be read in conjunction with
Recommendation 89-10, Improved Use of Medical Personnel in Social
Security Disability Determinations.
4. Closing of the Administrative Record: The administrative hearing
record should be closed at a set time after the evidentiary hearing.
Prior to this, the ALJ should set forth for the claimant what
information the claimant needs to produce to complete the record, issue
any necessary subpoenas, and provide the claimant adequate time to
acquire the information. Requests for extension should be granted for
good cause, including difficulty in obtaining material evidence from
third parties. The ALJ should retain the discretion to accept and
consider pertinent information received after closure of the record and
before the decision is issued.
5. Introduction of New Evidence After the ALJ Decision: a. Upon
petition filed by a claimant within one year of the ALJ decision or
while appeal is pending at the Appeals Council, the ALJ (preferably the
one who originally heard the case if he or she is promptly available)
should reopen the record and reconsider the decision on a showing of new
and material evidence that relates to the period covered by the previous
decision. An ALJ's denial of such a petition should be appealable to
the Appeals Council.
b. Appeals Council review of an ALJ's initial decision should be
limited to the evidence of record compiled before the ALJ. Where the
claimant seeks review of an ALJ's refusal to reopen the record for the
submission of new and material evidence, the Appeals Council should
remand the case of the ALJ (preferably the one who originally heard the
case if he or she is promptly available), if it finds that the ALJ
improperly declined to reopen the record. The Appeals Council should
not review the merits itself or issue a decision considering the new
evidence, unless remand would result in substantial injustice or
unreasonable delay. /2/
(55 FR 34213, Aug. 22, 1990)
/2/ Congress may at some time in the future need to consider whether
it may want to provide for judicial review of Appeals Council
determinations not to reopen the record. Cf. Califano v. Sanders, 430
U.S. 99 (1977).
01 CFR 305.90-5 Federal Agency Electronic Records Management and
Archives (Recommendation 90-5).
Federal agencies increasingly create, use, and store records in
electronic rather than paper form. As this occurs, legal requirements
and management efforts designed for paper records become progressively
less satisfactory to ensure an adequate legal and historical record of
government decisionmaking. Administrative Conference Recommendation
88-10 and the accompanying report addressed electronic acquisition of
information and public access to and dissemination of electronic
information. These recommendations complement Recommendation 88-10, and
are not intended to amend that recommendation. /1/ They focus on
internal agency electronic records management, affecting long-term
accessibility of public records through the National Archives. They are
intended to make agencies sensitive to the issues involved.
Recommendation 1(a) parallels part A of Recommendation 88-10. It
starts with the premise that the basic policy balances have already been
struck and does not seek to reopen them. Existing policy reflected in
the records statutes /2/ and in National Archives and Records
Administration (NARA) and General Services Administration regulations
and guidelines should be applied to the new electronic formats, with the
objective that changing from paper to electronic media should not
diminish the historical record of the government or its accessibility.
There are some instances in which a rule designed for paper information,
when applied to electronic information, may produce significant
differences in result. In other instances, electronic formats present
entirely new issues for records management, as with relational
databases, /3/ whose content is constantly changing, and whose use is
different in character from traditional documents. In these instances,
NARA and other agencies should identify explicitly the records
management and records preservation issues presented and seek to resolve
them in accordance with the basis purposes of a government-wide records
management and archives system. The recommendation is not intended to
discourage agencies from taking advantage of an enhanced ability to
preserve additional records that may result from technological change.
Recommendation 1(a) also states that shifts toward electronic formats
should not have the effect of changing the substantive legal rules or
the opportunity for, or scope of, judicial review. This means that the
evolution of rules concerning standing to enforce the requirements, and
of the relationship between the Freedom of Information Act and the
records statutes should continue, and that agency treatment of records
in electronic formats should be subject to the same scrutiny as is
applied to records in paper formats having the same content. In sum,
the guiding principle should be that the content of the record, and not
the format of its storage, should control the rules governing its
retention and accessibility.
Recommendations 1(b) and 1(c) extend the basic principle of
Recommendation 1(a) to public access. Electronic information formats
have the potential to permit enhanced public access even as the volume
of information grows, because of the potential for better indexes that
are computer searchable and the possibility of free-text search.
However, a great threat to long-term public access to electronic
information formats is technological obsolescence, the possibility that,
by the time someone wants to read information stored on electronic media
the information will not be available. This threat must be avoided --
not by refusing to accept electronic information formats, but by working
to develop and adopt standards for information exchange. Such standards
must also accommodate newer more sophisticated document and database
structures such as hypertext -- or other compound documents composed of
graphical, audio, and video, as well as textual components -- and
relational distributed databases. Otherwise, solutions to technological
obsolescence will themselves become obsolete as agencies adopt future
technologies.
Recommendation 1(d) urges that records managers and archivists avoid
archival practices that impair the use of electronic information
technology in carrying out the agencies' programmatic activities. For
example, it might not necessarily serve the public interest to prohibit
stand-alone microcomputers on the grounds that records management
functions can be accomplished with greater effectiveness on time sharing
or other network systems.
Recommendation 1(e) encourages agencies to coordinate their use and
development of electronic record-keeping technology and standards with
the private sector to the fullest extend possible, and to avoid
technologies and standards that, because of proprietary restraints or
other limitations, would impede access to agency information and
transfer to the National Archives.
Recommendation 2 addresses problems relating to preservation of the
electronic records of agencies and commissions that are established on a
temporary basis.
Recommendation 3 urges that NARA take a more active role in showing
agencies how to harmonize records preservation objectives with agency
modernization, and in exploring standards that can mitigate potential
problems of incompatibility and technological obsolescence. While
NARA's reluctance to adopt document transfer or database transfer
standards that do not have an established commercial base is
appropriate, NARA should also take the initiative in promoting the
development of appropriate standards through private standard-setting
organizations, /4/ and should encourage agencies to make use of
available commercial products embracing the most promising standards.
Agencies also need guidance with respect to questions relating to
admissibility of electronic records as evidence and other reliability
issues. /5/ The Conference encourages the Department of Justice and the
Office of Management and Budget to expedite their current efforts in
this regard. /6/
In carrying out these recommendations, agencies are reminded to
comply with the Federal Information Processing Standards. /7/
/1/ These recommendations do not address such important issues as
protection of trade secrets or privileged commercial information,
invasion of personal privacy, or the need for Congress and agencies to
consider allocating budgetary resources. Nor do the adddress computer
security issues, which constitute an important, complex and specialized
subject deserving independent consideration. Nothing is these
recommendations is intended to diminish access to agency records through
depository libraries.
/2/ See, for example, the Federal Records Act and related statutes in
44 U.S.C. chaps. 21, 22, 29, 31, 33 (1988).
/3/ A ''relational database'' is composed of separate tables from
which are extracted and presented to a user as though they came from one
database. A relational database is sometimes also a ''distributed''
database, meaning that it is made up of tables physically located at
different places on a network.
/4/ See ACUS Recommendations 78-4, Federal Agency Interaction with
Private Standard-Setting Organizations in Health and Safety Regulation,
1 CFR 305.78-4.
/5/ Legal issues relating to reliability include signature
requirements and contract documentation. See, for example, the federal
statutory counterpart to the Statute of Frauds, 31 U.S.C. 1501.
/6/ The Conference is prepared to work with the Department of Justice
and the Office of Management and Budget to provide appropriate guidance
for agencies.
/7/ ''FIPS'' Publications are issued by the National Institute of
Standards and Technology after approval by the Secretary of Commerce,
pursuant to section 111(d) of the Federal Property and Administrative
Services Act of 1949, as amended by the Computer Security Act of 1987,
Public Law 100-235.
01 CFR 305.90-5 Recommendation
1. Federal agencies, including those responsible for archival and
records policy, should ensure that:
(a) Changes in the technology of record-keeping, including the use of
electronic systems in creating records and the transfer of records from
paper to electronic formats, do not (i) alter the criteria for
identifying material to be retained as a temporary or permanent record
for eventual transfer to the National Archives, (ii) have the effect of
altering the opportunity for, or scope of, judicial review of agency
compliance with records law, or (iii) otherwise alter the substance of
records law;
(b) Changes in the format of agency information from paper to
existing and future electronic media do not reduce the accessibility of
information to the public;
(c) Accessibility is not degraded by technological obsolescence of
electronic formats;
(d) Policies and procedures aimed at enhancing records management
complement and, in any event, do not impair the utility of information
systems for the performance of agency missions; and
(e) Maximum use is made of generally available technology and,
whenever feasible, that agencies conform to standards that are widely
agreed to and in use in the private sector.
2. Temporary agencies and commissions should, in consultation with
the National Archives and Records Administration (NARA), manage their
electronic record-keeping (consistent with the agency's mission) in such
a way as to ease the transfer and preservation of their records upon the
agency's dissolution.
3. NARA should promote the development and implementation of
standards for text, database, and other forms of electronic records, and
should seek out opportunities for pilot and demonstration projects,
covering candidates for standards for text and database information that
can ensure the transferability of such information from agencies to NARA
and ensure long-term accessibility to the public. NARA and the White
House Office of Administration should develop concepts for a turnkey
presidential records system that could go to a presidential library
along with electronic presidential records, providing immediate public
access to records to which access is permissible.
(55 FR 53270, Dec. 28, 1990)
01 CFR 305.90-6 Use of Simplified Proceedings in Enforcement Actions
Before the Occupational Safety and Health Review Commission
(Recommendation 90-6).
The Occupational Safety and Health Commission OSHRC) is an
independent agency charged with adjudicating contested citations and
penalties brought against employers by the Occupational Safety and
Health Administration of the Department of Labor (Labor). Labor is
responsible for promulgating substantive safety and health standards,
conducting workplace inspections and investigations, and prosecuting
contested cases before administrative law judges (ALJs) at OSHRC. If an
inspection discloses alleged violations, a citation describing the
violation is issued along with a notice of proposed penalties. An
employer who disagrees with a citation or proposed penalty can file,
within 15 days of receipt, a simple notice of contest. Ordinarily,
Department of Labor lawyers must respond to the notice of contest with a
relatively detailed complaint, and employers must set forth allegations
of facts which serve as the basis for affirmative defenses. The case is
then handled through a litigation process that provides for discovery,
motion practice, formal hearings governed by the Federal Rules of
Evidence, /1/ and written opinions.
OSHRC also offers parties another path, that of ''simplified
proceedings'' which modify significantly the litigation process. /2/
There are no pleadings; pre-hearing discovery and motion practice
are expressly discouraged; and interlocutory appeals of an ALJ's ruling
are not permitted. In lieu of pre-hearing discovery, the parties are
required to engage in discussions with a goal of addressing settlement,
narrowing issues in dispute, and developing an agreed statement of
issues and facts. These unstructured discussions are supposed to occur
within a reasonable time before a ''conference/hearing,'' a hybrid
procedure divided into two phases -- a conference that can often operate
as a dispute resolution tool and then an informal hearing that normally
takes place on the same day. Under current OSHRC rules, any other party
may request a simplified proceeding (subject to certain subject-matter
limits) within 10 days after a notice of docketing is received, and any
other party may veto use of the device. The vast majority of requests
for simplified proceedings come from pro se respondents, with the
Department of Labor historically vetoing most of these requests.
Evidence suggests that where the simplified proceedings are agreed to --
5% or less of OSHRC's national caseload -- settlements are common.
While the basic concept of simplified proceedings is hardly
controversial, putting it into practice has been. Several commentators
have expressed concerns about the ''underutilization'' of these
proceedings, and called for vesting in respondents or ALJs final
authority for deciding whether to use them. Others caution that
agreeing to use simplified proceedings could involve surrender of
meaningful procedural rights at a point early in the case when one or
more parties may be unaware of all the issues or evidence likely to be
implicated. Some maintain that simplified proceedings are redundant
since, in practice, they are not so different from the procedures that
knowledgeable parties before OSHRC sometimes work out informally.
The Conference does not now take a position on these issues, or on
the effectiveness of current OSHRC procedures. /3/ Major shifts in the
structure of OSHRC simplified proceedings would themselves give rise to
new uncertainties and difficulties of implementation. They should be
undertaken only after careful analysis of the procedural, legal, policy,
and practical implications. In the meantime, the Conference urges the
Department of Labor and OSHRC to take steps to expand the use and
effectiveness of simplified proceedings, especially those involving pro
se respondents, as stated in the following recommendation.
/1/ 29 CFR 2200.71 (1989).
/2/ 29 CFR 2200.202-.211 (1989). In addition, OSHRC's regulations
provide for use of settlement judge procedures, 29 CFR 2200.101 et seq.
A recent study for the Conference also examined OSHRC's use of this
technique and concluded that OSHRC's procedures in this regard were
consistent with Conference Recommendation 88-5, Agency Use of Settlement
Judges, 1 CFR 305.88-5 (1990). Nothing contained herein is intended to
detract from that recommendation.
/3/ The aforementioned study focused only on operation of settlement
judge and simplified proceedings in certain cases before OSHRC. Further
study may be useful to explore the operation of OSHRC's current
adjudication procedures, including relevant structural and policy
issues.
01 CFR 305.90-6 Recommendation
1. The Occupational Safety and Health Administration (OSHRC) and the
Department of Labor should develop rule or policies tailored to handling
cases involving pro se parties of limited means in simple cases
involving few alleged violations and low penalties. The Department of
Labor should experiment selectively with the OSHRC has characterized as
''simplified proceedings'' in order to gain a broader base of experience
and to obtain a clearer picture of the kinds of cases suitable for those
proceedings. Department of Labor attorneys should adopt a policy of
promptly initiating discussions with pro se parties in an effort to
narrow issues or resolve disputed matters. The Department should
develop a set of criteria to assist its attorneys in deciding whether to
request, or agree to requests seeking, use of simplified proceedings.
OSHRC and the Department should also develop simplified paperwork,
special pro se form answers and other documents, and other procedures to
inform pro se parties more fully and thus enhance use of simplified
proceedings.
2. OSHRC should modify its simplified proceedings to encourage
parties to make greater use of them. For example, OSHRC should
facilitate exchanges of information via short-form or oral pleadings and
limited discovery in some cases. OSHRC should also take steps to ensure
that its administrative law judges (ALJs) regularly enforce its rule /4/
requiring parties in simplified proceedings to discuss simplification
and settlement.
3. OSHRC should continue the simplification of its procedures after
study of the relevant issues and consultation with representatives of
all affected interests, including the Department of Labor, employer
associations, relevant bar committees, and unions. The objective should
be greater use of the pre-hearing conference through involvement of the
presiding judge in the case. Pre-hearing conferences could result in
settlement of all matters in controversy or an identification of those
issues still requiring a hearing. If a hearing is found necessary, it
should follow immediately and should be held before the ALJ who has
identified in issues in controversy.
(55 FR 53271, Dec. 28, 1990)
/4/ 29 CFR 2200.206 (1989).
01 CFR 305.90-7 Administrative Responses to Congressional Demands for
Sensitive Information (Recommendation 90-7).
The routine sharing of information between congressional committees
and administrative agencies constitutes one of the most important
interactions between the political branches of our national government.
The process of exchanging information affects the ability of the
executive and legislative branches to carry out their constitutionally
assigned tasks. The quality of Congress's legislative and oversight
work often depends on agency information. The control of the disclosure
of sensitive information also affects the executive's ability to fulfill
its functions.
The Constitution of the United States operates only loosely as a set
of restraints on the behavior of the political branches in disputes over
information. Because it does not expressly acknowledge a congressional
entitlement to information or an executive prerogative to withhold
information, the Constitution provides less a set of clearly understood
rules than a framework within which each branch articulates its asserted
right to demand or withhold information.
The judicial view regarding disputes over sensitive information
between the political branches, as distilled from a very few opinions,
respects elements of the views of both branches. While several cases
imply what the Supreme Court's view might be, /1/ there is no Supreme
Court adjudication of any executive privilege dispute with Congress.
Consequently, there is no opinion that resolves the principled
contentions that such disputes involve.
By all accounts, most congressional demands for information are
handled without confrontation, and it is clear that agencies generally
respond to requests by providing whatever information Congress is
seeking. Moreover, the branches do have a strong and continuing
interest in the success of their overall relationship, despite an
institutional competitiveness that is augmented when the two branches
are controlled by different parties. Nevertheless, serious contentious
cases do arise, especially in areas of great concern to the public, and
improved mechanisms for resolving such disputes would benefit both
political branches, as well as the courts, which shy away from
involvement in such cases.
An understanding of the several factors that may affect the outcome
of particular demands as well as the process by which a resolution is
achieved is required if improvements are to be recommended for resolving
information disputes in a way that enables both branches optimally to
fulfill their constitutional functions. One major factor affecting the
successful navigation of a dispute is the perceived stakes or interests
of each branch. What is at stake for Congress is usually the
performance of one of its primary functions. These include routine
oversight, the contemplation of possible legislation, the review of
nominations requiring the advice and consent of the Senate, or the
investigation of possible official wrongdoing. The executive's desire
to control the dissemination of information is likely to result also
from a predictable set of concerns. These include protecting national
defense and foreign policy secrets, protecting trade secrets or
confidential commercial or financial information, protecting the candor
of presidential communications or intrabranch policy deliberations,
preventing unwarranted invasions of personal privacy, whether of
government officials, employees, or private persons, and protecting the
integrity of law enforcement investigations and proceedings. In some
cases, the executive may regard such information as sensitive, meaning
that its disclosure could compromise the capacity of the executive
branch to discharge its constitutional or statutory responsibilities.
Disputes over information often have a purely political basis as well.
Congress may seek information in an effort to gain particular political
advantage; the executive may seek to withhold such information to cover
up mistakes.
The prospects for a nonconfrontational resolution are good if the
branches perceive that a particular dispute boils down to a contest only
between Congress's ability to fulfill one of its primary missions and
the executive's ability to protect one of the routine concerns
mentioned, rather than a fundamental readjustment in the institutional
power of each branch in relation to the other. Accommodation is
possible in such a situation because several intermediate arrangements
exist between complete disclosure or complete non-disclosure that allow
for a balance of the branches' competing interests.
Among the intermediate arrangements available for settlement of a
dispute are: (1) The release of information by the executive in timed
stages that allow it to conclude a law enforcement investigation or
policymaking process without premature scrutiny; (2) the release of
information under protective conditions ranging from Congress's promise
to maintain confidentiality to congressional inspection of the materials
required while they remain in executive custody; (3) the release of
requested information in expurgated or redacted form; or (4) the
release of the requested information in the form of prepared summaries.
Important, however, to the resolution of disputes along these lines
is the formation of a new operational process or arrangement. Under
this arrangement, each branch would retain the formal authority to
assert in legal proceedings what it believes to be its constitutional
prerogatives concerning the control of information. At the same time,
the arrangement would contain agreements aimed at steering negotiations
away from categorical questions of prerogative and toward the pragmatic
resolution of immediate disputes. Toward that end, an arrangement
should specify at least those interests in the control of the
information that each branch could invoke in negotiations, a commitment
to invoke those interests in highly specific terms should disputes
arise, and a commitment to explore in negotiation how the interests of
each branch would be advanced or harmed in the particular dispute by the
use of various compromise strategies attempted in the past.
The scope of the new arrangement should include both executive and
independent agencies. There is nothing in the constitutional
relationship -- as distinguished from the statutory relationship --
between administrative agencies and either Congress or the President
that suggests that labeling an agency as executive or independent yields
greater or lesser authority for the President to control agency
information or greater or lesser authority for Congress to demand
information. In addition, the arguments for and against the sharing of
information do not vary depending on the structure of the agency that
holds the information.
Congress might also consider placing in one office the responsibility
of coordinating the negotiation of disputes with the executive over
information. This would be akin to the practice of the executive branch
with respect to the Office of Legal Counsel at the Department of Justice
which stores information regarding the resolution of disputes and
provides counsel to agencies embroiled in disclosure disputes. At a
minimum, Congress ought to more regularly familiarize its members with
the information and counsel that the Office of Senate Legal Counsel and
the General Counsel to the Clerk of the House of Representatives can
provide to committees that are engaged in disputes over information.
Congress should consider alternative means for resolving particularly
controversial cases in addition to the current criminal contempt
procedures. Alternatives could range from third-party mediation to
referral to other agencies or to less draconian judicial procedures.
/1/ See U.S. v. Nixon, 418 U.S. 683 (1974) which held that the
executive has a constitionally based privilege to withhold information,
the release of which would impede the performance of executive branch
responsibilities. See also McGrain v. Daugherty, 273 U.S. 135 (1927)
which recognized a constitutionally implied power of congressional
investigation and said further that Congress need not have before it a
specific legislative purpose in order to trigger its investigative
authority.
01 CFR 305.90-7 Recommendation
1. Congress and the President should create an on-going process for
negotiating the conditions under which sensitive information /2/
in the agencies should be disclosed to or withheld from Congress.
2. This operational arrangement should seek to achieve improved
cooperation and relations between the executive and Congress.
Specifically, the executive should respect Congress's legitimate
legislative and oversight interests, including the pressure of time and
the need to have information immediately available. In return, Congress
should respect the executive's legitimate interests including, for
example, protection of confidentiality in matters pertaining to
presidential communications, national security, civil and criminal law
enforcement, personal privacy and commercial confidentiality, and the
free-flow of staff advice that might be inhibited by outside scrutiny of
deliberative documents. However, both branches should invoke these
interests only in highly specific terms and should commit themselves to
explore in negotiation how the interests of the branches could be
reconciled. In designing this arrangement, Congress and the executive
should consider adding mechanisms for dispute resolution beyond the
negotiations and discussions that currently take place.
3. Such an arrangement need not require legislation, but should be
memorialized in some fashion. Counsel of both Houses of Congress and
the Office of Legal Counsel in the Department of Justice should retain
information concerning the informal resolution of disclosure disputes.
Appropriate consideration should also be given to roles these Counsel
can play as sources of advice regarding disputes over sensitive
information.
4. In addition, Congress should consider establishing procedures for
resolving impasses over congressional access to sensitive agency
information which could be invoked to help resolve exceptional cases as
an alternative to contempt proceedings. /3/
5. No general distinction should be made between executive and
independent agencies for the treatment of contested information for
resolving disputes over sensitive information.
(55 FR 53272, Dec. 28, 1990)
/2/ Sensitive information is defined as information whose public
disclosure could compromise the capacity of the executive to discharge
its constitutional or statutory responsibilities.
/3/ An example worth consideration might be a declaratory judgment
procedure that could be invoked by Congress or the agency after the
exhaustion of informal means -- such as negotiations between the
congressional committee leadership and the agency head -- for resolving
disputes in which some type of adjudication appears unavoidable. (To
avoid constitutional problems, and any action brought by an agency under
this proposal should be filed against the congressional employee who
served the subpoena in question.) In addition, particularly
controversial cases might be referred for resolution to in camera panels
consisting of retired federal judges, members of Congress, or executive
branch officials. Other disputes might be avoided by designating an
issue of controversy for study by the General Accounting Office.
01 CFR 305.90-8 Rulemaking and Policymaking in the Medicaid Program
(Recommendation 90-8).
The Medicaid program is a joint federal/state health and long term
care insurance program for eligible poor persons in the United States.
/1/ The Health Care Financing Administration (HCFA), in the Department
of Health and Human Services (HHS), administers the Medicaid program at
the federal level. The states have primary responsibility for
implementing the Medicaid program. To participate in the Medicaid
program and receive federal financial participation in state Medicaid
expenditures, states must submit a plan to HCFA detailing how the state
will comply with federal statutory and regulatory requirements in the
design and implementation of its Medicaid program. The relationship
between HCFA and the states in the administration of Medicaid has been
complicated in recent years by the volume and complexity of
congressionally-mandated program changes and HCFA's reluctance or
inability to promulgate implementing regulations, policies, or other
guidance in a timely manner. This recommendation addresses the
relationship between Congress, HCFA and the states in the administration
of the Medicaid program and, in particular, suggests changes to promote
a more effective rulemaking and policymaking process and more efficient
implementation of rules and policies.
Since 1981, Congress has almost annually made a large number of
changes in the Medicaid program. Of primary concern is that Congress,
in annual budget legislation (often in the last days of a session), has
either made the expansion of benefits effective regardless of whether or
not HCFA promulgates implementing regulations or other guidance by a
certain date or has made the expansion effective immediately. /2/ These
provisions place a great burden on HCFA to issue rules, policies, or
other guidance at an accelerated pace and, due to this time pressure, as
well as HCFA's reluctance or inability to promulgate implementing
regulations and policies, states are often forced to implement program
changes without federal guidance. If Congress has directed states to
proceed without HCFA guidance, HCFA may still want states to proceed
according to its interpretation of the statutory policy. HCFA may issue
rules or, more likely, policy guidance on the matter. While HCFA does
promulgate legislative rules pursuant to section 553 of the APA, /3/ it
more often issues interpretative or procedural rules in its manuals for
states, such as the State Medicaid Manual. HCFA also issues policy
guidance through serially numbered program memoranda or letters, often
from its regional offices to states.
To implement congressionally-mandated program changes or HCFA rules
and policies, states must take specific steps. At the very least, they
must submit a plan amendment to HCFA that outlines how the state agency
will implement the federal policy change. HCFA must approve or
disapprove the state plan amendment within 90 days or request additional
information -- a step which starts another 90-day period on HCFA action
on the plan amendment form the time HCFA receives the information from
the state. A state may obtain reconsideration of HCFA's disapproval of
a plan amendment by HHS within 60 days and then judicial review in the
United States court of Appeals for the circuit in which the state is
located. A plan amendment which expands eligibility, services, or
payment is effective no earlier than the first day of the quarter in
which the proposed plan amendment is submitted and states may receive
federal financial participation back to that date. To protect their
rights to the federal payment under congressional appropriations
legislation for the Medicaid program, states sometimes expend funds for
expanded benefits and other program changes requiring additional funds,
upon submitting a proposed plan amendment to HCFA. However, states are
subject to HCFA-imposed penalties in certain circumstances. One such
action is a ''disallowance action'' in which HCFA retrospectively
disallows the federal payment for state Medicaid expenditures on grounds
that a particular expenditure did not meet federal requirements. In
addition, under the Medicaid quality control system, claims paid on the
basis of determinations regarding eligibility of beneficiaries that are
later found to be contrary to federal policy can be viewed as errors for
purposes of calculating the error rate penalty which reduces federal
payment to the states.
In recent years, HCFA has, as a general matter, had difficulty
promulgating its rules and policies in a timely manner. These delays
have imposed hardships on states that are required by Congress to
implement statutory changes regardless of whether HCFA promulgates
regulations. Where HCFA has failed to issue rules or policy, does not
act expeditiously on a state's plan amendment to implement a
congressionally-mandated change, or promulgates new rules or policies
strictly interpreting a legislative program change, states are at risk
of having to return the federal payment if HCFA determines that a
state's proposed plan amendment inaccurately implements the statutory
change.
Problems in HCFA rulemaking are further complicated by the persisting
dilemma of whether agency rules and policies are legislative rules
requiring section 553 notice-and-comment rulemaking procedures. In this
regard, Recommendation 76-5 of the Administrative Conference could be a
useful approach to HCFA rule and policymaking /4/ This recommendation
urges agencies to publish and seek comment on all significant
interpretative rules of general applicability before promulgation or, at
least, seek comment on such rules and policy statements after
promulgation. The use of negotiated rulemaking, based on
recommendations of the Conference, might also be useful for program
changes amenable to negotiation between HCFA and the states as well as
providers and beneficiaries. /5/
This recommendation seeks to resolve the difficulties in the HCFA
rulemaking and policymaking process which have complicated the
administration of the Medicaid program by urging HCFA to issue rules and
policy statements promptly, to complete interim-final rulemakings
without delay, to make rules and those policies readily accessible to
the public, and to refrain from penalizing states that must implement
congressionally mandated changes and have properly submitted a proposed
plan amendment.
This recommendation also urges Congress to consider the consequences
of imposing statutory deadlines on implementing statutory changes, to
console with HCFA and the states before enacting program changes, and to
allow states sufficient time to engage in appropriate rulemaking
procedures. The Conference especially urges Congress to examine the
Medicaid program's daunting complexity with a view toward making
eligibility, scope of benefits, and payment requirements more
comprehensible for beneficiaries and providers and easier for states to
administer. At present, the Medcaid statute had become unduly complex
because of the annual overlay of new statutory amendments in these
areas. A recodification of title 19 of the Social Security Act, the
Medicaid statute, is urgently needed to make the statute and the
numerous amendments enacted in the last decade more comprehensible.
In view of the complexity of the Medicaid program and the lack of
understanding among Congress, HCFA, and states, as well as provider and
beneficiary representatives, of one another's respective positions
regarding the need for statutory changes in the Medicaid program and the
difficulties in the implementation of these changes, it would be
advisable to convene a conference on rulemaking and policymaking in the
Medicaid program.
/1/ Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat.
286 (codified as amended as 42 U.S.C. 1396-1396s (1982 & Supp. V 1987).
/2/ See, e.g., Deficit Reduction Act of 1984, section 2361(d)(1),
Pub. L. No. 98-369, 98 Stat. 494, 1104 (1982 & Supp. V 1987);
Consolidated Omnibus Budget Reconciliation Act of 1985, section 9501,
100 Stat. 201, 42 U.S.C. 1396a (Supp. V 1987); Omnibus Budget
Reconciliation Act of 1986, Pub. L. No. 99-509, 100 Stat. 1984 (1986);
Medicare Catastrophic Coverage Act of 1988, section 301, Pub. L. No.
100-360, 102 Stat. 748-64; Omnibus Budget Reconciliation Act of 1989,
section 6401 et seq., Pub. L. No. 101-239, 103 Stat. 2106, 2258 (1989);
and Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508,
November 5, 1990.
/3/ In 1971, HHS announced that it would observe notice-and-comment
rulemaking procedures under section 553 of the Administrative Procedure
Act (APA), notwithstanding the exemption in section 553(a)(2) for rules
concerning government benefits.
/4/ ACUS Recommendation 76-5, Interpretative Rules of General
Applicability and Statements of General Policy, 1 CFR 305.76-5.
/5/ ACUS Recommendations 82-4 and 85-5, Procedures for Negotiating
proposed Regulations, 1 CFR 305.82-4, 85-5.
01 CFR 305.90-8 Recommendation
01 CFR 305.90-8 A. Recommendations to HCFA
1. When Congress makes any changes to the Medicaid program, HCFA
should act promptly to issue rules, policies, and other guidance
implementing such changes. Insofar as resource constraints necessitate
making choices about the priority in issuing rules and policies,
priority should be given to program changes which Congress has
identified for prompt implementation or where agency guidance is
particularly necessary for their implementation. /6/
2. Where HCFA finds it necessary to promulgate an interim final rule
to implement Medicaid program changes, HCFA should permit a subsequent
comment period and should avoid delays in publishing its response to the
comments and any modification of the rule. /7/
3. HCFA should ensure that all rules and policies affecting the
administration of the Medicaid program -- whether promulgated pursuant
to section 553 of the APA or issued in the form of manuals, program
memoranda, or letters to states -- are readily available to the public
at convenient locations. /8/ HCFA should also publish an updated list
of such materials in the Federal Register quarterly. /9/
4. (a) When Congress requires states to implement Medicaid program
changes, HCFA should not penalize states in a disallowance action or
impose an error rate penalty if the state has incurred greater Medicaid
expenditures than a subsequently issued HCFA rule or policy would
otherwise allow. This recommendation applies only where Congress
mandates that states change their Medicaid programs with or without HCFA
guidance, and where, in the absence of such guidance, a state has
submitted a state plan amendment reflecting a reasonable interpretation
of the statute to implement the change.
(b) Where HCFA issues rules, policies, or other guidance resulting in
a program change, it should provide a reasonable grace period (in which
penalties are not imposed for noncompliance) to enable states to comply
with the new HCFA requirements. This recommendation does not apply
where such guidance, in essence, only tracks the statutory language. As
a general matter, HCFA should avoid retroactive program changes.
/6/ ACUS Recommendation 87-1, Priority Setting and Management of
Rulemaking by the Occupational Safety and Health Administration, 1 CFR
305.87-1, offers several suggestions as to priority setting and
management of the rulemaking process that may be useful to HCFA.
/7/ The Administrative Conference is currently undertaking a study of
agency use of interim final rules.
/8/ HCFA should devote greater attention to implementing its own
salutary regulation in this regard, 42 CFR 431.18.
/9/ See ACUS Recommendation 87-8, National Coverage Determinations
Under the Medicare Program, 1 CFR 305.87-8 and Recommendation 89-1, Peer
Review and Sanctions in the Medicare Program, 1 CFR 305.89-1.
01 CFR 305.90-8 B. Recommendations to Congress
1. In view of the Medicaid program's daunting complexity with regard
to eligibility, scope of benefits, and payments to states and providers,
Congress should seek to simplify and clarify these program areas in the
Medicaid statute, so far as practicable, to make the program more
comprehensible for beneficiaries and providers and easier for states to
administer. Before enacting changes in the Medicaid program, Congress
should consult with all parties (particularly HCFA and the states)
knowledgeable about the complexities of implementing proposed program
changes. Congress should avoid reliance on last-minute budget
reconciliation negotiations to make major Medicaid program changes
without having first obtained a clear understanding of how HCFA and the
states can implement these changes.
2. Before establishing statutory deadlines for implementing
legislative changes in the Medicaid program, Congress should consider
whether such deadlines allow HCFA and the states adequate time to
promulgate the requisite rules or policies and to take other necessary
steps for their proper implementation. Where Congress mandates a
complex program change to be implemented at the state level, it should
allow states reasonable time to make necessary adjustments (e.g. state
legislative action or state rulemaking procedures) before the changes
become effective.
(55 FR 53273, Dec. 28, 1990)
01 CFR 305.91-1 Federal Agency Cooperation with Foreign Government
Regulators (Recommendation No. 91-1).
If American administrative agencies could ever afford to engage in
regulatory activities without regard to the policies and practices of
administrative agencies abroad, the character and pace of world
developments suggest that that era has come to a close. The substantive
problems facing agencies have parallels, to a greater or lesser extent,
in the problems facing those agencies' counterparts in foreign
countries. The policies and procedures developed by governments abroad
are likely to be of interest and benefit to American regulators, and
those developed here may be of utility abroad.
The case for international regulatory cooperation does not, however,
rest entirely on the exchange of information about the current
regulatory landscape. As the experience of certain agencies engaged in
international regulatory dialogue demonstrates, there still remain
regulatory problems to be identified and solutions, both to new and
existing problems, to be found. Particularly in areas of fast-changing
technology or fast-evolving standards and expectations, regulatory
bodies may find that they actually need, or can profitably share, the
resources of other governments in addressing common problems of
regulation and enforcement. In their continuous efforts at improving
their performance, agencies have become increasingly aware that
contemporary regulation often entails a powerful research and
development burden whose sharing may be in all regulators' best
interests.
Regulatory cooperation with foreign counterparts will also produce
advantages for regulated interests and for those affected by those
interests. Regulated entities generally prefer an orderly regulatory
environment, and more particularly one marked by a high degree of
commonality among the standards imposed by public authorities in the
various markets they serve. Costs of compliance are most obvious when
different countries impose mutually inconsistent standards on business
products or practices, particularly where the latter by their nature are
international in scope. However, even where national standards are not
mutually inconsistent, or business products or practices are not
inherently international in scope, the cumulative effect of differences
in regulatory standards may impose substantial and, in some cases,
unjustified burdens. In addition, consumers and other affected persons
have an interest in the maintenance of reasonably common protective
standards. The internationalization of business has put the need for
this kind of environment on an international scale. It accordingly
points in the direction of greater and more deliberate
intergovernmentalism in regulatory matters than one generally associates
with American administrative processes.
American agencies generally have not developed consistent practices
in their efforts at international regulatory cooperation. Such
cooperation may, in fact, take a wide variety of forms, from the casual
and unsystematic sharing of information at one extreme, to a firm
commitment to concerted regulatory action at the other. In between fall
a number of different patterns, such as regular consultations,
reciprocal participation in foreign agency rulemaking, and various forms
of joint study, research and rule development. Since harmonization does
not necessarily entail uniformity, but simply a net reduction in
regulatory inconsistencies and differences, even harmonization is a
matter of degree.
As the following recommendation seeks to make clear, agencies are not
all similarly situated with respect to the opportunities for, and
advantages of, regulatory cooperation. The functions and regulatory
objectives of a particular agency, its past experience in such
cooperation, and the feasibility of reliance on a foreign counterpart's
technical administrative, or regulatory resources are among the factors
determining whether, to what extent, and in what form that agency should
engage in such cooperation and pursue regulatory harmonization.
Moreover, an agency is likely to be more comfortable in initially
experimenting with international cooperation on a limited basis by
selected means rather than in developing at once a comprehensive,
systematic program of cooperation. Nevertheless, agencies may usefully
consider this recommendation, which is based in part on the practice and
experience of one agency, the Federal Aviation Administration, that has
consciously engaged in forms of concerted activity with counterpart
agencies abroad. This case study is of particular interest because the
FAA's practice of intergovernmentalism includes, but also goes beyond,
cooperation in rulemaking as such to include a certain amount of
cooperation in more routine aspects of administration. While this
recommendation does not address international assistance in enforcement
as such, it recognizes that an increased commonality of substantive
standards does tend to increase opportunities for mutual assistance in
the enforcement realm.
Of course, care should be taken that the spirit of compromise and
mutual consideration that ought to characterize intergovernmental
activities not adversely affect the integrity of the regulatory process.
It is important that agencies observe the procedural statutes under
which they ordinarily operate, and that their processes remain open to
public scrutiny and participation. Nor will it do, either in reality or
in appearance, for the regulatory standards an agency ultimately adopts
to be the product, pure and simple, of intergovernmental negotiations.
American agencies and their foreign counterparts work under statutory
mandates, which must remain the touchstone so far as the substance of
regulatory action is concerned. The zone of compromise within which an
agency may then operate in the interest of collegiality with
decisionmakers of other nations is necessarily uncertain but necessarily
limited. Within that zone, however, international regulatory
cooperation has a significant, possibly even a leading, role to play.
01 CFR 305.91-1 Recommendation
1. Each agency should inform itself of the existence of foreign
(including regional and international) regulatory bodies /1/ whose
activities may relate to the mission of that agency.
2. Each agency should determine whether and to what extent regulatory
cooperation with one or more foreign regulatory bodies is appropriate.
Desirable forms of cooperation may include the simple exchange of
information, coordination of regulatory objectives, consultation in
advance of rulemaking, and reciprocal participation in rulemaking
processes. Apart from general considerations of cost and staffing,
factors to be considered in deciding the importance and intensity of the
cooperative effort to be made, the forms of cooperation to adopt, and
the geographic range of foreign regulatory bodies with which to
cooperate, include:
a. The extent to which the participating regulatory agencies share
common regulatory objectives;
b. The importance of commonality, and therefore international
harmonization, /2/ in the development of regulatory policy in the
particular field;
c. The extent to which the capabilities of foreign regulatory bodies
justify the agency's reliance on their technical, regulatory and
administrative resources;
d. The opportunities that international regulatory cooperation
presents for improvement in the enforcement and administration of the
agency's program (as, for example, through mutual recognition of tests,
inspections and certifications or through mutual assistance in
information gathering and other forms of assistance);
e. The presence of existing bilateral or multilateral international
frameworks for addressing common regulatory concerns;
f. The receptivity of a given foreign regulatory body to meaningful
participation by American regulatory and private interests in its
policymaking processes; and
g. In appropriate consultation with the Department of State, the
foreign policy of the United States.
3. Even when an agency concludes that the factors set out in
paragraph 2 do not counsel substantial regulatory cooperation with
foreign governments, it should nevertheless explore the possibilities of
international cooperation in enforcement, including mutual assistance in
information gathering and, where appropriate, reliance upon foreign
tests, inspections, and certifications.
4. When an agency concludes that it has a pronounced interest in
cooperation with foreign regulatory bodies, it should consider adopting
various modes of cooperation with those agencies, including:
a. The establishment of common regulatory agendas;
b. The systematic exchange of information about present and proposed
foreign regulation;
c. Concerted efforts to reduce differences between the agency's rules
and those adopted by foreign government regulators where those
differences are not justified;
d. The creation of joint technical or working groups to conduct joint
research and development and to identify common solutions to regulatory
problems (for example, through parallel notices of proposed rulemaking);
e. The establishment of joint administrative teams to draft common
procedures and enforcement policies;
f. The mutual recognition of foreign agency tests, inspections and
certifications, to the extent that the American agency is satisfied that
foreign regulatory bodies have sufficient expertise and employ
comparable standards; and
g. The holding of periodic bilateral or multilateral meetings to
assess the effectiveness of past cooperative efforts and to chart future
ones.
5. a. When engaging in international regulatory cooperation, an
agency should ensure that it does so in a manner consistent with
national statutes and international engagements.
b. An agency engaging in international regulatory cooperation should
also be alert to the possibility that foreign regulatory bodies may have
different regulatory objectives, particularly where a government-owned
or controlled enterprise is involved.
6. To promote acceptance of and compliance with the measures that
result from its cooperation with foreign regulatory bodies, an agency
should enlist the support and participation of other affected agencies,
regulated interests, public interest groups, and other affected domestic
interests, as follows:
a. Where appropriate, agencies should, so far as considerations of
time and international relations permit, afford affected private and
public interests timely notice of any formal system of collaboration
with foreign regulatory bodies that exists and an opportunity where
reasonable to participate and comment on decisionmaking under such
system.
b. The agency should, where appropriate, also encourage the
establishment of working relations between domestic interests and their
foreign counterparts, including manufacturers, other trade and industry
interests, and consumer and other public interest groups.
c. The agency should assemble an interagency advisory group,
consisting of the Department of State and other affected agencies such
as the Departments of Commerce and Defense and the U.S. Trade
Representative's Office, if one does not exist. Each member agency of
an advisory group should, without prejudice to its independent
decisionmaking, both inform that group about the nature and extent of
its concerted activities with foreign regulatory bodies relevant to the
purposes of the group and seek that group's advice. In addition, the
Chairman of the Administrative Conference should convene a meeting of
the heads of interested agencies to discuss the need for establishing a
permanent, government-wide mechanism for organizing, promoting, and
monitoring international regulatory cooperation on the part of American
agencies.
7. Agencies should, consistent with their statutory mandate and the
public interest, give sympathetic consideration to petitions by private
and public interest groups for proposed rulemaking that contemplate the
reduction of differences between agency rules and the rules adopted by
foreign government regulators, where those differences are not
justified.
8. a. Once an agency has a program of international regulatory
cooperation with a foreign regulatory body, it should routinely advise
that body before initiating proposed rulemaking, and should seek to
engage that body's participation in the rulemaking process.
b. Conversely, the agency should see to it that it is informed of
initiatives by those foreign regulatory bodies and ensure that its views
are considered by those bodies early in the conduct of their rulemaking
procedures.
c. Where, following joint rule development efforts, an agency
ultimately proposes a rule that differs from the rule proposed by the
foreign counterpart, it should specify the difference in its notice of
proposed rulemaking and request that it be specified in any
corresponding foreign notice.
9. An agency should adopt reasonable measures to facilitate
communication of views by foreign regulatory bodies on proposed rules.
10. While international consultations of the sort described in this
recommendation do not appear to necessitate any radical departure from
an agency's ordinary practices in compliance with applicable procedural
satutes, /3/ an agency engaged in such consultations should make
reasonable efforts to ensure that affected interests are aware of them.
For example, when an agency substantially relies on those consultations
in its rulemaking (or where foreign government rules, practices or views
have otherwise substantially influenced the agency's proposals), it
should describe both the fact and the substance of those consultations
in its notices of proposed rulemaking, rulemaking records and statements
of basis and purpose under the Administrative Procedure Act. Where the
objective of harmonizing American and foreign agency rules has had a
significant influence on the shape of the rule, that fact also should be
acknowledged.
11. An agency that engages in systematic exchanges of information and
consultation with foreign regulatory bodies should seek to ensure that
domestic interests do not suffer competitive disadvantage from the
release of valuable information by those bodies to foreign private
interests. This may require that the agency seek to reach agreement
with its foreign counterparts concerning the conditions under which
information will be disclosed.
12. While harmonization of standards with foreign regulatory bodies
may be a legitimate objective of any agency whose activities affect
transnational interests or transactions (and therefore may appropriately
influence the rulemaking outcome), it should be pursued within the
overall framework of the agency's statutory mandate and with due regard
for the interests that Congress intended the agency to promote.
Accordingly, agencies should ensure that any accord informally reached
through international regulatory cooperation is genuinely subject to
reexamination and reconsideration in the course of the rulemaking
process.
(56 FR 33842, July 24, 1991)
/1/ Throughout this recommendation, the term ''foreign regulatory
bodies'' includes, where appropriate, also regional and international
regulatory bodies.
/2/ Harmonization does not necessarily imply regulatory uniformity.
It implies a reduction in the differences (including but not limited to
inconsistencies) among the regulatory standards of different
jurisdictions.
/3/ See, e.g., Federal Communications Commission v. ITT World
Communications, Inc., 466 U.S. 463 (1984) (international consultative
processes leading to informal policy understandings are not covered by
Government in the Sunshine Act); Public Citizen v. United States
Department of Justice, 109 S. Ct. 2558 (1989); Food Chemical News v.
Young, 900 F. 2d 328 (D.C. Cir. 1990); Center for Auto Safety v.
Federal Highway Administration, No. C.A. 89-1045 (D.D.C. Oct. 12, 1990)
(groups not formed by the Executive Branch are not ''utilized''
committees within the meaning of FACA).
01 CFR 305.91-2 Fair Administrative Procedure and Judicial Review in
Commerce Department Export Control Proceedings (Recommendation No.
91-2).
The Export Administration Act (EAA), 50 U.S.C. App 2401-2420,
authorizes the Commerce Department to restrict exports of goods and
technology from the United States in the interests of national security,
foreign policy objectives, and preservation of this country's access to
commodities in short supply. It is the principal element in a scheme of
export controls that emerged after World War II to serve three ends:
reduction of the domestic impact of worldwide postwar shortages of
critical goods, priority allocation of resources to rebuild Europe under
the Marshall Plan, and restriction of the access of Eastern Bloc nations
to technology useful for military purposes. Over the years, restricting
access to useful technology has become the primary goal of the EAA,
although the countries against which those restrictions are directed
have changed from time to time in the light of shifting political
considerations.
The EAA has an international aspect. The United States works with
its allies through a coordinating committee on multilateral export
controls (CoCom) to identify commodities that should be controlled as
well as countries that should be the targets of various export controls.
Using the lists thus generated, the Commerce Department is responsible,
under the EAA, for a licensing scheme involving three different
categories of licenses: (1) General licenses, which are applicable to
most export transactions and permit them to occur without specific
license applications; (2) individual validated licenses, which the
agency grants or denies based on factors including concerns about the
ostensible and the possible uses of the commodity, opposition from the
Department of Defense or State to the proposed export, available
information about the end-user, and policy determinations about the
destination country; and (3) special licenses, such as distribution
licenses and project licenses, that allow particular exporters to make
multiple exports of certain types without applying for an individual
license for each export. The Export Administration Act also contains
provisions prohibiting participation in unsanctioned foreign boycotts
and authorizes the Commerce Department both to make rules to carry out
its provisions and to enforce its provisions, including the antiboycott
provisions.
The EAA includes a provision explicitly exempting the Department's
activities from the administrative process and judicial review
provisions of the Administrative Procedure Act. As a result,
administrative licensing decisions are final and unreviewable; agency
rules implementing the EAA are subject neither to judicial review nor to
the notice-and-comment requirements of 5 U.S.C. 553, although, in the
latter respect, Congress has said that ''to the extent practicable, all
regulations imposing controls on exports * * * (should) be issued in
proposed form with meaningful opportunity for public comment before
taking effect.'' 50 U.S.C. App. 2412(b). Enforcement decisions are less
affected by the exemption, as statutory amendments in recent years have
imposed the formal hearing requirements of 5 U.S.C. 556-57 on
administrative enforcement proceedings and have authorized judicial
review of enforcement decisions according to APA standards.
Because of the broad APA exemption, the Commerce Department has
implemented the EAA with relatively little judicial scrutiny. It has
had little incentive to provide generally accessible explanations for
its actions. The EAA requires that license denials be accompanied by a
written statement including, inter alia, a statement of the statutory
basis for the denial; in practice, however, this statutory requirement
has often been met in a minimal and uninformative way. Exporters have
often been frustrated in their attempts to learn the reasons for
negative licensing decisions or to predict the outcome of future license
applications; they have also been without recourse to challenge
Commerce Department actions as arbitrary or contrary to statute.
Because legislation to reenact and amend the EAA is now pending, /1/
reexamination of the APA exemption is timely.
The APA exemption dates back to passage of the first comprehensive
export control legislation in 1949. At that time, Congress cited two
reasons for the broad exemption: first, the legislation was seen as
temporary, essentially an extension of emergency war measures, and
second, it was closely related to foreign policy and national security
concerns.
After more than 40 years, the export program gives no indication of
being ''temporary,'' albeit sunset dates in the various export control
statutes have necessitated several extensions and reenactments. Changes
in the statute incident to reenactment and evolving policy at the
Commerce Department have gradually increased access to information about
the Department's actions and public participation in policymaking.
Legislation to reenact the export controls program, passed in 1990 but
subjected to a pocket veto by the President, would also have provided
for limited judicial review of licensing decisions. But these measures
still leave the relevant procedures well short of APA standards. And
the need for such a broad exemption from APA provisions based on foreign
policy and national security considerations is not at all clear. Much
of the business conducted by the Commerce Department under the EAA is
similar to that conducted by other regulatory agencies, and the
interests at stake for potential exporters are similar to those of
regulated entities under other licensing schemes. The agency can expect
to benefit from public input in the rulemaking process just as other
agencies do. Moreover, the APA includes specific exemptions from its
rulemaking and formal adjudication provisions for agencies' military and
foreign affairs functions, which would be available to reduce the
required level of agency process when necessary, /2/ as well as an
exception to its judicial review provisions for action ''committed to
agency discretion by law.'' Other international trade and export control
statutes, which presumably have foreign affairs implications, have
operated successfully within this framework.
Increased availability of judicial review would help to ensure that
the Department complies with applicable statutory standards and
maintains a reasonable level of quality control in its decisionmaking
under the EAA. While the presence of military and foreign affairs
considerations will impel a reviewing court to give the Commerce
Department great latitude to exercise its discretion, a court could
usefully review many legal and factual issues under traditional APA
standards without interfering with the executive branch's ability to
conduct foreign policy or protect national security.
The Administrative Conference concludes, therefore, that the APA
exemption is unnecessary and should be repealed. This conclusion is in
accord with that of a recent National Academy of Sciences study on
export controls, which also urges repeal of the APA exemption. /3/
While the exemption repeal is the heart of this recommendation, the
Conference also believes that various additional actions by Congress or
the Commerce Department would be useful to enhance the benefits of
making the APA applicable. These are explained briefly below.
Judicial review: Although the Conference believes that, as a general
matter, judicial review of Commerce Department actions under the
standards of the Administrative Procedure Act is entirely appropriate,
control of exports nevertheless remains a sensitive area. Thus, it is
important to structure judicial review in a manner that will minimize
the burdens on the conduct of foreign policy and national security
affairs. Direct review in the court of appeals is appropriate here
because of the policy considerations involved, because there are not
likely to be large numbers of appeals, and because, in the case of
rulemaking, the public interest will require prompt, authoritative
determinations of a rule's validity. See ACUS Recommendation 75-3, The
Choice of Forum for Judicial Review of Administrative Action. /4/
Consolidation of review of all export control matters in a single court
of appeals would preserve uniformity in statutory interpretation and
enable the court to develop expertise in the subject matter. Because it
already enjoys some expertise in international trade and technological
issues and is likely, based on its experience with many types of
litigation involving the federal government, to be sensitive to the
government's legitimate need for discretion in implementing export
controls as well as to the interests of private parties, the Court of
Appeals for the Federal Circuit is the most appropriate court for
assignment of this responsibility.
Informal adjudications: Under the APA, Commerce Department action on
individual license applications should be treated as informal
adjudication. While formal hearing proceedings are used to make
decisions in some licensing programs administered by other agencies,
there is no indication that such procedures are required here, and the
high volume and time sensitivity of export license applications favor
retention of the existing informal approach.
Another category of Commerce Department action handled informally is
requests for advice as to the proper classification of a commodity.
These requests permit an exporter to seek guidance concerning the
appropriate category for an item on the list of controlled commodities
(because different categories entail different export restrictions) and
may be made at an exporter's option; such requests are appropriately
treated as informal agency adjudication under the APA.
The Commerce Department should increase exporters' access to
information about the decisions it makes in these informal
adjudications. Clear statements of the agency's reasons for classifying
exports in particular categories or denying licenses will both help
exporters to determine how to proceed and provide a record for judicial
review of the Department's action. Publication of those licensing and
classification decisions that may have precedential value (along with a
statement of the reasons for them) will benefit both agency and
exporters by bringing a greater measure of predictability to the
licensing process.
A special problem arises when license denials turn on classified
information. The government has a strong interest in protecting the
substance and sources of such information from disclosure, but, without
access to the information that forms the basis for a license denial, it
can be almost impossible for the exporter to evaluate whether the agency
action is correct and to challenge the denial on administrative or
judicial review. Steps should be taken to ensure that exporters (or
their counsel) have the maximum feasible access to the information
supporting the license denial and that agency staff claims that
undisclosed classified information supports a denial are carefully
scrutinized on administrative review.
Formal adjudications: Current statutory provisions already make
enforcement proceedings under the EAA (including both export control and
antiboycott enforcement proceedings) formal adjudications by
specifically applying sections 556 and 557 of the APA to those
proceedings. Deletion of the general exemption from the APA would leave
these procedures unchanged. To facilitate the consolidation of judicial
review in one court and to conform to generally sound practice
respecting administrative sanctions, /5/ the Administrative Conference
recommends one change in these enforcement procedures: that de novo
district court penalty collection proceedings be eliminated in favor of
on-the-record review in the Court of Appeals for the Federal Circuit,
and that the Commerce Department have authority to collect its own civil
penalties once the opportunity for judicial review has passed. Under
this approach, failure to pay a penalty after it has become final and
unappealable, or after the reviewing court has entered final judgment in
favor of the agency, would result in a collection action in federal
district court in which the validity and appropriateness of the order
imposing the penalty would not be reviewable. This change would also
have the effect of mooting a current controversy about whether the
conduct of administrative enforcement proceedings tolls the 5-year
statute of limitations for commencement of a district court action to
collect a civil penalty.
The Commerce Department imposes sanctions without the benefit of
formal adjudicatory procedures through the issuance of temporary denial
orders and the suspension or revocation of licenses without notice or
hearing under 15 CFR 770.3(b). Under the EAA, the Department may issue
temporary denial orders denying exporting authority without notice where
necessary to prevent an imminent violation of the EAA. Licenses may be
suspended or revoked under Commerce Department regulations whenever the
Office of Export Licensing believes that the terms and conditions of the
licenses are not being followed, or when required to implement a change
in regulatory policy.
Because these actions are taken to prevent imminent or continuing
violations of the EAA, the Conference recognizes that the Commerce
Department may need to take unilateral action. Nevertheless, when the
circumstances requiring the action are individual to an exporter or a
commodity and not, for example, related to an abrupt change in a
destination country's status, exporters should be afforded a full
opportunity to defend themselves in post-denial formal hearings.
Existing procedures for temporary denial orders provide for prompt
post-denial review, although with a full formal hearing; these existing
procedures may offer a valuable avenue for seeking emergency relief from
a denial order, but a full-scale administrative hearing should be
available at the request of the party subject to the denial order.
Concomitantly, judicial review of temporary denial orders, now governed
solely by an arbitrary and capricious standard, should include
substantial evidence review. At present, unilateral license suspensions
are reviewable only through an informal agency process like that
afforded license denials, and not at all in court. Because of their
impact on existing economic relationships, the Administrative Conference
believes suspensions grounded in the unique circumstances of a
particular exporter or validated license should be followed by full
formal procedures at the licensee's request.
Rulemaking: Once brought under the APA, Commerce Department
rulemaking under the Export Administration Act would still be subject to
the military and foreign affairs exception to notice-and-comment
procedures; not every rulemaking under EAA necessarily falls within the
terms of that exception, but some do. In recommending that the APA
apply to export control proceedings, the recent National Academy of
Sciences study proposed that section 13(b) of the EAA be retained, to
reflect Congress' belief that military and foreign affairs
considerations do not require that all EAA rulemakings fit the APA
exemption and to encourage the Department to exercise some restraint in
applying the exemption. The Conference endorses this recommendation.
The Conference also recommends that ''foreign availability
determinations,'' not specifically designated as rulemaking under the
EAA, be so treated by the Commerce Department whenever possible. Under
the Act, exports that would otherwise be restricted are permitted when
the product involved is already available to the end-user from a foreign
source. These determinations may often affect many potential exporters,
rather than just one, and provision of an opportunity for public comment
before making such a determination will enable Commerce to get a clearer
picture of the relevant considerations. The Conference's
recommendation, however, acknowledges that foreign availability
determinations may sometimes initially arise in the context of license
determinations where time is of the essence; in such cases, public
comment might be solicited after the determination rather than before.
/1/ The Act expired on September 30, 1990; the export controls
program continues in effect, however, by Executive Order issued under
authority of the International Emergency Economic Powers Act, 50 U.S.C.
1702. Executive Order 12730, September 30, 1990. Legislation to extend
the export controls program was passed by Congress in 1990 but pocket
vetoed by the President.
/2/ The Administrative Conference has previously recommended that the
military and foreign affairs exemption from APA rulemaking requirements
be restricted to apply only where there is a need for secrecy in the
interest of national defense or foreign policy. ACUS Recommendation
73-5, Elimination of the ''Military or Foreign Affairs Function''
Exemption from APA Rulemaking Requirements, 1 CFR 305.73-5 (1991).
/3/ Panel on the Future Design and Implementation of U.S. National
Security Export Controls, Finding Common Ground: U.S. Export Controls
in a Changed Global Environment (National Academy Press 1991).
/4/ 1 CFR 305.75-3 (1990).
/5/ See ACUS Recommendation 72-6, Civil Money Penalties as a
Sanction, 1 CFR 305.72-6 (1991); ACUS Recommendation 79-3, Agency
Assessment and Mitigation of Civil Money Penalties, 1 CFR 305.79-3
(1991).
01 CFR 305.91-2 Recommendation
1. Repeal of APA exemption. Congress should repeal section 13(a) of
the Export Administration Act, which exempts functions exercised under
that Act from the administrative process and judicial review provisions
of the Administrative Procedure Act (5 U.S.C. 551, 553-559, 701-706).
2. Judicial review. Congress should amend the Export Administration
Act to provide for judicial review in a single forum, the United States
Court of Appeals for the Federal Circuit, of all Commerce Department
actions (including the imposition of civil penalties) under the Act that
are reviewable by the standards of APA section 706.
3. Informal adjudications. Requests for proper classification of
proposed exports and applications for validated licenses or reexport
authorizations are appropriately treated as informal adjudications under
the APA. The Department of Commerce should make the following
improvements in the applicable procedures:
a. Whenever the Commerce Department initially denies a license
application or responds to a classification request by placing the item
in a category different from that proposed by the requester, it should
provide sufficient written explanation for its decisions to enable
applicants to understand the basis on which decisions have been reached
and to pursue internal appeals.
b. Review by the Secretary or the Secretary's delegate of staff
decisions on classification requests or license applications should be
available on request of the applicant. To the extent possible, the
decision on review at the secretarial level should be in detail
sufficient to permit others to evaluate its precedential value. The
Commerce Department should publish and index these decisions in an
appropriate manner, together with other decisions on requests for
classification and individual license applications that have possible
precedential value and any general written guidance on classification
issues.
c. To eliminate a duplicative review procedure, Congress should
repeal section 13(e) of the Export Administration Act, which provides
for limited appeals of license denials through an administrative law
judge hearing process.
d. When a license application has been denied, or has been the
subject of negative consideration or recommendations under section
10(f)(2) of the Export Administration Act, based on classified
information, the Commerce Department should adopt procedures to permit
the maximum disclosure of such information consistent with national
security and foreign policy (including, where appropriate, disclosure to
the applicant or applicant's counsel under protective order). On
administrative appeal of any license denial based on undisclosed
classified information, the Secretary (or the Secretary's delegate)
should personally review the classified information and certify that it
is properly classified and supports the action taken.
4. Formal adjudications. a. Congress should amend the Export
Administration Act to provide the right to a prompt post-denial (or
post-suspension) hearing on the record, subject to the formal
adjudication provisions of the Administrative Procedure Act, for parties
subject (1) To unilateral Commerce Department decisions to suspend or
revoke validated licenses when the suspension or revocation turns on the
specific circumstances of a particular exporter or commodity, or (2) to
temporary denial orders under section 13(d) of the Export Administration
Act. Congress should establish appropriate deadlines for the conduct of
such hearings.
b. The Commerce Department should, to the extent possible, limit the
scope of unilateral license suspensions and temporary denial orders to
the circumstances posing a threat of violation of the Export
Administration Act.
c. Congress should amend the civil penalty provisions of 50 U.S.C.
App. 2410 and 2412 to eliminate the requirement of de novo proceedings
in federal district court and provide instead that any assessment of
civil penalties is final, subject to judicial review under 5 U.S.C. 706
in the Court of Appeals for the Federal Circuit; a civil penalty
assessment that survives judicial review or becomes final without
judicial review should be enforceable by the agency in a summary
collection action in federal district court. /6/
5. Rulemaking. a. Although the military and foreign affairs exemption
of section 553 of the APA will be available to the Department of
Commerce for some of its rulemaking under the Export Administration Act,
the Conference supports the recent recommendation of the National
Academy of Sciences that Congress should retain section 13(b) of the
Export Administration Act. That section, which exhorts the Department
to provide ''meaningful opportunity for public comment'' in departmental
rulemaking ''to the extent practicable,'' plainly expresses a
congressional understanding that not all departmental rulemaking falls
within the appropriate bounds of the military and foreign affairs
exemption, /7/ and thus appropriately encourages the Department to
exercise restraint in its application.
b. To the extent feasible, the Department of Commerce should treat
foreign availability determinations under sections 5(f)(1) and 5(f)(2)
of the Export Administration Act as rulemaking within the terms of
section 553 of the APA. Where, for reasons of time or other
considerations, such determinations must be made in the context of
decisions on individual license applications, the Department should
publish the determination made with an invitation for public comment
respecting related future determinations.
(56 FR 33844, July 24, 1991)
/6/ See ACUS Recommendation 72-6, supra n. 4.
/7/ Cf. ACUS Recommendation 73-5, supra n. 2.
01 CFR 305.91-3 The Social Security Representative Payee Program
(Recommendation No. 91-3).
As part of the Social Security program, Congress has authorized the
Social Security Administration (SSA) to pay certain beneficiaries'
benefits to other persons or organizations where the Secretary
determines that payment to such a ''representative payee'' would be in
the interest of the beneficiary. 1 SSA currently pays about $20 billion
annually in social security benefits to representative payees of more
than 4 million (or about 10%) beneficiaries. Because the program has
been the subject of some concern and litigation, SSA asked the
Administrative Conference of the United States to study certain
procedural aspects of the representative payee program. While the study
was underway, Congress addressed some of the procedural issues as part
of the Omnibus Budget Reconciliation Act of 1990 (OBRA), Public Law
101-508, section 5015.
A. Rulemaking. The representative payee program operates under a
statute that for the most part paints program requirements with a broad
brush. SSA has some regulations, but many of the operating instructions
are found in the Program Operating Manual System (POMS), the agency's
internal operating manual. There are a number of issues the Conference
believes should be the subject of regulations, either because they are
not adequately addressed anywhere, or because they should be addressed
in regulations rather than only in the POMS. These issues are discussed
below. This recommendation contains specific suggestions for modifying
the procedures for appointing representative payees (see section B,
below). For a number of other issues, involving the establishment of
program criteria, the Conference takes no position on the content of the
rules, but recommends that the issues be addressed in the context of
notice-and-comment rulemaking.
First, there currently exists no clear standard for when a
representative payee should be appointed in a particular case. The
Social Security Act provides that ''(i)f the Secretary determines that
the interest of any individual under this title would be served thereby,
certification of payment of such individual's benefit under this title
may be made * * * (to a representative payee).''2 The Act does not
contain any standard for determining when appointment of a
representative payee is in the beneficiary's interest. Current SSA
regulations provide only that a representative payee will be appointed
when ''due to a mental or physical condition or due to * * * youth,'' a
beneficiary is ''not able to manage or direct the management of'' his or
her own benefits. 3 The regulations neither indicate what constitutes an
inability to manage benefits, nor what mental or physical condition must
be found. This lack of a standard requires SSA personnel to make
largely discretionary decisions that are difficult to challenge
individually or to evaluate programmatically.
While the Administrative Conference takes no position on what the
substance of a standard for representative payee appointment should be,
it believes that the promulgation of a more detailed standard through
rulemaking is important to promote the appearance and reality of
fairness and consistency in operation of the representative payee
program. 4
Second, concerns have been raised that persons interested in gaining
access to beneficiary funds may provoke SSA action to appoint a
representative payee without sufficient factual basis. Thus, a standard
should be developed for a minimum amount of evidence necessary to
trigger the initiation of procedures that could result in the
appointment of a representative payee.
Third, the Conference recommends that SSA promulgate clarifying rules
relating to eligibility to serve as a representative payee, including a
method for determining priorities where there are competing applicants
for such payee status. Although SSA has some internal guidelines for
selecting appropriate representative payees, the Conference believes
that such issues should be addressed in regulations, to provide public
participation in their development and to provide easier access to their
contents.
Finally, the question of SSA's responsibility to monitor
representative payee performance has been a subject of concern. Alhough
a court has ruled that the Constitution's due process clause requires
annual accounting by all representative payees,5 the decision's
continued applicability is not clear. 6 The Social Security Act
currently requires annual accounting by representative payees, except
certain institutions. 7 Congress in the OBRA amendments expressly
required SSA to study more stringent monitoring of ''high risk'' payees
(e.g., representative payees who are not related to the beneficiary or
who are creditors). SSA should undertake rulemaking to promulgate
procedures for monitoring representative payee performance in a manner
that will be both effective and efficient. 8
B. Procedures -- 1. Current procedures. When SSA receives
information that a particular beneficary may need a representative
payee, it seeks to gather evidence with which to determine whether the
beneficiary is incapable of managing his or her own benefits. /9/ If
SSA decides that the beneficiary is incapable, its first step is to
select a representative payee. SSA then sends what is called an
''advance notice'' to the beneficiary, informing the beneficiary that he
or she has been found incapable of managing benefits and that SSA
intends to appoint the named representative payee. The beneficiary is
allowed 10 days to respond to SSA and provide additional facts. This is
often the first notice that the beneficiary receives that appointment of
a representative payee is being contemplated. If, after receiving any
further information, SSA confirms its decision, it sends the beneficiary
notice of its ''initial decision,'' which is implemented immediately.
The beneficiary may seek ''reconsideration'' from SSA, following which
the beneficiary is entitled to a hearing before an administrative law
judge and appeal to the Appeals Council.
Under these current procedures, the beneficiary generally is provided
no notice that SSA is considering appointing a representative payee
until the agency has already preliminary decided that one is necessary
and has selected a candidate. The ''advance notice'' does not explain
the basis for the decision to appoint a representative payee. Nor is
the beneficiary given an opportunity to meet with SSA face-to-face
before a representative payee decision is implemented. While the
present procedures appear to satisfy constitutional minima,
considerations of efficiency, fairness and appearance of fairness
suggest certain modifications to these procedures.
