II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Full Responsibility and 

5 Expedited Enforcement Act’’ or the ‘‘FREE Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) Agencies nearly unanimously operate per9 mitting systems that— 


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1 (A) give agencies broad discretion and re2 quire agencies review each permit application; 

3 and 

4 (B) either do not have decision deadlines 

5 or have decision deadlines which agencies do 

6 not follow. 

7 (2) The combination of broad discretion and the 

8 lack of decision deadlines often results in permitting 

9 systems that are tedious, time consuming, and ex10 pensive for the Government and for applicants. 

11 (3) Agencies will sometimes use discretion 

12 under a permitting system and the time consuming 

13 nature of a permitting system to stall or discourage 

14 permit issuance. 

15 (4) There is a compelling interest in avoiding 

16 unnecessary delay and expense in Federal permit17 ting. 

18 (5) Permit by rule is a system of permitting— 

19 (A) that includes specific written standards 

20 for obtaining a permit, a simple requirement for 

21 an applicant to certify compliance with each of 

22 the standards, and a streamlined approval proc23 ess that allows an agency not more than 30 

24 days to verify that all conditions are met; and 


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1 (B) in which an agency retains the right 

2 and responsibility to audit and enforce compli3 ance with permitting requirements. 

4 (6) Permit by rule, applied by agencies, would 

5 increase efficiency and help overcome delays and the 

6 cumbersome cost of agency review to Government 

7 and private interests by focusing on grantees that 

8 are violating the law or standards rather than 

9 gatekeeping, thereby allowing agencies to protect the 

10 compelling interests for which permitting systems 

11 are intended. 

12 SEC. 3. DEFINITIONS. 

13 In this Act: 

14 (1) AGENCY; RULE.—The terms ‘‘agency’’ and 

15 ‘‘rule’’ have the meaning given those terms in sec16 tion 551 of title 5, United States Code. 

17 (2) COMPLETED APPLICATION.—The term 

18 ‘‘completed application’’ means an application sub19 mitted under section 4(b) that contains a certifi20 cation that the applicant meets each requirement 

21 and substantive standard established under para22 graph (1)(A) of that section. 

23 (3) PERMIT BY RULE.—The term ‘‘permit by 

24 rule’’ means the permitting process described in sec25 tion 4(b). 


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1 (4) SUBSTANTIVE STANDARD.—The term ‘‘sub2 stantive standard’’, with respect to a permit, means 

3 each quality, status, action, benchmark, measure4 ment, or other written description that would qualify 

5 a person to perform an action for which the permit 

6 is required. 

7 SEC. 4. PERMIT BY RULE. 

8 (a) REPORT TO CONGRESS REQUIRED.—Not later 

9 than 180 days after the date of enactment of this Act, 

10 the head of each agency shall submit to Congress a report 

11 that includes the following: 

12 (1) An evaluation of each permitting system of 

13 the agency. 

14 (2) A list and description of each permitting 

15 system used by the agency and the requirements for 

16 obtaining a permit under each such permitting sys17 tem. 

18 (3) A specific description of each step the agen19 cy follows to review a permit application, including 

20 a list of the job title of each employee of the agency 

21 involved in the permitting system and a short job de22 scription for each job title as the job relates to the 

23 evaluation of permit applications. 


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1 (4) An estimate of the number of days between 

2 submission of an application for a permit and grant 

3 of the application. 

4 (5) With respect to an application for a permit 

5 that is found to not meet the necessary requirements 

6 for a grant of the application, the necessary actions 

7 required of the applicant and the agency. 

8 (6) A list of primary interests that each permit9 ting system is intended to protect. 

10 (7) With respect to each permitting system, a 

11 determination of whether a permit by rule could re12 place the permitting system, and for each permitting 

13 system for which the determination is that a permit 

14 by rule could not replace the permitting system, a 

15 description that details with particularity the rea16 sons why a permit by rule could not be reasonably 

17 used. 

18 (8) An identification of any challenges antici19 pated for a transition from each permitting system 

20 to a permit by rule. 

21 (b) PERMIT BY RULE.— 

22 (1) STREAMLINED APPLICATION PROCESS.— 

23 Not later than 1 year after the date on which the 

24 report is submitted under subsection (a), the head of 

25 each agency shall establish a permit by rule applicaVerDate Sep 11 2014 03:37 Aug 22, 2024 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4805.IS S4805

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1 tion process with respect to each permit system iden2 tified in such report as feasible for transition to a 

3 permit by rule that does the following: 

4 (A) Specifies in writing each requirement 

5 and substantive standard that must be met by 

6 an applicant to file an application under the 

7 permit by rule system. 

8 (B) Allows an applicant to submit an ap9 plication that contains only a certification for 

10 each requirement or substantive standard speci11 fied under subparagraph (A). 

12 (C) Deems an application for a permit 

13 granted if— 

14 (i) the application contains each cer15 tification described in subparagraph (B); 

16 and 

17 (ii) a period of 30 days after the date 

18 on which the completed application was 

19 submitted has expired and the application 

20 was not denied under paragraph (3). 

21 (2) CORRECTION OF APPLICATION.—During the 

22 30-day period after the date of submission of the ap23 plication, the head of an agency may contact an ap24 plicant if any certification is missing from an appli25 cation submitted under paragraph (1) and the appliVerDate Sep 11 2014 03:37 Aug 22, 2024 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4805.IS S4805

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1 cant may correct the missing certification without 

2 any adverse effect on the application. 

