Delegations of Authority; Federal Bureau of Investigation

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

Recent consultations between criminal law enforcement investigative agencies and the Department of Justice have suggested the need to simplify and clarify the delegations of authority to the Federal Bureau of Investigation to investigate any criminal violations of law in certain foreign counterintelligence areas. This final rule changes the language of the delegations of authority to eliminate confusion about the scope of the delegation.

EFFECTIVE DATE:

November 15, 2004.

FOR FURTHER INFORMATION CONTACT:

Bruce C. Swartz, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, DC 20530 (202) 514-2333 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

The Attorney General has authority to investigate any violation of the criminal laws of the United States. 28 U.S.C. 533. As a general proposition, the Attorney General has delegated general investigative authority to the Federal Bureau of Investigation. 28 CFR 0.85(a). Recent consultations among investigative agencies have indicated that confusion has been created by the use of limiting language in the formal delegations of authority within the Department. The limitation of the Federal Bureau of Investigation's authority to the extent that investigative authority is assigned elsewhere was not intended as other than an internal management tool. The Department has determined that the limitation should be stated more clearly and applicable only when statute or other authority, such as an Executive Order or Attorney General delegation, assigns investigative authority exclusively to another agency or component. Accordingly, this final rule amends the language in 28 CFR part 0.

Administrative Procedure Act

This rule relates to matters of agency management and 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) and (d). The rule only alters an internal delegation to the Federal Bureau of Investigation.

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 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 matters as described by Executive Order 12866, § 3(d)(3) and, therefore, is not a “regulation” or “rule” as defined by that Executive Order.

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 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.

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

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 Enforcment 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)
• Whistleblowing

Accordingly, chapter 1 of title 28 of the Code of Federal Regulations is amended as follows:

PART 0—ORGANIZATION OF THE DEPARTMENT OF JUSTICE

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. In § 0.85, paragraph (a) is amended by removing “specifically” and adding in its place “exclusively,” and paragraph (d) is revised to read as follows: