2010-28725. Delegation of Authority Under 18 U.S.C. 249

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

This rule amends 28 CFR part 0 to delegate the Attorney General's certification authority under 18 U.S.C. 249, relating to hate crimes, to the Assistant Attorney General for the Civil Rights Division, and, in limited circumstances, to the Assistant Attorney General for the Criminal Division.

DATES:

Effective Date: November 16, 2010.

FOR FURTHER INFORMATION CONTACT:

Robert Moossy, Acting Section Chief, Civil Rights Division, Criminal Section, Patrick Henry Building, 950 Pennsylvania Avenue, NW., Washington, DC 20530, [phone].

SUPPLEMENTARY INFORMATION:

On October 28, 2009, President Obama signed into law the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (Shepard-Byrd Act). Among other things, the Shepard-Byrd Act created a new federal hate crime statute to be codified at 18 U.S.C. 249. The Shepard-Byrd Act expressly provides that no prosecution under section 249 may be undertaken without a written certification by the Attorney General (or a designee) that the State does not have jurisdiction; the State has requested that the federal government assume jurisdiction; the verdict or sentence obtained through State charges left demonstrably unvindicated the federal interest in eradicating bias-motivated violence; or a prosecution by the federal government is in the public interest and necessary to secure substantial justice. The statute expressly allows the Attorney General to delegate this certification authority to a designee, and this rule accordingly amends 28 CFR part 0 to delegate the Attorney General's certification authority under 18 U.S.C. 249 to the Assistant Attorney General for the Civil Rights Division, and, in limited circumstances, to the Assistant Attorney General for the Criminal Division.

Regulatory Certifications

This 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 requirements of notice and comment and a delayed effective date, 5 U.S.C. 553(b), (d), 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; and (3) this action is not a “regulation” or “rule” as defined by Executive Order 12866, “Regulatory Planning and Review,” § 3(d) 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 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)
• Privacy
• Reporting and recordkeeping requirements
• 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, 510, part 0 of title 28 of the Code of Federal Regulations is amended as follows:

PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE

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

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

Subpart J—Civil Rights Division

2. Section 0.50 is amended by adding a new paragraph (n) to read as follows:

§ 0.50

General functions.

* * * * *

(n) Upon request, certification under 18 U.S.C. 249, relating to hate crimes.

Subpart K—Criminal Division

3. Section 0.55 is amended by adding a new paragraph (v) to read as follows:

§ 0.55

General functions.

* * * * *

(v) Upon request, certification under 18 U.S.C. 249, relating to hate crimes, in cases involving extraterritorial crimes that also involve charges filed pursuant to the Military Extraterritorial Jurisdiction Act (18 U.S.C. 3261 et seq.), or pursuant to chapters of the Criminal Code prohibiting genocide (18 U.S.C. 1091), torture (18 U.S.C. 2340A), war crimes (18 U.S.C. 2441), or recruitment or use of child soldiers (18 U.S.C. 2442).

Dated: November 8, 2010.

Eric H. Holder, Jr.,

Attorney General.