Last updated on October 11th, 2024 at 11:20 pm
Title 28—Judicial Administration–Volume 1
CHAPTER I—DEPARTMENT OF JUSTICE
PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE
Subpart A—Organizational Structure of the Department of Justice
§ 0.1 Organizational units.
The Department of Justice shall consist of the following principal organizational units:
Subpart B—Office of the Attorney General
§ 0.5 Attorney General.
The Attorney General shall:
(a) Supervise and direct the administration and operation of the Department of Justice, including the offices of U.S. Attorneys and U.S. Marshals, which are within the Department of Justice.
(b) Represent the United States in legal matters generally.
(c) Furnish advice and opinions, formal and informal, on legal matters to the President and the Cabinet and to the heads of the executive departments and agencies of the Government, as provided by law.
(d) Appear in person to represent the Government in the Supreme Court of the United States, or in any other court, in which he may deem it appropriate.
(e) Designate, pursuant to Executive Orders 9788 of October 4, 1946, and 10254 of June 15, 1951, officers and agencies of the Department of Justice to act as disbursing officers for the Office of Alien Property.
(f) Perform or supervise the performance of other duties required by statute or Executive order.
§ 0.10 Attorney General’s Advisory Committee of U.S. Attorneys.
(a) The Attorney General’s Advisory Committee of United States Attorneys shall consist of an appropriate number of United States Attorneys, designated by the Attorney General. The membership shall be selected to represent the various geographic areas of the Nation and various sized United States Attorneys’ Offices. Members shall serve at the pleasure of the Attorney General, but such service normally shall not exceed three years and shall be subject to adjustment by the Attorney General so as to assure the annual rotation of approximately one-third of the Committee’s membership. The United States Attorney for the District of Columbia shall serve as an ex officio member of the Committee. The Attorney General may designate additional personnel from United States Attorneys’ Offices to serve as members of the Committee.
(b) The Committee shall make recommendations to the Attorney General, to the Deputy Attorney General and to the Associate Attorney General concerning any matters which the Committee believes to be in the best interests of justice, including, but not limited to, the following:
(1) Establishing and modifying policies and procedures of the Department;
(2) Improving management, particularly with respect to the relationships between the Department and the U.S. Attorneys;
(3) Cooperating with State Attorneys General and other State and local officials for the purpose of improving the quality of justice in the United States;
(4) Promoting greater consistency in the application of legal standards throughout the Nation and at the various levels of government; and
(5) Aiding the Attorney General, the Deputy Attorney General and the Associate Attorney General in formulating new programs for improvement of the criminal justice system at all levels, including proposals relating to legislation and court rules.
(c) The Attorney General will select from the Committee’s membership a chairperson and a vice-chairperson. The Attorney General may establish such subcommittees as deemed necessary to carry out the Committee’s objectives. The Committee, in consultation with the Director of the Executive Office for United States Attorneys, will select chairpersons for such subcommittees. United States Attorneys who are not members of the Committee may be included in the membership of subcommittees.
(d) The Executive Office for U.S. Attorneys shall provide the Committee with such staff assistance and funds as are reasonably necessary to carry out the Committee’s responsibilities.
§ 0.11 Incentive Awards Board.
The Incentive Awards Board shall consist of the Deputy Attorney General or a designee of the Deputy Attorney General, who shall be the chairperson, and four members designated by the Attorney General from among the Assistant Attorneys General, bureau heads or persons of equivalent rank in the Department. The duties of the Board shall be:
(a) Consider and make recommendations to the Attorney General concerning honorary awards and cash awards in excess of $7,500 to be granted for suggestions, inventions, superior accomplishment, or other personal effort which contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in paperwork.
(b) Consider and make recommendations to the Attorney General for transmittal to the Office of Personnel Management and the President for Presidential awards under 5 U.S.C. 4504 and 5403.
(c) Evaluate periodically the effectiveness of the employee recognition program and recommend needed improvements to the Attorney General.
§ 0.12 Young American Medals Committee.
There shall be in the Office of the Attorney General a Young American Medals Committee, which shall be composed of four members, one of whom shall be the Director of Public Affairs who shall be the Executive Secretary of the Committee. The Chairman of the Committee shall be designated by the Attorney General. The Committee shall issue regulations relating to the establishment of the Young American Medal for Bravery and Young American Medal for Service provided for by the act of August 3, 1950, 64 Stat. 397, and governing the requirements and procedures for the award of such medals. The regulations of the Committee in effect on the effective date of this part shall continue in effect until amended, modified, or revoked by the Committee.
§ 0.13 Legal proceedings.
(a) Each Assistant Attorney General and Deputy Assistant Attorney General is authorized to exercise the authority of the Attorney General under 28 U.S.C. 515(a), in cases assigned to, conducted, handled, or supervised by such official, to designate Department attorneys to conduct any legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States attorneys are authorized by law to conduct, whether or not the designated attorney is a resident of the district in which the proceedings is brought.
(b) Each Assistant Attorney General is authorized to redelegate to Section Chiefs the authority delegated by paragraph (a) of this section, except that such redelegation shall not apply to the designation of attorneys to conduct grand jury proceedings.
Subpart C—Office of the Deputy Attorney General
§ 0.15 Deputy Attorney General.
(a) The Deputy Attorney General is authorized to exercise all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally.
(b) The Deputy Attorney General shall advise and assist the Attorney General in formulating and implementing Department policies and programs and in providing overall supervision and direction to all organizational units of the Department. Subject to the general supervision of the Attorney General, the Deputy Attorney General shall direct the activities of organizational units as assigned. In addition, the Deputy Attorney General shall:
(1) Except as assigned to the Associate Attorney General by § 0.19(a)(1), exercise the power and authority vested in the Attorney General to take final action in matters pertaining to:
(i) The appointment, employment, pay, separation, and general administration of personnel, including attorneys, in the Senior Executive Service or the equivalent; Senior-Level and Scientific and Professional positions; and of attorneys and law students regardless of grade or pay in the Department.
(ii) The appointment of special attorneys and special assistants to the Attorney General (28 U.S.C. 515(b));
(iii) The appointment of Assistant U.S. Trustees and fixing of their compensation; and
(iv) The approval of the appointment by U.S. Trustees of standing trustees and the fixing of their maximum annual compensation and percentage fees as provided in 28 U.S.C. 587(e).
(v) The appointment, employment, separation, and general administration of Assistant United States Attorneys and other attorneys to assist United States Attorneys when the public interest so requires and the fixing of their salaries.
(2) Administer the Department’s recruitment programs for law graduates and law students.
(3) Coordinate Departmental liaison with White House Staff and the Executive Office of the President.
(4) Coordinate and control the Department’s reaction to civil disturbances and terrorism.
(5) Perform such other duties and functions as may be assigned from time to time by the Attorney General.
(c) The Deputy Attorney General may redelegate the authority provided in paragraphs (b)(1)(i), (ii), (iii), (v), and paragraph (b)(2) of this section to take final action in matters pertaining to the:
(1) Appointment, employment, pay, separation, and general administration of personnel, including attorneys, in the Senior Executive Service or the equivalent, and Senior-Level and Scientific and Professional positions;
(2) Appointment, employment, pay, separation, and general administration of attorneys and law students regardless of grade or pay;
(3) Appointment of special attorneys and special assistants to the Attorney General pursuant to 28 U.S.C. 515(b);
(4) Appointment of Assistant United States Trustees and the fixing of their compensation;
(5) Appointment, employment, separation, and general administration of Assistant United States Attorneys and other attorneys to assist United States Attorneys when the public interest so requires and the fixing of their salaries; and
(6) Administration of the Department’s recruitment programs for law graduates and law students.
(d) The Deputy Attorney General may redelegate the authority provided in paragraph (b)(1)(iv) of this section to take final action in matters pertaining to the approval of the appointment by U.S. Trustees of standing trustees and the fixing of their maximum annual compensation and percentage fees as provided in 28 U.S.C. 587(e) to the Director of the Executive Office for U.S. Trustees.
(e) The officials to whom the Deputy Attorney General delegates authority under paragraph (c) of this section and any of the officials who may be otherwise authorized by the Deputy Attorney General to perform any other attorney personnel duties may redelegate those authorities and duties.
(f) The Deputy Attorney General is authorized, and may delegate authority to the Director of the Asylum Policy and Review Unit within the Office of Legal Policy, to:
(1) Compile and disseminate to Immigration and Naturalization Service (INS) officers information concerning the persecution of persons in countries on account of race, religion, nationality, membership in a particular social group, or political opinion.
(2) Review cases decided by the Board of Immigration Appeals pursuant to 8 CFR 3.1(h)(1)(i);
(3) Review INS asylum decisions in cases which the Deputy Attorney General directs INS to refer to him.
(4) Assist INS in conducting training concerning asylum and assist in resolving questions of policy that may arise.
(g) The Deputy Attorney General is authorized to exercise the authority vested in the Attorney General under section 528(a), Public Law 101-509, to accept from federal departments and agencies the services of attorneys and non-law enforcement personnel to assist the Department of Justice in the investigation and prosecution of fraud or other criminal or unlawful activity in or against any federally insured financial institution or the Resolution Trust Corporation, and to supervise such personnel in the conduct of such investigations and prosecutions.
(h) [Reserved]
§ 0.17 Office of Investigative Agency Policies.
(a) Organization. The Office of Investigative Agency Policies is headed by a Director appointed by the Attorney General. The Director shall be responsible to, and report directly to, the Deputy Attorney General, and shall serve at the pleasure of the Attorney General. The Director shall be chosen from among the heads of the criminal investigative agencies of the Department, i.e., the Federal Bureau of Investigation, Drug Enforcement Administration, United States Marshals Service and Immigration and Naturalization Service. The Director shall serve concurrently as the Director of Investigative Agency Policies and as head of the agency for which he or she was nominated and confirmed. The Director shall be supported by a staff consisting of personnel detailed from the criminal investigative agencies of the Department, and from the Criminal Division. The staff shall be nominated by these various agencies, subject to the approval of the Director.
(b) Functions. Subject to the general supervision and direction of the Attorney General and Deputy Attorney General, the Director shall in the areas of overlapping jurisdiction of the criminal investigative agencies:
(1) Take all steps necessary to improve coordination among the criminal investigative agencies of the Department, both within the United States and abroad;
(2) Assure, to the extent appropriate, consistent operational guidelines for the criminal investigative agencies of the Department;
(3) Establish procedures, structures and mechanisms for coordinating the collection and dissemination of intelligence relating to the Department’s law enforcement responsibilities;
(4) Establish procedures and policies relating to procurement for the criminal investigative agencies of the Department, including but not limited to procurement of communications and computer systems;
(5) Determine and establish procedures for the coordination of all automation systems;
(6) Determine and establish plans to ensure the effective deployment of criminal investigative agency task forces;
(7) Establish procedures for coordinating the apprehension of fugitives;
(8) Establish programs to coordinate training among the criminal investigative agencies of the Department;
(9) Provide advice to the Attorney General and the Deputy Attorney General on all investigative policies, procedures and activities that warrant uniform treatment or coordination among the criminal investigative agencies of the Department;
(10) Provide advice to the Attorney General and the Deputy Attorney General on the budgetary and resource requests of the criminal investigative agencies of the Department;
(11) Perform such other functions as may be necessary for the effective policy-level coordination of criminal investigations by the criminal investigative agencies of the Department, particularly with respect to drug trafficking, fugitive apprehension, violence, and related areas, and for the elimination of waste and duplication in these functions.
(12) Perform such special duties as may be assigned by the Attorney General or the Deputy Attorney General from time to time.
(c) Cooperation. Officials of the Federal Bureau of Investigation, the Drug Enforcement Administration, the United States Marshals Service, the Immigration and Naturalization Service and all other components of the Department that may be requested by the Director of Investigative Agency Policies shall provide such information as the Director may request.
(d) Review. Prior to making any decision having a significant impact on any criminal investigative agency of the Department, the Director shall consult with the head of such agency, or the designee of the head of such agency. Any head of a criminal investigative agency shall have an opportunity to seek review of any decision of the Director by the Deputy Attorney General or the Attorney General.
(e) Scope. Nothing in this section shall be interpreted to alter or diminish the responsibilities of the Department’s criminal investigative agencies, or of other components of the Department, including the Criminal Division and the United States Attorneys, in the investigation and prosecution of violations of federal criminal law.
(f) Reservation. This policy is set forth solely for the purpose of internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party in any matter, civil or criminal, nor does it place any limitations on otherwise lawful investigative or litigative prerogatives of the Department of Justice.
§ 0.18a Office of Small and Disadvantaged Business Utilization.
The Office of Small and Disadvantaged Business Utilization is headed by a Director appointed by the Attorney General, who shall be responsible to, and report directly to, the Deputy Attorney General. Subject to the general supervision and direction of the Deputy Attorney General, the Director shall:
(a) Be responsible for the implementation and execution of the functions and duties required by sections 637 and 644 of title 15 U.S. Code;
(b) Establish Department goals for the participation by small businesses, including small businesses owned and controlled by socially and economically disadvantaged individuals, in Department procurement contracts;
(c) Have supervisory authority over Department personnel to the extent that the functions and duties of such personnel relate to the functions and duties described in paragraph (a) of this section;
(d) Provide resource information and technical training and assistance regarding utilization of small businesses, including small businesses owned and controlled by socially and economically disadvantaged individuals, to Department personnel who perform procurement functions;
(e) Assign a small business technical adviser to any Department offices to which the Small Business Administration assigns a procurement center representative, in accordance with section 644(k)(6) of title 15 U.S. Code;
(f) Develop and implement appropriate outreach programs to include small minority businesses in procurement contracts;
(g) Cooperate and consult regularly with the Small Business Administration with respect to the functions and duties described in paragraph (a) of this section;
(h) Review, evaluate and report to the Deputy Attorney General on the performance of organizational units of the Department in accomplishing the goals for utilization of small and disadvantaged businesses; and
(i) Prepare the Department’s annual report to the Small Business Administration on the extent of participation by small and disadvantaged businesses in Department procurement contracts.
Subpart C-1—Office of the Associate Attorney General
§ 0.19 Associate Attorney General.
(a) The Associate Attorney General shall advise and assist the Attorney General and the Deputy Attorney General in formulating and implementing Departmental policies and programs. The Associate Attorney General shall also provide overall supervision and direction to organizational units as assigned. In addition the Associate Attorney General shall:
(1) Exercise the power and the authority vested in the Attorney General to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration of attorneys and law students in pay grades GS-15 and below in organizational units subject to his direction.
(2) Perform such other duties as may be especially assigned from time to time by the Attorney General.
(3) Exercise the power and authority vested in the Attorney General to authorize the Director of the U.S. Marshals Service to deputize persons to perform the functions of a Deputy U.S. Marshal.
(b) The Associate Attorney General may redelegate the authority provided in paragraph (a)(1) of this section to the Director, Office of Attorney Recruitment and Management.
(c) The Associate Attorney General is the Attorney General’s designee for purposes of determining whether, under part 39 of this title, a handicapped person can achieve the purpose of a program without fundamental changes in its nature, and whether an action would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. The Associate Attorney General may not redelegate this authority.
(d) [Reserved]
Subpart D—Office of the Solicitor General
§ 0.20 General functions.
The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Solicitor General, in consultation with each agency or official concerned:
(a) Conducting, or assigning and supervising, all Supreme Court cases, including appeals, petitions for and in opposition to certiorari, briefs and arguments, and, in accordance with § 0.163, settlement thereof.
(b) Determining whether, and to what extent, appeals will be taken by the Government to all appellate courts (including petitions for rehearing en banc and petitions to such courts for the issuance of extraordinary writs) and, in accordance with § 0.163, advising on the approval of settlements of cases in which he had determined that an appeal would be taken.
(c) Determining whether a brief amicus curiae will be filed by the Government, or whether the Government will intervene, in any appellate court.
(d) Assisting the Attorney General, the Deputy Attorney General and the Associate Attorney General in the development of broad Department program policy.
§ 0.21 Authorizing intervention by the Government in certain cases.
The Solicitor General may in consultation with each agency or official concerned, authorize intervention by the Government in cases involving the constitutionality of acts of Congress.
Subpart D-1—Executive Office for U.S. Attorneys
§ 0.22 General functions.
The Executive Office for United States Attorneys shall be under the direction of a Director who shall:
(a) Provide general executive assistance and supervision to the offices of the U.S. Attorneys, including:
(1) Evaluating the performance of the offices of the U.S. Attorneys, making appropriate reports and inspections and taking corrective action where indicated.
(2) Coordinating and directing the relationship of the offices of the U.S. Attorneys with other organizational units of the Department of Justice.
(b) Publish and maintain the Justice Manual and other guidance for the U.S. Attorneys’ offices and those other organizational units of the Department concerned with litigation.
(c) Supervise the operation of the Office of Legal Education, which shall provide training to all Department of Justice attorney and non-attorney legal personnel and publish the Department of Justice Journal of Federal Law and Practice.
(d) Provide the Attorney General’s Advisory Committee of United States Attorneys with such staff assistance and funds as are reasonably necessary to carry out the Committee’s responsibilities (28 CFR 0.10(d)).
(e) Establish policy and procedures for the satisfaction, collection, or recovery of criminal fines, special assessments, penalties, interest, bail bond forfeitures, restitution, and court costs in criminal cases consistent with § 0.171 of this chapter.
Subpart D-2—Office of Legal Policy
§ 0.23 General functions.
The Office of Legal Policy shall be headed by an Assistant Attorney General. The principal responsibilities of the Office shall be to plan, develop, and coordinate the implementation of major policy initiatives of high priority to the Department and to the Administration. In addition, the Assistant Attorney General, Office of Legal Policy, shall:
(a) Examine and study legislation and other policy proposals and coordinate Departmental efforts to secure enactment of those of special interest to the Department and the Administration.
(b) Assist the Attorney General and the Deputy Attorney General in fulfilling responsibilities of the Federal Legal Council to promote coordination and communication among Federal legal offices with the goal of achieving effective, consistent, and efficient management of legal resources throughout the Federal Government.
(c) Manage and coordinate the discharge of Departmental responsibilities related to the Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a), including coordination and implementation of policy development and compliance within executive agencies and Departmental units relative to the Freedom on Information Act and within Departmental units relative to the Privacy Act; and supervise the Office of Information and Privacy which will, except as otherwise directed by the Attorney General, act on appeals taken from Departmental denials of access to records under the Privacy Act and the Freedom of Information Act.
(d) Advise and assist the Attorney General and the Deputy Attorney General regarding the selection and appointment of Federal judges.
(e) Administer the Federal Justice Research Program.
(f) Represent the Department on the Administrative Conference of the United States and, as appropriate, on regulatory reform matters.
(g) Participate, as appropriate, in internal budget hearings of the Department with regard to policy implications of resource allocations and resource implications of major policy initiatives; and advise the Assistant Attorney General for Administration with regard to information requirements for Departmental policy formulation.
(h) Advise appropriate Departmental officials, from time to time, on investigation, litigation, negotiation, penal, or correctional policies to insure the compatibility of those policies with overall Departmental goals.
(i) Perform such other duties and functions as may be specially assigned by the Attorney General and the Deputy Attorney General.
§ 0.23a [Reserved]
§ 0.23b Office of Asylum Policy and Review.
There is established, in the Office of Legal Policy, the Asylum Policy and Review Unit, headed by a Director, under the general supervision and direction of the Assistant Attorney General, Office of Legal Policy, and exercising such duties as the Deputy Attorney General delegates pursuant to 28 CFR 0.15(f) or otherwise assigns to it.
Subpart D-3—Office of Information Policy
§ 0.24 General functions.
The Office of Information Policy shall be headed by a Director appointed by the Attorney General. The Director shall report to the Associate Attorney General. The following functions are assigned to, and shall be conducted, handled, or supervised by the Director of the Office of Information Policy:
(a) Exercising the power and performing the functions vested in the Attorney General under 5 U.S.C. 552(e).
(b) Developing, coordinating, and implementing policy with regard to the Freedom of Information Act (“FOIA”), including publishing guidance and other material related to FOIA matters;
(c) Providing legal assistance and advice to government agencies and organizational components of the Department on questions regarding the interpretation and application of the FOIA;
(d) Undertaking, arranging, or supporting training and informational programs concerning the FOIA for government agencies and the Department;
(e) Responding to initial requests made under the FOIA and the Privacy Act for the Office of Information Policy, as well as for the following Leadership Offices:
(i) Office of the Attorney General;
(ii) Office of the Deputy Attorney General;
(iii) Office of the Associate Attorney General;
(iv) Office of Legal Policy;
(v) Office of Legislative Affairs;
(vi) Office of Public Affairs;
(vii) Office of Intergovernmental and Public Liaison; and
(viii) Any other Department component that the Attorney General assigns to the Office of Information Policy for responding to requests made to such component under the FOIA and the Privacy Act.
(f) Acting on behalf of the Attorney General on FOIA and Privacy Act access administrative appeals for all components of the Department, except that a denial of a request by the Attorney General is the final action of the Department on that request;
(g) Representing government agencies in civil litigation claims arising under the FOIA through and under the direction of the United States Attorney’s Office for the District of Columbia and any such other districts as may be designated;
(h) Providing staff support to the Department Review Committee, established by § 17.14 of this chapter; and
(i) Encouraging all Federal agencies that intend to deny FOIA requests raising novel issues to consult with the Office of Information Policy to the extent practicable.
Subpart E—Office of Legal Counsel
§ 0.25 General functions.
The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Office of Legal Counsel:
(a) Preparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President and as a member of, and legal adviser to, the Cabinet.
(b) Preparing and making necessary revisions of proposed Executive orders and proclamations, and advising as to their form and legality prior to their transmission to the President; and performing like functions with respect to regulations and other similar matters which require the approval of the President or the Attorney General.
(c) Rendering opinions to the Attorney General and to the heads of the various organizational units of the Department on questions of law arising in the administration of the Department.
(d) Approving proposed orders of the Attorney General, and orders which require the approval of the Attorney General, as to form and legality and as to consistency and conformity with existing orders and memoranda.
(e) Coordinating the work of the Department of Justice with respect to the participation of the United States in the United Nations and related international organizations and advising with respect to the legal aspects of treaties and other international agreements.
(f) When requested, advising the Attorney General in connection with his review of decisions of the Board of Immigration Appeals and other organizational units of the Department.
(g) Designating within the Office of Legal Counsel:
(1) A liaison officer, and an alternate, as a representative of the Department in all matters concerning the filing of departmental documents with the Office of the Federal Register, and
(2) A certifying officer, and an alternate, to certify copies of documents required to be filed with the Office of the Federal Register (1 CFR 16.1).
(h) Approving certain blind trusts, as required by section 202(f)(4)(B) of the Ethics in Government Act of 1978, 92 Stat. 1843.
(i) Consulting with the Director of the Office of Government Ethics regarding the development of policies, rules, regulations, procedures and forms relating to ethics and conflicts of interest, as required by section 402 of the Ethics in Government Act of 1978, 92 Stat. 1862.
(j) Taking actions to ensure implementation of Executive Order 12612 (entitled “Federalism”), including determining which Department policies have sufficient federalism implications to warrant preparation of a Federalism Assessment, reviewing Assessments for adequacy, and executing certifications for the Assessments.
(k) Performing such special duties as may be assigned by the Attorney General, the Deputy Attorney General, or the Associate Attorney General from time to time.
Subpart E-1—Office of International Programs
§ 0.26 Organization.
There shall be within the Office of the Deputy Attorney General an Office of International Programs.
(a) Director. The Office of International Programs shall be headed by a Director appointed by the Attorney General.
(b) Functions. The Director of the Office of International Programs shall discharge the following duties:
(1) Coordinate all proposals for the Department of Justice, or Department of Justice personnel, to provide foreign countries with training or technical assistance in the fields of law enforcement, administration of justice, legislation, and economic reform and democratic institution-building initiatives.
(2) Assist the Deputy Attorney General in coordinating the activities of the International Criminal Investigative Training Assistance Program and in coordinating responses to requests for international training and technical assistance submitted to the INTERPOL-U.S. National Central Bureau and other Department of Justice units.
(3) Serve as the focal point, on behalf of the Deputy Attorney General, for administrative matters involving international activities, including overseas staffing, of all Department of Justice units.
(4) Coordinate arrangements and preparations for contacts by the Attorney General and Deputy Attorney General with officials of foreign governments, foreign non-governmental organizations, and international organizations.
(5) As required, advise the Deputy Attorney General on matters relating to non-operational foreign travel by Department of Justice personnel.
(6) Serve as a primary liaison with the Department of State, with other appropriate federal, state and local agencies, and with appropriate non-governmental institutions, regarding training and technical assistance to foreign countries in the fields of law enforcement, administration of justice, legislation, and economic reform and democratic institution-building initiatives.
(7) Review and coordinate all planned and ongoing training and technical assistance activities in the fields of law enforcement, administration of justice, legislation, and economic reform and democratic institution-building initiatives by Department of Justice personnel in foreign countries.
(8) As needed, facilitate logistical arrangements for Department of Justice personnel to engage in approved training and technical assistance activities in the fields of law enforcement, administration of justice, legislation, and economic reform and democratic institution-building initiatives in foreign countries.
(9) Coordinate Department of Justice views on proposals for entities outside the Department, including international organizations, to conduct training and technical assistance activities in the fields of law enforcement, administration of justice, legislation, and economic reform and democratic institution-building initiatives in or for foreign countries.
(10) Serve as a focal point, on behalf of the Deputy Attorney General, for resolution, within the Department of Justice, of issues regarding international policy.
(11) Coordinate, on behalf of the Deputy Attorney General, legislation relevant to Department of Justice training and technical assistance activities in or for foreign countries.
(12) Perform such other duties and functions as may be specially assigned by the Deputy Attorney General.
(c) Relationship with other Departmental units. The Office of International Programs shall:
(1) Maintain continual liaison with interested components of the Department on international matters.
(2) Develop and administer effective mechanisms to ensure thorough consideration, by interested components of the Department, of all proposals for international training and technical assistance by Department personnel.
(d) Redelegation of authority. The Director is authorized to redelegate to any subordinate member of the Office of International Programs any of the authority, functions or duties vested in the Director by this subpart.
Subpart E-2—Office of Legislative and Intergovernmental Affairs
§ 0.27 General functions.
The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Office of Legislative and Intergovernmental Affairs:
(a) Maintaining liaison between the Department and the Congress.
(b) Reviewing, coordinating and submitting departmental legislative reports.
(c) Coordinating the preparation and submission of proposed departmental legislation.
(d) Maintaining liaison between the Department and State and local governments and their representative organizations.
(e) Consulting with State and local officials and their representative organizations to inform them of Department policy and law enforcement initiatives that may affect State and local governments.
(f) Performing such other duties respecting legislative matters as may be assigned by the Attorney General, the Deputy Attorney General, or the Associate Attorney General.
Subpart E-3—Office of Public Affairs
§ 0.28 General functions.
The Office of Public Affairs is headed by a Director of Public Affairs who shall:
(a) Handle matters pertaining to relations with the public generally.
(b) Disseminate information to the press, the radio and television services, the public, members of Congress, officials of Government, schools, colleges, and civic organizations.
(c) Coordinate the relations of the Department of Justice with the news media.
(d) Serve as a central agency for information relating to the work and activities of all agencies of the Department.
(e) Prepare public statements and news releases.
(f) Coordinate Department publications.
(g) Assist the Attorney General and other officials of the Department in preparing for news conferences, interviews and other contacts with the news media.
Subpart E-4—Office of the Inspector General
§ 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.
(b) The OIG is headquartered in Washington, DC. Investigations Field Offices and Audit Regional Offices are located in Washington, DC and throughout the United States. For a listing of specific office locations, see the OIG Internet Website at http://www.usdoj.gov/oig.
§ 0.29a General functions.
(a) The OIG is a statutorily created independent entity within the Department of Justice subject to the general supervision of the Attorney General that conducts and supervises audits, inspections, and investigations relating to the programs and operations of the Department; recommends policies to promote economy, efficiency, and effectiveness and to prevent and detect fraud and abuse in Departmental programs and operations; and keeps the Attorney General and Congress informed about the problems and deficiencies relating to the administration of the Department and the necessity for and progress of corrective action.
(b) In order to carry out its responsibilities the OIG:
(1) Audits and inspects Department programs and operations as well as non-Department entities contracting with or receiving benefits from the Department;
(2) Investigates allegations of criminal wrongdoing and administrative misconduct on the part of Department employees, as provided in § 0.29c of this subpart;
(3) Investigates allegations that individuals and entities outside of the Department have engaged in activity that adversely affects the Department’s programs and operations;
(4) Undertakes sensitive investigations of Department operations and/or personnel, often at the request of senior Department officials or Congress.
§ 0.29b Reporting allegations of waste, fraud, or abuse.
Employees shall report evidence and non-frivolous allegations of waste, fraud, or abuse relating to the programs and operations of the Department to the OIG or to a supervisor for referral to the OIG.
§ 0.29c Reporting allegations of employee misconduct.
(a) Reporting to the OIG. Evidence and non-frivolous allegations of criminal wrongdoing or serious administrative misconduct by Department employees shall be reported to the OIG, or to a supervisor or a Department component’s internal affairs office for referral to the OIG, except as provided in paragraph (b) of this section.
(b) Reporting to the Department’s Office of Professional Responsibility (DOJ-OPR). Employees shall report to DOJ-OPR evidence and non-frivolous allegations of serious misconduct by Department attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice. Employees shall also report to DOJ-OPR evidence and non-frivolous allegations of serious misconduct by Department law enforcement personnel that are related to allegations of misconduct by a Department attorney that relate to the exercise of the attorney’s authority to investigate, litigate, or provide legal advice.
(c) Reporting to the Drug Enforcement Administration Office of Professional Responsibility (DEA-OPR). Evidence and non-frivolous allegations of serious misconduct by employees of the Drug Enforcement Administration (DEA) shall be reported by the OIG to the Drug Enforcement Administration Office of Professional Responsibility (DEA-OPR) or to the Deputy Attorney General.
(d) Reporting to the Federal Bureau of Investigation Office of Professional Responsibility (FBI-OPR). Evidence and non-frivolous allegations of serious misconduct by employees of the Federal Bureau of Investigation (FBI) shall be reported by the OIG to the FBI-OPR except as provided in § 0.29d of this subpart, or to the Deputy Attorney General.
§ 0.29d Whistleblower protection for FBI employees.
(a) Protected disclosures by FBI employees. Disclosures of information by an FBI employee that the employee reasonably believes evidences any violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety are protected disclosures when they are reported as provided in § 27.1 of this chapter. Any office or official (other than the OIG or DOJ-OPR) receiving a protected disclosure shall promptly report such disclosure to the OIG or DOJ-OPR. The OIG or DOJ-OPR may refer such allegations to FBI Inspection Division (FBI-INSD) Internal Investigations Section for investigation unless the Deputy Attorney General determines that such referral shall not be made.
(b) Allegations of retaliation against FBI employees. Allegations of retaliation against an employee of the FBI who makes a protected disclosure shall be reported to the OIG, DOJ-OPR, or the Deputy Attorney General.
§ 0.29e Relationship to other departmental units.
(a) The OIG works cooperatively with other Department components to assure that allegations of employee misconduct are investigated by the appropriate entity:
(1) The OIG refers to DOJ-OPR allegations of misconduct within DOJ-OPR’s jurisdiction and may refer to another component the investigation of an allegation of misconduct on the part of an employee of that component;
(2) The OIG may refer to a Department component’s internal affairs office allegations of misconduct within that office’s jurisdiction or may investigate such allegations on its own;
(3) DOJ-OPR refers to the OIG allegations involving misconduct by Department attorneys or investigators that do not relate to the exercise of an attorney’s authority to investigate, litigate, or provide legal advice.
(4) The OIG and the FBI notify each other of the existence of criminal investigations that fall within their joint jurisdiction to investigate crimes involving the operations of the Department, except where such notification could compromise the integrity of an investigation;
(5) All Department components report to the OIG all non-frivolous allegations of criminal wrongdoing and serious administrative misconduct involving any of their employees except allegations involving Department attorneys and investigators that relate to an attorney’s authority to litigate, investigate, or provide legal advice.
(6) At the request of the Inspector General, the Deputy Attorney General may assign to the OIG a matter within the investigative jurisdiction of DOJ-OPR. In such instances, the OIG shall either:
(i) Notify DOJ-OPR of its request to the Deputy Attorney General or
(ii) Request that the Deputy Attorney General determine that such notification would undermine the integrity of the investigation nor jeopardize the interests of the complainant.
(7) While an issue of investigative jurisdiction or assignment is pending before the Deputy Attorney General, neither the OIG DOJ-OPR shall undertake any investigative activity without authorization from the Deputy Attorney General.
(b) OIG investigations that result in findings of potential criminal misconduct or civil liability are referred to the appropriate prosecutorial or litigative office.
(c) The OIG advises DOJ-OPR of the existence and results of any investigation that reflects upon the ethics, competence, or integrity of a Department attorney for appropriate action by DOJ-OPR.
(d) OIG investigations that result in findings of administrative misconduct are reported to management for appropriate disposition.
§ 0.29f Confidentiality.
The Inspector General shall not, during the pendency of an investigation, disclose the identity of an employee who submits a complaint to the OIG without the employee’s consent, unless the Inspector General determines that such disclosure is unavoidable in the course of the investigation.
§ 0.29g Reprisals.
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action shall not, with respect to such authority, take or threaten to take any action against any employee as a reprisal for the employee making a complaint or disclosing information to the OIG unless the complaint was made or the information was disclosed with knowledge that it was false or with willful disregard for its truth or falsity.
The Inspector General is authorized to:
(a) Conduct investigations and issue reports relating to criminal wrongdoing and administrative misconduct of Department employees and administration of the programs and operations of the Department as are, in the judgment of the Inspector General, necessary or desirable;
(b) Receive and investigate complaints or information from an employee of the Department concerning the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to the public health and safety;
(c) Have direct and prompt access to the Attorney General when necessary for any purpose pertaining to the performance of the functions and responsibilities of the OIG;
(d) Have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to the Department and its components that relate to programs and operations with respect to which the OIG has responsibilities unless the Attorney General notifies the Inspector General, in writing, that such access shall not be available because it is necessary to prevent the disclosure of
(1) Sensitive information concerning ongoing civil or criminal investigations or proceedings;
(2) Undercover operations;
(3) The identity of confidential sources, including protected witnesses;
(4) Intelligence or counterintelligence matters; or
(5) Other matters the disclosure of which would constitute a serious threat to national security or significantly impair the national interests of the United States;
(e) Request such information or assistance as may be necessary for carrying out the duties and responsibilities of the OIG from any office, board, division, or component of the Department, and any Federal, State, or local governmental agency or unit thereof;
(f) Issue subpoenas to individuals, and entities, other than Federal government agencies, for the production of information, records, data, and other documentary evidence necessary to carry out the functions of the OIG;
(g) Obtain information from Federal government agencies by means other than subpoena and advise the head of such agency whenever information is unreasonably refused or not provided;
(h) Select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the OIG;
(i) Employ on a temporary basis such experts and consultants as may be necessary to carry out the duties of the OIG;
(j) Enter into contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and to make such payments as may be necessary to carry out the duties of the OIG;
(k) Take from any person an oath, affirmation, or affidavit whenever necessary in the performance of the functions of the OIG.
The OIG is authorized to perform audits, inspections, and reviews of the programs and operations of the Department of Justice and of entities contracting with or obtaining benefits from the Department.
Subject to guidelines promulgated by the Attorney General, Special Agents of 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.
Subpart F—Community Relations Service
§ 0.30 General functions.
The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Director of the Community Relations Service:
(a) Exercise of the powers and performance of the functions vested in the Attorney General by sections 204(d), 205, 1002, and 1003(a) of the Civil Rights Act of 1964 (78 Stat. 267) and section 2 of Reorganization Plan No. 1 of 1966.
(b) Preparation and submission of the annual report to the Congress required by section 1004 of that Act.
§ 0.31 Designating officials to perform the functions of the Director.
(a) In case of a vacancy in the Office of the Director of the Community Relations Service, the Deputy Director of the Service shall perform the functions and duties of the Director.
(b) The Director is authorized, in case of absence from his office or in case of his inability or disqualification to act, to designate the Deputy Director to act in his stead. In unusual circumstances, or in the absence of the Deputy Director, a person other than the Deputy Director may be so designated by the Director.
§ 0.32 Applicability of existing departmental regulations.
Departmental regulations which are generally applicable to units or personnel of the Department of Justice shall be applicable with respect to the Community Relations Service and to the Director and personnel thereof, except to the extent, if any, that such regulations may be inconsistent with the intent and purposes of section 1003(b) of the Civil Rights Act of 1964.
Subpart F-1-Office for Access to Justice
§ 0.33 Office for Access to Justice.
The Office for Access to Justice shall be headed by a Director appointed by the Attorney General. The principal responsibilities of the Office shall be to plan, develop, and coordinate the implementation of access to justice policy initiatives of high priority to the Department and the executive branch, including in the areas of criminal indigent defense and civil legal aid. In addition, the Director shall:
(a) Promote uniformity of Department of Justice and government-wide policies and litigation positions relating to equal access to justice;
(b) Examine proposed legislation, proposed rules, and other policy proposals to ensure that access to justice principles are properly considered in the development of policy; and
(c) Perform such other duties and functions as may be authorized by law or directed by the Attorney General, Deputy Attorney General, or Associate Attorney General.
Subpart F-2—INTERPOL-United States National Central Bureau
§ 0.34 General functions.
The following functions are assigned to, and shall be conducted, handled, or supervised by, the Chief of the United States National Central Bureau, International Criminal Police Organization (INTERPOL—U.S. National Central Bureau), as authorized by statute and within guidelines prescribed by the Department of Justice, in conjunction with the Department of Treasury:
(a) Facilitate international law enforcement cooperation as the United States representative with the International Criminal Police Organization (INTERPOL), on behalf of the Attorney General, pursuant to 22 U.S.C. 263a.
(b) Represent the U.S. National Central Bureau at criminal law enforcement and international law enforcement conferences and symposia.
(c) Serve as a member of the Executive Committee of INTERPOL-United States National Central Bureau (INTERPOL-USNCB).
(d) Transmit information of a criminal justice, humanitarian, or other law enforcement related nature between National Central Bureaus of INTERPOL member countries, and law enforcement agencies within the United States and abroad; and respond to requests by law enforcement agencies, and other legitimate requests by appropriate organizations, institutions and individuals, when in agreement with the INTERPOL constitution.
(e) Coordinate and integrate information for investigations of an international nature and identify those involving patterns and trends of criminal activities.
(f) Conduct analyses of patterns of international criminal activities, when specific patterns are observed.
(g) Establish and collect user fees to process name checks and background records for licensing, humanitarian and other non-law enforcement purposes.
Subpart G—Office of the Pardon Attorney
For regulations pertaining to the Office of Pardon Attorney, see part 1 of this chapter.
Under the general supervision of the Attorney General and the direction of the Deputy Attorney General, the following-described matters are assigned to, and shall be conducted, handled or supervised by, the Pardon Attorney but subject to the limitation contained in § 0.36 of this chapter.
(a) Exercise of the powers and performance of the functions vested in the Attorney General by §§ 1.1 through 1.8 inclusive of this chapter.
(b) Performance of such other duties as may be assigned by the Attorney General or the Deputy Attorney General.
§ 0.36 Recommendations.
The Pardon Attorney shall submit all recommendations in clemency cases through the Deputy Attorney General and the Deputy Attorney General shall exercise such discretion and authority as is appropriate and necessary for the handling and transmittal of such recommendations to the President.
Subpart G-1—Executive Office for United States Trustees
§ 0.37 Organization.
The Executive Office for United States Trustees shall be headed by a Director appointed by the Attorney General.
§ 0.38 Functions.
The Director shall have responsibility for assisting the Attorney General and the Deputy Attorney General in supervising and providing general coordination and assistance to United States Trustees. The Director shall perform such duties relating to such functions and others under the Bankruptcy Reform Act of 1978 as may be assigned by the Attorney General or the Deputy Attorney General.
Subpart G-2—Office of Professional Responsibility
§ 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.
§ 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.
§ 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.
§ 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 § 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.
Subpart H—Antitrust Division
§ 0.40 General functions.
The following functions are assigned to and shall be conducted, handled, or supervised by, the Assistant Attorney General, Antitrust Division:
(a) General enforcement, by criminal and civil proceedings, of the Federal antitrust laws and other laws relating to the protection of competition and the prohibition of restraints of trade and monopolization, including conduct of surveys of possible violations of antitrust laws, conduct of grand jury proceedings, issuance and enforcement of civil investigative demands, civil actions to obtain orders and injunctions, civil actions to recover forfeitures or damages for injuries sustained by the United States as a result of antitrust law violations, proceedings to enforce compliance with final judgments in antitrust suits and negotiation of consent judgments in civil actions, civil actions to recover penalties, criminal actions to impose penalties including actions for the imposition of penalties for conspiring to defraud the Federal Government by violation of the antitrust laws, participation as amicus curiae in private antitrust litigation; and prosecution or defense of appeals in antitrust proceedings.
(b) Intervention or participation before administrative agencies functioning wholly or partly under regulatory statutes in administrative proceedings which require consideration of the antitrust laws or competitive policies, including such agencies as the Civil Aeronautics Board, Interstate Commerce Commission, Federal Communications Commission, Federal Maritime Commission, Federal Energy Regulatory Commission, Federal Reserve Board, Federal Trade Commission, Nuclear Regulatory Commission, and Securities and Exchange Commission, except proceedings referred to any agency by a federal court as an incident to litigation being conducted under the supervision of another Division in this Department.
(c) Developing procedures to implement, receiving information, maintaining records, and preparing reports by the Attorney General to the President as required by Executive Order 10936 of April 25, 1961 relating to identical bids submitted to Federal and State departments and agencies.
(d) As the delegate of the Attorney General furnishing reports and summaries thereof respecting the competitive factors involved in proposed mergers or consolidations of insured banks required by the Federal Deposit Insurance Act, as amended (12 U.S.C. 1828(c)), furnishing reports respecting the competitive factors involved in proposed acquisitions under the Savings and Loan Holding Company Amendments of 1967 (12 U.S.C. 1730a(e)), furnishing advice regarding the proposed disposition of surplus Government property required by the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 488), furnishing reports regarding deepwater port licenses under the Deepwater Port Act of 1974 (33 U.S.C. 1506), furnishing advice and reports regarding federal coal leases under the Federal Coal Leasing Amendments Act of 1976 (30 U.S.C. 184(1)), furnishing advice on oil and gas leasing under the Outer Continental Shelf Lands Act Amendments of 1978 (43 U.S.C. 1334(a) 1334(f)(3). 1337), furnishing reports and recommendations regarding the issuance of licenses for exploration or permits for commercial recovery of deep seabed hard minerals pursuant to the Deep Seabed Hard Minerals Resources Act (30 U.S.C. 1413(d)), furnishing advice or reports regarding contracts or operating agreements concerning exploration, development or production of petroleum reserves under the Naval Petroleum Reserves Production Act of 1976 (10 U.S.C. 7430(g)(1)), and furnishing advice regarding nuclear licenses under the Atomic Energy Act of 1954 (42 U.S.C. 2135).
(e) Preparing the approval or disapproval of the Attorney General whenever such action is required by statute from the standpoint of the antitrust laws as a prerequisite to the development of Defense Production Act voluntary programs or agreements and small business production or raw material pools, the national defense program and atomic energy matters.
(f) Assembling information and preparing reports required or requested by the Congress or the Attorney General as to the effect upon the maintenance and preservation of competition under the free enterprise system of various Federal laws or programs, including the Defense Production Act of 1950, the Small Business Act, the Federal Coal Leasing Amendments Act of 1976 (30 U.S.C. 208-2), the Naval Petroleum Reserves Production Act of 1976 (10 U.S.C. 7431(b)(2)), and the joint resolution of July 28, 1955, giving consent to the Interstate Compact to Conserve Oil and Gas.
(g) Preparing for transmittal to the President, Congress, or other departments or agencies views or advice as to the propriety or effect of any action, program or practice upon the maintenance and preservation or competition under the free enterprise system.
(h) Representing the Attorney General on interdepartmental or interagency committees concerned with the maintenance and preservation of competition generally and in various sections of the economy and the operation of the free enterprise system and when authorized participating in conferences and committees with foreign governments and treaty organizations concerned with competition and restrictive business practices in international trade.
(i) Collecting fines, penalties, judgments, and forfeitures arising in antitrust cases.
(j) [Reserved]
(k) As the delegate of the Attorney General, performance of all functions which the Attorney General is required or authorized to perform by title III of Public Law 97-290 (15 U.S.C. 4011-4021) with respect to export trade certificates of review.
(l) As the delegate of the Attorney General, performance of all functions that the Attorney General is required or authorized to perform by section 708 of the Defense Production Act (50 U.S.C. 4558).
§ 0.41 Special functions.
The following functions are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Antitrust Division:
(a) Institution of proceedings to impose penalties for violations of section 202(a) of the Communications Act of 1934 (48 Stat. 1070), as amended (47 U.S.C. 202(a)), which prohibits common carriers by wire or radio from unjustly or unreasonably discriminating among persons, classes of persons, or localities.
(b) Representing the United States in suits pending as of February 28, 1975, before three-judge district courts under sections 2321-2325 of title 28 of the U.S. Code, to enforce, suspend, enjoin, annul, or set aside, in whole or in part, any order of the Interstate Commerce Commission. (Pub. L. 93-584, Sec. 10, 88 Stat. 1917)
(c) Representing the United States in proceedings before courts of appeals to review orders of the Interstate Commerce Commission, the Federal Communications Commission, the Federal Maritime Commission and the Nuclear Regulatory Commission (28 U.S.C. 2341-2350).
(d) Representing the Civil Aeronautics Board, and the Secretary of the Treasury or his delegates under the Federal Alcohol Administration Act, in courts of appeals reviewing their respective administrative orders.
(e) Defending the Secretary of the Treasury or his delegates under the Federal Alcohol Administration Act, and the agencies named in paragraphs (c), (d) and (e) of this section or their officers against the injunctive actions brought in Federal courts when the matter which is the subject of the actions will ultimately be the subject of review under paragraph (c), (d), (e) or (g) of this section, or of an enforcement action under paragraph (b) of this section.
(f) Seeking review of or defending judgments rendered in proceedings under paragraphs (a) through (e) of this section.
(g) Acting on behalf of the Attorney General with respect to sections 252 and 254 of the Energy Policy and Conservation Act, 42 U.S.C. 6272, 6274, including acting on behalf of the Attorney General with respect to voluntary agreements or plans of action established pursuant to section 252 of that Act.
(h) [Reserved]
(i) Acting on behalf of the Attorney General with respect to sections 4(b), 4(c) and 4(d) of the National Cooperative Production Amendments of 1993, Pub. L. No. 103-42, 107 Stat. 117 (15 U.S.C. 4305 note).
(j) Defending the Secretary of Commerce and the Attorney General, or their delegates, in actions to set aside a determination with respect to export trade certificates of review under section 305(a) of Public Law 97-290 (15 U.S.C. 4015(a)).
(k) Acting on behalf of the Attorney General with respect to section 6 of the National Cooperative Research and Production Act of 1984, Pub. L. 98-462, 98 Stat. 1815, as amended by the National Cooperative Production Amendments of 1993, Pub. L. No. 103-42, 107 Stat. 117 (15 U.S.C. 4305).
Appendix to Subpart H of Part 0—Delegation of Authority Respecting Denials of Freedom of Information and Privacy Act Requests
1. The Deputy Assistant Attorney General for Litigation, Antitrust Division, will assume the duties and responsibilities previously assigned to the Assistant Attorney General by 28 CFR 16.5 (b) and (c) and 16.45(a), as amended July 1, 1977, and defined in those sections, for denying requests and obtaining statutory extensions of time under the Freedom of Information Act, 5 U.S.C. 552, et seq., and the Privacy Act, 5 U.S.C. 552a, et seq.
2. The Deputy Assistant Attorney General for Litigation, Antitrust Division, who signs a denial or partial denial of a request for records made under the Freedom of Information Act or the Privacy Act shall be the “person responsible for the denial” within the meaning of 5 U.S.C. 552(a) and 5 U.S.C. 552a (j) and (k).
Subpart I—Civil Division
For regulations pertaining to the Civil Division, see part 15 of this chapter.
§ 0.45 General functions.
The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Civil Division:
(a) Admiralty and shipping cases—civil and admiralty litigation in any court by or against the United States, its officers and agents, which involves ships or shipping (except suits to enjoin final orders of the Federal Maritime Commission under the Shipping Act of 1916 and under the Intercoastal Shipping Act assigned to the Antitrust Division by subpart H of this part), defense of regulatory orders of the Maritime Administration affecting navigable waters or shipping thereon (except as assigned to the Environment and Natural Resources Division by § 0.65(a)), workmen’s compensation, and litigation and waiver of claims under reciprocal-aid maritime agreements with foreign governments.
(b) Court of claims cases—litigation by and against the United States in the Court of Claims, except cases assigned to the Environment and Natural Resources Division and the Tax Division by subparts M and N of this part, respectively.
(c) International trade—all litigation before the Court of International Trade, including suits instituted pursuant to 28 U.S.C. 1581(i) and suits by the United States to recover customs duties, to recover upon a bond relating to the importation of merchandise required by the laws of the United States or by the Secretary of the Treasury and to recover a civil penalty under sections 592, 704(i)(2), or 734(i)(2) of the Tariff Act of 1930, and the presentation of appeals in the Court of International Trade.
(d) Fraud cases—civil claims arising from fraud on the Government (other than antitrust, land and tax frauds), including alleged claims under the False Claims Act, the Program Fraud Civil Remedies Act of 1986, the Surplus Property Act of 1944, the Anti-Kickback Act, the Contract Settlement Act of 1944, the Contract Disputes Act of 1978, 19 U.S.C. 1592 and common law fraud.
(e) Gifts and bequests—handling matters arising out of devises and bequests and inter vivos gifts to the United States, except determinations as to the validity of title to any lands involved and litigation pertaining to such determinations.
(f) Patent and allied cases and other patent matters—patent, copyright, and trademark litigation before the U.S. courts and the Patent Office, including patent and copyright infringement suits in the Court of Claims (28 U.S.C. 1498), suits for compensation under the Patent Secrecy Act where the invention was ordered to be kept secret in the interest of national defense (35 U.S.C. 183), suits for compensation for unauthorized practice of a patented invention in the furnishing of assistance under the Foreign Assistance Act (22 U.S.C. 2356), suits for compensation for the unauthorized communication of restricted data by the Atomic Energy Commission to other nations (42 U.S.C. 2223), interference proceedings (35 U.S.C. 135, 141, 142, 146), defense of the Register of Copyrights in his administrative acts, suits for specific performance to acquire title to patents, and civil patent-fraud cases.
(g) Tort cases—defense of tort suits against the United States arising under the Federal Tort Claims Act and special acts of Congress; similar litigation against cost-plus Government contractors and Federal employees whose official conduct is involved (except actions against Government contractors and Federal employees which are assigned to the Environment and Natural Resources Division by § 0.65(a); prosecution of tort claims for damage to Government property, and actions for the recovery of medical expenses under Public Law 87-693 and part 43 of this title.
(h) General civil matters—litigation by and against the United States, its agencies, and officers in all courts and administrative tribunals to enforce Government rights, functions, and monetary claims (except defense of injunctive proceedings assigned to the Antitrust Division by subpart H of this part, civil proceedings seeking exclusively equitable relief assigned to the Criminal Division by §§ 0.55(i) and 0.61(d), and proceedings involving judgments, fines, penalties, and forfeitures assigned to other divisions by § 0.171), and to defend challenged actions of Government agencies and officers, not otherwise assigned, including, but not limited to, civil penalties and forfeitures, actions in the Court of Claims under the Renegotiation Act, claims against private persons or organizations for which the Government is, or may ultimately be, liable, except as provided in § 0.70(c)(2), defense of actions arising under section 2410 of title 28 of the U.S. Code whenever the United States is named as a party as the result of the existence of a Federal lien against property, defense of actions for the recovery of U.S. Government Life Insurance and National Service Life Insurance (38 U.S.C. 784), enforcement of reemployment rights in private industry pursuant to the Military Selective Service Act of 1967 (50 U.S.C., App. 459); reparations suits brought by the United States as a shipper under the Interstate Commerce Act; civil actions by the United States for penalties for violations of car service orders (49 U.S.C. 1(17a)); actions restraining violations of part II of the Interstate Commerce Act (49 U.S.C. 322(b) and 322(h); civil actions under part I of the Interstate Commerce Act (49 U.S.C. 6(10) and 16(9)); injunctions against violations of Interstate Commerce Commission orders (49 U.S.C. 16(12)); mandamus to compel the furnishing of information to the Interstate Commerce Commission (49 U.S.C. 19a(1) and 20(9)); recovery of rebates under the Elkins Act (49 U.S.C. 41(3)); compelling the appearance of witnesses before the Interstate Commerce Commission and enforcement of subpenas and punishment for contempt (49 U.S.C. 12(3)); suits to enforce final orders of the Secretary of Agriculture under the Perishable Agricultural Commodities Act (7 U.S.C. 499g), and the Packers and Stockyards Act (7 U.S.C. 216); suits to set aside orders of State regulatory agencies (49 U.S.C. 13(4)); and civil matters, except those required to be handled by the Board of Parole, under section 504(a) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 504(a)).
