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H.R. 712 (114th): Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2016

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The text of the bill below is as of Jan 11, 2016 (Referred to Senate Committee). The bill was not enacted into law.

IIB

114th CONGRESS

2d Session

H. R. 712

IN THE SENATE OF THE UNITED STATES

January 11, 2016

Received; read twice and referred to the Committee on the Judiciary

AN ACT

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 Regulations and Regulatory Decrees and Settlements Act of 2016.

2.

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

Title I—Sunshine for Regulatory Decrees and Settlements

Sec. 101. Short title.

Sec. 102. Definitions.

Sec. 103. Consent decree and settlement reform.

Sec. 104. Motions to modify consent decrees.

Sec. 105. Effective date.

Title II—All Economic Regulations are Transparent

Sec. 201. Short title.

Sec. 202. Office of information and regulatory affairs publication of information relating to rules.

Title III—Providing Accountability Through Transparency

Sec. 301. Short title.

Sec. 302. Requirement to post a 100 word summary to regulations.gov.

I

Sunshine for Regulatory Decrees and Settlements

101.

Short title

This title may be cited as the Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2016.

102.

Definitions

In this title—

(1)

the terms agency and agency action have the meanings given those terms under section 551 of title 5, United States Code;

(2)

the term covered civil action means a civil action—

(A)

seeking to compel agency action;

(B)

alleging that the agency is unlawfully withholding or unreasonably delaying an agency action relating to a regulatory action that would affect the rights of—

(i)

private persons other than the person bringing the action; or

(ii)

a State, local, or tribal government; and

(C)

brought under—

(i)

chapter 7 of title 5, United States Code; or

(ii)

any other statute authorizing such an action;

(3)

the term covered consent decree means—

(A)

a consent decree entered into in a covered civil action; and

(B)

any other consent decree that requires agency action relating to a regulatory action that affects the rights of—

(i)

private persons other than the person bringing the action; or

(ii)

a State, local, or tribal government;

(4)

the term covered consent decree or settlement agreement means a covered consent decree and a covered settlement agreement; and

(5)

the term covered settlement agreement means—

(A)

a settlement agreement entered into in a covered civil action; and

(B)

any other settlement agreement that requires agency action relating to a regulatory action that affects the rights of—

(i)

private persons other than the person bringing the action; or

(ii)

a State, local, or tribal government.

103.

Consent decree and settlement reform

(a)

Pleadings and preliminary matters

(1)

In general

In any covered civil action, the agency against which the covered civil action is brought shall publish the notice of intent to sue and the complaint in a readily accessible manner, including by making the notice of intent to sue and the complaint available online not later than 15 days after receiving service of the notice of intent to sue or complaint, respectively.

(2)

Entry of a covered consent decree or settlement agreement

A party may not make a motion for entry of a covered consent decree or to dismiss a civil action pursuant to a covered settlement agreement until after the end of proceedings in accordance with paragraph (1) and subparagraphs (A) and (B) of paragraph (2) of subsection (d) or subsection (d)(3)(A), whichever is later.

(b)

Intervention

(1)

Rebuttable presumption

In considering a motion to intervene in a covered civil action or a civil action in which a covered consent decree or settlement agreement has been proposed that is filed by a person who alleges that the agency action in dispute would affect the person, the court shall presume, subject to rebuttal, that the interests of the person would not be represented adequately by the existing parties to the action.

(2)

State, local, and tribal governments

In considering a motion to intervene in a covered civil action or a civil action in which a covered consent decree or settlement agreement has been proposed that is filed by a State, local, or tribal government, the court shall take due account of whether the movant—

(A)

administers jointly with an agency that is a defendant in the action the statutory provisions that give rise to the regulatory action to which the action relates; or

(B)

administers an authority under State, local, or tribal law that would be preempted by the regulatory action to which the action relates.

(c)

Settlement negotiations

Efforts to settle a covered civil action or otherwise reach an agreement on a covered consent decree or settlement agreement shall—

(1)

be conducted pursuant to the mediation or alternative dispute resolution program of the court or by a district judge other than the presiding judge, magistrate judge, or special master, as determined appropriate by the presiding judge; and

(2)

include any party that intervenes in the action.

(d)

Publication of and comment on covered consent decrees or settlement agreements

(1)

In general

Not later than 60 days before the date on which a covered consent decree or settlement agreement is filed with a court, the agency seeking to enter the covered consent decree or settlement agreement shall publish in the Federal Register and online—

(A)

the proposed covered consent decree or settlement agreement; and

(B)

a statement providing—

(i)

the statutory basis for the covered consent decree or settlement agreement; and

(ii)

a description of the terms of the covered consent decree or settlement agreement, including whether it provides for the award of attorneys’ fees or costs and, if so, the basis for including the award.

