[Federal Register Volume 64, Number 75 (Tuesday, April 20, 1999)]
[Rules and Regulations]
[Pages 19273-19277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9845]


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DEPARTMENT OF JUSTICE

28 CFR Part 77

[AG Order No. 2216-99]


Ethical Standards for Attorneys for the Government

AGENCY: Department of Justice.

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule supersedes the Department of Justice regulations 
relating to Communications with Represented Persons and implements 28 
U.S.C. 530B pertaining to ethical standards for attorneys for the 
government. Under that provision, an attorney for the Government shall 
be subject to State laws and rules, and local federal court rules 
governing attorneys in each State where such attorney engages in that 
attorney's duties, to the same extent and in the same manner as other 
attorneys in that State. This rule fulfills the Attorney General's 
obligation under section 530B and provides guidance to all Department 
of Justice employees who are subject to section 530B regarding their 
obligations and responsibilities under this new provision.

DATES: Effective Date: This interim rule is effective April 19, 1999.
    Comment Date: Written comments must be submitted on or before June 
21, 1999.

ADDRESSES: Please submit written comments, in triplicate, to Department 
of Justice, Justice Management Division, 950 Pennsylvania Ave., NW., 
Room 1110, Washington, DC 20530-0001 Attn: Juliet A. Eurich. To ensure 
proper handling, please refer to 28 U.S.C. 530B on your correspondence. 
Comments are available for public inspection at the above address by 
calling 202-353-7300 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Juliet A. Eurich, Justice Management 
Division, Department of Justice, 202-353-7300.

SUPPLEMENTARY INFORMATION:

Background

    On October 21, 1998, the President signed the Omnibus Consolidated 
and Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277. 
Division A, section 801 of that Act enacted into law 28 U.S.C. 530B, 
entitled ``Ethical Standards for Federal Prosecutors.'' That statute 
provides as follows:
    ``(a) An attorney for the Government shall be subject to State laws 
and rules, and local Federal court rules, governing attorneys in each 
State where such attorney engages in that attorney's duties, to the 
same extent and in the same manner as other attorneys in that State.
    (b) The Attorney General shall make and amend rules of the 
Department of Justice to assure compliance with this section.
    (c) As used in this section, the term ``attorney for the 
Government'' includes any attorney described in Sec. 77.2(a) of part 77 
of title 28 of the Code of Federal Regulations and also includes any 
independent counsel, or employees of such a counsel, appointed under 
chapter 40.''
    Absent further congressional action, 28 U.S.C. 530B will become 
effective on April 19, 1999.
    The Department is publishing this interim rule to meet the 
requirement of section 530B(b) that the Attorney General ``make and 
amend rules * * * to assure compliance'' with the legislation. Section 
530B adopts the definition of the ``attorney for the government'' that 
was contained in Sec. 77.2(a) of part 77 (now replaced), with the 
exception that the scope of the definition has been expanded to include 
an independent counsel, or employee of such counsel, appointed pursuant 
to chapter 40 of title 28, United States Code. As made clear by this 
definition, section 530B applies only to Department of Justice 
attorneys and attorneys acting pursuant to Department authorization. It 
does not apply to investigative agents (even if they are attorneys), 
although, under the regulations, agents operating under the direction 
of a covered attorney will be required to conform their conduct if so 
required by the ethical rules that apply to the attorney. Section 530B 
also does not apply to attorneys in other federal government agencies, 
unless they are appointed as Special Assistant United States Attorneys.
    The Department has concluded that the text, title, and legislative 
history demonstrate that Section 530B applies only to rules of ethical 
conduct, such as codes of professional responsibility