(i) Appeals under section 8(b)(1)(B) of the Contract Disputes Act of 1978—the grant and/or legal denial of prior approval of the Attorney General as described in section 8(g)(1)(B) of the Contract Disputes Act of 1978. The Assistant Attorney General is authorized to redelegate, to the extent and subject to such limitations as may be deemed advisable, to subordinate division officials the responsibilities covered by this subsection and delineated in section 8(g)(1)(B) of the Contract Disputes Act of 1978.
(j) Consumer litigation—All civil and criminal litigation and grand jury proceedings arising under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.), the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.), the Fair Packaging and Labeling Act (15 U.S.C. 1451 et seq.), the Automobile Information Disclosure Act (15 U.S.C. 1231 et seq.), the odometer requirements section and the fuel economy labeling section of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 1981 et seq.), the Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1331 et seq.), the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.), the Federal Caustic Poison Act (15 U.S.C. 401 note), the Consumer Credit Protection Act (15 U.S.C. 1611, 1681q and 1681r), the Wool Products Labeling Act of 1939 (15 U.S.C. 68), the Fur Products Labeling Act (15 U.S.C. 69), the Textile Fiber Products Identification Act (15 U.S.C. 70 et seq.), the Consumer Product Safety Act (15 U.S.C. 2051 et seq.), the Flammable Fabrics Act (15 U.S.C. 1191 et seq.), the Refrigerator Safety Device Act (15 U.S.C. 1211 et seq.), title I of the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act (15 U.S.C. 2301 et seq.), the Federal Trade Commission Act (15 U.S.C. 41 et seq.), and section 11(1) of the Clayton Act (15 U.S.C. 21(1)) relating to violations of orders issued by the Federal Trade Commission. Upon appropriate certification by the Federal Trade Commission, the institution of criminal proceedings, under the Federal Trade Commission Act (15 U.S.C. 56(b)), the determination whether the Attorney General will commence, defend or intervene in civil proceedings under the Federal Trade Commission Act (15 U.S.C. 56(a)), and the determination under the Consumer Product Safety Act (15 U.S.C. 2076(b)(7)), whether the Attorney General will initiate, prosecute, defend or appeal an action relating to the Consumer Product Safety Commission.
(k) All civil litigation arising under the passport, visa and immigration and nationality laws and related investigations and other appropriate inquiries pursuant to all the power and authority of the Attorney General to enforce the Immigration and Nationality Act and all other laws relating to the immigration and naturalization of aliens except all civil litigation, investigations, and advice with respect to forfeitures, return of property actions, Nazi war criminals identified in 8 U.S.C. 1182(a)(33), 1251(a)(19) and civil actions seeking exclusively equitable relief which relate to national security within the jurisdiction of the Criminal Division under § 0.55 (d), (f), (i) and § 0.61(d).
(l) Civil penalties for drug possession—the authority and responsibilities of the Attorney General under section 6486 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 844a) and the regulations implementing that Act (28 CFR part 76). Such authority and responsibilities may be redelegated by the Assistant Attorney General to subordinate division officials to the extent and subject to limitations deemed advisable.
§ 0.46 Certain civil litigation and foreign criminal proceedings.
The Assistant Attorney General in charge of the Civil Division shall, in addition to litigation coming within the scope of § 0.45, direct all other civil litigation including claims by or against the United States, its agencies or officers, in domestic or foreign courts, special proceedings, and similar civil matters not otherwise assigned, and shall employ foreign counsel to represent before foreign criminal courts, commissions or administrative agencies officials of the Department of Justice and all other law enforcement officers of the United States who are charged with violations of foreign law as a result of acts which they performed in the course and scope of their Government service.
§ 0.47 Alien property matters.
The Office of Alien Property shall be a part of the Civil Division:
(a) The following described matters are assigned to, and shall be conducted, handled, or supervised by the Assistant Attorney General in charge of the Civil Division, who shall also be the Director of the Office of Alien Property:
(1) Exercising or performing all the authority, rights, privileges, powers, duties, and functions delegated to or vested in the Attorney General under the Trading with the Enemy Act, as amended, title II of the International Claims Settlement Act of 1949, as amended, the act of September 28, 1950, 64 Stat. 1079 (50 U.S.C. App. 40), the Philippine Property Act of 1946, as amended, and the Executive orders relating to such acts, including, but not limited to, vesting, supervising, controlling, administering, liquidating, selling, paying debt claims out of, returning, and settling of intercustodial disputes relating to, property subject to one or more of such acts.
(2) Conducting and directing all civil litigation with respect to the Trading with the Enemy Act, title II of the International Claims Settlement Act, the Foreign Funds Control Program and the Foreign Assets Control Program.
(3) Designating within the Office of Alien Property a certifying officer, and an alternate, to certify copies of documents issued by the Director, or his designee, which are required to be filed with the Office of the Federal Register.
(b) The Director of the Office of Alien Property shall act for and on behalf of the Attorney General.
(c) All the authority, rights, privileges, powers, duties, and functions of the Director of the Office of Alien Property may be exercised or performed by any agencies, instrumentalities, agents, delegates, or other personnel designated by him.
(d) Existing delegations by the Assistant Attorney General, Director, Office of Alien Property, or the Director, Office of Alien Property, shall continue in force and effect until modified or revoked.
(e) The Assistant Attorney General in charge of the Civil Division is authorized to administer and give effect to the provisions of the agreement entitled “Agreement Between the United States of America and the Republic of Austria Regarding the Return of Austrian Property, Rights and Interests,” which was concluded on January 30, 1959, and was ratified by the Senate of the United States on February 25, 1964.
§ 0.48 International trade litigation.
The Attorney-in-Charge, International Trade Field Office, at 26 Federal Plaza, New York, New York 10007, in the Office of the Assistant Attorney General, Civil Division, is designated to accept service of notices of appeals to the Court of Customs and Patent Appeals and all other papers filed in the Court of International Trade, when the United States is an adverse party. (28 U.S.C. 2633(c); 28 U.S.C. 2601(b)).
§ 0.49 International judicial assistance.
The Assistant Attorney General in charge of the Civil Division shall direct and supervise the following functions:
(a) The functions of the “Central Authority” under the Convention between the United States and other Governments on the Taking of Evidence Abroad in Civil and Commercial Matters, TIAS 7444, which entered into force on October 7, 1972.
(b) The functions of the “Central Authority” under the Convention between the United States and other Governments on the Service Abroad of Judicial and Extrajudicial Documents, TIAS 6638, which entered into force on February 10, 1969.
(c) To receive letters of requests issued by foreign and international judicial authorities which are referred to the Department of Justice through diplomatic or other governmental channels, and to transmit them to the appropriate courts or officers in the United States for execution.
(d) To receive and transmit through proper channels letters of request addressed by courts in the United States to foreign tribunals in connection with litigation to which the United States is a party.
Subpart J—Civil Rights Division
§ 0.50 General functions.
The following functions are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Civil Rights Division:
(a) Enforcement of all Federal statutes affecting civil rights, including those pertaining to elections and voting, public accommodations, public facilities, school desegregation, employment (including 42 U.S.C. 2000e-(6)), housing, abortion, sterilization, credit, and constitutional and civil rights of Indians arising under 25 U.S.C. 1301 et seq., and of institutionalized persons, and authorization of litigation in such enforcement, including criminal prosecutions and civil actions and proceedings on behalf of the Government and appellate proceedings in all such cases. Notwithstanding the provisions of the foregoing sentence, the responsibility for the enforcement of the following described provisions of the U.S. Code is assigned to the Assistant Attorney General, Criminal Division:
(1) Sections 591 through 593 and sections 595 through 612 of title 18, U.S. Code, relating to elections and political activities;
(2) Sections 241, 242, and 594 of title 18, and sections 1973i and 1973j of title 42, U.S. Code, insofar as they relate to voting and election matters not involving discrimination or intimidation on grounds of race or color, and section 245(b)(1) of title 18, U.S. Code, insofar as it relates to matters not involving discrimination or intimidation on grounds of race, color, religion, or national origin;
(3) Section 245(b)(3) of title 18, U.S. Code, pertaining to forcible interference with persons engaged in business during a riot or civil disorder; and
(4) Sections 241 through 256 of title 2, U.S. Code (Federal Corrupt Practices Act).
(b) Requesting and reviewing investigations arising from reports or complaints of public officials or private citizens with respect to matters affecting civil rights.
(c) Conferring with individuals and groups who call upon the Department in connection with civil rights matters, advising such individuals and groups thereon, and initiating action appropriate thereto.
(d) Coordination within the Department of Justice of all matters affecting civil rights.
(e) Consultation with and assistance to other Federal departments and agencies and State and local agencies on matters affecting civil rights.
(f) Research on civil rights matters, and the making of recommendations to the Attorney General as to proposed policies and legislation relating thereto.
(g) Representation of Federal officials in private litigation arising under 42 U.S.C. 2000d or under other statutes pertaining to civil rights.
(h) Administration of sections 3(c) and 5 of the Voting Rights Act of 1965, as amended (42 U.S.C. 1973a(c), 1973c).
(i) Upon request, assisting, as appropriate, the Commission on Civil Rights or other similar Federal bodies in carrying out research and formulating recommendations.
(j) Administration of section 105 of the Civil Liberties Act of 1988 (50 U.S.C. App. 1989b).
(k) Upon request, certifications under 18 U.S.C. 245.
(l) Enforcement and administration of the Americans with Disabilities Act of 1990, Public Law 101-336.
(m) Community education, enforcement, and investigatory activities under section 102 of the Immigration Reform and Control Act of 1986, as amended.
(n) Upon request, certification under 18 U.S.C. 249, relating to hate crimes.
§ 0.51 Leadership and coordination of nondiscrimination laws.
(a) The Assistant Attorney General in charge of the Civil Rights Division shall, except as reserved herein, exercise the authority vested in and perform the functions assigned to the Attorney General by Executive Order 12250 (“Leadership and Coordination of Nondiscrimination Laws”). This delegation does not include the function, vested in the Attorney General by sections 1-101 and 1-102 of the Executive order, of approving agency rules, regulations, and orders of general applicability issued under the Civil Rights Act of 1964 and section 902 of the Education Amendments of 1972. Likewise, this delegation does not include the authority to issue those regulations under section 1-303 of the Executive Order which are required, by § 0.180 of this part, to be issued by the Attorney General.
(b) Under paragraph (a) of this section, the Assistant Attorney General in charge of the Civil Rights Division shall be responsible for coordinating the implementation and enforcement by Executive agencies of the nondiscrimination provisions of the following laws:
(1) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).
(2) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).
(3) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794).
(4) Any other provision of Federal statutory law which provides, in whole or in part, that no person in the United States shall, on the ground of race, color, national origin, handicap, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.
§ 0.52 Certifications under 18 U.S.C. 3503.
The Assistant Attorney General in charge of the Civil Rights Division and his Deputy Assistant Attorney Generals are each authorized to exercise or perform the functions or duties conferred upon the Attorney General by section 3503 of title 18, U.S. Code, to certify that the legal proceeding, in which a motion to take testimony by deposition is made, is against a person who is believed to have participated in an organized criminal activity, where the subject matter of the case or proceeding in which the motion is sought is within the cognizance of the Civil Rights Division pursuant to § 0.50.
§ 0.53 Immigrant and Employee Rights Section.
(a) The Immigrant and Employee Rights Section shall be headed by a Special Counsel for Immigration-Related Unfair Employment Practices (“Special Counsel”). The Special Counsel shall be appointed by the President for a term of four years, by and with the advice and consent of the Senate, pursuant to section 274B of the Immigration and Nationality Act (INA), 8 U.S.C. 1324b. The Immigrant and Employee Rights Section shall be part of the Civil Rights Division of the Department of Justice, and the Special Counsel shall report directly to the Assistant Attorney General, Civil Rights Division.
(b) In carrying out the Special Counsel’s responsibilities under section 274B of the INA, the Special Counsel is authorized to:
(1) Investigate charges of unfair immigration-related employment practices filed with the Immigrant and Employee Rights Section and, when appropriate, file complaints with respect to those practices before specially designated administrative law judges within the Office of the Chief Administrative Hearing Officer, Executive Office for Immigration Review, U.S. Department of Justice;
(2) Intervene in proceedings involving complaints of unfair immigration-related employment practices that are brought directly before such administrative law judges by parties other than the Special Counsel;
(3) Conduct, on the Special Counsel’s own initiative, investigations of unfair immigration-related employment practices and, where appropriate, file complaints with respect to those practices before such administrative law judges;
(4) Conduct, handle, and supervise litigation in U.S. District Courts for judicial enforcement of subpoenas or orders of administrative law judges regarding unfair immigration-related employment practices;
(5) Initiate, conduct, and oversee activities relating to the dissemination of information to employers, employees, and the general public concerning unfair immigration-related employment practices;
(6) Establish such regional offices as may be necessary, in accordance with regulations of the Attorney General;
(7) Perform such other functions as the Assistant Attorney General, Civil Rights Division may direct; and
(8) Delegate to any subordinate any of the authority, functions, or duties vested in the Special Counsel.
Appendix to Subpart J of Part 0
Civil Rights Division Memo 75-2, was superseded by Civil Rights Division, Memo 78-1 appearing at 48 FR 3367, Jan. 25, 1983. Civil Rights Division Memo 78-1 was superseded by Civil Rights Division Memo 92-3 appearing at 57 FR 19377, May 6, 1992.
1. The authority of the Attorney General regarding administration of section 5 of the Voting Rights Act of 1965, as amended, (42 U.S.C. 1973c) has been delegated to the Assistant Attorney General in charge of the Civil Rights Division.
2. That authority is delegated to the Chief of the Voting Section, provided that any determination to object to a change affecting voting (see 28 CFR part 51) or to withdraw such an objection shall be made by the Assistant Attorney General.
3. The Chief of the Voting Section may authorize the Deputy Chief or the Director of the section 5 unit to act on his or her behalf.
1. The Chief of the Freedom of Information/Privacy Acts Branch will assume the duties and responsibilities previously assigned to the Assistant Attorney General by 28 CFR 16.4 (b) and (c) and 28 CFR 16.42(b), as amended July 1, 1991, and defined in those sections, for denying requests and obtaining extensions of time under the Freedom of Information Act, 5 U.S.C. 552 et seq., and the Privacy Act, 5 U.S.C. 552a et seq.
2. The Chief of the Freedom of Information/Privacy Acts Branch who signs a denial or partial denial of a request for records made under the Freedom of Information Act or the Privacy Act shall be the “person responsible for the denial” within the meaning of 5 U.S.C. 552(a)(6)(C) and shall be responsible for denials made in accordance with 5 U.S.C. 552a (j) and (k).
3. This authority is limited to those records which are in the systems of records under the custody and control of the Civil Rights Division of the United States Department of Justice. The authority delegated herein may be redelegated by the Assistant Attorney General by internal memorandum.
Subpart K—Criminal Division
§ 0.55 General functions.
The following functions are assigned to and shall be conducted, handled, or supervised by, the Assistant Attorney General, Criminal Division:
(a) Prosecutions for Federal crimes not otherwise specifically assigned.
(b) Cases involving criminal frauds against the United States except cases assigned to the Antitrust Division by § 0.40(a) involving conspiracy to defraud the Federal Government by violation of the antitrust laws, and tax fraud cases assigned to the Tax Division by subpart N of this part.
(c) All criminal and civil litigation under the Controlled Substances Act, 84 Stat. 1242, and the Controlled Substances Import and Export Act, 84 Stat. 1285 (titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970).
(d) Civil or criminal forfeiture or civil penalty actions (including petitions for remission or mitigation of forfeitures and civil penalties, offers in compromise, and related proceedings) under the Federal Aviation Act of 1958, the Contraband Transportation Act, the Copyrights Act, the customs laws (except those assigned to the Civil Division which involve sections 592, 704(i)(2) or 734(i)(2) of the Tariff Act of 1930), the Export Control Act of 1949, the Federal Alcohol Administration Act, the Federal Seed Act, the Gold Reserve Act of 1934, the Hours of Service Act, the Animal Welfare Act, the Immigration and Nationality Act (except civil penalty actions and petitions and offers related thereto), the neutrality laws, laws relating to cigarettes, liquor, narcotics and dangerous drugs, other controlled substances, gambling, war materials, pre-Colombian artifacts, coinage, and firearms, locomotive inspection (45 U.S.C. 22, 23, 28-34), the Organized Crime Control Act of 1970, prison-made goods (18 U.S.C. 1761-1762), the Safety Appliance Act, standard barrels (15 U.S.C. 231-242), the Sugar Act of 1948, and the Twenty-Eight Hour Law.
(e) Subject to the provisions of subpart Y of this part, consideration, acceptance, or rejection of offers in compromise of criminal and tax liability under the laws relating to liquor, narcotics and dangerous drugs, gambling, and firearms, in cases in which the criminal liability remains unresolved.
(f) All criminal litigation and related investigations and inquiries pursuant to all the power and authority of the Attorney General to enforce the Immigration and Nationality Act and all other laws relating to the immigration and naturalization of aliens; all advice to the Attorney General with respect to the exercise of his parole authority under 8 U.S.C. 1182(d)(5) concerning aliens who are excludable under 8 U.S.C. 1182(a)(23), (28), (29), or (33); and all civil litigation with respect to the individuals identified in 8 U.S.C. 1182(a)(33), 1251(a)(19).
(g) Coordination of enforcement activities directed against organized crime and racketeering.
(h) Enforcement of the Act of January 2, 1951, 64 Stat. 1134, as amended by the Gambling Devices Act of 1962, 76 Stat. 1075, 15 U.S.C. 1171 et seq., including registration thereunder. (See also 28 CFR 3.2)
(i) All civil proceedings seeking exclusively equitable relief against Criminal Division activities including criminal investigations, prosecutions, and other criminal justice activities (including without limitation, applications for writs of coram nobis and writs of habeas corpus not challenging exclusion, deportation, or detention under the immigration laws), except that any proceeding may be conducted, handled, or supervised by the Assistant Attorney General for National Security or another Division by agreement between the head of such Division and the Assistant Attorney General, Criminal Division.
(j) International extradition proceedings.
(k) Relation of military to civil authority with respect to criminal matters affecting both.
(l) All criminal matters arising under the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 519).
(m) Enforcement of the following-described provisions of the United States Code—
(1) Sections 591 through 593 and sections 595 through 612 of title 18, U.S. Code, relating to elections and political activities;
(2) Sections 241, 242, and 594 of title 18, and sections 1973i and 1973j of title 42, U.S. Code, insofar as they relate to voting and election matters not involving discrimination or intimidation on grounds of race or color, and section 245(b)(1) of title 18 U.S. Code, insofar as it relates to matters not involving discrimination or intimidation on grounds of race, color, religion, or national origin;
(3) Section 245(b)(3) of title 18, U.S. Code, pertaining to forcible interference with persons engaged in business during a riot or civil disorder; and
(4) Sections 241 through 256 of title 2, U.S. Code (Federal Corrupt Practices Act). (See § 0.50(a).)
(n) Civil actions arising under 39 U.S.C. 3010, 3011 (Postal Reorganization Act).
(o) Resolving questions that arise as to Federal prisoners held in custody by Federal officers or in Federal prisons, commitments of mentally defective defendants and juvenile delinquents, validity and construction of sentences, probation, and parole.
(p) Supervision of matters arising under the Escape and Rescue Act (18 U.S.C. 751, 752), the Fugitive Felon Act (18 U.S.C. 1072, 1073), and the Obstruction of Justice Statute (18 U.S.C. 1503).
(q) Supervision of matters arising under the Bail Reform Act of 1966 (28 U.S.C. 3041-3143, 3146-3152, 3568).
(r) Supervision of matters arising under the Narcotic Addict Rehabilitation Act of 1966 (18 U.S.C. 4251-4255; 28 U.S.C. 2901-2906; 42 U.S.C. 3411-3426, 3441, 3442).
(s) Civil proceedings in which the United States is the plaintiff filed under the Organized Crime Control Act of 1970, 18 U.S.C. 1963-1968.
(t) Upon request, certifications under 18 U.S.C. 245.
(u) Exercise of the authority vested in the Attorney General under 10 U.S.C. 374(b)(2)(E) to approve the use of military equipment by Department of Defense personnel to provide transportation and base of operations support in connection with a civilian law enforcement operation.
(v) Upon request, certification under 18 U.S.C. 249, relating to hate crimes, in cases involving extraterritorial crimes that also involve charges filed pursuant to the Military Extraterritorial Jurisdiction Act (18 U.S.C. 3261 et seq.), or pursuant to chapters of the Criminal Code prohibiting genocide (18 U.S.C. 1091), torture (18 U.S.C. 2340A), war crimes (18 U.S.C. 2441), or recruitment or use of child soldiers (18 U.S.C. 2442).
§ 0.56 Exclusive or concurrent jurisdiction.
The Assistant Attorney General in charge of the Criminal Division is authorized to determine administratively whether the Federal Government has exclusive or concurrent jurisdiction over offenses committed upon lands acquired by the United States, and to consider problems arising therefrom.
§ 0.57 Criminal prosecutions against juveniles.
The Assistant Attorney General in charge of the Criminal Division and his Deputy Assistant Attorneys General are each authorized to exercise the power and authority vested in the Attorney General by sections 5032 and 5036 of title 18, United States Code, relating to criminal proceedings against juveniles. The Assistant Attorney General in charge of the Criminal Division is authorized to redelegate any function delegated to him under this section to United States Attorneys and to the Chief of the Section within the Criminal Division which supervises the implementation of the Juvenile Justice and Delinquency Prevention Act (18 U.S.C. 5031 et seq.).
§ 0.58 Delegation respecting payment of benefits for disability or death of law enforcement officers not employed by the United States.
The Assistant Attorney General in charge of the Criminal Division and his Deputy Assistant Attorneys General are each authorized to exercise or perform any of the functions or duties conferred upon the Attorney General by the Act to Compensate Law Enforcement Officers not Employed by the United States Killed or Injured While Apprehending Persons Suspected of Committing Federal Crimes (5 U.S.C. 8191, 8192, 8193). The Assistant Attorney General in charge of the Criminal Division is authorized to redelegate any function delegated to him under this section to the Chief of the Section within the Criminal Division which supervises the implementation of the aforementioned Compensation Act.
§ 0.59 Certain certifications under 18 U.S.C. 3331 and 3503.
(a) The Assistant Attorney General in charge of the Criminal Division is authorized to exercise or perform the functions or duties conferred upon the Attorney General by section 3331 of title 18, United States Code, to certify that in his judgment a special grand jury is necessary in any judicial district of the United States because of criminal activity within such district.
(b) The Assistant Attorney General in charge of the Criminal Division and his Deputy Assistant Attorney Generals are each authorized to exercise or perform the functions or duties conferred upon the Attorney General by section 3503 of title 18, United States Code, to certify that the legal proceeding, in which a motion to take testimony by deposition is made, is against a person who is believed to have participated in an organized criminal activity, where the subject matter of the case or proceeding in which the motion is sought is within the cognizance of the Criminal Division pursuant to § 0.55, or is not within the cognizance of the Civil Rights Division.
§§ 0.61-0.62 [Reserved]
§ 0.63 Delegation respecting admission and naturalization of certain aliens.
(a) The Assistant Attorney General in charge of the Criminal Division and the Deputy Assistant Attorney General, Criminal Division, are each authorized to exercise the power and authority vested in the Attorney General by section 7 of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. 403h, with respect to entry of certain aliens into the United States for permanent residence.
(b) The Assistant Attorney General in charge of the Criminal Division and the Deputy Assistant Attorneys General, Criminal Division, are each authorized to exercise the power and authority vested in the Attorney General by section 316(f) of the Immigration and Nationality Act, 8 U.S.C. 1427(f), with respect to the naturalization of certain foreign intelligence sources.
§ 0.64 [Reserved]
§ 0.64-1 Central or Competent Authority under treaties and executive agreements on mutual assistance in criminal matters.
The Assistant Attorney General, Criminal Division, in consultation with the Assistant Attorney General for National Security in matters related to the National Security Division’s activities, shall have the authority and perform the functions of the “Central Authority” or “Competent Authority” (or like designation) under treaties and executive agreements between the United States of America and other countries on mutual assistance in criminal matters that designate the Attorney General or the Department of Justice as such authority. The Assistant Attorney General, Criminal Division, is authorized to re-delegate this authority to the Deputy Assistant Attorneys General, Criminal Division, and to the Director, Deputy Directors, and Associate Directors of the Office of International Affairs, Criminal Division.
§ 0.64-2 Delegation respecting transfer of offenders to or from foreign countries.
The Assistant Attorney General, Criminal Division, in consultation with the Assistant Attorney General for National Security in matters related to the National Security Division’s activities, is authorized to exercise all of the power and authority vested in the Attorney General under 18 U.S.C. 4102 that has not been delegated to the Director of the Bureau of Prisons under 28 CFR 0.96b, including specifically the authority to find appropriate or inappropriate the transfer of offenders to or from a foreign country under a treaty as referred to in Public Law 95-144. The Assistant Attorney General, Criminal Division, is authorized to re-delegate this authority within the Criminal Division to the Deputy Assistant Attorneys General in the Criminal Division and to the Director, the Deputy Directors, and the Associate Director supervising the International Prisoner Transfer Unit of the Office of International Affairs.
§ 0.64-3 Delegation respecting designation of certain Department of Agriculture employees (Tick Inspectors) to carry and use firearms.
The Assistant Attorney General in charge of the Criminal Division is authorized to exercise all the power and authority vested in the Attorney General under section 2274 of title 7, U.S. Code, concerning the designation of certain Department of Agriculture employees (Tick Inspectors) to carry and use firearms. This delegation includes the power and authority to issue, with the Department of Agriculture, joint rules and regulations pertaining to the carrying and use of such firearms, which would, when promulgated, supersede the existing regulations pertaining to the carrying and use of firearms by Tick Inspectors, promulgated by the Attorney General and contained in Attorney General’s Order No. 1059-84. The Assistant Attorney General in charge of the Criminal Division is authorized to redelegate all of this authority under section 2274 to his Deputy Assistant Attorneys General and appropriate Office Directors and Section Chiefs.
§ 0.64-4 Delegation respecting temporary transfers, in custody, of certain prisoner-witnesses from a foreign country to the United States to testify in Federal or State criminal proceedings.
The Assistant Attorney General, Criminal Division, in consultation with the Assistant Attorney General for National Security in matters related to the National Security Division’s activities, is authorized to exercise all of the power and authority vested in the Attorney General under 18 U.S.C. 3508 that has not been delegated to the Director of the United States Marshals Service under 28 CFR 0.111a, including specifically the authority to determine whether and under what circumstances temporary transfer of a prisoner-witness to the United States is appropriate or inappropriate; to determine the point at which the witness should be returned to the transferring country; and to enter into appropriate agreements with the transferring country regarding the terms and conditions of the transfer. The Assistant Attorney General, Criminal Division is authorized to redelegate this authority within the Criminal Division to the Deputy Assistant Attorneys General and to the Director and Deputy Directors of the Office of International Affairs.
§ 0.64-5 Policy with regard to bringing charges under the Economic Espionage Act of 1996, Pub. L. 104-294, effective October 11, 1996.
The United States may not file a charge under 18 U.S.C. 1831 of the Economic Espionage Act of 1996 (the “EEA”) (18 U.S.C. 1831 et seq.), or use a violation under section 1831 of the EEA as a predicate offense under any other law, without the personal approval of the Attorney General, the Deputy Attorney General, the Assistant Attorney General for National Security, or the Assistant Attorney General, Criminal Division (or the Acting official in each of these positions if a position is filled by an Acting official). Violations of this regulation are appropriately sanctionable and will be reported by the Attorney General to the Senate and House Judiciary Committees. Responsibility for reviewing proposed charges under section 1831 of the EEA rests with the Counterespionage Section of the National Security Division, which will consult, as necessary, with the Computer Crime and Intellectual Property Section of the Criminal Division. This regulation shall remain in effect until October 11, 2011.
§ 0.64-6 Designated Authority under executive agreements on access to data by foreign governments.
The Assistant Attorney General in charge of the Criminal Division shall have the authority and perform the functions of the “Designated Authority” (or like designation) under executive agreements between the United States of America and other countries regarding access to data by foreign governments, negotiated pursuant to the authority in 18 U.S.C. 2523. This delegation applies to executive agreements that either designate the Attorney General or the Department of Justice as the Designated Authority or authorize the Attorney General to designate a Designated Authority, and for which the Attorney General has designated the Criminal Division as such authority. The Assistant Attorney General in charge of the Criminal Division is authorized to delegate this authority to the Deputy Assistant Attorneys General in the Criminal Division, and to the Director, the Deputy Directors and Associate Directors of the Office of International Affairs.
Appendix to Subpart K of Part 0
The Assistant Attorney General in charge of the Criminal Division, hereby, delegates pursuant to 28 CFR 16.5(b) (as amended March 1, 1975) and 28 CFR 16.45(a), his authority under those sections to deny a request for information under 5 U.S.C. 552(a) or 5 U.S.C. 552a to the Director and Associate Director of the Office of Legal Support Services of the Criminal Division and to the Deputy Assistant Attorney General of the Criminal Division who supervises that Office. The Director, Associate Director, or Deputy Assistant Attorney General making the denial shall be the “person responsible for the denial,” within the meaning of 5 U.S.C. 552(a).
By virtue of the authority vested in me by title 28, § 0.64-2, of the Code of Federal Regulations, the authority delegated to me by that section to exercise all of the power and authority vested in the Attorney General under Section 4102 of title 18, U.S. Code, which has not been delegated to the Director of the Bureau of Prisons, including specifically the authority to find the transfer of offenders to or from a foreign country under a treaty as referred to in Public Law 95-44 appropriate or inappropriate, is hereby re-delegated to the Deputy Assistant Attorneys General for the Criminal Division and to the Director, Deputy Directors, and the Associate
Director supervising the International Prisoner Transfer Unit of the Office of International Affairs.
By virtue of the authority vested in me by 28 CFR 0.64-4, the authority delegated to me by that section to exercise all of the power and authority vested in the Attorney General under section 3508 of title 18, United States Code, which has not been delegated to the Director, United States Marshals Service under 28 CFR 0.111a, is hereby redelegated to each of the Deputy Assistant Attorneys General, and to the Director and each of the Deputy Directors of the Office International Affairs, Criminal Division.
By virtue of the authority vested in me by § 0.64-1 of Title 28 of the Code of Federal Regulations, the Authority delegated to me by that section to exercise all of the power and authority vested in the Attorney General under treaties and executive agreements on mutual assistance in criminal matters is hereby re-delegated to each of the Deputy Assistant Attorneys General, Criminal Division, and to the Director and Deputy Directors of the Office of International Affairs, Criminal Division. In addition, I hereby re-delegate the authority to make requests under treaties and executive agreements on mutual assistance in criminal matters to the Associate Directors of the Office of International Affairs, Criminal Division.
By virtue of the authority vested in me by § 0.64-6 of Title 28 of the Code of Federal Regulations, I hereby delegate the authority to perform the functions of the Designated Authority under executive agreements between the United States of America and other countries regarding access to data by foreign governments, negotiated pursuant to the authority in 18 U.S.C. 2523, to the Deputy Assistant Attorneys General, Criminal Division, and the Director, the Deputy Directors and the Associate Director supervising implementation of such agreements in the Office of International Affairs. This delegation applies to executive agreements that either designate the Attorney General or the Department of Justice as the Designated Authority (or like designation) or authorize the Attorney General to designate a Designated Authority (or like designation), and for which the Attorney General has designated the Criminal Division as such authority.
Subpart L—Environment and Natural Resources Division
§ 0.65 General functions.
The following functions are assigned to and shall be conducted, handled, or supervised by the Assistant Attorney General in charge of the Environment and Natural Resources Division:
(a) Civil suits and matters in Federal and State courts (and administrative tribunals), by or against the United States, its agencies, officers, or contractors, or in which the United States has an interest, whether for specific or monetary relief, and also nonlitigation matters, relating to:
(1) The public domain lands and the outer continental shelf of the United States.
(2) Other lands and interests in real property owned, leased, or otherwise claimed or controlled, or allegedly impaired or taken, by the United States, its agencies, officers, or contractors, including the acquisition of such lands by condemnation proceedings or otherwise,
(3) The water and air resources controlled or used by the United States, its agencies, officers, or contractors, without regard to whether the same are in or related to the lands enumerated in paragraphs (a) (1) and (2) of this section, and
(4) The other natural resources in or related to such lands, water, and air,
(i) Suits and matters relating to the use or obstruction of navigable waters or the navigable capacity of such waters by ships or shipping thereon, the same being specifically assigned to the Civil Division;
(ii) Suits and matters involving tort claims against the United States under the Federal Tort Claims Act and special acts of Congress, the same being specifically assigned to the Civil Division;
(iii) Suits and matters involving the foreclosure of mortgages and other liens held by the United States, the same being specifically assigned to the Civil and Tax Divisions according to the nature of the lien involved;
(iv) Suits arising under 28 U.S.C. 2410 to quiet title or to foreclose a mortgage or other lien, the same being specifically assigned to the Civil and Tax Divisions according to the nature of the lien held by the United States, and all other actions arising under 28 U.S.C. 2410 involving federal tax liens held by the United States, which are specifically assigned to the Tax Division;
(v) Matters involving the immunity of the Federal Government from State and local taxation specifically delegated to the Tax Division by § 0.71.
(b) Representation of the interests of the United States in all civil litigation in Federal and State courts, and before the Indian Claims Commission, pertaining to Indians, Indian tribes, and Indian affairs, and matters relating to restricted Indian property, real or personal, and the treaty rights of restricted Indians (except matters involving the constitutional and civil rights of Indians assigned to the Civil Rights Division by subpart J of this part).
(c) Rendering opinions as to the validity of title to all lands acquired by the United States, except as otherwise specified by statute.
(d) Civil and criminal suits and matters involving air, water, noise, and other types of pollution, the regulation of solid wastes, toxic substances, pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act, and the control of the environmental impacts of surface coal mining.
(e) Civil and criminal suits and matters involving obstructions to navigation, and dredging or filling (33 U.S.C. 403).
(f) Civil and criminal suits and matters arising under the Atomic Energy Act of 1954 (42 U.S.C. 2011, et seq.) insofar as it relates to the prosecution of violations committed by a company in matters involving the licensing and operations of nuclear power plants.
(g) Civil and criminal suits and matters relating to the natural and biological resources of the coastal and marine environments, the outer continental shelf, the fishery conservation zone and, where permitted by law, the high seas.
(h) Performance of the Department’s functions under § 706.5 of the regulations for the prevention of conflict of interests promulgated by the Secretary of the Interior under the authority of the Surface Mining Control and Reclamation Act of 1977, section 201(f), 91 Stat. 450, and contained in 30 CFR part 706.
(i) Conducting the studies of processing sites required by section 115(b) of the Uranium Mill Tailings Radiation Control Act of 1978, publishing the results of the studies and furnishing the results thereof to the Congress.
(j) Criminal suits and civil penalty and forfeiture actions relating to wildlife law enforcement under the Endangered Species Act of 1973 (16 U.S.C. 1531-1543); the Lacey Act and related provisions (18 U.S.C. 41-44, 47); the Black Bass Act (16 U.S.C. 851-856); the Airborne Hunting Act (16 U.S.C. 742j-1); the Migratory Bird Act (16 U.S.C. 701, et seq.); the Wild Horses and Wild Burros Act (16 U.S.C. 1331-1340); the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d); and the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.).
§ 0.65a Litigation involving Environmental Protection Agency.
With respect to any matter assigned to the Environment and Natural Resources Division in which the Environmental Protection Agency is a party, the Assistant Attorney General in charge of the Environment and Natural Resources Division, and such members of his staff as he may specifically designate in writing, are authorized to exercise the functions and responsibilities undertaken by the Attorney General in the Memorandum of Understanding between the Department of Justice and the Environmental Protection Agency (42 FR 48942), except that subpart Y of this part shall continue to govern as authority to compromise and close civil claims in such matters.
§ 0.66 Delegation respecting title opinions.
(a) The Assistant Attorney General in charge of the Environment and Natural Resources Division or such members of his staff as he may specifically designate in writing, are authorized to sign the name of the Attorney General to opinions on the validity of titles to property acquired by or on behalf of the United States, except those which, in the opinion of the Assistant Attorney General involve questions of policy or for any other reason require the personal attention of the Attorney General.
(b) Pursuant to the provisions of section 1 of Public Law 91-393, approved September 1, 1970, 84 Stat. 835, the Assistant Attorney General in charge of the Environment and Natural Resources Division is authorized:
(1) To exercise the Attorney General’s power of delegating to other departments and agencies his (the Attorney General’s) responsibility for approving the title to lands acquired by them,
(2) With respect to delegations so made to other departments and agencies, to exercise the Attorney General’s function of general supervision regarding the carrying out by such departments and agencies of the responsibility so entrusted to them, and
(3) To promulgate regulations and any appropriate amendments thereto governing the approval of land titles by such departments and agencies.
§ 0.67 Delegation respecting conveyances for public-airport purposes.
The Assistant Attorney General in charge of the Environment and Natural Resources Division, and such members of his staff as he may specifically designate in writing, are authorized to exercise the power and authority vested in the Attorney General by section 23(b) of the Airport and Airway Development Act of 1970 (84 Stat. 219; 49 U.S.C. 1723) with respect to approving the performance of acts and execution of instruments necessary to make the conveyances requested in carrying out the purposes of that section, except those acts and instruments which, in the opinion of the Assistant Attorney General, involve questions of policy or for any other reason require the personal attention of the Attorney General.
§ 0.68 Delegation respecting mineral leasing.
The Assistant Attorney General in charge of the Environment and Natural Resources Division, and such members of his staff as he may specifically designate in writing, are authorized to execute the power and authority of the Attorney General under the provisions of section 3 of the act of August 7, 1947, 61 Stat. 914, 30 U.S.C. 352, respecting the leasing of minerals on lands under the jurisdiction of the Department of Justice.
The Assistant Attorney General in charge of the Environment and Natural Resources Division, or such members of his staff as he may specifically designate in writing, are authorized to exercise the power and authority vested in the Attorney General by Public Law 87-852, approved October 23, 1962 (40 U.S.C. 319), with respect to making the determinations and grants necessary in carrying out the purposes of that Act, except those acts and instruments which in the opinion of the Assistant Attorney General involve questions of policy or for any other reason require the personal attention of the Attorney General.
§ 0.69a Delegation respecting approval of conveyances.
The Assistant Attorney General in charge of the Environment and Natural Resources Division, and such members of his staff as he may specifically designate in writing, are authorized to exercise the power and authority vested in the Attorney General by the Act of June 4, 1934, 48 Stat. 836, with respect to approving the making or acceptance of conveyances by the Secretary of the Interior on behalf of the United States.
The Assistant Attorney General in charge of the Environment and Natural Resources Division, and such members of his staff as he may specifically designate in writing, are authorized to exercise the power and authority vested in the Attorney General of section 516(b) of The Airport and Airway Improvement Act of 1982 (96 Stat. 671, 692) with respect to approving the performance of acts and execution of instruments necessary to make the conveyance requested in carrying out the purposes of that section, except those acts and instruments which in the opinion of the Assistant Attorney General, involve questions of policy or for any other reason require the personal attention of the Attorney General.
§ 0.69c Litigation involving the Resource Conservation and Recovery Act.
(a) The authority to receive complaints served upon the Attorney General pursuant to section 401 of the Hazardous Waste Amendments of 1984 (Pub. L. 616, 98th Cong.; 42 U.S.C. 6872(b)(2)(F)) is hereby delegated to the Assistant Attorney General, Environment and Natural Resources Division. Every plaintiff required to serve upon the Attorney General a copy of their complaint, should do so by sending a copy of the complaint, together with all attachments thereto required by the Federal Rules of Civil Procedure and the Local Rules for the Federal District Court in which the complaint if filed, via first class mail, to the Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice, NW., Washington, DC 20530.
(b) Services pursuant to section 401 shall be deemed effective upon the date the complaint is received by the Assistant Attorney General.
Subpart M—Tax Division
§ 0.70 General functions.
The following functions are assigned to and shall be conducted, handled, or supervised by, the Assistant Attorney General, Tax Division:
(a) Prosecution and defense in all courts, other than the Tax Court, of civil suits, and the handling of other matters, arising under the internal revenue laws, and litigation resulting from the taxing provisions of other Federal statutes (except civil forfeiture and civil penalty matters arising under laws relating to liquor, narcotics, gambling, and firearms assigned to the Criminal Division by § 0.55(d)).
(b) Criminal proceedings arising under the internal revenue laws, except the following: Proceedings pertaining to misconduct of Internal Revenue Service personnel, to taxes on liquor, narcotics, firearms, coin-operated gambling and amusement machines, and to wagering, forcible rescue of seized property (26 U.S.C. 7212(b)), corrupt or forcible interference with an officer or employee acting under the Internal Revenue laws (26 U.S.C. 7212(a)), unauthorized disclosure of information (26 U.S.C. 7213), and counterfeiting, mutilation, removal, or reuse of stamps (26 U.S.C. 7208).
(c)(1) Enforcement of tax liens, and mandamus, injunctions, and other special actions or general matters arising in connection with internal revenue matters.
(2) Defense of actions arising under section 2410 of title 28 of the U.S. Code whenever the United States is named as a party to an action as the result of the existence of a Federal tax lien, including the defense of other actions arising under section 2410, if any, involving the same property whenever a tax-lien action is pending under that section.
(d) Appellate proceedings in connection with civil and criminal cases enumerated in paragraphs (a) through (c) of this section and in § 0.71, including petitions to review decisions of the Tax Court of the United States.
§ 0.71 Delegation respecting immunity matters.
The Assistant Attorney General in charge of the Tax Division is authorized to handle matters involving the immunity of the Federal Government from State or local taxation (except actions to set aside ad valorem taxes, assessments, special assessments, and tax sales of Federal real property, and matters involving payments in lieu of taxes), as well as State or local taxation involving contractors performing contracts for or on behalf of the United States.
Subpart N—National Security Division
§ 0.72 National Security Division.
The following functions are assigned to and shall be conducted, handled, or supervised by the Assistant Attorney General for National Security:
(a) General functions. (1) Advise the Attorney General, the Office of Management and Budget, and the White House, and brief Congress, as appropriate, on matters relating to the national security activities of the United States, and ensure that all of the Department’s national security activities are effectively coordinated;
(2) Develop, enforce, and supervise the application of all federal criminal laws related to the national counterterrorism and counterespionage enforcement programs, except those specifically assigned to other Divisions;
(3) Represent the Department on interdepartmental boards, committees, and other groups dealing with national security, intelligence, or counterintelligence matters;
(4) Oversee the development, coordination, and implementation of Department policy, in conjunction with other components of the Department as appropriate, with regard to intelligence, counterintelligence, or national security matters;
(5) Provide legal assistance and advice, in coordination with the Office of Legal Counsel as appropriate, to Government agencies on matters of national security law and policy;
(6) Administer the Foreign Intelligence Surveillance Act;
(7) Prosecute Federal crimes involving national security, foreign relations, and terrorism, and coordinate the Department’s activities and advice on all issues with respect to the Foreign Intelligence Surveillance Act of 1978, as amended, and the Classified Information Procedures Act arising in connection with any such prosecutions;
(8) Prosecute and coordinate prosecutions and investigations targeting individuals and organizations involved in terrorist acts at home or against U.S. persons or interests abroad, or that assist in the financing of or providing support to those acts;
(9) Except in the case of emergencies where there is an immediate threat to life or property, review for concurrence the Department’s use of criminal proceedings in connection with all matters relating to intelligence, counterintelligence, or counterterrorism. Such criminal proceedings include, but are not limited to, grand jury proceedings, the filing of search and arrest warrants or applications for electronic surveillance pursuant to 18 U.S.C. 2510 et seq. and 18 U.S.C. 2701 et seq., the filing of complaints, the return of indictments, criminal forfeiture proceedings, and appeals;
(10) Evaluate Departmental activities and existing and proposed domestic and foreign intelligence, counterintelligence, or national security activities to determine their consistency with United States national security policies and law;
(11) Formulate policy alternatives and recommend action by the Department and other executive agencies in achieving lawful United States intelligence, counterintelligence, or national security objectives;
(12) Analyze and interpret current statutes, executive orders, guidelines, and other directives pertaining to intelligence, counterintelligence, or national security matters;
(13) Formulate legislative initiatives, policies, and guidelines relating to intelligence, counterintelligence, or national security matters;
(14) Review and comment upon proposed statutes, guidelines, and other directives with regard to national security matters, and, in conjunction with the Office of Legal Counsel, review and comment upon the form and legality of proposed executive orders that touch upon matters related to the function of this Division;
(15) Provide training for Departmental components on legal topics related to intelligence, counterintelligence, or national security matters;
(16) Advise, assist, coordinate with, and train those in the law enforcement community, including federal, state, and local prosecutors, investigative agencies, and foreign criminal justice entities (provided that any training of foreign criminal justice entities should be conducted in coordination with the Criminal Division);
(17) Provide oversight of intelligence, counterintelligence, or national security matters by executive branch agencies to ensure conformity with applicable law, executive branch regulations, and Departmental objectives and report to the Attorney General on such activities;
(18) Supervise the preparation of the National Security Division’s submission for the annual budget;
(19) Serve as primary liaison to the Director of National Intelligence for the Department of Justice;
(20) Represent the Department on the Committee on Foreign Investments in the United States; and
(21) Perform other duties pertaining to intelligence, counterintelligence, counterterrorism, or national security matters as may be assigned by the Attorney General or the Deputy Attorney General.
(b) Functions related to intelligence policy and operations. (1) Advise and assist the Attorney General in carrying out his responsibilities under Executive Order 12333, “United States Intelligence Activities,” and other statutes, executive orders, and authorities related to intelligence, counterintelligence, or national security matters;
(2) Supervise the preparation of certifications and applications for orders under the Foreign Intelligence Surveillance Act of 1978, as amended, and the representation of the United States before the United States Foreign Intelligence Surveillance Court and the United States Foreign Intelligence Court of Review;
(3) Participate in the development, implementation, and review of United States intelligence, counterintelligence, and national security policies, including procedures for the conduct of intelligence, counterintelligence, or national security activities;
(4) Supervise sensitive areas of law enforcement related to the activities of the National Security Division, except for tasks assigned to other Divisions; and
(5) Recommend action by the Department of Justice with regard to applications under the Foreign Intelligence Surveillance Act of 1978, as amended, as well as with regard to other investigative activities by executive branch agencies; and
(6) To the extent deemed appropriate by the Assistant Attorney General for National Security, prepare periodic and special intelligence reports describing and evaluating domestic and foreign intelligence and counterintelligence activities and assessing trends or changes in these activities.
(c) Functions related to counterterrorism. (1) Participate in the systematic collection and analysis of data and information relating to the investigation and prosecution of terrorism cases;
(2) Coordinate with Government departments and agencies to facilitate prevention of terrorist activity through daily detection and analysis and to provide information and support to the Offices of the United States Attorneys;
(3) Prosecute matters involving counterterrorism;
(4) Prosecute terrorist financing matters, including material support cases, through the Division’s counterterrorism programs;
(5) Formulate legislative initiatives, policies, and guidelines relating to terrorism;
(6) Prosecute matters involving torture, genocide, and war crimes to the extent such matters involve the activities of the National Security Division;
(7) Assist in the foreign terrorist organization designation process with the Department of State, the Department of the Treasury, and the components of the Department of Justice; and
(8) Provide legal advice to attorneys for the Government concerning federal national security statutes, including but not limited to: aircraft piracy and related offenses (49 U.S.C. 46501-07); aircraft sabotage (18 U.S.C. 32); crimes against internationally protected persons (18 U.S.C. 112, 878, 1116, 1201(a)(4)); sea piracy (18 U.S.C. 1651); hostage taking (18 U.S.C. 1203); terrorist acts abroad, including murder, against United States nationals (18 U.S.C. 2332); acts of terrorism transcending national boundaries (18 U.S.C. 2332b); conspiracy within the United States to murder, kidnap, or maim persons or to damage property overseas (18 U.S.C. 956); providing material support to terrorists and terrorist organizations (18 U.S.C. 2339A, 2339B, 2339C); and using biological, nuclear, chemical or other weapons of mass destruction (18 U.S.C. 175, 831, 2332c, 2332a).
(d) Functions related to internal security. (1) Enforcement of all criminal laws relating to subversive activities and kindred offenses directed against the internal security of the United States, including the laws relating to treason, sabotage, espionage, and sedition; enforcement of the Foreign Assets Control Regulations issued under the Trading With the Enemy Act (31 CFR 500.101 et seq.); criminal prosecutions under the Atomic Energy Act of 1954, the Smith Act, the neutrality laws, the Arms Export Control Act, the Federal Aviation Act of 1958 (49 U.S.C. 1523) relating to offenses involving the security control of air traffic, and 18 U.S.C. 799 and criminal prosecutions for offenses, such as perjury and false statements, arising out of offenses relating to national security;
(2) Administration and enforcement of the Foreign Agents Registration Act of 1938, as amended; the Act of August 1, 1956, 70 Stat. 899 (50 U.S.C. 851-857), including the determination in writing that the registration of any person coming within the purview of that Act would not be in the interest of national security; and the Voorhis Act (18 U.S.C. 2386);
(3) Administration and enforcement of the Internal Security Act of 1950, as amended;
(4) Conduct of civil proceedings seeking exclusively equitable relief against laws, investigations or administrative actions designed to protect the national security (including without limitation personnel security programs and the foreign assets control program);
(5) Interpretation of Executive Order 10450 of April 27, 1953, as amended, and advising other departments and agencies in connection with the administration of the federal employees security program, including the designation of organizations as required by the order; the interpretation of Executive Order 10501 of November 5, 1953, as amended, and of regulations issued thereunder in accordance with section 11 of that order; and the interpretation of Executive Order 10865 of February 20, 1960;
(6) Conduct of libels and civil penalty actions (including petitions for remission or mitigation of civil penalties and forfeitures, offers in compromise and related proceedings) arising out of violations of the Trading with the Enemy Act, the neutrality statutes, and the Arms Export Control Act;
(7) Enforcement and administration of the provisions of 2 U.S.C. 441e, relating to contributions by foreign nationals;
(8) Enforcement and administration of the provisions of 18 U.S.C. 219, relating to officers and employees of the United States acting as agents of foreign principals; and
(9) Enforcement and administration of criminal matters arising under the Military Selective Service Act of 1967.
(e) Relationship to other offices. Nothing in this subpart shall be construed as affecting the functions or overriding the authority of the Office of Legal Counsel as established by 28 CFR 0.25.
Subpart O—Justice Management Division
§ 0.75 Policy functions.
The Assistant Attorney General for Administration shall head the Justice Management Division and shall provide advice relating to basic Department policy for budget and financial management, program evaluation, auditing, personnel management and training, procurement, information processing and telecommunications, security and for all matters pertaining to organization, management, and administration. The following matters are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General for Administration:
(a) Conduct, direct, review, and evaluate management studies and surveys of the Department’s organizational structure, functions, and programs, operating procedures and supporting systems, and management practices throughout the Department; and make recommendations to reduce costs and increase productivity.
(b) Supervise, direct, and review the preparation, justification and execution of the Department of Justice budget, including the coordination and control of the programming and reprogramming of funds.
(c) Review, analyze, and coordinate the Department’s programs and activities to ensure that the Department’s use of resources and estimates of future requirements are consistent with the policies, plans, and mission priorities of the Attorney General.
(d) Plan, direct, and coordinate Department-wide personnel management programs, and develop and issue Department-wide policy in all personnel program areas, including training, position classification and pay administration, staffing, employee performance evaluation, employee development, employee relations and services, employee recognition and incentives, equal employment opportunity programs, including the equal opportunity recruitment program (5 U.S.C. 7201), personnel program evaluation, labor management relations, adverse action hearings and appeals, employee grievances, and employee health programs.
