Attorney General's Authority with Respect to the Regulatory Initiatives of the U.S. Parole Commission

Opinion

Attorney General’s Authority with Respect to the Regulatory Initiatives of the U.S. Parole Commission

T h e A tto rn e y G e n e ra l h a s th e a u th o rity to re q u ire th e U n ite d S ta te s P a ro le C o m m is s io n , a c o m ­ p o n e n t o f th e D e p a r tm e n t o f J u s tic e f o r a d m in is tr a tiv e p u r p o s e s , to p a r t i c i p a t e in D e p a rtm e n t-w id e re g u la to ry c o o rd in a tio n th a t d o e s n o t e n ta il s u b s ta n tiv e c o n tro l o f th e C o m m is s io n ’s re g u la to ry in itia tiv e s. T h e A tto rn e y G e n e ra l th u s m a y re q u ire th e C o m m is s io n to su b m it a n y p ro p o s e d re g u la tio n s to th e O ffice o f M a n a g e m e n t a n d B u d g e t's O ffic e o f In fo rm a tio n a n d R e g u la to ry A ffa irs th ro u g h th e D e p a rtm e n t’s O ffic e o f P o lic y D e v e lo p m e n t a n d m a y a lso re q u ire th e C o m m is sio n to k e e p O P D in fo rm e d o f a n y re g u la to ry in itia tiv e s u n d e r c o n sid e ra tio n .

T h e C o m m is s io n ’s s ta tu to ry sta tu s a s an “ in d e p e n d e n t a g e n c y " w ith in th e D e p a rtm e n t p re c lu d e s th e A tto rn e y G e n e r a l a s a g e n e r a l m a tte r fro m a s s e rtin g s u b s ta n tiv e c o n tr o l o v e r th e C o m m issio n ’s p o lic y m a k in g , in clu d in g its issu an ce o f reg u latio ns. A cco rd in g ly , the A tto rn e y G enera] m ay n o t re q u ire th e C o m m issio n to o b tain O P D ap p ro v al o f its p ro p o se d regu latio n s.

October 10, 1990

M e m o r a n d u m O p in io n f o r t h e D ir e c t o r O f f ic e o f Po l ic y D e v e l o p m e n t

This memorandum responds to your request for our opinion as to whether the Attorney General may require the United States Parole Commission (“Commission”) to participate in a centralized regulatory coordination pro­ cess established by the Attorney General at the request of the Office of Management and Budget (“OMB”). Specifically, you asked whether the Attorney General may require the Commission to consult the Office of Policy Development (“OPD”) concerning the Commission’s regulatory initiatives and to submit proposed regulations to OPD in advance of their submission to OMB’s Office of Information and Regulatory Affairs (“OIRA”). As ex­ plained more fully below, we conclude that the Attorney General has the authority to require the Commission, as an administrative unit of the Depart­ ment of Justice, to coordinate its regulatory activities with OPD and other components of the Department. The Attorney General thus may require the Commission to submit any proposed regulations to OIRA through OPD and may also require the Commission to keep OPD informed of any regulatory initiatives under consideration. The Commission’s statutory status as an “independent agency” within the Department, however, precludes the Attorney

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General as a general matter from asserting substantive control over the Com m ission’s policymaking, including its issuance of regulations. Accord­ ingly, the Commission may not be required to obtain OPD approval of its proposed regulations.

I.

On April 10, 1989, the Administrator of OIRA sent a memorandum to the Attorney General stating that OIRA believed that the process of regulatory review and coordination “would be improved if the Department established a single point of contact for working with various Justice offices and OMB staff on the review of rules.” Memorandum for Richard Thornburgh, Attor­ ney General, from J. Plager, Administrator, OIRA (Apr. 10, 1989). The memorandum explained that a “single point of contact would help avert confusion over what Departmental regulations are subject to OMB review and speed the overall Justice and OMB review process.” Id. Pursuant to this recommendation, the Attorney General sent a memorandum on March 14, 1990 to the heads of all components of the Department of Justice outlin­ ing new procedures for the coordination of Departmental regulatory initiatives. M emorandum from Dick Thornburgh to All Component Heads (Mar. 14, 1990). In the memorandum, the Attorney General designated OPD as the Departm ent’s principal point of contact in the coordination of the regulatory clearance process. The Attorney General’s memorandum states that all com­ ponents “should consult with OPD with respect to proposed regulations at an early stage of the process for informal review,” noting that this procedure “will allow OPD to generally coordinate the Department’s rulemaking activities, and to identify potential policy inconsistencies informally early on.” Id. at 2. In addition, when preparation o f a proposed regulation is complete, it must be “transmitted to OPD before being submitted to OIRA for clearance.” Id.

The Chairman of the Commission, Mr. Benjamin Baer, has since stated his view that the requirements of the Attorney General’s March 14 memo­ randum do not apply to the regulatory initiatives o f the Commission. Memorandum for T. Boyd, Director, Office of Policy Development, from B. Baer, Chairman, U.S. Parole Commission (Apr. 9, 1990). Mr. Baer asserted that, in view of the Commission’s status as “an independent agency that promulgates its regulations pursuant to direct statutory authority,” it is not subject to the procedures set forth in the Attorney General’s memorandum, at least with respect to “the quite narrow issues of paroling policy and pro­ cedure that are covered by the Commission’s regulations at 28 C.F.R. § 2.1 through § 2.64.” Id. Mr. Baer assumed that it would “not be objectionable” if the Commission continued to submit its proposed regulations directly to OIRA for review. He noted, however, that “[r]egulatory initiatives such as proposed parole guideline changes that concern specific types of crimes are routinely coordinated with the appropriate DOJ components.” Id. Mr. Baer

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also stated that he would “be glad to send any U.S. Parole Commission regulatory initiatives to OPD for comment prior to the Commission’s quar­ terly meetings.” Id.

II.

The Commission was established in 1976 as “an independent agency in the Department of Justice.” 18 U.S.C. § 4202.1 The legislative history of the Act that created the Commission states that Congress intended the Com­ m ission to be “independent for policy-m aking purposes” but that the Commission would be “attached to the Department of Justice for adminis­ trative convenience.” S. Rep. No. 369, 94th Cong., 1st Sess. 14 (1975), reprinted in 1976 U.S.C.C.A.N. 335, 336; see also id. at 20, 1976 U.S.C.C.A.N. at 342 (“The Commission is attached to the Department for administrative reasons but its decision-making machinery is independent . . . .”); H.R. Conf. Rep. No. 838, 94th Cong., 2d Sess. 20 (1976), reprinted in 1976 U.S.C.C.A.N. 351, 353 (“[The Commission is] independent of the Department o f Justice for decision-making purposes.”). Indeed, the Conference Report on the bill stated that “[t]he Commission is attached to the Department solely for ad­ ministrative purposes.” Id. at 21, 1976 U.S.C.C.A.N. at 353 (emphasis added); see also H.R. Rep. No. 184, 94th Cong., 1st Sess. 4 (1975) (“Except for administrative purposes, the Commission is to be independent of the Depart­ ment . . . .”). Congress granted the Commission independence from the Department because it wanted to ensure that “parole decisionmaking [would] be independent of, and not governed by, the investigative and prosecutorial functions of the Department of Justice.” 1976 U.S.C.C.A.N. at 353; see also S. Rep. No. 369, at 20, 1976 U.S.C.C.A.N. at 342 (“[The Commission’s] decision-making machinery is independent so as to guard against influence in case decisions.”).2 The Commission possesses independent statutory authority to “promul­ gate rules and regulations establishing guidelines for the [Commission’s powers] and such other rules and regulations as are necessary to carry out a national parole policy.” 18 U.S.C. § 4203(a)(1). Pursuant to this authority, the Commission has promulgated regulations relating to the standards and procedures governing the granting, regulation, and revocation of parole. See 28 C.F.R. §§ 2.1-2.66 (1989). The amendment of these regulations or the adoption of new regulations, if “necessary to carry out a national parole policy,” is within the range of “policy-making” activities that Congress intended to be

1C h ap ter 311 o f title 18 o f the U .S. C ode, c o n sistin g o f sections 42 0 1-4218, w as rep ealed by sectio n 218(a)(5) o fP u b .L . N o. 9 8 -4 7 3 ,9 8 Stat. 1837,2027 (1984), effective Nov. 1 ,1986. Section 2 3 5 (b ) (ll)( A ) o f Pub. L. N o. 9 8 -4 7 3 , 98 Stat. at 2032, provides, how ever, that ch ap ter 311 shall rem ain in effect for five years after Nov. 1, 1986, as to certain specified individuals.

