[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.
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