01-18087. Office of the Inspector General

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

This rule amends the Department's organizational regulations to revise the description of the functions and responsibilities of the Office of the Inspector General. The amendments concern the jurisdiction of the Office of the Inspector General to investigate allegations of misconduct by employees of the Federal bureau of Investigation and Drug Enforcement Administration. This rule also makes conforming changes to the Department's existing regulations concerning the investigation of whistleblower disclosures made by employees of the FBI.

EFFECTIVE DATE:

July 11, 2001.

FOR FURTHER INFORMATION CONTACT:

Kevin R. Jones, Deputy Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice, Washington, DC 20530, [phone].

SUPPLEMENTARY INFORMATION:

The Attorney General is amending current Department of Justice regulations, in Part 0, Subpart E-4 of title 28, Code of Federal Regulations, describing the jurisdiction and functions of the Office of the Inspector General (OIG). Currently, evidence and non-frivolous allegations of serious misconduct by employees of the Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA) must be reported to the FBI Office of Professional Responsibility (FBI-OPR) and the DEA Office of Professional Responsibility (DEA-OPR), respectively. The OIG refers to FBI-OPR and DEA-OPR allegations of misconduct within their respective jurisdictions for appropriate action. The OIG refers to the Department's Office of Professional Responsibility (OPR) allegations of serious misconduct (1) by Department attorneys relating to the exercise of their authority to investigate, litigate, or provide legal advice; and (2) by Department law enforcement personnel relating to (or in connection with) allegations of misconduct by a Department attorney that relate to the exercise of the attorney's authority to investigate, litigate, or provide legal advice. At the request of the Inspector General, the Deputy Attorney General may assign to the OIG a matter within the jurisdiction of FBI-OPR, DEA-OPR, or DOJ-OPR.

Pursuant to these amendments, all evidence and non-frivolous allegations of criminal wrongdoing and serious administrative misconduct by Department of Justice employees shall be reported to the OIG except for those allegations concerning serious misconduct by Department attorneys or investigators that are within the jurisdiction of OPR. With respect to evidence and non-frivolous allegations of criminal wrongdoing and serious administrative misconduct by employees of the FBI and DEA, the OIG will determine whether it will investigate such allegations or whether they will be investigated by FBI-OPR or DEA-OPR.

This rule also makes changes to the Department's existing regulations in 28 CFR 27.1(b) with respect to the investigations of whistleblower disclosures made by employees of the FBI, in order to conform with the provisions of Part 0, Subpart E-4, as amended, regarding the authority of the OIG. In addition, this rule makes a technical change to § 27.4 to reflect recent change in name of the Office of Attorney Personnel Management to the Office of Attorney Recruitment and Management.

Certifications and Determinations

Administrative Procedure Act

This rule relates to matters of agency management or personnel, and is therefore exempt from the usual requirements of prior notice and comment and a 30-day delay in the effective date. See 5 U.S.C. 553(a)(2). Moreover, to the extent that rulemaking procedures are otherwise applicable, the Department finds that this is exempt from the requirements of prior notice and comment as a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(b)(A). Similarly, the effective date of the rule need not be delayed for 30 days after publication because the rule is not a “substantive rule.” See 5 U.S.C. 553(d); 5 U.S.C. 552(a)(1)(D).

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. It is a rule relating to agency management or personnel and is therefore excluded from the scope of a covered “rule” for purposes of Chapter 8 of Title 5, U.S.C. See 5 U.S.C. 804(3)(B). Moreover, to the extent that this rule would be considered to be a rule of agency organization, procedure, or practice, it is excluded from the scope of a covered “rule” pursuant to 5 U.S.C. 804(3)(C). The amendments relate to the Attorney General's determination with respect to how Department of Justice components shall handle certain matters within the authority of the Attorney General as head of the Department of Justice, and the Department has determined that this rule does not substantially affect the rights or obligations of non-agency parties.

Accordingly, because this action is not a covered “rule,” it is exempt from the requirement for the Department to submit a report to each House of Congress and to the Comptroller General before this rule can take effect, as provided in 5 U.S.C. 801(a)(1).

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that this regulation will not have a significant economic impact on a substantial number of small entities.

Executive Order 12866

This rule has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review. The Department of Justice has determined that this is not a “significant regulatory action” under section 3(f) of Executive Order 12866, and that it relates to a matter of agency organization, management, or personnel. See Executive Order 12866, section 3(d)(3). Accordingly, this rule has not been reviewed by the Office of Management and Budget.

Executive Order 12612

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 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988—Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal government, 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.

List of Subjects

28 CFR Part 0

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

28 CFR Part 27

• Government Employees
• Justice Department
• Organization and functions (Government agencies)
• Whistleblowing

Accordingly, by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, Part 0, Subpart E-4, and Part 27 of title 28 of the Code of Federal Regulations, are amended as follows:

PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE

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

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

2. Paragraph (a) of section 0.29c is revised to read as follows:

§ 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.

* * * * *

3. Paragraph (c) of § 0.29c is amended by adding the words “by the OIG” between the words “reported” and “to”.

4. Paragraph (d) of § 0.29c is amended by adding the words “by the OIG” between the words “reported” and “to”.

5. In § 0.29d, paragraph (a) is revised to read as follows:

§ 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 a violation of any law, rule, or regulation, or 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-OPR for investigation unless the Deputy Attorney General determines that such referral shall not be made.

* * * * *

6. Section 0.29e is amended by:

a. Revising paragraphs (a)(1), (a)(2), (a)(3), and (a)(5);

b. Amending the introductory text in paragraph (a)(6) by removing “another internal investigative component” and by adding in its place “DOJ-OPR”;

c. Amending paragraph (a)(6)(i) by removing “the component” and by adding in its place “DOJ-OPR”;

d. Amending paragraph (a)(7) by removing “the other investigative component” and by adding in its place “DOJ-OPR”; to read as follows:

§ 29e

Relationship to other departmental units.

(a) * * *

(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) * * *

(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.

* * * * *

§ 0.29h

Specific authorities of the Inspector General.

7. Paragraph (a) of section 0.29h is amended by removing “the” between “to” and “administration” and by adding in its place “criminal wrongdoing and administrative misconduct of Department employees and”.

PART 27—WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF INVESTIGATION EMPOYEES

8. The authority citation for part 27 continues to read as follows:

Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; President's Memorandum to the Attorney General, Delegation of Responsibilities Concerning FBI Employees Under the Civil Service Reform Act of 1978, 3 CFR p. 284 (1997).

9. In § 27.1, paragraph (b) is revised to read as follows:

§ 27.1

Making a protected disclosure.

* * * * *

(b) Any office or official (other than the OIG or OPR) receiving a protected disclosure shall promptly report such disclosure to the OIG or OPR for investigation. The OIG and OPR shall proceed in accordance with procedures establishing their respective jurisdiction. The OIG or OPR may refer such allegations to FBI-OPR for investigation unless the Deputy Attorney General determines that such referral shall not be made.

§ 27.4

Corrective action and other relief; Director, Office of Attorney Recruitment and Management.

10. In § 27.4, the heading is revised to read as shown above.

11. In § 27.4, paragraph (a) is amended by removing “Attorney Personnel Management” and by adding in its place “Attorney Recruitment and Management”.

Dated: July 11, 2001.

John Ashcroft,

Attorney General.