2T h e fact that th e C o m m issio n is in d ep en d en t for policy-m aking purposes from the A tto rn ey G eneral does not in itse lf p resen t a con stitu tio n al problem . N othing in the statute creating the C o m m issio n p u rports to lim it the President's co nstitutional authority to sup erv ise and control the C o m m issio n . In ­ deed , the C o m m issio n has alw ays su b m itted its p roposed reg u latio n s to O IR A for review.

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generally independent from direct Departmental control. Although the adop­ tion o f a particular regulation might not compel a specific result in any given parole decision, Congress’s grant of independent regulatory authority to the Commission, which Congress intended to be independent from the Department for “policy-making purposes,” confirms that the Commission’s independence is not limited to decisions in individual cases, but extends to the issuance of regulations governing the granting, regulation, and revoca­ tion o f parole. Accordingly, we conclude that the Attorney General may not require the Commission to obtain OPD approval of its proposed regula­ tions.3 Because the Commission remains “attached” to the Department for ad­ m inistrative purposes,4 however, the Attorney General may require the Commission to participate in Department-wide regulatory coordination that does not entail substantive control of the Commission’s regulatory initia­ tives. For example, this office previously informed the Commission that it was required to participate in the preparation of a unified calendar of the major regulations then under development in the Department, which was to be used by the President’s Regulatory Council. Memorandum for Cecil C. M cC all, C hairm an, United States Parole C om m ission, from Larry A. Hammond, Deputy Assistant Attorney General, Office of Legal Counsel (Dec. 8, 1978). The Commission was also subject to the Attorney General’s order providing for Departmental review of the Semi-Annual Agenda o f Regula­ tions that was required to be prepared under Executive Order No. 12044 by each component. Memorandum to Heads of Offices, Boards and Divisions (including the U.S. Parole Commission), from Larry A. Hammond, Deputy Assistant Attorney General, Office of Legal Counsel (May 14, 1979); see also Report on the Implementation of Executive Order No. 12044, “Improv­ ing Government Regulations” , Att’y Gen. Order No. 831-79, § 111(A)(5), 44 Fed. Reg. 30,461, 30,463 (1979). Similarly, we believe that the Attorney General may require the Commission to keep OPD informed of its pending regulatory initiatives, so long as OPD does not thereby acquire any power to disapprove or delay the Commission’s proposed regulations. The Attorney General may also require the Commission to submit its proposed regulations to OIRA through OPD, provided that OPD does not exercise substantive approval authority over the regulations.

3W e n o te th a t O M B ’s m em orandum to the A ttorney G eneral d id n o t purport to d elegate to the A ttorney G e n e ra l th e P re sid e n t’s authority to o v e rsee and sup erv ise the su b stantive actions o f the C om m ission. T h e re fo re , w e d o n o t a d d re ss w hether th e A ttorney G en eral co uld properly exercise, through d elegation, th e P re s id e n t’s o v e rs ig h t authority, n o tw ith stan d in g the C o m m issio n ’s statutory status as an “ in d ep en ­ d e n t a g e n c y w ith in th e D epartm ent.”

4 C o n g re ss has e x p re ssly provided, h o w ev er, th at the C o m m issio n ’s budgetary requests shall be s e p a ­ ra te fro m th o se o f any o th e r com ponent o f the D epartm ent. 18 U .S .C . § 4203(a)(3) (1982).

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CONCLUSION

We conclude that the Attorney General may require the Commission, a component of the Department for administrative purposes, to inform OPD of its regulatory initiatives and may also require the Commission to submit its proposed regulations to OIRA through OPD. The Commission’s statutory status as an independent agency in the Department, however, prevents the Attorney General from requiring the Commission to obtain substantive ap­ proval of its proposed regulations from OPD.

J. MICHAEL LUTTIG

Acting Assistant Attorney General Office o f Legal Counsel