intrusive alternative means of obtaining the materials would substantially jeopardize the availability or usefulness of the materials sought; (ii) Access to the documentary materials appears to be of substantial importance to the investigation or prosecution for which they are sought; and (iii) The application for the warrant has been approved as provided in paragraph (b)(2) of this section. (2) No federal officer or employee shall apply for a warrant to search for and seize documentary materials believed to be in the private possession of a disinterested third party physician, lawyer, or clergyman under the circumstances described in paragraph (b)(1) of this section, unless, upon the recommendation of the U.S. Attorney (or where a case is not being handled by a U.S. Attorney's Office, upon the recommendation of the appropriate supervisory official of the Department of Justice), an appropriate Deputy Assistant Attorney General has authorized the application for the warrant. Provided, however, that in an emergency situation in which the immediacy of the need to seize the materials does not permit an opportunity to secure the authorization of a Deputy Assistant Attorney General, the application may be authorized by the U.S. Attorney (or where the case is not being handled by a U.S. Attorney's Office, by the appropriate supervisory official of the Department of Justice) if an appropriate Deputy Assistant Attorney General is notified of the authorization and the basis for justifying such authorization under this part within 72 hours of the authorization. (3) Whenever possible, a request for authorization by an appropriate Deputy Assistant Attorney General of a search warrant application pursuant to paragraph (b)(2) of this section shall be made in writing and shall include: (i) The application for the warrant; and (ii) A brief description of the facts and circumstances advanced as the basis for recommending authorization of the application under this part. If a request for authorization of the application is made orally or if, in an emergency situation, the application is authorized by the U.S. Attorney or a supervisory official of the Department of Justice as provided in paragraph (b)(2) of this section, a written record of the request including the materials specified in paragraphs (b)(3) (i) and (ii) of this section shall be transmitted to an appropriate Deputy Assistant Attorney General within 7 days. The Deputy Assistant Attorneys General shall keep a record of the disposition of all requests for authorizations of search warrant applications made under paragraph (b) of this section. (4) A search warrant authorized under paragraph (b)(2) of this section shall be executed in such a manner as to minimize, to the greatest extent practicable, scrutiny of confidential materials. (5) Although it is impossible to define the full range of additional doctor-like therapeutic relationships which involve the furnishing or development of private information, the U.S. Attorney (or where a case is not being handled by a U.S. Attorney's Office, the appropriate supervisory official of the Department of Justice) should determine whether a search for documentary materials held by other disinterested third party professionals involved in such relationships (e.g. psychologists or psychiatric social workers or nurses) would implicate the special privacy concerns which are addressed in paragraph (b) of this section. If the U.S. Attorney (or other supervisory official of the Department of Justice) determines that such a search would require review of extremely confidential information furnished or developed for the purposes of professional counseling or treatment, the provisions of this subsection should be applied. Otherwise, at a minimum, the requirements of paragraph (a) of this section must be met. (c) Considerations bearing on choice of methods. In determining whether, as an alternative to the use of a search warrant, the use of a subpoena or other less intrusive means of obtaining documentary materials would substantially jeopardize the availability or usefulness of the materials sought, the following factors, among others, should be considered: (1) Whether it appears that the use of a subpoena or other alternative which gives advance notice of the government's interest in obtaining the materials would be likely to result in the destruction, alteration, concealment, or transfer of the materials sought; considerations, among others, bearing on this issue may include: (i) Whether a suspect has access to the materials sought; (ii) Whether there is a close relationship of friendship, loyalty, or sympathy between the possessor of the materials and a suspect; (iii) Whether the possessor of the materials is under the domination or control of a suspect; (iv) Whether the possessor of the materials has an interest in preventing the disclosure of the materials to the government; (v) Whether the possessor's willingness to comply with a subpoena or request by the government would be likely to subject him to intimidation or threats of reprisal; (vi) Whether the possessor of the materials has previously acted to obstruct a criminal investigation or judicial proceeding or refused to comply with or acted in defiance of court orders; or (vii) Whether the possessor has expressed an intent to destroy, conceal, alter, or transfer the materials; (2) The immediacy of the government's need to obtain the materials; considerations, among others, bearing on this issue may include: (i) Whether the immediate seizure of the materials is necessary to prevent injury to persons or property; (ii) Whether the prompt