The Full Responsibility and Expedited Enforcement (FREE) Act directs the Director of OMB and every federal agency to evaluate existing permitting systems and determine whether each permit type could be handled through a standardized "permitting by rule" process. It requires OMB guidance, agency reports listing permit types and processes, and agency transition plans where permitting by rule is feasible.
The bill matters because it replaces—or creates an alternative to—case-by-case discretionary review with a certification-based pathway that includes explicit time limits, deeming provisions, post‑grant audits, and expanded judicial remedies and fee-shifting. Regulated actors, agencies, and courts will face new operational demands and litigation incentives if agencies implement the new processes.
At a Glance
What It Does
The bill directs OMB to issue guidance, requires agencies to inventory permits and report whether permitting-by-rule could replace current review, and mandates that agencies adopt certification-based permitting procedures for qualifying permit types with specific deadlines and audit/enforcement rules.
Who It Affects
Federal agencies that issue licenses and permits under title 5 definitions, regulated entities that apply for federal permits, OMB and the Government Accountability Office, and federal courts handling permit litigation.
Why It Matters
It shifts the default from preventive gatekeeping to a post‑grant enforcement model for eligible permits, imposes firm timelines and 'deemed granted' rules that could speed approvals, and changes litigation risk through burden-of-proof allocations and attorney‑fee provisions.
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What This Bill Actually Does
The bill starts by asking OMB to define "permitting by rule" and to issue implementation guidance within 120 days. That guidance will set the boundaries for what counts as a permit under the statute, and it shapes the later reports and rulemakings agencies must produce.
Each agency must produce a detailed report—due 240 days after OMB issues guidance—cataloging all permit types, the statutory and regulatory prerequisites for each, the agency’s step‑by‑step review process, typical processing times, the interests each permit is meant to protect, and a determination whether permitting by rule could replace the current system in whole or in part. Agencies must identify practical or legal obstacles to switching and say what would be needed to remove them.
Agencies may solicit public comment while preparing the report, and have a single 90‑day extension option if needed.For any permit type the agency finds suitable for permitting by rule, the agency must adopt a rulemaking within 12 months after submitting its report that creates a certification-based application pathway. The rule must spell out each substantive standard applicants must certify, allow filings that include only those certifications (plus any optional supporting docs), require agencies to contact applicants within seven days if a certification is missing, and provide that an application is deemed granted if the agency neither approves nor disapproves it within 180 days.Post‑grant oversight shifts to audits and enforcement: agencies may audit certifications, request reasonable documentation, require corrective actions, or suspend/revoke permits when standards are not met.
Agencies may only deny or revoke based on specific unmet certification standards, must explain denials with factual particularity, and must provide a reasonable opportunity to correct. In judicial review the agency bears the burden to justify denials or enforcement actions, and courts can award attorney fees to successful applicants if the agency was not substantially justified.
Separately, if an agency misses the report deadline, it can be liable for applicant attorney fees in suits alleging unreasonable delay once the deadline has passed.
The Five Things You Need to Know
OMB must issue guidance defining "permitting by rule" and related terms within 120 days of enactment.
Agencies must submit detailed permit inventories and feasibility determinations to Congress and the GAO within 240 days after OMB guidance; a single 90‑day extension is available.
For permit types marked suitable, agencies must adopt permitting‑by‑rule procedures within 12 months of their report that allow certification-only applications and deem an application granted if the agency takes no action within 180 days.
Agencies must contact applicants within 7 days to correct missing certifications; after grant, agencies may audit, require corrective action, or suspend/revoke permits, but denials and enforcement actions must be explained with particularity.
Two separate fee‑shifting regimes: (1) courts can award fees to applicants who prevail against agencies that are not substantially justified in denials or revocations; (2) agencies that fail to file the required report may be ordered to pay attorney fees for successful suits alleging unreasonable delay filed after the report deadline.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Short title
Names the statute the Full Responsibility and Expedited Enforcement Act or the FREE Act. This is the standard organizational opener; it has no operational content but frames the bill for citation.
Congressional findings about current permitting
Sets out Congress's view that agency permitting is generally discretionary, slow, and sometimes used to stall approvals. The findings justify the bill's goal of reducing delay and introduce the policy rationale for moving toward permit-by-rule—speed through certification balanced with post‑grant audits.
