Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 51923 

complaint was reasonable, and whether 

the mechanism to enforce the final 

judgment are clear and manageable’’). 

As the U.S. Court of Appeals for the 

District of Columbia Circuit has held, 

under the APPA a court considers, 

among other things, the relationship 

between the remedy secured and the 

specific allegations in the government’s 

complaint, whether the proposed Final 

Judgment is sufficiently clear, whether 

its enforcement mechanisms are 

sufficient, and whether it may positively 

harm third parties. See Microsoft, 56 

F.3d at 1458–62. With respect to the 

adequacy of the relief secured by the 

proposed Final Judgment, a court may 

not ‘‘make de novo determination of 

facts and issues.’’ United States v. W. 

Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 

1993) (quotation marks omitted); see 

also Microsoft, 56 F.3d at 1460–62; 

United States v. Alcoa, Inc., 152 F. 

Supp. 2d 37, 40 (D.D.C. 2001); United 

States v. Enova Corp., 107 F. Supp. 2d 

10, 16 (D.D.C. 2000); InBev, 2009 U.S. 

Dist. LEXIS 84787, at *3. Instead, ‘‘[t]he 

balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in 

the first instance, to the discretion of the 

Attorney General.’’ W. Elec. Co., 993 

F.2d at 1577 (quotation marks omitted). 

‘‘The court should bear in mind the 

flexibility of the public interest inquiry: 

the court’s function is not to determine 

whether the resulting array of rights and 

liabilities is one that will best serve 

society, but only to confirm that the 

resulting settlement is within the 

reaches of the public interest.’’ 

Microsoft, 56 F.3d at 1460 (quotation 

marks omitted); see also United States v. 

Deutsche Telekom AG, No. 19–2232 

(TJK), 2020 WL 1873555, at *7 (D.D.C. 

Apr. 14, 2020). More demanding 

requirements would ‘‘have enormous 

practical consequences for the 

government’s ability to negotiate future 

settlements,’’ contrary to congressional 

intent. Id. at 1456. ‘‘The Tunney Act 

was not intended to create a 

disincentive to the use of the consent 

decree.’’ Id. 

The United States’ predictions about 

the efficacy of the remedy are to be 

afforded deference by the Court. See, 

e.g., Microsoft, 56 F.3d at 1461 

(recognizing courts should give ‘‘due 

respect to the Justice Department’s . . . 

view of the nature of its case’’); United 

States v. Iron Mountain, Inc., 217 F. 

Supp. 3d 146, 152–53 (D.D.C. 2016) (‘‘In 

evaluating objections to settlement 

agreements under the Tunney Act, a 

court must be mindful that [t]he 

government need not prove that the 

settlements will perfectly remedy the 

alleged antitrust harms[;] it need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’) (internal citations omitted); 

United States v. Republic Servs., Inc., 

723 F. Supp. 2d 157, 160 (D.D.C. 2010) 

(noting ‘‘the deferential review to which 

the government’s proposed remedy is 

accorded’’); United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 

6 (D.D.C. 2003) (‘‘A district court must 

accord due respect to the government’s 

prediction as to the effect of proposed 

remedies, its perception of the market 

structure, and its view of the nature of 

the case.’’). The ultimate question is 

whether ‘‘the remedies [obtained by the 

Final Judgment are] so inconsonant with 

the allegations charged as to fall outside 

of the ‘reaches of the public interest.’’’ 

Microsoft, 56 F.3d at 1461 (quoting W. 

