[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3862 Reported in House (RH)]

                                                 Union Calendar No. 428
112th CONGRESS
  2d Session
                                H. R. 3862

                          [Report No. 112-593]

    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 HOUSE OF REPRESENTATIVES

                            February 1, 2012

Mr. Quayle (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.


 


    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. 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.

SEC. 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.

SEC. 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.
                                                 Union Calendar No. 428

112th CONGRESS

  2d Session

                               H. R. 3862

                          [Report No. 112-593]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             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