99-28557. Practice and Procedure; Final Settlement Agreements and Consent Decrees  

  • [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]]
    
    -----------------------------------------------------------------------
    
    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.
    
    -----------------------------------------------------------------------
    
    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]
    BILLING CODE 4410-AR-M
    
    
    

Document Information

Effective Date:
11/2/1999
Published:
11/02/1999
Department:
Justice Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
99-28557
Dates:
November 2, 1999.
Pages:
59122-59123 (2 pages)
Docket Numbers:
AG Order No. 2270-99
PDF File:
99-28557.pdf
CFR: (1)
28 CFR 50.23