[Federal Register Volume 61, Number 114 (Wednesday, June 12, 1996)]
[Proposed Rules]
[Pages 29716-29719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14721]



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DEPARTMENT OF JUSTICE
28 CFR Part 74

[AG Order No. 2033-96]
RIN 1190-AA42


Redress Provisions for Persons of Japanese Ancestry: Guidelines 
for Individuals Who Relocated to Japan as Minors During World War II

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice (``Department'') hereby proposes a 
change to the regulations governing redress provisions for persons of 
Japanese ancestry. This change will amend the standards of the Civil 
Liberties Act of 1988 to make eligible for payments of $20,000 those 
persons who are otherwise eligible for redress under these regulations, 
but who involuntarily relocated during World War II to a country with 
which the United States was at war. In practice, this amendment will 
make potentially eligible those persons who were evacuated, relocated, 
or interned by the United States Government; who, as minors, relocated 
to Japan during World War II, and otherwise were unemancipated and 
lacked the legal capacity to leave the custody and control of their 
parents (or legal guardians) who chose to relocate to Japan during the 
war; and who did not enter active military service on behalf of the 
Japanese Government or another enemy government during the statutorily-
defined war period.

DATES: Comments must be submitted on or before July 12, 1996.

ADDRESSES: Comments may be mailed to the Office of Redress 
Administration, PO Box 66260, Washington, DC 20035-6260.

FOR FURTHER INFORMATION CONTACT:
Tink D. Cooper or Emlei Kuboyama, Office of Redress Administration, 
Civil Rights Division, U.S. Department of Justice, PO Box 66260, 
Washington, DC 20035-6260; (202) 219-6900 (voice) or (202) 219-4710 
(TDD). These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

I. Background

    The Civil Liberties Act of 1988, Pub. L. No. 100-383 (codified at 
50 U.S.C. app. 1989 et seq., as amended) (``the Act''), enacted into 
law the recommendations of the Commission on Wartime Relocation and 
Internment of Civilians (``Commission'') established by Congress in 
1980. See Commission on Wartime Relocation and Internment of Civilians 
Act, Pub. L. No. 96-317 (1980). This bipartisan commission was 
established: (1) To review the facts and circumstances surrounding 
Executive Order 9066, issued February 19, 1942, and the impact of that 
Executive Order on American citizens and permanent resident aliens of 
Japanese ancestry; (2) to review directives of United States military 
forces requiring the relocation and, in some cases, detention in 
internment camps of these American citizens and permanent resident 
aliens; and (3) to recommend appropriate remedies. The Commission 
submitted to Congress in February 1983 a unanimous report, Personal 
Justice Denied, which extensively reviewed the history and 
circumstances of the decisions to exclude, remove, and then to detain 
Japanese Americans and Japanese resident aliens from the West Coast, as 
well as the treatment of Aleuts during World War II. Redress Provisions 
for Persons of Japanese Ancestry, 54 FR 34,157 (1989). The final part 
of the Commission's report, Personal Justice Denied Part 2: 
Recommendations, concluded that these events were influenced by racial 
prejudice, war hysteria, and a failure of political leadership, and 
recommended remedial action to be taken by Congress and the President. 
Id.
    On August 10, 1988, President Ronald Reagan signed the Act into 
law. The purposes of the Act were to acknowledge and apologize for the 
fundamental injustice of the evacuation, relocation, and internment of 
Japanese Americans and permanent resident aliens of Japanese ancestry, 
to make restitution, and to fund a public education program to prevent 
the recurrence of any similar event in the future. 50 U.S.C. app. 1989-
1989a.
    Section 105 of the Act makes the Attorney General responsible for 
identifying, locating, an authorizing payment of redress to eligible 
individuals. Id. 1989b-4. The Attorney General delegated the 
responsibilities and duties assigned to her to the Assistant Attorney 
General for Civil Rights, who, in keeping with precedent, has 
designated ORA in the Civil Rights Division to carry out the execution 
of the responsibilities and duties under the Act. The regulations 
governing the eligibility and restitution were drafted by ORA and 
published under the authority of the Justice Department in 1989. 54 FR 
34,157 (1989) (final rule) (codified at 28 CFR part 74).
    ORA is charged with the responsibility of identifying and locating 
persons eligible for redress under the Act. To date, restitution has 
been paid to a total of 79,911 Japanese Americans and permanent 
resident aliens of Japanese ancestry.
    Section 108 of the Act articulates the standards for redress 
eligibility. 50 U.S.C. app. 1989b-7(2). Among those excluded from 
eligibility under that section are those ``who, during the period 
beginning on December 7, 1941, and ending on September 2, 1945, 
relocated to a country while the United States was at war with that 
country * * *.'' Id. As part of a citizen exchange program during World 
War II, the United States returned formerly interned persons of 
Japanese ancestry to Japan on two occasions. On June 18, 1942, 
approximately 1,083 persons of Japanese ancestry returned to Japan 
aboard the M.S. Gripsholm, and on September 2, 1943, the Gripsholm 
returned another 1,340 persons of Japanese ancestry to Japan. A number 
of these persons asserted claims for redress based on their evacuation 
and internment by the United States Government prior to their return to 
Japan. However, based on section 108 of the Act and 28 CFR 74.4, ORA 
found them ineligible for redress. 54 FR 34,162 (1989). In all, 175 
persons who returned to Japan aboard the Gripsholm claimed compensation 
under the Act; approximately 124 of these claimants were persons who 
were under the age of 21 upon their departure from the United States. 
ORA's denial of redress to these claimants was upheld during the 
administrative appeal process set forth in 28 CFR 74.17. 54 FR 34,164-
65 (1989).
    It is helpful to describe the circumstances of these individuals. 
The West Coast voluntary evacuation period began with the issuance of 
Proclamation No. 1, on March 2, 1942, and ended with the issuance of 
Proclamation No. 4, effective on March 29, 1942. After this date, 
persons of Japanese ancestry were prohibited from leaving the West 
Coast because the Government was preparing to forcibly relocate and 
intern them later. Over 120,000 Japanese Americans were eventually 
interned. Of these 120,000, approximately 124 were minor children whose 
parents decided to depart the United States for Japan during the war on 
one of the M.S.