(e) Develop and direct Department-wide financial management policies, programs, procedures, and systems including financial accounting, planning, analysis, and reporting.
(f) Supervise and direct the operation of the Department’s central payroll system, automated information services, publication services, library services and any other Department-wide central services which are established by or assigned to the Justice Management Division.
(g) Formulate and administer the General Administration Appropriation of the Department’s budget.
(h) Formulate Department-wide audit policies, standards and procedures; develop, direct and supervise independent and comprehensive internal audits, including examinations authorized by 28 U.S.C. 526, of all organizations, programs, and functions of the Department, and audits of expenditures made under the Department’s contracts and grants to ensure compliance with laws, regulations and generally accepted accounting principles; economy and efficiency in operation; and that desired results are being achieved.
(i) Develop and direct a Department-wide directives management program and administer the directives management system.
(j) Plan, direct, administer, and monitor compliance with Department-wide policies, procedures, and regulations concerning records, reports, procurement, printing, graphics, audiovisual activities (including the approval or disapproval of production and equipment requests), forms management, supply management, motor vehicles, real and personal property, space assignment and utilization, and all other administrative services functions.
(k) Formulate Department policies, standards, and procedures for information systems and the management and use of automatic data processing equipment; review the use and performance of information systems with respect to Department objectives, plans, policies, and procedures; provide technical leadership and support to new Department-wide information systems; review and approve all contracts for information processing let by the Department, and provide the final review and approval of systems and procedures and standards for use of data elements and codes.
(l) Formulate policies, standards, and procedures for Department telecommunications systems and equipment and review their implementation.
(m) Provide computer and digital telecommunications services on an equitable resource-sharing basis to all organizational units within the Department.
(n) Formulate Department policies for the use of consultants and non-personal service contracts, review, and approve all nonpersonal service contracts, and review the implementation of Department policies.
(o) Serve as liaison with state and local governments on management affairs, and coordinate the Department’s participation in Federal regional interagency bodies.
(p) Direct all Department security programs including personnel, physical, document, information processing and telecommunications, special intelligence, and employee health and safety programs and formulate and implement Department defense mobilization and contingency planning.
(q) Review legislation for potential impact on the Department’s resources.
(r) Develop and implement a legal information coordination system for the use of the Department of Justice and, as appropriate, the Federal Government as a whole.
§ 0.76 Specific functions.
The functions delegated to the Assistant Attorney General for Administration by this subpart O shall also include the following specific policy functions:
(a) Directing the Department’s financial management operations, including control of the accounting for appropriations and expenditures, employment limitations, voucher examination and audit, overtime pay, establishing per diem rates, promulgation of policies for travel, transportation, and relocation expenses, and issuance of necessary regulations pertaining thereto.
(b) Submission of requests to the Office of Management and Budget for apportionment or reapportionment of appropriations, including the determination, whenever required, that such apportionment or reapportionment indicates the necessity for the submission of a request for a deficiency or supplemental estimate, and to make allotments to organizational units of the Department of funds made available to the Department within the limits of such apportionments or reapportionments (31 U.S.C. 665).
(c) Approving per diem allowances for travel by airplane, train or boat outside the continental United States in accordance with paragraph 1-7.2 of the Federal Travel Regulations (FPMR 101-7).
(d) Exercising the claims settlement authority under the Federal Claims Collection Act of 1966 (31 U.S.C. 952).
(e) Authorizing payment of actual expense of subsistence (5 U.S.C. 5702(c)).
(f) Prescribing regulations providing for premium pay pursuant to 5 U.S.C. 5541-5550a.
(g) Settling and authorizing payment of employee claims under the Military and Civilian Employees’ Claims Act of 1964, as amended (31 U.S.C. 240-243).
(h) Submitting requests to the Comptroller General for decisions (31 U.S.C. 74, 82d) and deciding questions involving the payment of $25 or less (Comp. Gen. B-161457, July 14, 1976).
(i) Making determinations with respect to employment and wages under section 3122 of the Federal Insurance Contributions Act (26 U.S.C. 3122).
(j) Excluding the Office of Justice Assistance, Research and Statistics, supervising and directing the Department’s procurement and contracting functions and assuring that equal employment opportunity is practiced by the Department’s contractors and subcontractors and in federally assisted programs under the Department’s control.
(k) Designating Contracts Compliance Officers pursuant to Executive Order 11246, as amended.
(l) Making the certificate required with respect to the necessity for including illustrations in printing (44 U.S.C. 1104).
(m) Making the certificates with respect to the necessity of long distance telephone calls (31 U.S.C. 680a).
(n) Making certificates of need for space (68 Stat. 518, 519).
(o) Exercising, except for the authority conferred in §§ 0.15(b)(1), 0.19(a)(1), 0.137, and 0.138 of this part, the power and authority vested in the Attorney General to take final action on matters pertaining to the employment, separation, and general administration of personnel in General Schedule grade GS-1 through GS-15, and in wage board positions; classify positions in the Department under the General Schedule and wage board systems regardless of grade; postaudit and correct any personnel action within the Department; and inspect at any time any personnel operations of the various organizational units of the Department.
(p) Selecting and assigning employees for training by, in, or through non-Government facilities, paying the expenses of such training or reimbursing employees therefor, and preparing and submitting the required annual report to the Office of Personnel Management (5 U.S.C. 4103-4118).
(q) Exercising authority for the temporary employment of experts or consultants of organizations thereof, including stenographic reporting services (5 U.S.C. 3109(b)).
(r) Providing assistance in furnishing information to the public under the Public Information Section of the Administrative Procedure Act (5 U.S.C. 552).
(s) Representing the Department in its contacts on matters relating to administration and management with the Congressional Appropriations Committees, Office of Management and Budget, the General Accounting Office, the Office of Personnel Management, the General Services Administration, the Joint Committee on Printing, the Government Printing Office and all other Federal departments and agencies.
(t) Taking final action, including making all required determinations and findings, in connection with the acquisition of real property for use by the Department of Justice.
(u) Perform functions with respect to the operation, maintenance, repair, preservation, alteration, furnishing, equipment and custody of buildings occupied by the Department of Justice as delegated by the Administrator of the General Services Administration.
(v) Implementing Office of Management and Budget Circular No. A-76, “Performance of Commercial Activities”.
§ 0.77 Operational functions.
The Assistant Attorney General for Administration shall provide all direct administrative support services to the Offices, Boards and Divisions of the Department and to the U.S. Marshals Service, except where independent administrative authority has been conferred. These services shall include the following:
(a) Planning, directing and coordinating the personnel management program; providing personnel services including employment and staffing, employee relations, and classification, and including the employment, separation and general administration of employees, except attorneys, in General Schedule grades GS-15 and below, or equivalent pay levels.
(b) Formulating policies and plans for efficient administrative management and organization and developing and coordinating all management studies and reports on the operations of the Offices, Divisions and Boards.
(c) Planning, justifying, and compiling the annual and supplemental budget estimates of the Offices, Divisions and Boards.
(d) Planning, directing and executing accounting operations for the Offices, Divisions and Boards.
(e) Providing information systems analysis, design, computer programming, and systems implementation services consistent with Departmental information systems plans, policies and procedures.
(f) Implementing and administering management programs for the creation, organization, maintenance, use, and disposition of Federal records, and providing mail and messenger service.
(g) Implementing and administering programs for procurement, personal property, supply, motor vehicle, space management, and operations and management of buildings as delegated by the Administrator of the General Services Administration.
(h) Operating and maintaining the Department Library.
(i) Routing and controlling correspondence, maintaining indices of legal cases and matters, replying to correspondence not assignable to a division, safeguarding confidential information, attesting to the correctness of records, and related matters.
(j) Accepting service of summonses, complaints, or other papers, including, without limitation, subpoenas, directed to the Attorney General in his official capacity, as a representative of the Attorney General, under the Federal Rules of Civil and Criminal Procedure or in any suit within the purview of subsection (a) of section 208 of the Department of Justice Appropriation Act, 1953 (66 Stat. 560 (43 U.S.C. 666(a))).
(k) Making the certificates required in connection with the payment of expenses of collecting evidence: Provided, That each such certificate shall be approved by the Attorney General.
(l) Taking final action, including making all required determinations and findings, in connection with negotiated purchases and contracts as provided in 41 U.S.C. 252(c) (1) through (11), (14), (15) except that the authority provided in 41 U.S.C. 252(c)(11) shall be limited not to exceed an expenditure of $25,000 per contract and shall not be further delegated.
(m) Serving as Contracting Officer for the Offices, Boards and Divisions, with authority of redelegation to the Deputy Assistant Attorney General, Office of Personnel and Administration, Justice Management Division. The authority so delegated includes the authority of redelegation to subordinates and to officials within the Offices, Boards and Divisions.
(n) Authorizing payment of extraordinary expenses incurred by ministerial officers of the United States in executing acts of Congress (28 U.S.C. 1929).
(o) Representing the Attorney General with the Secretary of State in arranging for reimbursement by foreign governments of expenses incurred in extradition cases, and certifying to the Secretary the amounts to be paid to the United States as reimbursement (18 U.S.C. 3195).
§ 0.78 Implementation of financial disclosure requirements.
The Assistant Attorney General for Administration shall serve as the designated agency ethics official under title II of the Ethics in Government Act of 1978, 92 Stat. 1836, for purposes of administering the public and confidential financial disclosure programs applicable to officers and employees of the Department of Justice. His duties shall include the following:
(a) Providing necessary report forms and other information to officers and employees of the Department;
(b) Developing and maintaining a list of positions covered by the public and confidential financial reporting requirements;
(c) Monitoring compliance by department officers and employees with applicable requirements for filing and review of financial disclosure reports;
(d) Providing for retention of reports and transmittal, where necessary, of copies of reports to the Director of the Office of Government Ethics;
(e) Establishing procedures for public access to reports filed under title II of the Ethics in Government Act of 1978;
(f) Performing such other functions as may be necessary for the effective implementation of title II of the Ethics in Government Act.
The Assistant Attorney General for Administration is authorized to redelegate to any Department official any of the power or authority vested in him by this subpart O. Existing redelegations by the Assistant Attorney General for Administration shall continue in force and effect until modified or revoked.
Subpart P—Federal Bureau of Investigation
For regulations pertaining to the Federal Bureau of Investigation, see part 3 of this chapter.
§ 0.85 General functions.
The Director of the Federal Bureau of Investigation shall:
(a) Investigate violations of the laws, including the criminal drug laws, of the United States and collect evidence in cases in which the United States is or may be a party in interest, except in cases in which such responsibility is by statute or otherwise exclusively assigned to another investigative agency. The Director’s authority to investigate violations of and collect evidence in cases involving the criminal drug laws of the United States is concurrent with such authority of the Administrator of the Drug Enforcement Administration under § 0.100 of this part. In investigating violations of such laws and in collecting evidence in such cases, the Director may exercise so much of the authority vested in the Attorney General by sections 1 and 2 of Reorganization Plan No. 1 of 1968, section 1 of Reorganization Plan No. 2 of 1973 and the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended, as he determines is necessary. He may also release FBI information on the same terms and for the same purposes that the Administrator of the Drug Enforcement Administration may disclose DEA information under § 0.103 of this part. The Director and his authorized delegates may seize, forfeit and remit or mitigate the forfeiture of property in accordance with 21 U.S.C. 881, 21 CFR 1316.71 through 1316.81, and 28 CFR 9.1 through 9.7.
(b) Conduct the acquisition, collection, exchange, classification and preservation of fingerprints and identification records from criminal justice and other governmental agencies, including fingerprints voluntarily submitted by individuals for personal identification purposes; provide expert testimony in Federal, State and local courts as to fingerprint examinations; and provide fingerprint training and provide identification assistance in disasters and for other humanitarian purposes.
(c) Conduct personnel investigations requisite to the work of the Department of Justice and whenever required by statute or otherwise.
(d) Carry out the Presidential directive of September 6, 1939, as reaffirmed by Presidential directives of January 8, 1943, July 24, 1950, and December 15, 1953, designating the Federal Bureau of Investigation to take charge of investigative work in matters relating to espionage, sabotage, subversive activities, and related matters, including investigating any potential violations of the Arms Export Control Act, the Export Administration Act, the Trading with the Enemy Act, or the International Emergency Economic Powers Act, relating to any foreign counterintelligence matter.
(e) Establish and conduct law enforcement training programs to provide training for State and local law enforcement personnel; operate the Federal Bureau of Investigation National Academy; develop new approaches, techniques, systems, equipment, and devices to improve and strengthen law enforcement and assist in conducting State and local training programs, pursuant to section 404 of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 204.
(f) Operate a central clearinghouse for police statistics under the Uniform Crime Reporting Program, and a computerized nationwide index of law enforcement information under the National Crime Information Center.
(g) Operate the Federal Bureau of Investigation Laboratory to serve not only the Federal Bureau of Investigation, but also to provide, without cost, technical and scientific assistance, including expert testimony in Federal or local courts, for all duly constituted law enforcement agencies, other organizational units of the Department of Justice, and other Federal agencies, which may desire to avail themselves of the service. As provided for in procedures agreed upon between the Secretary of State and the Attorney General, the services of the Federal Bureau of Investigation Laboratory may also be made available to foreign law enforcement agencies and courts.
(h) Make recommendations to the Office of Personnel Management in connection with applications for retirement under 5 U.S.C. 8336(c).
(i) Investigate alleged fraudulent conduct in connection with operations of the Department of Housing and Urban Development and other alleged violations of the criminal provisions of the National Housing Act, including 18 U.S.C. 1010.
(j) Exercise the power and authority vested in the Attorney General to approve and conduct the exchanges of identification records enumerated at § 50.12(a) of this chapter.
(k) Payment of awards (including those over $10,000) under 28 U.S.C. 524(c)(2), and purchase of evidence (including the authority to pay more than $100,000) under 28 U.S.C. 524(c)(1)(F).
(l) Exercise Lead Agency responsibility in investigating all crimes for which it has primary or concurrent jurisdiction and which involve terrorist activities or acts in preparation of terrorist activities within the statutory jurisdiction of the United States. Within the United States, this would include the collection, coordination, analysis, management and dissemination of intelligence and criminal information as appropriate. If another Federal agency identifies an individual who is engaged in terrorist activities or in acts in preparation of terrorist activities, that agency is requested to promptly notify the FBI. Terrorism includes the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.
(m) Carry out the Department’s responsibilities under the Hate Crime Statistics Act.
(n) Exercise the authority vested in the Attorney General under section 528(a), Public Law 101-509, to accept from federal departments and agencies the services of law enforcement personnel to assist the Department of Justice in the investigation and prosecution of fraud or other criminal or unlawful activity in or against any federally insured financial institution or the Resolution Trust Corporation, and to coordinate the activities of such law enforcement personnel in the conduct of such investigations and prosecutions.
(o) Carry out the responsibilities conferred upon the Attorney General under the Communications Assistance for Law Enforcement Act, Title I of Pub. L. 103-414 (108 Stat. 4279), subject to the general supervision and direction of the Attorney General.
§ 0.85a Criminal justice policy coordination.
The Federal Bureau of Investigation shall report to the Attorney General on all its activities.
§ 0.86 Seizure of gambling devices.
The Director, Associate Director, Assistants to the Director, Executive Assistant Directors, Assistant Directors, inspectors and agents of the Federal Bureau of Investigation are authorized to exercise the power and authority vested in the Attorney General to make seizures of gambling devices (18 U.S.C. 1955(d), 15 U.S.C. 1171 et seq.) and wire or oral communication intercepting devices (18 U.S.C. 2513).
§ 0.87 Representation on committee for visit-exchange.
The Director of the Federal Bureau of Investigation shall be a member of the committee which represents the Department of Justice in the development and implementation of plans for exchanging visits between the Iron Curtain countries and the United States and shall have authority to designate an alternate to serve on such committee.
§ 0.88 Certificates for expenses of unforeseen emergencies.
The Director of the Federal Bureau of Investigation is authorized to exercise the power and authority vested in the Attorney General by 28 U.S.C. 537, to make certificates with respect to expenses of unforeseen emergencies of a confidential character: Provided, That each such certificate made by the Director of the Federal Bureau of Investigation shall be approved by the Attorney General.
§ 0.89 Authority to seize arms and munitions of war.
The Director of the Federal Bureau of Investigation is authorized to exercise the authority conferred upon the Attorney General by section 1 of E.O. 10863 of February 18, 1960 (25 FR 1507), relating to the seizure of arms and munitions of war, and other articles, pursuant to section 1 of title VI of the act of June 15, 1917, 40 Stat. 223, as amended by section 1 of the Act of August 13, 1953, 67 Stat. 577 (22 U.S.C. 401).
§ 0.89a Delegations respecting claims against the FBI.
(a) The Director of the Federal Bureau of Investigation is authorized to exercise the power and authority vested in the Attorney General under the Act of December 7, 1989, Public Law 101-203, 103 Stat. 1805 (31 U.S.C. 3724), with regard to claims thereunder not exceeding $50,000 in any one case.
(b) The Director of the Federal Bureau of Investigation is authorized to redelegate to the General Counsel of the FBI or his designee within the Office of the General Counsel or to the primary legal advisors of the FBI field offices, any of the authority, functions, or duties vested in him by paragraph (a) of this section and by 28 CFR 0.172. This authority shall not be further redelegated.
Subpart P-1—Office of Justice Programs and Related Agencies
§ 0.90 Office of Justice Programs.
The Office of Justice Programs is headed by an Assistant Attorney General appointed by the President. Under the general authority of the Attorney General, the Assistant Attorney General maintains liaison with the provides information to Federal, State, local, and private agencies and organizations on criminal justice matters, and provides staff support to and coordinates the activities of the National Institute of Justice, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, and the Bureau of Justice Assistance. The Office includes the Office for Victims of Crime.
§ 0.91 Office for Victims of Crime.
The Office for Victims of Crime is headed by a Director appointed by the Assistant Attorney General, Office of Justice Programs. Under a delegation by the Attorney General (DOJ Order No. 1079-84, Dec. 14, 1984), the Assistant Attorney General and the Director are responsible for providing national leadership to encourage improved treatment of victims by implementing the recommendations of the President’s Task Force on Victims of Crime and the Attorney General’s Task Force on Family Violence, and by administering the Crime Victims Fund and the Federal Crime Victim Assistance Program, established under the Victims of Crime Act of 1984, title II, chapter XIV, of Public Law 98-473, 42 U.S.C. 10601 et seq., 98 Stat. 2170 (Oct. 12, 1984).
§ 0.92 National Institute of Justice.
The National Institute of Justice is headed by a Director appointed by the President. Under the general authority of the Attorney General and reporting through the Assistant Attorney General, Office of Justice Programs, the Director performs functions and administers programs, including provision of financial assistance, under 42 U.S.C. 3721-3723 to support basic and applied research into justice issues.
§ 0.93 Bureau of Justice Statistics.
The Bureau of Justice Statistics is headed by a Director appointed by the President. Under the general authority of the Attorney General and reporting through the Assistant Attorney General, Office of Justice Programs, the Director performs functions and administers programs, including provision of financial assistance, under 42 U.S.C. 3731-3734, to provide a variety of statistical services for the criminal justice community.
§ 0.94 Office of Juvenile Justice and Delinquency Prevention.
The Office of Juvenile Justice and Delinquency Prevention is headed by an Administrator appointed by the President. Under the general authority of the Attorney General and reporting through the Assistant Attorney General, Office of Justice Programs, the Administrator performs functions and administers programs, including provision of financial assistance, under 42 U.S.C. 5601 et seq., relating to juvenile delinquency, the improvement of juvenile justice systems and missing children.
§ 0.94-1 Bureau of Justice Assistance.
(a) The Bureau of Justice Assistance is headed by a Director appointed by the Attorney General. Under the general authority of the Attorney General and reporting through the Assistant Attorney General, Office of Justice Programs, the Director performs functions and administers programs, including provision of financial assistance, under 42 U.S.C. 3741-3748; 3761-3764; and 3769, relating to the administration of State and local criminal justice systems. The Director also administers the Public Safety Officers’ Death Benefits Program under 42 U.S.C. 3796, et seq.
(b) Subject to the authority and direction of the Attorney General, the Director of the Bureau of Justice Assistance is authorized to exercise the power and authority vested in the Attorney General by Executive Order No. 11755 of December 29, 1973, 39 FR 779, with respect to certification and revoking certification of work-release laws or regulations.
Subpart Q—Bureau of Prisons
For regulations pertaining to the Bureau of Prisons, see parts 6 and 7 of this chapter.
§ 0.95 General functions.
The Director of the Bureau of Prisons shall direct all activities of the Bureau of Prisons including:
(a) Management and regulation of all Federal penal and correctional institutions (except military or naval institutions), and prison commissaries.
(b) Provision of suitable quarters for, and safekeeping, care, and subsistence of, all persons charged with or convicted of offenses against the United States or held as witnesses or otherwise.
(c) Provision for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States.
(d) Classification, commitment, control, or treatment of persons committed to the custody of the Attorney General.
(e) Payment of rewards with respect to escaped Federal prisoners (18 U.S.C. 3059).
(f) Certification with respect to the insanity or mental incompetence of a prisoner whose sentence is about to expire pursuant to section 4247 of title 18 of the U.S. Code.
(g) Entering into contracts with State or territorial officials for the custody, care, subsistence, education, treatment, and training of State or territorial prisoners, upon certification with respect to the availability of proper and adequate treatment facilities and personnel, pursuant to section 5003 of title 18 of the U.S. Code.
(h) Conduct of studies and the preparation and submission of reports and recommendations to committing courts respecting disposition of cases in which defendants have been committed for such purposes pursuant to 18 U.S.C. 4205(c).
(i) Conduct and prepare, or cause to be conducted and prepared, studies and submit reports to the court and the attorneys with respect to disposition of cases in which juveniles have been committed, pursuant to 18 U.S.C. 5037, and to contract with public or private agencies or individuals or community-based facilities for the observation and study and the custody and care of juveniles, pursuant to 18 U.S.C. 5040.
(j) Observation, conduct of studies, and preparation of reports in cases in which youth offenders have been committed by the courts for such purposes pursuant to section 5010(e) of title 18 of the United States Code.
(k) Conduct of examinations to determine whether an offender is an addict and is likely to be rehabilitated through treatment, as well as the preparation and submission of reports to committing courts, pursuant to section 4252 of title 18 of the United States Code.
(l) Transmittal of reports of boards of examiners and certificates to clerks of the district courts pursuant to section 4245 of title 18 of the U.S. Code.
(m) Providing technical assistance to State and local governments in the improvement of their correctional systems (18 U.S.C. 4042).
§ 0.96 Delegations.
The Director of the Bureau of Prisons is authorized to exercise or perform any of the authority, functions, or duties conferred or imposed upon the Attorney General by any law relating to the commitment, control, or treatment of persons (including insane prisoners and juvenile delinquents) charged with or convicted of offenses against the United States, including the taking of final action in the following-described matters:
(a) Requesting the detail of Public Health Service officers for the purpose of furnishing services to Federal penal and correctional institutions (18 U.S.C. 4005).
(b) Consideration, determination, adjustment, and payment of claims in accordance with 31 U.S.C. 3722.
(c) Designating places of imprisonment or confinement where the sentences of prisoners shall be served and ordering transfers from one institution to another, whether maintained by the Federal Government or otherwise, pursuant to 18 U.S.C. 4082 as it existed before the enactment of Pub. L. 98-473 (applicable to offenses committed prior to November 1, 1987).
(d) Extending the limits of the place of confinement of prisoners for the purposes specified, and within the limits established, by 18 U.S.C. 4082(c) as it existed before the enactment of Public Law 98-473, and otherwise performing the functions of the Attorney General under that section (applicable to offenses committed prior to November 1, 1987).
(e) Designation of agents for the transportation of prisoners (18 U.S.C. 4008).
(f) Prescribing regulations for the use of surplus funds in “Commissary Funds, Federal Prisons” to provide advances not in excess of $150 to prisoners at the time of their release pursuant to 18 U.S.C. 4284 as it existed before the enactment of Public Law 98-473 (applicable to offenses committed prior to November 1, 1987).
(g) Allowance, forfeiture, and restoration of all good time pursuant to 18 U.S.C. 4161, 4162, 4165, and 4166 as those sections existed before the enactment of Public Law 98-473 (applicable to offenses committed prior to November 1, 1987).
(h) Release of prisoners held solely for nonpayment of fine as provided in 18 U.S.C. 3569 as it existed before the enactment of Public Law 98-473 (applicable to offenses committed prior to November 1, 1987).
(i) Furnishing transportation, clothing, and payments to released prisoners pursuant to 18 U.S.C. 4281 as it existed before the enactment of Public Law 98-473 (applicable to offenses committed prior to November 1, 1987).
(j) Performing the functions of the Attorney General under the provisions of 18 U.S.C. chapter 313, Offenders with Mental Disease or Defect (18 U.S.C. 4241-4247).
(k) Settlement of claims arising under the Federal Tort Claims Act as provided in 28 CFR 0.172.
(l) Entering into reciprocal agreements with fire organizations for mutual aid and rendering emergency assistance in connection with extinguishing fires within the vicinity of a Federal correctional facility, as authorized by sections 2 and 3 of the Act of May 27, 1955 (42 U.S.C. 1856a, 1856b).
(m) Deciding upon requests by states for temporary transfers of custody of inmates for prosecution under Article IV of the Interstate Agreement on Detainers (84 Stat. 1399) and pursuant to other available procedures; and receiving and reviewing requests by the executive authority of states or the District of Columbia for, and authorizing the transfer of, inmates pursuant to 18 U.S.C. 4085 as it existed before the enactment of Public Law 98-473 (applicable to offenses committed prior to November 1, 1987).
(n) Prescribing rules and regulations applicable to the carrying of firearms by Bureau of Prisons officers and employees (18 U.S.C. 3050).
(o) Promulgating rules governing the control and management of Federal penal and correctional institutions and providing for the classification, government, discipline, treatment, care, rehabilitation, and reformation of inmates confined therein (18 U.S.C. 4001, 4041, and 4042).
(p) Establishing and designating Bureau of Prisons Institutions (18 U.S.C. 4001, 4042).
(q) Granting permits to states or public agencies for rights-of-way upon lands administered by the Director in accordance with the provisions of 43 U.S.C. 931c and 43 U.S.C. 961 (18 U.S.C. 4001, 4041, 4042, 43 U.S.C. 931c, 961).
(r) Authority under the provisions of 18 U.S.C. 4082(b) to provide law enforcement representatives with information on Federal prisoners who have been convicted of felony offenses and who are confined at a residential community treatment center located in the geographical area in which the requesting agency has jurisdiction (18 U.S.C. 4082).
(s) Approving inmate disciplinary and good time regulations (18 U.S.C. 3624).
(t) Contracting, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of persons convicted of offenses against the United States (18 U.S.C. 4002).
(u) With respect to the authorities granted under the Coronavirus Aid, Relief, and Economic Security (CARES) Act:
(1) During the “covered emergency period” as defined by the CARES Act, when the Attorney General determines that emergency conditions will materially affect the functioning of the Bureau of Prisons (Bureau), lengthening the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under 18 U.S.C. 3624(c)(2), as the Director determines appropriate.
(2) After the expiration of the “covered emergency period” as defined by the CARES Act, permitting any prisoner placed in home confinement under the CARES Act who is not yet otherwise eligible for home confinement under separate statutory authority to remain in home confinement under the CARES Act for the remainder of the prisoner’s sentence, as the Director determines appropriate, provided the prisoner is compliant with all conditions of supervision. In the event a prisoner violates the conditions of supervision, Bureau staff may return the prisoner to secure custody, or may utilize progressive discipline as outlined in the Residential Reentry Center (RRC) contract, which may include possible placement in an RRC or contract facility in lieu of direct return to secure custody.
(3) This paragraph (u) concerns only inmates placed in home confinement under the CARES Act. It has no effect on any other inmate, including those placed in home confinement under separate statutory authorities.
§ 0.96a Interstate Agreement on Detainers.
The Director of the Bureau of Prisons is designated as the U.S. Officer under Article VII of the Interstate Agreement on Detainers (84 Stat. 1402).
§ 0.96b Exchange of prisoners.
The Director of the Bureau of Prisons and officers of the Bureau of Prisons designated by him are authorized to receive custody of offenders and to transfer offenders to and from the United States of America under a treaty as referred to in Public Law 95-144; to make arrangements with the States and to receive offenders from the States for transfer to a foreign country; to act as an agent of the United States to receive the delivery from a foreign government of any person being transferred to the United States under such a treaty; to render to foreign countries and to receive from them certifications and reports required under a treaty; and to receive custody and carry out the sentence of imprisonment of such a transferred offender as required by that statute and any such treaty.
§ 0.96c Cost of incarceration.
(a) The Attorney General is required to establish and collect a fee to cover the cost of one year of incarceration. These provisions apply to any person who is convicted in a United States District Court and committed to the custody of the Attorney General, and who begins service of sentence on or after December 27, 1994. For the purposes of this subpart, revocation of parole or supervised release shall be treated as a separate period of incarceration for which a fee may be imposed.
(b) The fee to cover the costs of incarceration shall be calculated by dividing the number representing the obligation encountered in Bureau of Prisons facilities (excluding activation costs) by the number of inmate-days incurred for the year, and by then multiplying the quotient by 365. The resulting figure represents the average cost to the Bureau for confining an inmate for one year.
(c) The Director of the Bureau of Prisons is delegated the authority to collect the fee to cover the cost of incarceration from inmates committed to the custody of the Attorney General and to promulgate all regulations concerning the collection of the fee.
(d) The Director shall review and determine the amount of the fee not less than annually in accordance with the formula set forth in paragraph (b) of this section. The Director shall publish each year’s fee as a Notice in the
The Director of the Bureau of Prisons is authorized to redelegate to any of his subordinates any of the authority, functions or duties vested in him by this subpart Q. The Director may make similar delegations to any other employee of any Bureau, Board, Office, or Division of the Department of Justice with the consent of the head of that Bureau, Board, Office, or Division, and after written notification to the Attorney General or designee. A redelegation of authority is limited to employees of the Department of Justice. Existing redelegations by the Director of the Bureau of Prisons shall continue in force and effect until modified or revoked.
§ 0.98 Functions of Commissioner of Federal Prison Industries.
The Director of the Bureau of Prisons is authorized as ex officio Commissioner of Federal Prison Industries and in accordance with the policy fixed by its Board of Directors to:
(a) Exercise jurisdiction over all industrial enterprises in all Federal penal and correctional institutions.
(b) Sponsor vocational training programs in Federal penal and correctional institutions.
(c) Contract for the transfer of property or equipment from the District of Columbia for industrial employment and training of prisoners confined in a penal or correctional institution of the District of Columbia, pursuant to 18 U.S.C. 4122.
§ 0.99 Compensation to Federal prisoners.
The Board of Directors of Federal Prison Industries, or such officer of the corporation as the Board may designate, may exercise the authority vested in the Attorney General by section 4126 of title 18 of the U.S. Code, as amended, to prescribe rules and regulations governing the payment of compensation to inmates of Federal penal and correctional institutions employed in any industry, or performing outstanding services in institutional operations, and to inmates or their dependents for injuries suffered in any industry or in any work activity in connection with the maintenance of operation of the institution where confined.
Appendix to Subpart Q of Part 0—Confinement of Persons in District of Columbia Correctional Institutions
By virtue of the authority vested in me by the Act of September 1, 1916, 39 Stat. 711 (D.C. Code section 24-402), by section 11 of the Act of July 15, 1932, as added by the Act of June 6, 1940, 54 Stat. 244 (D.C. Code section 24-425), and by the Act of September 10, 1965 (18 U.S.C. 4082).
(a) The Mayor of the District of Columbia or his authorized representative is hereby authorized to transfer such prisoners as may be in his custody and supervision, by virtue of having been placed in a correctional institution of the District of Columbia pursuant to the authority of the Attorney General, from such institution to any available, suitable, or appropriate institution or facility (including a residential community treatment center) within the District of Columbia, and the Mayor or his authorized representative is further authorized to extend the limits of the place of confinement of such prisoners for the purposes specified, and within the limits established, by the Act of September 10, 1965 (18 U.S.C. 4082).
(b) The authority conferred by subsection (a) shall not include any extension of the limits of confinement for any prisoner serving a sentence for a crime of violence and not participating in a furlough program as of December 22, 1976, unless such prisoner has served at least twelve months, has not been denied parole, without recommendation for furlough, at his most recent parole hearing (whether such hearing was held before or after extension of the limits of his confinement was granted), and
(1) Is within twelve months of the expiration of his maximum sentence, without reduction, or
(2) Is within twelve months of a date on which he will be eligible for parole from confinement, or
(3) Has served at least ninety percent of his minimum sentence, without reduction.
(c) With respect to all other prisoners, the authority conferred by subsection (a) may be exercised by an authorized representative designated by the Mayor.
(d) As used in this Order crime of violence means murder, manslaughter, rape, kidnapping, robbery, burglary, assault with intent to kill, assault with intent to rape, assault with intent to rob or extortion involving the threat or use of violence to person.
Subpart R—Drug Enforcement Administration
§ 0.100 General functions.
The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Administrator of the Drug Enforcement Administration:
(a) Functions vested in the Attorney General by sections 1 and 2 of Reorganization Plan No. 1 of 1968.
(b) Except where the Attorney General has delegated authority to another Department of Justice official to exercise such functions, and except where functions under 21 U.S.C. 878(a)(5) do not relate to, arise from, or supplement investigations of matters concerning drugs, functions vested in the Attorney General by the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. This will include functions which may be vested in the Attorney General in subsequent amendments to the Comprehensive Drug Abuse Prevention and Control Act of 1970, and not otherwise specifically assigned or reserved by him.
(c) Functions vested in the Attorney General by section 1 of Reorganization Plan No. 2 of 1973 and not otherwise specifically assigned.
§ 0.101 Specific functions.
The Administrator of the Drug Enforcement Administration shall be responsible for:
(a) The development and implementation of a concentrated program throughout the Federal Government for the enforcement of Federal drug laws and for cooperation with State and local governments in the enforcement of their drug abuse laws.
(b) The development and maintenance of a National Narcotics Intelligence System in cooperation with Federal, State, and local officials, and the provision of narcotics intelligence to any Federal, State, or local official that the Administrator determines has a legitimate official need to have access to such intelligence.
(c) The development and implementation of a procedure to release property seized under section 511 of the Controlled Substances Act (21 U.S.C. 881) to any innocent party having an immediate right to possession of the property, when the Administrator, in his discretion, determines it is not in the interests of justice to initiate forfeiture proceedings against the property.
(d) Payment of awards (including those over $10,000) under 28 U.S.C. 524(c)(2) and purchase of evidence (including the authority to pay more than $100,000) under 28 U.S.C. 524(c)(1)(F).
§ 0.102 Drug enforcement policy coordination.
The Administrator of the Drug Enforcement Administration shall report to the Attorney General, through the Deputy Attorney General or the Associate Attorney General, as directed by the Attorney General.
§ 0.103 Release of information.
(a) The Administrator of DEA is authorized—
(1) To release information obtained by DEA and DEA investigative reports to Federal, State, and local officials engaged in the enforcement of laws related to controlled substances.
(2) To release information obtained by DEA and DEA investigative reports to Federal, State, and local prosecutors, and State licensing boards, engaged in the institution and prosecution of cases before courts and licensing boards related to controlled substances.
(3) To authorize the testimony of DEA officials in response to subpoenas or demands issued by the prosecution in Federal, State, or local criminal cases involving controlled substances.
(b) Except as provided in paragraph (a) of this section, all other production of information or testimony of DEA officials in response to subpoenas or demands of courts or other authorities is governed by subpart B of part 16 of this chapter. However, it should be recognized that subpart B is not intended to restrict the release of noninvestigative information and reports as deemed appropriate by the Administrator of DEA. For example, it does not inhibit the exchange of information between governmental officials concerning the use and abuse of controlled substances as provided for by section 503(a)(1) of the Controlled Substances Act (21 U.S.C. 873(a)(1)).
§ 0.103a Delegations respecting claims against the Drug Enforcement Administration.
(a) The Administrator of DEA is authorized to exercise the power and authority vested in the Attorney General under the Act of December 7, 1989, Public Law 101-203, 103 Stat. 1805 (31 U.S.C. 3724) with regard to claims thereunder arising out of the lawful activities of DEA personnel in an amount not to exceed $50,000.00 in any one case.
(b) Notwithstanding the provisions of 28 CFR 0.104, the Administrator of DEA is authorized to redelegate the power and authority vested in him in paragraph (a) of this section to the Chief Counsel of DEA and the Chief Counsel’s designee within the Office of Chief Counsel. This authority shall not be further redelegated below the Associate Chief Counsel level.
The Administrator of the Drug Enforcement Administration is authorized to redelegate to any of his subordinates or any of the officers or employees of the Immigration and Naturalization Service any of the powers and functions vested in him by this subpart R.
Appendix to Subpart R of Part 0—Redelegation of Functions
(b) All DEA Diversion Investigators (series 1801 under Office of Personnel Management regulations) are authorized to administer oaths and serve subpoenas under 21 U.S.C. 875 and 876; to conduct administrative inspections and execute administrative inspection warrants under 21 U.S.C. 878(2) and 880; to seize property incident to compliance and registration inspections and investigations under 21 U.S.C. 881; and to seize or place controlled substances under seal pursuant to 21 U.S.C. 824.
(b) The Administrative Law Judge of DEA is authorized to sign and issue subpoenas to compel the attendance of witnesses and the production of documents and materials to the extent necessary to conduct administrative hearings pending before him.
(a) Part 1301, incident to the registration of manufacturers, distributors, and dispensers of controlled substances, except that final orders in connection with suspension, denial or revocation of registration shall be made by the Deputy Administrator of DEA.
(b) Part 1302 relating to labelling and packaging requirements for controlled substances.
(c) Part 1304 relating to records and reports of registrants.
(d) Part 1305 relating to order forms.
(e) Part 1306 relating to prescriptions, except provisions relating to dispensing of narcotic drugs for maintenance purposes.
(f) Part 1307, title 21, Code of Federal Regulations, relating to miscellaneous provisions, except § 1307.31 concerning special exempt persons.
(g) The following sections of part 1308: §§ 1308.21 and 1308.22 relating to excluded nonnarcotic substances; §§ 1308.23 and 1308.24 relating to exempt chemical preparations; §§ 1308.25 and 1308.26 relating to excluded veterinary anabolic steroid implant products; §§ 1308.31 and 1308.32 relating to exempted prescription products; and §§ 1308.33 and 1308.34 relating to exempt anabolic steroid products, except that any final order following a contested proposed rulemaking shall be issued by the Deputy Administrator of DEA.
(h) Part 1309, incident to the registration of manufacturers, distributors, importers and exporters of List I chemicals, except that final orders in connection with suspension, denial or revocation of registration shall be made by the Deputy Administrator of DEA.
(i) Part 1310, relating to records, reports and identification of parties to transactions in listed chemicals and certain machinery, but not including the authority to add and delete listed chemicals pursuant to 21 CFR 1310.02.
(j) Part 1311 relating to registration of importers and exporters of controlled substances, except that final orders in connection with suspension, denial or revocation of registration shall be made by the Deputy Administrator of DEA.
(k) Part 1312 relating to importation and exportation of controlled substances, except that all final orders following a contested proposed rulemaking regarding the denial of an application for an import, export or transshipment permit shall be made by the Deputy Administrator of DEA.
(l) Part 1313, relating to the importation and exportation of precursors and essential chemicals, but not including the authority to suspend shipments under 21 CFR 1313.41.
(m) Part 1314, incident to the retail sale of scheduled listed chemical products by regulated sellers and distributors required to submit reports under section 310(b)(3) of the Act (21 U.S.C. 830(b)(3)), except that final orders in connection with suspension or revocation of the regulated seller’s or mail order distributor’s right to sell scheduled listed chemical products shall be made by the Deputy Administrator of the Drug Enforcement Administration.
Subpart S—Immigration and Naturalization Service
§ 0.105 General functions.
The Commissioner of the Immigration and Naturalization Service shall:
(a) Subject to limitations contained in section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) and excepting the authority delegated to the Executive Office for Immigration Review, the Board of Immigration Appeals, the Office of the Chief Immigration Judge, Immigration Judges, and the Office of the Chief Administrative Hearing Officer, administer and enforce the Immigration and Nationality Act and all other laws relating to immigration (including but not limited to admission, exclusion, and deportation), naturalization, and nationality. Nothing in this paragraph shall be construed to authorize the Commissioner of Immigration and Naturalization to supervise the litigation of or to approve the filing of records on review, appeals, or petitions for writs of certiorari or to intervene or have independent representation in cases under the immigration and nationality laws except as provided in paragraph (e) of this section.
(b) For the purposes of paragraph (a) of this section, and as limited therein, exercise or perform any of the authority, functions, or duties conferred or imposed upon the Attorney General by the laws mentioned in that paragraph, including the authority to issue regulations.
(c) Investigate alleged violations of the immigration and nationality laws, and make recommendations for prosecutions when deemed advisable.
(d) Patrol the borders of the United States to prevent the entry of aliens into the United States in violation of law.
(e) Supervise naturalization work in the specific courts designated by section 310 of the Immigration and Nationality Act (8 U.S.C. 1421) to have jurisdiction in such matters, including the requiring of accountings from the clerks of such courts for naturalization fees collected, investigation through field officers of the qualifications of citizenship applicants, and representation of the Government at all court hearings.
(f) Cooperate with the public schools in providing citizenship textbooks and other services for the preparation of candidates for naturalization.
(g) Register and fingerprint aliens in the United States, as required by section 262 of the Immigration and Nationality Act (8 U.S.C. 1304).
(h) Prepare reports on private bills pertaining to immigration matters.
(i) Designate within the Immigration and Naturalization Service a certifying officer, and an alternate, to certify copies of documents issued by the Commissioner, or his designee, which are required to be filed with the Office of the Federal Register.
(j) Direct officers and employees of the Immigration and Naturalization Service, assigned to accompany commercial aircraft, to perform the functions of a U.S.C. deputy marshal as a peace officer, in particular those set forth in 28 U.S.C. 570 and 18 U.S.C. 3053: (1) While aboard any aircraft to which they have been assigned, or (2) while within the general vicinity of such aircraft so long as it is within the jurisdiction of the United States. Such functions shall be in addition to those vested in such officers and employees pursuant to law.
(k) Insure that a copy of any asylum application filed with INS shall be sent simultaneously to the Asylum Policy and Review Unit and to the Bureau of Human Rights and Humanitarian Affairs at the Department of State.
§ 0.106 Certificates for expenses of unforeseen emergencies.
The Commissioner of Immigration and Naturalization is authorized to exercise the power and authority vested in the Attorney General by section 6 of the act of July 28, 1950, 64 Stat. 380 (8 U.S.C. 1555), to make certificates with respect to expenses of unforeseen emergencies of a confidential character: Provided, That each such certificate made by the Commissioner of Immigration and Naturalization shall be approved by the Attorney General.
§ 0.107 Representation on committee for visit-exchange.
The Commissioner of Immigration and Naturalization shall be a member of the committee which represents the Department of Justice in the development and implementation of plans for exchanging visits between the Iron Curtain countries and the United States and shall have authority to designate an alternate to serve on such committee.
The Commissioner of the Immigration and Naturalization Services may redelegate to any employee of the Service or the Department of Justice any of the powers, privileges, or duties conferred or imposed on the Commissioner by § 0.105. The Commissioner is authorized to confer or impose upon any employee of the United States, with the consent of the head of the Department or other independent establishment under whose jurisdiction the employee is serving, any of the powers, privileges, or duties conferred or imposed on the Commissioner by § 0.105. Existing redelegations by the Commissioner shall continue in force and effect until modified or revoked.
§ 0.109 Implementation of the Treaty of Friendship and General Relations Between the United States and Spain.
The Commissioner of Immigration and Naturalization and immigration officers (as defined in 8 CFR 103.1(i)) are hereby designated as “competent national authorities” on the part of the United States within the meaning of Article XXIV of the Treaty of Friendship and General Relations Between the United States and Spain (33 Stat. 2105, 2117), and shall fulfill the obligations assumed by the United States pursuant to that Article in the manner and form prescribed.
§ 0.110 Implementation of the Convention Between the United States and Greece.
The Commissioner of Immigration and Naturalization and immigration officers (as defined in 8 CFR 103.1(i)) are hereby designated as “local authorities” and “competent officers” on the part of the United States within the meaning of Article XIII of the Convention Between the United States and Greece (33 Stat. 2122, 2131), and shall fulfill the obligations assumed by the United States pursuant to that Article in the manner and form prescribed.
Subpart T—United States Marshals Service
§ 0.111 General functions.
The Director of the United States Marshals Service shall direct and supervise all activities of the U.S. Marshals Service including:
(a) Execution of Federal arrest warrants pursuant to rule 4 of the Federal Rules of Criminal Procedure, Federal parole violator warrants pursuant to section 4206 of title 18 U.S. Code, and Federal custodial and extradition warrants as directed.
(b) The service of all civil and criminal process emanating from the Federal judicial system including the execution of lawful writs and court orders pursuant to section 569(b), title 28, U.S. Code.
(c) Provisions for the health, safety, and welfare of Government witnesses and their families, including the psychological well-being and social adjustment of such persons, pursuant to 18 U.S.C. 3521, et seq., and issuance of necessary regulations for this purpose on behalf of the Attorney General.
(d) Administration and implementation of courtroom security requirements for the Federal judiciary.
(e) Protection of Federal jurists, court officers, and other threatened persons in the interests of justice where criminal intimidation impedes the functioning of the Federal judicial process.
(f) Provision of assistance in the protection of Federal property and buildings.
(g) Direction and supervision of a training school for United States Marshals Service personnel.
(h) Disbursement of appropriated funds to satisfy Government obligations incurred in the administration of justice pursuant to 28 U.S.C. 571.
(i) Maintenance of custody, management control, and disposal of property and money seized or forfeited pursuant to any law enforced or administered by the Department of Justice, when the property is seized by the U.S. Marshals Service or delivered to the U.S. Marshals Service in accordance with regulations; and administer the Department of Justice Asset Forfeiture Fund.
(j) Receipt, processing and transportation of prisoners held in the custody of a marshal or transported by the U.S. Marshals Service under cooperative or intergovernmental agreements.
(k) Sustention of custody of Federal prisoners from the time of their arrest by a marshal or their remand to a marshal by the court, until the prisoner is committed by order of the court to the custody of the Attorney General for the service of sentence, otherwise released from custody by the court, or returned to the custody of the U.S. Parole Commission or the Bureau of Prisons.
(l) Coordination and direction of the relationship of the offices of U.S. Marshals with the other organizational units of the Department of Justice.
(m) Approval of staffing requirements of the offices of U.S. Marshals.
(n) Investigation of alleged improper conduct on the part of U.S. Marshals Service personnel.
(o) Acquisition of adequate and suitable detention space, health care and other services and materials required to support prisoners under the custody of the U.S. Marshal who are not housed in Federal facilities.
(p) Approval of “other necessary expenditures in the line of duty” of U.S. Marshals and Deputy U.S. Marshals under 28 U.S.C. 567(3).
(q) Exercising the power and authority vested in the Attorney General under 28 U.S.C. 510 to conduct and investigate fugitive matters, domestic and foreign, involving escaped federal prisoners, probation, parole, mandatory release, and bond default violators.
§ 0.111a Temporary prisoner-witness transfers.
The Director of the United States Marshals Service and officers of the United States Marshals Service designated by him are authorized to exercise the power and authority vested in the Attorney General under 18 U.S.C. 3508 to receive custody from foreign authorities of prisoner-witnesses whose temporary transfer to the United States has been requested; to transport such persons in custody from the cooperating foreign country to the place in the United States at which the criminal proceedings in which they are to testify are pending; to maintain such persons in custody while they are in the United States, subject to any agreement entered into by the Assistant Attorney General for the Criminal Division or his or her delegee with the transferring country regarding the terms or conditions of the transfer; and to return such persons, in custody, to the foreign country when and in the manner designated by the Assistant Attorney General for the Criminal Division or his or her delegee. The Director of the United States Marshals Service and officers of the United States Marshals Service designated by him shall also be authorized to transport, surrender, receive and maintain custody of prisoner-witnesses temporarily transferred from or to the United States pursuant to a treaty, executive agreement, or other legal authority, and accept reimbursement from foreign authorities when appropriate.
§ 0.111B Witness Security Program.
(a) In connection with the protection of a witness, a potential witness, or an immediate family member or close associate of a witness or potential witness, the Director of the United States Marshals Service and officers of the United States Marshals Service designated by the Director may:
(1) Provide suitable documents to enable the person to establish a new identity or otherwise protect the person;
(2) Provide housing for the person;
(3) Provide for the transportation of household furniture and other personal property to a new residence of the person;
(4) Provide to the person a payment to meet basic living expenses in a sum established in accordance with regulations issued by the Director, for such time as the Attorney General determines to be warranted;
(5) Assist the person in obtaining employment;
(6) Provide other services necessary to assist the person in becoming self-sustaining;
(7) Protect the confidentiality of the identify and location of persons subject to registration requirements as convicted offenders under Federal or State law, including prescribing alternative procedures to those otherwise provided by Federal or State law for registration and tracking of such persons; and
(8) Exempt procurement for services, materials, and supplies, and the renovation and construction of safe sites within existing buildings from other provision of law as may be required to maintain the security of protective witnesses and the integrity of the Witness Security Program.
(b) The identity or location or any other information concerning a person receiving protection under 18 U.S.C. 3521 et seq., or any other matter concerning the person or the Program, shall not be disclosed except at the direction of the Attorney General, the Assistant Attorney General in charge of the Criminal Division, or the Director of the Witness Security Program. However, upon request of State or local law enforcement officials, the Director shall, without undue delay, disclose to such officials the identity, location, criminal records, and fingerprints relating to the person relocated or protected when the Director knows or the request indicates that the person is under investigation for or has been arrested for or charged with an offense that is punishable by more than one year in prison or that is a crime of violence.
§ 0.112 Special deputation.
The Director, United States Marshals Service, is authorized to deputize the following persons to perform the functions of a Deputy U.S. Marshal in any district designated by the Director:
(a) Selected officers or employees of the Department of Justice;
(b) Selected federal, state, or local law enforcement officers whenever the law enforcement needs of the U.S. Marshals Service so require;
(c) Selected employees of private security companies in providing courtroom security for the Federal judiciary;
(d) Other persons designated by the Associate Attorney General pursuant to 28 CFR 0.19(a)(3).
The Director, U.S. Marshals Service, is authorized to redelegate to any of his subordinates any of the powers and functions vested in him by this subpart, except that the authority to approve “other necessary expenditures in the line of duty” of U.S. Marshals and Deputy U.S. Marshals may not be delegated below the Assistant Director level.
§ 0.114 Fees for services.
(a) The United States Marshals Service shall routinely collect fees according to the following schedule:
(1) For process forwarded for service from one U.S. Marshals Service Office or suboffice to another—$8 per item forwarded;
(2) For process served by mail—$8 per item mailed;
(3) For process served or executed personally—$65 per hour (or portion thereof) for each item served by one U.S. Marshals Service employee, agent, or contractor, plus travel costs and any other out-of-pocket expenses. For each additional U.S. Marshals Service employee, agent, or contractor who is needed to serve process—$65 per person per hour for each item served, plus travel costs and any other out-of-pocket expenses.
(4) For copies at the request of any party—$.10 per page;
(5) For preparing notice of sale, bill of sale, or U.S. Marshal deed—$20 per item;
(6) For keeping and advertisement of property attached—actual expenses incurred in seizing, maintaining, and disposing of property.
(b) Out-of-pocket expenses include, but are not limited to, advertising, inventorying, storage, moving, insurance, guard hire, prisoner transportation and housing, and any other third-party expenditure incurred in executing process.
(c) Travel costs, including mileage, shall be calculated according to 5 U.S.C. chapter 57.
(d) “Item” is defined as all documents issued in one action which are served simultaneously on one person or organization.
(e) “Process” is defined to include, but is not limited to, a summons and complaint, subpoena, writ, orders, and the execution of court-ordered injunctions, and civil commitments on behalf of a requesting party. Process may also include the execution of ancillary court orders (other than subpoenas issued on behalf of indigent defendants and arrest warrants) in criminal cases.
(f) The United States Marshals Service shall collect the fees enumerated in paragraph (a) of this section, where applicable, even when process in returned to the court or the party unexecuted, as long as service is endeavored.
(g) Pursuant to 28 U.S.C. 565, the Director of the United States Marshals Service is authorized to use funds appropriated for the Service to make payments for expenses incurred pursuant to personal services contracts and cooperative agreements for the service of summonses on complaints, subpoenas, and notices, and for security guards.
