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114th Congress   }                                   {   Rept. 114-196
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                   {          Part 1

======================================================================



 
SEARCHING FOR AND CUTTING REGULATIONS THAT ARE UNNECESSARILY BURDENSOME 
                              ACT OF 2015

                                _______
                                

                 July 10, 2015.--Ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1155]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1155) to provide for the establishment of a process 
for the review of rules and sets of rules, and for other 
purposes, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     8
Committee Consideration..........................................     8
Committee Votes..................................................     8
Committee Oversight Findings.....................................    14
New Budget Authority and Tax Expenditures........................    14
Congressional Budget Office Cost Estimate........................    14
Duplication of Federal Programs..................................    17
Disclosure of Directed Rule Makings..............................    17
Performance Goals and Objectives.................................    17
Advisory on Earmarks.............................................    17
Section-by-Section Analysis......................................    17
Committee Jurisdiction Letters...................................    20
Dissenting Views.................................................    22

                          Purpose and Summary

    H.R. 1155, the ``Searching for and Cutting Regulations that 
are Unnecessarily Burdensome Act of 2015'' (SCRUB Act) 
establishes a blue-ribbon Retrospective Regulatory Review 
Commission to identify and recommend to Congress for repeal 
existing Federal regulations that can be eliminated to reduce 
unnecessary regulatory costs to the U.S. economy. The 
Commission is charged with reducing these costs without 
significantly reducing overall regulatory effectiveness, by, 
for example, identifying and recommending for repeal 
regulations that have already achieved their purpose and can be 
repealed without recurrence of the problem they were intended 
to address, are otherwise outdated, impose disproportionate 
paperwork burdens, are ineffective or not cost-justified, 
impede the introduction of newer, safer technologies, or for 
other specified reasons impose unnecessary regulatory burdens. 
The bill sets for the Commission a goal of achieving at least a 
fifteen percent reduction in the cumulative cost of current 
Federal regulations with a minimal reduction in the overall 
effectiveness of Federal regulation.