[[Page 19274]]

adopted by states or federal courts. Neither the Act nor its 
legislative history suggests that Section 530B should be interpreted to 
provide that state rules of evidence or procedure or state substantive 
law will supersede the Federal Rules of Evidence, the Federal Rules of 
Civil, Criminal, and Appellate Procedure, or the provisions of federal 
substantive law. See United States v. Lowery, 166 F.3d 1119 (11th Cir. 
1999) (interpreting Section 530B, prior to its effective date, and 
rejecting the argument that, under Section 530B, state rules of 
professional responsibility govern admission of evidence in federal 
court). Accordingly, Department attorneys who are conducting 
investigations under federal law or litigation in the federal courts 
are not required to comply with state rules of evidence or procedure or 
state substantive law. Similarly, the Department has also concluded 
that section 530B does not provide authority for state bars or federal 
courts to enact substantive or procedural rules in the guise of ethics 
rules or to exceed otherwise applicable regulatory, statutory, or 
constitutional limits on their ability to promulgate rules.
    Under various federal statutes, the Attorney General has the 
authority to assign any officer of the Justice Department to appear on 
behalf of the United States in any case in any court in the United 
States, so long as that attorney is duly licensed and authorized to 
practice as an attorney under the laws of a State, territory, or the 
District of Columbia. See 28 U.S.C. 509, 510, 515(a), 516, 517, 519, 
533, 547; Pub. L. 96-132, 93 Stat. 1040, 1044 (1979); and Pub. L. 105-
277, section 102 of the Departments of Commerce, Justice and State, the 
Judiciary, and Related Agencies Appropriations Act, 1999. Section 530B 
does not alter, amend, or supersede those statutes, or in any way 
interfere with the Attorney General's authority to determine who may 
represent the United States in any proceeding.
    Section 530B directs Department attorneys to comply with rules of 
ethical conduct, but is silent on enforcement mechanisms. For this 
reason, section 530B does not change the enforcement authority of the 
Department of Justice's Office of Professional Responsibility, state 
authorities, or the federal courts. Furthermore, the Department has 
determined that Section 530B does not create new enforceable rights for 
litigants against the federal government. This comports with the long 
line of judicial authority holding that violations of rules of 
professional responsibility do not create private rights. See United 
States v. Lowery, 166 F.3d 1119, 1124 (11th Cir. 1999) (section 530B 
does not change pre-existing principle that ``state rule[s] of 
professional conduct cannot provide an adequate basis for a federal 
court to suppress evidence that is otherwise admissible''); United 
States v. Balter, 91 F.3d 427, 436 n.7 (3rd Cir.) (noting that even if 
Rule 4.2 applied to preindictment contracts, suppression would not be 
appropriate), cert. denied, 117 S.Ct. 517 (1996); United States v. 
Heinz, 983 F.2d 609, 613-14 (5th Cir. 1993) (rejecting proposition that 
suppression would be an appropriate remedy for violation of Rule 4.2); 
Zambrano v. City of Tustin, 885 F.2d 1473, 1475 n.4 (9th Cir. 1989) 
(district court should not have declared mistrial based on ethical 
lapses of attorneys); United States v. Dennis, 843 F.2d 652, 657 (2nd 
Cir. 1988) (sanction for ethical violations ``should be disciplinary 
action,'' not adverse consequences in criminal litigation); Johnson v. 
Cadillac Plastic Group, Inc., 930 F.Supp. 1437, 1442 (D.Colo. 1996) 
(exclusion of evidence in a civil case is ``an inappropriate remedy'' 
for alleged violation of Rule 4.2).
    Section 530B(a) directs Department attorneys to comply with rules 
of ethical conduct ``in each State where such attorney engages in that 
attorney's duties, to the same extent and in the same manner as other 
attorneys in that State.'' The Department has concluded that section 
530B does not authorize state authorities to impose stricter rules on 
Department attorneys than on other attorneys and in no way alters 
prevailing state and federal court rules of ethical conduct that 
provide exceptions for the conduct of government attorneys.
    Department attorneys represent the United States in courts 
throughout the country, and also supervise or otherwise participate in 
investigations that cross state lines. Determining what rules apply to 
particular conduct presents the most complex issues from both an 
interpretation and an application standpoint, especially in instances 
involving Department attorneys stationed in litigating components of 
the Department of Justice in Washington, DC who investigate and 
litigate cases in numerous jurisdictions around the country and in 
cases where Department attorneys are licensed in one state and are 
stationed or conducting litigation in another jurisdiction. As has 
frequently been recognized, ``existing authority as to (the) choice of 
law in the area of ethics rules is unclear and inconsistent.'' ABA 
Committee Report Explaining 1993 Amendment to Rule 8.5.
    In crafting implementing regulations, the Department sought to be 
consistent with the statute's language and its legislative history by 
attempting to ensure that Department attorneys face obligations similar 
to, but not greater than, those faced by non-Department attorneys. The 
regulations thus recognize that attorneys are principally subject to 
discipline by their state of licensure and the courts before which they 
practice. Thus, although Department attorneys are also subject to 
discipline by the Office of Professional Responsibility, the 
regulations generally direct Department attorneys to look, according to 
the circumstances, to the rules of the court before which they are 
appearing and the rules of their licensing jurisdiction.
    Consequently, the Department crafted regulations that (1) seek to 
define the statutory language in a reasonable way, consistent with 
settled principles of statutory construction and the legislative 
history of section 530B, and (2) identify issues that Department 
attorneys should examine when faced with a question about what state's 
rule applies. The Department has concluded that the regulations comply 
with section 530B's statutory directive to make regulations that will 
assure compliance with the statute and, at the same time, provide 
reasonable protection for any Department attorney who makes a good 
faith attempt to determine what state's ethics rules apply and to 
comply with those ethics rules. The decision to replace the 
Department's regulation on contacts with represented parties does not 
constitute a determination that any of the conduct previously 
authorized by those regulations is impermissible.
    The regulations generally direct Department attorneys to comply 
with the rule of the court before which they are litigating. The 
Department believes that this should generally be sufficient, but 
Department attorneys should also consider whether their state of 
licensure would apply a different rule to their conduct. If there is no 
pending case, the regulations direct Department attorneys to comply 
with the rules of their state of licensure, but to consider whether 
application of choice of law principles would direct the attorney to 
comply with a different rule.
    Finally, the regulations recognize the importance of consultation 
concerning an attorney's ethical responsibilities. The Department 
strongly believes that attorneys should be encouraged to consult 
concerning their ethical obligations and that agents should be 
encouraged to seek legal advice where

