84 FR 18138 - Interlocutory Appeals in Administrative Hearings

The Drug Enforcement Administration is amending its hearing regulations to provide that, when the presiding officer of an administrative hearing denies an interlocutory appeal, he shall transmit his determination to the Drug Enforcement Administration Administrator for discretionary review.

[Federal Register Volume 84, Number 83 (Tuesday, April 30, 2019)]
[Rules and Regulations]
[Pages 18138-18140]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2019-08705]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1316

[Docket No. DEA-493]


Interlocutory Appeals in Administrative Hearings

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Drug Enforcement Administration is amending its hearing

[[Page 18139]]

regulations to provide that, when the presiding officer of an 
administrative hearing denies an interlocutory appeal, he shall 
transmit his determination to the Drug Enforcement Administration 
Administrator for discretionary review.

DATES: This final rule is effective April 30, 2019.

FOR FURTHER INFORMATION CONTACT: Lynnette Wingert, Diversion Control 
Division, Drug Enforcement Administration; Mailing Address: 8701 
Morrissette Drive, Springfield, VA 22152, Telephone: (202) 598-6812.

SUPPLEMENTARY INFORMATION: The Drug Enforcement Administration (DEA) is 
amending its administrative hearing regulation governing interlocutory 
appeals of rulings of the presiding officer.\1\
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    \1\ 21 CFR 1316.62.
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    Under the current regulations, the parties are not entitled to 
appeal a ruling of the presiding officer \2\ to the DEA Administrator 
(Administrator), prior to the conclusion of the hearing, except with 
the consent of the presiding officer based upon his certification that 
the allowance of the appeal is clearly necessary to prevent exceptional 
delay, expense, or prejudice to any party or substantial detriment to 
the public interest. If the presiding officer denies a party the right 
to file an interlocutory appeal, the party has no right to challenge 
the presiding officer's denial of the appeal. Thus, under the current 
regulation, the presiding officer has the ability to preclude 
interlocutory appeal, and therefore foreclose the Administrator's 
ability to timely correct an erroneous ruling by the presiding officer, 
even where the effects of that error may be significant.
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    \2\ DEA regulations define ``presiding officer'' as ``an 
administrative law judge qualified and appointed as provided in the 
Administrative Procedure Act (5 U.S.C. 556).'' 21 CFR 1316.42(f).
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    Under the newly revised regulation, when the presiding officer 
denies the motion of any party for interlocutory review of a ruling by 
him, the presiding officer must transmit his determination and the 
parties' filings related to the interlocutory appeal to the 
Administrator for the Administrator's discretionary review. The 
Administrator may, notwithstanding the presiding officer's ruling, 
decide that interlocutory review of the issue(s) raised is warranted to 
prevent exceptional delay, expense, or prejudice to any party or 
substantial detriment to the public interest. In this way, this rule 
leaves the current standard for granting an interlocutory appeal 
unchanged but merely allows the Administrator, in the exercise of his 
discretion, to determine that the standard is met in a particular case.
    The DEA has determined that this rule is necessary for the 
efficient execution of the administrative hearing process. The new 
regulation does not, however, grant either party the right to file any 
additional briefing as to why the interlocutory appeal should either be 
allowed or denied. Rather, it simply preserves the Administrator's 
authority to be the final decision-maker as to important legal 
questions, and ensures that the Administrator will have the opportunity 
to weigh in on matters of considerable importance. The rule also 
requires that the presiding officer grant or deny a party's request for 
consent to take an interlocutory appeal within ten (10) business days 
of receipt of the request. It also requires that, in the event the 
presiding officer denies the request to take the appeal, the presiding 
officer must transmit his determination and the parties' filings 
related to the request to the Administrator for his review within three 
(3) business days.

Regulatory Analyses

Notice and Comment Rulemaking Is Not Required Because This Rule Is a 
Rule of Agency Procedure or Practice

    Pursuant to 5 U.S.C. 553(b)(A), rules of agency procedure or 
practice are not subject to the requirements of notice and comment 
rulemaking. As the U.S. Court of Appeals for the District of Columbia 
Circuit has explained, ``the `critical feature' of the procedural 
exception `is that it covers agency actions that do not themselves 
alter the rights or interests of parties, although it may alter the 
manner in which the parties present themselves or their viewpoints to 
the agency.' '' \3\
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    \3\ JEM Broadcasting Co., Inc., v. FCC, 22 F.3d 320, 326 (D.C. 
Cir. 1994) (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. 
Cir. 1980)).
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    This rule does not create any substantive right in a party beyond 
those already existing under 21 CFR 1316.62 or alter a party's existing 
right to seek interlocutory review of a ruling of a presiding officer. 
Rather, the rule merely preserves the Administrator's authority to 
address important legal questions on an interlocutory basis when he 
concludes that review is clearly necessary to prevent exceptional 
delay, expense, or prejudice to any party or substantial detriment to 
the public interest, the same standard that has long applied to 
interlocutory appeals in DEA administrative proceedings. Accordingly, 
the DEA has determined that this rule is a rule of agency procedure or 
practice which is not subject to the notice and comment rulemaking 
procedures under 5 U.S.C. 553(b). For the same reasons, the DEA has 
determined that this rule is effective immediately.\4\
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    \4\ 5 U.S.C. 553(d).
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Executive Orders 12866, 13563, and 13771 (Regulatory Planning and 
Review, Improving Regulation and Regulatory Review, and Reducing 
Regulation and Controlling Regulatory Costs)

