H.R. 8784 — what changed
Full Responsibility and Expedited Enforcement Act
From Introduced in House to Reported in House. 2 sections amended between Introduced in House and Reported in House.
Sec. 2 Findings
Congress finds the following:
Agencies near unanimously operate under a permitting system that gives agencies broad discretion and requires the Government to review each permitting application.
Agencies near unanimously operate under a permitting system that either does not have time constraints, or has time constraints that agencies do not follow.
The combination of broad discretion and the lack of time constraints often results in a tedious, time consuming, and often expensive permitting system for the Government and applicants. Moreover, agencies will sometimes use their discretion and the time consuming nature of permitting to stall or discourage permit issuance.
There is a compelling interest in avoiding unnecessary delay and expense in Federal permitting.
Permit by rule is a process that seeks to overcome agency delay and the cumbersome cost of agency review to Government and private interests.
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Permit by rule is a process of permitting 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 of process with a maximum of 30 days prompt deadline for agency action on applications that only allows the Government to verify that all conditions are met. The Government retains the right and responsibility to audit and enforce compliance with permitting requirements. Focusing upon permittees who are violating the law or standards rather than gatekeeping will make permitting more efficient while allowing an agency to protect the compelling interests for which permitting systems are intended.
Sec. 3 Permitting by rule
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Report to Congress required—
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Submission of report— Not later than 240 days after the date of the enactment of this section, the head of each agency shall submit to Congress, including any committee of Congress with jurisdiction over permits for that agency, and the Comptroller General a report on the following:
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A list and description of each type of permit issued by the agency.
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The statutory and regulatory requirements for obtaining each such type of permit.
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For each type of permit issued by the agency, a specific description of each step the agency follows to review a permit application.
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For each type of permit issued by the agency, an estimate of the time the agency typically takes to review an application, beginning on the date on which an application is submitted and ending on the date on which a successful application is granted.
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For each type of permit issued by the agency, a description of each action typically taken for a case in which an application is found not to meet statutory or regulatory requirements for the issuance of a permit.
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A list of primary interests that each type of permit is intended to foster or protect.
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An individual determination for each type of permit issued by the agency of whether permitting by rule could in whole or in part replace the current system for issuing the type of permit.
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For each type of permit issued by the agency for which permitting by rule could in whole or in part replace the current system for issuing the type of permit, an identification of any administrative or other practical challenges the head of the agency anticipates in transitioning to permitting by rule for the type of permit.
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An identification of each type of permit for which the head of the agency has determined the agency could not reasonably, in whole or in part, issue permits by rule under current facts and circumstances, describing with particularity each reason why permitting by rule could not reasonably be used for any such permit and what legal or practical measures could be pursued to eliminate or mitigate said reason.
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Report to Congress required— Not later than 240 days after the date of the enactment of this section, the head of each agency shall submit to Congress a report on the following:
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Public comment— An evaluation of each permit In preparing the report required pursuant to paragraph (1), the head of an agency may solicit and consider public comment regarding the agency.report.
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Extension of submission deadline— A list and description In the case that the head of each permit issued an agency is not able to submit the report required pursuant to paragraph (1), the deadline to submit the report shall be extended by an additional 90 days if the agency.head of the agency submits to Congress, including any committee of Congress with jurisdiction over permits for that agency, and the Comptroller General a notification of the intended extension of the deadline under this paragraph.
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Attorney fees— The requirements If the head of an agency does not file the report required pursuant to paragraph (1) by the applicable deadline under this subsection, the agency shall pay, from any funds made available to the agency by appropriation or otherwise, the attorney fees and costs of an applicant for obtaining each such permit.a claim filed by the applicant for the failure or delay of the agency to take action with respect to an application for a permit submitted to the agency by the applicant if—
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the claim is filed against the agency in an appropriate United States district court during the period beginning on the expiration of the applicable deadline under this subsection and ending on the date on which the agency files the report;
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the court determines that the agency unreasonably delayed such action; and
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the applicant prevails in the claim.
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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 system and a short job description for each such title.
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An estimate of the time the agency typically requires to review an application that begins on the date on which an application is submitted and ends on the date on which a successful application is granted.
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A description of each action taken for a case in which an application is found to not meet the necessary requirements to be granted a permit.
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A list of primary interests that each permit is intended to protect.
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An individual determination for each such permit that describes whether a permit by rule could replace the permitting system.
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An identification of each permit issued by the agency that could use a permit by rule.