[[Page 29717]]

Gripsholm sailings prior to September 2, 1945. The majority of the 
passengers on the first sailing were Japanese diplomats, while many of 
the passengers on the second sailing were American citizens or 
permanent resident aliens. Also aboard were some Japanese nationals who 
had left Japan to live and work in the United States and who, by law, 
were ineligible to apply for United States citizenship. Many of these 
individuals returned to Japan with their American-born children.
    These American children persevered through an arduous period during 
which they were forcibly evacuated from their homes on the West Coast 
and interned with their parents. The minors were unable legally to 
return to their homes in the prohibited military zones on the West 
Coast and were required to travel to Japan with their parents on a long 
and difficult journey.
    The loyalty of most of these American children, however, apparently 
never waned. According to ORA research, the vast majority of them did 
not enter into the active military service on behalf of an enemy 
government during World War II. Furthermore, almost all returned to the 
United States after the war. Out of the approximately 124 minors who 
have filed for redress, and who relocated to Japan with their parents 
during World War II, 108 subsequently returned to the United States, 
while only 16 remained in Japan.

II. Revised Interpretation

    Following publication of the draft regulations in 1989, the 
Department received 61 comments concerning the eligibility of persons 
who, as minors, returned to Japan aboard the Gripsholm. Based on the 
comments received at that time, however, it found no reason to 
differentiate between adults who returned to Japan during World War II 
and minors. As a result, in the preamble of the final regulation, the 
Department stated that ``the exclusionary language of the Act would 
preclude from eligibility the minors, as well as adults, who were 
relocated to Japan during [the relevant] time period.'' 54 FR 34,160 
(1989).
    The Department, based on an argument not previously presented, now 
proposes to revise its interpretation regarding the eligibility of 
persons who relocated to Japan during World War II. Specifically, it 
proposes to revise its determination of eligibility with regard to 
persons who were under the age of 21 and not emancipated as of their 
dates of departures from the United States, who did not participate in 
the active military service on behalf of an enemy government during 
World War II, and who are otherwise eligible for redress under these 
regulations.
    In proposing this revision, the Department is operating within the 
established framework of Chevron v. N.R.D.C., 467 U.S. 837, 842-43. 
Under Chevron, an agency must give effect to the unambiguously 
expressed intent of Congress when interpreting a statute. However, 
where an act is silent or ambiguous with respect to a specific issue, 
Congress has assigned to the agency the responsibility to elucidate a 
specific provision of the statute by regulation. Id. at 843-44. For the 
reasons set forth below, the Department believes that the proscription 
of section 108 is ambiguous with respect to its coverage of the class 
of individuals described above, and that the proposed revision is a 
reasonable interpretation of the statute.
    As enacted, section 108 expressly excludes from eligibility ``any 
individual who, during the period beginning on December 7, 1941, and 
ending on September 2, 1945, relocated to (another) country while the 
United States was at war with that country.'' 50 U.S.C. app. 1989b-7 
(emphasis added). This language does not specifically resolve whether 
the exclusion applies to individuals who relocated involuntarily.
    This issue is suggested on the face of the statute when it is read 
as a whole because, while the statute uses the active voice in section 