    This rule was developed in accordance with the principles of 
Executive Orders 12866, 13563, and 13771. Executive Order 12866 directs 
agencies to assess all costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety, and other advantages; 
distributive impacts; and equity). Executive Order 13563 is 
supplemental to and reaffirms the principles, structures, and 
definitions governing regulatory review as established in Executive 
Order 12866.
    This rule will not have an annual effect on the economy of $100 
million or more in at least one year and therefore is not an 
economically significant regulatory action. As described above, this 
rule only affects review procedures for DEA administrative hearings--
specifically, when the Administrator may engage in interlocutory review 
of rulings in DEA administrative hearings. Because this rule does not 
create any new regulatory burdens, the DEA concludes its economic 
impact, if any, will be extremely limited.
    This rule merely modifies an existing procedural rule for the 
conduct of administrative hearings. Accordingly, it does not raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    Accordingly, the DEA has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, and it 
has not been reviewed by the Office of Management and Budget.
    Because the DEA has determined that this rule is not a significant 
regulatory action under Executive Order 12866, this rule is not subject 
to the requirements of Executive Order 13771.

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, Civil Justice Reform, to 
eliminate drafting

[[Page 18140]]

errors and ambiguity, minimize litigation, provide a clear legal 
standard for affected conduct, and promote simplification and burden 
reduction.

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, the DEA has determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment.

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    This rule does not have tribal implications warranting the 
application of Executive Order 13175. It does not have substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes.

Paperwork Reduction Act

    This rule does not impose new information collection requirements 
under the Paperwork Reduction Act of 1995.\5\ It is a rule of agency 
procedure or practice, and does not impose new reporting or 
recordkeeping requirements on State or local governments, individuals, 
businesses, or organizations.
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    \5\ 44 U.S.C. 3501-3521.
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Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) \6\ requires an agency to 
conduct a regulatory flexibility analysis assessing a rule's impact on 
small entities when the agency promulgates a rule that is subject to 
notice and comment under 5 U.S.C. 553(b).\7\ As explained above, this 
final rule is a rule of agency procedure or practice and thus not 
subject to section 553(b)'s notice and comment requirement. 
Consequently, this RFA requirement does not apply to this rule.
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    \6\ 5 U.S.C. 601-612.
    \7\ 5 U.S.C. 603(a), 604(a).
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Unfunded Mandates Reform Act of 1995

    The requirements of the Unfunded Mandates Reform Act of 1995 (UMRA) 
\8\ apply to rules subject to the notice and comment rulemaking 
procedures of 5 U.S.C. 553(b).\9\ As discussed above, this is not such 
a rule. Moreover, DEA has determined that this action would not result 
in any Federal mandate that may result ``in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted for inflation) in any one 
year.'' \10\ Therefore, neither a Small Government Agency Plan nor any 
other action is required under the UMRA.
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    \8\ 2 U.S.C. 1501 et seq.
    \9\ 2 U.S.C. 1532(a).
    \10\ Id.
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Congressional Review Act

    This action is not a major rule as defined by section 804 of the 
Congressional Review Act (CRA).\11\ It is a rule of ``agency 
organization, procedure, or practice that does not substantially affect 
the rights or obligations of non-agency parties,'' and accordingly is 
not subject to the reporting requirement under the CRA.\12\
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    \11\ 5 U.S.C. 801-808.
    \12\ See 5 U.S.C. 804(3)(C).
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List of Subjects in 21 CFR Part 1316

    Administrative practice and procedure, Authority delegations 
(Government agencies), Drug traffic control, Research, Seizures and 
forfeitures.

    For the reasons set out above, DEA amends 21 CFR part 1316 as 
follows:

PART 1316--ADMINISTRATIVE FUNCTIONS, PRACTICES, AND PROCEDURES

Subpart D--Administrative Hearings

0
1. The authority citation for part 1316, subpart D, continues to read 
as follows:

     Authority:  21 U.S.C. 811, 812, 871(b), 875, 958(d), 965.


0
 2. Revise Sec.  1316.62 to read as follows:


Sec.  1316.62  Interlocutory appeals from rulings of the presiding 
officer.

    Rulings of the presiding officer may not be appealed to the 
Administrator prior to his consideration of the entire hearing without 
first requesting the consent of the presiding officer. Within ten (10) 
business days of receipt of a party's request for such consent, the 
presiding officer shall certify on the record or in writing his 
determination of whether the allowance of an interlocutory appeal is 
clearly necessary to prevent exceptional delay, expense or prejudice to 
any party, or substantial detriment to the public interest. If the 
presiding officer denies an interlocutory appeal, he shall, within 
three (3) business days, transmit his determination and the parties' 
filings related to the interlocutory appeal to the Administrator for 
the Administrator's discretionary review. If an interlocutory appeal is 
allowed by the presiding officer or if the Administrator determines 
that an appeal is warranted under this section, any party to the 
hearing may file a brief in quintuplicate with the Administrator within 
such period that the Administrator directs. No oral argument will be 
heard unless the Administrator directs otherwise.

    Dated: April 23, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-08705 Filed 4-29-19; 8:45 am]
 BILLING CODE 4410-09-P