Designation of Officers and Employees of the United States for Coverage Under Section 1114 of Title 18 of the United States Code

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 64

[AG Order No. 1874-94]

Designation of Officers and Employees of the United States for

Coverage Under Section 1114 of Title 18 of the United States Code

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: Part 64 of title 28, Code of Federal Regulations, designates

categories of federal officers and employees who, in addition to those

already designated by statute, warrant the protective coverage of

federal criminal law. This designation confers federal jurisdiction to

prosecute the killing, attempted killing, kidnaping, forcible assault,

intimidation or interference with any of the federal officers or

employees designated by this regulation while they are engaged in or on

account of the performance of their official duties. This order adds to

the list of covered federal officers and employees federal

administrative law judges not previously covered and employees of the

Office of Workers' Compensation Programs of the Department of Labor who

adjudicate and administer claims under the Federal Employees'

Compensation Act, the Longshore and Harbor Workers' Compensation Act

and its extension, and the Black Lung Benefits Act. The order also

makes technical corrections and deletes duplicative designations.

DATES: This interim rule is effective May 18, 1994. Written comments

must be submitted on or before June 17, 1994.

ADDRESSES: Please submit written comments to: Mary Incontro, Deputy

Chief, or Stephen M. Weglian, Attorney, Terrorism and Violent Crime

Section, Criminal Division, Department of Justice, room 2513, 10th and

Constitution Avenue, NW., Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT:

Mary Incontro, Deputy Chief, or Stephen M. Weglian, Attorney, Terrorism

and Violent Crime Section, Criminal Division, Department of Justice,

Washington, DC 20530, telephone (202) 514-0849.

SUPPLEMENTARY INFORMATION: Part K of chapter X of the Comprehensive

Crime Control Act of 1984, Public Law 98-473, tit. II, section 1012, 98

Stat. 1976, 2142 (1984), amended 18 U.S.C. 1114, which prohibits the

killing of designated federal employees, to authorize the Attorney

General to add by regulation other federal personnel who will be

protected by this section. The categories of federal officers and

employees covered by section 1114 are also protected, while engaged in

or on account of the performance of their official duties, from a

conspiracy to kill, 18 U.S.C. 1117; kidnaping, 18 U.S.C. 1201(a)(5);

forcible assault, interference, or intimidation, 18 U.S.C. 111; and

threat of assault, kidnap or murder with intent to impede, intimidate,

or retaliate against such officer or employee, 18 U.S.C. 115.

In order to implement this legislation initially, the Department

conducted a survey of all federal agencies to determine which federal

employees, other than those already listed in 18 U.S.C. 1114, should be

protected under the statute. The result of this survey was the

promulgation of Attorney General Order No. 1177-87, 52 FR 4767,

February 17, 1987, creating 28 CFR part 64. Section 64.1 states the

purpose of the regulation. Section 64.2 originally listed 21 categories

of federal employees who were considered appropriate for coverage under

section 1114 and the other statutory provisions. Consistent with the

purpose and legislative history of section 1114, these categories of

federal employees were selected because their jobs involve inspection,

investigative or other law enforcement responsibility or their work

involves a substantial degree of physical danger from the public that

may not be adequately addressed by available state or local law

enforcement resources. Part 64 has been amended four times to add

additional categories of personnel (Attorney General Order No. 1326-89,

54 FR 9043, March 3, 1989; Attorney General Order No. 1394-90, 55 FR

3945, February 6, 1990; Attorney General Order No. 1508-91, 56 FR

32327, July 16, 1991; Attorney General Order No. 1636-92, 57 FR 56444,

November 30, 1992).

Attorney General No. 1636-92 established an interim rule that,

besides making various technical modifications to part 64, added these

categories of employees: (1) Attorneys and employees assigned to

perform or to assist in performing, investigative, inspection or audit

functions of the Office of the Inspector General of certain designated

Federal entities as that term is defined by section 8E of the Inspector

General Act of 1978, as amended, 5 U.S.C. app 3 section 8E, and of the

Merit Systems Protection Board and the Selective Service System; (2)

attorneys, accountants, investigators, administrative judges and other

employees of the U.S. Securities and Exchange Commission assigned to

perform or to assist in performing investigative, inspection or other

law enforcement functions; (3) biologists and technicians of the U.S.

Fish and Wildlife Service who are participating in sea lamprey control

operations; (4) officers and employees of the Federal Aviation

Administration, the Federal Highway Administration, the Federal

Railroad Administration, the Research and Special Programs

Administration, and the Saint Lawrence Seaway Development Corporation

of the U.S. Department of Transportation who are assigned to perform or

assist in performing investigative, inspection or law enforcement

functions; and (5) U.S. Trustees and Assistant U.S. Trustees, and

bankruptcy analysts and other officers and employees of the U.S.

