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Union Calendar No. 170 

113TH CONGRESS 

1ST SESSION H. R. 1493 

[Report No. 113–230] 

To impose certain limitations on consent decrees and settlement agreements 

by agencies that require the agencies to take regulatory action in accordance with the terms thereof, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 11, 2013 

Mr. COLLINS of Georgia (for himself, Mr. WESTMORELAND, Mr. FRANKS of 

Arizona, Mr. BISHOP of Utah, Mr. CRAMER, Mr. HOLDING, Mrs. 

ELLMERS, Mr. YOHO, Mr. STUTZMAN, Mr. SOUTHERLAND, Mr. PERRY, 

Mr. BACHUS, Mr. COBLE, Mr. GARDNER, Mr. GRAVES of Georgia, Mr. 

MEADOWS, Mr. GOWDY, Mr. GOHMERT, Mr. BENTIVOLIO, Mr. 

WENSTRUP, Mr. PRICE of Georgia, Mr. GINGREY of Georgia, Mr. BROUN

of Georgia, Mr. DAINES, and Mr. KINGSTON) introduced the following 

bill; which was referred to the Committee on the Judiciary 

SEPTEMBER 26, 2013 

Additional sponsors: Mr. FARENTHOLD, Mr. LATTA, Mr. ROKITA, Mrs. 

CAPITO, Mr. ISSA, Mr. NUNNELEE, and Mr. SMITH of Missouri 

SEPTEMBER 26, 2013 

Committed to the Committee of the Whole House on the State of the Union 

and ordered to be printed 


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A BILL 

To impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies 

to take regulatory action in accordance with the terms 

thereof, and for other purposes. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Sunshine for Regu5 latory Decrees and Settlements Act of 2013’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 

8 (1) the terms ‘‘agency’’ and ‘‘agency action’’ 

9 have the meanings given those terms under section 

10 551 of title 5, United States Code; 

11 (2) the term ‘‘covered civil action’’ means a civil 

12 action— 

13 (A) seeking to compel agency action; 

14 (B) alleging that the agency is unlawfully 

15 withholding or unreasonably delaying an agency 

16 action relating to a regulatory action that would 

17 affect the rights of— 

18 (i) private persons other than the per19 son bringing the action; or 

20 (ii) a State, local, or tribal govern21 ment; and 

22 (C) brought under— 

23 (i) chapter 7 of title 5, United States 

24 Code; or 


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1 (ii) any other statute authorizing such 

2 an action; 

3 (3) the term ‘‘covered consent decree’’ means— 

4 (A) a consent decree entered into in a cov5 ered civil action; and 

6 (B) any other consent decree that requires 

7 agency action relating to a regulatory action 

8 that affects the rights of— 

9 (i) private persons other than the per10 son bringing the action; or 

11 (ii) a State, local, or tribal govern12 ment; 

13 (4) the term ‘‘covered consent decree or settle14 ment agreement’’ means a covered consent decree 

15 and a covered settlement agreement; and 

16 (5) the term ‘‘covered settlement agreement’’ 

17 means— 

18 (A) a settlement agreement entered into in 

19 a covered civil action; and 

20 (B) any other settlement agreement that 

21 requires agency action relating to a regulatory 

22 action that affects the rights of— 

23 (i) private persons other than the per24 son bringing the action; or 


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1 (ii) a State, local, or tribal govern2 ment. 

3 SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM. 

4 (a) PLEADINGS AND PRELIMINARY MATTERS.— 

5 (1) IN GENERAL.—In any covered civil action, 

6 the agency against which the covered civil action is 

7 brought shall publish the notice of intent to sue and 

8 the complaint in a readily accessible manner, includ9 ing by making the notice of intent to sue and the 

10 complaint available online not later than 15 days 

11 after receiving service of the notice of intent to sue 

12 or complaint, respectively. 