                Background and Need for the Legislation

                         I. GENERAL BACKGROUND

A. LJobs, Growth and the Impact of Federal Regulations
    Numerous observers have attributed the economy's slow rates 
of job creation and growth in part to the burden of Federal 
regulation and uncertainty over what regulation will come 
next.\1\ According to some estimates, the total Federal 
regulatory burden has reached at least as high as $1.86 
trillion, or in the neighborhood of $15,000 per year for each 
U.S. household.\2\ Americans for Tax Reform estimated in August 
2011 that Americans worked an estimated 77 days per year just 
to cover the cost of the Federal regulatory burden.\3\ 
According to recent Gallup survey results, small-business 
owners in the United States continue to list government 
regulation as one of the top challenges they confront.\4\
---------------------------------------------------------------------------
    \1\See, e.g., Editors, The Uncertainty Principle, The Wall Street 
Journal (July 14, 2010) (available at http://online.wsj.com/article/
SB10001424052748704288204575363162664835780.html?
KEYWORDS=rulemakings); John B. Taylor, ``John Taylor: Rules for 
America's Road to Recovery,'' The Wall Street Journal (May 31, 2012) 
(available at http://online.wsj.com/article/
SB10001424052702303674004577434774238817962.html).
    \2\See Clyde Wayne Crews, Jr., Ten Thousand Commandments 2014, An 
Annual Snapshot of the Regulatory State, at 2 (April 2014) (available 
at http://cei.org/studies/ten-thousand-commandments-2014); National 
Association of Manufacturers, The Cost of Federal Regulation to the 
U.S. Economy, Manufacturing and Small Business at 1 (Sept. 10, 2014), 
available at http://www.nam.org/Data-and-Reports/Cost-of-Federal-
Regulations/Federal-Regulation-Full-Study.pdf (last accessed January 
24, 2015).
    \3\Americans for Tax Reform, 2011 Cost of Government Day, August 12 
(Aug. 10, 2011), (available at http://www.atr.org/?content=2011COGD).
    \4\Gallup Economy, Small Businesses Face Operational, Regulatory 
Challenges (Feb. 28, 2014) (available at http://www.gallup.com/poll/
167660/small-businesses-face-operational-regulatory-challenges.aspx).
---------------------------------------------------------------------------
    Notwithstanding that executive orders since the 1980's have 
required regulatory agencies to clearly identify the problems 
their regulations are intended to solve, available regulatory 
alternatives, and the costs and benefits of new regulations, 
many regulations currently in effect have been ill-considered 
and not clearly necessary. For example, the Obama 
administration has regularly failed to analyze both the costs 
and the benefits of substantial numbers of major 
regulations.\5\,\6\ Similarly, in a multi-year study of major 
regulations, the Mercatus Center found that agencies did a poor 
job satisfying a host of basic rulemaking quality standards. 
These included the identification of clear problems requiring 
regulatory solutions, analysis of adequate alternatives, 
assessment of costs and benefits, and demonstration that chosen 
regulations would produce the agencies' desired outcomes.\7\ 
Consistent with these results, there is bipartisan agreement 
that too many regulations currently in force are defective, and 
that many of these regulations can be revisited and eliminated 
or improved.\8\
---------------------------------------------------------------------------
    \5\``Major'' regulations generally are those with $100 million or 
more in effects. See, e.g., Executive Order 12866 at sec. 3(f) (Sept. 
30, 1993).
    \6\See Office of Information and Regulatory Affairs, 2010 Report to 
Congress on the Benefits and Costs of Federal Regulations and Unfunded 
Mandates on State, Local, and Tribal Entities at 3 (2010) (available at 
http://www.whitehouse.gov/sites/default/files/omb/legislative/reports/
2010_Benefit_Cost_Report.pdf); Office of Information and Regulatory 
Affairs, 2011 Report to Congress on the Benefits and Costs of Federal 
Regulations and Unfunded Mandates on State, Local, and Tribal Entities 
at 3 (2011) (available at http://www.whitehouse.gov/sites/default/
files/omb/inforeg/2011_cb/2011_cba_report.pdf); Office of Information 
and Regulatory Affairs, 2012 Report to Congress on the Benefits and 
Costs of Federal Regulations and Unfunded Mandates on State, Local, and 
Tribal Entities at 3-4 (2012) (available at http://www.whitehouse.gov/
sites/default/files/omb/inforeg/2012_cb/2012_cost_benefit_report.pdf); 
Office of Information and Regulatory Affairs, 2013 Report to Congress 
on the Benefits and Costs of Federal Regulations and Unfunded Mandates 
on State, Local, and Tribal Entities at 4 (2014) (available at http://
www.whitehouse.gov/sites/default/files/omb/inforeg/2013_cb/
2013_cost_benefit_report-updated.
pdf).
    \7\See generally Mercatus Center, Regulatory Report Card, available 
at: http://mercatus.org/reportcard. For a description of the Report 
Card's methodology, see http://mercatus.org/reportcards/methodology.
    \8\See, e.g., Executive Order 13563, Improving Regulation and 
Regulatory Review, at sec. 6, 76 Fed. Reg. 3821, 3822 (Jan. 18, 2011) 
(agencies shall consider how best to promote retrospective analysis of 
rules that may be outmoded, ineffective, insufficient, or excessively 
burdensome, and to modify, streamline, expand, or repeal them in 
accordance with what has been learned); Pres. Barack Obama, Toward a 
21st Century Regulatory System, The Wall Street Journal (January 18, 
2011) (E.O. 13563 ``orders a government-wide review of the rules 
already on the books to remove outdated regulations that stifle job 
creation and make our economy less competitive'') (available at http://
online.wsj.com/article/
SB10001424052748703396604576088272112103698.html).
---------------------------------------------------------------------------
B. LRetrospective Review Efforts by the Executive Branch
    The Obama administration has issued three executive orders 
that in whole or in part call for such retrospective review of 
existing regulations. First and foremost is Executive Order 
13563, issued on January 18, 2011. Among other things, that 
order calls upon executive agencies to conduct, under the 
oversight of the Office of Management and Budget's Office of 
Information and Regulatory Affairs (OIRA), a retrospective 
review of existing, significant regulations to identify which 
``may be outmoded, ineffective, insufficient, or excessively 
burdensome, and to modify, streamline, expand, or repeal them 
in accordance with'' the findings of the retrospective 
review.\9\ The order further calls for such review to be 
conducted periodically thereafter, so that agencies regularly 
can ``determine whether any such regulations should be 
modified, streamlined, expanded, or repealed so as to make the 
agency's regulatory program more effective or less burdensome 
in achieving the regulatory objectives.''\10\
---------------------------------------------------------------------------
    \9\76 Fed. Reg. at 3822.
    \10\Id.
---------------------------------------------------------------------------
    Seven months later, on July 7, 2011, President Obama issued 
another executive order, E.O. 13579, directed at independent 
agencies, such as the Federal Communications Commission, the 
Federal Reserve and the Securities Exchange Commission. These 
agencies fell outside the requirements of E.O. 13563 and prior 
orders, such as E.O. 12866, due in part to hesitancy by 
presidents to assert direct White House control over 
independent agencies' regulatory decisions.
    In E.O. 13579, the President exhorted independent agencies, 
like the executive agencies addressed by E.O. 13563, to conduct 
retrospective analyses of existing significant regulations and 
to prepare plans under which independent agencies would 
thereafter periodically conduct similar retrospective reviews 
to determine whether any such regulations should be modified, 
streamlined, expanded, or repealed.\11\ Unlike executive 
agencies, independent agencies were not ordered to submit such 
plans to OIRA, but rather simply to release the plans to the 
public.\12\
---------------------------------------------------------------------------
    \11\Id.
    \12\Id.
---------------------------------------------------------------------------
    Finally, on May 10, 2012, the President released Executive 
Order 13610, ``Identifying and Reducing Regulatory Burdens.'' 
This order ``invites public participation to help agencies 
determine whether existing regulations remain justified and 
whether they should be modified or streamlined in light of 
changed circumstances, including the rise of new 
technologies.''\13\ It also ``instructs agencies to give 
priority to initiatives that will produce significant monetary 
savings or reductions in paperwork burdens while protecting 
public health, welfare, safety, and the environment.''\14\ 
Finally, the order ``[r]equires agencies to regularly report to 
OIRA on retrospective review efforts, including their progress, 
anticipated accomplishments, and proposed timelines for 
relevant actions.''\15\ The first of these reports was due on 
September 10, 2012. Reports were due thereafter on the second 
Monday of January and July of each year.
---------------------------------------------------------------------------
    \13\Office of the Federal Register, Executive Order 13610 on Public 
Inspection (May 10, 2012) (available at https://
www.federalregister.gov/blog/2012/05/executive-order-13610-on-public-
inspection.
    \14\Id.
    \15\Id.
---------------------------------------------------------------------------
    From the outset, these executive orders have produced few 
meaningful results. For example, the Heritage Foundation's July 
25, 2011, mid-year report on growth in Federal regulation 
reported that, notwithstanding the issuance of E.O. 13563, 
`[i]n the first 6 months of the 2011 fiscal year . . . [n]o 
major rulemaking actions were taken to reduce regulatory 
burdens during this period.'' From January 2009 to mid-FY 2011, 
``there were only six major deregulatory actions . . . , with 
reported savings of just $1.5 billion.''\16\ The 
Administration's own preliminary results of the E.O. 13653 
review, released in May 2011, suggested that the Administration 
had identified only about $1 billion a year in potential 
regulatory burden reductions from the repeal or modification of 
existing regulations.\17\ More recently, in a January 2014 
assessment of the Administration's retrospective review effort, 
the American Action Forum (AAF) determined that ``[o]n net, 
proposed and final rules that have come under this reform have 
added $13.7 billion in new burdens, but counting only 
regulations that cut costs, the Administration has cut at least 
$8.7 billion in burdens.''\18\
---------------------------------------------------------------------------
    \16\James Gattuso and Diane Katz, Red Tape Rising: A 2011 Mid-Year 
Report, the Heritage Foundation (July 25, 2011) (``Red Tape Rising Mid-
Year Report'') (available at http://www.heritage.org/research/reports/
2011/07/red-tape-rising-a-2011-mid-year-report).
    \17\Red Tape Rising Mid-Year Report.
    \18\Sam Batkins, Three Years of Regulatory Reform: Did the 
President's Executive Orders Work?, American Action Forum (Jan. 21, 
2014) (emphasis added) (available at http://americanactionforum.org/
insights/three-years-of-regulatory-reform-did-the-presidents-executive-
orders-work).
---------------------------------------------------------------------------
    In and of itself, a reduction of $8.7 billion in regulatory 
costs, if it actually occurred, would be a positive 
development. However, if the net result of activity under the 
Administration's regulatory reform initiative has been the 
addition of $13.7 billion in regulatory burdens, then it 
appears that the Administration's effort has failed. Making 
matters worse, regulatory activity under the current 
Administration outside of the retrospective review initiative 
has dwarfed any results of retrospective review. According to 
AAF, between 2010 and early 2014, the total burden of paperwork 
hours imposed by Federal regulation had increased by 1.5 
billion hours, or 17 percent, and the Obama administration 
added $488 billion in new regulatory costs between 2009 and 
2012.\19\ The Heritage Foundation has estimated that new 
regulatory costs just from major regulations totaled roughly 
$70 billion during the Administration's first term.\20\
---------------------------------------------------------------------------
    \19\Sam Batkins, President Obama's $488 Billion Regulatory Burden, 
at 3, American Action Forum (Sept. 19, 2012) (available at http://
americanactionforum.org/research/president-obamas-488-billion-
regulatory-burden).
    \20\James Gattuso and Diane Katz, Red Tape Rising: Regulation in 
Obama's First Term, the Heritage Foundation (May 1, 2013) (available at 
http://www.heritage.org/research/reports/2013/05/red-tape-rising-
regulation-in-obamas-first-term).
---------------------------------------------------------------------------
    From 2003 to 2006, the George W. Bush administration also 
engaged in retrospective review of existing regulations. Its 
aim, like the Obama administration's stated goal, was to 
identify and modify or rescind regulations that performed 
suboptimally. Also like the Obama administration, the Bush 
administration conducted its review under OIRA's oversight and 
with opportunities for the public to identify problematic 
regulations. The Bush administration's effort, however, 
likewise did not produce major results.
    There are a number of reasons for which retrospective 
review efforts to date may not have produced significant 
results. Regulatory agencies, on the one hand, have strong 
incentives to focus their resources on prospective regulatory 
activities that address new problems and congressional 
mandates. They have much weaker incentives to revisit their 
past work, examine it, brand it as ineffective or 
counterproductive, and repeal or amend it. Regulated entities, 
meanwhile, have strong incentives to focus their resources on 
the shaping or prevention of new regulations, rather than to 
focus on the nomination of old regulations that agencies should 
modify or rescind. Amendment or repeal of existing regulations, 
for example, can portend the loss of regulated entities' sunk 
costs in regulatory compliance, whole new sets of compliance 
costs connected to replacement regulations, and even 
potentially worse new regulations. Post-hoc attempts by 
regulated entities to identify old regulations for repeal or 
amendment can also antagonize regulatory agencies with which 
these entities must deal on a regular basis.
C. LLegislative Background
            1. LPrior Retrospective Review Proposals during the 112th 
                    and 113th Congresses
    A number of proposals to require some manner of 
retrospective regulatory review through legislation have been 
introduced or advocated over the past several years, both 
within the Congress and in the broader public. In the House of 
Representatives during the 112th Congress, for example, Rep. 
Ben Quayle (R-AZ) introduced H.R. 3392, which was cosponsored 
by several other Members of the Judiciary Committee and 
required agencies to perform decennial reviews of their 
existing major rules, determine the regulations' costs and 
benefits, identify regulatory amendments that would accomplish 
the same statutory objectives but result in different costs and 
benefits, and identify the costs and benefits of repealing the 
existing regulations. Other House bills during the 112th 
Congress included H.R. 6333, the ``Sunset Act of 2012,'' 
introduced by Rep. Steve King (R-IA); H.R. 3068, the 
``Regulatory Sunset and Review Act of 2011,'' introduced by 
Rep. Hultgren (R-IL); and, H.R. 213, ``Regulation Audit Revive 
Economy Act of 2011,'' introduced by Rep. Don Young (R-AK). 
Rep. King's bill required agencies to designate not less than 
10 percent of their eligible rules for review during each of 
the next 10 years, and terminated any such rule for which 
Congress did not enact a joint resolution of approval within 10 
years after enactment of the bill. Mr. Hultgren's legislation, 
reintroduced during the 113th Congress as H.R. 309, created a 
multi-year, structured process for the OIRA Administrator, the 
public and Members of Congress to identify regulations for 
review and potential sunsets in light of the regulations' costs 
and benefits and whether the regulations are obsolete, 
unnecessary, duplicative, conflicting, or otherwise 
inconsistent. Mr. Young's bill directed the Office of 
Management and Budget to review existing regulations and submit 
to Congress a public report that estimated regulations' annual 
costs and benefits and offered recommendations for reforms of 
existing major rules.
    Outside of the House, Senator Warner of Virginia proposed 
during the 112th Congress that agencies be required to rescind 
existing regulations to provide cost offsets as they promulgate 
new regulations, a concept that has been pioneered in the 
United Kingdom and that resembles the House's ``cut-go'' fiscal 
control efforts in the legislative sphere.\21\ During the 113th 
Congress, Senators King of Maine and Blunt of Missouri 
introduced S. 1390, the ``Regulatory Improvement Act of 2013,'' 
to create a regulatory review commission with authority to 
retrospectively review a single area of regulations chosen by 
the review commission and recommend regulations for 
modification, consolidation or elimination of regulations in 
the chosen area. On May 9, 2014, Rep. Patrick Murphy introduced 
a House companion, H.R. 4646, to S. 1390.
---------------------------------------------------------------------------
    \21\Sen. Mark Warner, Self-Replicating Regulation: How to Trim 
Government Overlap, The 
Atlantic (Mar. 12, 2012) (available at http://www.theatlantic.com/
politics/archive/2012/03/self-replicating-regulation-how-to-trim-
government-overlap/253898/).
---------------------------------------------------------------------------
    Commentators outside of Congress similarly have proposed 
potential solutions. For example, Michael Mandel, Ph.D., of the 
Progressive Policy Institute proposed in 2011 the institution 
of a ``Regulatory Improvement Commission,'' akin to the Base 
Realignment and Closure Commission established under the 
Defense Base Closure and Realignment Act of 1990, Pub. L. No. 
101-510, to conduct retrospective review and propose blocs of 
regulations to Congress for rescission.\22\
---------------------------------------------------------------------------
    \22\Michael Mandel, Ph.D., Reviving Jobs and Innovation: A 
Progressive Approach to Improving Regulation, Progressive Policy 
Institute (Feb. 2011) (available at http://progressivepolicy.org/wp-
content/uploads/2011/02/2011_Mandel_A-Progressive-Approach-to-
Improving-Regulation.pdf).
---------------------------------------------------------------------------
            2. LH.R. 4874, the ``Searching for and Cutting Regulations 
                    that are Unnecessarily Burdensome Act of 2014'' 
                    (SCRUB Act)
    Numerous features of prior retrospective review proposals 
have been found by the Committee to have merit. To make the 
most of them and create the most effective overall approach, 
the original SCRUB Act, H.R. 4874, introduced in the 113th 
Congress, built several of these features into its 
architecture, along with innovations of its own. In a nutshell, 
the SCRUB Act institutes an independent regulatory review 
commission with authority to identify within the Code of 
Federal Regulations any regulations or sets of regulations that 
implement regulatory programs that, under specified criteria, 
merit repeal to reduce unnecessary regulatory cost burdens. The 
Commission is empowered to recommend the highest priority 
repeals for immediate action, and, if a joint congressional 
resolution of approval is enacted, agencies are required to 
execute these repeals within 60 days of enactment. All other 
regulations recommended by the Commission for repeal are placed 
into an inventory of regulations which the agencies must repeal 
over time through a ``cut-go'' process as agencies promulgate 
new regulations. Under this process, the costs of each new 
regulation must be offset by cost-reductions associated with 
the repeal of regulations in the inventory, until each agency 
completes the repeals of its own regulations specified in the 
inventory. Agencies are left free to determine the order in 
which they will execute inventory-based repeals. They also 
remain free to promulgate new regulations that re-implement 
statutory authority originally implemented by a regulation in 
the inventory. If they do so, however, they must assure that 
repeals of other regulations in the inventory achieve a full 
offset of the costs of the new regulation. Finally, when the 
Commission recommends the repeal of a set of rules that 
implement a regulatory program, the Commission is to provide to 
Congress an analysis of whether Congress should consider repeal 
of the underlying statutory authority which the set of 
regulations implemented.
    On June 18, 2014, the Committee ordered H.R. 4874 to be 
reported favorably to the House without amendment. On July 24, 
2014, the Committee on Oversight and Government Reform, which 
shared jurisdiction over the bill, also ordered H.R. 4874 to be 
reported favorably to the House, in the form of an amendment in 
the nature of a substitute (AINS) offered by Mr. Collins. The 
AINS applied the Federal Advisory Committee Act to the 
Commission and made a number of other minor revisions to the 
bill.
    H.R. 1155 generally reiterates the terms of H.R. 4874 as 
ordered to be reported by the Committee on Oversight and 
Government Reform and adds a small number of additional 
revisions. Those revisions add new terms to section 101(j) of 
the bill to assure that agencies, when they re-implement 
statutory authority on which repealed rules relied, do not 
promulgate new rules that perpetuate the defects of the 
repealed rules or result in adverse effects of other kinds 
described in section 101(h) of the bill. The revisions also 
convert section 101(k)'s authorization of funding to a simple 
authorization of appropriations up to $30 million and eliminate 
no-longer needed section 101(l) of H.R. 4874, which required 
coordination between the Commission and the Office of 
Management and Budget regarding no-longer authorized transfers 
of agency funds.

