Sunshine for Regulatory Decrees and Settlements Act of 2023

IB Union Calendar No. 367 118TH CONGRESS 2D SESSION H. R. 3446 [Report No. 118–443] To impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies to take regulatory action in accord- ance with the terms thereof, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 17, 2023 Mrs. SPARTZ (for herself, Mr. CRAWFORD, Mr. MOOLENAAR, Mr. CLOUD, Mr. STEWART, Mr. TIFFANY, and Mrs. LESKO) introduced the following bill; which was referred to the Committee on the Judiciary APRIL 5, 2024 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 May 17, 2023] VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 2 •HR 3446 RH A BILL To impose certain limitations on consent decrees and settle- ment agreements by agencies that require the agencies to take regulatory action in accordance with the terms thereof, and for other purposes. VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 3 •HR 3446 RH Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Sunshine for Regulatory 4 Decrees and Settlements Act of 2023’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 (1) the terms ‘‘agency’’ and ‘‘agency action’’ 8 have the meanings given those terms under section 9 551 of title 5, United States Code; 10 (2) the term ‘‘covered civil action’’ means a civil 11 action— 12 (A) seeking to compel agency action; 13 (B) alleging that an agency is unlawfully 14 withholding or unreasonably delaying an agency 15 action relating to a regulatory action that would 16 affect the rights of— 17 (i) private persons other than the per- 18 son bringing the action; or 19 (ii) a State, local, or tribal govern- 20 ment; and 21 (C) brought under— 22 (i) chapter 7 of title 5, United States 23 Code; or 24 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 4 •HR 3446 RH (ii) any other statute authorizing such 1 an action; 2 (3) the term ‘‘covered consent decree’’ means— 3 (A) a consent decree entered into in a cov- 4 ered civil action; and 5 (B) any other consent decree that requires 6 agency action relating to a regulatory action 7 that affects the rights of— 8 (i) private persons other than the per- 9 son bringing the action; or 10 (ii) a State, local, or tribal govern- 11 ment; 12 (4) the term ‘‘covered consent decree or settlement 13 agreement’’ means a covered consent decree and a cov- 14 ered settlement agreement; and 15 (5) the term ‘‘covered settlement agreement’’ 16 means— 17 (A) a settlement agreement entered into in 18 a covered civil action; and 19 (B) any other settlement agreement that re- 20 quires agency action relating to a regulatory ac- 21 tion that affects the rights of— 22 (i) private persons other than the per- 23 son bringing the action; or 24 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 5 •HR 3446 RH (ii) a State, local, or tribal govern- 1 ment. 2 SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM. 3 (a) PLEADINGS AND PRELIMINARY MATTERS.— 4 (1) IN GENERAL.—In any covered civil action, 5 the agency against which the covered civil action is 6 brought shall publish the notice of intent to sue and 7 the complaint in a readily accessible manner, includ- 8 ing by making the notice of intent to sue and the 9 complaint available online not later than 15 days 10 after receiving service of the notice of intent to sue or 11 complaint, respectively. 12 (2) ENTRY OF A COVERED CONSENT DECREE OR 13 SETTLEMENT AGREEMENT.—A party may not make a 14 motion for entry of a covered consent decree or to dis- 15 miss a civil action pursuant to a covered settlement 16 agreement until after the end of proceedings in ac- 17 cordance with paragraph (1) and subparagraphs (A) 18 and (B) of paragraph (2) of subsection (d) or sub- 19 section (d)(3)(A), whichever is later. 20 (b) INTERVENTION.— 21 (1) REBUTTABLE PRESUMPTION.—In considering 22 a motion to intervene in a covered civil action or a 23 civil action in which a covered consent decree or set- 24 tlement agreement has been proposed that is filed by 25 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 6 •HR 3446 RH a person who alleges that the agency action in dispute 1 would affect the person, the court shall presume, sub- 2 ject to rebuttal, that the interests of the person would 3 not be represented adequately by the existing parties 4 to the action. 5 (2) STATE, LOCAL, AND TRIBAL GOVERN- 6 MENTS.