II 116th CONGRESS 2d Session S. 3941 IN THE SENATE OF THE UNITED STATES June 11, 2020 Mrs. Loeffler introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To reopen the United States by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery from the COVID–19 pandemic, and for other purposes.

1. Short title This Act may be cited as the Regulatory Relief to Support Economic Recovery Act . 2. Definitions In this Act: (1) Adjudicator The term adjudicator — (A) means an agency official who makes a determination that has legal consequence (as defined in section 2(d) of Executive Order 13892 ( 5 U.S.C. 551 note; relating to civil administrative enforcement and adjudication)) for a person; and (B) does not include— (i) the head of an agency; (ii) a member of a multi-member board that heads an agency; or (iii) a Presidential appointee. (2) Administrative enforcement The term administrative enforcement , with respect to an agency, includes— (A) an investigation; (B) an assertion of a statutory or regulatory violation; and (C) an adjudication by an adjudicator. (3) Agency The term agency has the meaning given the term in section 3502 of title 44, United States Code. (4) Emergency authority The term emergency authority means, with respect to an agency, any statutory or regulatory authority that authorizes action by the agency— (A) in an emergency; (B) under exigent circumstances; (C) for good cause; or (D) in a situation similar to the situations described in subparagraphs (A) through (C). (5) Pre-enforcement ruling The term pre-enforcement ruling has the meaning given the term in section 2(f) of Executive Order 13892 ( 5 U.S.C. 551 note; relating to civil administrative enforcement and adjudication). (6) Regulatory standard The term regulatory standard includes— (A) any requirement imposed on a person or entity by a regulation (as defined in section 2(g) of Executive Order 13892 ( 5 U.S.C. 551 note; relating to civil administrative enforcement and adjudication)); or (B) any recommendation, best practice, standard, or other provision of a guidance document (as defined in section 2(c) of Executive Order 13892 ( 5 U.S.C. 551 note; relating to civil administrative enforcement and adjudication)). (7) Significant regulatory action The term significant regulatory action has the meaning given the term in section 3(f) of Executive Order 12866 ( 5 U.S.C. 601 note; relating to regulatory planning and review). (8) Unfair surprise The term unfair surprise has the meaning given the term in section 2(e) of Executive Order 13892 ( 5 U.S.C. 551 note; relating to civil administrative enforcement and adjudication). 3. Purpose The purpose of this Act is to direct agencies to combat the economic consequences of the COVID–19 pandemic and respond to the economic emergency caused by the COVID–19 pandemic— (1) by rescinding, modifying, waiving, or providing exemptions from regulations, including significant regulatory actions, and other requirements that may inhibit economic recovery, consistent with— (A) applicable law; (B) the protection of the public health and safety; (C) national and homeland security; and (D) budgetary priorities and operational feasibility; (2) by giving businesses, especially small businesses, the confidence those businesses need to re-open by providing guidance on what the law requires; (3) by recognizing the efforts of businesses to comply with often complex regulations in complicated and swiftly changing circumstances; and (4) by committing to fairness in administrative enforcement and adjudication. 4. Federal response (a) In general The head of each agency shall use, to the fullest extent possible, any emergency authority invoked before the date of enactment of this Act— (1) in response to the COVID–19 pandemic; or (2) that is otherwise available to the head of the agency to support the economic response to the COVID–19 pandemic. (b) Non-Regulatory actions It is the sense of Congress that, in addition to action taken under subsection (a), the head of each agency should promote economic recovery through non-regulatory actions. 5. Rescission and waiver of regulatory standards (a) In general To promote job creation and economic growth, the head of each agency— (1) shall identify regulatory standards of the agency that may inhibit economic recovery from the COVID–19 pandemic; and (2) may— (A) temporarily or permanently rescind, modify, waive, or exempt persons or entities from the regulatory standards identified under paragraph (1), including by issuing proposed rules; and (B) exercise appropriate temporary enforcement discretion or appropriate temporary extensions of time as provided for in enforceable agreements with respect to the regulatory standards identified under paragraph (1). (b) Notice and comment waiver During the period beginning on the date of enactment of this Act and ending on the date on which the national emergency declared by the President under the National Emergencies Act ( 50 U.S.C. 1601 et seq.) with respect to the Co­ro­na­vi­rus Disease 2019 (COVID–19) terminates, the head of an agency acting under subsection (a) may waive the notice and comment requirements under section 553 of title 5, United States Code. 6. Compliance assistance for regulated entities (a) Pre-Enforcement rulings (1) In general The head of each agency, other than the Attorney General, shall accelerate the procedures of the agency under which a regulated person or entity receives a pre-enforcement ruling under Executive Order 13892 ( 5 U.S.C. 551 note; relating to civil administrative enforcement and adjudication) with respect to whether proposed conduct in response to the COVID–19 pandemic, including any response to legislative or executive economic stimulus actions, is consistent with statutes and regulations administered by the agency. (2) Waiver