seizure of the materials is necessary to preserve their evidentiary value; (iii) Whether delay in obtaining the materials would significantly jeopardize an ongoing investigation or prosecution; or (iv) Whether a legally enforceable form of process, other than a search warrant, is reasonably available as a means of obtaining the materials. The fact that the disinterested third party possessing the materials may have grounds to challenge a subpoena or other legal process is not in itself a legitimate basis for the use of a search warrant. § 59.5 Functions and authorities of the Deputy Assistant Attorneys General. The functions and authorities of the Deputy Assistant Attorneys General set out in this part may at any time be exercised by an Assistant Attorney General, the Associate Attorney General, the Deputy Attorney General, or the Attorney General. § 59.6 Sanctions. (a) Any federal officer or employee violating the guidelines set forth in this part shall be subject to appropriate disciplinary action by the agency or department by which he is employed. (b) Pursuant to section 202 of the Privacy Protection Act of 1980 (sec. 202, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 2000aa-12)), an issue relating to the compliance, or the failure to comply, with the guidelines set forth in this part may not be litigated, and a court may not entertain such an issue as the basis for the suppression or exclusion of evidence. This regulation authorizes certain categories of federal law enforcement officers to request the issuance of search warrants under Rule 41, Fed. R. Crim. P., and lists the agencies whose officers are so authorized. Rule 41(a) provides in part that a search warrant may be issued "upon the request of a federal law enforcement officer,' " and defines that term in Rule 41(h) as "any government agent, *** who is engaged in the enforcement of the criminal laws and is within the category of officers authorized by the Attorney General to request the issuance of a search warrant." The publication of the categories and the listing of the agencies is intended to inform the courts of the personnel who are so authorized. It should be noted that only in the very rare and emergent case is the law enforcement officer permitted to seek a search warrant without the concurrence of the appropriate U.S. Attorney's office. Further, in all instances, military agents of the Department of Defense must obtain the concurrence of the appropriate U.S. Attorney's Office before seeking a search warrant. [Order No. 826-79, 44 FR 21785, Apr. 12, 1979, as amended by Order No. 1026-83, 48 FR 37377, Aug. 18, 1983] § 60.2 Authorized categories. The following categories of federal law enforcement officers are authorized to request the issuance of a search warrant: (a) Any person authorized to execute search warrants by a statute of the United States. (b) Any person who has been authorized to execute search warrants by the head of a department, bureau, or agency (or his delegate, if applicable) pursuant to any statute of the United States. (c) Any peace officer or customs officer of the Virgin Islands, Guam, or the Canal Zone. (d) Any officer of the Metropolitan Police Department, District of Columbia. (e) Any person authorized to execute search warrants by the President of the United States. (f) Any civilian agent of the Department of Defense not subject to military direction who is authorized by statute or other appropriate authority to enforce the criminal laws of the United States. (g) Any civilian agent of the Department of Defense who is authorized to enforce the Uniform Code of Military Justice. (h) Any military agent of the Department of Defense who is authorized to enforce the Uniform Code of Military Justice. (i) Any special agent of the Office of Inspector General, Department of Transportation. (j) Any special agent of the Investigations Division of the Office of Inspector General, Small Business Administration. (k) Any special agent of the Office of Investigations and the Office of Labor Racketeering of the Office of Inspector General, Department of Labor. (1) Any special agent of the Office of Investigations of the Office of Inspector General, General Services Administration. (m) Any special agent of the Office of Inspector General, Department of Housing and Urban Development. (n) Any special agent of the Office of Inspector General, Department of Interior. (0) Any special agent of the Office of Inspector General, Veterans Administration. (p) Any special agent of the Office of Inspector General, Social Security Administration. (q) Any special agent of the Office of Inspector General, Department of Health and Human Services. [Order No. 826–79, 44 FR 21785, Apr. 12, 1979, as amended by Order No. 1026-83, 48 FR 37377, Aug. 18, 1983; Order No. 1143-86, 51 FR 26878, July 28, 1986; Order No. 1188-87, 52 FR 19138, May 21, 1987; Order No. 1327-89, 54 FR 9431, Mar. 7, 1989; Order No. 2000-95, 60 FR 62734, Dec. 7, 1995] § 60.3 Agencies with authorized personnel. The following agencies have law enforcement officers within the categories listed in §60.2 of this part: (a) National Law Enforcement Agencies: (1) Department of Agriculture: National Forest Service Office of the Inspector General (2) Department of Defense: Defense Investigative Service Criminal Investigation Command, U.S. Army Naval Investigative Service, U.S. Navy Office of Assistant Inspector General for Investigations, Office of Defense Inspector General Office of Special Investigation, U.S. Air Force (3) Department of Health and Human Services: Center for Disease Control Food and Drug Administration Office of Inspector