[Congressional Record Volume 168, Number 133 (Saturday, August 6, 2022)]
[Senate]
[Pages S4317-S4320]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 5335. Mr. LEE submitted an amendment intended to be proposed to
amendment SA 5194 proposed by Mr. Schumer to the bill H.R. 5376, to
provide for reconciliation pursuant to title II of S. Con. Res. 14;
which was ordered to lie on the table; as follows:
At the end of title VII, add the following:
SEC. 70008. OFFICE OF FEDERAL REGULATORY RELIEF.
(a) Establishment.--There is established within the Office
of Information and Regulatory Affairs within the Office of
Management and Budget an Office of Federal Regulatory Relief.
(b) Director.--
(1) In general.--The Office shall be headed by a Director,
who shall be the Administrator or a designee thereof, who
shall--
(A) be responsible for--
(i) establishing a regulatory sandbox program described in
section 70009;
(ii) receiving Program applications and ensuring those
applications are complete;
(iii) referring complete Program applications to the
applicable agencies;
(iv) filing final Program application decisions from the
applicable agencies;
(v) hearing appeals from applicants if their applications
are denied by an applicable agency in accordance with section
70009(c)(6); and
(vi) designating staff to the Office as needed; and
[[Page S4318]]
(B) not later than 180 days after the date of enactment of
this Act--
(i) establish a process that is used to assess likely
health and safety risks, risks that are likely to cause
economic damage, and the likelihood for unfair or deceptive
practices to be committed against consumers related to
applications submitted for the Program, which shall be--
(I) published in the Federal Register and made publicly
available with a detailed list of the criteria used to make
such determinations; and
(II) subject to public comment before final publication in
the Federal Register; and
(ii) establish the application process described in section
70009(c)(1).
(2) Advisory boards.--
(A) Establishment.--The Director shall require the head of
each agency to establish an advisory board, which shall--
(i) be composed of 10 private sector representatives
appointed by the head of the agency--
(I) with expertise in matters under the jurisdiction of the
agency, with not more than 5 representatives from the same
political party;
(II) who shall serve for a period of not more than 3 years;
and
(III) who shall not receive any compensation for
participation on the advisory board; and
(ii) be responsible for providing input to the head of the
agency for each Program application received by the agency.
(B) Vacancy.--A vacancy on an advisory board established
under subparagraph (A), including a temporary vacancy due to
a recusal under subparagraph (C)(ii), shall be filled in the
same manner as the original appointment with an individual
who meets the qualifications described in subparagraph
(A)(i)(I).
(C) Conflict of interest.--
(i) In general.--If a member of an advisory board
established under subparagraph (A) is also the member of the
board of an applicant that submits an application under
review by the advisory board, the head of the agency or a
designee thereof may appoint a temporary replacement for that
member.
(ii) Financial interest.--Each member of an advisory board
established under subparagraph (A) shall recuse themselves
from advising on an application submitted under the Program
for which the member has a conflict of interest as described
in section 208 of title 18, United States Code.
(D) Small business concerns.--Not less than 5 of the
members of each advisory board established under subparagraph
(A) shall be representatives of a small business concern, as
defined in section 3 of the Small Business Act (15 U.S.C.
632).
(E) Rule of construction.--Nothing in this section shall be
construed to prevent an agency from establishing additional
advisory boards as needed to assist in reviewing Program
applications that involve multiple or unique industries.
SEC. 70009. REGULATORY SANDBOX PROGRAM.
(a) In General.--The Director shall establish a regulatory
sandbox program under which applicable agencies shall grant
or deny waivers of covered provisions to temporarily test
products or services on a limited basis, or undertake a
project to expand or grow business facilities consistent with
the purpose described in subsection (b), without otherwise
being licensed or authorized to do so under that covered
provision.
(b) Purpose.--The purpose of the Program is to incentivize
the success of current or new businesses, the expansion of
economic opportunities, the creation of jobs, and the
fostering of innovation.
