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15 September 2006
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[Federal Register: September 15, 2006 (Volume 71, Number 179)]
[Rules and Regulations]
[Page 54412-54415]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se06-7]
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DEPARTMENT OF JUSTICE
28 CFR Parts 0 and 45
[AG Order No. 2835-2006]
Reporting Violations to the Office of the Inspector General and
the Office of Professional Responsibility; Delegations of Authority
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends the regulations of the Department of
Justice to codify the obligation to report misconduct to the Office of
the Inspector General (OIG) and the Department of Justice Office of
Professional Responsibility (OPR), to reflect the conferral of
statutory law enforcement authority on OIG special agents, to update
the structure, functions, and responsibilities of OPR, and to reflect
the current organizational structure of the OIG.
DATES: Effective Date: September 11, 2006.
FOR FURTHER INFORMATION CONTACT: Mary Anne Hoopes, Associate Counsel,
Office of Professional Responsibility, United States Department of
Justice, Washington, DC 20530 (202) 514-3365 (regarding matters related
to OPR), or Gail A. Robinson, General Counsel, Office of the Inspector
General, United States Department of Justice, Washington, DC 20530
(202) 616-0646 (regarding matters related to the OIG).
SUPPLEMENTARY INFORMATION: 1. This rule amends 28 CFR part 0 to clarify
the delegation of authority by the Attorney General to the Counsel for
Professional Responsibility and to codify authority of the Inspector
General. This rule permits OPR and the OIG to investigate specific
matters, make such recommendations as appropriate to the Deputy
Attorney General and the Attorney General, and coordinate their
activities to improve the professionalism of the Department and to
reduce waste, fraud, and abuse.
2. This rule amends 28 CFR part 45 by adding three new sections.
The rule codifies the Attorney General's April 12, 2002 Memorandum For
Department of Justice Employees Regarding the Duty to Report Misconduct
and Cooperate with Investigators. This Memorandum provides for
notifying the OIG of fraud, waste, abuse, or misconduct, except for
those matters in the jurisdiction of OPR. This rule is not a
substantive change, but merely codifies existing practice. The rule
also implements section 308 of the Department of Justice Appropriations
Authorization Act for FY 2002 and 2003, Public Law 107-273 (Nov. 2,
2002), which amended 5 U.S.C. app. 3, 8E, and which provides in
pertinent part:
The Attorney General shall ensure by regulation that any
component of the Department of Justice receiving a nonfrivolous
allegation of criminal wrongdoing or administrative misconduct by an
employee of the Department of Justice, except with respect to
allegations described in subsection (b)(3) [matters within the
investigative jurisdiction of the Department of Justice Office of
Professional Responsibility], shall report that information to the
Inspector General.
This rule is also a codification of preexisting principles as set
forth in the United States Attorneys' Manual, Sec. 1-4.100, Standards
of Conduct Allegations of Misconduct by Department of Justice Employees
Reporting Misconduct Allegations. Although the language of section 308
of P.L. 107-273 is not identical to the prior regulations on this
subject, the Attorney General interprets the statutory language as
intended to codify the prior and existing practice.
3. This rule revises the description of OPR to reflect the changes
made in that Office's jurisdiction since its creation on December 9,
1975, including AG Order 833-79 (45 FR 27754-55, April 24, 1980); AG
Order 1931-94 (November 8, 1994), AG Order 2167-98 (63 FR 35847, July
8, 1998), AG Order 2190-98 (63 FR 62937-01, November 10, 1998), and AG
Order 2492-2001 (66 FR 37902-01, July 20, 2001).
As originally constituted, OPR's jurisdiction was extraordinarily
broad. OPR was empowered to ``[r]eceive and review any information or
allegation concerning conduct by a Department employee that may be in
violation of law, regulations or orders, or of applicable standards of
conduct or may constitute mismanagement, gross waste of funds, abuse of
authority, or a substantial and specific danger to public health or
safety.'' 28 CFR 0.39a(a). Its role in investigating those allegations,
however, was relatively narrow, in keeping with its small size. OPR was
to ``[m]ake such preliminary inquiry as may be necessary to determine
whether the matter should be referred to another official within the
Department,'' 28 CFR 0.39a(c), and then to make an appropriate referral
either to the head of the Department of Justice component to which the
employee was assigned, or to that component's internal inspection unit,
if no violation of law was alleged, or to the appropriate investigative
agency, if the conduct appeared to involve a violation of law, 28 CFR
0.39a(d)(1) and (2). OPR then received reports from the investigating
component on the status and outcome of investigations referred by OPR.
