27936 Federal Register / Vol. 87, No. 90 / Tuesday, May 10, 2022 / Rules and Regulations 

premixes prepared therefrom must bear 

expiration dates for the sealed and open 

container (established through generally 

accepted stability testing methods), 

other information required by § 70.25 of 

this chapter, a statement of the 

concentration of ethoxyquin contained 

therein (whole Antarctic krill meal 

only), and adequate directions to 

prepare a final product complying with 

the limitations prescribed in paragraph 

(c) of this section. 

(2) The presence of the color additive 

in finished fish feed prepared according 

to paragraph (c) of this section must be 

declared in accordance with § 501.4 of 

this chapter. 

(3) The presence of the color additive 

in salmonid fish that have been fed 

feeds containing Antarctic krill meal 

must be declared in accordance with 

§§ 101.22(b), (c), and (k)(2) and 

101.100(a)(2) of this chapter. 

(e) Exemption from certification. 

Certification of this color additive is not 

necessary for the protection of the 

public health, and therefore batches 

thereof are exempt from the certification 

requirements of section 721(c) of the 

Federal Food, Drug, and Cosmetic Act. 

Dated: May 5, 2022. 

Lauren K. Roth, 

Associate Commissioner for Policy. 

[FR Doc. 2022–10025 Filed 5–9–22; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF JUSTICE 

Office of the Attorney General 

28 CFR Part 50 

[Docket No. OAG 177; AG Order No. 5384– 

2022] 

RIN 1105–AB62 

Guidelines and Limitations for 

Settlement Agreements Involving 

Payments to Non-Governmental Third 

Parties 

AGENCY: Department of Justice. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: This interim final rule 

(‘‘rule’’) revokes regulations of the 

Department of Justice (‘‘Department’’) 

that codified a prohibition, subject to 

limited exceptions, on the inclusion of 

provisions in settlement agreements 

directing or providing for a payment or 

loan, in cash or in kind, to any nongovernmental person or entity that is 

not a party to the dispute. For further 

information on how the Department 

intends to approach such settlements 

going forward, interested parties should 

consult an Attorney General 

Memorandum that the Department is 

issuing on its website in conjunction 

with this rule. Comments are requested 

both as to this rule and as to that 

Memorandum. 

DATES: 

Effective date: This rule is effective 

May 10, 2022. 

Applicability date: May 5, 2022. 

Comments: Comments are due on or 

before July 11, 2022. 

ADDRESSES: To ensure proper handling 

of comments, please reference Docket 

No. OAG 177 on all electronic and 

written correspondence. The 

Department encourages the electronic 

submission of all comments through 

https://www.regulations.gov using the 

electronic comment form provided on 

that site. For ease of reference, an 

electronic copy of this document is also 

available at that website. It is not 

necessary to submit paper comments 

that duplicate the electronic 

submission, as comments submitted to 

https://www.regulations.gov will be 

posted for public review and are part of 

the official docket record. However, 

should you wish to submit written 

comments through regular or express 

mail, they should be sent to Robert 

Hinchman, Senior Counsel, Office of 

Legal Policy, U.S. Department of Justice, 

Room 4252 RFK Building, 950 

Pennsylvania Avenue NW, Washington, 

DC 20530. Comments received by mail 

will be considered timely if they are 

postmarked on or before July 11, 2022. 

The electronic Federal eRulemaking 

portal will accept comments until 

Midnight Eastern Time at the end of that 

day. 

FOR FURTHER INFORMATION CONTACT: 

Robert Hinchman, Senior Counsel, 

Office of Legal Policy, U.S. Department 

of Justice, telephone (202) 514–8059 

(not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

I. Posting of Public Comments 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection online at https://

www.regulations.gov. Information made 

available for public inspection includes 

personal identifying information (such 

as your name, address, etc.) voluntarily 

submitted by the commenter. 

You are not required to submit 

personal identifying information in 

order to comment on this rule. 

Nevertheless, if you want to submit 

personal identifying information (such 

as your name, address, etc.) as part of 

your comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also locate 

all the personal identifying information 

that you do not want posted online in 

the first paragraph of your comment and 

identify what information you want the 

agency to redact. Personal identifying 

information identified and located as set 

forth above will be placed in the 

agency’s public docket file, but not 

posted online. 