(c) Application Process for Waivers.--
(1) In general.--The Office shall establish an application
process for the waiver of covered provisions, which shall
require that an application shall--
(A) confirm that the applicant--
(i) is subject to the jurisdiction of the Federal
Government; and
(ii) has established or plans to establish a business that
is incorporated or has a principal place of business in the
United States from which their goods or services are offered
from and their required documents and data are maintained;
(B) include relevant personal information such as the legal
name, address, telephone number, email address, and website
address of the applicant;
(C) disclose any criminal conviction of the applicant or
other participating persons, if applicable;
(D) contain a description of the good, service, or project
to be offered by the applicant for which the applicant is
requesting waiver of a covered provision by the Office under
the Program, including--
(i) how the applicant is subject to licensing,
prohibitions, or other authorization requirements outside of
the Program;
(ii) each covered provision that the applicant seeks to
have waived during participation in the Program;
(iii) how the good, service, or project would benefit
consumers;
(iv) what likely risks the participation of the applicant
in the Program may pose, and how the applicant intends to
reasonably mitigate those risks;
(v) how participation in the Program would render the
offering of the good, service, or project successful;
(vi) a description of the plan and estimated time periods
for the beginning and end of the offering of the good,
service, or project under the Program;
(vii) a recognition that the applicant will be subject to
all laws and rules after the conclusion of the offering of
the good, service, or project under the Program;
(viii) how the applicant will end the demonstration of the
offering of the good, service, or project under the Program;
(ix) how the applicant will repair harm to consumers if the
offering of the good, service, or project under the Program
fails; and
(x) a list of each agency that regulates the business of
the applicant; and
(E) include any other information as required by the
Office.
(2) Assistance.--The Office may, upon request, provide
assistance to an applicant to complete the application
process for a waiver under the Program, including by
providing the likely covered provisions that could be
eligible for such a waiver.
(3) Agency review.--
(A) Transmission.--Not later than 14 days after the date on
which the Office receives an application under paragraph (1),
the Office shall submit a copy of the application to each
applicable agency.
(B) Review.--The head of an applicable agency, or a
designee thereof, shall review a Program application received
under subparagraph (A) with input from the advisory board
established under section 70008(b)(2).
(C) Considerations.--In reviewing a copy of an application
submitted to an applicable agency under subparagraph (A), the
head of the applicable agency, or a designee thereof, with
input from the advisory board of the applicable agency
established under section 70008(b)(2), shall consider
whether--
(i) the plan of the applicant to deploy their offering will
adequately protect consumers from harm;
(ii) the likely health and safety risks, risks that are
likely to cause economic damage, and the likelihood for
unfair or deceptive practices to be committed against
consumers are outweighed by the potential benefits to
consumers from the offering of the applicant; and
(iii) it is possible to provide the applicant a waiver even
if the Office does not waive every covered provision
requested by the applicant.
(D) Final decision.--
(i) In general.--Subject to clause (ii), the head of an
applicable agency, or a designee thereof, who receives a copy
of an application under subparagraph (A) shall, with the
consideration of the recommendations of the advisory board of
the applicable agency established under section 70008(b)(2),
make the final decision to grant or deny the application.
(ii) In part approval.--
(I) In general.--If more than 1 applicable agency receives
a copy of an application under subparagraph (A)--
(aa) the head of each applicable agency (or their
designees), with input from the advisory board of the
applicable agency established under section 70008(b)(2),
shall grant or deny the waiver of the covered provisions over
which the applicable agency has jurisdiction for enforcement
or implementation; and
(bb) if each applicable agency that receives an application
under subparagraph (A) grants the waiver under item (aa), the
Director shall grant the entire application.
(II) In part approval by director.--If an applicable agency
denies part of an application under subclause (I) but another
applicable agency grants part of the application, the
Director shall approve the application in part and specify in
the final decision which covered provisions are waived.