28 CFR 0.39a(e)(1). If OPR deemed it inappropriate to refer an
allegation to the employing component, it was to refer the matter to
the Attorney General and the Deputy Attorney General, or, if that would
be inappropriate, to the Associate Attorney General or the Solicitor
General. 28 CFR 0.39a(d)(3). In that event, OPR was to ``recommend what
further action should be undertaken'' with respect to the allegation,
``including the assignment of any task force or individual to undertake
the action recommended.'' 28 CFR 0.39a(g). Finally, under 28 CFR
0.39a(h), OPR was authorized to
[[Page 54413]]
``[u]ndertake any investigation of a matter referred under paragraph
(d)(3) of this section that may be assigned by the Attorney General,
the Deputy Attorney General, the Associate Attorney General, or the
Solicitor General, or cooperate with any other organization, task
force, or individual that may be assigned by such official to undertake
the investigation.'' 28 CFR 0.39a(h). Consistent with the Attorney
General's authority to assign functions within the Department, the
regulations provided that OPR was also authorized to ``[u]ndertake any
other responsibilities assigned by the Attorney General including
duties relating to the improvement of the performance of the
Department.'' 28 CFR 0.39a(k).
Following the creation of the OIG in 1989, the role of OPR was
focused specifically on addressing allegations of misconduct by
Department attorneys and law enforcement personnel, accomplished
through direct investigation by OPR or by OPR's oversight of the
Offices of Professional Responsibility of the Federal Bureau of
Investigation (FBI) and the Drug Enforcement Administration (DEA). In
2001, general oversight of those offices was transferred to the OIG,
while OPR was charged with investigating allegations of misconduct
involving Department attorneys that relate to the exercise of their
authority to investigate, litigate, or provide legal advice, as well as
allegations of misconduct by law enforcement personnel when they are
related to allegations of attorney misconduct within the jurisdiction
of OPR.
The Department believes that it is appropriate to update the
organizational language within 28 CFR part 0 at this time to reflect
more accurately the delegations of authority and investigative
assignments made by statute and the Attorney General. Although the
organic provisions of 28 CFR part 0 do not create substantive or
procedural rights as a general proposition, clarity of understanding of
the organization of, and responsibilities within, the Department
benefits the public in general. In this instance, the Department is
clarifying the internal investigative functions of OPR.
4. This rule also amends 28 CFR part 0 to reflect the conferral of
statutory law enforcement authority on OIG special agents. The
Department's organizational regulations, 28 CFR 0.29j, authorized OIG
special agents to perform law enforcement functions as Special Deputy
United States Marshals. Section 812 of the Homeland Security Act, Pub.
L. 107-296, Sec. 812, 116 Stat. 2135, 2222 (Nov. 25, 2002), amending
section 6(e) of the Inspector General Act of 1978, provided that the
Attorney General may, through the adoption of guidelines, authorize
Special Agents under the direction of an Assistant Inspector General
for Investigations to exercise the following law enforcement powers:
(A) To carry a firearm while engaged in official duties or as
expressly authorized by the Attorney General;
(B) to make arrests, while engaged in official duties or as
expressly authorized by the Attorney General, (i) for federal offenses
committed in the officer's presence, or
(ii) for any federal felony if the agent has reasonable grounds to
believe that the person has committed or is committing such felony; and
(C) to seek and execute federal arrest and search warrants issued
upon probable cause.
As provided for in this section, the Attorney General adopted the
Attorney General Guidelines for Offices of Inspector General with
Statutory Law Enforcement Authority (``Attorney General Guidelines'' or
``Guidelines'') on December 8, 2003, authorizing and governing the
exercise of these authorities for Inspector General offices of the
Departments and agencies specified in section 6(e)(3) of the Inspector
General Act, as amended. These Guidelines are applicable to Inspectors
General under section 6(e) of the Inspector General Act, as amended,
and Special Agents under their authority, and apply operational
guidelines and policies of the Department of Justice in the performance
of criminal law enforcement investigations, e.g., the Attorney
General's Guidelines on General Crimes, Racketeering Enterprise, and
Terrorism Enterprise Investigations; the Attorney General's Guidelines
Regarding the Use of Confidential Informants; and the Attorney
General's Memorandum on Procedures for Lawful, Warrantless Monitoring
of Verbal Communications, as amended and updated, and any other
Attorney General guidelines applicable to criminal investigative
practices. The Attorney General Guidelines and these operational
guidelines are subject to change.
In view of the promulgation of the Attorney General Guidelines, the
Department is making conforming amendments to the existing regulations
governing the Department's OIG, in order to reflect the provisions of
section 6(e) and the issuance of the Attorney General's Guidelines.