If you want to submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify the confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, the agency may choose not to 

post that comment (or to post that 

comment only partially) on https://

www.regulations.gov. Confidential 

business information identified and 

located as set forth above will not be 

placed in the public docket file, nor will 

it be posted online. 

If you want to inspect the agency’s 

public docket file in person by 

appointment, please see the FOR

FURTHER INFORMATION CONTACT section. 

II. Discussion 

A. Overview 

This rule revokes the Department’s 

regulations at 28 CFR 50.28. Going 

forward, the Department’s approach to 

settlement agreements that direct or 

provide for a payment or a loan, in cash 

or in kind, to a non-governmental 

person or entity that is not a party to the 

dispute will be governed by a new 

Attorney General Memorandum being 

issued on the Department’s website 

concurrently with this rule. 

B. Background 

For decades prior to 2017, Department 

components had entered into settlement 

agreements that involved payments to 

certain third parties as a means of 

addressing harms arising from 

violations of Federal law, particularly in 

the environmental context but in other 

contexts as well. In 2017, the Attorney 

General issued a memorandum 

prohibiting Department attorneys from 

‘‘enter[ing] into any agreement on behalf 

of the United States in settlement of 

federal claims or charges, including 

agreements settling civil litigation, 

accepting plea agreements, or deferring 

or declining prosecution in a criminal 


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Federal Register / Vol. 87, No. 90 / Tuesday, May 10, 2022 / Rules and Regulations 27937 

matter, that directs or provides for a 

payment or loan to any nongovernmental person or entity that is 

not a party to the dispute,’’ subject only 

to certain specified exceptions. 

Memorandum from the Attorney 

General, ‘‘Prohibition on Settlement 

Payments to Third Parties’’ at 1 (June 5, 

2017) (the ‘‘2017 Memorandum’’). 

Provisions reflecting the 2017 

Memorandum were added to the Justice 

Manual (https://www.justice.gov/jm/ 

justice-manual) at sections 1–17.000, 5– 

11.105, 9–16.325. 

In December 2020, the Department 

amended its regulations to add a new 28 

CFR 50.28, reflecting the prohibition set 

forth in the 2017 Memorandum ‘‘with 

certain changes . . . to clarify the scope 

of the exceptions.’’ 85 FR 81409. The 

Department specified that the 

prohibition ‘‘applies to all civil and 

criminal cases litigated under the 

direction of the Attorney General and 

includes civil settlement agreements, cy 

pres agreements or provisions, plea 

agreements, non-prosecution 

agreements, and deferred prosecution 

agreements.’’ 85 FR 81410. 

C. Revocation of 28 CFR 50.28 

After having considered the views of 

the Department’s components and their 

experience with the regulations at 28 

CFR 50.28, the Attorney General has 

concluded that the regulations at 28 

CFR 50.28 are more restrictive and less 

tailored than necessary and should 

therefore be revoked. 

When used appropriately, agreements 

providing for payments to third parties 

are lawful and allow the United States 

to more fully accomplish the primary 

goals of civil and criminal enforcement: 

Compensating victims, remedying harm, 

and punishing and deterring unlawful 

conduct. 

For example, the harms caused by 

violations of Federal environmental 

statutes, including harms to 

communities affected by environmental 

crime, can be difficult to redress directly 

in particular cases. In such 

circumstances, the Environment and 

Natural Resources Division has 

previously relied upon supplemental 

environmental projects to help achieve 

an enforcement action’s goals. Such 

projects further the aims of Federal 

environmental laws the Justice 

Department is responsible for enforcing 

by remedying the harms to the 

communities most directly impacted by 

violations of those laws. For this reason, 

they are particularly powerful tools for 

advancing environmental justice. 

