[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4805 Introduced in Senate (IS)]
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118th CONGRESS
2d Session
S. 4805
To require each agency to evaluate the permitting system of the agency
to consider whether a permit by rule could replace that system, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 25, 2024
Ms. Lummis (for herself, Mr. Budd, and Mr. Ricketts) introduced the
following bill; which was read twice and referred to the Committee on
Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To require each agency to evaluate the permitting system of the agency
to consider whether a permit by rule could replace that system, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Full Responsibility and Expedited
Enforcement Act'' or the ``FREE Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Agencies nearly unanimously operate permitting systems
that--
(A) give agencies broad discretion and require
agencies review each permit application; and
(B) either do not have decision deadlines or have
decision deadlines which agencies do not follow.
(2) The combination of broad discretion and the lack of
decision deadlines often results in permitting systems that are
tedious, time consuming, and expensive for the Government and
for applicants.
(3) Agencies will sometimes use discretion under a
permitting system and the time consuming nature of a permitting
system to stall or discourage permit issuance.
(4) There is a compelling interest in avoiding unnecessary
delay and expense in Federal permitting.
(5) Permit by rule is a system of permitting--
(A) that includes specific written standards for
obtaining a permit, a simple requirement for an
applicant to certify compliance with each of the
standards, and a streamlined approval process that
allows an agency not more than 30 days to verify that
all conditions are met; and
(B) in which an agency retains the right and
responsibility to audit and enforce compliance with
permitting requirements.
(6) Permit by rule, applied by agencies, would increase
efficiency and help overcome delays and the cumbersome cost of
agency review to Government and private interests by focusing
on grantees that are violating the law or standards rather than
gatekeeping, thereby allowing agencies to protect the
compelling interests for which permitting systems are intended.
SEC. 3. DEFINITIONS.
In this Act:
(1) Agency; rule.--The terms ``agency'' and ``rule'' have
the meaning given those terms in section 551 of title 5, United
States Code.
(2) Completed application.--The term ``completed
application'' means an application submitted under section 4(b)
that contains a certification that the applicant meets each
requirement and substantive standard established under
paragraph (1)(A) of that section.
(3) Permit by rule.--The term ``permit by rule'' means the
permitting process described in section 4(b).
(4) Substantive standard.--The term ``substantive
standard'', with respect to a permit, means each quality,
status, action, benchmark, measurement, or other written
description that would qualify a person to perform an action
for which the permit is required.
SEC. 4. PERMIT BY RULE.
(a) Report to Congress Required.--Not later than 180 days after the
date of enactment of this Act, the head of each agency shall submit to
Congress a report that includes the following:
(1) An evaluation of each permitting system of the agency.
(2) A list and description of each permitting system used
by the agency and the requirements for obtaining a permit under
each such permitting system.
(3) A specific description of each step the agency follows
to review a permit application, including a list of the job
title of each employee of the agency involved in the permitting
system and a short job description for each job title as the
job relates to the evaluation of permit applications.
(4) An estimate of the number of days between submission of
an application for a permit and grant of the application.
(5) With respect to an application for a permit that is
found to not meet the necessary requirements for a grant of the
application, the necessary actions required of the applicant
and the agency.
(6) A list of primary interests that each permitting system
is intended to protect.
(7) With respect to each permitting system, a determination
of whether a permit by rule could replace the permitting
system, and for each permitting system for which the
determination is that a permit by rule could not replace the
permitting system, a description that details with
particularity the reasons why a permit by rule could not be
reasonably used.
(8) An identification of any challenges anticipated for a
transition from each permitting system to a permit by rule.
(b) Permit by Rule.--
(1) Streamlined application process.--Not later than 1 year
after the date on which the report is submitted under
subsection (a), the head of each agency shall establish a
permit by rule application process with respect to each permit
system identified in such report as feasible for transition to
a permit by rule that does the following:
(A) Specifies in writing each requirement and
substantive standard that must be met by an applicant
to file an application under the permit by rule system.
(B) Allows an applicant to submit an application
that contains only a certification for each requirement
or substantive standard specified under subparagraph
(A).
(C) Deems an application for a permit granted if--
(i) the application contains each
certification described in subparagraph (B);
and
(ii) a period of 30 days after the date on
which the completed application was submitted
has expired and the application was not denied
under paragraph (3).
(2) Correction of application.--During the 30-day period
after the date of submission of the application, the head of an
agency may contact an applicant if any certification is missing
from an application submitted under paragraph (1) and the
applicant may correct the missing certification without any
adverse effect on the application.
(3) Denial of application.--The head of an agency may deny
an application submitted under paragraph (1) only if the head
of the agency issues a written decision that identifies a
requirement or substantive standard described in subparagraph
(A) of that paragraph that was not met and states with
particularity the facts and reasoning for such denial.
(4) Audit and enforcement.--
(A) In general.--
(i) Audit.--The head of an agency may audit
a grantee of a permit to verify compliance with
the requirements and substantive standards
certified in the application of the grantee
under paragraph (1), including by issuing
reasonable requests for documentation.
(ii) Enforcement.--The head of an agency
may deny an application under paragraph (1) at
any time or suspend a permit deemed granted
under subparagraph (C) of that paragraph if the
head of the agency finds that a requirement or
substantive standard under subparagraph (A) of
that paragraph is not met.
(B) Direct appeal.--
(i) In general.--An applicant denied a
permit or a grantee of a permit that is
suspended under subparagraph (A)(ii) may appeal
such denial or suspension in an appropriate
district court of the United States.
(ii) Reasonable interpretation of a
requirement or substantive.--In an appeal under
clause (i), the court shall consider the
applicant or grantee to have met the
requirement or substantive standard upon which
a denial of an application or a suspension of a
permit under subparagraph (A)(ii) is based if
the applicant or grantee--
(I) had a reasonable interpretation
of the requirement or substantive
standard; and
(II) made a good faith effort to
comply with the requirement or
substantive standard pursuant to such
reasonable interpretation.
(iii) Burden of proof.--In an appeal under
clause (i), the agency shall bear the burden of
proof to show that the interpretation of the
applicant or grantee was not reasonable or that
the effort of the applicant or grantee to
comply was not in good faith.
(iv) Attorney fees; permit granted.--In an
appeal under clause (i), if a court finds for
the applicant or grantee under this
subparagraph, the agency shall pay the attorney
fees of the applicant or grantee and the permit
shall be deemed granted or reinstated.
(c) Permit by Rule Required.--
(1) In general.--Not later than the date on which the
report is submitted under subsection (a), the head of each
agency shall issue a permit by rule option with respect to any
permitting system identified in subsection (a)(7) as feasible
for transition to a permit by rule.
(2) Qualifying applicants.--Not later than 90 days after
the date of submission of the report under subsection (e), the
head of each agency shall provide a permit by rule option for
any applicant for a permit that fits within the description of
the activities that are approved for permit by rule.
(3) Maintenance of previous permitting system.--
(A) Concurrent use of previous permitting system.--
If the head of agency determines that a permitting
system in effect before the date of enactment of this
Act provides value that a permit by rule does not, and
a permit by rule is otherwise viable, if the head of
the agency includes a description of such value in the
report required under subsection (a), the head of the
agency may offer both such existing permitting system
and the permit by rule, and the applicant may choose
which to use.
(B) Preference for permit by rule.--If the head of
the agency determines that permit by rule is viable and
wishes to maintain only 1 permitting system, the agency
shall maintain permit by rule.
(C) Existing permitting system instead of permit by
rule.--If the head of an agency determines that permit
by rule is not viable and includes the reasons permit
by rule is not viable in the report under subsection
(a), the head of the agency may continue to use the
permitting system in effect before the date of
enactment of this Act.
(d) Restrictions on Agency Settlement Agreements.--The head of an
agency may not enter into a settlement agreement with an applicant
under subsection (b) in which the agency agrees to not enforce, with
respect to the applicant, this Act, any regulation promulgated under
this Act, or any requirement or substantive standard for a permit by
rule established pursuant to this Act.
(e) Congressional Oversight.--Not later than 240 days after the
date of enactment of this Act, the head of each agency shall submit to
Congress a report on the progress of the agency in transitioning to a
permit by rule for each permitting system for which a permit by rule is
required to be implemented under this Act.
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