Regulatory Relief to Support Economic Recovery Act

II 116TH CONGRESS 2D SESSION S. 3941 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 pur- poses. 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Regulatory Relief to 4 Support Economic Recovery Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) ADJUDICATOR.—The term ‘‘adjudicator’’— 8 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 3941 IS (A) means an agency official who makes a 1 determination that has legal consequence (as 2 defined in section 2(d) of Executive Order 3 13892 (5 U.S.C. 551 note; relating to civil ad- 4 ministrative enforcement and adjudication)) for 5 a person; and 6 (B) does not include— 7 (i) the head of an agency; 8 (ii) a member of a multi-member 9 board that heads an agency; or 10 (iii) a Presidential appointee. 11 (2) ADMINISTRATIVE ENFORCEMENT.—The 12 term ‘‘administrative enforcement’’, with respect to 13 an agency, includes— 14 (A) an investigation; 15 (B) an assertion of a statutory or regu- 16 latory violation; and 17 (C) an adjudication by an adjudicator. 18 (3) AGENCY.—The term ‘‘agency’’ has the 19 meaning given the term in section 3502 of title 44, 20 United States Code. 21 (4) EMERGENCY AUTHORITY.—The term 22 ‘‘emergency authority’’ means, with respect to an 23 agency, any statutory or regulatory authority that 24 authorizes action by the agency— 25 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 3941 IS (A) in an emergency; 1 (B) under exigent circumstances; 2 (C) for good cause; or 3 (D) in a situation similar to the situations 4 described in subparagraphs (A) through (C). 5 (5) PRE-ENFORCEMENT RULING.—The term 6 ‘‘pre-enforcement ruling’’ has the meaning given the 7 term in section 2(f) of Executive Order 13892 (5 8 U.S.C. 551 note; relating to civil administrative en- 9 forcement and adjudication). 10 (6) REGULATORY STANDARD.—The term ‘‘regu- 11 latory standard’’ includes— 12 (A) any requirement imposed on a person 13 or entity by a regulation (as defined in section 14 2(g) of Executive Order 13892 (5 U.S.C. 551 15 note; relating to civil administrative enforce- 16 ment and adjudication)); or 17 (B) any recommendation, best practice, 18 standard, or other provision of a guidance docu- 19 ment (as defined in section 2(c) of Executive 20 Order 13892 (5 U.S.C. 551 note; relating to 21 civil administrative enforcement and adjudica- 22 tion)). 23 (7) SIGNIFICANT REGULATORY ACTION.—The 24 term ‘‘significant regulatory action’’ has the mean- 25 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 3941 IS ing given the term in section 3(f) of Executive Order 1 12866 (5 U.S.C. 601 note; relating to regulatory 2 planning and review). 3 (8) UNFAIR SURPRISE.—The term ‘‘unfair sur- 4 prise’’ has the meaning given the term in section 5 2(e) of Executive Order 13892 (5 U.S.C. 551 note; 6 relating to civil administrative enforcement and ad- 7 judication). 8 SEC. 3. PURPOSE. 9 The purpose of this Act is to direct agencies to com- 10 bat the economic consequences of the COVID–19 pan- 11 demic and respond to the economic emergency caused by 12 the COVID–19 pandemic— 13 (1) by rescinding, modifying, waiving, or pro- 14 viding exemptions from regulations, including sig- 15 nificant regulatory actions, and other requirements 16 that may inhibit economic recovery, consistent 17 with— 18 (A) applicable law; 19 (B) the protection of the public health and 20 safety; 21 (C) national and homeland security; and 22 (D) budgetary priorities and operational 23 feasibility; 24 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 3941 IS (2) by giving businesses, especially small busi- 1 nesses, the confidence those businesses need to re- 2 open by providing guidance on what the law re- 3 quires; 4 (3) by recognizing the efforts of businesses to 5 comply with often complex regulations in com- 6 plicated and swiftly changing circumstances; and 7 (4) by committing to fairness in administrative 8 enforcement and adjudication. 9 SEC. 4. FEDERAL RESPONSE. 10 (a) IN GENERAL.—The head of each agency shall 11 use, to the fullest extent possible, any emergency authority 12 invoked before the date of enactment of this Act— 13 (1) in response to the COVID–19 pandemic; or 14 (2) that is otherwise available to the head of 15 the agency to support the economic response to the 16 COVID–19 pandemic. 17 (b) NON-REGULATORY ACTIONS.