29716 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Proposed Rules

To be assured of consideration,

comments must be in writing and must

be received on or before June 20, 1996.

* * * * *

Dated: June 4, 1996.

Deval Patrick,

Assistant Attorney General.

[FR Doc. 96–14638 Filed 6–11–96; 8:45 am]

BILLING CODE 4410–01–M

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.

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.
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Proposed Rules 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
29718 Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Proposed Rules

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
Federal Register / Vol. 61, No. 114 / Wednesday, June 12, 1996 / Proposed Rules 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, § 74.4 is revised to

read as follows:

Subpart B—Standards of Eligibility

§ 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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 50

[AD–FRL–5519–4]

National Ambient Air Quality

Standards for Ozone and Particulate

Matter

AGENCY: Environmental Protection

Agency.

ACTION: Advance Notice of Proposed

Rulemaking.

SUMMARY: In accordance with sections

108 and 109 of the Clean Air Act, the

Environmental Protection Agency (EPA)

is nearing completion in its reviews of

the air quality criteria and national

ambient air quality standards (NAAQS)

for ozone (O3) and particulate matter

(PM). This action announces the

Agency’s plans to propose decisions on

whether to retain or revise the O3 and

PM NAAQS under the same schedule,

by November 29, 1996, with final action

scheduled for mid-1997. Further, this

action announces the Agency’s process

for developing integrated strategies for

the implementation of potential new O3

and PM NAAQS, as well as a regional

haze program. This action reflects the

Agency’s recognition of important

scientific and technical factors with

both these pollutants, associated

standards, and implementation

strategies to meet such standards.

Through this action, the Agency is

providing advance notice of key issues

that are being considered in the reviews

of these standards to allow more time

for the public to develop input and

comments beyond that which will be

provided following the notices of

proposed rulemaking.

FOR FURTHER INFORMATION CONTACT: Dr.

David McKee on the O3 NAAQS review,

MD–15, Air Quality Standards and

Strategies Division, Office of Air Quality

Planning and Standards, U.S.

Environmental Protection Agency,

Research Triangle Park, North Carolina

27711 (919–541–5288); Dr. Jane

Caldwell on the PM NAAQS review,

same address (919–541–0328); and Ms.

Denise Gerth on the integrated

implementation strategy development

process, same address (919–541–5550).

SUPPLEMENTARY INFORMATION:

Availability of Related Information

A. Documents Related to the O3 and PM

NAAQS Reviews

The Air Quality Criteria for Ozone

and Other Photochemical Oxidants

(EPA/600/P–93–004aF thru EPA/600/P–

93–004cF); Review of the National