(h) The United States Marshals Service shall collect a commission of 3 percent of the first $1,000 collected and 1.5 percent on the excess of any sum over $1,000, for seizing or levying on property (including seizures in admiralty), disposing of such property by sale, setoff, or otherwise, and receiving and paying over money, except that the amount of commission shall not be less than $100.00 and shall not exceed $50,000. The U.S. Marshal’s commission shall apply to all judicially ordered sales and/or execution sales, including but not limited to all private mortgage foreclosure sales. if the property is not disposed of by Marshal’s sale, the commission shall be set by the court within the range established above.
Subpart U—Executive Office for Immigration Review
§ 0.115 General functions.
(a) The Executive Office for Immigration Review shall be headed by a Director who is appointed by the Attorney General. The Director shall be assisted by a Deputy Director and the heads of EOIR’s other components, who shall report to the Director and Deputy Director. EOIR shall include the Board of Immigration Appeals, the Office of the Chief Immigration Judge, the Office of the Chief Administrative Hearing Officer, the Office of Policy, the Office of the General Counsel, and such other components and staff as the Attorney General or the Director may provide.
(b) The Director may redelegate the authority delegated to him by the Attorney General, subject to the provisions of 8 CFR 1003.0, to the Deputy Director, the Chairman of the Board of Immigration Appeals, the Chief Immigration Judge, the Chief Administrative Hearing Officer, the Assistant Director for Policy, the General Counsel, or any other EOIR employee.
§ 0.116 Board of Immigration Appeals.
The membership of the Board of Immigration Appeals shall be established in accordance with 8 CFR 1003.1. The Chairman of the Board of Immigration Appeals, who shall also be known as the Chief Appellate Immigration Judge, shall be responsible for providing supervision and establishing internal operating procedures of the Board in the exercise of its authorities and responsibilities as delineated in 8 CFR 1003.1 through 1003.8.
§ 0.117 Office of the Chief Immigration Judge.
The Chief Immigration Judge shall provide general supervision to the immigration judges in performance of their duties in accordance with the Immigration and Nationality Act and 8 CFR 1003.9.
§ 0.118 Office of the Chief Administrative Hearing Officer.
The Chief Administrative Hearing Officer shall provide general supervision to the Administrative Law Judges in performance of their duties in accordance with 8 U.S.C. 1324a, 1324b, and 1324c, and carry out any other responsibilities as provided by law, including the authority to review decisions as provided in 28 CFR part 68.
Subpart U-1—Office of Community Oriented Policing Services
§ 0.119 Organization.
The Office of Community Oriented Policing Services shall be headed by a Director appointed by the Attorney General. The Director shall report to the Attorney General through the Associate Attorney General.
§ 0.120 General functions.
The Director, Office of Community Oriented Policing Services shall:
(a) Exercise the powers and perform the functions vested in the Attorney General by title I and subtitle H of title III of the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. 103-322); and
(b) Perform such other duties and functions relating to policing and law enforcement as may be specially assigned by the Attorney General or the Associate Attorney General.
§ 0.121 Applicability of existing departmental regulations.
Unless superseded by regulations promulgated by the Office of Community Oriented Policing Services, Departmental regulations set forth in part 18 of this title, applicable to grant programs administered through the Office of Justice Programs, shall apply with equal force and effect to grant programs administered by the Office of Community Oriented Policing Services, with references to the Office of Justice Programs and its components in such regulations deemed to refer to the Office of Community Oriented Policing Services, as appropriate.
Subpart U-2—Office on Violence Against Women
§ 0.122 Office on Violence Against Women.
(a) The Director, Office on Violence Against Women, under the general authority of the Attorney General, shall:
(1) Exercise the powers and perform the duties and functions described in section 402(3) of title IV of the 21st Century Department of Justice Appropriations Authorization Act (Pub. L. 107-273); and
(2) Perform such other duties and functions relating to such duties as may be authorized by law or assigned or delegated by the Attorney General, consistent with constitutional limits on the Federal Government’s authority to act in this area.
(b) Departmental regulations set forth in 28 CFR part 61, Appendix D, applicable to the Office of Justice Programs, shall apply with equal force and effect to the Office on Violence Against Women, with references to the Office of Justice Assistance, Research and Statistics, and its components, in such regulations deemed to refer to the Office on Violence Against Women, as appropriate.
(c) Departmental regulations set forth in part 18 of this title, shall apply with equal force and effect to grant programs administered by the Office on Violence Against Women, with references to the Office of Justice Programs and its components in such regulations deemed to refer to the Office on Violence Against Women, as appropriate.
Subpart U-3—Office of the Federal Detention Trustee
§ 0.123 Federal Detention Trustee.
(a) The Office of the Federal Detention Trustee shall be headed by a Detention Trustee appointed by the Attorney General. The Detention Trustee shall exercise all powers and functions authorized by law related to the detention of Federal prisoners in non-Federal institutions or otherwise in the custody of the United States Marshals Service in accordance with 28 U.S.C. 530C(b)(7).
(b) The Detention Trustee shall:
(1) Manage funds appropriated to the Department in the exercise of such detention functions.
(2) Oversee the construction of detention facilities or housing related to such detention.
(3) Set policy regarding such detention, and perform such functions as may be necessary for the effective policy-level coordination of detention operations.
(4) Oversee contracts for detention services, including, when the Detention Trustee deems appropriate, negotiating purchases and entering into contracts and intergovernmental agreements for detention services, and making required determinations and findings for the acquisition of services.
(5) Manage the Justice Prisoner and Alien Transportation System.
(c) This regulation sets forth the general functions of the Detention Trustee solely for the purpose of internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, that are enforceable at law by any party in any matter, civil or criminal.
Subpart V—United States Parole Commission
For regulations pertaining to the United States Parole Commission, see parts 2 and 4 of this chapter.
§ 0.124 United States Parole Commission.
The U.S. Parole Commission is composed of nine Commissioners of whom one is designated Chairman. The Commission:
(a) Has authority, under 18 U.S.C. 4201 et seq., to grant, modify, or revoke paroles of eligible U.S. prisoners serving sentences of more than 1 year, and is responsible for the supervision of parolees and prisoners mandatorily released prior to the expiration of their sentences, and for the determination of supervisory conditions and terms;
(b) Has responsibility in cases in which the committing court specifies that the Parole Commission shall determine the date of parole eligibility of the prisoner;
(c) Has responsibility for determining, in accordance with the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 504), whether the service as officials in the field of organized labor or in labor oriented management positions of persons convicted of certain crimes is contrary to the purposes of that act; and
(d) Has responsibility under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1111), for determining whether persons convicted of certain crimes may provide services to, or be employed by, employment benefit plans.
§ 0.125 Chairman of U.S. Parole Commission.
The Chairman of the United States Parole Commission shall make any temporary assignment of a Commissioner to act as Vice Chairman, National Appeals Board member, or Regional Commissioner in the case of an absence or vacancy in the position, without the concurrence of the Attorney General.
§ 0.126 Administrative support.
The Department of Justice shall furnish administrative support to the Commission.
§ 0.127 Indigent prisoners.
The U.S. Parole Commission is authorized to exercise the authority vested in the Attorney General by section 3569 of title 18, U.S. Code, to make a finding that a parolee is unable to pay a fine in whole or in part and to direct release of such parolee based on such finding.
Subpart V-1—Foreign Claims Settlement Commission
§ 0.128 Organization.
The Foreign Claims Settlement Commission of the United States is a separate agency within the Department of Justice. It is composed of a full-time Chairman, and two part-time Commissioners. All functions, powers, and duties of the Commission not directly related to adjudicating claims are vested in the Chairman of the Commission, including the functions set forth in section 3 of Reorganization Plan No. 1 of 1954 and the authority to issue rules and regulations. The Attorney General provides necessary administrative support and services to the Commission.
§ 0.128a General functions.
The Foreign Claims Settlement Commission has been authorized to determine claims of United States nationals for loss of property in specific foreign countries as a result of nationalization or other taking by the government of those countries by the International Claims Settlement Act of 1949, as amended, (22 U.S.C. 1621-1645o); and to determine claims of U.S. nationals and organizations in territories of the United States for damage and loss of property as a result of military operations during World War II and claims of U.S. military personnel and civilian American citizens for having been held in a captured status in specified areas during World War II, the Korean conflict and the Vietnam conflict by the War Claims Act of 1948, as amended (50 U.S.C. app. 2001-2017p).
§ 0.128b Regulations.
All rules of practice and regulations applicable to the management of the affairs of and the adjudication of claims by the Foreign Claims Settlement Commission of the United States are published in 45 CFR chapter V.
Subpart V-2—Professional Responsibility Advisory Office
§ 0.129 Professional Responsibility Advisory Office.
(a) The Professional Responsibility Advisory Office is headed by a Director appointed by the Deputy Attorney General. The Director shall be responsible to, and report directly to, the Deputy Attorney General and shall be a member of the Senior Executive Service.
(b) The Professional Responsibility Advisory Office shall:
(1) Advise Department of Justice attorneys on specific questions involving professional responsibility, including compliance with 28 U.S.C. 530b (“Section 530B”), which requires certain federal attorneys to comply with state rules of ethics.
(2) Assist or support training and informational programs for Department attorneys and client agencies concerning Section 530B and other professional responsibility requirements, including disseminating relevant and timely information.
(3) Assemble, centralize and maintain ethics reference materials, including the codes of ethics of the District of Columbia and every state and territory, and any relevant interpretations thereof.
(4) Coordinate with the relevant litigating components of the Department to defend attorneys in any disciplinary or other proceeding where it is alleged that they failed to meet their ethical obligations, provided that the attorney made a good-faith effort to ascertain the ethics requirements and made a good-faith effort to comply with those requirements.
(5) Serve as a liaison with the state and federal bar associations in matters relating to the implementation and interpretation of Section 530B, and amendments and revisions to the various state ethics codes.
(6) Perform such other duties and assignments as deemed necessary from time to time by the Attorney General or the Deputy Attorney General.
(c) Nothing in this subpart shall be construed as affecting the functions or overriding the authority of the Office of Legal Counsel as established by 28 CFR 0.25.
Subpart W—Bureau of Alcohol, Tobacco, Firearms, and Explosives
§ 0.130 General functions.
Subject to the direction of the Attorney General and the Deputy Attorney General, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives shall:
(a) Investigate, administer, and enforce the laws related to alcohol, tobacco, firearms, explosives, and arson, and perform other duties as assigned by the Attorney General, including exercising the functions and powers of the Attorney General under the following provisions of law:
(1) 18 U.S.C. chapters 40 (related to explosives), 44 (related to firearms), 59 (related to liquor trafficking), and 114 (related to trafficking in contraband cigarettes);
(2) Chapter 53 of the Internal Revenue Code of 1986, 26 U.S.C. chapter 53 (related to certain firearms and destructive devices);
(3) Chapters 61 through 80, inclusive, of the Internal Revenue Code of 1986, 26 U.S.C. chapters 61-80, insofar as they relate to activities administered and enforced with respect to chapter 53 of the Internal Revenue Code of 1986, 26 U.S.C. chapter 53;
(4) 18 U.S.C. 1952 and 3667, insofar as they relate to liquor trafficking;
(5) 49 U.S.C. 80303 and 80304, insofar as they relate to contraband described in section 80302(a)(2) or 80302(a)(5); and
(6) 18 U.S.C. 1956 and 1957, insofar as they involve violations of:
(i) 18 U.S.C. 844(f) or (i) (relating to explosives or arson),
(ii) 18 U.S.C. 922(l) (relating to the illegal importation of firearms),
(iii) 18 U.S.C. 924(n) (relating to illegal firearms trafficking),
(iv) 18 U.S.C. 1952 (relating to traveling in interstate commerce in aid of racketeering enterprises insofar as they concern liquor on which Federal excise tax has not been paid);
(v) 18 U.S.C. 2341-2346 (trafficking in contraband cigarettes);
(vi) Section 38 of the Arms Export Control Act, as added by Public Law 94-329, section 212(a)(1), as amended, 22 U.S.C. 2778 (relating to the importation of items on the U.S. Munitions Import List), except violations relating to exportation, in transit, temporary import, or temporary export transactions;
(vii) 18 U.S.C. 1961 insofar as the offense is an act or threat involving arson that is chargeable under State law and punishable by imprisonment for more than one year; and
(viii) Any offense relating to the primary jurisdiction of Bureau of Alcohol, Tobacco, Firearms, and Explosives that the United States would be obligated by a multilateral treaty either to extradite the alleged offender or to submit the case for prosecution if the offender were found within the territory of the United States;
(b)(1) Investigate, seize, and forfeit property involved in a violation or attempted violation within the investigative jurisdiction set out in paragraph (a), under 18 U.S.C. 981 and 982;
(2) Seize, forfeit, and remit or mitigate the forfeiture of property in accordance with 21 U.S.C. 881 and applicable Department of Justice regulations.
(c) Subject to the limitations of 3 U.S.C. 301, exercise the authorities of the Attorney General under section 38 of the Arms Export Control Act, 22 U.S.C. 2778, relating to the importation of defense articles and defense services, including those authorities set forth in 27 CFR part 47; and
(d) Perform any other function related to the investigation of violent crime or domestic terrorism as may be delegated to the Bureau of Alcohol, Tobacco, Firearms, and Explosives by the Attorney General.
§ 0.131 Specific functions.
The Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives shall:
(a) Operate laboratories in support of Bureau activities; provide, with or without cost, technical and scientific assistance, including expert testimony, to Federal, State, or local agencies; and make available the services of the laboratories to foreign law enforcement agencies and courts under procedures agreed upon by the Secretary of State and the Attorney General;
(b) Operate the National Explosives Licensing Center to review applications for explosives licenses and permits; determine the eligibility of applicants; issue licenses and permits on approved explosives applications; coordinate with field offices the inspection of applicants, licensees, and permittees; and maintain an explosives license and permit database;
(c) Operate the National Firearms Licensing Center to review applications for firearms licenses; determine the eligibility of applicants; issue licenses on approved firearms applications; coordinate with field offices the inspection of applicants and licensees; and maintain a firearms license database;
(d) Maintain and operate the National Firearms Registration and Transfer Record (NFRTR), pursuant to section 5841 of the Internal Revenue Code of 1986, 26 U.S.C. 5841, as a registry of all National Firearms Act (NFA) firearms in the United States that are not in the possession or under the control of the United States;
(e) Maintain and operate the Arson and Explosives National Repository, a national repository of information on incidents involving arson and the suspected criminal misuse of explosives, under 18 U.S.C. 846(b);
(f) Maintain and operate the National Tracing Center to process requests from Federal, State, local, and foreign law enforcement agencies for the tracing of crime guns; and collect and analyze trace data, out-of-business records, reports of firearms stolen or lost from the inventories of licensees or interstate shipments, and multiple sales reports contained in the Firearms Tracing System (FTS), under 18 U.S.C. chapter 44;
(g) Establish, maintain and operate an Explosives Training and Research Facility to train Federal, State, and local law enforcement officers to investigate bombings and explosions, properly handle, utilize, and dispose of explosives materials and devices, train canines as explosives detection canines, and conduct research on explosives, as authorized by section 1114 of the Homeland Security Act of 2002;
(h) Pay awards for information or assistance and pay for the purchase of evidence or information as authorized by 28 U.S.C. 524;
(i) Subject to applicable statutory restrictions on the disclosure of records of information:
(1) Release information obtained by the Bureau and Bureau investigative reports to Federal, State, and local officials engaged in the enforcement of laws related to alcohol, tobacco, arson, firearms, and explosives offenses;
(2) Release information obtained by Bureau and Bureau investigative reports to Federal, State, and local prosecutors, and State licensing boards, engaged in the institution and prosecution of cases before courts and licensing boards related to alcohol, tobacco, arson, firearms and explosives offenses;
(3) Authorize the testimony of Bureau officials in response to subpoenas or demands issued by the prosecution in Federal, State, or local criminal cases involving offenses under the jurisdiction of the Bureau; and
(4) Except as provided in paragraph (i)(1) of this section, authorize all other production of information or testimony of Bureau officials in response to subpoenas or demands of courts or other authorities as governed by subpart B of part 16 of this chapter.
§ 0.132 Delegation respecting claims against the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
(a) The Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives is authorized to exercise the power and authority vested in the Attorney General under 31 U.S.C. 3724, with regard to claims arising out of the lawful activities of Bureau of Alcohol, Tobacco, Firearms, and Explosives personnel, in an amount not to exceed $50,000 in any one case.
(b) The Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives is authorized to redelegate the power and authority vested in him by paragraph (a) of this section and by 28 CFR 0.172 to the Chief Counsel of the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the Chief Counsel’s designee within the Office of Chief Counsel. This authority shall not be further redelegated below the Associate Chief Counsel level.
§ 0.133 Transition and continuity of regulations.
(a) Except as otherwise provided in this section, and to the extent applicable to the functions transferred to the Department of Justice by the Homeland Security Act of 2002:
(1) The regulations contained in 27 CFR part 46, subpart F (Distribution of Cigarettes), part 47 (Importation of Arms, Ammunition and Implements of War), part 55 (Commerce in Explosives), part 178 (Commerce in Firearms and Ammunition), and part 179 (Machine Guns, Destructive Devices, and Certain Other Firearms) as in effect on January 23, 2003 (see 27 CFR chapter I, revised as of July 1, 2002), shall continue in effect with respect to the operations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives according to their terms until amended, modified, superseded, terminated, set aside, or revoked in accordance with law.
(2) The regulations promulgated by the Department of the Treasury relating to the Bureau of Alcohol, Tobacco and Firearms, or by the Bureau of Alcohol, Tobacco and Firearms of the Department of the Treasury, in effect as of January 23, 2003, shall continue to apply to the operations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives until amended, modified, superseded, terminated, set aside, or revoked in accordance with law, unless the application of such regulations would be inconsistent with statutes or regulations applicable to the Department of Justice.
(3) All orders, delegations, determinations, rules, personnel actions, permits, agreements, grants, contracts, certificates, licenses, registrations, and privileges of the Bureau of Alcohol, Tobacco and Firearms completed or in effect as of January 23, 2003, and all matters and proceedings pending therein on January 23, 2003, shall continue in effect according to their terms, to the extent that they relate to the authorities or functions transferred to the Department of Justice pursuant to the Homeland Security Act of 2002, until amended, modified, superseded, terminated, set aside, or revoked in accordance with law, unless such application would be inconsistent with statutes or regulations applicable to the Department of Justice.
(4) References in such regulations, orders, delegations, determinations, rules, personnel actions, permits, agreements, grants, contracts, certificates, licenses, registrations, and privileges to the Secretary of Treasury, the Department of Treasury, the Director of the Bureau of Alcohol, Tobacco and Firearms, or the Bureau of Alcohol, Tobacco and Firearms or its officers, employees, agents or organizational units or functions shall be deemed to refer, as appropriate, on and after January 24, 2003, to the Attorney General, the Department of Justice, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Bureau of Alcohol, Tobacco, Firearms, and Explosives or to its officers, employees, or agents or its corresponding organizational units or functions, respectively.
(b) Exceptions. Notwithstanding the provisions of paragraph (a) of this section, 27 CFR part 72, and 27 CFR 46.155, 178.152 and 179.182 as in effect on January 23, 2003, shall not be deemed applicable to the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Subpart W-1—Office of Tribal Justice
§ 0.134 Office of Tribal Justice.
(a) Organization. The Office of Tribal Justice is headed by a Director appointed by the Attorney General. The Director shall be responsible to, and report directly to, the Deputy Attorney General and the Associate Attorney General and shall be a member of the Senior Executive Service.
(b) Mission. The mission of the Office of Tribal Justice shall be to provide a principal point of contact within the Department of Justice to listen to the concerns of Indian Tribes and other parties interested in Indian affairs and to communicate the Department’s policies to the Tribes and the public; to promote internal uniformity of Department of Justice policies and litigation positions relating to Indian country; and to coordinate with other Federal agencies and with State and local governments on their initiatives in Indian country.
(c) Function. Subject to the general supervision and direction of the Deputy Attorney General and the Associate Attorney General, the Office of Tribal Justice shall:
(1) Serve as the program and legal policy advisor to the Attorney General with respect to the treaty and trust relationship between the United States and Indian Tribes;
(2) Serve as the Department’s initial and ongoing point of contact, and as the Department’s principal liaison, for Federally recognized Tribal governments and Tribal organizations;
(3) Coordinate the Department’s activities, policies, and positions relating to Indian Tribes, including the treaty and trust relationship between the United States and Indian Tribes;
(4) Ensure that the Department and its components work with Indian Tribes on a government-to-government basis;
(5) Collaborate with Federal and other government agencies to promote consistent, informed government-wide policies, operations, and initiatives related to Indian Tribes;
(6) Serve as a clearinghouse for coordination among the various components of the Department on Federal Indian law issues, and with other Federal agencies on the development of policy or Federal litigation positions involving Indians and Indian Tribes;
(7) Coordinate with each component of the Department to ensure that each component of the Department has an accountable process to ensure meaningful and timely consultation with Tribal leaders in the development of regulatory policies and other actions that affect the trust responsibility of the United States to Indian Tribes, any Tribal treaty provision, the status of Indian Tribes as sovereign governments, or any other Tribal interest.
(8) Ensure that the consultation process of each component of the Department is consistent with Executive Order 13175 and with the Department’s consultation policy;
(9) Serve, through its Director, as the official responsible for implementing the Department’s Tribal consultation policy and for certifying compliance with Executive Order 13175 to the Office of Management and Budget; and
(10) Perform such other duties and assignments as deemed necessary from time to time by the Attorney General, the Deputy Attorney General, or the Associate Attorney General.
Subpart W-2—Additional Assignments of Functions and Designation of Officials To Perform the Duties of Certain Offices in Case of Vacancy, or Absence Therein or in Case of Inability or Disqualification to Act
§ 0.135 Functions common to heads of organizational units.
Subject to the general supervision and direction of the Attorney General, the head of each organizational unit within the Department shall:
(a) Direct and supervise the personnel, administration, and operation of the office, division, bureau, or board of which he is in charge.
(b) Under regulations prescribed by the Attorney General with the approval of the Director of the Office of Management and Budget, have authority to reallot funds allotted by the Assistant Attorney General for Administration and to redelegate to persons within his organizational unit authority and responsibility for the reallotment of such funds and control of obligations and expenditures within reallotments.
(c) Perform such special assignments as may from time to time be made to him by the Attorney General.
(d) Except as otherwise provided in this chapter, receive submittals and requests relative to the functions of his organizational unit.
§ 0.136 [Reserved]
§ 0.137 Designating officials to perform the functions and duties of certain offices in case of absence, disability or vacancy.
(a) In case of vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General shall, pursuant to 28 U.S.C. 508(a) perform the functions and duties of and act as Attorney General. When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall, pursuant to 28 U.S.C. 508(b), perform the functions and duties of and act as Attorney General. In the event of vacancy, absence, or disability in each of these offices, the Solicitor General shall perform the functions and duties of and act as Attorney General.
(b) Every office within the Department to which appointment is required to be made by the President with the advice and consent of the Senate (“PAS office”) shall have a First Assistant within the meaning of the Federal Vacancies Reform Act of 1998. Where there is a position of Principal Deputy to the PAS office, the Principal Deputy shall be the First Assistant. Where there is no position of Principal Deputy to the PAS office, the First Assistant shall be the person whom the Attorney General designates in writing.
(c) In the event of a vacancy in the office of the head of an organizational unit that is not covered by paragraphs (a) or (b) of this section, the ranking deputy (or an equivalent official) in such unit who is available shall perform the functions and duties of and act as such head, unless the Attorney General directs otherwise. Except as otherwise provided by law, if there is no ranking deputy available, the Attorney General shall designate another official of the Department to perform the functions and duties of and act as such head.
(d) The head of an organizational unit of the Department not covered by paragraphs (a) or (b) of this section is authorized, in the case of absence from office or disability, to designate the ranking deputy (or an equivalent official) in the unit who is available to act as head. If there is no deputy available to act, any other official in such unit may be designated. Alternatively, in his discretion, the Attorney General may designate any official in the Department to act as head when a head who is not covered by paragraphs (a) or (b) of this section is absent or disabled.
Subpart X—Authorizations With Respect to Personnel and Certain Administrative Matters
§ 0.138 Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms, and Explosives, Bureau of Prisons, Federal Prison Industries, Immigration and Naturalization Service, United States Marshals Service, Office of Justice Programs, Executive Office for Immigration Review, Executive Office for United States Attorneys, Executive Office for United States Trustees.
(a) The Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Commissioner of Immigration and Naturalization Service, the Director of the United States Marshals Service, the Assistant Attorney General for the Office of Justice Programs, the Director of the Executive Office for Immigration Review, the Director of the Executive Office for United States Attorneys, and the Director of the Executive Office for United States Trustees are, as to their respective jurisdictions, authorized to exercise the power and authority vested in the Attorney General by law to take final action in matters pertaining to the employment, direction, and general administration (including appointment, assignment, training, promotion, demotion, compensation, leave, awards, classification, and separation) of personnel in General Schedule grades GS-1 through GS-15 and in wage board positions, but excluding therefrom all attorney and U.S. Marshal positions. Such officials are, as to their respective jurisdictions, authorized to exercise the power and authority vested in the Attorney General by law to employ on a temporary basis experts or consultants or organizations thereof, including stenographic reporting services (5 U.S.C. 3109(b)).
(b) All personnel actions taken under this section shall be subject to post-audit and correction by the Assistant Attorney General for Administration.
§ 0.139 [Reserved]
§ 0.140 Authority relating to advertisements, and purchase of certain supplies and services.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Commissioner of Immigration and Naturalization, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director of the Office of Justice Research and Statistics and the Director of the United States Marshals Service as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department (including U.S. Attorneys), are authorized to exercise the power and authority vested in the Attorney General by law to take final action in the following-described matters:
(a) Authorizing the publication of advertisements, notices, or proposals under (44 U.S.C. 3702).
(b) Making determinations as to the acquisition of articles, materials, or supplies in accordance with sections 2 and 3 of the Buy American Act (47 Stat. 1520; 41 U.S.C. 10a, 10b).
(c) Placing orders with other agencies of the Government for materials or services, and accepting orders therefor, in accordance with section 686 of title 31 of the U.S. Code.
§ 0.141 Audit and ledger accounts.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Immigration and Naturalization, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Director of the Office of Justice Assistance, Research and Statistics are, as to their respective jurisdictions, authorized to audit vouchers and to maintain general ledger accounts with respect to appropriations allotted to them.
§ 0.142 Per diem and travel allowances.
The Director of the Federal Bureau of Investigation, Director of the Bureau of Prisons, Commissioner of Federal Prison Industries, Inc., Commissioner of Immigration and Naturalization Service, Administrator of the Drug Enforcement Administration, Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Director of the United States Marshals Service, and Assistant Attorney General, Office of Justice Programs, as to their respective jurisdictions, and the Assistant Attorney General for Administration as to all other organizational units of the Department (including U.S. Attorneys), except as provided in paragraphs (f) and (g) of this section, are authorized to exercise the authority of the Attorney General to take final action in the following matters:
(a) Authorizing travel, subsistence, and mileage allowances under sections 5702-5707 of title 5 of the U.S. Code in accordance with regulations prescribed by the Administrator of General Services and the Assistant Attorney General for Administration.
(b) Fixing rates in accordance with sections 5702-5704 and 5707 of title 5, U.S. Code, and regulations prescribed by the Administrator of General Services and the Assistant Attorney General for Administration.
(c) Authorizing travel advances pursuant to 5 U.S.C. 5705 in accordance with the regulations prescribed by the Administrator of General Services and the Assistant Attorney General for Administration.
(d) Authorizing travel and transportation expenses, and, when applicable, relocation expenses for transferred employees, new appointees and student trainees, in accordance with 5 U.S.C. 5721-5733 and regulations prescribed by the Administrator of General Services and the Assistant Attorney General for Administration.
(e) Authorizing or approving, for purposes of security, the use of compartments or other transportation accommodations superior to lowest first-class accommodations under applicable travel regulations subject to 5 U.S.C. 5731.
(f) The heads of Offices, Boards and Divisions, in addition to the Bureaus, have the authority to approve the use of cash in excess of $100 in lieu of Government Transportation Requests in emergency circumstances, in accordance with regulations prescribed by the Administrator of the General Services Administration.
(g) The Director of the Federal Bureau of Investigation, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Administrator of the Drug Enforcement Administration are authorized to approve travel expenses of newly appointed special agents and the transportation expenses of their families and household goods and personal effects from place of residence at time of selection to the first duty station, in accordance with 28 U.S.C. 530 and regulations prescribed by the Assistant Attorney General for Administration.
§ 0.143 Incentive Award Program.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Assistant Attorney General for the Office of Justice Programs, the Director of the Executive Office for U.S. Attorneys, the Director of the Executive Office for U.S. Trustees, the Director of the Executive Office for Immigration Review, and the Director of the U.S. Marshals Service, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department, are authorized to exercise the power and authority vested in the Attorney General by law with respect to the administration of the Incentive Award Program and to approve honorary awards and cash awards under such program not in excess of $7,500 for personnel in General Schedule grades GS-1 through GS-15, administratively determined pay systems, and wage board positions, but excluding all Schedule C positions.
§ 0.144 Determination of basic workweek.
The Director of the Federal Bureau of Investigation, Director of the Bureau of Prisons, Commissioner of Federal Prison Industries, Inc., Commissioner of the Immigration and Naturalization Service, Administrator of the Drug Enforcement Administration, Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Director of the Office of Justice Assistance, Research and Statistics, Director of the Executive Office for United States Attorneys and Director of the United States Marshals Service, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department, are authorized to exercise the authority vested in the Attorney General by 5 U.S.C. 6101(a), to determine that the organizational unit concerned would be seriously handicapped in carrying out its functions or that costs would be substantially increased except upon modification of the basic workweek, and when such determination is made to fix the basic workweek of officers and employees of the unit concerned.
§ 0.145 Overtime pay.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Commissioner of Immigration and Naturalization, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director of the Office of Justice Assistance, Research and Statistics and the Director of the U.S. Marshals Service as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department (including U.S. Attorneys), may, subject to any regulations which the Attorney General may prescribe, authorize overtime pay (including additional compensation in lieu of overtime of not less than 10 percent nor more than 25 percent pursuant to section 5545(c)(2) of title 5, U.S. Code) for such positions as may be designated by them.
§ 0.146 Seals.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Commissioner of Immigration and Naturalization, the Chairman of the Board of Parole, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director of the Office of Justice Assistance, Research and Statistics, and the Director of the U.S. Marshals Service shall each have custody of the seal pertaining to his respective jurisdiction and he, or such person or persons as he may designate, may execute under seal any certification required to authenticate any books, records, papers, or other documents as true copies of official records of their respective jurisdictions. The Assistant Attorney General for Administration shall have custody of the seal of the Department of Justice, and he, or such person or persons as he may designate, may execute under seal any certification required to authenticate any books, records, papers, or other documents as true copies of official records of the Department of Justice. He may also prescribe regulations governing the use of the seal of the Department and various organizational units.
§ 0.147 Certification of obligations.
The following designated officials are authorized to make the certifications required by 31 U.S.C. 200(c): For the Federal Bureau of Investigation, the Assistant Director, Administrative Services Division; for the Bureau of Prisons, the Assistant Director for Planning and Development; for Federal Prison Industries, Inc., the Secretary; for the Immigration and Naturalization Service, the Comptroller; for the Drug Enforcement Administration, the Director of the Office of Administration and Management; for the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Assistant Director, Management; for the Office of Justice Assistance, Research and Statistics, the Comptroller; and for all other organizational units of the Department (including U.S. Attorneys and U.S. Marshals), the Deputy Assistant Attorney General, Office of the Controller, Justice Management Division.
§ 0.148 Certifying officers.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of the Federal Prison Industries, Inc., the Commissioner of the Immigration and Naturalization Service, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Assistant Attorney General for the Office of Justice Programs, the Director of the United States Marshals Service, and the Director of the Executive Office for United States Attorneys, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department are authorized to designate employees to certify vouchers.
§ 0.149 Cash payments.
(a) The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of the Federal Prison Industries, Inc., the Commissioner of the Immigration and Naturalization Service, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Assistant Attorney General for the Office of Justice Programs, the Director of the United States Marshals Service, and the Director of the Executive Office for United States Attorneys, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department, are authorized to:
(1) Request Department of the Treasury designation of disbursing employees (including cashiers),
(2) Approve waivers of the Department of the Treasury maximum limitation on routine payments of cash from imprest funds, and
(3) Approve requests to place imprest funds in depositary cash demand withdrawal accounts and establish the maximum amount of each account.
(b) Guidelines are to be promulgated by each component for the establishment and maintenance of such accounts in accordance with the provisions set forth in the Treasury Financial Manual, Volume I, Part 4, Chapter 3000. Existing authorizations to request designations of disbursing employees shall remain in effect until terminated by the official who by this section would be authorized to request such designations.
§ 0.150 Collection of erroneous payments.
The Director of the Federal Bureau of Investigation for the FBI and the Assistant Attorney General for Administration for all other organizational units of the Department are authorized, in accordance with the regulations prescribed by the Attorney General under section 5514(b) of title 5, U.S. Code, to collect indebtedness resulting from erroneous payments to employees.
§ 0.151 Administering oath of office.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Commissioner of Immigration and Naturalization, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director of the Office of Justice Assistance, Research and Statistics, the Director of the Executive Office for U.S. Attorneys, and the Director of the U.S. Marshals Service, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department are authorized to designate, in writing, pursuant to the provisions of sections 2903(b) and 2904 of title 5, U.S. Code, officers or employees to administer the oath of office required by section 3331 of title 5, U.S. Code, and to administer any other oath required by law in connection with employment in the executive branch of the Federal Government.
§ 0.152 Approval of funds for attendance at meetings.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Immigration and Naturalization, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Director of the Office of Justice Assistance, Research and Statistics, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department (including U.S. Attorneys and Marshals), are authorized to exercise the power and authority vested in the Attorney General by law to prescribe regulations for the expenditure of appropriated funds available for expenses of attendance at meetings of organizations.
§ 0.153 Selection and assignment of employees for training.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, Inc., the Commissioner of the Immigration and Naturalization Service, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director of the Office of Justice Assistance, Research and Statistics, the Director of the Executive Office for United States Attorneys and the Director of the United States Marshals Service, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department, are hereby authorized to exercise the authority vested in the Attorney General by 5 U.S.C. 4109, with respect to the selection and assignment of employees for training by, in, or through Government facilities and the payment or reimbursement of expenses for such training.
§ 0.154 Advance and evacuation payments and special allowances.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Commissioner of Immigration and Naturalization, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director of the United States Marshals Service, and the Director of the Office of Justice Assistance, Research and Statistics, as to their respective jurisdictions, and the Assistant Attorney General for Administration, as to all other organizational units of the Department (including U.S. Attorneys), are hereby authorized to exercise the authority vested in the Attorney General by sections 5522-5527 of title 5, U.S. Code, and Executive Order 10982 of December 25, 1961, and to administer the regulations adopted by the Attorney General in Order No. 269-62 with respect to advance and evacuation payments and special allowances.
§ 0.155 Waiver of claims for erroneous payments of pay and allowances.
The Director of the Federal Bureau of Investigation, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Commissioner of Immigration and Naturalization, the Administrator of the Drug Enforcement Administration, the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Director of the Office of Justice Assistance, Research and Statistics, as to their respective jurisdictions, and the Assistant Attorney General for Administration as to all other organizational units of the Department (including U.S. Attorneys and Marshals) are authorized to exercise the authority under 5 U.S.C. 5584 for the waiver of claims of the United States for erroneous payments of pay and allowances to employees of the Department of Justice.
§ 0.156 Execution of U.S. Marshals’ deeds or transfers of title.
A chief deputy or deputy U.S. Marshal who sells property—real, personal, or mixed—on behalf of a U.S. Marshal, may execute a deed or transfer of title to the purchaser on behalf of and in the name of the U.S. Marshal.
§ 0.157 Federal Bureau of Investigation—Drug Enforcement Administration Senior Executive Service.
(a) Pursuant to 5 U.S.C. 3151, there is established a personnel system for senior personnel within the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) to be known as the FBI-DEA Senior Executive Service (FBI-DEA SES).
(b) Pursuant to 5 U.S.C. 3151(b)(2)(B), a career employee in the civil service is one who occupies, or who within the last 5 years occupied, a permanent position in the competitive service, a career-type permanent position in the excepted service, or a permanent position in the SES while serving under a career appointment. A career-type permanent position in the excepted service does not include:
(1) A Schedule C position authorized under 5 CFR 213.3301;
(2) A position that meets the same criteria as a Schedule C position; and
(3) A position where the incumbent is traditionally removed upon a change in Presidential Administration.
(c) Except as to the position of Deputy Director of the FBI (which remains subject to the exclusive authority of the Attorney General), the FBI-DEA SES is subject to the overall supervision and direction of the Deputy Attorney General, who shall ensure that the FBI-DEA SES is designed and administered in compliance with all statutory and regulatory requirements.
(d) The Attorney General retains the authority to recommend members of the FBI-DEA SES for Presidential Rank Awards.
§ 0.158 [Reserved]
Except as to the authority delegated by § 0.147, the authority conferred by this subpart X upon heads of organizational units may be redelegated by them, respectively, to any of their subordinates. Existing delegations of authority to officers and employees and to U.S. Attorneys, not inconsistent with this subpart X, made by any officer named in this section or by the Assistant Attorney General for Administration, shall continue in force and effect until modified or revoked.
Subpart Y—Authority To Compromise and Close Civil Claims and Responsibility for Judgments, Fines, Penalties, and Forfeitures
§ 0.160 Offers that may be accepted by Assistant Attorneys General.
(a) Subject to the limitations set forth in paragraph (d) of this section, Assistant Attorneys General are authorized, with respect to matters assigned to their respective divisions, to:
(1) Accept offers in compromise of claims asserted by the United States in all cases in which the difference between the gross amount of the original claim and the proposed settlement does not exceed $10,000,000 or 15 percent of the original claim, whichever is greater;
(2) Accept offers in compromise of claims asserted by the United States in all cases in which a qualified financial expert has determined that the offer in compromise is likely the maximum that the offeror has the ability to pay;
(3) Accept offers in compromise of, or settle administratively, claims against the United States in all cases in which the principal amount of the proposed settlement does not exceed $4,000,000; and
(4) Accept offers in compromise in all nonmonetary cases.
(b) Subject to the limitations set forth in paragraph (d) of this section, the Assistant Attorney General, Tax Division, is further authorized to accept offers in compromise of, or settle administratively, claims against the United States, regardless of the amount of the proposed settlement, in all cases in which the Joint Committee on Taxation has indicated that it has no adverse criticism of the proposed settlement.
(c) Subject to the limitations set forth in paragraph (d) of this section, the Assistant Attorney General, Environment and Natural Resources Division, is further authorized to approve settlements under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., regardless of the amount of the proposed settlement, with:
(1) Parties whose contribution to contamination at a hazardous waste site is de minimis within the meaning of 42 U.S.C. 9622(g); or
(2) Parties whose responsibility can be equitably allocated and are paying at least the allocated amount.
(d) Any proposed settlement, regardless of amount or circumstances, must be referred to the Deputy Attorney General or the Associate Attorney General, as appropriate:
(1) When, for any reason, the compromise of a particular claim would, as a practical matter, control or adversely influence the disposition of other claims and the compromise of all the claims taken together would exceed the authority delegated by paragraph (a) of this section;
(2) When the Assistant Attorney General concerned is of the opinion that because of a question of law or policy presented, or because of opposition to the proposed settlement by a department or agency involved, or for any other reason, the proposed settlement should receive the personal attention of the Deputy Attorney General or the Associate Attorney General, as appropriate;
(3) When the proposed settlement converts into a mandatory duty the otherwise discretionary authority of a department or agency to promulgate, revise, or rescind regulations;
(4) When the proposed settlement commits a department or agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question, or commits a department or agency to seek particular appropriation or budget authorization; or
(5) When the proposed settlement otherwise limits the discretion of a department or agency to make policy or managerial decisions committed to the department or agency by Congress or by the Constitution.
§ 0.161 Acceptance of certain offers by the Deputy Attorney General or Associate Attorney General, as appropriate.
(a) In all cases in which the acceptance of a proposed offer in compromise would exceed the authority delegated by § 0.160, the Assistant Attorney General concerned shall, when he is of the opinion that the proposed offer should be accepted, transmit his recommendation to that effect to the Deputy Attorney General or the Associate Attorney General, as appropriate.
(b) The Deputy Attorney General or the Associate Attorney General, as appropriate, is authorized to exercise the settlement authority of the Attorney General as to all claims asserted by or against the United States.
§ 0.162 Offers which may be rejected by Assistant Attorneys General.
Each Assistant Attorney General is authorized, with respect to matters assigned to his division or office, to reject offers in compromise of any claims in behalf of the United States, or, in compromises or administrative actions to settle, against the United States, except in those cases which come under § 0.160(d)(2).
§ 0.163 Approval by Solicitor General of action on compromise offers in certain cases.
In any Supreme Court case the acceptance, recommendation of acceptance, or rejection, under § 0.160, § 0.161, or § 0.162, of a compromise offer by the Assistant Attorney General concerned, shall have the approval of the Solicitor General. In any case in which the Solicitor General has authorized an appeal to any other court, a compromise offer, or any other action, which would terminate the appeal, shall be accepted or acted upon by the Assistant Attorney General concerned only upon advice from the Solicitor General that the principles of law involved do not require appellate review in that case.
§ 0.164 Civil claims that may be closed by Assistant Attorneys General.
Assistant Attorneys General are authorized, with respect to matters assigned to their respective divisions, to close (other than by compromise or by entry of judgment) claims asserted by the United States in all cases in which they would have authority to accept offers in compromise of such claims under § 0.160(a), except:
(a) When for any reason, the closing of a particular claim would, as a practical matter, control or adversely influence the disposition of other claims and the closing of all the claims taken together would exceed the authority delegated by this section; or
(b) When the Assistant Attorney General concerned is of the opinion that because of a question of law or policy presented, or because of opposition to the proposed closing by the department or agency involved, or for any other reason, the proposed closing should receive the personal attention of the Attorney General, the Deputy Attorney General or the Associate Attorney General, as appropriate.
§ 0.165 Recommendations to the Deputy Attorney General or Associate Attorney General, as appropriate, that certain claims be closed.
In all cases in which the closing of a claim asserted by the United States would exceed the authority delegated by §§ 0.160(a) and 0.164, the Assistant Attorney General concerned shall, when he is of the opinion that the claim should be closed, transmit his recommendation to that effect, together with a report on the matter, to the Deputy Attorney General or the Associate Attorney General, as appropriate, for review and final action. Such report shall be in such form as the Deputy Attorney General or the Associate Attorney General may require.
§ 0.166 Memorandum pertaining to closed claim.
In each case in which a claim is closed under § 0.164 the Assistant Attorney General concerned shall execute and place in the file pertaining to the claim a memorandum which shall contain a description of the claim and a full statement of the reasons for closing it.
§ 0.167 Submission to Associate Attorney General by Director of Office of Alien Property of certain proposed allowances and disallowances.
In addition to the matters which he is required to submit to the Associate Attorney General under preceding sections of this subpart Y, the Director of the Office of Alien Property, shall submit to the Associate Attorney General for such review as he may desire to make the following:
(a) Any proposed allowance by the Director, without hearing, of a title or debt claim.
(b) Any final determination of a title of debt claim, whether by allowance or disallowance.
(c) Any proposed allowance or disallowance by the Director, without hearing, of a title claim under section 9(a) of the Trading with the Enemy Act, as amended, filed less than 2 years after the date of vesting in or transfer to the Alien Property Custodian or the Attorney General of the property or interest in respect of which the claim is made:
(1) Any title claim which involves the return of assets having a value of $50,000 or more, or any debt claim in the amount of $50,000 or more.
(2) Any title claim which will, as a practical matter, control the disposition of related title claims involving, with the principal claim, assets having a value of $50,000 or more; or any debt claim which will, as a practical matter, control the disposition of related debt claims in the aggregate amount, including the principal claim, of $50,000 or more.
(3) Any title claim or debt claim presenting a novel question of law or a question of policy which, in the opinion of the Director, should receive the personal attention of the Associate Attorney General or the Attorney General.
(d) Any sale or other disposition of vested property involving assets of $50,000 or more.
§ 0.168 Redelegation by Assistant Attorneys General.
(a) Assistant Attorneys General are authorized, with respect to matters assigned to their respective divisions, to redelegate to subordinate division officials and United States Attorneys any of the authority delegated by §§ 0.160 (a), (b), and (c), 0.162, 0.164, and 0.172(b), except that any disagreement between a United States Attorney or other Department attorney and a client agency over a proposed settlement that cannot be resolved below the Assistant Attorney General level must be presented to the Assistant Attorney General for resolution.
(b) Redelegations of authority under this section shall be in writing and shall be approved by the Deputy Attorney General or the Associate Attorney General, as appropriate, before taking effect.
(c) Existing delegations and redelegations of authority to subordinate division officials and United States Attorneys to compromise or close civil claims shall continue in effect until modified or revoked by the respective Assistant Attorneys General.
(d) Subject to the limitations set forth in § 0.160(d) and paragraph (a) of this section, redelegations by the Assistant Attorneys General to United States Attorneys may include the authority to:
(1) Accept offers in compromise of claims asserted by the United States in all cases in which the gross amount of the original claim does not exceed $10,000,000; and
(2) Accept offers in compromise of, or settle administratively, claims against the United States in all cases in which the principal amount of the proposed settlement does not exceed $1,000,000.
§ 0.169 Definition of “gross amount of the original claim”.
(a) The phrase gross amount of the original claim as used in this subpart Y and as applied to any civil fraud claim described in § 0.45(d), shall mean the amount of single damages involved.
(b) The phrase gross amount of the original claim as used in this subpart Y and as applied to any civil claim brought under section 592 of the Tariff Act of 1930, as amended (see § 0.45(c)), shall mean the actual amount of lost customs duties involved. In nonrevenue loss cases brought under section 592 of the Tariff Act of 1930, as amended, the phrase gross amount of the original claim shall mean the amount demanded in the United States Customs and Border Protection’s mitigation decision issued pursuant to 19 U.S.C. 1618 or, if no mitigation decision has been issued, the gross amount of the original claim shall mean twenty percent of the dutiable value of the merchandise.
§ 0.170 Interest on monetary limits.
In computing the gross amount of the original claim and the amount of the proposed settlement pursuant to this subpart Y, accrued interest shall be excluded.
§ 0.171 Judgments, fines, penalties, and forfeitures.
(a) Each United States Attorney shall be responsible for conducting, handling, or supervising such litigation or other actions as may be appropriate to accomplish the satisfaction, collection, or recovery of judgments, fines, penalties, and forfeitures (including bail bond forfeitures) imposed in his district, unless the Assistant Attorney General, or his delegate, of the litigating division which has jurisdiction of the case in which such judgment, fine, penalty or forfeiture is imposed notifies the United States Attorney in writing that the division will assume such enforcement responsibilities.
(b) Each U.S. Attorney shall designate an Assistant U.S. Attorney, and such other employees as may be necessary, or shall establish an appropriate unit within his office, to be responsible for activities related to the satisfaction, collection, or recovery, as the case may be, of judgments, fines, penalties, and forfeitures (including bail-bond forfeitures).
(c) The Director of the Executive Office for United States Attorneys shall be responsible for the establishment of policy and procedures and other appropriate action to accomplish the satisfaction, collection, or recovery of fines, special assessments, penalties, interest, bail bond forfeitures, restitution, and court costs arising from the prosecution of criminal cases by the Department of Justice and the United States Attorneys. He shall also prepare regulations required by 18 U.S.C. 3613(c), pertaining to the application of tax lien provisions to criminal fines, for issuance by the Attorney General.
(d) The United States Attorney for the judicial district in which a criminal monetary penalty has been imposed is authorized to receive all notifications of payment, certified copies of judgments or orders, and notifications of change of address pertaining to an unpaid fine, which are otherwise required to be delivered to the Attorney General pursuant to 18 U.S.C. 3612. If an Assistant Attorney General of a litigating division has notified the United States Attorney, pursuant to paragraph (a) of this section that such division will assume responsibility for enforcement of a criminal monetary penalty, the United States Attorney shall promptly transmit such notifications and certified copies of judgments or orders to such division.
(e) With respect to cases assigned to his office, each United States Attorney—
(1) Shall be responsible for collection of any unpaid fine with respect to which a certification has been issued as provided in 18 U.S.C. 3612(b);
(2) Shall provide notification of delinquency or default of any fine as provided in 18 U.S.C. 3612 (d) and (e);
(3) May waive all or any part of any interest or penalty relating to a fine imposed under any prior law if, as determined by such United States Attorney, reasonable efforts to collect the interest or penalty are not likely to be effective; and
(4) Is authorized to accept delivery of the amount or property due as restitution for transfer to the victim or person eligible under 18 U.S.C. 3663 (or under 18 U.S.C. 3579 (f)(4) with respect to offenses committed prior to November 1, 1987).
(f) With respect to offenses committed after December 31, 1984, and prior to November 1, 1987, each United States Attorney is authorized with respect to cases assigned to his office—
(1) At his discretion, to declare the entire unpaid balance of a fine or penalty payable immediately in accordance with 18 U.S.C. 3565(b)(3);
(2) If a fine or penalty exceeds $500, to receive a certified copy of the judgment, otherwise required to be delivered by the clerk of the court to the Attorney General;
(3) When a fine or penalty is satisfied as provided by law,
(i) To file with the court a notice of satisfaction of judgment if the defendant makes a written request to the United States Attorney for such filing; or,
(ii) If the amount of the fine or penalty exceeds $500 to enter into a written agreement with the defendant to extend the twenty-year period of obligation to pay fine.
(g) With respect to offenses committed prior to November 1, 1987, each United States Attorney is hereby authorized, with respect to the discharge of indigent prisoners under 18 U.S.C. 3569, to make a finding as to whether the retention by a convict of property, in excess of that which is by law exempt from being taken on civil process for debt, is reasonably necessary for the convict’s support or that of his family.
(h) The Director of the Bureau of Prisons shall take such steps as may be necessary to assure that the appropriate U.S. Attorney is notified whenever a prisoner is released prior to the payment of his fine.
(i) The Pardon Attorney shall notify the appropriate U.S. Attorney whenever the President issues a pardon and whenever the President remits or commutes a fine.
§ 0.172 Authority: Federal tort claims.
(a) Delegation of authority. Subject to the limitations set forth in paragraph (b) of this section, the Director of the Bureau of Prisons, the Commissioner of Federal Prison Industries, the Director of the United States Marshals Service, the Administrator of the Drug Enforcement Administration, the Director of the Federal Bureau of Investigation, and the Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives shall have authority under section 2672 of title 28, United States Code, relating to the administrative settlement of Federal tort claims, to consider, ascertain, adjust, determine, compromise, and settle any claim involving their respective components, provided that any award, compromise, or settlement shall not exceed $50,000.
(b) Limitations on authority. Any proposed award, compromise, or settlement under section 2672 of title 28, United States Code, must be referred to the Assistant Attorney General in charge of the Civil Division, or his delegee, when—
(1) Because a significant question of law or policy is presented, or for any other reason, the head of the referring component is of the opinion that the proposed award, compromise, or settlement should receive the personal attention of the Assistant Attorney General or his delegee;
(2) Two or more claims arise from the same subject matter and the total amount of any award, compromise, or settlement of all claims will or may exceed $50,000; or
(3) The award, compromise, or settlement of a particular claim, as a practical matter, will or may control or adversely influence the disposition of other claims and the total settlement value of all claims will or may exceed $50,000.
(c) Subject to the provisions of § 0.160, the Assistant Attorney General in charge of the Civil Division shall have authority to consider, ascertain, adjust, determine, compromise, and settle any other claim involving the Department under section 2672, of title 28, U.S. Code, relating to the administrative settlement of Federal tort claims.
Appendix to Subpart Y of Part 0—Redelegations of Authority To Compromise and Close Civil Claims
By virtue of the authority vested in me by part 0 of title 28 of the Code of Federal Regulations, particularly §§ 0.45, 0.160, 0.164, and 0.168, it is hereby ordered as follows:
(a) Delegation to Deputy Assistant Attorneys General. The Deputy Assistant Attorneys General are hereby delegated all the power and authority of the Assistant Attorney General in charge of the Civil Division, including with respect to the institution of suits, the acceptance or rejection of compromise offers, the administrative settlement of claims, and the closing of claims or cases, unless any such authority or power is required by law to be exercised by the Assistant Attorney General personally or has been specifically delegated to another Department official.
