H.R. 3862 (112th): Sunshine for Regulatory Decrees and Settlements Act of 2012

112th Congress, 2011–2013. Text as of Jul 11, 2012 (Reported by House Committee).

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Union Calendar No. 428

112th CONGRESS

2d Session

H. R. 3862

[Report No. 112–593]

IN THE HOUSE OF REPRESENTATIVES

February 1, 2012

(for himself, Mr. Coble, and Mr. Ross of Florida) introduced the following bill; which was referred to the Committee on the Judiciary

July 11, 2012

Additional sponsors: Mr. Gallegly, Mr. Huizenga of Michigan, Mr. Kingston, Mr. McHenry, Mr. Rokita, Mrs. Blackburn, Mr. Flores, Mr. Harris, Mr. Yoder, Mr. Peterson, Mr. Schweikert, Mr. Scalise, Mr. Miller of Florida, Mr. Pitts, and Mrs. Black

July 11, 2012

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

Strike out all after the enacting clause and insert the part printed in italic

For text of introduced bill, see copy of bill as introduced on February 1, 2012


A BILL

To impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies to take regulatory action in accordance with the terms thereof, and for other purposes.


1.

Short title

This Act may be cited as the Sunshine for Regulatory Decrees and Settlements Act of 2012.

2.

Consent decree and settlement reform

(a)

Application

The provisions of this section apply in the case of—

(1)

a consent decree or settlement agreement in an action to compel agency action alleged to be unlawfully withheld or unreasonably delayed that pertains to a regulatory action that affects the rights of private parties other than the plaintiff or the rights of State, local or Tribal government entities—

(A)

brought under chapter 7 of title 5, United States Code; or

(B)

brought under any other statute authorizing such an action; and

(2)

any other consent decree or settlement agreement that requires agency action that pertains to a regulatory action that affects the rights of private parties other than the plaintiff or the rights of State, local or Tribal government entities.

(b)

In general

In the case of an action to be resolved by a consent decree or a settlement agreement described in paragraph (1), the following shall apply:

(1)

The complaint in the action, the consent decree or settlement agreement, the statutory basis for the consent decree or settlement agreement and its terms, and any award of attorneys’ fees or costs shall be published, including electronically, in a readily accessible manner.

(2)

Until the conclusion of an opportunity for affected parties to intervene in the action, a party may not file with the court a motion for a consent decree or to dismiss the case pursuant to a settlement agreement.

(3)

In considering a motion to intervene by any party that would be affected by the agency action in dispute, the court shall presume, subject to rebuttal, that the interests of that party would not be represented adequately by the current parties to the action. In considering a motion to intervene filed by a State, local or Tribal government entity, the court shall take due account of whether the movant—

(A)

administers jointly with the defendant agency the statutory provisions that give rise to the regulatory duty alleged in the complaint; or

(B)

administers State, local or Tribal regulatory authority that would be preempted by the defendant agency’s discharge of the regulatory duty alleged in the complaint.

(4)

If the court grants a motion to intervene in the action, the court shall include the plaintiff, the defendant agency, and the intervenors in settlement discussions. Settlement efforts conducted shall be pursuant to a court's mediation or alternative dispute resolution program, or by a district judge, magistrate judge, or special master, as determined by the assigned judge.

(5)

The defendant agency shall publish in the Federal Register and by electronic means any proposed consent decree or settlement agreement for no fewer than 60 days of public comment before filing it with the court, including a statement of the statutory basis for the proposed consent decree or settlement agreement and its terms, allowing comment on any issue related to the matters alleged in the complaint or addressed or affected by the consent decree or settlement agreement.

(6)

The defendant agency shall—

(A)

respond to public comments received under paragraph (5); and

(B)

when moving that the court enter the consent decree or for dismissal pursuant to the settlement agreement—

(i)

inform the court of the statutory basis for the proposed consent decree or settlement agreement and its terms;

(ii)

submit to the court a summary of the public comments and agency responses;

(iii)

certify the administrative record of the notice and comment proceeding to the court; and

(iv)

make that record fully accessible to the court.

(7)

The court shall include in the judicial record the administrative record certified by the agency under paragraph (6).

(8)

If the consent decree or settlement agreement requires an agency action by a date certain, the agency shall, when moving for entry of the consent decree or dismissal based on the settlement agreement—

(A)

inform the court of any uncompleted mandatory duties to take regulatory action that the decree or agreement does not address;

(B)

how the decree or agreement, if approved, would affect the discharge of those duties; and

(C)

why the decree’s or agreement’s effects on the order in which the agency discharges its mandatory duties is in the public interest.

(9)

The court shall presume, subject to rebuttal, that it is proper to allow amicus participation by any party who filed public comments on the consent decree or settlement agreement during the court’s consideration of a motion to enter the decree or dismiss the case on the basis of the agreement.

(10)

The court shall ensure that the proposed consent decree or settlement agreement allows sufficient time and procedure for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rule making and, unless contrary to the public interest, the provisions of any executive orders that govern rule making.

(11)

The defendant agency may, at its discretion, hold a public hearing pursuant to notice in the Federal Register and by electronic means, on whether to enter into the consent decree or settlement agreement. If such a hearing is held, then, in accordance with paragraph (6), a summary of the proceedings and certification of the hearing record shall be provided to the court, access to the hearing record shall be given to the court, and the full hearing record shall be included in the judicial record.

(12)

The Attorney General, in cases litigated by the Department of Justice, or the head of the defendant Federal agency, in cases litigated independently by that agency, shall certify to the court his or her approval of any proposed consent decree or settlement agreement that contains any of the following terms—

(A)

in the case of a consent decree, terms that—

(i)

convert into mandatory duties the otherwise discretionary authorities of an agency to propose, promulgate, revise or amend regulations;

(ii)

commit the agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question, or commit an agency to seek a particular appropriation or budget authorization;

(iii)

divest the agency of discretion committed to it by Congress or the Constitution, whether such discretionary power was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties; or

(iv)

otherwise afford relief that the court could not enter on its own authority upon a final judgment in the litigation; or

(B)

in the case of a settlement agreement, terms that—

(i)

interfere with the agency’s authority to revise, amend, or issue rules through the procedures set forth in chapter 5 of title 5, United States Code, or any other statute or executive order prescribing rule making procedures for rule makings that are the subject of the settlement agreement;

(ii)

commit the agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question; or

(iii)

provide a remedy for the agency’s failure to comply with the terms of the settlement agreement other than the revival of the action resolved by the settlement agreement, if the agreement commits the agency to exercise its discretion in a particular way and such discretionary power was committed to the agency by Congress or the Constitution to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties.

(c)

Annual reports

Each agency shall submit an annual report to Congress on the number, identity, and content of complaints, consent decrees, and settlement agreements described in paragraph (1) for that year, the statutory basis for each consent decree or settlement agreement and its terms, and any awards of attorneys fees or costs in actions resolved by such decrees or agreements.

3.

Motions to modify consent decrees

When a defendant agency moves the court to modify a previously entered consent decree described under section 2 and the basis of the motion is that the terms of the decree are no longer fully in the public interest due to the agency’s obligations to fulfill other duties or due to changed facts and circumstances, the court shall review the motion and the consent decree de novo.

4.

Effective date

The provisions of this Act apply to any covered consent decree or settlement agreement proposed to a court after the date of enactment of this Act.

July 11, 2012

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed