WASHINGTON - Working to create an environment for private-sector employers to create jobs and to increase transparency, Senator Chuck Grassley and Representative Doug Collins are introducing legislation that would end the practice of enacting federal regulations through sue-and-settle litigation.  Grassley is Ranking Member of the Senate Judiciary Committee and Collins is a member of the House Judiciary Committee and leads the Freshman Regulatory Reform Working Group.

The Sunshine for Regulatory Decrees and Settlements Act responds to the use of consent decrees and settlement agreements in lawsuits against federal agencies to bind executive discretion.  The end result is rulemaking that implements the priorities of pro-regulatory special interest groups and limits the discretion of succeeding administrations.

"Sue-and-settle litigation damages the transparency, public participation and judicial review protections Congress has guaranteed for all of our citizens in the rulemaking process.  And, it's a tremendous burden on job-creating businesses, especially small businesses," Grassley said.  "This kind of regulatory litigation also adversely affects the ability of the executive branch to engage in sound and principled decision-making. The goal of this bill is to make sure all citizens, especially those directly impacted by a proposed regulation, have a meaningful opportunity to participate in the rulemaking process and help ensure the procedure and process used to create these regulations are made in the open.  America's system of lawmaking and judicial review shouldn't be distorted or manipulated."

"The Obama Administration has empowered agencies to subvert the legislative process and manipulate the rulemaking system to achieve their pro-regulation agenda. Strong reforms are needed to protect communities and businesses against burdensome regulations that circumvent the rulemaking process.  This legislation sheds light on the regulation through litigation that is crippling small businesses in my district and across the nation. Improving the public participation and transparency protections of the Administrative Procedure Act is vital to preserving the integrity of the rulemaking process," Collins said.

Sue-and-settle driven rulemaking takes place under schedules that render notice-and-comment requirements a mere formality, depriving regulated entities, the public and the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) of sufficient time to have any meaningful input on the content of final rules.

The sue-and-settle problem has occurred primarily in litigation against regulatory agencies over allegations that agency action has been unlawfully withheld or unreasonably delayed.  Typically, the defendant agency has failed to meet a mandatory statutory deadline for a new regulation or is alleged to have unreasonably delayed discretionary action.  In addition, agency actions are often politically sensitive, especially when the proposed regulation imposes high costs on the regulated businesses.

With sue-and-settle cases, the resulting consent decree or settlement agreement comes as a surprise to the regulated community and the general public and often provides a short timeline for agency action.  The lack of advance notice and minimal time allowed for the proposal and promulgation of regulations allows agencies to undercut the public participation and analytical requirements of regulatory process statutes.  Accelerated timeframes for proposal and promulgation allow agencies to short-circuit review of new regulations by the OIRA.  The incentive to do this is particularly strong when the plaintiff and the agency agree on what the content of the regulation should be, and seek to effectuate that agreement without input from interested parties and the OIRA.

Senators Tom Coburn, Mike Lee, Marco Rubio, John Cornyn, Deb Fischer and Ted Cruz are original cosponsors of the reform proposal in the Senate.  Spencer Bachus, Chairman of the Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law, and Howard Coble, Chairman of the Judiciary Subcommittee on Courts, Intellectual Property and the Internet are co-sponsoring in the House.

The Sunshine for Regulatory Decrees and Settlements Act would require:

·         Greater transparency. Agencies must publish sue-and-settle notices of intent to sue, complaints, decrees, settlements, and attorneys' fee awards and report on them to Congress.

·         Greater rights for regulated entities and the public. Agencies cannot propose sue-and-settle decrees and settlements to the courts until parties affected by the proposed regulations can intervene and participate in settlement negotiations and the proposed decrees and settlements are published for public notice and comment.

·         Greater judicial scrutiny. Courts weighing proposed decrees and settlements must assure compliance with normal rulemaking procedures and account for agencies' competing mandatory duties not within the litigation.

·         Greater accountability. The Attorney General must certify to the court his or her approval of proposed decrees that convert discretionary authorities into mandatory duties.

·         Greater flexibility for new administrations. Courts are allowed to review de novo any new administration's motion to modify a consent decree in light of changed facts and circumstances or competing duties.

 

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60 John Deere Middle Schoolers are going on a treasure hunt this weekend looking for $300.00 in gold and silver in their backyard

(Moline, IL)  Four fields near the school will be filled with dimes and nickels Saturday morning and by using metal detectors the kids are going to get rich!  It's all about learning map skills, soil science, writing, data analysis, and graphing when they look for "gold" underground.  The Lights ON for Learning students are calling themselves the "Spartan Treasure Hunters" and the media is invited to interview them, their parents, and the sponsors?they can even hunt!

According to the Site Coordinators of the Lights ON for Learning grant, Chad Potter, the program was developed out of a partnership among the Lights On 21st Century, John Deere Middle,  Minelab USA (which is providing the metal detectors) and Chuck Smalley at SW Supplies and Prospecting.

***The hunt is being held at the John Deere Middle School in Moline (2035 11th Street) on Saturday, April 13th at 10:00 am.  The media is invited to witness the hunt in which the students will be using metal detectors to the find hidden treasures.

In addition to the hunt Potter says there will be a "Try It" station which is a mini clinic about metal detecting as a hobby put on by Minelab USA representatives for parents and teachers.  Students will participate in one of four "seeded" hunts to find coins and other interesting items.  There will also be a number of presentations related to the metal detecting hobby.  Potter says the school is going to create a metal detecting club after this initial venture.

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Prepared Floor Statement of Senator Chuck Grassley

The Motion to Proceed to the Reid Gun Control Bill

Thursday, April 11, 2013

Mr. President, earlier I met with families from Newtown, Connecticut to discuss the legislation we are currently debating.  It was emotional and difficult for all of us.  I thank them for sharing their stories of their loved ones and their concerns with me.

At the meeting, they called for a debate on the legislation, a debate we are having. Nonetheless, Mr. President, we are in the unusual position of being asked to take a leap into the unknown.  We are being asked to vote to proceed to an uncertain bill.  That bill is not even the bill that we would likely consider if the motion to proceed were successful.  The language on background checks would change.  We have not seen the actual new background check language.  But we are being asked to proceed to the bill anyway.

What we do have is a summary of the proposed background check language.  That summary raises questions. For instance, the summary states that the background check language applies to sales at gun shows and online.  Is a background check required if someone sees a gun at a gun show, then proceeds to purchase the gun outside the gun show, maybe even in a parking lot?  What if someone at a gun show trades but does not sell a gun?

And it applies beyond gun shows.  If a private person advertises a gun, then the transfer would have to go through a licensed dealer, at a price.  So if someone takes out an ad to sell their gun in the local Farm Bureau newsletter or in their church bulletin, they would have to find a licensed gun dealer to conduct a background check before sale could go through.  That is quite a limitation on private sales and ownership of guns.  And it takes time in many places in this country to find that gun dealer to conduct that background check.

The summary is not specific: which private sales would be exempt from the bill's background check requirements?  The summary states that background checks are "required for sales at gun shows and online while securing certain aspects of 2nd Amendment rights for law abiding citizens."  That should cause everyone concern.  If the background check language secures "certain aspects of 2nd Amendment rights," then what aspects of 2nd Amendment rights of law abiding citizens does it not secure?

The summary says that the new language exempts "temporary transfers."    What is the difference between a "temporary" and a permanent transfer?  How would a law-abiding citizen know whether the transfer would be considered to be "temporary"?  What if the person making the transfer thought at the time it was made that the transfer would be temporary but later decides that it should be for a longer time?

And the summary claims that it will close the "gun show and other loopholes."  What "other loopholes"?  We should be skeptical about what rights could be infringed based on that claim.         It is important to understand that there is no such thing as a "gun show loophole."  Under existing law, background checks are required for gun purchases from a federally licensed firearms dealer.  This is true whether the purchase is made at a gun show or any other location.

Also, under existing law, gun purchases made through someone who is not a federally licensed firearms dealer do not require a background check.  This is true whether the sale is made at a gun show or not.  Whether a sale is made at a gun show is therefore irrelevant to whether a background check is required.

There is one rule for sales from licensed dealers and another for private sales.  But under the new language, not all private sales will be treated the same.  Some private sales will require background checks and others will not.  That distinction will create, not close, a loophole.  No longer would all private sales be treated the same.  Some private sales will require background checks and others will not.  There will be political pressure then to say that all private sales should be covered - universal background checks in other words.

And we heard testimony in the Judiciary Committee, and the Deputy Director of the National Institute of Justice has written, that universal background checks can be enforced only if gun registration is mandated.

Now it has been said on the floor recently that background check legislation cannot lead to gun registries because federal law prohibits that.     But current federal law can be changed.  And the language currently before us requires recordkeeping, a step toward registration.

Although the sponsor of that language said that the bill expressly provided that no registry could be created, the bill contains no such language at present.  The sponsor was misinformed about his own bill.  He admitted that the current background check language was not yet ready for consideration and needed clarifications that so far have not been forthcoming.

We should have answers to these and other questions before we should proceed to the bill.

And we should be wary of going to a bill when various senators have announced their intention to offer amendments to that bill that in my judgment raise serious constitutional questions under the Second Amendment.

Mr. President, how can we responsibly proceed to a bill that contains language that even its sponsor admits is not ready for consideration?

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