In revoking 28 CFR 50.28, the 

Department is not departing from the 

principle that the goals of settlements 

include compensating victims, 

redressing harms, and punishing and 

deterring unlawful conduct. 85 FR 

81409. But policies in service of this 

principle have traditionally been 

addressed through memoranda from 

Department leadership rather than 

through regulations. The Department is 

therefore revoking 28 CFR 50.28 in its 

entirety, and the Attorney General is 

concurrently issuing a new 

Memorandum setting forth the 

Department’s policy going forward. That 

Memorandum also directs that the 

current provisions of the Justice Manual 

at sections 1–17.000, 5–11.105, and 9– 

16.325 be revised to conform to the new 

policy. 

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), and (d). The rule is effective upon 

signature. In its discretion, the 

Department is seeking postpromulgation public comment on this 

rulemaking. 

B. Regulatory Flexibility Act 

An analysis under the Regulatory 

Flexibility Act was not required for this 

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 section 

1(b) of Executive Order 12866, 

‘‘Regulatory Planning and Review,’’ and 

section 1(b) of Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review.’’ 

This 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 under section 

3(d)(3) of Executive Order 12866. 

Accordingly, this rule has not been 

reviewed by the Office of Management 

and Budget. 

D. 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.’’ 

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. It is a rule of 

internal agency practice and procedure. 

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 annually 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 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. Accordingly, it is not a 

‘‘rule’’ as that term is used in the 

Congressional Review Act, 5 U.S.C. 

804(3)(B), (C), and the reporting 

requirements of 5 U.S.C. 801 do 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 50 

Administrative practice and 

procedure. 

Accordingly, for the reasons set forth 

in the preamble, and 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 50 of title 28 of the 

Code of Federal Regulations is amended 

as follows: 

PART 50—STATEMENTS OF POLICY 

■ 1. The authority citation for part 50 

continues to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 

28 U.S.C. 509, 510, 516, and 519; 42 U.S.C. 


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27938 Federal Register / Vol. 87, No. 90 / Tuesday, May 10, 2022 / Rules and Regulations 

1921 et seq., 1973c; and Pub. L. 107–273, 116 

Stat. 1758, 1824. 

§ 50.28 [Removed and Reserved] 

■ 2. Section 50.28 is removed and 

reserved. 

Dated: May 5, 2022. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2022–10036 Filed 5–5–22; 4:15 pm] 

BILLING CODE 4410–BB–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 917 

[SATS No. KY–261–FOR; Docket ID: OSM– 

2019–0013; SIDIS SS08011000 SX064A000 

222S180110; S2D2S SS08011000 

SX064A000 22XS501520] 

Kentucky Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment, and removal of a required 

amendment. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE), are approving, subject to 

certain limitations discussed below, an 

amendment to the Kentucky regulatory 

program (Kentucky program) under the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). The regulatory provisions we are 

approving establish new bond 

requirements for providing sufficient 

financial assurances for the long-term 

treatment of unanticipated pollutional 

discharges at permitted sites. 

Consequently, we are removing a 

required amendment that we imposed 

in 2018 regarding financial assurance 

for the long-term treatment of 

discharges. We are also approving 

revisions to other various bond 

requirements. 

DATES: Effective June 9, 2022. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Castle, Field Office Director, 

Lexington Field Office, Office of Surface 

Mining Reclamation and Enforcement, 

Telephone: (859) 260–3900, Email: 

mcastle@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Kentucky Program 

II. Submission of the Amendment 

III. OSMRE’s Findings 

IV. Summary and Disposition of Comments 

IV. OSMRE’s Decision 

V. Statutory and Executive Order Reviews 

I. Background on the Kentucky 

Program 

Subject to OSMRE’s oversight, section 

503(a) of the Act permits a State to 

assume primacy for the regulation of 

surface coal mining and reclamation 

operations on non-Federal and nonIndian lands within its borders by 

demonstrating that its program includes, 

among other things, State laws and 

regulations that govern surface coal 

mining and reclamation operations in 

accordance with the Act and consistent 

with the Federal regulations. See 30 

U.S.C. 1253(a)(1) and (7). Based on these 

criteria, the Secretary of the Interior 

conditionally approved the Kentucky 

program effective May 18, 1982. You 

can find background information on the 

program, including the Secretary’s 

findings, the disposition of comments, 

and conditions of approval in the May 

18, 1982, Federal Register (47 FR 

21434). You can also find later actions 

concerning Kentucky’s program and 

program amendments at 30 CFR 917.11, 

917.12, 917.13, 917.15, 917.16, and 

917.17. The regulatory authority in 

Kentucky is Kentucky’s Energy and 

Environment Cabinet (herein referred to 

as the Cabinet). 

