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

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]

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