OMB guidance requirement
Directs the OMB Director to issue a memorandum within 120 days to clarify what counts as a permit and to elaborate on "permitting by rule." The guidance has practical force: agencies must base their inventories and subsequent rulemakings on the definitions and clarifications OMB provides, making OMB a gatekeeper to what will be eligible for the expedited pathway.
Agency reporting: inventory, timelines, and feasibility findings
Requires each agency, within 240 days after OMB guidance, to deliver a granular report listing permit types, statutory/regulatory prerequisites, step‑by‑step review procedures, typical processing times, outcomes for unsuccessful applications, targeted public interests, and a specific determination whether permitting by rule could replace current processes. The report must also identify obstacles to transition and propose remedies. Agencies may extend the deadline once by 90 days through notification, but failure to submit triggers potential attorney‑fee exposure tied to suits for unreasonable delay.
Creation of permitting‑by‑rule processes and approval mechanics
For permits the agency deems suitable, the agency must adopt rules within 12 months that spell out the substantive standards applicants must certify, allow submission of certification-only applications, and set a 180‑day automatic 'deemed granted' backstop. Agencies must notify applicants within 7 days if certifications are missing and may audit certifications, request supporting documentation, and enforce compliance after grant through corrective orders, suspension, or revocation.
Judicial review, burden of proof, concurrent systems
The statute allows direct appeals to federal district court of denials, corrective actions, suspensions, or revocations. Agencies bear the burden to justify their actions in court. If courts find agencies lacked substantial justification, agencies must pay plaintiffs' attorney fees. The agency may also run traditional permitting in parallel with permitting by rule for a given permit type, leaving the choice to applicants when both exist.
GAO oversight and definitions
Directs the Comptroller General to report on the completeness and accuracy of agency reports and, later, on agency progress implementing permitting by rule. The GAO can issue supplements. The bill also provides statutory definitions for terms (agency, rule, completed application, permit, permitting by rule, substantive standard) and delegates interpretative authority to the OMB Director for certain terms, shaping downstream implementation.
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Explore Government in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Permit applicants and project developers — they get a faster, predictable path where eligible applications can be granted automatically after 180 days, reducing uncertainty and upfront agency gatekeeping.
- Businesses and regulated industries with routine, measurable compliance conditions — standardized certifications lower compliance costs and shorten project timelines for activities that fit clear objective standards.
- Federal policymakers and oversight offices — OMB and GAO gain structured inputs and milestones to measure permitting performance, enabling targeted reforms and data-driven comparisons between agencies.
Who Bears the Cost
- Federal agencies and program offices — they must build permit inventories, assess feasibility, draft rulemakings, stand up audit and enforcement capacity, and absorb short-term rulemaking and administrative costs.
- Small agencies or offices with specialized, case‑specific permits — they may face disproportionate implementation burdens and legal exposure if their permitting regimes do not neatly translate to certification models.
- Taxpayers and appropriations committees — GAO reviews, OMB guidance, and additional audit/enforcement workloads may require staff funding; fee‑shifting could increase agency legal expenditures drawn from appropriated funds.
Key Issues
The Core Tension
The central dilemma is speed versus substantive safeguard: the bill trades robust up‑front regulatory review for faster, certification-based approvals and post‑grant enforcement. That reduces delay for routine, objective activities but risks permitting actions that would benefit from case‑specific scrutiny, and it shifts costs onto enforcement systems, agencies' legal budgets, and potentially parties harmed by mistakenly granted permits.
The bill reinscribes a shift from ex ante gatekeeping to ex post enforcement, which reduces approval delay but increases reliance on audits and enforcement resources. Agencies must both create certification rules and then police compliance; success depends on adequate staffing and clear standards.
The act imposes tight deadlines (OMB guidance in 120 days; agency reports in 240 days after that; agency rulemakings within 12 months of the report) that will compress agency rulemaking schedules and could produce superficial or defensive analyses if headcount and funding are not aligned.
Two fee‑shifting hooks create distinct litigation incentives: (1) an applicant who prevails in court against an agency denial or revocation can recover attorney fees if the agency lacked substantial justification; and (2) an agency that misses its reporting deadline can be obligated to pay fees for successful suits alleging unreasonable delay filed after the deadline. Those provisions may expedite compliance but also spur preemptive litigation, impose budgetary risk on agencies, and shift agency behavior toward defensive denials or conservative rulemaking.
The statute also leaves unresolved how permitting by rule interacts with other statutory mandates that require detailed substantive review or interagency consultation, and how courts will treat the 'deemed granted' doctrine where Congress or other statutes impose non‑delegable substantive checks.
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