[Federal Register Volume 67, Number 182 (Thursday, September 19, 2002)]
[Rules and Regulations]
[Pages 58988-58990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23780]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[DEA-231F; A.G. Order No. 2614-2002]


Organization; Drug Enforcement Administration

AGENCY: Department of Justice.

ACTION: Final rule.

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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 (202) 307-1000.

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.

[[Page 58989]]

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 
SmallBusiness 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,

[[Page 58990]]

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.
* * * * *
    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

* * * * *
    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.
* * * * *
    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).
* * * * *

    Dated: September 13, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-23780 Filed 9-18-02; 8:45 am]
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