(E) Record of decision.--
(i) In general.--Not later than 180 days after receiving a
copy of an application under subparagraph (A), an applicable
agency shall approve or deny the application and submit to
the Director a record of the decision, which shall include a
description of each likely health and safety risk, each risk
that is likely to cause economic damage, and the likelihood
for unfair or deceptive practices to be committed against
consumers that the covered provision the applicant is seeking
to have waived protects against, and--
(I) if the application is approved, a description of how
the identifiable, significant harms will be mitigated and how
consumers will be protected under the waiver;
(II) if the applicable agency denies the waiver, a
description of the reasons for the decision, including why a
waiver would likely cause health and safety risks, likely
cause economic damage, and increase the likelihood for unfair
or deceptive practices to be committed against consumers, and
the likelihood of such risks occurring, as well as reasons
why the application cannot be approved in part or reformed to
mitigate such risks; and
(III) if the applicable agency determines that a waiver
would likely cause health and safety risks, likely cause
economic damage, and there is likelihood for unfair or
deceptive practices to be committed against consumers as a
result of the covered provision that an applicant is
requesting to have waived, but the applicable agency
determines such risks can be protected through less
restrictive means than denying the application, the
applicable agency shall provide a recommendation of how that
can be achieved.
(ii) No record submitted.--If the applicable agency does
not submit a record of the decision with respect to an
application for a waiver submitted to the applicable agency,
[[Page S4319]]
the Office shall assume that the applicable agency does not
object to the granting of the waiver.
(iii) Extension.--The applicable agency may request one 30-
day extension of the deadline for a record of decision under
clause (i).
(iv) Expedited review.--If the applicable agency provides a
recommendation described in clause (i)(III), the Office shall
provide the applicant with a 60-day period to make necessary
changes to the application, and the applicant may resubmit
the application to the applicable agency for expedited review
over a period of not more than 60 days.
(4) Nondiscrimination.--In considering an application for a
waiver, an applicable agency shall not unreasonably
discriminate among applications under the Program or resort
to any unfair or unjust discrimination for any reason.
(5) Rescission; fee.--
(A) Rescission.--There is hereby rescinded $100,000,000
from amounts appropriated under section 70002.
(B) Application fee.--The Office may collect an application
fee from each applicant under the Program, which--
(i) shall be in a fair amount and reflect the cost of the
service provided;
(ii) shall be deposited in the general fund of the Treasury
and allocated to the Office, subject to appropriations; and
(iii) shall not be increased more frequently than once
every 2 years.
(6) Written agreement.--If each applicable agency grants a
waiver requested in an application submitted under paragraph
(1), the waiver shall not be effective until the applicant
enters into a written agreement with the Office that
describes each covered provision that is waived under the
Program.
(7) Limitation.--An applicable agency may not waive under
the Program any tax, fee, or charge imposed by the Federal
Government.
(8) Appeals.--
(A) In general.--If an applicable agency denies an
application under paragraph (3)(E), the applicant may submit
to the Office one appeal for reconsideration, which shall--
(i) address the comments of the applicable agency that
resulted in denial of the application; and
(ii) include how the applicant plans to mitigate the likely
risks identified by the applicable agency.
(B) Office response.--Not later than 60 days after
receiving an appeal under subparagraph (A), the Director
shall--
(i) determine whether the appeal sufficiently addresses the
concerns of the applicable agency; and
(ii)(I) if the Director determines that the appeal
sufficiently addresses the concerns of the applicable agency,
file a record of decision detailing how the concerns have
been remedied and approve the application; or
(II) if the Director determines that the appeal does not
sufficiently address the concerns of the applicable agency,
file a record of decision detailing how the concerns have not
been remedied and deny the application.
(9) Nondiscrimination.--The Office shall not unreasonably
discriminate among applications under the Program or resort
to any unfair or unjust discrimination for any reason in the
implementation of the Program.
(10) Judicial review.--
(A) Record of decision.--A record of decision described in
paragraph (3)(E) or (8)(B) shall be considered a final agency
action for purposes of review under section 704 of title 5,
United States Code.
(B) Limitation.--A reviewing court considering claims made
against a final agency action under this section shall be
limited to whether the agency acted in accordance with the
requirements set forth under this section.
(C) Right to judicial review.--Nothing in this paragraph
shall be construed to establish a right to judicial review
under this section.
(d) Period of Waiver.--
(1) Initial period.--Except as provided in this subsection,
a waiver granted under the Program shall be for a term of 2
years.
(2) Continuance.--The Office may continue a waiver granted
under the Program for a maximum of 4 additional periods of 2
years as determined by the Office.