13 (2) ENTRY OF A COVERED CONSENT DECREE

14 OR SETTLEMENT AGREEMENT.—A party may not 

15 make a motion for entry of a covered consent decree 

16 or to dismiss a civil action pursuant to a covered set17 tlement agreement until after the end of proceedings 

18 in accordance with paragraph (1) and subpara19 graphs (A) and (B) of paragraph (2) of subsection 

20 (d) or subsection (d)(3)(A), whichever is later. 

21 (b) INTERVENTION.— 

22 (1) REBUTTABLE PRESUMPTION.—In consid23 ering a motion to intervene in a covered civil action 

24 or a civil action in which a covered consent decree 

25 or settlement agreement has been proposed that is 


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1 filed by a person who alleges that the agency action 

2 in dispute would affect the person, the court shall 

3 presume, subject to rebuttal, that the interests of 

4 the person would not be represented adequately by 

5 the existing parties to the action. 

6 (2) STATE, LOCAL, AND TRIBAL GOVERN7 MENTS.—In considering a motion to intervene in a 

8 covered civil action or a civil action in which a cov9 ered consent decree or settlement agreement has 

10 been proposed that is filed by a State, local, or tribal 

11 government, the court shall take due account of 

12 whether the movant— 

13 (A) administers jointly with an agency that 

14 is a defendant in the action the statutory provi15 sions that give rise to the regulatory action to 

16 which the action relates; or 

17 (B) administers an authority under State, 

18 local, or tribal law that would be preempted by 

19 the regulatory action to which the action re20 lates. 

21 (c) SETTLEMENT NEGOTIATIONS.—Efforts to settle 

22 a covered civil action or otherwise reach an agreement on 

23 a covered consent decree or settlement agreement shall— 

24 (1) be conducted pursuant to the mediation or 

25 alternative dispute resolution program of the court 


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1 or by a district judge other than the presiding judge, 

2 magistrate judge, or special master, as determined 

3 appropriate by the presiding judge; and 

4 (2) include any party that intervenes in the ac5 tion. 

6 (d) PUBLICATION OF AND COMMENT ON COVERED

7 CONSENT DECREES OR SETTLEMENT AGREEMENTS.— 

8 (1) IN GENERAL.—Not later than 60 days be9 fore the date on which a covered consent decree or 

10 settlement agreement is filed with a court, the agen11 cy seeking to enter the covered consent decree or 

12 settlement agreement shall publish in the Federal 

13 Register and online— 

14 (A) the proposed covered consent decree or 

15 settlement agreement; and 

16 (B) a statement providing— 

17 (i) the statutory basis for the covered 

18 consent decree or settlement agreement; 

19 and 

20 (ii) a description of the terms of the 

21 covered consent decree or settlement agree22 ment, including whether it provides for the 

23 award of attorneys’ fees or costs and, if so, 

24 the basis for including the award. 

25 (2) PUBLIC COMMENT.— 


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1 (A) IN GENERAL.—An agency seeking to 

2 enter a covered consent decree or settlement 

3 agreement shall accept public comment during 

4 the period described in paragraph (1) on any 

5 issue relating to the matters alleged in the com6 plaint in the applicable civil action or addressed 

7 or affected by the proposed covered consent de8 cree or settlement agreement. 

9 (B) RESPONSE TO COMMENTS.—An agency 

10 shall respond to any comment received under 

11 subparagraph (A). 

12 (C) SUBMISSIONS TO COURT.—When mov13 ing that the court enter a proposed covered con14 sent decree or settlement agreement or for dis15 missal pursuant to a proposed covered consent 

16 decree or settlement agreement, an agency 

17 shall— 

18 (i) inform the court of the statutory 

19 basis for the proposed covered consent de20 cree or settlement agreement and its 

21 terms; 

22 (ii) submit to the court a summary of 

23 the comments received under subparagraph 

24 (A) and the response of the agency to the 

25 comments; 


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1 (iii) submit to the court a certified 

2 index of the administrative record of the 

3 notice and comment proceeding; and 

4 (iv) make the administrative record 

5 described in clause (iii) fully accessible to 

6 the court. 