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An identification of each permit for which the head of the agency has determined the agency could not reasonably use a permit by rule, including a description with particularity and detail the reasons why permit by rule could not be reasonably used for each such permit.
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An identification of any challenges the head of the agency anticipates in a transition to a permit by rule.
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Permit Establishment of processes for permitting by rule—
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Automatic Application for and approval of permits— Not later than 12 months after the date on which the report is submitted pursuant to subsection (a), for each type of permit issued by the agency for which the head of the agency determined under subsection (a)(1)(G) that permitting by rule could in whole or in part replace the current system for issuing the type of permit, the head of each agency shall establish by rule a permit permitting by rule application process that does the following:
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Specified Specifies in writing each requirement and substantive standard that must be certified to be met by an applicant who files an application to file under qualify for a permit under permitting by rule.
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Allows an applicant to submit file an application that contains only each required certification for each requirement or substantive standard established under described in subparagraph (A).(A) and any supporting documentation the applicant chooses to submit in support of each such certification.
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Deems an application for a permit under permitting by rule granted if—
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the application contains each certification described in subparagraph (B); (A); and
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a period of 30 180 days after the date on which the completed application was submitted has expired.expired and the head of the agency has not otherwise approved or disapproved the application.
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Correction of application— The head of an agency may shall contact an applicant within 7 days after the date on which an application is submitted under paragraph (1) if any required certification is missing from an application submitted under paragraph (1).the application.
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Audit of application— The head of an agency may audit an application for a permit under permitting by rule and verify certifications of compliance with requirements and substantive standards for permitting by rule and may include reasonable requests for documentation.
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Disapproval of application and enforcement—
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Reason for disapproval— The head of an agency may only disapprove an application submitted for a permit under permitting by rule if the head of the agency identifies a requirement or substantive standard described in paragraph (1)(A) that was not met by the application, informs the applicant of how to correct the application, provides a reasonable opportunity for the applicant to make such correction before the final action of the agency on the application, and states with particularity in any final action disapproving the application the facts and reasoning for such denial.
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Audit of compliance and enforcement following grant of a permit under permitting by rule—
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Audit— The head of an agency may audit a permit granted under permitting by rule and verify compliance with requirements and substantive standards for permitting by rule, which may include reasonable requests for documentation.
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Enforcement— The head of an agency may require corrective action, suspend, or revoke a permit granted under permitting by rule at any time if the head of the agency finds that a requirement or substantive standard under permitting by rule is not being met by the recipient of the permit.
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Direct appeal— An applicant whose application for a permit under permitting by rule is disapproved, of whom corrective action is required under a permit granted under permitting by rule, or whose permit granted under permitting by rule is suspended or revoked may appeal such disapproval, corrective action, suspension, or revocation in an appropriate United States district court.
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Burden of proof— In an appeal under subparagraph (C), the agency shall bear the burden of proof to show that an application was lawfully disapproved or that the agency lawfully required corrective action or suspended or revoked a permit.
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Attorney fees— If the court finds for the applicant or permit holder under this paragraph and that the agency was not substantially justified in disapproving, requiring corrective action under, suspending, or revoking a permit, the agency shall pay the attorney fees and costs of the applicant from any funds made available to the agency by appropriation or otherwise.
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Congressional oversight— Not later than 2 years after the date on which the report is submitted pursuant to subsection (a), the head of each agency shall submit to Congress a report on the implementation by the agency of permitting by rule for each type of permit issued by the agency for which the head of the agency determined under subsection (a)(1)(G) that permitting by rule could in whole or in part replace the current system for issuing the type of permit.
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Denial of application and enforcement—
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Reason for denial— The head of an agency may only deny an application submitted under a permit by rule if the head of the agency identifies a requirement or substantive standard described in paragraph (1)(A) that was not met and states with particularity the facts and reasoning for such denial.
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Audit and enforcement—
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Audit— The head of an agency may audit an application and verify compliance with substantive standards, which may include reasonable requests for documentation.
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Enforcement— The head of an agency may deny an application submitted under a permit by rule at any time or halt permitted action if the head of the agency finds that a substantive standard is not being met.
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Direct appeal— An applicant whose application for a permit by rule is denied or whose action under a permit issued under a permit by rule is halted may appeal such denial or halting in an appropriate United States district court.
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Reasonable interpretation of substantive standards— In an appeal under subparagraph (C), the court shall consider an applicant that had a reasonable interpretation of a substantive standard, and made a good faith effort to comply with such standard pursuant to such reasonable interpretation, to have met such standard.