Trustee System who have contact with creditors and debtors, perform

audit functions, or perform other investigative or enforcement

functions in administering the bankruptcy laws. No public comments were

received.

Administrative law judges (ALJs) perform law enforcement functions

under various federal laws. In recent years ALJs have been recipients

of an increasing number of threats, often by litigants in proceedings

before ALJs who have considerable property interests at stake.

Presently, there are over 1000 ALJs in nearly 30 federal agencies. Some

of the ALJs in the Social Security Administration and the Securities

and Exchange Commission are currently covered by Sec. 64.2 (x) and (w),

respectively. While these ALJs comprise nearly 70% of all federal ALJs,

there is no valid reason for not covering the others who experience

similar risks. Accordingly, all administrative law judges have been

added by paragraph (aa) of Sec. 64.2.

The Office of Workers' Compensation Programs (OWCP) of the

Department of Labor administers three workers' compensation laws: the

Federal Employees' Compensation Act (FECA); the Longshore and Harbor

Workers' Compensation Act (LHWCA) and its extension; and the Black Lung

Benefits Act (BLBA). OWCP employees adjudicate and administer claims

which result in the payment (or denial) of benefits under these

respective laws. As part of this process, the employees conduct

informal conferences and (under FECA) face-to-face hearings. The

individual claims examiner's identity is well known to claimants, as

are the supervisors and managers involved at all levels of the program.

These employees' jobs involve a substantial risk of physical danger

from some claimants and other members of the public who seek to

influence the outcome of the claim or who are dissatisfied with the

decisions rendered. In recent years an increased number of threats and

acts of violence have been directed against OWCP employees. There have

been instances in which individuals have appeared in OWCP offices with

vicious dogs, with purported explosives strapped to them, and with

firearms and other dangerous weapons. Accordingly, these OWCP employees

have been added by paragraph (bb) of Sec. 64.2.

Because of new paragraph (aa), reference to ``administrative

judges'' in paragraph (w) has been deleted. Also, because section 6 of

Public Law 102-365, 106 Stat. 975, September 3, 1992, added to section

1114 of title 18, U.S.C., ``any officer or employee of the Federal

Railroad Administration assigned to perform investigative inspection or

law enforcement functions,'' reference to the Federal Railroad

Administration has been deleted from paragraph (z).

The Department of Justice's implementation of this rule as an

interim rule, with provisions for post-promulgation public comment, is

based upon the ``good cause'' exception found at 5 U.S.C. 553(d).

Immediate application of this order is necessary to provide protection

to those federal officials designated by this other.

This rule was not reviewed by the Office of Management and Budget

pursuant to Executive Order 12866. This order will not have a

substantial impact on a significant number of small entities, thus a

regulatory flexibility analysis has not been prepared pursuant to the

Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Finally, this order

does not have Federalism implications warranting the preparation of a

Federalism Assessment in accordance with E.O. 12612.

List of Subjects in 28 CFR Part 64

Crime, Government employees, Law enforcement officers.

By virtue of the authority vested in me by 28 U.S.C. 509, 5 U.S.C.

301, and 18 U.S.C. 1114, part 64 of chapter I of title 28, Code of

Federal Regulations, is hereby amended as follows:

PART 64--DESIGNATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES

FOR COVERAGE UNDER SECTION 1114 OF TITLE 18 OF THE U.S. CODE

1. The authority citation for part 64 continues to read as follows:

Authority: 18 U.S.C. 1114, 28 U.S.C. 509, 5 U.S.C. 301.

2. Section 64.1 is revised to read as follows:

Sec. 64.1 Purpose.

This regulation designates categories of federal officers and

employees in addition to those already designated by the statute, who

will be within the protective coverage of 18 U.S.C. 1114, which

prohibits the killing or attempted killing of such designated officers

and employees. The categories of federal officers and employees covered

by section 1114 are also protected, while they are engaged in or on

account of the performance of their official duties, from a conspiracy

to kill, 18 U.S.C. 1117; kidnaping, 18 U.S.C. 1201(a)(5); forcible

assault, intimidation, or interference, 18 U.S.C. 111; and threat of

assault, kidnap or murder with intent to impede, intimidate, or

retaliate against such officer or employee, 18 U.S.C. 115(a)(1)(B). In

addition, the immediate family members of such officers and employees

are protected against assault, kidnap, murder, attempt to kidnap or

murder, and threat to assault, kidnap, or murder with intent to impede,

intimidate, or retaliate against such officer or employee, 18 U.S.C.

115(a)(1)(A). The protective coverage has been extended to those

federal officers and employees whose jobs involve inspection,

investigative or law enforcement responsibilities, or whose work

involves a substantial degree of physical danger from the public that

may not be adequately addressed by available state or local law

enforcement resources.