The head of an agency that issues a pre-enforcement ruling under paragraph (1) may issue the pre-enforcement ruling without regard to the requirements of section 6(a) of Executive Order 13892 ( 5 U.S.C. 551 note; relating to civil administrative enforcement and adjudication). (b) Enforcement discretion policies (1) In general The head of each agency may formulate, and make public, policies of enforcement discretion that direct the agency to decline to initiate administrative enforcement against persons and entities that attempt in reasonable good faith to comply with applicable statutory and regulatory standards, including persons and entities that act in conformity with a pre-enforcement ruling. (2) Consideration In formulating a policy of enforcement discretion under paragraph (1), the head of an agency shall consider— (A) the situation described in paragraph (3) as a rationale for declining to initiate administrative enforcement; (B) the context of a particular statutory and regulatory program; and (C) the purpose of this Act. (3) COVID–19 guidance The situation described in this paragraph is a situation in which a person or entity makes a reasonable attempt to comply with guidance relating to suggested action to stem the transmission and spread of COVID–19 that— (A) is issued by— (i) the Secretary of Health and Human Services, including through the Centers for Disease Control and Prevention; or (ii) the head of another agency; and (B) the person or entity reasonably determines is applicable to the circumstances of the person or entity. (c) Prohibition The head of an agency may not initiate an enforcement action against a person or entity solely because the person or entity does not adhere to guidance issued by the agency. 7. Fairness in administrative enforcement and adjudication (a) In general The head of each agency shall, with respect to administrative enforcement and adjudication of the agency— (1) consider the principles of fairness described in subsection (b); and (2) if appropriate, revise procedures and practices of the agency— (A) to conform with the principles of fairness described in subsection (b); and (B) with consideration for— (i) the statutory and regulatory programs of the agency; and (ii) the purpose of this Act. (b) Principles of fairness The principles of fairness of administrative enforcement and adjudication described in this subsection are as follows: (1) The Government should bear the burden of proving an alleged violation of law, and the subject of administrative enforcement should not bear the burden of proving compliance with the law. (2) Administrative enforcement should be prompt and fair. (3) Administrative adjudicators should be independent of enforcement staff. (4) Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action. (5) All rules of evidence and procedure should be public, clear, and effective. (6) Penalties should be— (A) proportionate, transparent, and imposed in adherence to consistent standards; and (B) authorized by law. (7) Administrative enforcement should be free of improper Government coercion. (8) Liability should be imposed only for violations of statutes or duly issued regulations after notice and an opportunity to respond. (9) Administrative enforcement should be free of unfair surprise. (10) An agency must be accountable for the administrative enforcement decisions of the agency. 8. Report Not later than the date determined by the Director of the Office of Management and Budget under section 9(2), the head of each agency shall submit to the Director of the Office of Management and Budget, the Assistant to the President for Domestic Policy, and the Assistant to the President for Economic Policy a report that includes— (1) a review of— (A) any regulatory standards of the agency that are rescinded, suspended, modified, or waived under section 5(a)(2); and (B) other regulatory flexibilities implemented by the agency in response to the COVID–19 pandemic; and (2) a determination of whether a rescinded, suspended, modified, or waived regulatory standard described in paragraph (1)(A) or a regulatory flexibility described in paragraph (1)(B) would promote economic recovery if made permanent. 9. Implementation The Director of the Office of Management and Budget, in consultation with the Assistant to the President for Domestic Policy and the Assistant to the President for Economic Policy— (1) shall monitor compliance with this Act; and (2) may issue guidance for the implementation of this Act, including by setting a deadline for the report required under section 8. 10. General provisions (a) Savings clause Nothing in this Act shall be construed to impair or otherwise affect— (1) the authority granted by law to the head of an agency; or (2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) Implementation This Act shall be implemented consistent with applicable law. (c) Exceptions (1) In general Subject to paragraph (2), nothing in Act shall apply to an action relating to— (A) foreign or military affairs; or (B) a national security or homeland security function of the United States. (2) Procurement actions This Act shall apply to actions relating to— (A) procurement; and (B) the import and export of non-dense articles and services. (d) No cause of action This Act does not create any— (1) right or benefit for any party; or (2) cause of action for any party against— (A) the United States; (B) a department, agency, entity, officer, employee, or agent of the United States; or (C) any other person. 11. Sunset This Act shall cease to be effective on the later of— (1) the date on which the national emergency declared by the President under the National Emergencies Act ( 50 U.S.C. 1601 et seq.) with respect to the Coronavirus Disease 2019 (COVID–19) terminates; or (2) January 1, 2021.