General, Department of Transportation (7) Department of the Treasury: Bureau of Alcohol, Tobacco, and Firearms Executive Protective Service Criminal Investigation Division Internal Security Division, Inspection Service U.S. Customs Service (8) U.S. Postal Service: Office of Inspector General (9) Department of Commerce: Office of Export Enforcement (10) Small Business Administration: Investigations Division of the Office of Inspector General (11) Department of State: Diplomatic Security Service (12) Department of Labor: Office of Investigations and Office of Labor Racketeering of the Office of Inspector General (13) General Services Administration: Office of Inspector General (14) Department of Housing and Urban Development: Office of Inspector General (15) Department of the Interior: Office of Inspector General (16) Veterans Administration: Office of Inspector General (17) Environmental Protection Agency: Office of Criminal Investigations (18) Social Security Administration, Office of Inspector General (b) Local Law Enforcement Agencies: (1) District of Columbia Metropolitan Police Department 61.1 Background. 61.2 Purpose. 61.3 Applicability. 61.4 Major federal action. Subpart B-Implementing Procedures 61.5 Typical classes of action. 61.6 Consideration of environmental documents in decisionmaking. 61.7 Legislative proposals. 61.8 Classified proposals. 61.9 Emergencies. 61.10 Ensuring Department NEPA compli ance. 61.11 Environmental information. APPENDIX A TO PART 61-BUREAU OF PRISONS APPENDIX B TO PART 61-DRUG ENFORCEMENT AUTHORITY: 28 U.S.C. 509, 510; 5 U.S.C. 301; Executive Order No. 11991. SOURCE: Order No. 927-81, 46 FR 7953, Jan. 26, 1981, unless otherwise noted. Subpart A-General § 61.1 Background. (a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., establishes national policies and goals for the protection of the environment. Section 102(2) of NEPA contains certain procedural requirements directed toward the attainment of such goals. In particular, all federal agencies are required to give appropriate consideration to the environmental effects of their proposed actions in their decisionmaking and to prepare detailed environmental statements on proposals for legislation significantly affecting the quality of the human environment and on other major federal actions significantly affecting the quality of the human environment. (b) Executive Order No. 11991 of May 24, 1977, directed the Council on Environmental Quality (CEQ) to issue regulations to implement the procedural provisions of NEPA. Accordingly, CEQ issued final NEPA regulations, 40 CFR parts 1500-1508, ("The NEPA regulations"). These regulations provide that each federal agency shall, as necessary, adopt implementing procedures to supplement the regulations. The NEPA regulations identify those sections of the regulations which must be addressed in agency procedures. $61.2 Purpose. The purpose of this part is to establish Department of Justice procedures which supplement the relevant provisions of the NEPA regulations and to provide for the implementation of those provisions identified in 40 CFR 1507.3(b). $61.3 Applicability. The procedures set forth in this part, with the exception of the appendices, apply to all organizational elements of the Department of Justice. Internal procedures applicable, respectively, to the Bureau of Prisons, the Drug Enforcement Administration, the Immigration and Naturalization Service, and the Office of Justice Assistance, Research and Statistics are set forth in the appendices to this part, for informational purposes. § 61.4 Major federal action. The NEPA regulations define "major federal action.” “Major federal action” does not include action taken by the Department of Justice within the framework of judicial or administrative enforcement proceedings or civil or criminal litigation, including but not limited to the submission of consent or settlement agreements and investigations. Neither does "major federal action" include the rendering of legal advice. Subpart B-Implementing Procedures 861.5 Typical classes of action. (a) The NEPA regulations require agencies to establish three typical classes of action for similar treatment under NEPA. These classes are: actions normally requiring environmental impact statements (EIS), actions normally not requiring assessments or EIS, and actions normally requiring assessments but not necessarily EIS. Typical Department of Justice actions falling within each class have been identified as follows: (1) Actions normally requiring EIS. None, except as noted in the appendices to this part. (2) Actions normally not requiring assessments or EIS. Actions not significantly affecting the human environment. (3) Actions normally requiring assessments but not necessarily EIS. (1) Proposals for major federal action; (ii) Proposals for legislation developed by or with the significant cooperation and support of the Department of Justice and for which the Department has primary responsibility for the subject matter. (b) The Department of Justice shall independently determine whether an EIS or an environmental assessment is required where: (1) A proposal for agency action is not covered by one of the typical classes of action above; or (2) For actions which are covered, the presence of extraordinary circumstances indicates that some other level of environmental review may be appropriate. 861.6 Consideration of environmental documents in decisionmaking. The NEPA regulations contain requirements to ensure adequate consideration of environmental documents in agency decisionmaking. To implement these requirements, the Department of Justice shall: |