[[Page 19275]]

appropriate. The regulations prohibit supervisory attorneys from 
directing attorneys or agents to engage in conduct if that would 
violate relevant ethics rules, but also recognize that an attorney who, 
in good faith, provides legal advice or guidance to an agent (without 
otherwise controlling the agent's actions) or gives guidance to an 
attorney about that attorney's ethical obligations should not be deemed 
to violate these rules.

Administrative Procedures Act 5 U.S.C. 553: Good Cause Exception

    The Department is implementing this interim final rule to provide 
an interpretation of Section 530B that those affected by that statute 
can use as a guide in carrying out their duties. The Department began 
the work needed to determine the rules and procedures required to best 
comply with section 530B promptly after that statute was enacted into 
law in 1998, but found that it was not possible to develop a workable 
rule, complete the inter-departmental review process needed to ensure 
that the rule adequately responded to the requirements of the statute 
and the practical concerns faced by Department attorneys on a daily 
basis, and provide a meaningful period of notice and comment before the 
statute takes effect on April 19, 1999. It is imperative that 
Department attorneys affected by section 530B have some early guidance 
concerning the standards of ethical conduct to which they will be held 
when that statute goes into effect. Unless guidance is promptly 
provided, attorneys for the Department will be left with substantial 
uncertainty regarding what rules they must follow in performing their 
duties and supervising others. Such uncertainty would run counter to 
the purpose of the Act and would likely chill prosecutors in the 
discharge of their critical duties. After completing the long and 
difficult process of developing regulations that interpret and 
adequately respond to the requirements of Section 530B, the Department 
is of the view that there is a significant benefit in its receiving 
public comments after the interim final rule has been issued. 
Accordingly, the Department will provide a sixty day period of comment, 
commencing upon the publication of its rule. However, in the unique 
circumstances presented, the Department has determined that, in the 
interim, the guidance should nonetheless take effect. To the extent 
necessary in these circumstances, the Department has determined that 
``good cause'' exists for issuing its rule without prior notice and 
comment.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities because these 
regulations provide guidance to those affected by 28 U.S.C. 530B 
regarding their obligations under the statute.