2. Conference recommendations. The Conference recommends several
changes in the process, that, consistent with its other recommendations
involving the Social Security program, encourage increased procedural
safeguards at the beginning of the process in order to maximize correct
decisions in the early stages and lessen the need for additional
proceedings. /1/ /0/ The Conference recommends that SSA notify a
beneficiary as soon as the threshold for initiating action, discussed
above, is met, offering the beneficiary an opportunity to have an
informal face-to-face interview with an SSA claims representative. To
the extent practicable, the notice (and all other notices) should be
designed to be understandable to the beneficiary, taking into
consideration information already in the file (e.g., what language the
beneficiary understands). /1/ /1/ The notice should also inform the
beneficiary that appointment of a representative payee is being
considered, describe the standard for and basic reason(s) why it is
being considered, ask for all relevant information concerning the need
for and selection of a representative payee, and ask the beneficiary to
suggest a possible candidate. SSA should also notify the beneficiary of
any person(s) it knows to be under consideration as a representative
payee.
If, after completing its investigation, SSA decides to appoint a
representative payee, it should notify the beneficiary of this
determination, informing him or her of the right to review the evidence
and appeal. /1/ /2/ The determination then would be implemented, after
which appeal to an ALJ and the Appeals Council would be available, as it
is now. These procedures would eliminate the current opportunity for
''reconsideration'' that is provided after implementation but before the
ALJ hearing.
The rationale for these recommended procedures is that a beneficiary
should have notice and the opportunity to respond concerning his or her
alleged inability to manage benefits before the SSA has made a de facto
determination that a representative payee is required and who that payee
should be. The ability to manage benefits is not always strictly a
medical determination; it may well involve consideration of observed
behavior. Thus, it is likely that a decisionmaker who has had an
opportunity to see and talk with the beneficiary will often make a more
accurate determination of the need for a representative payee. /1/ /3/
The Conference believes that, as in the disability adjudication itself,
procedures that encourage as complete a record as early in the process
as possible offer significant advantages that far outweigh any
short-term costs occasioned by adding an earlier notice and opportunity
for a face-to-face meeting. Not only will early notice to beneficiaries
and an opportunity for personal contact with SSA allow beneficiaries to
provide any relevant information that they have at a predecisional
level, it may also give them more confidence in the process, thus
resulting in fewer appeals at later stages. Moreover, as noted above,
the opportunity for ''reconsideration'' that is currently provided after
implementation but before the ALJ hearing would no longer be required.
Under current procedures, beneficiaries are permitted to have
assistance, by attorneys or non-attorneys, in disputes over
representative payee status. However, because of the lack of formal
procedures until late in the process and, more important, the lack of an
''award'' out of which to pay attorneys, there has been little attorney
or lay assistance involvement in this program. It would thus be
especially useful for SSA to develop and provide beneficiaries with
information about legal assistance and other relevant organizations that
may be available in their areas. /1/ /4/
In situations where someone applies to replace a representative
payee, both the payee and the beneficiary should be given notice of the
possible replacement. Both should be given an opportunity to file
comments and to meet informally with SSA officials. If the
representative payee is replaced, the beneficiary (but not the payee)
should have the right to appeal the determination.
Although a beneficiary in representative payee status may apply to
have such status terminated, no procedure currently exists for
reexamining the need for a representative payee on any periodic basis.
Because there are certain types of beneficiaries for whom a
representative payee is less likely to be needed permanently (e.g.,
stroke victims, persons with reactive depression), it is in the
interests of both the agency and beneficiaries to reassess periodically
the need for representative payees for such individuals. Thus, the
Conference recommends that SSA attempt to determine which, if any, types
of beneficiaries in representative payee status ought to have their
status periodically reevaluated and provide a method for doing so.
C. Misuse of funds and restitution -- 1. Current practice.
Currently, determinations by SSA that beneficiary funds have been
misused are not appealable. This means that neither the beneficiary nor
the representative payee may challenge such determinations. Moreover,
SSA does not currently have an effective mechanism for requiring payees
who misuse beneficiary funds to return such funds to beneficiaries. /1/
/5/ SSA currently has only the options of referring cases to the
Department of Justice for criminal prosecution or requesting the
representative payee to return funds. Most cases are too small to
warrant Justice Department action, and SSA has no authority to force a
representative payee to pay restitution.
2. Conference recommendations. Beneficiaries should be permitted to
appeal an administrative determination that their benefits have not been
used properly. /1/ /6/ Representative payees should also be permitted
to appeal misuse determinations. Although they have no right to payee
status, a determination that they have misused funds will be entered
into a data bank, will prevent them from being appointed as a
representative payee in the future, and may have other negative
ramifications. These consequences suggest that more process may be due.
ACUS recommends that a determination of whether representative payee
misuse of beneficiary funds has occurred be considered an ''initial
determination,'' which triggers the right to reconsideration and, if
necessary, a subsequent ALJ hearing.
The Administrative Conference also recommends that Congress authorize
an administrative remedy that would allow SSA to (1) require
representative payees who have misused beneficiary funds to pay
restitution, and (2) impose civil monetary penalties on such payees.
Such authority would enable SSA to address the problem without burdening
the courts. /1/ /7/
The OBRA amendments made clear that, where SSA's negligent failure to
investigate or monitor a representative payee results in misuse of
benfits, SSA must make restitution to the beneficiary for any such
benefits, and then may seek repayment from the payee. /1/ /8/ The
negative impact on a beneficiary caused by misuse of his or her
benefits, however, is independent of whether any SSA negligence was
involved. Congress should authorize research on the scope, causes and
effects of representative payee misuse of benefits, and methods to ease
the resulting burden on beneficiaries, including the use of loss
underwriting arrangements.
D. Other issues. When this study was undertaken, the issue of SSA's
need to investigate representative payees before their appointment was
of major concern. The recent OBRA amendments, however, require SSA to
undertake certain investigations of potential representative payees.
For the present, those steps would appear to be adequate, but, after
sufficient time has passed, their effectiveness should be reevaluated.
In the past, where SSA has determined that a representative payee is
required, but has not found a suitable candidate, SSA has suspended
benefit payments until a payee could be found, at which time the
withheld payments would be released to that payee. In the OBRA
amendments, Congress authorized SSA to suspend payments for no more than
30 days, where direct payment would substantially harm the beneficiary.
However, where the beneficiary is legally incompetent, under the age of
15, or a drug addict or alcoholic, there is no time limit on the
suspension of benefits. The Conference believes that SSA should study
the impacts of the indefinite suspension of benefits on beneficiaries in
these groups, with the objective of making legislative recommendations
to Congress if the study suggests that time limits should exist for all
classes of beneficiaries or that suspension should not permitted at all.
In many cases, finding an appropriate representative payee is a
significant problem. SSA should take steps to ease its burden by
widening the pool of potential representative payees, and by
periodically seeking input from beneficiaries. It would be useful for
SSA to ask beneficiaries, at the time that they apply for benefits and
periodically thereafter, to designate a person whom, at that time, they
would prefer to serve as a representative payee, should one become
necessary. While such a designation would not bind the agency, in many
cases, the designation of someone whom the beneficiary thought was
appropriate could make the selection process easier for SSA and make the
beneficiary more comfortable with the representative payee. SSA also
should develop lists of national, regional and local organizations that
could serve as representative payees on a volunteer basis, and evaluate
carefully the performance of these and compensated or reimbursed
representative payees. /1/ /9/
1The term ''beneficiary'' as used in this recommendation refers to
those receiving benefits under both title II (old age survivors and
disability benefits) and title XVI (supplemental security income
payments). Those receiving benefits under this latter program are
technically referred to as ''recipients.''
242 U.S.C. 405(j)(1) (Title II). For title XVI, the provisions are
comparable. See 42 U.S.C. 1383(a)(2)(A).
320 CFR 404.2001, 416.601 (1990).
4Among the issues that might be addressed are how the specific
standard should balance interests in beneficiary autonomy versus
government beneficence, what factors should be considered in determining
whether a beneficiary's interest would be served by appointing a payee,
what should constitute inability to manage benefits, and who should be
the decisionmaker (e.g., the states in guardianship proceedings, the
state disability determination services, or trained agency lay or
medical staff). Any rule setting a standard for appointing a
representative payee should also address the question of what types of
evidence are either appropriate or necessary in making the
determination.
SSA should also itself carefully consider the education levels and
other qualifications of agency officials making determinations on
representative payee status, to ensure that such decisionmakers have the
necessary skills to apply whatever standard is developed.
5Jordan v. Schweiker, 744 F.2d 1397 (10th Cir. 1984); Jordan v.
Bowen, 808 F.2d 733 (10th Cir. 1987).
6The Jordan case was a class action, certified in 1980. The court
held that the Constitution required annual accounting for all payees.
The impact of time on the class, as well as the impact of subsequent
legislation, raises some questions concerning the case's current
applicability.
742 U.S.C. 405(j)(3).
8Such a rulemaking could address such issues as what type of
information is needed to make decisions, how often it should be reported
or collected, whether different requirements should apply to different
types of payees, and what SSA will do with the information it obtains in
terms of its internal use and public availability.
/9/ Such evidence may include state adjudications of incompetence, a
physician's opinion that a beneficiary is unable to manage benefits, or
lay evidence to that effect.
/1/ /0/ See, e.g., Recommendation No. 90-4, ''The Social Security
Disability Program Appeals Process: Supplementary Recommendation,'' 1
CFR 305.90-4.
/1/ /1/ The expectation is that there would be several form notices
with the clearest practicable wording in different languages, normal and
large type sizes, and perhaps braile.
/1/ /2/ OBRA amendments require such notice. See 42 U.S.C.
405(j)(2)(E); 1631(a)(2)(B)(x)-(xii).
/1/ /3/ The Administrative Conference has recommended that
face-to-face meetings be available in the context of medical disability
determinations. Recommendation 89-10, ''Improved Use of Medical
Personnel in Social Security Disability Determinations,'' 1 CFR
305.89-10.
/1/ /4/ The Conference has encouraged the use of nonlawyers in agency
proceedings. See Recommendation 86-1, ''Nonlawyer Assistance and
Representation,'' 1 CFR 305.86-1.
/15/ In cases where SSA has been negligent in investigating or
monitoring representative payees, SSA must make restitution to the
beneficiary. OBRA 5105(c).
/1/ /6/ Beneficiaries do have the right to use state court remedies.
/1/ /7/ See Recommendation 72-6, ''Civil Money Penalties as a
Sanction,'' 1 CFR 305.72-6; Recommendation 79-3, ''Agency Assessment
and Mitigation of Civil Money Penalties,'' 1 CFR 305.79-3. The Program
Fraud Civil Remedies Act, 31 U.S.C. 3801, authorizes the imposition of
administrative civil penalties for false claims against the government
and for certain types of false statements. However, it is not clear
whether this Act would apply to representative payee actions, and in any
even, it does not provide a remedy of restitution.
/1/ /8/ OBRA 5105(c)(1), to be codified at 42 U.S.C. 405(j)(5).
/1/ /9/ Congress has authorized the use of reimbursed representative
payees on a very limited basis. OBRA of 1990, Pub.L. 101-508, sec.
5105(a)(3).
01 CFR 305.91-3 Recommendation
1. The Social Security Administration (SSA) should devleop and
promulgate by regulations criteria for deciding the following issues:
(a) Whether apppointment of a representative payee should be made;
(b) What evidence constitutes a threshold for initiating procedures
that could result in appointment of a representative payee;
(c) Who is eligible for appointment as a representative payee and
whether the existing priorities among categories of payees should be
modified, including which payee should be selected when there are
competing payee applicants from the same category of payee; and
(d) How payee performance should be monitored and evaluated.
2. SSA should amend its procedures for appointing representative
payees for beneficiaries /2/ /0/ aged 15 and above as follows:
(a) At such time as the threshold described in 1(a)(ii) is met, SSA
should send a notice to the beneficiary that, to the extent practicable,
is in language designed to be understandable to the beneficiary. This
notice should contain the following information:
(i) That representative payee status is being considered;
(ii) A description of the standard for appointment of representative
payee;
(iii) A request that the beneficiary provide all information relevant
to the need for and selection of a payee;
(iv) An offer for the beneficiary to meet in an informal face-to-face
interview with an SSA representative;
(v) The names of any person(s) known by the agency to be under
consideration as a representative payee, and a request for suggestions
for possible representative payees, should one be determined necessary;
and
(vi) A statement that the beneficiary may be assisted by an attorney
or other person, and a list of legal aid and other relevant resources
available in the area.
(b) If, after completion of the above procedures, a determination is
made to appoint a representative payee, the beneficiary should be
notified of the basis for that determination, the name of the payee, and
the beneficiary's appeal rights. These should include the right to an
administrative law judge hearing and review by the Appeals Council, but
the currently provided ''reconsideration'' stage that precedes the ALJ
hearing could be eliminated upon implementation of this recommendation.
(c) Direct payment should continue to the beneficiary until a
representative payee appointment is effective.
3. Where a person applies to replace an existing representative
payee, SSA should give notice to the beneficiary and to the existing
payee. The notice to the beneficiary and to the payee should offer them
the opportunity to meet in an informal face-to-face interview with an
SSA official and to provide any relevant information, in writing or
orally. If the existing payee is replaced, the beneficiary should be
notified of the replacement and of his or her right to an ALJ hearing on
the decision and review by the Appeals Council.
4. SSA should attempt to determine which, if any, type of
beneficiaries in representative payee status are most likely to regain
their ability to manage or direct the management of their own benefits,
and provide a method for periodic reevaluations of their need for a
representative payee.
5. SSA should amend its regulations to provide that a decision on
whether beneficiary funds have been misused by representative payees
should be considered an ''initial determination'' appealable by either
the beneficiary or the representative payee.
6. SSA should take the following steps to facilitate the search for
approprate representative payees:
(a) At the time of application for benefits and periodically
thereafter, request beneficiaries to identify their current choice of a
representative payee who could be considered for the position, after
appropriate investigation, in the event that one may be required in the
future.
(b) Identify and use national, regional and local organizations that
offer representative payee services on a volunteer basis and evaluate
their performance in light of other representative payees.
(c) Evaluate the need for further use of organizations that serve as
representative payees on a reimbursed or compensated basis.
(d) To the extent possible, make referrals to social welfare agencies
or take other appropriate action to ensure that beneficiaries for whom
representative payees are not available are not harmed by the absence of
the social security benefits.
7. Congress should authorize SSA to use administrative adjudications
to require representative payees who have misused beneficiary funds to
pay restitution and to impose civil monetary penalties on such payees.
8. Congress should authorize research on the scope, causes and
effects of representative payee misuse of benefits, and methods to ease
the resulting burden on beneficiaries, including the use of loss
underwriting arrangements.
9. SSA should develop data and study the effect on beneficiaries of
suspending benefits when a representative payee is not available, with
the objective of making recommendations on whether there should be time
limits on suspension of payments for all categories of beneficiaries or
whether suspensions should not be permitted at all.
(56 FR 33847, July 24, 1991)
/2/ /0/ The term ''beneficiary'' as used in this recommendation
refers to those receiving benefits under both Title II (old age
survivors and disability benefits) and Title XVI (supplemental security
income payments) of the Social Security Act. Those receiving benefits
under this latter program are technically referred to as ''recipients.''
01 CFR 305.91-4 The National Vaccine Injury Compensation Program
(Recommendation No. 91-4).
The National Vaccine Injury Compensation Program (the Program),
sections 2110 et seq. of the Public Health Service Act, codified at 42
U.S.C. 300aa-10 et seq. , is a federal compensation system for permanent
injuries and deaths resulting from vaccines to prevent seven infectious
diseases of childhood (diphtheria, tetanus, whooping cough, measles,
mumps, rubella, and polio). State laws generally require that children
be immunized against such diseases for school entry.
The Program, which became effective October 1, 1988, is unique among
federal benefit programs in its organizational structure and
decisionmaking processes. It was intended to provide an alternative to
the tort system for dealing with claims of vaccine-related injury,
awarding compensation quickly, fairly, and efficiently. It was also
intended to contribute to improving immunization rates, stabilizing the
supply and price of vaccines, encouraging new and improved vaccines, and
reducing the burden and uncertainty of litigation.
Decisionmaking authority is vested in the United States Claims Court.
Claimants submit petitions for compensation to the Claims Court, and
bear the burden of proving both entitlement and the losses and expenses
to be compensated. The Secretary of Health and Human Services (HHS) is
designated as respondent. The National Vaccine Injury Compensation
Program Office in HHS (the Program Office) acts on behalf of the
Secretary and may oppose compensation in individual cases. The vaccine
manufacturer and whoever administered the vaccine are not involved as a
party to the proceedings.
Two procedural innovations in the Program are especially noteworthy.
First, determinations of eligibility and the amounts of compensation are
made by special masters employed by the Claims Court. Under current
procedures, the special master issues a judgment that is final unless
review by a Claims Court judge is requested by either claimant or
respondent. Further review is available in the United States Court of
Appeals for the Federal Circuit.
Second, the Act contains a Vaccine Injury Table, which defines the
injuries compensable under the Program. This was a policy decision by
Congress, intended to avoid controversy over what disabilities were in
fact caused by vaccines and to expedite decisions on claims by
eliminating difficult, time-consuming disputes over causation in
individual cases. /1/ Nevertheless, disputes over whether particular
injuries qualify for compensation have sometimes proved time-consuming,
even though the Table is accompanied by ''Qualifications and Aids to
Interpretation.'' Moreover, in cases of injury, determining the amount
of compensation can be difficult and time-consuming because of the need
to take into account the net present value of actual unreimbursable
expenses for medical, rehabilitative, and custodial care, actual and
anticipated lost earnings, and actual and projected pain and suffering.
Paragraphs 2, 3, and 4 address these issues by suggesting that Congress
consider whether further clarification would be appropriate, and by
recommending development of guidelines that may be used by the Claims
Court and the parties. Paragraph 5 suggests study of ways to minimize
transaction costs in administering awards under the Program.
The Department of Justice has recently taken steps to speed the
processing of vaccine cases by increasing the Assistant Attorney
General's settlement authority and modifying its settlement review and
approval procedures. /2/ Paragraph 6 encourages continued review of the
appropriate level of such authority.
No one administrative agency is charged with the duty of interpreting
the enabling legislation or issuing general regulations. The Advisory
Commission on Childhood Vaccines is empowered to advise the Secretary of
HHS on Program implementation. The Secretary may revise the Vaccine
Injury Table, but has no authority to impose decisionmaking rules on the
United States Claims Court. The Secretary was also required to develop
and disseminate vaccine information materials, including a summary of
the availability of the Program, not later than December 22, 1988. /3/
Claimants may seek compensation under the Program regardles of when
the injury occurred. However, the starting date of the Program, October
1, 1988, serves as a line of demarcation between two somewhat different
sets of rules and remedies. Claims based on immunizations prior to that
date -- ''retrospective cases'' -- may not have received an award based
on a judgment or settlement in a civil action. Awards in retrospective
cases are paid out of a limited fund specially authorized by Congress.
For injuries arising from immunizations on or after October 1, 1988
-- ''prospective cases'' -- no civil action may be filed unless the
claimant has filed a claim under the Program and received and rejected a
determination under it. For such cases, the Program is a ''first
resort,'' but not an exclusive source of compensation. Awards for
prospective cases are paid from the Vaccine Injury Compensation Trust
Fund supported by a tax on covered vaccine sales. The Act tolls the
statute of limitations governing the civil action until a final judgment
is issued on the petition. This tolling provision was intended to
preserve a petitioner's right to commence a civil action after the
petitioner has exhausted the remedies under the Act. However, because
the petitioner has 90 days to accept or reject a final judgment by the
Claims Court or the Court of Appeals, the immediate end to the tolling
upon final judgment might operate to extinguish an unwary petitioner's
right to commence a civil action. Paragraph 7 would remedy this
anomaly.
Under the Act, as amended, a final deadline of January 31, 1991, was
set for filing claims in retrospective cases. More than 3000 cases were
filed in the 5 months preceding this deadline, the vast majority of them
retrospective. The large number of filings during this period has
created an unusual burden on the Program that can be expected to
dissipate in the next few years, as a more regular pattern of filing
claims develops. However, a special response, as suggested in paragraph
8, is warranted to ease the temporary burden of deciding these
petitions. Measures suggested include a temporary increase in staffing,
with funding to support the additional positions. /4/ Paragraph 9 is
intended to address the possibility that there will be sufficient
funding due to the substantial number of retrospective cases that have
been filed; under the statute the Program would cease to be in effect
if there are insufficient funds to pay all of the claims payable for 180
days.
The Claims Court has used teleconferencing successfully in connection
with the Program. Congress may find it useful to study this experience
and to consider the possible use of the technique in other proceedings.
Finally, we note that section 2117 of the Act grants the Trust Fund
the right of subrogation for compensation paid under the Program. The
Departments of Health and Human Services and Justice should continue to
be alert to appropriate opportunities to pursue this course.
/1/ The Act also allows for compensation if a petitioner can prove
that an injury was actually caused by a covered vaccine, even if the
specific injury is not listed in the Table.
/2/ See 56 FR 8923 (March 4, 1991).
/3/ A proposal was published at 54 FR 9180 (March 3, 1989), but the
final version has not been published as of the date of this
recommendation.
/4/ Congress should consider the effects on the Program if money in
the Vaccine Injury Compensation Trust Fund is used for this purpose.
Currently, section 6601(r) of the Omnibus Budget Reconcilation Act of
1989, Pub. Law No. 101-239, 103 Stat. 2293, authorizes separate
appropriations of funds to HHS, Justice and the Claims Court (for FY
1990 and 1991) from the Trust Fund.
01 CFR 305.91-4 Recommendation
1. The National Vaccine Injury Compensation Program Office in the
Department of Health and Human Services, in consultation with the
Advisory Commission on Childhood Vaccines, should continue to explore
additional effective ways and take appropriate steps to disseminate
information nationally about the Program, including eligibility and
documentation requirements and filing deadlines for petitions, to ensure
that affected persons are aware of the available legal remedies and to
help them identify necessary supporting information.
2. To simplify the process of determining eligibility, Congress
should examine whether further clarification is needed of the
''Qualifications and Aids to Interpretation'' applicable to the Vaccine
Injury Table, which are set forth in section 2114(b) of the Act to
explain the symptoms and conditions to be considered evidence of an
injury described in the Table. /5/
3. The Advisory Commission on Childhood Vaccines should develop
uniform guidelines, such as discount rates for the value of medical and
other services to be purchased in future years, for calculating the net
present value of specific elements of compensation to be awarded to
petitioners. Such guidelines may be used to compute the amount of
awards promptly and consistently in similar cases. The guidelines
should be reviewed at least annually to ensure that they remain
consistent with reasonable estimates of future economic performance.
4. The Advisory Commission on Childhood Vaccines should also consider
developing guidelines for the total amount of compensation payable and,
where appropriate, for individual elements of compensation, in light of
evolving case law and experience with the alternative dispute resolution
process used by the Claims Court. The guidelines should provide for
appropriate variations on the basis of age, severity of injury,
intensity of services, and other relevant factors. The guidelines
should present a range of values in each category, with flexible
ceilings and floors, to accommodate special circumstances.
5. The Department of Health and Human Services and the Advisory
Commission on Childhood Vaccines should study the current use of brokers
to provide structured settlements, and should explore alternatives that
will decrease transaction costs that result in reducing the funds
available for awards to plaintiffs.
6. The Department of Justice should continue to examine the
appropriate level of approval authority and dollar limit for settling
vaccine injury cases, taking into account the magnitude of awards
actually made under the Program, to reduce delay in obtaining final
approvals.
7. Congress should amend section 2116(c) of the Act to stay the
statute of limitations governing civil actions for personal injuries
arising out of a vaccination covered by the Act until the date that the
petitioner files an election, or is deemed to file an election, pursuant
to section 2121 of the Act, accepting or refusing to accept the
judgment.
8. Congress should take the following steps to reduce the burdens
placed upon the Program by large fluctuations in the numbers of
petitions filed:
(a) Congress should delete section 2121(b)(2) of the Act, as added by
the Vaccine and Immunization Amendments of 1990, which withdraws
jurisdiction over any petition that is not decided within the time
required by the Act.
(b) Congress should amend section 2112(d)(3) of the Act, as amended
by the Vaccine and Immunization Amendments of 1990, to permit the chief
special master to extend the time for deciding petitions filed in
retrospective cases for up to 2 years, in addition to the 240-day time
limit plus all other extensions and suspensions currently permitted,
when the chief special master determines that the number of filings and
resulting work load require such action in the interest of justice.
(c) Congress should amend section 2112(c)(1) of the Act to increase
substantially the authorized maximum number of special masters to handle
the temporary burden of decisionmaking in retrospective cases. Congress
should also authorize additional funds for a limited time period to
support these positions, as well as increased staffing needed within the
Program Office and the Department of Justice.
9. Congress should address the potential consequences if there were
to be insufficient funding for the Program, in view of section 323(b) of
Public Law 99-660, 100 Stat. 3784, which provides that the Program
shall cease to be in effect if there are insufficient funds to pay all
of the claims payable for 180 days.
10. Congress should extend the January 1, 1992 deadline for the
Secretary of Health and Human Services to report the results of the
evaluation of the Program required by section 6601(t) of the Omnibus
Budget Reconciliation Act of 1989, Public Law No. 101-239, 103 Stat.
2293, until the temporary burden of retrospective cases in substantially
reduced, because inclusion of information with respect to these cases is
essential to a useful evaluation of the Program.
(56 FR 33850, July 24, 1991)
/5/ Congress may also wish to consider any relevant information from
the studies performed by the Institute of Medicine of the National
Academy of Sciences pursuant to Pub. L. 99-660, 100 Stat. 3779,
312,313.
01 CFR 305.91-5 Facilitating the Use of Rulemaking by the National
Labor Relations Board (Recommendation No. 91-5).
The National Labor Relations Board (the Board) has formulated policy
almost exclusively through the process of administrative adjudication
despite having been granted both rulemaking and adjudicatory power in
its statutory charter more than half a century ago. Even as rulemaking
eclipsed adjudication as the preferred method of policymaking among
major federal agencies, the Board steadfastly relief upon the
quasi-judicial approach.
The appropriateness of agency discretion to choose between rulemaking
and adjudication to determine policy has been widely acknowledged. In
the last several decades, however, the use of rulemaking in major
federal agencies has grown and a body of commentary and judicial opinion
has encouraged and approved this trend. Agency power to use rulemaking
authority to resolve by general principle issues that recur in
adjudicatory hearings has been broadly asserted and approved. Gains in
administrative efficiency through the use of rules have been frequently
seen as outweighing the benefits of incremental policymaking through
case-by-case consideration. Controversy, then, has centered on the
Board's insistence on adjudication as virtually the only means for the
development of policy and on the practical implications this has had for
the Board's accomplishment of its regulatory mission.
The type of decisionmaking engaged in by the Board has implications
for the type of data gathered by the Board and the openness of
policymaking. Policy formulated in the context of case-by-case
adjudication is based solely upon the argument and evidence that the
parties to the proceeding offer. Rulemaking, however, offers broader
opportunity for public participation and more meaningful notice to
affected parties of potential changes in regulatory standards.
In addition, the choice between rulemaking and adjudication may
affect the clarity and stability of the particular policy involved. In
general, rulemaking provides greater clarity in the identification of a
decision as a policy choice and requires that agency policy not be
changed without a process focused on the policy choice. Where bright
line rules are helpful and feasible, this may be an important
consideration. Rulemaking also can resolve more efficiently important
policy choices that would require a series of adjudications over a long
period of time; thus, it can promote efficient enforcement of agency
policy. Moreover, rulemaking enables the Board to set its policymaking
agenda internally and directly with a view toward enforcement needs,
rather than depending on the issues presented in cases that parties
choose to press.
Despite its historical reluctance to formulate policy through
rulemaking, the Board announced in 1987 its intention to initiate a
rulemaking proceeding to determine bargaining units in health care
facilities. 1 The Board's choice of this subject for its first major
substantive rulemaking is inextricably intertwined with the agency's
struggle with it for almost 15 years. The Board gave two rationales for
its decision to use rulemaking. First, the Board believed that there
would be value in obtaining from affected parties empirical data on the
effect on labor relations of unit configuration in the health care
industry. Second, the Board acknowledged the longstanding criticism of
its reluctance to use rulemaking as a policymaking vehicle and concluded
that rulemaking, though perhaps time consuming at the outset, might
prove valuable over the long-term in terms of the predictability and
efficiency of determinations of viable bargaining units in the health
care industry.
While the notice-and-comment procedures of section 553 of the APA
require only an opportunity for written comments on the proposed rule,
the Board decided to hold four public hearings around the country to
receive oral and writtem comments, and to permit limited
cross-examination. The Board provided for greater public participation
than was strictly required because it desired to assure affected persons
that there would be the fullest opportunity to participate as the Board
undertook a new method of policy formulation. In addition, the Board
was concerned that without oral testimony and cross-examination, it
would receive (through written comments) only the kind of legal
arguments that it traditionally heard in adjudications. A final rule
was adopted on April 21, 1989. Judicial review was sought by the
American Hospital Association (on the grounds that the rule exceeded the
Board's statutory authority, the Board was required by statute to make
unit determinations on a case-by-case basis, and that the rule was
arbitrary and capricious). 2 The Supreme Court ultimately upheld the
rule.
The Conference has examined the Board's ''experiment'' with
rulemaking. Putting aside the particular legal issues yet unresolved in
the ''test'' case before the courts, it seems clear that the proceeding
accomplished the major putative purposes of rulemaking. First, the
Board accumulated and utilized an enormous volume of empirical data that
had not been available to it in previous adjudications. Second, the
process provided a degree of openness and broad-scale participation
unmatched by traditional Board proceedings (even in those few
adjudications where amici are invited to an oral argument). Third, the
product of the rulemaking is a model of clarity as expression of policy
in an area historically marked by excessive subtlety and complexity.
Finally, the rule, if upheld, promises a degree of stability for a
policy area that had been overwhelmed by change.
It cannot be said, however, that the Board's choice to use rulemaking
represents a broad new commitment to formulating national labor policy
by this means. This rulemaking was an exercise in pragmatism -- a
thorough, careful, and productive administrative response to a
particular set of circumstances. Nevertheless, the rulemaking gives the
Board experience upon which it can build. This recommendation, while
recognizing that the Board will justifiably continue to make policy
through adjudication, suggests steps to facilitate further rulemaking by
the Board. These steps include publishing standard rulemaking
procedures, identifying subjects that are appropriate for rulemaking,
and amending the National Labor Relations Act to include a provision
that (following previous Conference recommendations) specifies an
appropriate procedure for judicial review of Board rules.
152 FR 25,142 (1987).
2The U.S. District Court for the Northern District of Illinois found
the rule unlawful and granted a permanent injunction against its
enforcement. The U.S. Court of Appeals for the Seventh Circuit reversed
the district court decision. The Supreme Court granted certiorari and
issued an unanimous decision upholding the Board rule and recognizing
the Board's broad rulemaking powers under 6 of the National Labor
Relations Act. See 111 S. Ct. 539 (1991).
01 CFR 305.91-5 Recommendation
1. The National Labor Relations Board should supplement its practice
of policymaking through case-by-case adjudication by continuing to use
its general rulemaking authority in appropriate situations.
2. To facilitate the rulemaking process, the Board should take the
following steps:
01 CFR 305.91-5 (a) Rulemaking Procedures
The Board should publish rulemaking procedures that conform to the
informal rulemaking procedures of the Administrative Procedure Act.
These procedures should not require oral hearings or other procedures in
addition to notice and the opportunity for comment, as a general matter,
although such additional procedures may be useful for particular
rulemakings. 3
3See ACUS Recommendation 76-3, ''Procedures in Addition to Notice and
the Opportunity for Comment in Informal Rulemaking,'' 1 CFR 305.76-3
(1990).
01 CFR 305.91-5 (b) Idenfication of Subjects for Rulemaking
To assist the Board in identifying manageable and timely subjects for
which rulemaking might be appropriate, it should consider, among others,
the following factors:
(i) The need for submissions and information, including empirical
data, beyond that normally available through adjudication.
(ii) The value of participation by affected persons beyond the
parties likely to participate in adjudication, with particular attention
to possible reliance on prior policy and the breadth of impact of a new
policy.
(iii) The need to establish policy promptly in new areas of
responsibility or for new enforcement initiatives.
(iv) The opportunity for stabilizing policy in the particular subject
area.
(v) The likelihood that future litigation and enforcement costs may
be lessened if a readily applicable rule is developed.
(vi) The need to achieve control over the subject and timing of
policy review and development.
01 CFR 305.91-5 (c) Existing law
The Board should develop a policy to govern situations in which the
subject of a proposed rule has already been the focus of consideration
in prior adjudicatory proceedings. The Board should seek to anticipate
enforcement issues that may arise during the pendency of the rulemaking
and possible judicial review. During the pendency of a rulemaking, the
Board and its independent General Counsel ordinarily should continue to
act under its body of precedent, but they should be prepared to depart
from precedent in individual cases where the application of such
precedent would be unfair or inefficient.
3. Congress should amend the National Labor Relations Act to confine
preenforcement review of final Board rules to a single proceeding.
Review should be authorized in the appropriate court of appeals. /4/
This authorization should include a reasonable time limit on the seeking
of preenforcement review and preclude judicial review of rules at the
enforcement state concerning issues relating to whether (a) the
procedures employed in the rulemaking were adequate, or (b) there was
adequate support for the rule in the administrative record. /5/
(56 FR 33851, July 24, 1991)
/4/ See ACUS Recommendation 75-3, ''The Choice of Forum for Judicial
Review of Adminstrative Action,'' 1 CFR 305.75-3 (1990).
/5/ This is not meant to limit parties' ability, at the enforcement
stage, to challenge a rule as arbitrary and capricious as applied. See
ACUS Recommendation 82-7, ''Judicial Review of Rules in Enforcement
Proceedings,'' 1 CFR 305.82-7 (1990).
01 CFR 305.91-6 Improving the Supervision of the Safety and Soundness
of Government-Sponsored Enterprises (Recommendation No. 91-6).
The federal government has established and chartered numerous
''government-sponsored enterprises'' /1/ (GSEs) to facilitate the flow
of credit to certain categories of borrowers, such as homebuyers,
farmers and students. GSEs do this by raising funds in the capital
markets to make or purchase loans or by guaranteeing securities based on
pools of loans. GSEs share many attributes of private companies: they
are privately owned, sell stock, are generally profit-making
institutions, and are exempt from federal civil service, procurement and
appropriations restrictions. However, they also share many
characteristics of public institutions. They usually have some
government-appointed directors on their boards; they have charters that
preempt some state laws and exempt them from many taxes; and, for many
of them, the federal Treasury is statutorily authorized to invest in
stated amounts of their securities. Moreover, their obligations and
mortgage-backed securities are implicitly (but not explicitly)
guaranteed by the federal government, thus raising the value of these
securities while creating at least some risk for the taxpayers by virtue
of the implicit guarantees of almost one trillion dollars in the
aggregate.
In July 1989, the Administrative Conference began a study of the
structures and procedures employed by the government to oversee the
safety and soundness of these institutions. /2/ During the pendency of
the study, numerous other legislative and executive branch studies of
the operations of the GSEs have been completed. /3/ The Conference has
been informed by all of these studies in its consideration of this
recommendation and it recognizes the desirability of the current
examination of these institutions. In so saying, the Conference wishes
to make clear that it implies no special concern about the financial
condition of any of these entities -- indeed, the studies concluded that
they pose no imminent financial threat. But in the past some GSEs have
encountered financial difficulties, and concerns have been raised about
the capital adequacy of some GSEs and their possible vulnerability to
economic downturns. Accordingly, it is prudent to ensure that adequate
federal supervisory mechanisms are in place before, rather than after,
they might be needed.
At present, three federal agencies are responsible for overseeing the
major GSEs: The Farm Credit Administration (which supervises the Farm
Credit System and the Federal Agricultural Mortgage Corporation (Farmer
Mac)), the newly-created Federal Housing Finance Board (which oversees
the Federal Home Loan Bank System), and the Department of Housing and
Urban Development (which oversees the Federal National Mortgage
Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation
(Freddie Mac)). One major GSE, the Student Loan Marketing Association
(Sallie Mae), has no overseer.
The general consensus among the various studies of GSEs is that
additional oversight of GSE risk-taking and capital levels is needed.
With respect to regulatory organization or procedure, the studies
recognize the need for a better system of monitoring to ensure that the
federal government obtains timely information on the risks undertaken by
GSEs. They also urge that each GSE be subject to effective federal
supervision, including appropriate enforcement authority, and generally
recommend the primacy of safety and soundness regulation over program
regulation. Indeed, the General Accounting Office has suggested the
centralization of the financial supervision of all enterprises in a
single (existing or new) agency. /4/
Although the Conference does not have an opinion on what would
constitute the optimum structure, /5/ it does feel strongly that however
the regulatory authority is organized, the agency or agencies should be
given adequate supervisory authority and enforcement tools to do the
job. Several of the studies reference the bank regulatory model as a
suitable starting point for designing an effective system of government
oversight. /6/ If the banking regulatory model were applied, some
modifications would be appropriate. Most importantly, for those GSEs
with low risk profiles, a less intrusive, more streamlined oversight
process would be appropriate -- including assessment of management
quality and operations risk and use of computerized financial models to
examine credit and interest rate risk. Because capital would be
adequate and risks low, the supervisory agency would not become involved
in management decisions of the GSE.
At least several of the GSEs would seem to be likely candidates for
such streamlined oversight. As an institution's risk profile worsened,
however, or if factors develop that prevent effective use of this
process, then more intensive financial examination might be invoked. If
an institution's risk profile worsened even further, then appropriate
enforcement powers, including the authority to issue capital directives
and cease-and-desist orders, would be available. Similarly, the
supervisory agency would have authority to reorganize the affairs of a
failing institution and thereby reduce the chance that losses might be
compounded.
It would be helpful for the GSEs as well as the public to have a
better sense of the applicable supervisory objectives and standards as
they develop. Thus, the supervisory agencies should promulgate such
guidelines through notice-and-comment rulemaking.
The Conference recognizes that GSEs are undergoing the study and
scrutiny their importance warrants. This recommendation is an attempt
to add a procedural, comparative framework to executive and legislative
proposals for strengthening their oversight.
/1/ A Government-sponsored enterprise is a privately owned,
federally-chartered financial institution with nationwide scope and
specialized lending powers that benefits from an implicit federal
guarantee to enhance its ability to borrow money. See Stanton,
Administrative and Legal Aspects of Federal Supervision of Safety and
Soundness of Government Sponsored Enterprises, Report to the
Administrative Conference (May 1991) at 3 (hereinafter, Stanton Report).
/2/ Stanton Report, supra note 1.
/3/ Congressional Budget Office, Controlling the Risks of
Government-Sponsored Enterprises (April 1991); General Accounting
Office, Government-Sponsored Enterprises -- The Government's Exposure to
Risks, (GAO/GCD -- 90-97) (August 1990); General Accounting Office,
Government-Sponsored Enterprises: A Framework for Limiting the
Government's Exposure to Risks (GAO/GCD -- 91-90, May 1991); Office of
Management and Budget, Budget of the United States Fiscal Year 1991,
Chapter VI, pp. 231-255; Treasury Department, Report of the Secretary
of the Treasury on Government-Sponsored Enterprises (May 1990);
Treasury Department Report of the Secretary of the Treasury on
Government-Sponsored Enterprises (April 1991).
/4/ 1990 GAO report, supra note 2 at 107, and 1991 GAO report at 4,
47-57.
/5/ The Conference wishes to emphasize that the GSEs studied are not
fungible entities. Each has its own particular characteristics, and any
regulatory scheme should be implemented with this in mind.
/6/ See, e.g., the 1990 GAO report, supra note 2 at 4, 104, and the
1991 Treasury report, supra note 2 at 10. Congress has already provided
that the Farm Credit System is supervised by an agency with the
institutional capabilities and range of administrative authority and
enforcement powers available to bank regulators.
01 CFR 305.91-6 Recommendation
The Conference recommends that the following principles should apply
to federal supervision of safety and soundness of government-sponsored
enterprises (GSEs):
1. Institutional capacity. Each GSE should be supervised for safety
and soundness by a federal agency. Any federal agency responsible for
supervising safety and soundness of one or more GSEs should be funded so
that it is capable of overseeing the activities of often large
institutions involving great numbers of often complex transactions.
2. Administrative authority and enforcement powers. A federal agency
responsible for supervising GSE safety and soundness should have the
express authority to (a) Examine financial condition (including
collecting such financial information as may be desirable) and
risk-taking by the institution, (b) set and enforce effective
risk-related and minimum capital requirements, (c) enforce necessary
safety and soundness measures with cease-and-desist orders and other
enforcement powers available to financial regulators, and (d) reorganize
the affairs of a failing institution.
3. Supervision. A federal agency responsible for supervising GSE
safety and soundness should obtain prompt and timely information and
develop and maintain risk ratings of each GSE it supervises. Only if an
institution's risk profile is significant should the agency extend its
involvement to management issues, as necessary to protect the financial
integrity of the GSE.
4. Promulgation of guidelines. A federal agency responsible for
supervising GSE safety and soundness should, to the extent feasible,
develop guidelines for invoking its supervisory and enforcement powers.
These guidelines should be promulgated through notice-and-comment
rulemaking.
(56 FR 33852, July 24, 1991)
01 CFR 305.91-7 Implementation of Farmer-Lender Mediation by the
Farmers Home Administration (Recommendation No. 91-7).
The Farmers Home Administration (''FmHA'') is charged with serving as
a temporary source of supervised credit and technical support to help
rural Americans improve their farming enterprises, housing conditions,
and other business endeavors until they are able to qualify for private
sector resources. During the 1980s, an economic downtown seriously
affected the agricultural sector and led FmHA, as a lender of last
resort, to increase its loan portfolio. As the decline continued, FmHA
and other lenders began more frequently to exercise their rights to
accelerate loans and foreclose. Several midwestern states' legislatures
responded to these economic (and resultant social) conditions by
creating mediation programs, some of which required financial
institutions to mediate prior to foreclosure if the borrower opted to do
so. FmHA generally declined to participate in these programs or to
restructure loans in connection with mediations.
In 1988, Congress passed the Agricultural Credit Act, a broad attempt
to deal with problems related to farm debt. Among other things, the Act
sought to encourage lenders to restructure loans when doing so would be
in the government's interest and would help keep the farmer on the farm.
The Act also provided for matching funds from FmHA for state mediation
programs that were certified to meet prescribed standards. It further
required FmHA to participate in such state mediation programs, and to
make ''a reasonable effort'' to contact creditors and encourage them to
take part in a restructuring plan. In carrying out this last
requirement, FmHA has provided that delinquent borrowers in all states
will routinely be offered a chance to participate in a voluntary meeting
of creditors, chaired either by a mediator or a ''designated FmHA
representative,'' and has contracted for mediation services in many
states that lacked mediation programs.
FmHA has found this venture into mediation to be cost effective.
FmHA's approach to mediation pursuant to the Act has been quite diverse,
however. This is due in significant part to differences among the
certified state programs, but also to the diversity of approaches among
the mediation providers in non-certified states, variations in local
conditions, dissimilarities in the attitudes of FmHA state directors
towards mediation, and varying enthusiasm of other creditors, including
some federal agencies. Given the size and diversity of the farm credit
program and the speed with which the Act was implemented, this is hardly
surprising. On the whole, the Act's mediation provisions appear to have
begun to restore frayed communications between numerous farmers and
lenders, assisted many farm families to avoid crises, and avoided
foreclosure in a large number of cases. Still, administering these
statutory provisions has not been free of problems.
In many cases, mediation has occurred too late to produce successful
outcomes. The FmHA, at present, is unable to report accurately on the
numbers of mediations conducted in either the certified or noncertified
states. As stated above, FmHA has sometimes had difficulty in securing
satisfactory participation of non-FmHA creditors, including many that
are part of the Farm Credit System, and, in some areas, agencies such as
the Federal Deposit Insurance Corporation, Internal Revenue Service,
Resolution Trust Corporation, and Small Business Administration.
Observers have raised concerns that borrowers in FmHA's loan guarantee
programs -- in which it guarantees loans made by banks -- may not
receive timely notice of mediation's availability.
Finally, the mediators used have taken strikingly divergent views of
their responsibilities and authority. These might be categorized
conveniently as ''broad'' and ''narrow.'' In some areas -- particularly
states with certified mediation programs -- many mediators have taken a
''broad'' approach and sought to uncover the parties' real interests and
develop responsive options. Thus, they have tried to lower barriers to
communication and to address issues, such as off-farm employment and
intra-family or interpersonal questions, important to the resolution of
difficulties between the farmer and lenders. In other regions,
especially some states where FmHA has contracted for mediation services,
neutrals have typically taken a ''narrow'' approach; this emphasizes
much shorter, more formulaic proceedings that focus almost exclusively
on whether non-FmHA creditors will adjust their debts sufficiently to
permit FmHA loan restructuring under its Debt and Loan Restructuring
System computer program (DALR$). Resort to the latter approach to
mediation may have been reinforced in some places by contracting
procedures that emphasized low bids and by some FmHA state directors'
narrow view of their mandates for restructuring under the Act. Each of
these approaches has potential advantages and disadvantages and FmHA's
openness to both is understandable, especially given that FmHA's resort
to mediation in all but the certified states has been wholly voluntary.
However, broader approaches are more likely to improve communication and
assist the parties to develop diverse solutions that will meet their
needs.
While FmHA's implementation of the Agricultural Credit Act's
farmer-lender mediation provisions has been energetic and generally
effective, the Conference recommends several steps to enhance the
likelihood that mediation will be used, and used successfully, in future
disputes.
01 CFR 305.91-7 Recommendation
1. FmHA should take steps to remedy problems associated with the
inconsistencies between the broad and narrow approaches to mediation
evidenced in farmer-lender mediation by fostering a better understanding
of the potential of the broad model of mediation in both certified state
mediation programs and FmHA contract mediation programs. To achieve
that goal, the FmHA should:
(a) Modify FmHA rules for processing delinquent loans to the extent
necessary to give FmHA representatives at farmer-lender mediations
greater discretion with respect to loan restructuring and providing new
loans. FmHA should advise its personnel, mediators, and others involved
in farmer-lender mediation that the Debt and Loan Restructuring System
(DALR$) computer program should not significantly limit the purposes of
mediation. FmHA also should encourage its county offices to initiate
mediation proceedings at an appropriately early stage in the processing
of delinquent loans.
(b) Provide additional training, including videotapes, to FmHA and
other personnel who will be connected with farmer-lender mediation
processes. Training should include approaches to mediation and
emphasize problem-solving negotiation skills.
2. FmHA should enhance its ability to manage and improve the
farmer-lender mediation program by:
(a) Ensuring that certified state mediation programs make timely,
uniform submissions concerning numbers and results of mediations.
(b) Improving the system by which FmHA collects information on
mediations conducted through FmHA state offices in noncertified states.
(c) Supporting research dealing with the conduct and short- and
long-term outcomes of farmer-lender mediations. This research should
examine economic outcomes, the extent to which mediators follow
different mediation approaches in practice, and the extent to which
varying approaches, as practiced, result in different kinds of outcomes,
levels of participation, or levels of satisfaction among the various
participants.
3. FmHA should take appropriate measures to notify parties to
guaranteed (as opposed to direct) loans of the availability of
farmer-lender mediation, without however revealing the borrowers'
identities without their consent.
4. FmHA and the Department of Agriculture should:
(a) Continue to encourage additional states to develop farmer-lender
mediation programs that can qualify to receive matching funds.
(b) Encourage full participation in farmer-lender mediation by
institutions of the Farm Credit System and all appropriate agencies of
the Department.
(c) Take steps to encourage the continuing development of a diverse,
capable cadre of available mediators, including the use of volunteers.
5. All federal agencies that may be involved in farm credit disputes,
such as the Federal Deposit Insurance Corporation, the Internal Revenue
Service, the Resolution Trust Corporation, and the Small Business
Administration, should consider the overall advantages of broad
participation in farmer-lender mediation.
(56 FR 67140, Dec. 30, 1991)
01 CFR 305.91-8 Adjudication of Civil Penalties Under the Federal
Aviation Act (Recommendation No. 91-8).
The Federal Aviation Administration is currently operating a
demonstration civil penalty program under which the FAA may impose
monetary penalties of up to $50,000 for violations of the Federal
Aviation Act or its regulations. Under the program, the FAA prosecutes
violations, proposing initial civil money penalties according to the
discretion of the prosecuting FAA official. The persons on whom the
penalties would be imposed, usually pilots, air carriers, mechanics, or
airport operators, are entitled to an administrative hearing before an
administrative law judge at the Department of Transportation, followed
by the right to an administrative appeal to the administrator of the
FAA. Judicial review is available in the federal courts of appeals.
Before the demonstration civil penalty program was enacted in 1987,
the FAA could propose civil money penalties, but such penalties could be
imposed only through a civil action brought in a United States District
Court through Justice Department attorneys.
The Federal Aviation Act also provides that violations of the Act or
the regulations may result in suspensions or revocations of certificates
of pilots, mechanics or air carriers. These cases follow a different
administrative path. While ''certificate actions'' begin with a
prosecutorial decision made by an FAA official, exercising the right to
a hearing takes the case to the National Transportation Safety Board, an
independent agency. If a hearing is requested, an NTSB ALJ holds the
hearing, with a right to appeal to the Board. Judicial review is
available in the federal courts of appeals.
In 1990, the Administrative Conference of the United States, in
Recommendation 90-1, ''Civil Money Penalties for Federal Aviation
Violations,'' recommended that the FAA administrative civil money
penalty program be made permanent, that the $50,000 ceiling on
administratively-imposed penalties be eliminated, and that the
responsibility for adjudication be studied further. In response to the
Conference's Recommendation 90-1, Congress extended the program for an
additional two years. In that legislation, Public Law 101-370, Congress
expressly asked the Conference to study and make a recommendation on the
issue of ''whether the authority to adjudicate administrative complaints
under the Federal Aviation Act of 1958 should remain with the Department
of Transportation, should be transferred to the NTSB, or should be
otherwise modified.''
01 CFR 305.91-8 Discussion
Preliminarily, the Conference reiterates its previous recommendation
that the civil money penalty program be made permanent and that the
$50,000 ceiling on administratively-imposed penalties be removed.
The issues relating to how civil penalties should be adjudicated in
the context of this program are controversial. There is no objectively
correct resolution; nor do administrative law principles clearly lead
to any single solution. Among the various (and not easily resolvable)
concerns that arise in this context are:
-- The regulated community has concerns about the fairness of
FAA's administration of the civil money penalty program, resulting from
the fact that appeals of civil penalty cases are heard by the FAA
Administrator. The consultant's study, however, found no evidence of
actual unfairness or mishandling of cases resulting from commingling
prosecutorial and judging functions under the present system.
-- The FAA is distinctive in its exercise of operational
responsibility for the air traffic control system, which makes it a
co-actor with persons or entities subject to its regulatory
jurisdiction. The consultant's report noted a continuing perception
that there is a conflict of interest between FAA as final adjudicator
and its role as overseer of the air traffic control system.
-- There is concern that cases based on similar facts being heard
in two different agencies could have the potential for inconsistent
standards and lead to forum shopping between the FAA civil money penalty
program and the NTSB certificate revocation remedy.
-- The FAA Administrator, as the Secretary of Transportation's
delegate, is the chief policy maker in the area of air safety, and is
charged with the responsibility for the safety of the national aviation
system. The Administrator therefore has a legitimate interest in having
some control over a related enforcement program.
-- The NTSB, in its role of recommending air safety improvements,
benefits from its review of enforcement cases, as an opportunity to
learn about potential safety problems in a context other than an
accident investigation.
The best resolution of the controversies associated with civil
penalty adjudication authority would be a consensual one, satisfying the
legitimate concerns of the FAA and the reasonable needs of all of the
affected interests. /1/ The Conference encourages the FAA Administrator
and the NTSB Chairman to convene and jointly host a conference with
representatives of affected public and private interests to consider
negotiating solutions for allocating adjudicatory authority over the
civil money penalty and certificate revocation and suspension programs.
The Administrative Conference is available to assist as appropriate. If
such a mutually agreeable resolution is developed in the future, the
Conference's Committee on Adjudication is available to provide comments
to Congress on the proposed solution.
Because the success of an aviation safety program ultimately rests on
voluntary compliance, improving the relationships among the regulated
communities, public representatives and the government agencies is
crucial. Representatives of the FAA and NTSB indicate that the
relationship between the two agencies is a cooperative one. To further
this cooperative spirit, the Conference recommends that, in addition to
meeting to discuss the specific issues of allocating adjudicatory
authority for the civil money penalty and certificate programs, the FAA
and NTSB should encourage long-term proposals for ways to enhance
compliance and enforcement of the Act, through discussions and
communication with the regulated community and the traveling public.
In the absence of a consensual resolution on the issue of where
adjudicatory authority for FAA enforcement cases should reside, the
Conference recommends that adjudicatory authority over a small
percentage of selected civil money penalty cases (those involving pilots
and flight engineers) be transferred to the NTSB. This recommended
solution would address several problems. It would locate both civil
money penalty and certificate authority for these cases in one forum,
eliminating the potential for forum shopping as to pilots and flight
engineers. It would eliminate perceived conflicts of interest as to
those classes of cases in which conflict is most likely between FAA
employees with operational responsibility for air traffic control and
persons subject to civil penalty authority (i.e., pilots and flight
engineers). While the unitary enforcement (rather than the split
enforcement) model is used in almost all administrative civil money
penalty programs, the FAA's distinctive role in administering the air
traffic control system is a sufficiently special characteristic to
provide plausible justification for recommending this limited expansion
of the existing split-enforcement model in this context.
This recommendation to use a split-enforcement model in this
particular situation is not to be read as a general endorsement of this
model for other government programs. Rather, it reflects the specific
circumstances involved here, including the fact that the
split-enforcement model is already in use in certificate cases, and that
the FAA has a significant operational role in air traffic control that
may result in potential conflicts of interest in cases involving pilots
or flight engineers.
Removing pilot and flight engineer cases from the FAA also conflicts
the least with comprehensive exercise of FAA safety policy authority,
given the individual character of most violations involved in these
cases. Conversely, retaining civil penalty authority at the FAA for
nonpilot and nonengineer cases, which constitute more than 75 percent of
the civil money penalty cases, presents less potential for conflict
between respondent interests and the FAA's air traffic control
responsibility. There is also greater likelihood that the problems
exposed by civil penalty actions in air carrier, airport security and
hazardous materials cases are more systemic in nature.
For those cases within the Board's authority, the Conference is
making additional recommendations. First, because a split-enforcement
model involves one agency ruling on the actions of another, the Act
should address the issue of the appropriate level of deference that
should be given in enforcement cases to the FAA's interpretations of its
rules. The Conference recommends that validly adopted FAA
interpretations of FAA regulations be deferred to, unless such
interpretations are arbitrary, capricious or not in accordance with law.
This recommendation is consistent with Recommendation 86-4, ''The
Split-Enforcement Model for Agency Enforcement.'' See also Martin v.
Occupational Safety and Health Review Commission, X U.S. X; 111 S. Ct.
1171 (1991). This does not, however, mean that NTSB should simply defer
to litigation positions of the FAA prosecutor. Id. at 1179. In
addition, the FAA should be given the authority to appeal to the Board
from adverse NTSB decisions at the administrative law judge level and to
seek judicial review in the appropriate court of appeals from decisions
of the Board. The FAA is still the chief policy making agency in the
area of aviation safety, and should have the ability to challenge
decisions it believes are inconsistent with those policies.
The merger of sanction authority over pilots and flight engineers in
one forum should provide the NTSB with increased flexibility to select
the appropriate sanction from the range of available sanctions.
However, such flexibility must operate within the bounds of FAA's
validly adopted standards and criteria for sanctions. Such criteria
may, as with all rules, be adopted through the appropriate rulemaking
procedures or through adjudications. /2/ In addition, a potential
respondent must be on notice of the range of potential sanctions for
which he or she potentially would be liable.
The Conference also encourages greater use of a variety of dispute
resolution techniques in individual cases. The Administrative Dispute
Resolution Act, Public Law No. 101-552, encourages agencies to use such
techniques where appropriate. The growing body of alternative dispute
resolution literature supports the view that efficiency gains for
everyone are available from flexible means of resolving disputes. Such
flexibility might be useful in a variety of contexts in civil money
penalty and certificate cases. The Conference specifically recommends
consideration of the utility of settlement judge procedures. /3/
/1/ The Conference held a public hearing on Wednesday, June 19, 1991,
to provide interested parties with the opportunity to present their
views on these issues. 56 FR 22693 (May 16, 1991) (notice of Conference
Committee on Adjudication public hearing). After the Conference
consultant released his draft report, he convened an informal meeting
with affected parties to explore the feasibility of a solution to the
controversy that accommodates the reasonable needs of all of the
affected interests. Participants in that meeting agreed that informal
consultation was desirable and the consultant met further with
representatives of the affected interests to discuss alternatives.
While no overall resolution was agreed to, the willingness to seek
common ground was enhanced.
/2/ See SEC v. Chenery, 332 U.S. 194 (1947); NLRB v. Bell
Aerospace Co., 416 U.S. 267 (1974).
/3/ See Conference Recommendations 88-5, ''Agency Use of Settlement
Judges,'' 1 CFR 305.88-5 (1991).
01 CFR 305.91-8 Recommendation
1. Congress should make permanent the civil money penalty program for
violations of the Federal Aviation Act (the Act) and eliminate the
$50,000 ceiling on administratively-imposed penalties. /4/
2. The question of where adjudicatory authority over certification
and civil money penalty proceedings under the Act should be placed
raises complicated policy as well as legal issues. Principles of
administrative law provide no single clear answer. The Federal Aviation
Administration Administrator and the Chairman of the National
Transportation Safety Board jointly should convene a conference with
representatives of affected interests to consider possible consensual
arrangements for allocating adjudicatory authority over the civil money
penalty and certificate suspension and revocation programs. The FAA and
the NTSB should also encourage long-term proposals for enhancing
compliance and enforcement of the Act, and for changing the procedures
to achieve the Act's objectives.
3. In the absence of consensus by the affected agencies and interests
as to where the Act's certification and civil money penalty proceedings
should be adjudicated, Congress should amend the Act consistent with the
following recommendations:
A. Authority for adjudicating civil money penalties against pilots
and flight engineers should be transferred from the FAA to the NTSB,
with all other civil penalty adjudication authority remaining at the
FAA. This recommendation is contingent on Congress' transfer of
necessary budgetary resources for this purpose to the NTSB.
B. The Act should provide that, for purposes of review of FAA
enforcement actions, courts and the NTSB should defer to validly adopted
FAA interpretations of its statutes and regulations, unless it is shown
that such interpretations are arbitrary, capricious, or otherwise not in
accordance with the law. /5/
C. The FAA should be given the right to appeal an NTSB administrative
law judge decision to the Board, and to seek judicial review of a
decision of the Board in the appropriate court of appeals.
This recommendation is directed only to this specific program and the
special circumstances involved, and should not be read as implying any
views as to the merits, generally, of the ''split enforcement'' model as
compared to the ''unitary agency'' model of adjudication in other
government programs.
4. In an NTSB adjudication under the Act, the range of possible
sanctions for violations of the Act should include certificate
revocation, certificate suspension and/or a monetary penalty, as found
by the NTSB to be appropriate and consistent with rules validly adopted
by the FAA with respect to applicable standards or criteria for the
imposition of sanctions. Notice of possible sanctions, as well as those
proposed by the FAA in a particular enforcement matter, should be
provided to the respondent upon the institution of the proceeding. The
selected sanction(s) should be set forth in the ALJ's initial or
recommended decision, together with the bases therefor, including a
reference to any applicable FAA standard or criterion for the imposition
of sanctions.
5. NTSB and FAA adjudicators, as well as FAA prosecutors, should
place greater emphasis on alternative dispute resolution in individual
cases. In particular, the FAA and NTSB, to the extent each has
adjudicatory responsibility, should consider Recommendation 88-5,
''Agency Use of Settlement Judges,'' and make greater use of the
techniques described there.
(56 FR 67141, Dec. 30, 1991)
/4/ See ACUS Recommendation 90-1, ''Civil Money Penalties for Federal
Aviation Safety Violations,'' 1 CFR 305.90-1 (1991).
/5/ See ACUS Recommendation 86-4, ''The Split-Enforcement Model for
Agency Enforcement,'' 1 CFR 305.86-4 (1991). See also Martin v. OSHRC,
X U.S. X; 111 S. Ct. 1171 (1991). This Recommendation should not be
read to suggest that deference should automatically be given to FAA
prosecutors' litigation positions. Id. at 1179.
01 CFR 305.91-9 Specialized Review of Administrative Action
(Recommendation No. 91-9).
In recent years, there has been much talk of a crisis in the federal
courts. In response, Congress empaneled the Federal Courts Study
Committee, charging it with responsibility to examine the problems
facing the courts and to develop a long-range plan for addressing them.
The Committee issued its report in April 1990, touching on many
different aspects of the problem, among them those related to judicial
review of administrative action.
The Federal Courts Study Committee specifically rejected a proposal
to divert all administrative appeals to a specialized court within the
Article III judiciary. The Committee recognized that administrative
review cases do not form a major percentage of the caseload of the
federal courts of appeals. Yet assigning jurisdiction to a specialized
court may provide more efficient or effective review for some types of
administrative cases. It, therefore, proposed diversion of some cases
now in the Article III courts to other adjudicatory bodies; in
particular, the Committee recommended creation of an Article I court to
review Social Security disability claims and perhaps, eventually, other
administrative benefit claims.
Finding the optimal structure for review of administrative cases
involves a complex balancing of various factors: the need for uniform
law versus the benefits of ''percolation'' in the decentralized
circuits; the value of expert decisionmakers versus the broader
perspective of generalists; the efficiency of specialization versus the
risk of bias that specialization entails. And the calculation can vary
in the context of different administrative programs, which differ in the
volume, complexity, and level of technical content of the caseloads they
generate. For these reasons, the Conference, like the Federal Courts
Study Committee, opposes allocating review of all administrative cases
to a single specialized court, whether inside or outside the Article III
system.
Should Congress consider the creation of specialized courts for
review of particular administrative programs, this recommendation sets
forth criteria for Congress to take into account in determining when to
create specialized courts and how to structure them to enhance their
effectiveness. Certain characteristics held in common by many federal
regulatory and benefit programs raise particular problems within the
existing system of judicial review. Uniformity in decisionmaking can be
especially important in the context of administrative action under
national programs. The agencies themselves are structured
hierarchically, so as to speak with a single voice in applying law and
policy to individual circumstances. But the federal court system that
reviews these agency programs is decentralized, and different circuits
often reach different outcomes on the same issue. The Supreme Court's
capacity to resolve these conflicts is severely limited by the modest
number of administrative law cases it considers each year. As a result,
agencies often face the choice of refusing to acquiesce in decisions
below the Supreme Court level, abandoning policy positions they believe
to be correct, or implementing programs differently in different regions
(and, consequently, treating similarly situated individuals or entities
differently and encouraging forum shopping).
Another special aspect shared by some federal regulatory programs is
that they involve complex technical or scientific issues, which may
present great challenges to reviewing courts without special expertise
in the relevant areas. Cases on review of agency rulemaking and
ratemaking actions, in particular, frequently involve lengthy
administrative records filled with conflicting material on technical
issues of fact and policy; the judges must devote extra time to poring
over these records and to producing the longer opinions these cases
often engender.
Other federal programs (such as individual benefit programs) produce
masses of litigation involving primarily questions of specific fact.
Resolution of these issues may be an inefficient allocation of the time
of the federal courts.
While review by specialized courts may offer a solution for these
problems, specialization brings dangers as well. One premise of the
national system of courts of general jurisdiction is that sound
decisionmaking results from exposure to a wide range of problems and
issues; adjudicative bodies with limited subject matter jurisdiction
may lack this generalist perspective. Specialization can also produce
bias problems of two kinds: the appointments process may be distorted
as interest group pressures lead to the selection and confirmation of
nominees for their views on specific issues; in addition, the standard
of review may be distorted, either because expertise leads the court to
substitute its judgment for that of the agency or because familiarity
with a particular agency leads the court to accept the agency's
positions too readily. Public perception that a court is biased can
reduce its effectiveness even when actual bias is not present. Finally,
a specialized court may suffer reduced prestige if its repetitive
subject matter attracts lower caliber judges.
The recommendations that follow offer guidance to Congress on the
considerations it should take into account when it deliberates about
whether to assign responsibility for review to a specialized court;
they should be read as a whole. Thus, for example, the criteria in
recommendation 2 may suggest assignment of Social Security disability
cases to a specialized court; if Congress considers such an approach,
however, it should take into account recommendations 3(B) and 3(C),
favoring a balanced docket and a jurisdictional mix. These
recommendations are intended to complement Conference Recommendation
75-3, ''The Choice of Forum for Judicial Review of Administrative
Action,'' I CFR 305.75-3 (1990), which the Conference continues to
believe should form the foundation for decisionmaking about the
appropriate forum for judicial review of administrative action within
the Article III courts.
01 CFR 305.91-9 Recommendation
1. When considering proposals for the creation of a specialized court
or courts to review administrative action, Congress should take into
account that federal agency programs vary greatly in the volume,
complexity, and level of technical content of the caseloads they
generate, and, thus, any solutions adopted should be designed to fit the
specific administrative programs to which they will apply. For these
reasons, among others, the Conference opposes the creation or
designation of a single specialized court, either within the Article III
judiciary or under Article I, to handle review of all administrative
cases.
2. Congress should recognize that it is appropriate to create
specialized courts for particular administrative programs only if such
programs are characterized by the following:
A. A program area in which one might reasonably expect a consistently
large volume of cases, diversion of which might significantly alleviate
burdens on the generalist federal courts;
B. The predominance of factual issues specific to particular cases,
or the predominance of scientific or other technical issues requiring
special expertise of decisionmakers; and
C. The particular importance of uniformity in agency administration
of a program.
3. If Congress creates specialized courts to review particular
administrative programs, it should, to the extent possible, structure
the courts as follows:
A. To minimize jurisdictional uncertainty, the subject matter before
the courts should be segregable from other claims.
B. To ensure that the courts maintain a balanced perspective on the
issues before them, the courts' dockets should be designed to expose
judges to all sides of pertinent controversies and to the broadest
possible scope of related issues within a field of law.
C. To encourage generalist judicial appointments, to minimize
distortion of the standard of review resulting from loss of the
generalist perspective, and to avoid the fact or appearance of capture
by special interests, the courts' subject matter jurisdiction should be
diverse.
If the court provides the final stage of judicial review before
Supreme Court review, satisfaction of criterion C is essential.
4. If Congress creates specialized courts to review particular
administrative programs, it should provide for periodic evaluation of
those courts to determine whether there is a continuing need for
specialized review.
5. In any legislation providing for specialized review of particular
administrative programs, Congress should assign to each court or
reviewing body the type of functions it is best suited to perform and
should minimize duplication of review functions. In particular, any
such legislation should:
A. Avoid de novo review of factual issues already subject to formal
adjudication at the agency.
B. Make the decisions of specialized courts final on review of
questions of fact specific to the case (including the sufficiency of the
evidence in that case by whatever standard it is reviewed).
C. When review has been assigned to an Article I specialized court,
provide a subsequent layer of judicial review by an Article III court
for questions of constitutional or statutory interpretation.
56 FR 67143, Dec. 30, 1991)
01 CFR 305.91-10 Administrative Procedures Used in Antidumping and
Countervailing Duty Cases (Recommendation No. 91-10).
This recommendation discusses several possible reforms of the
administrative procedures used in U.S. antidumping (AD) and
countervailing duty (CVD) cases. These cases usually arise when a
petition is filed on behalf of a U.S. industry by one of several
statutorily specified interested parties asking the U.S. Government to
impose special duties to offset dumping or subsidization. The
Government itself can also initiate cases.
Dumping occurs when foreign companies export goods to the United
States for sale at less than their ''fair value.'' Fair value is
generally based on the exporter's prices for such goods in its home (or
a third country) market or on its cost of producing the goods (including
a profit margin). AD duties are imposed to offset the margin of dumping
(i.e., the difference between the foreign market value and the U.S.
price) if the U.S. industry producing like goods has suffered or is
threatened with material injury by reason of the dumped imports, or if
the establishment of a U.S. industry producing such goods has been
materially retarded.