—In considering a motion to intervene in a 7 covered civil action or a civil action in which a cov- 8 ered consent decree or settlement agreement has been 9 proposed that is filed by a State, local, or tribal gov- 10 ernment, the court shall take due account of whether 11 the movant— 12 (A) administers jointly with an agency that 13 is a defendant in the action the statutory provi- 14 sions that give rise to the regulatory action to 15 which the action relates; or 16 (B) administers an authority under State, 17 local, or tribal law that would be preempted by 18 the regulatory action to which the action relates. 19 (c) SETTLEMENT NEGOTIATIONS.—Efforts to settle a 20 covered civil action or otherwise reach an agreement on a 21 covered consent decree or settlement agreement shall— 22 (1) be conducted pursuant to the mediation or 23 alternative dispute resolution program of the court or 24 by a district judge other than the presiding judge, 25 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 7 •HR 3446 RH magistrate judge, or special master, as determined 1 appropriate by the presiding judge; and 2 (2) include any party that intervenes in the ac- 3 tion. 4 (d) PUBLICATION OF AND COMMENT ON COVERED 5 CONSENT DECREES OR SETTLEMENT AGREEMENTS.— 6 (1) IN GENERAL.—Not later than 60 days before 7 the date on which a covered consent decree or settle- 8 ment agreement is filed with a court, the agency seek- 9 ing to enter the covered consent decree or settlement 10 agreement shall publish in the Federal Register and 11 online— 12 (A) the proposed covered consent decree or 13 settlement agreement; and 14 (B) a statement providing— 15 (i) the statutory basis for the covered 16 consent decree or settlement agreement; and 17 (ii) a description of the terms of the 18 covered consent decree or settlement agree- 19 ment, including whether it provides for the 20 award of attorneys’ fees or costs and, if so, 21 the basis for including the award. 22 (2) PUBLIC COMMENT.— 23 (A) IN GENERAL.—An agency seeking to 24 enter a covered consent decree or settlement 25 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 8 •HR 3446 RH agreement shall accept public comment during 1 the period described in paragraph (1) on any 2 issue relating to the matters alleged in the com- 3 plaint in the applicable civil action or addressed 4 or affected by the proposed covered consent decree 5 or settlement agreement. 6 (B) RESPONSE TO COMMENTS.—An agency 7 shall respond to any comment received under 8 subparagraph (A). 9 (C) SUBMISSIONS TO COURT.—When mov- 10 ing that the court enter a proposed covered con- 11 sent decree or settlement agreement or for dis- 12 missal pursuant to a proposed covered consent 13 decree or settlement agreement, an agency 14 shall— 15 (i) inform the court of the statutory 16 basis for the proposed covered consent decree 17 or settlement agreement and its terms; 18 (ii) submit to the court a summary of 19 the comments received under subparagraph 20 (A) and the response of the agency to the 21 comments; 22 (iii) submit to the court a certified 23 index of the administrative record of the no- 24 tice and comment proceeding; and 25 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 9 •HR 3446 RH (iv) make the administrative record de- 1 scribed in clause (iii) fully accessible to the 2 court. 3 (D) INCLUSION IN RECORD.—The court 4 shall include in the court record for a civil ac- 5 tion the certified index of the administrative 6 record submitted by an agency under subpara- 7 graph (C)(iii) and any documents listed in the 8 index which any party or amicus curiae appear- 9 ing before the court in the action submits to the 10 court. 11 (3) PUBLIC HEARINGS PERMITTED.— 12 (A) IN GENERAL.—After providing notice in 13 the Federal Register and online, an agency may 14 hold a public hearing regarding whether to enter 15 into a proposed covered consent decree or settle- 16 ment agreement. 17 (B) RECORD.—If an agency holds a public 18 hearing under subparagraph (A)— 19 (i) the agency shall— 20 (I) submit to the court a sum- 21 mary of the proceedings; 22 (II) submit to the court a certified 23 index of the hearing record; and 24 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 10 •HR 3446 RH (III) provide access to the hearing 1 record to the court; and 2 (ii) the full hearing record shall be in- 3 cluded in the court record. 4 (4) MANDATORY DEADLINES.