Topic: Government Operations — Bureaucracy
Subject: Government operations and politics
Date: 2015-02-04 00:00:00

Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2016

TITLE I--SUNSHINE FOR REGULATORY DECREES AND SETTLEMENTS

Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2016

(Sec. 102) This Act defines: (1) "covered civil action" as a civil action seeking to compel agency action and alleging that an agency is unlawfully withholding or unreasonably delaying an agency action relating to a regulatory action that would affect the rights of private persons other than the person bringing the action or a state, local, or tribal government; and (2) "covered consent decree" or "covered settlement agreement" as a consent decree or settlement agreement entered into in a covered civil action and any other consent decree or settlement agreement that requires agency action relating to a regulatory action that affects the rights of private persons other than the person bringing the action or a state, local, or tribal government.

(Sec. 103) An agency against which a covered civil action is brought must publish the notice of intent to sue and the complaint in a readily accessible manner, including by making such notice and complaint available online not later than 15 days after receiving service of such notice or complaint.

The opportunity for affected parties to intervene in a covered civil action must conclude before a covered consent decree or settlement agreement may be entered by a court.

The Act sets forth factors that a court must be consider in granting a motion to intervene in a covered civil action or a civil action in which a covered consent decree or settlement agreement has been proposed. If the court grants intervention, it must conduct mediation or arbitration to settle a covered civil action and include any party that intervenes in the action.

The agency seeking to enter a covered consent decree or settlement agreement shall publish online and in the Federal Register, not later than 60 days before it is filed with the court, the proposed covered consent decree or settlement agreement and a statement providing the statutory basis for the decree or agreement and a description of its terms. The agency shall accept public comments during that period and may hold public hearings on whether to enter into a proposed covered consent decree or settlement agreement.

The Department of Justice (DOJ) or an agency head, if an agency is litigating a matter independently, must certify to the court that DOJ or the agency head approves of: (1) any proposed covered consent decree that includes terms that convert into a nondiscretionary duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations, that commit an agency to expend funds that have not been appropriated and budgeted or to seek a particular appropriation or budget authorization, that divest an agency of discretion committed to it by statute or the Constitution, or that otherwise afford any relief that the court could not enter under its own authority; or (2) any proposed covered settlement agreement that includes terms that provide a remedy for a failure by the agency to comply with the terms of the agreement other than the revival of the civil action resolved by the agreement, that interfere with the authority of an agency to revise, amend, or issue rules, or that commit the agency to expend funds that have not been appropriated and budgeted or to exercise in a particular way discretion which was committed to the agency by statute or the Constitution.

A court considering a covered consent decree or settlement agreement must adopt a rebuttable presumption favoring participation of parties as amicus curiae and must ensure that a decree or agreement allows sufficient time and incorporates adequate procedures for agencies to comply with requirements of the Administrative Procedure Act and other applicable statutes that govern rulemaking and, unless contrary to the public interest, any executive order that governs rulemaking.

Each agency must submit to Congress an annual report that includes: (1) the number, identity, and content of covered civil actions brought against, and covered consent decrees or settlement agreements entered against or into by, the agency; and (2) any award of attorneys fees or costs in a civil action resolved by a covered consent decree or settlement agreement entered against or into by the agency.

(Sec. 104) A court must grant de novo review of a covered consent decree or settlement agreement if an agency files a motion to modify such decree or agreement on the basis that its terms are no longer fully in the public interest due to the agency's obligations to fulfill other duties or due to changed facts and circumstances.

(Sec. 105) This Act is applicable to: (1) any covered civil action filed on or after its enactment date, and (2) any covered consent decree or settlement agreement proposed to a court on or after such date.

TITLE II--ALL ECONOMIC REGULATIONS ARE TRANSPARENT

All Economic Regulations are Transparent Act of 2016 or the ALERT Act of 2016

(Sec. 202) This Act requires each federal agency to submit a monthly report to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) for each rule such agency expects to propose or finalize during the following year. Such reports shall include: (1) a summary of the nature of the rule, including the regulation identifier and docket number for the rule; (2) the objectives of and legal basis for issuance of the rule; (3) the stage of the rulemaking as of the date of submission; and (4) whether the rule is subject to periodic review as a rule with a significant economic impact.

Each agency must submit a monthly report for any rule expected to be finalized during the following year for which the agency has issued a general notice of proposed rulemaking. Such reports must include an approximate schedule for completing action on the rule and an estimate of its cost and economic effects, including the imposition of unfunded mandates and impact on job creation. OIRA must make such monthly reports publicly available on the Internet.

OIRA must publish in the Federal Register, not later than October 1 of each year: (1) information that OIRA receives from each agency; (2) the number of rules and a list of each such rule that was proposed by each agency and each rule that was finalized by each agency; (3) the number of agency actions that repealed a rule, reduced the scope or cost of a rule, or accelerated the expiration date of a rule; (4) the total cost of all rules proposed or finalized; (5) the total costs of any unfunded mandates imposed by such rules; and (6) the number of rules for which an estimate of the cost of the rule was not available.

OIRA must make publicly available on the Internet, not later than October 1 of each year: (1) the analysis of the costs or benefits of each proposed or final rule issued by an agency for the previous year, (2) the docket number and regulation identifier number for each such rule, (3) the number of rules reviewed by OMB for the previous year, (4) the number of rules for which a review by the head of an agency was completed, (5) the number of rules submitted to the Government Accountability Office, and (6) the number of rules for which a resolution of disapproval was introduced in Congress.

A rule may not take effect until the information required by this Act is posted on the Internet for not less than six months, unless the agency proposing the rule seeks an exemption under the Freedom of Information Act or the President determines by executive order that such rule is necessary: (1) because of an imminent threat to health or safety or other emergency, (2) for the enforcement of criminal laws, (3) for national security, or (4) to implement an international trade agreement. This requirement is effective eight months after the enactment date of this Act.

TITLE III--PROVIDING ACCOUNTABILITY THROUGH TRANSPARENCY

Providing Accountability Through Transparency Act of 2016

(Sec. 302) This Act requires the general notice of proposed rule making by a federal agency to include the Internet address of a plain-language summary, not exceeding 100 words, of the proposed rule, which shall be posted on the regulations.gov website.