Countervailing duties may be imposed on goods exported to the United
States that benefit from certain types of subsidies granted by a foreign
government. In most CVD cases, duties may be imposed only if the U.S.
industry producing like goods has suffered or is threatened with
material injury by reason of the dumped imports, or if the establishment
of a U.S. industry producing such goods has been materially retarded.
The decision whether dumping or subsidization has occurred is made by
the International Trade Administration (ITA) of the Department of
Commerce; the decision on injury is made by the U.S. International
Trade Commission (ITC). These administrative decisions are subject to
review, in the first instance, in the Court of International Trade, and
then in the Court of Appeals for the Federal Circuit. In the case of
Canadian exports, the decisions may be ''appealed'' instead to a
binational panel established under the U.S.-Canada Free Trade Agreement.
In recent years, the use by the United States and other countries of
AD and CVD laws has been controversial. While many of the complaints
about these laws are essentially about their substantive provisions, a
number of the complaints concern procedural matters. In particular,
some critics have contended that the high cost of defending these cases,
which are often quite complex proceedings involving the collection and
analysis of vast amounts of data and which often continue for years,
amounts to a new form of protectionism -- process or procedural
protectionism. At the same time, U.S. domestic producers complain that
the great expense of invoking these laws virtually precludes their use
by some petitioners deserving of relief.
The two concerns that seem to be foremost in the minds of trade law
practitioners are reducing the time and expense associated with AD and
CVD proceedings and improving the decisionmaking process under the
relevant statutes. The Conference notes, at the outset, that the
complex procedures for AD and CVD cases, involving a division of
responsibilities between two agencies with appeals to a specialized
court and then to a federal court of appeals, may contribute to the time
and expense associated with these proceedings. The Conference
recommends in Part A that Congress authorize and fund a study of the
agency structures and judicial review for AD and CVD cases.
Recommendations B, C and D are intended to address problems arising
under the current structure. /1/
The ITA and ITC both view AD/CVD proceedings as investigative rather
than adjudicatory. Nonetheless, given the conflicting positions of the
parties before the agencies -- the domestic industry versus the foreign
exporters -- and their role in supplying much of the information on
which the agency decisions are based, the parties do and should play an
important part in the process. That part could be made more useful if
hearings at which the factual submissions of the two sides are tested
could be conducted more effectively than at present.
In the case of the ITA, the hearing officer typically does not
participate in the hearing or engage in interchanges with counsel. The
ITA hearing process would be improved if the hearing officer were more
knowledgeable about the contested issues and participated more actively
in interchanges with counsel than is presently the case.
In the case of the ITC, hearing times for cases are standardized and
somewhat inflexible, even though cases vary widely in complexity and
number of parties, with the result that in some cases parties have only
a few minutes for oral presentations. Testing of factual information at
the hearing is limited by practices that discourage cross-examination of
witnesses. The ITC hearing process would be improved if, in setting the
times for oral presentations, the ITC took into account factors such as
the complexity of the case and the number of parties involved. The ITC
should also allow reasonable time for cross-examination without
subtracting such time from the questioner's time for affirmative
presentation.
Several changes could be made to simplify ITA administrative
procedures and reduce somewhat the time and expense associated with
AD/CVD cases. First, preparing the administrative record more promptly
would speed up the appeals of cases. Second, streamlining and
standardizing the ITA's procedures for handling routine requests for
access to information would reduce the amount of time spent by the
parties in preparing such requests, thereby reducing costs. The ITA
should also strive to reduce parties' costs by reducing where possible
the number of copies of documents required to be filed.
Third, the ITA now sometimes decides to reject a party's factual
submissions or to change significantly its methodology for calculating
dumping/subsidy margins without notice to the parties. It would be
desirable for the ITA to notify the parties when it makes such a
decision, so that the parties will not continue to prepare their cases
on the assumption that the agency has not taken such actions.
Implementation of this recommendation would allow parties to argue their
positions more effectively and avoid wasted effort. This recommendation
is not intended to suggest that the ITA does not have the right to
reject a party's evidentiary submissions, or that a party should have
any new rights to more time to comply with ITA information requests or
to object to methodology changes. The ITA should also consider whether
there are methods within the statutory time constraints to permit
parties to comment in response to substantial changes in methodology.
Fourth, at present there are a number of inconsistencies between the
way that the ITA's investigations office (which handles the initial
investigation to determine whether a AD/CVD order should be issued) and
the ITA's compliance office (which reviews shipments made after the
issuance of an AD/CVD order to assess the amount of duties owing) handle
certain issues. The ITA ought to eliminate those inconsistencies for
which there is no justification.
Fifth, under U.S. law the actual amount of AD/CVD duties owed is
usually determined after the fact. Exporters deposit an estimated duty
when goods are imported into the United States, and that amount may be
adjusted upwards or downwards as a result of an annual review, if
requested. (If not requested by anyone, the estimated duties are
considered to have been collected as the final duties.) The ITA has
traditionally had a large backlog of annual reviews, although the
backlog has been reduced in recent years, and reduced substantially in
recent months. The delay in finally determining duties owed is
unnecessarily disruptive to trade flows and unfair to the parties to
such cases. Accordingly, the ITA should continue its efforts to
eliminate its backlog of annual reviews.
The Commissioners of the ITC apparently do not normally meet as a
group to discuss their views of a case before their formal
deliberations, evidently because of concerns stemming from the
Government in the Sunshine Act. It appears that the Commission's
reluctance to meet as a group adversely affects the ITC decisionmaking
process. The Commission's general counsel has taken the position that
its meetings to dispose of AD/CVD cases are not within the terms of
exemption 10 of the Act, which exempts meetings involving determinations
''on the record after opportunity for a hearing.'' Some practitioners,
however, believe that exemption 10 applies, and the Commission should
decide whether such meetings do or should come within the ambit of
exemption 10. If the Commission concludes that the meetings in question
are not in fact exempted from the Sunshine Act, then Congress should
consider exempting such meetings for AD/CVD cases from the Act. As an
interim measure for achieving the benefits of collegial decisionmaking,
the ITC should take steps to exchange drafts, views and other
information among the commissioners before entering into formal
deliberations.
/1/ In 1973, the Administrative Conference recommended a number of
reforms in the then existing procedures for administering AD cases. See
Conference Recommendation 73-4, Administration of the Antidumping Law by
the Department of the Treasury, 39 FR 4846 (1974). In 1984, it
recommended reform of one narrow aspect of AD and CVD procedures -- the
availability of confidential information under protective order in ITC
proceedings. See Conference Recommendation 84-6, Disclosure of
Confidential Information Under Protective Order in International Trade
Commission Proceedings, 1 CFR 305.84-6 (1991).
01 CFR 305.91-10 Recommendation
01 CFR 305.91-10 A. Congressional Study
The Congress should authorize and fund a study, by the Administrative
Conference or another appropriate agency, of the agency structures for
handling AD/CVD cases. The study should address whether responsibility
for these cases should continue to be divided between the ITA and the
ITC. It should also consider whether the usual procedure for judicial
review of agency adjudications should be followed for AD/CVD cases by
providing for direct appeals from the ITA and/or ITC to the Court of
Appeals for the Federal Circuit, or whether the additional level of
specialized court review at the Court of International Trade is required
in these cases. /2/
/2/ The Administrative Conference has generally recommended that
appeals from administrative agencies should be to the courts of appeals.
See Conference Recommendation 75-3, The Choice of Forum for Judicial
Review of Administrative Action, 1 CFR 305.75-3 (1991).
01 CFR 305.91-10 B. Improved Agency Factfinding Procedures
The ITA and the ITC should develop factfinding procedures that
improve development of the administrative record, with increased
opportunities for the parties and decisionmakers to test the factual
submissions made in the proceedings.
01 CFR 305.91-10 1. ITA Procedures
To accomplish this goal, the hearing conducted by the ITA at the end
of its investigation should be presided over by a senior official, with
adequate staff support, who is knowledgeable about the contested issues
in the proceeding and who actively participates in interchanges with
counsel for the parties. Where appropriate, the hearing officer should
make a recommendation with regard to the issues raised in the hearing.
01 CFR 305.91-10 2. ITC Procedures
To accomplish this goal, the ITC should provide adequate time for
oral presentations, taking into account factors, such as multiple
parties or countries under investigation, that may justify more time
than normally allowed. The ITC should allow reasonable time for
cross-examination in appropriate cases without reducing the
cross-examiner's time for affirmative presentation at the hearing.
01 CFR 305.91-10 C. ITA Administrative Reforms
To improve the efficiency of case processing, the ITA should adopt
the following reforms:
1. To speed judicial review, the ITA should complete the record in
individual cases and make that record available to parties promptly.
2. The ITA should streamline its handling of applications for release
of information under administrative protective orders and of requests
for access to computerized information. It should also require that
only a reasonable number of copies of documents be submitted by parties.
3. The ITA should give notice to parties before it (a) rejects
portions of parties' evidentiary submissions or (b) adopts significant
changes in methodology on which the parties have not had an opportunity
to comment. The ITA should also consider whether there are techniques
within the statutory time constraints to permit parties to comment in
response to substantial changes in methodology.
4. The ITA should eliminate unjustified inconsistencies in the
practices and policies of its investigations and compliance offices.
5. The ITA should continue its efforts to eliminate its backlog of
annual reviews of the actual duties owed by specific companies subject
to AD/CVD orders.
01 CFR 305.91-10 D. The ITC and the Government in the Sunshine Act
To encourage collegial decisionmaking, the ITC should exchange
drafts, views and other information before entering into formal
deliberations. The Commission should decide whether informal meetings
to discuss the disposition of AD/CVD cases constitute meetings exempt
from the Sunshine Act under exemption 10. If the Commission determines
that such meetings are subject to the Sunshine Act, then Congress should
consider amending the Tariff Act to provide that the Sunshine Act does
not apply to informal meetings held to discuss the disposition of AD/CVD
cases.
(56 FR 67144, Dec. 30, 1991)
01 CFR 305.91-10 PART 310 -- MISCELLANEOUS STATEMENTS
Sec.
310.1 Views of the Administrative Conference on the ''Report on
Selected Independent Regulatory Agencies'' of the President's Advisory
Council on Executive Organization (Adopted May 7, 1971).
310.2 Statement of the Administrative Conference on the ABA Proposals
to Amend the Administrative Procedure Act (Adopted June 7-8, 1973).
310.3 Statement of the Administrative Conference on ABA Resolution
No. 1 Proposing to Amend the Definition of ''Rule'' in the
Administrative Procedure Act.
310.4 Strengthening Regulatory Agency Management Through Seminars for
Agency Officials.
310.5 Statement on Procedures to Deal with Emergency Shortages of
Natural Gas.
310.6 Resolution Concerning Congressional Termination of Pending
Administrative Proceedings at the Federal Trade Commission.
310.7 Views of the Administrative Conference on Proposals Pending in
Congress to Amend the Informal Rulemaking Provisions of the
Administrative Procedure Act.
310.8 Statement of the Administrative Conference on Discipline of
Attorneys Practicing before Federal Agencies.
310.9 Statement on Guidelines for Choosing the Appropriate Level of
Agency Policy Articulation.
310.10 Statement on Agency Use of an Exceptions Process to Formulate
Policy.
310.11 Statement on hearing procedures for the resolution of
scientific issues.
310.12 Statement on resolution of Freedom of Information Act
disputes.
310.13 Statement on dispute resolution procedure in reparations and
similar cases.
310.14 Statement on mass decisionmaking programs: The alien
legalization experience.
310.15 Procedures for Resolving Federal Personnel Disputes.
Authority: 5 U.S.C. 571-576.
310.1 Views of the Administrative Conference on the ''Report on
Selected Independent Regulatory Agencies'' of the President's Advisory
Council on Executive Organization (Adopted May 7, 1971).
310.2 Statement of the Administrative Conference on the ABA
Proposals to Amend the Administrative Procedure Act (Adopted June 7-8,
1973).
310.3 Statement of the Administrative Conference on ABA Resolution
No. 1 Proposing to Amend the Definition of ''Rule'' in the
Administrative Procedure Act. 1017
310.4 Strengthening Regulatory Agency Management Through Seminars
for Agency Officials.
310.5 Statement on Procedures to Deal with Emergency Shortages of
Natural Gas.
1For the original Conference action on this and other ABA Resolutions
to amend the APA, see 1972-73 Report of the Administrative Conference of
the United States, pp. 49-53; also reprinted at 38 FR 16839.
01 CFR 310.6 Resolution Concerning Congressional Termination of Pending
Administrative Proceedings at the Federal Trade Commission.
The Conference is aware of recent legislative proposals to terminate
numerous ongoing rulemaking and adjudicative proceedings at the Federal
Trade Commission. The Conference takes no position with regard to the
merits of those proceedings. However, the Conference wishes to express
its concern about the precedent which would be set by any premature
legislative intervention in administrative proceedings. Such
intervention precludes orderly development and consideration of the
complex issues involved and undermines respect for the administrative
process. Absent compelling circumstances or revision of the underlying
substantive statute, Congressional termination of pending administrative
proceedings is undesirable.
(45 FR 2310, Jan. 11, 1980)
01 CFR 310.7 Views of the Administrative Conference on Proposals
Pending in Congress to Amend the Informal Rulemaking Provisions of the
Administrative Procedure Act.
The Administrative Conference has reviewed the major regulatory
reform proposals pending in Congress: H.R. 746, the Regulatory
Procedure Act of 1982, reported by the House Judiciary Committee on
February 25, 1982, and S. 1080, the Regulatory Reform Act, passed by
the Senate on March 24, 1982. These bills would substantially revise
the provisions of the APA governing informal rulemaking, 5 U.S.C. 553.
Our views on the following proposed revisions of section 553 are set
forth below.
1. Notice of proposed rulemaking. The Conference believes the
detailed notice requirements of amended section 553(b)(1)(F), in section
3 of the Senate bill, are unduly burdensome as general requirements in
rulemaking.
The Conference recommends enactment of the provision in section 3 of
the Senate bill that would amend section 553 to require publication of a
new notice of proposed rulemaking and an opportunity for comment
thereon, whenever the provisions of the rule the agency plans to adopt
are so different from the provisions of the original proposal that the
initial notice no longer fairly apprises the public of the issues
ultimately to be resolved in the rulemaking.
2. Opportunity to present comments. The Conference has no objection
to enactment of the provisions in the House and Senate bills that would
establish a minimum comment period in rulemaking under section 553,
provided that the ''good cause'' exception in section 553(b) is
retained.
The Conference recommends that an opportunity for oral presentation
of data and views should not be a mandatory requirement in rulemaking
under section 553 even if the requirement is limited, as in the Senate
and House bills, to ''major'' rulemakings. The Conference has
recommended, in Recommendation 76-3, that in appropriate circumstances
agencies should utilize oral presentations in informal rulemaking, but
agencies should have discretion to decide when and to whom the
presentations are made.
3. Cross-examination. The Conference recommends that Congress not
enact the provisions in the Senate and House bills that would require
cross-examination to be permitted in rulemaking under section 553, even
though the bills would only require use of cross-examination as a ''last
resort'' procedure. The Conference has previously recommended, in
Recommendation 76-3, that agencies should give interested persons an
opportunity to indicate issues of specific fact for which they contend
cross-examination is appropriate, and that if cross-examination is
permitted, it should be strictly limited as to subject and duration.
4. The requirement of a rulemaking file. The Conference recommends
that Congress amend the APA to provide that, in rulemaking under section
553, an agency shall maintain a public rulemaking file beginning no
later than the date on which the notice of proposed rulemaking is
published. At a minimum, the agency should be required to place in the
public rulemaking file, promptly upon receipt or production, the
following materials: (1) All notices pertaining to the rulemaking, (2)
copies, or where impractical a reference to or index of, all factual
material upon which the agency substantially relied in formulating the
proposed or final rule, unless the material is by law exempt from
disclosure, (3) all written comments submitted by interested persons
during the rulemaking, and (4) any other material required by statute or
agency rule to be made public in connection with the rulemaking.
5. Opportunity to comment on material in the rulemaking file. The
Senate bill provides that an agency may not substantially rely upon
factual material that was not placed in the rulemaking file in time to
afford the public an adequate opportunity to comment on the material.
The Conference opposes enactment of a statutory provision to this effect
because the practical effect of such an inflexible requirement would be
to encourage nonsubstantive challenges to final agency rules. The
Conference, however, does reaffirm the principle, stated in
Recommendation 76-3, that agencies provide an appropriately limited
additional opportunity to comment when material placed in the rulemaking
file, including comments filed in the proceeding, presents new and
important issues or serious conflicts of data.
6. Statement of basis and purpose. The Conference recommends
enactment of the provisions in the House and Senate bills that would
amend section 553 to add a requirement that the statement of basis and
purpose accompanying a final agency rule include a response to all
significant issues raised in the public comments received by the agency
during the comment period established for the rulemaking.
(47 FR 30715, July 15, 1982)
01 CFR 310.8 Statement of the Administrative Conference on Discipline
of Attorneys Practicing Before Federal Agencies.
Because of the controversy regarding actions by the Securities and
Exchange Commission, through administrative rather than court
proceedings, to discipline attorneys whose services were used in
transactions that the Commission believes violate the securities laws,
the Administrative Conference undertook a study of procedures and
concerns of Federal departments and agencies in disciplining attorneys
practicing before them. The Conference concludes that any current
problems arising from the discipline of attorneys by Federal agencies
are not of such magnitude or so widespread as to require legislative
action or the adoption of uniform Federal standards.
(47 FR 58210, Dec. 30, 1982)
01 CFR 310.9 Statement on Guidelines for Choosing the Appropriate Level
of Agency Policy Articulation.
The Administrative Conference continues to support the general
principle, stated in Recommendation 71-3, that ''agency policies which
affect the public should be articulated and made known to the public to
the greatest extent feasible.'' Without endorsing every particular
conclusion expressed therein, the Conference believes that the appended
statement of its Committee on Judicial Review and the supporting report
of its consultant suggesting considerations and guidelines for choosing
the appropriate level of agency policy articulation will assist agencies
in achieving these ends.
Editorial Note: The appendix is omitted pursuant to 304.2(a) of
this chapter. It may be found in the Federal Register.
(48 FR 31181, July 7, 1983)
310.10 Statement on Agency Use of an Exceptions Process to Formulate
Policy.
(48 FR 57464, Dec. 30, 1983, as amended at 54 FR 6862, Feb. 15, 1989)
01 CFR 310.11 Statement on hearing procedures for the resolution of
scientific issues.
The development of effective decisionmaking techniques for the
evaluation of scientific studies has been one of the most elusive
problems for the administrative process. The implementation of health
and safety laws often requires an evaluation of the scientific
reliability of laboratory animal, clinical, or epidemiological test
data, a determination of risks and benefits based upon those data and
other factors, and a final ''regulatory conclusion'' in which the
relevant law is applied in light of the previous conclusions. For
example, health and safety agencies commonly are required to determine
whether a particular chemical is carcinogenic or otherwise harmful as a
prerequisite to reaching a regulatory conclusion.
The quality and legitimacy of these agency decisions can be improved
by counseling with eminent scientific experts outside of the agency.
Some scientists and others have supported the idea of a ''science
court'' or an institution to which administrative agencies could refer
scientific disputes for resolution by expert scientists. In response,
agencies have developed several methods of obtaining scientific input,
including the use of advisory committees. Science advisory committees
are the most common method used to obtain such assistance before an
agency reaches a decision. In addition, the Food and Drug
Administration (FDA) has created and used twice a unique procedure, the
Public Board of Inquiry (PBOI), to obtain independent scientific review
of particular regulatory decisions. The PBOI combines the elements of a
''scientific hearing'' with the more typical ''adversarial hearing''
approach for the evaluation of scientific evidence.
The PBOI is one of three alternative informal methods of proceeding
that FDA offers applicants in lieu of the formal adjudication by an
administrative law judge (ALJ) that would otherwise be held to review
certain decisions concerning the approval of food additives and new
drugs. The other two alternatives are a hearing before an advisory
committee or an informal hearing before the Commissioner of FDA. The
PBOI consists of a panel of three scientists appointed by the
Commissioner. Two of the three scientists are selected from
recommendations of the parties. The Board obtains scientific
''testimony'' within an informal quasi-adjudicative hearing framework,
in which the advocacy role of lawyers is minimized in favor of a
''scientific forum'' approach -- although the Board's decision is an
''initial decision'' and has the same legal status as an initial
decision of an ALJ.
FDA's two PBOI hearings occurred in 1980 and 1983. In the first, a
PBOI was convened to determine whether Aspartame, now a widely used
artificial sweetener, should be approved as a food additive. In the
1983 proceeding, a PBOI was convened to determine whether Depo Provera,
a drug approved in other countries as a contraceptive, should be
approved for that use in the United States.
Some analysts contend that FDA's experiences confirm the validity of
the ''science court'' idea for the evaluation of scientific evidence.
They argue that techniques like the PBOI are more effective for
obtaining scientific advice than traditional adversarial hearings
because a PBOI provides the presiding scientists with the flexibility to
operate according to procedures that are customary in scientific
inquiry. Others suggest that the PBOI costs too much for the value of
the opinions obtained from it. A study commissioned by the Conference,
however, suggests that the costs or delays of the two PBOI proceedings
were significantly enlarged by unanticipated management problems that
can be remedied.
The Administrative Conference suggests that continued experimentation
with alternative types of hearing procedures for the resolution of
scientific issues is justified. Improvements are needed in management
of such procedures to make them more efficient and more accurate.
Examples include:
(1) Appointing the chairperson at the start of the hearing process;
(2) Providing additional administrative support for board members;
(3) Separating, to the extent possible, the matters of scientific
inquiry from any policy issues that may be addressed concerning the
ultimate legal or regulatory actions that the agency ought to take;
(4) Encouraging boards to utilize an experienced employee as a
management adviser in the conduct of the process;
(5) Providing an improved opportunity for direct communication
between the board and the agency head upon submisssion of the board's
decision;
(6) Urging boards to adhere to procedures intended to ensure that the
administrative record is complete and usable for successive stages of
the administrative and legal process; and
(7) Urging persons conducting agency scientific hearings in
significant cases to identify the bases for their conclusions.
Other agencies with regulatory programs that depend on scientific
determinations should consider experimental use of a process similar to
the PBOI as a voluntary alternative to a hearing that would otherwise be
held to resolve issues of scientific uncertainty. Examples of other
agencies that may have similar needs and objectives include the
Environmental Protection Agency, the Occupational Safety and Health
Administration, the Consumer Product Safety Commission, and the National
Highway Traffic Safety Administration.
(50 FR 52896, Dec. 27, 1985)
01 CFR 310.12 Statement on resolution of Freedom of Information Act
disputes.
The Administrative Conference sponsored a study of the resolution of
disputes arising out of Freedom of Information Act (''FOIA'') requests
that are not handled to the requester's satisfaction at the agency
level. Specifically, the study proposed the establishment of an
independent administrative tribunal to resolve these disputes, either in
formal hearing proceedings or through informal conciliation.
Alternatively, the study suggested the appointment of an ombudsman
within the Department of Justice to review and report on agency FOIA
decisions, mediate FOIA disputes, and/or provide informal assistance to
persons requesting information from agencies under FOIA.
Currently available data do not clearly establish the need for either
of these specific mechanisms for handling FOIA disputes. The ability of
the administrative tribunal in particular to increase the efficiency or
effectiveness of FOIA dispute resolution is doubtful, especially given
the moderate FOIA caseload (approximately 500 new federal court filings
per year) and the high degree of public confidence in the current system
of de novo judicial review of agency FOIA decisions.
However, the Conference believes that greater reliance on informal
approaches to FOIA dispute resolution could result in more effective
handling of some FOIA disputes without resort to court litigation; thus
these approaches bear further exploration. Accordingly, the
Administrative Conference concludes the following:
1. The Conference does not at this time recommend supplanting or
changing the currently available remedy of judicial review in Federal
district courts for requesters denied information under the Freedom of
Information Act. However, the Conference does believe that a number of
cases filed each year challenging agency denials of information under
the Act could be resolved without litigation. Additionally, some
disputes involving agency handling of Freedom of Information Act
requests (i.e., issues such as processing delay, adequacy of the
agency's records search, or availability of fee waivers as distinct from
the outcome of the request on the merits) may arise from
misunderstandings that could be quickly cleared up through informal
investigation or discussion. Continuing attention should be given to
developing mechanisms to simplify and to speed the process of review.
2. The Department of Justice and other agencies handling FOIA
requests should explore the voluntary use of informal alternative
dispute resolution techniques, such as informal investigation of
complaints, mediation or conciliation, and provision of a neutral
government official to aid the parties in reaching settlement, /1/ to
avoid unnecessary litigation of Freedom of Information Act disputes, and
should use these techniques when appropriate.
3. On a limited basis, the Department of Justice already provides
informal assistance to requesters that the Conference believes helps
them in resolving Freedom of Information Act disputes. However, this
function is not generally known to the public. These services would be
valuable to a larger number of people than now receive them, and the
Conference encourages the Department of Justice to explore means of
making them better known and more generally available.
(52 FR 23636, June 24, 1987)
/1/ See ACUS Recommendation 86-3, Agencies' Use of Alternative Means
of Dispute Resolution, Paragraph 10.
01 CFR 310.13 Statement on dispute resolution procedure in reparations
and similar cases.
Where Congress has established private rights, effective means of
protecting them are crucial. Congress has used a variety of procedures
to protect consumers, workers and certain others. In many cases, it has
established formal adjudicatory process (e.g., within regulatory
agencies like the Federal Trade Commission or review agencies like the
Occupational Safety and Health Review Commission). Congress has also
recognized that, in many cases, formal agency hearings or court
litigation may be unnecessary or too costly. Thus, alternative or
supplementary agency procedures or even private-sector procedures have
been established to resolve disputes that formerly would have been left
to the formal adjudication process.
Agencies' use and oversight of these dispute processes has become
even more important in light of recent congressional developments and
Supreme Court decisions. The Supreme Court recognized in
Shearson/American Express, Inc. v. McMahon, 107 Sup. Ct. 2332 (1987),
for example, that arbitration processes are often adequate to protect
statutory rights, particularly where an agency can oversee their
operation to ensure their adequacy. Indeed, that case enforced an
arbitration agreement even for a treble damage case brought under the
Racketeer Influenced and Corrupt Organizations Act by a plaintiff acting
much like a ''private attorney general.''
Agencies' approaches to ''reparations'' and similar programs to
safeguard consumers reflect the diversity of approaches that are
available. The Securities and Exchange Commission, so far at least, has
relied on a purely private resolution mechanism -- exchange-based
arbitration. The Commodity Futures Trading Commission (''CFTC''), has
developed, pursuant to statutory mandate, its own distinctive dispute
resolution program. Since it was formed in 1974, the CFTC has
administered a ''reparations'' program that adjudicates between
commodity futures salespersons (known as ''futures commission
merchants'') and aggrieved customers. /1/
The CFTC's program provides an interesting alternative to civil
litigation, formal hearings under the Administrative Procedure Act, and
commercial arbitration. /2/ Like arbitration (which is also an option
available to aggrieved customers), the reparations program uses
decisionmakers familiar with the industry from which the disputes arise.
But these decisionmakers are CFTC employees, rather than arbitrators
drawn from industry -- either agency administrative law judges or other
specially-designated agency employees known as ''judgment officers''.
The CFTC has been creative in fashioning procedures for the
reparations program. The ''formal'' procedure, for claims of more than
$10,000, is akin to the adjudicatory procedure provided in section 554
of the APA. The ''summary'' procedure for claims under $10,000
dispenses with several formalities, including the right to an oral
hearing. It does permit a telephonic hearing. A third, ''voluntary''
procedure, is available for claims of any size and must be elected by
both parties. It dispenses with a written opinion by the presiding
judgment officer and appeal rights. While the CFTC's program had a
troubled early history, characterized at times by crippling case
backlogs and severe budgetary constraints, recent years have seen
enhanced resources and a considerable improvement in case management.
The Administrative Conference has begun exploring these processes
with its research into the CFTC's innovative approach to consumer
protection. The Conference sees important benefit in programs, like the
CFTC's, that offer complainants procedural options. Creation of an
agency review process for consumer complaints benefits the regulatory
agency because the process provides a valuable pipeline into the
problems of the industry; resolving these complaints serves as a
constant challenge and impetus to the agency to interpret its statutory
mandate. A three-tiered approach like the CFTC's permits added
opportunities for procedural tailoring. On the other hand, the parallel
private decisional process may be less expensive, faster, and more
responsive. Parties benefit from having both a choice of forums and an
opportunity to select a dispute resolution procedure that suits their
needs.
Much remains to be done in considering the best approach for
particular agencies, and this statement is intended as an initial foray.
The Administrative Conference suggests that continued experimentation
with alternative types of procedures for resolving issues arising in
consumer protection programs is justified. Agencies administering
statutes that recognize a private right of action should consider
establishing, or seeking authority to establish, a reparations program
offering creative procedures for ''formal,'' ''summary'' and
''voluntary'' dispute resolution, along the lines of the CFTC's where:
(1) An agency statute provides for and engenders substantial private
litigation and/or arbitration; or
(2) An agency regulatory program centers on a single industry or
group of similar industries, such as would permit creation of ''expert''
decisionmakers.
An agency with both of the characteristics listed above would be a
prime candidate for a reparations program. Each program of course would
be crafted to meet the special needs of the agency's particular
regulatory jurisdiction.
Management of reparations programs should take into account these
factors:
(1) Where complaints are to be resolved by summary or voluntary
procedures, the discovery process should be streamlined to comport with
the goals of less formal procedures. For example, the number of
interrogatories and requests for admissions may be substantially
limited; and summary information rather than facsimiles could be deemed
responsive to requests for the production of documents.
(2) The judgment officers used in summary and voluntary procedures
need not always be administrative law judges or even attorneys, so long
as they demonstrate sufficient experience in, or knowledge of, the
regulated industry or applicable law.
(3) While summary procedures by their nature may not require an
in-person hearing, telephone hearings may provide a useful and
inexpensive way of allowing the judgment officer to question parties and
witnesses. Telephone hearings should be available whenever a judgment
officer believes such a hearing is appropriate to the resolution of a
dispute.
(4) Since complainants in reparations proceedings frequently appear
without a lawyer, agencies should make the dispute resolution process
understandable to the lay person. Toward that end, notices and
descriptions of the process should avoid whenever possible the use of
legal terms (e.g., ''pleadings'' or ''discovery'') where a colloquial
term will suffice. Where use of a lay term would mislead, or where no
appropriate term is available, agencies should make every effort to
assure that the legal term of art has been translated for the lay party
or even provide a glossary of such terms for the benefit of the lay
reader.
(5) Managers should assure that a sufficient number of judgment
officers are employed to reduce the overall processing time for summary
and voluntary proceedings, and thus to permit those forms of procedure
to fulfill their promise.
(6) Case tracking systems for reparations cases should be used, or
modernized, so that the location and progress of any case can be quickly
identified and bottlenecks eliminated.
(53 FR 26032, July 11, 1988)
/1/ Other agencies, like the Federal Maritime Commission and the U.S.
Department of Agriculture, have reparations programs that differ in
significant respects.
/2/ Persons with reparations claims may pursue several other avenues
of redress (National Futures Association arbitration, private suits), so
the entire CFTC program is in essence voluntary.
01 CFR 310.14 Statement on mass decisionmaking programs: The alien
legalization experience.
The Alien Legalization Program, authorized under the Immigration
Reform and Control Act of 1986, created a program to allow certain
aliens present illegally in the United States to convert their status to
that of a legal resident. The program is administered by the
Immigration and Naturalization Service and has a short and defined
lifetime, which is heading toward completion. The legalization program
contains two separate pieces: the ''section 245A'' program, for aliens
who have been in the country since January 1, 1982; and the ''special
agricultural worker'' program, for alien farmworkers who worked in
specified agricultural employment for at least 90 days during a
specified period. The application period for the ''section 245A''
program ran from May 5, 1987 through May 4, 1988. The application for
the SAW program ran from June 1, 1987 through November 30, 1988.
Although the INS has acted on most of the cases, some are likely to
remain pending for months. Moreover, as described below, the second
phase of the process is still ongoing.
The Administrative Conference has studied the INS's processing of
alien legalization applications from the standpoints of what
improvements can be made by the INS in the remaining phases of the
legalization program itself, and what lessons can be applied in future
mass decisionmaking programs by the INS or by other agencies. This
Statement does not address the merits of litigation over the regulatory
ground rules of the program, but only the procedures for handling the
applications themselves.
01 CFR 310.14 Description of the Process
The Alien Legalization Program has been administered by the INS using
a framework of local Legalization Offices (LOs) (107 of them across the
country) and four Regional Processing Facilities (RPFs) to process the
more than three million applications for legalization that were
received. Applications are filed with the LOs, where interviews are
conducted and recommendations for action are made. The files are then
sent to a central processing center in London, Kentucky, following which
they are forwarded to one of the four RPFs across the country. The RPFs
make the determinations on the applications, based on the file material.
Appeal of a denial of legalization status is available to the
Legalization Appeals Unit (LAU) in Washington, DC, and is based on the
''administrative record.'' 8 U.S.C. 1255a(f)(3)(B).
The legalization process has two phases. The first phase is to
determine whether an applicant qualifies for legalization. The second
phase, which applies only to qualified section 245A applicants, involves
a determination whether they qualify for permanent resident alien
status. (In the agricultural program, permanent resident alien status
is automatic.) The initial application period for both programs is now
closed, and the INS has processed a large number, although not all, of
those applications.
The ''remote decisionmaking'' system employed in the Alien
Legalization Program involves decisionmaking at the four RPFs rather
than at local levels. This system has provided more consistency in
decisions than other, more decentralized systems within the INS. Having
the determination made by a person removed from the individual who
actually interviewed the applicant reduced the potential subjectivity of
decisionmakers. Because interviewers at the local levels knew that
their files would be examined in virtually every case, the quality of
work in the files has been relatively high. There are also suggestions
that the system of regional facilities promoted cost-efficiency.
The RPF remote decisionmaking system, however, has not been without
problems. The elimination of direct contact between the decisionmaker
and the applicant, which helps eliminate bias or prejudice, also
eliminates the opportunity for first-hand credibility determinations by
the ultimate decisionmaker. The RPFs also have been very isolated from
the public, making it difficult for applicants or their representatives
to acquire information about the status of cases, among other things.
The RPFs have had only limited access to legal advice from INS
attorneys, requiring them in at least one facility to seek advice from
the LAU, which is the appellate unit that reviews appeals of their
decisions. There have been some difficulties relating to the
interaction between the LOs and the RPFs, and relating to the provision
of adequate notice to applicants at different stages of the program.
There also has been reported an unexpectedly high incidence of
fraudulent applications, particularly in the agricultural worker
program, which the RPFs were not equipped to handle.
Overall, however, the system for deciding legalization applications
appears to be working fairly well. The results among the regions have
been quite consistent so far. The INS has been able to process large
numbers of the applications, particularly in the first phase of the
section 245A program. Moreover, the INS has recognized many of the
problems, and taken steps to address them.
From the INS experience, it is possible to derive some lessons, not
only from other INS programs in the future, but for other agencies that
may consider using a system of remote decisionmaking for a large volume
of cases. There are also a number of lessons that can be drawn about
the Alien Legalization Program in particular. While that program is
nearing completion, to the extent that these comments refer to elements
of the program that are ongoing, the Conference encourages the INS to
implement the suggestions to the extent possible and to the extent that
it has not already done so.
01 CFR 310.14 Conclusions
A. The Conference encourages agencies, including the INS, to consider
using remote decisionmaking where there is a large volume of cases to be
decided on the basis of objectively verifiable information within a
written file, particularly where bias, prejudice or other subjectivity
may be a significant problem. This system appears to promote
consistency among decisionmakers, perhaps because of the more
centralized nature of the process, and the fact that it is easier for a
small group of managers to confer on a regular basis about the
decisionmaking process. Agencies should, in implementing such a system,
consider the following suggestions:
1. In a remote decisionmaking system in which a file prepared on a
local level will be the basis for decisionmaking, there must be clear
guidelines as to what are the necessary contents of the file, and the
use of standardized forms and checklists is encouraged.
2. Where the local office is making a preliminary recommendation to
the remote decisionmaking center, the local office should be instructed
to provide an explanation for its recommended decision that is
sufficient to provide the remote center with the maximum benefit of the
local office's information and interaction with the applicant or other
interested person whose case is being determined (hereinafter
''applicant''). Appropriate forms or formats (e.g., computer entry)
should be designed to ensure that the necessary information is
transmitted in a uniform manner to assist in review and retrieval.
3. It is important that adequate information be available to the
applicants and their representatives concerning their cases. To
facilitate this, case tracking systems capable of responding to
inquiries should be developed. Applicants should be clearly informed of
the process relating to their cases, and be given adequate notice of
each step that requires or provides an opportunity for action or
participation on their part.
4. To avoid the appearance or actuality of conflict, it is important
that the remote decisionmaking centers have adequate access to legal
advice relating to the merits of matters before them from agency legal
staff other than from the appellate unit, if any, that reviews appeals
of their decisions.
5. Ensuring imput from local personnel on credibility issues is of
particular importance. It may be useful to consider ways of videotaping
or otherwise recording interviews where the applicant's credibility is
at issue.
6. Where helpful, the decisionmakers at remote decisionmaking centers
should be provided the opportunity to work for a short period of time at
a local office, giving them first-hand experience in interviewing
applicants, in order to provide them a better sense of the implications
of the information they receive.
7. The remote decisionmaking centers' managers should consult with
each other regularly on substantive and procedural matters, in order to
ensure that their actions are consistent.
8. It is important that the system be able to provide new or amended
instructions to the local offices quickly, so that consistency can be
maintained and the benefits of experience transmitted.
B. With respect to the Alien Legalization Program specifically, the
Conference encourages the INS to implement or continue to implement the
following suggestions to the extent that they refer to elements of the
program that are ongoing:
1. Action should be taken to ensure that information concerning
individual applications for legalization is readily available to the
applicant or his or her representative. INS should:
(a) Establish a method of tracking cases that would enable applicants
or their representatives to obtain information expeditiously concerning
the status of their cases;
(b) Ensure that applicants are clearly informed concerning all of the
steps required to complete the legalization process, both initially and
as actions are taken on their applications, particularly where further
action on their part may be called for;
(c) Recognize the need to extend completion times where applicants
are unable to fulfill educational requirements due to a shortage of
educational facilities or programs;
(d) Supplement existing mail communication with applicants, including
through the use of broadcast media. Particular attention should be paid
to the mobility of many applicants, as well as to the fact that
applicants have not always understood the multiple-step nature of the
process, and thus have not realized that INS may be seeking to
communicate with them.
2. INS should ensure that RPFs have sufficient access to legal advice
from INS attorneys; however, the RPFs should not seek legal advice from
the Legalization Appeals Unit (LAU), the office that reviews appeals of
RPF decisions.
3. INS should consider making the following modifications in the way
applications are processed by the Legalization Offices (LOs) and RPFs:
(a) Including in the recommendation forms used by the LOs an
additional option, ''recommended scrutiny'', in order to assure that the
RPF reviews the application, without having to recommend denial for lack
of another option.
(b) Arranging for the following in cases where fraud is suspected:
(i) Reinterviewing applicants whose cases have not been decided; in
the case of SAW applicants, such interviews should be done by
specially-trained decisionmakers with knowledge of agriculture.
(ii) Using video cameras to tape remaining interviews, in order to
have a record on which credibility can be better assessed.
(iii) Assigning remaining cases at the RPFs to specially trained
teams of decisionmakers; in the case of SAW applicants, such
decisionmakers should be trained to review agricultural cases and the
types of fraud that may appear in such cases.
(c) Considering whether LO personnel should have more direct impact
on legalization decisions, since they are the ones who actually have the
opportunity to assess the credibility of applicants.
(54 FR 28975, July 10, 1989)
01 CFR 310.15 Procedures for Resolving Federal Personnel Disputes.
In 1978, Congress enacted the most comprehensive revision of the
federal civil service laws since the Pendleton Act of 1883. The Civil
Service Reform Act (CSRA) of 1978 created new institutions and processes
for personnel management, including a substantially restructured system
for considering complaints, grievances and appeals filed by federal
employees in response to personnel actions. /1/ Personnel disputes
typically involve such matters as removals from the service, reductions
in pay or grade, suspensions, furloughs, promotion and award decisions,
and reductions-in-force.
Congress' 1978 revision of the framework for considering employee
complaints, grievances and appeals was in part prompted by the
confusing, complex and time-consuming nature of the existing procedures.
Moreover, the procedures were seen as intimidating to both managers and
employees and, therefore, likely to deter managers from taking
appropriate personnel action and to discourage employees from pursuing
available avenues to vindicate their rights. There was also a
perception that the Civil Service Commission was unsympathetic to
employee discrimination cases and to unions.
The statutory framework created in 1978, with its new forums for
adjudicating employee claims, was no less complex and has continued to
produce costs, delays, and confusion, accompanied by substantial
resource commitments. Close scrutiny discloses that this complexity was
in large part created by the tension inherent in the simultaneous
pursuit of three important legislative goals: adequate protection of
employees from discrimination; /2/ uniformity in federal personnel
management; and solidification and expansion of the place of
arbitration as a mechanism to resolve federal employee grievances.
As a general principle, procedures for handling federal employee
disputes should be as simple and fair as feasible. Fairness must
include a concern for the timely, final resolution of claims. At the
same time, however desirable procedural simplification may be, federal
employees and managers alike should have confidence in the processes for
adjudicating personnel disputes. This is especially true when a federal
employee contests a personnel action on the grounds of discrimination,
since nothing is more basic than the right to be free of invidious
discrimination.
To address these matters, the Administrative Conference commissioned
a consultant's report. /3/ The report describes the historical
background to the 1978 reforms, along with the institutional and
procedural framework created by the CSRA. It examines the operation of
the system and makes specific recommendations for legislative and
administrative changes. The Conference's Committee on Governmental
Processes has held numerous meetings to consider the report, has
provided opportunity for public participation in those meetings, and has
invited public comment on various procedural changes that might be
recommended.
This process has demonstrated the continuing importance of employee
and management concerns in addressing the procedural questions that are
the subject of the study. The intricate web of processes, consciously
designed by Congress in its enactment of the CSRA, resulted in part from
substantive policy and value judgments that transcend the domain of
administrative procedure. The complex framework has been perceived by
employees and their representatives as providing necessary protection
against possible arbitrary employer action, particularly in cases where
discrimination is alleged. As a result, employees may perceive proposed
procedural simplification as a potential threat to substantive rights.
For this reason, whether to retain or modify the present procedures
must be resolved largely through the legislative process. The
experience of the past decade, as described in the consultant's report,
has persuaded the Administrative Conference that the time is ripe for
fresh consideration by Congress of the problems that gave rise to the
CSRA and to the issues that have developed subsequently. In fact,
Congress has started to re-examine selected aspects of the system,
including equal employment opportunity. In addition, the EEOC has
issued a notice of proposed rulemaking to change substantially the
federal sector discrimination complaint process. /4/
This Statement describes certain important issues that we believe
should be addressed as part of a comprehensive congressional review of
the CSRA processes. These include:
(i) Whether there should be one rather than the present two
opportunities for a full scale trial-type proceeding in cases raising
claims of discrimination;
(ii) Whether to retain the existing complex structure for
administrative adjudication of ''mixed'' cases, i.e., those in which the
employee alleges that unlawful discrimination was the basis for an
adverse personnel action;
(iii) Whether the government should have the right to appeal to the
courts in cases involving claims of discrimination;
(iv) Whether employees or their unions should be permitted to seek
judicial enforcement of arbitral awards; and
(v) Whether the functioning of existing adjudicatory frameworks --
grievance systems of individual agencies, agency complaint processes for
discrimination cases, the MSPB process and the various negotiated
grievance processes -- could and should be improved.
These questions cannot and should not be examined in isolation, as
any review of the procedures of the CSRA should recognize the integrated
nature of the complex processes of the Act. Whether or not
congressional re-examination takes place, this Statement also suggests
that the Office of Personnel Management and agencies scrutinize and,
where appropriate, seek ways to improve the patterns of communication
within agencies and to employees regarding the workings of the
complaint, grievance and appeal system. The Conference encourages the
creative use of alternative means of dispute resolution in resolving
employee claims. /5/
/1/ Five institutions share in the administration of the CSRA:
1. Office of Personnel Management (OPM), which is vested with the
general authority to execute, administer and enforce the laws and rules
governing the civil service except with respect to those functions
vested in other agencies;
2. Merit Systems Protection Board (MSPB), which is an independent
adjudicatory body charged with hearing and deciding employee appeals
from agency personnel actions of various kinds including major
performance and disciplinary actions;
3. Office of the Special Counsel (OSC), which is charged with the
investigation and prosecution before the MSPB of requests for corrective
and disciplinary action when prohibited personnel practices have
allegedly occurred;
4. Equal Employment Opportunity Commission (EEOC), which enforces
various anti-discrimination statutes as they apply to both public and
private employment, including title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, and the Rehabilitation Act;
and
5. Federal Labor Relations Authority (FLRA), which is an independent
agency charged with hearing and deciding complaints of unfair labor
practices and reviewing arbitration awards on matters falling within the
scope of negotiated grievance procedures established by collective
bargaining agreements.
/2/ ''Discrimination'' refers to discrimination on the basis of race,
color, religion, sex, national origin, age, and handicapping condition.
/3/ William V. Luneburg, The Federal Personnel Complaint, Appeal,
and Grievance Systems: A Structural Overview and Proposed Revisions, 78
Ky. L. J. ------ (1989).
/4/ See ''Federal Sector Equal Employment Opportunity'' (29 CFR part
1614), 54 Fed. Reg. 45747 (October 31, 1989).
/5/ See Recommendation 86-3, Agencies' Use of Alternative Means of
Dispute Resolution, 1 CFR 305.86-3.
01 CFR 310.15 A. Need for Comprehensive Overview
In considering the issues posed below, Congress should take into
account the fact that the intricate federal personnel scheme consists of
numerous interrelated processes and institutions. Accordingly,
statutory changes should be enacted only after careful consideration of
their potential direct and indirect consequences throughout the system
for resolving employee complaints, grievances and appeals.
01 CFR 310.15 B. Cases Raising Claims of Discrimination
1. The Number of Hearings in Mixed Cases. ''Mixed'' cases are
controversies involving personnel actions appealable to the MSPB, where
an employee alleges that unlawful discrimination was a basis for the
agency's action. These cases are ''mixed'' in that they involve issues
both of civil service law and employment discrimination. Under present
law federal employees, unlike employees in the private sector, on
allegations of employment discrimination in such cases, have a right to
a full trial-type administrative hearing (at the MSPB) and, if
unsuccessful, may obtain a second de novo adjudicatory hearing in United
States District Court. The question for congressional consideration is
whether an employee who has chosen a trial-type administrative hearing
in a mixed case, and has then been afforded the opportunity for a full
evidentiary hearing on the record on all relevant matters, should be
entitled to a judicial trial de novo or should be limited to judicial
review in a court of appeals on the administrative record under the
substantial evidence test -- the customary venue and scope of review of
formal administrative adjudications.
2. The Process for Deciding Mixed Cases. The statutory procedure for
mixed cases provides the opportunity for sequential consideration by the
MSPB and the EEOC, with the possibility of further proceedings before a
Special Panel consisting of one member of the MSPB, one member of the
EEOC, and a chairman appointed by the President for a term of six years
with the advice and consent of the Senate. Through these provisions,
the CSRA embodies Congress' effort to bring to bear both the MSPB's
expertise in general issues of personnel law and the EEOC's expertise
with discrimination issues. This complex procedure is intended to
achieve a balanced use of both agencies' expertise.
In most mixed cases presented to the EEOC, the Commission has
accepted the MSPB decision and, where it has not, the MSPB has generally
deferred to the Commission's disposition of these cases. During the
first ten years of the CSRA, there has been only three Special Panel
proceedings, indicating that the two agencies have failed to reach an
accommodation in only a very limited number of cases. Even where a
Special Panel was unnecessary, however, sequential consideration by the
MSPB and the EEOC has required significant time and effort and has at
times led to confusion on the part of agencies and claimants. The
question for congressional consideration is whether experience confirms
the desirability of dual agency participation in mixed cases or whether
that experience suggests that consistently fair and more timely results
may be achieved through a less complex process.
3. Government's Right to Appeal. Under existing law the government
may petition for judicial review of certain administrative and arbitral
decisions in personnel cases that present significant issues of civil
service law. The availability of such review is either uncertain or
non-existent when those decisions implicate issues of discrimination
law. /6/ There is disagreement over the desirability of permitting the
government to seek a judicial resolution of legal issues that have been
decided adversely to the government at the administrative level.
The question for congressional consideration is whether in the
interest of consistency the government should have the right to judicial
review (or at least the authority to petition for it) in cases where the
Director of OPM determines that an administrative or arbitral decision
constitutes an incorrect interpretation of civil service or
discrimination law that may have a substantial impact. The primary
countervailing considerations are the increased potential for further
delay in final resolution of such cases and whether the executive branch
should be authorized to seek judicial resolution of disputes between two
of its agencies, as would be the case if OPM were permitted to appeal
from adverse determinations of the EEOC.
/6/ See, e.g., Moore v. Devine, 780 F.2d 1559 (11th Cir. 1986).
01 CFR 310.15 C. Enforcement of Arbitration Awards
Although federal employee grievance arbitration awards are intended
to be binding, federal agencies do not always comply with them. Under
the CSRA, the only mechanism available to a federal employee seeking to
enforce an arbitral award is an unfair labor practice proceeding before
the FLRA. Such a proceeding requires filing of a complaint by the
Authority's General Counsel and a hearing before the FLRA, followed by
judicial review and enforcement of the resulting FRLA order. There is
substantial dispute over the question whether an employing agency may
raise any defense to an enforcement action other than compliance with
the arbitral award.
Questions for congressional consideration include to permit an
employee or union to seek direct judicial enforcement of federal sector
grievance arbitration awards, where such enforcement should take place,
and what issues should be open for litigation in the chosen forum. A
central issue is whether permitting such direct enforcement actions
would increase or decrease the likelihood of voluntary agency compliance
with arbitration awards.
01 CFR 310.15 D. Need To Examine Existing Adjudicatory Systems
1. Agency Administrative Grievance Systems. Agency administrative
systems have taken on increasing importance as the only avenue of
redress /7/ available to an individual employee in cases not falling
within MSPB or EEOC jurisdiction or within the scope of a negotiated
grievance procedure. The Office of Personnel Management and other
agencies should ensure that these systems in fact provide fair,
efficient, and timely resolution of workplace disputes, and further
studies of the structure and usage of these systems may be needed. /8/
In reviewing these processes, agencies should give careful consideration
to alternative means of dispute resolution.
2. Agency Complaint Processes in Discrimination Cases. Over the
years, criticism has been leveled at the quality and timeliness of
agency disposition of discrimination complaints. The EEOC and
individual employing agencies should continue to take steps to ensure
adequate and expeditious investigation and timely, final resolution of
such claims. Experimentation with, and incorporation of, alternative
dispute resolution techniques may be useful.
3. MSPB and Negotiated Grievance Systems. The MSPB process and the
various negotiated grievance processes dispose of large numbers of
significant employee claims. Concerns have been expressed regarding
certain aspects of their operation, including the familiarity of
arbitrators with federal personnel law and the need for increasing the
statutory independence of the MSPB's administrative judges. These
concerns may warrant further study.
/7/ See, e.g., Harrison v. Bowen, 815 F.2d 1505 (D.C. Cir. 1987).
/8/ OPM has recently reviewed the systems established by agencies and
has published a study entitled A Survey of Agency Administrative
Grievance Systems (June 1989).
01 CFR 310.15 E. Better Communication Within Agencies and to Employees
Multiple avenues for relief present the danger of parallel, duplicate
proceedings. Agencies should take steps to ensure that there are
consistent patterns of communication among their personnel, labor
relations and equal employment opportunity staffs to reduce the
likelihood of parallel, duplicative proceedings in personnel actions for
which such duplication is not permitted by law.
To use the personnel grievance system effectively, employees must
have clear and reliable information about options available to them and
the consequence of choosing one route over another. The Office of
Personnel Management and other agencies should ensure that there exist
readily available and easily understandable written or other materials
that inform federal employees of their complaint, grievance and appeal
options and the consequences of their choice of one complaint, grievance
or appellate route over another.
(54 FR 53498, Dec. 29, 1989)
01 CFR 310.15 PART 315 -- MODEL RULES FOR IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS
01 CFR 310.15 Subpart A -- General Provisions
Sec.
315.101 Purpose of these rules.
315.102 When the Act applies.
315.103 Proceedings covered.
315.104 Eligibility of applicants.
315.105 Standards for awards.
315.106 Allowable fees and expenses.
315.107 Rulemaking on maximum rates for attorney fees.
315.108 Awards against other agencies.
315.109 Delegations of authority.
01 CFR 310.15 Subpart B -- Information Required From Applicants
315.201 Contents of application.
315.202 Net worth exhibit.
315.203 Documentation of fees and expenses.
315.204 When an application may be filed.
01 CFR 310.15 Subpart C -- Procedures for Considering Applications
315.301 Filing and service of documents.
315.302 Answer to application.
315.303 Reply.
315.304 Comments by other parties.
315.305 Settlement.
315.306 Further proceedings.
315.307 Decision.
315.308 Agency review.
315.309 Judicial review.
315.310 Payment of award.
Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C.
504(c)(1)); Pub. L. 99-80, 99 Stat. 183.
Source: 51 FR 16665, May 6, 1986, unless otherwise noted.
01 CFR 310.15 Subpart A -- General Provisions
01 CFR 315.101 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ''the Act'' in
this part), provides for the award of attorney fees and other expenses
to eligible individuals and entities who are parties to certain
administrative proceedings (called ''adversary adjudications'') before
this agency. An eligible party may receive an award when it prevails
over an agency, unless the agency's position was substantially justified
or special circumstances make an award unjust. The rules in this part
describe the parties eligible for awards and the proceedings that are
covered. They also explain how to apply for awards, and the procedures
and standards that this agency will use to make them.
01 CFR 315.102 When the Act applies.
The Act applies to any adversary adjudication pending or commenced
before this agency on or after August 5, 1985. It also applies to any
adversary adjudication commenced on or after October 1, 1984, and
finally disposed of before August 5, 1985, provided that an application
for fees and expenses, as described in Subpart B of these rules, has
been filed with the agency within 30 days after August 5, 1985, and to
any adversary adjudication pending on or commenced on or after October
1, 1981, in which an application for fees and other expenses was timely
filed and was dismissed for lack of jurisdiction.
01 CFR 315.103 Proceedings covered.
(a) The Act applies to adversary adjudications conducted by this
agency. These are (1) adjudications under 5 U.S.C. 554 in which the
position of this or any other agency of the United States, or any
component of an agency, is presented by an attorney or other
representative who enters an appearance and participates in the
proceeding, and (2) appeals of decisions of contracting officers made
pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C.
605) before agency boards of contract appeals as provided in section 8
of that Act (41 U.S.C. 607). Any proceeding in which this agency may
prescribe a lawful present or future rate is not covered by the Act.
Proceedings to grant or renew licenses are also excluded, but
proceedings to modify, suspend, or revoke licenses are covered if they
are otherwise ''adversary adjudications.'' For this agency, the types of
proceedings generally covered include: (to be supplied by the agency)
Alt. 315.103(a): (for use by contract appeals boards) The Act
applies to appeals of decisions of contracting officers made pursuant to
section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before
this board as provided in section 8 of that Act (41 U.S.C. 607).
(b) This agency's failure to identify a type of proceeding as an
adversary adjudication shall not preclude the filing of an application
by a party who believes the proceeding is covered by the Act; whether
the proceeding is covered will then be an issue for resolution in
proceedings on the application.
(c) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
01 CFR 315.104 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award. The term ''party'' is defined
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions
of eligibility set out in this subpart and in subpart B.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees; and
(5) Any other partnership, corporation, association, unit of local
government, or organization with a net worth of not more than $7 million
and not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
Alt. 315.104(c): (for use by contract appeals boards) For the
purpose of eligibility, the net worth and number of employees of an
applicant shall be determined as of the date the applicant filed its
appeal under 41 U.S.C. 606.
(d) An applicant who owns an unincorporated business will be
considered as an ''individual'' rather than a ''sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(e) The employees of an applicant include all persons who regularly
perform services for renumeration for the applicant, under the
applicant's direction and control. Part-time employees shall be
included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of
its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interests of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the adjudicative officer determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
adjudicative officer may determine that financial relationships of the
applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
01 CFR 315.105 Standards for awards.
(a) A prevailing applicant may receive an award for fees and expenses
incurred in connection with a proceeding or in a significant and
discrete substantive portion of the proceeding, unless the position of
the agency over which the applicant has prevailed was substantially
justified. The position of the agency includes, in addition to the
position taken by the agency in the adversary adjudication, the action
or failure to act by the agency upon which the adversary adjudication is
based. The burden of proof that an award should not be made to an
ineligible prevailing applicant because the agency's position was
substantially justified is on the agency counsel.
(b) An award will be reduced or denied if the applicant has unduly or
unreasonably protracted the proceeding or if special circumstances make
the award sought unjust.
01 CFR 315.106 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents and expert
witnesses, even if the services were made available without charge or at
reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under these rules
may exceed $75.00 per hour. No award to compensate an expert witness
may exceed the highest rate at which this agency pays expert witnesses,
which is (to be supplied by the agency). However, an award may also
include the reasonable expenses of the attorney, agent, or witness as a
separate item, if the attorney, agent or witness ordinarily charges
clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the adjudicative officer shall
consider the following:
(1) If the attorney, agent or witness is in private practice, his or
her customary fees for similar services, or, if an employee of the
applicant, the fully allocated costs of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the services does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of applicant's case.
01 CFR 315.107 Rulemaking on maximum rates for attorney fees.
(a) If warranted by an increase in the cost of living or by special
circumstances (such as limited availability of attorneys qualified to
handle certain types of proceedings), this agency may adopt regulations
providing that attorney fees may be awarded at a rate higher than $75
per hour in some or all of the types of proceedings covered by this
part. This agency will conduct any rulemaking proceedings for this
purpose under the informal rulemaking procedures of the Administrative
Procedure Act.
(b) Any person may file with this agency a petition for rulemaking to
increase the maximum rate for attorney fees, in accordance with
(cross-reference to, or description of, standard agency procedure for
rulemaking petitions.) The petition should identify the rate the
petitioner believes this agency should establish and the types of
proceedings in which the rate should be used. It should also explain
fully the reasons why the higher rate is warranted. This agency will
respond to the petition within 60 days after it is filed, by initiating
a rulemaking proceeding, denying the petition, or taking other
appropriate action.
01 CFR 315.108 Awards against other agencies.
If an applicant is entitled to an award because it prevails over
another agency of the United States that participates in a proceeding
before this agency and takes a position that is not substantially
justified, the award or an approriate portion of the award shall be made
against that agency.
01 CFR 315.109 Delegations of authority.
This agency delegates to (identify appropriate agency unit or
officer) authority to take final action on matters pertaining to the
Equal Access to Justice Act, 5 U.S.C. 504, in actions arising under
(list statutes or types of proceedings.) This agency may by order
delegate authority to take final action on matters pertaining to the
Equal Access to Justice Act in particular cases to other subordinate
officials or bodies.
Alt. 315.109: (Contract appeals boards may omit this section.)
01 CFR 315.109 Subpart B -- Information Required From Applicants
01 CFR 315.201 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of an agency or agencies that the applicant
alleges was not substantially justified. Unless the applicant is an
individual, the application shall also state the number of employees of
the applicant and describe briefly the type and purpose of its
organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $2 million (if an individual) or
$7 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes this agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized
officer or attorney of the applicant. It shall also contain or be
accompanied by a written verification under oath or under penalty of
perjury that the information provided in the application is true and
correct.
01 CFR 315.202 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or
cooperative association must provide with its application a detailed
exhibit showing the new worth of the applicant and any affiliates (as
defined in 315.104(f) of this part) when the proceeding was initiated.
The exhibit may be in any form convenient to the applicant that provides
full disclosure of the applicant's and its affiliates' assets and
liabilities and is sufficient to determine whether the applicant
qualifies under the standards in this part. The adjudicative officer
may require an applicant to file additional information to determine its
eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of information in any portion of the exhibit and believes
there are legal grounds for withholding it from disclosure may submit
that portion of the exhibit directly to the adjudicative officer in a
sealed envelope labeled ''Confidential Financial Information,''
accompanied by a motion to withhold the information from public
disclosure. The motion shall describe the information sought to be
withheld and explain, in detail, why it falls within one or more of the
specific exemptions from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552(b) (1)-(9), why public disclosure of the
information would adversely affect the applicant, and why disclosure is
not required in the public interest. The material in question shall be
served on counsel representing the agency against which the applicant
seeks an award, but need not be served on any other party to the
proceeding. If the adjudicative officer finds that the information
should not be withheld from disclosure, it shall be placed in the public
record of the proceeding. Otherwise, any request to inspect or copy the
exhibit shall be disposed of in accordance with this agency's
established procedures under the Freedom of Information Act (insert
cross reference to agency FOIA rules).
01 CFR 315.203 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing the hours spent in connection with the proceeding
by each individual, a description of the specific services performed,
the rates at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount
paid or payable by the applicant or by any other person or entity for
the services provided. The adjudicative officer may require the
applicant to provide vouchers, receipts, logs, or other substantiation
for any fees or expenses claimed, pursuant to 315.306 of these rules.
01 CFR 315.204 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding or in a significant and discrete substantive portion
of the proceeding, but in no case later than 30 days after this agency's
final disposition of the proceeding.
(b) For purposes of this rule, final disposition means the date on
which a decision or order disposing of the merits of the proceeding or
any other complete resolution of the proceeding, such as a settlement or
voluntary dismissal, become a final and unappealable, both within the
agency and to the courts.
(c) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy. When the United States appeals the underlying
merits of an adversary adjudication to a court, no decision on an
application for fees and other expenses in connection with that
adversary adjudication shall be made until a final and unreviewable
decision is rendered by the court on the appeal or until the underlying
merits of the case have been finally determined pursuant to the appeal.
01 CFR 315.204 Subpart C -- Procedures for Considering Applications
01 CFR 315.301 Filing and service of documents.
Any application for an award or other pleading or document related to
an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding,
except as provided in 315.202(b) for confidential financial
information.
01 CFR 315.302 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought may file an
answer to the application. Unless agency counsel requests an extension
of time for filing or files a statement of intent to negotiate under
paragraph (b) of this section, failure to file an answer within the
30-day period may be treated as a consent to the award requested.
(b) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted by the adjudicative officer upon
request by agency counsel and the applicant.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of agency
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, agency counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under 315.306.
01 CFR 315.303 Reply.
Within 15 days after service of an answer, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
315.306.
01 CFR 315.304 Comments by other parties.
Any party to a proceeding other than the applicant and agency counsel
may file comments on an application within 30 days after it is served or
on an answer within 15 days after it is served. A commenting party may
not participate further in proceedings on the application unless the
adjudicative officer determines that the public interest requires such
participation in order to permit full exploration of matters raised in
the comments.
01 CFR 315.305 Settlement.
The application and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded, in accordance with the
agency's standard settlement procedure. If a prevailing party and
agency counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement.
01 CFR 315.306 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the
applicant or agency counsel, or on his or her own initiative, the
adjudicative officer may order further proceedings, such as an informal
conference, oral argument, additional written submissions or, as to
issues other than substantial justification (such as the applicant's
eligibility or substantiation of fees and expenses), pertinent discovery
or an evidentiary hearing. Such further proceedings shall be held only
when necessary for full and fair resolution of the issues arising from
the application, and shall be conducted as promptly as possible.
Whether or not the position of the agency was substantially justified
shall be determined on the basis of the administrative record, as a
whole, which is made in the adversary adjudication for which fees and
other expenses are sought.
(b) A request that the adjudicative officer order further proceedings
under this section shall specifically identify the information sought or
the disputed issues and shall explain why the additional proceedings are
necessary to resolve the issues.
01 CFR 315.307 Decision.
The adjudicative officer shall issue an initial decision on the
application within (to be supplied by the agency) days after completion
of proceedings on the application. The decision shall include written
findings and conclusions on the applicant's eligibility and status as a
prevailing party, and an explanation of the reasons for any difference
between the amount requested and the amount awarded. The decision shall
also include, if at issue, findings on whether the agency's position was
substantially justified, whether the applicant unduly protracted the
proceedings, or whether special circumstances make an award unjust. If
the applicant has sought an award against more than one agency, the
decision shall allocate responsibility for payment of any award made
among the agencies, and shall explain the reasons for the allocation
made.
Alt. 315.307 (for use by contract appeals boards) The Board shall
issue its decision on the application within (to be supplied by the
agency) days after completion of proceedings on the application.
Whenever possible, the decision shall be made by the same administrative
judge or panel that decided the contract appeal for which fees are
sought. The decision shall include written findings . . . . (Continue
as in 315.307, from the second sentence to the end.)
01 CFR 315.308 Agency review.
Either the applicant or agency counsel may seek review of the initial
decision on the fee application, or the agency may decide to review the
decision on its own initiative, in accordance with (cross-reference to
agency's regular review procedures.) If neither the applicant nor agency
counsel seeks review and the agency does not take review on its own
initiative, the initial decision on the application shall become a final
decision of the agency (30) days after it is issued. Whether to review
a decision is a matter within the discretion of the agency. If review
is taken, the agency will issue a final decision on the application or
remand the application to the adjudicative officer for further
proceedings.
Alt. 315.308: (for use by contract appeals board) Reconsideration.
Either party may seek reconsideration of the decision on the fee
application in accordance with (cross-reference to rule on
reconsideration of contract appeals board decisions).
01 CFR 315.309 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
01 CFR 315.310 Payment of award.
An applicant seeking payment of an award shall submit to the
(comptroller or other disbursing official) of the paying agency a copy
of the agency's final decision granting the award, accompanied by a
certification that the applicant will not seek review of the decision in
the United States courts. (Include here address for submissions at
specific agency.) The agency will pay the amount awarded to the
applicant within 60 days.
01 CFR 315.310 PART 316 -- ROSTER OF DISPUTE RESOLUTION NEUTRALS
01 CFR 315.310 Pt. 316
01 CFR 315.310 Subpart A -- Conference Roster; Responsibilities
Sec.
316.100 Scope and purpose.
316.101 Definitions.
316.102 Administrative responsibilities.
01 CFR 315.310 Subpart B -- Roster; Registration and Removal
316.200 The roster.
316.201 Adherence to standards.
316.202 Status of neutrals.
316.203 Registration.
316.204 Rights of persons listed on the roster.
316.205 Removal.
01 CFR 315.310 Subpart C -- Procedures for Obtaining Names of Neutrals
316.300 Request.
316.301 Submissions of names of neutrals.
316.302 Conflict of interest; complaints.
Authority: Pub. L. 88-499, 78 Stat. 615, 5 U.S.C. 571 through 575;
31 U.S.C. 9701.
Source: 54 FR 39724, Sept. 28, 1989, unless otherwise noted.
01 CFR 315.310 Subpart A -- Conference Roster; Responsibilities
01 CFR 316.100 Scope and purpose.
These rules are issued pursuant to the Administrative Conference Act,
5 U.S.C. 571-575, providing authority to arrange for interchange among
Federal administrative agencies of information potentially useful in
improving administrative procedure, and to assist agencies to carry out
regulatory activities and other Federal responsibilities expeditiously
in the public interest. This part applies to all neutrals listed or
seeking to be listed on the Roster, and to all persons or parties
seeking to obtain from the Conference the names of neutrals listed on
the Roster in connection with disputes involving Federal administrative
programs and, within the Conference's discretion, other disputes.
01 CFR 316.101 Definitions.
(a) Administrative program means any program administered by a
Federal agency and includes a Federal function which involves protection
of the public interest and the determination of rights, privileges, and
obligations of private persons through rulemaking, adjudication,
licensing, or investigation, as such terms are used in section 551 of
title 5, U.S. Code.
(b) Chairman means the Chairman of the Administrative Conference of
the United States or his designee.
