02-23780. Organization; Drug Enforcement Administration

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

This rule makes a number of revisions to the Drug Enforcement Administration's and Federal Bureau of Investigation's regulations concerning agency management. Specifically, the updated regulations include a number of redelegations of authority, including the authority to issue administrative subpoenas, the authority to authorize disclosure of official information, the authority to execute certifications to authenticate documents and the authority to cross-designate Federal law enforcement officers.

EFFECTIVE DATE:

September 19, 2002.

FOR FURTHER INFORMATION CONTACT:

Cynthia R. Ryan, Chief Counsel, Drug Enforcement Administration, U.S. Department of Justice, Washington, DC 20537, Telephone [phone].

SUPPLEMENTARY INFORMATION:

This final rule implements a number of changes to Title 28, Code of Federal Regulations (CFR), Part 0, regarding agency management for the Drug Enforcement Administration (DEA) and Federal Bureau of Investigation (FBI). The updated regulations include a number of revisions to the Drug Enforcement Administration's and the Federal Bureau of Investigation's redelegations of authority, including the authority to issue administrative subpoenas, the authority to authorize disclosure of official information, the authority to execute certifications to authenticate documents and the authority to cross-designate Federal law enforcement officers. Also included is a minor change in wording regarding the authority to release information in order to add the words “or demands,” and a change in the cross-reference to a subsection (b) of Title 21, section 873, concerning cross-designation of Federal law enforcement officers, in order to correct a typographical error. A detailed explanation of the amendments follows.

A. 28 CFR 0.103

The revision to these provisions concerns the Administrator's authority to authorize the testimony of DEA officials in criminal prosecutions. The current language refers only to authorization of testimony in response to “subpoenas.” This language is being changed to ‘subpoenas or demands,” because prosecutors rarely issue subpoenas when requesting DEA employees' testimony in criminal prosecutions.

B. 28 CFR 0.100, Appendix to Subpart R, Section 2

The redelegations of authority to DEA supervisors include the following changes:

1. Authorization of Testimony

Among other things, this section redelegates authority to DEA Special

Agents-in-Charge and Laboratory Directors to permit the testimony of DEA officials in response to prosecution subpoenas. Similar to the delegation of authority in 28 CFR 0.103, these redelegations of authority refer only to testimony in response to “subpoenas.” This language is being changed to “subpoenas or demands” because, again, prosecutors rarely issue subpoenas when requesting DEA employees' testimony in criminal prosecutions.

2. Release of Headquarters Information and Testimony of Headquarters Employees

Currently, DEA regulations include no redelegation of authority from the Administrator for the release of information obtained by DEA Headquarters or to authorize the testimony of Headquarters employees in response to subpoenas or demands from prosecutors. In order to avoid the necessity of having the Administrator approve routine requests for information and testimony made to Headquarters employees, authority is being redelegated to the Deputy Administrator, Assistant Administrators, and Office Heads. Similar redelegations of authority for the FBI have also been included, at the FBI's request.

C. 28 CFR Appendix to Subpart R, Section 4

The redelegations of authority for issuance of administrative subpoenas will be changed as follows. Currently, the regulations redelegate authority to issue administrative subpoenas to the Chief Inspector, Deputy Chief Inspector, and Associate Deputy Chief Inspector of DEA's Office of Professional Responsibility (OPR), DEA and FBI Special Agents-in-Charge, Inspectors assigned to the Inspection Division, DEA Associate Special Agents-in-Charge, DEA and FBI Assistant Special Agents-in-Charge, DEA Resident Agents-in-Charge, DEA Diversion Program Managers, and FBI Supervisory Senior Resident Agents. Due to a reorganization, there is now a DEA Deputy Chief Inspector and an Associate Chief Inspector for DEA's Office of Inspections. Those officials are being provided with the authority to issue administrative subpoenas, in order to provide them with the same authority already afforded the Deputy Chief Inspector and Associate Deputy Chief Inspector for OPR and all Inspectors in the Inspection Division. For purposes of increased efficiency, such authority is also being redelegated to DEA Special Agent Group Supervisors and those FBI Special Agent Squad Supervisors with management responsibility over Organized Crime/Drug Program Investigations. The FBI has requested the change.

D. 28 CFR Appendix to Subpart R, Section 5

At present, only the Chief Counsel has authority to authenticate DEA documents. The Director of DEA's Mid-Atlantic Laboratory also needs this authority because the Mid-Atlantic Laboratory is in the unique position of being required to analyze drug exhibits for both the Federal and D.C. courts, and all drug analyses for D.C. Superior Court must be certified. At present, the laboratory uses six notaries public to certify documents. Authorizing the lab director to authenticate documents will save much time and effort.

E. 28 CFR Appendix to Subpart R, Section 10

This section concerns the authority to deputize state and local law enforcement officers as DEA Task Force Officers. The only change to this section is to provide the new title of the official authorized to deputize state and local law enforcement officers.

F. 28 CFR Appendix to Subpart R, Section 11

This section concerns the authority to cross-designate Federal law enforcement officers. The only changes to this section are to provide the new title of the official authorized to cross-designate and to correct a typographical error in the reference to the statute that permits cross-designations.