5. This rule also amends 28 CFR 0.29(a) to reflect the current
organizational structure of the OIG.
Regulatory Matters
This rule was not published for public comment and takes effect
immediately because it pertains to matters of internal agency
management. See 5 U.S.C. 553(b) and (d). In accordance with 5 U.S.C.
605(b), the Attorney General certifies that this rule does not have a
significant adverse economic impact on a substantial number of small
entities and does not have an effect beyond the internal operating
procedures of the Department.
This rule is not considered to be a ``rule'' within the meaning of
section 3(d) of Executive Order 12866, nor does this rule have
federalism implications warranting the preparation of a federalism
assessment in accordance with section 6 of Executive Order 12612. This
rule is not a ``rule'' within the meaning of the Congressional Review
Act, 5 U.S.C. 801 et seq.
List of Subjects
28 CFR Part 0
Government employees, Delegations of authority.
28 CFR Part 45
Government employees, Ethics.
0
Accordingly, by virtue of the authority vested in me as Attorney
General, including 5 U.S.C. 301 and 28 U.S.C. 509, 510, Part 0 and Part
45 of title 28 of the Code of Federal Regulations are amended as
follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 302; 28 U.S.C. 509, 510, 515-519.
0
2. Paragraph (a) of Sec. 0.29 is revised to read as follows:
Sec. 0.29 Organization.
(a) The Office of the Inspector General consists of an immediate
office, which is composed of the Inspector General, the Deputy
Inspector General, and the Office of the General Counsel, and five
major divisions, each headed by an Assistant Inspector General. The
five OIG divisions are: Audit; Investigations; Evaluation and
Inspections; Oversight and Review; and Management and Planning.
* * * * *
0
3. Section 0.29j is revised to read as follows:
Sec. 0.29j Law enforcement authority.
Subject to guidelines promulgated by the Attorney General, Special
Agents of
[[Page 54414]]
the Office of the Inspector General are authorized to:
(a) Detect and assist in the prosecution of crimes in violation of
the laws of the United States and to conduct such other investigations
regarding matters that are within the jurisdiction of the Inspector
General;
(b) Serve legal writs, summons, complaints, and subpoenas issued by
the Inspector General or by a Federal grand jury;
(c) Receive, transport, and provide safekeeping of arrestees and
other persons in the custody of the Attorney General or detained
aliens;
(d) Arrest without warrant any person for an offense against the
United States committed in the presence of the Special Agent or whom
the Special Agent has reasonable grounds to believe has committed or is
committing a felony cognizable under the laws of the United States;
(e) Seek and execute search and arrest warrants;
(f) Carry firearms while on-duty; and
(g) Carry firearms while off-duty as authorized by the Inspector
General.
0
4. Subpart G-2 is revised to read as follows:
Subpart G-2--Office of Professional Responsibility
Sec.
0.39 Office of Professional Responsibility.
0.39a Functions.
0.39b Confidentiality of information.
0.39c Relationship to other departmental units.
Subpart G-2--Office of Professional Responsibility
Sec. 0.39 Office of Professional Responsibility.
The Office of Professional Responsibility (DOJ-OPR) shall be headed
by a Counsel, who shall be appointed by the Attorney General and
subject to the general supervision and direction of the Attorney
General or, whenever appropriate, the Deputy Attorney General.
Sec. 0.39a Functions.
(a) The Counsel shall:
(1) Receive, review, investigate and refer for appropriate action
allegations of misconduct involving Department attorneys that relate to
the exercise of their authority to investigate, litigate or provide
legal advice, as well as allegations of misconduct by law enforcement
personnel when such allegations are related to allegations of attorney
misconduct within the jurisdiction of DOJ-OPR;
(2) Receive, review, investigate and refer for appropriate action;
(i) Any allegation of reprisal against an employee or applicant who
discloses information pursuant to paragraph (a)(1) of this section; and
(ii) Allegations of reprisal taken against any Federal Bureau of
Investigation employee for disclosing information pursuant to 28 CFR
27.1;
(3) Report to the responsible Department official the results of
inquiries and investigations arising under paragraphs (a)(1) and (2) of
this section, and, when appropriate, make recommendations for
disciplinary and other corrective action;
(4) Refer any allegation not arising under paragraphs (a)(1) or (2)
of this section to the Inspector General or another appropriate
Department official;
(5) Notify any person who has made allegations pursuant to
paragraphs (a)(1) or (2) of this section and any person who was the
subject of such allegations of the completion and, as appropriate, the
results of, any inquiry or investigation undertaken, where such
notification is permitted by law and consistent with the law
enforcement interests of the Department;
(6) Engage in liaison with the bar disciplinary authorities of the
states, territories, and the District of Columbia with respect to
professional misconduct matters;
(7) Submit an annual report to the Attorney General summarizing the
work of the Office;
(8) Submit recommendations to the Attorney General and the Deputy
Attorney General on the need for changes in policies and procedures
that become evident during the course of the Counsel's inquiries and
investigations;
(9) Review proposals from Department employees to refer to
appropriate licensing authorities apparent professional misconduct by
attorneys outside the Department, and make such referrals where
warranted, except that referrals made pursuant to 8 CFR 1003.106(d) do
not require the Counsel's review; and
(10) Perform any other responsibilities assigned by the Attorney
General or the Deputy Attorney General.