—It is the sense of 18 Congress that, in addition to action taken under sub- 19 section (a), the head of each agency should promote eco- 20 nomic recovery through non-regulatory actions. 21 SEC. 5. RESCISSION AND WAIVER OF REGULATORY STAND- 22 ARDS. 23 (a) IN GENERAL.—To promote job creation and eco- 24 nomic growth, the head of each agency— 25 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 3941 IS (1) shall identify regulatory standards of the 1 agency that may inhibit economic recovery from the 2 COVID–19 pandemic; and 3 (2) may— 4 (A) temporarily or permanently rescind, 5 modify, waive, or exempt persons or entities 6 from the regulatory standards identified under 7 paragraph (1), including by issuing proposed 8 rules; and 9 (B) exercise appropriate temporary en- 10 forcement discretion or appropriate temporary 11 extensions of time as provided for in enforceable 12 agreements with respect to the regulatory 13 standards identified under paragraph (1). 14 (b) NOTICE AND COMMENT WAIVER.—During the 15 period beginning on the date of enactment of this Act and 16 ending on the date on which the national emergency de- 17 clared by the President under the National Emergencies 18 Act (50 U.S.C. 1601 et seq.) with respect to the Coronavi- 19 rus Disease 2019 (COVID–19) terminates, the head of an 20 agency acting under subsection (a) may waive the notice 21 and comment requirements under section 553 of title 5, 22 United States Code. 23 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 3941 IS SEC. 6. COMPLIANCE ASSISTANCE FOR REGULATED ENTI- 1 TIES. 2 (a) PRE-ENFORCEMENT RULINGS.— 3 (1) IN GENERAL.—The head of each agency, 4 other than the Attorney General, shall accelerate the 5 procedures of the agency under which a regulated 6 person or entity receives a pre-enforcement ruling 7 under Executive Order 13892 (5 U.S.C. 551 note; 8 relating to civil administrative enforcement and ad- 9 judication) with respect to whether proposed conduct 10 in response to the COVID–19 pandemic, including 11 any response to legislative or executive economic 12 stimulus actions, is consistent with statutes and reg- 13 ulations administered by the agency. 14 (2) WAIVER.—The head of an agency that 15 issues a pre-enforcement ruling under paragraph (1) 16 may issue the pre-enforcement ruling without regard 17 to the requirements of section 6(a) of Executive 18 Order 13892 (5 U.S.C. 551 note; relating to civil 19 administrative enforcement and adjudication). 20 (b) ENFORCEMENT DISCRETION POLICIES.— 21 (1) IN GENERAL.—The head of each agency 22 may formulate, and make public, policies of enforce- 23 ment discretion that direct the agency to decline to 24 initiate administrative enforcement against persons 25 and entities that attempt in reasonable good faith to 26 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 3941 IS comply with applicable statutory and regulatory 1 standards, including persons and entities that act in 2 conformity with a pre-enforcement ruling. 3 (2) CONSIDERATION.—In formulating a policy 4 of enforcement discretion under paragraph (1), the 5 head of an agency shall consider— 6 (A) the situation described in paragraph 7 (3) as a rationale for declining to initiate ad- 8 ministrative enforcement; 9 (B) the context of a particular statutory 10 and regulatory program; and 11 (C) the purpose of this Act. 12 (3) COVID–19 GUIDANCE.—The situation de- 13 scribed in this paragraph is a situation in which a 14 person or entity makes a reasonable attempt to com- 15 ply with guidance relating to suggested action to 16 stem the transmission and spread of COVID–19 17 that— 18 (A) is issued by— 19 (i) the Secretary of Health and 20 Human Services, including through the 21 Centers for Disease Control and Preven- 22 tion; or 23 (ii) the head of another agency; and 24 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 3941 IS (B) the person or entity reasonably deter- 1 mines is applicable to the circumstances of the 2 person or entity. 3 (c) PROHIBITION.—The head of an agency may not 4 initiate an enforcement action against a person or entity 5 solely because the person or entity does not adhere to 6 guidance issued by the agency. 7 SEC. 7. FAIRNESS IN ADMINISTRATIVE ENFORCEMENT AND 8 ADJUDICATION. 9 (a) IN GENERAL.