(b) Delegation to United States Attorneys; Branch, Office and Staff Directors; and Attorneys-in-Charge of Field Offices. Subject to the limitations imposed by 28 CFR 0.160(d) and 0.164, and sections 1(e) and 4(b) of this directive, and the authority of the Solicitor General set forth in 28 CFR 0.163, United States Attorneys; Branch, Office, and Staff Directors; and Attorneys-in-Charge of Field Offices, with respect to matters assigned or delegated to their respective components, are hereby delegated the authority to:
(1) Accept offers in compromise of claims asserted by the United States in all cases in which the gross amount of the original claim does not exceed $10,000,000;
(2) Accept offers in compromise of, or settle administratively, claims against the United States in all cases in which the principal amount of the proposed settlement does not exceed $1,000,000;
(3) Reject any offers in compromise; and
(4) Close any affirmative claim or case where the gross amount of the original claim does not exceed $10,000,000.
(c) Subject to the limitations imposed by sections 1(e), 4(b), and 5 of this directive, United States Attorneys, Directors, and Attorneys-in-Charge are hereby delegated the authority to:
(1) File suits, counterclaims, and cross-claims, or take any other action necessary to protect the interests of the United States in all routine nonmonetary cases, in all routine loan collection and foreclosure cases, and in other monetary claims or cases where the gross amount of the original claim does not exceed $10,000,000. Such actions in nonmonetary cases which are other than routine will be submitted for the approval of the Assistant Attorney General, Civil Division; and,
(2) Issue subpoenas, civil investigative demands, and any other compulsory process.
(d) United States Attorneys may redelegate in writing the above-conferred compromise and suit authority to Assistant United States Attorneys who supervise other Assistant United States Attorneys who handle civil litigation.
(e) Limitations on delegations.
(1) The authority to compromise cases, settle claims administratively, file suits, counterclaims, and cross-claims, to close claims or cases, or take any other action necessary to protect the interests of the United States, delegated by paragraphs (a), (b), and (c) of this section, may not be exercised, and the matter shall be submitted for resolution to the Assistant Attorney General, Civil Division, when:
(i) For any reason, the proposed action, as a practical matter, will control or adversely influence the disposition of other claims totaling more than the respective amounts designated in the above paragraphs.
(ii) Because a novel question of law or a question of policy is presented, or for any other reason, the proposed action should, in the opinion of the officer or employee concerned, receive the personal attention of the Assistant Attorney General, Civil Division.
(iii) The agency or agencies involved are opposed to the proposed action. The views of an agency must be solicited with respect to any significant proposed action if it is a party, if it has asked to be consulted with respect to any such proposed action, or if such proposed action in a case would adversely affect any of its policies.
(iv) The United States Attorney involved is opposed to the proposed action and requests that the matter be submitted to the Assistant Attorney General for decision.
(v) The case is on appeal, except as determined by the Director of the Appellate Staff.
(2) In fraud or False Claims Act cases and matters, for reasons similar to those listed in sub-section l(e)(l)(i) through l(e)(l)(iii) above, the Director of the Fraud Section of the Commercial Litigation Branch, after consultation with the United States Attorney, may determine that a case or matter will not be delegated to the United States Attorney, but personally or jointly handled, or monitored, by the Civil Division.
(a) Whenever, pursuant to the authority delegated by this Directive, an official of the Civil Division or a United States Attorney accepts a compromise, closes a claim or files a suit or claim, a memorandum fully explaining the basis for the action taken shall be executed and placed in the file. In the case of matters compromised, closed, or filed by United States Attorneys, a copy of the memorandum must, upon request therefrom, be sent to the appropriate Branch or Office of the Civil Division.
(b) The compromising of cases or closing of claims or the filing of suits for claims, which a United States Attorney is not authorized to approve, shall be referred to the appropriate Branch or Office within the Civil Division, for decision by the Assistant Attorney General or the appropriate authorized person within the Civil Division. The referral memorandum should contain a detailed description of the matter, the United States Attorney’s recommendation, the agency’s recommendation where applicable, and a full statement of the reasons therefor.
Claims arising out of judgments in favor of the United States which cannot be permanently closed as uncollectible may be returned to the referring Federal agency for servicing and surveillance whenever all conditions set forth in USAM 4-3.230 have been met.
(a) Direct reference to United States Attorneys by agencies. The following civil actions under the jurisdiction of the Assistant Attorney General, Civil Division, may be referred by the agency concerned directly to the appropriate United States Attorney for handling in trial courts, subject to the limitations imposed by paragraph (b) of this section. United States Attorneys are hereby delegated the authority to take all necessary steps to protect the interests of the United States, without prior approval of the Assistant Attorney General, Civil Division, or his representatives, subject to the limitations set forth in section 1(e) of this directive. Agencies may, however, if special handling is desired, refer these cases to the Civil Division. Also, when constitutional questions or other significant issues arise in the course of such litigation, or when an appeal is taken by any party, the Civil Division should be consulted.
(1) Money claims by the United States where the gross amount of the original claim does not exceed $10,000,000.
(2) Single family dwelling house foreclosures arising out of loans made or insured by the Department of Housing and Urban Development, the Department of Veterans Affairs, or the Farm Service Agency.
(3) Suits to enjoin violations of, or to collect penalties under, the Agricultural Adjustment Act of 1938, 7 U.S.C. 1376; the Packers and Stockyards Act, 7 U.S.C. 203, 207(g), 213, 215, 216, 222, and 228a; the Perishable Agricultural Commodities Act, 1930, 7 U.S.C. 499c(a) and 499h(d); the Egg Products Inspection Act, 21 U.S.C. 1031 et seq.; the Potato Research and Promotion Act, 7 U.S.C. 2611 et seq.; the Cotton Research and Promotion Act of 1966, 7 U.S.C. 2101 et seq.; the Federal Meat Inspection Act, 21 U.S.C. 601 et seq.; and the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S.C. 601 et seq.
(4) Suits by social security beneficiaries under the Social Security Act, 42 U.S.C. 402 et seq.
(5) Social Security disability suits under 42 U.S.C. 423 et seq.
(6) Black lung beneficiary suits under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 921 et seq.
(7) Suits by Medicare beneficiaries under 42 U.S.C. 1395ff.
(8) Garnishment actions authorized by 42 U.S.C. 659 for child support or alimony payments and actions for general debt, 5 U.S.C. 5520a.
(9) Judicial review of actions of the Secretary of Agriculture under the food stamp program, pursuant to the provisions of 7 U.S.C. 2022 involving retail food stores.
(10) Cases referred by the Department of Labor for the collection of penalties or for injunctive action under the Fair Labor Standards Act of 1938 and the Occupational Safety and Health Act of 1970.
(11) Cases referred by the Department of Labor solely for the collection of civil penalties under the Farm Labor Contractor Registration Act of 1963, 7 U.S.C. 2048(b).
(12) Cases referred by the Surface Transportation Board to enforce orders of the Surface Transportation Board or to enjoin or suspend such orders pursuant to 28 U.S.C. 1336.
(13) Cases referred by the United States Postal Service for injunctive relief under the nonmailable matter laws, 39 U.S.C. 3001 et seq.
(b) Cases not covered. Regardless of the amount in controversy (unless otherwise specified), the following matters normally will not be delegated to United States Attorneys for handling but will be personally or jointly handled or monitored by the appropriate Branch or Office within the Civil Division:
(1) Cases in the Court of Federal Claims.
(2) Cases within the jurisdiction of the Commercial Litigation Branch involving patents, trademarks, copyrights, etc.
(3) Cases before the United States Court of International Trade.
(4) Any case involving bribery, conflict of interest, breach of fiduciary duty, breach of employment contract, or exploitation of public office.
(5) Any case involving vessel-caused pollution in navigable waters.
(6) Cases on appeal, except as determined by the Director of the Appellate Staff.
(7) Any case involving litigation in a foreign court.
(8) Criminal proceedings arising under statutes enforced by the Food and Drug Administration, the Consumer Product Safety Commission, the Federal Trade Commission, and the National Highway Traffic Safety Administration (relating to odometer tampering), except as determined by the Director of the Consumer Protection Branch.
(9) Nonmonetary civil cases, including injunction suits, declaratory judgment actions, and applications for inspection warrants, and cases seeking civil penalties where the gross amount of the original claim exceeds $10,000,000.
(10) Cases arising under the statutes listed in 28 CFR 0.45(j), except as determined by the Director of the Consumer Protection Branch.
(11) Administrative claims arising under the Federal Tort Claims Act.
Authority relating to Civil Investigative Demands issued under the False Claims Act is hereby delegated to United States Attorneys in cases that are delegated or assigned as monitored to their respective components. In accordance with guidelines provided by the Assistant Attorney General, each United States Attorney must provide notice and a report of Civil Investigative Demands issued by the United States Attorney. Authority relating to Civil Investigative Demands issued under the False Claims Act in cases that are jointly or personally handled by the Civil Division is hereby delegated to the Director of the Fraud Section of the Commercial Litigation Branch. When a case is jointly handled by the Civil Division and a United States Attorney’s Office, the Director of the Fraud Section will issue a Civil Investigative Demand only after requesting the United States Attorney’s recommendation.
All final judicial decisions adverse to the Government, other than bankruptcy court decisions except as provided herein, involving any direct reference or delegated case must be reported promptly to the Assistant Attorney General, Civil Division, attention Director, Appellate Staff. Consult title 2 of the United States Attorney’s Manual for procedures and time limitations. An appeal of such a decision, as well as an appeal of an adverse decision by a district court or bankruptcy appellate panel reviewing a bankruptcy court decision or a direct appeal of an adverse bankruptcy court decision to a court of appeals, cannot be taken without approval of the Solicitor General. Until the Solicitor General has made a decision whether an appeal will be taken, the Government attorney handling the case must take all necessary procedural actions to preserve the Government’s right to take an appeal, including filing a protective notice of appeal when the time to file a notice of appeal is about to expire and the Solicitor General has not yet made a decision. Nothing in the foregoing directive affects this obligation.
(a) For purposes of this directive, in the case of claims involving only civil penalties, other than claims defined in 28 CFR 0.169(b), the phrase “gross amount of the original claim” shall mean the maximum amount of penalties sought.
(b) For purposes of this directive, in the case of claims asserted in bankruptcy proceedings, the phrase “gross amount of the original claim” shall mean liquidation value. Liquidation value is the forced sale value of the collateral, if any, securing the claim(s) plus the dividend likely to be paid for the unsecured portion of the claim(s) in an actual or hypothetical liquidation of the bankruptcy estate.
This directive supersedes Civil Division Directive No. 1-10 regarding redelegation of the Assistant Attorney General’s authority in Civil Division cases to Branch Directors, heads of offices, and United States Attorneys.
This directive applies to all cases pending as of the date of this directive and is effective immediately.
This directive consists of rules of agency organization, procedure, and practice and does not create a private right of action for any private party to challenge the rules or actions taken pursuant to them.
By virtue of the authority vested in me by part 0 of title 28 of the Code of Federal Regulations, particularly §§ 0.55, 0.160, 0.162, 0.164, 0.166, and 0.168, it is hereby ordered as follows:
(b) Matters involving alleged criminal violations of the Agricultural Adjustment Act of 1938, as amended, shall be referred directly to the U.S. Attorney concerned by the attorney in charge of the local office of the General Counsel which has jurisdiction over any such matter requiring action. U.S. Attorneys may initiate criminal prosecution or decline to do so as they, in their judgment, may deem appropriate. U.S. Attorneys are, of course, urged to obtain the advice and assistance of this Department whenever they feel that such advice and assistance might be helpful.
(b) With the Department of Agriculture. Correspondence calling for additional factual details, and requests for investigations, documents, witnesses, and similar matters, should be directed to the General Counsel’s attorney in charge who originated the matter. However, only the U.S. Attorney and his duly appointed assistants are authorized to exercise any control whatsoever over the handling of any such matter referred to the U.S. Attorney for action. The U.S. Attorney is charged with the entire responsibility for the manner in which such matters are handled.
(b) In each instance in which a case is closed by a U.S. Attorney and in which prior approval of the Assistant Attorney General or his representative has not been obtained, a memorandum shall be prepared and placed in the file describing the action taken and the reasons therefor.
By virtue of the authority vested in me by part 0 of title 28 of the Code of Federal Regulations, as amended, particularly §§ 0.160, 0.162, 0.164, 0.168 and 0.171, it is hereby ordered as follows:
(a)(1) Each U.S. Attorney is authorized in cases delegated to the Assistant Attorney General of the Criminal Division—
(A) To accept or reject offers in compromise of—
(i) Claims in behalf of the United States in all cases (other than forfeiture cases) in which the original claim did not exceed $500,000, and in all cases in which the original claim was between $500,000 and $5,000,000, so long as the difference between the gross amount of the original claim and the proposed settlement does not exceed 15 percent of the original claim; and in all civil or criminal forfeiture cases, except that the U.S. Attorney shall consult with the Asset Forfeiture Office of the Criminal Division before accepting offers in compromise or plea offers in forfeiture cases in which the orignial claim was $5,000,000 or more, and in forfeiture cases in which the original claim was between $500,000 and $5,000,000, when the difference between the gross amount of the original forfeiture sought and the proposed settlement exceeds 15 percent of the original claim; and
(ii) Claims against the United States in all cases, or in administrative actions to settle, in which the amount of the proposed settlement does not exceed $500,000; and
(B) To close (other than by compromise or entry of judgment) claims asserted by the United States in all cases (other than forfeiture cases) in which the gross amount of the original claim does not exceed $500,000, and in all civil or criminal forfeiture cases, except that the U.S. Attorney shall consult with the Asset Forfeiture Office of the Criminal Division before closing a forfeiture case in which the gross amount of the original forfeiture sought is $500,000 or more.
(2) This subsection does not apply—
(A) When, for any reason, the compromise or closing of a particular claim (other than a forfeiture case) will, as a practical matter, control or adversely influence the disposition of other claims, which, when added to the claim in question, total more than the respective amounts designated above;
(B) When the U.S. Attorney is of the opinion that because of a question of law or policy presented, or for any other reason, the matter should receive the personal attention of the Assistant Attorney General;
(C) When a settlement converts into a mandatory duty the otherwise discretionary authority of an agency or department to revise, amend, or promulgate regulations;
(D) When a settlement commits a department or agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question, or commits a department or agency to seek a particular appropriation or budget authorization; or
(E) When a settlement limits the discretion of a Secretary or agency administrator to make policy or managerial decisions committed to the Secretary or agency administrator by Congress or by the Constitution.
(b) Notwithstanding the provisions of this Order, the Assistant Attorney General of the Criminal Division may delegate to U.S. Attorneys authority to compromise or close other cases, including those involving amounts greater than as set forth in paragraph (a) above, and up to the maximum limit of his authority, where the circumstances warrant such delegation.
(c) All other authority delegated to me by §§ 0.160, 0.162, 0.164 and 0.171 of title 28 of the Code of Federal Regulations not falling within the limitations of paragraph (a) of this Order is hereby redelegated to Section Chiefs in the Criminal Division, except that—
(1) The authority delegated to me by §§ 0.160, 0.162, 0.164 and 0.171 of that title relating to conducting, handling, or supervising civil and criminal forfeiture litigation (other than bail bond forfeiture), including acceptance or denial of petitions for remission or mitigation of forfeiture, is hereby redelegated to the Director of the Asset Forfeiture Office; and
(2) When a Section Chief or the Director of the Asset Forfeiture Office is of the opinion that because of a question of law or policy presented, or for any other reason, a matter described in paragraph (c) should receive the personal attention of a Deputy Assistant Attorney General or Assistant Attorney General, he shall refer the matter to the appropriate Deputy Assistant Attorney General or to the Assistant Attorney General.
(d) Notwithstanding any of the above redelegations, when the agency or agencies involved have objected in writing to the proposed closing or dismissal of a case, or to the acceptance or rejection of an offer in compromise, any such unresolved objection shall be referred to the Assistant Attorney General for resolution.
This directive supersedes Land and Natural Resources Memorandum No. 388 (appendix to subpart Y) and Directives Nos. 4-72 and 5-72. By virtue of the authority vested in me by part 0 of title 28 of the Code of Federal Regulations, and particularly §§ 0.65, 0.160, 0.162, 0.164, 0.166, and 0.168 thereof, I hereby redelegate to the Deputy Assistant Attorney General, certain Section Chiefs, and to the United States Attorneys, the following authority to act in connection with, and to compromise, Environment and Natural Resources Division cases:
A. Delegation to United States Attorneys—1. Land Cases. United States Attorneys are hereby authorized to act in matters concerning real property of the United States, including tribal and restricted individual Indian land, not involving new or unusual questions or questions of title or water rights, on behalf of any other department or agency in response to a direct request in writing from an authorized field officer of the department or agency concerned, without prior authorization from the Environment and Natural Resources Division, in the following-described cases:
(a) Actions to recover possession of property from tenants, squatters, trespassers, or others, and actions to enjoin trespasses on Federal property;
(b) Actions to recover damages resulting from trespasses when the amount of the claim for actual damage based upon an innocent trespass does not exceed $200,000 (The United States Attorneys may seek recovery of amounts exceeding $200,000 (i) if the actual damages are $200,000 or less and State statutes permit the recovery of multiple damages, e.g., double or treble, for either a willful or an innocent trespass; or (ii) if the actual damages are $200,000 or less, but the action is for conversion to obtain recovery of the enhanced value of property severed and removed in the trespass);
(c) Actions to collect delinquent rentals or damages for use and occupancy of not more than $200,000;
(d) Actions to collect costs of forest fire suppression and other damages resulting from such fires if the total claim does not exceed $200,000;
(e) Actions to collect delinquent operation and maintenance charges accruing on Indian irrigation projects and federal reclamation projects of not more than $200,000; and
(f) Actions to collect loans of money or livestock made by the United States to individual Indians without limitation on amount, including loans made by Indian tribal organizations to individual Indians if the loan agreements, notes and securities have been assigned by the tribal organizations to the United States.
2. Environmental cases. Pursuant to paragraph 10 of the memorandum of understanding between the Department of Justice and the Environmental Protection Agency (42 FR 48942) with respect to the handling of litigation to which the Environmental Protection Agency is a party, all requests of the Environmental Protection Agency for litigation must be submitted by the Agency through its General Counsel or its Assistant Administrator for Enforcement to the Assistant Attorney General, except that matters requiring an immediate temporary restraining order may be submitted by regional Administrators of the Environmental Protection Agency simultaneously to a U.S. Attorney and the Assistant Attorney General. Consequently, except for matters requiring an immediate temporary restraining order, U.S. Attorneys are not authorized to accept on a direct reference basis any matters or cases originating in any office of the Environmental Protection Agency.
U.S. Attorneys are authorized to act, without prior authorization from the Environment and Natural Resources Division, on behalf of Federal departments or agencies other than the Environmental Protection Agency, in response to a direct request in writing from an authorized field officer of the department or agency concerned, in the following environmental cases:
(a) Civil or criminal actions involving the filling or the deposit of dredged or fill material upon, or the alteration of the channels of, the waters of the United States, in violation of section 10 of the River and Harbor Act of March 3, 1899 (33 U.S.C. 403), or of section 404 of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1344), or of both statutes;
(b) Civil or criminal actions involving the discharge of refuse into the navigable waters of the United States, and, in certain cases, their tributaries, in violation of section 13 of the Act of March 3, 1899 (33 U.S.C. 407), except for
(i) In rem actions against vessels, which actions shall continue to be handled in the manner set forth in departmental memorandums 374 and 376, dated June 3, 1964, and shall continue to be under the jurisdiction of the Civil Division; and
(ii) Criminal actions involving the discharge either of oil or of hazardous substances, for which discharge a government agency either has imposed a civil penalty pursuant to section 311(b)(6) of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1321(b)(6)), or has under consideration the imposition of such a penalty.
3. Notification to Division of Direct Referral. In each case referred to the United States Attorneys pursuant to the authority set forth in Subparagraphs 1 and 2 above, the United States Attorney shall, prior to taking action, assure that a copy of the authorized field officer’s written request has been forwarded to the Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, Washington, DC, 20530.
A. Delegation to Deputy Assistant Attorney General. Subject to the limitations imposed by Paragraph D of this Section, the Deputy Assistant Attorney General in the Environment and Natural Resources Division is hereby authorized, with respect to matters assigned to the Environment and Natural Resources Division, to accept or reject offers in compromise of claims against the United States in which the amount of the proposed settlement does not exceed $500,000, and of claims in behalf of the United States in which the gross amount of the original claim does not exceed $500,000.
B. Delegation to Section Chiefs. Subject to the limitations imposed by Paragraph D of this Section, the Chiefs of the Land Acquisition, Indian Claims, Pollution Control, Indian Resources, and General Litigation Sections of the Environment and Natural Resources Division are hereby authorized, with respect to matters assigned to their respective sections, to accept or reject offers in compromise of claims against the United States in which the amount of the proposed settlement does not exceed $300,000, and of claims in behalf of the United States in which the gross amount of the original claim does not exceed $300,000.
C. Delegations to United States Attorneys—1. Compromise of land cases. Subject to the limitations imposed by paragraph D of this section, U.S. Attorneys are authorized, without the prior approval of the Environment and Natural Resources Division, to accept or reject offers in compromise in the direct referral land cases listed in subparagraph A-1 of section I, and in claims against the United States in which the amount of the proposed settlement does not exceed $200,000, if the authorized field officer of the interested agency concurs in writing, except that where the United States is a plaintiff, a U.S. Attorney may accept an offer without the concurrence of the field officer if the acceptance is based solely upon the financial circumstances of the debtor.
2. Compromise of environmental cases. Prior delegations of authority to the U.S. Attorneys to settle any type of case in which the Department of Justice represents the Environmental Protection Agency, or the Administrator or any other official of that Agency, are hereby revoked; all offers in compromise of such cases shall be submitted to the Assistant Attorney General of the Environment and Natural Resources Division, for appropriate action.
3. Compromise of Condemnation Cases. (a) Subject to the limitations imposed in Paragraph D of this section, United States Attorneys are hereby authorized, without the prior approval of the Environment and Natural Resources Division, to accept or reject offers in compromise of claims against the United States for just compensation in condemnation proceedings in any case in which
(i) The gross amount of the proposed settlement does not exceed $100,000; and
(ii) The settlement is approved in writing (the written approval to be retained in the file of the United States Attorney concerned) by the authorized field representative of the acquiring agency if the amount of the settlement exceeds the amount deposited with the declaration of taking as to the particular tract of land involved; and
(iii) The amount of the settlement is compatible with the sound appraisal, or appraisals, upon which the United States would rely as evidence in the event of trial, due regard being had for probable minimum trial costs and risks; and
(iv) The case does not involve the revestment of any land or improvements or any interest, or interests, in land under the Act of October 21, 1942, 56 Stat. 797 (40 U.S.C. 258f). 3(b). When a United States Attorney has settled a condemnation proceeding under the authority conferred upon him by the foregoing subparagraph, he shall promptly secure the entry of judgment and distribution of the award, and shall take all other steps necessary to dispose of the matter completely. The United States Attorney concerned shall also immediately forward to the Department a report, in the form of a letter or memorandum, bearing his signature or showing his personal approval, stating the action taken and containing an adequate statement of the reasons therefor. In routine cases, a form, containing the minimum elements of the required report, may be used in lieu of a letter or memorandum. In any case, special care shall be taken to see that the report contains a statement as to what the valuation testimony of the United States would have been if the case had been tried.
4. Closing or Dismissal of Matters and Cases. Subject to the limitations imposed in Paragraph D of this section, a direct referral matter described in Section I may be closed without action by the United States Attorney or, if filed in court, may be dismissed by him, if the field officer of the interested agency concurs in writing that it is without merit legally or factually. Except for claims on behalf of Indians or Indian tribes, the United States Attorney may close a claim without consulting the field officer of the interested agency if the claim is for money only and if he concludes (a) that the cost of collection under the circumstances would exceed the amount of the claim, or (b) that the claim is uncollectible. With respect to claims asserted by the United States on behalf of individual Indians or Indian tribes, the United States Attorney may close a claim without consulting the field officer of the interested agency if the claim is for money only and if he concludes that the claim is uncollectible; claims on behalf of Indian individuals and tribes may not be closed merely because the cost of collection might exceed the amount of the claim.
D. Limitations on delegations. The authority to compromise, close or dismiss cases delegated by Paragraphs A, B and C of this section may not be exercised when,
(a) For any reason, the compromise of a particular claim, as a practical matter, will control or adversely influence the disposition of other claims totaling more than the respective amounts designated above;
(b) Because a novel question of law or a question of policy is presented, or for any other reason, the offer should, in the opinion of the officer or employee concerned, receive the personal attention of the Assistant Attorney General in charge of the Environment and Natural Resources Division; and
(c) The agency or agencies involved are opposed to the proposed closing or dismissal of a case, or acceptance or rejection of the offer in compromise.
If any of the conditions listed above exist, the matter shall be submitted for resolution to the Assistant Attorney General in charge of the Environment and Natural Resources Division.
Effective date of this directive. This Directive shall be effective on December 8, 1976.
Pursuant to the authority vested in me by title 28 of the Code of Federal Regulations, and particularly §§ 0.65, 0.65(a), 0.160, 0.162, 0.164, 0.166, 0.168 and 50.7 thereof, I hereby redelegate to the Section Chief of the Environmental Enforcement Section, the following authority to initiate and to compromise Environment and Natural Resources Division cases and to approve
The Section Chief of the Environmental Enforcement Section is hereby authorized to initiate civil actions on behalf of any other department or agency in response to a written request from an authorized official of the department or agency concerned, under the following environmental statutes:
1. Cases under section 14 of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136l(a), section 16 of the Toxic Substances Control Act, 15 U.S.C. 2615(a) and section 309(g)(9) of the Clean Water Act, 33 U.S.C. 309(g)(9), for collection of civil penalties previously assessed by the Environmental Protection Agency in a formal administrative proceeding.
2. Cases under sections 112 and 113 of the Clean Air Act, 42 U.S.C. 7412 and 7413 for violations of the national emission standards for asbestos hazardous air pollutants.
3. Cases under section 311 of the Clean Water Act, 33 U.S.C. 1321, for recovery of costs expended by the United States’ to remove oil or hazardous substances discharged into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone where such costs do not exceed $1 million, exclusive of interest.
4. Cases under section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9604(e) to enforce requests for access to information, entry and/or inspection and samples.
5. Cases under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607, for recovery of costs of removal or remedial action incurred by the United States where such costs do not exceed $1 million, exclusive of interest.
Any case initiation under paragraphs 1-5 above, should be referred to the Assistant Attorney General, Environment and Natural Resources Division, for approval, whenever the Section Chief of the Environmental Enforcement Section is of the opinion that because of a question of law or policy presented, or for any other reason, the matter should receive the attention of the Assistant Attorney General, Environment and Natural Resources Division.
The Section Chief of the Environmental Enforcement Section is hereby authorized to compromise civil claims on behalf of the United States under the following environmental statutes:
1. Cases under section 14 of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 1361(a), section 16 of the Toxic Substances Control Act, 15 U.S.C. 2615(a) and section 309(g)(9) of the Clean Water Act, 33 U.S.C. 309(g)(9), for collection of civil penalties previously assessed by the Environmental Protection Agency in a formal administrative proceeding.
2. Cases under sections 112 and 113 of the Clean Air Act, 42 U.S.C. 7412 and 7413 for violations of the national emission standards for asbestos hazardous air pollutants.
3. Cases under the Safe Drinking Water Act, 42 U.S.C. 300(f) et seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., the Clean Air Act, 42 U.S.C. 7401 et seq., the Clean Water Act, 33 U.S.C. 1251 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq., and the Toxic Substances Control Act, 15 U.S.C. 2601 et seq., where the amount of the civil penalty to be paid to the United States does not exceed $100,000.
4. Cases under section 311 of the Clean Water Act, 33 U.S.C. 1321, for recovery of costs expended by the United States to remove oil or hazardous substances discharged into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, where such costs do not exceed $1 million, exclusive of interest, and the difference between the United States’ claim and the proposed settlement does not exceed $500,000.
5. Cases under section 104(e) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9604(e), to enforce requests for access to information, entry and/or inspection and samples.
6. Cases under section 107 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607, for recovery of costs of removal or remedial action incurred by the United States, where such costs do not exceed $1 million, exclusive of interest, and the difference between the United States’ claim and the proposed settlement does not exceed $500,000.
Any settlement under paragraphs 4 and 6 above, regardless of the amount or circumstances, should be referred to the Assistant Attorney General, Environment and Natural Resources Division, when for any reason, the compromise of a particular claim, as a practical matter, will control or adversely influence the disposition of other claims totaling more than $500,000. In addition, any settlement under paragraphs 1-6 above should be referred to the Assistant Attorney General, Environment and Natural Resources Division, whenever the Section Chief of the Environmental Enforcement Section is of the opinion that because of a question of law or policy presented, or because of opposition to the proposed settlement by the agency or agencies involved, or for any other reason, the offer should receive the personal attention of the Assistant Attorney General, Environment and Natural Resources Division.
The Section Chief of the Environmental Enforcement Section is hereby authorized to approve all
In the event that another person is acting in the capacity of the Section Chief, Environmental Enforcement Section, that person will have the authority to initiate and to compromise cases under these delegations only if specifically authorized in writing by the Assistant Attorney General, Environment and Natural Resources Division.
This Directive shall be effective December 24, 1990, and the United States Attorneys’ Manual will be revised accordingly.
Pursuant to the authority vested in me under 28 CFR § 16.4(b) and § 16.42(b), I delegate to the Deputy Assistant Attorney General who supervises the Policy, Legislation and Special Litigation Section, or to whoever is acting in that capacity, the authority to grant to deny any request for a record of the Environment and Natural Resources Division made pursuant to the Freedom of Information Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C. 552a.
Effective Date: January 9, 1986.
Section 258f of the Declaration of Taking Act, 40 U.S.C. 258a, et seq., contains the following provision:
In any condemnation proceeding instituted by or on behalf of the United States, the Attorney General is authorized to stipulate or agree in behalf of the United States to exclude any property or any part thereof, or any interest therein, that may have been, or may be, taken by or on behalf of the United States by declaration of taking or otherwise.
The foregoing authority has been delegated to the Assistant Attorney General, Environment and Natural Resources Division, by the Attorney General, chapter I, part O, subpart M, §§ 0.65 and 0.160(a)(2), title 28, Code of Federal Regulations.
In view of the frequency of agency requests that this office stipulate or agree to exclude property or parts of property taken by declaration of taking or otherwise, and in the interest of efficient administration of the duties and responsibilities of this office, I hereby make the following limited delegation of authority to stipulate or agree to such exclusions (revestments).
The Chief, Land Acquisition Section, is authorized to stipulate or agree in behalf of the United States to exclude (revest) any property or any part thereof, or any interest therein, that may have been, or may be taken by or on behalf of the United States by declaration of taking or otherwise, when:
1. The exclusion (revestment) has been requested or approved in writing by a duly authorized officer of the agency for which the property was taken; and
2. In the case of a partial exclusion (revestment) in connection with an overall settlement of the case, the combined amount of the monetary payment of compensation and the government’s appraised value of the land to be excluded (revested) does not exceed the monetary limitation on the Section Chief’s settlement authority; or
3. In the case of an exclusion (revestment) that is not part of an overall settlement of the case, the government’s appraised value of the land to be excluded (revested) together with any payment of compensation for possession and/or litigation expenses do not exceed the monetary limitations of the Section Chief’s settlement authority.
Provided that the delegation of settlement authority shall not extend to any revestment which raises precedential questions or policy issues. In such instances, the decision on whether to stipulate or agree to exclusions of property shall remain with the Assistant Attorney General of the Environment and Natural Resources Division.
Effective Date: February 4, 1985.
By virtue of the authority vested in me by part 0 of title 28, Code of Federal Regulations § 0.65, the Section Chief of the Wildlife and Marine Resources Section is now authorized to rule upon petitions for remission or mitigation of civil or criminal forfeitures filed with the Attorney General pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531-1543); the Lacey Act and related provisions (18 U.S.C. 41-44, 47); the Airborne Hunting Act (16 U.S.C. 742j-1); the Migratory Bird Act (16 U.S.C. 701, et seq.); the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d); the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.); the National Wildlife Refuge System Administration Act (16 U.S.C. 668dd, 668ee); the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); the Tuna Conventions Act (16 U.S.C. 951 et seq.); the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.,) the Sockeye Salmon or Pink Salmon Fishing Act (16 U.S.C. 776 et seq.); the Protection of Sea Otters on the High Seas Act (16 U.S.C. 1171 et seq.); the Northern Pacific Halibut Act (16 U.S.C. 772 et seq.); and the North Pacific Fisheries Act (16 U.S.C. 1021 et seq.).
The Section Chief of the Wildlife and Marine Resources Section shall base his decision upon a review of all the pertinent facts including the petition for remission or mitigation, the report and recommendation of the appropriate United States Attorney, the report of the seizing law enforcement agency, and the report prepared within the Section.
Following the adverse decision a petitioner may request the Assistant Attorney General for the Environment and Natural Resources Division to review the decision of the Section Chief.
The above directive shall be effective immediately and shall be the interim procedure in effect until promulgation of regulations by the Department of Justice which address the remission and mitigation process in the Environment and Natural Resources Division.
Effective Date: April 12, 1983.
This directive establishes the Division’s policy of notice to appropriate state officials of action against states. The Chief of each section in the Environment and Natural Resources Division shall:
1. Insure that each attorney in his or her respective section reads, becomes familiar with, and complies with this directive.
2. In each suit or claim brought against state government, agencies, and entities;
(a) Satisfy the Deputy Assistant Attorney General to whom the section reports of compliance with this directive,
(b) Before such suit or claim is brought, advise the Attorney General and governor of any affected state as to the nature of the contemplated action and the terms of the remedy sought and
(c) Place a memorandum in the file of the case of matter, indicating compliance with this directive.
Such prior notice may:
(1) Result in settlement of the action in advance of its filing on terms acceptable to the United States,
(2) Permit the state to bring to our attention facts or issues that may change our outlook on the action, or
(3) Permit the State Attorney General and the Governor to respond knowledgeably to inquires from local officials and the media when the action is commenced.
Because the actual situation covered by this directive may vary from section to section, no single detailed procedure can be established but common sense should prevail. To that end, the state through its Attorney General and Governor should get fair warning and an opportunity to resolve the litigation. The notice should be given sufficiently in advance of the contemplated action to allow state officials to respond.
Where a Section Chief believes he has good cause to seek an exception from the terms of this directive he should discuss the matter with the Deputy Assistant Attorney General to whom he or she reports.
Effective Date: April 27, 1981.
By virtue of the authority vested in me by part 0 of title 28 of the Code of Federal Regulations, particularly sections 0.70, 0.160, 0.162, 0.164, 0.166, and 0.168, it is hereby ordered as follows:
Section 1. The U.S. Attorney for each district in which is located real property, which is subject to a right of redemption of the United States in respect of Federal tax liens, arising under section 2410(c) of title 28 of the United States Code, or under State law when the United States has been joined as a party to a suit, is authorized to release the right of redemption, subject to the following limitations and conditions—
(1) This redelegation of authority relates only to real property on which is located only one single-family residence, and to all other real property having a fair market value not exceeding $200,000. That limitation as to value or use shall not apply in those cases in which the release is requested by the Department of Veterans Affairs or any other Federal agency.
(2) The consideration paid for the release must be equal to the value of the right of redemption, or fifty dollars ($50), whichever is greater. However, no consideration shall be required for releases issued to the Department of Veterans Affairs or any other Federal agency.
(3) The following described documents must be placed in the U.S. Attorney’s file in each case in which a release is issued—
(A) Appraisals by two disinterested and well-qualified persons. In those cases in which the applicant is a Federal agency, the appraisal of that agency may be substituted for the two appraisals generally required.
(B) Such other information and documents as the Tax Division may prescribe.
Section 2. This directive supersedes Tax Division Directive No. 55, effective May 7, 1986.
Section 3. This directive shall become effective on the date of its publication in the
By virtue of the authority vested in me by Part 0 of Title 28 of the Code of Federal Regulations, particularly Sections 0.70, 0.160, 0.162, 0.164, 0.166, and 0.168, it is hereby ordered as follows:
Section 1. The Chiefs of the Civil Trial Sections, the Court of Federal Claims Section, and the Appellate Section are authorized to reject offers in compromise, regardless of amount, provided that such action is not opposed by the agency or agencies involved.
Section 2. Subject to the conditions and limitations set forth in Section 11 hereof, the Chiefs of the Civil Trial Sections and the Court of Federal Claims Section are authorized to:
(A) Accept offers in compromise in, settle administratively, and close (other than by compromise or by entry of judgment), all civil cases in which the amount of the Government’s concession, exclusive of statutory interest, does not exceed $500,000;
(B) Accept offers in compromise in injunction or declaratory judgment suits against the United States in which the principal amount of the related liability, if any, does not exceed $500,000; and
(C) Accept offers in compromise in all other nonmonetary cases;
Section 3. The Chiefs of the Civil Trial Sections and the Court of Federal Claims Section are authorized on a case-by-case basis to redelegate in writing to their respective Assistant Section Chiefs or Reviewers the authority delegated to them in Section 1 hereof to reject offers, and in Section 2 hereof, to accept offers in compromise in, settle administratively, and close (other than by compromise or by entry of judgment), all civil cases in which the amount of the Government’s concession, exclusive of statutory interest, does not exceed $250,000; provided that such redelegation is not made to the attorney-of-record in the case. Redelegations pursuant to this section shall be by memorandum signed by the Section Chief, which shall be placed in the Department of Justice file for the applicable case.
Section 4. Subject to the conditions and limitations set forth in Section 11 hereof, the Chief of the Appellate Section is authorized to:
(A) Accept offers in compromise with reference to litigating hazards of the issue(s) on appeal in all civil cases (other than claims for attorneys’ fees, litigation expenses and court costs) in which the amount of the Government’s concession, exclusive of statutory interest, does not exceed $500,000;
(B) Accept offers in compromise in injunction [see sec. 2(B)] or declaratory judgment suits against the United States in which the principal amount of the related liability, if any, does not exceed $500,000;
(C) Accept offers in compromise in, or settle administratively, all civil claims for attorneys’ fees, litigation expenses and court costs in which the aggregate amount of the Government’s concession on these claims does not exceed $200,000, and in which the aggregate amount of the Government’s concession in the case, exclusive of statutory interest, does not exceed $500,000; and
(D) Accept offers in compromise in all other nonmonetary cases which do not involve issues concerning collectibility;
Section 5. The Chief of the Appellate Section is authorized on a case-by case basis to redelegate in writing to the Appellate Section’s Assistant Section Chiefs the authority delegated to the Chief of the Appellate Section in Section 1 hereof to reject offers, and in Section 4 hereof, to:
(A) Accept offers in compromise with reference to litigation hazards of the issue(s) on appeal in all civil cases (other than claims for attorneys’ fees, litigation expenses and court costs) in which the amount of the Government’s concession, exclusive of statutory interest, does not exceed $250,000; and
(B) Accept offers in compromise in, or settle administratively, all civil claims for attorneys’ fees, litigation expenses and court costs in which the aggregate amount of the Government’s concession on these claims does not exceed $100,000, and in which the aggregate amount of the Government’s concession in the case, exclusive of statutory interest, does not exceed $250,000;
Section 6. Subject to the conditions and limitations set forth in Section 11 hereof, the Chief of the Office of Review is authorized to:
(A) Accept offers in compromise and settle administratively claims against the United States in all civil cases in which the amount of the Government’s concession, exclusive of statutory interest, does not exceed $1,500,000; and
(B) Accept offers in compromise and close (other than by compromise or by entry of judgment), claims by the United States in all civil cases in which the difference between the gross amount of the original claim and the proposed settlement does not exceed $1,500,000 or 15 percent of the original claim, whichever is greater;
(C) Accept offers in compromises in all nonmonetary cases; and
(D) Reject offers in compromise or disapprove concessions, regardless of amount;
Section 7. The Chief, Office of Review, is authorized on a case-by-case basis to redelegate in writing to the office’s Assistant Section Chief or Reviewer the authority delegated to the Chief, Office of Review in Section 6 hereof to reject offers, and in Section 6 hereof, to accept offers in compromise in, settle administratively, and close (other than by compromise or by entry of judgment), all civil cases in which the amount of the Government’s concession, exclusive of statutory interest, does not exceed $750,000; provided that such redelegation is not made to the attorney-of-record in the case. The redelegations pursuant to this section shall be made by memorandum signed by the Section Chief, which shall be placed in the Department of Justice file for the applicable case.
Section 8. Subject to the conditions and limitations set forth in Section 11 hereof, each of the Deputy Assistant Attorneys General is authorized to:
(A) Accept offers in compromise and settle administratively claims against the United States in all civil cases in which the amount of the Government’s concession, exclusive of statutory interest, does not exceed $2,000,000;
(B) Accept offers in compromise and close (other than by compromise or by entry of judgment), claims by the United States in all civil cases in which the difference between the gross amount of the original claim and the proposed settlement does not exceed $2,000,000 or 15 percent of the original claim, whichever is greater;
(C) Accept offers in compromise in all nonmonetary cases; and
(D) Reject offers in compromise or disapprove concessions, regardless of amount;
Section 9. In addition to the actions authorized by Section 8 hereof, and subject to the conditions and limitations set forth in Section 10 hereof, a Principal Deputy Assistant Attorney General is authorized to:
(A) Accept offers in compromise and settle administratively claims against the United States in all civil cases, regardless of amount in all cases in which the Joint Committee on Taxation has indicated that it has no adverse criticism of the proposed settlement, provided that such action is not opposed by the agency or agencies involved.
(B) Consistent with, and subject to the limitations of, 28 CFR 0.168, and in the absence of an Assistant Attorney General, redelegate authority under this Directive to subordinate division officials and United States Attorneys.
Section 10. Subject to the conditions and limitations set forth in Section 11 hereof, United States Attorneys are authorized to:
(A) Reject offers in compromise of judgments in favor of the United States, regardless of the amount;
(B) Accept offers in compromise of judgments in favor of the United States where the amount of the judgment does not exceed $300,000; and
(C) Terminate collection activity by his or her office as to judgments in favor of the United States which do not exceed $300,000 if the United States Attorney concludes that the judgment is uncollectible;
Section 11. The authority redelegated herein shall be subject to the following conditions and limitations;
(A) When, for any reason, the compromise or concession of a particular claim, as a practical matter, will control or adversely influence the disposition of other claims totaling more than the respective amounts designated in Sections 2, 3, 4, 5, 6, 7, 8, 9, and 10 hereof, the case shall be forwarded for review at the appropriate level for the cumulative amount of the affected claims;
(B) When, because of the importance of a question of law or policy presented, the position taken by the agency or agencies or by the United States Attorney involved, or any other considerations, the person otherwise authorized herein to take final action is of the opinion that the proposed disposition should be reviewed at a higher level, the case shall be forwarded for such review;
(C) If the Department has previously submitted a case to the Joint Committee on Taxation leaving one or more issues unresolved, any subsequent compromise or concession in that case must be submitted to the Joint Committee, whether or not the overpayment exceeds the amount specified in Section 6405 of the Internal Revenue Code;
(D) Nothing in this Directive shall be construed as altering any provision of Subpart Y of Part 0 of Title 28 of the Code of Federal Regulations requiring the submission of certain cases to the Attorney General, the Associate Attorney General, or the Solicitor General;
(E) Authority to approve recommendations that the Government confess error in or to concede cases on appeal is excepted from the foregoing redelegations; and
(F) The Assistant Attorney General, at any time, may withdraw any authority delegated by this Directive as it relates to any particular case or category of cases, or to any part thereof.
Section 12. With respect to a claim by the United States (also sometimes referred to as a claim on behalf of the United States), the term “offer in compromise” as used in this Directive is any settlement of such a claim, except settlements in which the United States would receive nothing or virtually nothing in exchange for giving up its claim; and the term “to close (other than by compromise or entry of judgment),” refers to a settlement under which the United States would receive nothing, or virtually nothing in exchange for giving up its claim.
Section 13. For a claim against the United States, the term “offer in compromise” as used in this Directive is any settlement of such a claim, except settlements in which the United States would receive nothing, or virtually nothing, in exchange for conceding the claim against it; and the term to “settle administratively,” means a settlement in which the United States would receive nothing, or virtually nothing, for conceding the claim against it.
Section 14. This Directive supersedes Tax Division Directive No. 135, which was effective November 21, 2007.
Section 15. This Directive shall become effective on March 21, 2011.
By virtue of the authority vested in the Attorney General by 18 U.S.C. 2254, the Attorney General hereby designates the Postal Service with the authority to conduct civil forfeitures under section 2254 of the Protection of Children Against Sexual Exploitation Act, as amended by the Child Protection of 1984, 18 U.S.C. 2251-2255.
In utilizing the authority hereby granted, all rules, regulations, and procedures of the Federal Bureau of Investigation relating to the aforementioned Act must be followed, including the Federal Bureau of Investigation’s Manual of Investigative Operations and Guidelines.
The authority hereby granted to enforce section 2254 of the Protection of Children Against Sexual Exploitation Act, as amended by the Child Protection Act of 1984, is subject to the direction of the Attorney General.
Subpart Z—Assigning Responsibility Concerning Applications for Orders Compelling Testimony or Production of Evidence by Witnesses
§ 0.175 Judicial and administrative proceedings.
(a) When the subject matter of a case or proceeding is within his or her respective jurisdiction, the Assistant Attorney General, Criminal Division, the Assistant Attorney General for National Security, or any Deputy Assistant Attorney General, Criminal Division or of the National Security Division is authorized to exercise the authority vested in the Attorney General by 18 U.S.C. 6003, to approve the application of a U.S. Attorney to a federal court for an order compelling testimony or the production of information by a witness in any proceeding before or ancillary to a court or grand jury of the United States, and the authority vested in the Attorney General by 18 U.S.C. 6004, to approve the issuance by an agency of the United States of an order compelling testimony or the production of information by a witness in a proceeding before the agency, when the subject matter of the case or proceeding is either within the cognizance of the Assistant Attorney General, Criminal Division, the Assistant Attorney General for National Security, or is not within the cognizance of the Divisions or Administration designated in paragraphs (b) and (c) of this section.
(b) The Assistant Attorneys General or any Deputy Assistant Attorney General of the Antitrust Division, the Civil Division, the Civil Rights Division, the Environment and Natural Resources Division and the Tax Division are authorized to exercise the power and authority vested in the Attorney General by 18 U.S.C. 6003 to approve the application of a U.S. Attorney to a Federal court for an order compelling testimony or the production of information in any proceeding before or ancillary to a court or grand jury of the United States when the subject matter of the case or proceeding is within the cognizance of their respective Divisions: Provided, however, That no approval shall be granted unless the Criminal Division indicates that it has no objection to the proposed grant of immunity.
(c) The Assistant Attorneys General and Deputy Assistant Attorneys General designated in paragraph (b) of this section, and the Administrator of the Drug Enforcement Administration are authorized to exercise the authority vested in the Attorney General by 18 U.S.C. 6004 to approve the issuance by an agency of the United States of an order compelling testimony or the production of information by a witness in a proceeding before the agency when the subject matter of the proceeding is within the cognizance of their respective Divisions or the Administration: Provided, however, That no approval shall be granted unless the Criminal Division indicates that it has no objection to the proposed grant of immunity.
§ 0.176 Congressional proceedings.
(a) A notice of an intention to request an order from a district court compelling testimony or the production of information in a congressional proceeding when submitted to the Attorney General by either House of Congress or a committee or a subcommittee of the Congress pursuant to 18 U.S.C. 6005 shall be referred to the Assistant Attorney General of the Division or the Administrator of the Administration having cognizance of the subject matter of the proceedings: Provided, however, That either the notice or a copy thereof shall in any event be referred to the Assistant Attorney General in charge of the Criminal Division.
(b) The Assistant Attorneys General and Deputy Assistant Attorneys General designated in § 0.175 (a) and (b) are authorized to exercise the power and authority vested in the Attorney General by 18 U.S.C. 6005 to apply to a district court of the United States to defer the issuance of an order compelling the testimony of a witness or the production of information in a proceeding before either House of Congress, or any committee or subcommittee of either House, or any joint committee of the two Houses.
§ 0.177 Applications for orders under the Comprehensive Drug Abuse Prevention and Control Act.
Notwithstanding the delegation of functions contained in subpart R of this part, the Assistant Attorney General in charge of the Criminal Division is authorized to exercise the authority vested in the Attorney General by section 514 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1276, to approve the application of a U.S. Attorney to a Federal court for an order compelling testimony or the production of information in any proceeding before a court or grand jury of the United States. Immunity shall be granted in agency proceedings under that Act only with the concurrence of the Assistant Attorney General in charge of the Criminal Division.
§ 0.177a Antitrust civil investigative demands.
The Assistant Attorney General in charge of the Antitrust Division is authorized to issue orders pursuant to section 6004 of title 18, United States Code, to compel testimony in response to antitrust civil investigative demands for oral testimony. Issuance of such orders shall be subject to the concurrence of the Assistant Attorney General in charge of the Criminal Division.
The Administrator of the Drug Enforcement Administration is authorized to redelegate the authority delegated by this subpart to the Deputy Administrator of DEA, to be exercised solely during the absence of the Administrator from the City of Washington.
Subpart Z-1—Prosecutions for Obstruction of Justice and Related Charges
§ 0.179 Scope.
This subpart applies to the following matters:
(a) Obstruction of justice and obstruction of a criminal investigation (18 U.S.C. 1501-1511);
(b) Perjury and subornation of perjury (18 U.S.C. 1621, 1622);
(c) False declarations before a grand jury or court (18 U.S.C. 1623);
(d) Fraud and false statements in matters within the jurisdiction of a government agency (18 U.S.C. 1001); and
(e) Conspiracy to defraud the United States (18 U.S.C. 371).
§ 0.179a Enforcement responsibilities.
(a) Matters involving charges of obstruction of justice, perjury, fraud or false statement, as described in § 0.179, shall be under the supervisory jurisdiction of the Division having responsibility for the case or matter in which the alleged obstruction occurred. The Assistant Attorney General in charge of each Division shall have full authority to conduct prosecution of such charges, including authority to appoint special attorneys to present evidence to grand juries. However, such enforcement shall be preceded by consultation with the Assistant Attorney General in charge of the Criminal Division, to determine the appropriate supervisory jurisdiction. (See 38 CFR 0.55(p).)
(b) In the event the Assistant Attorney General in charge of the Division having responsibility for the case or matter does not wish to assume supervisory jurisdiction he shall refer the matter to the Assistant Attorney General in charge of the Criminal Division for handling by that Division.
Subpart AA—Orders of the Attorney General
§ 0.180 Documents designated as orders.
All documents relating to the organization of the Department or to the assignment, transfer, or delegation of authority, functions, or duties by the Attorney General or to general departmental policy shall be designated as orders and shall be issued only by the Attorney General in a separate, numbered series. Classified orders shall be identified as such, included within the numbered series, and limited to the distribution provided for in the order or determined by the Assistant Attorney General for Administration. All documents amending, modifying, or revoking such orders, in whole or in part, shall likewise be designated as orders within such numbered series, and no other designation of such documents shall be used.
§ 0.181 Requirements for orders.
Each order prepared for issuance by or approval of the Attorney General shall be given a suitable title, shall contain a clear and concise statement explaining the substance of the order, and shall cite the authority for its issuance.
§ 0.182 Submission of proposed orders to the Office of Legal Counsel.
All orders prepared for the approval or signature of the Attorney General shall be submitted to the Office of Legal Counsel for approval as to form and legality and consistency with existing orders.
§ 0.183 Distribution of orders.
The distribution of orders, unless otherwise provided by the Attorney General, shall be determined by the Assistant Attorney General for Administration.
Subpart BB—Sections and Subunits
§ 0.190 Changes within organizational units.
(a) The head of each Office, Board, Division or Bureau may from time to time propose the establishment, transfer, reorganization or termination of major functions within his organizational unit as he may deem necessary or appropriate. In each instance, the head of the Office, Board, Division or Bureau shall submit the proposed change in writing to the Assistant Attorney General for Administration. The Assistant Attorney General for Administration shall evaluate the proposal and shall submit the proposed change, along with his recommendation, to the Associate Attorney when appropriate, and in all other cases directly to the Deputy Attorney General. Where the Associate Attorney General has received a proposed change, he shall evaluate it, and shall submit it along, with his recommendation, to the Deputy Attorney General. The Deputy Attorney General shall then approve or disapprove the change.
