IB 
Union Calendar No. 428 
112TH CONGRESS 
2D SESSION 
H. R. 3862 
[Report No. 112–593] 
To impose certain limitations on consent decrees and settlement agreements 
by agencies that require the agencies to take regulatory action in accord-
ance with the terms thereof, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
FEBRUARY 1, 2012 
Mr. QUAYLE (for himself, Mr. COBLE, and Mr. ROSS of Florida) introduced 
the following bill; which was referred to the Committee on the Judiciary 
JULY 11, 2012 
Additional sponsors: Mr. GALLEGLY, Mr. HUIZENGA of Michigan, Mr. KING-
STON, Mr. MCHENRY, Mr. ROKITA, Mrs. BLACKBURN, Mr. FLORES, Mr. 
HARRIS, Mr. YODER, Mr. PETERSON, Mr. SCHWEIKERT, Mr. SCALISE, 
Mr. MILLER of Florida, Mr. PITTS, and Mrs. BLACK 
JULY 11, 2012 
Reported with an amendment, committed to the Committee of the Whole 
House on the State of the Union, and ordered to be printed 
[Strike out all after the enacting clause and insert the part printed in italic] 
[For text of introduced bill, see copy of bill as introduced on February 1, 2012] 
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A BILL 
To impose certain limitations on consent decrees and settle-
ment 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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(b) IN GENERAL.—In the case of an action to be re-
solved by a consent decree or a settlement agreement de-
scribed in paragraph (1), the following shall apply: 
(1) The complaint in the action, the consent de-
cree or settlement agreement, the statutory basis for 
the consent decree or settlement agreement and its 
terms, and any award of attorneys’ fees or costs shall 
be published, including electronically, in a readily ac-
cessible manner. 
(2) Until the conclusion of an opportunity for 
affected parties to intervene in the action, a party 
may not file with the court a motion for a consent 
decree or to dismiss the case pursuant to a settlement 
agreement. 
(3) In considering a motion to intervene by any 
party that would be affected by the agency action in 
dispute, the court shall presume, subject to rebuttal, 
that the interests of that party would not be rep-
resented adequately by the current parties to the ac-
tion. In considering a motion to intervene filed by a 
State, local or Tribal government entity, the court 
shall take due account of whether the movant— 
(A) administers jointly with the defendant 
agency the statutory provisions that give rise to 
the regulatory duty alleged in the complaint; or 
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(B) administers State, local or Tribal regu-
latory authority that would be preempted by the 
defendant agency’s discharge of the regulatory 
duty alleged in the complaint. 
(4) If the court grants a motion to intervene in 
the action, the court shall include the plaintiff, the de-
fendant agency, and the intervenors in settlement dis-
cussions. Settlement efforts conducted shall be pursu-
ant to a court’s mediation or alternative dispute reso-
lution program, or by a district judge, magistrate 
judge, or special master, as determined by the as-
signed judge. 
(5) The defendant agency shall publish in the 
Federal Register and by electronic means any pro-
posed consent decree or settlement agreement for no 
fewer than 60 days of public comment before filing it 
with the court, including a statement of the statutory 
basis for the proposed consent decree or settlement 
agreement and its terms, allowing comment on any 
issue related to the matters alleged in the complaint 
or addressed or affected by the consent decree or settle-
ment agreement. 
(6) The defendant agency shall— 
(A) respond to public comments received 
under paragraph (5); and 
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(B) when moving that the court enter the 
consent decree or for dismissal pursuant to the 
settlement agreement— 
(i) inform the court of the statutory 
basis for the proposed consent decree or set-
tlement agreement and its terms; 
(ii) submit to the court a summary of 
the public comments and agency responses; 
(iii) certify the administrative record 
of the notice and comment proceeding to the 
court; and 
(iv) make that record fully accessible to 
the court. 
(7) The court shall include in the judicial record 
the administrative record certified by the agency 
under paragraph (6). 
(8) If the consent decree or settlement agreement 
requires an agency action by a date certain, the agen-
cy shall, when moving for entry of the consent decree 
or dismissal based on the settlement agreement— 
(A) inform the court of any uncompleted 
mandatory duties to take regulatory action that 
the decree or agreement does not address; 
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(B) how the decree or agreement, if ap-
proved, would affect the discharge of those duties; 
and 
(C) why the decree’s or agreement’s effects 
on the order in which the agency discharges its 
mandatory duties is in the public interest. 
(9) The court shall presume, subject to rebuttal, 
that it is proper to allow amicus participation by 
any party who filed public comments on the consent 
decree or settlement agreement during the court’s con-
sideration of a motion to enter the decree or dismiss 
the case on the basis of the agreement. 
(10) The court shall ensure that the proposed 
consent decree or settlement agreement allows suffi-
cient time and procedure for the agency to comply 
with chapter 5 of title 5, United States Code, and 
other applicable statutes that govern rule making and, 
unless contrary to the public interest, the provisions 
of any executive orders that govern rule making. 
(11) The defendant agency may, at its discre-
tion, hold a public hearing pursuant to notice in the 
Federal Register and by electronic means, on whether 
to enter into the consent decree or settlement agree-
ment. If such a hearing is held, then, in accordance 
with paragraph (6), a summary of the proceedings 
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and certification of the hearing record shall be pro-
vided to the court, access to the hearing record shall 
be given to the court, and the full hearing record shall 
be included in the judicial record. 
(12) The Attorney General, in cases litigated by 
the Department of Justice, or the head of the defend-
ant Federal agency, in cases litigated independently 
by that agency, shall certify to the court his or her 
approval of any proposed consent decree or settlement 
agreement that contains any of the following terms— 
(A) in the case of a consent decree, terms 
that— 
(i) convert into mandatory duties the 
otherwise discretionary authorities of an 
agency to propose, promulgate, revise or 
amend regulations; 
(ii) commit the agency to expend funds 
that Congress has not appropriated and 
that have not been budgeted for the action 
in question, or commit an agency to seek a 
particular appropriation or budget author-
ization; 
(iii) divest the agency of discretion 
committed to it by Congress or the Constitu-
tion, whether such discretionary power was 
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