[Federal Register Volume 64, Number 211 (Tuesday, November 2, 1999)]
[Rules and Regulations]
[Pages 59122-59123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28557]
[[Page 59122]]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 50
[AG Order No. 2270-99]
Practice and Procedure; Final Settlement Agreements and Consent
Decrees
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule codifies the Department of Justice's general policy
that, in any civil matter in which the Department of Justice is
representing the interests of the United States or its agencies, the
Department will not enter into final settlement agreements or consent
decrees that are subject to confidentiality provisions, nor will it
seek or concur in the sealing of such documents. The rule further
establishes internal procedures to be followed in determining whether,
in a given case, rare circumstances exist that warrant an exception to
the general policy.
EFFECTIVE DATE: November 2, 1999.
FOR FURTHER INFORMATION CONTACT: Jeanette Plante, Executive Office for
United States Attorneys, (202) 616-6444.
SUPPLEMENTARY INFORMATION: A written statement of the Department's
policy with regard to seeking or concurring in the sealing of final
settlement agreements or consent decrees will ensure uniformity of
practice and be in keeping with the Department's general policy in
favor of openness in government. There may be rare instances in which
confidentiality is warranted, because privacy or other interests so
outweigh the public interest. For this reason, the policy outlines a
uniform process for approval of exceptions to the general rule in favor
of openness.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C.
650(b)), the Attorney General 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 for the following reasons: (1)
This rule states the Department of Justice's internal policy with
regard to the conduct of litigation in which it is involved; and (2)
this rule imposes no requirements on small businesses or small
entities.
Administrative Procedure Act
Because this rule states internal litigation policy and imposes no
new restrictions, the Department of Justice finds good cause for
exempting the provision of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public comment, and delay in effective date.
Paperwork Reduction Act
This rule does not impose any reporting or recordkeeping
requirements.
Executive Order 12866
This rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review, and accordingly this rule has not
been reviewed by the Office of Management and Budget.
Executive Order 12612
This rule will not have substantial direct effects on the states,
on the relationship between the national government and the states, or
on distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with Executive Order 12612, it
is determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
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.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by the Small Business
Regulatory Enforcement Fairness Act of 1996, 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 cost or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign-based companies in domestic and export markets.
List of Subjects in 28 CFR Part 50
Administrative practice and procedure.
By virtue of the authority vested in me as Attorney General by 5
U.S.C. 301 and 28 U.S.C. 516 and 519, part 50 of chapter 1 of title 28
is amended as follows.
1. The authority citation for Part 50 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1921
et seq., 1973c.
2. Section 50.23 is added to read as follows:
Sec. 50.23 Polocy against entering into final settlement agreements or
consent decree that are subject to confidentiality provisions and
against seeking or concurring in the sealing of such documents.
(a) It is the policy of the Department of Justice that, in any
civil matter in which the Department is representing the interests of
the United States or its agencies, it will not enter into final
settlement agreements or consent decrees that are subject to
confidentiality provisions, nor will it seek or concur in the sealing
of such documents. This policy flows from the principle of openness in
government and is consistent with the Department's policies regarding
openness in judicial proceedings (see 28 CFR 50.9) and the Freedom of
Information Act (see Memorandum for Heads of Departments and Agencies
from the Attorney General Re: The Freedom of Information Act (Oct. 4,
1993)).
(b) There may be rare circumstances that warrant an exception to
this general rule. In determining whether an exception is appropriate,
any such circumstances must be considered in the context of the
public's strong interest in knowing about the conduct of its Government
and expenditure of its resources. The existence of such circumstances
must be documented as part of the approval process, and any
confidentiality provision must be drawn as narrowly as possible. Non-
delegable approval authority to determine that an exception justifies
use of a confidentiality provision in, or seeking or concurring in the
sealing of, a final settlement or consent decree resides with the
relevant Assistant Attorney General or United States Attorney, unless
authority to approve the settlement itself lies with a more senior
Department official, in which case the more senior official will have
such approval authority.
(c) Regardless of whether particular information is subject to a
confidentiality provision or to seal, statutes and regulations may
prohibit its
[[Page 59123]]
disclosure from Department of Justice files. Thus, before releasing any
information, Department attorneys should consult all appropriate
statutes and regulations (e.g., 5 U.S.C. 552a (Privacy Act); 50 U.S.C.
403-3(c)(6) (concerning intelligence sources and methods), and
Execution Order 12958 (concerning national security information). In
particular, in matters involving individuals, the Privacy Act regulates
disclosure of settlement agreements that have not been made part of the
court record.
(d) The principles set forth in this section are intended to
provide guidance to attorneys for the Government and are not intended
to create or recognize any legally enforceable right in any person.
Dated: October 26, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-28557 Filed 11-1-99; 8:45 am]
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