(3) Notification.--Not later than 30 days before the end of
an initial waiver period under paragraph (1), an entity that
is granted a waiver under the Program shall notify the Office
if the entity intends to seek a continuance under paragraph
(2).
(4) Revocation.--
(A) Significant harm.--If the Office determines that an
entity that was granted a waiver under the Program is causing
significant harm to the health or safety of the public,
inflicting severe economic damage on the public, or engaging
in unfair or deceptive practices, the Office may immediately
end the participation of the entity in the Program by
revoking the waiver.
(B) Compliance.--If the Office determines that an entity
that was granted a waiver under the Program is not in
compliance with the terms of the Program, the Office shall
give the entity 30 days to correct the action, and if the
entity does not correct the action by the end of the 30-day
period, the Office may end the participation of the entity in
the Program by revoking the waiver.
(e) Terms.--An entity for which a waiver is granted under
the Program shall be subject to the following terms:
(1) A covered provision may not be waived if the waiver
would prevent a consumer from seeking actual damages or an
equitable remedy in the event that a consumer is harmed.
(2) While a waiver is in use, the entity shall not be
subject to the criminal or civil enforcement of a covered
provision identified in the waiver.
(3) An agency may not file or pursue any punitive action
against a participant during the period for which the waiver
is in effect, including a fine or license suspension or
revocation for the violation of a covered provision
identified in the waiver.
(4) The entity shall not have immunity related to any
criminal offense committed during the period for which the
waiver is in effect.
(5) The Federal Government shall not be responsible for any
business losses or the recouping of application fees if the
waiver is denied or the waiver is revoked at any time.
(f) Consumer Protection.--
(1) In general.--Before distributing an offering to
consumers under a waiver granted under the Program, and
throughout the duration of the waiver, an entity shall
publicly disclose the following to consumers:
(A) The name and contact information of the entity.
(B) That the entity has been granted a waiver under the
Program, and if applicable, that the entity does not have a
license or other authorization to provide an offering under
covered provisions outside of the waiver.
(C) If applicable, that the offering is undergoing testing
and may not function as intended and may expose the consumer
to certain risks as identified in the record of decision of
the applicable agency submitted under section 70009(c)(3)(E).
(D) That the entity is not immune from civil liability for
any losses or damages caused by the offering.
(E) That the entity is not immune from criminal prosecution
for violation of covered provisions that are not suspended
under the waiver.
(F) That the offering is a temporary demonstration and may
be discontinued at the end of the initial period under
subsection (d)(1).
(G) The expected commencement date of the initial period
under subsection (d)(1).
(H) The contact information of the Office and that the
consumer may contact the Office and file a complaint.
(2) Online offering.--With respect to an offering provided
over the internet under the Program, the consumer shall
acknowledge receipt of the disclosures required under
paragraph (1) before any transaction is completed.
(g) Record Keeping.--
(1) In general.--An entity that is granted a waiver under
this section shall retain records, documents, and data
produced that is directly related to the participation of the
entity in the Program.
(2) Notification before ending offering.--If an applicant
decides to end their offering before the initial period ends
under subsection (d)(1), the applicant shall submit to the
Office and the applicable agency a report on actions taken to
ensure consumers have not been harmed as a result.
(3) Request for documents.--The Office may request records,
documents, and data from an entity that is granted a waiver
under this section that is directly related to the
participation of the entity in the Program, and upon the
request, the applicant shall make such records, documents,
and data available for inspection by the Office.
(4) Notification of incidents.--An entity that is granted a
waiver under this section shall notify the Office and any
applicable agency of any incident that results in harm to the
health or safety of consumers, severe economic damage, or an
unfair or deceptive practice under the Program not later than
72 hours after the incident occurs.
(h) Reports.--
(1) Entities granted a waiver.--
(A) In general.--Any entity that is granted a waiver under
this section shall submit to the Office reports that
include--
(i) how many consumers are participating in the good,
service, or project offered by the entity under the Program;
(ii) an assessment of the likely risks and how mitigation
is taking place;
(iii) any previously unrealized risks that have manifested;
and
(iv) a description of any adverse incidents and the ensuing
process taken to repair any harm done to consumers.