Executive Order 12866

    This regulation 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 section 3(f) of Executive Order 
12866, Regulatory Planning and Review, and accordingly this rule has 
not been reviewed by the Office of Management and Budget.

Executive Order 12612

    This regulation 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.

Executive Order 1988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal government, in the aggregate, or by the private sector, of 
$100,000,000 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 section 251 of 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 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Robert Hinchman, Department 
of Justice, Office of Policy Development, 950 Pennsylvania Avenue, NW., 
Room 4258, Washington, DC 20530-0001, 201-514-8059.

List of Subjects in 28 CFR Part 77

    Government employees, Investigations, Law Enforcement, Lawyers.

    Accordingly, part 77 of chapter I of title 28 of the Code of 
Federal Regulations is revised to read as follows:

PART 77--ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT

Sec.
77.1  Purpose and authority.
77.2  Definitions.
77.3  Application of 28 U.S.C. 530B.
77.4  Guidance.
77.5  No private remedies.
    Authority: 28 U.S.C. 530B.


Sec. 77.1  Purpose and authority.

    (a) The Department of Justice is committed to ensuring that its 
attorneys perform their duties in accordance with the highest ethical 
standards. The purpose of this part is to implement 28 U.S.C. 530B and 
to provide guidance to attorneys concerning the requirements imposed on 
Department attorneys by 28 U.S.C. 530B.
    (b) Section 530B requires Department attorneys to comply with state 
and local federal court rules of professional responsibility, but 
should not be construed in any way to alter federal substantive, 
procedural, or evidentiary law or to interfere with the Attorney 
General's authority to send Department attorneys into any court in the 
United States.
    (c) Section 530B imposes on Department attorneys the same rules of 
professional responsibility that apply to non-Department attorneys, but 
should not be construed to impose greater burdens on Department 
attorneys than those on non-Department attorneys or to alter rules of 
professional responsibility that expressly exempt government attorneys 
from their application.
    (d) The regulations set forth in this part seek to provide guidance 
to Department attorneys in determining

[[Page 19276]]

the rules with which such attorneys should comply.


Sec. 77.2  Definitions.

