[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Rules and Regulations]
[Pages 84229-84230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27190]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[Docket No. OAG 162; AG Order No. 4926-2020]


Approval of Civil Consent Decrees With State and Local 
Governmental Entities

AGENCY: Office of the Attorney General, Justice.

ACTION: Final rule.

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SUMMARY: This final rule amends the regulations of the Department of 
Justice (``Department'') setting forth the approval procedures to be 
used when a civil action against a State or local governmental entity 
is resolved by consent decree, prior to the finalization of that 
agreement.

DATES: This rule is effective December 28, 2020.

FOR FURTHER INFORMATION CONTACT: J. Taylor McConkie, Deputy Associate 
Attorney General, Department of Justice, Washington, DC 20530; 
telephone: (202) 514-9500 (not a toll-free number).

SUPPLEMENTARY INFORMATION: In enforcing Federal law, the Department may 
bring lawsuits against State and local governmental entities. State 
governments are sovereigns with special and protected roles under our 
constitutional order. Accordingly, the Department must ensure that its 
practices in such cases are in the interests of justice, transparent, 
and consistent with the impartial rule of law and fundamental 
constitutional principles, including federalism and democratic control 
and accountability.
    On November 7, 2018, Attorney General Jeff Sessions issued a 
memorandum (``November 7 memorandum'' or ``memorandum'') to the heads 
of the Department's civil litigating components and the United States 
Attorneys addressing many of the particular considerations arising when 
a civil action against a State or local government is resolved by 
consent decree or settlement agreement. Principles and Procedures for 
Civil Consent Decrees and Settlement Agreements with State and Local 
Government Entities (Nov. 7, 2018) (available at https://www.justice.gov/opa/press-release/file/1109681/download).
    As that memorandum explained, while consent decrees may be 
necessary and appropriate to secure compliance with Federal law, 
Federal court decrees that impose wide-ranging and long-term 
obligations on, or require ongoing judicial supervision of, State or 
local governments are extraordinary remedies that ``raise sensitive 
federalism concerns.'' Id. at 2 (citing Horne v. Flores, 557 U.S. 433, 
448 (2009)). It is appropriate that the Department should exercise 
special caution before entering into a consent decree with a State or 
local governmental entity. While such consent decrees can be 
appropriate settlement vehicles in limited circumstances, they should 
be employed carefully and only after review and approval of senior 
leadership of the Department. Id. at 3-4.
    To that end, the November 7 memorandum set forth important 
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 
negotiation 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.
    The principles of the November 7 memorandum are applicable, by its 
terms, to all civil litigation conducted by the Department that 
involves any civil consent decrees or settlement agreements with State 
or local governmental entities. However, it is appropriate to amend the 
Department's settlement regulations to effectuate one aspect addressed 
by the memorandum, i.e., the requirement for leadership approval of 
consent decrees prior to the agreement or submission to a court for 
entry. As noted in the memorandum (pages 2 n.3 and 3 n.4), the 
Department's existing regulations on the delegation of settlement 
authority govern the requirements for certain settlements to be 
approved by the Department's senior leadership. This final rule amends 
the existing settlement regulations to add a new paragraph codifying 
the requirement for the relevant Assistant Attorney General of the 
civil litigating division (or the United States Attorney to whom 
settlement authority has been redelegated under 28 CFR 0.168) to 
approve and submit consent decrees involving State or local government 
entities for approval by the Deputy Attorney General or the Associate 
Attorney General if the consent decree would (1) place a court in a 
long-term position of monitoring compliance by a State or local 
governmental entity; (2) create long-term structural or programmatic 
obligations, or long-term, indeterminate financial obligations, for a 
State or local governmental entity; or (3) otherwise raise novel 
questions of law or policy that merit review by senior Department 
leadership. However, consistent with the November 7 memorandum at page 
3 n.5, this new approval requirement does not apply where use of a 
consent decree is required by statute or regulation or the consent 
decree is limited to the payment of a sum certain of money or 
performance of a specific environmental removal action.
    Accordingly, to achieve the foregoing objectives, before a consent 
decree that comes within one of the categories set forth above is 
agreed to by the United States or submitted to a court for entry, it 
must be approved by the United States Attorney or the Assistant 
Attorney General for the litigating component responsible for the 
subject matter of the consent decree and by the Deputy Attorney General 
or the

[[Page 84230]]

Associate Attorney General, in accordance with the standard reporting 
structure of the Department.

Regulatory Certifications

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), (d).

Regulatory Flexibility Act

    This regulation will not have an impact on small entities because 
it pertains to personnel and administrative matters affecting the 
Department. 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).

Executive Orders 12866, 13563, and 13771--Regulatory Review

    This regulation 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. See Executive Order 12866, 
section 3(d)(3). Accordingly, this rule has not been reviewed by the 
Office of Management and Budget.
    This rule is not subject to the requirements of Executive Order 
13771 because it is ``related to agency organization, management, or 
personnel'' and thus not a ``rule'' under Executive Order 13771, 
section 4(b).

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

    This rule provides for appropriate leadership review by the 
Department prior to the finalization of consent decrees involving State 
or local governmental entities, in order to better ensure their special 
sovereign and protected roles under our constitutional order. This is 
not a substantive rule but is a rule of internal agency management, 
practice, and procedure regarding the delegation of the Attorney 
General's litigation authority for the internal review of certain 
consent decrees in litigation being conducted under the authority of 
the Attorney General. This rule will not have substantial direct 
effects on the States, on the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. 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.

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 $120 
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.

Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
Congressional Review Act, 5 U.S.C. 804. This action pertains to agency 
management, personnel, and organization and does not substantially 
affect the rights or obligations of non-agency parties and, 
accordingly, is not a ``rule'' as that term is used by the 
Congressional Review Act, 8 U.S.C. 804(3)(B)-(C). Therefore, the 
reporting requirement of 5 U.S.C. 801 does not apply.

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. Section 0.160 is amended by:
0
a. Removing the word ``or'' at the end of paragraph (d)(1);
0
b. Removing the word ``or'' at the end of paragraph (d)(4);
0
c. Removing the period at the end of paragraph (d)(5) and adding in its 
place ``; or''; and
0
d. Adding paragraphs (d)(6) and (e).
    The additions read as follows:


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

* * * * *
    (d) * * *
    (6) When a proposed settlement of a civil action includes a consent 
decree with a State or local governmental entity that would:
    (i) Place a court in a long-term position of monitoring compliance 
by a State or local governmental entity;
    (ii) Create long-term structural or programmatic obligations, or 
long-term, indeterminate financial obligations, for a State or local 
governmental entity; or
    (iii) Otherwise raise novel questions of law or policy that merit 
review by senior Department leadership.
    (e) As used in paragraph (d)(6) of this section, ``long-term'' 
means that the obligations, on their face or in practice, are 
reasonably likely to take 24 months or longer to satisfy. Paragraph 
(d)(6) of this section does not apply where use of a consent decree is 
required by statute or regulation or the consent decree is limited to 
the payment of a sum certain of money or performance of a specific 
environmental removal action.

    Dated: December 4, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-27190 Filed 12-23-20; 8:45 am]
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