                                Hearings

    The Subcommittee on Regulatory Reform, Commercial and 
Antitrust Law held a hearing on H.R. 1155 on March 2, 2015. 
Testimony was received from: William L. Kovacs, Senior Vice 
President for Environment, Technology & Regulatory Affairs, the 
U.S. Chamber of Commerce; Patrick A. McLaughlin, Senior 
Research Fellow, Mercatus Center, George Mason University; Sam 
Batkins, Director of Regulatory Policy, American Action Forum; 
and, Amit Narang, Regulatory Policy Advocate, Public Citizen.

                        Committee Consideration

    On March 24, 2015, the Committee met in open session and 
ordered the bill H.R. 1155 favorably reported without 
amendment, by a rollcall vote of 17 to 12, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1155.
    1. Amendment #1, offered by Mr. Johnson. The Amendment 
strikes title II of the bill, eliminating the bill's regulatory 
``cut-go'' provisions. The amendment was defeated by a rollcall 
vote of 5 to 12.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      5      12
------------------------------------------------------------------------


    2. Amendment #2, offered by Ms. DelBene. The Amendment 
carves out of rules covered by the bill rules made by an agency 
in response to an emergency. The amendment was defeated by a 
rollcall vote of 8 to 13.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      8      13
------------------------------------------------------------------------


    3. Amendment #3, offered by Mr. Cicilline. The Amendment 
carves out of rules covered by the bill rules pertaining to 
consumer safety made by the Commissioner of Food and Drugs, 
including under the FDA Food Safety Modernization Act. The 
amendment was defeated by a rollcall vote of 8 to 13.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................      X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................      X
                                                ------------------------
    Total......................................      8      13
------------------------------------------------------------------------


    4. Amendment #4, offered by Ms. Jackson Lee. The Amendment 
carves out of rules covered by the bill rules made by the 
Secretary of Homeland Security. The amendment was defeated by a 
rollcall vote of 8 to 15.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      8      15
------------------------------------------------------------------------


    5. Amendment #5, offered by Mr. Cicilline. The Amendment 
carves out of rules covered by the bill rules made by the 
Secretary of Veterans Affairs. The amendment was defeated by a 
rollcall vote of 9 to 17.