—If a proposed cov- 5 ered consent decree or settlement agreement requires 6 an agency action by a date certain, the agency shall, 7 when moving for entry of the covered consent decree 8 or settlement agreement or dismissal based on the cov- 9 ered consent decree or settlement agreement, inform 10 the court of— 11 (A) any required regulatory action the 12 agency has not taken that the covered consent de- 13 cree or settlement agreement does not address; 14 (B) how the covered consent decree or settle- 15 ment agreement, if approved, would affect the 16 discharge of the duties described in subparagraph 17 (A); and 18 (C) why the effects of the covered consent de- 19 cree or settlement agreement on the manner in 20 which the agency discharges its duties is in the 21 public interest. 22 (e) SUBMISSION BY THE GOVERNMENT.— 23 (1) IN GENERAL.—For any proposed covered 24 consent decree or settlement agreement that contains 25 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 11 •HR 3446 RH a term described in paragraph (2), the Attorney Gen- 1 eral or, if the matter is being litigated independently 2 by an agency, the head of the agency shall submit to 3 the court a certification that the Attorney General or 4 head of the agency approves the proposed covered con- 5 sent decree or settlement agreement. The Attorney 6 General or head of the agency shall personally sign 7 any certification submitted under this paragraph. 8 (2) TERMS.—A term described in this paragraph 9 is— 10 (A) in the case of a covered consent decree, 11 a term that— 12 (i) converts into a nondiscretionary 13 duty a discretionary authority of an agency 14 to propose, promulgate, revise, or amend 15 regulations; 16 (ii) commits an agency to expend 17 funds that have not been appropriated and 18 that have not been budgeted for the regu- 19 latory action in question; 20 (iii) commits an agency to seek a par- 21 ticular appropriation or budget authoriza- 22 tion; 23 (iv) divests an agency of discretion 24 committed to the agency by statute or the 25 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 12 •HR 3446 RH Constitution of the United States, without 1 regard to whether the discretion was grant- 2 ed to respond to changing circumstances, to 3 make policy or managerial choices, or to 4 protect the rights of third parties; or 5 (v) otherwise affords relief that the 6 court could not enter under its own author- 7 ity upon a final judgment in the civil ac- 8 tion; or 9 (B) in the case of a covered settlement 10 agreement, a term— 11 (i) that provides a remedy for a failure 12 by the agency to comply with the terms of 13 the covered settlement agreement other than 14 the revival of the civil action resolved by the 15 covered settlement agreement; and 16 (ii) that— 17 (I) interferes with the authority of 18 an agency to revise, amend, or issue 19 rules under the procedures set forth in 20 chapter 5 of title 5, United States 21 Code, or any other statute or Executive 22 order prescribing rulemaking proce- 23 dures for a rulemaking that is the sub- 24 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 13 •HR 3446 RH ject of the covered settlement agree- 1 ment; 2 (II) commits the agency to expend 3 funds that have not been appropriated 4 and that have not been budgeted for the 5 regulatory action in question; or 6 (III) for such a covered settlement 7 agreement that commits the agency to 8 exercise in a particular way discretion 9 which was committed to the agency by 10 statute or the Constitution of the 11 United States to respond to changing 12 circumstances, to make policy or man- 13 agerial choices, or to protect the rights 14 of third parties. 15 (f) REVIEW BY COURT.— 16 (1) AMICUS.—A court considering a proposed 17 covered consent decree or settlement agreement shall 18 presume, subject to rebuttal, that it is proper to allow 19 amicus participation relating to the covered consent 20 decree or settlement agreement by any person who 21 filed public comments or participated in a public 22 hearing on the covered consent decree or settlement 23 agreement under paragraph (2) or (3) of subsection 24 (d). 25 VerDate Sep 11 2014 23:36 Apr 05, 2024 Jkt 049200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6203 E:\BILLS\H3446.RH H3446 ssavage on LAPJG3WLY3PROD with BILLS 14 •HR 3446 RH (2) REVIEW OF DEADLINES.— 1 (A) PROPOSED COVERED CONSENT DE- 2 CREES.—For a proposed covered consent decree, 3 a court shall not approve the covered consent de- 4 cree unless the [Text truncated for display. 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