108's exclusion clause, the eligibility clauses of the statute use the 
passive voice. For example, section 108 begins by defining an 
``eligible individual'' as a person of Japanese ancestry ``who, during 
the evacuation, relocation and internment period--* * * was confined, 
held in custody, relocated, or otherwise deprived of liberty or 
property as a result of * * * (various Executive Orders and Acts).'' 50 
U.S.C. app. 1989b-7(2) (emphasis added). Title II of the Act, which 
provides reparations to Aleuts evacuated from their home islands during 
World War II, similarly defines an eligible Aleut as a person ``who, as 
a civilian, was relocated by authority of the United States from his or 
her home village * * * to an internment camp * * *.'' 50 U.S.C. app. 
1989c-1(5) (emphasis added). The contrasting use of the active voice in 
the exclusion clause suggests the possibility that section 108 might be 
read to exclude only those individuals who voluntarily relocated to an 
enemy country during the war.
    This possibility is consistent with judicial decisions. The United 
States Courts of Appeals for the District of Columbia and the Ninth 
Circuits have deemed the use of the active as opposed to the passive 
voice relevant for purposes of statutory interpretation. Dickson v. 
Office of Personnel Mgmt., 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated 
use of passive voice in phrase defining liability is significant and 
allows suit against Office of Personnel Management whenever an adverse 
determination ``is made,'' even if by another agency); United States v. 
Arrellano, 812 F.2d 1209, 1212 (9th Cir. 1987) (clause of statute 
defining criminal intent phrased in active voice applies to conduct of 
the accused, while second clause phrased in passive voice applies only 
to the conduct of others). Thus, the statutory language creates an 
ambiguity as to whether eligibility decisions should distinguish 
between voluntary relocatees and involuntary relocatees. For the 
reasons that follow, we believe the better interpretation is to exclude 
only individuals who relocated voluntarily.
    The Act's legislative history provides very little significant 
insight into congressional intent regarding the eligibility of 
involuntary relocatees. As originally introduced, neither the House nor 
the Senate bill included a relocation exclusion provision in the 
section defining eligible individuals. Entering conference, the House 
version of the Act contained the exclusion, while the Senate version 
contained no such provision. The conferees agreed to adopt the House 
provision, which excluded ``those individuals who, during the period 
from December 7, 1941, through September 2, 1945, relocated to a 
country at war with the United States.'' H.R. Conf. Rep. No. 785, 100th 
Cong., 2d Sess. 22 (1988). There is no additional discussion of the 
relocation exclusion in the conference report.
    A discussion of whether individuals who returned to Japan should be 
included in the definition of ``eligible individuals'' is contained in 
a witness statement submitted to the House and Senate subcommittees 
considering the legislation. In testimony opposing the enactment of the 
bill, the Assistant Attorney General for the Civil Division, Richard K. 
Willard, noted that as then written (without the relocation exclusion), 
the breadth of the definition would cover any individual who had been 
subject to exclusion, relocation, or internment, including persons 
living outside the United States. In the Department's view, this 
overlooked the fact that at least several hundred of the detainees were 
``fanatical pro-Japanese, * * * and (had) voluntarily sought 
repatriation to Japan after the end of the war.'' The Department 
believed that allowing these disloyal individuals to receive the 
benefit of the legislation

[[Page 29718]]