II. Submission of the Amendment 

By letter dated November 25, 2019 

(Administrative Record No. KY 2003), 

the Cabinet submitted an amendment to 

its program under SMCRA (30 U.S.C. 

1201 et seq.). The amendment revises 

chapter 10:015 of title 405 of the 

Kentucky Administrative Regulations 

(KAR), General bonding provisions. The 

regulatory provisions at Section 8(7), 

Bond Rate of Additional Areas, 

establish new requirements for the 

calculation of additional bond amounts 

necessary for the long-term treatment of 

unanticipated pollutional discharges 

(hereafter referred to as ‘‘discharges’’). 

Other bond requirements of a nonsubstantive nature were also included. 

See 405 KAR 10, Bond and Insurance 

Requirements, subchapter 10:015. The 

submission is intended to address 

disapprovals we made in a 2018 

decision regarding the Cabinet’s 

proposed regulations for the long-term 

treatment of discharges in a final rule 

designated KY–256–FOR (KY–256), see 

January 29, 2018, Federal Register (83 

FR 3948), and the resultant action we 

required under the authority of 30 CFR 

732.17(e) and (f). The required action is 

codified in the Kentucky program at 30 

CFR 917.16(p), Required regulatory 

program amendments. The full text of 

the program submission is available at 

https://www.regulations.gov. 

A. Background of Kentucky Program 

Amendment KY–256—In May 2012, in 

accord with 30 CFR 733.12(b), we 

notified the Cabinet that we had reason 

to believe it was not implementing, 

administering, enforcing, and 

maintaining the reclamation bond 

provisions of its approved program in a 

manner that assured ‘‘completion of the 

[applicable] reclamation plan,’’ as 

required by section 509(a) of SMCRA, 

30 U.S.C. 1259(a), Performance bonds. 

The Cabinet responded to this section 

733 notice with three submissions: One 

in September 2012, another in July 

2013, and a third in December 2013. 

The first submission was announced in 

the Federal Register on February 20, 

2013 (78 FR 11796). Subsequently, all 

three submissions were combined (and 

public comment solicited) in a single 

Federal Register document, 80 FR 

15953 (March 26, 2015), in which the 

proposed rule was designated State 

program amendment KY–256. As the 

document explained, KY–256–FOR was 

intended to address the deficiencies 

identified in the section 733 notice. 

B. Partial Approval of KY–256—We 

approved most of the provisions of KY– 

256–FOR in a final rule published in the 

Federal Register on January 29, 2018 

(83 FR 3948). One of the provisions not 

approved, and now under consideration 

in revised form, was subsection 8(7) of 

405 KAR 10:015, which consisted of 

three subsections (8(7)(a), –(b), and 

–(c)). If approved, subsection 8(7)(a) 

would have provided that, for permitted 

sites requiring long-term treatment of 

discharges, the Cabinet must calculate 

an additional bond amount based on the 

estimated annual treatment cost 

provided by the permittee and 

multiplied by twenty years. Focusing on 

this twenty-year multiplier, we 

disapproved the provision in our 

January 2018 final rule because the 

Cabinet had not demonstrated how this 

provision would assure that adequate 

bonding would be calculated for the 

long-term treatment of discharges. In 

doing so, we reaffirmed that abatement 

of unanticipated water pollution is an 

element of reclamation and noted that a 

permittee’s treatment obligation may 

extend in perpetuity. As a result, we 

found the provision less stringent than 

section 509 of SMCRA, 30 U.S.C. 1259, 

and less effective than the Federal 

regulations at 30 CFR part 800 and, on 

that basis, declined to approve it. We 

also declined to approve subsection 

8(7)(b), which would have operated in 

conjunction with subsection 8(7)(a) by 

subjecting the estimate of annual 

treatment cost specified in subsection 


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