(b) For the purpose of paragraph (a)(2)(i) of this section, any
disclosure by an employee or applicant to a supervisor, Professional
Responsibility Officer, the Office of Professional Responsibility, the
Office of the Inspector General, the Executive Office for United States
Attorneys, or other appropriate individual or component shall
constitute disclosure to the Attorney General or the Counsel.
Sec. 0.39b Confidentiality of information.
The Counsel shall not disclose the identity of any person
submitting an allegation of misconduct or reprisal pursuant to 28 CFR
0.39a(a)(1) or (2) unless the person consents to the disclosure of his
identity or the disclosure is necessary to carry out the authority of
the Office of Professional Responsibility, including conducting an
investigation or referring the allegation to another component.
Sec. 0.39c Relationship to other departmental units.
(a) Primary responsibility for assuring the maintenance of the
highest standards of professional responsibility by Department
employees rests with the heads of the offices, divisions, bureaus, and
boards of the Department.
(b) The heads of the offices, divisions, bureaus, and boards shall
assure that any judicial finding of misconduct or serious judicial
criticism relating to the duties described in Sec. 0.39(a)(1), or any
nonfrivolous allegation of serious misconduct concerning an employee in
their component and relating to those duties, is reported to the
Counsel.
(c) The heads of the offices, divisions, bureaus, and boards shall
provide information and assistance requested by the Counsel in
connection with any inquiries or investigations conducted by the
Counsel or by the Counsel's staff. As set forth in part 45, all
Department personnel, including the subject(s) of any inquiry or
investigation, shall cooperate fully with any investigation conducted
by the Counsel or his designee.
PART 45--EMPLOYEE RESPONSIBILITIES
0
5. The authority citation for part 45 is revised to read as follows:
Authority: 5 U.S.C. 301, 7301, App. 3, 6; 18 U.S.C. 207; 28
U.S.C. 503, 528; DOJ Order 1735.1.
0
6. Part 45 is amended by adding new Sec. Sec. 45.11, 45.12, and 45.13,
to read as follows:
Sec. 45.11 Reporting to the Office of the Inspector General.
Department of Justice employees have a duty to, and shall, report
to the Department of Justice Office of the Inspector General, or to
their supervisor or their component's internal affairs office for
referral to the Office of the Inspector General:
(a) Any allegation of waste, fraud, or abuse in a Department
program or activity;
(b) Any allegation of criminal or serious administrative misconduct
on
[[Page 54415]]
the part of a Department employee (except those allegations of
misconduct that are required to be reported to the Department of
Justice Office of Professional Responsibility pursuant to Sec. 45.12);
and
(c) Any investigation of allegations of criminal misconduct against
any Department employee.
Sec. 45.12 Reporting to the Department of Justice Office of
Professional Responsibility.
Department employees have a duty to, and shall, report to the
Department of Justice Office of Professional Responsibility (DOJ-OPR),
or to their supervisor, or their component's internal affairs office
for referral to DOJ-OPR, any allegations of misconduct by a Department
attorney that relate to the exercise of the attorney's authority to
investigate, litigate or provide legal advice, as well as allegations
of misconduct by law enforcement personnel when such allegations are
related to allegations of attorney misconduct within the jurisdiction
of DOJ-OPR.
Sec. 45.13 Duty to cooperate in an official investigation.
Department employees have a duty to, and shall, cooperate fully
with the Office of the Inspector General and Office of Professional
Responsibility, and shall respond to questions posed during the course
of an investigation upon being informed that their statement will not
be used to incriminate them in a criminal proceeding. Refusal to
cooperate could lead to disciplinary action.
Dated: September 11, 2006.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E6-15315 Filed 9-14-06; 8:45 am]
BILLING CODE 4410-BD-P