Sunshine for Regulatory Decrees and Settlements Act of 2012 - Defines a "covered civil action" as a civil action seeking to compel agency action and alleging that an agency is unlawfully withholding or unreasonably delaying an agency action relating to a regulatory action that would affect: (1) the rights of private persons other than the person bringing the action; or (2) a state, local, or tribal government. Defines a "covered settlement agreement" as: (1) a consent decree or settlement agreement entered into a covered civil action, and (2) any other consent decree or settlement agreement that requires agency action relating to such a regulatory action.
Requires an agency against which a covered civil action is brought to publish the complaint in a readily accessible manner and to provide interested parties an opportunity to intervene and to conduct settlement negotiations through mediation.
Requires an agency seeking to enter a covered settlement agreement to publish such agreement in the Federal Register and online not later than 60 days before it is filed with the court. Provides for public comment and public hearings on such agreement.
Requires the Attorney General or an agency head, if an agency is litigating a matter independently, to certify to the court that the Attorney General or the agency head approves of any proposed covered settlement agreement that includes terms that: (1) convert into a duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations; (2) commit an agency to expend funds that have not been appropriated and budgeted; (3) commit an agency to seek a particular appropriation or budget authorization; (4) divest an agency of discretion committed to it by statute or the Constitution; or (5) otherwise afford any relief that the court could not enter under its own authority.
Requires a court to grant de novo review of a covered settlement agreement if an agency files a motion to modify such agreement on the basis that its terms 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.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3382 Introduced in Senate (IS)]
112th CONGRESS
2d Session
S. 3382
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 12, 2012
Mr. Grassley (for himself, Mr. Kyl, Mr. Cornyn, Mr. Lee, Mr. Paul, and
Mr. Coburn) introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sunshine for Regulatory Decrees and
Settlements Act of 2012''.
SEC. 2. DEFINITIONS.
In this Act--
(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; and
(3) the term ``covered settlement agreement'' means--
(A) a consent decree or settlement agreement
entered into in a covered civil action; and
(B) any other consent decree or 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.
SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM.
(a) Pleadings and Preliminary Matters.--In any covered civil
action--
(1) the agency against which the covered civil action is
brought shall publish the complaint in a readily accessible
manner, including by making the complaint available online; and
(2) a party may not make a motion for entry of a consent
decree or to dismiss the covered civil action pursuant to a
settlement agreement until after the end of the period during
which a person may intervene.
(b) Intervention.--
(1) Rebuttable presumption.--In considering a motion to
intervene in a covered civil action 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 covered civil action.
(2) State, local, and tribal governments.--In considering a
motion to intervene in a covered civil action 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 covered civil action the statutory
provisions that give rise to the regulatory action to
which the covered civil action relates; or
(B) administers an authority under State, local, or
tribal law that would be preempted by the regulatory
action to which the covered civil action relates.
(c) Settlement Negotiations.--Efforts to settle a covered civil
action 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 covered civil
action.
(d) Publication of and Comment on Covered Settlement Agreements.--
(1) In general.--Not later than 60 days before the date on
which a covered settlement agreement is filed with a court, the
agency seeking to enter the covered settlement agreement shall
publish in the Federal Register and online--
(A) the proposed covered settlement agreement; and
(B) a statement providing--
(i) the statutory basis for the covered
settlement agreement; and
(ii) a description of the terms of the
covered 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 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 covered civil action or addressed or
affected by the proposed covered 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 settlement agreement or
for dismissal pursuant to a proposed covered settlement
agreement, an agency shall--
(i) inform the court of the statutory basis
for the proposed covered 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).
(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 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 settlement
agreement requires an agency action by a date certain, the
agency shall, when moving for entry of the covered settlement
agreement or dismissal based on the covered settlement
agreement, inform the court of--
(A) any required regulatory action the agency has
not taken that the covered settlement agreement does
not address;
(B) how the covered settlement agreement, if
approved, would affect the discharge of the duties
described in subparagraph (A); and
(C) why the effects of the covered 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 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 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 consent decree, a term that--
(i) converts into a 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 civil 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
other than a consent decree, a term that--
(i) interferes with the authority of an
agency to revise, amend, or issue rules under
the procedures under 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 civil action in
question; or
(iii) for 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, 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.
(f) Review by Court.--
(1) Amicus.--A court considering a proposed covered
settlement agreement shall presume, subject to rebuttal, that
it is proper to allow amicus participation relating to the
covered settlement agreement by any person who filed public
comments on the covered settlement agreement under subsection
(d)(2).
(2) Review of deadlines.--
(A) Proposed consent decrees.--For a proposed
covered settlement agreement that is a consent decree,
a court shall not approve the covered settlement
agreement unless the proposed 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.
(B) Other settlement agreements.--For a proposed
covered settlement agreement other than a consent
decree, 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 settlement agreements
entered by the agency; and
(2) a description of the statutory basis for--
(A) each covered settlement agreement entered by
the agency; and
(B) any award of attorneys fees or costs in a civil
action resolved by a covered settlement agreement
entered by the agency.
SEC. 4. MOTIONS TO MODIFY CONSENT DECREES.
If an agency moves a court to modify a covered settlement agreement
and the basis of the motion is that the terms of the covered 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 settlement agreement de novo.
SEC. 5. EFFECTIVE DATE.
This Act shall apply to--
(1) any covered civil action filed on or after the date of
enactment of this Act; and
(2) any covered settlement agreement proposed to a court on
or after the date of enactment of this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S4958-4960)
Read twice and referred to the Committee on the Judiciary.
Llama 3.2 · runs locally in your browser
Ask anything about this bill. The AI reads the full text to answer.
Enter to send · Shift+Enter for new line