[Federal Register Volume 87, Number 43 (Friday, March 4, 2022)]
[Rules and Regulations]
[Pages 12402-12404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04509]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[Docket No. OAG 175; AG Order No. 5536-2022]


Revisions to Approval of Civil Consent Decrees With State and 
Local Governmental Entities

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations of the Department of 
Justice (``Department'') to restore the traditional process regarding 
the approval procedures to be used when a civil action against a State 
or local governmental entity is to be resolved by consent decree.

DATES: This rule is effective March 4, 2022.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK 
Building, 950 Pennsylvania Avenue NW, Washington, DC 20530, telephone 
(202) 514-8059 (not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Discussion

A. Overview

    This rule implements the April 16, 2021 Memorandum of Attorney 
General Merrick B. Garland titled ``Civil Settlement Agreements and 
Consent Decrees with State and Local Governmental Entities'' (the 
``April 2021 Memorandum''), available at https://www.justice.gov/ag/page/file/1387481/download. Specifically, this rule withdraws the 
changes made to the Department's regulations by the rule ``Approval of 
Civil Consent Decrees With State and Local Governmental Entities'' 
published on December 28, 2020 (85 FR 84229).
    The April 2021 Memorandum also specifically rescinded the 
Memorandum issued by former Attorney General Jefferson B. Sessions III, 
entitled ``Principles and Procedures for Civil Consent Decrees and 
Settlement

[[Page 12403]]

Agreements with State and Local Governmental Entities'' (November 7, 
2018) (the ``November 2018 Memorandum'').
    In addition, for consistency with the April 2021 Memorandum, the 
Department will revise the changes made to the Justice Manual in 2020 
in response to the November 2018 Memorandum.

B. Background--Previous Administration

    The November 2018 Memorandum set forth principles to guide the 
development of consent decrees with State or local governmental 
entities, including limitations on the circumstances in which a consent 
decree with a State or local governmental entity may be appropriate, 
the substantive requirements for such consent decrees, internal 
notification requirements regarding the initiation of negotiations for 
consent decrees, and a requirement of review and approval of senior 
leadership of the Department before a consent decree is agreed to by 
the United States or submitted to the court for entry. Subsequently, 
conforming changes were made to the Justice Manual and to the 
Department's regulations at 28 CFR 0.160. The revisions to Sec.  0.160, 
codified at paragraphs (d)(6) and (e), were limited to amending the 
Department's settlement authority regulations to require approval of 
the specified consent decrees by the Deputy Attorney General or the 
Associate Attorney General. See 85 FR 84229 (Dec. 28, 2020).

C. Current Administration

    Upon further consideration, the Attorney General has determined to 
restore longstanding regulations, protocols, and practices by 
authorizing the Assistant Attorneys General of the litigating 
components generally to handle such approvals because they are the 
Department officials most familiar with and best able to assess each 
particular case.
    Accordingly, this rule restores the regulatory provisions at 28 CFR 
0.160 as they existed prior to the revisions adopted on December 28, 
2020.\1\
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    \1\ In addition to other changes made by the December 28, 2020, 
rule, that rule also corrected an existing drafting error by 
removing ``or'' at the end of 28 CFR 0.160(d)(1). That was a non-
substantive change, and accordingly this final rule does not undo 
that technical correction.
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    The April 2021 Memorandum also noted that, pursuant to longstanding 
Department settlement authority regulations predating the changes 
discussed above, and still in effect, a settlement agreement or consent 
decree with a State or local governmental entity must be referred to 
the Deputy Attorney General or the Associate Attorney General for 
approval if the component head ``is of the opinion that[,] because of a 
question of law or policy presented . . . or for any other reason, the 
proposed settlement should receive the personal attention of the Deputy 
Attorney General or the Associate Attorney General, as appropriate.'' 
28 CFR 0.160(d)(2).

II. Regulatory Certifications

A. Administrative Procedure Act

    This rule relates to a matter of agency management or personnel and 
is a rule of agency organization, procedure, or practice. As such, this 
rule is exempt from the usual requirements of prior notice and comment 
and a 30-day delay in effective date. See 5 U.S.C. 553(a)(2), (b)(A), 
(d).

B. Regulatory Flexibility Act

    A Regulatory Flexibility Analysis was not required for this final 
rule because the Department was not required to publish a general 
notice of proposed rulemaking for this matter. See 5 U.S.C. 601(2), 
604(a).

C. Executive Orders 12866 and 13563--Regulatory Review

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), The Principles of Regulation, and Executive Order 13563, 
``Improving Regulation and Regulatory Review,'' section 1, General 
Principles of Regulation.
    This final rule is ``limited to agency organization, management, or 
personnel matters'' and thus is not a ``rule'' for purposes of review 
by the Office of Management and Budget. Executive Order 12866, sec. 
3(d)(3).

D. Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in section 
3(a) and 3(b)(2) of Executive Order 12988, ``Civil Justice Reform.''

E. Executive Order 13132--Federalism

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. This rule only pertains to the internal 
delegation of the Attorney General's litigation authority, regarding 
the authority of the Department's litigation components for approval of 
consent decrees entered into by the Department. Therefore, in 
accordance with Executive Order 13132, ``Federalism,'' the Department 
has determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

F. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted for inflation) in any one year, and it will 
not significantly or uniquely affect small governments. Therefore, no 
actions are necessary under the provisions of the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501 et seq.

G. Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
Congressional Review Act (CRA), 5 U.S.C. 804. This action pertains to 
agency management or personnel, and agency organization, procedure, or 
practice, and does not substantially affect the rights or obligations 
of non-agency parties. Accordingly, it is not a ``rule'' as that term 
is used in the CRA, 5 U.S.C. 804(3)(B), (C). Therefore, the reporting 
requirement of 5 U.S.C. 801 does not apply.

H. Paperwork Reduction Act of 1995

    This final rule does not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3521.

List of Subjects in 28 CFR Part 0

    Authority delegations (Government agencies), Government employees, 
Organization and functions (Government agencies), Privacy, Reporting 
and recordkeeping requirements, Whistleblowing.

    Accordingly, by virtue of the authority vested in me as Attorney 
General, including 5 U.S.C. 301 and 28 U.S.C. 509, 510, part 0 of title 
28 of the Code of Federal Regulations is amended as follows:

PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE

0
1. The authority citation for part 0 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.


0
2. In Sec.  0.160:
0
a. Revise paragraphs (d)(4) and (5); and

[[Page 12404]]

0
b. Remove paragraphs (d)(6) and (e).
    The revisions read as follows:


Sec.  0.160   Offers that may be accepted by Assistant Attorneys 
General.

* * * * *
    (d) * * *
    (4) When the proposed settlement commits a department or agency to 
expend funds that Congress has not appropriated and that have not been 
budgeted for the action in question, or commits a department or agency 
to seek particular appropriation or budget authorization; or
    (5) When the proposed settlement otherwise limits the discretion of 
a department or agency to make policy or managerial decisions committed 
to the department or agency by Congress or by the Constitution.

    Dated: February 18, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-04509 Filed 3-3-22; 8:45 am]
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