(2)

Public comment

(A)

In general

An agency seeking to enter a covered consent decree or settlement agreement shall accept public comment during the period described in paragraph (1) on any issue relating to the matters alleged in the complaint in the applicable civil action or addressed or affected by the proposed covered consent decree or settlement agreement.

(B)

Response to comments

An agency shall respond to any comment received under subparagraph (A).

(C)

Submissions to court

When moving that the court enter a proposed covered consent decree or settlement agreement or for dismissal pursuant to a proposed covered consent decree or settlement agreement, an agency shall—

(i)

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

(ii)

submit to the court a summary of the comments received under subparagraph (A) and the response of the agency to the comments;

(iii)

submit to the court a certified index of the administrative record of the notice and comment proceeding; and

(iv)

make the administrative record described in clause (iii) fully accessible to the court.

(D)

Inclusion in record

The court shall include in the court record for a civil action the certified index of the administrative record submitted by an agency under subparagraph (C)(iii) and any documents listed in the index which any party or amicus curiae appearing before the court in the action submits to the court.

(3)

Public hearings permitted

(A)

In general

After providing notice in the Federal Register and online, an agency may hold a public hearing regarding whether to enter into a proposed covered consent decree or settlement agreement.

(B)

Record

If an agency holds a public hearing under subparagraph (A)—

(i)

the agency shall—

(I)

submit to the court a summary of the proceedings;

(II)

submit to the court a certified index of the hearing record; and

(III)

provide access to the hearing record to the court; and

(ii)

the full hearing record shall be included in the court record.

(4)

Mandatory deadlines

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

(A)

any required regulatory action the agency has not taken that the covered consent decree or settlement agreement does not address;

(B)

how the covered consent decree or settlement agreement, if approved, would affect the discharge of the duties described in subparagraph (A); and

(C)

why the effects of the covered consent decree or settlement agreement on the manner in which the agency discharges its duties is in the public interest.

(e)

Submission by the government

(1)

In general

For any proposed covered consent decree or settlement agreement that contains a term described in paragraph (2), the Attorney General or, if the matter is being litigated independently by an agency, the head of the agency shall submit to the court a certification that the Attorney General or head of the agency approves the proposed covered consent decree or settlement agreement. The Attorney General or head of the agency shall personally sign any certification submitted under this paragraph.

(2)

Terms

A term described in this paragraph is—

(A)

in the case of a covered consent decree, a term that—

(i)

converts into a nondiscretionary duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations;

(ii)

commits an agency to expend funds that have not been appropriated and that have not been budgeted for the regulatory action in question;

(iii)

commits an agency to seek a particular appropriation or budget authorization;

(iv)

divests an agency of discretion committed to the agency by statute or the Constitution of the United States, without regard to whether the discretion was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties; or

(v)

otherwise affords relief that the court could not enter under its own authority upon a final judgment in the civil action; or

(B)

in the case of a covered settlement agreement, a term—

(i)

that provides a remedy for a failure by the agency to comply with the terms of the covered settlement agreement other than the revival of the civil action resolved by the covered settlement agreement; and

(ii)

that—

(I)

interferes with the authority of an agency to revise, amend, or issue rules under the procedures set forth in chapter 5 of title 5, United States Code, or any other statute or Executive order prescribing rulemaking procedures for a rulemaking that is the subject of the covered settlement agreement;

(II)

commits the agency to expend funds that have not been appropriated and that have not been budgeted for the regulatory action in question; or

(III)

for such a covered settlement agreement that commits the agency to exercise in a particular way discretion which was committed to the agency by statute or the Constitution of the United States to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties.

(f)

Review by court

(1)

Amicus

A court considering a proposed covered consent decree or settlement agreement shall presume, subject to rebuttal, that it is proper to allow amicus participation relating to the covered consent decree or settlement agreement by any person who filed public comments or participated in a public hearing on the covered consent decree or settlement agreement under paragraph (2) or (3) of subsection (d).

