SUPPLEMENTARY INFORMATION:

I. Legal Authority and Background

By delegation from the Attorney General, the Administrator of Drug Enforcement (“Administrator”) is responsible for carrying out all functions vested in the Attorney General by the Controlled Substances Act, with limited exceptions not relevant here.^[1] The Administrator, in turn, is authorized to redelegate such functions to any subordinates of the Administrator.^[2] Those functions that have been redelegated to the Administrator's subordinates are set forth in 28 CFR part 0, Appendix to subpart R.

The final rule being issued today amends section 4(a) of the Appendix to subpart R to delegate to additional DEA officials the authority 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. Currently, within DEA, the Chief Inspector of DEA; the Deputy Chief Inspectors and Associate Deputy Chief Inspectors of the Office of Inspections and the Office of Professional Responsibility of DEA; all Special Agents-in-Charge of DEA; DEA Inspectors assigned to the Inspection Division; DEA Associate Special Agents-in-Charge; DEA Assistant Special Agents-in-Charge; DEA Resident Agents-in-Charge; DEA Diversion Program Managers; DEA Special Agent Group Supervisors; and DEA Regional Directors, Assistant Regional Directors, and Country Attachés have the authority to sign and issue such administrative subpoenas.^[3] This final rule grants DEA Supervisory Diversion Investigators, Field Intelligence Managers, and Intelligence Group Supervisors, who, like DEA Special Agent Group Supervisors, hold supervisory positions within their respective divisions (the Diversion Control Division and the Intelligence Division), the same authority to sign and issue administrative subpoenas as these DEA Special Agent Group Supervisors.

II. Regulatory Analyses

Administrative Procedure Act

This final rule relates to a matter of agency management or personnel, is a rule of agency organization, procedure, or practice, and is not a substantive rule. As such, this rule is exempt from the usual requirements for prior notice and comment and a 30-day delay in effective date.^[4]

Executive Orders 12866, 13563, and 14192 (Regulatory Review)

This final rule is limited to matters of agency organization, management, or personnel. Accordingly, it is excluded from the categories of regulations or rules that are subject to review under Executive Orders (E.O.s) 12866, 13563, and 14192.

Executive Order 12988, Civil Justice Reform

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burdens.

Executive Order 13132, Federalism

This final rule does not have federalism implications warranting the application of E.O. 13132. The final rule does 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.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

This final rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or the distribution of power and responsibilities between the Federal Government and Indian tribes.

Executive Order 14267, Reducing Anti-Competitive Regulatory Barriers

This final rule does not reduce competition, entrepreneurship, and innovation. ( printed page 29898)

Executive Order 14294, Overcriminalization of Federal Regulations

E.O. 14294 specifies that all notices of proposed rulemaking and final rules published in the Federal Register , the violation of which may constitute criminal regulatory offenses, should include a statement identifying that the rule or proposed rule is a criminal regulatory offense, the authorizing statute, and the mens rea requirement for each element of the offense. This final rule does not involve a criminal regulatory offense, and thus E.O. 14294 does not apply.

Regulatory Flexibility Act

The Regulatory Flexibility Act (“RFA”) ^[5] applies to rules that are subject to the notice-and-comment requirements under the Administrative Procedure Act.^[6] DEA is not required to publish a general notice of proposed rulemaking before issuing this final rule. Consequently, the RFA does not apply to this final rule.

Unfunded Mandates Reform Act of 1995

In accordance with the Unfunded Mandates Reform Act (“UMRA”) of 1995,^[7] DEA has determined that this action will 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 $100,000,000 or more (adjusted annually for inflation) in any 1 year . . . .” ^[8] Therefore, neither a Small Government Agency Plan nor any other action is required under the UMRA of 1995.

Paperwork Reduction Act of 1995

This final rule does not impose a new collection or modify an existing collection of information under the Paperwork Reduction Act of 1995.^[9] Also, this final rule does not impose a recordkeeping or reporting requirement on State or local governments, individuals, businesses, or other organizations.

Congressional Review Act

Because this is a rule of agency management or personnel and a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties, the reporting requirement under 5 U.S.C. 801 does not apply.

For the reasons stated in the preamble, the Department of Justice amends 28 CFR part 0 as follows:

91 FR 29897