Accountability in deferred prosecution agreements

Section 3161(h)(2) of title 18, United States Code, is amended—(1)by striking Any and inserting (A) Any; and(2)by adding at the end the following:

(B)(i)If the defendant described in subparagraph (A) is a person other than an individual, the court may not approve an agreement described in that subparagraph unless the court determines that the agreement is in the public interest.(ii)In determining whether to approve an agreement under clause (i), the court shall consider the following factors:(I)The reasonableness of punitive measures, including financial penalties.(II)Compliance terms or safeguards within the agreement.(III)Effective independent monitoring of agreement terms to ensure compliance by the defendant.(IV)Cooperation of the defendant with law enforcement, including identifying culpable individuals related to the conduct at issue.(V)The underlying goals of the substantive law violation and whether the agreements contains terms unreleated to those goals.(VI)Collateral consequences related to the agreement.(VII)The impact of the offense on the public, including victims of the offense.(VIII)The effects of the agreement on the regulatory scheme.(IX)The effects of the agreement on applicable statutes of limitations and other time-related interests. (X)The appropriateness of any restitution.(XI)The adequacy and specificity of public admissions regarding the conduct at issue.(XII)Prior criminal investigations and prosecutions of the defendant.(XIII)Any other compelling reasons to affirm or reject the agreement.

Transparency requirements on Federal agencies to enter into deferred prosecution agreements

(a)

Requirements for settlement agreements

(1)

In general

Chapter 3 of title 5, United States Code, is amended by adding at the end the following:

307.

Information regarding settlement agreements

(a)

Definition

In this section, the term covered settlement agreement means a settlement agreement (including deferred prosecution agreements and nonprosecution agreements) that is entered into by an Executive agency that—(1)relates to an alleged violation of Federal civil or criminal law;(2)involves an agreement to defer prosecution or withhold prosecution of the alleged violation; and(3)requires the payment of a total of not less than $1,000,000 by 1 or more non-Federal persons.(b)

Information To be posted online

(1)

Requirement

(A)

In general

Subject to subparagraph (B), the head of each Executive agency shall make publicly available in a searchable format in a prominent location on the website of the Executive agency—(i)a list of each covered settlement agreement entered into by the Executive agency, which shall include, for each covered settlement agreement—(I)the date on which the parties entered into the covered settlement agreement;(II)the names of the parties that settled claims under the covered settlement agreement;(III)a description of the claims each party settled under the covered settlement agreement;(IV)the amount each party settling a claim under the covered settlement agreement is obligated to pay under the settlement agreement;(V)the total amount the settling parties are obligated to pay under the settlement agreement;(VI)for each settling party—(aa)the amount, if any, the settling party is obligated to pay that is expressly specified under the covered settlement agreement as a civil or criminal penalty or fine; and(bb)the amount, if any, that is expressly specified under the covered settlement agreement as not deductible for purposes of the Internal Revenue Code of 1986; and(VII)a description of where amounts collected under the covered settlement agreement will be deposited, including, if applicable, the deposit of such amounts in an account available for use for 1 or more programs of the Federal Government; and(ii)a copy of each covered settlement agreement entered into by the Executive agency.(B)

Confidentiality provisions

The requirement to disclose information or a copy of a covered settlement agreement under subparagraph (A) shall apply to the extent that the information or copy (or portion thereof) is not subject to a confidentiality provision that prohibits disclosure of the information or copy (or portion thereof).(2)

Period

The head of each Executive agency shall ensure that—(A)information regarding a covered settlement agreement is publicly available on the list described in paragraph (1)(A)(i) for a period of not less than 5 years, beginning on the date of the covered settlement agreement; and(B)a copy of a covered settlement agreement made available under paragraph (1)(A)(ii) is publicly available—(i)for a period of not less than 5 years, beginning on the date of the covered settlement agreement; or(ii)for a covered settlement agreement under which a non-Federal person is required to pay not less than $50,000,000, for a period of not less than 10 years, beginning on the date of the covered settlement agreement.(c)

Public statement

If the head of an Executive agency determines that a confidentiality provision in a covered settlement agreement, or the sealing of a covered settlement agreement, is required to protect the public interest of the United States, the head of the Executive agency shall issue a public statement stating why such action is required to protect the public interest of the United States, which shall explain—(1)what interests confidentiality protects; and(2)why the interests protected by confidentiality outweigh the public’s interest in knowing about the conduct of the Federal Government and the expenditure of Federal resources.(d)

Requirements for written public statements

Any written public statement issued by an Executive agency that refers to an amount to be paid by a non-Federal person under a covered settlement agreement shall—(1)specify which portion, if any, of the amount to be paid under the covered settlement agreement by a non-Federal person—(A)is expressly specified under the covered settlement agreement as a civil or criminal penalty or fine to be paid for a violation of Federal law; or(B)is expressly specified under the covered settlement agreement as not deductible for purposes of the Internal Revenue Code of 1986;(2)if no portion of the amount to be paid under the covered settlement agreement by a non-Federal person is expressly specified under the covered settlement agreement as a civil or criminal penalty or fine, include a statement specifying that is the case; and(3)describe in detail—(A)any actions the non-Federal person shall take under the covered settlement agreement in lieu of payment to the Federal Government or a State or local government; and(B)any payments or compensation the non-Federal person shall make to other non-Federal persons under the covered settlement agreement.(e)

Confidentiality

The requirement to disclose information under subsection (d) shall apply to the extent that the information to be disclosed (or portion thereof) is not subject to a confidentiality provision that prohibits disclosure of the information (or portion thereof).(f)

Reporting

(1)

In general

Not later than January 31 of each year, the head of an Executive agency that entered into a covered settlement agreement during the previous calendar year shall submit to each committee of Congress with jurisdiction over the activities of the Executive agency a report indicating—(A)how many covered settlement agreements the Executive agency entered into during that previous calendar year;(B)how many covered settlement agreements the Executive agency entered into during that previous calendar year that had any terms or conditions that are required to be kept confidential;(C)how many covered settlement agreements the Executive agency entered into during that previous calendar year for which all terms and conditions are required to be kept confidential;(D)the total amount of attorney fees, costs, and expenses paid to non-Federal persons under settlement agreements (including consent decrees) of the Executive agency during that previous calendar year; and(E)the number of settlement agreements (including consent decrees) between the Executive agency and non-Federal persons that involve regulatory action or regulatory changes, including the promulgation of new rules, during that previous calendar year.(2)

Availability of reports

The head of an Executive agency that is required to submit a report under paragraph (1) shall make the report publicly available in a searchable format in a prominent location on the Web site of the Executive agency.

(2)

Technical and conforming amendment

The table of sections for chapter 3 of title 5, United States Code, is amended by adding at the end the following:

307. Information regarding settlement agreements.

(b)

Review of confidentiality of settlement agreements

Not later than 6 months after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report regarding how Executive agencies (as defined under section 105 of title 5, United States Code) determine whether the terms of a settlement agreement or the existence of a settlement agreement will be treated as confidential, which shall include recommendations, if any, for legislative or administrative action to increase the transparency of Government settlements while continuing to protect the legitimate interests that confidentiality provisions serve.