(c) Dispute means any question material to a decision concerning an
administrative program, or, within the Conference's discretion, any
other decision, about which persons who would be substantially affected
by the decision or the agency disagree.
(d) Neutral means an individual who or organization which serves as a
conciliator, facilitator, mediator, fact-finder, trainer, special
master, or arbitrator, or otherwise functions specifically to aid the
parties in resolving a dispute or portions thereof.
(e) Party means
(1) For proceedings with designated parties, the same as in section
551(3) of title 5, U.S. Code;
(2) For proceedings without designated parties, a person who will be
significantly affected by the decision and who participates in the
proceeding; and
(3) The authorized representative of any agency charged with
decisionmaking authority.
(f) Roster means a list maintained by the Chairman of persons
qualified to provide services as neutrals in disputes.
01 CFR 316.102 Administrative responsibilities.
The Chairman may establish and maintain a Roster of persons to serve
as neutrals in assisting parties in resolving disputes involving
administrative programs and, within his discretion, other disputes. The
Chairman shall have final responsibility for creation and maintenance of
the Roster. The Chairman may review the status of all persons whose
continued eligibility for listing on the Roster has been questioned and
make determinations about such eligibility according to the criteria set
forth in 316.205(a).
01 CFR 316.102 Subpart B -- Roster; Registration and Removal
01 CFR 316.200 The roster.
(a) The Roster shall consist of a listing of persons who provide all
information required by the neutral registration form, and whose names
have not been removed from the Roster in accordance with 316.205(b).
(b) Neither the Chairman nor the Conference will warrant the accuracy
of the information furnished by persons listed on the Roster.
01 CFR 316.201 Adherence to standards.
Persons listed on the Roster shall have committed in writing to
comply with all provisions of part 316 and subsequent amendments hereto
as from time to time may be issued by the Conference.
01 CFR 316.202 Status of neutrals.
Persons listed on the Roster are not employees of the Conference or
Federal Government by virtue of their listing.
01 CFR 316.203 Registration.
(a) Persons wishing to be listed on the Roster will obtain and
complete a current neutral registration form and have it notarized or
otherwise attested.
(b) Upon receipt of a completed registration form, the Chairman will
review the form to assure that all required information has been
provided. The Chairman reserves the right to review and to verify data
submitted, but any such attempts to verify submitted data will not
constitute a warranty of accuracy. A prospective registrant shall be
notified promptly in writing of a decision that an application is
accepted, incomplete or inaccurate. The Conference may require persons
wishing to be listed to provide additional information from time to
time. All decisions by the Chairman about whether a registration form
is sufficiently complete and accurate are final.
(c) At least once every two years, a person listed on the Roster will
either (1) submit a new registration form, or (2) send the Chairman a
short letter verifying the continuing accuracy of the person's current
listing.
(d) Persons wishing to be listed on the Roster must agree that the
Chairman may provide the names, addresses and telephone numbers of
parties in cases handled, including all cases to which the neutral was
referred as a result of listing on the Roster. They shall also certify
that all data supplied are accurate and agree to abide by ethical
standards that may be promulgated by the Society of Professionals in
Dispute Resolution and such other standards as may be applicable to
them.
(e) The Chairman reserves the right to charge fees for obtaining or
renewing listing or for using the Roster.
01 CFR 316.204 Rights of persons listed on the roster.
(a) No person shall have any right to be listed, to remain listed,
nor to be referred or selected for any dispute.
(b) A person listed on the Roster may request placement on inactive
status, return to active status, or removal from the Roster.
(c) Neutrals may request revision of data supplied on the neutral
evaluation form, or any summaries thereof.
01 CFR 316.205 Removal.
(a) Any person may be removed from the Roster by the Chairman
whenever the neutral:
(1) Is found to have submitted materially false data in connection
with registration on the Roster;
(2) Fails or refuses to provide information required to obtain or
maintain registration or to make reasonable and prompt reports, as
required by Conference procedures;
(3) Fails to disclose any information required by section 302(a);
(4) Has been the subject of complaints of significant unethical or
illegal behavior by parties who use the neutral's services as a result
of referral from the Roster and the Chairman after appropriate inquiry
finds just cause for removal; or
(5) Is found by the Chairman to have improperly disclosed any record
or communication arising from a proceeding without the parties' consent
unless such record or communication is properly ordered to be disclosed
under the agency's applicable procedural rule or by a Court of competent
jurisdiction.
(b) Prior to removal under subsection (a), the Chairman shall offer
the neutral 45 days in which to submit arguments and evidence relevant
to the decision. Any decision to remove a neutral's name from the
Roster shall be accompanied by a brief statement of reasons.
01 CFR 316.205 Subpart C -- Procedure for Obtaining Names of Neutrals
01 CFR 316.300 Request.
Any party or parties to a dispute may file with the Chairman a
written request for a list of neutrals. Telephone requests may be
accepted at the Chairman's discretion. A request for the names of
neutrals shall contain a brief statement of the nature of the dispute
and the names, addresses and telephone numbers of all parties to the
dispute. A request form has been prepared for parties' use. Requests
should be addressed to: Manager of Roster Services, Office of the
Chairman, Administrative Conference of the United States, 2120 L Street
NW., Suite 500, Washington, DC 20037. The initiating party shall also
file a copy of the request with every other party to the dispute.
Neither the request for, nor the furnishing of, a list of names
constitutes a determination that an agreement to mediate or enter into
any other dispute resolution procedure exists, nor does such action
constitute any finding about the obligations of the parties.
01 CFR 316.301 Submission of names of neutrals.
(a) Upon receipt of a request for names involving a Federal
administrative program, the Chairman shall ordinarily send the requester
approximately the requested number of names of listed neutrals who
appear to be qualified and a biographical statement for each name so
provided. The Chairman may in his discretion respond to requests
regarding other disputes, and may establish procedures or guidance for
the purpose of providing the parties with a list of names of neutrals.
If the parties cannot agree on a neutral after the receipt of these
names, the Chairman may, on the request of the parties and in his
discretion, select an individual either named or not named in the list
sent to the parties.
(b) The Chairman reserves the right to decline to submit names if the
request is unduly burdensome or otherwise impracticable.
(c) If jointly requested by all parties, the Chairman may furnish a
second, or third, list of names to the parties. Requests for further
lists in that dispute will not be honored.
(d) The parties shall notify the Chairman of their selection of a
neutral and of the identity of the neutral selected, or of the decision
not to use the services of a neutral whose name was furnished by the
Conference.
01 CFR 316.302 Conflict of interest; complaints.
(a) Any person listed on the Roster, who is contacted by a party to a
dispute as a result of that listing, must disclose to all parties to
that dispute, prior to beginning dispute resolution efforts, the
following interests or relationships:
(1) Any existing or past financial, business, professional, family,
social or other relationships with any of the parties to the dispute,
their employees, or their attorneys;
(2) Previous or current involvement in the dispute at hand;
(3) Past or prospective employment, including employment as a neutral
in previous disputes, by any of the parties;
(4) Past or present receipt of a significant portion of the neutral's
general operating funds or grants to the neutral or the organization by
which the neutral is employed from one or more of the parties to the
dispute; or
(5) Any other circumstances likely to create a presumption of bias or
the appearance of bias.
All scheduling conflicts which may prevent prompt meetings shall also
be disclosed. Upon receipt of such information which results in the
disqualification of a neutral either by the Chairman or upon the request
of any party, the Chairman may supply to the requesting party one or
more additional names from the Roster.
(b) The Chairman may inquire into complaints alleging violations of
legal or ethical standards by a neutral in a case handled pursuant to
Roster listing. If such allegations are confirmed, the Chairman may
remove the neutral's name from the Roster and retain the complaint in
the neutral's file. The Chairman retains the right to notify legal or
other authorities if there is reason to believe illegal or unethical
activity has occurred.
01 CFR 316.302 PART 326 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
01 CFR 316.302 Pt. 326
Sec.
326.101 Purpose.
326.102 Application.
326.103 Definitions.
326.104 -- 326.109 (Reserved)
326.110 Self-evaluation.
326.111 Notice.
326.112 -- 326.129 (Reserved)
326.130 General prohibitions against discrimination.
326.131 -- 326.139 (Reserved)
326.140 Employment.
326.141 -- 326.148 (Reserved)
326.149 Program accessibility: Discrimination prohibited.
326.150 Program accessibility: Existing facilities.
326.151 Program accessibility: New construction and alterations.
326.152 -- 326.159 (Reserved)
326.160 Communications.
326.161 -- 326.169 (Reserved)
326.170 Compliance procedures.
326.171 -- 326.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 51 FR 4573, 4579, Feb. 5, 1986, unless otherwise noted.
01 CFR 326.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
01 CFR 326.102 Application.
This part applies to all programs or activities conducted by the
agency.
01 CFR 326.103 Definitions.
For purposes of this part, the term --
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one of more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addition and
alcholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified handicapped person means --
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can achieve the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
(3) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by 326.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
(51 FR 4573, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986)
326.104 -- 326.109 (Reserved)
01 CFR 326.110 Self-evaluation.
(a) The agency shall, by April 9, 1987, evaluate its current policies
and practices, and the effects thereof, that do not or may not meet the
requirements of this part, and, to the extent modification of any such
policies and practices is required, the agency shall proceed to make the
necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including handicapped persons or organizations representing handicapped
persons, to participate in the self-evaluation process by submitting
comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspections:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
01 CFR 326.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
326.112 -- 326.129 (Reserved)
01 CFR 326.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualfied handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
326.131 -- 326.139 (Reserved)
01 CFR 326.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613, shall apply to employment in federally conducted programs or
activities.
326.141 -- 326.148 (Reserved)
01 CFR 326.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 326.150, no qualified handicapped
person shall, because the agency's facilities are inaccessible to or
unusable by handicapped persons, be denied the benefits of, be excluded
from participation in, or otherwise be subjected to discrimination under
any program or activity conducted by the agency.
01 CFR 326.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with 326.150(a) would result in such alteration
or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
handicapped persons. The agency is nor required to make structural
changes in existing facilities where other methods are effective in
achieving compliance with this section. The agency, in making
alterations to existing buildings, shall meet accessibility requirements
to the extent compelled by the Architectural Barriers Act of 1968, as
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In
choosing among available methods for meeting the requirements of this
section, the agency shall give priority to those methods that offer
programs and activities to qualified handicapped persons in the most
integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by June 6, 1986, except that
where structural changes in facilities are undertaken, such changes
shall be made by April 7, 1989, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by October 7, 1986, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum
--
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
(51 FR 4573, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986)
01 CFR 326.151 Program accessibility: New construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of
the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in
41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
326.152 -- 326.159 (Reserved)
01 CFR 326.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 326.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity, and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
handicapped persons receive the benefits and services of the program or
activity.
326.161 -- 326.169 (Reserved)
01 CFR 326.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The General Counsel shall be responsible for coordinating
implementation of this section. Complaints may be sent to General
Counsel, Administrative Conference of the United States, 2120 L St.,
NW., Suite 500, Washington, DC 20037.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found;
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by 326.170(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the
agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(51 FR 4573, 4579, Feb. 5, 1986, as amended at 51 FR 4573, Feb. 5,
1986)
326.171 -- 326.999 (Reserved)
01 CFR 326.170 1 CFR Ch. IV (1-1-92 Edition)
01 CFR 326.170 Miscellaneous Agencies
01 CFR 326.170 CHAPTER IV -- MISCELLANEOUS AGENCIES
Editorial Note: Federal agencies are required to publish regulations
implementing the provisions of the Freedom of Information Act (5 U.S.C.
552(a)), the Privacy Act of 1974 (Pub. L. 93-579, 5 U.S.C. 552a), the
Government in the Sunshine Act (Pub. L. 94-409, 5 U.S.C. 552b), and
section 504 of the Rehabilitation Act of 1973, as amended by section 119
of the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (29 U.S.C. 794). While most agencies
have existing chapter assignments in the Code of Federal Regulations, a
few agencies do not. Since certain of these agencies are unlikely to be
issuing regulations other than those relating to the acts mentioned
above, the Director of the Office of the Federal Register has grouped
these miscellaneous agencies into this chapter as an efficient means of
administering the CFR system.
Part
Page
425 President's Commission on White House Fellowships
455 National Capital Planning Commission (Privacy Act regulations)
456 National Capital Planning Commission (Freedom of Information Act
regulations)
457 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the National Capital Planning
Commission
462 Federal Home Loan Mortgage Corporation (Book-entry regulations)
500 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the National Commission for
Employment Policy
01 CFR 326.170
01 CFR 326.170 1 CFR Ch. IV (1-1-92 Edition)
01 CFR 326.170 Miscellaneous Agencies
01 CFR 326.170 PART 425 -- PRESIDENT'S COMMISSION ON WHITE HOUSE
FELLOWSHIPS
Sec.
425.1 Purpose and scope.
425.2 Procedures for notification of existence of records pertaining
to individuals.
425.3 Procedure for requests for access to or disclosure of records
pertaining to individuals.
425.4 Correction of records.
425.5 Disclosure of records to agencies or persons other than the
individual to whom the record pertains.
Authority: 5 U.S.C. 552a(f).
Source: 40 FR 52416, Nov. 10, 1975; 40 FR 56651, Dec. 4, 1975,
unless otherwise noted.
01 CFR 425.1 Purpose and scope.
This part sets forth the President's Commission on White House
Fellowships procedures under the Privacy Act of 1974 as required by 5
U.S.C. 552a(f). Information to applicants regarding the implementation
of this Act is contained in the White House Fellowships Application
Instructions.
01 CFR 425.2 Procedures for notification of existence of records
pertaining to individuals.
(a) The system of records, as defined in the Privacy Act of 1974,
maintained by the President's Commission on White House Fellowships is
listed annually in the Federal Register as required by that Act. Any
person who wishes to know whether a system of records contains a record
pertaining to him or her may either appear in person at Room 1308, 1900
E Street, NW., on work days between the hours of 8:30 a.m. and 5 p.m.
or may write to the President's Commission on White House Fellowships
Administrative Officer, Washington, DC 20415 (Phone 202-382-4661). It
is recommended that requests be made in writing.
(b) Requests for notification of the existence of a record should
state, if the requester is other than the individual to whom the record
pertains, the relationship of the requester to that individual. (Note
that requests will not be honored by the Commission pursuant to the
Privacy Act unless made: (1) By the individual to whom the record
pertains or (2) by such individual's legal guardian if the individual
has been declared to be incompetent due to physical or mental incapacity
or age by a court of competent jurisdiction.)
(c) The Commission will acknowledge requests for the existence of
records within 10 working days from the time it receives the request and
will normally notify the requester of the existence or non-existence of
records within 30 working days from receipt of request.
(d) No special identity verification is required for individuals who
wish to know whether a specific system of records pertains to them.
(40 FR 52416, Nov. 10, 1975; 40 FR 56651, Dec. 4, 1975, as amended
at 40 FR 59187, Dec. 22, 1975)
01 CFR 425.3 Procedure for requests for access to or disclosure of
records pertaining to individuals.
(a) Any person may request review of records pertaining to him by
appearing at Room 1308, 1900 E Street, NW., Washington, DC on work days
between the hours of 8:30 a.m. and 5 p.m. or by writing to the
Commission on White House Fellowships Administrative Officer,
Washington, DC 20415. (See paragraph (b) of this section for
identification requirements.) The Commission will strive either to make
the record available within 15 working days of the request or to inform
the requester of the need for additional identification.
(b) In the case of persons making requests by appearing at the
Commission, reasonable identification such as employment identification
cards, drivers licenses, or credit cards will normally be accepted as
sufficient evidence of identity in the absence of any indications to the
contrary.
(c) Charges for copies of records will be at the rate of $0.10 per
photocopy of each page. No charge will be made unless the charge as
computed above would exceed $3 for each request or related series of
requests. If a fee in excess of $25 would be required, the requester
shall be notified and the fee must be tendered before the records will
be copied. Remittances shall be in the form either of a personal check
or bank draft drawn on a bank in the United States, or a money order.
Remittances shall be made payable to the order of the Treasury of the
United States and mailed or delivered to the Administrative Officer,
President's Commission on White House Fellowships, 1900 E Street, NW.,
Washington, DC 20415.
(d) Individuals will not be denied access to records pertaining to
them.
(40 FR 52416, Nov. 10, 1975; 40 FR 56651, Dec. 4, 1975, as amended
at 40 FR 59187, Dec. 22, 1975)
01 CFR 425.4 Correction of records.
(a) An individual may request that a record or records pertaining to
him or her be amended or corrected. Such requests shall be submitted in
writing to the Administrative Officer at the Commission's business
address.
(b) The signature of the requester will be sufficient identification
for requesting correction of records.
(c) A request for amendment shall contain an exact description of the
item or items sought to be amended and specific reasons for the
requested amendment, as well as the individual's birthdate for purposes
of verifiction of records.
(d) Within 10 working days after receipt of a request to amend a
record, the Administrative Officer shall transmit to the requester a
written acknowledgement of receipt of request. No acknowledgement is
required if the request can be reviewed and processed with notification
to the individual of compliance or denial within the ten-day period.
Requester will be notified within 30 days whether or not his or her
request has been granted.
(e) If the Administrative Officer determines that the requested
amendment is appropriate to insure that the record is:
(1) Relevant and necessary to accomplish the purposes for which the
records were collected; and
(2) As accurate, timely, and complete as are reasonably necessary to
assure fairness to the requester, the Administrative Officer shall:
(i) Change the record accordingly;
(ii) Advise the requester that the change has been made, thirty days
from receipt of written request;
(iii) After an accounting of disclosures has been kept pursuant to 5
U.S.C. 552a(c), advise all previous recipients of the record, who, the
Commission believes, still retain a copy thereof, of the fact that the
amendment was made and the substance of the amendment.
(f) If, after review of the record, the Administrative Officer
determines that the requested amendment is not in conformity with the
requirements of the Act, he shall:
(1) Advise the requester in writing within thirty days of written
request of such determination together with specific reasons therefor;
and
(2) Inform the requester that further review of the request by the
Director of the Commission is available if a written request therefor is
made within 30 days after date of denial.
(g) Within 30 working days of receipt of a written request for review
pursuant to 425.4(f)(2) the Director shall make an independent review
of the record, using the criteria of 425.4(e) (1) and (2).
(1) If the Director determines that the record should be amended in
accordance with the request, the Administrative Officer shall take the
actions listed in 425.4(e)(2) (i), (ii), and (iii).
(2) If the Director, after independent review, determines that the
record should not be amended in accordance with the request, the
Administrative Officer shall advise the requester:
(i) Of the determination and the reasons therefor;
(ii) Of his or her right to file with the Administrative Officer a
concise statement of his or her reasons for disagreeing with the refusal
to amend the record;
(iii) That the record will be annotated to indicate to anyone
subsequently having access to it that a statement of disagreement has
been filed, and that the statement will be made available to anyone to
whom the record is disclosed;
(iv) That the Director and the Administrative Officer may, in their
discretion, include a brief summary of their reasons for refusing to
amend the record whenever such disclosure is made;
(v) That any prior recipients of this disputed record, who, the
Commission believes, still retain a copy thereof, will be sent a copy of
the statement of disagreement, after an accounting of disclosures has
been kept pursuant to 5 U.S.C. 552a(c);
(vi) Of his or her right to seek judicial review of the refusal to
amend the record, pursuant to 5 U.S.C. 552a(g)(1)(A).
(40 FR 59187, Dec. 22, 1975)
01 CFR 425.5 Disclosure of records to agencies or persons other than
the individual to whom the record pertains.
Records subject to the Privacy Act that are requested by any person
other than the individual to whom they pertain will not be made
available except under the following circumstances:
(a) Records may be circulated to appropriate officials incident to
placing Fellows in work assignments for the Fellowship year.
(b) An accounting of the date, nature, and purpose of each disclosure
of a record as well as the name and address of the person and agency to
whom the disclosure was made will be indicated on the record. This
accounting is available to the individual to whom the records pertain on
written request to the Commission.
(40 FR 52416, Nov. 10, 1975; 40 FR 56651, Dec. 4, 1975, as amended
at 40 FR 59187, Dec. 22, 1975)
01 CFR 425.5 PART 455 -- NATIONAL CAPITAL PLANNING COMMISSION (PRIVACY ACT REGULATIONS)
01 CFR 425.5 Pt. 455
Sec.
455.1 Purpose and scope.
455.2 Definitions.
455.3 Procedures for requests pertaining to individual records in a
record system.
455.4 Times, places, and requirements for identification of
individuals making requests.
455.5 Disclosure of requested information to individuals.
455.6 Request for correction or amendment to the record.
455.7 Agency review of request for correction or amendment of the
record.
455.8 Appeal of an initial adverse agency determination on correction
or amendment of the record.
455.9 Disclosure of record to a person other than the individual to
whom the record pertains.
455.10 Fees.
455.11 Penalties.
455.12 Exemptions.
Authority: 5 U.S.C. 552a.
Source: 42 FR 7921, Feb. 8, 1977, unless otherwise noted.
01 CFR 455.1 Purpose and scope.
These procedures provide the means by which individuals may safeguard
their privacy by obtaining access to, and requesting amendments or
corrections in, information, if any, about these individuals which is
under the control of the National Capital Planning Commission
(hereafter, the ''Commission'').
01 CFR 455.2 Definitions.
For the purpose of these procedures:
(a) The term individual means a citizen of the United States or an
alien lawfully admitted for permanent residence;
(b) The term maintain includes maintain, collect, use, or
disseminate;
(c) The term record means any item, collection or grouping of
information about an individual that is maintained by the Commission,
including, but not limited to, his or her payroll information and
mailing address and that contains his or her name, or the identifying
number, symbol, or other identifying particular assigned to the
individual, such as social security number;
(d) The term system of records means a group of any records under the
control of the Commission from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual; and
(e) The term routine use means, with respect to the disclosure of a
record, the use of such record for a purpose which is compatible with
the purpose for which it was collected.
01 CFR 455.3 Procedures for requests pertaining to individual records
in a record system.
(a) An individual who wishes to know whether a system of records
maintained by the Commission contains a record pertaining to him or her
shall submit a written request to that effect to the appropriate System
Manager at the Commission. The System Manager shall, within 10 days of
the receipt of such submission, inform the individual whether a system
of records maintained by the Commission contains such a record.
(b) An individual who desires access to any identified record shall
file a request therefor, addressed to the System Manager indicating
whether such individual intends to appear in person at the Commission's
offices or whether he or she desires to receive a copy of any identified
record through the mail.
01 CFR 455.4 Times, places, and requirements for identification of
individuals making requests.
(a) An individual who, in accord with 455.3(b) of this part
indicated that he or she would appear personally shall do so at the
Commission's offices, 1325 G Street NW., Washington, DC, between the
hours of 8:30 A.M. and 5:00 P.M., Monday through Friday (legal holidays
excluded) and present a form of identification, such as a valid driver's
license or employee identification card, which will permit the System
Manager to verify that the individual is the same individual as
contained in the record requested.
(b) An individual who, in accord with 455.3(b) of this part
indicated that he or she desired mail delivery of a copy of the record
shall include in the request the date and location of birth of the
individual as suitable proof of identity.
(c) Where the above mentioned forms of identification are not
feasible or appropriate, the Commission shall request a signed statement
from the individual asserting his or her identity and stipulating that
the individual understands that knowingly or willfully seeking or
obtaining access to records about another individual under false
pretenses is punishable by a fine of up to $5,000.
01 CFR 455.5 Disclosure of requested information to individuals.
Upon verification of identity, the System Manager shall disclose to
the individual: (a) The information contained in the record which
pertains to that individual; and (b) the accounting of disclosures of
the record, if any, required by 5 U.S.C. 552a(c).
01 CFR 455.6 Request for correction or amendment to the record.
An individual may request that a record pertaining to him or her be
amended or corrected. The individual shall submit any such request in
accord with 455.3 of this part and shall state therein the item sought
to be amended and specific reasons therefor.
01 CFR 455.7 Agency review of request for correction or amendment of
the record.
Within ten days of the receipt of the request to correct or to amend
the record, the System Manager will acknowledge in writing such receipt
and promptly either: (a) Make any correction or amendment of any
portion thereof which the individual believes is not accurate, relevant,
timely, or complete and inform the individual of same; or (b) inform
the individual of his or her refusal to correct or to amend the record
in accordance with the request, the reason for the refusal, and the
procedures established by the Commission for the individual to request a
review of that refusal.
01 CFR 455.8 Appeal of an initial adverse agency determination on
correction or amendment of the record.
An individual who disagrees with the refusal of the System Manager to
correct or to amend his or her record may submit a request for a review
of such refusal to the Chairman of the Commission, 1325 G Street NW.,
Washington, DC 20576. The Chairman will, not later than thirty days
from the date on which the individual requests such review, complete
such review and make a final determination unless, for good cause shown,
the Chairman extends such thirty day period. If, after his or her
review, the Chairman also refuses to correct or to amend the record in
accordance with the request, the individual may file with the Commission
a concise statement setting forth the reasons for his or her
disagreement with the refusal of the Commission and may seek judicial
review of the Chairman's determination under 5 U.S.C. 552a(g)(1)(A).
01 CFR 455.9 Disclosure of record to a person other than the individual
to whom the record pertains.
An individual to whom a record is to be disclosed in person may have
a person of his or her own choosing accompany the individual when the
record is disclosed.
01 CFR 455.10 Fees.
(a) The Commission will not charge an individual for the costs of
making a search for a record or the costs of reviewing the record. When
the Commission makes a copy of a record as a necessary part of the
process of disclosing the record to an individual, the Commission will
not charge the individual for the cost of making that copy.
(b) If an individual requests the Commission to furnish him or her
with a copy of the record (when a copy has not otherwise been made as a
necessary part of the process of disclosing the record to the
individual), the Commission will charge a fee of $0.25 per page (maximum
per page dimension of 8 1/2 13 inches) to the extent that the request
exceeds $5.00 in cost to the Commission. Requests not exceeding $5.00
in cost to the Commission will be met without cost to the requester.
01 CFR 455.11 Penalties.
Title 18 U.S.C. 1001, Crimes and Criminal Procedures, makes it a
criminal offense, subject to a maximum fine of $10,000 or imprisonment
for not more than five years or both, to knowingly and willfully make or
cause to be made any false or fraudulent statements or representations
in any matter within the jurisdiction of any agency of the United
States. Section 552a(i)(3) of the Privacy Act (5 U.S.C. 552a(i)(3)),
makes it a misdemeanor, subject to a maximum fine of $5,000, to
knowingly and willfully request or obtain any record concerning an
individual under false pretenses. Section 552a(i) (1) and (2) of the
Privacy Act (5 U.S.C. 552a(i) (1) and (2)) provide penalties for
violations by agency employees of the Privacy Act or regulations
established thereunder.
01 CFR 455.12 Exemptions.
No Commission records system is exempted from the provisions of 5
U.S.C. 552a as permitted under certain conditions by 5 U.S.C. 552a (j)
and (k).
01 CFR 455.12 PART 456 -- NATIONAL CAPITAL PLANNING COMMISSION (FREEDOM
OF INFORMATION ACT REGULATIONS)
Sec.
456.1 Introduction.
456.2 Organization.
456.3 Definitions.
456.4 Public access to information.
Authority: 5 U.S.C. 552, as amended.
Source: 47 FR 44229, Oct. 7, 1982, unless otherwise noted.
Editorial Note: Nomenclature changes for part 456 appear at 52 FR
34373, Sept. 11, 1987.
01 CFR 456.1 Introduction.
The following regulations implement the Freedom of Information Act,
as amended, 5 U.S.C. 552 (hereinafter the ''Act''), and provide
procedures by which information may be obtained from the National
Capital Planning Commission (hereinafter the ''Commission''). Official
records made available pursuant to the Act shall be furnished to members
of the public as prescribed herein.
01 CFR 456.2 Organization.
The Commission is the central planning agency for the Federal
Government in the National Capital. The Commission is composed of
ex-officio, the Secretary of the Interior, the Secretary of Defense, the
Administrator of the General Services Administration, the Mayor of the
District of Columbia, the Chairman of the Council of the District of
Columbia, and the Chairman of the Committees on the District of Columbia
of the Senate and the House of Representatives, or their alternates;
and five citizens, three of whom are appointed by the President, and two
of whom are appointed by the Mayor of the District of Columbia. The
Commission is assisted by a staff headed by an Executive Director. The
staff is organized functionally as follows:
(a) Office of the Executive Director;
(b) Legal Section;
(c) Secretariat Section;
(d) Management Services Section;
(e) Planning and Programming Division;
(f) Review and Implementation Division;
(g) Planning Services Division;
(h) Carto/Graphics Division; and,
(i) Public Affairs Division.
(47 FR 44229, Oct. 7, 1982, as amended at 52 FR 34373, Sept. 11,
1987)
01 CFR 456.3 Definitions.
For the purposes of this part, the following definitions shall apply:
(a) Direct costs. This term means those expenditures which the
Commission actually incurs in searching for, duplicating and reviewing
records.
(b) Search. This term includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents.
(c) Duplication. This term refers to the process of making a copy of
a document necessary to respond to a Freedom of Information Act request.
(d) Review. This term refers to the process of examining documents
located in response to a request that is for commercial use to determine
whether any portion of any document located is permitted to be withheld,
and includes processing any documents for disclosure.
(e) Commercial use request. This term refers to a request from or on
behalf of one who seeks information for a use or purpose that furthers
the commercial, trade or profit interests of the requester or the person
on whose behalf the request is made.
(f) Educational institution. This term refers to a preschool, a
public or private elementary or secondary school, an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, and an institution
of vocational education, which operates a program or programs of
scholarly research.
(g) Non-commercial scientific institution. This term refers to a
non-profit institution which is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry.
(h) Representative of the news media. This term refers to any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term ''news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ''news'') who make their products available
for purchase or subscription by the general public. In the case of
''freelance'' journalists, they may be regarded as working for a news
organization if they can demonstrate a solid basis for expecting
publication through that organization, even though not actually employed
by it. A request for records supporting the news dissemination function
of the requester shall not be considered to be a request that is for a
commercial use.
(52 FR 34373, Sept. 11, 1987)
01 CFR 456.4 Public access to information.
(a) General policy. It is the Commission's general policy to
facilitate the broadest possible availability and dissemination of
information to the public. The Commission's staff is available to
assist the public in obtaining information formally by using the
procedures herein or informally by discussions with the staff. The
Commission's staff may, therefore, continue to furnish informally to the
public information, which, prior to the amendments to the Act contained
in Public Law 93-502, enacted November 21, 1974, was customarily
furnished in the regular performance of their duties, provided the staff
do so in a manner not inconsistent with these regulations. In addition,
to the extent permitted by other laws, the Commission will make
available records which it is authorized to withhold under the Act when
it determines that such disclosure is in the public interest.
(b) Established place of obtaining information. Information may be
obtained only from the Commission's offices, which are located at 1325 G
Street, NW., Washington, DC 20576. Its official hours are 8:00 a.m. to
6:00 p.m., Monday through Friday, excluding legal holidays.
(c) Information sources within the Commission. Requests for
Commission publications, offered for sale or informal requests for
general information on the Commission should be directed to the Public
Affairs Officer. All formal requests for agency records pursuant to the
Act must be directed to the Freedom of Information Officer.
Any request directed initially to the wrong information source will
be correctly routed by the Commission's staff and the requesting party
will be so notified. The ten-day time period within which the
Commission is required to determine whether to comply with a request
shall not begin to run until the request reaches, or with the exercise
of due diligence should have reached, the appropriate information
source.
(d) Information routinely available. The following types of
information shall be routinely available (subject to the fee schedule,
infra) for public dissemination without recourse to the Commission's
formal information request procedures unless such information falls
within one of the exemptions to agency disclosure listed in 5 U.S.C.
552(b):
(1) Correspondence between the Commission and the public;
(2) Executive Director's Recommendations;
(3) Committee Reports;
(4) Commission Memorandums of Actions; and
(5) Maps.
Requests for information, other than maps, shall be directed to the
Freedom of Information Officer; map requests shall be directed to the
Public Affairs Officer.
(e) Formal requests for information. All formal requests for
information pursuant to the Act shall be made in writing to the Freedom
of Information Officer. To expedite internal handling of such requests,
the words ''Freedom of Information Request'' shall appear on the face of
the envelope bearing such request. The request shall state that the
request is made pursuant to the Freedom of Information Act; shall
reasonably describe the information sought, including the date the
Commission received or produced the requested information, if known;
shall state, pursuant to the fee schedule set forth infra, the maximum
fee the party making the request would be willing to pay for the
duplication of the requested records without further approval; and
shall, if possible, provide a telephone number at which the requesting
party can be contacted to facilitate handling of the request.
(f) Commission response to formal requests. The Freedom of
Information Officer, upon request for information made in compliance
with these regulations, shall determine within ten days (excepting
Saturdays, Sundays, and legal holidays) after the receipt of any such
request whether to comply with such request and shall immediately notify
the person making such request of such determination and the reasons
therefor and of the right of such person to appeal to the head of the
agency any adverse determination. In unusual circumstances as specified
infra, the ten-day time limit may be extended by written notice to the
person making the request setting forth the reasons for such extension
and the date on which a determination is expected to be dispatched. No
such notice shall specify a date that would result in an extension for
more than ten working days. As used in this paragraph, ''unusual
circumstances'' means, but only to the extent reasonably necessary to
the proper processing of the particular request:
(1) The need to search for and collect the requested records from
establishments that are separate from the Commission's offices;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject matter interest therein.
(g) Determination to grant request. If the Freedom of Information
Officer makes a determination to grant a request in whole or in part,
the person making such request will be so notified in writing. The
notice shall also include a description of the information to be made
available, a statement of the time when and the place where such
information may be inspected or alternatively, the procedure for
duplication and delivery (by mail or other means) of the information to
the requesting party and a statement of the total fees chargeable to the
requesting person pursuant to the fee schedule infra.
(h) Determination to deny request-appeal procedure. If the Freedom
of Information Officer makes a determination to deny, in whole or in
part, a request for information, he shall so notify the party making the
request in writing. Any appeal of such determination shall be made in
writing to the Chairman of the Commission and shall include a brief
statement of the legal, factual, or other basis for the party's
objection to the initial decision. The Chairman shall, within twenty
days (excepting Saturdays, Sundays, and legal holidays) of the receipt
of any such appeal determine whether to grant or deny the appeal and
shall, immediately upon making his decision, give written notice of the
decision to the party, including a brief statement of the reasons
therefor.
(i) Waiver. Whenever a waiver of any of the procedures set forth
herein would further the purpose of the Act by causing the public
disclosure of non-confidential information within the time period
required by the Act, the Freedom of Information Officer may, in the
context of individual requests for information, waive any of the
procedural requirements herein.
(j) Schedule of fees. (1) The Commission may charge the following
fees for the production of information pursuant to the Act:
(i) Publications offered for sale -- as marked.
(ii) Commission reports -- $0.25/page.
(iii) Committee reports -- $0.25/page.
(iv) Commission Memorandums of Actions -- $0.25/page.
(v) Transcripts of Commission meetings and Committee meetings --
$0.25/page.
(vi) Other records -- $0.25/page.
(vii) Map publications -- microfilm printout -- $1.00/each; ozalid
maps -- $0.30/linear foot.
(viii) Manual record research: $2.25 per quarter hour if conducted
by a clerical employee; $5.00 per quarter hour if conducted by a
professional or managerial employee. The Commission may charge for
search costs, where applicable, even if there is ultimately no
disclosure of records.
(ix) Review charges: $5.00 per quarter hour. The Commission may
charge for review costs, where applicable, even if there is ultimately
no disclosure of records.
(2) The Commission may charge the above-stated fees for the
production of information pursuant to the Act, based upon the following
requester classifications:
(i) Commercial use requester. The Commission may charge requesters
in this category for all the direct costs of searching for, reviewing
for release, and duplicating the records sought. In determining whether
a request is for commercial use, the Commission will look to the use to
which a requester will put the documents requested. Where a requester
does not explain the use or where the explanation is insufficient, the
Commission may draw reasonable inferences from the requester's identity.
(ii) Educational and non-commercial scientific institution
requesters. The Commission shall provide documents to requesters in
this category for the cost of reproduction alone, excluding charges for
the first 100 pages. Requesters must show that the request is being
made as authorized by or under the auspices of a qualifying institution
and that the records sought are not for a commercial use, but are sought
in furtherance of scholarly (if the request is from an educational
institution) or non-commercial scientific research (if the request is
from a non-commercial scientific institution).
(iii) Representatives of the news media. The Commission shall
provide documents to requesters in this category for the cost of
reproduction alone, excluding charges for the first 100 pages.
(iv) All other requesters. The Commission may charge requesters who
do not fit into any of the categories above fees which recover the full
reasonable direct costs of searching for and reproducing records that
are responsive to the request, excluding the first 100 pages and first
two hours of search time. Requests from record subjects for records
about themselves filed in the Commission's system of records will
continue to be treated under the fee provisions of the Privacy Act of
1974 which permit fees only for reproduction.
(3) The Commission keeps on file a limited quantity of back copies of
Executive Director's Recommendations, Committee Reports, and Commission
Memorandums of Actions. The Commission will first attempt to fill
specific requests for these documents from its supply of back copies and
until the supply is exhausted, the Commission will provide the documents
at no charge. Once the supply is exhausted, the requested documents
will be provided in accord with the fee schedule.
(4) The Commission may not charge fees to any requester if the cost
of collecting the fee would be equal to or greater than the fee itself.
The minimum fee for the production of information will be $2.00 (over
and above the first free 100 pages and 2 hours search time, where
applicable). The Commission's Freedom of Information Officer shall
provide documents furnished under the Act without any charge or at a
charge reduced below the fees established under 456.3(j)(1) if
disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and it is not primarily in
the commercial interest of the requester.
(5) In deciding whether a fee waiver or reduction under 456.4(j)(4)
is justified, the Commission will consider the following factors:
(i) The subject of the request: Whether the subject of the requested
records concerns ''the operations or activities of the Government'';
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ''likely to contribute'' to an understanding
of government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ''public understanding'';
and
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ''significantly'' to
public understanding of government operations or activities.
(v) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(vi) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest disclosure, that
disclosure is ''primarily in the commercial interest of the requester.''
(k) Prior approval or advance deposit of fees. (1) Where the agency
estimates that duplication, review or search charges are likely to
exceed $25.00, it shall notify the requester of the estimated amount of
fees, unless the requester has indicated in advance his or her
willingness to pay fees as high as those estimated. Where the fees
anticipated to result from a request are substantially greater than the
amount estimated in the written request, the persons requesting the
information shall be immediately notified of the estimated fees and his
approval of such fees requested. Such person shall also be afforded the
opportunity to revise his or her request to reduce the fees but satisfy
his or her needs for information.
(2) Where the Freedom of Information Officer determines that fees are
likely to exceed $250.00, the Commission may require advance payment of
the fee in whole or in part. Where a requester has previously failed to
pay a fee charged in a timely manner or is presently in arrears, the
Commission may require the requester to pay the full amount owed and to
make an advance payment of the full amount of the estimated fees before
the agency begins to process a new request or completes a pending
request.
(3) The dispatch of any such request for an estimated fee approval or
advance deposit shall suspend, until a reply is received by the Freedom
of Information Officer, the period pursuant to 5 U.S.C., 552 and
paragraph (f) supra within which the Freedom of Information Officer must
respond to a written request for information.
(4) A requester may not file multiple requests at the same time, each
seeking portions of a document(s), solely in order to avoid payment of
fees. When the Commission reasonably believes a requester(s) is
attempting to break a request down into a series of requests for the
purpose of evading the assessment of fees, the Commission may aggregate
any such requests and charge accordingly.
(l) Payment of fees. Fees charged a person for the production of
information must be paid in full prior to release of the information.
Payment of fees shall be made by a personal check, postal money order or
bank draft on a bank in the United States, made payable to the order of
the Treasurer of the United States.
(47 FR 44229, Oct. 7, 1982. Redesignated and amended at 52 FR
34373-34374, Sept. 11, 1987)
01 CFR 456.4 PART 457 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS
OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL CAPITAL
PLANNING COMMISSION
Sec.
457.101 Purpose.
457.102 Application.
457.103 Definitions.
457.104 -- 457.109 (Reserved)
457.110 Self-evaluation.
457.111 Notice.
457.112 -- 457.129 (Reserved)
457.130 General prohibitions against discrimination.
457.131 -- 457.139 (Reserved)
457.140 Employment.
457.141 -- 457.148 (Reserved)
457.149 Program accessibility: Discrimination prohibited.
457.150 Program accessibility: Existing facilities.
457.151 Program accessibility: New construction and alterations.
457.152 -- 457.159 (Reserved)
457.160 Communications.
457.161 -- 457.169 (Reserved)
457.170 Compliance procedures.
457.171 -- 457.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 51 FR 22887 and 22896, June 23, 1986, unless otherwise
noted.
01 CFR 457.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
01 CFR 457.102 Application.
This part applies to all programs or activities conducted by the
agency.
01 CFR 457.103 Definitions.
For purposes of this part, the term --
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ''physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alocoholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this
definition but is treated by the agency as having such an impairment.
Historic preservation programs means programs conducted by the agency
that have preservation of historic properties as a primary purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Qualified handicapped person means --
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or agency
policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can acheive the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by 457.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
457.104 -- 457.109 (Reserved)
01 CFR 457.110 Self-evaluation.
(a) The agency shall, by August 24, 1987, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including handicapped persons or organizations representing handicapped
persons, to participate in the self-evaluation process by submitting
comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
01 CFR 457.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
457.112 -- 457.129 (Reserved)
01 CFR 457.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangments, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified handicapped persons to
discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified handicapped persons to discrimination on
the basis of handicap. However, the programs or activities of entities
that are licensed or certified by the agency are not, themselves,
covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
457.131 -- 457.139 (Reserved)
01 CFR 457.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613, shall apply to employment in federally conducted programs or
activities.
457.141 -- 457.148 (Reserved)
01 CFR 457.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 457.150, no qualified handicapped
person shall, because the agency's facilities are inaccessible to or
unusable by handicapped persons, be denied the benefits of, be excluded
from participation in, or otherwise be subjected to discrimination under
any program or activity conducted by the agency.
01 CFR 457.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the agency
to take any action that would result in a substantial impairment of
significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with 457.150(a) would result in such alteration
or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods -- (1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by handicapped persons. The agency is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. The
agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
handicapped persons in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
457.150(a) in historic preservation programs, the agency shall give
priority to methods that provide physical access to handicapped persons.
In cases where a physical alteration to an historic property is not
required because of 457.150(a)(2) or (a)(3), alternative methods of
achieving program accessibility include --
(i) Using audio-visual materials and devices to depict those portions
of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through
portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by October 21, 1986, except
that where structural changes in facilities are undertaken, such changes
shall be made by August 22, 1989, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by February 23, 1987 a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum
--
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
01 CFR 457.151 Program accessibility: New construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of
the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in
41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
457.152 -- 457.159 (Reserved)
01 CFR 457.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and adminstrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 457.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity, and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
handicapped persons receive the benefits and services of the program or
activity.
457.161 -- 457.169 (Reserved)
01 CFR 457.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Executive Director shall be responsible for coordinating
implementation of this section. Complaints may be sent to Equal
Employment Opportunity Director, National Capital Planning Commission,
1325 G Street NW., Washington, DC 20576.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by 457.170(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the
agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(51 FR 22887 and 22896, June 23, 1986, as amended at 5l FR 22888,
June 23, 1986)
457.171 -- 457.999 (Reserved)
01 CFR 457.170 PART 462 -- FEDERAL HOME LOAN MORTGAGE CORPORATION
(BOOK-ENTRY REGULATIONS)
Sec.
462.1 Definition of terms.
462.2 Authority of Reserve banks.
462.3 Scope and effect of book-entry procedure.
462.4 Transfer or pledge.
462.5 Withdrawal of Federal Home Loan Mortgage Corporation
securities.
462.6 Delivery of Federal Home Loan Mortgage Corporation securities.
462.7 Registered bonds and notes.
462.8 Servicing book-entry Federal Home Loan Mortgage Corporation
securities; payment of interest; payment at maturity or upon call.
Authority: 12 U.S.C. 1445(a).
Source: 43 FR 52457, Nov. 13, 1978, unless otherwise noted.
01 CFR 462.1 Definition of terms.
In these regulations, unless the context otherwise requires or
indicates:
(a) Reserve bank means the Federal Reserve Bank of New York (and any
other Federal Reserve bank which agrees to issue Federal Home Loan
Mortgage Corporation securities in book-entry form) acting as fiscal
agent of the Federal Home Loan Mortgage Corporation and when indicated
acting in its individual capacity or as fiscal agent of the United
States.
(b) Federal Home Loan Mortgage Corporation security means a bond,
note, mortgage, obligation or other security of or sold by the Federal
Home Loan Mortgage Corporation issued at a Reserve bank by the Federal
Home Loan Mortgage Corporation under title III of the Emergency Home
Finance Act of 1970, as amended, in the form of a definitive Federal
Home Loan Mortgage Corporation security or a book-entry Federal Home
Loan Mortgage Corporation security.
(c) Book-entry Federal Home Loan Mortgage Corporation security means
a Federal Home Loan Mortgage Corporation security in the form of an
entry made as prescribed in this part on the records of a Reserve bank.
(d) (Reserved)
(e) Pledge includes a pledge of, or any other security interest in,
Federal Home Loan Mortgage Corporation securities as collateral for
loans or advances or to secure deposits of public moneys or the
performance of an obligation.
(f) Date of call is the date fixed in the authorizing resolution of
the Board of Directors of the Federal Home Loan Mortgage Corporation on
which the Federal Home Loan Mortgage Corporation will make payment of
the security before maturity in accordance with its terms.
(g) Member bank means any national bank, State bank, or bank or trust
company which is a member of a Reserve bank.
01 CFR 462.2 Authority of Reserve banks.
Each Reserve bank is hereby authorized, in accordance with the
provisions of these rules, to: (a) Issue book-entry Federal Home Loan
Mortgage Corporation securities by means of entries on its records which
shall include the name of the depositor, the amount, the series, and
maturity date; (b) effect conversions between book-entry Federal Home
Loan Mortgage Corporation securities and definitive Federal Home Loan
Mortgage Corporation securities with respect to those securities as to
which conversion rights are available pursuant to the applicable
securities offering materials; (c) otherwise service and maintain
book-entry Federal Home Loan Mortgage Corporation securities; and (d)
issue confirmations of transactions in the form of written advices
(serially numbered or otherwise) which specify the amount and
description of any securities (that it, series and maturity date) sold
or transferred and the date of the transaction.
01 CFR 462.3 Scope and effect of book-entry procedure.
(a) A Reserve bank as fiscal agent of the Federal Home Loan Mortgage
Corporation may apply the book-entry procedure provided for herein to
any Federal Home Loan Mortgage Corporation securities which have been or
are hereafter deposited for any purpose in accounts with it in its
individual capacity under terms and conditions which indicate that the
Reserve bank will continue to maintain such deposit accounts in its
individual capacity, notwithstanding application of the book-entry
procedure to such securities. This paragraph is applicable, but not
limited, to Federal Home Loan Mortgage Corporation securities deposited:
(1) As collateral pledged to a Reserve bank (in its individual
capacity) for advances by it;
(2) By a member bank for its sole account;
(3) By a member bank held for the account of its customers;
(4) In connection with deposits in a member bank of funds of States,
municipalities, or other political subdivisions; or,
(5) In connection with the performance of an obligation or duty under
Federal, State, municipal, or local law, or judgments of decrees of
courts.
The application of the book-entry procedure under this paragraph
shall not derogate from or adversely affect the relationships that would
otherwise exist between a Reserve bank in its individual capacity and
its depositors concerning any deposit under this paragraph. Whenever
the book-entry procedure is applied to such Federal Home Loan Mortgage
Corporation securities, the Reserve bank is authorized to take all
action necessary in respect of the book-entry procedure to enable such
Reserve bank in its individual capacity to perform its obligations as
depositary with respect to such Federal Home Loan Mortgage Corporation
securities.
(b) A Reserve bank as fiscal agent of the Federal Home Loan Mortgage
Corporation may apply the book-entry procedure to Federal Home Loan
Mortgage Corporation securities deposited as collateral pledged to the
United States under Treasury Department Circular Nos. 92 and 176, both
as revised and amended, and may apply the book-entry procedure, with the
approval of the Secretary of the Treasury, to any other Federal Home
Loan Mortgage Corporation securities deposited with a Reserve bank as
fiscal agent of the United States.
(c) Any person having an interest in Federal Home Loan Mortgage
Corporation securities which are deposited with a Reserve bank (in
either its individual capacity or as fiscal agent of the United States)
for any purpose shall be deemed to have consented to their conversion to
book-entry Federal Home Loan Mortgage Corporation securities pursuant to
the provisions of these rules, and in the manner and under the
procedures prescribed by the Reserve bank.
(d) No deposits shall be accepted under this section on or after the
date of maturity or call of the Federal Home Loan Mortgage Corporation
securities.
01 CFR 462.4 Transfer or pledge.
(a) A transfer or pledge of book-entry Federal Home Loan Mortgage
Corporation securities to a Reserve bank (in its individual capacity or
as fiscal agent of the United States), or to the United States, or to
any transferee or pledgee eligible to maintain an appropriate book-entry
account in its name with a Reserve bank under these rules is effected
and perfected, notwithstanding any provisions of law to the contrary, by
a Reserve bank making an appropriate entry in its records of the
securities transferred or pledged. The making of such an entry in the
records of a Reserve bank shall: (1) Have the effect of a delivery in
bearer form of definitive Federal Home Loan Mortgage Corporation
securities; (2) have the effect of taking of delivery by the transferee
or pledgee; (3) constitute the transferee or pledgee a holder; and (4)
if a pledge, effect a perfected security interest therein in favor of
the pledgee. A transfer or pledge of book-entry Federal Home Loan
Mortgage Corporation securities effected under this paragraph shall have
priority over any transfer, pledge, or other interest, theretofore or
thereafter effected or perfected under paragraph (b) of this section or
in any other manner.
(b) A transfer or a pledge of transferable Federal Home Loan Mortgage
Corporation securities, or any interest therein, which is maintained by
a Reserve bank (in its individual capacity or as fiscal agent of the
United States) in a book-entry account under these rules including
securities in book-entry form under 462.3(a)(3), is effected, and a
pledge is perfected, by any means that would be effective under
applicable law to effect a transfer or to effect and perfect a pledge of
the Federal Home Loan Mortgage Corporation securities, or any interest
therein, if the securities were maintained by the Reserve bank in bearer
definitive form. For purposes of transfer or pledge hereunder,
book-entry Federal Home Loan Mortgage Corporation securities maintained
by a Federal Reserve bank shall, notwithstanding any provision of law to
the contrary, be deemed to be in maintained in bearer definitive form.
A Reserve bank maintaining book-entry Federal Home Loan Mortgage
Corporation securities either in its individual capacity or as fiscal
agent of the United States is not a bailee for purposes of notification
of pledges of those securities under this paragraph, or a third person
in possession for purposes of acknowledgment of transfers thereof under
this paragraph. Where transferable Federal Home Loan Mortgage
Corporation securities are recorded on the books of a depositary (a
bank, banking institution, financial firm or similar party, which
regularly accepts in the course of its business Federal Home Loan
Mortgage Corporation securities as a custodial service for customers,
and maintains accounts in the names of such customers reflecting
ownership of or interest in such securities) for account of the pledgor
or transferor thereof and such securities are on deposit with a Reserve
bank in a book-entry account hereunder, such depositary shall, for
purposes of perfecting a pledge of such securities to a purchaser under
applicable provisions of law, be the bailee to which notification of the
pledge of the securities may be given or the third person in possession
from which acknowledgment of the holding of the securities for the
purchaser may be obtained. A Reserve bank will not accept notice or
advice of a transfer or pledge effected or perfected under this
paragraph, and any such notice or advice shall have no effect. A
Reserve bank may continue to deal with its depositors in accordance with
the provisions of these rules, notwithstanding any transfer or pledge
effected or perfected under this paragraph.
(c) No filing or recording with a public recording office or officer
shall be necessary or effective with respect to any transfer or pledge
of book-entry Federal Home Loan Mortgage Corporation securities or any
interest therein.
(d) A Reserve bank shall, as to book-entry securities having
conversion rights and upon receipt of appropriate instructions, convert
book-entry Federal Home Loan Mortgage Corporation securities into
definitive Federal Home Loan Mortgage Corporation securities and deliver
them in accordance with such instructions; no such conversion shall
affect existing interests in such Federal Home Loan Mortgage Corporation
securities.
(e) A transfer of book-entry Federal Home Loan Mortgage Corporation
securities within a Reserve bank shall be made in accordance with
procedures established by the bank not inconsistent with these rules.
The transfer of book-entry Federal Home Loan Mortgage Corporation
securities by a Reserve bank may be made through a telegraphic transfer
procedure.
(f) All requests for transfer or withdrawal must be made prior to the
maturity or date of call of the securities.
01 CFR 462.5 Withdrawal of Federal Home Loan Mortgage Corporation
securities.
(a) A depositor of book-entry Federal Home Loan Mortgage Corporation
securities may withdraw them from a Reserve bank by requesting delivery
of like definitive Federal Home Loan Mortgage Corporation securities to
itself or on its order to a transferee, provided that such securities
provide for a right of conversion to definitive form pursuant to the
offering materials applicable to such securities.
(b) Federal Home Loan Mortgage Corporation securities of a series
which was originally issued in bearer form only and which are actually
to be delivered upon withdrawal may be issued in bearer form only, until
the date of the first issue of such securities in registered form;
Federal Home Loan Mortgage Corporation securities of a series which was
originally issued in registered form only and which are actually to be
delivered upon withdrawal may be issued in registered form only, until
the date of first issue of such securities in bearer form. After the
date of first issue in registered form of a series of Federal Home Loan
Mortgage Corporation securities originally issued in bearer form only or
the date of first issue in bearer form of a series of Federal Home Loan
Mortgage Corporation securities originally issued in registered form
only, all securities of such series which are actually to be delivered
upon withdrawal may be issued either in bearer or registered form. All
Federal Home Loan Mortgage Corporation securities of a series which were
originally issued in both registered and bearer form and which are
actually to be delivered upon withdrawal may be issued either in bearer
or registered form.
01 CFR 462.6 Delivery of Federal Home Loan Mortgage Corporation
securities.
A Reserve bank which has received Federal Home Loan Mortgage
Corporation securities and effected pledges, made entries regarding
them, or transferred or delivered them according to the instructions of
its depositor is not liable for conversion or for participation in
breach of fiduciary duty even though the depositor had no right to
dispose of or take other action in respect of the securities. A Reserve
bank shall be fully discharged of its obligations under these rules by
the delivery of Federal Home Loan Mortgage Corporation securites in
definitive form to its depositor or upon the order of such depositor.
Customers of a member bank or other depositary (other than a Reserve
bank) may obtain Federal Home Loan Mortgage Corporation securities in
definitive form only by causing the depositor of the Reserve Bank to
order the withdrawal thereof from the Reserve bank.
01 CFR 462.7 Registered bonds and notes.
No formal assignment shall be required for the conversion to
book-entry Federal Home Loan Mortgage Corporation securities of
registered Federal Home Loan Mortgage Corporation securities held by a
Reserve bank (in either its individual capacity or as fiscal agent of
the United States) on the effective date of these rules for any purpose
specified in 462.3(a) hereof. Registered Federal Home Loan Mortgage
Corporation securities deposited thereafter with a Reserve bank for any
purpose specified in 462.3 shall be assigned for conversion to
book-entry Federal Home Loan Mortgage Corporation securities. The
assignment, which shall be executed in accordance with the provisions of
subpart F of 31 CFR part 306, so far as applicable, shall be to
''Federal Reserve Bank of -------- , as fiscal agent of the Federal Home
Loan Mortgage Corporation for conversion to book-entry Federal Home Loan
Mortgage Corporation securities.''
01 CFR 462.8 Servicing book-entry Federal Home Loan Mortgage
Corporation securities; payment of interest; payment at maturity or
upon call.
Payments of principal and interest on Federal Home Loan Mortgage
Corporation securities will be made by a Federal Reserve bank on the
interest due dates and dates of maturity or call and remitted or
credited in accordance with the depositor's instructions.
01 CFR 462.8 PART 500 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS
OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL
COMMISSION FOR EMPLOYMENT POLICY
Sec.
500.101 Purpose.
500.102 Application.
500.103 Definitions.
500.104 -- 500.109 (Reserved)
500.110 Self-evaluation.
500.111 Notice.
500.112 -- 500.129 (Reserved)
500.130 General prohibitions against discrimination.
500.131 -- 500.139 (Reserved)
500.140 Employment.
500.141 -- 500.148 (Reserved)
500.149 Program accessibility: Discrimination prohibited.
500.150 Program accessibility: Existing facilities.
500.151 Program accessibility: New construction and alterations.
500.152 -- 500.159 (Reserved)
500.160 Communications.
500.161 -- 500.169 (Reserved)
500.170 Compliance procedures.
500.171 -- 500.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 51 FR 22888 and 22896, June 23, 1986, unless otherwise
noted.
01 CFR 500.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
01 CFR 500.102 Application.
This part applies to all programs or activities conducted by the
agency.
01 CFR 500.103 Definitions.
For purposes of this part, the term --
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alocoholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this
definition but is treated by the agency as having such an impairment.
Historic preservation programs means programs conducted by the agency
that have preservation of historic properties as a primary purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Qualified handicapped person means --
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or agency
policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can acheive the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by 500.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
500.104 -- 500.109 (Reserved)
01 CFR 500.110 Self-evaluation.
(a) The agency shall, by August 24, 1987, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including handicapped persons or organizations representing handicapped
persons, to participate in the self-evaluation process by submitting
comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspection:
(1) a description of areas examined and any problems identified, and
(2) a description of any modifications made.
01 CFR 500.111 Notice
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the head of the agency
finds necessary to apprise such persons of the protections against
discrimination assured them by section 504 and this regulation.
500.112 -- 500.129 (Reserved)
01 CFR 500.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangments, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified handicapped persons to
discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified handicapped persons to discrimination on
the basis of handicap. However, the programs or activities of entities
that are licensed or certified by the agency are not, themselves,
covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statute or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
500.131 -- 500.139 (Reserved)
01 CFR 500.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613, shall apply to employment in federally conducted programs or
activities.
500.141 -- 500.148 (Reserved)
01 CFR 500.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 500.150, no qualified handicapped
person shall, because the agency's facilities are inaccessible to or
unusable by handicapped persons, be denied the benefits of, be excluded
from participation in, or otherwise be subjected to discrimination under
any program or activity conducted by the agency.
01 CFR 500.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the agency
to take any action that would result in a substantial impairment of
significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with 500.150(a) would result in such alteration
or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods -- (1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by handicapped persons. The agency is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. The
agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
handicapped persons in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
500.150(a) in historic preservation programs, the agency shall give
priority to methods that provide physical access to handicapped persons.
In cases where a physical alteration to an historic property is not
required because of 500.150(a)(2) or (a)(3), alternative methods of
achieving program accessibility include --
(i) Using audio-visual materials and devices to depict those portions
of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through
portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by October 21, 1986, except
that where structural changes in facilities are undertaken, such changes
shall be made by August 22, 1989, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by February 23, 1987 a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum
--
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
01 CFR 500.151 Program accessibility: New construction and
alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of
the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in
41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
500.152 -- 500.159 (Reserved)
01 CFR 500.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and adminstrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 500.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity, and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
handicapped persons receive the benefits and services of the program or
activity.
500.161 -- 500.169 (Reserved)
01 CFR 500.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Director shall be responsible for coordinating implementation
of this section. Complaints may be sent to Director, National
Commission for Employment Policy, Suite 300, 1522 K Street NW.,
Washington, DC 20005.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by 500.170(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the
agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(51 FR 22888 and 22896, June 23, 1986, as amended at 51 FR 22888,
June 23, 1986)
500.171 -- 500.999 (Reserved)
01 CFR 500.170 Title 2 -- (Reserved)
01 CFR 500.170 FINDING AIDS
1 CFR (1-1-92 Edition)
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Chapter I -- Index
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
Redesignation Table
List of CFR Sections Affected
01 CFR 500.170 Chapter I Index
CHAPTER I -- INDEX
Editorial Note: This listing is provided for information purposes
only. It is compiled and kept up-to-date by the Office of the Federal
Register. Action, preamble caption, 18.12 Addresses, preamble caption,
18.12 Administrative Committee of the Federal Register, 1.1, 2.2
Agency Definition, 1.1 Preamble caption, 18.12 Agency representatives
Code of Federal Regulations, 16.4 Federal Register, Part 16 United
States Government Manual, 20.1 Weekly Compilation of Presidential
Documents, 16.4 Agency services, Part 15 Amendatory language, 21.1,
21.20 Authority citations, 21.40 -- 21.53, 22.2, 22.5 Parallel table
of authorities and rules, 8.5 Authorizing officers See Agency
representatives. Capitalization, 18.9, 19.1 Categories of documents,
5.9 Certification of reproductions of acts and documents, 3.3, 15.4
Certified copies of agency documents, 18.1, 18.5, 18.6 Certifying
officers See Agency representatives. Citation format Code of Federal
Regulations, 8.9, 21.23, 21.24 Federal Register, 5.8 Classification
of documents, 5.9 Code of Federal Regulations Authority citations,
21.40 -- 21.53 Citation format, 8.9, 21.23, 21.24 Codification system,
8.2, Part 21, 22.7 Cutoff dates for amendments, 8.3 Distribution,
12.2 Editorial assistance, Part 15 Expired material, reinstatement,
18.16 Expired material, removal, 21.6 Incorporation by reference. See
Part 51, Ch. II. Indexes, 8.4, 8.5 OMB control numbers, 21.35 Part
headings, 21.18, 21.19 Publication policy, Part 8 References, 21.21,
21.23, 21.24 Subscriptions, 11.3 Updating of volumes, 8.3 Codification
system, 8.2, Part 21, 22.7 Combined documents, prohibition, 18.2
Congressional laws See Public Laws. Consultation services See Agency
services. Corrections, 18.13, 18.15 Cross references See References
in documents subject to codification. Dates, preamble caption, 18.12
See also Effective dates Deadlines Code of Federal Regulations
amendments, 8.3 United States Government Manual, 20.7 Definitions,
1.1 Distribution See also Subscriptions Agency representatives,
responsibility, 16.4 Code of Federal Regulations, 12.2 Federal
Register, 5.7, 12.1 Presidential papers, 12.4, 12.5 United States
Government Manual, 12.3 Documents Authority citations, 21.40 --
21.53, 22.2, 22.5 Categories, 5.9 Certified copies, 18.1, 18.5, 18.6
Code of Federal Regulations references, 21.21, 21.23, 21.24
Codification system, 8.2, Part 21, 22.7 Combined documents,
prohibition, 18.2 Corrections, 18.13, 18.15 Definition, 1.1
Editorial assistance, Part 15 Effective dates, 18.12, 18.17, 21.30
Filing for public inspection, 1.1, 3.2, 5.2, Part 17, Part 18 Format,
Part 18 Headings, 21.16 -- 21.19 Illustrations, tables, and forms,
18.10 Legibility, 18.4, 18.5, 18.10 Notices, format, Part 22 OMB
control numbers, 21.35 Preamble requirements, 18.12 Preparation and
transmittal, Part 18 Proposed rules, format, Part 22 Public inspection,
3.2 Publication not authorized, 5.4 Publication policy, Part 5
Reproduction and certication of copies, 3.3, 15.4 Rules and
regulations, format, Part 21 Scheduling, Part 17 Signatures, 18.7
Style, 18.9 Thesaurus terms, identification, 18.20 Withdrawal or
correction of material filed with Federal Register Office, 18.13
Editorial assistance, Part 15 Effective dates, 18.12, 18.17, 21.30
Emergency requests Filing for public inspection, 17.5, 17.6
Publication, 17.3, 17.4 Errors See Corrections. Executive Orders See
Presidential documents. Expiration of regulations, 18.16, 21.6 Extra
copies, Part 12 See also Overruns Federal Register Agency
representatives, Part 16 Categories of documents, 5.9 Citation format,
5.8 Codification system, Part 21 Corrections, 18.13, 18.15
Distribution, 5.7, 12.1 Documents, publication not authorized, 5.4
Documents, publication policy, Part 5 Editorial assistance, Part 15
Emergency filing requests, 17.5, 17.6 Emergency publication requests,
17.3, 17.4 Incorporation by reference. See Part 51, Ch. II. Indexes,
Part 6 Overruns and extra copies, 12.1 Preparation and transmittal of
documents, Part 18 Public inspection of documents, 3.2 Publication
policy, Part 5 Publication schedules, Part 17 Subscriptions, 11.1,
11.2 Thesaurus terms, identification, 18.20 Unrestricted use of
materials, 2.6 Withdrawal or correction of documents on file, 18.13
Federal Register Office Agency services, Part 15 Authority of Director,
2.4, 5.3 Certification of reproductions of acts and documents, 3.3,
15.4 Information services, Part 3 Location and office hours, 2.3 Filing
of documents for public inspection, 1.1, 3.2, 5.2, Part 17, Part 18
Final rules See Rules and regulations. Finding aids See Indexes. For
Further Information Contact, preamble caption, 18.12 Forms,
publication, 18.10 Government Manual See United States Government
Manual. Government Printing Office See also Distribution;
Subscriptions. Style manual, 18.9, 19.1, 20.6 Headings, 21.16 --
21.19 Illustrations, tables, and forms, 18.10 Incorporation by
reference. See Part 51, Ch. II. Indexes Code of Federal Regulations,
8.4, 8.5 Federal Register, Part 6, 11.2, 11.7 List of CFR Sections
Affected, 6.4, 8.5, 11.2, 11.8, 12.1 Parallel table of authorities and
rules, 8.5 Public Papers of the Presidents, 10.12 Subscriptions,
11.2, 11.7, 11.8 Thesaurus terms, identification, 18.20 Weekly
Compilation of Presidential Documents, 10.3 Information services, Part
3 See also Agency services Inspection of documents See Public inspection
of documents. Internal references See References in documents subject
to codification. Land descriptions, format, 19.1 Laws See Public Laws.
Legibility, 18.4, 18.5, 18.10 Letters of transmittal, 18.3, 18.4,
18.13 Liaison officers See Agency representatives. List of CFR Sections
Affected, 6.4, 8.5, 11.2, 11.8, 12.1 Mailing See Distribution;
Subscriptions. Notices See also Documents. Authority of Federal
Register Office Director, 5.3 Format, Part 22 Publication category,
5.9 Sunshine Act meetings notices, 17.2 Numbering in Code of Federal
Regulations See Codification system. Official distribution within
Federal Government See Distribution. OMB control numbers, 21.35
Overruns, 12.1 Parallel table of authorities and rules, 8.5 Preamble
requirements, 18.12 Presidential documents, Part 19 See also
Presidential papers Definitions, 19.6 Format, 19.1 Parallel table of
authorities and rules, 8.5 Publication in Federal Register, 5.1, 5.2,
5.9 Publication responsibility, 2.5 Routing and approval, 19.2, 19.3
Presidential papers Distribution, 12.4, 12.5 Public Papers of the
Presidents, 2.5, 10.10 -- 10.13, 12.5 Subscriptions, 11.5, 11.6
Weekly Compilation of Presidential Documents, 2.5, 10.1 -- 10.3, 12.4
Proclamations See Presidential documents Proposed rules See also
Documents. Format, Part 22 Publication category, 5.9 Public inspection
of documents, 3.2 See also Filing of documents for public inspection.
Public Laws Publication responsibility, 2.5 Reproductions and
certification of copies, 3.3, 15.4 Subscriptions, 11.1 Public Papers
of the Presidents See Presidential papers. Publication schedules of the
Federal Register, Part 17 Punctuation, 18.9, 19.1 References in
documents subject to codification, 21.21, 21.23, 21.24 Reprints See
Overruns. Reproductions and certification of copies of acts and
documents, 3.3, 15.4 Rules and regulations See also Documents.