3 (3) DENIAL OF APPLICATION.—The head of an 

4 agency may deny an application submitted under 

5 paragraph (1) only if the head of the agency issues 

6 a written decision that identifies a requirement or 

7 substantive standard described in subparagraph (A) 

8 of that paragraph that was not met and states with 

9 particularity the facts and reasoning for such denial. 

10 (4) AUDIT AND ENFORCEMENT.— 

11 (A) IN GENERAL.— 

12 (i) AUDIT.—The head of an agency 

13 may audit a grantee of a permit to verify 

14 compliance with the requirements and sub15 stantive standards certified in the applica16 tion of the grantee under paragraph (1), 

17 including by issuing reasonable requests 

18 for documentation. 

19 (ii) ENFORCEMENT.—The head of an 

20 agency may deny an application under 

21 paragraph (1) at any time or suspend a 

22 permit deemed granted under subpara23 graph (C) of that paragraph if the head of 

24 the agency finds that a requirement or 


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1 substantive standard under subparagraph 

2 (A) of that paragraph is not met. 

3 (B) DIRECT APPEAL.— 

4 (i) IN GENERAL.—An applicant denied 

5 a permit or a grantee of a permit that is 

6 suspended under subparagraph (A)(ii) may 

7 appeal such denial or suspension in an ap8 propriate district court of the United 

9 States. 

10 (ii) REASONABLE INTERPRETATION

11 OF A REQUIREMENT OR SUBSTANTIVE.—In 

12 an appeal under clause (i), the court shall 

13 consider the applicant or grantee to have 

14 met the requirement or substantive stand15 ard upon which a denial of an application 

16 or a suspension of a permit under subpara17 graph (A)(ii) is based if the applicant or 

18 grantee— 

19 (I) had a reasonable interpreta20 tion of the requirement or substantive 

21 standard; and 

22 (II) made a good faith effort to 

23 comply with the requirement or sub24 stantive standard pursuant to such 

25 reasonable interpretation. 


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1 (iii) BURDEN OF PROOF.—In an ap2 peal under clause (i), the agency shall bear 

3 the burden of proof to show that the inter4 pretation of the applicant or grantee was 

5 not reasonable or that the effort of the ap6 plicant or grantee to comply was not in 

7 good faith. 

8 (iv) ATTORNEY FEES; PERMIT GRANT9 ED.—In an appeal under clause (i), if a 

10 court finds for the applicant or grantee 

11 under this subparagraph, the agency shall 

12 pay the attorney fees of the applicant or 

13 grantee and the permit shall be deemed 

14 granted or reinstated. 

15 (c) PERMIT BY RULE REQUIRED.— 

16 (1) IN GENERAL.—Not later than the date on 

17 which the report is submitted under subsection (a), 

18 the head of each agency shall issue a permit by rule 

19 option with respect to any permitting system identi20 fied in subsection (a)(7) as feasible for transition to 

21 a permit by rule. 

22 (2) QUALIFYING APPLICANTS.—Not later than 

23 90 days after the date of submission of the report 

24 under subsection (e), the head of each agency shall 

25 provide a permit by rule option for any applicant for 


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1 a permit that fits within the description of the ac2 tivities that are approved for permit by rule. 

3 (3) MAINTENANCE OF PREVIOUS PERMITTING

4 SYSTEM.— 

5 (A) CONCURRENT USE OF PREVIOUS PER6 MITTING SYSTEM.—If the head of agency deter7 mines that a permitting system in effect before 

8 the date of enactment of this Act provides value 

9 that a permit by rule does not, and a permit by 

10 rule is otherwise viable, if the head of the agen11 cy includes a description of such value in the 

12 report required under subsection (a), the head 

13 of the agency may offer both such existing per14 mitting system and the permit by rule, and the 

15 applicant may choose which to use. 

16 (B) PREFERENCE FOR PERMIT BY

17 RULE.—If the head of the agency determines 

18 that permit by rule is viable and wishes to 

19 maintain only 1 permitting system, the agency 

20 shall maintain permit by rule. 

21 (C) EXISTING PERMITTING SYSTEM IN22 STEAD OF PERMIT BY RULE.—If the head of an 

23 agency determines that permit by rule is not 

24 viable and includes the reasons permit by rule 

25 is not viable in the report under subsection (a), 


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1 the head of the agency may continue to use the 

2 permitting system in effect before the date of 

3 enactment of this Act. 

4 (d) RESTRICTIONS ON AGENCY SETTLEMENT

5 AGREEMENTS.—The head of an agency may not enter into 

6 a settlement agreement with an applicant under sub7 section (b) in which the agency agrees to not enforce, with 

8 respect to the applicant, this Act, any regulation promul9 gated under this Act, or any requirement or substantive 

10 standard for a permit by rule established pursuant to this 

11 Act. 

12 (e) CONGRESSIONAL OVERSIGHT.—Not later than 

13 240 days after the date of enactment of this Act, the head 

14 of each agency shall submit to Congress a report on the 

15 progress of the agency in transitioning to a permit by rule 

16 for each permitting system for which a permit by rule is 

17 required to be implemented under this Act. 

Æ 


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