Number: 

DAO 207-10

SECTION 1. PURPOSE.

.01 This Department Administrative Order (DAO) prescribes the policies and procedures for the initiation and conduct of investigations by the Office of Inspector General (OIG), for action to be taken on investigative reports, and for other matters relating to investigations and investigative activities conducted by the OIG Office of Investigations (OI) and the Office of Compliance and Ethics.

.02 This revision:

a. Changes the name of the DAO from "Inspector General Investigations" to "Inspector General Investigations and Related Activity."

b. Changes the title of "Principal Assistant Inspector General for Investigations" to "Assistant Inspector General for Investigations."

c. Revises Section 2.02 to specify that the OIG is entitled to timely access and limits the right of access of the Inspector General (IG).

d. Updates Section 3 to include evidence of a pattern of harassment discrimination prohibited by Federal law within an operating unit or Departmental office.

e. Updates Section 4 to remove OIG Offices of Investigations.

f. Updates Section 5 to remove referring the information to another OIG office, such as the Office of Audit and Evaluation.

g. Updates Section 6 to include specific information regarding the Fifth Amendment; and to remove failure to cooperate with OIG investigations.

h. Updates Section 7 to include case file records and referrals to Department bureaus and operating units; and to remove subject to applicable Department regulations concerning administratively controlled material.

i. Updates Section 8 to include "unless the investigative matter pertains to information that is not required to be reported to the OIG under paragraph 3.05 of this Order."

j. Updates Section 9 to include a variety of reasons and remove the selection process for participants in trade missions and similar activities sponsored by the Department.

SECTION 2. AUTHORITY.

.01 The Inspector General has the authority to conduct and supervise investigations relating to the activities, programs, and operations of the Department of Commerce (the Department) as provided in the Inspector General Act of 1978, as amended, 5 Unites States Code Annotated (U.S.C.A.) Appendix 3 (the Act). All investigations and related activities not otherwise authorized to the Department or its operating units are the responsibility of the OIG and shall be carried out by or under the direction of the OIG's OI headed by the Assistant Inspector General for Investigations (AIGI).

.02 In conducting this investigative function for the Department, the Inspector General is authorized, under the Act and other applicable laws, to have timely access to all records, communications (e.g., email, voice mail, instant messaging), reports, audits, reviews, documents, papers, recommendations and other material available to the Department that relate to Department programs and operations. The Inspector General is entitled to this timely access, notwithstanding any other provision of law, except where a provision of law enacted by Congress expressly refers to the Inspector General and limits the right of access of the Inspector General.

SECTION 3. MATTERS TO BE REPORTED TO THE OIG.

.01 Scope. The Act requires the OIG to conduct and supervise investigations and other activities designed to prevent and detect fraud, waste, and abuse related to Department programs and operations, and, to that end, authorizes the Inspector General, through the AIGI, to investigate activity that may constitute mismanagement, waste of funds, abuse of authority, or a violation of law or regulation. Paragraph .02 of this section provides examples of the types of matters to be reported to the OIG. Department officers and employees are required to report information indicating the possible existence of any of these activities to the OIG in accordance with the procedures contained in Section 4 of this Order. If a Department officer or employee has any question about whether a particular matter should be reported to the OIG, the officer or employee should contact the OIG (see paragraph 4.01 of this Order).

.02 Matters to Be Reported to the OIG Include, but Are Not Limited To, the Following:

a. Theft, conversion, misappropriation, embezzlement, or misuse of government funds or property by any person, including a Department officer, employee, grantee, contractor, or recipient of financial assistance;

b. Submission of a false claim or a false statement to the Department by any person, including a Department officer, employee, grantee, contractor, or recipient of financial assistance;

c. Concealment, removal, obliteration, falsification, forgery, alteration, or unauthorized destruction of government records;

d. Fraud or conspiracy to defraud the government or a government official in connection with any matter relating to the programs and operations of the Department;

e. Bribery, extortion, blackmail, or any attempt to bribe, extort or blackmail a Department officer, employee, grantee, contractor, or recipient of financial assistance;

f. Conflicts of interest involving a Department officer or employee, or other violations of the standards of ethical conduct, contract law, or federal assistance law by a Department officer or employee;

