[Federal Register Volume 77, Number 86 (Thursday, May 3, 2012)]
[Rules and Regulations]
[Pages 26181-26183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10641]


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DEPARTMENT OF JUSTICE

28 CFR Part 0

[CIV Docket No. 152; AG Order No. 3330-2012]


Authorization To Redelegate Settlement Authority for Claims 
Submitted Under the Federal Tort Claims Act

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is amending its internal 
organizational regulations to clarify the authority of the respective 
agency heads of the Bureau of Prisons, the Federal Prison Industries, 
the United States Marshals Service, the Drug Enforcement 
Administration, the Federal Bureau of Investigation, and the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives to settle claims under the 
Federal Tort Claims Act.

DATES: This rule is effective June 4, 2012.

FOR FURTHER INFORMATION CONTACT: Phyllis J. Pyles, Director, Torts 
Branch, Civil Division, Department of Justice, 1331 Pennsylvania Avenue 
NW., Washington, DC 20004; telephone: 202-616-4400.

SUPPLEMENTARY INFORMATION:

Background

    The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, 
provides a remedy for injury or loss of property, or personal injury or 
death caused by the negligent or wrongful act or omission of any 
employee of the Government while acting within the scope of his office 
or employment, under circumstances where the United States, if a 
private person, would be liable to the claimant in accordance with the 
law of the place where the act or omission occurred. Prior to filing 
suit, a claimant must file an administrative tort claim with the 
appropriate agency. 28 U.S.C. 2675. Pursuant to 28 U.S.C. 2672, the 
head of each Federal agency or his designee, in accordance with 
regulations prescribed by the Attorney General, may consider, 
ascertain, adjust, determine, compromise, and settle FTCA claims.
    In the present organizational regulations of the Department of 
Justice, the Attorney General delegated his authority to settle FTCA 
claims for amounts of $50,000 or less to the Director of the Bureau of 
Prisons, the Commissioner of Federal Prison Industries, the 
Commissioner of the Immigration and Naturalization Service (INS), the 
Director of the United States

[[Page 26182]]

Marshals Service, and the Administrator of the Drug Enforcement 
Administration (28 CFR 0.172), and to the Director of the Federal 
Bureau of Investigation (FBI) (28 CFR 0.89a) and the Director of the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) (28 CFR 
0.132). The Director of the FBI is further authorized to redelegate 
this authority to the FBI General Counsel or his designee within the 
Office of the General Counsel or to the primary legal advisers of the 
FBI field offices.
    This rule amends Sec. Sec.  0.89a, 0.132, and 0.172 in order to 
ensure conformity across the different components of the Department of 
Justice, to update agency references, and to clarify the scope of the 
delegated FTCA settlement authority. In addition, the FTCA settlement 
authority of the Director of the FBI, currently contained in Sec.  
0.89a, and of the Director of ATF, currently contained in Sec.  0.132, 
are being transferred by this rule to Sec.  0.172, where the FTCA 
settlement authority of the other specified Department component heads 
is located.
    Section 0.172 is being amended to remove a reference to the 
Commissioner of the INS. Pursuant to the Homeland Security Act of 2002, 
the functions of the former INS were transferred to the Department of 
Homeland Security. Section 0.172 also is being amended to clarify that 
the approval of the Assistant Attorney General in charge of the Civil 
Division will be required if two or more claims arise from the same 
subject matter and the aggregate amount of the settlement would exceed 
$50,000. In addition, Sec.  0.172 is being amended to clarify when 
proposed settlements, regardless of amount, should be referred to the 
Assistant Attorney General in charge of the Civil Division. In 
particular, Sec.  0.172 is being amended to require the referral of 
settlements to the Assistant Attorney General in charge of the Civil 
Division or his delegee, if the settlement, as a practical matter, 
would or may control or adversely influence the disposition of other 
claims and the total settlement value of all claims would or may exceed 
$50,000; or if, in the opinion of the head of the referring component, 
the settlement presents a question of law or policy or other issue that 
should receive the personal attention of the Assistant Attorney General 
or his delegee. Section 0.172 also is being amended to more closely 
conform to the language contained in 28 U.S.C. 2672 by clarifying that 
the Attorney General's delegees have the authority to consider or 
ascertain claims involving their respective agencies, in addition to 
their authority to adjust, determine, compromise, and settle such 
claims.
    Finally, Sec.  0.132 is being amended to allow the Director of ATF 
to delegate this authority under Sec.  0.172 to the agency's Chief 
Counsel and to allow the Chief Counsel to redelegate this authority to 
attorneys within the Office of Chief Counsel, but not below the 
Associate Chief Counsel level, provided that the settlement of any one 
claim does not exceed $50,000. Without this provision for delegation 
and redelegation, the ATF Director must personally approve all 
submitted FTCA claims, regardless of size or merit. This rule provides 
flexibility to the Director of ATF and is consistent with the 
redelegation authority of the FBI Director under current Sec.  0.89a(c) 
(which is being redesignated by this rule as Sec.  0.89a(b)). With this 
flexibility, the ATF can more efficiently process FTCA claims.
    The Attorney General believes that consolidating under Sec.  0.172 
the authority of heads of certain components within the Department of 
Justice to settle FTCA claims and ensuring uniform language across 
Sec. Sec.  0.89a, 0.132, and 0.172 that is consistent with 28 U.S.C. 
2672 will facilitate more consistent treatment of these claims.

