Section 1 Short title
This Act may be cited as the “Full Responsibility and Expedited Enforcement Act” or the “FREE Act”.
Full Responsibility and Expedited Enforcement Act
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.
Sec. 2 Findings
Congress finds the following:
Agencies nearly unanimously operate permitting systems that—
give agencies broad discretion and require agencies review each permit application; and
either do not have decision deadlines or have decision deadlines which agencies do not follow.
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.
Agencies will sometimes use discretion under a permitting system and the time consuming nature of a permitting system 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 system 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 process that allows an agency not more than 30 days to verify that all conditions are met; and
in which an agency retains the right and responsibility to audit and enforce compliance with permitting requirements.
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:
Agency; rule— The terms agency and rule have the meaning given those terms in section 551 of title 5, United States Code.
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.
Permit by rule— The term permit by rule means the permitting process described in section 4(b).
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
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:
An evaluation of each permitting system of the agency.
A list and description of each permitting system used by the agency and the requirements for obtaining a permit under each such permitting system.
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.
An estimate of the number of days between submission of an application for a permit and grant of the application.
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.
A list of primary interests that each permitting system is intended to protect.
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.
An identification of any challenges anticipated for a transition from each permitting system to a permit by rule.
Permit by rule—
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:
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.
Allows an applicant to submit an application that contains only a certification for each requirement or substantive standard specified under subparagraph (A).
Deems an application for a permit granted if—
the application contains each certification described in subparagraph (B); and
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).
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.
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.
Audit and enforcement—
In general—
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.
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.
Direct appeal—
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.
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—
had a reasonable interpretation of the requirement or substantive standard; and
made a good faith effort to comply with the requirement or substantive standard pursuant to such reasonable interpretation.
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.
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.
Permit by rule required—
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.
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.
Maintenance of previous permitting system—
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.
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.
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.
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.
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.