[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 712 Engrossed in House (EH)]
<DOC>
114th CONGRESS
2d Session
H. R. 712
_______________________________________________________________________
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.
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 Regulations and
Regulatory Decrees and Settlements Act of 2016''.
SEC. 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.
TITLE I--SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS
SEC. 101. SHORT TITLE.
This title may be cited as the ``Sunshine for Regulations and
Regulatory Decrees and Settlements Act of 2016''.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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.
TITLE II--ALL ECONOMIC REGULATIONS ARE TRANSPARENT
SEC. 201. SHORT TITLE.
This title may be cited as the ``All Economic Regulations are
Transparent Act of 2016'' or the ``ALERT Act of 2016''.
SEC. 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:
``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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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 Functions.................. 601
``6A. Office of Information and Regulatory Affairs 651''.
Publication of Information
Relating to Rules.
(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.
TITLE III--PROVIDING ACCOUNTABILITY THROUGH TRANSPARENCY
SEC. 301. SHORT TITLE.
This title may be cited as the ``Providing Accountability Through
Transparency Act of 2016''.
SEC. 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.
Attest:
Clerk.
114th CONGRESS
2d Session
H. R. 712
_______________________________________________________________________
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.