(b) The approval shall be final in the case of changes which do not affect the overall structure of the Department. Proposed changes which are determined by the Deputy Attorney General to affect the overall structure of the Department’s organization shall be forwarded by the Deputy Attorney General to the Attorney General for final approval prior to implementation, and shall be effectuated by issuance of an Attorney General’s order, in accordance with subpart AA of this part.
§ 0.191 Changes which affect the overall structure of the Department.
Changes to the overall structure of the Department include: The establishment, merger or abolishment of Offices, Boards, Divisions, and Bureaus; changes in reporting lines of Offices, Boards, Divisions and Bureaus to the Department; and transfers of major functions between or among Offices, Boards, Divisions and Bureaus.
Subpart CC—Jurisdictional Disagreements
§ 0.195 Procedure with respect to jurisdictional disagreements.
Any disagreement between or among heads of the organizational units as to their respective jurisdictions shall be resolved by the Attorney General, who may, if he so desires, issue an order in the numbered series disposing of the matter.
§ 0.196 Procedures for resolving disagreements concerning mail or case assignments.
When an assignment for the handling of mail or a case has been made through established procedures and the appropriate authorities in any organizational unit of the Department disagree concerning jurisdiction of the unit for handling the matter or matters assigned, the disagreement, together with a statement of the view of the unit or units involved, shall be referred to the Assistant Attorney General for Administration for determination. If the disagreement cannot be resolved, the matter shall be referred to the Deputy Attorney General for final disposition.
§ 0.197 Agreements, in connection with criminal proceedings or investigations, promising non-deportation or other immigration benefits.
The Immigration and Naturalization Service (Service) shall not be bound, in the exercise of its authority under the immigration laws, through plea agreements, cooperation agreements, or other agreements with or for the benefit of alien defendants, witnesses, or informants, or other aliens cooperating with the United States Government, except by the authorization of the Commissioner of the Service or the Commissioner’s delegate. Both the agreement itself and the necessary authorization must be in writing to be effective, and the authorization shall be attached to the agreement.
PART 1—EXECUTIVE CLEMENCY
§ 1.1 Submission of petition; form to be used; contents of petition.
A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, DC 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney. Petition forms for commutation of sentence also may be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should submit his or her petition directly to the Secretary of the military department that had original jurisdiction over the court-martial trial and conviction of the petitioner. In such a case, a form furnished by the Pardon Attorney may be used but should be modified to meet the needs of the particular case. Each petition for executive clemency should include the information required in the form prescribed by the Attorney General.
§ 1.2 Eligibility for filing petition for pardon.
No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.
§ 1.3 Eligibility for filing petition for commutation of sentence.
No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances.
§ 1.4 Offenses against the laws of possessions or territories of the United States.
Petitions for executive clemency shall relate only to violations of laws of the United States. Petitions relating to violations of laws of the possessions of the United States or territories subject to the jurisdiction of the United States should be submitted to the appropriate official or agency of the possession or territory concerned.
§ 1.5 Disclosure of files.
Petitions, reports, memoranda, and communications submitted or furnished in connection with the consideration of a petition for executive clemency generally shall be available only to the officials concerned with the consideration of the petition. However, they may be made available for inspection, in whole or in part, when in the judgment of the Attorney General their disclosure is required by law or the ends of justice.
§ 1.6 Consideration of petitions; notification of victims; recommendations to the President.
(a) Upon receipt of a petition for executive clemency, the Attorney General shall cause such investigation to be made of the matter as he or she may deem necessary and appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government, including the Federal Bureau of Investigation.
(b)(1) When a person requests clemency (in the form of either a commutation of a sentence or a pardon after serving a sentence) for a conviction of a felony offense for which there was a victim, and the Attorney General concludes from the information developed in the clemency case that investigation of the clemency case warrants contacting the victim, the Attorney General shall cause reasonable effort to be made to notify the victim or victims of the crime for which clemency is sought:
(i) That a clemency petition has been filed;
(ii) That the victim may submit comments regarding clemency; and
(iii) Whether the clemency request ultimately is granted or denied by the President.
(2) In determining whether contacting the victim is warranted, the Attorney General shall consider the seriousness and recency of the offense, the nature and extent of the harm to the victim, the defendant’s overall criminal history and history of violent behavior, and the likelihood that clemency could be recommended in the case.
(3) For the purposes of this paragraph (b), “victim” means an individual who:
(i) Has suffered direct or threatened physical, emotional, or pecuniary harm as a result of the commission of the crime for which clemency is sought (or, in the case of an individual who died or was rendered incompetent as a direct and proximate result of the commission of the crime for which clemency is sought, one of the following relatives of the victim (in order of preference): the spouse; an adult offspring; or a parent); and
(ii) Has on file with the Federal Bureau of Prisons a request to be notified pursuant to 28 CFR 551.152 of the offender’s release from custody.
(4) For the purposes of this paragraph (b), “reasonable effort” is satisfied by mailing to the last-known address reported by the victim to the Federal Bureau of Prisons under 28 CFR 551.152.
(5) The provisions of this paragraph (b) apply to clemency cases filed on or after September 28, 2000.
(c) The Attorney General shall review each petition and all pertinent information developed by the investigation and shall determine whether the request for clemency is of sufficient merit to warrant favorable action by the President. The Attorney General shall report in writing his or her recommendation to the President, stating whether in his or her judgment the President should grant or deny the petition.
§ 1.7 Notification of grant of clemency.
When a petition for pardon is granted, the petitioner or his or her attorney shall be notified of such action and the warrant of pardon shall be mailed to the petitioner. When commutation of sentence is granted, the petitioner shall be notified of such action and the warrant of a commutation shall be sent to the petitioner through the officer in charge of his or her place of confinement, or directly to the petitioner if he/she is on parole, probation, or supervised release.
§ 1.8 Notification of denial of clemency.
(a) Whenever the President notifies the Attorney General that he has denied a request for clemency, the Attorney General shall so advise the petitioner and close the case.
(b) Except in cases in which a sentence of death has been imposed, whenever the Attorney General recommends that the President deny a request for clemency and the President does not disapprove or take other action with respect to that adverse recommendation within 30 days after the date of its submission to him, it shall be presumed that the President concurs in that adverse recommendation of the Attorney General, and the Attorney General shall so advise the petitioner and close the case.
The Attorney General may delegate to any officer of the Department of Justice any of his or her duties or responsibilities under §§ 1.1 through 1.8.
§ 1.10 Procedures applicable to prisoners under a sentence of death imposed by a United States District Court.
The following procedures shall apply with respect to any request for clemency by a person under a sentence of death imposed by a United States District Court for an offense against the United States. Other provisions set forth in this part shall also apply to the extent they are not inconsistent with this section.
(a) Clemency in the form of reprieve or commutation of a death sentence imposed by a United States District Court shall be requested by the person under the sentence of death or by the person’s attorney acting with the person’s written and signed authorization.
(b) No petition for reprieve or commutation of a death sentence should be filed before proceedings on the petitioner’s direct appeal of the judgment of conviction and first petition under 28 U.S.C. 2255 have terminated. A petition for commutation of sentence should be filed no later than 30 days after the petitioner has received notification from the Bureau of Prisons of the scheduled date of execution. All papers in support of a petition for commutation of sentence should be filed no later than 15 days after the filing of the petition itself. Papers filed by the petitioner more than 15 days after the commutation petition has been filed may be excluded from consideration.
(c) The petitioner’s clemency counsel may request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney in support of the clemency petition. The presentation should be requested at the time the clemency petition is filed. The family or families of any victim of an offense for which the petitioner was sentenced to death may, with the assistance of the prosecuting office, request to make an oral presentation of reasonable duration to the Office of the Pardon Attorney.
(d) Clemency proceedings may be suspended if a court orders a stay of execution for any reason other than to allow completion of the clemency proceeding.
(e) Only one request for commutation of a death sentence will be processed to completion, absent a clear showing of exceptional circumstances.
(f) The provisions of this § 1.10 apply to any person under a sentence of death imposed by a United States District Court for whom an execution date is set on or after August 1, 2000.
§ 1.11 Advisory nature of regulations.
The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, section 2 of the Constitution.
PART 2—PAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, YOUTH OFFENDERS, AND JUVENILE DELINQUENTS
Subpart A—United States Code Prisoners and Parolees
§ 2.1 Definitions.
As used in this part:
(a) The term Commission refers to the U.S. Parole Commission.
(b) The term Commissioner refers to members of the U.S. Parole Commission.
(c) The term National Appeals Board refers to the three-member Commission sitting as a body to decide appeals taken from decisions of a Regional Commissioner, who participates as a member of the National Appeals Board. The Vice Chairman shall be Chairman of the National Appeals Board.
(d) The term National Commissioners refers to the Chairman of the Commission and to the Commissioner who is not serving as the Regional Commissioner in respect to a particular case.
(e) The term Regional Commissioner refers to Commissioners who are assigned to make initial decisions, pursuant to the authority delegated by these rules, in respect to prisoners and parolees in regions defined by the Commission.
(f) The term eligible prisoner refers to any Federal prisoner eligible for parole pursuant to this part and includes any Federal prisoner whose parole has been revoked and who is not otherwise ineligible for parole.
(g) The term parolee refers to any Federal prisoner released on parole or as if on parole pursuant to 18 U.S.C. 4164 or 4205(f). The term mandatory release refers to release pursuant to 18 U.S.C. 4163 and 4164.
(h) The term effective date of parole refers to a parole date that has been approved following an in-person hearing held within nine months of such date, or following a pre-release record review.
(i) All other terms used in this part shall be deemed to have the same meaning as identical or comparable terms as used in chapter 311 of part IV of title 18 of the U.S. Code or 28 CFR chapter I, part 0, subpart V.
§ 2.2 Eligibility for parole; adult sentences.
(a) A Federal prisoner serving a maximum term or terms of more than one year imposed pursuant to 18 U.S.C. 4205 (a) (or pursuant to former 18 U.S.C. 4202) may be released on parole in the discretion of the Commission after completion of one-third of such term or terms, or after completion of ten years of a life sentence or of a sentence of over thirty years.
(b) A Federal prisoner serving a maximum term or terms of more than one year imposed pursuant to 18 U.S.C. 4205(b)(1) (or pursuant to former 18 U.S.C. 4208(a)(1)) may be released on parole in the discretion of the Commission after completion of the court-designated minimum term, which may be less than but not more than one-third of the maximum sentence imposed.
(c) A Federal prisoner serving a maximum term or terms of more than one year imposed pursuant to 18 U.S.C. 4205(b)(2) (or pursuant to former 18 U.S.C. 4208(a)(2)) may be released on parole at any time in the discretion of the Commission.
(d) If the Court has imposed a maximum term or terms of more than one year pursuant to 18 U.S.C. 924(a) or 26 U.S.C. 5871 [violation of Federal gun control laws], a Federal prisoner serving such term or terms may be released in the discretion of the Commission as if sentenced pursuant to 18 U.S.C. 4205(b)(2). However, if the prisoner’s offense was committed on or after October 12, 1984, and the Court imposes a term or terms under 26 U.S.C. 5871, the prisoner is eligible for parole only after service of one-third of such term or terms, pursuant to 18 U.S.C. 4205(a).
(e) A Federal prisoner serving a maximum term or terms of one year or less is not eligible for parole consideration by the Commission.
§ 2.3 Same: Narcotic Addict Rehabilitation Act.
A Federal prisoner committed under the Narcotic Addict Rehabilitation Act may be released on parole in the discretion of the Commission after completion of at least six months in treatment, not including any period of time for “study” prior to final judgment of the court. Before parole is ordered by the Commission, the Surgeon General or his designated representative must certify that the prisoner has made sufficient progress to warrant his release and the Attorney General or his designated representative must also report to the Commission whether the prisoner should be released. Recertification by the Surgeon General prior to reparole consideration is not required (18 U.S.C. 4254).
§ 2.4 Same: Youth offenders and juvenile delinquents.
Committed youth offenders and juvenile delinquents may be released on parole at any time in the discretion of the Commission.
§ 2.5 Sentence aggregation.
When multiple sentences are aggregated by the Bureau of Prisons pursuant to 18 U.S.C. 4161 and 4205, such sentences are treated as a single aggregate sentence for the purpose of every action taken by the Commission pursuant to these rules, and the prisoner has a single parole eligibility date as determined by the Bureau of Prisons.
§ 2.6 Withheld and forfeited good time.
While neither a forfeiture of good time nor a withholding of good time shall bar a prisoner from receiving a parole hearing, section 4206 of title 18 of the U.S. Code permits the Commission to parole only those prisoners who have substantially observed the rules of the institution.
§ 2.7 Committed fines and restitution orders.
(a) Committed fines. In any case in which a prisoner shall have had a fine imposed upon him by the committing court for which he is to stand committed until it is paid or until he is otherwise discharged according to law, such prisoner shall not be released on parole or mandatory release until payment of the fine, or until the fine commitment order is discharged according to law under the regulations of the Bureau of Prisons. Discharge from the commitment obligation of any committed fine does not discharge the prisoner’s obligation to pay the fine as a debt due the United States.
(b) Restitution orders. Where a prisoner applying for parole is under an order of restitution, and it appears that the prisoner has the ability to pay and has willfully failed to do so, the Commission shall require that approval of a parole release plan be contingent upon the prisoner first satisfying such restitution order. The prisoner shall be notified that failure to satisfy this condition shall result in retardation of parole under the provisions of § 2.28(e).
§ 2.8 Mental competency proceedings.
(a) Whenever a prisoner (or parolee) is scheduled for a hearing in accordance with the provisions of this part and reasonable doubt exists as to his mental competency, i.e., his ability to understand the nature of and participate in scheduled proceedings, a preliminary inquiry to determine his mental competency shall be conducted by the hearing panel, hearing examiner or other official (including a U.S. Probation Officer) designated by the Regional Commissioner.
(b) The hearing examiner(s) or designated official shall receive oral or written psychiatric or psychological testimony and other evidence that may be available. A preliminary determination of mental competency shall be made upon the testimony, evidence, and personal observation of the prisoner (or parolee). If the examiner(s) or designated official determines that the prisoner is mentally competent, the previously scheduled hearing shall be held. If they determine that the prisoner is not mentally competent, the previously scheduled hearing shall be temporarily postponed.
(c) Whenever the hearing examiner(s) or designated official determine that a prisoner is mentally incompetent and postpone the previously scheduled hearing, they shall forward the record of the preliminary hearing with their findings to the Regional Commissioner for review.
(1) In the case of a prisoner, if the Regional Commissioner concurs with their findings, the Commissioner shall order the temporarily postponed hearing to be postponed indefinitely until such time as it is determined that the prisoner has recovered sufficiently to understand the proceedings. The Regional Commissioner shall require a progress report on the mental health of the prisoner at least every six months. When the Regional Commissioner determines that the prisoner has recovered sufficiently, the Commissioner shall reschedule the hearing for the earliest feasible date.
(2) In the case of a parolee in a revocation proceeding, the Regional Commissioner shall postpone the revocation hearing and order that the parolee be given a mental health examination in a suitable facility of the Bureau of Prisons or the District of Columbia. The postponed revocation hearing shall be held within 60 days, or as soon as a satisfactory mental health report is submitted. The Regional Commissioner shall order that appointment of counsel be sought in any case where the parolee does not have counsel for the revocation hearing. If the parolee’s mental incompetency is raised at a preliminary interview or probable cause hearing, the Commission (or hearing official) will make a determination of probable cause and, if probable cause is found, schedule a revocation hearing as provided in this paragraph.
(d) If the Regional Commissioner disagrees with the findings of the hearing examiner(s) or designated official as to the mental competency of the prisoner, he shall take such action as he deems appropriate.
(e) At a postponed revocation hearing under this section, the hearing examiner shall make a preliminary determination as to the parolee’s mental competency, taking into account all available mental health reports, any evidence submitted on the parolee’s behalf, any report from counsel as to counsel’s ability to communicate with the parolee, and the parolee’s own responses to the examiner’s questioning.
(1) If the hearing examiner determines the parolee to be mentally competent, the examiner shall conduct the revocation hearing. If counsel has previously asserted the parolee’s incompetence, the examiner shall offer counsel a brief recess to consult with the parolee before proceeding.
(2) If the hearing examiner determines the parolee to be mentally incompetent, the examiner shall conduct the revocation hearing, and shall take into full account the parolee’s mental condition in determining the facts and recommending a decision as to revocation and reparole.
(3) If the Commission revokes parole, the Commission may grant reparole conditioned on the parolee’s acceptance into a particular type of mental health program prior to release from prison, or may grant reparole with a special condition of supervision that requires appropriate mental health treatment, including medication. In cases where no other option appears appropriate, the Commission may grant reparole conditioned upon the parolee’s voluntary self-commitment to a mental health institution until such time as the parolee has sufficiently recovered for the Commission to permit the parolee’s return to supervision.
(4) If the Commission finds that the parolee did not commit the charged violations of parole, but also finds that the parolee is unable to fulfill the normal obligations of a parolee by reason of his mental condition, the Commission may reinstate the parolee to parole with any appropriate special condition, including the special condition, if necessary, that the parolee voluntarily commit himself to a mental institution until such time as the parolee has sufficiently recovered for the Commission to permit a return to supervision.
§ 2.9 Study prior to sentencing.
When an adult Federal offender has been committed to an institution by the sentencing court for observation and study prior to sentencing, under the provisions of 18 U.S.C. 4205(c), the report to the sentencing court is prepared and submitted directly by the Bureau of Prisons.
§ 2.10 Date service of sentence commences.
(a) Service of a sentence of imprisonment commences to run on the date on which the person is received at the penitentiary, reformatory, or jail for service of the sentence: Provided, however, That any such person shall be allowed credit toward the service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.
(b) The imposition of a sentence of imprisonment for civil contempt shall interrupt the running of any sentence of imprisonment being served at the time the sentence of civil contempt is imposed, and the sentence or sentences so interrupted shall not commence to run again until the sentence of civil contempt is lifted.
(c) Service of the sentence of a committed youth offender or person committed under the Narcotic Addict Rehabilitation Act commences to run from the date of conviction and is interrupted only when such prisoner or parolee:
(1) Is on court-ordered bail;
(2) Is in escape status;
(3) Has absconded from parole supervision; or
(4) Comes within the provisions of paragraph (b) of this section.
§ 2.11 Application for parole; notice of hearing.
(a) A federal prisoner (including a committed youth offender or prisoner sentenced under the Narcotic Addict Rehabilitation Act) desiring to apply for parole shall execute an application form as prescribed by the Commission. Such forms shall be available at each federal institution and shall be provided to each prisoner who is eligible for an initial parole hearing pursuant to § 2.12. Prisoners committed under the Federal Juvenile Delinquency Act shall be considered for parole without application and may not waive parole consideration. A prisoner who receives an initial hearing need not apply for subsequent hearings.
(b) A prisoner may knowingly and intelligently waive any parole consideration on a form provided for that purpose. If a prisoner waives parole consideration, he may later apply for parole and may be heard during the next visit of the Commission to the institution at which he is confined, provided that he has applied at least 60 days prior to the first day of the month in which such visit of the Commission occurs.
(c) A prisoner who declines either to apply for or waive parole consideration is deemed to have waived parole consideration.
(d) In addition to the above procedures relating to parole application, all prisoners prior to initial hearing shall be provided with an inmate background statement by the Bureau of Prisons for completion by the prisoner.
(e) At least sixty days prior to the initial hearing (and prior to any hearing conducted pursuant to § 2.14), the prisoner shall be provided with written notice of the time and place of the hearing and of his right to review the documents to be considered by the Commission, as provided by § 2.55. A prisoner may waive such notice, except that if such notice is not waived, the case shall be continued to the time of the next regularly scheduled proceeding of the Commission at the institution in which the prisoner is confined.
§ 2.12 Initial hearings: Setting presumptive release dates.
(a) An initial hearing shall be conducted within 120 days of a prisoner’s arrival at a federal institution or as soon thereafter as practicable; except that in a case of a prisoner with a minimum term of parole ineligibility of ten years or more, the initial hearing will be conducted nine months prior to the completion of such a minimum term, or as soon thereafter as practicable.
(b) Following initial hearing, the Commission shall (1) set a presumptive release date (either by parole or by mandatory release) within fifteen years of the hearing; (2) set an effective date of parole; or (3) continue the prisoner to a fifteen year reconsideration hearing pursuant to § 2.14(c).
(c) Notwithstanding the above paragraph, a prisoner may not be paroled earlier than the completion of any judicially set minimum term of imprisonment or other period of parole ineligibility fixed by law.
(d) A presumptive parole date shall be contingent upon an affirmative finding by the Commission that the prisoner has a continued record of good conduct and a suitable release plan and shall be subject to the provisions of §§ 2.14 and 2.28. In the case of a prisoner sentenced under the Narcotic Addict Rehabilitation Act, 18 U.S.C. 4254, a presumptive parole date shall also be contingent upon certification by the Surgeon General pursuant to § 2.3 of these rules. Consideration of disciplinary infractions in cases with presumptive parole dates may be deferred until the commencement of the next in-person hearing or the prerelease record review required by § 2.14(b). While prisoners are encouraged to earn the restoration of forfeited or withheld good time, the Commission will consider the prisoner’s overall institutional record in determining whether the conditions of a presumptive parole date have been satisfied.
§ 2.13 Initial hearing; procedure.
(a) An initial hearing shall be conducted by a single hearing examiner unless the Regional Commissioner orders that the hearing be conducted by a panel of two examiners. The examiner shall discuss with the prisoner his offense severity rating and salient factor score as described in § 2.20, his institutional conduct and, in addition, any other matter the examiner may deem relevant.
(b) A prisoner may be represented at a hearing by a person of his or her choice. The function of the prisoner’s representative shall be to offer a statement at the conclusion of the interview of the prisoner by the examiner, and to provide such additional information as the examiner shall request. Interested parties who oppose parole may select a representative to appear and offer a statement. The hearing examiner shall limit or exclude any irrelevant or repetitious statement.
(c) At the conclusion of the hearing, the examiner shall discuss the decision to be recommended by the examiner and the reasons therefor, except in the extraordinary circumstance of a complex issue that requires further deliberation before a recommendation can be made. Written notice of the decision shall be mailed or transmitted to the prisoner within 21 days of the date of the hearing, except in emergencies. Whenever the Commission initially establishes a release date (or modifies the release date thereafter), the prisoner shall also receive in writing the reasons therefor.
(d) In accordance with 18 U.S.C. 4206, the reasons for establishment of a release date shall include a guidelines evaluation statement containing the prisoner’s offense severity rating and salient factor score (including the points credited on each item of such score) as described in § 2.20, as well as the specific factors and information relied upon for any decision outside the range indicated by the guidelines.
(e) No interviews with the Commission, or any representative thereof, shall be granted to a prisoner unless his name is docketed for a hearing in accordance with Commission procedures. Hearings shall not be open to the public.
(f) A full and complete record of every hearing shall be retained by the Commission. Upon a request, pursuant to § 2.56, the Commission shall make available to any eligible prisoner such record as the Commission has retained of the hearing.
§ 2.14 Subsequent proceedings.
(a) Interim proceedings. The purpose of an interim hearing required by 18 U.S.C. 4208(h) shall be to consider any significant developments or changes in the prisoner’s status that may have occurred subsequent to the initial hearing.
(1) Notwithstanding a previously ordered presumptive release date or fifteen year reconsideration hearing, interim hearings shall be conducted pursuant to the procedures of § 2.13(b), (c), (e), and (f) at the following intervals from the date of the last hearing:
(i) In the case of a prisoner with a maximum term or terms of less than seven years, every eighteen months (until released);
(ii) In the case of a prisoner with a maximum term or terms of seven years or more, every twenty-four months (until released);
(iii) In the case of a prisoner with an unsatisfied minimum term, the first interim hearing shall be scheduled under paragraphs (a)(1)(i) or (ii) of this section, or on the docket of hearings that is nine months prior to the month of parole eligibility, whichever is later.
(2) Following an interim hearing, the Commission may:
(i) Order no change in the previous decision;
(ii) Advance a presumptive release date, or the date of a fifteen year reconsideration hearing. However, it shall be the policy of the Commission that once set, a presumptive release date or the date of a fifteen year reconsideration hearing shall be advanced only:
(1) For superior program achievement under the provisions of § 2.60; or
(2) For other clearly exceptional circumstances.
(iii) Retard or rescind a presumptive parole date for reason of disciplinary infractions. In a case in which disciplinary infractions have occurred, the interim hearing shall be conducted in accordance with the procedures of § 2.34(c) through (f). (Prior to each interim hearing, prisoners shall be notified on the progress report furnished by the Bureau of Prisons that any finding of misconduct by the Discipline Hearing Officer since the previous hearing will be considered for possible action under this paragraph);
(iv) If a presumptive date falls within nine months after the date of an interim hearing, the Commission may treat the interim hearing as a prerelease review in lieu of the record review required by paragraph (b) of this section.
(b) Pre-release reviews. The purpose of a pre-release review shall be to determine whether the conditions of a presumptive release date by parole have been satisfied.
(1) At least sixty days prior to a presumptive parole date, the case shall be reviewed on the record, including a current institutional progress report.
(2) Following review, the Regional Commissioner may:
(i) Approve the parole date;
(ii) Advance or retard the parole date for purpose of release planning as provided by § 2.28(e);
(iii) Retard the parole date or commence rescission proceedings as provided by § 2.34;
(iv) Advance the parole date for superior program achievement under the provisions of § 2.60.
(3) A pre-release review pursuant to this section shall not be required if an in-person hearing has been held within nine months of the parole date.
(4) Where:
(i) There has been no finding of misconduct by an Institutional Disciplinary Committee nor any allegation of criminal conduct since the last hearing; and
(ii) No other modification of the release date appears warranted, the Executive Hearing Examiner may act for the Regional Commissioner under paragraph (b)(2) of this section to approve conversion of the presumptive parole date to an effective date of parole.
(c) Fifteen year reconsideration hearings. A fifteen year reconsideration hearing shall be a full reassessment of the case pursuant to the procedures at § 2.13.
(1) A fifteen year reconsideration hearing shall be ordered following initial hearing in any case in which a release date is not set.
(2) Following a fifteen year reconsideration hearing, the Commission may take any one of the actions authorized by § 2.12(b).
§ 2.15 Petition for consideration of parole prior to date set at hearing.
When a prisoner has served the minimum term of imprisonment required by law, the Bureau of Prisons may petition the responsible Regional Commissioner for reopening the case under § 2.28(a) and consideration for parole prior to the date set by the Commission at the initial or review hearing. The petition must show cause why it should be granted, i.e., an emergency, hardship, or the existence of other extraordinary circumstances that would warrant consideration of early parole.
§ 2.16 Parole of prisoner in state, local, or territorial institution.
(a) Any person who is serving a sentence of imprisonment for any offense against the United States, but who is confined therefor in a state reformatory or other state or territorial institution, shall be eligible for parole by the Commission on the same terms and conditions, by the same authority, and subject to recommittal for the violation of such parole, as though he were confined in a Federal penitentiary, reformatory, or other correctional institution.
(b) Federal prisoners serving concurrent state and Federal sentences in state, local, or territorial institutions shall be furnished upon request parole application forms. Upon receipt of the application and any supplementary classification material submitted by the institution, parole consideration shall be made by an examiner panel of the appropriate region on the record only. If such prisoner is released from his state sentence prior to a Federal grant of parole, he shall be given a personal hearing as soon as feasible after receipt at a Federal institution.
(c) Prisoners who are serving Federal sentences exclusively but who are being boarded in State, local, or territorial institutions may be provided hearings at such facilities or may be transferred by the Bureau of Prisons to Federal Institutions for hearings by examiner panels of the Commission.
§ 2.17 [Reserved]
§ 2.18 Granting of parole.
The granting of parole to an eligible prisoner rests in the discretion of the U.S. Parole Commission. As prerequisites to a grant of parole, the Commission must determine that the prisoner has substantially observed the rules of the institution or institutions in which he has been confined; and upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, must determine that release would not depreciate the seriousness of his offense or promote disrespect for the law, and that release would not jeopardize the public welfare (i.e., that there is a reasonable probability that, if released, the prisoner would live and remain at liberty without violating the law or the conditions of his parole).
§ 2.19 Information considered.
(a) In making a parole or reparole determination the Commission shall consider, if available and relevant:
(1) Reports and recommendations which the staff of the facility in which such prisoner is confined may make;
(2) Official reports of the prisoner’s prior criminal record, including a report or record of earlier probation and parole experiences;
(3) Pre-sentence investigation reports;
(4) Recommendations regarding the prisoner’s parole made at the time of sentencing by the sentencing judge and prosecuting attorney;
(5) Reports of physical, mental, or psychiatric examination of the offender; and
(6) A statement, which may be presented orally or otherwise, by any victim of the offense for which the prisoner is imprisoned about the financial, social, psychological, and emotional harm done to, or loss suffered by such victim.
(b)(1) There shall also be taken into consideration such additional relevant information concerning the prisoner (including information submitted by the prisoner) as may be reasonably available (18 U.S.C. 4207). The Commission encourages the submission of relevant information concerning an eligible prisoner by interested persons.
(2) To permit adequate review of information concerning the prisoner, materials submitted to the Commission should be received by the Commission no later than the first day of the month preceding the month of the scheduled hearing docket.
(3) If material of more than six (6), double-spaced, letter-sized pages is first submitted at the time of the hearing (or preliminary interview) and the hearing panel (or person conducting the hearing or preliminary interview) concludes that it is not feasible to read all the material at that time, the person submitting the material will be permitted to summarize it briefly at the hearing (or preliminary interview). All of the material submitted will become part of the record to be considered by the Commission in its review of the proceedings.
(4) The Commission will normally consider only verbal and written evidence at hearings. Recorded audio and visual material will be reviewed at hearings only if there is no adequate substitute to permit a finding under paragraph (c) of this section. Otherwise, recorded audio and visual material should be submitted prior to the hearing for review and summarization, pursuant to paragraph (b)(2) of this section.
(c) The Commission may take into account any substantial information available to it in establishing the prisoner’s offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond. If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard; that is, the Commission shall rely upon such information only to the extent that it represents the explanation of the facts that best accords with reason and probability. If the Commission is given evidence of criminal behavior that has been the subject of an acquittal in a federal, state, or local court, the Commission may consider that evidence if:
(1) The Commission finds that it cannot adequately determine the prisoner’s suitability for release on parole, or to remain on parole, unless the evidence is taken into account;
(2) The Commission is satisfied that the record before it is adequate notwithstanding the acquittal;
(3) The prisoner has been given the opportunity to respond to the evidence before the Commission; and
(4) The evidence before the Commission meets the preponderance standard.
(d) Recommendations and information from sentencing judges, defense attorneys, prosecutors, and other interested parties are welcomed by the Commission. In evaluating a recommendation concerning parole, the Commission must consider the degree to which such recommendation provides the Commission with specific facts and reasoning relevant to the statutory criteria for parole (18 U.S.C. 4206) and the application of the Commission’s guidelines (including reasons for departure therefrom). Thus, to be most helpful, a recommendation should state its underlying factual basis and reasoning. However, no recommendation (including a prosecutorial recommendation pursuant to a plea agreement) may be considered as binding upon the Commission’s discretionary authority to grant or deny parole.
§ 2.20 Paroling policy guidelines: Statement of general policy.
(a) To establish a national paroling policy, promote a more consistent exercise of discretion, and enable fairer and more equitable decision-making without removing individual case consideration, the U.S. Parole Commission has adopted guidelines for parole release consideration.
(b) These guidelines indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics. The time ranges specified by the guidelines are established specifically for cases with good institutional adjustment and program progress.
(c) These time ranges are merely guidelines. Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered.
(d) The guidelines contain instructions for the rating of certain offense behaviors. However, especially mitigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed.
(e) An evaluation sheet containing a “salient factor score” serves as an aid in determining the parole prognosis (potential risk of parole violation). However, where circumstances warrant, clinical evaluation of risk may override this predictive aid.
(f) Guidelines for reparole consideration are set forth at § 2.21.
(g) The Commission shall review the guidelines, including the salient factor score, periodically and may revise or modify them at any time as deemed appropriate.
(h) If an offender was less than 18 years of age at the time of the current offense, such youthfulness shall, in itself, be considered as a mitigating factor.
(i) For criminal behavior committed while in confinement see § 2.36 (Rescission Guidelines).
(j)(1) In probation revocation cases, the original federal offense behavior and any new criminal conduct on probation (federal or otherwise) is considered in assessing offense severity. The original federal conviction is also counted in the salient factor score as a prior conviction. Credit is given toward the guidelines for any time spent in confinement on any offense considered in assessing offense severity.
(2) Exception: Where probation has been revoked on a complex sentence (i.e., a committed sentence of more than six months on one count or more of an indictment or information followed by a probation term on other count(s) of an indictment or information), the case shall be considered for guideline purposes under § 2.21 as if parole rather than probation had been revoked.
Guidelines for Decisionmaking
[Guidelines for decisionmaking, customary total time to be served before release (including jail time)]
| Offense characteristics: Severity of offense behavior | Offender characteristics: Parole prognosis (salient factor score 1998) | |||
|---|---|---|---|---|
| Very good (10 to 8) | Good (7 to 6) | Fair (5 to 4) | Poor (3 to 0) | |
| Guideline range (months) | ||||
| Category: | ||||
| 1 | ≤= 4 | ≤=8 | 8-12 | 12-16 |
| 2 | ≤=6 | ≤=10 | 12-16 | 16-22 |
| 3 | ≤=10 | 12-16 | 18-24 | 24-32 |
| 4 | 12-18 | 20-26 | 26-34 | 34-44 |
| 5 | 24-36 | 36-48 | 48-60 | 60-72 |
| 6 | 40-52 | 52-64 | 64-78 | 78-100 |
| 7 | 52-80 | 64-92 | 78-110 | 100-148 |
| 8 1 | 100+ | 120+ | 150+ | 180+ |
1 Note: For Category Eight, no upper limits are specified due to the extreme variability of the cases within this category. For decisions exceeding the lower limit of the applicable guideline category by more than 48 months, the Commission will specify the pertinent case factors upon which it relied in reaching its decision, which may include the absence of any factors mitigating the offense. This procedure is intended to ensure that the prisoner understands that individualized consideration has been given to the facts of the case, and not to suggest that a grant of parole is to be presumed for any class of Category Eight offenders. However, a murder committed to silence a victim or witness, a contract murder, a murder by torture, the murder of a law enforcement officer to carry out an offense, or a murder committed to further the aims of an on-going criminal operation, shall not justify a grant of parole at any point in the prisoner’s sentence unless there are compelling circumstances in mitigation (
Grade conspiracy in the same category as the underlying offense.
Grade attempt in the same category as the offense attempted.
Grade aiding and abetting in the same category as the underlying offense.
Grade accessory after the fact as two categories below the underlying offense, but not less than Category One.
Grade solicitation to commit a crime of violence in the same category as the underlying offense if the crime solicited would be graded as Category Eight. In all other cases grade solicitation to commit a crime of violence one category below the underlying offense, but not less than Category One.
The reasons for a conspiracy or attempt not being completed may, where the circumstances warrant, be considered as a mitigating factor (e.g., where there is voluntary withdrawal by the offender prior to completion of the offense).
Murder, or a forcible felony*
*Terms marked by an asterisk are defined in Chapter Thirteen.
Category Seven.
Category Four.
(a) If serious bodily injury* results or if ‘serious bodily injury is the result intended’*, grade as Category Seven;
(b) If bodily injury* results, or a weapon is fired by any offender, grade as Category Six;
(c) Otherwise, grade as Category Five.
(a) If serious bodily injury* results or if ‘serious bodily injury is the result intended’*, grade as Category Seven;
(b) If bodily injury* results or a dangerous weapon is used by any offender, grade as Category Five;
(c) Otherwise, grade as Category Two;
(d) Exception: (1) If the victim was known to be a “protected person” * or law enforcement, judicial, or correctional official, grade conduct under (a) as Category Seven, (b) as Category six, and (c) as Category Three.
(2) If an assault is committed while resisting an arrest or detention initiated by a law enforcement officer or a civilian acting under color of law, grade conduct under (a) as Category Seven, (b) as Category Six, and (c) as Category Three.
213 Firing a Weapon at a Structure Where Occupants are Physically Present
Grade according to the underlying offense if one can be established, but not less than Category Five.
(a) If the purpose of the kidnaping is for ransom or terrorism, grade as Category Eight;
(b) If a person is held hostage in a known place for purposes of extortion (e.g., forcing a bank manager to drive to a bank to retrieve money by holding a family member hostage at home), grade as Category Seven;
(c) If a victim is used as a shield or hostage in a confrontation with law enforcement authorities, grade as Category Seven;
(d) Otherwise, grade as Category Seven.
(e) Exception: If not for ransom or terrorism, and no bodily injury to victim, and limited duration (e.g., abducting the driver of a truck during a hijacking and releasing him unharmed within an hour), grade as Category Six.
(a) If a kidnapping has, in fact, occurred, but it is established that the offender was not acting in concert with the kidnapper(s), grade as Category Seven;
(b) If no kidnapping has occurred, grade as “extortion”.
(a) Category Seven.
(b) Exception: If a prior consensual sexual relationship between victim and offender is present, grade as Category Six.
(a) Grade as Category Four, except as provided below.
(b) If the relationship is clearly consensual and the victim is at least fourteen years old, and the age difference between the victim and offender is less than four years, grade as Category One.
(c) If the victim is less than twelve years old, grade as Category Seven.
(d) If the offender is an adult who has abused a position of trust (e.g., teacher, counselor, or physician), or the offense involved predatory sexual behavior, grade as Category Seven. Sexual behavior is deemed predatory when the offender repeatedly uses any trick or other device to attract, lure, or bribe victims into the initial contact that results in the offense.
(a) Category Four
(b) Exception: If the victim is less than twelve years old grade as Category Six.
Category Eight.
(a) If the conduct or attempted conduct has potential for creating a significant safety risk to an aircraft or passengers, grade as Category Seven.
(b) Otherwise, grade as Category Two.
(a) Category Four;
(b) Notes:
(1) Any overt act committed for the purposes of carrying out a threat in this subchapter may be considered as an aggravating factor.
(2) If for purposes of extortion or obstruction of justice, grade according to Chapter Three, subchapter C, or Chapter Six, subchapter B, as applicable.
(a) If the conduct results in serious bodily injury* or if ‘serious bodily injury is the result intended’*, grade as Category Seven;
(b) If the conduct (i) involves any place where persons are present or likely to be present; or (ii) involves a residence, building, or other structure; or (iii) results in bodily injury*, grade as Category Six;
(c) Otherwise, grade as “property destruction other than listed above” but not less than Category Five.
Category Seven.
(a) If the conduct results in bodily injury *
* Terms marked by an asterisk are defined in Chapter Thirteen.
(b) If damage of more than $5,000,000 is caused, grade as Category Seven;
(c) If damage of more than $1,000,000 but not more than $5,000,000 is caused, grade as Category Six;
(d) If damage of more than $200,000 but not more than $1,000,000 is caused, grade as Category Five;
(e) If damage of at least $40,000 but not more than $200,000 is caused, grade as Category Four;
(f) If damage of at least $2,000 but less than $40,000 is caused, grade as Category Three;
(g) If damage of less than $2,000 is caused, grade as Category One;
(h) Exception: If a significant interruption of a government or public utility function is caused, grade as not less than Category Three.
(a) If the conduct involves an armory or similar facility (e.g., a facility where automatic weapons or war materials are stored) for the purpose of theft or destruction of weapons or war materials, grade as Category Six;
(b) If the conduct involves an inhabited dwelling (whether or not a victim is present), or any premises with a hostile confrontation with a victim, grade as Category Five;
(c) If the conduct involves use of explosives or safecracking, grade as Category Five;
(d) Otherwise, grade as “theft” offense, but not less than Category Two.
(e) Exception: If the grade of the applicable “theft” offense exceeds the grade under this subchapter, grade as a “theft” offense.
(a) Category Five.
(b) Exceptions:
(1) If the grade of the applicable “theft” offense exceeds the grade for robbery, grade as a “theft” offense.
(2) If any offender forces a victim to accompany any offender to a different location, or if a victim is forcibly detained by being tied, bound, or locked up, grade as Category Six.
(3) Pickpocketing (stealth—no force or fear), see subchapter D.
(c) Note: Grade purse snatching (fear or force) as robbery.
(a) If by threat of physical injury to person or property, or extortionate extension of credit (loansharking), grade as Category Five;
(b) If by use of official governmental position, grade according to Chapter Six, subchapter C.
(c) If neither (a) nor (b) is applicable, grade under Chapter Eleven, subchapter F;
Grade as a “theft” offense according to the value of the property demanded, but not less than Category Three. Actual damage to reputation may be considered as an aggravating factor.
(a) If the value of the property* is more than $5,000,000, grade as Category Seven;
(b) If the value of the property*
*Terms marked by an asterisk are defined in Chapter Thirteen.
(c) If the value of the property* is more than $200,000 but not more than $1,000,000, grade as Category Five;
(d) If the value of the property* is at least $40,000 but not more than $200,000, grade as Category Four;
(e) If the value of the property* is at least $2,000 but less than $40,000, grade as Category Three;
(f) If the value of the property* is less than $2,000, grade as Category One.
(g) Exceptions:
(1) Offenses involving stolen checks, credit cards, money orders or mail, forgery, fraud, interstate transportation of stolen or forged securities, trafficking in stolen property, or embezzlement shall be graded as not less than Category Two;
(2) Theft of an automobile shall be graded as no less than Category Three. Note: where the vehicle was recovered within 72 hours with no significant damage and the circumstances indicate that the only purpose of the theft was temporary use (e.g., joyriding), such circumstances may be considered as a mitigating factor.
(3) Grade obtaining drugs for own use by a fraudulent or fraudulently obtained prescription as Category Two.
(4) Grade manufacture, sale, and fraudulent use of credit cards as follows:
(i) Grade the manufacture, distribution or possession of counterfeit or altered credit cards as not less than Category Four.
(ii) Grade the distribution or possession of multiple stolen credit cards as not less than Category Three.
(iii) Grade the distribution or possession of a single stolen credit card as not less than Category Two.
(h) Note: In “theft” offenses, the total amount of the theft committed or attempted by the offender, or others acting in concert with the offender, is to be used.
(2) Grade fraudulent sale of drugs (e.g., sale of sugar as heroin) as ‘fraud’.
Grade as a “theft” offense, but not less than Category Three.
Grade as a “fraud” offense according to the amount of the loan.
(a) If for purposes of committing another offense, grade according to the offense intended;
(b) Otherwise, grade as Category Two.
(a) If very large scale (e.g., more than 100,000 sound recordings or more than 10,000 audio visual works), grade as Category Five;
(b) If large scale (e.g., 20,000-100,000 sound recordings or 2,000-10,000 audio visual works), grade as Category Four;
(c) If medium scale (e.g., 2,000-19,999 sound recordings or 200-1,999 audio visual works), grade as Category Three;
(d) If small scale (e.g., less than 2,000 sound recordings or less than 200 audio visual works), grade as Category Two.
(a) If the face value of the currency or other medium of exchange is more than $5,000,000, grade as Category Seven;
(b) If the face value of the currency or other medium of exchange is more than $1,000,000 but not more than $5,000,000, grade as Category Six;
(c) If the face value is more than $200,000 but not more than $1,000,000, grade as Category Five;
(d) If the face value is at least $40,000 but not more than $200,000, grade as Category Four;
(e) If the face value is at least $2,000 but less than $40,000, grade as Category Three;
(f) If the face value is less than $2,000, grade as Category Two.
Grade manufacture or possession of instruments for manufacture (e.g., a printing press or plates) according to the quantity printed (see passing or possession)), but not less than Category Five. The term manufacture refers to the capacity to print or generate multiple copies; it does not apply to pasting together parts of different notes.
Grade as a “fraud” offense.
(a) If for purposes of fraud, grade according to the underlying offense;
(b) Otherwise, grade as Category Two.
(a) If estimated economic impact is more than one million dollars, grade as Category Four;
(b) If the estimated economic impact is more than $100,000 but not more than one million dollars, grade as Category Three;
(c) Otherwise, grade as Category Two.
(d) Note: The term ‘economic impact’ refers to the estimated loss to any victims (e.g., loss to consumers from a price fixing offense).
(a) If the estimated economic impact is more than $5,000,000, grade as Category Seven;
(b) If the estimated economic impact is more than $1,000,000 but not more than $5,000,000, grade as Category Six;
(c) If the estimated economic impact is more than $200,000 but not more than $1,000,000, grade as Category Five;
(d) If the estimated economic impact is at least $40,000 but not more than $200,000, grade as Category Four;
(e) If the estimated economic impact is at least $2,000 but less than $40,000, grade as Category Three;
(f) If the estimated economic impact is less than $2,000, grade as Category Two.
(g)
Category One.
(a) If the transportation of unlawful alien(s) involves detention and demand for payment, grade as Category Five;
(b) Otherwise, grade as Category Three.
(a) If making an unlawful passport for distribution to another, possession with intent to distribute, or distribution of an unlawful passport, grade as Category Three;
(b) If fraudulently acquiring or improperly using a passport, grade as Category Two.
(a) If forging or falsifying naturalization or citizenship papers for distribution to another, possession with intent to distribute, or distribution, grade as Category Three;
(b) If acquiring fraudulent naturalization or citizenship papers for own use or improper use of such papers, grade as Category Two;
(c) If failure to surrender canceled naturalization or citizenship certificate(s), grade as Category One.
(a) If the amount of tax evaded or evasion attempted is more than $5,000,000, grade as Category Seven;
(b) If the amount of tax evaded or evasion attempted is more than $1,000,000 but not more than $5,000,000, grade as Category Six;
(c) If the amount of tax evaded or evasion attempted is more than $200,000 but not more than $1,000,000, grade as Category Five;
(d) If the amount of tax evaded or evasion attempted is at least $40,000 but not more than $200,000, grade as Category Four;
(e) If the amount of tax evaded or evasion attempted is at least $2,000 but less than $40,000, grade as Category Three;
(f) If the amount of tax evaded or evasion attempted is less than $2,000, grade as Category One.
(g) Notes:
(1) Grade according to the amount of tax evaded or evasion attempted, not the gross amount of income.
(2) Tax evasion refers to failure to pay applicable taxes. Grade a false claim for a tax refund (where tax has not been withheld) as a “fraud” offense.
Grade as a “tax evasion” offense.
(a) If the conduct is for the purpose of tax evasion, grade as a ‘tax evasion’ offense.
(b) If the article is prohibited from entry to the country absolutely (e.g., illicit drugs or weapons), use the grading applicable to possession with intent to distribute of such articles, or the grading applicable to tax evasion, whichever is higher, but not less than Category Two;
(c) If the conduct involves breaking seals, or altering or defacing customs marks, or concealing invoices, grade according to (a) or (b), as applicable, but not less than Category Two.
Category Two.
Grade as a tax evasion offense.
(a) If for purposes of commission of another offense, grade according to the offense attempted, but not less than Category Two;
(b) Otherwise, grade as Category Two.
(a) If the perjured testimony concerns a criminal offense, grade as accessory after the fact, but not less than Category Three;
(b) Otherwise, grade as Category Three.
(c) Suborning perjury, grade as perjury.
Category One.
(a) If concerning a criminal offense, grade as accessory after the fact, but not less than Category Three.
(b) Otherwise, grade as Category Three.
(c) Exception: Intimidation by threat of physical harm, grade as not less than Category Five.
Grade as if “accessory after the fact” but not higher than Category Three.
Grade as if ‘accessory after the fact’ to the offense for which the fugitive is wanted, but not higher than Category Three.
If in connection with another offense for which a severity rating can be assessed, grade the underlying offense and apply the rescission guidelines to determine an additional penalty. Otherwise, grade as Category Three.
(a) In Felony Proceedings. If in connection with an offense for which a severity rating can be assessed, add to the guidelines otherwise appropriate the following: (i) ≤6 months if voluntary return within 6 days, or (ii) 6-12 months in any other case. Otherwise, grade as Category Three.
(b) In Misdemeanor Proceedings. Grade as Category One.
(c) Note: For purposes of this subsection, a misdemeanor is defined as an offense for which the maximum penalty authorized by law (not necessarily the penalty actually imposed) does not exceed one year.
(a) Criminal Contempt (re: 18 U.S.C. 402). Where imposed in connection with a prisoner serving a sentence for another offense, add
(b) Exception: If a criminal sentence is imposed under 18 U.S.C. 401 for refusal to testify concerning a criminal offense, grade such conduct as if accessory after the fact.
(c) Civil Contempt. See 28 CFR 2.10.
(a) Grade as a “theft offense” according to the value of the bribe demanded or received, or the favor received by the bribe-giver (whichever is greater), but not less than Category Three. The “favor received” is the gross value of the property, contract, obligation, interest, or payment intended to be awarded to the bribe-giver in return for the bribe. Grade the bribe-taker in the same manner.
(b) If the above conduct involves a pattern of corruption (e.g., multiple instances), grade as not less than Category Four.
(c) If the purpose of the conduct is the obstruction of justice, grade as if “perjury”.
(d) Notes:
(1) The grading in this subchapter applies to each party to a bribe.
(2) The extent to which the criminal conduct involves a breach of public trust, causing injury beyond that describable by monetary gain, may be considered as an aggravating factor.
Category Two.
Category Four.
(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if “assault”.
(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if “assault”.
(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if “assault”.
(a) If death results, grade as Category Eight;
(b) Otherwise, grade as if “assault”.
Category Two.
Category Two.
(a) Category Three.
(b) Exception: If simple possession, grade as Category Two.
Category Two.
Grade according to offense intended, but not less than Category Five.
Grade according to offense intended, but not less than Category Five.
(a) If single weapon (rifle, shotgun, or handgun) with ammunition of the same caliber, or ammunition of a single caliber (without weapon), grade as Category Three;
(b) If multiple weapons (rifles, shotguns, or handguns), or ammunition of different calibers, or single weapon and ammunition of a different caliber, grade as Category Four.
(a) If silencer or “assassination kit”, grade as Category Six;
(b) If sawed-off shotgun or machine gun, grade as Category Five.
(a) If silencer(s) or “assassination kit(s)”, grade as Category Six;
(b) If sawed-off shotgun(s) or machine gun(s), grade as Category Five;
(c) If multiple weapons (rifles, shotguns, or handguns), or ammunition of different calibers, or single weapon and ammunition of a different caliber, grade as Category Four;
(d) If single weapon (rifle, shotgun, or handgun) with ammunition of the same caliber, or ammunition of a single caliber (without weapon), grade as Category Three.
(a) If extremely large scale (e.g., involving 3 kilograms or more of 100% pure heroin, or equivalent amount), grade as Category Eight [except as noted in (c) below];
(b) if very large scale (e.g., involving 1 kilogram but less than 3 kilograms of 100% pure heroin, or equivalent amount), grade as Category Seven [except as noted in (c) below];
(c) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (a) or (b) as Category Six;
(d) If large scale (e.g., involving 50-999 grams of 100% pure heroin, or equivalent amount), grade as Category Six [except as noted in (e) below];
(e) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (d) as Category Five.
(f) If medium scale (e.g., involving 5-49 grams of 100% pure heroin, or equivalent amount), grade as Category Five;
(g) If small scale (e.g., involving less than 5 grams of 100% pure heroin, or equivalent amount), grade as Category Four;
Category One.
(a) If extremely large scale (e.g., involving 20,000 pounds or more of marihuana/6,000 pounds or more of hashish/600 pounds or more of hash oil), grade as Category Six [except as noted in (b) below];
(b) Where the Commission finds that the offender had only a peripheral role, grade* conduct under (a) as Category Five;
(c) If very large scale (e.g., involving 2,000-19,999 pounds of marihuana/600-5,999 pounds of hashish/60-599 pounds of hash oil), grade as Category Five;
(d) If large scale (e.g., involving 200-1,999 pounds of marihuana/60-599 pounds of hashish/6-59.9 pounds of hash oil), grade as Category Four;
(e) If medium scale (e.g., involving 50-199 pounds of marihuana/15-59.9 pounds of hashish/1.5-5.9 pounds of hash oil), grade as Category Three;
(f) If small scale (e.g., involving 10-49 pounds of marihuana/3-14.9 pounds of hashish/.3-1.4 pounds of hash oil), grade as Category Two;
(g) If very small scale (e.g., involving less than 10 pounds of marihuana/less than 3 pounds of hashish/less than .3 pounds of hash oil), grade as Category One.
Category One.