g. Reprisal against a Department employee for making a protected disclosure, to include reporting information to or otherwise assisting or cooperating with the OIG (see Section 4.03 of this Order);

h. Serious mismanagement or abuse of authority by a Department officer or employee;

i. Department officer or employee indicted or otherwise formally charged with criminal conduct in any federal, state or local court;

j. Misconduct or material misrepresentations made by a Senior Department official-who shall be defined as a Department officer or employee who is employed at a rate of pay specified in accordance with Subchapter II of Chapter 53 of 5 Title (5 U.S.C. 53)-in the course of his or her duties; and

k. Evidence of a pattern of harassment discrimination prohibited by Federal law within an operating unit or Departmental office (see Section 6 of DAO 202-955, "Allegations of Harassment Prohibited by Federal Law").

.03 Matters Disclosed by Outside Law Enforcement Authorities. The Federal Bureau of Investigation and other outside investigative or law enforcement agencies may be involved in cases relating to programs and operations of the Department. Any such matters brought to the attention of a Department officer or employee by an outside investigative or law enforcement agency must be reported to the OIG under this Section.

.04 Sanctions for Failing to Report. Knowing failure of a Department officer or employee to comply with the reporting requirements prescribed by this Order may result in disciplinary action in accordance with DAO 202-751, "Discipline."

.05 Matters That Should be Reported to Other Entities. Although they may also be reported to the OIG, certain types of matters are generally not investigated by the OIG. Department officers and employees should report these matters as follows:

a. Thefts of personal or non-Commerce property should be reported to local law enforcement officers or the Office of Security, as appropriate. Department officers and employees should also seek assistance from these authorities when there is an imminent threat of harm to the safety or security of persons or property on Department premises, e.g., robberies, assaults, disorderly conduct, or vandalism.

b. Violations of statutes or regulations governing the classification and handling of national security or intelligence information, administratively controlled information, and physical security shall be reported to the Office of Security or other appropriate officials in accordance with DAO 207-1, "Security Programs."

c. Violations of statutes or implementing regulations administered by a Department organizational unit charged with enforcing a regulatory scheme through a compliance program (e.g., the National Marine Fisheries Service's Office of Law Enforcement, or the Bureau of Industry and Security's Office of Export Enforcement) shall be reported to the appropriate unit.

d. Allegations of harassment prohibited by Federal law should be reported in accordance with DAO 202-955, "Allegations of Harassment Prohibited by Federal Law."

e. Individual complaints of discrimination based on race, color, national origin, religion, sex, age, sexual preference, or disability, or other personnel matters when personal relief is sought, such as employee grievances and complaints of prohibited personnel practices, should be filed or reported in accordance with applicable DAOs and Department policies, except as noted in subparagraph 3.02.g of this Section. These matters may also be reported or referred to the Department's Office of Civil Rights, the Merit Systems Protection Board, or the U.S. Office of Special Counsel, as appropriate.

SECTION 4. PROCEDURES FOR REPORTING TO THE OIG.

.01 Hotline. All complaints and other information required to be reported to the OIG uner Section 3 of this Order can be made to the OIG Hotline directly via the OIG's internet-based reporting channel available on the OIG's website. In the alternative, a complaint may be made to the OIG Hotline via telephone or fax. Information on how to contact the OIG Hotline is available on the OIG website: www.oig.doc.gov.

.02 Confidentiality. The OIG shall not, after receipt of a complaint or information from a Department officer or employee, disclose the identity of the employee without the consent of the employee, unless disclosure is required by law or the Inspector General determines such disclosure is unavoidable during the course of the investigation.

.03 No Reprisal. No Department officer or employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall direct any officer or employee to refrain from making a complaint, reporting information to or cooperating with the OIG. Further, it is a violation of law for a Department officer or employee to take or threaten to take any action against any officer or employee as a reprisal for making a complaint or other protected disclosure, disclosing information to or cooperating with the OIG or for evidencing an intention to do so, unless the disclosure was made or the information disclosed with the knowledge that it was false or with willful disregard for its truth or falsity.