Expiration, 18.16, 21.6 Format, Part 21 Publication category, 5.9
Scheduling of documents, Part 17 Seals on original documents or
certified copies, 18.8 Separate parts, requests for overruns, 12.1
Signatures, 18.7 Slip Laws See Public Laws. Spelling, 18.9, 19.1
Statutes See United States Statutes at Large. Statutory authorities See
Parallel table of authorities and rules; Authority citations. Style,
18.9, 19.1, 20.6 Subject indexes See Indexes. Subscriptions, Part 11
See also Distribution. Summary, preamble caption, 18.12 Sunshine Act
meetings notices, 17.2 Supplementary Information, preamble caption,
18.12 Tables, 18.10 Thesaurus terms, identification, 18.20 Training
programs See Agency services. Transmittal of documents, Part 18 United
States Government Manual, Part 20 Distribution, 12.3 Publication
policy, Part 9 Publication responsibility, 2.5 Subscriptions, 11.4
United States Statutes at Large Publication responsibility, 2.5
Subscriptions, 11.1 Unrestricted use of materials, 2.6 Weekly
Compilation of Presidential Documents See Presidential papers.
Withdrawal of documents filed with Federal Register Office, 18.13
Chap.
01 CFR 500.170 Table of CFR Titles and Chapters
01 CFR 500.170 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
01 CFR 500.170 Title 2 -- (Reserved)
01 CFR 500.170 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
01 CFR 500.170 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
III General Accounting Office (CASB) (Parts 300 -- 499)
01 CFR 500.170 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Council (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
01 CFR 500.170 Title 6 -- (Reserved)
01 CFR 500.170 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
01 CFR 500.170 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
01 CFR 500.170 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
01 CFR 500.170 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
01 CFR 500.170 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
01 CFR 500.170 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
01 CFR 500.170 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
01 CFR 500.170 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
01 CFR 500.170 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
01 CFR 500.170 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
01 CFR 500.170 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
01 CFR 500.170 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
01 CFR 500.170 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
01 CFR 500.170 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
01 CFR 500.170 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
01 CFR 500.170 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
01 CFR 500.170 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
01 CFR 500.170 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
01 CFR 500.170 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
01 CFR 500.170 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
01 CFR 500.170 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
01 CFR 500.170 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
01 CFR 500.170 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200-1299)
XII Federal Mediation and Conciliation Service (Parts 1400-1499)
XIV Equal Employment Opportunity Commission (Parts 1600-1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
01 CFR 500.170 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
01 CFR 500.170 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
01 CFR 500.170 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200-1299)
XVI Selective Service System (Parts 1600-1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
01 CFR 500.170 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
01 CFR 500.170 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
01 CFR 500.170 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
01 CFR 500.170 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900-999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
01 CFR 500.170 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400-499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
01 CFR 500.170 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
01 CFR 500.170 Title 39 -- Postal Service
I United States Postal Service (Parts 1-999)
III Postal Rate Commission (Parts 3000 -- 3099)
01 CFR 500.170 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500-1599)
01 CFR 500.170 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
01 CFR 500.170 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
01 CFR 500.170 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
01 CFR 500.170 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
01 CFR 500.170 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Family Support Administration,
Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (2200 --
2299)
01 CFR 500.170 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
01 CFR 500.170 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
01 CFR 500.170 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900-9999)
01 CFR 500.170 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Urban Mass Transportation Administration, Department of
Transportation (Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
01 CFR 500.170 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
01 CFR 500.170 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
01 CFR 500.170 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bicentennial of the United States Constitution, Commission on the 45,
XX
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on the Bicentennial of the United States Constitution 45,
XX
Committee for Purchase from the Blind and Other Severely Handicapped
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Contract Appeals, Board of 7, XXIV
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Reduction in Meeting and Training Allowance Payments 41, 304
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Office of Navajo and Hopi Indian Relocation 25, IV
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
01 CFR 500.170 1 CFR (1-1-92 Edition)
01 CFR 500.170 Redesignation Table
01 CFR 500.170
01 CFR 500.170
01 CFR 500.170 Redesignation Table
At 54 FR 9676, March 7, 1989, various sections of Chapter I of Title
1 were updated and consolidated. For the convenience of the user, the
following distribution table shows the relationship of former section
numbers to the new section numbers.
01 CFR 500.170 1 CFR (1-1-92 Edition)
01 CFR 500.170 List of CFR Sections Affected
01 CFR 500.170 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven
separate volumes.
01 CFR 500.170 1986
1 CFR
51 FR
Page
Chapter I
3.3 Revised 27017
Technical correction 28509
3.4 (b)(3) revised 27017
Technical correction 28509
Chapter III
302.2 (b) revised 46986
305.86-1 Added 25641
305.86-2 Added 25642
305.86-3 Added 25643
305.86-4 Added 46986
305.86-5 Added 46987
305.86-6 Added 46988
305.86-7 Added 46989
305.86-8 Added 46990
315 Added 16665
326 Added 4573, 4579
326.103 Corrected 7543
326.150 (c) corrected 7543
326.170 (c) revised 4573
Chapter IV
457 Added 22887, 22896
457.170 (c) revised 22888
500 Added 22888, 22896
500.170 (c) revised 22888
01 CFR 500.170 1987
1 CFR
52 FR
Page
Chapter III
304.1 -- 304.6 (Subpart A) Authority citation revised 22753
304.3 (a) revised; (b) and (c) amended; (d) removed; (e)
redesignated as (d) and revised; interim 22753
(c) correctly designated 23627
(a) revision, (b) and (c) amendment, (d) removal, (e) redesignation
as (d)confirmed; (d) revised 29498
304.6 Revised; interim 22753
Revision confirmed; (h) introductory text added; (i)(1) and (2)
amended 29498
305.87-1 Added 23629
305.87-2 Added 23631
305.87-3 Added 23632
305.87-4 Added 23634
305.87-5 Added 23635
305.87-6 Added 49142
305.87-7 Added 49143
305.87-8 Added 49144
305.87-9 Added 49146
305.87-10 Added 49147
305.87-11 Added 49148
305.87-12 Added 49151
310.12 Added 23636
Chapter IV
456 Authority citation revised; nomenclature changes 34373
456.2 (a) through (f) revised; (g), (h), and (i) added 34373
456.3 Redesignated as 456.4; new 456.3 added 34373
456.4 Redesignated from 456.3 34373
(j)(1)(vii) and (k)(2) revised; (j)(1)(viii), (k)(1) and (l)
amended; (j)(1)(ix) and (5) and (k)(4) added; (j)(2) and (3)
redesignated as (j)(3) and (4); new (j)(2) added; new (j)(4) revised
34374
01 CFR 500.170 1988
1 CFR
53 FR
Page
Chapter I
3.4 (b)(3), (4), (7), and (8) revised; (b)(9) added 28627
Chapter III
305.88-1 Added 26026
305.88-2 Added 26027
Section and footnote corrected 39588
305.88-3 Added 26028
305.88-4 Added 26029
305.88-5 Added 26030
305.88-6 Added 39585
305.88-7 Added 39586
305.88-8 Added 39587
310.13 Added 26032
01 CFR 500.170 1989
1 CFR
54 FR
Page
Chapter I
2.3 (a) and (c) amended; eff. 4-6-89 9676
2.4 (b) amended; eff. 4-6-89 9676
2.5 (c) revised; eff. 4-6-89 9676
3.2 (a) and (d) amended; eff. 4-6-89 9676
3.3 Heading revised; eff. 4-6-89 9676
3.4 Removed; eff. 4-6-89 9676
5.2 Heading and introductory text revised; eff. 4-6-89 9676
5.3 Revised; eff. 4-6-89 9676
5.6 Revised; eff. 4-6-89 9676
5.9 (a) through (d) revised; eff. 4-6-89 9676
6.5 Revised; eff. 4-6-89 9676
7 Removed; eff. 4-6-89 9677
8.1 (a) amended; eff. 4-6-89 9677
8.3 (c) amended; eff. 4-6-89 9677
8.5 (a), (b), and (c) revised; eff. 4-6-89 9677
8.8 Removed; eff. 4-6-89 9677
9 Heading revised; eff. 4-6-89 9677
9.1 Revised; eff. 4-6-89 9677
9.3 Removed; eff. 4-6-89 9677
10 Authority citation revised; eff. 4-6-89 9677
10.4 Removed; eff. 4-6-89 9677
10.14 Removed; eff. 4-6-89 9677
11 -- 12 (Subchapter D) Added; eff. 4-6-89 9677
11 Added; eff. 4-6-89 9677
12 Added; eff. 4-6-89 9678
15 -- 22 (Subchapter D) Redesignated as Subchapter E; eff. 4-6-89
9677
15 -- 22 (Subchapter E) Redesignated from Subchapter D; eff. 4-6-89
9677
15.4 Heading revised; eff. 4-6-89 9679
15.5 Removed; eff. 4-6-89 9679
16.2 Revised; eff. 4-6-89 9679
16.3 Revised; eff. 4-6-89 9679
16.4 Revised; eff. 4-6-89 9679
17 Heading revised; eff. 4-6-89 9679
17.1 (Subpart A) Heading added; eff. 4-6-89 9679
17.2 Undesignated center heading designated as Subpart B; eff.
4-6-89 9679
Revised; eff. 4-6-89 9680
17.3 -- 17.6 Undesignated center heading designated as Subpart C;
eff. 4-6-89 9679
17.3 Heading revised; eff. 4-6-89 9680
17.4 Heading, (a) and (b) revised; (d) added; eff. 4-6-89 9680
17.5 Revised; eff. 4-6-89 9680
17.6 Redesignated as 17.7; new 17.6 added; eff. 4-6-89 9680
17.7 Undesignated center heading designated as Subpart D; eff.
4-6-89 9679
Redesignated from 17.6; heading revised; (a) amended; (c) added;
eff. 4-6-89 9680
Introductory text, (a), and (b) correctly redesignated as (a), (1),
and (2); new (a)(1) corrected; new (b) correctly added; eff. 4-6-89
23343
18.1 Revised; eff. 4-6-89 9680
18.2 Revised; eff. 4-6-89 9680
18.3 (a) revised; (c) added; eff. 4-6-89 9680
18.4 Revised; eff. 4-6-89 9681
18.5 Revised; eff. 4-6-89 9681
18.6 Revised; eff. 4-6-89 9681
18.7 Amended; eff. 4-6-89 9681
18.9 Revised; eff. 4-6-89 9681
18.10 Revised; eff. 4-6-89 9681
18.11 Removed; eff. 4-6-89 9681
18.12 (b) amended; (c) introductory text revised; eff. 4-6-89 9681
18.13 Revised; eff. 4-6-89 9681
18.14 Removed; eff. 4-6-89 9681
18.16 Added; eff. 4-6-89 9681
18.17 (a) revised; (c) added; eff. 4-6-89 9681
18.20 (a) removed; (b) and (c) redesignated as (a) and (b); new (a)
introductory text amended; eff. 4-6-89 9681
19 Authority citation revised; eff. 4-6-89 9681
19.1 (e) amended; footnote 1 added; eff. 4-6-89 9681
19.4 Amended; eff. 4-6-89 9681
20 Heading revised; eff. 4-6-89 9681
20.1 Introductory text and (a) through (d) redesignated as (a)
introductory text and (1) through (4); final undesignated text
designated as (b); new (a) introductory text and (b) amended; eff.
4-6-89 9682
20.3 (a) and (c) revised; eff. 4-6-89 9682
20.4 Revised; eff. 4-6-89 9682
21.1 (b) revised; eff. 4-6-89 9682
21.4 Removed; eff. 4-6-89 9682
21.5 Removed; eff. 4-6-89 9682
21.6 Revised; eff. 4-6-89 9682
21.8 (c) added; eff. 4-6-89 9682
21.11 Revised; eff. 4-6-89 9682
(a) introductory text, and (1) through (8) correctly designated as
introductory text and (a) through (h); eff. 4-6-89 23343
21.12 Amended; eff. 4-6-89 9682
21.13 Removed; eff. 4-6-89 9682
21.14 Revised; eff. 4-6-89 9682
21.15 Removed; eff. 4-6-89 9682
21.18 Amended; eff. 4-6-89 9682
21.22 Removed; eff. 4-6-89 9682
21.42 Amended; eff. 4-6-89 9682
21.43 (b) amended; eff. 4-6-89 9682
21.45 Amended; eff. 4-6-89 9682
21.52 Revised; eff. 4-6-89 9682
21.53 Amended; eff. 4-6-89 9683
22 Heading revised; eff. 4-6-89 9683
22.1 -- 22.2 Undesignated center heading designated as Subpart A and
revised; eff. 4-6-89 9683
22.5 -- 22.7 Undesignated center heading designated as Subpart B and
revised; eff. 4-6-89 9683
22.5 Introductory text and (a) amended; eff. 4-6-89 9683
22.6 Amended; eff. 4-6-89 9683
22.7 Amended; eff. 4-6-89 9683
Chapter III
302.2 (e) revised and (f) added 28965
302.4 Revised 28965
305.68-1 Text removed; eff. 4-6-89 6861
305.69-9 Text removed; eff. 4-6-89 6861
305.70-4 Text removed; eff. 4-6-89 6861
305.71-4 Text removed; eff. 4-6-89 6861
305.71-9 Text removed; eff. 4-6-89 6861
305.73-3 Text removed; eff. 4-6-89 6861
305.73-6 Text removed; eff. 4-6-89 6861
305.74-3 Text removed; eff. 4-6-89 6861
305.75-1 Text removed; eff. 4-6-89 6861
305.75-2 Text removed; eff. 4-6-89 6861
305.76-4 Text removed; eff. 4-6-89 6861
305.77-1 Text removed; note added; eff. 4-6-89 6861
305.78-1 Text removed; eff. 4-6-89 6861
305.79-1 Text removed; eff. 4-6-89 6861
305.79-5 Text removed; eff. 4-6-89 6861
305.79-6 Text removed; note added; eff. 4-6-89 6861
305.80-1 Text removed; eff. 4-6-89 6861
305.80-5 Text removed; note added; eff. 4-6-89 6861
305.81-1 Text removed; note added; eff. 4-6-89 6861
305.81-2 Text removed; note added; eff. 4-6-89 6861
305.82-1 Text removed; note added; eff. 4-6-89 6862
305.82-3 Text removed; note added; eff. 4-6-89 6862
305.88-9 Added; eff. 4-6-89 5207
305.88-10 Added; eff. 4-6-89 5209
305.88-11 Added; eff. 4-6-89 5212
305.89-1 Added 28965
305.89-2 Added 28967
305.89-3 Added 28969
305.89-4 Added 28970
305.89-5 Added 28972
305.89-6 Added 28973
305.89-7 Added 53494
305.89-8 Added 53495
305.89-9 Added 53496
305.89-10 Added 53496
310.4 Text removed; eff. 4-6-89 6862
310.10 Text removed; eff. 4-6-89 6862
310.14 Added 28975
310.15 Added 53498
316 Added 39724
01 CFR 500.170 1990
1 CFR
55 FR
Page
Chapter III
305.89-10 Heading corrected 1665
305.90-1 Added 34209
305.90-2 Added 34211
305.90-3 Added 34212
305.90-4 Added 34213
305.90-5 Added 53270
305.90-6 Added 53271
305.90-7 Added 53272
305.90-8 Added 53273
Chapter IV
460 Removed 27633
461 Removed 27633
01 CFR 500.170 1991
1 CFR
56 FR
Page
Chapter III
305.91-1 Added 33842
305.91-2 Added 33844
305.91-3 Added 33847
305.91-4 Added 33850
305.91-5 Added 33851
305.91-6 Added 33852
305.91-7 Added 67140
305.91-8 Added 67141
305.91-9 Added 67143
305.91-10 Added 67144
1
General Provisions
Revised as of January 1, 1992
2
(Reserved)
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
01 CFR 500.170 Table of Contents
Page
Explanation v
Title 1:
Chapter I -- Administrative Committee of the Federal Register
Chapter II -- Office of the Federal Register
Chapter III -- Administrative Conference of the United States
Chapter IV -- Miscellaneous Agencies
Title 2 (Reserved)
Finding Aids:
Chapter I -- Index
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
Redesignation Table
List of CFR Sections Affected
01 CFR 500.170 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1992.
01 CFR 500.170 THIS TITLE
Title 1 -- General Provisions is composed of one volume. This volume
is comprised of chapter I -- Administrative Committee of the Federal
Register, chapter II -- Office of the Federal Register, chapter III --
Administrative Conference of the United States and chapter IV --
Miscellaneous Agencies. The contents of these volumes represent all
current regulations codified under this title of the CFR as of January
1, 1992.
Chapter IV contains the current Privacy Act, Freedom of Information
Act, and Rehabilitation Act regulations issued by miscellaneous
agencies.
An Index to chapter I appears in the Finding Aids section of this
volume.
A redesignation table for chapter I appears in the Finding Aids
section of this volume.
For this volume, Ruth Reedy Green was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
03 CFR 0.0 Title 3 -- The President
03 CFR 0.0 Proclamations
03 CFR 0.0 1991 Compilation -- Presidential Documents
03 CFR 0.0 PROCLAMATIONS
03 CFR Proc. 6241
03 CFR Proclamation 6241 of January 11, 1991
Proclamation 6241 of January 11, 1991
03 CFR National Sanctity of Human Life Day, 1991
By the President of the United States of America
A Proclamation
On January 21, the United States will observe a Federal holiday honoring the birth of the Reverend Dr. Martin Luther King, Jr. In his efforts to end legal segregation in America, Dr. King believed that achieving peace and goodwill among all peoples depends on obedience to the will of God and the affirmation of the sacredness of all human life. ''Every man is somebody,'' Dr. King said, ''because he is a child of God.''
It is this conviction -- the recognition that all people are made in the image of their Creator -- which guides our observance of National Sanctity of Human Life Day and our efforts to reaffirm in our Nation the sanctity of human life in all its stages.
For more than two hundred years, America has been the home of freedom. Our national commitment to fundamental human rights -- the ''unalienable Rights'' of ''Life, Liberty and the pursuit of Happiness'' -- was eloquently proclaimed in the Declaration of Independence and has been reaffirmed countless times in legislative halls; in a free and unfettered press; on battlefields around the world; and, most important, in our hearts.
Despite this deep national commitment, however, there have been times when realities have not lived up to our ideals. The United States was once a land of slavery and racial segregation. For far too long, many persons with disabilities have not been able to participate fully in the mainstream of American life. And the prevalence of abortion on demand in America calls into question our respect for the fundamental right to life.
The tragedy of abortion in America affects two persons, mother and child. While sincere persons may disagree, my position is that the lives of both must be cherished and protected. We must recognize the dignity and worth of every human being in our laws, as well as in our hearts. Abortion robs America of a portion of its future and denies preborn children the chance to grow, to contribute, and to enjoy a full life with all its challenges and opportunities.
Scientific advances reinforce the belief that unborn children are persons, entitled to medical care and legal protection. We must turn from abortion to loving alternatives such as adoption. All levels of government and all sectors of society should promote policies that encourage alternatives such as adoption and make adopting easier for families who want children and will give them loving homes, particularly children with special needs.
Across America, many people are involved in efforts to protect unborn children and to assist pregnant women in need. Through their compassion, generosity, and hard work, they are helping to ensure that the value of every human life is never forgotten. We hope and pray for the day when the principle of life's sanctity will guide both private thought and public policy on this question throughout our Nation.
On this occasion we also recall with gratitude and thanks to Almighty God the millions of Americans whose work in many and various ways likewise upholds our fundamental belief in the sanctity of human life. Members of the health professions and scientists work for cures to dread diseases and to alleviate the suffering of the ill and infirm. Parents, teachers, and community leaders work together towards ending the scourge of drugs. And volunteers throughout our Nation visit the sick, the elderly, and the lonely; care for the dying; help children in need; and bring joy to the lives of many of our fellow citizens.
In affirming the sanctity of life, we realize the highest ideals of our country. We deny our very heritage when we do not. Today, mindful of our heritage and our convictions, let us not only resolve to uphold the sanctity of human life but also work to promote policies that affirm our highest ideals as a Nation. All stages of human life are precious; all demand recognition of their sanctity.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim Sunday, January 20, 1991, as National Sanctity of Human Life Day. I call on all Americans to reflect on the sanctity of human life in all its stages and to gather in homes and places of worship to give thanks for the gift of life and to reaffirm our commitment to respect the life and the dignity of every human being.
IN WITNESS WHEREOF, I have hereunto set my hand this eleventh day of January, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Jan. 11, 1991
03 CFR Proc. 6242
03 CFR Proclamation 6242 of January 14, 1991
Proclamation 6242 of January 14, 1991
03 CFR Martin Luther King, Jr., Federal Holiday, 1991
By the President of the United States of America
A Proclamation
In commemorating the anniversary of the birth of the Reverend Dr. Martin Luther King, Jr., we celebrate the cause to which he dedicated his life. More than a struggle to end bigotry and segregation in the United States -- although that alone would be ample reason to honor him -- Martin Luther King's great purpose was an effort ''to make real the promises of democracy.''
With characteristic eloquence, Dr. King told his countrymen, ''In spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this Nation will rise up and live out the true meaning of its creed.'' By working to fulfill for all Americans the promise of life, liberty, and happiness expressed in the Declaration of Independence, Martin Luther King helped to bring our country closer to the ideal envisioned at its founding.
Inspiring Martin Luther King's appeals for racial equality was a strong faith -- faith in Almighty God, faith in the future, and faith in the ultimate triumph of truth and justice. A gifted preacher who often quoted from Scripture, King believed that America must uphold its promise of liberty and opportunity for all because prejudice and discrimination obscure the reality that all people are made in the image of their Creator.
The faith that animated Martin Luther King's efforts to uphold the God-given dignity and worth of every individual was nurtured in him from childhood. The son of a Baptist minister, King was clearly inspired by the example of his parents and their quiet nobility and determination.
The family is still, as King once observed, ''the main educational agency of mankind.'' Thus, we must begin with the family if we are to ensure that our children ''live in a nation where they will not be judged by the color of their skin but by the content of their character.'' We give our children the tools needed to build a bright future when we give them love and attention and help them to develop a sense of personal responsibility and self-esteem, as well as an appreciation for the value of learning and hard work. Finally, we must instill in our children a sense of hope and higher purpose, helping them to recognize -- as did Martin Luther King -- the power of prayer and the rewards of basic human goodness. As Dr. King once said, ''Intelligence plus character -- that is the goal of true education. The complete education gives one not only power of concentration but worthy objectives upon which to concentrate.''
Throughout his adult life, Martin Luther King concentrated on efforts to overcome bitterness and division and to fulfill the American dream for all members of our society. He taught all of us important lessons about faith, sacrifice, perseverance, and optimism. Today we recall those lessons and renew our determination to promote racial harmony and equality of opportunity in the United States.
By Public Law 98-144, the third Monday in January of each year has been designated as a legal public holiday.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim Monday, January 21, 1991, as the Martin Luther King, Jr., Federal Holiday.
IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of January, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6243
03 CFR Proclamation 6243 of February 1, 1991
Proclamation 6243 of February 1, 1991
03 CFR For a National Day of Prayer, February 3, 1991
By the President of the United States of America
A Proclamation
As one Nation under God, we Americans are deeply mindful of both our dependence on the Almighty and our obligations as a people He has richly blessed. From our very beginnings as a Nation, we have relied upon God's strength and guidance in war and peace. Entrusted with the holy gift of freedom and allowed to prosper in its great light, we have a responsibility to serve as a beacon to the world -- to use our strength and resources to help those suffering in the darkness of tyranny and repression.
Today the United States is engaged in a great struggle to uphold the principles of national sovereignty and international order and to defend the lives and liberty of innocent people. It is an armed struggle we made every possible effort to avoid through extraordinary diplomatic efforts to resolve the matter peacefully, yet -- given no choice by a ruthless dictator who would wield political and economic hegemony over other nations through force and terror -- it is a struggle we wage with conviction and resolve. Our cause is moral and just.
However confident of our purpose, however determined to prevail, we Americans continue to yearn for peace and for the safety of our service men and women in the Persian Gulf. With these great hopes in mind, I ask all Americans to unite in humble and contrite prayer to Almighty God. May it please our Heavenly Father to look upon this Nation, judging not our worthiness but our need, and to grant us His continued strength and guidance. May He watch over and support the courageous members of our Armed Forces, their loving families, as well as the forces of those nations that have joined the coalition to liberate Kuwait and to deter further Iraqi aggression.
Today, as we turn our hearts toward Heaven, let us also pray especially for those brave and selfless military personnel who have earned their final rest in the arms of God. Let us ask Him to strengthen and console their families, and let us also remember all those innocent civilians, wherever they may be, who have been affected by this conflict.
''All this being done, in sincerity and truth,'' as President Lincoln once wrote, ''Let us then rest humbly in the hope authorized by the Divine teachings, that the united cry of the Nation will be heard on high, and answered . . .'' by Almighty God, our refuge and strength, our rock and our salvation.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim February 3, 1991, as a National Day of Prayer. I ask that Americans gather in homes and places of worship to pray for the members of Operation Desert Storm; for their families; and for all those innocent persons, wherever they may be, who suffer as a result of the conflict in the Persian Gulf. I ask that prayer be made for American military commanders in the region and for the forces of other nations that have joined in the coalition to liberate Kuwait. I also urge the American people and their elected representatives to give thanks to God for His mercy and goodness and humbly to ask for His continued help and guidance in all our endeavors. Let us pray this day, and every day hereafter, for peace. And may God keep this country as one great Nation under Him forever.
IN WITNESS WHEREOF, I have hereunto set my hand this 1st day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's radio address of Feb. 2, 1991, on the National Day of Prayer, see the Weekly Compilation of Presidential Documents (vol. 27, p. 117).
03 CFR Proc. 6244
03 CFR Proclamation 6244 of February 4, 1991
Proclamation 6244 of February 4, 1991
03 CFR To Amend the Generalized System of Preferences
By the President of the United States of America
A Proclamation
1. In Proclamation 5758 of December 24, 1987, the President determined, pursuant to sections 502(b)(7), 502(c)(7), and 504 of the Trade Act of 1974, as amended (the 1974 Act) (19 U.S.C. 2462(b)(7), 2462(c)(7), and 2464), that it was appropriate to provide for the suspension of preferential treatment under the Generalized System of Preferences (GSP) for articles that are eligible for such treatment and that are imported from Chile. Such suspension was the result of a Presidential determination that Chile had not taken and was not taking steps to afford internationally recognized worker rights, as defined in section 502(a)(4) of the 1974 Act (19 U.S.C. 2462(a)(4)).
2. After a review of the current situation in Chile, I have determined that Chile has taken or is taking steps to afford internationally recognized worker rights, as defined in section 502(a)(4) of the 1974 Act. Further, pursuant to sections 501 and 502 of the 1974 Act (19 U.S.C. 2461 and 2462), and after taking into account the factors set forth in such sections, I have determined that it is appropriate to terminate the suspension of preferential treatment under the GSP for articles that are currently eligible for such treatment and that are imported from Chile and to redesignate Chile as a beneficiary developing country for purposes of the GSP.
3. Pursuant to section 504 of the 1974 Act (19 U.S.C. 2464), the President may withdraw, suspend, or limit the application of duty-free treatment under the GSP with respect to any article or with respect to any country upon consideration of the factors set forth in sections 501 and 502(c) of the 1974 Act (19 U.S.C. 2461 and 2462(c)). I have determined, pursuant to section 504(a) of the 1974 Act, that Chile should not receive preferential tariff treatment under the GSP with respect to certain eligible articles.
4. Section 604 of the 1974 Act (19 U.S.C. 2483) authorizes the President to embody in the Harmonized Tariff Schedule of the United States (HTS) the substance of the provisions of that Act, and of other acts affecting import treatment, and actions thereunder.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States, including but not limited to sections 501, 502, 504, and 604 of the 1974 Act, do proclaim that:
(1) In order to redesignate Chile as a beneficiary developing country for purposes of the GSP, general note 3(c)(ii)(A) to the HTS, listing those countries whose products are eligible for benefits of the GSP, is modified by inserting in alphabetical order in the list of independent countries ''Chile''.
(2) In order to provide that Chile should not be treated as a beneficiary developing country with respect to certain eligible articles for purposes of the GSP, the Rates of Duty 1-Special subcolumn for each of the HTS provisions enumerated in section A of the Annex to this proclamation is modified by deleting from such subcolumn for such HTS provisions the symbol ''A'' in parentheses, and by inserting the symbol ''A*'' in lieu thereof.
(3) In order to provide that Chile should not be treated as a beneficiary developing country with respect to certain eligible articles for purposes of the GSP, general note 3(c)(ii)(D) to the HTS is modified as provided in section B of the Annex to this proclamation.
(4) Any provisions of previous proclamations and Executive orders inconsistent with the provisions of this proclamation are hereby superseded to the extent of such inconsistency.
(5) The amendments made by this proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after the date of publication of this proclamation in the Federal Register.
IN WITNESS WHEREOF, I have hereunto set my hand this fourth day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's letter on the reinstatement of beneficiary trade status for Chile, see the Weekly Compilation of Presidential Documents (vol. 27, p. 122). For his remarks commemorating the first anniversary of the Enterprise for the Americas Initiative, see p. 852.
ANNEX
Modifications to the HTS
Effective as to articles entered on or after the date of publication of this proclamation in the Federal Register
Section A. For the following HTS provisions, in the Rates of Duty 1-Special subcolumn, delete the symbol ''A'' and insert ''A*'' in lieu thereof: 7402.00.00 7403.11.00 7403.12.00 7403.13.00 7403.19.00 7403.21.00 7403.22.00 7403.23.00 7403.29.00
Section B. General note 3(c)(ii)(D) is modified --
(a) by adding in numerical sequence the following HTS provisions
and countries set opposite them:
(b) by adding, in alphabetical order, ''Chile'' opposite HTS
subheading 1005.90.20.
03 CFR Proc. 6245
03 CFR Proclamation 6245 of February 4, 1991
Proclamation 6245 of February 4, 1991
03 CFR To Amend the Generalized System of Preferences
By the President of the United States of America
A Proclamation
1. In Proclamation 5617 of March 6, 1987, the President determined, pursuant to sections 502(c)(7) and 504 of the Trade Act of 1974, as amended (the 1974 Act) (19 U.S.C. 2462(c)(7) and 2464), that it was appropriate to provide for the suspension of preferential treatment under the Generalized System of Preferences (GSP) for articles that are eligible for such treatment and that are imported from Paraguay. In Proclamation 5955 of April 13, 1989, the President determined, pursuant to sections 502(b)(7), 502(c)(7), and 504 of the 1974 Act (19 U.S.C. 2462(b)(7), 2462(c)(7), and 2464), that it was appropriate to provide for the suspension of preferential treatment under the GSP for articles that are eligible for such treatment and that are imported from the Central African Republic. Such suspensions were the result of Presidential determinations that Paraguay and the Central African Republic had not taken and were not taking steps to afford internationally recognized worker rights, as defined in section 502(a)(4) of the 1974 Act (19 U.S.C. 2462(a)(4)).
2. After a review of the current situation in Paraguay and the Central African Republic, I have determined that Paraguay and the Central African Republic have taken or are taking steps to afford internationally recognized worker rights, as defined in section 502(a)(4) of the 1974 Act. Further, pursuant to sections 501 and 502 of the 1974 Act (19 U.S.C. 2461 and 2462), and after taking into account the factors set forth in such sections, I have determined that it is appropriate to terminate the suspension of preferential treatment under the GSP for articles that are currently eligible for such treatment and that are imported from Paraguay or the Central African Republic and to redesignate Paraguay and the Central African Republic as beneficiary developing countries for purposes of the GSP.
3. Section 504(c)(6) of the 1974 Act provides that section 504(c) of the 1974 Act shall not apply to any beneficiary developing country that the President determines, based on the considerations described in sections 501 and 502(c) of the 1974 Act, to be a least-developed beneficiary developing country. Accordingly, after taking into account the considerations in sections 501 and 502(c) of the 1974 Act, I have determined that it is appropriate to restore the prior designation of the redesignated beneficiary developing country of the Central African Republic as a least-developed beneficiary developing country.
4. Pursuant to sections 502(a), (b), and (c) of the 1974 Act (19 U.S.C. 2462), and having due regard for the eligibility criteria set forth therein, I have determined that it is appropriate to designate Namibia as a beneficiary developing country for purposes of the GSP.
5. Title II of the Customs and Trade Act of 1990 (the 1990 Act) (Public Law No. 101-382, 104 Stat. 629, 655) made certain conforming changes to the GSP, as enacted by Title V of the 1974 Act (19 U.S.C. 2461 et seq.). To clarify the preferential tariff treatment accorded under the GSP, I have determined that it is necessary to modify provisions of the general notes to the Harmonized Tariff Schedule of the United States (HTS) to conform to the amendments to the 1974 Act made by the 1990 Act.
6. Section 503(c)(1) of the 1974 Act (19 U.S.C. 2463(c)(1)) provides that the President may not designate certain specified categories of import-sensitive articles as eligible articles under the GSP. Section 503(c)(1)(A) of the 1974 Act provides that textile and apparel articles that are subject to textile agreements are import-sensitive. Pursuant to sections 504(a) and 604 of the 1974 Act (19 U.S.C. 2464(a) and 2483), I am acting to modify the HTS to remove from eligibility under the GSP those articles that have become subject to textile agreements and to make certain conforming changes in the HTS.
7. In order to make certain technical corrections to the HTS to clarify my determinations in Proclamation 6123 of April 26, 1990, and Proclamation 6152 of June 29, 1990, I have determined that it is appropriate to modify general note 3(c)(ii)(D) to the HTS, enumerating those articles from specified beneficiary developing countries that are ineligible for preferential tariff treatment under the GSP, and to modify the Rates of Duty 1-Special subcolumn for HTS subheadings 8512.40.40 and 8708.21.00.
8. Section 604 of the 1974 Act (19 U.S.C. 2483) authorizes the President to embody in the HTS the substance of the provisions of that Act, and of other acts affecting import treatment, and actions thereunder.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States, including but not limited to sections 501, 502, 504, and 604 of the 1974 Act and Title II of the 1990 Act, do proclaim that:
(1) In order to redesignate Paraguay and the Central African Republic and to designate Namibia as beneficiary developing countries for purposes of the GSP, general note 3(c)(ii)(A) to the HTS, listing those countries whose products are eligible for benefits of the GSP, is modified by inserting in alphabetical order in the list of independent countries ''Paraguay'', ''Central African Republic'', and ''Namibia''.
(2) In order to provide for the designation of the Central African Republic as a least-developed beneficiary developing country, general note 3(c)(ii)(B) to the HTS, listing those countries designated as least-developed beneficiary countries, is modified by inserting in alphabetical order ''Central African Republic''.
(3) In order to make certain conforming changes in the HTS to reflect amendments to the GSP made by the 1990 Act, general note 3(c)(ii) to the HTS is modified as set forth in section A of the Annex to this proclamation.
(4) In order to remove from eligibility under the GSP an article that has become subject to textile agreements, and to make certain conforming changes in the HTS, the HTS is modified as provided in section B of the Annex to this proclamation.
(5) In order to make certain technical corrections to the HTS to reflect prior Presidential determinations concerning the GSP, the HTS is modified as provided in section C of the Annex to this proclamation.
(6) Any provisions of previous proclamations and Executive orders inconsistent with the provisions of this proclamation are hereby superseded to the extent of such inconsistency.
(7)(a) The amendments made by paragraph (5) of this proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1990.
(b) The amendments made by paragraph (3) of this proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after October 1, 1990.
(c) The amendments made by paragraphs (1), (2), and (4) of this proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after the date of publication of this proclamation in the Federal Register.
IN WITNESS WHEREOF, I have hereunto set my hand this fourth day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the statement by Press Secretary Fitzwater on beneficiary trade status for the Central African Republic, Chile, Namibia, and Paraguay, see the Weekly Compilation of Presidential Documents (vol. 27, p. 122). For the President's letter on the reinstatement of this status to these countries, see page 125.
ANNEX
Modifications to the HTS
Section A. Effective as to articles entered on or after October 1, 1990.
(1) General note 3(c)(ii)(B) to the HTS is modified by inserting immediately after ''article'' the phrase ''which is the growth, product or manufacture of one of the countries designated as a least-developed beneficiary developing country'', by striking out the phrase ''one of the countries designated as a least-developed beneficiary developing'', by inserting after ''from'' the word ''such'', and by striking out ''it'' and inserting ''such article'' in lieu thereof.
(2) General note 3(c)(ii)(C) is modified --
(a) by striking out the phrase ''Whenever an eligible article is
imported into the customs territory of the United States directly from a country or territory listed in subdivision (c)(ii)(A) of this note, it'', and by inserting the phrase ''Whenever an eligible article which is the growth, product, or manufacture of a designated beneficiary developing country listed in subdivision (c)(ii)(A) of this note is imported into the customs territory of the United States directly from such country or territory, such article'' in lieu thereof.
(b) by adding at the end thereof the following new sentence:
''No article or material of a beneficiary developing country shall be eligible for such treatment by virtue of having merely undergone simple combining or packing operations, or mere dilution with water or mere dilution with another substance that does not materially alter the characteristics of the article.''.
Section B. Effective as to articles entered on or after the date of publication of this proclamation in the Federal Register.
(1) HTS subheadings 6307.90.87 and 6307.90.95 are superseded by the following new subheadings set forth in columnar format, with the material in such columns inserted in the columns of the HTS designated ''Heading/Subheading'', ''Article Description'', ''Rates of Duty 1-General'', ''Rates of Duty 1-Special'', and ''Rates of Duty 2'', respectively.
(2) Conforming changes:
(a) Any staged reduction of a rate of duty set forth in HTS
subheading 6307.90.95 that was proclaimed by the President before the effective date of this proclamation and would otherwise take effect after the effective date of this proclamation shall also apply to the corresponding duty rate in HTS subheadings 6307.90.86 and 6307.90.94.
(b) HTS subheading 9902.57.01 is modified by striking out
''6307.90.95'' and inserting ''6307.90.94'' in lieu thereof.
Section C. Effective as to articles entered on or after July 1, 1990.
(1) General note 3(c)(ii)(D) to the HTS is modified --
(a) by striking out the word ''Mexico'' appearing immediately
after ''8509.90.20 Mexico'' and by inserting ''8512.40.40 Mexico'' in lieu thereof; and
(b) by striking out the word ''Mexico'' appearing immediately
after ''8544.51.80 Mexico'' and by inserting ''8708.21.00 Mexico'' in lieu thereof.
(2) HTS subheading 8512.40.40 and 8708.21.00 are each modified by striking out the symbol ''A,'' in the Rates of Duty 1-Special subcolumn for such subheadings and inserting ''A*,'' in lieu thereof.
03 CFR Proc. 6246
03 CFR Proclamation 6246 of February 5, 1991
Proclamation 6246 of February 5, 1991
03 CFR National Visiting Nurse Associations Week, 1991
By the President of the United States of America
A Proclamation
Visiting Nurse Associations have provided high-quality, affordable health care services to homebound Americans for more than 100 years. The dedicated men and women who carry on the work of these independently operated, voluntary associations make it possible for patients to obtain needed care while remaining in familiar, comfortable surroundings, among family and friends. In so doing, visiting nurse professionals bring to their work a warm, personal touch as well as valuable knowledge and skills.
Over the years Americans have come to equate Visiting Nurse Associations with reliable home health care for persons recuperating from illness or injury, for persons incapacitated by physical or mental disabilities, for the terminally ill, and for those suffering from chronically disabling diseases. These associations offer a wide range of medical care and support services -- including specialized nursing, nutritional counseling, homemaker and home health aide services, as well as speech, physical, and occupational therapy. As nonprofit, community-based organizations, Visiting Nurse Associations not only stay attuned to the particular needs of individuals and families but also help to mitigate rising health care costs.
This week we gratefully recognize the important contribution that Visiting Nurse Associations make to our Nation's health care system. We also honor the generous, hardworking men and women who serve their fellow Americans through these valued organizations.
The Congress, by Public Law 101-468, has designated the week beginning February 17, 1991, as ''National Visiting Nurse Associations Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week beginning February 17, 1991, as National Visiting Nurse Associations Week. I invite all Americans to observe this week with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this fifth day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6247
03 CFR Proclamation 6247 of February 7, 1991
Proclamation 6247 of February 7, 1991
03 CFR American Heart Month, 1991
By the President of the United States of America
A Proclamation
In recent years, we have learned much about what we can do to avoid heart attack, stroke, and other forms of cardiovascular disease. For example, we know how important it is to discourage use of tobacco products, particularly among young Americans. We also know that controlling blood pressure, following a diet low in fat and cholesterol, and exercising regularly are all prudent ways of reducing the risk of cardiovascular disease.
Although significant progress has been made in the struggle to overcome cardiovascular disease, we must not become complacent. Heart attack, stroke, and other forms of cardiovascular disease continue to claim the lives of nearly 1 million Americans every year -- one American approximately every 32 seconds.
Nearly 68 million Americans currently suffer from one or more forms of cardiovascular disease, including high blood pressure, coronary heart disease, rheumatic heart disease, and stroke. Contrary to widely held assumptions, heart disease does not occur primarily in old age; studies show that 5 percent of all heart attacks occur in people younger than age 40 and more than 45 percent occur in people younger than age 65.
Women as well as men are at risk. Heart attack is the number one killer of American women, surpassing even breast cancer and lung cancer. Almost half of the more than 500,000 persons who die each year of heart attack are women.
While statistics tell us much about the prevalence of cardiovascular disease in the United States, they cannot measure the pain and suffering endured by victims and their families. Heart attack and other forms of heart and blood vessel disease also inflict a heavy toll on our Nation in terms of health care costs and lost productivity. The annual costs of related medical services and lost work due to disability total in the billions of dollars.
Since 1948, the Federal Government, through the National Heart, Lung, and Blood Institute, and the American Heart Association, a private nonprofit organization, have spent millions of dollars on educational programs and research into cardiovascular disease. The American Heart Association estimates that it has invested more than $900 million in research since it became a national voluntary health organization in the late 1940s. That great investment has been made possible by the generosity of the American people and the dedicated efforts of more than 3 million volunteers.
During American Heart Month we recognize the importance of such ongoing efforts in the public and private sectors. We also reaffirm our commitment to overcoming cardiovascular disease.
The Congress, by Joint Resolution approved December 30, 1963 (77 Stat. 843; 36 U.S.C. 169b), has requested that the President issue an annual proclamation designating February as ''American Heart Month.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the month of February 1991 as American Heart Month. I invite the Governors of the States, the Commonwealth of Puerto Rico, officials of other areas subject to the jurisdiction of the United States, and the American people to join me in reaffirming our commitment to combating cardiovascular diseases and stroke.
IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Feb. 7, 1991
03 CFR Proc. 6248
03 CFR Proclamation 6248 of February 7, 1991
Proclamation 6248 of February 7, 1991
03 CFR National Women and Girls in Sports Day, 1991
By the President of the United States of America
A Proclamation
More than 100 years ago, the first university department of physical education for women was established at Oberlin College. It was not until 1972, however, that Federal law required colleges receiving government funds to provide equitable athletic programs for women. Since then, more and more women have begun to participate in organized sports -- not only at the collegiate level but at every competitive level.
During the past decade alone, the number of women taking part in intercollegiate sports has increased by nearly 50 percent to 158,000 -- or 30 percent of the total number of college students in sports. Girls' participation in public high school sports programs more than doubled during this time.
Both individual and team sports help young women to develop their leadership and communication skills, as well as their athletic talents. And participation in sports helps promote good health. Indeed, today many female athletes -- who have reached great heights through their determination and self-discipline -- serve as outstanding role models for both boys and girls.
Americans are proud of their countrywomen who have earned international acclaim as world-class athletes, and I am pleased that eight members of the President's Council on Physical Fitness and Sports are women. These achievements underscore the commitment to excellence and the capacity to excel demonstrated by female athletes throughout the United States.
The Congress, by House Joint Resolution 30, has designated February 7, 1991, as ''National Women and Girls in Sports Day'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim February 7, 1991, as National Women and Girls in Sports Day. I urge all Americans to observe this day with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6249
03 CFR Proclamation 6249 of February 11, 1991
Proclamation 6249 of February 11, 1991
03 CFR Save Your Vision Week, 1991
By the President of the United States of America
A Proclamation
During this ''Decade of the Brain,'' which is dedicated to enhancing public awareness of the benefits of neuroscience research, our observance of Save Your Vision Week is particularly appropriate. Our senses -- the precious gifts of sight, touch, hearing, taste, and smell -- link the mind to the outside world, enabling us to enjoy all the wonders of creation. As a ''window'' for the brain, our eyesight merits special care and protection.
Tragically, thousands of Americans suffer vision loss each year -- vision loss that might have easily been prevented. One simple and highly effective way to prevent vision loss is through periodic eye examinations by a licensed professional. A thorough examination by an eye care professional can lead to early detection of eye disease and allow time for successful treatment.
Glaucoma is one potentially blinding eye disease that can be controlled and treated effectively if detected early. Regrettably, however, glaucoma remains the leading cause of blindness in older Americans because many fail to have their eyes tested for the disease before it has permanently damaged their vision. Black Americans over age 40 need to be especially vigilant, since glaucoma has been shown to affect this group more frequently and at an earlier age than it does others.
Regular eye examinations are absolutely critical for persons with diabetes. Treatment is usually available that can help those with diabetic eye disease to avoid extreme vision loss. As in the case of glaucoma, these treatments are most effective when the condition is detected early.
Children also need early and regular eye examinations. Even the healthiest of children may have an unsuspected visual problem that requires prompt attention. A routine checkup can identify such a disorder in time for effective treatment.
In addition to regular eye examinations, all of us can avoid vision loss by protecting ourselves against eye injuries. At home as well as in the workplace, one should wear a face mask, goggles, or safety glasses when working with potentially harmful chemicals or machinery. Whenever possible, athletes participating in contact sports or other potentially hazardous activities should also wear protective eyewear. Contact lens wearers should always handle and clean their lenses carefully, in accordance with the directions of their eye care professional. Finally, from an early age, children should be taught the fundamentals of eye safety -- and one of the best ways we can teach them is by good example.
To encourage Americans to cherish and protect their vision, the Congress, by joint resolution approved December 30, 1963 (77 Stat. 629; 36 U.S.C. 169a), has authorized and requested the President to proclaim the first week of March of each year as ''Save Your Vision Week.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week of March 3 through March 9, 1991, as Save Your Vision Week. I urge all Americans to participate in this observance by making eye care and eye safety an important part of their lives. I also encourage eye care professionals, the media, and all public and private organizations committed to the goal of sight conservation to join in activities that make Americans more aware of the steps they can take to protect their vision.
IN WITNESS WHEREOF, I have hereunto set my hand this eleventh day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6250
03 CFR Proclamation 6250 of February 14, 1991
Proclamation 6250 of February 14, 1991
03 CFR Lithuanian Independence Day, 1991
By the President of the United States of America
A Proclamation
From the days of Mindaugas to modern times, Lithuanians have cherished the freedom that is the common inheritance of all mankind. Thus, on February 16, 1918, when they realized their long-denied dream of independence, the people of Lithuania celebrated the renewal of a centuries-old national tradition and the promise of a future free from foreign domination.
Tragically, however, Lithuania's independence was short-lived. Under secret protocols to the infamous Molotov-Ribbentrop pact, signed by the foreign ministers of the Soviet Union and Nazi Germany in 1939, the independent Baltic States of Lithuania, Latvia, and Estonia were consigned to foreign occupation and conquest. In June 1940, less than 1 year later, Red Army troops invaded Lithuania and its neighbors, effectively annexing those nations to the Soviet Union.
The United States has never recognized the forcible incorporation of Lithuania and the other Baltic States into the U.S.S.R., and we have consistently supported the Baltic peoples' right to determine and control their own future. On this 73rd anniversary of Lithuanian independence, we reaffirm our support for the just aspirations of the Lithuanian people. Their current struggle to assert their legitimate rights through the peaceful efforts of democratically elected representatives compels our sympathy and support.
The Lithuanian people have used the democratic process in what they hoped would be a peaceful, disciplined effort to gain recognition of their right to independence. Soviet authorities responded in January with the use of force, killing at least 20 people and injuring hundreds of others. The United States has condemned as inexcusable that action against a peaceful and democratically elected government, and we have called on the Soviets to eschew further use of intimidation and violence in the Baltic States. We urge the Soviets to pursue constructive negotiations with the elected representatives of the Lithuanian people who have expressed their will overwhelmingly through the nationwide referendum of February 9.
The courageous peoples of the Baltic States have acted with dignity and restraint in the face of grave challenges, and the thoughts and prayers of the American people remain with them.
To demonstrate our common cause with freedom, the Congress, by House Joint Resolution 606, has designated February 16, 1991, as ''Lithuanian Independence Day'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim February 16, 1991, as Lithuanian Independence Day. I call upon the people of the United States to observe this day with appropriate ceremonies and activities, reaffirming our support of the just aspirations of all peoples for liberty and self-determination.
IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6251
03 CFR Proclamation 6251 of February 21, 1991
Proclamation 6251 of February 21, 1991
03 CFR National Parents and Teachers Association Week, 1991
By the President of the United States of America
A Proclamation
Parents play a singularly influential role in the educational development of their children. Indeed, parents' encouragement and example are far more important factors than a family's social and economic background. Research clearly shows that the interest parents demonstrate in their youngster's daily studies and other school activities can significantly enhance that child's academic performance.
By bringing parents together in an ongoing partnership with teachers and school administrators, the Parents and Teachers Association (PTA) provides an effective means for parents to participate in the education of their children. Because every child, every school, and every community is unique, local PTAs can be an ideal vehicle for meeting specific goals and needs.
The sustained involvement and cooperation of parents are vital if we are to reach our six National Education Goals and ensure that every American has the opportunity to acquire a high quality education. Local PTA groups enable parents to express their concerns and ideas regarding their children's education, and this week we proudly salute these valued organizations.
In recognition of the contributions of PTA organizations across America, the Congress, by Senate Joint Resolution 364 (Public Law 101-643), has designated the third week of February 1991 as ''National Parents and Teachers Association Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week beginning February 17, 1991, as National Parents and Teachers Association Week. I urge all Americans to observe this week with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this 21 day of Feb, in the year of our Lord nineteen hundred and 91, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks on signing Proclamation 6251, see the Weekly Compilation of Presidential Documents (vol. 27, p. 194).
03 CFR Proc. 6252
03 CFR Proclamation 6252 of February 21, 1991
Proclamation 6252 of February 21, 1991
03 CFR Commemoration of the Bicentennial of U.S.-Portugal Relations
By the President of the United States of America
A Proclamation
On February 21, 1791, the United States Senate approved President Washington's nomination of Colonel David Humphreys as the first U.S. Minister to Portugal, thereby establishing diplomatic relations between our two countries. Since that time, the governmental, commercial, and cultural ties between the United States and Portugal have grown and prospered.
Mutually beneficial ties between the United States and Portugal began to take shape long before President Washington agreed to formal recognition of our friendship. Indeed, Portugal was among the nations that led the way to the European discovery and exploration of America: during the 15th and early 16th centuries, Portugal was the center for bold navigational advances that permitted transoceanic travel; there, men such as Christopher Columbus and Juan Rodri1guez Cabrillo developed the knowledge and skills that made possible their historic journeys along these shores. The history of America would not be the same were it not for the contributions of the intrepid Portuguese people.
Since the early years of our Republic, Portugal has been a welcome friend. Even before the establishment of formal diplomatic ties, Portugal extended to American shipping the protection of its navy against the Barbary pirates, who were a major threat to U.S. commerce. Soon after diplomatic ties were established, our two countries developed active trade and commercial relations. With seafaring traditions strong in both countries, the Azores played a key role in facilitating trade and commerce, allowing for the provisioning of whaling vessels and other ships. Today our Consulate in the Azores is the oldest active U.S. consular post in the world.
Beginning in the 19th century, over the oceanic bridge provided by the Azores, thousands of Portuguese men and women emigrated to the United States, enriching our history and culture. The deep cultural and familial ties that were subsequently established between the United States and Portugal are reinforced today by our mutual devotion to democratic ideals and the rule of law. Joining with the United States as a founding member of the North Atlantic Treaty Organization in 1949, Portugal has remained a steadfast ally and a valued partner in efforts to promote global security.
On this occasion, as we celebrate the 200th anniversary of U.S.-Portugal relations, let us rededicate ourselves to strengthening cooperation between our two countries in promoting the ideals of peace and freedom.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim February 21, 1991, as a day of commemoration of the 200th anniversary of U.S.-Portugal relations. I encourage all Americans to observe this day with appropriate programs, ceremonies, and activities in recognition of the enduring friendship between the United States and Portugal.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6253
03 CFR Proclamation 6253 of February 21, 1991
Proclamation 6253 of February 21, 1991
03 CFR National Doctors Day, 1991
By the President of the United States of America
A Proclamation
More than the application of science and technology, medicine is a special calling, and those who have chosen this vocation in order to serve their fellowman understand the tremendous responsibility it entails. Referring to the work of physicians, Dr. Elmer Hess, a former president of the American Medical Association, once wrote: ''There is no greater reward in our profession than the knowledge that God has entrusted us with the physical care of His people. The Almighty has reserved for Himself the power to create life, but He has assigned to a few of us the responsibility of keeping in good repair the bodies in which this life is sustained.'' Accordingly, reverence for human life and individual dignity is both the hallmark of a good physician and the key to truly beneficial advances in medicine.
The day-to-day work of healing conducted by physicians throughout the United States has been shaped, in large part, by great pioneers in medical research. Many of those pioneers have been Americans. Indeed, today we gratefully remember physicians such as Dr. Daniel Hale Williams and Dr. Charles Drew, who not only advanced their respective fields but also brought great honor and pride to their fellow Black Americans. We pay tribute to doctors such as Albert Sabin and Jonas Salk, whose vaccines for poliomyelitis helped to overcome one of the world's most dread childhood diseases. We also recall the far-reaching humanitarian efforts of Americans such as Dr. Thomas Dooley, as well as the forward-looking labors of pioneers such as members of the National Institutes of Health, who are helping to lead the Nation's fight against AIDS, cancer, and other life-threatening diseases. These and other celebrated American physicians have enabled mankind to make significant strides in the ongoing struggle against disease.
However, in addition to the doctors whose names we easily recognize, there are countless others who carry on the quiet work of healing each day in communities throughout the United States -- indeed, throughout the world. Common to the experience of each of them, from the specialist in research to the general practitioner, are hard work, stress, and sacrifice. All those Americans who serve as licensed physicians have engaged in years of study and training, often at great financial cost. Most endure long and unpredictable hours, and many must cope with the conflicting demands of work and family life.
As we recognize our Nation's physicians for their leadership in the prevention and treatment of illness and injury, it is fitting that we pay special tribute to those who serve as members of the Armed Forces and Reserves and are now deployed in support of Operation Desert Storm. Whether they carry the tools of healing into the heat of battle or stand duty at medical facilities in the Persian Gulf and elsewhere, these dedicated physicians -- along with thousands of nurses and other medical personnel -- are vital to the success of our mission. We salute them for their courage and sacrifice, and we pray for their safety. We also pray for all those who come in need of their care.
In honor of America's physicians, the Congress, by Senate Joint Resolution 366 (Public Law 101-473), has designated March 30, 1991, as ''National Doctors Day'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim March 30, 1991, as National Doctors Day. I encourage all Americans to observe this day with appropriate programs and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of February, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6254
03 CFR Proclamation 6254 of March 1, 1991
Proclamation 6254 of March 1, 1991
03 CFR In Commemoration of the 30th Anniversary of the United States Peace Corps
By the President of the United States of America
A Proclamation
The generous spirit of the American people has produced in this country a great and long-standing tradition of voluntary service. During the past three decades, that tradition has been carried on with dramatic and far-reaching effect by the members of the United States Peace Corps.
Established in 1961 to reach out to foreign countries and to help meet their urgent needs for skilled manpower, the Peace Corps has brought a wealth of practical assistance to individuals and communities throughout the world. Since 1961, more than 125,000 Americans have served as Peace Corps volunteers in more than 100 countries. Peace Corps volunteers have not only helped to fill immediate and dire human needs but also helped to promote sustainable, long-term development in areas such as agriculture, business, education, urban development, health care, and the environment. They have done so by combining valuable material aid with efforts to help others gain the knowledge and skills needed to help themselves.
As Peace Corps volunteers well know, the needs of people in the world's emerging democracies and less developed nations are not simply material. In addition to the physical hunger found in some impoverished nations, there exists among many peoples an intense hunger for peace, hope, and opportunity -- for genuine social and economic development that is rooted in respect for human rights and human potential. Recognizing the dignity and worth of all peoples and determined to help needy individuals help themselves, Peace Corps volunteers have served as influential emissaries of hope and goodwill. Accordingly, their generous humanitarian efforts have helped to foster mutual understanding and respect between the people of the United States and citizens of other countries.
Today the Peace Corps continues to expand its programs and activities throughout the world, including new programs in such countries as Mongolia, Poland, Hungary, Czechoslovakia, Namibia, and others.
Respected for its work around the world, the Peace Corps also conducts a number of valuable programs here at home. For example, through programs such as World Wise Schools and Peace Corps Fellows/USA, Peace Corps volunteers are helping children in every State of our Nation to learn more about the world in which we live.
I am pleased to note that more and more Americans from all walks of life are joining in the work of the Peace Corps, whether as part of its diverse group of volunteers or through its growing partnerships with the public and private sectors. This trend is a tribute to the many past achievements of the Peace Corps, and it is a promising sign of more to come.
The Congress, by Senate Joint Resolution 76, has authorized and requested the President to issue a proclamation commemorating the 30th anniversary of the United States Peace Corps and commending its members for their generous service to humanity.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby urge all Americans to observe March 1, 1991 -- the 30th anniversary of the United States Peace Corps -- with appropriate programs, ceremonies, and activities designed to honor Peace Corps volunteers, past and present, for their many contributions to our country and to the universal cause of peace and human progress.
IN WITNESS WHEREOF, I have hereunto set my hand this first day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks on signing Proclamation 6254, see the Weekly Compilation of Presidential Documents (vol. 27, p. 230).
03 CFR Proc. 6255
03 CFR Proclamation 6255 of March 1, 1991
Proclamation 6255 of March 1, 1991
03 CFR Federal Employees Recognition Week, 1991
By the President of the United States of America
A Proclamation
The strength and effectiveness of the United States Government depends, in great part, on the knowledge, dedication, and skill of Federal employees. Whether they serve here at home or in posts abroad, employees of the Federal Government contribute substantially to the social, political, and economic stability of our Nation and to the protection of U.S. interests around the world.
Each and every American benefits daily, in numerous ways, from the work of Federal employees. It is these dedicated public servants who issue Social Security checks, ensure the safety of food and medicine, investigate possible cures for disease, promote the safety of our highways and air travel, and lead the fight against illicit drug trafficking. Federal employees also provide vital support to the members of our Armed Forces and, in so doing, help to guarantee our national security and military preparedness. The recent success of Operation Desert Storm underscores our debt to the able and loyal work of Federal employees.
This week we express both our pride in public service and our appreciation for all those men and women who serve their fellow Americans as Federal employees.
The Congress, by Senate Joint Resolution 51, has designated the week beginning March 4, 1991, as ''Federal Employees Recognition Week'' and authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week beginning March 4, 1991, as Federal Employees Recognition Week. I call upon all Americans to observe this week with appropriate ceremonies and activities, in grateful recognition of the dedicated service provided to the Nation by employees of the Federal Government.
IN WITNESS WHEREOF, I have hereunto set my hand this first day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6256
03 CFR Proclamation 6256 of March 4, 1991
Proclamation 6256 of March 4, 1991
03 CFR Vermont Bicentennial Day, 1991
By the President of the United States of America
A Proclamation
On March 4, 1791, the Republic of Vermont became the 14th State in our Union -- the first to join the original thirteen. The Vermont State motto, ''Freedom and Unity,'' is a fitting tribute to the history of the State and to the character of its people. Long before Vermont entered the Union, its inhabitants demonstrated great devotion to those ideals, ideals on which the United States is founded.
In our Nation's War for Independence, as in every great struggle for freedom since, Vermonters made distinguished contributions. Today, Ethan Allen and his Green Mountain Boys, tenacious fighters who played decisive roles at the Battles of Bennington and Ticonderoga, are remembered among America's great Revolutionary War heroes. Their fierce love for the land and their fervent devotion to the cause of freedom and independence were shared by hundreds of other settlers from the region that became our 14th State.
Vermont's dedication to freedom was also evident in its first constitution -- written in 1777, it forbade slavery and adopted universal male suffrage. Indeed, by the beginning of the Civil War, in which it played a major role, Vermont had a long-standing reputation as one of the most firmly abolitionist States. The 16 Vermont regiments dispatched to the Union Army during the Civil War represented the highest number of troops per capita of any State. Vermonters not only fought bravely for the preservation of the Union and for an end to slavery, they also made vital contributions at the pivotal Battle of Cedar Creek.
Over the years, countless other Vermonters have made outstanding contributions to our country. Distinguished natives of the Green Mountain State include the eloquent Stephen Douglas, remembered by many for his forceful arguments during the historic Lincoln-Douglas debates; the inventor, Thomas Davenport; Presidents Calvin Coolidge and Chester Arthur; and Warren R. Austin, the first United States Representative to the United Nations.
Today, Vermonters take just pride in their heritage as a State committed to the ideals of freedom and unity. That heritage goes hand in hand with a rich legacy of growth and development. Beloved by millions of visitors for its breathtaking mountains and unspoiled beauty, Vermont is also home to a number of vital industries, ranging from electronics to agricultural production.
In recognition of Vermont's contributions to the United States and in commemoration of its Bicentennial, the Congress, by Senate Joint Resolution 58, has designated March 4, 1991, as ''Vermont Bicentennial Day,'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim March 4, 1991, as Vermont Bicentennial Day.
IN WITNESS WHEREOF, I have hereunto set my hand this fourth day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6257
03 CFR Proclamation 6257 of March 7, 1991
Proclamation 6257 of March 7, 1991
03 CFR For National Days of Thanksgiving, April 5-7, 1991
By the President of the United States of America
A Proclamation
As the Psalmist wrote, ''O give thanks to the Lord for He is gracious, for His mercy endures for ever.'' Almighty God has answered the prayers of millions of people with the liberation of Kuwait and the end of offensive operations in the Persian Gulf region. As we prepare to welcome home our courageous service men and women and join in the joyful celebrations of the Kuwaiti people, it is fitting that we give thanks to our Heavenly Father, our help and shield, for His mercy and protection.
Asking Him to judge not our worthiness but our need and protection, and knowing that the Lord gives victory ''not by might, nor by power,'' we prayed for a swift and decisive victory and for the safety of our troops. Clearly, the United States and our coalition partners have been blessed with both. We thank the Lord for His favor, and we are profoundly grateful for the relatively low number of allied casualties, a fact described by the commanding general as ''miraculous.'' Nevertheless, because each and every human life is precious, because the massive scale of Operation Desert Storm must never diminish the loss of even one service member, we also remember and pray for all those who made the ultimate sacrifice in this conflict. May the Lord welcome all who have fallen into the glory of Heaven, and may He strengthen and console their families in their hour of need. May it also please our Heavenly Father to grant a full recovery to those military personnel wounded in action.
We also give thanks for the remarkable unity of our people throughout this conflict -- a unity marked by heartfelt and generous support for our troops in the field and, in the American tradition, respect for the rights of those who dissent. May our Nation emerge from this conflict stronger and more united, to face as one united people the challenges and opportunities before us.
As we unite in thanksgiving to Almighty God, let us pray in a special way for the innocent men, women, and children -- wherever they may be -- who have suffered as a result of the conflict in the Gulf. Recalling the words of President Wilson shortly after World War I, let us seek forgiveness for any ''errors of act or purpose'' and pray for God's help and guidance on the way that lies ahead. May the resolution of remaining questions and concerns, especially the return of all prisoners of war and the freeing of those who are detained, be as timely and as certain as this victory in battle.
Finally, seeing before us the promise of a safer, more peaceful world -- one marked by respect for the rule of law -- let us offer all these entreaties in a spirit of faith, humility, and gratitude, seeking reconciliation with all peoples. In so doing, we recall the timeless prayer found in Scripture:
As the Psalmist wrote, ''Come behold the works of the Lord . . . He makes wars to cease to the end of the earth.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim April 5-7, 1991, as National Days of Thanksgiving. I ask that Americans gather in homes and places of worship to give thanks to Almighty God for the liberation of Kuwait, for the blessings of peace and liberty, for our troops, our families, and our Nation. In addition, I direct that the flag of the United States be flown on all government buildings, I urge all Americans to display the flag, and I ask that bells across the country be set ringing at 3:00 p.m. (eastern daylight savings time) on April 7, 1991, in celebration of the liberation of Kuwait and the end of hostilities in the Persian Gulf.
IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6258
03 CFR Proclamation 6258 of March 8, 1991
Proclamation 6258 of March 8, 1991
03 CFR National School Breakfast Week, 1991
By the President of the United States of America
A Proclamation
For more than two decades, the School Breakfast Program has helped to promote the health and well-being of our Nation's schoolchildren. By helping to ensure that youngsters enter the classroom with the energy and stamina needed to be eager and attentive students, this important child nutrition program has also contributed to the success of America's educational system.
The School Breakfast Program began in 1966 as a pilot project that provided funding for meals for schoolchildren in low-income areas and in areas where children had to travel long distances to school. In 1975, the Program was permanently established, and funding was made available to all schools. Today approximately four million children in more than 38,000 schools receive nutritious morning meals through the School Breakfast Program.
Parents and educators across the country endorse the School Breakfast Program because they believe that it improves youngsters' ability to learn. For the same reason, States have sought to expand the Program in their schools, and some mandate participation.
Federal officials are proud to work with State leaders, educators, food service professionals, parents, and others in making the School Breakfast Program available to our children. Their cooperative efforts are a wonderful example of a successful partnership between Federal and State governments and local communities. They also play an important role in meeting our first National Education Goal: ensuring that, by the year 2000, all children in America start school ready to learn.
In recognition of the School Breakfast Program, the Congress, by House Joint Resolution 98, has designated the week of March 4 through March 10, 1991, as ''National School Breakfast Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby designate the week of March 4 through March 10, 1991, as National School Breakfast Week. I urge all Americans to observe this week in honor of those individuals at the Federal, State, and local levels whose efforts contribute so much to the success of this valuable program.
IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6259
03 CFR Proclamation 6259 of March 12, 1991
Proclamation 6259 of March 12, 1991
03 CFR Irish-American Heritage Month, 1991
By the President of the United States of America
A Proclamation
Each ethnic group in America has made unique contributions to the ever-unfolding story of the United States. This month, as we celebrate the life of Saint Patrick, the beloved Apostle of Ireland, we also celebrate the hardy character, the rich cultural heritage, and the many valuable contributions of Irish-Americans.
By 1776, the year that opened the first chapter in the dramatic history of our Republic, some 300,000 Irish citizens had emigrated to the United States. Many of these courageous individuals played crucial roles in America's War for Independence. Indeed, nine of the men who signed the Declaration of Independence were of Irish origin, as was Commodore John Barry, the first naval commander commissioned by the Continental Congress. Irish-Americans serving in a division of George Washington's forces known as the Pennsylvania Line were so impressive, they moved General Henry Lee to note that it ''might with more propriety had been called the Line of Ireland.''
Since Irish-Americans not only helped to win America's Independence but also helped to fashion a system of government for our young Nation, it seems fitting that an Irish-born architect, James Hoban, designed the White House and assisted in the building of the United States Capitol. These magnificent structures have symbolized freedom and democracy to generations of men and women around the world.
Today the distinct ''Line of Ireland'' can still be traced throughout American culture. American literature, for example, has been greatly enriched by the contributions of gifted Irish-American writers such as Eugene O'Neill and Edwin O'Connor. Throughout the arts -- and throughout education, government, business, science, and agriculture -- talented men and women of Irish descent continue to merit the honor we give to them and to their ancestors. Indeed, in recent years, renewed immigration from Ireland and the revival of interest by all Americans in their roots have led to an increasingly vibrant Irish-American culture. The dramatic expansion of university courses in Irish studies and the countless annual Saint Patrick's Day parades held throughout the United States all attest to the continued vigor of the Irish-American heritage.
