of material or the disclosure of information described in § 16.11, he shall immediately notify the Attorney General and the U.S. attorney for the district where the issuing court or other authority is located. The U.S. attorney shall immediately request instructions from the Attorney General. If possible, the Attorney General shall be notified before the employee or former employee concerned replies to or appears before the court or other authority.

(b) If response to the demand is required before the instructions from the Attorney General are received, the U.S. attorney or other attorney as may be designated for the purpose, shall appear with the employee or former employee of the Department upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been or is being, as the case may be, referred for the prompt consideration of the Attorney General. The court or other authority shall be requested respectfully to stay the demand pending receipt of the requested instructions from the Attorney General.

§ 16.14 Procedure in the event of an adverse ruling.

If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 16.13(b) pending receipt of instructions from the Attorney General, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the Attorney General not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand (United States ex rel Touhy v. Ragen, 340 U.S. 462).

PART 21-WITNESS FEES

Sec. 21.1 Officers and employees of the United States summoned as witnesses. 21.2 Witnesses at administrative hearings. 21.3 Fees and allowances of witnesses in the District of Alaska. 21.4 Use of table of distances.

§ 21.1 Officers and employees of the United States summoned as witnesses. Officers and employees of the United States summoned as witnesses for the

Government in cases before United States courts (including such courts in the possessions of the United States) or United States commissioners shall be entitled (a) to necessary expenses incident to travel by common carrier, or, if travel is made by privately-owned automobile, to mileage at the rate of ten cents a mile, and (b) to a per-diem allowance, in lieu of subsistence, at the rate of $16 within the continental United States except in Alaska, and at the maximum rates prescribed by the President or his delegate pursuant to the Travel Expense Act of 1949, as amended (5 U.S.C. 836), outside the continental United States and in Alaska. Such allowances shall be paid in accordance with the provisions of the Standardized Government Travel Regulations.

(28 U.S.C. 1823 (a)) [26 F.R. 10232, Nov. 1, 1961]

§ 21.3

Fees and allowances of witnesses in the District of Alaska.

The fees and allowances of witnesses in the District of Alaska shall be as follows:

(a) For attendance at the District Court or before any officer pursuant to law, including a commissioner acting in any capacity authorized by law, and for the time necassarily occupied in traveling from their place of residence to the place of trial or hearing and in returning therefrom, witnesses shall be entitled to $24 a day.

(b) In addition to the fee fixed by paragraph (a) of this section, witnesses (other than salaried employees of the Government and detained witnesses) who attend court or attend before a commissioner at points so far removed from their place of residence that they are unable to return thereto each day shall be entitled to a subsistence allowance of $20 a day for each day of such attendance and for each day necessarily occupied in traveling to the place of such

attendance and in returning to their place of residence.

(c) Witnesses shall be entitled to travel expenses on the basis of the means of travel actually employed and the distance actually and necessarily traveled, and in accordance with the following:

(1) If the travel is by common carrier, witnesses shall be entitled to the cost of the most economical accommodations available, including jet coach for travel in Alaska and outside Alaska in proceeding to or from Alaska. Receipts or other evidence of actual payment shall be furnished whenever practicable.

(2) If the travel is by privately-owned automobile or other private carrier, witnesses shall be entitled to 15 cents a mile for travel in Alaska; provided that whenever the use of a private airplane, dogteam, or boat is approved by the court, a commissioner, the United States Attorney, or an Assistant United States Attorney, witnesses may be paid the actual rental cost or reasonable estimate of necessary expense.

(3) If the travel is by privately-owned automobile or other private carrier, witnesses shall be entitled to 8 cents a mile for travel outside Alaska in proceeding to or from Alaska: Provided, That the total entitlement, including attendance fees and subsistence allowances, shall not exceed that which would have been payable had the most economical accommodations available via common carrier, including jet coach been used.

(4) In addition to the allowances to which they are entitled under subparagraphs (1), (2), and (3) of this paragraph, witnesses shall be entitled to incidental travel expenses, such as taxicab fares between the place of lodging and the carrier terminal, and bridge, road, and tunnel tolls, and ferry fares.

(d) Witnesses detained in prison for want of security for their appearance shall not be entitled to attendance fees and subsistence allowances as prescribed in paragraphs (a) and (b) of this section, but shall be entitled to one dollar a day, in addition to the actual subsistence furnished by the Government, while thus detained.

(e) Officers and employees of the United States summoned as witnesses for the Government in matters before the District Court of Alaska or commissioners shall be entitled to expenses and subsistence allowances as provided by § 21.1.