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Burden of proof— In an appeal under subparagraph (C), the agency shall bear the burden of proof to show that an applicant’s interpretation was not reasonable and that their effort to comply was not in good faith.
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Interpretation— A court shall interpret an agency rule for a permit by rule in a manner that favors the applicant if the applicant made a good faith effort to comply with the requirements of the permit by rule.
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Attorney fees; permit granted— If the court finds for the applicant under this paragraph, the agency shall pay the attorney fees of the applicant and the permit shall is deemed granted.
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Permit by rule required—
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In general— Not later than the date on which the report is submitted pursuant to subsection (a), the head of each agency shall issue a permit by rule for any permit identified in subsection (a)(9).
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Qualifying applicants— Not later than 90 days after the date of the enactment of this section, 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.
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Restrictions on agency settlement agreements—Concurrent use of previous permitting system— The If the head of an the agency may not enter into a settlement agreement with an applicant under determines in the report submitted pursuant to subsection (b) (a) that the permitting system in which effect at the agency agrees to not enforce before the date of the enactment of this Act, Act for any regulation promulgated under this Act, type of permit provides value that permitting by rule does not, but that permitting by rule could in whole or any in part replace the current system for issuing the type of permit, the head of the agency may maintain for that type of permit both the permitting requirement system previously in effect and permitting by rule, and the applicant may choose which system to use to apply for a permit by rule established under this Act against such applicant.of that type from the agency.
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GAO reports—
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Report on accuracy of agency reports— Not later than 90 days after the expiration of the deadline to submit the reports required under subsection (a), the Comptroller General shall submit to Congress a report on the completeness and accuracy of the reports, including the recommendations of the Comptroller General concerning legal or practical measures that could be pursued to eliminate or mitigate any legal or practical challenges to the transition by agencies to permitting by rule for any type of permit.
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Report on progress by agencies— Not later than 180 days after submission by the agencies of the reports required under subsection (c), the Comptroller General shall submit to Congress a report on the progress by agencies in the implementation of this Act, including any recommendation concerning legal or practical measures that could be pursued to eliminate or mitigate any remaining legal or practical challenges to the transition by agencies to issuance of permits under permitting by rule for any type of permit.
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Supplements to the reports— The Comptroller General may submit supplements to the report described in paragraph (1) or (2) with regard to a report submitted by the head of an agency after the Comptroller General submits the report required pursuant to paragraph (1) or (2).
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Congressional Oversight— Not later than 180 days after the date of the enactment of this Act, the head of each agency shall submit to Congress a report on the progress of the agency in transitioning to and implementing each permit for which permit by rule is implemented under this Act.
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Maintenance of previous permitting system—
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Concurrent use of previous permitting system— If the head of agency determines that the permitting system in effect before the date of the enactment of this Act provides value that the permit by rule does not, and a permit by rule is otherwise viable, the head of the agency may offer both the permitting system and the permit by rule, and the applicant may choose which to use, if the head of the agency includes the value such permitting system has that a permit by rule does not in the report required pursuant to subsection (a).
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Preference for permit by rule— If an agency determines that permit by rule is viable, yet wishes to maintain only one permitting system, the agency shall choose permit by rule.
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Previous permitting system instead of permit by rule— The head of an agency may continue to use a permitting system instead of a permit by rule if the head of the agency includes in the report described in subsection (a) the reasons a permit by rule is not viable.
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was (8)
Definitions— In this section:
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Agency; Rule— The terms agency and rule have the meaning given those terms in section 551 of title 5, United States Code.
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Completed application— The term completed application means an application submitted under subsection (b) that contains certifications that the applicant meets each requirement and substantive standard specified under subsection (b)(1)(A).
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Permitting by rule— The term permitting by rule means the application process that an agency establishes by rule for granting a certain type of permit described in subsection (b).
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Agency; rule— The terms agency and rule have the meaning given those terms in section 551 of title 5, United States Code.
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Completed application— The term completed application means an application submitted under subsection (b) that contains an application with certifications that the applicant meets each requirement and substantive standard established under subsection (b)(1)(A).
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Permit by rule— The term permit by rule means the permitting process described under subsection (b).
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was (8)(6)
Substantive standard— The term substantive standard means all qualities, statuses, actions, benchmarks, measurements, or other written descriptions that would qualify a party to perform the permitted action.