3. Section 64.2 is revised to read as follows:

Sec. 64.2 Designated officers and employees.

The following categories of federal officers and employees are

designated for coverage under section 1114 of title 18 of the U.S.

Code:

(a) Judges and special trial judges of the U.S. Tax Court;

(b) Commissioners and employees of the U.S. Parole Commission;

(c) Attorneys of the Department of Justice;

(d) Resettlement specialists and conciliators of the Community

Relations Service of the Department of Justice;

(e) Officers and employees of the Bureau of Prisons;

(f) Criminal investigators employed by a U.S. Attorney's Office;

and employees of a U.S. Attorney's Office assigned to perform debt

collection functions;

(g) U.S. Trustees and Assistant U.S. Trustees; bankruptcy analysts

and other officers and employees of the U.S. Trustee System who have

contact with creditors and debtors, perform audit functions, or perform

other investigative or enforcement functions in administering the

bankruptcy laws;

(h) Attorneys and employees assigned to perform or to assist in

performing investigative, inspection or audit functions of the Office

of Inspector General of an ``establishment'' or a ``designated Federal

entity'' as those terms are defined by section 11 and 8E, respectively,

of the Inspector General Act of 1978, as amended, 5 U.S.C. app. 3

section 11 and 8E, and of the Offices of the Inspector General of the

U.S. Government Printing Office, the Merit Systems Protection Board,

and the Selective Service System.

(i) Employees of the Department of Agriculture at the State,

district or county level assigned to perform loan making, loan

servicing or loan collecting function;

(j) Officers and employees of the Bureau of Alcohol, Tobacco and

Firearms assigned to perform or to assist in performing investigative,

inspection or law enforcement functions;

(k) Federal air marshals of the Federal Aviation Administration;

(l) Employees of the Bureau of Census employed in field work

conducting censuses and surveys;

(m) Employees and members of the U.S. military services and

employees of the Department of Defense who:

(1) are military police officers,

(2) have been assigned to guard and protect property of the United

States, or persons, under the administration and control of a U.S.

military service or the Department of Defense, or

(3) have otherwise been assigned to perform investigative,

correction or other law enforcement functions;

(n) The Director, Deputy Director for Supply Reduction, Deputy

Director for Demand Reduction, Associate Director for State and Local

Affairs, and Chief of Staff of the Office of National Drug Control

Policy;

(o) Officers and employees of the Department of Energy authorized

to carry firearms in the performance of investigative, inspection,

protective or law enforcement functions;

(p) Officers and employees of the U.S. Environmental Protection

Agency assigned to perform or to assist in performing investigative,

inspection or law enforcement functions;

(q) Biologists and technicians of the U.S. Fish and Wildlife

Service who are participating in sea lamprey control operations;

(r) Uniformed and nonuniformed special police of the General

Services Administration; and officers and employees of the General

Services Administration assigned to inspect property in the process of

its acquisition by or on behalf of the U.S. Government;

(s) Special Agents of the Security Office of the U.S. Information

Agency;

(t) Employees of the regional, subregional and resident offices of

the National Labor Relations Board assigned to perform investigative

and hearing functions or to supervise the performance of such

functions; and auditors and Security Specialists of the Division of

Administration of the National Labor Relations Board;

(u) Officers and employees of the U.S. Nuclear Regulatory

Commission:

(1) assigned to perform or to assist in performing investigative,

inspection or law enforcement functions or

(2) engaged in activities related to the review of license

applications and license amendments;

(v) Investigators employed by the U.S. Office of Personnel

Management;

(w) Attorneys, accountants, investigators and other employees of

the U.S. Securities and Exchange Commission assigned to perform or to

assist in performing investigative, inspection or other law enforcement

functions;

(x) Employees of the Social Security Administration assigned to

Administration field offices, hearing offices and field assessment

offices;

(y) Officers and employees of the Tennessee Valley Authority

authorized by the Tennessee Valley Authority Board of Directors to

carry firearms in the performance of investigative, inspection,

protective or law enforcement functions;

(z) Officers and employees of the Federal Aviation Administration,

the Federal Highway Administration, the National Highway Traffic Safety

Administration, the Research and Special Programs Administration and

the Saint Lawrence Seaway Development Corporation of the U.S.

Department of Transportation who are assigned to perform or assist in

performing investigative, inspection or law enforcement functions;

(aa) Federal administrative law judges appointed pursuant to 5

U.S.C. 3105; and

(bb) Employees of the Office of Workers' Compensation Programs of

the Department of Labor who adjudicate and administer claims under the

Federal Employees' Compensation Act, the Longshore and Harbor Workers'

Compensation Act and its extension, or the Black Lung Benefits Act.

Dated: May 7, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-12082 Filed 5-17-94; 8:45 am]

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