Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84229 

PART 622—ENVIRONMENTAL IMPACT 

AND RELATED PROCEDURES 

Subpart A—Environmental Procedures 

■ 7. The authority citation for subpart A 

of part 622 is revised to read as follows: 

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 

303 and 5323(q); 23 U.S.C. 139, 326, 327, and 

330; Pub. L. 109–59, 119 Stat. 1144, Sections 

6002 and 6010; 40 CFR parts 1500–1508; 49 

CFR 1.81; Pub. L. 112–141, 126 Stat.405, 

Sections 1315, 1316, 1317, and 1318; and 

Pub. L. 114–94, Section 1309. 

■ 8. Revise § 622.101 to read as follows: 

§ 622.101 Cross-reference to procedures. 

The procedures for complying with 

the National Environmental Policy Act 

of 1969, as amended (42 U.S.C. 4321 et 

seq.), and related statutes, regulations, 

and Executive Orders are set forth in 

part 771 of title 23 of the CFR. The 

procedures for complying with 49 

U.S.C. 303, commonly known as 

‘‘Section 4(f),’’ are set forth in part 774 

of title 23 of the CFR. The procedures 

for complying with the Surface 

Transportation Project Delivery Program 

application requirements and 

termination are set forth in part 773 of 

title 23 of the CFR. The procedures for 

participating and complying with the 

program for eliminating duplication of 

environmental reviews are set forth in 

part 778 of title 23 of the CFR. 

[FR Doc. 2020–26395 Filed 12–23–20; 8:45 am] 

BILLING CODE 4910–22–P 

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. 

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 


tkelley on DSKBCP9HB2PROD with RULES
84230 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

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 nonagency 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 

■ 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. 

■ 2. Section 0.160 is amended by: 

■ a. Removing the word ‘‘or’’ at the end 

of paragraph (d)(1); 

■ b. Removing the word ‘‘or’’ at the end 

of paragraph (d)(4); 

■ c. Removing the period at the end of 

paragraph (d)(5) and adding in its place 

‘‘; or’’; and 

■ d. Adding paragraphs (d)(6) and (e). 

The additions read as follows: 

§ 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] 

BILLING CODE 4410–12–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Safety and Environmental 

Enforcement 

30 CFR Part 250 

[Docket ID: BSEE–2020–0002; EEEE500000 

21XE1700DX EX1SF0000.EAQ000] 

RIN 1014–AA46 

Oil and Gas and Sulfur Operations in 

the Outer Continental Shelf— 

Reaffirmation of Standard Editions 

Related to the Manual of Petroleum 

Measurement Standards 

AGENCY: Bureau of Safety and 

Environmental Enforcement, Interior. 

ACTION: Direct final rule; request for 

comments. 


tkelley on DSKBCP9HB2PROD with RULES