(2)

Review of deadlines

(A)

Proposed covered consent decrees

For a proposed covered consent decree, a court shall not approve the covered consent decree unless the proposed covered consent decree allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

(B)

Proposed covered settlement agreements

For a proposed covered settlement agreement, a court shall ensure that the covered settlement agreement allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

(g)

Annual reports

Each agency shall submit to Congress an annual report that, for the year covered by the report, includes—

(1)

the number, identity, and content of covered civil actions brought against and covered consent decrees or settlement agreements entered against or into by the agency; and

(2)

a description of the statutory basis for—

(A)

each covered consent decree or settlement agreement entered against or into by the agency; and

(B)

any award of attorneys fees or costs in a civil action resolved by a covered consent decree or settlement agreement entered against or into by the agency.

104.

Motions to modify consent decrees

If an agency moves a court to modify a covered consent decree or settlement agreement and the basis of the motion is that the terms of the covered consent decree or settlement agreement are no longer fully in the public interest due to the obligations of the agency to fulfill other duties or due to changed facts and circumstances, the court shall review the motion and the covered consent decree or settlement agreement de novo.

105.

Effective date

This title shall apply to—

(1)

any covered civil action filed on or after the date of enactment of this Act; and

(2)

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

II

All Economic Regulations are Transparent

201.

Short title

This title may be cited as the All Economic Regulations are Transparent Act of 2016 or the ALERT Act of 2016.

202.

Office of information and regulatory affairs publication of information relating to rules

(a)

Amendment

Title 5, United States Code, is amended by inserting after chapter 6 the following new chapter:

6A

OFFICE OF INFORMATION AND REGULATORY AFFAIRS PUBLICATION OF INFORMATION RELATING TO RULES

651. Agency monthly submission to Office of Information and Regulatory Affairs.

652. Office of Information and Regulatory Affairs publications.

653. Requirement for rules to appear in agency-specific monthly publication.

654. Definitions.

651.

Agency monthly submission to Office of Information and Regulatory Affairs

On a monthly basis, the head of each agency shall submit to the Administrator of the Office of Information and Regulatory Affairs (referred to in this chapter as the Administrator), in such a manner as the Administrator may reasonably require, the following information:

(1)

For each rule that the agency expects to propose or finalize during the 12-month period following the month covered by the monthly submission:

(A)

A summary of the nature of the rule, including the regulation identifier number and the docket number for the rule.

(B)

The objectives of and legal basis for the issuance of the rule, including—

(i)

any statutory or judicial deadline; and

(ii)

whether the legal basis restricts or precludes the agency from conducting an analysis of the costs or benefits of the rule during the rule making, and if not, whether the agency plans to conduct an analysis of the costs or benefits of the rule during the rule making.

(C)

Whether the agency plans to claim an exemption from the requirements of section 553 pursuant to section 553(b)(B).

(D)

The stage of the rule making as of the date of submission.

(E)

Whether the rule is subject to review under section 610.

(2)

For any rule that the agency expects to finalize during the 12-month period following the month covered by the monthly submission and for which the agency has issued a general notice of proposed rule making—

(A)

an approximate schedule for completing action on the rule;

(B)

an estimate of whether the rule will cost—

(i)

less than $50,000,000;

(ii)

$50,000,000 or more but less than $100,000,000;

(iii)

$100,000,000 or more but less than $500,000,000;

(iv)

$500,000,000 or more but less than $1,000,000,000;

(v)

$1,000,000,000 or more but less than $5,000,000,000;

(vi)

$5,000,000,000 or more but less than $10,000,000,000; or

(vii)

$10,000,000,000 or more; and

(C)

any estimate of the economic effects of the rule, including the imposition of unfunded mandates and any estimate of the net effect that the rule will have on the number of jobs in the United States, that was considered in drafting the rule, or, if no such estimate is available, a statement affirming that no information on the economic effects, including the effect on the number of jobs, of the rule has been considered.

652.

Office of Information and Regulatory Affairs publications

(a)

Agency-Specific information published monthly

Not later than 30 days after the submission of information pursuant to section 651, the Administrator shall make such information publicly available on the Internet.

(b)

Cumulative assessment of agency rule making published annually

(1)

Publication in the federal register

Not later than October 1 of each year, the Administrator shall publish, in the Federal Register, the following, with respect to the previous year:

(A)

The information that the Administrator received from the head of each agency under section 651.

(B)

The number of rules and a list of each such rule—

(i)

that was proposed by each agency, including, for each such rule, an indication of whether the issuing agency conducted an analysis of the costs or benefits of the rule; and

(ii)

that was finalized by each agency, including for each such rule an indication of whether—

(I)

the issuing agency conducted an analysis of the costs or benefits of the rule;

(II)

the agency claimed an exemption from the procedures under section 553 pursuant to section 553(b)(B); and

(III)

the rule was issued pursuant to a statutory mandate or the rule making is committed to agency discretion by law.

