Office of the Attorney General; Establishment of the Office of the Federal Detention Trustee

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

This rule amends the Department of Justice (the Department) organizational regulations to reflect the establishment within the Department of Justice of the Office of the Federal Detention Trustee (OFDT), and to set forth the general authorities of the Detention Trustee.

DATES:

This rule is effective June 26, 2006.

FOR FURTHER INFORMATION CONTACT:

Katherine A. Day, General Counsel, Office of the Federal Detention Trustee, U.S. Department of Justice, 4601 N. Fairfax Drive, 9th Floor, Washington, DC 20530; Telephone (202) 353-4601; FAX (202) 353-4611.

SUPPLEMENTARY INFORMATION:

The Office of the Federal Detention Trustee (OFDT) was established in September 2001, pursuant to Public Law 106-553, app. B, 114 Stat. 2762A-52 (2000), to centralize the management of the detention function relating to Federal prisoners in non-Federal institutions or otherwise in the custody of the United States Marshals Service (USMS) and aliens in the custody of the Immigration and Naturalization Service (INS), in order to better manage and plan for needed detention resources without unnecessary duplication of effort. In accordance with the 21st Century Department of Justice Appropriations Authorization Act (Pub. L. 107-273, Div. A, Title II, section 201(a), Nov. 2, 2002, 116 Stat. 1770), codified at 28 U.S.C. 530C, the Congressional mandate for the management of the detention function by OFDT was made permanent. This rule adds the OFDT to Department organizational regulations and sets forth the general authorities of the Detention Trustee.

Although OFDT's originating statute (Pub. L. 106-553, app. B, 114 Stat. 2762A-52 (2000) and authorizing statute (Pub. L. 107-273, Div. A, Title II, Section 201(a)) provided OFDT with authority over immigration detainees in INS custody, these statutes were enacted prior to the Homeland Security Act, Public Law 107-296, Section 441, which transferred the duties of the INS to the Department of Homeland Security (DHS). Accordingly, this rule omits the language in our originating and authorizing statutes regarding INS detainees.

Notwithstanding the transfer of the former INS to DHS, the October 2003 Conference Report on the Fiscal Year 2004 appropriations nevertheless directed the Justice Department “to develop Memoranda of Understanding with the Department of Homeland Security and other appropriate Federal agencies regarding the continued integration of fingerprint systems, automated booking capabilities, detention bed space needs, and transportation of prisoners.” H.R. Rep. No. 108-401, 108th Cong., 1st Sess., 516 (2003). On January 28, 2004, OFDT entered into an interagency agreement with U.S. Immigration and Customs Enforcement (ICE) to allow ICE “to obtain the specific services of the OFDT as a provider of procurement and contract/agreement management support for the ICE nonfederal detention program,” particularly as regards ICE requirements for detention space.

Beginning in 2003 with the Consolidated Appropriations Resolution, 2003 (Pub. L. 108-7, Div. B, Title I, Feb. 20, 2003, 117 Stat. 51), and continuing with each appropriations act since 2003 (Consolidated Appropriations Act, 2004, Public Law 108-199, Div. B, Title I, Jan. 23, 2004, 118 Stat. 47; Consolidated Appropriations Act, 2005, Pub. L. 108-447, Div. B, Title I, Dec. 8, 2004, 118 Stat. 2854; Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. 109-108, Title I, Nov. 22, 2005, 119 Stat. 2291), Congress has charged OFDT with the responsibility for managing the Justice Prisoner and Alien Transportation System (JPATS). Accordingly, this rule adds a provision regarding OFDT's management of JPATS.

The rule is a rule of agency organization, procedure, and practice and is limited to matters of agency management and personnel. Accordingly: (1) This rule is exempt from the notice requirement of 5 U.S.C. 553(b) and is made effective upon issuance; (2) the Department certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities and further that no Regulatory Flexibility Analysis was required to be prepared for this final rule since the Department was not required to publish a general notice of proposed rulemaking; (3) this action is not a “regulation” or “rule” as defined by section 3(d)(3) of Executive Order 12866 (“Regulatory Planning and Review”) and, therefore, this action has not been reviewed by the Office of Management and Budget.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (“Federalism”), it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (“Civil Justice Reform”). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 0

• Authority delegations (Government agencies)
• Government employees
• Organization and functions (Government agencies)
• Whistleblowing

Accordingly, for the reasons set forth in the preamble, part 0 of chapter I of title 28 of the Code of Federal Regulations is amended as follows:

PART 0—AMENDED

1. The authority citation for part 0 continues to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

2. Part 0, subpart A, § 0.1 is amended by adding a new entry at the end of the list under “Offices” to read as follows:

Office of the Federal Detention Trustee

3. Part 0 is amended by adding a new subpart U-3 to read as follows:

Subpart U-3—Office of the Federal Detention Trustee