Elec. Co., 900 F.2d at 309). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459; see also U.S. Airways, 38 

F. Supp. 3d at 75 (noting that the court 

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he 

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 

In its 2004 amendments to the APPA, 

Congress made clear its intent to 

preserve the practical benefits of using 

consent judgments proposed by the 

United States in antitrust enforcement, 

Public Law 108–237 § 221, and added 

the unambiguous instruction that 

‘‘[n]othing in this section shall be 

construed to require the court to 

conduct an evidentiary hearing or to 

require the court to permit anyone to 

intervene.’’ 15 U.S.C. 16(e)(2); see also 

U.S. Airways, 38 F. Supp. 3d at 76 

(indicating that a court is not required 

to hold an evidentiary hearing or to 

permit intervenors as part of its review 

under the Tunney Act). This language 

explicitly wrote into the statute what 

Congress intended when it first enacted 

the Tunney Act in 1974. As Senator 

Tunney explained: ‘‘[t]he court is 

nowhere compelled to go to trial or to 

engage in extended proceedings which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Cong. Rec. 24,598 (1973) 

(statement of Sen. Tunney). ‘‘A court 

can make its public interest 

determination based on the competitive 

impact statement and response to public 

comments alone.’’ U.S. Airways, 38 F. 

Supp. 3d at 76 (citing Enova Corp., 107 

F. Supp. 2d at 17). 

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Date: September 2, 2021. 

Respectfully submitted, 

lllllllllllllllllllll

Kenneth A. Libby, 

Special Attorney, U.S. Department of Justice, 

Antitrust Division, c/o Federal Trade 

Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580, Phone: (202) 326– 

2694, Email: klibby@ftc.gov. 

[FR Doc. 2021–20149 Filed 9–16–21; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Proposed 

Consent Decree Under the Clean Air 

Act 

On September 13, 2021, the 

Department of Justice lodged a proposed 

Consent Decree with the United States 

District Court for the Southern District 

of Texas in the lawsuit entitled United 

States of America v. Formosa Plastics 

Corporation, Texas, Civil Action No. 

21–00043. 

In this action, the United States, on 

behalf of the U.S. Environmental 

Protection Agency, filed a Complaint 

and proposed Consent Decree pertaining 

to Clean Air Act (‘‘CAA’’) violations at 

the petrochemical manufacturing plant 

(‘‘Facility’’) owned and operated by 

Formosa Plastics Corporation, Texas 

(‘‘Defendant’’) in Point Comfort, Texas. 

This case stems in part from a May 2, 

2013 accidental release of an extremely 

hazardous substance that caused a fire 

and explosion at the Facility that 

resulted in multiple injuries to workers. 

In the Complaint, the United States 

alleged that the Defendant violated 

Section 112(r)(1) of the CAA, 42 U.S.C. 

51924 Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Notices 

7412(r)(1), by failing to identify risks 

associated with accidental releases of 

extremely hazardous substances and 

failing to design and maintain a safe 

facility. The Complaint also alleges 

numerous violations of Section 112(r)(7) 

of the CAA, 42 U.S.C. 7412(r)(7), and 

the Chemical Accident Prevention 

regulations promulgated at 40 CFR part 

68, including failure to implement safe 

work practices and failure to conduct 

mechanical integrity inspections and 

tests. Under the proposed settlement, 

the Defendant will pay $2,850,000 in 

civil penalties and will be required to 

update its response and personal 

protection plans to prevent employee 

injury, conduct a third-party audit of its 

risk management practices, perform 

corrective action based on the audit 

results, and develop key performance 

indicators to evaluate future 

compliance. 

The publication of this notice opens 

a period for public comment on the 

proposed Consent Decree. Comments 

should be addressed to the Assistant 

Attorney General, Environment and 

Natural Resources Division, and should 

refer to United States of America v. 

Formosa Plastics Corporation, Texas, 

D.J. Ref. No. 90–5–2–1–08995/1. All 

comments must be submitted no later 

than thirty (30) days after the 

publication date of this notice. 

Comments may be submitted either by 

email or by mail: 

To submit 

comments: Send them to: 

By email ....... pubcomment-ees.enrd@

usdoj.gov. 

By mail ......... Assistant Attorney General, 

U.S. DOJ—ENRD, P.O. 

Box 7611, Washington, DC 

20044–7611. 

During the public comment period, 

the proposed Consent Decree may be 

examined and downloaded at this 

Justice Department website: http://

www.justice.gov/enrd/consent-decrees. 