SECTION 5. ACTIONS ON OIG HOTLINE REFERRALS AND INVESTIGATIVE REPORTS.

.01 Action on Complaints. Upon receipt of a complaint, OIG will create and maintain a record of the complaint, and may:

a. Open and undertake an inquiry, investigation, or other OIG action;

b. Refer the matter to or coordinate OIG investigative activities with another Federal, State or local law enforcement authority; or

c. In appropriate cases, where the information received concerns administrative, programmatic, managerial, personnel or other issues that do not require the specialized skills of the OIG for determination of the facts, the OIG may refer the matter to an appropriate Department operating unit or agency for its information or may request the operating unit or agency to conduct an independent inquiry and report its results to the OIG. In such cases, the operating unit or agency shall report its findings, or if the inquiry is not concluded, shall report its progress to and request an extension from, the OIG within 60 days of the referral and every 60 days thereafter until the inquiry is completed. In its final report to the OIG, the operating unit or agency will include a statement describing the results of its inquiry and any administrative or disciplinary action taken as a result of the inquiry, if applicable. After reviewing the final report, the OIG may open its own audit or investigation or take other action if deemed necessary.

.02 Referrals to the Attorney General. The OIG shall report expeditiously to the Department of Justice whenever the OIG has reasonable grounds to believe there has been a violation of federal criminal law in accordance with the Attorney General Guidelines for Offices of Inspector General with Statutory Law Enforcement Authority.

.03 Reports of Inquiry/Investigation. Upon completion of an OIG investigation, the AIGI may transmit a written Report of Investigation (ROI), including investigative findings or other information as the AIGI deems appropriate, to the head of the appropriate operating unit or agency. Administrative control of ROIs and related materials transmitted by the OIG shall be subject to Section 7 of this Order.

.04 Action on Reports of Inquiry/Investigation. Within 60 days of the issuance of an ROI, the head of the operating unit or agency shall advise the OIG of any administrative action that they have deemed necessary or appropriate to take in response to the findings in the ROI.

To the extent that the action has not been completed within the 60-day period, the operating unit or agency shall submit progress reports to, and request an extension from the OIG, as needed, every 60 days thereafter until all action has been concluded.

SECTION 6. COOPERATION WITH OIG INVESTIGATIONS AND RELATED ACTIVITIES.

.01 Access by the OIG to Agency Records. Each Department organizational unit, officer, and employee shall without delay furnish the OIG upon request access to and copies of all records, communications (e.g., emails, voice mails, instant messages), documents, papers, data or other information requested. Each organizational unit shall also provide the necessary authorizations for timely OIG access to computer and other data when such are maintained by another government agency or by any outside contractor, grantee, or other recipient of Department financial assistance.

.02 Department Officers and Employees.

a. Department officers and employees shall:

1. cooperate fully with any OIG investigative activity, including any OIG investigation;

2. furnish sworn oral or subscribed statements upon request (including audio/video-recorded statements), subject to subparagraph .03a of this Section; and

3. answer questions relating to their employment and to matters coming to their attention in their official capacity or by reason of their employment;

b. Department officers and employees shall not:

1. encumber or delay direct communication between the OIG and any party; or

2. withhold information, documents, or other materials from the OIG.

.03 Cooperation with OIG Investigative Activities.

a. Under the Fifth Amendment to the U.S. Constitution, an employee has the right not to answer questions from the OIG and not to provide information to the OIG, if the information could be used against the employee in a criminal proceeding. An employee who asserts his or her Fifth Amendment right against self-incrimination may not be disciplined solely for remaining silent.

b. If the Fifth Amendment right to remain silent described in section 6.03.a. does not apply, the employee is required to answer questions and provide information to the OIG and is subject to disciplinary action for non-cooperation.

c. Employees should be aware that, notwithstanding their rights under the Fifth Amendment, furnishing false or misleading information to the OIG at any time may result in new criminal liability or administrative action.

SECTION 7. CONTROL OF INVESTIGATIVE REPORTS AND RELATED MATERIALS; DISCLOSURE OF INFORMATION.

