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The White House By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. General Requirements. It is hereby established as the policy of the Executive Branch that no federal agency: (a) shall consent or agree to any consent judgment or settlement agreement requiring the agency to act, or refrain from acting, under any federal statute until the public has been provided an opportunity to comment on the consent judgement or settlement agreement; or (b) shall consent or agree to any modification of an already final consent judgement or settlement agreement requiring the agency to act, or refrain from acting, under any federal statute until the public has been provided an opportunity to comment on the modification. Sec. 2. Exemptions.
This Order does not apply: (b) to consent judgments or settlement agreements that only involve monetary relief; (c) when a federal statute or regulation expressly prohibits compliance with the public- participation requirements of this Order; (d) when a federal statute or regulation already requires public participation comparable to the requirements of this Order: e.g., 15 U.S.C. § 16(b)-(f)(consent judgments under antitrust laws); or (e) in any case where the chief officer of an agency determines that an exemption is necessary for the national security. Sec. 3. Public Participation in Agency Settlements. Agencies often settle disputes involving their implementation of federal regulatory statutes. These settlements can take the form of consent judgments enforceable as court or administrative orders, or the form of private settlement agreements. These judgments and agreements can result in regulatory action or inaction that substantially affects many persons who are not parties to the litigation. Non-parties often have no opportunity to participate in or comment on the consent judgment or settlement agreement even though their rights and duties may be determined by the judgment or settlement. The public should have the right to comment on agency consent judgments and settlement agreements that affect their interests. This Order establishes that right subject to the exemptions set forth in Section 2. Public participation rights already exist in several regulatory contexts: e.g., 15 U.S.C. § 16(b)-(f). This Order expands public participation rights to other regulatory contexts where they are equally necessary and long overdue. Sec. 4. Definitions. (a) Federal Agency. For the purposes of this Order, a Federal Agency is as defined by 44 U.S.C. § 3502(1) (hereinafter "agency"). (b) Consent Judgments. For purposes of this Order, a consent judgement is a settlement in any judicial or administrative process that: (i) requires an agency to act, or refrain from acting, under any federal statute; and (ii) is enforceable as a judicial or administrative order. Twenty calendar days after the date of this order, each agency shall provide at least thirty (30) days for public notice and comment on any consent judgment. Public notice shall include publication of the proposed consent judgement in the Federal Register and on the agency's website. (c) Settlement Agreements. For purposes of this Order, a settlement agreement is a settlement in any judicial or administrative process that:(i) requires an agency to act, or refrain from acting, under any federal statute; and (ii) is not enforceable as a court or administrative order. Twenty calendar days after the date of this Order, each agency shall provide at least thirty (30) days for public notice and comment on any proposed settlement agreement. Public notice shall include publication of the proposed settlement agreement in the Federal Register and on the agency's website. Sec. 5. Responsibilities of Federal Agencies. Consistent with applicable law: (a) Consent Judgments.
For all regulatory actions affected by a consent judgment that are subject
to the requirements of Executive Order 12866, the proposed consent judgment
shall be sent to the Office of Management and Budget (hereinafter "OMB")
for review and comment. (ii) The agency shall publish in the Federal Register and on the agency's website notice of the agency's final action on the consent judgement along with a response to public and OMB comment on the proposed consent judgment. (iii) If the agency decides to consent to the judgement after review of public and OMB comment on it, the agency shall file with the court or administrative body that has to approve the consent judgement all public and OMB comment received on the proposed consent judgement, and the agency's response to that comment. (b) Settlement Agreements. For all regulatory actions affected by the settlement agreement that are subject to the requirements of Executive Order 12866, the proposed settlement agreement shall be sent to OMB for review and comment. (i) After the public comment period has lapsed, the agency shall review the public and OMB comment received and determine whether the comment shows that the settlement agreement is in any way inappropriate, improper or inadequate. If so, then the agency shall not agree to the settlement agreement without changes in it to cure the defect(s) identified by public comment. (ii) The agency shall publish in the Federal Register and on the agency's website notice of the agency's final action on the settlement agreement along with a response to public and OMB comment on the proposed settlement agreement. (c) Modification of Consent Judgements and Settlement Agreements. Twenty calendar days after the date of the Order, each agency shall provide at least thirty (30) days for public notice and comment on any proposed modification of any final consent judgment or final settlement agreement that requires the agency to act, or refrain from acting, under any federal statute. Public notice shall include publication of the proposed modification in the Federal Register and on the agency's website. (i) If any regulatory action affected by the modification is subject to the requirements of Executive Order 12866, then the proposed settlement agreement shall be sent to OMB for review and comment. (ii) After the public and OMB comment periods have lapsed, the agency shall review the public and OMB comment received and determine whether the comment shows that the modification is in any way inappropriate, improper or inadequate. If so, then the agency shall not agree to the modification without modification of it to cure the defect(s) identified by public and OMB comment. (iii) The agency shall publish in the Federal Register and on the agency's website notice of the agency's final action on the modification along with a response to the public and OMB comment on the proposed modification. (iv) If the agency decides to consent to the modification of a consent judgment after review of public comment on it, then the agency shall file with the court or administrative body with authority to enforce the consent judgement all public and OMB comments received on the proposed modification, and the agency's response to that comment. (d) Impact Statements. In addition to the requirements set forth in Sections 4 (a)-(c), each agency shall prepare an initial Impact Statement for each proposed consent judgement, proposed settlement agreement, or proposed modification. The proposed Impact Statement shall be published in the Federal Register and on the agency's website at the same time that the proposed judgment, agreement or modification are published. The initial Impact Statement shall include at least the following: (i) a summary of the claims and allegations underlying the proposed consent judgment, settlement agreement, or modification; (ii) a summary of the relief obtained, and of obligations or duties imposed, by the proposed consent judgment, or modification; (iii) a summary of the anticipated effects of the proposed consent decree, settlement agreement, or modification on persons (both natural and corporate) who are not parties to the litigation; and (iv) a statement of whether any regulatory action affected by the proposed consent judgment, settlement agreement, or modification is subject to the requirements of Executive Order 12866 and, if so, then why. The agency shall invite public and OMB comment on the initial Impact Statement at the same time that it invites public and OMB comment on the proposed consent judgment, agreement or modification. After the public and OMB comment period has closed, the agency shall review the public and OMB comment received on the initial Impact Statement and determine whether it shows that the proposed consent judgment, settlement agreement or modification is in any way inappropriate, improper or inadequate. If so, then the agency shall not agree to the proposed consent judgment, settlement agreement or modification without changes in it to cure the defect(s) identified by public and OMB comment. After review of public and OMB comment, the agency shall prepare and publish in the Federal Register and on the agency's website the agency's final Impact Statement, along with a response to public and OMB comment on the initial Impact Statement If the agency decides to consent to a consent judgment, or to a modification of a consent judgment, after review of public comment, then the agency shall file with the court or administrative body with authority to enforce the consent judgment the final Impact Statement, all comments received on the proposed Impact Statement, and the agency's response to those comments. Sec. 6. Agency Authority. Nothing in this Order shall be construed as displacing the agencies' authority or responsibilities, as authorized by law. Sec. 7. Judicial Review. This order is intended to improve the internal management of the Federal Government. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity or otherwise against the United States, its departments, agencies, entities, instrumentalities, officers, or employees, or any other person.
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