7 (D) INCLUSION IN RECORD.—The court 

8 shall include in the court record for a civil ac9 tion the certified index of the administrative 

10 record submitted by an agency under subpara11 graph (C)(iii) and any documents listed in the 

12 index which any party or amicus curiae appear13 ing before the court in the action submits to the 

14 court. 

15 (3) PUBLIC HEARINGS PERMITTED.— 

16 (A) IN GENERAL.—After providing notice 

17 in the Federal Register and online, an agency 

18 may hold a public hearing regarding whether to 

19 enter into a proposed covered consent decree or 

20 settlement agreement. 

21 (B) RECORD.—If an agency holds a public 

22 hearing under subparagraph (A)— 

23 (i) the agency shall— 

24 (I) submit to the court a sum25 mary of the proceedings; 


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1 (II) submit to the court a cer2 tified index of the hearing record; and 

3 (III) provide access to the hear4 ing record to the court; and 

5 (ii) the full hearing record shall be in6 cluded in the court record. 

7 (4) MANDATORY DEADLINES.—If a proposed 

8 covered consent decree or settlement agreement re9 quires an agency action by a date certain, the agen10 cy shall, when moving for entry of the covered con11 sent decree or settlement agreement or dismissal 

12 based on the covered consent decree or settlement 

13 agreement, inform the court of— 

14 (A) any required regulatory action the 

15 agency has not taken that the covered consent 

16 decree or settlement agreement does not ad17 dress; 

18 (B) how the covered consent decree or set19 tlement agreement, if approved, would affect 

20 the discharge of the duties described in sub21 paragraph (A); and 

22 (C) why the effects of the covered consent 

23 decree or settlement agreement on the manner 

24 in which the agency discharges its duties is in 

25 the public interest. 


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1 (e) SUBMISSION BY THE GOVERNMENT.— 

2 (1) IN GENERAL.—For any proposed covered 

3 consent decree or settlement agreement that con4 tains a term described in paragraph (2), the Attor5 ney General or, if the matter is being litigated inde6 pendently by an agency, the head of the agency shall 

7 submit to the court a certification that the Attorney 

8 General or head of the agency approves the proposed 

9 covered consent decree or settlement agreement. The 

10 Attorney General or head of the agency shall person11 ally sign any certification submitted under this para12 graph. 

13 (2) TERMS.—A term described in this para14 graph is— 

15 (A) in the case of a covered consent decree, 

16 a term that— 

17 (i) converts into a nondiscretionary 

18 duty a discretionary authority of an agency 

19 to propose, promulgate, revise, or amend 

20 regulations; 

21 (ii) commits an agency to expend 

22 funds that have not been appropriated and 

23 that have not been budgeted for the regu24 latory action in question; 


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1 (iii) commits an agency to seek a par2 ticular appropriation or budget authoriza3 tion; 

4 (iv) divests an agency of discretion 

5 committed to the agency by statute or the 

6 Constitution of the United States, without 

7 regard to whether the discretion was 

8 granted to respond to changing cir9 cumstances, to make policy or managerial 

10 choices, or to protect the rights of third 

11 parties; or 

12 (v) otherwise affords relief that the 

13 court could not enter under its own au14 thority upon a final judgment in the civil 

15 action; or 

16 (B) in the case of a covered settlement 

17 agreement, a term— 

18 (i) that provides a remedy for a fail19 ure by the agency to comply with the 

20 terms of the covered settlement agreement 

21 other than the revival of the civil action re22 solved by the covered settlement agree23 ment; and 

24 (ii) that— 


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1 (I) interferes with the authority 