(C)

The number of agency actions and a list of each such action taken by each agency that—

(i)

repealed a rule;

(ii)

reduced the scope of a rule;

(iii)

reduced the cost of a rule; or

(iv)

accelerated the expiration date of a rule.

(D)

The total cost (without reducing the cost by any offsetting benefits) of all rules proposed or finalized, the total cost of any unfunded mandates imposed by all such rules, and the number of rules for which an estimate of the cost of the rule was not available.

(2)

Publication on the internet

Not later than October 1 of each year, the Administrator shall make publicly available on the Internet the following:

(A)

The analysis of the costs or benefits, if conducted, for each proposed rule or final rule issued by an agency for the previous year.

(B)

The docket number and regulation identifier number for each proposed or final rule issued by an agency for the previous year.

(C)

The number of rules and a list of each such rule reviewed by the Director of the Office of Management and Budget for the previous year, and the authority under which each such review was conducted.

(D)

The number of rules and a list of each such rule for which the head of an agency completed a review under section 610 for the previous year.

(E)

The number of rules and a list of each such rule submitted to the Comptroller General under section 801.

(F)

The number of rules and a list of each such rule for which a resolution of disapproval was introduced in either the House of Representatives or the Senate under section 802.

653.

Requirement for rules to appear in agency-specific monthly publication

(a)

In general

Subject to subsection (b), a rule may not take effect until the information required to be made publicly available on the Internet regarding such rule pursuant to section 652(a) has been so available for not less than 6 months.

(b)

Exceptions

The requirement of subsection (a) shall not apply in the case of a rule—

(1)

for which the agency issuing the rule claims an exception under section 553(b)(B); or

(2)

which the President determines by Executive order should take effect because the rule is—

(A)

necessary because of an imminent threat to health or safety or other emergency;

(B)

necessary for the enforcement of criminal laws;

(C)

necessary for national security; or

(D)

issued pursuant to any statute implementing an international trade agreement.

654.

Definitions

In this chapter, the terms agency, agency action, rule, and rule making have the meanings given those terms in section 551, and the term unfunded mandate has the meaning given the term Federal mandate in section 421(6) of the Congressional Budget Act of 1974 (2 U.S.C. 658(6)).

.

(b)

Technical and conforming amendment

The table of chapters for part I of title 5, United States Code, is amended by inserting after the item relating to chapter 5 the following:

6. The Analysis of Regulatory Functions601 6A. Office of Information and Regulatory Affairs Publication of Information Relating to Rules651

.

(c)

Effective dates

(1)

Agency monthly submission to the office of information and regulatory affairs

The first submission required pursuant to section 651 of title 5, United States Code, as added by subsection (a), shall be submitted not later than 30 days after the date of the enactment of this Act, and monthly thereafter.

(2)

Cumulative assessment of agency rule making

(A)

In general

Subsection (b) of section 652 of title 5, United States Code, as added by subsection (a), shall take effect on the date that is 60 days after the date of the enactment of this Act.

(B)

Deadline

The first requirement to publish or make available, as the case may be, under subsection (b) of section 652 of title 5, United States Code, as added by subsection (a), shall be the first October 1 after the effective date of such subsection.

(C)

First publication

The requirement under section 652(b)(2)(A) of title 5, United States Code, as added by subsection (a), shall include for the first publication, any analysis of the costs or benefits conducted for a proposed or final rule, for the 10 years before the date of the enactment of this Act.

(3)

Requirement for rules to appear in agency-specific monthly publication

Section 653 of title 5, United States Code, as added by subsection (a), shall take effect on the date that is 8 months after the date of the enactment of this Act.

III

Providing Accountability Through Transparency

301.

Short title

This title may be cited as the Providing Accountability Through Transparency Act of 2016.

302.

Requirement to post a 100 word summary to regulations.gov

Section 553(b) of title 5, United States Code, is amended—

(1)

in paragraph (2) by striking ; and and inserting ;;

(2)

in paragraph (3), by striking the period at the end and inserting ; and; and

(3)

by inserting after paragraph (3) the following:

(4)

the internet address of a summary of not more than 100 words in length of the proposed rule, in plain language, that shall be posted on the internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note) (commonly known as regulations.gov);

.

Passed the House of Representatives January 7, 2016.

Karen L. Haas,

Clerk