                             ROLLCALL NO. 5
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................              X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Mr. Trott (MI).................................              X
Mr. Bishop (MI)................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Pierluisi (PR).............................      X
Ms. Chu (CA)...................................
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................      X
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................      9      17
------------------------------------------------------------------------


    6. Reporting H.R. 1155. The bill establishes a blue-ribbon 
Retrospective Regulatory Review Commission to identify and 
recommend to Congress for repeal existing Federal regulations 
that can be eliminated to reduce unnecessary regulatory costs 
to the U.S. economy. Reported by a rollcall vote of 17 to 12.

                             ROLLCALL NO. 6
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................
Mr. Forbes (VA)................................
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................      X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................      X
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................      X
Mr. DeSantis (FL)..............................
Ms. Walters (CA)...............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Mr. Trott (MI).................................      X
Mr. Bishop (MI)................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Pierluisi (PR).............................              X
Ms. Chu (CA)...................................              X
Mr. Deutch (FL)................................              X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Ms. DelBene (WA)...............................              X
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Peters (CA)................................
                                                ------------------------
    Total......................................     17      12
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1155, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                       Washington, DC, May 8, 2015.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1155, the ``SCRUB 
Act of 2015.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford, who can be reached at 226-2860.
            Sincerely,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




                     H.R. 1155--SCRUB Act of 2015.

      As ordered reported by the House Committee on the Judiciary 
                           on March 24, 2015.




                                SUMMARY

    H.R. 1155 would establish a commission to review existing 
Federal regulations and identify those that should be repealed 
to reduce the cost of regulations on the economy. In addition, 
the legislation would require agencies to review all 
regulations within 10 years. Finally, H.R. 1155 would authorize 
the appropriation of up to $30 million to fund the commission.
    CBO estimates that, assuming appropriation of the specified 
amounts, implementing H.R. 1155 would cost $30 million over the 
2016-2020 period to operate the commission. Because any changes 
to current regulations would be subject to future congressional 
action, CBO estimates that enacting the bill would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    H.R. 1155 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary effect of H.R. 1155 is shown in the 
following table. The costs of this legislation fall within 
function 800 (general government) and all budget functions that 
include funding for agencies that issue regulations.

                                     By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
                                                                     2016   2017   2018   2019   2020  2016-2020
----------------------------------------------------------------------------------------------------------------
 
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level                                          30      0      0      0      0        30
 
Estimated Outlays                                                       6      6      6      6      6        30
----------------------------------------------------------------------------------------------------------------

                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that the bill will be 
enacted by the end of fiscal year 2015.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    Title I would establish a commission to review the Code of 
Federal Regulations to determine if a rule or set of rules 
should be repealed to lower the cost of regulations on the U.S. 
economy. The commission would recommend to the Congress a list 
of rules to be repealed. Under the bill, no existing 
regulations could be repealed unless subsequent legislation to 
authorize the repeal was enacted. The commission would consist 
of 9 members appointed by the President and confirmed by the 
Senate. Members would be paid and reimbursed for travel 
expenses. In addition, the commission could hire staff. The 
commission would end after either 5 years and 180 days of 
enactment or 5 years after all commissioner terms have 
commenced, whichever is later. H.R. 1155 also would direct the 
commission to produce annual and final reports on its 
activities and would authorize the appropriation of up to $30 
million to cover the costs of the commission. Assuming 
appropriation of those amounts, CBO estimates that implementing 
this title would cost $30 million over the 2015-2020 period.
    Under title II, Federal agencies would be directed to 
offset the estimated costs on the economy of any new 
regulations by repealing regulations that have been recommended 
for repeal by the commission; the repeal of such regulations, 
however, would require enactment of future legislation. How 
agencies could comply with this requirement to offset the costs 
of new regulations--without enactment of a law to repeal 
existing regulations--is unclear. Whether the implementation of 
new rules would be delayed or postponed under this provision of 
H.R. 1155 is also unknown. Consequently, CBO has not estimated 
any budgetary effects of implementing title II.

                     PAY-AS-YOU-GO CONSIDERATIONS:

    None.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 1155 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would impose no costs on state, 
local, or tribal governments.

                         ESTIMATE PREPARED BY:

Federal Costs: Matthew Pickford
Impact on State, Local, and Tribal Governments: Paige Piper/
    Bach
    Impact on the Private-Sector: Jon Sperl

                         ESTIMATE APPROVED BY:

Theresa Gullo
Assistant Director for Budget Analysis

                    Duplication of Federal Programs

    No provision of H.R. 1155 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1155 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1155 is designed to assure the identification and repeal of 
existing Federal regulations that can be eliminated to reduce 
unnecessary regulatory costs to the U.S. economy, without 
significantly reducing overall regulatory effectiveness, and 
with a goal of reducing by at least 15 percent the cumulative 
cost burden imposed by Federal regulation.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1155 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short title. Section 1 sets forth the short title 
of the bill as the ``Searching for and Cutting Regulations that 
are Unnecessarily Burdensome Act of 2015'' or as the ``SCRUB 
Act of 2015.''
    Sec. 2. Table of Contents; Titles I-V.
            Title I--Retrospective Regulatory Review Commission
    Sec. 101. In General.
    Subsec. (a) establishes the Retrospective Regulatory Review 
Commission, to review rules to be repealed to reduce costs to 
the economy and establishes a termination date that is 5 and a 
half years after enactment of the legislation.
    Subsec. (b) establishes the membership of the Commission as 
9 members appointed by the President and confirmed by the 
Senate, selected from lists of recommendations from Leadership 
in both Houses.
    Subsec. (c) defines the power and authority of the 
Commission to hold meetings, hold public hearings, access 
information, and issue subpoenas for information and witnesses.
    Subsecs. (d) through (g) set the rate of pay and travel 
expenses, provide for a Director of the Commission, and provide 
for staff and hiring authority.
    Subsec. (h):

         Ldirects the Commission to review regulations 
        to identify regulations to repeal, giving priority to 
        older major rules, with a goal of reducing cumulative 
        costs of Federal regulation by 15%;