—The head of each agency shall, 10 with respect to administrative enforcement and adjudica- 11 tion of the agency— 12 (1) consider the principles of fairness described 13 in subsection (b); and 14 (2) if appropriate, revise procedures and prac- 15 tices of the agency— 16 (A) to conform with the principles of fair- 17 ness described in subsection (b); and 18 (B) with consideration for— 19 (i) the statutory and regulatory pro- 20 grams of the agency; and 21 (ii) the purpose of this Act. 22 (b) PRINCIPLES OF FAIRNESS.—The principles of 23 fairness of administrative enforcement and adjudication 24 described in this subsection are as follows: 25 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 3941 IS (1) The Government should bear the burden of 1 proving an alleged violation of law, and the subject 2 of administrative enforcement should not bear the 3 burden of proving compliance with the law. 4 (2) Administrative enforcement should be 5 prompt and fair. 6 (3) Administrative adjudicators should be inde- 7 pendent of enforcement staff. 8 (4) Consistent with any executive branch con- 9 fidentiality interests, the Government should provide 10 favorable relevant evidence in possession of the agen- 11 cy to the subject of an administrative enforcement 12 action. 13 (5) All rules of evidence and procedure should 14 be public, clear, and effective. 15 (6) Penalties should be— 16 (A) proportionate, transparent, and im- 17 posed in adherence to consistent standards; and 18 (B) authorized by law. 19 (7) Administrative enforcement should be free 20 of improper Government coercion. 21 (8) Liability should be imposed only for viola- 22 tions of statutes or duly issued regulations after no- 23 tice and an opportunity to respond. 24 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 3941 IS (9) Administrative enforcement should be free 1 of unfair surprise. 2 (10) An agency must be accountable for the ad- 3 ministrative enforcement decisions of the agency. 4 SEC. 8. REPORT. 5 Not later than the date determined by the Director 6 of the Office of Management and Budget under section 7 9(2), the head of each agency shall submit to the Director 8 of the Office of Management and Budget, the Assistant 9 to the President for Domestic Policy, and the Assistant 10 to the President for Economic Policy a report that in- 11 cludes— 12 (1) a review of— 13 (A) any regulatory standards of the agency 14 that are rescinded, suspended, modified, or 15 waived under section 5(a)(2); and 16 (B) other regulatory flexibilities imple- 17 mented by the agency in response to the 18 COVID–19 pandemic; and 19 (2) a determination of whether a rescinded, sus- 20 pended, modified, or waived regulatory standard de- 21 scribed in paragraph (1)(A) or a regulatory flexi- 22 bility described in paragraph (1)(B) would promote 23 economic recovery if made permanent. 24 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 3941 IS SEC. 9. IMPLEMENTATION. 1 The Director of the Office of Management and Budg- 2 et, in consultation with the Assistant to the President for 3 Domestic Policy and the Assistant to the President for 4 Economic Policy— 5 (1) shall monitor compliance with this Act; and 6 (2) may issue guidance for the implementation 7 of this Act, including by setting a deadline for the 8 report required under section 8. 9 SEC. 10. GENERAL PROVISIONS. 10 (a) SAVINGS CLAUSE.—Nothing in this Act shall be 11 construed to impair or otherwise affect— 12 (1) the authority granted by law to the head of 13 an agency; or 14 (2) the functions of the Director of the Office 15 of Management and Budget relating to budgetary, 16 administrative, or legislative proposals. 17 (b) IMPLEMENTATION.—This Act shall be imple- 18 mented consistent with applicable law. 19 (c) EXCEPTIONS.— 20 (1) IN GENERAL.—Subject to paragraph (2), 21 nothing in Act shall apply to an action relating to— 22 (A) foreign or military affairs; or 23 (B) a national security or homeland secu- 24 rity function of the United States. 25 VerDate Sep 11 2014 23:50 Jun 25, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3941.IS S3941 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 3941 IS (2) PROCUREMENT ACTIONS.—This Act shall 1 apply to actions relating to— 2 (A) procurement; and 3 (B) the import and export of non-dense ar- 4 ticles and services. 5 [Text truncated for display. 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