Approval of Civil Consent Decrees With State and Local Governmental Entities

• Published date: 28 December 2020
• Citation: 85 FR 84229
• Record Number: 2020-27190
• Section: Rules and Regulations
• Court: The Attorney General Office

84229

Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations

PART 622—ENVIRONMENTAL IMPACT

AND RELATED PROCEDURES

Subpart A—Environmental Procedures

■7. The authority citation for subpart A

of part 622 is revised to read as follows:

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C.

303 and 5323(q); 23 U.S.C. 139, 326, 327, and

330; Pub. L. 109–59, 119 Stat. 1144, Sections

6002 and 6010; 40 CFR parts 1500–1508; 49

CFR 1.81; Pub. L. 112–141, 126 Stat.405,

Sections 1315, 1316, 1317, and 1318; and

Pub. L. 114–94, Section 1309.

■8. Revise § 622.101 to read as follows:

§ 622.101 Cross-reference to procedures.

The procedures for complying with

the National Environmental Policy Act

of 1969, as amended (42 U.S.C. 4321 et

seq.), and related statutes, regulations,

and Executive Orders are set forth in

part 771 of title 23 of the CFR. The

procedures for complying with 49

U.S.C. 303, commonly known as

‘‘Section 4(f),’’ are set forth in part 774

of title 23 of the CFR. The procedures

for complying with the Surface

Transportation Project Delivery Program

application requirements and

termination are set forth in part 773 of

title 23 of the CFR. The procedures for

participating and complying with the

program for eliminating duplication of

environmental reviews are set forth in

part 778 of title 23 of the CFR.

[FR Doc. 2020–26395 Filed 12–23–20; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 0

[Docket No. OAG 162; AG Order No. 4926–

2020]

Approval of Civil Consent Decrees

With State and Local Governmental

Entities

AGENCY

: Office of the Attorney General,

Justice.

ACTION

: Final rule.

SUMMARY

: This final rule amends the

regulations of the Department of Justice

(‘‘Department’’) setting forth the

approval procedures to be used when a

civil action against a State or local

governmental entity is resolved by

consent decree, prior to the finalization

of that agreement.

DATES

: This rule is effective December

28, 2020.

FOR FURTHER INFORMATION CONTACT

: J.

Taylor McConkie, Deputy Associate

Attorney General, Department of Justice,

Washington, DC 20530; telephone: (202)

514–9500 (not a toll-free number).

SUPPLEMENTARY INFORMATION

: In

enforcing Federal law, the Department

may bring lawsuits against State and

local governmental entities. State

governments are sovereigns with special

and protected roles under our

constitutional order. Accordingly, the

Department must ensure that its

practices in such cases are in the

interests of justice, transparent, and

consistent with the impartial rule of law

and fundamental constitutional

principles, including federalism and

democratic control and accountability.

On November 7, 2018, Attorney

General Jeff Sessions issued a

memorandum (‘‘November 7

memorandum’’ or ‘‘memorandum’’) to

the heads of the Department’s civil

litigating components and the United

States Attorneys addressing many of the

particular considerations arising when a

civil action against a State or local

government is resolved by consent

decree or settlement agreement.

Principles and Procedures for Civil

Consent Decrees and Settlement

Agreements with State and Local

Government Entities (Nov. 7, 2018)

(available at https://www.justice.gov/

opa/press-release/file/1109681/

download).

As that memorandum explained,

while consent decrees may be necessary

and appropriate to secure compliance

with Federal law, Federal court decrees

that impose wide-ranging and long-term

obligations on, or require ongoing

judicial supervision of, State or local

governments are extraordinary remedies

that ‘‘raise sensitive federalism

concerns.’’ Id. at 2 (citing Horne v.

Flores, 557 U.S. 433, 448 (2009)). It is

appropriate that the Department should

exercise special caution before entering

into a consent decree with a State or

local governmental entity. While such

consent decrees can be appropriate

settlement vehicles in limited

circumstances, they should be

employed carefully and only after

review and approval of senior

leadership of the Department. Id. at 3–

4. To that end, the November 7

memorandum set forth important

principles to guide the development of

consent decrees with State or local

governmental entities, including

limitations on the circumstances in

which a consent decree with a State or

local governmental entity may be

appropriate, the substantive

requirements for such consent decrees,

internal notification requirements

regarding the initiation of negotiation

for consent decrees, and a requirement

of review and approval of senior

leadership of the Department before a

consent decree is agreed to by the

United States or submitted to the court

for entry.

The principles of the November 7

memorandum are applicable, by its

terms, to all civil litigation conducted

by the Department that involves any

civil consent decrees or settlement

agreements with State or local

governmental entities. However, it is

appropriate to amend the Department’s

settlement regulations to effectuate one

aspect addressed by the memorandum,

i.e., the requirement for leadership

approval of consent decrees prior to the

agreement or submission to a court for

entry. As noted in the memorandum

(pages 2 n.3 and 3 n.4), the

Department’s existing regulations on the

delegation of settlement authority

govern the requirements for certain

settlements to be approved by the

Department’s senior leadership. This

final rule amends the existing

settlement regulations to add a new

paragraph codifying the requirement for

the relevant Assistant Attorney General

of the civil litigating division (or the

United States Attorney to whom

settlement authority has been

redelegated under 28 CFR 0.168) to

approve and submit consent decrees

involving State or local government

entities for approval by the Deputy

Attorney General or the Associate

Attorney General if the consent decree

would (1) place a court in a long-term

position of monitoring compliance by a

State or local governmental entity; (2)

create long-term structural or

programmatic obligations, or long-term,

indeterminate financial obligations, for

a State or local governmental entity; or

(3) otherwise raise novel questions of

law or policy that merit review by

senior Department leadership. However,

consistent with the November 7

memorandum at page 3 n.5, this new

approval requirement does not apply

where use of a consent decree is

required by statute or regulation or the

consent decree is limited to the payment

of a sum certain of money or

performance of a specific environmental

removal action.