In tribute to all Irish-Americans, the Congress, by Public Law 101-418, has designated March 1991 as ''Irish-American Heritage Month'' and has authorized and requested the President to issue a proclamation in observance of this occasion.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim March 1991 as Irish-American Heritage Month. I encourage all Americans to learn more about the contributions Irish-Americans have made to our country and to observe this day with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6260
03 CFR Proclamation 6260 of March 15, 1991
Proclamation 6260 of March 15, 1991
03 CFR National Employ the Older Worker Week, 1991
By the President of the United States of America
A Proclamation
Millions of older Americans are both willing and able to put their knowledge and experience to work for our country. Providing greater opportunities for them to do so is not only a wonderful way to demonstrate appreciation for these valued members of our society, it is also a sound investment in America's future. By helping senior citizens to remain in the work force or to pursue second careers after retirement, we can enhance America's competitive edge in the global economy. By encouraging older Americans to share their wisdom and skills as volunteers, we can strengthen and enrich our communities.
Numerous employers already recognize the potential contributions of older men and women, and, today, programs for their hiring, retraining, and job retention are well established across the country. Through a variety of programs -- including programs launched as a result of the Older Americans Act of 1965 -- the Federal Government, State and local agencies, and members of the private sector are promoting meaningful opportunities for older workers. These various public and private efforts not only enable senior citizens to remain active, independent, and productive members of society but also allow our country to benefit from their insight and resourcefulness. Recognizing all of these benefits, I have proposed a liberalization of the Social Security earnings test in the Fiscal Year 1992 budget. If enacted, this proposal would allow older workers to continue to earn more income after age 65 before having their Social Security benefits reduced.
To focus public attention on the accomplishments and the potential of older workers, the Congress, by House Joint Resolution 133, has designated the week of March 10 through March 16, 1991 as ''National Employ the Older Worker Week'' and authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby designate the week of March 10 through March 16, 1991, as National Employ the Older Worker Week. I urge the Nation's public officials, leaders in business and labor, and voluntary organizations to provide meaningful opportunities for older workers. I also encourage all Americans to observe this week with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6261
03 CFR Proclamation 6261 of March 19, 1991
Proclamation 6261 of March 19, 1991
03 CFR National County Government Week, 1991
By the President of the United States of America
A Proclamation
Although many Americans are just beginning to understand its special role in our Federal system, county government has a long and rich history in the United States. In fact, it is one of the oldest forms of local government in America, existing before many States and cities. Colonists divided part of Virginia into eight shires or counties as early as 1634, and the first counties in Massachusetts were formed in 1643. Today approximately 98 percent of the Nation's people reside in counties.
During the 1800s and the early part of this century, the primary functions of county government involved the administration of justice, law enforcement, and the building and maintenance of roads. In recent decades, however, the responsibilities of county government have grown enormously.
The duties of our Nation's county governments now range from the preservation of public safety to environmental protection. While every county is unique, these government entities direct housing and community development programs; they maintain parks, airports, and transit systems; and they work to solve area-wide problems such as air and water pollution, solid waste disposal, and drug trafficking. For many ill, elderly, and low-income Americans, the county is often the only available source of help in obtaining health care and other social services. The National Association of Counties reports that county governments, employing more than 2.9 million people, spent almost $111 billion in 1990 to provide services to the public.
National County Government Week is a fitting time to reaffirm the continued importance of a strong partnership between City, County, State, and Federal Government -- particularly in areas such as education, transportation, and the fight against drug abuse. In recent years, more and more Americans have realized what many have known all along: that the answer to many of the problems before us can be found, not in bigger Federal Government, but in effective local leadership and cooperation between citizens and public officials at all levels. Indeed, we know that government closest to the people is truly government ''of the people, by the people, and for the people.'' This is the essence of federalism and democracy, and it is the key to meeting many of the challenges and opportunities before our country.
In recognition of the Nation's county governments, the Congress, by Public Law 101-470, has designated the week of April 7 through April 13, 1991, as ''National County Government Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week of April 7 through April 13, 1991, as National County Government Week. I call upon the American people and their elected representatives at all levels of government to observe this week with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6262
03 CFR Proclamation 6262 of March 20, 1991
Proclamation 6262 of March 20, 1991
03 CFR Education Day, U.S.A., 1991
By the President of the United States of America
A Proclamation
Today our Nation is engaged in a campaign that must not and, I believe, will not fail -- a concerted, State-by-State effort to revitalize our schools and to reach our six National Education Goals by the year 2000. These goals include: ensuring that every child starts school ready to learn; raising the graduation rate to at least 90 percent; ensuring that American students are competent in five critical subjects with their progress assessed in grades 4, 8, and 12; ranking first in the world in science and mathematics achievement; ensuring that every American adult is literate and possesses the knowledge and skills -- including the technical skills -- necessary to compete in the global economy; and making all our schools safe, disciplined, and drug free.
Achieving these goals is essential if our children are to acquire the knowledge and skills needed to enjoy rich, full lives and to become productive, successful participants in our society. However, if the application of one's knowledge and skills is to be truly fruitful and rewarding, it cannot be divorced from high moral purpose. In the hands of those who lack fundamental moral direction, these powerful tools can readily become useless -- or even destructive. Therefore, we must continue to recognize the importance of moral instruction as we seek excellence in American education.
Public as well as private institutions of learning have both an obligation and a proper interest in advancing principles of ethical conduct and moral virtue. Teachers who demonstrate, by word and example, the importance of such qualities as truthfulness, fair play, tolerance, and respect for human life are among the best role models a child can have.
However, moral education begins at home, in the guidance parents provide for their children, and in religious institutions, where we learn of God's law and God's love. The worldwide Lubavitch movement, under the leadership of Rabbi Menachem Schneerson, has underscored the importance of moral education, as well as the primary role of parents and religious institutions in promoting high standards of personal character and conduct in our society.
By equipping our children with the light of moral instruction and the strong staff of traditional family values, we help to guarantee them safe passage on their life's journey. As Scripture says, ''Train up a child in the way he should go, and, when he is old, he will not depart from it.''
Moral education is vital, not only to the personal well-being of our children, but also to the preservation of civil order and justice. Our Nation's Judeo-Christian heritage, affirmed in its founding documents and in the traditional values that remain the heart of America, goes hand in hand with the success of this great yet precious experiment in self-government. Thus, moral education in keeping with that heritage is one of the most important and enduring investments we can make in the future of our children and the Nation. As Daniel Webster once noted:
The Congress, by House Joint Resolution 104, has designated March 26, 1991, as ''Education Day, U.S.A.'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim March 26, 1991, as Education Day, U.S.A. I call upon all Americans to observe this day with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6263
03 CFR Proclamation 6263 of March 21, 1991
Proclamation 6263 of March 21, 1991
03 CFR National Medal of Honor Day, 1991
By the President of the United States of America
A Proclamation
While all of America's combat veterans have earned our abiding respect and gratitude, we honor in a special way those who have demonstrated exceptional heroism on the field of battle. The Medal of Honor, our country's highest military decoration, has been awarded to 3,440 Americans since the Civil War. During times of armed conflict, these individuals distinguished themselves through brave and selfless actions that were far above and beyond the call of duty.
The Medal of Honor is a poignant reminder of the tremendous price that some Americans have been willing to pay to protect the lives and liberty of others. Indeed, the courageous and loving sacrifices of our Medal of Honor recipients tell us a great deal about the value of freedom and the principles on which this Nation is founded.
A number of those principles were recently at stake in the Persian Gulf region. We Americans are very proud of the U.S. service men and women who have taken part in the successful international effort to liberate Kuwait and to deter unprovoked aggression. They bravely answered the call to duty, knowing full well the costs it might entail, and each of them embodies the determined spirit of our Nation's combat veterans.
In his stirring poem, ''A Psalm of Life,'' Henry Wadsworth Longfellow wrote: ''Lives of great men all remind us/we can make our lives sublime/and, departing, leave behind us/footprints on the sands of time.'' The U.S. troops who recently served along the sands and off the shores of Saudi Arabia follow a long line of Americans who have boldly stepped forward to defend the universal cause of freedom. Today, as we offer a special tribute to our most distinguished combat veterans, the Medal of Honor recipients, we can be thankful for the extraordinary example they set.
The Congress, by Public Law 101-564, has designated March 25, 1991, as ''National Medal of Honor Day'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim March 25, 1991, as National Medal of Honor Day, a day dedicated to all Medal of Honor recipients. I urge all Americans to observe this day with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6264
03 CFR Proclamation 6264 of March 25, 1991
Proclamation 6264 of March 25, 1991
03 CFR Greek Independence Day: A National Day of Celebration of Greek and American Democracy, 1991
By the President of the United States of America
A Proclamation
The peoples of the United States and Greece enjoy a rich friendship based on strong ties of kinship and culture -- ties fortified by our common devotion to the ideals of freedom and democracy. Our shared values and mutual interests make the celebration of Greek independence on March 25 a significant event for all Americans.
Although we celebrate on this occasion events that took place just 170 years ago, the values shared by the peoples of Greece and the United States are rooted far deeper in history. Indeed, it was the ancient Greeks who, with their profound observations of human nature and their seminal experiments in civil order and justice, enkindled the light of democratic thought among men. Our Nation's Founders were well-schooled in classical languages and Greek literature, and the ideas of Solon, Plato, Aristotle, and other Greek philosophers and statesmen greatly influenced their own. Indeed, in his historic treatise on the Rights of Man, Thomas Paine wrote: ''What Athens was in miniature, America will be in magnitude. The one was the wonder of the ancient world; the other is becoming the admiration and model of the present.'' His words reflect the inspiration and insight that this Nation's Founders derived from the ancient Greek city-states as they worked to establish an enduring representative democracy in America.
Widely regarded as the ''cradle of democracy,'' Greece stands today as a strong ally of the United States, aligned with us by its commitment to freedom and human rights. As partners in the NATO Alliance, we have worked together to defend democratic ideals and to promote the collective security of Europe. Recently Greece also cooperated with the United States and other nations in the historic coalition effort to uphold the rule of law and to liberate Kuwait from ruthless aggression. The people of Greece can take pride in their country's role in this endeavor, carried out in enforcement of resolutions of the United Nations Security Council.
Today, as we join in commemorating the 170th anniversary of Greek independence, we celebrate the continued friendship between the Greek and American peoples. We also give thanks, knowing that the light of democratic ideals continues to grow in strength and brilliance around the world.
In recognition of the 170th anniversary of Greek Independence, the Congress, by Senate Joint Resolution 59, has designated March 25, 1991, as ''Greek Independence Day: A National Day of Celebration of Greek and American Democracy'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim March 25, 1991, as Greek Independence Day: A National Day of Celebration of Greek and American Democracy. I urge all Americans to join in appropriate ceremonies and activities in honor of the Greek people and Greek independence.
IN WITNESS WHEREOF, I have hereunto set my hand this 25th day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks on signing Proclamation 6264, see the Weekly Compilation of Presidential Documents (vol. 27, p. 365). For the President's remarks at an arrival ceremony in Athens and his address to the Greek Parliament, see pp. 985 and 986. For his remarks at a state dinner in Athens, see p. 999.
03 CFR Proc. 6265
03 CFR Proclamation 6265 of March 25, 1991
Proclamation 6265 of March 25, 1991
03 CFR Women's History Month, 1991
By the President of the United States of America
A Proclamation
During Women's History Month we celebrate the many unique and vital contributions that women have made to our Nation. While this month is dedicated to all American women, we pay special tribute to those who have earned a noted place in history. We recall with admiration and respect women who were first in their fields, including Dr. Elizabeth Blackwell, the first woman in the United States to receive a medical degree; Elizabeth Ann Seton and Emma Hart Willard, who were pioneers in education; Anne Macy Sullivan and Helen Keller, who advanced the training of the blind and other persons with disabilities; and Sophia Heath, who helped open doors for women in commercial aviation as well as in sports. We gratefully remember humanitarians such as Clara Barton, founder of the American Red Cross, and we proudly celebrate the artistic and literary genius of women like Mary Cassatt and Flannery O'Connor. We also remember with fondness women like Clare Boothe Luce and Pearl Bailey, who not only earned respect for their public service and diplomacy but also endeared themselves to millions through their wit, generosity, and contagious love of life and learning. These are just a few of the many women who have made lasting contributions to the United States, but their celebrated achievements underscore how every aspect of our national life has been enriched by the creativity, energy, and leadership of women.
As we recognize the many outstanding contributions that women have made to American history and culture, we acknowledge with special gratitude the role women have played in upholding the principles on which the United States is founded. During the mid-19th century, women like Harriet Tubman and Harriet Beecher Stowe become heroines of the struggle against slavery; women such as Lucretia Mott and Elizabeth Cady Stanton also advocated the abolition of slavery as they championed woman's suffrage. Of course, who can forget the quiet determination of Rosa Parks, whose courage and resolve in the face of bigotry gave heart to an entire social movement. Each of these women and countless others worked to fulfill America's promise of liberty and justice for all.
Today women continue to defend and to promote the ideals on which this Nation is founded. Indeed, history will show that those American women who served in the recent struggle to liberate Kuwait helped not only to deter ruthless aggression but also to build a new world order based on respect for human rights and the rule of law.
Advancing to new and ever greater positions of responsibility in virtually every field, women continue to uphold the American ideals of liberty, equality, and justice. Most important, however, because it is within the family that our Nation's most cherished values and traditions are passed from one generation to the next, women help to preserve our American heritage by nurturing in their children faith, moral values, and a sense of civic duty. Thus, as we celebrate the achievements of noted women in American history, let us also acknowledge with pride and gratitude the contributions that so many unsung heroines have made to our country through the institutions of family and community life.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim March 1991 as Women's History Month. I call upon all Americans to observe this month with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6266
03 CFR Proclamation 6266 of March 29, 1991
Proclamation 6266 of March 29, 1991
03 CFR National Safe Boating Week, 1991
By the President of the United States of America
A Proclamation
Providing means of irrigation, transportation, and energy production, the waterways of the United States have played an instrumental role in the development of American agriculture, commerce, and industry. Over the years, however, our country's most beautiful and accessible waterways have also become important centers of recreation. Indeed, it is estimated that, during this year alone, more than 19 million recreational boats will navigate America's lakes, rivers, and coastal waters.
While boating can be a wonderful source of recreation, improperly handled watercraft can be dangerous or even deadly. Tragically, approximately 900 persons die each year in boating-related accidents on our Nation's waterways. Because most accidents can be prevented, the United States Coast Guard and other government agencies are working with volunteer organizations around the country to educate the boating public and to make safety the first priority of all who use the Nation's waterways.
During National Safe Boating Week, proclaimed annually at the start of the summer boating season, recreational boaters are urged to accept the responsibility to ''Know Before You Go.'' Every pilot should have thorough knowledge of his or her vessel and the rules and courtesies of navigation. All boaters should know the marine environment in which they will be operating, as well as the prevailing and forecasted weather conditions in the area. Making safety the first priority also requires that boaters be prepared to respond, immediately and effectively, to any hazardous situation that may arise; it requires that all persons using watercraft be equipped with life jackets; and, of course, it requires that no one operate a watercraft while under the influence of alcohol or drugs.
By emphasizing safety first, we can put tragic boating accidents behind us and enjoy more fully the beauty and excitement of the open water.
In recognition of the need to promote safe boating practices, the Congress, by joint resolution approved June 4, 1958 (36 U.S.C. 161), as amended, has authorized and requested the President to proclaim annually the week commencing on the first Sunday in June as ''National Safe Boating Week.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week beginning June 2, 1991, as National Safe Boating Week. I encourage the Governors of the States and Puerto Rico and officials of other areas subject to the jurisdiction of the United States to provide for the observance of this week.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of March, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6267
03 CFR Proclamation 6267 of April 3, 1991
Proclamation 6267 of April 3, 1991
03 CFR National Former Prisoner of War Recognition Day, 1991 and 1992
By the President of the United States of America
A Proclamation
The recent war in the Persian Gulf resulted in a great and historic victory for the United States and its coalition partners. While we celebrate the liberation of Kuwait and the triumphant return of our courageous troops, we also pause to remember, with solemn pride and appreciation, those service members who bore heavy costs in this conflict. Among them are Americans who were held as prisoners of war.
The worst kinds of treatment brought out the best in those American service men and women who were captured during the fighting in the Persian Gulf region. Each upheld the high standards of courage and conduct that we have come to expect of our military personnel. Their faith in Almighty God, their love of family, and their deep sense of patriotism and self-discipline have been an inspiration to us all.
The recent experiences of U.S. service members captured in the Persian Gulf offer a poignant reminder of the tragic circumstances endured by thousands of American POWs throughout our Nation's history. During World War II, the Korean conflict, the Vietnam War, and other conflicts, many American prisoners of war were subjected to brutal treatment and torture by their captors in violation of fundamental standards of morality and international law. Many did not survive. Yet, despite the suffering inflicted by their captors, American POWs have demonstrated an unfailing devotion to duty, honor, and country. Their bravery will never be forgotten by the American people.
In 1985, the Congress directed the Department of Defense to issue a special medal to all former American prisoners of war. Through the Prisoner of War Medal, as well as our observance of ''National Former Prisoner of War Recognition Day,'' we recognize those American service members and veterans who have been subjected to capture. Recalling the experiences of these Americans, we also renew our commitment to securing the release of any U.S. servicemen and civilians who may still be held against their will, to obtaining the fullest possible accounting of the missing, and to repatriation of all recoverable American remains.
The Congress, by Public Law 102-23, has designated April 9, 1991, and April 9, 1992, as ''National Former Prisoner of War Recognition Day'' and has authorized and requested the President to issue a proclamation in observance of these occasions.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim April 9, 1991, and April 9, 1992, as National Former Prisoner of War Recognition Day. I call upon all Americans to join in remembering former American prisoners of war and their families, who have suffered at the hands of our enemies. I also call upon Federal, State, and local government officials and private organizations to observe this day with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this third day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6268
03 CFR Proclamation 6268 of April 12, 1991
Proclamation 6268 of April 12, 1991
03 CFR Cancer Control Month, 1991
By the President of the United States of America
A Proclamation
During Cancer Control Month we pause to celebrate the progress that has been made in the fight against this disease. Since all Americans can better protect themselves from the threat of cancer, this observance includes concerted public awareness campaigns designed to disseminate lifesaving information about the prevention, early detection, and treatment of cancer.
This year we mark the 20th anniversary of the National Cancer Act, which rallied the entire Nation behind efforts to focus increased attention on this disease. Every year since 1971, more and more Americans have survived the crucial first 5 years following a cancer diagnosis without recurrence. Thanks to improved early detection and more effective treatments, most of these patients are considered cured. Today half of all cancer patients can look forward to reaching this milestone.
However, we know that these statistics would reflect even greater improvement if more cancers were found in their early, highly treatable stages. Currently, two-thirds of patients with melanoma and with cancers of the breast, mouth, colon, cervix, and prostate reach the 5-year, disease-free mark. The reason is simple: these cancers can usually be found by regular, periodic physical examinations and by appropriate cancer screening tests. Although people can and should examine themselves for the early signs of many types of cancer, a physician's judgment -- often based on the use of sophisticated testing equipment -- is also required.
Although improved early detection and treatment is cause for hope, prevention is still the most effective way to control cancer. Research conducted and funded by the National Cancer Institute has been refining our understanding of cancer and giving us new strategies for preventing the disease.
Through simple behavioral and dietary changes, every American can reduce his or her risk of developing cancer. Smoking accounts for about 30 percent of all cancer deaths, and a disproportionate number of these are among members of minority groups. By ''breaking the habit,'' smokers can significantly reduce their risk of developing cancer.
Diet is another area in which individuals can take control of their health. Studies of the relationship between diet and cancer make it clear that a diet high in fiber and low in fat protects against certain kinds of cancer. The American Cancer Society's Great American Food Fight Against Cancer is a concerted effort to bring related diet and food preparation information to every American.
Employers and insurers can also contribute to cancer prevention efforts by offering incentives for smoking cessation, exercise, and weight loss and by providing health education and cancer screening programs in the workplace.
Two decades of intensified research have borne fruit in every aspect of our national effort to reduce the toll cancer takes on our society. This month, all Americans are urged to learn more about recent strides in the fight against cancer and to take advantage of them. At the same time, every American is encouraged to see a doctor and dentist regularly.
In 1938, the Congress passed a joint resolution (52 Stat. 148, 36 U.S.C. 150) requesting the President to issue an annual proclamation declaring April to be Cancer Control Month.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the month of April 1991 as Cancer Control Month. I invite the Governors of the fifty States and the Commonwealth of Puerto Rico, and the appropriate officials of all other areas under the American flag, to issue similar proclamations. I also ask health care professionals, insurance companies, the communications and food industries, community groups, and individual citizens to join in continuing the progress made in fighting cancer.
IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6269
03 CFR Proclamation 6269 of April 12, 1991
Proclamation 6269 of April 12, 1991
03 CFR Points of Light National Celebration of Community Service
By the President of the United States of America
A Proclamation
Marked by a sense of hope and renewal, Spring is a fitting time to honor the millions of Americans who engage in voluntary service to others. Across the United States, people of every age, race, and walk of life are taking direct and consequential action to help solve serious social problems such as drug abuse, illiteracy, and homelessness. These Americans are planting the seeds of positive change in their communities and sowing a rich crop for the future.
Voluntary service in America takes a variety of forms. Countless Americans give of their time individually. In addition, millions of Americans now volunteer through innovative corporate programs and special school-based projects. And there are those generous individuals who work on behalf of major nonprofit organizations and local charities. During this National Celebration of Community Service, we salute all of these caring citizens.
This nationwide observance underscores the fact that everyone has a gift to give -- that every act of kindness counts. For example, in Polk, Nebraska, a group of third grade students telephones homebound senior citizens each day, offering a bright source of companionship and cheer. The founders of the ''Midnight Basketball'' program in Hyattsville, Maryland, contribute to the struggle against crime and delinquency by offering late-night sports activities and tutorial sessions for disadvantaged youngsters. Through the ''Let's Help'' program in Topeka, Kansas, volunteers provide needy families with literacy training, job counseling, and advice on parenting, as well as food and financial support. All of these volunteers and others, the brilliant ''Points of Light'' that reflect our national conscience and illuminate our country's social landscape, are making a profound difference.
Every American has something to contribute, and none should be content until we have found a way to serve. To be of service is not only to meet someone else's needs, it is not only to fulfill one of our primary responsibilities as citizens and neighbors -- it is to find the joy and meaning in life that come only from selflessness and giving.
Today more and more Americans have come to see that any definition of a successful life must include serving others. So many of our citizens are beginning to recognize the talents, resources, and interests they have to share. Let us salute all those Americans who carry on the time-honored tradition of voluntary service, and let us strengthen our own commitment to enriching the lives of others -- and our own -- through service.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the period of April 15 through April 26, 1991, as Points of Light National Celebration of Community Service. This special tribute to the spirit of service in America and to the millions of Americans who embody that spirit encompasses traditional National Volunteer Week events and numerous other activities in which all Americans -- young and old alike -- are encouraged to engage. I ask all Americans to join in saluting and thanking our Nation's volunteers, as well as the organizations -- religious, governmental, business, and private nonprofit -- that support and participate in community service. I also encourage every American to observe this week with appropriate events and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this 12 day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks on signing Proclamation 6269, see the Weekly Compilation of Presidential Documents (vol. 27, p. 422). For his radio address to the nation on the Points of Light program and the Points of Light ceremony for the American Business Press Association, see pp. 1357, 1453.
03 CFR Proc. 6270
03 CFR Proclamation 6270 of April 15, 1991
Proclamation 6270 of April 15, 1991
03 CFR National Farm Safety Week, 1991
By the President of the United States of America
A Proclamation
The men and women who work in America's agricultural sector make a vital contribution to our Nation's well-being. By providing consumers with a variety of high-quality food and fiber at reasonable costs, they help to keep our work force strong and healthy and, in so doing, help to maintain the Nation's economic productivity and competitiveness. Because we count on farmers and ranchers for so much, both as individuals and as a Nation, it is fitting that we observe National Farm Safety Week -- a concerted public awareness campaign aimed at promoting their health and safety.
Over the years much has been done to improve the safety of agricultural production. Advances in science and technology and increased attention to avoiding safety risks have made farms and ranches safer places to work. Moreover, dedicated professionals and volunteers have been working together to promote health and safety in rural communities. These efforts are reflected by a welcome downturn in farm accident rates.
Unfortunately, however, while important strides have been made in reducing the risks of farming and ranching, agricultural production remains one of our most hazardous industries, with an accident death rate that is more than four times the average of all industries. More must be done to reduce the toll of farm-related accidents.
Most accidents on the Nation's farms and ranches can be prevented by sensible measures that involve little extra time, effort, or expense. For example, farmers and ranchers can reduce their risk of serious injury and illness by following manufacturers' instructions on the use of chemicals and machinery and by utilizing protective apparel and safety equipment when the job calls for it. Children should be kept away from hazardous machinery, and all family members and employees should be trained in safety procedures and first aid.
For generations, the men and women who work on our Nation's farms and ranches have endured long hours of tough, physical labor. However, they have continually met the challenges of their vocation with determination and pride -- and with unparalleled success. During National Farm Safety Week, let us resolve to make excellence in health and safety another one of America's great farming traditions.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the week of September 15 through September 21, 1991, as National Farm Safety Week. I urge all who live and work on our Nation's farms and ranches to make the preservation of personal health and safety an integral part of their daily activities. I also urge them to protect their children, not only by instruction in safety habits, but also by setting an example of carefulness and by avoiding needless risks. I also call upon organizations that serve agricultural producers to strengthen their support for rural health and safety programs, and I encourage all Americans to observe this week with appropriate activities as we express our appreciation for the many contributions that men and women in agriculture make to our Nation.
IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6271
03 CFR Proclamation 6271 of April 17, 1991
Proclamation 6271 of April 17, 1991
03 CFR Pan American Day and Pan American Week, 1991
By the President of the United States of America
A Proclamation
Just two months ago the Caribbean island nation of Haiti enjoyed, after decades of dictatorship, the inauguration of a President chosen in free, secure, and credible elections. This milestone in the history of Haiti marked yet another significant stride toward a completely democratic Western Hemisphere. Indeed, with the principal exception of Castro's Cuba, the nations of the Americas are experiencing a great resurgence of democracy. From Tierra del Fuego to Hudson Bay, from the Lesser Antilles to the Gala1pagos, courageous and determined peoples are reaping the blessings of liberty and self-government.
Today, after several successive free elections in the vast majority of countries in the hemisphere, the nations of the Americas have an historic opportunity to set an example of sustained and effective representative democracy and economic development. Indeed, it seems fitting that the hemisphere of George Washington and Toussaint L'Ouverture, of Thomas Jefferson and Simon Boli1var, of James Madison and Jose de San Marti1n, should help to lead the way to a freer, more prosperous future for all mankind.
The devotion to democratic ideals shared by the peoples of the Americas forms the cornerstone of the unique international alliance whose anniversary we celebrate this week. Just over a century ago, the nations of this hemisphere established the International Union of American Republics, later known as the Pan American Union. Today its successor, the Organization of American States, is working to promote transitions from dictatorship to democracy throughout the hemisphere.
Signatories to the OAS Charter, adopted in 1948, expressed their conviction that ''the true significance of American solidarity and good neighborliness can only mean the consolidation on this continent . . . of a system of individual liberty and social justice based on respect for the essential rights of man.'' After a century of partnership, we know that the proudest days of the inter-American community have been those when it has faithfully upheld these ideals. Accordingly, the United States will continue working to promote respect for human rights and the rule of law throughout the region.
Through the OAS Charter, members of the inter-American community also agreed to ''promote, by cooperative action, their economic, social, and cultural development.'' To help achieve this goal, I have proposed the Enterprise for the Americas Initiative, which will promote free and fair trade, investment, debt reduction, and growth, as well as environmental protection, in Latin America and the Caribbean. In addition, we will implement the commitments of the Cartagena Declaration. Illicit drug trafficking and violence pose a grave threat to the stability of nations as well as to the freedom and safety of millions of individuals throughout the Americas. The United States remains firmly committed to working with other members of the inter-American community in the areas of interdiction, law enforcement, and crop substitution.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim Sunday, April 14, 1991, as Pan American Day and the week of April 14 through April 20, 1991, as Pan American Week. I urge the Governors of the fifty States and the Commonwealth of Puerto Rico, and officials of other areas under the flag of the United States, to honor these observances with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this 17th day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6272
03 CFR Proclamation 6272 of April 17, 1991
Proclamation 6272 of April 17, 1991
03 CFR Jewish Heritage Week, 1991 and 1992
By the President of the United States of America
A Proclamation
The Jewish people share a rich and vibrant heritage, one that has endured through the ages, even through exile and dark periods of systematic persecution. That great and abiding heritage has had a profound influence on the character of the United States. Thus, it is with great pleasure that millions of Americans join with their Jewish friends and neighbors in celebrating Jewish Heritage Week.
The American way of life -- indeed, the development of all Western civilization -- has been shaped, in large part, by the laws and teachings recorded in the Old Testament and Judaic tradition. Our forefathers' declaration of the unalienable rights of individuals was rooted in the biblically supported belief that all people are created equal, in the image of the Almighty. The principles of ethical and moral conduct that form the basis of American civil order and the foundation of any truly free and just society stem from the commandments given by God to Moses. Accordingly, through their efforts to preserve Judaic law and tradition, American Jews help to ensure that our Nation's moral heritage is continually strengthened and renewed. For example, the traditional observance of Shavuot, which recalls the giving of the law on Mount Sinai, offers a powerful reminder of the relationship between respect for the word of God and the preservation of civil peace and liberty.
Through the observance of Shavuot and other special days, Jews affirm both their faith and their identity as a people. As the recent celebration of Passover reminds us, that faith has been tested, and proved, time and again in the history of the Jewish people.
The Jewish people have been subjected to a number of great trials during this century alone. On Yom HaShoah, Holocaust Memorial Day, Jews recall the Nazi atrocities that claimed the lives of 6 million of their fellow Jews, as well as the lives of millions of other men, women, and children in Europe during World War II. By joining in this commemoration, and in remembrance of the Warsaw Ghetto Uprising, we are reminded of the enduring faith and courage of the Jewish people.
Jews have played a vital role in our country's history since colonial times. Many were active in supporting the Revolutionary War and in the settling of new lands and cities during America's westward expansion. Jewish men, women, and children also formed part of each great wave of immigration to these shores. Today, Jews continue to contribute in virtually every aspect of American life.
As we celebrate the many contributions that Jewish men and women have made to our Nation, we also reaffirm the deep friendship between the United States and Israel. The founding of the modern State of Israel following the Holocaust is further testimony to the faith, determination, and industry of the Jewish people.
The Congress, by House Joint Resolution 134, has designated the week of April 14 through April 21, 1991, and the week of May 3 through May 10, 1992, as ''Jewish Heritage Week'' and has authorized and requested the President to issue a proclamation in observance of these occasions.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the weeks of April 14 through April 21, 1991, and May 3 through May 10, 1992 as Jewish Heritage Week. I encourage all Americans to join in observing these occasions with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this seventeenth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6273
03 CFR Proclamation 6273 of April 18, 1991
Proclamation 6273 of April 18, 1991
03 CFR National Education First Week, 1991
By the President of the United States of America
A Proclamation
Labor and learning precede every inch of human progress. That is why improving our Nation's educational system must be a priority for all Americans. If our citizens are to have the knowledge and skills needed to enjoy full, productive lives, our schools must achieve excellence.
Recognizing our responsibility to nourish the young minds that enter the Nation's classrooms, and knowing that this country cannot have a first-class economy without a world-class education system, the Nation's Governors and I have established six National Education Goals for the year 2000. They include: ensuring that every child starts school ready to learn; raising the graduation rate to at least 90 percent; ensuring that our students demonstrate competency in five core subjects in grades 4, 8, and 12; ranking first in the world in science and math; ensuring that every American adult is literate and possesses the skills, including the technical skills, needed to compete in the global economy; and, finally, making all of our schools safe, disciplined, and drug free. Achieving these goals will require the sustained cooperation of parents, educators, public officials, and the community at large.
While the Federal Government can and will serve as a catalyst for excellence, pointing the way forward and helping schools to meet higher standards, success will require the concerted efforts of parents, educators, and local government leaders. Because competition breeds quality, we can begin by expanding choice and accountability in education. Parents have primary responsibility for the education of their children, and they should have a genuine say in what, where, and how their children learn. Teachers should be able to enjoy greater flexibility in the classroom, and local school systems should act to utilize the talent and experience of persons who want to teach but are prohibited by cumbersome regulations. However, since the best measure of our schools is not how many resources we put into them but what outcomes are achieved, we must hold ourselves accountable for results, verifying what works and what does not.
We must also work together to ensure that our children dwell in an environment that is conducive to learning. Such an environment includes schools that are safe, disciplined, and drug free. However, because what goes on in school is only part of a child's educational experience, we must also maintain in our homes and neighborhoods an atmosphere that encourages learning and rewards diligent effort. Parents are their children's first and most influential teachers, and they can help to make ours a more literate Nation by reading to and with their little ones; by taking an active interest in their youngsters' homework and academic progress; and by demonstrating through example the joys of lifelong learning.
Local libraries and museums, business and civic groups, and members of the media can assist parents by offering high-quality educational programs and activities designed to ignite the natural curiosity of children. Indeed, by sparking the imaginations of our students, by ensuring that our schools tend the light of learning with utmost care and expertise, we can build a brighter future for all Americans.
The Congress, by House Joint Resolution 197, has designated the week of April 15 through April 21, 1991, as ''National Education First Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week of April 15 through April 21, 1991, as National Education First Week. I call upon all Americans to observe this week with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this eighteenth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks on the national education strategy, see the Weekly Compilation of Presidential Documents (vol. 27, pp. 460-472).
03 CFR Proc. 6274
03 CFR Proclamation 6274 of April 22, 1991
Proclamation 6274 of April 22, 1991
03 CFR Earth Day, 1991
By the President of the United States of America
A Proclamation
During the two decades that have passed since our Nation first observed Earth Day, we have made great strides in restoring and protecting our environment. Through our firm commitment and our substantial investment, we have improved significantly the quality of our air, land, and water resources. The United States leads the world in environmental protection, and we intend to keep it that way.
Our accomplishments during the past year are a special source of pride. During 1990 the United States was instrumental in strengthening the Montreal Protocol on Substances That Deplete the Ozone Layer. A total phaseout of chlorofluorocarbons, or CFCs, was adopted in July as part of a package of amendments to the Protocol. The United States also signed the Basel Convention, which requires that transboundary shipments of hazardous wastes be conducted in an environmentally sound manner. We expanded the world's leading global climate change research program, and we took several domestic policy actions, including an ambitious reforestation initiative, that will reduce harmful emissions that can contribute to the ''greenhouse effect.'' In November, I signed into law important amendments to the Clean Air Act -- amendments based, in large part, on a proposal that I submitted to the Congress in July 1989. That proposal helped to break a 13-year legislative logjam. The new Clean Air Act will reduce risks of cancer, respiratory disease, and other health problems; it will limit damage to crops, forests, parks, lakes, and streams; and it will help to reduce smog in our Nation's cities.
On Earth Day 1990 and, indeed, throughout the year, millions of Americans participated in activities that underscore how individuals can make a difference in cleaning up and protecting the environment. Today countless Americans are changing their daily habits to reflect a renewed sense of environmental stewardship, and many businesses are working to apply new, environmentally conscious methods of operation. As we celebrate Earth Day 1991, we affirm, once again, the importance of public education and individual action to further progress in environmental protection. This is a good opportunity to remind ourselves and our neighbors of both our responsibilities toward the environment and the rewards of meeting them.
Every American can make a difference at the grassroots level. For example, we can recycle bottles, paper, and used motor oil, and we can help to conserve energy by driving less and by adjusting the thermostats in our homes and offices.
Observed in the glorious new light of spring, Earth Day should inspire us to treat this magnificent yet fragile planet with commensurate care and attention. Recognizing our obligation toward future inhabitants of this earthly home, and knowing that global problems have local solutions, let us make a renewed personal commitment to protecting the environment and to using our resources wisely.
To increase public awareness of the need for active participation in environmental protection, the Congress, by Senate Joint Resolution 119, has designated April 22, 1991, as ''Earth Day'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim April 22, 1991, as Earth Day. I call upon the people of the United States to observe this day with appropriate programs, ceremonies, and activities designed to promote greater understanding of ecological issues. I also ask all Americans to set an example of environmental stewardship in their daily activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-second day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6275
03 CFR Proclamation 6275 of April 22, 1991
Proclamation 6275 of April 22, 1991
03 CFR National Crime Victims' Rights Week, 1991
By the President of the United States of America
A Proclamation
In the Nation's ongoing fight against crime, statistics tell only part of the story. More than a violation of the law, every crime is a violation of the rights, property, person, or trust of another human being. Thus, behind every tally of offenses ranging from misdemeanors to aggravated felonies are innocent victims -- individuals and families who must be recognized in the administration of justice.
Almost 35 million Americans become victims of crime each year. In addition to the physical scars and the financial losses that many suffer, crime victims experience emotional trauma as well. Their self-confidence is shaken; their sense of security shattered.
Since 1982, when the President's Task Force on Victims of Crime helped to focus greater public attention on the rights and needs of these individuals, great progress has been made in efforts to assist crime victims and their families. Indeed, a nationwide movement led by thousands of concerned citizens -- many of them crime victims themselves -- has helped to promote timely restitution and healing for victims of crime. Working at the grass-roots level to provide counseling and support, a wide range of professionals and volunteers are helping these individuals to recover what losses they can and to reclaim their sense of dignity and security.
Nearly every State, as well as the Federal Government, has passed legislation to ensure the fair treatment of crime victims. The Crime Control Act of 1990 set forth, for the first time, a Federal Crime Victims' Bill of Rights. Forty-five States also have a Crime Victims' Bill of Rights to ensure that victims' needs are considered during criminal proceedings.
Almost every State, as well as the Federal Government, also supports programs to compensate and to assist victims of crime. These programs are financed, for the most part, not by innocent taxpayers, but by convicted offenders through criminal fines and penalties.
Recognizing the suffering of victims and their families, we are also committed at the Federal level to crime prevention. Earlier this year I proposed the Comprehensive Violent Crime Control Act of 1991, which, if enacted, will strengthen our Nation's criminal justice system and ensure that those who threaten the lives of others are held accountable for their actions. We must also continue to educate the public about ways to minimize their risk of victimization.
Through public and private efforts at the national, State, and local level, we are making great strides in the fight against crime and in the effort to ensure fair, compassionate treatment of victims and their families. This week, let us gratefully recognize all those who work, often as volunteers, in behalf of crime victims: law enforcement officers, health care professionals, attorneys, counselors, members of the clergy, and countless other concerned citizens. Let us also honor all those who are working to win the fight against crime and reaffirm our determination to uphold America's promise of liberty and justice for all.
The Congress, by Senate Joint Resolution 16, has designated the week of April 21 through April 27, 1991, as ''National Crime Victims' Rights Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week of April 21 through April 27, 1991, as National Crime Victims' Rights Week. I urge all Americans to join in honoring those who work in behalf of crime victims and their families. I also encourage all Americans to learn about ways that they can help to prevent crime and to assist its victims in their communities.
IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks at a ceremony observing National Crime Victims' Rights Week, see the Weekly Compilation of Presidential Documents (vol. 27, p. 484).
03 CFR Proc. 6276
03 CFR Proclamation 6276 of April 22, 1991
Proclamation 6276 of April 22, 1991
03 CFR National Arbor Day, 1991
By the President of the United States of America
A Proclamation
America's forests are an integral part of the global ecosystem and one of this Nation's greatest natural resources. Providing generations of Americans with lumber, fuel, and with many other valuable materials, these magnificent lands have helped us to build a strong and prosperous Nation. The natural habitat for many forms of wildlife, they have also provided watershed protection and grazing range. Yet these lands have provided more than tangible goods essential for survival -- the sublime beauty and serenity of our forests have also refreshed the spirits of many a visitor.
As important as the Nation's forests have been to us and to our ancestors, we have not always used them with commensurate care. Indeed, it was only a little more than 100 years ago that Americans began to realize that the heavy demand for wood products was depleting the Nation's trees at an alarming rate.
In 1872, to dramatize the need to replenish America's dwindling tree supply, concerned residents of Nebraska observed the first Arbor Day. Julius Sterling Morton, the prominent Nebraska politician who later became our third Secretary of Agriculture, was instrumental in encouraging other States to follow suit.
Arbor Day was set aside specifically for the planting of trees. More than a source of beauty and of valuable timber, food, and paper products, trees help to prevent soil erosion; they improve air quality by limiting the buildup of carbon dioxide in the atmosphere; and they reduce energy demands by sheltering our homes and businesses from the sun and wind. Thus, Arbor Day tree plantings provide tangible, lasting benefits while reminding every public-spirited citizen of the value of trees and the importance of reforestation efforts -- not only in our Nation's parks and wilderness areas but also in tropical forests, rain forests, and wetlands around the world.
On Arbor Day we also recognize the efforts of those who plant and care for trees throughout the year: private and public foresters, members of civic associations, individual volunteers, and students who are aided by their parents and teachers. Today Americans of all ages are setting an example of environmental stewardship by participating in the America the Beautiful Program. Under this program we plan to have up to 10 billion new trees growing in America by the year 2001.
Just as a tree is known by the fruit it bears, we will be judged by our actions -- by the way that we use our God-given resources and by the way that we handle our responsibilities toward our fellowman. On Arbor Day let us act to plant and to care for trees. Whether sown in our backyards or in our parks and other public places, their limbs will bear living evidence of our concern for generations to come.
The Congress, by Senate Joint Resolution 64, has authorized and requested the President to issue a proclamation designating the last Friday of April 1991 as ''National Arbor Day.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim April 26, 1991, as National Arbor Day. I call upon the people of the United States to observe this day with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-second day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6277
03 CFR Proclamation 6277 of April 22, 1991
Proclamation 6277 of April 22, 1991
03 CFR National Trauma Awareness Month, 1991
By the President of the United States of America
A Proclamation
Trauma is a significant public health problem that merits serious attention. The United States Department of Health and Human Services reports that traumatic injuries claim the lives of more than 180,000 Americans each year. Many thousands more are severely or permanently disabled. In addition to inflicting untold pain and suffering upon victims and their families, traumatic injuries also exact a high price from our Nation in terms of health care costs and lost productivity.
While each of us is a potential trauma victim, young Americans and senior citizens are at especially high risk. Traumatic injuries kill six times as many children as cancer, which is the next leading cause of death in children. Traumatic injuries -- most often suffered in motor vehicle collisions -- cause four out of five deaths among teenagers and young adults. Among persons 75 years of age or older, the death rate due to falls is nearly 12 times the rate in the general population.
Although these statistics are alarming, the vast majority of traumatic injuries result from hazards that can be reduced or prevented. All Americans need to learn more about the conditions and behaviors that can lead to traumatic injuries. By identifying and avoiding risks -- in the home, in the workplace, at play, and on the road -- we can lead healthier, safer lives.
When trauma does occur, however, proper medical care and rehabilitation also play an important role in reducing deaths and disability. Effective treatment begins with access to emergency services and hospitals that are capable of providing the high level of care needed by trauma victims. Optimal treatment includes rehabilitation programs and follow-up services that facilitate the fullest possible recovery.
Across the country health care professionals, educators, industry leaders, and government officials are working together with concerned citizens to promote greater awareness of traumatic injuries and to encourage the adoption of measures to prevent them. This month we recognize the importance of their efforts.
The Congress, by Public Law 101-471, has designated May 1991 as ''National Trauma Awareness Month'' and has authorized and requested the President to issue a proclamation in observance of this month.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the month of May 1991 as National Trauma Awareness Month. I urge all Americans to observe this month with appropriate programs and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-second day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6278
03 CFR Proclamation 6278 of April 22, 1991
Proclamation 6278 of April 22, 1991
03 CFR Loyalty Day, 1991
By the President of the United States of America
A Proclamation
Most of us know and prize loyalty as the gift of a longtime friend or colleague. It is the gift of abiding trust and support; bestowed freely, it withstands both the test of time and the sudden, sometimes fierce, trials that accompany every human life.
In the lives of nations as well as individuals, loyalty is marked by confidence in its object and by kinship to the virtues of faith, perseverance, industry, and self-sacrifice. This Nation's great experiment in self-government has endured for more than 200 years because generations of brave and selfless Americans have believed in freedom and have labored and sacrificed to preserve it.
On this Loyalty Day, we are especially mindful of our Nation's service members, past and present. In the spirit of our Founding Fathers, who pledged their lives, their fortunes, and their sacred honor in support of America's independence, these individuals have made a solemn commitment to defend the rights of others. Their loyalty to the ideals on which this Nation is founded has been proved on battlefields around the globe. Indeed, those American military personnel who recently took part in Operation Desert Storm -- whether providing invaluable support here at home or serving along the sands and off the shores of Saudi Arabia -- left no doubts about the depth of their devotion to freedom. We are grateful to them and to all of America's service members and veterans.
Although we take just pride in the courage and patriotism of our Armed Forces, we know that loyalty and love of country are proved not only in times of conflict and peril but also in the routine trials of everyday life. Each day, across America, millions of unsung heroes and heroines demonstrate their appreciation for the blessings of liberty and their resolve to help preserve our way of life. These loyal Americans are civic association members who work to promote patriotism and good citizenship; they are judges, police officers, and other public officials who honor their vow to uphold the Constitution; and they are volunteers who help to carry on the American tradition of caring through community service. Parents who labor to build strong, loving homes and youngsters who work hard in school to learn more about our American heritage -- they, too, help to keep the United States a good, free, and prosperous Nation.
On this Loyalty Day, observed in the 200th year of our Bill of Rights, let us reflect on the profound faith and convictions that inspired that great document. Let us renew our loyalty to the vision of this country's Founders, so that the United States might always be -- as it is written in our Pledge of Allegiance -- ''one Nation, under God, indivisible, with liberty and justice for all.''
To foster loyalty to principles on which the United States is founded, the Congress, by joint resolution approved July 18, 1958 (72 Stat. 369; 36 U.S.C.), has designated May 1 of each year as ''Loyalty Day.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim May 1, 1991, as Loyalty Day. I call upon all Americans to observe that day with appropriate ceremonies and activities in their homes, in schools, and in other suitable places. I also call upon all Government officials to display the flag of the United States on all Government buildings and grounds on that day.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-second day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6279
03 CFR Proclamation 6279 of April 23, 1991
Proclamation 6279 of April 23, 1991
03 CFR Mother's Day, 1991
By the President of the United States of America
A Proclamation
The beloved American humorist, Will Rogers, once said, ''Mothers are the only race of people that speak the same tongue. A mother in Manchuria could converse with a mother in Nebraska and never miss a word.'' It was a remark made with the wry, good-natured wit that was Rogers' trademark. Yet beneath his lighthearted humor was a telling observation about human nature -- and about the nature of motherhood in particular.
The language of motherhood is indeed universal. It is the language of unconditional love, spoken throughout history by mothers of every race and every walk of life. Expressed most often through acts of selflessness and generosity, that great love can be read in a mother's eyes, which reveal untold depths of tenderness, worry, and pride in her children. It can be heard in her voice as she soothes a crying infant, as she gives instruction and encouragement to an older child, and as she inquires about the well-being of the young adult who has ventured out on his or her own. Most of all, that great love is communicated by example.
In the silent language of motherhood, any two mothers may offer each other empathy and reassurance just by exchanging a knowing glance or smile. Yet while the language of motherhood is universal, it is also profoundly intimate, as personal and mysterious as the bond between a woman and the child she has carried in her womb. We seldom understand the depth of a parent's love until we have youngsters of our own -- then our mother's lessons and example speak to us with renewed clarity and meaning. Indeed, her words often echo in our hearts as we rear our own children and experience for ourselves the singular joys, frustrations, and concerns that have always been a part of parenting. As we advance in years, we also begin to recognize the extent of our mother's influence upon our character and conduct; reflecting on her many gifts to us -- from her firm moral guidance and discipline to her patience and forgiveness -- we begin to comprehend the truth that led Abraham Lincoln to declare: ''No man is poor who has had a godly mother.''
With love of untold strength, mothers nourish and enrich the lives of their children and fortify the tender bonds of family life. In so doing, they also strengthen our communities and Nation. Thus, on this occasion, we gratefully honor all those women who, by virtue of giving birth or through adoption or marriage, are mothers.
On this day especially and on every day of the year, let us convey through word and deed our love for our mothers and our appreciation for all that they have given us. Whether we share those heartfelt sentiments in person, across the miles, or through loving memory, we cannot say too often: ''Thanks, Mom, for everything.''
In grateful recognition of the contributions that mothers make to their families and to the Nation, the Congress, by a joint resolution approved May 8, 1914 (38 Stat. 770), has designated the second Sunday in May each year as ''Mother's Day'' and requested the President to call for its appropriate observance.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim that Sunday, May 12, 1991, be observed as Mother's Day. I urge all Americans to express their love and respect for their mothers on this day; to reflect upon the importance of motherhood to our families and Nation; and to ask for God's blessing upon both. I also direct Federal officials to display the flag of the United States on all Federal buildings, and I encourage all citizens to display the flag at their homes and other suitable places on that day.
IN WITNESS WHEREOF, I have hereunto set my hand this 23 day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6280
03 CFR Proclamation 6280 of April 25, 1991
Proclamation 6280 of April 25, 1991
03 CFR National Day of Prayer, 1991
By the President of the United States of America
A Proclamation
While we owe constant praise to Almighty God, we Americans have added cause for thanksgiving on this National Day of Prayer because of the recent coalition victory in the Persian Gulf. However, our joy and gratitude are inspired by far more than military triumph; on this special day of prayer held in the 200th year of our Bill of Rights, we give thanks for America's long and abiding legacy of freedom.
During the past 200 years, the ideals enshrined in our Bill of Rights have gained favor around the world. Even where tyrants have sought to rule by repression and terror, the spirit of freedom has endured. This is because, as Alexander Hamilton once noted, ''the Sacred Rights of Mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.'' Almighty God has granted each of us free will and inscribed in our hearts the unalienable dignity and worth that come from being made in His image.
Because our dignity and freedom are gifts of our Creator, we have a duty to cherish them, always using the latter to choose life and goodness. On this occasion we do well to pray for the wisdom and the resolve to do just that.
As an elevation of the soul's eyes to Heaven, prayer helps us to distinguish between liberty and license -- to recognize that which is the grateful exercise of free will and that which is its corruption. Through prayer, we turn our hearts toward their real home and, in so doing, gain a sense of proper direction and higher purpose.
Faith and prayer are as important to guiding the conduct of nations as they are to individuals. We Americans, Abraham Lincoln once wrote, ''have been the recipients of the choicest bounties of heaven.'' A nation so richly blessed has equally great responsibilities. Indeed, we have recently been reminded that ''much will be asked of those to whom much has been given.'' The crucible of war has once again tested our Nation's character, and it has shown us both the need for and the power of prayer.
On this National Day of Prayer, let us acknowledge with heartfelt remorse the many times we have failed to appreciate the Lord's gifts and to obey His Commandments. Giving humble thanks for His mercy, let us vow to fulfill not only our responsibilities but also our potential as one Nation under God. Most important, let us make our prayers pleasing to Him by the regular practice of public and private virtue and by a genuine renewal of America's moral heritage. As Scripture says, ''righteousness exalteth a nation, but sin is a reproach to any people.''
Since the approval of the joint resolution of the Congress on April 17, 1952, calling for the designation of a specific day to be set aside each year as a National Day of Prayer, recognition of such a day has become a cherished annual event. Each President since then has proclaimed a National Day of Prayer annually under the authority of that resolution, continuing a tradition that dates back to the Continental Congress. By Public Law 100-307, the first Thursday in May of each year has been set aside as a National Day of Prayer.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim May 2, 1991, as a National Day of Prayer. I urge all Americans to gather together on that day in homes and places of worship to pray, each after his or her own manner, for God's continued blessing on our families and our Nation.
IN WITNESS WHEREOF, I have hereunto set my hand this 25 day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6281
03 CFR Proclamation 6281 of April 25, 1991
Proclamation 6281 of April 25, 1991
03 CFR National Organ and Tissue Donor Awareness Week, 1991 and 1992
By the President of the United States of America
A Proclamation
Through organ and tissue transplantation, thousands of Americans have been given the chance to enjoy fuller, longer lives. For example, bone marrow transplants have brought hope and healing to victims of cancer; new corneas have helped to bring sight to the blind; and the gift of a new heart, lung, or kidney has enabled many gravely ill Americans to gain improved health.
Much has been done in recent years to encourage public support of organ and tissue donation. Millions of Americans have learned about transplants through regional and local donor programs, voluntary health agencies, and the media. Government grants and our national transplantation system have also helped to encourage organ and tissue donation. Many Americans have responded to public awareness campaigns by signing a donor card or by indicating on their driver's licenses their willingness to donate.
However, despite our best efforts and the development of worldwide transplant programs, the waiting list of those in need of donated organs or tissues continues to grow. The Department of Health and Human Services reports that a new name is added to our national waiting list every 30 minutes. As many as 25 percent of the patients waiting for specific organs will die before a well-matched donor is found.
As compelling as these facts are, it is both fitting and proper that we pause to reflect carefully on organ and tissue transplantation. Every donation is a profound act of personal sacrifice and generosity. Every transplant underscores the power of medicine and the precious nature of human life. Because God has granted every person equal dignity and worth, because human life must always be treated with reverence and care, all Americans should give careful thought to becoming organ and tissue donors. This includes learning the facts about transplantation and discussing any moral and ethical concerns with one's family and doctor.
When pursued in a thoughtful and reverent manner, organ and tissue transplantation is a medical procedure that reflects not only the highly sophisticated nature of our Nation's health care system but also the traditional generosity and compassion of the American people.
To promote public awareness of organ and tissue donation, the Congress, by House Joint Resolution 218, has designated the weeks beginning April 21, 1991, and April 19, 1992, as ''National Organ and Tissue Donor Awareness Week.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the weeks of April 21 through April 27, 1991, and April 19 through April 25, 1992, as National Organ and Tissue Donor Awareness Week. I ask health care professionals, public and private service organizations, and all Americans to join in supporting this humanitarian cause.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6282
03 CFR Proclamation 6282 of April 25, 1991
Proclamation 6282 of April 25, 1991
03 CFR To Modify Duty-Free Treatment Under the Generalized System of Preferences
By the President of the United States of America
A Proclamation
1. Pursuant to Title V of the Trade Act of 1974, as amended (the 1974 Act) (19 U.S.C. 2461 et seq.), the President may designate specified articles provided for in the Harmonized Tariff Schedule of the United States (HTS) as eligible for preferential tariff treatment under the Generalized System of Preferences (GSP) when imported from designated beneficiary developing countries.
2. Pursuant to section 504(c) of the 1974 Act (19 U.S.C. 2464(c)), beneficiary developing countries, except those designated as least-developed beneficiary developing countries pursuant to section 504(c)(6) of the 1974 Act, are subject to limitations on the preferential treatment afforded under the GSP. Pursuant to section 504(c)(5) of the 1974 Act, a country that is no longer treated as a beneficiary developing country with respect to an eligible article may be redesignated as a beneficiary developing country with respect to such article if imports of such article from such country did not exceed the limitations in section 504(c)(1) (after application of paragraph (c)(2)) during the preceding calendar year. Further, pursuant to section 504(d)(2) of the 1974 Act (19 U.S.C. 2464(d)(2)), the President may disregard the limitations provided in section 504(c)(1)(B) with respect to any eligible article if the appraised value of the total imports of such article into the United States during the preceding calendar year is not in excess of an amount which bears the same ratio to $5,000,000 as the gross national product of the United States for that calendar year (as determined by the Department of Commerce) bears to the gross national product of the United States for calendar year 1979.
3. Sections 502(b)(7) and 502(c)(7) of the 1974 Act (19 U.S.C. 2462(b)(7) and 2462(c)(7)) provide that a country that has not taken or is not taking steps to afford internationally recognized worker rights, as defined in section 502(a)(4) of the 1974 Act (19 U.S.C. 2462(a)(4)), is ineligible for designation as a beneficiary developing country for purposes of the GSP. Pursuant to section 504 of the 1974 Act, the President may withdraw, suspend, or limit the application of duty-free treatment under the GSP with respect to any article or with respect to any country upon consideration of the factors set forth in sections 501 and 502(c) of the 1974 Act (19 U.S.C. 2461 and 2462(c)).
4. Pursuant to sections 501, 503(a), and 504(a) of the 1974 Act (19 U.S.C. 2461, 2463(a), and 2464(a)), in order to subdivide and amend the nomenclature of existing provisions of the HTS to modify the GSP, I have determined, after taking into account information and advice received under section 503(a), that the HTS should be modified to adjust the original designation of eligible articles. In addition, pursuant to Title V of the 1974 Act, I have determined that it is appropriate to designate specified articles provided for in the HTS as eligible for preferential tariff treatment under the GSP when imported from designated beneficiary developing countries, and that such treatment for other articles should be terminated. I have also determined, pursuant to sections 504(a), (c)(1), and (c)(2) of the 1974 Act, that certain beneficiary countries should no longer receive preferential tariff treatment under the GSP with respect to certain eligible articles. Further, I have determined, pursuant to section 504(c)(5) of the 1974 Act, that certain countries should be redesignated as beneficiary developing countries with respect to specified previously designated eligible articles. These countries have been previously excluded from benefits of the GSP with respect to such eligible articles pursuant to section 504(c)(1) of the 1974 Act. Last, I have determined that section 504(c)(1)(B) of the 1974 Act should not apply with respect to certain eligible articles pursuant to section 504(d)(2) of the 1974 Act.
5. Pursuant to sections 502(b)(7), 502(c)(7), and 504 of the 1974 Act (19 U.S.C. 2462(b)(7), 2462(c)(7), and 2464), I have determined that it is appropriate to provide for the suspension of preferential treatment under the GSP for articles that are currently eligible for such treatment and that are imported from Sudan. Such suspension is the result of my determination that Sudan has not taken and is not taking steps to afford internationally recognized worker rights, as defined in section 502(a)(4) of the 1974 Act (19 U.S.C. 2462(a)(4)).
6. Pursuant to sections 501 and 502 of the 1974 Act (19 U.S.C. 2461 and 2462), and having due regard for the eligibility criteria set forth therein, I have determined that it is appropriate to designate Czechoslovakia as a beneficiary developing country for purposes of the GSP.
7. Section 604 of the 1974 Act (19 U.S.C. 2483) authorizes the President to embody in the HTS the substance of the provisions of that Act, and of other Acts affecting import treatment, and actions thereunder.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States, including but not limited to Title V and section 604 of the 1974 Act, do proclaim that:
(1) In order to provide benefits under the GSP to specified designated eligible articles when imported from any designated beneficiary developing country, the HTS is modified as provided in Annex I to this proclamation.
(2)(a) In order to provide benefits under the GSP to specified designated eligible articles when imported from any designated beneficiary developing country, the Rates of Duty 1-Special subcolumn for the HTS subheadings enumerated in Annex II(a)(1) and II(b)(1) is modified by inserting in the parentheses the symbol ''A'' as provided in such Annexes to this proclamation.
(b) In order to provide benefits under the GSP to a specified designated eligible article and in order that a country should not be treated as a beneficiary developing country with respect to such eligible article for purposes of the GSP, the Rates of Duty 1-Special subcolumn for the HTS subheadings enumerated in Annex II(b)(2) is modified by inserting in the parentheses the symbol ''A*'' as provided in such Annex to this proclamation.
(c) In order to provide preferential tariff treatment under the GSP to certain countries which have been excluded from the benefits of the GSP for certain eligible articles imported from such countries, following my determination that a country previously excluded from receiving such benefits should again be treated as a beneficiary developing country with respect to such article, the Rates of Duty 1-Special subcolumn for each of the HTS provisions enumerated in Annex II(a)(2) and II(b)(3) to this proclamation is modified: (i) by deleting from such subcolumn for such HTS provisions the symbol ''A*'' in parentheses, and (ii) by inserting in such subcolumn the symbol ''A'' in lieu thereof.
(d) In order to provide that one or more countries should no longer be treated as beneficiary developing countries with respect to an eligible article for purposes of the GSP, the Rates of Duty 1-Special subcolumn for each of the HTS provisions enumerated in Annex II(b)(4) to this proclamation is modified: (i) by deleting from such subcolumn for such HTS provisions the symbol ''A'' in parentheses, and (ii) by inserting in such subcolumn the symbol ''A*'' in lieu thereof.
(3) In order to provide for the designation of Czechoslovakia as a beneficiary developing country for purposes of the GSP, to provide for the suspension of preferential treatment under the GSP for Sudan, to provide that one or more countries which have not been treated as beneficiary developing countries with respect to an eligible article should be redesignated as beneficiary developing countries with respect to such article for purposes of the GSP, and to provide that one or more countries should no longer be treated as beneficiary developing countries with respect to an eligible article for purposes of the GSP, general note 3(c)(ii) to the HTS is modified as provided in Annex III to this proclamation.
(4) In order to provide for the continuation of previously proclaimed staged reductions on Canadian goods in the HTS provisions modified in Annex I to this proclamation, effective with respect to goods originating in the territory of Canada which are entered, or withdrawn from warehouse for consumption, on or after the dates specified in Annex IV to this proclamation, the rate of duty in the HTS set forth in the Rates of Duty 1-Special subcolumn followed by the symbol ''CA'' in parentheses for each of the HTS subheadings enumerated in such Annex shall be deleted and the rate of duty provided in such Annex inserted in lieu thereof on the dates specified.
(5) In order to provide for the continuation of previously proclaimed staged reductions on products of Israel in the HTS subheadings modified in Annex I to this proclamation, effective with respect to articles entered, or withdrawn from warehouse for consumption, on or after the dates specified in Annex V to this proclamation, the rate of duty in the HTS set forth in the Rates of Duty 1-Special subcolumn followed by the symbol ''IL'' in parentheses for each of the HTS subheadings enumerated in such Annex shall be deleted and the rate of duty provided in such Annex inserted in lieu thereof on the dates specified.
(6) Any provisions of previous proclamations and Executive orders inconsistent with the provisions of this proclamation are hereby superseded to the extent of such inconsistency.
(7)(a) The amendment made by Annex III(a) of this proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after the date of publication of this proclamation in the Federal Register.
(b) The amendments made by Annexes I(a), II(a), and III(b) of this proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after May 1, 1991.
(c) The amendments made by Annexes I(b), II(b), and III(c) of this proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991.
(d) The amendments made by Annexes IV and V of this proclamation shall be effective with respect to articles entered, or withdrawn from warehouse for consumption, on or after the dates indicated for the respective Annex columns.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Annex I
Notes:
1. Bracketed matter is included to assist in the understanding of proclaimed modifications.
2. The following supersedes matter now in the Harmonized Tariff Schedule of the United States (HTS). The subheadings and superior descriptions are set forth in columnar format, and material in such columns is inserted in the columns of the HTS designated ''Heading/Subheading'', ''Article Description'', ''Rates of Duty 1-General'', ''Rates of Duty 1-Special'', and ''Rates of Duty 2'', respectively.
(a) Effective with respect to articles both: (i) imported on or after January 1, 1976 and (ii) entered, or withdrawn from warehouse for consumption, on or after May 1, 1991.
(1) Subheading 2903.69.50 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
(2) Subheading 2904.90.45 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
(3) Subheading 2908.10.30 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
(4) Subheading 2916.39.10 is superseded by:
(5) Subheading 2916.39.30 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
(6) Subheading 2916.39.50 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
(7) Subheading 2921.42.50 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
Conforming change: HTS headings 9902.30.28, 9902.30.30 and 9902.30.31 are each modified by striking out ''2921.42.50'' and inserting ''2921.42.60'' in lieu thereof.
(8) Subheading 2921.43.50 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
Conforming changes: HTS heading 9902.29.28 is modified by striking out ''2921.43.50'' and inserting ''2921.43.18'' in lieu thereof. HTS heading 9902.30.33 is modified by striking out ''2921.43.50'' and inserting ''2921.43.60'' in lieu thereof.
(9) Subheading 2924.29.45 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
Conforming changes: HTS heading 9902.30.67 is modified by striking out ''2924.29.45'' and inserting ''2924.29.47'' in lieu thereof.
(10) Subheading 8703.10.00 is superseded by:
(b) Effective with respect to articles both: (i) imported on or after January 1, 1976 and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991.
(1) Subheading 0406.10.00 is superseded by:
(2) Subheading 0701.90.00 is superseded by:
(3) Subheading 0710.80.95 is superseded by:
(4) Subheading 2901.10.20 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
(5) Subheading 2904.90.10 is superseded by:
(6) Subheading 2907.29.50 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
Conforming change: HTS heading 9902.30.13 is modified by striking out ''2907.29.50'' and inserting ''2907.29.60'' in lieu thereof.
(7) Subheading 2908.90.10 is superseded by:
(8) Subheading 2921.42.60 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
Conforming change: HTS headings 9902.30.28, 9902.30.30 and 9902.30.31 are each modified by striking out ''2921.42.60'' and inserting ''2921.42.70'' in lieu thereof.
(9) Subheading 2924.29.47 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
Conforming changes: HTS heading 9902.30.67 is modified by striking out ''2924.29.47'' and inserting ''2924.29.46'' in lieu thereof.
(10) Subheading 2929.10.50 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
Conforming changes: HTS heading 9902.30.71 is modified by striking out ''2929.10.50'' and inserting ''2929.10.60'' in lieu thereof.
(11) Subheading 2934.20.50 is superseded and the following subheadings inserted in numerical sequence in lieu thereof:
(12) Subheading 3205.00.10 is superseded by:
Conforming change: The article description for subheading 3205.00.50 shall have the same degree of indentation as new subheading 3205.00.40 above.
(13) Subheading 3817.10.00 is superseded by:
(14) Subheading 3823.90.29 is superseded by:
Conforming changes: HTS heading 9902.29.55 is modified by striking out ''3823.90.29'' and inserting ''3823.90.27'' in lieu thereof. HTS heading 9902.38.25 is modified by striking out ''3823.90.29'' and inserting ''3823.90.27'' in lieu thereof.
(15) Subheading 5608.90.20 is superseded by:
(16) Subheading 6204.39.40 is superseded by:
(17) Subheading 6204.49.00 is superseded by:
Annex II
Modification in the HTS of an Article's Preferential Tariff Treatment under the GSP
(a) Effective with respect to articles both: (i) imported on or after January 1, 1976 and (ii) entered, or withdrawn from warehouse for consumption, on or after May 1, 1991:
(1) For the following HTS subheadings, in the Rates of Duty 1-Special subcolumn, insert in the parentheses following the ''Free'' rate the symbol ''A,'' in alphabetical order: 0202.30.20 0203.22.10 0203.29.20 1602.41.20 1602.42.20 1602.49.20 2007.99.05 2007.99.10 2007.99.20 2007.99.25 6911.10.41 6911.10.45 7013.21.50 7013.31.50
(2) For HTS subheading 2935.00.31, in the Rates of Duty 1-Special subcolumn, delete the symbol ''A*'' and insert an ''A'' in lieu thereof.
(b) Effective with respect to articles both: (i) imported on or after January 1, 1976 and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991:
(1) For the following HTS subheadings, in the Rates of Duty 1-Special subcolumn, insert in the parentheses following the ''Free'' rate the symbol ''A,'' in alphabetical order: 0807.10.60 1702.30.40 2208.90.50 2903.61.10 2903.61.30 2917.37.00 2929.10.15 3606.90.60 3906.90.50 6912.00.41 7013.91.50 7801.10.00 7801.99.90 7901.12.50 8533.10.00 8714.92.50 9608.10.00
(2) For HTS 7901.11.00, in the Rates of Duty 1-Special subcolumn, insert in the parentheses following the ''Free'' rate the symbol ''A*,'' in alphabetical order.