(f) Payment of witness fees, subsistence allowances, and travel expenses by the United States under this section shall be made upon the basis of a certificate signed by the United States Attorney, an Assistant United States Attorney, the attorney in charge of the case, or a commissioner. With respect to any witness who is allowed subsistence, the certificate shall state that the witness attended court, or attended before a commissioner, as the case may be, at a point so far removed from his place of residence that he was unable to return thereto each day. (Sec. 30, 31 Stat. 332, sec. 23, 73 Stat. 147; 48 U.S.C. 25, 28 U.S.C. 81A nt.) [Order 214-60, 25 F.R. 12290, Dec. 1, 1960 as amended by Order 408-69, 34 F.R. 436, Jan. 11, 1969] § 21.4 Use of table of distances.

Regardless of the mode of travel actually employed, mileage payable to witnesses under section 1821 of Title 28 of the United States Code, as amended by the act of August 1, 1956, 70 Stat. 798, shall be computed on the basis of highway distances as stated in the Rand McNally Standard Highway Mileage Guide or in any other generally accepted highway mileage guide which contains a short-line nationwide table of distances and which is designated by the Assistant Attorney General for Administration for such purpose: Provided, That with respect to travel in areas for which no such highway mileage guide exists, mileage payable under the said section 1821 shall be computed on the basis (a) of the mode of travel actually employed, (b) of a usually-traveled route, and (c) of distances as generally accepted in the locality.

(Sec. 1, 62 Stat. 590, as amended, sec. 45, 68 Stat. 1242, as amended; 28 U.S.C. 1823, 1821) [Order No. 291-62, 27 F.R. 12619, Dec. 20, 1962; Order 327-64, 29 F.R. 15918, Nov. 28, 1964]

Sec. 41.9 41.10 41.11

Recording of testimony.

Determination.

Previous designations not affected. AUTHORITY: The provisions of this Part 41 issued under 80 Stat. 379; 5 U.S.C. 301, E.O. 9835; 3 CFR, 1943-1948 Comp. E.O. 10450; 3 CFR, 1949-1953 Comp.

SOURCE: The provisions of this Part 41 contained in Order No. 11-53, 18 F.R. 2619, May 6, 1953; 18 F.R. 2739, May 12, 1953, unless otherwise noted.

§ 41.1 Notice to and by organizations.

(a) Within ten days after the effective date of Executive Order 10450 of April 27, 1953 (3 CFR, 1953 Supp.) each organization which has been designated by the Attorney General pursuant to Paragraph 3 of Part III of Executive Order 9835 of March 21, 1947 (3 CFR, 1947 Supp.), may file with the Attorney General, Department of Justice, Washington, D.C., a written notice that it contests such designation. Failure to file a notice of contest within such period shall be deemed an acquiescence in such designation.

(b) Whenever the Attorney General after appropriate investigation proposes to designate an organization pursuant to Executive Order No. 9835 or Executive Order No. 10450, or both, notice of such proposed designation shall be sent by registered mail to such organization at its last known address. If the registered notice is delivered, the organization, within ten days following its receipt or ten days following the effective date of Executive Order No. 10450, whichever shall be later, may file with the Attorney General, Department of Justice, Washington, D.C., a written notice that it desires to contest such designation. If the notice of proposed designation is not delivered and is returned by the Post Office Department, the Attorney General shall cause such notice to be published in the FEDERAL REGISTER, supplemented by such additional notice as the Attorney General may deem appropriate. Within thirty days following such publication in the FEDERAL REGISTER, such organization may file with the Attorney General, Department of Justice, Washington, D.C., a written notice that it desires to contest such designation. Failure to file a notice of contest within such period shall be deemed an acquiescence in such proposed action, and the Attorney General may thereupon after appropriate determina

tion designate such organization and publish such designation in the FEDERAL REGISTER.

(c) The notice of contest provided in this part shall be signed by the executive officers (or persons performing the ordinary and usual duties of executive officers) of the organization which desires to contest such designation or proposed designation.

§ 41.2 Statement and interrogatories by Attorney General.

Within sixty days following receipt of a notice of contest, the Attorney General shall cause to be forwarded to the organization by registered mail a statement of the grounds upon which the designation was or is proposed to be made and written interrogatories with respect thereto. In the case of organizations designated pursuant to Paragraph 3, Part III of Executive Order No. 9835 (3 CFR, 1947 Supp.), such statement may include information obtained since the designation. § 41.3 Reply by organization.

