[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]



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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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