    As used in this part, the following terms shall have the following 
meanings, unless the context indicates otherwise:
    (a) The phrase attorney for the government means the Attorney 
General; the Deputy Attorney General; the Solicitor General; the 
Assistant Attorneys General for, and any attorney employed in, the 
Antitrust Division, Civil Division, Civil Rights Division, Criminal 
Division, Environment and Natural Resources Division, and Tax Division; 
the Chief Counsel for the DEA and any attorney employed in that office; 
the General Counsel of the FBI and any attorney employed in that office 
or in the (Office of General Counsel) of the FBI; any attorney employed 
in, or head of, any other legal office in a Department of Justice 
agency; any United States Attorney; any Assistant United States 
Attorney; any Special Assistant to the Attorney General or Special 
Attorney duly appointed pursuant to 28 U.S.C. 515; any Special 
Assistant United States Attorney duly appointed pursuant to 28 U.S.C. 
543 who is authorized to conduct criminal or civil law enforcement 
investigations or proceedings on behalf of the United States; and any 
other attorney employed by the Department of Justice who is authorized 
to conduct criminal or civil law enforcement proceedings on behalf of 
the United States. The phrase attorney for the government also includes 
any independent counsel, or employee of such counsel, appointed under 
chapter 40 of title 28, United States Code.
    The phrase attorney for the government does not include attorneys 
employed as investigators or other law enforcement agents by the 
Department of Justice who are not authorized to represent the United 
States in criminal or civil law enforcement litigation or to supervise 
such proceedings.
    (b) The term case means any proceeding over which a state or 
federal court has jurisdiction, including criminal prosecutions and 
civil actions. This term also includes grand jury investigations and 
related proceedings (such as motions to quash grand jury subpoenas and 
motions to compel testimony), applications for search warrants, and 
applications for electronic surveillance.
    (c) The phrase civil law enforcement investigation means an 
investigation of possible civil violations of, or claims under, federal 
law that may form the basis for a civil law enforcement proceeding.
    (d) The phrase civil law enforcement proceeding means a civil 
action or proceeding before any court or other tribunal brought by the 
Department of Justice under the authority of the United States to 
enforce federal laws or regulations, and includes proceedings related 
to the enforcement of an administrative subpoena or summons or civil 
investigative demand.
    (e) The terms conduct and activity means any act performed by a 
Department attorney that implicates a rule governing attorneys, as that 
term is defined in paragraph (h) of this section.
    (f) The phrase Department attorney[s] is synonymous with the phrase 
``attorney[s] for the government'' as defined in this section.
    (g) The term person means any individual or organization.
    (h) The phrase state laws and rules and local federal court rules 
governing attorneys means rules enacted or adopted by any State or 
Territory of the United States or the District of Columbia or by any 
federal court, that prescribe ethical conduct for attorneys and that 
would subject an attorney, whether or not a Department attorney, to 
professional discipline, such as a code of professional responsibility. 
The phrase does not include:
    (1) Any statute, rule, or regulation which does not govern ethical 
conduct, such as rules of procedure, evidence, or substantive law, 
whether or not such rule is included in a code of professional 
responsibility for attorneys;
    (2) Any statute, rule, or regulation that purports to govern the 
conduct of any class of persons other than attorneys, such as rules 
that govern the conduct of all litigants and judges, as well as 
attorneys; or
    (3) A statute, rule, or regulation requiring licensure or 
membership in a particular state bar.
    (i) The phrase state of licensure means the District of Columbia or 
any State or Territory where a Department attorney is duly licensed and 
authorized to practice as an attorney. This term shall be construed in 
the same manner as it has been construed pursuant to the provisions of 
Pub. L. 96-132, 93 Stat. 1040, 1044 (1979), and Sec. 102 of the 
Departments of Commerce, Justice and State, the Judiciary, and Related 
Agency Appropriations Act, 1999, Pub. L. 105-277.
    (j)(1) The phrase where such attorney engages in that attorney's 
duties identifies which rules of ethical conduct a Department attorney 
should comply with, and means, with respect to particular conduct:
    (i) If there is a case pending, the rules of ethical conduct 
adopted by the local federal court or state court before which the case 
is pending; or
    (ii) If there is no case pending, the rules of ethical conduct that 
would be applied by the attorney's state of licensure.
    (2) A Department attorney does not ``engage[] in that attorney's 
duties'' in any states in which the attorney's conduct is not 
substantial and continuous, such as a jurisdiction in which an attorney 
takes a deposition (related to a case pending in another court) or 
directs a contact to be made by an investigative agent, or responds to 
an inquiry by an investigative agent. Nor does the phrase include any 
jurisdiction that would not ordinarily apply its rules of ethical 
conduct to particular conduct or activity by the attorney.
    (k) The phrase to the same extent and in the same manner as other 
attorneys means that Department attorneys shall only be subject to laws 
and rules of ethical conduct governing attorneys in the same manner as 
such rules apply to non-Department attorneys. The phrase does not, 
however, purport to eliminate or otherwise alter state or federal laws 
and rules and federal court rules that expressly exclude some or all 
government attorneys from particular limitations or prohibitions.