2 of an agency to revise, amend, or 

3 issue rules under the procedures set 

4 forth in chapter 5 of title 5, United 

5 States Code, or any other statute or 

6 Executive order prescribing rule7 making procedures for a rulemaking 

8 that is the subject of the covered set9 tlement agreement; 

10 (II) commits the agency to ex11 pend funds that have not been appro12 priated and that have not been budg13 eted for the regulatory action in ques14 tion; or 

15 (III) for such a covered settle16 ment agreement that commits the 

17 agency to exercise in a particular way 

18 discretion which was committed to the 

19 agency by statute or the Constitution 

20 of the United States to respond to 

21 changing circumstances, to make pol22 icy or managerial choices, or to pro23 tect the rights of third parties. 

24 (f) REVIEW BY COURT.— 


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1 (1) AMICUS.—A court considering a proposed 

2 covered consent decree or settlement agreement shall 

3 presume, subject to rebuttal, that it is proper to 

4 allow amicus participation relating to the covered 

5 consent decree or settlement agreement by any per6 son who filed public comments or participated in a 

7 public hearing on the covered consent decree or set8 tlement agreement under paragraph (2) or (3) of 

9 subsection (d). 

10 (2) REVIEW OF DEADLINES.— 

11 (A) PROPOSED COVERED CONSENT DE12 CREES.—For a proposed covered consent de13 cree, a court shall not approve the covered con14 sent decree unless the proposed covered consent 

15 decree allows sufficient time and incorporates 

16 adequate procedures for the agency to comply 

17 with chapter 5 of title 5, United States Code, 

18 and other applicable statutes that govern rule19 making and, unless contrary to the public inter20 est, the provisions of any Executive order that 

21 governs rulemaking. 

22 (B) PROPOSED COVERED SETTLEMENT

23 AGREEMENTS.—For a proposed covered settle24 ment agreement, a court shall ensure that the 

25 covered settlement agreement allows sufficient 


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1 time and incorporates adequate procedures for 

2 the agency to comply with chapter 5 of title 5, 

3 United States Code, and other applicable stat4 utes that govern rulemaking and, unless con5 trary to the public interest, the provisions of 

6 any Executive order that governs rulemaking. 

7 (g) ANNUAL REPORTS.—Each agency shall submit to 

8 Congress an annual report that, for the year covered by 

9 the report, includes— 

10 (1) the number, identity, and content of covered 

11 civil actions brought against and covered consent de12 crees or settlement agreements entered against or 

13 into by the agency; and 

14 (2) a description of the statutory basis for— 

15 (A) each covered consent decree or settle16 ment agreement entered against or into by the 

17 agency; and 

18 (B) any award of attorneys fees or costs in 

19 a civil action resolved by a covered consent de20 cree or settlement agreement entered against or 

21 into by the agency. 

22 SEC. 4. MOTIONS TO MODIFY CONSENT DECREES. 

23 If an agency moves a court to modify a covered con24 sent decree or settlement agreement and the basis of the 

25 motion is that the terms of the covered consent decree or 


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1 settlement agreement are no longer fully in the public in2 terest due to the obligations of the agency to fulfill other 

3 duties or due to changed facts and circumstances, the 

4 court shall review the motion and the covered consent de5 cree or settlement agreement de novo. 

6 SEC. 5. EFFECTIVE DATE. 

7 This Act shall apply to— 

8 (1) any covered civil action filed on or after the 

9 date of enactment of this Act; and 

10 (2) any covered consent decree or settlement 

11 agreement proposed to a court on or after the date 

12 of enactment of this Act. 


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Union Calendar No. 170 

113TH CONGRESS 

1ST SESSION H. R. 1493 

[Report No. 113–230] 

A BILL 

To impose certain limitations on consent decrees 

purposes. accordance with the terms thereof, and for other quire the agencies to take regulatory action in and settlement agreements by agencies that reSEPTEMBER 26, 2013 

Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 


tkelley on DSK3SPTVN1PROD with BILLS