(3) For the following HTS provisions, in the Rates of Duty 1-Special subcolumn, delete the symbol ''A*'' and insert an ''A'' in lieu thereof: 1905.90.90 2005.80.00 2933.19.25 3402.90.30 4013.10.00 4802.51.10 4804.31.60 4818.90.00 7008.00.00 7113.20.21 7605.19.00 7614.90.50 8302.10.90 8406.11.90 8406.19.90 8406.90.90 8419.11.00 8474.20.00 8507.90.40 8516.80.80 8529.90.50 8527.11.11 9006.52.10 9019.20.00 9026.80.60 9031.40.00 9401.90.10 9603.30.40
(4) For the following HTS provisions, in the Rates of Duty 1-Special subcolumn, delete the symbol ''A'' and insert an ''A*'' in lieu thereof: 0710.80.70 0802.90.15 1901.90.90 2916.39.15 2929.90.50 3207.40.10 3402.90.10 3917.33.00 3926.90.87 4011.91.50 4104.31.20 6210.10.20 6307.90.60 7113.19.10 7401.10.00 8418.10.00 8428.90.00 8501.40.60 8535.40.00 8520.20.00
Annex III
Modifications to General Note 3(c)(ii) of the HTS
(a) Effective with respect to articles both: (i) imported on or after January 1, 1976 and (ii) entered, or withdrawn from warehouse for consumption, on or after the date of publication of this proclamation in the Federal Register, general note 3(c)(ii)(A) is modified by inserting ''Czechoslovakia'' in alphabetical order in the enumeration of independent countries.
(b) Effective with respect to articles both: (i) imported on or after January 1, 1976 and (ii) entered, or withdrawn from warehouse for consumption, on or after May 1, 1991, general note 3(c)(ii)(D) is modified by deleting ''2935.00.31 Yugoslavia'' from such note.
(c) Effective with respect to articles both: (i) imported on or after January 1, 1976 and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991:
(1) General note 3(c)(ii)(A) is modified by deleting ''Sudan'' from the enumeration of independent countries.
(2) General note 3(c)(ii)(B) is modified by deleting ''Sudan'' from the enumeration of least-developed beneficiary developing countries.
(3) General note 3(c)(ii)(D) is modified --
(i) by deleting the following HTS provisions and the countries set opposite these provisions:
1905.90.90 Mexico 2005.80.00 Thailand 2933.19.25 Guatemala 3402.90.30 Mexico 4013.10.00 Mexico 4802.51.10 Mexico 4804.31.60 Mexico 4818.90.00 Mexico 7008.00.00 Mexico 7113.20.21 Dominican Republic 7605.19.00 Venezuela 7614.90.50 Venezuela 8302.10.90 Mexico 8406.11.90 Israel 8406.19.90 Israel 8406.90.90 Israel 8419.11.00 Israel 8474.20.00 Philippines 8507.90.40 Mexico 8516.80.80 Mexico 8527.11.11 Malaysia 8529.90.50 Mexico 9006.52.10 Mexico 9019.20.00 Mexico 9026.80.60 Mexico 9031.40.00 Israel 9401.90.10 Mexico 9603.30.40 Mexico
(ii) by adding in numerical sequence, the following HTS provisions and countries set opposite them:
0710.80.70 Guatemala 0802.90.15 Mexico 1901.90.90 Mexico 2916.39.15 India 2929.90.50 Bahamas 3207.40.10 Mexico 3402.90.10 Mexico 3917.33.00 Mexico 3926.90.87 Mexico 4011.91.50 Israel 4104.31.20 Thailand 6210.10.20 Mexico 6307.90.60 Mexico 7113.19.10 Peru 7401.10.00 Mexico 7901.11.00 Mexico 8418.10.00 Mexico 8428.90.00 Mexico 8501.40.60 Mexico 8535.40.00 Mexico
(iii) by deleting the following countries opposite the following HTS provisions:
005.90.20 Chile 1701.11.02 Dominican Republic
(iv) by adding, in alphabetical order, the following countries opposite the following HTS subheadings:
6406.10.65 Dominican Republic 7113.19.50 Israel 7402.00.00 Mexico
Annex IV
Effective with respect to goods originating in the territory of Canada which are entered, or withdrawn from warehouse for consumption, on or after the dates set forth in the following tabulation.
For each of the following subheadings created by Annex I of this proclamation, on or after January 1 of each of the following years, the rate of duty in the Rates of Duty 1-Special subcolumn in the HTS that is followed by the symbol ''CA'' in parentheses is deleted and the following rates of duty inserted in lieu thereof on the date specified below.
Annex V
Effective with respect to products of Israel which are entered, or withdrawn from warehouse for consumption, on or after the dates set forth in the following tabulation.
For each of the following subheadings created by Annex I of this Proclamation, the rate of duty in the Rates of Duty 1-Special subcolumn in the HTS that is followed by the symbol ''IL'' in parentheses is deleted and the following rates of duty inserted in lieu thereof on the date specified below.
03 CFR Proc. 6283
03 CFR Proclamation 6283 of April 29, 1991
Proclamation 6283 of April 29, 1991
03 CFR Law Day, U.S.A., 1991
By the President of the United States of America
A Proclamation
On this Law Day, held in the 200th year of our Bill of Rights, we give thanks for our Nation's enduring legacy of liberty under law. This legacy, ensured by our Constitution and Bill of Rights, has made the name ''America'' virtually synonymous with freedom.
Ratified and adopted as part of the Constitution in December 1791, the Bill of Rights signalled our Founders' determination to uphold their earlier declaration ''that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.'' No other document in the history of mankind has enumerated in a more fruitful manner the fundamental liberties to which all people are heirs.
James Madison once noted that the idea of a Bill of Rights was valuable because ''political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free government.'' Indeed, the principles enshrined in our Bill of Rights have proved to be not only the guiding tenets of American government, but also a model for the world. Two hundred years after this great document was adopted by the Congress, we can behold its seminal role in the advancement of human rights around the world. The United Nations General Assembly affirmed the ideals enshrined in our Bill of Rights when it adopted the Universal Declaration of Human Rights in 1948. Those ideals were also affirmed in the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe.
The ideals set forth in our Bill of Rights and echoed in each of these later documents have triumphed in nations that once bore the heavy yoke of totalitarianism. In emerging democracies around the world, courageous peoples are striving to bring the tender shoots of freedom into full bloom, and they continue to look to America as a guide. Today we know that our ancestors gave freedom not only a name but also a future when they adopted the Bill of Rights.
On this occasion we do well to honor all those Americans who labor and sacrifice to defend our Bill of Rights and the rule of law. Today we salute with special pride and appreciation our courageous military personnel. Yet, in addition to our Armed Forces, many other Americans work daily to uphold the rule of law; indeed, we owe great thanks to police officers, judges, attorneys, and all those who serve in our Nation's independent judiciary or who otherwise labor to defend our Constitution. Law Day celebrates the efforts of these individuals and reminds each of us of the importance of understanding our rights and meeting our responsibilities as citizens of a free Nation.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, in accordance with Public Law 87-20 of April 7, 1961, do hereby proclaim May 1, 1991, as Law Day, U.S.A. I urge all Americans to observe this day by reflecting upon our rights and our responsibilities under the Constitution. I ask that members of the legal profession, civic associations, and the media, as well as educators, librarians, and government officials, promote the observance of this day through appropriate programs and activities. I also call upon all public officials to display the flag of the United States on all government buildings on this day.
IN WITNESS WHEREOF, I have hereunto set my hand this 29 day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6284
03 CFR Proclamation 6284 of April 30, 1991
Proclamation 6284 of April 30, 1991
03 CFR Older Americans Month, 1991
By the President of the United States of America
A Proclamation
People are our Nation's most precious asset, and America's senior citizens are no exception. These men and women constitute a wellspring of acquired wisdom and skill, and it is fitting that our celebration of Older Americans Month, 1991, should have as its theme, ''Older Americans: A Great Natural Resource.''
Older Americans have charted the course of our Nation throughout most of this century. While many youngsters view the Great Depression and World War II as the stuff of schoolbooks, it was today's senior citizens who experienced these and other defining moments in American history and, through them, helped to shape the world in which we live. With faith, courage, and countless sacrifices on both the home front and the field of battle, these Americans joined our Nation's allies in defeating the tyrannical forces that threatened to destroy an entire continent during World War II. The industry and creativity of today's older Americans later gave America the technological edge needed to put the first man on the moon. Indeed, their ingenuity and hard work have enabled the United States to make many great and historic strides in business, agriculture, and health care.
Today older Americans continue to merit our respect and gratitude. Whether they quietly enrich the lives of their families and friends or engage in paid employment and voluntary community service, senior citizens are an invaluable source of knowledge and experience. Today many older Americans are remaining in the work force well past the traditional retirement age, and more and more seniors are pursuing second careers. In fact, older Americans are as much a part of our future as they are a part of our past: the contributions that they continue to make in this century will benefit our families and our Nation well into the next.
Over the years older Americans have taught us many powerful lessons about duty, faithfulness, and honor. With those lessons in mind, let us renew our determination to help our senior citizens live with the independence, comfort, and security that they need and deserve. We can begin by reaffirming our support for those public agencies, private organizations, and individuals who work, each and every day of the year, to dispel myths about aging; to protect older Americans from discrimination and exploitation; and to provide long-term health care and other services for seniors with special needs. Their efforts should be a compelling reminder of the respect and gratitude that each of us owes to our society's eldest members.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the month of May 1991 as Older Americans Month. I call upon the people of the United States to observe this month with appropriate ceremonies and activities in honor of our Nation's senior citizens.
IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6285
03 CFR Proclamation 6285 of April 30, 1991
Proclamation 6285 of April 30, 1991
03 CFR National Physical Fitness and Sports Month, 1991
By the President of the United States of America
A Proclamation
Anyone who has ever taken part in sports or other athletic activities knows that doing so is not only fun but also a wonderful way to achieve greater physical fitness. Today there are exciting sports and athletic opportunities to match virtually every personal interest and ability, from running, racquetball, fencing, and skiing to swimming, soccer, aerobic dance, and golf -- just to name a few.
Whether they engage in periodic workouts or in favorite individual and team sports -- or perhaps all three -- Americans who exercise regularly enjoy a host of benefits. In addition to enhancing one's physical strength and agility, athletic activity helps to alleviate many of the effects of stress and aging. People who participate in sports and other forms of exercise also enjoy the profound sense of satisfaction and self-confidence that come from meeting a challenge. In a special way team sports enable participants to develop valuable communication skills, as well as a rewarding sense of cooperation and fellowship.
As more and more Americans discover these and other advantages of regular athletic activity, our communities and Nation benefit as well. Because physically fit persons generally have more energy and stamina, greater athletic activity among our population contributes to greater productivity and performance in the workplace. Because an active, healthy life-style can help to prevent coronary disease and other health problems, increased public participation in sports can also help to keep medical costs down.
Recognizing the many benefits of physical fitness to individuals and to the Nation, I have joined with Arnold Schwarzenegger, Chairman of the President's Council on Physical Fitness and Sports, in declaring the 1990s the ''Fitness Decade.'' Just as it is never too early to nurture good habits in one's children, it is never too late for adults to reap the rewards of regular exercise; hence, we are calling on Americans of all ages to commit to get fit. Everyone can benefit from regular exercise, and everyone can find a sport or other physical activity that meets his or her abilities and interests. This month is a splendid opportunity for all those who have not yet done so to take the first step toward healthier, fuller lives through participation in sports and other forms of exercise.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the month of May 1991 as National Physical Fitness and Sports Month. I urge all Federal, State, and local government agencies and the people of the United States to observe this month with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this thirtieth day of April, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's declaration of May 1991 as National Physical Fitness and Sports Month, see the Weekly Compilation of Presidential Documents (vol. 27, p. 534).
03 CFR Proc. 6286
03 CFR Proclamation 6286 of May 1, 1991
Proclamation 6286 of May 1, 1991
03 CFR National Day To Commemorate the 200th Anniversary of the Polish Constitution of May 3, 1791
By the President of the United States of America
A Proclamation
On May 3, 1791, declaring their love of ''national independence and freedom over life itself,'' brave Polish patriots adopted a national constitution for their homeland. This document was a resounding declaration of Poles' desire for liberty and self-government -- and it was a bold challenge to the foreign powers that had invaded and partitioned their country less than 20 years before.
One of the first written national constitutions in the world, the Polish Constitution of May 3, 1791, was modeled after our own. Even through the most difficult periods in Poland's history, it has remained a great and cherished symbol of the Polish people's devotion to democratic ideals.
We Americans gladly join in celebrating the 200th anniversary of this historic document because we are united with the Polish people by strong ties of kinship and culture and by a mutual love of liberty. These special bonds were affirmed in the ''Declaration on Relations between the United States of America and the Republic of Poland,'' which President Lech Walesa and I signed on March 20, 1991.
Poles were among the first immigrants to come to these shores in search of freedom and opportunity, and they and their descendants have served and enriched our Nation in countless ways. Since the great Polish heroes Tadeusz Kosciuszko and Kazimierz Pulaski helped to secure the Independence of our fledgling Republic, millions of other men and women of Polish extraction have likewise labored and sacrificed to help ensure the success of America's bold experiment in self-government, always inspiring others by their unshakable faith in God and in the promise of liberty under law.
In Poland, that faith has been tested by decades of often brutal repression. During the late 18th century Poland again fell prey to the expansionist aims of neighboring empires. Early in this century Poland enjoyed only a brief period of independence before being invaded by Nazi Germany and the Soviet Union in 1939. Nevertheless, despite decades of foreign domination and the declaration of martial law as recently as 1981, the people of Poland have held fast to their dream of freedom and self-determination.
Today the faith, courage, and tenacity of the Polish people are finally being rewarded. During the past 2 years the Poles have thrown off the heavy yoke of communism and under a new, democratically elected government have begun working to break the cycle of impoverishment and decline imposed by nearly half a century of totalitarian rule.
The United States wholeheartedly supports the Poles' courageous efforts to establish a free market economy and stable democratic rule in their country. Those efforts have required difficult decisions by the Polish leadership and great sacrifices by all Poles, and the United States has acted to assist Poland's historic transition in many ways.
The United States is proud to stand by our Polish friends as they work to transform their triumph over tyranny into lasting freedom and prosperity. Today we know that the promise of the Polish Constitution of May 3, 1791, is being fulfilled. On the occasion of its 200th anniversary, we salute and congratulate the courageous people of Poland, who have proved, once again, that ''Poland is not lost while Poles still live.''
The Congress, by House Joint Resolution 669 (Public Law 101-532), has designated May 3, 1991, as a day of commemoration of the 200th anniversary of the Polish Constitution of May 3, 1791, and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim May 3, 1991, as a day of commemoration of the 200th anniversary of the adoption of the Polish Constitution of May 3, 1791. I call upon all Americans to observe this day with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this first day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6287
03 CFR Proclamation 6287 of May 3, 1991
Proclamation 6287 of May 3, 1991
03 CFR National Tourism Week, 1991
By the President of the United States of America
A Proclamation
From coast to coast the United States is marked by an abundance of beautiful public parks and fascinating historic landmarks, as well as a variety of recreational and cultural attractions. These features, coupled with the hospitality of our people and the high quality of American travel services and accommodations, make the United States the world's number one tourist destination.
Tourism and business travel not only provide rewarding educational opportunities for individuals but also contribute to the Nation's economic prosperity. The travel and tourism industry is America's second largest private employer, directly or indirectly supporting millions of jobs across the country. According to the United States Department of Commerce, the industry is also our largest export earner. With nearly $350 billion spent annually by all travellers and tourists in the United States, travel and tourism account for about 6.5 percent of our gross national product.
While travel and tourism enrich virtually every community in which they thrive, they are especially important to rural America. More and more, Americans and international visitors are travelling to rural America, not only to explore our forests, parks, and recreation areas, but also to enjoy a respite from the hustle and bustle of urban life. Businesses are beginning to discover the many advantages of holding retreats and seminars in the country. All of this activity brings thousands of dollars into rural economies, benefitting small businesses and entire communities alike.
Both in rural areas and in our cities, the revenue generated by travel and tourism helps to spur needed development -- including the building of schools, where children can learn about our Nation's past and acquire the knowledge and skills needed to enjoy a bright future.
Students can benefit significantly from travel in the United States, as can everyone who recognizes it as a wonderful learning opportunity. Indeed, the many historic and cultural landmarks preserved across America help to tell our Nation's story. Monuments and museums, battlefields and nature trails -- all trace the rich history of America's native peoples and the immigrants who helped to make this land the home of freedom and opportunity as well. Moreover, in today's shops and markets, in our courthouses and legislative halls, visitors can see American free enterprise and democracy at work. This year is a most exciting time to rediscover America, since we celebrate the 200th year of our Bill of Rights.
This week, let us honor all those Americans who work in the travel and tourism industry -- particularly those who are striving to promote tourism in rural areas and to increase America's share of the world tourism market. Each of us benefits, in so many ways, from their year-round efforts.
The Congress, by Senate Joint Resolution 102, has designated the week beginning on the first Sunday in May as ''National Tourism Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week of May 5 through May 11, 1991, as National Tourism Week. I call upon the people of the United States to observe this week with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this third day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6288
03 CFR Proclamation 6288 of May 6, 1991
Proclamation 6288 of May 6, 1991
03 CFR Asian/Pacific American Heritage Month, 1991 and 1992
By the President of the United States of America
A Proclamation
With characteristic clarity and force, Walt Whitman wrote: ''The United States themselves are essentially the greatest poem . . . . Here is not merely a nation but a teeming nation of nations.'' Those immortal words eloquently describe America's ethnic diversity -- a diversity we celebrate with pride during Asian/Pacific American Heritage Month.
The Asian/Pacific American heritage is marked by its richness and depth. The world marvels at the wealth of ancient art and philosophy, the fine craftsmanship, and the colorful literature and folklore that have sprung from Asia and the Pacific islands. Whether they trace their roots to places like Cambodia, Vietnam, Korea, the Philippines, and the Marshall Islands or cherish their identities as natives of Hawaii and Guam, all Asian and Pacific Americans can take pride in this celebration of their heritage.
By preserving the time-honored customs and traditions of their ancestral homelands, Americans of Asian and Pacific descent have greatly enriched our Nation's culture. They have also made many outstanding contributions to American history. Indeed, this country's westward expansion and economic development were greatly influenced by thousands of Chinese and other Asians who immigrated during the 19th century. Today recent immigrants from South Asia are giving our Nation new appreciation for that region of the world.
Over the years -- and often in the face of great obstacles -- Asian and Pacific Americans have worked hard to reap the rewards of freedom and opportunity. Many have arrived in the United States after long and arduous journeys, escaping tyranny and oppression with little more than the clothes on their backs. Yet, believing in America's promise of liberty and justice for all and imbued with a strong sense of self-discipline, sacrifice, courage, and honor, they have steadily advanced, earning the respect and admiration of their fellow citizens. Today we give special and long-overdue recognition to the nisei who fought for our country in Europe during World War II. During one of America's darker hours, they affirmed the patriotism and loyalty of Japanese Americans and, in so doing, taught us an important lesson about tolerance and justice.
Time and again throughout our Nation's history, Asian and Pacific Americans have proved their devotion to the ideals of freedom and democratic government. Those ideals animate and guide our policies toward Asia and the Pacific today. The economic dynamism of the Pacific Rim is a crucial source of growth for the global economy, and the United States will continue working to promote economic cooperation and the expansion of free markets throughout the region. The United States also remains committed to the security of our allies and to the advancement of human rights throughout Asia and the Pacific.
The political and economic ties that exist between the United States and countries in Asia and the Pacific are fortified by strong bonds of kinship and culture. All Americans are enriched by those ties, and thus we proudly unite in observing Asian/Pacific American Heritage Month.
The Congress, by House Joint Resolution 173, has designated May 1991 and May 1992 as ''Asian/Pacific American Heritage Month'' and has authorized and requested the President to issue a proclamation in observance of these occasions.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the months of May 1991 and May 1992 as Asian/Pacific American Heritage Month. I call upon the people of the United States to observe these occasions with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this 6th day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks to the Asian-Pacific community in Fountain Valley, CA, see the Weekly Compilation of Presidential Documents (vol. 27, p. 794).
03 CFR Proc. 6289
03 CFR Proclamation 6289 of May 7, 1991
Proclamation 6289 of May 7, 1991
03 CFR Small Business Week, 1991
By the President of the United States of America
A Proclamation
The freedom we celebrate during this 200th year of our Bill of Rights has enabled the United States to become a strong and prosperous Nation. Able to enjoy the unfettered ''pursuit of Happiness'' and allowed to reap the fruits of our labor, we Americans have achieved unparalleled levels of innovation and productivity. This week we honor in a special way America's small business men and women -- courageous, hardworking individuals who have taken advantage of our Nation's free enterprise system and helped to show that this is, indeed, a land of liberty and opportunity for all.
Each day America's small business man and women help to lead the way in the development of new technology and products and in the improvement of existing goods and services. These industrious leaders also help to create jobs and opportunities for millions of their fellow citizens while promoting the economic development of their communities. In so doing, they demonstrate that individual initiative and private enterprise are keys to advancement for both individuals and nations.
Driven by more than 20 million small businesses, America's thriving free enterprise system serves as a model for the world. Indeed, as nations in Eastern Europe and elsewhere move to restructure their economies -- an immense task that will entail many challenges -- America's small businesses provide an inspiring example of free market principles in action.
Our Nation's entrepreneurs understand the risks and challenges faced by business owners in a market-driven economy, but they also appreciate the rewards of taking an idea and making it work, creating jobs and meeting a payroll, and contributing to one's community. Today many small business owners contribute to their communities not only through their day-to-day activities but also through corporate philanthropy and voluntary service. Demonstrating that good citizenship is good business, many small business owners and their employees are reaching out to persons in need of a helping hand. These entrepreneurs are among the points of light that reflect our Nation's conscience and illuminate its social landscape.
Because small businesses enrich our lives in so many ways, because their owners and employees have a vital role to play in keeping America competitive, we must continue working to maintain a business climate that is conducive to their success. Doing so will require eliminating government regulations wherever they are counterproductive, offering incentives for investment, and reducing the tax rate on long-term capital gains. It will also require that we continue working for a level playing field in the international marketplace, eliminating barriers to the free flow of goods and services around the world. As they have demonstrated time and again, when given the freedom and the opportunity to put their talent and ideas to work, America's small business men and women not only succeed, they excel.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the week of May 5 through May 11, 1991, as Small Business Week. I urge all Americans to join me in saluting our Nation's small business men and women by observing that week with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6290
03 CFR Proclamation 6290 of May 10, 1991
Proclamation 6290 of May 10, 1991
03 CFR Infant Mortality Awareness Day, 1991
By the President of the United States of America
A Proclamation
In the past, this Nation's high rate of infant mortality has stood in tragic contradiction to our enviably high standard of living and to our traditional reverence for human life. Fortunately, however, that unconscionable trend is changing. According to the Department of Health and Human Services, preliminary data indicate that the United States infant mortality rate in 1990 was 9.1 deaths per 1,000 live births -- the lowest ever recorded and a substantial reduction over the past decade.
The infant mortality rate is affected by a number of different factors, including the failure of many pregnant women to obtain adequate prenatal care. Although the government cannot fulfill the primary responsibility of parents in caring for their children, public officials at the Federal, State, and local levels have been working together with health care providers and other concerned Americans to help expectant mothers protect the lives of their unborn children through proper nutrition and prenatal care.
Advances in science and technology have enabled us to see how such behaviors as substance abuse and smoking can lead to low birth weights, disability, chronic illness, and early susceptibility to death among infants. Advances in science have also enabled us to save the lives of babies who are born prematurely or who develop dangerous conditions while still in the womb. In an effort to bring this information to pregnant women and to cut existing rates of infant mortality by half in 10 high-risk areas within 5 years, we have launched a national campaign against infant mortality. This includes the ''Healthy Start'' program, a pilot project that will bring early prenatal care to thousands of low-income mothers while helping to identify which government programs work best.
Each and every human life is precious, and every one deserves care and protection. On this occasion let us renew our determination to ensure that every child in America receives the best possible start in life, beginning with quality prenatal care throughout pregnancy for expectant mothers.
The Congress, by House Joint Resolution 194, has designated May 12, 1991, as ''Infant Mortality Awareness Day'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim May 12, 1991, as Infant Mortality Awareness Day. I urge all Americans to observe this day with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this tenth day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6291
03 CFR Proclamation 6291 of May 13, 1991
Proclamation 6291 of May 13, 1991
03 CFR World Trade Week, 1991
By the President of the United States of America
A Proclamation
International trade benefits all who participate. An expansion in trade promotes worldwide prosperity by increasing production and creating jobs.
Open markets and the free movement of goods, services, and capital across international borders are vital to economic growth. Free trade fosters more efficient use of the world's resources, higher real wages for both American and foreign workers, and the production of a wider variety of more affordable, high quality goods for our consumers.
Although the United States, working in concert with other nations, has made progress in dismantling trade barriers, we are still trying to achieve the ideal of free and fair trade. Toward that end, we are striving to bring the Uruguay Round of trade negotiations to a successful conclusion. We are also working to forge a North American Free Trade Agreement, which would establish the largest integrated market on earth -- a market of 360 million consumers and an estimated $6 trillion in annual output. Vital to these efforts -- and to the success of the Enterprise for the Americas Initiative -- is the extension of fast track procedures.
Here at home we see convincing evidence that expanded trade strengthens the economy, thereby creating opportunities for individuals. During the past 5 years, exports have accounted for more than 40 percent of all growth in the U.S. economy. Last year exports supported more than 7 million jobs. Thus, it is fitting that the theme of this year's World Trade Week be ''Exports: Generating Jobs for Americans.'' Indeed, export expansion is perhaps the most effective jobs program that our Nation can establish today.
The triumph of democratic ideals and free market principles in more and more nations around the world has created unprecedented opportunities for American businesspeople and farmers to expand sales overseas. To take advantage of these new export opportunities, Americans must do what we do best: apply our manufacturing ingenuity, our commitment to service and to the customer, and our expert salesmanship to the challenge of opening new markets abroad. To meet foreign competition, we must redouble our commitment to quality, so that the phrase ''Made in America'' is automatically associated with ''Best in the World.''
The United States Government stands ready to help. We are committed to eliminating foreign trade barriers and to opening new markets for American goods, services, investment, and ideas. We have placed a high priority on programs that are designed to provide American business exporters with information and counseling that will assist them in selling overseas. By expanding exports, members of American business and industry will not only increase their profits and their employment rolls but also contribute to improved standards of living for millions of people around the world.
The message of World Trade Week, 1991, is that exports and open markets are vital to future U.S. economic growth. It is a message not just for this week but for every week of the year.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the week of May 19 through May 25, 1991, as World Trade Week. I urge all Americans to observe this week with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this thirteenth day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6292
03 CFR Proclamation 6292 of May 14, 1991
Proclamation 6292 of May 14, 1991
03 CFR Prayer For Peace, Memorial Day, 1991
By the President of the United States of America
A Proclamation
''What we obtain too cheap, we esteem too lightly,'' Thomas Paine wrote in 1776, ''it is dearness only that gives everything its value. Heaven knows how to put a proper price upon its goods, and it would be strange indeed if so celestial an article as freedom should not be highly rated.'' The war in the Persian Gulf has reminded all Americans of the value of freedom and the price that many brave men and women have been willing to bear for its sake. Neither ''summer soldiers'' nor ''sunshine patriots,'' the members of Operation Desert Storm did not shrink from service to their country when the dark clouds of armed conflict gathered in the Persian Gulf, and, like the early patriots of whom Thomas Paine wrote, they deserve our respect and thanks. Those who made the ultimate sacrifice in the effort to liberate Kuwait joined a long line of heroes who have given their lives for our country, and on Memorial Day we remember all of them with solemn pride and heartfelt appreciation.
Whether we engage in quiet prayer or in public ceremony, whether we remember loved ones and neighbors or heroes known only to God, all Americans are united on this day in thanksgiving for the blessings of liberty and for the brave and selfless individuals who have helped to secure them. The sacrifices of those who fell in the Persian Gulf are a fresh and vivid memory, but on this occasion we also remember those who died while serving in places such as Panama, Grenada, Beirut, Korea, and Vietnam. We also honor with undiminished pride and gratitude those who served decades ago, during World Wars I and II.
On Memorial Day, we echo in prayer the fervent hope that these Americans expressed with their very lives: the hope for lasting peace among nations. Knowing that any peace purchased by the surrender of principle can be neither genuine nor enduring, we pray for wisdom and resolve in our efforts to avert future conflicts and to establish a new world order based on respect for human rights and the rule of law. Knowing too that our freedom has been obtained at a very high cost, we also pray that we might remain a people worthy of so precious a gift. Declaring that ''the times that try men's souls are over,'' Thomas Paine wrote: ''The world has seen (America) great in adversity . . . and rising in resolve as the storm increased . . . . Let the world then see that she can bear prosperity and that her honest virtue in time of peace is equal to the bravest virtue in time of war.''
In recognition of those Americans to whom we pay tribute today, the Congress, by a joint resolution approved on May 11, 1950 (64 Stat. 158), has requested the President to issue a proclamation calling upon the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby designate Memorial Day, May 27, 1991, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11 o'clock in the morning of that day as a time to unite in prayer. I urge the members of the media to cooperate in this observance.
I also request the Governors of the United States and the Commonwealth of Puerto Rico, and the appropriate officials of all units of government, to direct that the flag be flown at half-staff until noon during this Memorial Day on all buildings, grounds, and naval vessels throughout the United States and in all areas under its jurisdiction and control, and I request the people of the United States to display the flag at half-staff from their homes for the customary forenoon period.
IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6293
03 CFR Proclamation 6293 of May 15, 1991
Proclamation 6293 of May 15, 1991
03 CFR Emergency Medical Services Week, 1991 and 1992
By the President of the United States of America
A Proclamation
Each year millions of Americans require immediate medical attention for illnesses and injuries. The Department of Health and Human Services reports that, on an average day in the United States, more than 170,000 men, women, and children are injured seriously enough to require professional emergency treatment. Responding to the needs of these Americans are members of the Nation's emergency medical services (EMS) systems.
Members of the Nation's EMS teams help to save thousands of lives each year by providing swift, specialized care for seriously ill and injured persons. The highly dedicated and specially trained paramedics, physicians, nurses, and medical technicians who serve on these teams are supported in their work by a vital network of transport specialists, dispatchers, administrators, and instructors. Thanks to the expertise and the hard work of all of these men and women, Americans are assured high quality emergency medical care.
Today emergency medical care providers are available on a 24-hour basis to anyone who needs immediate medical attention. Both professional and volunteer members of EMS teams respond to calls for help at all hours, often while working under difficult and even hazardous conditions.
In addition to their courageous, lifesaving efforts in the field, EMS personnel have made many important contributions to education and research in trauma care and cardiopulmonary resuscitation. They have also played an integral role in educating the public about accident prevention and wellness. For example, members of the Nation's EMS teams have helped to inform citizens of all ages about the dangers of drunk driving and the need to use automobile safety belts, child restraints, and motorcycle helmets.
This week we proudly salute the Nation's EMS personnel and gratefully acknowledge their outstanding contributions to the health and safety of their fellow Americans.
The Congress, by House Joint Resolution 109, has designated the weeks beginning May 12, 1991, and May 10, 1992, as ''Emergency Medical Services Week'' and has authorized and requested the President to issue a proclamation in observance of these occasions.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week of May 12 through May 18, 1991, and the week of May 10 through May 16, 1992, as Emergency Medical Services Week. I call upon all Americans to observe this week with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6294
03 CFR Proclamation 6294 of May 17, 1991
Proclamation 6294 of May 17, 1991
03 CFR National Maritime Day, 1991
By the President of the United States of America
A Proclamation
Members of the American merchant marine carry on a long and distinguished tradition of service to our country. In addition to promoting the economic development of the United States through trade and commerce, our merchant seafarers have also provided vital support to our Armed Forces during times of conflict.
America's merchant sailors first proved their courage and mettle -- and their value in military operations -- during the Revolutionary War, when commercial vessels supplemented the 34 ships of the Continental Navy. These merchant vessels virtually immobilized enemy shipping and, in so doing, hastened the end of the war and the beginning of American Independence. During World War II, more than 6,000 of this Nation's civilian seafarers lost their lives as they helped to transport troops and to maintain supply lines to U.S. and Allied forces around the world. Today we are proud to salute the brave merchant mariners who served this Nation during that epic conflict.
Recent events have fostered renewed pride in America's merchant seafarers: providing essential support for Operations Desert Shield and Desert Storm, these individuals played a key role in the liberation of Kuwait. More than 90 percent of the materiel needed by our troops was transported by sea, and merchant vessels carried a significant portion of these goods. In addition to the merchant mariners who served on commercial ships during Operations Desert Shield and Desert Storm, more than 3,000 civilian sailors manned the Ready Reserve Force vessels that are maintained by the Department of Transportation for such contingencies.
The recent coalition victory in the Persian Gulf has demonstrated, once again, the importance of the American merchant marine to maintaining an adequate and reliable sea lift capacity for the United States. It has also underscored the patriotism and the devotion to duty shared by generations of U.S. merchant mariners. On this occasion, we gladly salute our Nation's civilian seafarers, our port terminal operators, and all those who serve in our vital maritime industries.
In recognition of the importance of the U.S. merchant marine, the Congress, by joint resolution approved May 20, 1933, has designated May 22 of each year as ''National Maritime Day'' and has authorized and requested the President to issue annually a proclamation calling for its appropriate observance. This date was chosen to commemorate the day in 1819 when the SS SAVANNAH left Savannah, Georgia, on the first transatlantic steamship voyage.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim May 22, 1991, as National Maritime Day. I encourage all Americans to observe this day by displaying the flag of the United States at their homes and other suitable places, and I request that all ships sailing under the American flag dress ship on that day.
IN WITNESS WHEREOF, I have hereunto set my hand this 17 day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6295
03 CFR Proclamation 6295 of May 17, 1991
Proclamation 6295 of May 17, 1991
03 CFR National Huntington's Disease Awareness Month, 1991
By the President of the United States of America
A Proclamation
Appearing without warning, Huntington's disease is a hereditary, progressive, neurodegenerative disorder that gradually robs its victims of their intellect, their emotional well-being, and their control of movement. The Department of Health and Human Services reports that approximately 25,000 people in the United States have this disease, and that another 125,000 are considered at risk of developing it. Each child of an affected parent has a chance of inheriting the Huntington's gene and developing the disease.
The onset of Huntington's disease varies, usually striking after the age of 30, although signs of the disease can appear in children. However, the effects are always tragic: as the disease progresses, its victims suffer increasingly from such symptoms as slurred speech, dementia, and writhing movements known as chorea. Because victims in the later stages of Huntington's disease invariably require total personal care, affected families often bear heavy financial costs in addition to the heartache of watching a mother, father, sibling, or child slowly deteriorate.
Fortunately, however, years of research have helped to increase our understanding of Huntington's disease. Thanks to advances in molecular genetics, individuals at risk can now undergo testing to determine whether they carry a genetic marker or ''signpost'' for the Huntington's disease gene. Today researchers across the country, supported primarily by the National Institute of Neurological Disorders and Stroke, are continuing their efforts to identify the exact location of this gene. Once the gene is located, they will be able to devise new medical treatments for Huntington's disease and, we hope, ultimately find a cure.
To enhance public awareness of Huntington's disease and to underscore our concern for its victims, the Congress, by Senate Joint Resolution 127, has designated May 1991 as ''National Huntington's Disease Awareness Month'' and has authorized and requested the President to issue a proclamation in observance of this month.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the month of May 1991 as National Huntington's Disease Awareness Month. I encourage all Americans to observe this month with appropriate programs and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this seventeenth day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6296
03 CFR Proclamation 6296 of May 17, 1991
Proclamation 6296 of May 17, 1991
03 CFR National Defense Transportation Day and National Transportation Week, 1991
By the President of the United States of America
A Proclamation
Our Nation's transportation system has not only enabled the American people to enjoy unparalleled mobility, it has also enabled us to benefit from a high degree of economic prosperity and military preparedness. Facilitating the safe, efficient movement of workers to jobs and goods to markets, our transportation system is vital to the Nation's economic productivity and competitiveness. Allowing for the prompt, large-scale deployment of manpower and equipment, it also ensures our ability to respond effectively to national emergencies.
The recent war in the Persian Gulf underscored both the importance and the effectiveness of America's transportation system. Working with government agencies and with various carriers, thousands of civilians made a substantial contribution to the mobilization of our Armed Forces during Operations Desert Shield and Desert Storm. For example, our oceangoing Ready Reserve Force of ships and our Civil Reserve Air Fleet of commercial airline aircraft were called upon for the first time. At the request of the Department of Defense, the Department of Transportation activated more than 70 Ready Reserve Fleet ships, crewed by U.S. merchant seamen, to assist in the delivery of supplies and equipment to our troops. Under the Civil Reserve Air Fleet program, 26 commercial air carriers made 3,800 flights, carrying some 382,000 people and 163,000 tons of equipment and supplies. Throughout the conflict in the Gulf, our national highway and rail systems likewise provided timely delivery of materials to airports and seaports -- including more than 25,000 rail carloads of military equipment and munitions.
As much as we depend on a safe, convenient, and effective transportation system, such a transportation system depends on a sound infrastructure -- a network of well-built and well-maintained roads, bridges, airports, seaports, and railroad facilities. Our National Defense Transportation Policy, issued last year, has been designed with this fact in mind. Through this Policy -- and through our proposed Surface Transportation Assistance Act of 1991 -- we will strengthen our investment in the Nation's transportation infrastructure. Wise investment in maintaining and improving this infrastructure will help to create jobs while upgrading the safety and convenience of our surface, air, and water transportation.
Today we are also working to restructure our transportation system to give State and local governments the flexibility and the tools that they need to meet critical transportation requirements close to home. Achieving these and other goals outlined in our National Transportation Policy will put America well on the way to a secure and prosperous future in our increasingly complex and competitive world.
In recognition of both the importance of transportation and the millions of Americans who work to meet our transportation needs, the Congress, by joint resolution approved May 16, 1957 (36 U.S.C. 160), has requested that the third Friday in May of each year be designated as ''National Defense Transportation Day'' and, by joint resolution approved May 14, 1962 (36 U.S.C. 166), that the week in which that Friday falls be proclaimed ''National Transportation Week.''
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim Friday, May 17, 1991, as National Defense Transportation Day and the week of May 12 through May 18, 1991, as National Transportation Week. I urge all Americans to observe these occasions with appropriate ceremonies that will give due recognition to the individuals and organizations that build, maintain, and safeguard our Nation's transportation system.
IN WITNESS WHEREOF, I have hereunto set my hand this 17 day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks on signing Proclamation 6296, see the Weekly Compilation of Presidential Documents (vol. 27, p. 616).
03 CFR Proc. 6297
03 CFR Proclamation 6297 of May 20, 1991
Proclamation 6297 of May 20, 1991
03 CFR National Foster Care Month, 1991
By the President of the United States of America
A Proclamation
No institution is more important to society than the family. Parents not only have primary responsibility for the physical care of their children, they also have the greatest influence in shaping their character. It is within the inimitable shelter of the family that children first learn the lessons of love and commitment, personal responsibility, and civic duty.
Tragically, some families are unable to provide a minimally acceptable level of care for their children, resulting in the need for temporary or even permanent alternative placement for them. Foster families are the resource used most frequently to provide the loving guardianship and guidance that these unfortunate children need and deserve.
Those Americans who open their hearts and their homes to foster children are making a significant difference in the lives of troubled children and families. Foster parents often provide temporary care and protection for children with complex needs -- children who might be physically or mentally handicapped or suffering from physical or emotional abuse -- while child welfare agencies work to help the biological family gain stability and strength. In some cases, foster parents may choose to adopt the youngsters in their care when a permanent home is needed.
National Foster Care Month gives all Americans an opportunity to reflect on the importance of strong families to the future of every child and to the future of our country. It reminds each of us -- parents, public officials, religious and community leaders alike -- of our responsibility to identify the forces that erode the strength of the family and to develop ways to overcome them. For example, the Department of Health and Human Services reports that many of the problems faced by foster children today stem directly from their parents' substance abuse. Thus, our observance of National Foster Care Month should renew our resolve to win the war against drugs.
This month also provides a special opportunity to recognize the dedication and generosity that foster families and professionals working in the field of foster care demonstrate throughout the year. In the United States more than 250,000 licensed foster families work together with social service providers, law enforcement officials, and others to assist troubled children and families. Their contributions to our communities and to our Nation are invaluable.
The Congress, by House Joint Resolution 154, has designated the month of May 1991 as ''National Foster Care Month'' and has authorized and requested the President to issue a proclamation in observance of this month.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the month of May 1991 as National Foster Care Month. I call upon all Americans to observe this month with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6298
03 CFR Proclamation 6298 of May 21, 1991
Proclamation 6298 of May 21, 1991
03 CFR National Desert Storm Reservists Day, 1991
By the President of the United States of America
A Proclamation
On this occasion we gratefully salute the members of the National Guard and Reserve forces of the United States -- dedicated and highly trained men and women who played a major role in the success of Operation Desert Shield/Desert Storm. Whether they served directly in the Persian Gulf or on military bases in the United States and elsewhere around the world, as members of our Nation's Total Force, these National Guardsmen and reservists made a vital contribution toward the liberation of Kuwait.
During the course of the war in the Persian Gulf, more than 228,000 members of the Ready Reserve were ordered to active duty. Thousands more volunteered in advance of being called to support the coalition effort. Members of the Army National Guard, the Army Reserve, the Naval Reserve, the Marine Corps Reserve, the Air National Guard, the Air Force Reserve, and the Coast Guard Reserve -- these men and women were trained and ready to do their jobs. As they have done for all conflicts since colonial times, guardsmen and reservists responded quickly to the call. They promptly assumed a variety of combat missions such as armor, artillery, tactical fighter, tactical reconnaissance, and minesweeping. Their support missions included transportation, medical, airlift, service/supply, civil affairs, intelligence, military police, and communications.
When called to active duty, members of the Ready Reserve were suddenly required to leave behind their families and their careers. As we thank our Desert Storm reservists for the many sacrifices that they have made in behalf of our country, it is fitting that we also honor their loved ones. They too have shown the extraordinary degree of patriotism and courage that we have come to expect of the Nation's military families. National Guard and Reserve units worked in close cooperation with the Active Services to develop a broad-based family support network to assist these new military dependents.
The Nation's employers, educators, and other institutions throughout the private sector have provided strong support and assistance to their reservist employees and students who were called to duty on short notice. The National Committee for Employer Support of the Guard and Reserve, a 4,000-member network of business and civic leader volunteers, has put forth special efforts to help guardsmen and reservists, as well as their employers, to understand their job rights and responsibilities.
In recognition of their vital role in the liberation of Kuwait, the Congress, by Senate Joint Resolution 134, has designated May 22, 1991, as ''National Desert Storm Reservists Day'' and has authorized and requested the President to issue a proclamation in observance of this day.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim May 22, 1991, as National Desert Storm Reservists Day. I call upon all Americans to observe this day with appropriate ceremonies and activities in honor of the courageous men and women of the United States Ready Reserve.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-first day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6299
03 CFR Proclamation 6299 of May 23, 1991
Proclamation 6299 of May 23, 1991
03 CFR Week for the National Observance of the 50th Anniversary of World War II
By the President of the United States of America
A Proclamation
When the United States entered World War II half a century ago, it became engaged in a struggle for the fate of millions of people -- and for the future of freedom on Earth. During the period that commemorates the 50th anniversary of this conflict, we do well to study its lessons and to honor all of those Americans who helped to achieve the Allied victory.
Following America's entry into World War II, President Franklin Roosevelt declared that we fought
That unwavering sense of purpose would characterize the actions of all Americans, both on the home front and on the field of battle, as they rallied to defend the cause of freedom.
President Roosevelt aptly described World War II as ''the most tremendous undertaking in American history.'' In homes, schools, and churches across the Nation, on our farms and in our factories, citizens of every age and every walk of life labored and sacrificed to support the Allied military effort. From the Aleutian Islands to the Coral Sea, from the shores of northwest Africa to Anzio, Normandy, and the Rhineland, members of our Armed Forces braved the horrors of battle to defend the lives and liberty of others. Hundreds of thousands of these heroes gave ''the last full measure of devotion'' in service to our country, and we will never forget them.
Six long years after the war first began, the Allies secured the unconditional surrender of Nazi Germany and Imperial Japan. President Truman noted that the Allied triumph was
Those words are still true today.
We live in a world transformed by World War II. The Allied victory affirmed America's leadership in global affairs, and it led to the formation of the United Nations as a vehicle for promoting international peace and security. Moreover, it contained what President Truman called a ''promise to people everywhere who join us in the love of freedom'' -- a promise that we have begun to see fulfilled with the emergence of democratic governments around the world and with the movement toward a Europe whole and free.
This week, let us remember in prayer all those heroes who gave their lives for the universal cause of freedom during World War II. Let us honor the World War II veterans who are with us today, especially the infirm and the hospitalized, and let us salute the millions of civilians who rallied in support of their efforts. Most important, let us resolve to learn from the past, so that we too might be faithful and effective guardians of liberty.
The Congress, by Public Law 101-491, has designated the week of June 2 through June 8, 1991, as a ''Week for the National Observance of the 50th Anniversary of World War II'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week of June 2 through June 8, 1991, as a Week for the National Observance of the 50th Anniversary of World War II. I call upon all Americans to observe this week with appropriate programs, ceremonies, and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this 23 day of May, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6300
03 CFR Proclamation 6300 of June 3, 1991
Proclamation 6300 of June 3, 1991
03 CFR Flag Day and National Flag Week, 1991
By the President of the United States of America
A Proclamation
We call her ''Old Glory,'' but the splendor of our flag is ever new, and the principles for which she stands are timeless. When adopted by the Continental Congress on June 14, 1777, our flag became the symbol of a Nation that was founded on the conviction ''that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.'' Throughout our Nation's history, brave and selfless Americans have labored and sacrificed to defend these ideals, and in every generation they have given renewed meaning to our flag.
Earlier in this century President Woodrow Wilson noted that the American flag ''is the embodiment not of a sentiment but of a history . . . .'' Indeed, this is what sets the flag apart from other American symbols -- no other standard has been carried into battle by generations of American heroes; no other banner recalls the extraordinary achievements of our farmers and workers; and no other emblem symbolizes to more people what America means to the world. For millions of people around the globe, the Stars and Stripes has been a symbol of freedom, strength, and opportunity -- a sign of safe haven and hope for the future. For countless others, it has been a sign of help and comfort -- a symbol of the traditional generosity and compassion of the American people toward the poor, the hungry, and the dispossessed.
Although our annual observance of Flag Day is rich in emotion, it is not an exercise in mere sentimentalism. It is a day of proud yet meaningful reflection on our national experience and purpose -- an occasion made all the more significant this year by the 200th anniversary of our Bill of Rights and by the outstanding performance of our troops in the liberation of Kuwait.
To commemorate the adoption of our flag, the Congress, by a joint resolution approved August 3, 1949 (63 Stat. 492), designated June 14 of each year as Flag Day and requested the President to issue an annual proclamation calling for its observance and for the display of the flag of the United States on all government buildings. The Congress also requested the President, by joint resolution approved June 9, 1966 (80 Stat. 194), to issue annually a proclamation designating the week in which June 14 occurs as National Flag Week and calling upon all citizens of the United States to display the flag during that week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim June 14, 1991, as Flag Day, and the week beginning June 9, 1991, as National Flag Week. I direct the appropriate officials of the government to display the flag of the United States on all government buildings during that week. I urge all Americans to observe Flag Day, June 14, and Flag Week by flying the Stars and Stripes from their homes and other suitable places.
I also urge the American people to celebrate those days from Flag Day through Independence Day, also set aside by the Congress (89 Stat. 211) as a time to honor America, by having public gatherings and activities at which they can honor their country in an appropriate manner, including publicly reciting the Pledge of Allegiance to the Flag of the United States of America.
IN WITNESS WHEREOF, I have hereunto set my hand this third day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6301
03 CFR Proclamation 6301 of June 7, 1991
Proclamation 6301 of June 7, 1991
03 CFR Establishment of Programs for Special Import Quotas on Upland Cotton and Modification of the Tariff-Rate Quota on Imported Sugars, Syrups, and Molasses
By the President of the United States of America
A Proclamation
1. Section 103B(a)(5)(F) of the Agricultural Act of 1949 (the 1949 Act), as added by section 501 of the Food, Agriculture, Conservation, and Trade Act of 1990 (the 1990 Act) (7 U.S.C. 1444-2(a)(5)(F)), requires the President to establish an import quota program which shall provide that, during the period beginning August 1, 1991, and ending July 31, 1996, whenever the Secretary of Agriculture determines and announces that for any consecutive 10-week period, the Friday through Thursday average price quotation for the lowest-priced United States growth, as quoted for Middling (M) one and three-thirty-seconds inch cotton, delivered C.I.F. Northern Europe, adjusted for the value of marketing certificates issued to domestic users or exporters for certain documented sales, exceeds the Northern Europe price by more than 1.25 cents per pound, there shall immediately be in effect a special limited global import quota equal to 1 week's consumption of upland cotton by domestic mills at the seasonally adjusted average rate of the most recent 3 months for which data are available. Section 103B(a)(5)(F) further provides that such quota shall apply to upland cotton purchased not later than 90 days after the date of the Secretary's announcement and entered into the United States not later than 180 days after such date and that a special quota period may be established that overlaps any existing quota period, except that a special quota period may not be established under this program if a special quota period has been established under subsection (n) of section 103B.
2. Section 103B(n) of the 1949 Act, as added by section 501 of the 1990 Act (7 U.S.C. 1444-2(n)), requires the President to establish an import quota program which shall provide that whenever the Secretary of Agriculture determines and announces that the average price of the base quality of upland cotton, as determined by the Secretary, in designated spot markets for a month exceeded 130 percent of the average price of such quality of cotton in such markets for the preceding 36 months there shall immediately be in effect a special limited global import quota equal to 21 days of domestic mill consumption of upland cotton at the seasonally adjusted average rate of the most recent 3 months for which data are available; provided that if a special quota had been established under this program during the preceding 12 months, the quantity of the quota next established shall be the smaller of 21 days of domestic mill consumption or the quantity required to increase the supply to 130 percent of the demand. Section 103B(n) further provides that such a special quota shall remain in effect for a 90-day period and that a special quota period may not be established that overlaps an existing quota period or a special quota period established under subsection (a)(5)(F) of section 103B.
3. I find that the Congress intended the special import quotas required by section 103B of the 1949 Act, as amended, to permit the importation of quantities of upland cotton in addition to any quantities permitted to be imported under any quota on imports of upland cotton established pursuant to the provisions of section 22 of the Agricultural Adjustment Act of 1933, as amended (7 U.S.C. 624).
4. By Proclamation No. 6179 of September 13, 1990 (55 FR 38293), the President modified, effective October 1, 1990, the rates of duty and quota limitations applicable to certain imported sugars, syrups, and molasses and, inter alia, provided for certain licensing programs for the importation of raw cane sugar described in subheading 1701.11.02 of the Harmonized Tariff Schedule of the United States (HTS) to be used for the production of certain polyhydric alcohols or to be refined and re-exported in refined form or in sugar-containing products.
5. Taking into account the factors cited in Proclamation No. 6179, and in order to alleviate an unintended hardship which may result to participants in the licensing programs authorized thereby with respect to the time limit for filing certain claims for the refund, as drawback, of customs duties, and in order to correct a technical error that was made in incorporating such tariff modifications in the HTS, I find it appropriate to modify further the provisions of the HTS modified by Proclamation No. 6179.
6. Section 604 of the Trade Act of 1974, as amended (19 U.S.C. 2483), requires the President to embody in the HTS the substance of the relevant provisions of that Act, and of other acts affecting import treatment, and actions taken thereunder, including the removal, modification, continuance, or imposition of any import restriction.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States, including but not limited to the provisions of section 103B of the 1949 Act, as added by section 501 of the 1990 Act, additional U.S. note 2 to chapter 17 of the HTS, and section 604 of the Trade Act of 1974, do hereby proclaim:
(1) In order to establish special import quota programs pursuant to the provisions of subsections (a)(5)(F) and (n) of section 103B of the 1949 Act, as amended, subchapter III of chapter 99 of the HTS is hereby modified by adding U.S. note 6 as provided for in Annex I to this proclamation.
(2) The Secretary of Agriculture and the Secretary of the Treasury may promulgate such regulations as are necessary or appropriate to carry out the special import quota programs established by paragraph (1).
(3) Subheadings 9903.52.00 through 9903.52.20 are inserted in subchapter III of chapter 99 of the HTS, as provided in Annex I to this proclamation, and shall be effective with respect to articles entered, or withdrawn from warehouse for consumption, as of the dates and under the terms set forth in Annex I.
(4) Additional U.S. note 3 to chapter 17 of the HTS and subheading 1701.91 of the HTS are modified as provided in Annex II to this proclamation.
(5) The provisions of this proclamation shall become effective on the day following the date of signature.
(6) Those provisions of proclamation No. 6179 of September 13, 1990, which are inconsistent with the provisions of Annex II of this proclamation are hereby superseded to the extent of such inconsistency.
IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
ANNEX I
MODIFICATIONS TO THE HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES WITH RESPECT TO SPECIAL IMPORT QUOTAS FOR UPLAND COTTON
1. The following new U.S. note is inserted in numerical sequence in subchapter III of chapter 99 of the Harmonized Tariff Schedule of the United States:
''6. Special limited global import quotas for upland cotton. -- The provisions of this note apply beginning August 1, 1991, to imports of upland cotton as provided in subheadings 9903.52.00 through 9903.52.20.
''(a) Special Upland Cotton Import Quota Based on Northern Europe
Prices. --
''(i) Whenever the Secretary of Agriculture determines and
announces that for any consecutive 10-week period, the Friday through Thursday average price quotation for the lowest-priced United States growth, as quoted for Middling one and three-thirty-seconds inch cotton, delivered C.I.F. Northern Europe, adjusted for the value of any certificates issued under section 103B(a)(5)(E) of the Agricultural Act of 1949, as amended, exceeds the Friday through Thursday average price of the five lowest-priced growths of upland cotton, as quoted for Middling one and three-thirty-seconds inch cotton, delivered C.I.F. Northern Europe (Northern Europe price) by more than 1.25 cents per pound, there shall be in effect, as of the effective date of such announcement, a special limited global import quota equal to 1 week's consumption of upland cotton by domestic mills at the seasonally adjusted average rate of the most recent 3 months for which data are available. During the period when both a price quotation for cotton for shipment no later than August/September of the current calendar year (current shipment price) and a price quotation for cotton for shipment no earlier than October/November of the current calendar year (forward shipment price) are available for such growths, the current shipment price shall be used. An announcement under this clause shall be known as a Special Cotton Quota Announcement.
''(ii) Application. -- The quota shall apply to upland cotton
purchased not later than 90 days after the effective date of the Secretary's announcement under clause (i) and entered into the United States not later than 180 days after such date.
''(iii) Overlap. -- A special quota period may be established
that overlaps any existing quota period if required by clause (i), except that a special quota period may not be established under this paragraph if a special quota period has been established under paragraph (b) of this note.
''(iv) The Secretary of Agriculture shall inform the Secretary
of the Treasury of the establishment of any special import quota under this paragraph and shall file a notice of such quota with the Federal Register.
''(b) Special Upland Cotton Import Quota Based on Spot Market
Prices. --
''(i) Whenever the Secretary of Agriculture determines and
announces that the average price of the base quality of upland cotton, as determined by the Secretary, in the designated spot markets for a month exceeded 130 percent of the average price of such quality of cotton in such markets for the preceding 36 months, there shall immediately be in effect a special limited global import quota equal to 21 days of domestic mill consumption of upland cotton at the seasonally adjusted average rate of the most recent 3 months for which data are available. An announcement under this clause shall be known as a Special Limited Global Import Quota Announcement.
''(ii) Quantity if prior quota. -- If a special quota has been
established under this paragraph during the preceding 12 months, the quantity of the quota next established under this paragraph shall be the smaller of 21 days of domestic mill consumption, calculated as set forth in clause (i), or the quantity required to increase the supply to 130 percent of the demand.
''(iii) Definitions. -- As used in clause (ii): (A) Supply. -- The term 'supply' means, using the latest
official data of the Bureau of the Census, the Department of Agriculture, and the Department of the Treasury --
(I) the carry-over of upland cotton at the beginning of the
marketing year (adjusted to 480-pound bales) in which the special quota is established; plus
(II) production of the current crop; plus
(III) imports to the latest date available during the
marketing year.
(B) Demand. -- The term 'demand' means --
(I) the average seasonally adjusted annual rate of domestic
mill consumption in the most recent 3 months for which data are available; plus
(II) the larger of --
(aa) average exports of upland cotton during the preceding 6
marketing years; or
(bb) cumulative exports of upland cotton plus outstanding
export sales for the marketing year in which the special quota is established.
''(iv) Quota entry period. -- When a special quota is
established under this paragraph, cotton may be entered under the quota during the 90-day period beginning on the effective date of the Secretary of Agriculture's announcement of such quota.
''(v) No overlap. -- Notwithstanding clauses (i) through (iv), a
special quota period may not be established under this paragraph that overlaps an existing quota period established under this paragraph or a special quota period established under paragraph (a) of this note.
''(vi) The Secretary of Agriculture shall inform the Secretary
of the Treasury of the establishment of any special import quota under this paragraph and shall file a notice of such quota with the Federal Register. ''.
2. The following new provisions are inserted in numerical sequence in subchapter III of chapter 99 of the HTS, with the language inserted in the columns entitled ''Heading/Subheading'', ''Article Description'', and ''Quota Quantity'', respectively:
ANNEX II
FURTHER MODIFICATIONS TO THE HARMONIZED TARIFF SCHEDULE OF THE UNITED STATES WITH RESPECT TO THE TARIFF-RATE QUOTA FOR IMPORTED SUGARS, SYRUPS AND MOLASSES
1. The final sentence of paragraph (a)(i) of additional U.S. note 3 to chapter 17 of the HTS is modified to read as follows:
''Such total amount shall consist of (1) a base quota amount, (2)
a quota adjustment amount, and (3) an amount reserved for the importation of specialty sugars as defined by the United States Trade Representative, to be allocated by the United States Trade Representative.''.
2. The first sentence of paragraph (b)(iii) of additional U.S. note 3 to chapter 17 of the HTS is modified by striking ''paragraph'' and inserting ''note''.
3. The first sentence of paragraph (c)(ii) of additional U.S. note 3 to chapter 17 of the HTS is modified to read as follows:
''A drawback entry and all documents necessary to complete a
drawback claim, including those issued by one Customs officer to another, with respect to the refund of any duties imposed under subheadings 1701.11.03, 1701.12.02, 1701.91.22, 1701.99.02, 1702.90.32, 1806.10.42, and 2106.90.12, shall be filed or applied for, as applicable, within 90 days after the date of exportation of the articles on which drawback is claimed, except that any landing certificate required by regulations issued by the United States Customs Service shall be filed within the time limit prescribed therein.''.
4. The following new superior text is inserted in chapter 17 of the HTS immediately below subheading 1701.91 in the column entitled ''Article Description'' (and bracketed matter is included to assist in the understanding of the proclaimed modification):
5. The article descriptions of subheadings 1701.91.21 and 1701.91.22 of the HTS are each stricken and are reinserted at the level of indentation immediately subordinate to the superior text inserted in the HTS by paragraph (3) above.
03 CFR Proc. 6302
03 CFR Proclamation 6302 of June 10, 1991
Proclamation 6302 of June 10, 1991
03 CFR Father's Day, 1991
By the President of the United States of America
A Proclamation
During the past few months, as the United States has welcomed home its Persian Gulf veterans, we have spoken frequently of heroes. It is a name we give to individuals of great faith and courage, to those who have inspired us by their selflessness and generosity and by their extraordinary devotion to duty. Today we honor a very special kind of hero: our Nation's dads.
Being a good father begins with unconditional love and a lifelong commitment to others. Yet it also requires virtues that we associate with more celebrated heroes -- virtues such as strength, courage, and perseverance. Day after day, a father labors and sacrifices to protect and to provide for his family. Although his love might often go unspoken, it is revealed in countless other ways: in the long hours of work that are devoted to meeting the material needs of his children; in many late nights of quiet planning and worry; and in his constant efforts to teach, encourage, discipline, and guide.
Between the daily demands and the everyday frustrations of parenting, a father might not feel like a hero, but in the eyes of his children he is very, very special. Youngsters treasure their father's attention and affection, and his presence alone gives them a warm sense of security and reassurance. In him they have a beloved champion and friend.
While many heroes of youth are forgotten over time, a loving and responsible father is a lifelong role model for his children. His lessons have great and lasting value because they center around the things that give our lives dignity and meaning: love and faith, service and self-sacrifice.
No medal could ever convey all of the honor and thanks that are due to our Nation's dads; thus, on this Father's Day, let us pray that God will reward them with His choicest blessings. And whether we do so in person, across the miles, or in loving memory, let each of us remember our own father with renewed appreciation and respect.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, in accordance with a joint resolution of the Congress approved April 24, 1972 (36 U.S.C. 142a), do hereby proclaim Sunday, June 16, as Father's Day. I urge all Americans to observe that day with appropriate ceremonies as a mark of appreciation and abiding affection for their fathers. I direct government officials to display the flag of the United States on all Federal Government buildings, and I encourage all Americans to display the flag at their homes and other suitable places on that day.
IN WITNESS WHEREOF, I have hereunto set my hand this tenth day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6303
03 CFR Proclamation 6303 of June 11, 1991
Proclamation 6303 of June 11, 1991
03 CFR National Scleroderma Awareness Week, 1991
By the President of the United States of America
A Proclamation
Scleroderma, which literally means ''hard skin,'' is a connective tissue disorder in which excessive amounts of the protein collagen accumulate in the skin. In addition to the skin, scleroderma affects small blood vessels, muscles, and joints. It may also damage internal organs such as the esophagus, lungs, kidneys, and heart.
Although scleroderma can strike men and women of any age, it occurs most often in women during their childbearing years. The disease is often painful, and it may cause disfigurement, disability, and even death. The impact on victims and their families -- in terms of both physical and emotional suffering -- is enormous.
Fortunately, progress is being made in determining the cause of scleroderma and in developing more effective treatments for the disease. Researchers have developed an animal model that will help them to understand more about the nature and the progression of scleroderma. They have also made an important finding in the discovery of abnormalities in collagen-producing cells, known as fibroblasts, among scleroderma victims. Furthermore, they have found that treatment with specific agents, such as d-penicillamine, may retard the hardening of collagen in the skin.
As is the case with any other disease, it is very important to diagnose scleroderma in its early stages. Timely intervention, coupled with sound treatment, can improve the quality of life enjoyed by people with scleroderma until research yields a cure.
To enhance public awareness of scleroderma, the Congress, by House Joint Resolution 219, has designated the week beginning June 9, 1991, as ''National Scleroderma Awareness Week'' and has authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the week beginning June 9, 1991, as National Scleroderma Awareness Week. I encourage the people of the United States to observe this week with appropriate programs and activities that will enhance their understanding of scleroderma and the need for continued research.
IN WITNESS WHEREOF, I have hereunto set my hand this eleventh day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6304
03 CFR Proclamation 6304 of June 11, 1991
Proclamation 6304 of June 11, 1991
03 CFR Independence Day, 1991
By the President of the United States of America
A Proclamation
On July 4, 1776, with a firm reliance on the protection of Divine Providence, our Nation's Founders boldly declared America's Independence and affirmed the truth ''that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.'' They did so knowing that they risked nothing less than their lives, their fortunes, and their sacred honor. On this occasion, we celebrate that profound act of faith and courage and give thanks for the rich legacy of freedom that this country has enjoyed ever since.
That legacy has enabled us to enjoy unparalleled levels of security and prosperity, and it has inspired millions of people around the world in their own struggles for liberty and self-government. Thus, every picnic and parade, every backyard barbecue and public display of fireworks that makes the Fourth of July a favorite summer holiday carries deeper symbolism and meaning. Each resonates with the singular joy of a free people.
This year we are particularly grateful for the blessings of liberty because we have been reminded of the price that many brave and selfless individuals have been willing to pay to secure them. Just months ago, when forces led by a brutal tyrant invaded a small, defenseless country -- raping, pillaging, and threatening not only the stability of an entire region but also vital interests of all freedom-loving peoples -- thousands of courageous Americans answered the call of duty. Our celebration of Independence Day, 1991, is dedicated in a special way to them -- to the regulars, reservists, National Guardsmen, and members of the United States Merchant Marine who helped to liberate Kuwait.
Of course, as we honor our Persian Gulf veterans, we also remember in prayer each of their comrades who made the ultimate sacrifice in service to our country. We salute with great pride and gratitude the military personnel who offered vital support for our mission from bases here at home and around the world, and we pay due tribute to all those who have served in the United States Armed Forces.
The Americans who fought tyranny and lawlessness in the Persian Gulf have upheld, once again, the principles that were first affirmed on these shores 215 years ago when our Nation's Founders elected ''between submission or the sword.'' On this Independence Day -- a day marked by triumphant homecomings and by the promise of a safer, more peaceful world -- it is fitting that we recall the words that Thomas Jefferson wrote shortly before his death on July 4, 1826:
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby ask all Americans to join in celebrating this 215th anniversary of our Nation's Independence with appropriate ceremonies and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this eleventh day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's radio address to the nation on the observance of the Fourth of July, see the Weekly Compilation of Presidential Documents (vol. 27, p. 889).
03 CFR Proc. 6305
03 CFR Proclamation 6305 of June 12, 1991
Proclamation 6305 of June 12, 1991
03 CFR Pediatric AIDS Awareness Week, 1991
By the President of the United States of America
A Proclamation
Acquired Immune Deficiency Syndrome (AIDS) is always tragic, but especially so among children. According to the U.S. Department of Health and Human Services, 2,800 cases of pediatric AIDS have been reported in this country since 1982. That figure is expected to rise to between 6,000 and 20,000 in the next few years. AIDS is already the ninth leading cause of death among children between the ages of one and four, and it is expected that, during the 1990s, the disease will become an even more significant cause of death among children.
Women who are infected with the human immuno-deficiency (HIV) virus can transmit the virus to their infants during pregnancy or at birth. Currently, about 84 percent of the AIDS cases in children result from perinatal transmission. The outlook for HIV-infected babies is grim. Almost half of these children develop AIDS in their first year, and nearly 70 percent develop AIDS by the end of their second year. The median survival time from diagnosis is 38 months, and it is only 6 months for babies who are diagnosed with AIDS in their first year of life. Moreover, a disproportionate number of HIV-infected mothers are black or Hispanic, poor, or residents of the inner city; many of them will not survive to care for their babies.
As part of their overall fight against AIDS, researchers at the National Institutes of Health are studying ways to prevent transmission of the HIV virus from mother to infant. They are also investigating ways to diagnose the infection in babies at the earliest possible moment. The Federal Government and many private organizations throughout the United States are also working diligently to educate the public about AIDS and to discourage the behaviors that can put parents and their children at risk.
To enhance public awareness of pediatric AIDS, the Congress, by House Joint Resolution 91, has designated the week of June 10 through June 16, 1991, as ''Pediatric AIDS Awareness Week'' and authorized and requested the President to issue a proclamation in observance of this week.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby designate the week of June 10 through June 16, 1991, as Pediatric AIDS Awareness Week. I call upon health organizations, the communications media, and the people of the United States to observe this week with appropriate programs and activities.
IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
03 CFR Proc. 6306
03 CFR Proclamation 6306 of June 13, 1991
Proclamation 6306 of June 13, 1991
03 CFR Baltic Freedom Day, 1991 and 1992
By the President of the United States of America
A Proclamation
During the past year, the long struggle of the Baltic peoples to recover their freedom has been marked by both triumph and tragedy: triumph in their bold calls for liberty and independence; tragedy in the bloody events of January 1991.