         Lestablishes criteria by which the Commission 
        will review regulations, including: whether purpose was 
        achieved and rule could be repealed without recurrence, 
        whether costs are not justified by the benefits 
        produced by the expenditure, whether rule rendered 
        unnecessary or obsolete, whether ineffective at 
        achieving rule's purpose, if compliance costs are 
        excessive or otherwise excessively burdensome as 
        compared to alternatives, whether rules inhibit 
        innovation or growth, whether the rule harms 
        competition, and other criteria to eliminate or reduce 
        unnecessarily burdensome costs;

         Lrequires the Commission to establish a 
        methodology to conduct the review and publish the terms 
        in the Federal Register and on an Internet website of 
        the Commission; and,

         Lrequires the Commission to classify 
        identified regulations as either recommending immediate 
        repeal or recommending eligible for repeal through 
        regulatory cut-go procedures; also requires a majority 
        vote for identifying and classifying rules.

    Subsec. (i) requires the Commission to submit notices of 
meetings or hearings, reports at the conclusion of meetings, 
and annual reports to Congress.
    Subsec. (j) provides for Congressional consideration of the 
Commission's recommendations, requires agencies to repeal 
regulations in accordance with the recommendations upon 
enactment of a joint resolution approving of the 
recommendations, precludes agencies from reissuing rules 
substantially similar to rules repealed under the Act, and 
requires agencies to ensure that new rules to re-implement 
statutory authority that underlay repealed rules will not 
result in adverse effects of the kinds specified in or under 
subsec. 101(h).
    Subsec. (k) authorizes funding for the Commission of up to 
$30 million.
    Subsec. (l) requires the Committee to establish a website 
to publish information about the Commission and Commission 
hearings and meetings, and requires comments and submissions to 
the Commission be published to the website.
    Subsec. (m) clarifies that the Federal Advisory Committee 
Act applies to the Commission and any subcommittees of the 
Commission.
            Title II--Regulatory Cut-Go
    Sec. 201. Cut-Go Procedures.
    Requires agencies to repeal a Commission identified rule 
with equal to or greater than costs to the economy when issuing 
a new rule. Allows agencies to repeal rules prior to 
promulgating new regulations to apply the cost savings to new 
rules promulgated at a later time.
    Sec. 202. Applicability.
    Establishes that secs. 201 and 203 are applicable to an 
agency until the agency has repealed all regulations required 
to be repealed under the Act.
    Sec. 203. OIRA Certification of Cost Calculations.
    Requires the Administrator of the Office of Information and 
Regulatory Affairs to review and certify agency determinations 
of costs of new rules under section 201.
            Title III--Retrospective Review of Rules
    Sec. 301. Plan for Future Review.
    Requires that agencies, when they promulgate new rules, 
include plans for at least decennial retrospective review of 
the rules, and requires retrospective reviews for major rules 
to be substantially similar to the review process set forth in 
section 101(h).
            Title IV--Judicial Review
    Sec. 401. Judicial Review.
    Subjects to judicial review an agency's compliance with the 
Act's repeal provisions, cut-go requirements, and requirements 
for retrospective review plans for new rules.
            Title V--Miscellaneous Provisions
    Sec. 501. Definitions
    Sets forth definitions of terms in the Act.
    Sec. 502. Effective Date
    Provides that the Act and amendments made by the Act shall 
take effect beginning on the date of enactment.