(B) Timing.--An entity shall submit a report required under
subparagraph (A)--
(i) 10 days after 30 days elapses from commencement of the
period for which a waiver is granted under the Program;
(ii) 30 days after the halfway mark of the period described
in clause (i); and
(iii) 30 days before the expiration of the period described
in subsection (d)(1).
(2) Annual report by director.--The Director shall submit
to Congress an annual report on the Program, which shall
include, for the year covered by the report--
(A) the number of applications approved;
(B) the name and description of each entity that was
granted a waiver under the Program;
(C) any benefits realized to the public from the Program;
and
(D) any harms realized to the public from the Program.
(i) Special Message to Congress.--
(1) Definition.--In this subsection, the term ``covered
resolution'' means a joint resolution--
[[Page S4320]]
(A) the matter after the resolving clause of which contains
only--
(i) a list of some or all of the covered provisions that
were recommended for repeal under paragraph (2)(A)(ii) in a
special message submitted to Congress under that paragraph;
and
(ii) a provision that immediately repeals the listed
covered provisions described in paragraph (2)(A)(ii) upon
enactment of the joint resolution; and
(B) upon which Congress completes action before the end of
the first period of 60 calendar days after the date on which
the special message described in subparagraph (A)(i) of this
paragraph is received by Congress.
(2) Submission.--
(A) In general.--Not later than the first day on which both
Houses of Congress are in session after May 1 of each year,
the Director shall submit to Congress a special message
that--
(i) details each covered provision that the Office
recommends should be amended or repealed as a result of
entities being able to operate safely without those covered
provisions during the Program;
(ii) lists any covered provision that should be repealed as
a result of having been waived for a period of not less than
6 years during the Program; and
(iii) explains why each covered provision described in
clauses (i) and (ii) should be amended or repealed.
(B) Delivery to house and senate; printing.--Each special
message submitted under subparagraph (A) shall be--
(i) delivered to the Clerk of the House of Representatives
and the Secretary of the Senate; and
(ii) printed in the Congressional Record.
(3) Procedure in house and senate.--
(A) Referral.--A covered resolution shall be referred to
the appropriate committee of the House of Representatives or
the Senate, as the case may be.
(B) Discharge of committee.--If the committee to which a
covered resolution has been referred has not reported the
resolution at the end of 25 calendar days after the
introduction of the resolution--
(i) the committee shall be discharged from further
consideration of the resolution; and
(ii) the resolution shall be placed on the appropriate
calendar.
(4) Floor consideration in the house.--
(A) Motion to proceed.--
(i) In general.--When the committee of the House of
Representatives has reported, or has been discharged from
further consideration of, a covered resolution, it shall at
any time thereafter be in order (even though a previous
motion to the same effect has been disagreed to) to move to
proceed to the consideration of the resolution.
(ii) Privilege.--A motion described in clause (i) shall be
highly privileged and not debatable.
(iii) No amendment or motion to reconsider.--An amendment
to a motion described in clause (i) shall not be in order,
nor shall it be in order to move to reconsider the vote by
which the motion is agreed to or disagreed to.
(B) Debate.--
(i) In general.--Debate in the House of Representatives on
a covered resolution shall be limited to not more than 2
hours, which shall be divided equally between those favoring
and those opposing the resolution.
(ii) No motion to reconsider.--It shall not be in order in
the House of Representatives to move to reconsider the vote
by which a covered resolution is agreed to or disagreed to.
(C) No motion to postpone consideration or proceed to
consideration of other business.--In the House of
Representatives, motions to postpone, made with respect to
the consideration of a covered resolution, and motions to
proceed to the consideration of other business, shall not be
in order.
(D) Appeals from decisions of chair.--An appeal from the
decision of the Chair relating to the application of the
Rules of the House of Representatives to the procedure
relating to a covered resolution shall be decided without
debate.
(5) Floor consideration in the senate.--
(A) Motion to proceed.--
(i) In general.--Notwithstanding Rule XXII of the Standing
Rules of the Senate, when the committee of the Senate to
which a covered resolution is referred has reported, or has
been discharged from further consideration of, a covered
resolution, it shall at any time thereafter be in order (even
though a previous motion to the same effect has been
disagreed to) to move to proceed to the consideration of the
resolution and all points of order against the covered
resolution are waived.
