[Federal Register Volume 71, Number 179 (Friday, September 15, 2006)]
[Rules and Regulations]
[Pages 54412-54415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15315]


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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]
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