Sec. 77.3   Application of 28 U.S.C. 530B.

    In all criminal investigations and prosecutions, in all civil 
investigations and litigation (affirmative and defensive), and in all 
civil law enforcement investigations and proceedings, attorneys for the 
government shall conform their conduct and activities to the state 
rules and laws, and federal local court rules, governing attorneys in 
each State where such attorney engages in that attorney's duties, to 
the same extent and in the same manner as other attorneys in that 
State, as these terms are defined in Sec. 77.2 of this part.


Sec. 77.4   Guidance.

    (a) Rules of the court before which a case is pending. A government 
attorney shall, in all cases, comply with the rules of ethical conduct 
of the court before which a particular case is pending.
    (b) Inconsistent rules where there is a pending case.
    (1) If the rule of the attorney's state of licensure would prohibit 
an action that is permissible under the rules of the court before which 
a case is pending, the attorney should consider:
    (i) Whether the attorney's state of licensure would apply the rule 
of the court before which the case is pending,

[[Page 19277]]

rather than the rule of the state of licensure;
    (ii) Whether the local federal court rule preempts contrary state 
rules; and
    (iii) Whether application of traditional choice-of-law principles 
directs the attorney to comply with a particular rule.
    (2) In the process of considering the factors described in 
paragraph (b)(1) of this section, the attorney is encouraged to consult 
with a supervisor or Professional Responsibility Officer to determine 
the best course of conduct.
    (c) Choice of rules where there is no pending case.
    (1) Where no case is pending, the attorney should generally comply 
with the ethical rules of the attorney's state of licensure, unless 
application of traditional choice-of-law principles directs the 
attorney to comply with the ethical rule of another jurisdiction or 
court, such as the ethical rule adopted by the court in which the case 
is likely to be brought.
    (2) In the process of considering the factors described in 
paragraph (c)(1) of this section, the attorney is encouraged to consult 
with a supervisor or Professional Responsibility Officer to determine 
the best course of conduct.
    (d) Rules that impose an irreconcilable conflict. If, after 
consideration of traditional choice-of-law principles, the attorney 
concludes that multiple rules may apply to particular conduct and that 
such rules impose irreconcilable obligations on the attorney, the 
attorney should consult with a supervisor or Professional 
Responsibility Officer to determine the best course of conduct.
    (e) Supervisory attorneys. Each attorney, including supervisory 
attorneys, must assess his or her ethical obligations with respect to 
particular conduct. Department attorneys shall not direct any attorney 
to engage in conduct that violates section 530B. A supervisor or other 
Department attorney who, in good faith, gives advice or guidance to 
another Department attorney about the other attorney's ethical 
obligations should not be deemed to violate these rules.
    (f) Investigative Agents. A Department attorney shall not direct an 
investigative agent acting under the attorney's supervision to engage 
in conduct under circumstances that would violate the attorney's 
obligations under section 530B. A Department attorney who in good faith 
provides legal advice or guidance upon request to an investigative 
agent should not be deemed to violate these rules.


Sec. 77.5   No private remedies.

    The principles set forth herein, and internal office procedures 
adopted pursuant hereto, are intended solely for the guidance of 
attorneys for the government. They are not intended to, do not, and may 
not be relied upon to create a right or benefit, substantive or 
procedural, enforceable at law by a party to litigation with the United 
States, including criminal defendants, targets or subjects of criminal 
investigations, witnesses in criminal or civil cases (including civil 
law enforcement proceedings), or plaintiffs or defendants in civil 
investigations or litigation; or any other person, whether or not a 
party to litigation with the United States, or their counsel; and shall 
not be a basis for dismissing criminal or civil charges or proceedings 
or for excluding relevant evidence in any judicial or administrative 
proceeding. Nor are any limitations placed on otherwise lawful 
litigative prerogatives of the Department of Justice as a result of 
this part.

    Dated: April 14, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-9845 Filed 4-19-99; 8:45 am]
BILLING CODE 4410-19-M