                     Committee Jurisdiction Letters


                               __________

                            Dissenting Views

                              INTRODUCTION

    H.R. 1155, the ``Searching for and Cutting Regulations that 
are Unnecessarily Burdensome (SCRUB) Act of 2015,'' would 
establish a ``Retrospective Regulatory Review Commission'' 
charged with assessing the economic costs of all agency rules, 
informal interpretive rules, general statements of policy, 
rules of agency organization and procedure, informal guidance 
documents, and memoranda. The Commission's assessment would 
prioritize corporate profits over public health and safety, 
ignoring the many benefits and protections that agency rules 
provide.
    Further yet, title II of the bill would establish a 
regulatory ``cut-go'' process that would operate as a one-way 
ratchet, forcing agencies to prioritize between existing 
protections and responding to new threats to our health and 
safety. Regulatory cut-go would prohibit any regulatory agency 
from issuing any new rule or informal statement, even in the 
case of an emergency or imminent harm to public health, until 
the agency first offsets the costs of that new rule or guidance 
by repealing an existing rule specified by the Commission. This 
requirement would endanger public health and safety and 
unnecessarily delay Federal rulemaking by years, wasting untold 
taxpayer dollars and agency resources.
    The SCRUB Act is a dangerous solution in search of a 
problem. Each branch of government already conducts effective 
oversight through retrospective review of agency rules, 
narrowing the delegations of authority to agencies, controlling 
agency appropriations, and conducting oversight of agency 
activity. Congress also has the specific authority under the 
Congressional Review Act to disapprove any rule that an agency 
proposes.\1\ Overlooking this array of options that would 
provide the necessary scalpel for smart regulatory cuts, the 
SCRUB Act's meat-cleaver approach is yet another dangerous and 
unbalanced attempt to derail agencies' missions to protect the 
public health and safety. Rather than creating jobs, growing 
the economy, or making Americans safer, these dangerous 
procedures would tie agencies' hands with unnecessary red-tape 
and waste valuable agency resources and taxpayer dollars.
---------------------------------------------------------------------------
    \1\5 U.S.C. Sec. 801(b) (2015).
---------------------------------------------------------------------------
    In recognition of these concerns, the Coalition for 
Sensible Safeguards--an alliance of more than 150 consumer, 
labor, research, faith, and other public interest groups--
strongly opposes this legislation, stating that it would likely 
lead to the repeal of ``critical health, safety, and 
environmental safeguards, even when the benefits of these rules 
are significant, appreciated by the public, and far outweigh 
the costs.''\2\
---------------------------------------------------------------------------
    \2\Letter to Rep. Bob Goodlatte (R-VA), Chair, & Rep. John Conyers, 
Jr. (D-MI), Ranking Member, H. Committee on the Judiciary from the 
Coalition for Sensible Safeguards (Mar. 20, 2015) (original emphasis) 
(on file with the H. Committee on the Judiciary, Democratic Staff). 
Current members of the Coalition include: AFL-CIO; Alliance for 
Justice; American Association of University Professors; American 
Federation of State, County and Municipal Employees; American 
Federation of Teachers Americans for Financial Reform; American Lung 
Association; American Rivers; American Values Campaign; American 
Sustainable Business Council; BlueGreen Alliance; Campaign for Contract 
Agriculture Reform; Center for Effective Government; Center for Digital 
Democracy; Center for Food Safety; Center for Foodborne Illness 
Research & Prevention; Center for Independent Living; Center for 
Science in the Public Interest; Citizens for Sludge-Free Land; Clean 
Air Watch; Clean Water Network; Consortium for Citizens with 
Disabilities; Consumer Federation of America; Consumers Union; 
CounterCorp; Cumberland Countians for Peace & Justice; Demos; Economic 
Policy Institute; Edmonds Institute; Environment America; Farmworker 
Justice; Free Press; Friends of the Earth; Green for All; Health Care 
for America Now; In the Public Interest; International Brotherhood of 
Teamsters; International Center for Technology Assessment; 
International Union, United Automobile, Aerospace & Agricultural 
Implement Workers of America (UAW); League of Conservation Voters; Los 
Angeles Alliance for a New Economy; Main Street Alliance; National 
Association of Consumer Advocates; National Center for Healthy Housing; 
National Consumers League; National Council for Occupational Safety and 
Health; National Employment Law Project; National Lawyers Guild, 
Louisville Chapter; National Women's Health Network; National Women's 
Law Center; Natural Resources Defense Council; Network for 
Environmental & Economic Responsibility of United Church of Christ; New 
Jersey Work Environment Council; New York Committee for Occupational 
Safety and Health; Oregon PeaceWorks; People for the American Way; 
Protect All Children's Environment; Public Citizen; Reproductive Health 
Technologies Project; Safe Tables Our Priority; 
Sierra Club; Service Employees International Union; Southern Illinois 
Committee for Occupational Safety and Health; The Arc of the United 
States; The Partnership for Working Families; Trust for America's 
Health; U.S. Chamber Watch; U.S. PIRG; Union of Concerned Scientists; 
Union Plus; United Food and Commercial Workers Union; United 
Steelworkers; Waterkeeper Alliance; and Worksafe. Coalition for 
Sensible Safeguards--Our Members, http://sensiblesafeguards.org/our-
members.
---------------------------------------------------------------------------
    For the foregoing reasons, and those discussed more fully 
below, we respectfully dissent and urge opposition to H.R. 
1155.

                              DESCRIPTION

    A brief summary of H.R. 1155's provisions within the 
Committee's jurisdiction is presented here and a more detailed 
section-by-section explanation of the bill appears at the end 
of these views.
    Although Title I of H.R. 1155 is not within the 
jurisdiction of our Committee, an explanation of this provision 
is necessary to place the remainder of the bill in proper 
perspective. Section 101 establishes a Retrospective Regulatory 
Review Commission to review rules to determine whether they 
should be repealed to eliminate or reduce the costs of 
regulation to the economy. The Commission would be composed of 
nine members appointed by the President and confirmed by the 
Senate. Title I funds the Retrospective Review Commission for 
an amount not to exceed $30 million.\3\
---------------------------------------------------------------------------
    \3\In the previous version of the bill reported favorably by the 
Committee last Congress, the SCRUB Act allocated the greater of 1% of 
all unobligated funds of regulatory agencies or $25 million, endowing 
at least $4.3 billion to the Commission's budget. See H.R. 4874, 113th 
Cong. 101(k) (2014).
---------------------------------------------------------------------------
    Title I of the SCRUB Act would empower the Commission to 
conduct its review of all formal and informal rules through its 
own methodology, which must be published in the Federal 
Register and on the Commission's website. Although the bill 
would require that the Commission prioritize major rules in its 
review, this review would also include any rules that have been 
in effect for over 15 years, impose paperwork burdens, or 
impose disproportionately high costs on small businesses, or 
could be strengthened in their effectiveness while reducing 
regulatory costs.
    The scope of the mandated review would encompass any 
``rule'' defined in section 551 of the Administrative Procedure 
Act,\4\ which applies to both legislative rules and non-
legislative rules. Importantly, non-legislative rules would 
otherwise be exempt from the APA's notice-and-comment 
requirements.\5\ The Commission must set a goal of reducing 15% 
of the cumulative cost of Federal regulation with a minimal 
reduction in the overall effectiveness of such regulation.
---------------------------------------------------------------------------
    \4\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2015). The APA defines a ``rule'' as ``an agency statement of general 
or particular applicability and future effect designed to implement, 
interpret, or prescribe law or policy or describing the organization, 
procedure, or practice requirements of an agency.'' 5 U.S.C. 
Sec. 551(4) (2015).
    \5\5 U.S.C. Sec. 553(b)(3)(A) (2015).
---------------------------------------------------------------------------
    Title II of H.R. 1155 would establish a regulatory ``cut-
go'' process, requiring agencies to offset the cost of any new 
rule by eliminating a rule identified by the Commission after 
the enactment of a joint resolution by Congress approving the 
recommendations of the Commission's report. Alternatively, an 
agency may elect to repeal rules identified by the Commission 
in anticipation of promulgating a new rule, so long as it 
results in a net reduction in costs imposed by the agency's new 
rule. Once an agency has repealed all the rules identified by 
the Commission, that agency is no longer subject to regulatory 
cut-go.
    The SCRUB Act would create two oversight mechanisms for the 
regulatory cut-go process. First, agency compliance with the 
SCRUB Act's cut-go process is subject to judicial review under 
Title IV of the bill. Second, section 203 would require the 
Administrator of the Office of Information and Regulatory 
Administration (OIRA) to oversee each agency's calculations of 
costs associated with new rules. OIRA would be required to 
review and certify the costs of each new legislative and non-
legislative rule. Section 203 would further require agencies to 
include this review in the administrative record of each 
rulemaking.

