[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The April 2021 Memorandum also specifically rescinded the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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