[Federal Register Volume 81, Number 204 (Friday, October 21, 2016)]
[Rules and Regulations]
[Pages 72692-72693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25464]



Office of the Attorney General

28 CFR Part 0

[OAG Docket No. 152; A.G. Order No. 3754-2016]

Conforming Justice Department Regulations to the Federal 
Vacancies Reform Act of 1998

AGENCY: Department of Justice.

ACTION: Final rule.


SUMMARY: This final rule amends the Department of Justice (DOJ) 
organizational regulations to remove authority from United States 
Attorneys (USAs) to designate any Assistant United States Attorney as 
Acting United States Attorney. The Federal Vacancies

[[Page 72693]]

Reform Act of 1998 governs designations of Acting USAs. The removal of 
authority from USAs is designed to bring DOJ's organizational 
regulations in compliance with the Act.

DATES: This rule is effective October 21, 2016.

Executive Office for United States Attorneys, 600 E Street NW., Suite 
5100, Washington, DC 20530; Telephone: (202) 252-1600; Fax: (202) 252-

SUPPLEMENTARY INFORMATION: The Federal Vacancies Reform Act of 1998, 5 
U.S.C. 3345-3349d, provides that, when a Senate-confirmed officer in an 
Executive agency ``dies, resigns, or is otherwise unable to perform the 
functions and duties of the office,'' the First Assistant to that 
office automatically becomes the acting officer, unless the President 
designates someone else to perform the functions and duties of the 
office under 5 U.S.C. 3345(a)(2) or (a)(3). 5 U.S.C. 3345(a)(1). Only 
individuals performing the functions and duties of a vacant office 
pursuant to 5 U.S.C. 3345 may use the acting title, because the Act, 
with exceptions not relevant here, is ``the exclusive means for 
temporarily authorizing an acting official to perform the functions and 
duties'' of an office covered by the Act. 5 U.S.C. 3347. Currently, 28 
CFR 0.136, which governs the designation of Acting USAs, is 
inconsistent with the Act, insofar as it authorizes each USA to 
designate any AUSA in the office to perform the functions and duties of 
the USA office and use the title of Acting USA.
    The Department's regulations already account for potential USA 
vacancies under 28 CFR 0.137(b), which provides that each Department 
office ``to which appointment is required to be made by the President 
with the advice and consent of the Senate (PAS office) shall have a 
First Assistant within the meaning of the Federal Vacancies Reform Act 
of 1998,'' and ``[w]here there is a position of Principal Deputy to the 
PAS office, the Principal Deputy shall be the First Assistant.'' Id. 
The offices of USAs each have a First Assistant United States Attorney 
who is considered the Principal Deputy for purposes of Sec.  0.137(b) 
and, by operation of the Act, automatically becomes the Acting USA when 
the USA leaves office or is otherwise unable to perform the office's 
functions or duties, unless the President designates another individual 
to serve as Acting USA.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    This rule is limited to agency organization, management, or 
personnel matters, and accordingly it is not subject to review under 
Executive Order 12866, Sec.  3(d) (Sept. 30, 1993).

Executive Order 13132 (Federalism)

    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 (Aug. 4, 1999), the Department has determined that this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

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 (Feb. 5, 1996).

Administrative Procedure Act

    This rule is exempt from the rulemaking provisions of 5 U.S.C. 553 
because this action pertains to rules of agency organization, 
procedure, and practice. 5 U.S.C. 553(b)(3)(A). Accordingly, it is not 
necessary to issue this rule using the notice and public procedure set 
forth in 5 U.S.C. 553(b), and the requirement of a delayed effective 
date in 5 U.S.C. 553(d) does not apply.

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 were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1501 et seq.

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. The rule removes authority that 
was inconsistent with the Federal Vacancies Reform Act of 1998.

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. See 5 U.S.C. 
804(3). Therefore, the reports to Congress and the General Accounting 
Office are not required.

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 and 510, Chapter I of 
Title 28 of the Code of Federal Regulations is amended as follows:


 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.

Sec.  0.136  [Removed and Reserved]

2. Remove and reserve Sec.  0.136.

    Dated: October 14, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-25464 Filed 10-20-16; 8:45 am]