.01 Dissemination of Reports of Investigation and Related Materials.

a. The ROI, including all exhibits thereto; case file records; interim investigative reports; memoranda transmitting such reports; notifications of referral to the Department of Justice; OIG summaries; reports of disposition by the Department of Justice; referrals, along with attachments, to other entities, including referrals to Department bureaus and operating units; and related materials shall be considered to be marked "For Official Use Only" even if they are not so marked. Such materials may be shared only with those agency officials who have a need for the information in the exercise of their official duties. No other dissemination or release of these documents may be made without the prior express written approval of the OIG. This paragraph does not include reports of administrative inquiries that, while based upon an OIG referral, are the product solely of a Department bureau or operating unit.

b. The materials noted in subparagraph .01a of this Section shall not be discussed with or provided to the subject of an investigation or to the subject's representative(s) without the prior express approval of the OIG, unless otherwise required by law and the OIG's prior approval is not feasible given the circumstances.

c. All Department operating units, officers, and employees receiving OIG ROIs and/or related documents must safeguard them from inappropriate release or disclosure. None of the information contained in these documents may be disseminated to any third parties except as required by law, or as necessary to implement disciplinary or administrative action on the findings and recommendations in the report.

d. Operating units and officials receiving requests under the Freedom of Information Act (FOIA) or Privacy Act for any of the materials noted in subparagraph .01a of this Section shall refer all such requests, promptly upon receipt, to the OIG FOIA Officer. Nothing herein is intended to diminish the authority of program officials to process and respond to Privacy Act or FOIA requests for the operating unit's records.

e. When all administrative actions relating to the materials noted in subparagraph .01a of this Section are completed, the Department operating unit shall return all the materials to the OIG without retaining copies, except when express written OIG approval has been given or where such materials have become part of a record in an administrative or other proceeding.

.02 Disclosure of Information in Response to Inquiries from Third Parties. Inquiries from the media or other third-party entities for information or comment relating to an OIG investigation, including matters under investigation or prosecution by Federal, State or local authorities, shall be referred to the AIGI for handling in consultation with the OIG Office of Counsel.

SECTION 8. LIAISON WITH LAW ENFORCEMENT AGENCIES ON INVESTIGATIVE MATTERS.

The OIG shall be the Department liaison with Federal, State, and local law enforcement and investigative agencies with respect to information reported under paragraph 3.02 of this Order and all matters, policies, and activities relating to the prevention, detection, and redress of fraud, waste, mismanagement, serious abuses of authority, and violations of law, regulation or ethical standards in the programs and operations of the Department, unless the investigative matter pertains to information that is not required to be reported to the OIG under paragraph 3.05 of this Order.

SECTION 9. VETTING CHECKS.

.01 Vetting Checks.

a. It is the Department's policy to request the OIG to perform vetting checks for a variety of reasons, including in aid of the nomination processes for the appointment and promotion of officers in the NOAA Corps and the Foreign Service; the appointment of private individuals to Department boards, commissions, and advisory committees; and selections for Gold and Silver Medals, Malcolm Baldridge National Quality Awards, and Presidential Rank Awards.

b. A "vetting check" is a limited-scope inquiry performed by the OIG to obtain information from the OIG investigative case data system that may be relevant to the Department's decisions with respect to the appointment or promotion of certain employees; appointments to Department boards, commissions, or advisory committees; selection of DOC employees or private individuals or organizations for particular honors or awards; or the selection of private individuals or organizations to participate in certain activities sponsored by the Department or in particular meetings or other official interactions with Department officers or employees. A vetting check shall be limited to a search of the OIG investigative case data system for the existence of the name of the individual being vetted. The OIG shall provide the Department only with notice as to whether this individual is in the investigative case data system and, if in the system, relevant information in the system regarding the individual. The OIG will not further advise regarding the propriety of the Department's decision with respect to any individual the OIG is asked to vet under this Section.

SECTION 10. EFFECT ON OTHER ORDERS.

a. This order supersedes DAO 207-10, dated December 12, 2013; and

b. All Department Administrative Orders, to the extent that they contain inconsistent provisions, are hereby constructively amended to conform to the provisions of this Order.

Signed by: Inspector General
Approved by: Secretary of Commerce