(ii) Division of time.--A motion to proceed described in
clause (i) is subject to 4 hours of debate divided equally
between those favoring and those opposing the covered
resolution.
(iii) No amendment or motion to postpone or proceed to
other business.--A motion to proceed described in clause (i)
is not subject to--
(I) amendment;
(II) a motion to postpone; or
(III) a motion to proceed to the consideration of other
business.
(B) Floor consideration.--
(i) General.--In the Senate, a covered resolution shall be
subject to 10 hours of debate divided equally between those
favoring and those opposing the covered resolution.
(ii) Amendments.--In the Senate, no amendment to a covered
resolution shall be in order, except an amendment that
strikes from or adds to the list required under paragraph
(1)(A)(i) a covered provision recommended for amendment or
repeal by the Office.
(iii) Motions and appeals.--In the Senate, a motion to
reconsider a vote on final passage of a covered resolution
shall not be in order, and points of order, including
questions of relevancy, and appeals from the decision of the
Presiding Officer, shall be decided without debate.
(6) Receipt of resolution from other house.--If, before
passing a covered resolution, one House receives from the
other a covered resolution--
(A) the covered resolution of the other House shall not be
referred to a committee and shall be deemed to have been
discharged from committee on the day on which it is received;
and
(B) the procedures set forth in paragraph (4) or (5), as
applicable, shall apply in the receiving House to the covered
resolution received from the other House to the same extent
as those procedures apply to a covered resolution of the
receiving House.
(7) Rules of the house of representatives and the senate.--
Paragraphs (3) through (7) are enacted by Congress--
(A) as an exercise of the rulemaking power of the House of
Representatives and the Senate, respectively, and as such are
deemed a part of the rules of each House, respectively, but
applicable only with respect to the procedures to be followed
in the House in the case of covered resolutions, and
supersede other rules only to the extent that they are
inconsistent with such other rules; and
(B) with full recognition of the constitutional right of
either House to change the rules (so far as relating to the
procedure of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
(j) Rule of Construction.--Nothing in this section shall be
construed to--
(1) require an entity that is granted a waiver under this
section to publicly disclose proprietary information,
including trade secrets or commercial or financial
information that is privileged or confidential; or
(2) affect any other provision of law or regulation
applicable to an entity that is not included in a waiver
provided under this section.
(k) Direct Appropriations.--There is appropriated to the
Office for fiscal year 2022, out of any money in the Treasury
not otherwise appropriated, $100,000,000, to remain available
through September 30, 2031, to carry out the Program.
SEC. 70010. DEFINITIONS.
In sections 70008 and 70009:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Information and Regulatory
Affairs.
(2) Agency; rule.--The terms ``agency'' and ``rule'' have
the meanings given those terms in section 551 of title 5,
United States Code.
(3) Applicable agency.--The term ``applicable agency''
means an agency that has jurisdiction over the enforcement or
implementation covered provision for which an applicant is
seeking a waiver under the Program.
(4) Covered provision.--The term ``covered provision''
means--
(A) a rule, including a rule required to be issued under
law; or
(B) guidance or any other document issued by an agency.
(5) Director.--The term ``Director'' means the Director of
the Office.
(6) Economic damage.--The term ``economic damage'' means a
risk that is likely to cause tangible, physical harm to the
property or assets of consumers.
(7) Health or safety.--The term ``health or safety'', with
respect to a risk, means the risk is likely to cause bodily
harm to a human life, loss of human life, or an inability to
sustain the health or life of a human being.
(8) Office.--The term ``Office'' means the Office of
Federal Regulatory Relief established under section 70008(a).
(9) Program.--The term ``Program'' means the program
established under section 70009(a).
(10) Unfair or deceptive trade practice.--The term ``unfair
or deceptive trade practice'' has the meaning given the term
in--
(A) the Policy Statement of the Federal Trade Commission on
Deception, issued on October 14, 1983; and
(B) the Policy Statement of the Federal Trade Commission on
Unfairness, issued on December 17, 1980.
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