Accordingly, to achieve the foregoing

objectives, before a consent decree that

comes within one of the categories set

forth above is agreed to by the United

States or submitted to a court for entry,

it must be approved by the United

States Attorney or the Assistant

Attorney General for the litigating

component responsible for the subject

matter of the consent decree and by the

Deputy Attorney General or the

VerDate Sep<11>2014 16:58 Dec 26, 2020 Jkt 253001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\28DER1.SGM 28DER1

tkelley on DSKBCP9HB2PROD with RULES

84230

Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations

Associate Attorney General, in

accordance with the standard reporting

structure of the Department.

Regulatory Certifications

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), (d).

Regulatory Flexibility Act

This regulation will not have an

impact on small entities because it

pertains to personnel and administrative

matters affecting the Department. A

Regulatory Flexibility Analysis was not

required for this final 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).

Executive Orders 12866, 13563, and

13771—Regulatory Review

This regulation has been drafted and

reviewed in accordance with Executive

Order 12866, ‘‘Regulatory Planning and

Review,’’ section 1(b), ‘‘The Principles

of Regulation,’’ and Executive Order

13563, ‘‘Improving Regulation and

Regulatory Review,’’ section 1, ‘‘General

Principles of Regulation.’’

This final 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. See Executive

Order 12866, section 3(d)(3).

Accordingly, this rule has not been

reviewed by the Office of Management

and Budget.

This rule is not subject to the

requirements of Executive Order 13771

because it is ‘‘related to agency

organization, management, or

personnel’’ and thus not a ‘‘rule’’ under

Executive Order 13771, section 4(b).

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.

Executive Order 13132—Federalism

This rule provides for appropriate

leadership review by the Department

prior to the finalization of consent

decrees involving State or local

governmental entities, in order to better

ensure their special sovereign and

protected roles under our constitutional

order. This is not a substantive rule but

is a rule of internal agency management,

practice, and procedure regarding the

delegation of the Attorney General’s

litigation authority for the internal

review of certain consent decrees in

litigation being conducted under the

authority of the Attorney General. This

rule will not have substantial direct

effects on the States, on the relationship

between the Federal Government and

the States, or on the distribution of

power and responsibilities among the

various levels of government. 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.

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 $120 million or more

(adjusted 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.

Congressional Review Act

This rule is not a major rule as

defined by section 804 of 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 non-

agency parties and, accordingly, is not

a ‘‘rule’’ as that term is used by the

Congressional Review Act, 8 U.S.C.

804(3)(B)–(C). Therefore, the reporting

requirement of 5 U.S.C. 801 does not

apply.

List of Subjects in 28 CFR Part 0

Authority delegations (Government

agencies), Government employees,

Organization and functions

(Government agencies), Privacy,

Reporting and recordkeeping

requirements, Whistleblowing.

Accordingly, 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 0 of title 28 of the

Code of Federal Regulations is amended

as follows:

PART 0—ORGANIZATION OF THE

DEPARTMENT OF JUSTICE

■1. The authority citation for part 0

continues to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509,

510, 515–519.

■2. Section 0.160 is amended by:

■a. Removing the word ‘‘or’’ at the end

of paragraph (d)(1);

■b. Removing the word ‘‘or’’ at the end

of paragraph (d)(4);

■c. Removing the period at the end of

paragraph (d)(5) and adding in its place

‘‘; or’’; and

■d. Adding paragraphs (d)(6) and (e).

The additions read as follows:

§ 0.160 Offers that may be accepted by

Assistant Attorneys General.

* * * * *

(d) * * *

(6) When a proposed settlement of a

civil action includes a consent decree

with a State or local governmental entity

that would:

(i) Place a court in a long-term

position of monitoring compliance by a

State or local governmental entity;

(ii) Create long-term structural or

programmatic obligations, or long-term,

indeterminate financial obligations, for

a State or local governmental entity; or

(iii) Otherwise raise novel questions

of law or policy that merit review by

senior Department leadership.

(e) As used in paragraph (d)(6) of this

section, ‘‘long-term’’ means that the

obligations, on their face or in practice,

are reasonably likely to take 24 months

or longer to satisfy. Paragraph (d)(6) of

this section does not apply where use of

a consent decree is required by statute

or regulation or the consent decree is

limited to the payment of a sum certain

of money or performance of a specific

environmental removal action.

Dated: December 4, 2020.

William P. Barr,

Attorney General.

[FR Doc. 2020–27190 Filed 12–23–20; 8:45 am]

BILLING CODE 4410–12–P

DEPARTMENT OF THE INTERIOR

Bureau of Safety and Environmental

Enforcement

30 CFR Part 250

[Docket ID: BSEE–2020–0002; EEEE500000

21XE1700DX EX1SF0000.EAQ000]

RIN 1014–AA46

Oil and Gas and Sulfur Operations in

the Outer Continental Shelf—

Reaffirmation of Standard Editions

Related to the Manual of Petroleum

Measurement Standards

AGENCY

: Bureau of Safety and

Environmental Enforcement, Interior.

ACTION

: Direct final rule; request for

comments.

VerDate Sep<11>2014 16:58 Dec 26, 2020 Jkt 253001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\28DER1.SGM 28DER1

tkelley on DSKBCP9HB2PROD with RULES