[Federal Register Volume 66, Number 140 (Friday, July 20, 2001)]
[Rules and Regulations]
[Pages 37902-37904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18087]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Parts 0 and 27

[A.G. Order No. 2492-2001]


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, (202) 514-4604.

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 Sec. 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

[[Page 37903]]

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:


Sec. 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 Sec. 0.29c is amended by adding the words ``by 
the OIG'' between the words ``reported'' and ``to''.

    4. Paragraph (d) of Sec. 0.29c is amended by adding the words ``by 
the OIG'' between the words ``reported'' and ``to''.

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


Sec. 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 Sec. 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:


Sec. 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.
* * * * *


Sec. 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

[[Page 37904]]

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 Sec. 27.1, paragraph (b) is revised to read as follows:


Sec. 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.


Sec. 27.4  Corrective action and other relief; Director, Office of 
Attorney Recruitment and Management.

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

    11. In Sec. 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.
[FR Doc. 01-18087 Filed 7-19-01; 8:45 am]
BILLING CODE 4410-AR-M