We will provide a paper copy of the 

proposed Consent Decree upon written 

request and payment of reproduction 

costs. Please mail your request and 

payment to: Consent Decree Library, 

U.S. DOJ—ENRD, P.O. Box 7611, 

Washington, DC 20044–7611. 

Please enclose a check or money order 

for $11.25 (25 cents per page 

reproduction cost) payable to the United 

States Treasury. 

Thomas Carroll, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 2021–20121 Filed 9–16–21; 8:45 am] 

BILLING CODE 4410–15–P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

[NARA–21–0013; NARA–2021–045] 

Records Schedules; Availability and 

Request for Comments 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice of availability of 

proposed records schedules; request for 

comments. 

SUMMARY: The National Archives and 

Records Administration (NARA) 

publishes notice of certain Federal 

agency requests for records disposition 

authority (records schedules). We 

publish notice in the Federal Register 

and on regulations.gov for records 

schedules in which agencies propose to 

dispose of records they no longer need 

to conduct agency business. We invite 

public comments on such records 

schedules. 

DATES: NARA must receive comments 

by November 1, 2021. 

ADDRESSES: You may submit comments 

by the following method. You must cite 

the control number, which appears on 

the records schedule in parentheses 

after the name of the agency that 

submitted the schedule. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. 

Due to COVID–19 building closures, 

we are currently temporarily not 

accepting comments by mail. However, 

if you are unable to comment via 

regulations.gov, you may contact 

request.schedule@nara.gov for 

instructions on submitting your 

comment. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Keravuori, Regulatory and 

External Policy Program Manager, by 

email at regulation_comments@

nara.gov. For information about records 

schedules, contact Records Management 

Operations by email at 

request.schedule@nara.gov, by mail at 

the address above, or by phone at 301– 

837–1799. 

SUPPLEMENTARY INFORMATION: 

Public Comment Procedures 

We are publishing notice of records 

schedules in which agencies propose to 

dispose of records they no longer need 

to conduct agency business. We invite 

public comments on these records 

schedules, as required by 44 U.S.C. 

3303a(a), and list the schedules at the 

end of this notice by agency and 

subdivision requesting disposition 

authority. 

In addition, this notice lists the 

organizational unit(s) accumulating the 

records or states that the schedule has 

agency-wide applicability. It also 

provides the control number assigned to 

each schedule, which you will need if 

you submit comments on that schedule. 

We have uploaded the records 

schedules and accompanying appraisal 

memoranda to the regulations.gov 

docket for this notice as ‘‘other’’ 

documents. Each records schedule 

contains a full description of the records 

at the file unit level as well as their 

proposed disposition. The appraisal 

memorandum for the schedule includes 

information about the records. 

We will post comments, including 

any personal information and 

attachments, to the public docket 

unchanged. Because comments are 

public, you are responsible for ensuring 

that you do not include any confidential 

or other information that you or a third 

party may not wish to be publicly 

posted. If you want to submit a 

comment with confidential information 

or cannot otherwise use the 

regulations.gov portal, you may contact 

request.schedule@nara.gov for 

instructions on submitting your 

comment. 

We will consider all comments 

submitted by the posted deadline and 

consult as needed with the Federal 

agency seeking the disposition 

authority. After considering comments, 

we will post on regulations.gov a 

‘‘Consolidated Reply’’ summarizing the 

comments, responding to them, and 

noting any changes we have made to the 

proposed records schedule. We will 

then send the schedule for final 

approval by the Archivist of the United 

States. You may elect at regulations.gov 

to receive updates on the docket, 

including an alert when we post the 

Consolidated Reply, whether or not you 

submit a comment. If you have a 

question, you can submit it as a 

comment, and can also submit any 

concerns or comments you would have 

to a possible response to the question. 

We will address these items in 

consolidated replies along with any 

other comments submitted on that 

schedule. 

We will post schedules on our 

website in the Records Control Schedule 

(RCS) Repository, at https://

www.archives.gov/records-mgmt/rcs,