(a) If extremely large scale (e.g., involving 15 kilograms or more of 100% purity, or equivalent amount; or 1.5 kilograms or more of freebased cocaine), grade as Category Eight [except as noted in (c) below];
(b) If very large scale (e.g., involving 5 kilograms, but less than 15 kilograms of 100% purity, or equivalent amount; or 500 grams but less than 1.5 kilograms of freebased cocaine), grade as Category Seven [except as noted in (c) below];
(c) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (a) or (b) as Category Six;
(d) If large scale (e.g., involving more than 1 kilogram, but less than 5 kilograms of 100% purity, or equivalent amount; or more than 100 grams, but less than 500 grams of freebased cocaine) grade as Category Six [except as noted in (e) below];
(e) Where the Commission finds that the offender had only a peripheral role, grade conduct under (d) as Category Five;
(f) If medium scale (e.g., involving 100 grams-1 kilogram of 100% purity, or equivalent amount; or 10 grams-100 grams of freebased cocaine), grade as Category Five;
(g) If small scale (e.g., involving 5-99 grams of 100% purity, or equivalent amount; or 1 gram-9.9 grams of freebased cocaine), grade as Category Four;
(h) If very small scale (e.g., involving less than 1.0-4.9 grams of 100% purity, or equivalent amount; or less than 1 gram of freebased cocaine), grade as Category Three;
(i) If extremely small scale (e.g., involving less than 1 gram of 100% purity, or equivalent amount), grade as Category Two.
Category One.
(a) If very large scale (e.g., involving more than 200,000 doses), grade as Category Six [except as noted in (b) below];
(b) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (a) as Category Five;
(c) If large scale (e.g., involving 20,000-200,000 doses), grade as Category Five;
(d) If medium scale (e.g., involving 1,000-19,999 doses), grade as Category Four;
(e) If small scale (e.g., involving 200-999 doses), grade as Category Three;
(f) If very small scale (e.g., involving less than 200 doses), grade as Category Two.
Category One.
(1) Grade manufacture of synthetic illicit drugs as listed above, but not less than Category Five.
(2) “Equivalent amounts” for the cocaine and opiate categories may be computed as follows: 1 gram of 100% pure is equivalent to 2 grams of 50% pure and 10 grams of 10% pure, etc.
(3) Grade unlawful possession or distribution of precursors of illicit drugs as Category Five (i.e., aiding and abetting the manufacture of synthetic illicit drugs).
(4) If weight, but not purity is available, the following grading may be used:
Category Eight.
Category Seven.
Category Eight.
(a) In time of war or during a national defense emergency, grade as Category Four;
(b) Otherwise, grade as Category Three.
Category One.
Category Eight.
(a) If committed during time of war or during a national defense emergency, grade as Category Four;
(b) If committed when draftees are being inducted into the armed services, grade as Category Three;
(c) Otherwise, grade as Category One.
Unauthorized production, possession, or transfer of nuclear weapons or special nuclear material or receipt of or tampering with restricted data on nuclear weapons or special nuclear material, grade as Category Eight.
Grade conduct involving “national security controls” or “nuclear nonproliferation controls” as Category Six.
(a) Grade conduct involving export of sophisticated weaponry (e.g., aircraft, helicopters, armored vehicles, or “high technology” items) as Category Six.
(b) Grade Conduct involving export of other weapons (e.g., rifles, handguns, machine guns, or hand grenades) as if a weapons/explosive distribution offense under Offenses Involving Explosives and Weapons (Chapter Eight).
Grade according to the underlying offense attempted, but not less than Category Five.
Grade according to the underlying offense attempted, but not less than Category Three.
(a) If large scale operation [e.g., Sports books (estimated daily gross more than $15,000); Horse books (estimated daily gross more than $4,000); Numbers bankers (estimated daily gross more than $2,000); Dice or card games (estimated daily ‘house cut’ more than $1,000); video gambling (eight or more machines)]; grade as Category Four;
(b) If medium scale operation [e.g., Sports books (estimated daily gross $5,000—$15,000); Horse books (estimated daily gross $1,500—$4,000); Numbers bankers (estimated daily gross $750—$2,000); Dice or card games (estimated daily ‘house cut’ $400—$1,000); video gambling (four-seven machines)]; grade as Category Three;
(c) If small scale operation [e.g., Sports books (estimated daily gross less than $5,000); Horse books (estimated daily gross less than $1,500); Numbers bankers (estimated daily gross less than $750); Dice or card games (estimated daily ‘house cut’ less than $400); video gambling (three or fewer machines)]; grade as Category Two;
(d) Exception: Where it is established that the offender had no proprietary interest or managerial role, grade as Category One.
Grade as if ‘operating a gambling business’.
Grade as if “operating a gambling business”.
Category Three.
(a) Grade as if “operating a gambling business”;
(b) Exception: If non-commercial, grade as Category One.
(a) If for commercial purposes, grade as Category Three;
(b) Otherwise, Category One.
Category One.
(a) Category Six;
(b) Exception: Where the Commission finds the offender had only a peripheral role (e.g., a retailer receiving such material for resale but with no involvement in the production or wholesale distribution of such material), grade as Category Five.
(a) If physical coercion, or involving person(s) of age less than 18, grade as Category Six;
(b) Otherwise, grade as Category Four.
1142 Prostitution
Category One.
Grade as if a fraud offense according to (1) the amount of the bribe offered or demanded, or (2) the financial loss to the victim, whichever is higher.
If the conduct involves bribery in a sporting contest, grade as if a theft offense according to the amount of the bribe, but not less than Category Three.
(a) If extremely large scale (e.g., the estimated gross amount of currency involved is more than $5,000,000), grade as Category Seven;
(b) If very large scale (e.g., the estimated gross amount of currency involved is more than $1,000,000 but not more than $5,000,000), grade as Category Six;
(c) If large scale (e.g., the estimated gross amount of currency involved is more than $200,000 but not more than $1,000,000), grade as Category Five;
(d) If medium scale (e.g., the estimated gross amount of currency involved is at least $40,000 but not more than $200,000), grade as Category Four;
(e) If small scale (e.g., the estimated gross amount of currency involved is less than $40,000), grade as Category Three.
(a) If death results, grade as Category Seven;
(b) If serious bodily injury results, grade as Category Six;
(c) Otherwise, grade as Category Five.
(d) Note: Knowing Endangerment requires a finding that the offender knowingly transported, treated, stored, or disposed of any hazardous waste and knew that he thereby placed another person in imminent danger of death or serious bodily injury.
(a) If death results, grade as Category Six;
(b) If (1) serious bodily injury results; or (2) a substantial potential for death or serious bodily injury in the future results; or (3) a substantial disruption to the environment results (e.g., estimated cleanup cost exceeds $200,000, or a community is evacuated for more than 72 hours), grade as Category Five;
(c) If (1) bodily injury results, or (2) a significant disruption to the environment results (e.g., estimated cleanup costs of $40,000-$200,000, or a community is evacuated for 72 hours or less), grade as Category Four;
(d) Otherwise, grade as Category Three;
(e) Exception: Where the offender is a non-managerial employee (i.e., a truck driver or loading dock worker) acting under the orders of another person, grade as two categories below the underlying offense, but not less than Category One.
If an offense behavior is not listed, the proper category may be obtained by comparing the severity of the offense behavior with those of similar offense behaviors listed in Chapters One-Eleven. If, and only if, an offense behavior cannot be graded by reference to Chapters One-Eleven, the following formula may be used as a guide.
| Maximum sentence authorized by statute (not necessarily the sentence imposed) | Grading (category) |
|---|---|
| 1 | |
| 2 to 3 years | 2 |
| 4 to 5 years | 3 |
| 6 to 10 years | 4 |
| 11 to 20 years | 5 |
| 21 to 29 years | 6 |
| 30 years to life | 7 |
1. If an offense behavior can be classified under more than one category, the most serious applicable category is to be used.
2. If an offense behavior involved multiple separate offenses, the severity level may be increased. Exception: in cases graded as Category Seven, multiple separate offenses are to be taken into account by consideration of a decision above the guidelines rather than by increasing the severity level.
(a) In certain instances, the guidelines specify how multiple offenses are to be rated. In offenses rated by monetary loss (e.g., theft and related offenses, counterfeiting, tax evasion) or drug offenses, the total amount of the property or drugs involved is used as the basis for the offense severity rating. In instances not specifically covered in the guidelines, the decision-makers must exercise discretion as to whether or not the multiple offense behavior is sufficiently aggravating to justify increasing the severity rating. The following chart is intended to provide guidance in assessing whether the severity of multiple offenses is sufficient to raise the offense severity level; it is not intended as a mechanical rule.
Multiple Separate Offenses
| Severity | Points | Severity | Points |
|---|---|---|---|
| Category One | = 1/9 | Category Five | = 9 |
| Category Two | = 1/3 | Category Six | = 27 |
| Category Three | = 1 | Category Seven | = 45 |
| Category Four | = 3 |
(b) The term ‘multiple separate offenses’ generally refers to offenses committed at different times. However, there are certain circumstances in which offenses committed at the same time are properly considered multiple separate offenses for the purpose of establishing the offense severity rating. These include (1) unrelated offenses, and (2) offenses involving the unlawful possession of weapons during commission of another offense.
(c) For offenses graded according to monetary value (e.g., theft) and drug offenses, the severity rating is based on the amount or quantity involved and not on the number of separate instances.
(d) Intervening Arrests. Where offenses ordinarily graded by aggregation of value/quantity (e.g., property or drug offenses) are separated by an intervening arrest, grade (1) by aggregation of value/quantity or (2) as multiple separate offenses, whichever results in a higher severity category.
(e) Income Tax Violations Related to Other Criminal Activity. Where the circumstances indicate that the offender’s income tax violations are related to failure to report income from other criminal activity (e.g., failure to report income from a fraud offense) grade as tax evasion or according to the underlying criminal activity established, whichever is higher. Do not grade as multiple separate offenses.
3. In cases where multiple sentences have been imposed (whether consecutive or concurrent, and whether aggregated or not) an offense severity rating shall be established to reflect the overall severity of the underlying criminal behavior. This rating shall apply whether or not any of the component sentences have expired.
4. The prisoner is to be held accountable for his own actions and actions done in concert with others; however, the prisoner is not to be held accountable for activities committed by associates over which the prisoner has no control and could not have been reasonably expected to foresee. However, if the prisoner has been convicted of a conspiracy, he must be held accountable for the criminal activities committed by his co-conspirators, provided such activities were committed in furtherance of the conspiracy and subsequent to the date the prisoner joined the conspiracy, except in the case of an independent, small-scale operator whose role in the conspiracy was neither established nor significant. An offender has an “established” role in a conspiracy if, for example, he takes orders to perform a function that assists others to further the objectives of the conspiracy, even if his activities did not significantly contribute to those objectives. For such offenders, however, a “peripheral role” reduction may be considered.
5. The following are examples of circumstances that may be considered as aggravating factors: extreme cruelty or brutality to a victim; the degree of permanence or likely permanence of serious bodily injury resulting from the offender’s conduct; an offender’s conduct while attempting to evade arrest that causes circumstances creating a significant risk of harm to other persons (e.g., causing a high speed chase or provoking the legitimate firing of a weapon by law enforcement officers).
6. The phrase “may be considered an aggravating/mitigating factor” is used in this index to provide guidance concerning certain circumstances which may warrant a decision above or below the guidelines. This does not restrict consideration of above or below guidelines decisions only to these circumstances, nor does it mean that a decision above or below the guidelines is mandated in every such case.
1. “Accessory after the fact” refers to the conduct of one who, knowing an offense has been committed, assists the offender to avoid apprehension, trial, or punishment (e.g., by assisting in disposal of the proceeds of an offense).
Where the conduct consists of concealing an offense by making false statements not under oath, grade as “misprision of felony”. Where the conduct consists of haboring a fugitive, grade as “harboring a fugitive”.
2. “Assassination kit” refers to a disguised weapon designed to kill without attracting attention. Unlike other weapons such as sawed-off shotguns which can be used to intimidate, assassination kits are intended to be undetectable in order to make the victim and bystanders unaware of the threat. A typical assassination kit is usually, but not always, a firearm with a silencer concealed in a briefcase or similar disguise and fired without showing the weapon.
3. “Bodily injury” refers to injury of a type normally requiring medical attention [e.g., broken bone(s), laceration(s) requiring stitches, severe bruises].
4. “Carnal knowledge” refers to sexual intercourse with a female who is less than 16 years of age and is not the wife of the offender.
5. “Extortionate extension of credit” refers to any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.
6. “Failure to appear” refers to the violation of court imposed conditions of release pending trial, appeal, or imposition or execution of sentence by failure to appear before the court or to surrender for service of sentence.
7. “Forcible felony” includes, but shall not be limited to, kidnapping, rape or sodomy, aircraft piracy or interference with a flight crew, arson or property destruction offenses, escape, robbery, extortion, or criminal entry offenses, and attempts to commit such offenses.
8. “Involuntary manslaughter” refers to the unlawful killing of a human being without malice in the commission of an unlawful act not amounting to a felony, or in the commission in a unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
9. “Misprision of felony” refers to the conduct of one who, having knowledge of the actual commission of a felony, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority. The “concealment” described above requires an act of commission (e.g., making a false statement to a law enforcement officer).
10. “Murder” refers to the unlawful killing of a human being with malice aforethought. “With malice aforethought” generally refers to a finding that the offender formed an intent to kill or do serious bodily harm to the victim without just cause or provocation.
11. “Opiate” includes heroin, morphine, opiate derivatives, and synthetic opiate substitutes.
12. “Other illicit drug offenses” include, but are not limited to, offenses involving the following: amphetamines, hallucinogens, barbiturates, methamphetamines, and phencyclidine (PCP).
13. “Other medium of exchange” includes, but is not limited to, postage stamps, governmental money orders, or governmental coupons redeemable for cash or goods.
14. “Peripheral role” in drug offenses refers to conduct such as that of a person hired as a deckhand on a marijuana boat, a person hired to help offload marijuana, a person with no special skills hired as a simple courier of drugs on a commercial airline flight, or a person hired as a chauffeur in a drug transaction. This definition does not include persons with decision-making or supervisory authority, persons with relevant special skills (e.g., a boat captain, chemist, or airplane pilot), or persons who finance such operations. Individuals who transport unusually large amounts of drugs (e.g., 50 kilos of cocaine or more) or who otherwise appear to have a high degree of trust, professionalism, or control will be considered to be “transporters” and not “simple couriers.”
15. “Protected person” refers to a person listed in 18 U.S.C. 351 (relating to Members of Congress), 1116 (relating to foreign officials, official guests, and internationally protected persons), or 1751 (relating to presidential assassination and officials in line of succession).
16. “Serious bodily injury” refers to injury creating a substantial risk of death, major disability or loss of a bodily function, or disfigurement.
17. “Serious bodily injury is the result intended” refers to a limited category of offense behaviors where the circumstances indicate that the bodily injury intended was serious (e.g., throwing acid in a person’s face, or firing a weapon at a person) but where it is not established that murder was the intended object. Where the circumstances establish that murder was the intended object, grade as an ‘attempt to murder’.
18. “Sexual exploitation of children” refers to employing, using, inducing, enticing, or coercing a person less than 18 years of age to engage in any sexually explicit conduct for the purpose of producing a visual or print medium depicting such conduct with knowledge or reason to know that such visual or print medium will be distributed for sale, transported in interstate or foreign commerce, or mailed. It also includes knowingly transporting, shipping, or receiving such visual or print medium for the purposes of distributing for sale, or knowingly distribution for sale such visual or print medium.
19. “Trafficking in stolen property” refers to receiving stolen property with intent to sell.
20. The “value of the property” is determined by estimating the actual or potential replacement cost to the victim. The “actual replacement cost” is the value or money permanently lost to the victim through theft/forgery/fraud. The “potential replacement cost” refers to the total loss the offender specifically intended to cause by theft/forgery/fraud, or the total amount of the victim’s money or property unlawfully exposed to risk of loss through theft/forgery/fraud notwithstanding subsequent recovery by the victim. The highest of these three values is the value to be used in rating the offense on the guidelines.
21. “Voluntary manslaughter” refers to the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion.”
The following instructions serve as a guide in computing the salient factor score.
A.1 In General.
(a) Count all convictions/adjudications (adult or juvenile) for criminal offenses (other than the current offense) that were committed prior to the present period of confinement, except as specifically noted.
(b) Convictions for prior offenses that are not separated from each other by an intervening arrest (e.g., two burglaries followed by an arrest for both offenses) are counted as a single prior conviction. Prior offenses that are separated by an intervening arrest are counted separately (e.g., three convictions for larceny and a conviction for an additional larceny committed after the arrest for the first three larcenies would be counted as two prior convictions, even if all the four offenses were adjudicated together).
(c) Do not count the current federal offense or state/local convictions resulting from the current federal offense ((i.e., offenses that are considered in assessing the severity of the current offense). Exception: Where the first and last overt acts of the current offense behavior are separated by an intervening federal conviction (e.g., after conviction for the current federal offense, the offender commits another federal offense while on appeal bond), both offenses are counted in assessing offense severity; the earlier offense is also counted as a prior conviction in the salient factor score.
A.2 Convictions. (a) Felony convictions are counted. Non-felony convictions are counted, except as listed under (b) and (c). Convictions for driving while intoxicated/while under the influence/while impaired, or leaving the scene of an accident involving injury or an attended vehicle are counted. For the purpose of scoring Item A of the salient factor score, use the offense of conviction.
(b) Convictions for the following offenses are counted only if the sentence resulting was a commitment of more than thirty days (as defined in item B) or probation of one year or more (as defined in Item E), or if the record indicates that the offense was classified by the jurisdiction as a felony (regardless of sentence):
1. Contempt of court;
2. Disorderly conduct/disorderly person/breach of the peace/disturbing the peace/uttering loud and abusive language;
3. Driving without a license/with a revoked or suspended license/with a false license;
4. False information to a police officer;
5. Fish and game violations;
6. Gambling (e.g., betting on dice, sports, cards) [Note: Operation or promotion of or employment in an unlawful gambling business is not included herein];
7. Loitering;
8. Non-support;
9. Prostitution;
10. Resisting arrest/evade and elude;
11. Trespassing;
12. Reckless driving;
13. Hindering/failure to obey a police officer;
14. Leaving the scene of an accident (except as listed under (a)).
(c) Convictions for certain minor offenses are not counted, regardless of sentence. These include:
1. Hitchhiking;
2. Local regulatory violations;
3. Public intoxication/possession of alcohol by a minor/possession of alcohol in an open container;
4. Traffic violations (except as specifically listed);
5. Vagrancy/vagabond and rogue;
6. Civil contempt.
A.3 Juvenile Conduct. Count juvenile convictions/adjudications except as follows:
(a) Do not count any status offense (e.g., runaway, truancy, habitual disobedience) unless the behavior included a criminal offense which would otherwise be counted;
(b) Do not count any criminal offense committed at age 15 or less, unless it resulted in a commitment of more than 30 days.
A.4 Military Conduct. Count military convictions by general or special court-martial (not summary court-martial or Article 15 disciplinary proceeding) for acts that are generally prohibited by civilian criminal law (e.g., assault, theft). Do not count convictions for strictly military offenses. Note: This does not preclude consideration of serious or repeated military misconduct as a negative indicant of parole prognosis (i.e., a possible reason for overriding the salient factor score in relation to this item).
A.5 Diversion. Conduct resulting in diversion from the judicial process without a finding of guilt (e.g., deferred prosecution, probation without plea, or a District of Columbia juvenile consent decree) is not to be counted in scoring this item. However, an instance of criminal behavior resulting in a judicial determination of guilt or an admission of guilt before a judicial body shall be counted as a conviction even if a conviction is not formally entered.
A.6 Setting Aside of Convictions/Restoration of Civil Rights Setting aside or removal of juvenile convictions/adjudications is normally for civil purposes (to remove civil penalties and stigma). Such convictions/adjudications are to be counted for purposes of assessing parole prognosis. This also applies to adult convictions/adjudications which may be set aside by various methods (including pardon). However, convictions/adjudications that were set aside or pardoned on grounds of innocence are not to be counted.
A.7 Convictions Reversed or Vacated on Grounds of Constitutional or Procedural Error. Exclude any conviction reversed or vacated for constitutional or procedural grounds, unless the prisoner has been retried and reconvicted. It is the Commission’s presumption that a conviction/adjudication is valid, except under the limited circumstances described in the first note below. If a prisoner challenges such conviction he/she should be advised to petition for a reversal of such conviction in the court in which he/she was originally tried, and then to provide the Commission with evidence of such reversal. Note: Occasionally the presentence report documents facts clearly indicating that a conviction was unconstitutional for deprivation of counsel [this occurs only when the conviction was for a felony, or for a lesser offense for which imprisonment was actually imposed; and the record is clear that the defendant (1) was indigent, and (2) was not provided counsel, and (3) did not waive counsel]. In such case, do not count the conviction. Similarly, do not count a conviction if: (1) the offender has petitioned the appropriate court to overturn a felony conviction that occurred prior to 1964, or a misdemeanor/petty offense conviction that occurred prior to 1973 (and the offender claims he served a jail sentence for the non-felony conviction); (2) the offender asserts he was denied his right to counsel in the prior conviction; and (3) the offender provides evidence (e.g., a letter from the court clerk) that the records of the prior conviction are unavailable. Note: If a conviction found to be invalid is nonetheless supported by persuasive information that the offender committed the criminal act, this information may be considered as a negative indicant of parole prognosis (i.e., a possible reason for overriding the salient factor score).
A.8 Ancient Prior Record. If both of the following conditions are met: (1) The offender’s only countable convictions under Item A occurred at least ten years prior to the commencement of the current offense behavior (the date of the last countable conviction under Item A refers to the date of the conviction, itself, not the date of the offense leading to conviction), and (2) there is at least a ten year commitment free period in the community (including time on probation or parole) between the last release from a countable commitment (under Item B) and the commencement of the current offense behavior; then convictions/commitments prior to the above ten year period are not to be counted for purposes of Item A, B, or C. Note: This provision does not preclude consideration of earlier behavior (e.g., repetition of particularly serious or assaultive conduct) as a negative indicant of parole prognosis (i.e., a possible reason for overriding the salient factor score). Similarly, a substantial crime free period in the community, not amounting to ten years, may, in light of other factors, indicate that the offender belongs in a better risk category than the salient factor score indicates.
A.9 Foreign Convictions. Foreign convictions (for behavior that would be criminal in the United States) are counted.
A.10 Tribal Court Convictions. Tribal court convictions are counted under the same terms and conditions as any other conviction.
A.11 Forfeiture of Collateral. If the only known disposition is forfeiture of collateral, count as a conviction (if a conviction for such offense would otherwise be counted).
A.12 Conditional/Unconditional Discharge (New York State). In N.Y. State, the term “conditional discharge” refers to a conviction with a suspended sentence and unsupervised probation; the term “unconditional discharge” refers to a conviction with a suspended sentence. Thus, such N.Y. State dispositions for countable offenses are counted as convictions.
A.13 Adjudication Withheld (Florida). In Florida, the term “adjudication withheld” refers to a disposition in which a formal conviction is not entered at the time of sentencing, the purpose of which is to allow the defendant to retain his civil rights and not to be classified as a convicted felon. Since the disposition of adjudication withheld is characterized by an admission of guilt and/or a finding of guilt before a judicial body, dispositions of “adjudication withheld” are to be counted as convictions for salient factor scoring purposes. However, it is not considered a conviction on which forfeiture of street time can be based.
A.14 Juvenile Consent Decree (District of Columbia). A juvenile consent decree in the District of Columbia is a diversionary disposition not requiring an admission or finding of guilt. Therefore, it is not to be used in scoring this item.
B.1 Count all prior commitments of more than thirty days (adult or juvenile) resulting from a conviction/adjudication listed under Item A, except as noted below. Also count commitments of more than thirty days imposed upon revocation of probation or parole where the original probation or parole resulted from a conviction/adjudication counted under Item A.
B.2 Count only commitments that were imposed prior to the commission of the last overt act of the current offense behavior. Commitments imposed after the current offense are not counted for purposes of this item. Concurrent or consecutive sentences (whether imposed as the same time or at different times) that result in a continuous period of confinement count as a single commitment. However, a new court commitment of more than thirty days imposed for an escape/attempted escape or for criminal behavior committed while in confinement/escape status counts as a separate commitment.
B.3 Definitions. (a) This item only includes commitments that were actually imposed. Do not count a suspended sentence as a commitment. Do not count confinement pending trial or sentencing or for study and observation as a commitment unless the sentence is specifically to “time served”. If a sentence imposed is subsequently reconsidered and reduced, do not count as a commitment if it is determined that the total time served, including jail time, was 30 days or less. Count a sentence to intermittent confinement (e.g., weekends) totaling more than 30 days.
(b) This item includes confinement in adult or juvenile institutions, community corrections centers, and other residential treatment centers (e.g., halfway houses and community treatment centers). It does not include foster home placement. Count confinement in a community corrections center (CCC) or other residential treatment center only when it is part of a committed sentence. Do not count confinement in a community corrections center or other residential treatment center when imposed as a condition of probation or parole. Do not count self-commitment for drug or alcohol treatment.
(c) If a committed sentence of more than 30 days is imposed prior to the current offense but the offender avoids or delays service of the sentence (e.g., by absconding, escaping, bail pending appeal), count as a prior commitment.
(d) District of Columbia Juvenile Commitment to Department of Human Services. In the District of Columbia, juvenile offenders may be committed to the Department of Human Services for placement ranging from a foster home to a secure juvenile facility. Such a commitment is counted only if it can be established that the juvenile was actually committed for more than 30 days to a secure juvenile institution or residential treatment center rather than a foster home.
C.1 Score 3 if the subject was 26 years of age or more at the commencement of the current offense and has three or fewer prior commitments.
C.2 Score 2 if the subject was 26 years of age or more at the commencement of the current offense and has four prior commitments.
C.3 Score 1 if the subject was 26 years of age or more at the commencement of the current offense and has five or more prior commitments.
C.4 Score 2 if the subject was 22-25 years of age at the commencement of the current offense and has three or fewer prior commitments.
C.5 Score 1 if the subject was 22-25 years of age at the commencement of the current offense and has four prior commitments.
C.6 Score 0 if the subject was 22-25 years of age at the commencement of the current offense and has five or more prior commitments.
C.7 Score 1 if the subject was 20-21 years of age at the commencement of the current offense and has three or fewer prior commitments.
C.8 Score 0 if the subject was 20-21 years of age at the commencement of the current offense and has four prior commitments.
C.9 Score 0 if the subject was 19 years of age or less at the commencement of the current offense with any number of prior commitments.
C.10 Definitions (a) Use the age of the commencement of the subject’s current offense behavior, except as noted under the special instructions for probation/parole/confinement/escape status violators.
(b) Prior commitment is defined under Item B.
D.1 Score 1 if the subject has no prior commitments; or if the subject was released to the community from his/her last prior commitment at least three years prior to commencement of his/her current offense behavior.
D.2 Score 0 if the subject’s last release to the community from a prior commitment occurred less than three years prior to the current offense behavior; or if the subject was in confinement/escape status at the time of the current offense.
D.3 Definitions. (a) Prior commitment is defined under Item B.
(b) Confinement/escape status is defined under Item E.
(c) Release to the community means release from confinement status (e.g., a person paroled through a CTC is released to the community when released from the CTC, not when placed in the CTC).
E.1 Score 1 if the subject was not on probation or parole, nor in confinement or escape status at the time of the current offense behavior; and was not committed as a probation, parole, confinement, or escape status violator this time.
E.2 Score 0 if the subject was on probation or parole or in confinement or escape status at the time of the current offense behavior; or if the subject was committed as a probation, parole, confinement, or escape status violator this time.
E.3 Definitions. (a) The term probation/parole refers to a period of federal, state, or local probation or parole supervision. Occasionally, a court disposition such as ‘summary probation’ or ‘unsupervised probation’ will be encountered. If it is clear that this disposition involved no attempt at supervision, it will not be counted for purposes of this item. Note: Unsupervised probation/parole due to deportation is counted in scoring this item.
(b) The term “parole” includes parole, mandatory parole, supervised release, conditional release, or mandatory release supervision (i.e., any form of supervised release).
(c) The term “confinement/escape status” includes institutional custody, work or study release, pass or furlough, community corrections center or other residential treatment center confinement (when such confinement is counted as a commitment under Item B), or escape from any of the above.
Item F. Older Offenders.
F.1 Score 1 if the offender was 41 years of age or more at the commencement of the current offense and the total score from Items A-E is 9 or less.
F.2 Score 0 if the offender was less than 41 years of age at the commencement of the current offense or if the total score from Items A-E is 10.
Item B Count all prior commitments of more than thirty days which were imposed prior to the behavior resulting in the current probation revocation. If the subject is committed as a probation violator following a ‘split sentence’ for which more than thirty days were served, count the confinement portion of the ‘split sentence’ as a prior commitment. Note: The prisoner is still credited with the time served toward the current commitment.
Item C Use the age at commencement of the probation violation, not the original offense.
Item D Count backwards three years from the commencement of the probation violation.
Item E By definition, no point is credited for this item. Exception: A person placed on unsupervised probation (other than for deportation) would not lose credit for this item.
Item F Use the age at commencement of the probation violation, not the original offense.
Item A The conviction from which paroled or placed on supervised release counts as a prior conviction.
Item B The commitment from which paroled or released to supervised release (including a prison term ordered for a prior supervised release revocation), counts as a prior commitment.
Item C Use the age at commencement of the violation behavior (including new criminal behavior).
Item D Count backwards three years from the commencement of the violation behavior (including new criminal behavior).
Item E By definition, no point is credited for this item.
Item F Use the age at commencement of the violation behavior (including new criminal behavior).
Item A The conviction being served at the time of the confinement/escape status violation counts as a prior conviction.
Item B The commitment being served at the time of the confinement/escape status violation counts as a prior commitment.
Item C Use the age at commencement of the confinement/escape status violation.
Item D By definition, no point is credited for this item.
Item E By definition, no point is credited for this item.
Item F Use the age at commencement of the confinement/escape status violation.
§ 2.21 Reparole consideration guidelines.
(a)(1) If revocation is based upon administrative violation(s) only, grade the behavior as if a Category One offense under § 2.20.
(2) If a finding is made that the prisoner has engaged in behavior constituting new criminal conduct, the appropriate severity rating for the new criminal behavior shall be calculated. New criminal conduct may be determined either by a new federal, state, or local conviction or by an independent finding by the Commission at revocation hearing. As violations may be for state or local offenses, the appropriate severity level may be determined by analogy with listed federal offense behaviors.
(b) The guidelines for parole consideration specified at 28 CFR 2.20 shall then be applied with the salient factor score recalculated. The conviction and commitment from which the offender was released shall be counted as a prior conviction and commitment.
(c) Time served on a new state or federal sentence shall be counted as time in custody for reparole guideline purposes. This does not affect the computation of the expiration date of the violator term as provided by §§ 2.47(e) and 2.52 (c) and (d).
(d) The above are merely guidelines. A decision outside these guidelines (either above or below) may be made when circumstances warrant.
§ 2.22 Communication with the Commission.
Attorneys, relatives, or interested parties wishing a personal interview to discuss a specific case with a representative of the Commission must submit a written request to the appropriate office setting forth the nature of the information to be discussed. Such interview may be conducted by a Commissioner or assigned staff, and a written summary of each such interview shall be prepared and placed in the prisoner’s file.
§ 2.23 Delegation to hearing examiners.
(a) There is hereby delegated to hearing examiners the authority necessary to conduct hearings and make recommendations relative to the grant or denial of parole or reparole, revocation or reinstatement of parole or mandatory release, and conditions of parole. Any hearing may be conducted by a single examiner or by a panel of examiners. Notwithstanding the provisions of §§ 2.48 through 2.51, §§ 2.101 through 2.104 and §§ 2.214 through 2.217, there is also delegated to hearing examiners the authority necessary to make a probable cause finding, to determine the location of a revocation hearing, and to determine the witnesses who will attend the hearing, including the authority to issue subpoenas for witnesses and evidence.
(b) The concurrence of two examiners shall be required to obtain a panel recommendation to the Regional Commissioner. A panel recommendation is required in each case decided by a Regional Commissioner after the holding of a hearing.
(c) An examiner panel recommendation exists of two concurring examiner votes. In the event of divergent votes, the case shall be referred to another hearing examiner for another vote. If concurring votes do not result from such a referral, the case shall be referred to any available hearing examiner until a panel recommendation is obtained.
§ 2.24 Review of panel recommendation by the Regional Commissioner.
(a) Upon review of the examiner panel recommendation, the Regional Commissioner may make the decision by concurring with the panel recommendation. If the Regional Commissioner does not concur, the Regional Commissioner shall refer the case to another Commissioner and the decision shall be made on the concurring votes of two Commissioners.
(b) Upon review of the panel recommendation, the Regional Commissioner may also remand the case for a rehearing, with the notice of such action specifying the purpose of the rehearing.
§ 2.25 Hearings by videoconference.
The Commission may conduct a parole determination hearing (including a rescission hearing), a probable cause hearing, an institutional revocation hearing, and a parole termination hearing by videoconference between the hearing examiner and the prisoner or releasee.
§ 2.26 Appeal to National Appeals Board.
(a)(1) A prisoner or parolee may submit to the National Appeals Board a written appeal of any decision to grant (other than a decision to grant parole on the date of parole eligibility), rescind, deny, or revoke parole, except that any appeal of a Commission decision pursuant to § 2.17 shall be submitted as a petition for reconsideration under § 2.27.
(2) The appeal must be filed on a form provided for that purpose within 30 days from the date of entry of the decision that is the subject of the appeal. The appeal must include an opening paragraph that briefly summarizes the grounds for the appeal. The appellant shall then list each ground separately and concisely explain the reasons supporting each ground. Appeals that do not conform to the above requirements may be returned at the Commission’s discretion, in which case the appellant shall have 30 days from the date the appeal is returned to submit an appeal that complies with the above requirements. The appellant may provide any additional information for the Commission to consider in an addendum to the appeal. Exhibits may be attached to an appeal, but the appellant should not attach exhibits that are copies of documents already in the possession of the Commission. Any exhibits that are copies of documents already in the Commission’s files will not be retained by the Commission.
(b)(1) The National Appeals Board may: Affirm the decision of a Regional Commissioner on the vote of a single Commissioner other than the Commissioner who issued the decision from which the appeal is taken; or modify or reverse the decision of a Regional Commissioner, or order a new hearing, upon the concurrence of two Commissioners. The Commissioner first reviewing the case may in his discretion circulate the case for review and vote by the other Commissioners notwithstanding his own vote to affirm the Regional Commissioner’s decision. In such event, the case shall be decided by the concurrence of two out of three votes.
(2) All Commissioners serve as members of the National Appeals Board, and it shall in no case be an objection to a decision of the Board that the Commissioner who issued the decision from which an appeal is taken participated as a voting member on appeal.
(c) The National Appeals Board shall act within sixty days of receipt of the appellant’s papers, to affirm, modify, or reverse the decision. Decisions of the National Appeals Board shall be final.
(d) If no appeal is filed within thirty days of the date of entry of the original decision, such decision shall stand as the final decision of the Commission.
(e) Appeals under this section may be based upon the following grounds:
(1) That the guidelines were incorrectly applied as to any or all of the following:
(i) Severity rating;
(ii) Salient factor score;
(iii) Time in custody;
(2) That a decision outside the guidelines was not supported by the reasons or facts as stated;
(3) That especially mitigating circumstances (for example, facts relating to the severity of the offense or the prisoner’s probability of success on parole) justify a different decision;
(4) That a decision was based on erroneous information, and the actual facts justify a different decision;
(5) That the Commission did not follow correct procedure in deciding the case, and a different decision would have resulted if the error had not occurred;
(6) There was significant information in existence but not known at the time of the hearing;
(7) There are compelling reasons why a more lenient decision should be rendered on grounds of compassion.
(f) Upon the written request of the Attorney General seeking review of a decision of a Regional Commissioner, which is received within 30 days of such decision, the National Appeals Board shall reaffirm, modify, or reverse the Regional Commissioner’s decision within 60 days of receipt of the Attorney General’s request. The National Appeals Board shall inform the Attorney General and the prisoner to whom the decision applies in writing of its decision and the reasons therefor. In the event the Attorney General submits new and significant information that has not previously been disclosed to the prisoner prior to a hearing under these rules, the National Appeals Board shall act within 60 days to reaffirm, modify or reverse the Regional Commissioner’s decision, but shall also remand the case for a new hearing if its decision is adverse to the prisoner. The prisoner shall have disclosure of the new information, and the opportunity to dispute that information under § 2.19(c) of this part. Following the hearing, the case shall be returned to the National Appeals Board, together with a recommendation from the hearing examiner, to render a final Commission decision as to the disposition of the case.
§ 2.27 [Reserved]
§ 2.28 Reopening of cases.
(a) Favorable information or information supporting medical parole or compassionate release. Upon the receipt of new information of substantial significance favorable to the prisoner, including medical information, or other extraordinary and compelling information, a Commissioner may reopen a case, and order a special reconsideration hearing on the next available docket, or modify the previous decision. The advancement of a presumptive release date or a decision to continue to a 15-year reconsideration hearing requires the concurrence of two Commissioners.
(b) Institutional misconduct. Consideration of disciplinary infractions and allegations of new criminal conduct occurring after the setting of a parole date are subject to the provisions of § 2.14 (in the case of a prisoner with a presumptive date) and § 2.34 (in the case of a prisoner with an effective date of parole).
(c) Additional sentences. If a prisoner receives an additional concurrent or consecutive federal sentence following his initial parole consideration, the Regional Commissioner shall reopen his case for a new initial hearing on the next regularly scheduled docket to consider the additional sentence and reevaluate the case. Such action shall void the previous presumptive or effective release date. However, a new initial hearing is not mandatory where the Commission has previously evaluated the new criminal behavior, which led to the additional federal sentence, at a rescission hearing under 28 CFR 2.34; except where the new sentence extends the mandatory release date for a prisoner previously continued to the expiration of his sentence.
(d) Conviction after revocation. Upon receipt of information subsequent to the revocation hearing that a prisoner whose parole has been revoked has sustained a new conviction for conduct while on parole, the Regional Commissioner may reopen the case pursuant to § 2.52(c)(2) for a special reconsideration hearing on the next regularly scheduled docket to consider forfeiture of time spent on parole and such further action as may be appropriate. The entry of a new order shall void any presumptive or effective release date previously established.
(e) Release planning. When an effective date of parole has been set by the Commission, release on that date shall be conditioned upon the completion of a satisfactory plan for parole supervision. The appropriate Regional Commissioner may on his own motion reconsider any case prior to release and may reopen and advance or retard an effective parole date for purposes of release planning. Retardation without a hearing may not exceed 120 days.
(f) New adverse information. Upon receipt of new and significant adverse information that is not covered by paragraphs (a) through (e) of this section, a Commissioner may refer the case to the National Commissioners with his recommendation and vote to schedule the case for a special reconsideration hearing. Such referral shall automatically retard the prisoner’s scheduled release date until a final decision is reached in the case. The decision to schedule a case for a special reconsideration hearing shall be based on the concurrence of two Commissioner votes, including the vote of the referring Commissioner. The hearing shall be conducted in accordance with the procedures set forth in §§ 2.12 and 2.13. The entry of a new order following such hearing shall void the previously established release date.
§ 2.29 Release on parole.
(a) A grant of parole shall not be deemed to be operative until a certificate of parole has been delivered to the prisoner.
(b) An effective date of parole shall not be set for a date more than nine months from the date of the hearing. Residence in a community corrections center as part of a parole release plan generally shall not exceed one hundred and twenty days.
(c) When an effective date of parole falls on a Saturday, Sunday, or legal holiday, the Warden of the appropriate institution shall be authorized to release the prisoner on the first working day preceding such date.
§ 2.30 False information or new criminal conduct: Discovery after release.
If evidence comes to the attention of the Commission after a prisoner’s release that such prisoner has willfully provided false information or misrepresented information deemed significant to his application for parole or has engaged in any criminal conduct during the current sentence prior to the delivery of the parole certificate, the Regional Commissioner may reopen the case pursuant to the procedures of § 2.28(f) and order the prisoner summoned or retaken for hearing pursuant to the procedures of §§ 2.49 and 2.50, as applicable, to determine whether the order of parole should be cancelled.
§ 2.31 Parole to detainers: Statement of policy.
(a) Where a detainer is lodged against a prisoner, the Commission may grant parole if the prisoner in other respects meets the criteria set forth in § 2.18. The presence of a detainer is not in itself a valid reason for the denial of parole.
(b) The Commission will cooperate in working out arrangements for concurrent supervision with other jurisdictions where it is feasible and where release on parole appears to be justified.
§ 2.32 Parole to local or immigration detainers.
(a) When a State or local detainer is outstanding against a prisoner whom the Commission wishes to parole, the Commission may order either of the following:
(1) Parole to the actual physical custody of the detaining authorities only. In this event, release is not to be effected except to the detainer. When such a detainer is withdrawn, the prisoner is not to be released unless and until the Commission makes a new order of parole.
(2) Parole to the actual physical custody of the detaining authorities or an approved plan. In this event, release is to be effected to the community if detaining officials withdraw the detainer or make no effort to assume custody of the prisoner, providing there is an acceptable plan for community supervision.
(b) When the Commission wishes to parole a prisoner subject to a detainer filed by Federal immigration officials, the Commission shall order the following: Parole to the actual physical custody of the immigration authorities or an approved plan. In this event, release is to be effected regardless of whether immigration officials take the prisoner into custody, providing there is an acceptable plan for community supervision.
(c) As used in this section “parole to a detainer” means release to the “physical custody” of the authorities who have lodged the detainer. Temporary detention in a jail in the county where the institution of confinement is located does not constitute release on parole to such detainer. If the authorities who lodged the detainer do not take the prisoner into custody for any reason, he shall be returned to the institution to await further order of the Commission.
§ 2.33 Release plans.
(a) A grant of parole is conditioned upon the approval of release plans by the Regional Commissioner. In general, the following factors are considered as elements in the prisoner’s release plan:
(1) Availability of legitimate employment and an approved residence for the prospective parolee; and
(2) Availability of necessary aftercare for a parolee who is ill or who requires special care.
(b) Generally, parolees will be released only to the place of their legal residence unless the Commission is satisfied that another place of residence will serve the public interest more effectively or will improve the probability of the applicant’s readjustment.
(c) Where the circumstances warrant, the Commission on its own motion, or upon recommendation of the probation officer, may require that an advisor who is a responsible, reputable, and law-abiding citizen living in or near the community in which the releasee will reside be available to the releasee. Such advisor shall serve under the direction of and in cooperation with the probation officer to whom the parolee is assigned.
(d) When the prisoner has an unsatisfied fine or restitution order, a reasonable plan for payment [or performance of services, if so ordered by the court] shall, where feasible, be included in the parole release plan.
§ 2.34 Rescission of parole.
(a) When an effective date of parole has been set by the Commission, release on that date is conditioned upon continued satisfactory conduct by the prisoner. If a prisoner granted such a date has been found in violation of institution rules by a Discipline Hearing Officer, or the Center Disciplinary Committee, or is alleged to have committed a new criminal act at any time prior to the delivery of the certificate of parole, the Commissioner shall be advised promptly of such information. The prisoner shall not be released until the institution has been notified that no change has been made in the Commission’s order to parole. Following receipt of such information, the Commissioner may reopen the case and retard the parole date for up to 90 days without a hearing, or 120 days for a DC Code sentenced prisoner, or schedule a rescission hearing under this section on the next available docket at the institution or on the first docket following return to a federal institution from a community corrections center or a state or local halfway house.
(b) Upon the ordering of a rescission hearing under this section, the prisoner shall be afforded written notice specifying the information to be considered at the hearing. The notice shall further state that the purpose of the hearing will be to decide whether rescission of the parole date is warranted based on the charges listed on the notice, and shall advise the prisoner of the procedural rights described below.
(c) A hearing before a Discipline Hearing Officer, or the Center Disciplinary Committee, resulting in a finding that the prisoner has committed a violation of disciplinary rules may be relied upon by the Commission as conclusive evidence of institutional misconduct. However, the prisoner will be afforded an opportunity to explain any mitigating circumstances, and to present documentary evidence in mitigation of the misconduct at the rescission hearing.
(d) In the case of allegations of new criminal conduct committed prior to delivery of the parole certificate, the Commission may consider documentary evidence and/or written testimony presented by the prisoner, arresting authorities, or other persons.
(e) The prisoner may be represented at a rescission hearing by a person of his choice. The function of the prisoner’s representative shall be to offer a statement following the discussion of the charges with the prisoner, and to provide such additional information as the hearing examiner may require. However, the hearing examiner may limit or exclude any irrelevant or repetitious statement.
(f) The evidence upon which the rescission hearing is to be conducted shall be disclosed to the prisoner upon request, subject to the exemptions set forth at § 2.55. If the parole grant is rescinded, the Commission shall furnish to the prisoner a written statement of its findings and the evidence relied upon.
§ 2.35 Mandatory release in the absence of parole.
(a) A prisoner shall be mandatorily released by operation of law at the end of the sentence imposed by the court less such good time deductions as he may have earned through his behavior and efforts at the institution of confinement. If released pursuant to 18 U.S.C. 4164, such prisoner shall be released, as if on parole, under supervision until the expiration of the maximum term or terms for which he was sentenced less 180 days. If released pursuant to 18 U.S.C. 4205(f), such prisoner shall remain under supervision until the expiration of the maximum term or terms for which he was sentenced. Insofar as possible, release plans shall be completed before the release of any such prisoner.
(b) It is the Commission’s interpretation of the statutory scheme for parole and good time that the only function of good time credits is to determine the point in a prisoner’s sentence when, in the absence of parole, the prisoner is to be conditionally released on supervision, as described in subsection (a). Once an offender is conditionally released from imprisonment, either by parole or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the offender may be required to serve for violation of parole or mandatory release.
(c) A prisoner committed under the Youth Corrections Act must be initially released conditionally under supervision not later than two years before the expiration of the term imposed by the court.
(d) If the Commission orders a military prisoner who is under the Commission’s jurisdiction for an offense committed after August 15, 2001 continued to the expiration of his sentence (or otherwise does not grant parole), the Commission shall place such prisoner on mandatory supervision after release if the Commission determines that such supervision is appropriate to provide an orderly transition to civilian life for the prisoner and to protect the community into which such prisoner is released. The Commission shall presume that mandatory supervision is appropriate for all such prisoners unless case-specific factors indicate that supervision is inappropriate. A prisoner who is placed on mandatory supervision shall be deemed to be released as if on parole, and shall be subject to the conditions of release at § 2.40 until the expiration of the maximum term for which he was sentenced, unless the prisoner’s sentence is terminated early by the appropriate military clemency board.
§ 2.36 Rescission guidelines.
(a) The following guidelines shall apply to the sanctioning of disciplinary infractions or new criminal conduct committed by a prisoner during any period of confinement that is credited to his current sentence (whether before or after sentence is imposed), but prior to his release on parole; and by a parole violator during any period of confinement prior to or following the revocation of his parole (except when such period of confinement has resulted from initial parole to a detainer). These guidelines specify the customary time to be served for such behavior which shall be added to the time required by the original presumptive or effective date. Credit shall be given towards service of these guidelines for any time spent in custody on a new offense that has not been credited towards service of the original presumptive or effective date. If a new concurrent or consecutive sentence is imposed for such behavior, these guidelines shall also be applied at the initial hearing on such term.
(1) Administrative rule infraction(s) (including alcohol abuse) normally can be adequately sanctioned by postponing a presumptive or effective date by 0-60 days per instance of misconduct, or by 0-8 months in the case of use or simple possession of illicit drugs or refusal to provide a urine sample. Escape or other new criminal conduct shall be considered in accordance with the guidelines set forth below.
(2) Escape/new criminal behavior in a prison facility (including a community corrections center). The time required pursuant to the guidelines set forth in paragraphs (a)(2) (i) and (ii) of this section shall be added to the time required by the original presumptive or effective date.
(i) Escape or attempted escape—(A) Escape or attempted escape, except as listed below—8-16 months.
(B) If from non-secure custody with voluntary return in 6 days or less—≤6 months.
(C) If by fear or force applied to person(s), grade under (ii) but not less than Category Five.
(1) If other criminal conduct is committed during the escape or during time spent in escape status, then time to be served for the escape/attempted escape shall be added to that assessed for the other new criminal conduct.
(2) Time in escape status shall not be credited.
(3) Voluntary return is defined as returning voluntarily to the facility or voluntarily turning one’s self in to a law enforcement authority as an escapee (not in connection with an arrest on other charges).
(4) Non-secure custody refers to custody with no significant physical restraint [e.g., walkaway from a work detail outside the security perimeter of an institution; failure to return to any institution from a pass or unescorted furlough; or escape by stealth from an institution with no physical perimeter barrier (usually a camp or community corrections center)].
(ii) Other new criminal behavior in a prison facility.
| Severity rating in the new criminal behavior (from § 2.20) | Guideline range |
|---|---|
| Category One | |
| Category Two | |
| Category Three | 12-16 months. |
| Category Four | 20-26 months. |
| Category Five | 36-48 months. |
| Category Six | 52-64 months. |
| Category Seven | 64-92 months. |
| Category Eight | 120+ months. |
Grade unlawful possession of a firearm or explosives in a prison facility, other than a community corrections center, as Category Six. Grade unlawful possession of a firearm in a community corrections center as Category Four. Grade unlawful possession of a dangerous weapon other than a firearm or explosives (e.g., a knife) in a prison facility or community corrections center as Category Three.
(3) New criminal behavior in the community (e.g., while on pass, furlough, work release, or on escape). In such cases, the guidelines applicable to reparole violators under § 2.21 shall be applied, using the new offense severity (from § 2.20) and recalculated salient factor score (such score shall be recalculated as if the prisoner had been on parole at the time of the new criminal behavior). The time required pursuant to these guidelines shall be added to the time required by the original presumptive or effective date.
Offenses committed in a prison or in a community corrections center that are not limited to the confines of the prison or community corrections center (e.g., mail fraud of a victim outside the prison) are graded as new criminal behavior in the community.
(b) The above are merely guidelines. Where the circumstances warrant, a decision outside the guidelines (above or below) may be rendered provided specific reasons are given. For example, a substantial period of good conduct since the last disciplinary infraction in cases not involving new criminal conduct may be treated as a mitigating circumstance.
§ 2.37 Disclosure of information concerning parolees; Statement of policy.
(a) Information concerning a parolee under the Commission’s supervision may be disclosed to a person or persons who may be exposed to harm through contact with that particular parolee if such disclosure is deemed to be reasonably necessary to give notice that such danger exists.
(b) Information concerning parolees may be released by a Chief U.S. Probation Officer to a law enforcement agency (1) as deemed appropriate for the protection of the public or the enforcement of the conditions of parole or (2) pursuant to a request under 18 U.S.C. 4203(e).
(c) Information deemed to be “public sector” information may be disclosed to third parties without the consent of the file subject. Public sector information encompasses the following:
(1) Name;
(2) Register number;
(3) Offense of conviction;
(4) Past and current places of incarceration;
(5) Age;
(6) Sentence data on the Bureau of Prisons sentence computation record (BP-5);
(7) Date(s) of parole and parole revocation hearings; and
(8) The decision(s) rendered by the Commission following a parole or parole revocation proceeding, including the dates of continuances and parole dates. An inmate’s designated future place of incarceration is not public information.
§ 2.38 Community supervision by U.S. Probation Officers.
(a) Pursuant to sections 3655 and 4203(b)(4) of title 18 of the U.S. Code, U.S. Probation Officers shall provide such parole services as the Commission may request. In conformity with the foregoing, probation officers function as parole officers and provide supervision to persons released by parole or as if on parole (mandatory release) under the Commission’s jurisdiction.
(b) A parolee may be transferred to a new district of supervision with the permission of the probation officers of both the transferring and receiving district, provided such transfer is not contrary to instructions from the Commission.
§ 2.39 Jurisdiction of the Commission.
(a) Jurisdiction of the Commission over a parolee shall terminate no later than the date of expiration of the maximum term or terms for which he was sentenced, except as provided by § 2.35, § 2.43, or § 2.52.
(b) The parole of any parolee shall run concurrently with the period of parole or probation under any other Federal, State, or local sentence.
(c) Upon the termination of jurisdiction, the Commission shall issue a certificate of discharge to such parolee and to such other agencies as it may determine.
§ 2.40 Conditions of release.
(a)(1) General conditions of release and notice by certificate of release. All persons on supervision must follow the conditions of release described in § 2.204(a)(3) through (6). These conditions are necessary to satisfy the purposes of release conditions stated in 18 U.S.C. 4209. Your certificate of release informs you of these conditions and special conditions that we have imposed for your supervision.