The organization, within sixty days following receipt of such statement and interrogatories, may file a verified reply which shall be signed by the executive officers (or persons performing the ordinary and usual duties of executive officers) of such organization. The reply shall answer each interrogatory completely and with particularity and shall be limited to statements of fact. The organization may also submit supporting affidavits with its reply. Failure to answer any interrogatory or any part thereof shall be deemed an admission of the truth of the facts to which such interrogatory or part thereof refers. The submission of any evasive reply to any interrogatory or any part thereof shall likewise be deemed an admission of the facts to which such interrogatory or part thereof refers. Failure of the organization to file a reply within the sixty days provided therefor shall constitute an acquiescence in designation.

§ 41.4 Request for hearing.

Any organization filing a reply as provided in this part may accompany its reply with a written request for a hearing. In the absence of such request, the Attorney General shall determine the matter on the basis of the information available to him and the reply of such organization.

(a) If upon the basis of the statement, interrogatories, reply and affidavits (if any) submitted as provided in this part it appears to the board or hearing officer that a determination may appropriately be made without the taking of evidence, the proceeding may be conducted without the taking of such evidence.

(b) The Attorney General, at his election, may rely upon the statement of grounds upon which the designation was or is proposed to be made, or may introduce evidence in support thereof or supplemental thereto, or in rebuttal of any evidence received on behalf of the organization.

(c) Hearings before a board or officer shall be informed and shall be conducted in an orderly and impartial

manner.

(d) An organization shall be entitled to appear by counsel or other representative of its own choice.

(e) Testimony shall be given under oath or affirmation.

(f) The ordinary rules of evidence need not be adhered to at the hearings but reasonable bounds shall be maintained as to relevancy, competency and materiality. Both the Attorney General and the organization may introduce such evidence as the board or officer may deem proper in the particular case. In the discretion of the board or officer, the affidavit of any witness may be received in lieu of his oral testimony.

(g) Whenever, in the judgment of the board or officer, the proposed testimony of any witness appears to be irrelevant,

immaterial, cumulative, or repetitious, the board or officer may refuse to receive such testimony.

(h) All objections to the admission or exclusion of evidence or other rulings of the board or officer shall be limited to a concise statement of the reasons therefor and shall be made part of the record. Argument upon such objections may be limited in the discretion of the board or officer.

(i) The board or officers shall be authorized to receive as evidence on behalf of the Attorney General information or documentary material, in summary form or otherwise, without requiring disclosure of classified security information or the identity of confidiential informants.

(j) Witnesses testifying before the officer or board shall be subject to crossexamination, provided that no witness on behalf of the Government shall be required to disclose classified security information or the identity of confidential informants.

(k) If in the course of a hearing any witness or other participant is guilty of misbehavior which obstructs the hearing, such person may be excluded from further participation in the hearing. § 41.9 Recording of testimony.

The testimony and proceedings at the hearing shall be recorded and transcribed by a person or persons designated by the Attorney General and made a part of the record. The organization, by its counsel or authorized representative, shall be entitled to inspect the transcript, and, upon request and at its cost, shall be furnished a copy thereof.

Within a reasonable time following completion of any proceeding hereunder, the Attorney General shall make a determination on the record which shall include the statement of the grounds, interrogatories, replies to the interrogatories, affidavits, and testimony elicited at the hearing and other documents and papers filed in the proceeding, and shall notify the organization of the determination by registered mail. In making his determination the Attorney General shall take into consideration any handicap imposed upon an organization by the non-disclosure to it of classified security information or the identity of confidential informants and by reason of the lack of opportunity to cross-examine confidential informants.

In conformity with the policy expressed in Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, I hereby declare it to be the policy of the Department of Justice to prohibit discrimination in employment because of race, color, religion, sex, or national origin and to provide equal employment opportunity in each organizational element of the Department. Management will seek out and eliminate any personnel management policy, procedure or practice which denies equality of opportunity to any group or individual on the basis of race, color, religion, sex, or national origin, and will take appropriate action to more fully utilize the abilities of all employees.

§ 42.2

Designation of Director of Equal Employment Opportunity and Complaint Adjudication Officer.

(a) In compliance with the regulations of the Civil Service Commission (5 CFR Part 713), the Assistant Attorney General for Administration is hereby designated as Director of Equal Employment Opportunity for the Department of Justice with responsibilities for administration of the Equal Employment Opportunity Program within the Department. The Director of Equal Employment Opportunity shall publish and implement the Department of Justice regulations, which shall include a positive action program to eliminate causes of discrimination and shall include procedures for processing complaints of discrimination within the Department.

(b) The Assistant Attorney General in charge of the Civil Rights Division shall appoint a Complaint Adjudication Officer, who shall render decisions for the Department of Justice on complaints