Administrative Procedure Act (APA)

    Notice and comment rulemaking is not required for this final rule. 
Under the APA, ``rules of agency organization, procedure or practice,'' 
5 U.S.C. 553(b)(A), that do not ``affect[] individual rights and 
obligations,'' Morton v. Ruiz, 415 U.S. 199, 232 (1974), are exempt 
from the general notice and comment requirements of section 553. See 
JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (holding that 
the procedural exception applies to ``agency actions that do not 
themselves alter the rights or interests of parties, although [they] 
may alter the manner in which the parties present themselves or their 
viewpoints to the agency'' (quoting Batterton v. Marshall, 648 F.2d 
694, 707 (D.C. Cir. 1980) (internal quotation marks omitted)). The 
revision to 28 CFR 0.89a, 0.132, and 0.172 is purely a matter of agency 
organization, procedure, and practice. The final rule will not affect 
substantive rights or interests of persons presenting their FTCA claims 
to the relevant agencies of the Department of Justice.

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 is not required for this final rule 
because the Department was not required to publish a general notice of 
proposed rulemaking for this matter.

Executive Orders 12866 and 13563--Regulatory Review

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation, and in accordance with Executive Order 13563, 
Improving Regulation and Regulatory Review, section 1(b), General 
Principles of Regulation. This rule is limited to agency organization, 
management, or personnel matters as described by Executive Order 12866, 
section 3(d)(3), and therefore is not a ``regulation'' or ``rule'' as 
defined by Executive Order 12866. Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. The Department has 
assessed the costs and benefits of this rule and believes that the 
regulatory approach selected maximizes net benefits.

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.

[[Page 26183]]

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 (SBREFA), 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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

Congressional Review Act

    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.

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.

Authority and Issuance

    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, and for the 
reasons set forth in the preamble, part 0 of title 28 of the Code of 
Federal Regulations is amended as follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

0
1. The authority citation for 28 CFR Part 0 continues to read as 
follows:

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


Sec.  0.89a  [Amended]

0
2. Section 0.89a is amended by--
0
a. Removing paragraph (a);
0
b. Redesignating paragraphs (b) and (c) as paragraphs (a) and (b), 
respectively;
0
c. Removing the word ``further'' from newly redesignated paragraph (a);
0
d. Adding a comma after the parenthetical ``(31 U.S.C. 3274)'' in newly 
redesignated paragraph (a); and
0
e. Removing the words ``by paragraphs (a) and (b) of this section'' 
from newly redesignated paragraph (b) and adding in their place the 
words ``by paragraph (a) of this section and by 28 CFR 0.172''.


Sec.  0.132  [Amended]

0
3. Section 0.132 is amended by--
0
a. Removing paragraph (a);
0
b. Redesignating paragraphs (b) and (c) as paragraphs (a) and (b), 
respectively;
0
c. Adding a comma after the word ``personnel'' in newly redesignated 
paragraph (a); and
0
d. Removing the words ``in paragraph (b) of this section'' from newly 
redesignated paragraph (b) and adding in their place the words ``by 
paragraph (a) of this section and by 28 CFR 0.172''.

0
4. Section 0.172 is revised to read as follows:


Sec.  0.172  Authority: Federal tort claims.

    (a) Delegation of authority. Subject to the limitations set forth 
in paragraph (b) of this section, the Director of the Bureau of 
Prisons, the Commissioner of Federal Prison Industries, the Director of 
the United States Marshals Service, the Administrator of the Drug 
Enforcement Administration, the Director of the Federal Bureau of 
Investigation, and the Director of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives shall have authority under section 2672 of 
title 28, United States Code, relating to the administrative settlement 
of Federal tort claims, to consider, ascertain, adjust, determine, 
compromise, and settle any claim involving their respective components, 
provided that any award, compromise, or settlement shall not exceed 
$50,000.
    (b) Limitations on authority. Any proposed award, compromise, or 
settlement under section 2672 of title 28, United States Code, must be 
referred to the Assistant Attorney General in charge of the Civil 
Division, or his delegee, when--
    (1) Because a significant question of law or policy is presented, 
or for any other reason, the head of the referring component is of the 
opinion that the proposed award, compromise, or settlement should 
receive the personal attention of the Assistant Attorney General or his 
delegee;
    (2) Two or more claims arise from the same subject matter and the 
total amount of any award, compromise, or settlement of all claims will 
or may exceed $50,000; or
    (3) The award, compromise, or settlement of a particular claim, as 
a practical matter, will or may control or adversely influence the 
disposition of other claims and the total settlement value of all 
claims will or may exceed $50,000.
    (c) Subject to the provisions of Sec.  0.160, the Assistant 
Attorney General in charge of the Civil Division shall have authority 
to consider, ascertain, adjust, determine, compromise, and settle any 
other claim involving the Department under section 2672, of title 28, 
U.S. Code, relating to the administrative settlement of Federal tort 
claims.

    Dated: April 27, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-10641 Filed 5-2-12; 8:45 am]
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