would be unfair to the United States and to loyal persons of Japanese 
descent. To Accept the Findings and to Implement the Recommendations of 
the Commission on Wartime Relocation and Internment of Civilians: 
Hearing on S. 1009 Before the Subcomm. on Federal Services, Post 
Office, and Civil Service of the Senate Comm. on Governmental Affairs, 
100th. Cong., 1st Sess. 281, 296 (1987) (Hearings). This statement, 
however, does not reveal or suggest an opinion that the bill ought to 
exclude from redress persons who involuntarily relocated to an enemy 
country.
    In sum, the Department believes that section 108's exclusion of 
persons who relocated to an enemy country during World War II is 
susceptible to the interpretation that it does not apply to persons who 
relocated involuntarily, that so interpreting the statute gives effect 
to the principles Congress meant to embody in the exclusionary 
provision, and that this interpretation is otherwise a reasonable 
construction of the statute.
    The Department further notes that the determination of whether a 
person relocated voluntarily to an enemy country during World War II is 
extraordinarily difficult to determine at this late date, over half a 
century since the period during which the actions that are relevant to 
a determination about the state of mind of individual relocatees took 
place. Under these circumstances, the Department has discretion to 
structure the process for determining redress eligibility in a manner 
that avoids the inherent inaccuracy of any attempt to engage in a case-
by-case inquiry into the subjective factor of state of mind, as well as 
the potential administrative burdens associated with case-by-case 
inquiry, by articulating some reasonable objective criteria to guide 
the process.
    To that end, the Department proposes two bright line rules to 
administer section 108's exclusion provision. First, any person who was 
21 years of age or older, or otherwise emancipated by petition of the 
court or by marriage, as of the date of his or her departure from the 
United States, shall be irrebuttably presumed to have relocated 
voluntarily, and will be ineligible for redress under the Act. Second, 
any person who served in the Japanese military, or the military of 
another enemy country, during the statutorily-defined war period shall 
be irrebuttably presumed to have relocated voluntarily and, therefore, 
will be ineligible for redress. All otherwise eligible persons falling 
outside these categories, that is, persons who were minors and not 
otherwise emancipated as of the dates of their departures from the 
United States and who did not serve in the Japanese military or the 
military of another enemy government during the statutorily-defined war 
period, shall be considered involuntary relocatees and therefore 
eligible for redress under the Act.
    The Supreme Court has affirmed the ability of agencies to employ 
generally applicable rules as an alternative to case-by-case 
adjudication. See e.g., American Hospital Ass'n v. NLRB, 499 U.S. 606, 
611 (1991) (``[Prior decisions of this Court] confirm that, even if a 
statutory scheme requires individualized determinations, the decision-
maker has the authority to rely on rulemaking to resolve certain issues 
of general applicability unless Congress clearly expresses an intent to 
withhold that authority.''). In particular, the Court has noted that 
the Congress is free to use prophylactic rules despite their ``inherent 
imprecision'' when it wishes to avoid ``the expense and other 
difficulties of individual determinations.'' Weinberger v., Salfi, 422 
U.S. 749, 777 (1975).
    The Department believes that under American Hospital Ass'n and 
other authorities agencies enjoy a similar latitude to that enunciated 
in Weinberger. As in Weinberger, justifying the use of such bright-line 
rules does not require determining whether the rules ``precisely 
filter() out those, and only those, who are in the factual position 
which generated the congressional concern * * * (n) or * * * whether 
(they) filter( ) out a substantial part of the class which caused the * 
* * concern, or whether (they) filter() out more members of the class 
than nonmembers.'' Id. Rather, the question is whether the Department 
could ``rationally have concluded both that * * * particular (rules) 
would protect against (the abuse Congress sought to avoid), and that 
the expense and other difficulties of individualized determinations 
justified (their) inherent imprecision.'' Id. For the reasons that 
follow, the proposed rules satisfy this standard.
    As stated above, the Department proposes to apply an irrebuttable 
presumption that persons who were 21 years of age or older, or 
otherwise emancipated by petition of the court or by marriage, as of 
the dates of their departures from the United States, were voluntary 
relocatees. The Department proposes to apply this irrebuttable 
presumption because adult relocatees were more likely than minor 
relocatees to have been able to assent freely to their return to Japan. 
The age of 21 as of the date of departure was chosen because, during 
the period covered by the Act's relocation exclusion, the legal age of 
majority in most states was 21.
    Noting the dearth of legislative history pertaining to the Act's 
exclusion clause, the United States Court of Federal Claims stated in 
Suzuki v. United States, 29 Fed. Cl. 688 (1993), that Congress may have 
enacted the exclusion clause in an effort to deny benefits to 
individuals who had either been disloyal to the United States or ``who, 
despite possible continued loyalty to the United States, had aided an 
enemy country during war.'' Id. at 695. Nothing in the Department's 
revised interpretation of section 108 is inconsistent with this 
observation, since both of the possible purposes cited by the court 
assume volition on the part of the relocatee to leave the Untied States 
and relocate to Japan. If, by contrast, an individual relocatee was not 
free to assent to his or her relocation on account of his or her 
minority status, it is reasonable for the Department to conclude that 
such individual was not the type of person against whom Congress 
intended to apply section 108's exclusion provision. By itself, the 
relocation of minors during World War II does not raise doubts or 
inferences concerning disloyalty. In fact, most American-born minor 
relocatees returned to the United States following the war.
    Examples of distinctions in the treatment of minors and adults 
abound in our law. See Thompson v. Oklahoma, 487 U.S. 815, 823 (1988) 
(plurality opinion). Accordingly, it is reasonable for the Department 
to apply such a distinction in determining whether individuals who 
related to Japan during the statutorily-defined war period did so 
voluntarily.
    The Department also proposes to apply an irrebuttable presumption 
that individuals who served in the military of an enemy government 
during the statutorily-defined war period relocated voluntarily because 
the Department believes that evidence that an individual entered into 
the active military service on behalf of an enemy government following 
his or her departure from the United States is a strong indication that 
the individual relocated voluntarily. In view of that reasonable belief 
and the fact that it is difficult at this time to determine with 
complete certainty the motivations of individuals who joined the active 
military service against the United States during World War II, and in 
light of the increased administrative burdens associated with 
individualized efforts to ascertain the 50-year-old motivations of such 
individuals, the Department believes it is appropriate to interpret the