Procedure Act

This rule relates to a matter of agency management or personnel and, therefore, is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date. See 5 U.S.C. 553(a)(2).

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 it will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. Further, a Regulatory Flexibility Analysis was not required to be prepared for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter.

Executive Order 12866

This rule has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. This rule is limited to agency organization, management and personnel as described by Executive Order 12866, (3)(d)(3) and, therefore, is not a “regulation” or “rule” as defined by that Executive Order. Accordingly, this rule has not been reviewed by the Office of Management and Budget.

Executive Order 12988

This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Executive Order 13132

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132,Federalism, the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

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. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of non-agency parties. Accordingly, it is not a rule for purposes of the reporting requirement of 5 U.S.C. 801.

Congressional Review Act

The Department of Justice has determined that this action is a rule relating to agency organization, procedure or practice that 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), Pub. L. No. 104-121, sections 251-53). 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, 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 of Title 28 of the Code of Federal Regulations is amended as follows:

PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE [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. Paragraph (a)(3) of section 0.103 is revised to read as follows:

Sec. 0.103

Release of information.

(a) * * *

(3) To authorize the testimony of DEA officials in response to subpoenas or demands issued by the prosecution in Federal, State, or local criminal cases involving controlled substances.

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3. In the Appendix to Subpart R, sections 2, 5, 10, and 11 are revised, and paragraph (a) of Section 4 is revised to read as follows:

Appendix to Subpart R—Redelegation of Functions

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Sec. 2. Supervisors. All Special Agents-in-Charge of the DEA and the FBI are authorized to conduct enforcement hearings under 21 U.S.C. 883, and to take custody of seized property under 21 U.S.C. 881. All Special Agents-in-Charge of the DEA and the FBI, the DEA Deputy Administrator, Assistant Administrators and Office Heads, and the FBI Executive Assistant Directors, Assistant Directors, Deputy Assistant Directors, and Section Chiefs, are authorized to release information pursuant to 28 CFR 0.103(a)(1) and (2) that is obtained by the DEA and the FBI, and to authorize the testimony of DEA and FBI officials in response to prosecution subpoenas or demands under 28 CFR 0.103(a)(3). All DEA Laboratory Directors are authorized to release information pursuant to 28 CFR 0.103(a)(1) and (2) that is obtained by a DEA laboratory, and to authorize the testimony of DEA laboratory personnel in response to prosecution subpoenas or demands under 28 CFR 0.103(a)(3). All DEA Special Agents-in-Charge are authorized to take custody of, and make disposition of, controlled substances seized pursuant to 21 U.S.C. 824(g).

* * * * *

Sec. 4. Issuance of subpoenas. (a) The Chief Inspector of the DEA; the Deputy Chief Inspectors and Associate Deputy Chief Inspectors of the Office of Inspections and the Office of Professional Responsibility of the DEA; all Special Agents-in-Charge of the DEA and the FBI; DEA Inspectors assigned to the Inspection Division; DEA Associate Special Agents-in-Charge; DEA and FBI Assistant Special Agents-in-Charge; DEA Resident Agents-in-Charge; DEA Diversion Program Managers; FBI Supervisory Senior Resident Agents; DEA Special Agent Group Supervisors; and those FBI Special Agent Squad Supervisors who have management responsibility over Organized Crime/Drug Program Investigations, are authorized to sign and issue subpoenas with respect to controlled substances, listed chemicals, tableting machines or encapsulating machines under 21 U.S.C. 875 and 876 in regard to matters within their respective jurisdictions.

* * * * *

Sec. 5. Legal functions. The Chief Counsel and the Director of DEA's Mid-Atlantic Laboratory are authorized to execute any certification required to authenticate any documents pursuant to 28 CFR 0.146. The Chief Counsel is also authorized to adjust, determine, compromise, and settle any claims involving the Drug Enforcement Administration under 28 U.S.C. 2672 relating to tort claims where the amount of the proposed adjustment, compromise, settlement or award does not exceed $2,500; to formulate and coordinate the proceedings relating to the conduct of hearings under 21 U.S.C. 875, including the signing and issuance of subpoenas, examining of witnesses, and receiving evidence; to adjust, determine, compromise and settle any tort claims when such claims arise in foreign countries in connection with DEA operations abroad, and to conduct enforcement hearings under 21 U.S.C. 883. The Forfeiture Counsel of the DEA is authorized to exercise all necessary functions with respect to decisions on petitions under 19 U.S.C. 1618 for remission or mitigation of forfeitures incurred under 21 U.S.C. 881.

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Sec. 10. Deputization of State and Local Law Enforcement Officers. The Chief, Investigative Support Section, Office of Operations Management, Operations Division, is authorized to exercise all necessary functions with respect to the deputization of state and local law enforcement officers as Task Force Officers of DEA pursuant to 21 U.S.C. 878(a).

Sec. 11. Cross-Designation of Federal Law Enforcement Officers. The Chief, Investigative Support Section, Office of Operations Management, Operations Division is authorized to exercise all necessary functions with respect to the cross-designation of Federal law enforcement officers to undertake title 21 drug investigations under supervision of the DEA pursuant to 21 U.S.C. 873(b).

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Dated: September 13, 2002.

John Ashcroft,

Attorney General.