(2) Refusing to sign the certificate of release. (i) If you have been granted a parole date and you refuse to sign the certificate of release (or any other document necessary to fulfill a condition of release), we will consider your refusal as a withdrawal of your application for parole as of the date of your refusal. You will not be released on parole and you will have to reapply for parole consideration.
(ii) If you are scheduled for release to supervision through good-time deduction and you refuse to sign the certificate of release, you will be released but you still must follow the conditions listed in the certificate.
(b) Special conditions of release. We may impose a condition of release other than a condition described in § 2.204(a)(3) through (6) if we determine that imposing the condition is reasonably related to the nature and circumstances of your offense or your history and characteristics, and at least one of the following purposes of criminal sentencing: The need to deter you from criminal conduct; protection of the public from further crimes; or the need to provide you with training or correctional treatment or medical care. In choosing a condition we will also consider whether the condition involves no greater deprivation of liberty than is reasonably necessary for the purposes of deterrence of criminal conduct, protection of the public from crime and offender rehabilitation. We list some examples of special conditions of release at § 2.204(b)(2).
(c) Participation in a drug-treatment program, If we require your participation in a drug-treatment program, you must submit to a drug test within 15 days of your release and to at least two other drug tests, as determined by your supervision officer. If we decide not to impose the special condition on drug-treatment, because available information indicates you are a low risk for substance abuse, this decision constitutes good cause for suspending the drug testing requirements of 18 U.S.C. 4209(a). You must pass all pre-release drug tests administered by the Bureau of Prisons before you are paroled. If you fail a drug test your parole date may be rescinded.
(d) Changing conditions of release. After your release, we may change or add to the conditions of release if we decide that such action is consistent with the criteria described in paragraph (b) of this section. In making these changes we will use the procedures described in § 2.204(c) and (d). You may appeal our action as provided in §§ 2.26 and 2.220.
(e) Application of release conditions to an absconder. If you abscond from supervision, you will stop the running of your sentence as of the date of your absconding and you will prevent the expiration of your sentence. You will still be bound by the conditions of release while you are an absconder, even after the original expiration date of your sentence. We may revoke your release for a violation of a release condition that you commit before the revised expiration date of your sentence (the original expiration date plus the time you were an absconder).
(f) Revocation for possession of a controlled substance (18 U.S.C. 4214(f)). If we find after a revocation hearing that you have illegally possessed a controlled substance, we must revoke your release. If you fail a drug test, we must consider whether the availability of appropriate substance abuse programs, or your current or past participation in such programs, justifies an exception from the requirement of mandatory revocation. We will not revoke your release on the basis of a single, unconfirmed positive drug test if you challenge the test result and there is no other violation found by us to support revocation.
(g) Supervision officer guidance. See § 2.204(g).
(h) Definitions. See § 2.204(h).
§ 2.41 Travel approval.
(a) The probation officer may approve travel outside the district without approval of the Commission in the following situations:
(1) Vacation trips not to exceed thirty days.
(2) Trips, not to exceed thirty days, to investigate reasonably certain employment possibilities.
(3) Recurring travel across a district boundary, not to exceed fifty miles outside the district, for purpose of employment, shopping, or recreation.
(b) Specific advance approval by the Commission is required for all foreign travel, employment requiring recurring travel more than fifty miles outside the district (except employment at offshore locations), and vacation travel outside the district exceeding thirty days. A request for such permission shall be in writing and must demonstrate a substantial need for such travel.
(c) A special condition imposed by the Regional Commissioner prohibiting certain travel shall supersede any general rules relating to travel as set forth above.
§ 2.42 Probation officer’s reports to Commission.
A supervision report shall be submitted by the responsible probation officer to the Commission for each parolee after the completion of 24 months of continuous supervision and annually thereafter. The probation officer shall submit such additional reports as the Commission may direct.
§ 2.43 Early termination.
(a)(1) Upon its own motion or upon request of a parolee, the Commission may terminate a parolee’s supervision, and legal custody over the parolee, before the sentence expires.
(2) The Commission may terminate supervision of a committed youth offender after the offender serves one year on supervision. Upon terminating supervision before the sentence expires, the Commission shall set aside the committed youth offender’s conviction and issue a certificate setting aside the conviction instead of a certificate of termination.
(b) Two years after releasing a prisoner on supervision, and at least annually thereafter, the Commission shall review the status of the parolee to determine the need for continued supervision. The Commission shall also conduct a status review whenever the supervision officer recommends early termination of the parolee’s supervision.
(c) Five years after releasing a prisoner on supervision, the Commission shall terminate supervision over the parolee unless the Commission determines, after a hearing conducted in accordance with the procedures prescribed in 18 U.S.C. 4214(a)(2), that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law. If the Commission does not terminate supervision under this paragraph, the parolee may request a hearing annually thereafter, and the Commission shall conduct an early termination hearing at least every two years.
(d) In calculating the two-year and five-year periods provided in paragraphs (b) and (c) of this section, the Commission shall not include any period of parole before the most recent release, or any period served in confinement on any other sentence.
(e) A parolee may appeal an adverse decision under paragraph (c) of this section under § 2.26.
(f) [Reserved]
(g)(1) In determining whether to grant early termination from supervision, the Commission shall consider the guidelines of this paragraph. The guidelines are advisory and the Commission may disregard the outcome indicated by the guidelines based on case-specific factors. Termination of supervision is indicated if the parolee:
(i) Has a salient factor score in the very good risk category and has completed two continuous years of supervision free from an incident of new criminal behavior or serious parole violation; or
(ii) Has a salient factor score in a risk category other than very good and has completed three continuous years of supervision free from an incident of new criminal behavior or serious parole violation.
(2) As used in this paragraph (g), the term “an incident of new criminal behavior or serious parole violation” includes a new arrest or report of a parole violation if supported by substantial evidence of guilt, even if no conviction or parole revocation results. The Commission shall not terminate supervision of a parolee until it determines the disposition of a pending criminal charge.
(h) Case-specific factors that may justify a departure either above or below the early termination guidelines may relate to the current behavior of the parolee, or to the parolee’s background and criminal history.
§ 2.44 Summons to appear or warrant for retaking of parolee.
(a) If a parolee is alleged to have violated the conditions of his release, and satisfactory evidence thereof is presented, the Commission or a member thereof may:
(1) Issue a summons requiring the offender to appear for a preliminary interview or local revocation hearing.
(2) Issue a warrant for the apprehension and return of the offender to custody.
(b) Any summons or warrant under this section shall be issued as soon as practicable after the alleged violation is reported to the Commission, except when delay is deemed necessary. Issuance of a summons or warrant may be withheld until the frequency or seriousness of violations, in the opinion of the Commission, requires such issuance. In the case of any parolee charged with a criminal offense and awaiting disposition of the charge, issuance of a summons or warrant may be withheld, a warrant may be issued and held in abeyance, or a warrant may be issued and a detainer may be placed.
(c) A summons or warrant may be issued only within the prisoner’s maximum term or terms except that in the case of a prisoner released as if on parole pursuant to 18 U.S.C. 4164, such summons or warrant may be issued only within the maximum term or terms, less one hundred eighty days. A summons or warrant shall be considered issued when signed and either—
(1) Placed in the mail or
(2) Sent by electronic transmission to the intended authorities.
(d) The issuance of a warrant under this section operates to bar the expiration of the parolee’s sentence. Such warrant maintains the Commission’s jurisdiction to retake the parolee either before or after the normal expiration date of the sentence and to reach a final decision as to revocation of parole and forfeiture of time pursuant to § 2.52(c).
(e) A summons or warrant issued pursuant to this section shall be accompanied by a statement of the charges against the parolee, the applicable procedural rights under the Commission’s regulations and the possible actions which may be taken by the Commission. A summons shall specify the time and place the parolee shall appear for a revocation hearing. Failure to appear in response to a summons shall be grounds for issuance of a warrant.
§ 2.45 Same; youth offenders.
(a) In addition to the issuance of a summons or warrant pursuant to § 2.44 of this part, the Commission or a member thereof, when of the opinion that a youth offender will be benefited by further treatment in an institution or other facility, may direct his return to custody or issue a warrant for his apprehension and return to custody.
(b) Upon his return to custody, such youth offender shall be scheduled for a revocation hearing.
§ 2.46 Execution of warrant and service of summons.
(a) Any officer of any Federal correctional institution or any Federal officer authorized to serve criminal process within the United States, to whom a warrant is delivered shall execute such warrant by taking the parolee and returning him to the custody of the Attorney General.
(b) On arrest of the parolee the officer executing the warrant shall deliver to him a copy of the Warrant Application listing the charges against the parolee, the applicable procedural rights under the Commission’s regulations and the possible actions which may be taken by the Commission.
(c) If execution of the warrant is delayed pending disposition of local charges, for further investigation, or for some other purpose, the parolee is to be continued under supervision by the probation officer until the normal expiration of the sentence, or until the warrant is executed, whichever first occurs. Monthly supervision reports are to be submitted, and the parolee must continue to abide by all the conditions of release.
(d) A summons to appear at a preliminary interview or revocation hearing shall be served upon the parolee in person by delivering to the parolee a copy of the summons. Service shall be made by any Federal officer authorized to serve criminal process within the United States, and certification of such service shall be returned to the appropriate regional office of the Commission.
§ 2.47 Warrant placed as a detainer and dispositional review.
(a) When a parolee is serving a new sentence in a federal, state or local institution, a parole violation warrant may be placed against him as a detainer.
(1) If the prisoner is serving a new sentence in a federal institution, a revocation hearing shall be scheduled within 120 days of notification of placement of the detainer, or as soon thereafter as practicable, provided the prisoner is eligible for and has applied for an initial hearing on the new sentence, or is serving a new sentence of one year or less. In any other case, the detainer shall be reviewed on the record pursuant to paragraph (a)(2) of this section.
(2) If the prisoner is serving a new sentence in a state or local institution, the violation warrant shall be reviewed by the Regional Commissioner not later than 180 days following notification to the Commission of such placement. The parolee shall receive notice of the pending review, and shall be permitted to submit a written application containing information relative to the disposition of the warrant. He shall also be notified of his right to request counsel under the provisions of § 2.48(b) to assist him in completing this written application.
(b) If the prisoner is serving a new federal sentence, the Regional Commissioner, following a dispositional record review, may:
(1) Pursuant to the general policy of the Commission, let the warrant stand as a detainer and order that the revocation hearing be scheduled to coincide with the initial hearing on the new federal sentence or upon release from the new sentence, whichever comes first;
(2) Withdraw the warrant, and either order reinstatement of the parolee to supervision upon release from confinement or close the case if the expiration date has passed.
(c) If the prisoner is serving a new state or local sentence, the Regional Commissioner, following a dispositional record review may:
(1) Withdraw the detainer and order reinstatement of the parolee to supervision upon release from custody, or close the case if the expiration date has passed.
(2) Order a revocation hearing to be conducted by a hearing examiner or an official designated by the Regional Commissioner at the institution in which the parolee is confined.
(3) Let the detainer stand and order further review at an appropriate time. If the warrant is not withdrawn and no revocation hearing is conducted while the prisoner is in state or local custody, an institutional revocation hearing shall be conducted after the prisoner’s return to federal custody.
(d) Revocation hearings pursuant to this section shall be conducted in accordance with the provisions governing institutional revocation hearings, except that a hearing conducted at a state or local facility may be conducted by a hearing examiner, hearing examiner panel, or other official designated by the Regional Commissioner. Following a revocation hearing conducted pursuant to this section, the Commission may take any action specified in § 2.52.
(e)(1) A parole violator whose parole is revoked shall be given credit for all time in federal, state, or local confinement on a new offense for purposes of satisfaction of the reparole guidelines at § 2.20 and § 2.21.
(2) However, it shall be the policy of the Commission that the revoked parolee’s original sentence (which due to the new conviction, stopped running upon his last release from federal confinement on parole) again start to run only upon release from the confinement portion of the new sentence or the date of reparole granted pursuant of these rules, whichever comes first. This subsection does not apply to cases where, by law, the running of the original sentence is not interrupted by a new conviction (e.g., YCA; NARA; Mexican or Canadian treaty cases).
(f) If a Regional Commissioner determines that additional information is required in order to make a decision pursuant to paragraph (a)(2) of this section, he may schedule a dispositional hearing at the state or local institution where the parolee is confined to obtain such information. Such hearing may be conducted by a hearing examiner, hearing examiner panel, or other official designated by the Regional Commissioner. The parolee shall have notice of such hearing, be allowed to testify in his behalf, and have opportunity for counsel as provided in § 2.48(b).
§ 2.48 Revocation: Preliminary interview.
(a) Interviewing officer. A parolee who is retaken on a warrant issued by a Commissioner shall be given a preliminary interview by an official designated by the Regional Commissioner to enable the Commission to determine if there is probable cause to believe that the parolee has violated his parole as charged, and if so, whether a revocation hearing should be conducted. The official designated to conduct the preliminary interview may be a U.S. Probation Officer in the district where the prisoner is confined, provided he is not the officer who recommended that the warrant be issued.
(b) Notice and opportunity to postpone interview. At the beginning of the preliminary interview, the interviewing officer shall ascertain that the Warrant Application has been given to the parolee as required by § 2.46(b), and shall advise the parolee that he may have the preliminary interview postponed in order to obtain representation by an attorney or arrange for the attendance of witnesses. The parolee shall also be advised that if he cannot afford to retain an attorney he may apply to a U.S. District Court for appointment of counsel to represent him at the preliminary interview and the revocation hearing pursuant to 18 U.S.C. 3006A. In addition, the parolee may request the Commission to obtain the presence of persons who have given information upon which revocation may be based. Such adverse witnesses shall be requested to attend the preliminary interview unless the parolee admits a violation or has been convicted of a new offense while on supervision or unless the interviewing officer finds good cause for their non-attendance. Pursuant to § 2.51 a subpoena may issue for the appearance of adverse witnesses or the production of documents.
(c) Review of the charges. At the preliminary interview, the interviewing officer shall review the violation charges with the parolee, apprise the parolee of the evidence which has been presented to the Commission, receive the statements of witnesses and documentary evidence on behalf of the parolee, and allow cross-examination of those witnesses in attendance. Disclosure of the evidence presented to the Commission shall be made pursuant to § 2.50(d).
(d) At the conclusion of the preliminary interview, the interviewing officer shall inform the parolee of his recommended decision as to whether there is probable cause to believe that the parolee has violated the conditions of his release, and shall submit to the Commission a digest of the interview together with his recommended decision.
(1) If the interviewing officer’s recommended decision is that no probable cause may be found to believe that the parolee has violated the conditions of his release, the responsible Regional Commissioner shall review such recommended decision and notify the parolee of his final decision concerning probable cause as expeditiously as possible following receipt of the interviewing officer’s digest. A decision to release the parolee shall be implemented without delay.
(2) If the interviewing officer’s recommended decision is that probable cause may be found to believe that the parolee has violated a condition (or conditions) of his release, the responsible Regional Commissioner shall notify the parolee of his final decision concerning probable cause within 21 days of the date of the preliminary interview.
(3) Notice to the parolee of any final decision of a Regional Commissioner finding probable cause and ordering a revocation hearing shall state the charges upon which probable cause has been found and the evidence relied upon.
(e) Release notwithstanding probable cause. If the Commission finds probable cause to believe that the parolee has violated the conditions of his release, reinstatement to supervision or release pending further proceeding may nonetheless be ordered if it is determined that:
(1) Continuation of revocation proceedings is not warranted despite the violations found; or
(2) Incarceration pending further revocation proceedings is not warranted by the alleged frequency or seriousness of such violation or violations, and that the parolee is not likely to fail to appear for further proceedings, and that the parolee does not constitute a danger to himself or others.
(f) Conviction as probable cause. Conviction of a Federal, State, or local crime committed subsequent to release by a parolee shall constitute probable cause for the purposes of this section and no preliminary interview shall be conducted unless otherwise ordered by the Regional Commissioner.
(g) Local revocation hearing. A postponed preliminary interview may be conducted as a local revocation hearing by an examiner panel or other interviewing officer designated by the Regional Commissioner provided that the parolee has been advised that the postponed preliminary interview will constitute his final revocation hearing.
§ 2.49 Place of revocation hearing.
(a) If the parolee requests a local revocation hearing, he shall be given a revocation hearing reasonably near the place of the alleged violation(s) or arrest, if the following conditions are met:
(1) The parolee has not been convicted of a crime committed while under supervision; and
(2) The parolee denies that he has violated any condition of his release.
(b) The parolee shall also be given a local revocation hearing if he admits (or has been convicted of) one or more charged violations, but denies at least one unadjudicated charge that may be determinative of the Commission’s decision regarding revocation and/or reparole, and requests the presence of one or more adverse witnesses regarding that contested charge. If the appearance of such witness at the hearing is precluded by the Commission for good cause, a local revocation hearing shall not be ordered.
(c) If there are two or more alleged violations, the hearing may be conducted near the place of the violation chiefly relied upon as a basis for the issuance of the warrant or summons as determined by the Regional Commissioner.
(d)(1) A parolee shall be given an institutional revocation hearing upon the parolee’s return or recommitment to an institution if the parolee:
(i) Voluntarily waives the right to a local revocation hearing; or
(ii) Admits (or has been convicted of) one or more charged violations without contesting any unadjudicated charge that may be determinative of the Commission’s decision regarding revocation and/or reparole.
(2) On his own motion, the Regional Commissioner may designate any case described in paragraph (d)(1) of this section for a local revocation hearing. The difference in procedures between a “local revocation hearing” and an “institutional revocation hearing” is set forth in § 2.50(c).
(e) A parolee retaken on a warrant issued by the Commission shall be retained in custody until final action relative to revocation of his release, unless otherwise ordered by the Regional Commissioner under § 2.48(e)(2). A parolee who has been given a revocation hearing pursuant to the issuance of a summons under § 2.44 shall remain on supervision pending the decision of the Commission.
(f) A local revocation hearing shall be scheduled to be held within sixty days of the probable cause determination. Institutional revocation hearings shall be scheduled to be held within ninety days of the date of the execution of the violator warrant upon which the parolee was retaken. However, if a parolee requests and receives any postponement or consents to a postponed revocation proceeding, or if a parolee by his actions otherwise precludes the prompt conduct of such proceedings, the above-stated time limits may be extended. A local revocation hearing may be conducted by a hearing examiner, hearing examiner panel, or other official designated by the Regional Commissioner.
§ 2.50 Revocation hearing procedure.
(a) The purpose of the revocation hearing shall be to determine whether the parolee has violated the conditions of his release and, if so, whether his parole or mandatory release should be revoked or reinstated.
(b) The alleged violator may present witnesses, and documentary evidence in his behalf. However, the presiding hearing officer or examiner panel may limit or exclude any irrelevant or repetitious statement or documentary evidence.
(c) At a local revocation hearing, the Commission may on the request of the alleged violator or on its own motion, request the attendance of persons who have given statements upon which revocation may be based. Those witnesses who are present shall be made available for questioning and cross-examination in the presence of the alleged violator unless the presiding hearing officer or examiner panel finds good cause for their non-attendance. Adverse witnesses will not be requested to appear at institutional revocation hearings.
(d) All evidence upon which the finding of violation may be based shall be disclosed to the alleged violator at or before the revocation hearing. The hearing officer or examiner panel may disclose documentary evidence by permitting the alleged violator to examine the document during the hearing, or where appropriate, by reading or summarizing the document in the presence of the alleged violator.
(e) In lieu of an attorney, an alleged violator may be represented at a revocation hearing by a person of his choice. However, the role of such non-attorney representative shall be limited to offering a statement on the alleged violator’s behalf with regard to reparole or reinstatement to supervision.
(f) A revocation decision may be appealed under the provisions of § 2.26 or § 2.27 as applicable.
§ 2.51 Issuance of a subpoena for the appearance of witnesses or production of documents.
(a)(1) Preliminary interview or local revocation hearing: If any person who has given information upon which revocation may be based refuses, upon request by the Commission to appear, the Regional Commissioner may issue a subpoena for the appearance of such witness. Such subpoena may also be issued at the discretion of the Regional Commissioner in the event such adverse witness is judged unlikely to appear as requested.
(2) In addition, the Regional Commissioner may, upon his own motion or upon a showing by the parolee that a witness whose testimony is necessary to the proper disposition of his case will not appear voluntarily at a local revocation hearing or provide an adequate written statement of his testimony, issue a subpoena for the appearance of such witness at the revocation hearing.
(3) Both such subpoenas may also be issued at the discretion of the Regional Commissioner if it is deemed necessary for orderly processing of the case.
(b) A subpoena issued pursuant to paragraph (a) of this section above may require the production of documents as well as, or in lieu of, a personal appearance. The subpoena shall specify the time and the place at which the person named therein is commanded to appear, and shall specify any documents required to be produced.
(c) A subpoena may be served by any Federal officer authorized to serve criminal process. The subpoena may be served at any place within the judicial district in which the place specified in the subpoena is located, or any place where the witness may be found. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person.
(d) If a person refuses to obey such subpoena, the Commission may petition a court of the United States for the judicial district in which the parole proceeding is being conducted, or in which such person may be found, to require such person to appear, testify, or produce evidence. The court may issue an order requiring such person to appear before the Commission, and failure to obey such an order is punishable by contempt.
§ 2.52 Revocation decisions.
(a) Whenever a parolee is summoned or retaken by the Commission, and the Commission finds by a preponderance of the evidence, that the parolee has violated a condition of the parole, the Commission may take any of the following actions:
(1) Restore the parolee to supervision including where appropriate:
(i) Reprimand;
(ii) Modification of the parolee’s conditions of release;
(iii) Referral to a community corrections center for all or part of the remainder of his original sentence; or
(2) Revoke parole.
(b) If parole is revoked pursuant to this section, the Commission shall also determine, on the basis of the revocation hearing, whether reparole is warranted or whether the prisoner should be continued for further review.
(c) A parolee whose release is revoked by the Commission will receive credit on service of his sentence for time spent under supervision, except as provided below:
(1) If the Commission finds that such parolee intentionally refused or failed to respond to any reasonable request, order, summons or warrant of the Commission or any agent thereof, the Commission may order the forfeiture of the time during which the parolee so refused or failed to respond, and such time shall not be credited to service of the sentence.
(2) It is the Commission’s interpretation of 18 U.S.C. 4210(b)(2) that, if a parolee has been convicted of a new offense committed subsequent to his release on parole, which is punishable by any term of imprisonment, detention, or incarceration in any penal facility, forfeiture of time from the date of such release to the date of execution of the warrant is an automatic statutory penalty, and such time shall not be credited to the service of the sentence. An actual term of confinement or imprisonment need not have been imposed for such conviction; it suffices that the statute under which the parolee was convicted permits the trial court to impose any term of confinement or imprisonment in any penal facility. If such conviction occurs subsequent to a revocation hearing the Commission may reopen the case and schedule a further hearing relative to time forfeiture and such further disposition as may be appropriate. However, in no event shall the violator term imposed under this subsection, taken together with the time served before release, exceed the total length of the original sentence.
(d)(1) Notwithstanding the above, prisoners committed under the Narcotic Addict Rehabilitation Act or the Youth Corrections Act shall not be subject to any forfeiture provision, but shall serve uninterrupted sentences from the date of conviction, except as provided in § 2.10 (b) and (c).
(2) The commitment of a juvenile offender under the Federal Juvenile Delinquency Act may not be extended past the offender’s twenty-first birthday unless the juvenile has attained his nineteenth birthday at the time of his commitment, in which case his commitment shall not exceed the lesser of two years or the maximum term which could have been imposed on an adult convicted of the same offense.
(e) In determining whether to revoke parole for non-compliance with a condition of fine, restitution, court costs or assessment, and/or court ordered child support or alimony payment, the Parole Commission shall consider the parolee’s employment status, earning ability, financial resources, and any other special circumstances that may have a bearing on the matter. Revocation shall not be ordered unless the parolee is found to be deliberately evading or refusing compliance.
In the case of any revocation hearing conducted within the Ninth Circuit, the Commission will exercise discretion in determining whether or not to order forfeiture of all or part of the time spent on parole pursuant to 18 U.S.C. 4210(b)(2). The Commission’s policy shall be to consider granting credit for time on parole in the case of a parole violator originally classified in the very good risk category (pursuant to 28 CFR 2.20) if the following conditions are met. The conviction must not be for a felony offense. The parole violation behavior (the offense of conviction plus any other violations) must be non-violent, and not involve a repeat of the parole violator’s original offense behavior. Further, an adequate period of reimprisonment pursuant to the reparole guidelines at 28 CFR 2.21, and an adequate period of renewed supervision following release from reimprisonment or reinstatement to supervision, must be available without forfeiting street time. In the case of a parole violator originally classified in other than the “very good risk” category, it shall be the Commission’s policy to order the forfeiture of all time spent on parole absent extraordinary circumstances. In no instance will the Commission grant credit in the case of a repeat violator on the current sentence.
§ 2.53 Mandatory parole.
(a) A prisoner (including a prisoner sentenced under the Narcotic Addict Rehabilitation Act, Federal Juvenile Delinquency Act, or the provisions of 5010(c) of the Youth Corrections Act) serving a term or terms of 5 years or longer shall be released on parole after completion of two-thirds of each consecutive term or terms or after completion of 30 years of each term or terms of more than 45 years (including life terms), whichever comes earlier, unless pursuant to a hearing under this section, the Commission determines that there is a reasonable probability that the prisoner will commit any Federal, State, or local crime or that the prisoner has frequently or seriously violated the rules of the institution in which he is confined. If parole is denied pursuant to this section, such prisoner shall serve until the expiration of his sentence less good time.
(b) When feasible, at least 60 days prior to the scheduled two-thirds date, a review of the record shall be conducted by an examiner panel. If a mandatory parole is ordered following this review, no hearing shall be conducted.
(c) A prisoner released on mandatory parole pursuant to this section shall remain under supervision until the expiration of the full term of his sentence unless the Commission terminates parole supervision pursuant to § 2.43 prior to the full term date of the sentence.
(d) A prisoner whose parole has been revoked and whose parole violator term is 5 years or more shall be eligible for mandatory parole under the provisions of this section upon completion of two-thirds of the violator term and shall be considered for mandatory parole under the same terms as any other eligible prisoner.
§ 2.54 Reviews pursuant to 18 U.S.C. 4215(c).
The Attorney General, within thirty days after entry of a Regional Commissioner’s decision, may request in writing that the National Appeals Board review such decision. Within sixty days of the receipt of the request the National Appeals Board shall, upon the concurrence of two members, affirm, modify, or reverse the decision, or order a rehearing at the institutional or regional level. The Attorney General and the prisoner affected shall be informed in writing of the decision, and the reasons therefor.
§ 2.55 Disclosure of file prior to parole hearing.
(a) Processing disclosure requests. At least 60 days prior to a hearing scheduled pursuant to 28 CFR 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination.
(1) The Commission’s file consists mainly of documents provided by the Bureau of Prisons. Therefore, disclosure of documents used by the Commission can normally be accomplished by disclosure of documents in a prisoner’s institutional file. Requests for disclosure of a prisoner’s institutional file will be handled under the Bureau of Prison’s disclosure regulations. The Bureau of Prisons has 15 days from date of receipt of a disclosure request to respond to that request.
(2) A prisoner may also request disclosure of documents used by the Commission which are contained in the Commission’s regional office file but not in the prisoner’s institutional file.
(3) Upon the prisoner’s request, a representative shall be given access to the presentence investigation report reasonably in advance of the initial hearing, interim hearing, and a 15-year reconsideration hearing, pursuant and subject to the regulations of the U.S. Bureau of Prisons. Disclosure shall not be permitted with respect to confidential material withheld by the sentencing court under Rule 32(c)(3)(A), F.R.Crim.P.
(b) Scope of disclosure. The scope of disclosure under this section is limited to reports and other documents to be used by the Commission in making its determination. At statutory interim hearings conducted pursuant to 28 CFR 2.14 the Commission only considers information concerning significant developments or changes in the prisoner’s status since the initial hearing or a prior interim hearing. Therefore, prehearing disclosure for interim hearings will be limited to such information.
(c) Exemption to disclosure (18 U.S.C. 4208(c)). A document may be withheld from disclosure to the extent it contains:
(1) Diagnostic opinions which, if known to the prisoner, could lead to a serious disruption of his institutional program;
(2) Material which would reveal a source of information obtained upon a promise of confidentiality; or
(3) Any other information which, if disclosed, might result in harm, physical or otherwise to any person.
(d) Summarizing nondisclosable documents. If any document or portion of a document is found by the Commission, the Bureau of Prisons or the originating agency to fall within an exemption to disclosure, the agency shall:
(1) Identify the material to be withheld; and
(2) State the exemption to disclosure under paragraph (c) of this section; and
(3) Provide the prisoner with a summary of the basic content of the material withheld with as much specificity as possible without revealing the nondisclosable information.
(e) Waiver of disclosure. When a timely request has been made for disclosure, if any document or summary of a document relevant to the parole determination has not been disclosed 30 days prior to the hearing, the prisoner shall be offered the opportunity to waive disclosure of such document without prejudice to his right to later review the document or a summary of the document. The examiner panel may disclose the document and proceed with the hearing so long as the prisoner waives his right to advance disclosure. If the prisoner chooses not to waive prehearing disclosure, the examiner panel shall continue the hearing to the next docket to permit disclosure. A continuance for disclosure should not be extended beyond the next hearing docket.
(f) Late received documents. If a document containing new and significant adverse information is received after a parole hearing but before all review and appellate procedures have been concluded, the prisoner shall be given a rehearing on the next docket. A copy of the document shall be forwarded to the institution for inclusion in the prisoner’s institutional file. The Commission shall notify the prisoner of the new hearing and his right to request disclosure of the document pursuant to this section. If a late received document provides favorable information, merely restates already available information or provides insignificant information, the case will not be reopened for disclosure.
(g) Reopened cases. Whenever a case is reopened for a new hearing and there is a document the Commission intends to use in making its determination, a copy of the document shall be forwarded for inclusion in the prisoner’s institutional file and the prisoner shall be informed of his right to request disclosure of the document pursuant to this section.
§ 2.56 Disclosure of Parole Commission file.
(a) Procedure. Copies of disclosable records pertaining to a prisoner or a parolee which are contained in the subject’s Parole Commission file may be obtained by that prisoner or parolee upon written request pursuant to this section. Such requests shall be answered as soon as possible in the order of their receipt. Other persons may obtain copies of such documents only upon proof of authorization from the prisoner or parolee concerned or to the extent permissible under the Freedom of Information Act or the Privacy Act of 1974.
(b) Scope of disclosure. Disclosure under this section shall extend to Commission documents concerning the prisoner or parolee making the request. Documents which are contained in the regional file and which are prepared by agencies other than the Commission which are also subject to the provisions of the Freedom of Information Act, shall be referred to the appropriate agency for a response pursuant to its regulations, unless the document has previously been prepared for disclosure pursuant to § 2.55, or is fully disclosable on its face, or has been prepared by the Bureau of Prisons. Any Bureau of Prisons documents in a parole file are duplicates of records in the inmate’s institutional file. Before referring these documents to the Bureau of Prisons (BOP), the Commission will ask the requestor whether he also wants the BOP documents in his parole file processed.
(1) Requests that are only for a copy of the tape recording of a hearing will be processed ahead of requests seeking multiple documents from the Parole Commission file (priority processing). A requester may limit the scope of the request to a tape recording only (or to a tape recording and/or up to two documents) and thereby qualify for priority processing. For example, a request for the tape recording and the examiner’s summary of a hearing qualifies for priority processing.
(2) [Reserved]
(c) Exemptions to disclosure. A document or segregable portion thereof may be withheld from disclosure to the extent it contains material exempt from disclosure under the Freedom of Information Act. 5 U.S.C. 552(b)(1)-(9).
(d) Specification of documents withheld. Documents that are withheld pursuant to paragraph (c) of this section shall be identified for the requester together with the applicable exemption for withholding each document or portion thereof. In addition, the requester must be informed of the right to appeal any non-disclosure to the Office of the Chairman.
(e) Hearing record. Upon request by the prisoner or parolee concerned, the Commission shall make available a copy of any verbatim record (e.g., tape recording) which it has retained of a hearing, pursuant to 18 U.S.C. 4208(f).
(f) Costs. In any case in which billable costs exceed $14.00 (based upon the provisions and fee schedules as set forth in the Department of Justice regulation 28 CFR 16.10), requesters will be notified that they will be required to reimburse the United States for such costs before copies are released.
(g) Relation to other provisions. Disclosure under this section is authorized by 28 CFR 16.85 under which the Parole Commission is exempt from the record disclosure provisions of the Privacy Act of 1974, as well as certain other provisions of the Act pursuant to 5 U.S.C. 552a(j)(2). Requests submitted under the Freedom of Information Act or the Privacy Act for the requester’s own records will be processed under this section. In no event will the Commission consider satisfaction of a request under this section, the Freedom of Information Act, or the Privacy Act of 1974, to be a prerequisite to an adequate parole hearing under 18 U.S.C. 4208 (for which disclosure is exclusively governed by § 2.55 of this part) or to the exercise of a parole applicant’s appeal rights under 18 U.S.C. 4215. Provisions of the Freedom of Information Act not specifically addressed by these regulations (including the reading room) are covered by 28 CFR, part 16, subpart A.
(h) Appeals—(1) Appeals to the Chairman. When a request for access to Parole Commission records or a waiver of fees has been denied in whole or in part, or when the Commission fails to respond to a request within the time limits set forth in the FOIA, the requester may appeal the denial of the request to the Chairman of the Commission within thirty days from the date of the notice denying the request. An appeal to the Chairman shall be made in writing and addressed to the Office of the Chairman, U.S. Parole Commission, 5550 Friendship Boulevard, Suite 420, Chevy Chase, Maryland 20815.
(2) Decision on appeal. A decision affirming in whole or in part the denial of a request shall include a brief statement of the reason or reasons for the affirmance, including each FOIA exemption relied upon and its relation to each record withheld, and a statement that judicial review of the denial is available in the U.S. district court for the judicial district in which the requester resides or has his principal place of business, the judicial district in which the requested records are located, or in the District of Columbia. If the denial of a request is reversed on appeal to the Chairman, the requester shall be so notified and the request shall be processed promptly by Commission staff in accordance with the Chairman’s decision on appeal.
(i) Expedited processing of Requests. (1) The Commission will provide expedited processing of a request when a requester has demonstrated a compelling need as defined in this section and has presented a statement certified by such person to be true and correct to the best of such person’s knowledge and belief. A requester may demonstrate “compelling need” by establishing one of the following:
(i) That failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged federal government activity.
(2) A determination as to whether to provide expedited processing shall be made within ten days after the date of the request. However, the fact of lawful imprisonment in a correctional facility or revocation of parole shall not be deemed to pose an imminent threat to the life or physical safety of an individual. The Commission shall process as soon as practicable any request for records to which it has granted expedited processing. An administrative appeal of a denial of expedited processing may be made to the Chairman of the Commission within thirty days from the date of notice denying expedited processing.
§ 2.57 Special parole terms.
(a) The Drug Abuse Prevention and Control Act, 21 U.S.C. sections 801 to 966, provides that, on conviction of certain offenses, mandatory “special parole terms” must be imposed by the court as part of the sentence. This term is an additional period of supervision which commences upon completion of any period on parole or mandatory release supervision from the regular sentence; or if the prisoner is released without supervision, commences upon such release.
(b) At the time of release under the regular sentence, whether under full term expiration or under a mandatory release certificate or a parole certificate, a separate Special Parole Term certificate will be issued to the prisoner by the Bureau of Prisons.
(c) Should a parolee be found to have violated conditions of release during supervision under his regular sentence, i.e., before commencement of the Special Parole Term, he may be returned as a violator under his regular sentence; the Special Parole Term will follow unaffected, as in paragraph (a) of this section. Should a parolee violate conditions of release during the Special Parole Term he will be subject to revocation on the Special Parole Term as provided in § 2.52, and subject to reparole or mandatory release under the Special Parole Term. Notwithstanding the provisions of § 2.52(c), a special parole term violator whose parole is revoked shall receive no credit for time spent on parole pursuant to 21 U.S.C. 841(c).
(d) If a prisoner is reparoled under the revoked Special Parole Term a certificate of parole to Special Parole Term is issued by the Commission. If the prisoner is mandatorily released under the revoked “special parole term” a certificate of mandatory release to Special Parole Term will be issued by the Bureau of Prisons.
(e) If regular parole or mandatory release supervision is terminated under § 2.43, the Special Parole Term commences to run at that point in time. Early termination from supervision from a Special Parole Term may occur as in the case of a regular parole term, except that the time periods considered shall commence from the beginning of the Special Parole Term.
§ 2.58 Prior orders.
Any order of the United States Board of Parole entered prior to May 14, 1976, including, but not limited to, orders granting, denying, rescinding or revoking parole or mandatory release, shall be a valid order of the United States Parole Commission according to the terms stated in the order.
§ 2.59 Delegation to Commissioners.
There is hereby delegated to Commissioners the authority to conduct hearings, with the Commissioner’s consent, and the powers enumerated in 18 U.S.C. 4203(b) to grant or deny parole or mandatory release, impose reasonable conditions of parole or mandatory release, modify or revoke parole or mandatory release.
§ 2.60 Superior program achievement.
(a) Prisoners who demonstrate superior program achievement (in addition to a good conduct record) may be considered for a limited advancement of the presumptive date previously set according to the schedule below. Such reduction will normally be considered at an interim hearing or pre-release review. It is to be stressed that a clear conduct record is expected; this reduction applies only to cases with documented sustained superior program achievement over a period of 9 months or more in custody.
(b) Superior program achievement may be demonstrated in areas such as educational, vocational, industry, or counseling programs, and is to be considered in light of the specifics of each case. A report from the Bureau of Prisons based upon successful completion of a residential substance abuse program of at least 500 hours will be given prompt review by the Commission for a possible advancement under this section.
(c) Upon a finding of superior program achievement, a previously set presumptive date may be advanced. The normal maximum advancement permissible for superior program achievement during the prisoner’s entire term shall be as set forth in the following schedule. It is the intent of the Commission that this maximum be exceeded only in the most clearly exceptional cases.
(d) Partial advancements may be given (for example, a case with superior program achievement during only part of the term or a case with both superior program achievement and minor disciplinary infraction(s)). Advancements may be given at different times; however, the limits set forth in the following schedule shall apply to the total combined advancement.
(e) Schedule of Permissible Reductions for Superior Program Achievement.
| Total months required by original presumptive date | Permissible reduction |
|---|---|
| 14 months or less | Not applicable. |
| 15 to 22 months | Up to 1 month. |
| 23 to 30 months | Up to 2 months. |
| 31 to 36 months | Up to 3 months. |
| 37 to 42 months | Up to 4 months. |
| 43 to 48 months | Up to 5 months. |
| 49 to 54 months | Up to 6 months. |
| 55 to 60 months | Up to 7 months. |
| 61 to 66 months | Up to 8 months. |
| 67 to 72 months | Up to 9 months. |
| 73 to 78 months | Up to 10 months. |
| 79 to 84 months | Up to 11 months. |
| 85 to 90 months | Up to 12 months. |
| 91 plus months | Up to 13 months. 1 |
1 Plus up to 1 additional month for each 6 months or fraction thereof, by which the original date exceeds 96 months.
(f) For cases originally continued to expiration, the statutory good time date (calculated under 18 U.S.C. 4161) will be used for computing the maximum reduction permissible and as the base from which the reduction is to be subtracted for prisoners serving sentences of less than five years. For prisoners serving sentences of five or more, the two-thirds date (calculated pursuant to 18 U.S.C. 4206(d)) will be used for these purposes. If the prisoner’s presumptive release date has been further reduced by extra good time (18 U.S.C. 4162) and such reduction equals or exceeds the reduction applicable for superior program achievement, the Commission will not give an additional reduction for superior program achievement.
§ 2.61 Qualifications of representatives.
(a) A prisoner or parolee may select any person to appear as his or her representative in any proceeding, and any representative will be deemed qualified unless specifically disqualified under paragraph (b) or (c) of this section. However, an examiner or examiner panel may bar an otherwise qualified representative from participating in a particular hearing, provided good cause for such action is found and stated in the record (e.g., willfully disruptive conduct during the hearing by repeated interruption or use of abusive language). In certain situations, good cause may be found in advance of the hearing (e.g., that the proposed representative is a prisoner in disciplinary segregation whose presence at the hearing would pose a risk to security, or has a personal interest in the case which appears to conflict with that of the parole applicant).
(b) The Commission may disqualify any representative from appearing before it for up to a five-year period if, following a hearing, the Commission finds that the representative has engaged in any conduct which demonstrates a clear lack of personal integrity or fitness to practice before the Commission (including, but not limited to, deliberate or repetitive provision of false information to the Commission, or solicitation of clients on the strength of purported personal influence with U.S. Parole Commissioners or staff).
(c)(1) In addition to the prohibitions contained in 18 U.S.C. 207, no former employee of any Federal criminal justice agency (in either the Executive or Judicial Branch of the Government) with the exception of the Federal Defender Service, shall be qualified to act as a representative for hire in any case before the Commission for one year following termination of Federal employment. However, such persons may be employed by, or perform consulting services for, a private firm or other organization providing representation before the agency, to the extent that such employment or service does not include the performance of any representational act before the Commission.
(2) No prisoner or parolee may serve as a representative before the Commission, at the hire of individual clients, in any case.
§ 2.62 Rewarding assistance in the prosecution of other offenders; criteria and guidelines.
(a) The Commission may consider as a factor in the parole release decision-making a prisoner’s assistance to law enforcement authorities in the prosecution of other offenders.
(1) The assistance must have been an important factor in the investigation and/or prosecution of an offender other than the prisoner. Other significant assistance (e.g., providing information critical to prison security) may also be considered.
(2) The assistance must be reported to the Commission in sufficient detail to permit a full evaluation. However, no promises, express or implied, as to a Parole Commission reward shall be given any weight in evaluating a recommendation for leniency.
(3) The release of the prisoner must not threaten the public safety.
(4) The assistance must not have been adequately rewarded by other official action.
(b) If the assistance meets the above criteria, the Commission may consider providing a reduction of up to one year from the presumptive parole date that the Commission would have deemed warranted had such assistance not occurred. If the prisoner would have been continued to the expiration of sentence, any reduction will be taken from the actual date of the expiration of the sentence. Reductions exceeding the one year limit specified above may be considered only in exceptional circumstances.
(c) In the case of an eligible DC Code prisoner whose assistance meets the criteria of this section, the Commission may consider deducting a point under Category V of the Point Assignment Table at § 2.80, in addition to any other deduction for positive program achievement, when considering such prisoner for parole. In the case of a DC Code prisoner with an unserved minimum term, the Commission may consider filing an application under § 2.76 for a reduction of up to one-third of such term less applicable good time.
§ 2.63 Quorum and voting requirements.
(a) A quorum of the Commission consists of the majority of those Commissioners holding office at the time an action is under consideration. Any action authorized by law may be decided by the majority vote of the Commissioners holding office at the time the action is taken. Voting requirements in parole decision-making are established in other provisions of this part, including paragraphs (b) and (c) of this section.
(b)(1) In the event of a tie vote of the Commission’s membership on an issue that requires the vote or authorization of the Commission, the issue that is the subject of the vote is not adopted by the Commission.
(2) If the matter that is the subject of the tie vote is whether to reopen or reconsider a previous decision of the Commission, the previous decision shall remain in effect. This includes decisions as to whether to rescind a parole date, to revoke parole or supervised release, or to grant parole after parole has been denied under 18 U.S.C. 4206(d).
(3) If the matter that is the subject of a tie vote is whether to grant parole at any initial hearing, 15-year reconsideration hearing, or D.C. Code rehearing, that decision shall be the Commissioner vote that is in agreement with the hearing examiner panel. If there is a tie vote and no commissioner agrees with the hearing examiner panel, then the decision will be the Commissioner’s vote most favorable to the prisoner.
(4) If the matter that is the subject of the tie vote is whether to grant or deny release at the two-thirds date of the sentence per 18 U.S.C. 4206(d), or to terminate parole after the parolee has been on parole for 5 years per 18 U.S.C. 4211(c) and D.C. Code sec. 24-404(a-1)(3), the prisoner must be granted release under the statute or parole must be terminated respectively.
(5) If the matter that is the subject of a tie vote is a decision under appellate review per § 2.26, if no concurrence is reached, the decision under appellate review shall be considered affirmed. This rule also applies to decisions under § 2.17 to remove a case from the original jurisdiction of the Commission.
(6) The Commission may re-vote on a case disposition to resolve a tie vote or other impasse in satisfying a voting requirement of these rules.
(c) If there is only one Commissioner holding office, all provisions in these rules requiring concurring votes or resolving split decisions are suspended until the membership of the Commission is increased, and any action may be taken by one Commissioner.
§ 2.64 Youth Corrections Act.
(a) The provisions of this section only apply to offenders serving sentences imposed under former 18 U.S.C. section 5010 (b) and (c).
(b) Approval of program plans. (1) The criteria outlined in paragraph (d) of this section (on determining successful response to treatment) shall be considered in determining whether a proposed program plan will effectively reduce the risk to the public welfare presented by the YCA prisoner’s release.
(2) If the prisoner’s program plan has not already been approved by the Commission, the examiner panel shall be given the plan at a hearing for review and approval. The examiners shall indicate their approval or disapproval of the program plan (with relevant comments and recommendations) in the hearing summary.
(3) If the examiners consider the plan inadequate, they will discuss their concerns with institutional staff. If there is still a disagreement on the plan, the case will be referred to the Bureau’s regional correctional programs administrator with the recommended changes. Unresolved disputes concerning the adequacy of the program plan shall be decided by the Regional Commissioner and the Regional Director of the Bureau of Prisons. The Regional Commissioner shall render the final decision on approving or disapproving each program plan on behalf of the Commission. Once the program plan has been approved, subsequent approvals are not necessary, unless significant modifications are made by institutional staff.
(c) Parole hearings and progress reports. (1) Initial hearings shall be conducted in accordance with §§ 2.12 and 2.13. The examiner panel will discuss with the prisoner and a staff member who is knowledgeable about the case the program plan and the importance of good conduct and program participation is setting the release date.
(2) An interim hearing must be scheduled for an inmate every nine months if the inmate is serving a sentence of less than seven years. If the inmate is serving a sentence of seven years or more, the interim hearing must be scheduled every twelve months. If the inmate has been continued to the expiration of his sentence, and he has less than twelve months remaining to be served prior to his release or his transfer to a community corrections center, no further hearing is required. In addition, within 60 days of receipt of any special progress report from the warden recommending parole, the prisoner shall be scheduled for a special interim hearing, unless the recommendation can be timely considered at a regularly scheduled interim hearing. An institutional staff member who has personal knowledge of the case shall be present to assist the examiners in their evaluation of the prisoner’s conduct, program performance, and response to treatment.
(3) After any interim hearing or review on the record, the Commission may advance the presumptive release date, let the date stand, or retard/rescind the date if the prisoner has committed disciplinary infractions or new criminal conduct.
(4) An interim hearing will not be scheduled after receipt of a progress report, if the Commission decides on the record to parole the prisoner as soon as a release plan is approved (normally within 60 days of the decision).
(5) The institution shall send a progress report to the Commission:
(i) No more than 60 days before each interim hearing;
(ii) Upon determining that a prisoner should be recommended for parole; and
(iii) Before presumptive parole date to allow for the pre-release record review under § 2.14(b).
(6) For prisoners granted earlier parole dates under former compliance plans in Watts v. Bleaski: A prisoner may waive interim hearings under this section, in which case he would retain an alternative parole date previously granted to him or a presumptive parole date granted as a result of a finding that the prisoner had responded to treatment. A prisoner who waives an interim hearing under this section may, at any time, re-apply for the hearing and be considered under this section in accordance with the application/waiver provisions at § 2.11. The Commission will not review the program plans for prisoners who waive interim hearings pursuant to this paragraph, unless the prisoner subsequently is scheduled for a hearing to consider new criminal conduct or a rule infraction and a modification of the original program plan appears warranted due to the prisoner’s new criminal offense or infraction. If the prisoner is scheduled for a hearing that may not be waived (e.g., an interim hearing where there has been a finding of a disciplinary infraction since the last hearing, or any hearing scheduled pursuant to § 2.28 (b) through (f), this section will be applied at such hearing.
(7) Warden’s recommendation. Based on the completion of the program by the prisoner, and the quality of effort demonstrated by the prisoner in completing the plan, the warden will recommend to the Commission a conditional release date for its consideration. This recommendation shall be accompanied by a report on the prisoner’s participation and level of achievement in different aspects of his program.
(d) Criteria for finding successful response to treatment programs. (1) In determining whether a prisoner has successfully “responded to treatment” the Commission shall examine whether the prisoner has shown that he has received sufficient corrective training, counseling, education, and therapy that the public would not be endangered by his release. See former 18 U.S.C. 5006(f) (definition of “treatment” under the YCA). The Bureau of Prisons shall assist the Commission in this determination by informing the Commission when the prisoner has completed his program plan and by advising the Commission of the quality of effort demonstrated by the prisoner in completing the plan.
(2) In determining the extent of a prisoner’s positive response to treatment, the Commission shall examine the degree by which the prisoner has increased the likelihood that his release would not jeopardize public welfare through his program performance and conduct record. See 18 U.S.C. 4206(a)(2). The starting report for the analysis of a prisoner’s response to treatment will be the original parole prognosis reached by the use of the salient factor score, and an evaluation of the nature of the prisoner’s prior criminal history and other characteristics of the prisoner. The nature of the current offense may also be considered in determining the risk to the public welfare presented by the prisoner’s release. The Commission will then proceed to evaluate whether the prisoner’s program participation and institutional conduct has improved the original risk prognosis and evidences an alteration of his valued system, including an understanding of the wrongfulness of his past criminal conduct. For those prisoners who have exhibited serious or violent criminal behavior, the Commission will exercise more caution in making a finding that the prisoner has responded to treatment to the degree that he should be released.
(3) With regard to program performance, significant weight will be given to the following factors in determining a prisoner’s response to treatment. This is not intended as an exhaustive list.
(i) Vocational training: Where the inmate originally had few job skills, the acquisition of a marketable job skill through vocational training or an apprenticeship program.
(ii) Education: Participation in educational programs to acquire an educational level at least the level of a high school graduate.
(iii) Psychological counseling and therapy: Where the prisoner’s behavior has shown that he may be affected by personality disorders or a mental illness that has hampered his ability to lead a law-abiding life, or that he may otherwise benefit from such programs, participation in psychological and/or other specialized programs which lead to a judgment by the therapist/counselor that the prisoner has significantly improved his ability to obey the law and favorably modified his value system. Participation in these programs will normally be required for a significant advancement of the presumptive release date for a prisoner who has either committed or attempted a crime of violence.
(iv) Drug/alcohol abuse programs: Where the prisoner has a history of drug/alcohol abuse, participation in a drug/alcohol abuse program which leads to the judgment by the therapist/counselor that there is a significant likelihood that the prisoner will not revert to drug/alcohol abuse and has thereby significantly improved his ability to obey the law.
(v) Work: Assuming the prisoner is physically and mentally able to do so and is not otherwise engaged in an institutional activity which prevents him from obtaining a job, participation in a job on a regular basis so as to demonstrate a stable life pattern and a favorable modification of his value system.
(4) Prison misconduct (i.e., disobedience to institutional rules, escape) and new criminal conduct in the institution shall be considered in the decision as to whether (or to what degree) a prisoner has successfully responded to treatment. The rescission guidelines of 2.36 shall be used in retarding or rescinding the original presumptive release date set according to the guidelines and the factors described in 18 U.S.C. 4206. If the original presumptive date has been advanced based on response to treatment, the rescission guidelines may also be used to retard or rescind the new date to maintain institutional discipline, if the misconduct is not deemed serious enough to affect the decision that the prisoner has responded to treatment. But misconduct subsequent to the advancement of a release date based on a finding of response to treatment may also result in a reversal of that finding and the cancellation of any advancement of the original presumptive release date.
(e) Setting the parole date (balancing section 4206 factors with response to treatment). At any hearing or review on the record, the presumptive release date may be advanced if it is determined that the prisoner has responded to a sufficient degree to his treatment programs. The amount of the advancement should be proportional to the degree of response evidenced by the prisoner. In making the advancement, no rule restricting the amount of the reduction—whether based on the guidelines (§ 2.20) or the rule on superior program achievement (§ 2.60)—shall be used. The decision will be the result of a case-by-case evaluation in which response to treatment programs, the seriousness of the offense, and the original parole pro