[[Page 29719]]

fact that an individual served in the military of an enemy government 
following his or her relocation as evidence that the individual 
relocated voluntarily.
    The Department will thus require individuals who apply for redress 
under the Act and who relocated to Japan during the statutorily-defined 
war period to provide information as to their ages and emancipation 
status upon their dates of departure from the United states to relocate 
to Japan, and to state whether or not they participated in the active 
military service on behalf of an enemy government, including the 
Japanese Government, during World War II. If such individuals state 
that they were 21 years of age or older, or emancipated minors, as of 
the dates of their departures, they will be deemed ineligible for 
redress under the Act. Similarly, if such individuals state that they 
participated in the active military service on behalf of an enemy 
government during World War II, they also will be deemed ineligible. In 
contrast, otherwise eligible relocatees who were under the age of 21 
and not otherwise emancipated upon the dates of their departures from 
the United States, and who did not serve in the military on behalf of 
an enemy government during World War II, will be eligible for redress 
under the Act.

III. Regulatory Impact Analysis

    The Office of Management and Budget has determined that this 
proposed rule is a significant regulatory action under Executive Order 
No. 12866 and, accordingly, this proposed rule has been reviewed and 
approved by the Office of Management and Budget. Information collection 
associated with this regulation has been approved by the Office of 
Management and Budget, OMB No. 1190-0010. Comments about this 
collection can be filed with the Clearance Officer, Office of Redress 
Administration, PO Box 66260, Washington, DC 20035-6260, and the Desk 
Officer, Office of Information and Regulatory Affairs, Office of 
Management and Budget, New Executive Office building, Washington, DC 
20503.

List of Subjects in 28 CFR Part 74

    Administrative practice and procedure, Aliens, Archives and 
records, Citizenship and naturalization, Civil rights, Indemnity 
payments, Minority groups, Nationality, War claims.

    For the reasons set forth in the preamble and by the authority 
vested in me, including 28 U.S.C. 509 and 510, chapter I of title 28, 
part 74, of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 74--CIVIL LIBERTIES ACT REDRESS PROVISION

    1. The authority citation for Part 74 continues to read as follows:

    Authority: 50 U.S.C. app. 1989b.

    2. In subpart B, Sec. 74.4 is revised to read as follows:

Subpart B--Standards of Eligibility


Sec. 74.4  Individuals excluded from compensation pursuant to section 
108(B) of the Act.

    (a) The Term ``eligible individual'' does not include any 
individual who, during the period beginning on December 7, 1941, and 
ending on September 2, 1945, relocated to a country while the United 
States was at war with that country.
    (b) Nothing in paragraph (a) of this section is meant to exclude 
from eligibility any person who, during the period beginning on 
December 7, 1941, and ending on September 2, 1945, relocated to a 
country while the United States was at war with that country, and who 
had not yet reached the age of 21 and was not emancipated as of the 
date of departure from the United States, provided that such person is 
otherwise eligible for redress under these regulations and the 
following standards:
    (1) Persons who were 21 years of age or older, or emancipated 
minors, on the date they departed the United States for Japan are 
subject to an irrebuttable presumption that they relocated to Japan 
voluntarily and will be ineligible.
    (2) Persons who served in the active military service on behalf of 
the Government of Japan or an enemy government during the period 
beginning on December 7, 1941 and ending on September 2, 1945, are 
subject to an irrebuttable presumption that they departed the United 
States voluntarily for Japan. If such individuals served in the active 
military service of an enemy country, they must inform the Office of 
such service and, as a result, will be ineligible.

    Dated: June 5, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-14721 Filed 6-11-96; 8:45 am]
BILLING CODE 4410-10-M