[Federal Register: November 2, 1999 (Volume 64, Number 211)] [Rules and Regulations] [Page 59122-59123] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr02no99-8] [[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