The United States and, indeed, all freedom-loving nations have long denounced the infamous Molotov-Ribbentrop pact that led to the forcible incorporation of the independent Baltic States into the Soviet Union. The peoples of both the West and the Baltic States have continued to believe that the freedom of Lithuania, Latvia, and Estonia must and can be restored. Recent events suggest that our hopes have not been misplaced.
In peaceful, democratic referendums, the peoples of Estonia, Latvia, and Lithuania have asserted overwhelmingly their desire for freedom. Toward that aim, they have sought to enter into meaningful negotiations with Moscow about their status. Despite the tragic events of January 1991, which resulted in the deaths of at least 21 Lithuanians and Latvians and many more injured, a dialogue between the Baltic governments and the Soviet Union has begun. We hope that it will bear fruit, and we urge the Soviet Union to move forward with the talks.
However, the United States remains deeply concerned over the continued application of intimidation and force by Soviet authorities. Such actions are incompatible with the process of peaceful change through fair and constructive negotiations.
The United States has never and will never recognize the forcible annexation of the Baltic States by the Soviet Union. I reiterated this policy during my recent meeting with Lithuanian President Landsbergis, Estonian Prime Minister Savisaar, and Latvian Prime Minister Godmanis. This was my sixth meeting with the Baltic leadership during the past 12 months. The Administration will remain in close contact with the Baltic leadership in the months ahead.
As we commemorate ''Baltic Freedom Day,'' we reaffirm our support for the right of the Baltic peoples to live in peace and freedom.
The Congress, by Public Law 102-17, has designated June 14, 1991, and June 14, 1992, as ''Baltic Freedom Day'' and has authorized and requested the President to issue a proclamation in observance of this event.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, do hereby proclaim the days of June 14, 1991, and June 14, 1992, as Baltic Freedom Day. I call upon the people of the United States to observe these days with appropriate ceremonies and activities to reaffirm their commitment to human rights and to freedom and democracy for all oppressed peoples.
IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's remarks on signing Baltic Freedom Day, see the Weekly Compilation of Presidential Documents (vol. 27, p. 769). For the President's message to Congress transmitting the report on the restoration of the Baltic States' independence, see p. 846.
03 CFR Proc. 6307
03 CFR Proclamation 6307 of June 24, 1991
Proclamation 6307 of June 24, 1991
03 CFR Agreement on Trade Relations Between the United States of America and the Republic of Bulgaria
By the President of the United States of America
A Proclamation
1. Pursuant to the authority vested in me by the Constitution and the laws of the United States, as President of the United States of America, I, acting through duly empowered representatives, entered into negotiations with representatives of the Republic of Bulgaria to conclude an agreement on trade relations between the United States of America and the Republic of Bulgaria.
2. These negotiations were conducted in accordance with the requirements of the Trade Act of 1974 (Public Law 93-618, January 3, 1975; 88 Stat. 1978), as amended (the ''Trade Act'').
3. As a result of these negotiations, an ''Agreement on Trade Relations Between the Government of the United States of America and the Government of the Republic of Bulgaria,'' including exchanges of letters which form an integral part of the Agreement, the foregoing in English and Bulgarian, was signed on April 22, 1991, by duly empowered representatives of the two Governments and is set forth as an annex to this proclamation.
4. This Agreement conforms to the requirements relating to bilateral commercial agreements set forth in section 405(b) of the Trade Act (19 U.S.C. 2435(b)).
5. Article XVII of the Agreement provides that the Agreement shall enter into force on the date of exchange of written notices of acceptance by the two Governments.
6. Section 405(c) of the Trade Act (19 U.S.C. 2435(c)) provides that a bilateral commercial agreement providing nondiscriminatory treatment to the products of a country heretofore denied such treatment, and a proclamation implementing such agreement, shall take effect only if approved by the Congress under the provisions of that Act.
7. Section 604 of the Trade Act (19 U.S.C. 2483) authorizes the President to embody in the Harmonized Tariff Schedule of the United States the substance of the provisions of that Act, of other acts affecting import treatment, and actions taken thereunder.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States, including but not limited to sections 404, 405, and 604 of the Trade Act of 1974, as amended, do proclaim that:
(1) This proclamation shall become effective, said Agreement shall enter into force, and nondiscriminatory treatment shall be extended to the products of the Republic of Bulgaria, in accordance with the terms of said Agreement, on the date of exchange of written notices of acceptance in accordance with Article XVII of said Agreement. The United States Trade Representative shall publish notice of the effective date in the Federal Register.
(2) Effective with respect to articles entered, or withdrawn from warehouse for consumption, into the customs territory of the United States on or after the date provided in paragraph (1) of this proclamation, general note 3(b) of the Harmonized Tariff Schedule of the United States, enumerating those countries whose products are subject to duty at the rates set forth in rate of duty column 2 of the tariff schedule, is modified by striking out ''Bulgaria''.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's letter to Congress on trade with Bulgaria, see the Weekly Compilation of Presidential Documents (vol. 27, p. 841). For a statement by Press Secretary Fitzwater on the establishment of the Bulgarian-American Agriculture/Agribusiness Enterprise Fund, see p. 1022. For Press Secretary Fitzwater's statement on the Bulgarian-American Enterprise Fund, see p. 1612.
AGREEMENT ON TRADE RELATIONS BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF BULGARIA
The Government of the United States of America and the Government of the Republic of Bulgaria (hereinafter referred to collectively as ''Parties'' and individually as ''Party''),
Desiring to adopt mutually advantageous and equitable rules governing their trade and to ensure a predictable commercial environment,
Affirming that the evolution of market-based economic institutions and the strengthening of the private sector will aid the development of mutually beneficial trade relations,
Recognizing that the development of bilateral trade will contribute to better mutual understanding and cooperation, and can contribute to the general well-being of the peoples of each Party and promote respect for internationally recognized workers' rights,
Taking into account Bulgaria's membership in the International Monetary Fund and the International Bank for Reconstruction and Development and the prospects for economic reform and restructuring of the economy, and taking into account Bulgaria's request for Contracting Party status in the General Agreement on Tariffs and Trade (hereinafter referred to as ''GATT''), and Bulgaria's intention to become a Party to the European Patent Convention of October 1973,
Desiring to create a mutually beneficial framework which will foster the development and expansion of commercial ties between their respective nationals and companies,
Having agreed that economic ties are an important and necessary element in the strengthening of their bilateral relations,
Have agreed as follows:
Article I. -- Most Favored Nation and Nondiscriminatory Treatment
1. Each Party shall accord unconditionally to products originating in or exported to the territory of the other Party treatment no less favorable than that accorded to like products originating in or exported to the territory of any third country in all matters relating to:
(a) customs duties and charges of any kind imposed on or in connection with importation or exportation, including the method of levying such duties and charges;
(b) methods of payment for imports and exports, and the international transfer of such payments;
(c) rules and formalities in connection with importation and exportation, including those relating to customs clearance, transit, warehouses and transshipment;
(d) taxes and other internal charges of any kind applied directly or indirectly to imported products; and
(e) laws, regulations and requirements affecting the sale, offering for sale, purchase, transportation, distribution, storage and use of products in the domestic market.
2. Each Party shall accord to products originating in or exported to the territory of the other Party nondiscriminatory treatment with respect to the application of quantitative restrictions and the granting of licenses.
3. Each Party shall accord to imports of products and services originating in the territory of the other Party most-favored-nation treatment with respect to the availability of and access to the currency needed to pay for such imports.
4. The provisions of paragraphs 1 and 2 shall not apply to:
(a) advantages accorded by either Party by virtue of such Party's full membership in a customs union or free trade area;
(b) advantages accorded to adjacent countries for the facilitation of frontier traffic; and
(c) actions by either Party which are required or specifically permitted by the GATT (or by any joint action or decision of the Contracting Parties to the GATT) during such time as such Party is a Contracting Party to the GATT, including advantages accorded to developing countries; equivalent advantages accorded to developing countries under other multilateral agreements; and special advantages accorded by virtue of the GATT.
5. The provisions of paragraph 2 of this Article shall not apply to trade in textiles and textile products.
Article II. -- Market Access for Products and Services
1. Each Party shall administer all tariff and nontariff measures affecting trade in a manner which affords, with respect to both third country and domestic competitors, meaningful competitive opportunities for products and services of the other Party.
2. Accordingly, neither Party shall impose, directly or indirectly, on the products of the other Party imported into its territory, internal taxes or charges of any kind in excess of those applied, directly or indirectly, to like domestic products.
3. Each Party shall accord to products originating in the territory of the other Party treatment no less favorable than that accorded to like domestic products in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution, storage or use.
4. The charges and measures described in paragraphs 2 and 3 of this Article should not be applied to imported or domestic products so as to afford protection to domestic production.
5. The Parties shall ensure that technical regulations and standards are not prepared, adopted or applied with a view to creating obstacles to international trade. Furthermore, each Party shall accord products imported from the territory of the other Party treatment no less favorable than that accorded to like domestic products and to like products originating in any third country in relation to such technical regulations or standards, including conformity testing and certification.
6. The Government of the Republic of Bulgaria shall accede to the International Convention on the Harmonized Commodity Description and Coding System and shall take all necessary measures to implement such Convention with respect to the Republic of Bulgaria. The Government of the United States of America shall endeavor to provide technical assistance, as appropriate, for the implementation of such measures.
7. The Parties agree to maintain a satisfactory balance of market access opportunities, including through concessions in trade in products and services and through the satisfactory reciprocation of reductions in tariffs and nontariff barriers to trade resulting from multilateral negotiations.
Article III. -- General Obligations With Respect to Trade
1. Trade in products and services shall be effected by contracts between nationals and companies of the United States and nationals and companies of the Republic of Bulgaria concluded on the basis of nondiscrimination and in the exercise of their independent commercial judgment and on the basis of customary commercial considerations such as price, quality, availability, delivery and terms of payment.
2. Neither Party shall require or encourage nationals or companies of the United States or nationals or companies of the Republic of Bulgaria to engage in barter or countertrade transactions. Nevertheless, where nationals or companies decide to resort to barter or countertrade operations, the Parties will encourage them to furnish to each other all necessary information to facilitate the transaction.
Article IV. -- Expansion and Promotion of Trade
1. The Parties affirm their desire to expand trade in products and services consistent with the terms of this Agreement. They shall take appropriate measures to encourage and facilitate the exchange of goods and services and to secure favorable conditions for long-term development and diversification of trade between their respective nationals and companies.
2. The Parties shall take appropriate measures to encourage the expansion of commercial contacts with a view to increasing trade. In this regard, the Government of the Republic of Bulgaria expects that, during the term of this Agreement, nationals and companies of the Republic of Bulgaria shall increase their purchases of products and services from the United States, while the Government of the United States expects that the effect of the Agreement shall be to encourage increased purchases by nationals and companies of the United States of products and services from the Republic of Bulgaria. Toward this end, the Parties shall publicize this Agreement and ensure that it is made available to all interested parties.
3. Each Party shall encourage and facilitate the holding of trade promotional events such as fairs, exhibitions, missions and seminars in its territory and in the territory of the other Party. Similarly, each Party shall encourage and facilitate the participation of its respective nationals and companies in such events. Subject to the laws in force within their respective territories, the Parties agree to allow the import and re-export on a duty free basis of all articles for use in such events, provided that such articles are not sold or otherwise transferred.
Article V. -- Government Commercial Offices
1. Subject to its laws and regulations governing foreign missions, each Party shall allow government commercial offices to hire directly host-country nationals and, subject to immigration laws and procedures, third-country nationals.
2. Each Party shall ensure unhindered access of host-country nationals to government commercial offices of the other Party.
3. Each Party shall encourage the participation of its nationals and companies in the activities of the other Party's government commercial offices, especially with respect to events held on the premises of such commercial offices.
4. Each Party shall encourage and facilitate access by government commercial office personnel of the other Party to host-country officials at both the national and subnational level, and representatives of nationals and companies of the host Party.
Article VI. -- Business Facilitation
1. Each Party shall afford commercial representations of the other Party fair and equitable treatment with respect to the conduct of their operations.
2. Subject to its laws and procedures governing immigration and foreign missions, each Party shall permit the establishment within its territory of commercial representations of nationals and companies of the other Party and shall accord such representations treatment at least as favorable as that accorded to commercial representations of nationals and companies of third countries.
3. Subject to its laws and procedures governing immigration and foreign missions, each Party shall permit such commercial representations established in its territory to hire directly employees who are nationals of either Party or of third countries and to compensate such employees on terms and in a currency that is mutually agreed between the parties, consistent with such Party's minimum wage laws.
4. Each Party shall permit commercial representations of the other Party to import and use in accordance with normal commercial practices, office and other equipment, such as typewriters, photocopiers, computers and telefax machines in connection with the conduct of their activities in the territory of such Party.
5. Subject to the laws and procedures regarding foreign missions, each Party shall permit, on a nondiscriminatory basis and at market prices, commercial representations of the other Party access to and use of office space and living accommodations.
6. Subject to its laws and procedures governing immigration and foreign missions, each Party shall permit nationals and companies of the other Party to engage agents, consultants and distributors of either Party and of third countries on prices and terms mutually agreed between the parties.
7. Subject to its laws and procedures governing immigration and foreign missions, each Party shall permit nationals and companies of the other Party to serve as agents, consultants and distributors of nationals and companies of either Party and of third countries on prices and terms mutually agreed between the parties.
8. Each Party shall permit nationals and companies of the other Party to advertise their products and services (a) through direct agreement with the advertising media, including television, radio, print and billboard, and (b) by direct mail, including the use of enclosed envelopes and cards preaddressed to that national or company.
9. Each Party shall encourage direct contact, and permit direct sales, between nationals and companies of the other Party and end-users and other customers of their goods and services, and with agencies and organizations whose decisions will affect potential sales.
10. Each Party shall permit nationals and companies of the other Party to conduct market studies, either directly or by contract, within its territory. To facilitate the conduct of market research, each Party shall, upon request, make available non-confidential, non-proprietary information within its possession to nationals and companies of the other Party engaged in such efforts.
11. Each Party shall provide nondiscriminatory access to governmentally-provided products and services, including public utilities, to nationals and companies of the other Party at fair and equitable prices (and in no event at prices greater than those charged to any nationals or companies of third countries where such prices are set of controlled by the government) in connection with the operation of their commercial representations.
12. Each Party shall permit commercial representations to stock an adequate supply of samples and replacement parts for aftersales service on a non-commercial basis.
13. Neither Party shall impose measures which unreasonably impair contractual or property rights or other interests acquired within its territory by nationals and companies of the other Party.
Article VII. -- Transparency
1. Each Party shall make available publicly on a timely basis all laws, regulations, judicial decisions and administrative rulings of general application related to commercial activity, including trade, investment, taxation, banking, insurance and other financial services, transport and labor. Each Party shall make such information available in reading rooms in its own capital and shall endeavor to make such information available in the capital of the other Party.
2. Each Party shall provide nationals and companies of the other Party with access to available non-confidential, non-proprietary data on the national economy and individual sectors, including information on foreign trade.
3. Each Party shall allow nationals and companies of the other Party the opportunity, to the extent practicable, to comment on the formulation of rules and regulations which affect the conduct of business activities.
Article VIII. -- Financial Provisions Relating to Trade in Products and Services
1. Unless otherwise agreed between the parties to individual transactions, all commercial transactions between nationals and companies of the Parties shall be made in United States dollars or any other currency that may be designated from time to time by the International Monetary Fund as being a freely usable currency.
2. Neither Party shall restrict the export from its territory of convertible currencies or deposits, or instruments representative thereof, obtained in connection with trade in products and services by nationals and companies of the other Party.
3. Expenditures in the territory of a Party by nationals and companies of the other Party may be made in local currency received in an authorized manner.
4. Without derogation from paragraphs 2 or 3 of this Article, in connection with trade in products and services, each Party shall grant to nationals and companies of the other Party the better of most-favored-nation or national treatment with respect to:
(a) opening and maintaining accounts, in both local and foreign currency, and having access to funds deposited, in financial institutions located in the territory of the Party;
(b) payments, remittances and transfers of convertible currencies, or financial instruments representative thereof, between the territories of the two Parties, as well as between the territory of that Party and that of any third country;
(c) rates of exchange and related matters; and
(d) the receipt of local currency and its use for local expenses.
Article IX. -- Protection of Intellectual Property Rights
1. Each Party shall provide adequate and effective protection and enforcement for patents, trademarks, copyrights, trade secrets, and layout designs for integrated circuits as set forth in the text of a side letter attached hereto.
Article X. -- Areas for Further Economic and Technical Cooperation
1. For the purpose of further developing bilateral trade and providing for a steady increase in the exchange of products and services, both Parties shall strive to achieve mutually acceptable agreements on taxation and investment issues, including the repatriation of profits and transfer of capital.
2. The Parties shall take appropriate steps to foster economic and technical cooperation on as broad a base as possible in all fields deemed to be in their mutual interest, including with respect to statistics and standards.
3. The Parties, taking into account the growing economic significance of service industries, agree to consult on matters affecting the conduct of service business between the two countries and particular matters of mutual interest relating to individual service sectors with the objective, among others, of attaining maximum possible market access and liberalization.
Article XI. -- Import Relief Safeguards
1. The Parties agree to consult promptly at the request of either Party whenever either actual or prospective imports into the territory of one of the Parties of products originating in the territory of the other Party cause or threaten to cause or significantly contribute to market disruption. Market disruption exists within a domestic industry whenever imports of an article, like or directly competitive with an article produced by such domestic industry, are increasing rapidly, either absolutely or relatively, so as to be a significant cause of material injury, or threat thereof, to such domestic industry.
2. Determination of market disruption or threat thereof by the importing Party shall be based upon a good faith application of its laws and on an affirmative finding of relevant facts and on their examination. The importing Party, in determining whether market disruption exists, may consider, among other factors: the volume of imports of the merchandise which is the subject of the inquiry; the effect of imports of the merchandise on prices in the territory of the importing Party for like or directly competitive articles; the impact of imports of such merchandise on domestic producers of like or directly competitive articles; and evidence of disruptive pricing practices or other efforts to unfairly manage trade patterns.
3. The consultations provided for in paragraph 1 of this Article shall have the objectives of (a) presenting and examining the factors relating to such imports that may be causing or threatening to cause or significantly contributing to market disruption, and (b) finding means of preventing or remedying such market disruption. Such consultations shall be concluded within sixty days from the date of the request for such consultation, unless the Parties otherwise agree.
4. Unless a different solution is mutually agreed upon during the consultations, and not withstanding paragraphs 1 and 2 of Article I, the importing Party may (a) impose quantitative import limitations, tariff measures or any other restrictions or measures to such an extent and for such time as it deems necessary to prevent or remedy threatened or actual market disruption, and (b) take appropriate measures to ensure that imports from the territory of the other Party comply with such quantitative limitations or other restrictions. In this event, the other Party shall be free to deviate from its obligations under this Agreement with respect to substantially equivalent trade.
5. Where in the judgment of the importing Party, emergency action, which may include the existence of critical circumstances, is necessary to prevent or remedy such market disruption, the importing Party may take such action at any time and without prior consultations provided that such consultations shall be requested immediately thereafter.
6. In the selection of measures under this Article, the Parties shall endeavor to give priority to those which cause the least disturbance to the achievement of the goals of this Agreement.
7. Each Party shall ensure that its domestic procedures for determining market disruption are transparent and afford affected parties an opportunity to submit their views.
8. The Parties acknowledge that the elaboration of the market disruption safeguard provisions in this Article is without prejudice to the right of either Party to apply its laws and regulations applicable to trade in textiles and textile products and its laws and regulations applicable to unfair trade, including antidumping and countervailing duty laws.
Article XII. -- Dispute Settlement
1. Nationals and companies of either Party shall be accorded national treatment with respect to access to all courts and administrative bodies in the territory of the other Party, as plaintiffs, defendants or otherwise. They shall not claim or enjoy immunity from suit or execution of judgment, proceedings for the recognition and enforcement of arbitral awards, or other liability in the territory of the other Party with respect to commercial transactions; they also shall not claim or enjoy immunities from taxation with respect to commercial transactions, except as may be provided in other bilateral agreements.
2. The Parties encourage the adoption of arbitration for the settlement of disputes arising out of commercial transactions concluded between nationals or companies of the United States and nationals or companies of the Republic of Bulgaria. Such arbitration may be provided for by agreements in contracts between such nationals or companies, or in separate written agreements between them.
3. The parties may provide for arbitration under any internationally recognized arbitration rules, including the UNCITRAL Rules of 15 December 1976 and any modifications thereto, in which case the parties should designate an Appointing Authority under said rules in a country other than the United States or the Republic of Bulgaria.
4. Unless otherwise agreed between the parties, the parties should specify as the place of arbitration a country other than the United States or the Republic of Bulgaria, that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958.
5. Nothing in this Article shall be construed to prevent, and the Parties shall not prohibit, the parties from agreeing upon any other form of arbitration or on the law to be applied in such arbitration, or other form of dispute settlement which they mutually prefer and agree best suits their particular needs.
6. Each Party shall ensure that an effective means exists within its territory for the recognition and enforcement of arbitral awards.
Article XIII. -- National Security
The provisions of this Agreement shall not limit the right of either Party to take any action for the protection of its security interests.
Article XIV. -- Consultations
1. The Parties agree to set up a Joint Commercial Commission which will, subject to the terms of reference of its establishment, foster economic cooperation and the expansion of trade under this Agreement and review periodically the operation of this Agreement and make recommendations for achieving its objectives.
2. The Parties agree to consult promptly through appropriate channels at the request of either Party to discuss any matter concerning the interpretations or implementation of this Agreement or other relevant aspects of the relations between the Parties.
Article XV. -- Definitions
As used in this Agreement, the terms set forth below shall have the following meaning:
(a) ''company,'' means any kind of corporation, company, association, sole proprietorship, state or other enterprise, cooperative or other organization legally constituted under the laws and regulations of a Party or a political subdivision thereof, whether or not organized for pecuniary gain or privately or governmentally owned;
(b) ''commercial representation,'' means a representation of a company of a Party; and
(c) ''national,'' means a natural person who is a national of a Party under its applicable law.
Article XVI. -- General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prohibit the adoption or enforcement by a Party of:
(a) measures necessary to secure compliance with laws or regulations which are not contrary to the purposes of this Agreement;
(b) measures for the protection of intellectual property rights and the prevention of deceptive practices as set out in Article IX (and the related side letter) of this Agreement, provided that such measures shall be related to the extent of any injury suffered or the prevention of injury; or
(c) any other measure referred to in Article XX of the GATT.
2. Nothing in this Agreement limits the application of any agreement in force or which enters into force between the Parties on trade in textiles and textile products.
3. Both Parties reserve the right to deny any company the advantages of this Agreement if nationals of any third country control such a company and, in the case of a company of the other Party, that company has no substantial business activities in the territory of the other Party or is controlled by nationals of a third country with which the denying country does not maintain normal economic relations.
Article XVII. -- Entry into Force, Term, Suspension and Termination
1. This Agreement (including its side letters which are an integral part of the Agreement) shall enter into force on the date of exchange of written notices of acceptance by the two Governments and it shall remain in force as provided in paragraphs 2 and 3 of this Article.
2. (a) The initial term of this Agreement shall be three years, subject to subparagraph (b) and (c) of this paragraph.
(b) If either Party encounters or foresees a problem concerning its domestic legal authority to carry out any of its obligations under this Agreement, such Party shall request immediate consultations with the other Party. Once consultations have been requested, the other Party shall enter into such consultations as soon as possible concerning the circumstances that have arisen with a view to finding a solution to avoid action under subparagraph (c).
(c) If either Party does not have domestic legal authority to carry out its obligations under this Agreement, either Party may suspend the application of this Agreement or, with the agreement of the other Party, any part of this Agreement. In that event, the Parties will, to the fullest extent practicable and consistent with domestic law, seek to minimize disruption to existing trade relations between the two countries.
3. This Agreement shall be extended for successive terms of three years each unless either Party has given written notice to the other Party of its intent to terminate this Agreement at least 30 days prior to the expiration of the then current term.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.
DONE at Washington, D.C. on this twenty-second day of April 1991, in duplicate, in the English and Bulgarian languages, both texts being equally authentic.
03 CFR Proc. 6308
03 CFR Proclamation 6308 of June 24, 1991
Proclamation 6308 of June 24, 1991
03 CFR Agreement on Trade Relations Between the United States of America and the Mongolian People's Republic
By the President of the United States of America
A Proclamation
1. Pursuant to the authority vested in me by the Constitution and the laws of the United States, as President of the United States of America, I, acting through duly empowered representatives, entered into negotiations with representatives of the Mongolian People's Republic to conclude an agreement on trade relations between the United States of America and the Mongolian People's Republic.
2. These negotiations were conducted in accordance with the requirements of the Trade Act of 1974 (Public Law 93-618, January 3, 1975; 88 Stat. 1978), as amended (the ''Trade Act'').
3. As a result of these negotiations, an ''Agreement on Trade Relations Between the Government of the United States of America and the Government of the Mongolian People's Republic,'' including exchanges of letters which form an integral part of the Agreement, the foregoing in English and Mongolian, was signed on January 23, 1991, by duly empowered representatives of the two Governments and is set forth as an annex to this proclamation.
4. This Agreement conforms to the requirements relating to bilateral commercial agreements set forth in section 405(b) of the Trade Act (19 U.S.C. 2435(b)).
5. Article XVII of the Agreement provides that the Agreement shall enter into force on the date of exchange of written notices of acceptance by the two Governments.
6. Section 405(c) of the Trade Act (19 U.S.C. 2435(c)) provides that a bilateral commercial agreement providing nondiscriminatory treatment to the products of a country heretofore denied such treatment, and a proclamation implementing such agreement, shall take effect only if approved by the Congress under the provisions of that Act.
7. Section 604 of the Trade Act (19 U.S.C. 2483) authorizes the President to embody in the Harmonized Tariff Schedule of the United States the substance of the provisions of that Act, of other acts affecting import treatment, and actions taken thereunder.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States, including but not limited to sections 404, 405, and 604 of the Trade Act of 1974, as amended, do proclaim that:
(1) This proclamation shall become effective, said Agreement shall enter into force, and nondiscriminatory treatment shall be extended to the products of the Mongolian People's Republic, in accordance with the terms of said Agreement, on the date of exchange of written notices of acceptance in accordance with Article XVII of said Agreement. The United States Trade Representative shall publish notice of the effective date in the Federal Register.
(2) Effective with respect to articles entered, or withdrawn from warehouse for consumption, into the customs territory of the United States on or after the date provided in paragraph (1) of this proclamation, general note 3(b) of the Harmonized Tariff Schedule of the United States, enumerating those countries whose products are subject to duty at the rates set forth in rate of duty column 2 of the tariff schedule, is modified by striking out ''Mongolia''.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Editorial note: For the President's letter to Congress on trade with Mongolia, see the Weekly Compilation of Presidential Documents (vol. 27, p. 843).
AGREEMENT ON TRADE RELATIONS BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE MONGOLIAN PEOPLE'S REPUBLIC
The Government of the United States of America and the Government of the Mongolian People's Republic (hereinafter referred to collectively as ''Parties'' and individually as ''Party''),
Affirming that the evolution of market-based economic institutions and the strengthening of the private sector will aid the development of mutually beneficial trade relations,
Acknowledging that the development of trade relations and direct contact between nationals and companies of the United States and nationals and organizations of the Mongolian People's Republic will promote openness and mutual understanding,
Considering that expanded trade relations between the Parties will contribute to the general well-being of the peoples of each Party,
Recognizing that development of bilateral trade may contribute to better mutual understanding and cooperation and promote respect for internationally recognized worker rights,
Having agreed that economic ties are an important and necessary element in the strengthening of their bilateral relations,
Being convinced that an agreement on trade relations between the two Parties will best serve their mutual interests, and
Desiring to create a framework which will foster the development and expansion of commercial ties between their respective nationals, companies and organizations,
Have agreed as follows:
Article I. -- Most Favored Nation and Nondiscriminatory Treatment
1. Each Party shall accord unconditionally to products originating in or exported to the territory of the other Party treatment no less favorable than that accorded to like products originating in or exported to the territory of any third country in all matters relating to:
(a) customs duties and charges of any kind imposed on or in connection with importation or exportation, including the method of levying such duties and charges;
(b) methods of payment for imports and exports, and the international transfer of such payments;
(c) rules and formalities in connection with importation and exportation, including those relating to customs clearance, transit, warehouses and transshipment;
(d) taxes and other internal charges of any kind applied directly or indirectly to imported products; and
(e) laws, regulations and requirements affecting the sale, offering for sale, purchase, transportation, distribution, storage and use of products in the domestic market.
2. Each Party shall accord to products originating in or exported to the territory of the other Party nondiscriminatory treatment with respect to the application of quantitative restrictions and the granting of licenses.
3. Each Party shall accord to imports of products and services originating in the territory of the other Party nondiscriminatory treatment with respect to the allocation of and access to the currency needed to pay for such imports.
4. The provisions of paragraphs 1 and 2 shall not apply to:
(a) advantages accorded by either Party by virtue of such Party's full membership in a customs union or free trade area;
(b) advantages accorded to adjacent countries for the facilitation of frontier traffic;
(c) actions by either Party which are required or permitted by the General Agreement on Tariffs and Trade (the ''GATT'') (or by any joint action or decision of the Contracting Parties to the GATT) during such time as such Party is a Contracting Party to the GATT; and special advantages accorded by virtue of the GATT; and
(d) actions taken under Article XI (Market Disruption) of this Agreement.
5. The provisions of paragraph 2 of the Article shall not apply to Mongolian exports of textiles and textile products.
Article II. -- Market Access for Products and Services
1. Each Party shall administer all tariff and nontariff measures affecting trade in a manner which affords, with respect to both third country and domestic competitors, meaningful competitive opportunities for products and services of the other Party.
2. Accordingly, neither Party shall impose, directly or indirectly, on the products of the other Party imported into its territory, internal taxes or charges of any kind in excess of those applied, directly or indirectly, to like domestic products.
3. Each Party shall accord to products originating in the territory of the other Party treatment no less favorable than that accorded to like domestic products in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution, storage or use.
4. The charges and measures described in paragraphs 2 and 3 of this Article should not be applied to imported or domestic products so as to afford protection to domestic production.
5. The Parties shall ensure that technical regulations and standards are not prepared, adopted or applied with a view to creating obstacles the international trade or to protect domestic production. Furthermore, each Party shall accord products imported from the territory of the other Party treatment no less favorable than that accorded to like domestic products and to like products originating in any third country in relation to such technical regulations or standards, including conformity testing and certification.
6. The Government of the Mongolian People's Republic shall accede to the Convention Establishing the Customs Cooperation Council and the International Convention on the Harmonized Commodity Description and Coding System, and shall take all necessary measures to implement entry into force of such Conventions with respect to the Mongolian People's Republic.
Article III. -- General Obligations With Respect to Trade
1. The Parties agree to maintain a satisfactory balance of market access opportunities, including through concessions in trade in products and services and through the satisfactory reciprocation of reductions in tariffs and nontariff barriers to trade resulting from multilateral negotiations.
2. Trade in products and services shall be effected by contracts between nationals and companies of the United States and nationals and organizations of the Mongolian People's Republic concluded on the basis of nondiscrimination and in the exercise of their independent commercial judgment and on the basis of customary commercial considerations such as price, quality, availability, delivery, and terms of payment.
3. Neither Party shall require or encourage nationals or companies of the United States or nationals or organizations of the Mongolian People's Republic to engage in barter or countertrade transactions. Nevertheless, where nationals, companies or organizations decide to resort to barter or countertrade operations, the Parties will encourage them to furnish to each other all necessary information to facilitate the transaction.
Article IV. -- Expansion and Promotion of Trade
1. The Parties affirm their desire to expand trade in products and services consistent with the terms of this Agreement. They shall take appropriate measures to encourage and facilitate the exchange of goods and services and to secure favorable conditions for long-term development of trade relations between their respective nationals, companies and organizations.
2. The Parties shall take appropriate measures to encourage the expansion of commercial contacts with a view to increasing trade. In this regard, the Government of the Mongolian People's Republic expects that, during the term of this Agreement, nationals and organizations of the Mongolian People's Republic shall increase their orders in the United States for products and services, while the Government of the United States anticipates that the effect of this Agreement shall be to encourage increased purchases by nationals and companies of the United States of products and services from the Mongolian People's Republic. Toward this end, the Parties shall publicize this Agreement and ensure that it is made available to all interested parties.
3. Each Party shall encourage and facilitate the holding of trade promotional events such as fairs, exhibitions, missions and seminars in its territory and in the territory of the other Party. Similarly, each Party shall encourage and facilitate the participation of its respective nationals, companies and organizations in such events. Subject to the laws in force within their respective territories, the Parties agree to allow the import and re-export on a duty free basis of all articles for use in such events, provided that such articles are not sold or otherwise transferred.
Article V. -- Government Commercial Offices
Upon agreement of the Parties, each Party may establish government commercial offices as integral parts of its diplomatic mission in the territory of the other Party.
Article VI. -- Business Facilitation
1. Each Party shall afford commercial representations of the other Party fair and equitable treatment with respect to the conduct of their operations.
2. Subject to its laws and procedures governing immigration, each Party shall permit the establishment within its territory of commercial representations of nationals, companies and organizations of the other party and shall accord such representations treatment at least as favorable as that accorded to commercial representations of nationals, companies and organizations of third countries.
3. Subject to its laws and procedures governing immigration, each Party shall permit such commercial representations established in its territory to hire directly employees who are nationals of either Party or of third countries and to compensate such employees on terms and in a currency that is mutually agreed between the parties, consistent with such Party's minimum wage laws.
4. Each Party shall permit commercial representations of the other Party to import and use in accordance with normal commercial practices, office and other equipment, such as typewriters, photocopiers, computers and telefax machines in connection with the conduct of their activities in the territory of such Party.
5. Each Party shall permit, on a nondiscriminatory basis and at nondiscriminatory prices (where such prices are set or controlled by the government), commercial representations of the other Party access to and use of office space and living accomodations, whether or not designated for use by foreigners. The terms and conditions of such access and use shall in no event be on a basis less favorable than that accorded to commercial representations of nationals, companies and organizations of third countries.
6. Subject to its laws and procedures governing immigration, each Party shall permit nationals, companies and organizations of the other Party to engage agents, consultants and distributors of either Party and of third countries on prices and terms mutually agreed between the parties.
7. Subject to its immigration laws and procedures, each Party shall permit nationals, companies and organizations of the other Party to serve as agents, consultants and distributors of nationals, companies and organizations of either Party and of third countries on prices and terms mutually agreed between the parties.
8. Each Party shall permit nationals, companies and organizations of the other Party to advertise their products and services (a) through direct agreement with the advertising media, including television, radio, print and billboard, and (b) by direct mail, including the use of enclosed envelopes and cards preaddressed to that national, company or organization.
9. Each Party shall encourage direct contact, and permit direct sales, between nationals, companies and organizations of the other Party and end-users and other customers of their goods and services, and with agencies and organizations whose decisions will affect potential sales.
10. Each Party shall permit nationals, companies and organizations of the other Party to conduct market studies, either directly or by contract, within its territory. To facilitate the conduct of market research, each Party shall upon request make available non-confidential, non-proprietary information within its possession to nationals, companies and organizations of the other Party engaged in such efforts.
11. Each Party shall provide nondiscriminatory access to governmentally-provided products and services, including public utilities, to nationals, companies and organizations of the other Party in connection with the operation of their commercial representations.
12. Each Party shall permit commercial representations to stock an adequate supply of samples and replacement parts for aftersales service on a non-commercial basis.
13. Neither Party shall impose measures which unreasonably impair contractual or property rights or other interests acquired within its territory by nationals, companies and organizations of the other Party.
Article VII. -- Transparency
1. Each Party shall make available publicly on a timely basis all laws and regulations related to commercial activity, including trade, investment, taxation, banking, insurance and other financial services, transport and labor. Each Party shall also make such information available in reading rooms in its own capital and in the capital of the other Party.
2. Each Party shall provide nationals, companies and organizations of the other Party with access to available non-confidential, non-proprietary data on the national economy and individual sectors, including information on foreign trade.
3. Each Party shall allow the other Party the opportunity to comment on the formulation of rules and regulations which affect the conduct of business activities.
Article VIII. -- Financial Provisions Relating to Trade in Products and Services
1. Unless otherwise agreed between the parties to individual transactions, all commercial transactions between nationals, companies and organizations of the Parties shall be made in United States dollars or any other currency that may be designated from time to time by the International Monetary Fund as being a freely usable currency.
2. Neither Party shall restrict the export from its territory of convertible currencies or deposits, or instruments representative thereof, obtained in connection with trade in products and services by nationals, companies and organizations of the other Party.
3. Nationals, companies and organizations of a Party holding currency of the other Party received in an authorized manner may deposit such currency in financial institutions located in the territory of the other Party and may maintain and use such currency for local expenses.
4. Without derogation from paragraphs 2 or 3 of this Article, in connection with trade in products and services, each Party shall grant to nationals, companies and organizations of the other Party the better of most-favored-nation or national treatment with respect to:
(a) opening and maintaining accounts, in both local and foreign currency, and having access to funds deposited, in financial institutions located in the territory of the Party;
(b) payments, remittances and transfers of convertible currencies, or financial instruments representative thereof, between the territories of the two Parties, as well as between the territory of that Party and that of any third country;
(c) rates of exchange and related matters, including access to freely usable currencies, such as through currency auctions; and
(d) the receipt and use of local currency.
Article IX. -- Protection of Intellectual Property Rights
1. Each Party shall provide adequate and effective protection and enforcement for patents, trademarks, copyrights, trade secrets, industrial designs and layout designs for integrated circuits. Each Party reaffirms its commitments to those international agreements relating to intellectual property to which both Parties are signatories. Specifically, each Party reaffirms the commitments made with respect to industrial property in the Paris Convention for the Protection of Industrial Property of March 29, 1883, as revised at Stockholm on July 14, 1967.
2. To provide adequate and effective protection and enforcement of intellectual property rights, each Party shall, inter alia observe the following commitments:
(a) Copyright and related rights
(i) Each Party shall adhere to the Berne Convention for the Protection of Literary and Artistic Works (Paris 1971) (''Berne Convention''). In addition, it shall comply with the provisions set forth below.
(ii) Works protected by copyright means any original, intellectual creative work of literary or artistic character, irrespective of their value, their literary or artistic merits or their purpose, and include, inter alia, the following:
(1) all types of computer programs;
(2) collections or compilations of protected or unprotected material or data whether in print, machine readable or any other medium, including data bases, which shall be protected if they constitute intellectual creation by reason of the selection, coordination, or arrangement of their contents.
(iii) The rights protected pursuant to paragraph 2(a) this Article include, inter alia, the following:
(1) the right to import or authorize the importation into the territory of the Party of lawfully made copies of the work as well as the right to prevent the importation into the territory of the Party of copies of the work made without the authorization of the right-holder;
(2) the right to make the first public distribution of the original or each authorized copy of a work by sale, rental, or otherwise; and
(3) the right to make a public communication of a work (e.g., to perform, display, project, exhibit, broadcast, transmit, or retransmit a work).
(iv) Each Party shall extend the protection afforded under this section to authors (as defined under the Berne Convention) of the other Party, whether they are natural persons or, where the other Party's domestic law so provides, companies and organizations, and to their successors in title.
(v) Protected rights under paragraph 2(a) of this Article shall be freely and separately exploitable and transferable.
(vi) Each Party shall confine any limitations or exceptions to the rights provided under paragraph 2(a) of this Article (including any limitations or exceptions that restrict such rights to ''public'' activity) to clearly and carefully defined special cases which do not impair an actual or potential market for or the value of a protected work.
(vii) If either Party has afforded no protection to works of foreign origin, it shall provide protection, consistent with this section, for all works of the other Party that are not in the public domain in their country of origin at the time of entry into force of this Agreement in its territory.
(viii) Translation and reproduction licensing systems permitted in the Appendix to the Berne Convention:
(1) shall not be established where legitimate local needs are being met by voluntary actions of copyright holders or could be met by such action but for intervening factors outside the copyright holder's; and
(2) shall provide an effective opportunity for the copyright holder to be heard prior to the grant of any such licenses.
(ix) Any compulsory or non-voluntary license (or any restriction of exclusive rights to a right of remuneration) shall provide means to ensure payment and remittance of royalties at a level consistent with what would be negotiated on a voluntary basis.
(x) The Parties shall, at a minimum, extend to producers of sound recordings the exclusive rights to do or to authorize the following:
(1) to reproduce the recording by any means or process, in whole or in part;
(2) to exercise the importation and exclusive distribution and rental rights provided in paragraph (iii)(1) and (2) of this section.
(xi) The provisions of paragraphs iv, v, and vii of this section shall apply mutatis mutandis to the producers of sound recordings.
(xii) Paragraph viii of this section shall apply mutatis mutandis to sound recordings.
(xiii) Each Party shall:
(1) adhere to the Geneva Convention for the Protection of Producers of Phonograms and protect sound recordings first fixed or published in the territory of the other Party;
(2) protect sound recordings for a term of at least 50 years from publication;
(3) protect sound recordings published in the territory of a Party within thirty days of their publication elsewhere and recordings produced by a national, company or organization of a Party; and
(4) grant the right to make the first public distribution of the original or each authorized sound recording by sale, rental, or otherwise except that the first sale of the original or such sound recording shall not exhaust the rental or importation right therein (the ''rental right'' shall mean the right to authorize or prohibit the disposal of the possession of the original or copies for direct or indirect commercial advantage).
(xiv) The acquisition and validity of intellectual property rights in sound recordings shall not be subject to any formalities, and protection shall arise automatically upon creation of the sound recording.
(b) Trademarks
(i) Protectable Subject Matter
(1) Trademarks shall consist of at least any sign, words, including personal names, designs, letters, numerals, colors, the shape of goods or of their packaging, provided that the mark is capable of distinguishing the goods or services of one national, company or organization from those of other nationals, companies or organizations.
(2) The term ''trademark'' shall include service marks, collective and certification marks.
(ii) Acquisition of Rights
(1) A trademark right may be acquired by registration or by use. A system for the registration of trademarks shall be provided. Use of a trademark may be required as a prerequisite for registration.
(2) Each Party shall publish each trademark either before it is registered or promptly after it is registered and shall afford other parties a reasonable opportunity to petition to cancel the registration. In addition, each Party may afford an opportunity for the other Party to oppose the registration of a trademark.
(3) The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.
(iii) Rights Conferred
(1) The owner of a registered trademark shall have exclusive rights therein. He shall be entitled to prevent all third parties not having his consent from using in commerce identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is protected, where such use would result in a likelihood of confusion.
(2) Each Party shall refuse to register or shall cancel the registration and prohibit use of a trademark likely to cause confusion with a trademark of another which is considered to be well-known. A Party may not require that the reputation of the trademark extend beyond the sector of the public which normally deals with the relevant goods or services.
(3) The owner of a trademark shall be entitled to take action against any unauthorized use which constitutes an act of unfair competition or passing off.
(iv) Term of Protection
The registration of a trademark shall be indefinitely renewable for terms of no less than 10 years when conditions for renewal have been met. Initial registration of a trademark shall be for a term of at least 10 years.
(v) Requirement of Use
(1) If use of a registered mark is required to maintain trademark rights, the registration may be cancelled only after an uninterrupted period of at least two years of non-use, unless legitimate reasons for non-use exist. Use of the trademark with the consent of the owner shall be recognized as use of the trademark for the purpose of maintaining the registration.
(2) Legitimate reasons for non-use shall include non-use due to circumstances arising independently of the will of the trademark holder (such as import restrictions on or other government requirements for products protected by the trademark) which constitute an obstacle to the use of the mark.
(vi) Other Requirements
The use of a trademark in commerce shall not be encumbered by special requirements, such as use which reduces the function of a trademark as an indication of source or use with another trademark.
(vii) Compulsory Licensing
Compulsory licensing of trademarks shall not be permitted.
(viii) Transfer
Trademark registrations may be transferred.
(c) Patents
(i) Patentable Subject Matter
Patents shall be granted for all inventions, whether they concern products or processes, in all fields of technology, with the exception of any invention or discovery which is useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon.
(ii) Rights Conferred
(1) A patent shall confer the right to prevent others not having the patent owner's consent from making, using, or selling the subject matter of the patent. In the case of a patented process, the patent confers the right to prevent others not having consent from using that process and from using, selling, or importing at least the product obtained directly by that process.
(2) Where the subject matter of a patent is a process for obtaining a product, each Party shall provide that the burden of establishing that an alleged infringing product was not made by the process shall be on the alleged infringer at least in one of the following situations:
(A) the product is new, or
(B) a substantial likelihood exists that the product was made by the process and the patent owner has been unable through reasonable efforts to determine the process actually used.
In gathering and evaluation of evidence to the contrary, the legitimate interests of the defendant in protecting his manufacturing and business secrets shall be taken into account.
(iii) Term of Protection
The term of protection shall be at least 20 years from the date of filing of the patent application or 17 years from the date of grant of the patent. Each Party is encouraged to extend the term of patent protection, in appropriate cases, to compensate for delays caused by regulatory approval processes.
(iv) Transitional Protection
A Party shall provide transitional protection for products embodying subject matter deemed to be unpatentable under its patent law prior to its implementation of this Agreement, where the following conditions are satisfied:
(1) the subject matter to which the product relates will become patentable after implementation of this Agreement;
(2) a patent has been issued for the product by the other Party prior to the entry into force of this Agreement; and
(3) the product has not been marketed in the territory of the Party providing such transitional protection.
The owner of a patent for a product satisfying the conditions set forth above shall have the right to submit a copy of the patent to the Party providing transitional protection. Such Party shall limit the right to make, use, or sell the product in its territory to such owner for a term to expire with that of the patent submitted.
(v) Compulsory Licenses
Each Party may limit the patent owner's exclusive rights through compulsory licenses only to remedy an adjudicated violation of competition laws or to address, only during its existence, a declared national emergency. Where the law of a Party allows for the grant of compulsory licenses, such licenses shall be granted in a manner which minimizes distortions of trade, and the following provisions shall be respected:
(1) Compulsory licenses shall be non-exclusive and non-assignable except with that part of the enterprise or goodwill which exploits such license.
(2) The payment of remuneration to the patent owner adequate to compensate the patent owner fully for the license shall be required, except for compulsory licenses to remedy adjudicated violations of competition law.
(3) Each case involving the possible grant of a compulsory license shall be considered on its individual merits.
(4) Any compulsory license shall be revoked when the circumstances which led to its granting cease to exist, taking into account the legitimate interests of the patent owner and the licensee. The continued existence of these circumstances shall be reviewed upon request of the patent owner.
(5) Decisions to grant or to continue compulsory licenses and the compensation provided for compulsory licenses shall be subject to review by a distinct higher authority.
(d) Layout-Designs of Semiconductor Chips
(i) Subject Matter for Protection
(1) Each Party shall provide protection for original layout-designs incorporated in a semiconductor chip, however the layout-design might be fixed or encoded.
(2) Each Party may condition protection on fixation or registration of the layout-designs. If registration is required, applicants shall be given at least two years from first commercial exploitation of the layout-design in which to apply. A Party which requires deposits of identifying material or other material related to the layout-design shall not require applicants to disclose confidential or proprietary information unless it is essential to allow identification of the layout-design.
(ii) Rights Acquired
(1) Each Party shall provide to owners of rights in integrated circuit lay-out designs of the other Party the exclusive right to do or to authorize the following:
(A) to reproduce the layout-design;
(B) to incorporate the layout-design in a semiconductor chip; and
(C) to import or distribute a semiconductor chip incorporating the layout-design and products including such chips.
(2) The conditions set out in paragraph (c)(v) of this Article shall apply, mutatis mutandis, to the grant of any compulsory licenses for layout-designs.
(3) Neither Party is required to extend protection to layout-designs that are commonplace in the industry at the time of their creation or to layout-designs that are exclusively dictated by the functions of the circuit to which they apply.
(4) Each Party may exempt the following from liability under its law:
(A) reproduction of a layout-design for purposes of teaching, analysis, or evaluation in the course of preparation of a layout-design that is itself original;
(B) importation and distribution of semiconductor chips, incorporating a protected layout-design, which were sold by or with the consent of the owner of the layout-design; and
(C) importation or distribution up to the point of notice of a semiconductor chip incorporating a protected layout-design and products incorporating such chips by a person who establishes that he did not know, and had no reasonable grounds to believe, that the layout-design was protected, provided that, with respect to stock on hand or purchased at the time notice is received, such person may import or distribute only such stock but is liable for a reasonable royalty on the sale of each item after notice is received.
(iii) Term of Protection
The term of protection for the lay-out design shall extend for at least ten years from the date of first commercial exploitation or the date of registration of the design, if required, whichever is earlier.
(e) Industrial Designs and Models
(i) Each Party shall provide, at a minimum, protection for industrial designs which are new, original, ornamental and non-obvious. Each Party may condition such protection on registration or other formality. The term of protection of such designs shall extend for at least ten years.
(ii) Each Party shall provide to the owner of a protected design the right to prevent others from making, copying, using, or selling that industrial design.
(iii) Neither Party shall issue compulsory licenses for industrial designs except to remedy adjudicated violations of competition law to which the conditions set out in paragraph (c)(v) of this Article shall apply mutatis mutandis.
(f) Acts Contrary to Honest Commercial Practices and the Protection of Trade Secrets
(i) In the course of ensuring effective protection against unfair competition as provided for in Article 10 bis of the Paris Convention, each Party shall provide in its domestic law and practice the legal means for nationals, companies and organizations to prevent trade secrets from being disclosed to, acquired by, or used by others without the consent of the trade secret owner in a manner contrary to honest commercial practices insofar as such information:
(1) is not, as a body or in the precise configuration and assembly of its components, generally known or readily ascertainable;
(2) has actual or potential commercial value because it is not generally known or readily ascertainable; and
(3) has been subject to reasonable steps under the circumstances to keep it secret.
(ii) Neither Party shall limit the duration of protection for trade secrets so long as the conditions in paragraph 2(f)(i) of this Article exist.
(iii) Licensing
Neither Party shall discourage or impede voluntary licensing of trade secrets by imposing excessive or discriminatory conditions on such licenses or conditions which dilute the value of trade secrets.
(iv) Government Use
(1) A Party which requires that trade secrets be submitted to carry out governmental functions, shall not use the trade secrets for the commercial or competitive benefit of the government or of any person other than the owner of the trade secret except with the trade secret owner's consent, on payment of the reasonable value of the use, or if a reasonable period of exclusive use is given the owner of the trade secret.
(2) Each Party may disclose trade secrets to third parties, only with the trade secret owner's consent or to the degree required to carry out necessary government functions. Wherever practicable, owners of trade secrets shall be given an opportunity to enter into confidentiality agreements with any non-government entity to which the Party is disclosing trade secrets to carry out necessary government functions.
(3) Each Party may require owners of trade secrets to disclose their trade secrets to third parties to protect human health or safety or to protect the environment only when the trade secret owner is given an opportunity to enter into confidentiality agreements with any non-government entity receiving the trade secrets to prevent further disclosure or use of the trade secret.
(g) Enforcement of Intellectual Property Rights
(i) Each Party shall protect intellectual property rights covered by this Article by means of civil law, criminal law, or administrative law or a combination thereof in conformity with the provisions below. Each Party shall provide effective procedures, internally and at the border, to protect these intellectual property rights against any act of infringement, and effective remedies to stop and prevent infringements and to effectively deter further infringements. These procedures shall be applied in such a manner as to avoid the creation of obstacles to legitimate trade and provide for safeguards against abuse.
(ii) Procedures concerning the enforcement of intellectual property rights shall be fair and equitable.
(iii) Decisions on the merits of a case shall, as a general rule, be in writing and reasoned. They shall be made known at least to the parties to the dispute without undue delay.
(iv) Each Party shall provide an opportunity for judicial review of final administrative decisions on the merits of an action concerning the protection of an intellectual property right. Subject to jurisdictional provisions in national laws concerning the importance of a case, an opportunity for judicial review of the legal aspects of initial judicial decisions on the merits of a case concerning the protection of an intellectual property right shall also be provided.
(v) Remedies against a Party
Notwithstanding the other provisions of this Article, when a Party is sued for infringement of an intellectual property right as a result of the use of that right by or for the government, the Party may limit remedies against the government to payment of full compensation to the right-holder.
3. Each Party agrees to submit for enactment no later than December 31, 1992 the legislation necessary to carry out the obligations of this Article and to exert its best efforts to enact and implement this legislation by that date.
4. For purposes of this Article:
(a) ''right-holder,'' means the right-holder himself, any other natural or legal persons authorized by him who are exclusive licensees of the right, or other authorized persons, including federations and associations, having legal standing under domestic law to assert such rights; and
(b) ''A manner contrary to honest commercial practice'' is understood to encompass, inter alia, practices such as theft, bribery, breach of contract, inducement to breach, electronic and other forms of commercial espionage, and includes the acquisition of trade secrets by third parties who knew, or had reasonable grounds to know, that such practices were involved in the acquisition.
Article X. -- Areas for Further Economic and Technical Cooperation
1. For the purpose of further developing bilateral trade and providing for a steady increase in the exchange of products and services, both Parties shall strive to achieve mutually acceptable agreements on taxation and investment issues, including the repatriation of profits and transfer of capital.
2. The Parties shall take appropriate steps to foster economic and technical cooperation on as broad a base as possible in all fields deemed to be in their mutual interest, including with respect to statistics and standards.
3. The Parties, taking into account the growing economic significance of service industries, agree to consult on matters affecting the conduct of service business between the two countries and particular matters of mutual interest relating to individual service sectors with the objective, among others, of attaining maximum possible market access and liberalization.
Article XI. -- Market Disruption Safeguards
1. The Parties agree to consult promptly at the request of either Party whenever either actual or prospective imports of products originating in the territory of the other Party cause or threaten to cause or significantly contribute to market disruption. Market disruption exists within a domestic industry whenever imports of an article, like or directly competitive with an article produced by such domestic industry, are increasing rapidly, either absolutely or relatively, so as to be a significant cause of material injury, or threat thereof, to such domestic industry.
2. The consultations provided for in paragraph 1 of this Article shall have the objectives of (a) presenting and examining the factors relating to such imports that may be causing or threatening to cause or significantly contributing to market disruption, and (b) finding means of preventing or remedying such market disruptions. Such consultations shall be concluded within sixty days from the date of the request for such consultation, unless the Parties otherwise agree.
3. Unless a different solution is mutually agreed upon during the consultations, the importing Party may (a) impose quantitative import limitations, tariff measures or any other restrictions or measures it deems appropriate to prevent or remedy threatened or actual market disruption, and (b) take appropriate measures to ensure that imports from the territory of the other Party comply with such quantitative limitations or other restrictions. In this event, the other Party shall be free to deviate from its obligations under this Agreement with respect to substantially equivalent trade.
4. Where in the judgment of the importing Party, emergency action is necessary to prevent or remedy such market disruption, the importing Party may take such action at any time and without prior consultations provided that such consultations shall be requested immediately thereafter.
5. Each Party shall ensure that its domestic procedures for determining market disruption are transparent and afford affected parties an opportunity to submit their views.
6. The Parties acknowledge that the elaboration of the market disruption safeguard provisions in this Article is without prejudice to the right of either Party to apply its laws and regulations applicable to trade in textiles and textile products and its laws and regulations applicable to unfair trade, including antidumping and countervailing duty laws.
Article XII. -- Dispute Settlement
1. Nationals, companies and organizations of either Party shall be accorded national treatment with respect to access to all courts and administrative bodies in the territory of the other Party, as plaintiffs, defendants or otherwise. They shall not claim or enjoy immunity from suit or execution of judgment, proceedings for the recognition and enforcement of arbitral awards, or other liability in the territory of the other Party with respect to commercial transactions; they also shall not claim or enjoy immunities from taxation with respect to commercial transactions, except as may be provided in other bilateral agreements.
2. The Parties encourage the adoption of arbitration for the settlement of disputes arising out of commercial transactions concluded between nationals or companies of the United States and nationals or organizations of the Mongolian People's Republic. Such arbitration may be provided for by agreements in contracts between such nationals, companies or organizations, or in separate written agreements between them.
3. The parties may provide for arbitration under any internationally recognized arbitration rules, including the UNCITRAL Rules in which case the parties should designate an Appointing Authority under said rules in a country other than the United States or the Mongolian People's Republic.
4. Unless otherwise agreed between the parties, the parties should specify as the place of arbitration a country other than the United States or the Mongolian People's Republic, that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, 1958.
5. Nothing in this Article shall be construed to prevent, and the Parties shall not prohibit, the parties from agreeing upon any other form of arbitration or dispute settlement which they mutually prefer and agree best suits their particular needs.
6. Each Party shall ensure that an effective means exists within its territory for the recognition and enforcement of arbitral awards.
Article XIII. -- National Security
The provisions of this Agreement shall not limit the right of either Party to take any action for the protection of its security interests.
Article XIV. -- Consultations
1. The Parties agree to consult periodically to review the operation of this Agreement.
2. The Parties agree to consult promptly through appropriate channels at the request of either Party to discuss any matter concerning the interpretation or implementation of this Agreement and other relevant aspects of the relations between the Parties.
Article XV. -- Definitions
As used in this Agreement, the terms set forth below shall have the following meaning:
(a) ''company,'' means any kind of corporation, company, association, sole proprietorship or other organization legally constituted under the laws and regulations of a Party or an political subdivision thereof, whether or not organized for pecuniary gain or privately or governmentally owned; provided that, either Party reserves the right to deny any company the advantages of this Agreement if nationals of any third country control such a company and, in the case of a company of the other Party, that company has no substantial business activities in the territory of the other Party or is controlled by nationals of a third country with which the denying country does not maintain normal economic relations;
(b) ''commercial representation,'' means a representation of a company or organization of a Party;
(c) ''national,'' means a natural person who is a national of a Party under its applicable law; and
(d) ''organization,'' means, with respect to the United States, a company of the United States and, with respect to the Mongolian People's Republic, any economic entity or enterprise (including a company) whether privately or governmentally owned.
Article XVI. -- General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prohibit the adoption or enforcement by a Party of:
(a) measures necessary to secure compliance with laws or regulations which are not contrary to the purposes of this Agreement;
(b) measures for the protection of intellectual property rights and the prevention of deceptive practices as set out in Article IX of this Agreement; or
(c) any other measure referred to in Article XX of the GATT.
2. Nothing in this Agreement limits the application of any existing or future agreement between the Parties on trade in textiles and textile products.
3. Nothing in this Agreement shall preclude a Party from applying its laws relating to entities substantially owned or effectively controlled by the government of the other Party.
Article XVII. -- Entry into Force, Term, Suspension and Termination
1. This Agreement (including its side letters which are an integral part of the Agreement) shall enter into force on the date of exchange of written notices of acceptance by the two governments and shall remain in force as provided in paragraphs 2 and 3 of this Article.
2. (a) The initial term of this Agreement shall be three years, subject to subparagraph (b) and (c) of this paragraph.
(b) If either Party encounters or foresees a problem concerning its domestic legal authority to carry out any of its obligations under this Agreement, such Party shall request immediate consultations with the other Party. Once consultations have been requested, the other Party shall enter into such consultations as soon as possible concerning the circumstances that have arisen with a view to finding a solution to avoid action under subparagraph (c).
(c) If either Party does not have domestic legal authority to carry out is obligations under this Agreement, either Party may suspend the application of this Agreement or, with the agreement of the other Party, any part of this Agreement. In that event, the Parties will, to the fullest extent practicable and consistent with domestic law, seek to minimize disruption to existing trade relations between the two countries.
3. This Agreement shall be extended for successive terms of three years each unless either Party has given written notice to the other Party of its intent to terminate this Agreement at least 30 days prior to the expiration of the then current term.
DONE at Washington on this twenty-third day of January, 1991, in duplicate, in the English and Mongolian languages. In the event of any conflict between the two texts, the English language text shall control.
03 CFR Proc. 6309
03 CFR Proclamation 6309 of June 26, 1991
Proclamation 6309 of June 26, 1991
03 CFR To Modify Duty-Free Treatment Under the Generalized System of Preferences
By the President of the United States of America
A Proclamation
1. Pursuant to section 504(c) of the Trade Act of 1974, as amended (the 1974 Act) (19 U.S.C. 2464(c)), beneficiary developing countries, except those designated as least-developed beneficiary developing countries pursuant to section 504(c)(6) of the 1974 Act, are subject to limitations on the preferential treatment afforded under the Generalized System of Preferences (GSP). Pursuant to section 504(c)(3) of the 1974 Act, the President may waive the application of section 504(c) of the 1974 Act with respect to any eligible article if the President determines, based on the considerations described in sections 501 and 502(c) of the 1974 Act (19 U.S.C. 2461 and 2462(c)) and advice from the United States International Trade Commission (USITC), that such waiver is in the national economic interest of the United States. Further, pursuant to section 504(c)(5) of the 1974 Act, a country that is no longer treated as a beneficiary developing country with respect to an eligible article by reason of section 504(c) of the 1974 Act may be redesignated as a beneficiary developing country with respect to such article if imports of such article from such country did not exceed the limitations in section 504(c)(1) (after application of paragraph (c)(2)) during the preceding calendar year.
2. Pursuant to subsection 504(c)(3) of the 1974 Act, I have determined that it is appropriate to waive the application of section 504(c) of the 1974 Act with respect to certain eligible articles from certain beneficiary developing countries. I have received the advice of the USITC on whether any industries in the United States are likely to be adversely affected by such waivers, and I have determined, based on that advice and on the considerations described in sections 501 and 502(c) of the 1974 Act, as amended (19 U.S.C. 2461 and 2462(c)), that such waivers are in the national economic interest of the United States. Further, I have determined that it is necessary and appropriate to subdivide and amend the nomenclature of the Harmonized Tariff Schedule of the United States (HTS) in order to provide for one such waiver. Last, I have determined, pursuant to section 504(c)(5) of the 1974 Act, that certain countries should be redesignated as beneficiary developing countries with respect to specified previously designated eligible articles. These countries have been previously excluded from benefits of the GSP with respect to such eligible articles pursuant to sections 504(c)(1) or 504(c)(2) of the 1974 Act.
3. In order to clarify a change in general note 3(c)(ii)(C) to the HTS made by Proclamation 6245 of February 4, 1991, to correct a typographical error in Proclamation 6282 of April 25, 1991, and to modify the designation of eligibility of Peru with respect to HTS subheading 7113.19.10 due to new information as to the value of imports under such subheading, I have determined it is necessary and appropriate to modify the HTS.
4. Section 604 of the 1974 Act, as amended (19 U.S.C. 2483), authorizes the President to embody in the HTS the substance of the relevant provisions of that Act, and of other acts affecting import treatment, and actions thereunder, including removal, modification, continuance, or imposition of any rate of duty or other import restriction.
NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, acting under the authority vested in me by the Constitution and the laws of the United States, including but not limited to sections 501, 502, 504, and 604 of the 1974 Act, do proclaim that:
(1) The waivers of the application of section 504(c) of the 1974 Act shall apply to the eligible articles in the HTS subheadings and the beneficiary developing countries opposite such HTS subheadings set forth in Annex I(a).
(2) In order to provide in the nomenclature of the HTS for a waiver under the GSP for a specified designated eligible article when imported from Mexico, the HTS is modified as provided in Annex I(b) to this proclamation.
(3) In order to provide preferential tariff treatment under the GSP to certain countries which have been excluded from the benefits of the GSP for certain eligible articles imported from such countries, following my determination that a country previously excluded from receiving such benefits should again be treated as a beneficiary developing country with respect to such article, the Rates of Duty 1 Special subcolumn for each of the HTS provisions enumerated in Annex II(a) to this proclamation is modified: (i) by deleting from such subcolumn for such HTS provisions the symbol ''A*'' in parentheses, and (ii) by inserting in such subcolumn the symbol ''A'' in lieu thereof.
(4) In order to provide that one or more countries which have not been treated as beneficiary developing countries with respect to an eligible article should be redesignated as beneficiary developing countries with respect to such article for purposes of the GSP, general note 3(c)(ii)(D) to the HTS is modified as provided in Annex II(b) to this proclamation.
(5) In order to provide for the continuation of previously proclaimed staged reductions on Canadian goods in the HTS provisions modified in Annex I(b) to this proclamation, effective with respect to goods originating in the territory of Canada which are entered, or withdrawn from warehouse for consumption, on or after the dates specified in Annex I(c) to this proclamation, the rate of duty in the HTS set forth in the Rates of Duty 1 Special subcolumn followed by the symbol ''CA'' in parentheses for each of the HTS subheadings enumerated in such Annex I(c) shall be deleted and the rate of duty provided in such Annex I(c) inserted in lieu thereof on the dates specified.
(6) In order to clarify a change in general note 3(c)(ii)(C) to the HTS, to correct a typographical error, and to modify the eligibility of Peru with respect to subheading 7113.19.10, the HTS is modified as provided in Annex III.
(7) Any provisions of previous proclamations and Executive orders inconsistent with the provisions of this proclamation are hereby superseded to the extent of such inconsistency.
(8)(a) The waivers granted by Annex I(a) of this proclamation shall be effective on or after the date of signature of this proclamation.
(b) The amendments made by Annexes I(b), II, and III(b) of this
proclamation shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991.
(c) The amendments made by Annex I(c) of this proclamation shall
be effective with respect to goods originating in the territory of Canada entered, or withdrawn from warehouse for consumption, on or after the dates indicated in the respective Annex I(c) columns.
(d) The amendments made by Annex III(a) of this proclamation
shall be effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after October 1, 1990.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-sixth day of June, in the year of our Lord nineteen hundred and ninety-one, and of the Independence of the United States of America the two hundred and fifteenth.
GEORGE BUSH
Annex I
(a) The waiver of the application of section 504(c) of the 1974 Act shall apply to:
/1/ Waiver for Mexico on 2005.20.00pt. only applies to
2005.20.0020 (potato chips).
(b) The HTS is modified as provided below effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991.
Note: Bracketed matter is included to assist in the understanding of proclaimed modifications. The following supersedes matter now in the HTS. The subheadings and superior descriptions are set forth in columnar format, and material in such columns is inserted in the columns of the HTS designated ''Heading/Subheading'', ''Article Description'', ''Rates of Duty 1 General'', ''Rates of Duty 1 Special'', and ''Rates of Duty 2'', respectively.
Subheading 2005.20.00 is superseded by:
(c) The HTS is modified effective with respect to goods originating in the territory of Canada entered, or withdrawn from warehouse for consumption, on or after the dates set forth in the following tabulation. For each of the following subheadings created by Annex I(b) to this proclamation, on or after January 1 of each of the following years, the rate of duty in the Rates of Duty 1 Special subcolumn in the HTS that is followed by the symbol ''CA'' in parentheses is deleted and the following rates of duty inserted in lieu thereof on the dates specified below.
Annex II
Effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991:
(a) For the following HTS subheadings, in the Rates of Duty 1
Special subcolumn, delete the symbol ''A*'' and insert an ''A'' in lieu thereof: 0802.90.15 0804.50.40 2836.92.00 4409.10.40 7901.11.00 8414.59.80 8418.10.00 8504.10.00 8504.32.00 8536.69.00 8536.90.00 8544.30.00 8708.99.50
(b) General note 3(c)(ii)(D) to the HTS is modified by deleting
the following HTS subheadings and the countries opposite such subheadings:
Annex III
(a) General note 3(c)(ii)(C) to the HTS is modified by striking
out the phrase ''from such country or territory,'' and inserting ''from such country or territory listed in subdivision (c)(ii)(A) of this note,'' in lieu thereof effective with respect to articles both: (i) imported on or after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after October 1, 1990.
(b) Effective with respect to articles both: (i) imported on or
after January 1, 1976, and (ii) entered, or withdrawn from warehouse for consumption, on or after July 1, 1991:
(1) For HTS subheadings 7113.19.10 and 8520.20.00, in the Rates
of Duty 1 Special subcolumn, delete the symbol ''A*'' and insert an ''A'' in lieu thereof.
(2) General note 3(c)(ii)(D) to the HTS is modified by deleting
''7113.19.10 Peru''.