                               BACKGROUND

    Federal regulations impact nearly every aspect of our lives 
and are ``one of the basic tools of government used to 
implement public policy.''\6\ The Congressional Research 
Service observes:
---------------------------------------------------------------------------
    \6\Curtis W. Copeland, Cong. Research Serv., RL 32240, The Federal 
Rulemaking Process: An Overview 1 (2005).

        Agencies issue thousands of rules and regulations each 
        year to implement statutes enacted by Congress. The 
        public policy goals and benefits of regulations 
        include, among other things, ensuring that workplaces, 
        air travel, foods, and drugs are safe; that the 
        nation's air, water and land are not polluted; and that 
        the appropriate amount of taxes is collected. The costs 
        of these regulations are estimated to be in the 
        hundreds of billions of dollars, and the benefits 
        estimates are even higher.\7\
---------------------------------------------------------------------------
    \7\Regulatory Reform: Are Regulations Hindering Our 
Competitiveness?: Hearing Before the Subcomm. on Regulatory Affairs of 
the H. Comm. on Gov't Reform, 109th Cong. (2005) (testimony of J. 
Christopher Mihm, Managing Director, Strategic Issues, U.S. Government 
Accountability Office).

    The Administrative Procedure Act (APA),\8\ enacted in 1946, 
establishes the minimum rulemaking\9\ and formal adjudication 
requirements for all administrative agencies. The APA's 
baseline procedural requirements are designed to maintain a 
balance between this type of agency flexibility and the 
requirements of due process. As 84 leading administrative law 
academics have observed, ``The APA has served for nearly 70 
years as a kind of Constitution for administrative agencies and 
the affected public--flexible enough to accommodate the variety 
of agencies operating under it and the changes in modern 
life.''\10\
---------------------------------------------------------------------------
    \8\5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521 
(2015).
    \9\The APA defines ``rulemaking'' as the ``agency process for 
formulating, amending or repealing a rule.'' 5 U.S.C. Sec. 551(5) 
(2015). A ``rule,'' in turn, is defined as ``an agency statement of 
general or particular applicability and future effect designed to 
implement, interpret, or prescribe law or policy or describing the 
organization, procedure, or practice requirements of an agency.'' 5 
U.S.C. Sec. 551(4) (2015).
    \10\Letter from 84 administrative law academics to H. Judiciary 
Comm. Chair Bob Goodlatte (R-VA) and H. Judiciary Comm. Ranking Member 
John Conyers, Jr. (D-MI), 2 (Jan. 12, 2015) (on file with the H. Comm. 
on the Judiciary, Democratic staff).
---------------------------------------------------------------------------
    In general, proposed rules go through an extensive vetting 
process that many believe is already too ossified.\11\ In 
addition to the APA, numerous other procedural and analytical 
requirements have been imposed on the rulemaking process by 
Congress and various presidents.\12\ These requirements focus 
``predominately on agencies' development of new rules,'' 
according to the Government Accountability Office (GAO).\13\
---------------------------------------------------------------------------
    \11\See, e.g., Richard J. Pierce, Jr., Rulemaking Ossification Is 
Real: A Response to Testing the Ossificiation Thesis, 80 Geo. Wash. L. 
Rev. 1493 (2012); Hearing on H.R. 348, the ``Responsibly And 
Professionally Invigorating Development Act of 2015'' (RAPID Act); H.R. 
712, the ``Sunshine for Regulatory Decrees and Settlements Act of 
2015;'' and, H.R. 1155, the ``Searching for and Cutting Regulations 
that are Unnecessarily Burdensome Act of 2015'' (SCRUB Act) Before the 
Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. 
Comm. on the Judiciary, 114th Cong. 1, 4-5 (2015) (statement of Amit 
Narang, Regulatory Policy Advocate, Public Citizen), http://
judiciary.house.gov/_cache/files/cfc2a8c6-729e-4e77-9f9f-561f60f1c153/
narang-
testimony.pdf [hereinafter H.R. 1155 Hearing].
    \12\Examples of legislative mandates include the Unfunded Mandates 
Reform Act, Pub. L. No. 104-4 (1995); the Regulatory Flexibility Act, 
Pub. L. No. 96-354, 94 Stat. 1164, 1169 (1980); and the Congressional 
Review Act, Pub. L. No. 104-121 (1996). In addition, both Republican 
and Democratic Presidents have issued executive orders mandating 
additional procedural and analytical requirements for Federal 
rulemakings. See, e.g., Exec. Ord. 12,866, 58 Fed. Reg. 190 (Sept. 30, 
1993) (outlining requirements for cost-benefit analysis and review by 
the Office of Information and Regulatory Affairs for significant rules 
issued by executive branch agencies).
    \13\U.S. Gov't Accountability Office, GAO-07-791, Reexamining 
Regulations: Opportunities Exist to Improve Effectiveness and 
Transparency of Retrospective Reviews 1 (2007) [hereinafter GAO 
Report].
---------------------------------------------------------------------------
    In addition to assessing rules before they go into effect, 
agencies are often required to review their regulations 
retrospectively to determine whether any should be revoked or 
modified. Some reviews are conducted in response to legislative 
mandate, at the discretion of the agency,\14\ or as required by 
executive order.\15\
---------------------------------------------------------------------------
    \14\Id. at 5.
    \15\For a more extensive discussion of statutes and executive 
orders requiring retrospective review, see discussion infra Part III.B.
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 1155

    The SCRUB Act would establish a Commission charged with a 
redundant and unbalanced mandate that prioritizes economic 
costs of rules with little to no consideration of the benefits 
and protections that these rules provide for the health, 
safety, and well-being of the public and environment. Title II 
of the bill would further require that agencies offset the cost 
of new rules through a regulatory ``cut-go'' process for every 
new agency rule. Relying on the faulty premise that regulations 
undermine economic growth and job creation, regulatory cut-go 
would force agencies to offset the costs of any new rule, 
informal guidance document, or memoranda by repealing an 
existing rule identified by the Commission. This additional 
layer of red-tape would require a new rulemaking process for 
each rule eliminated, forcing agencies to wastefully calculate 
the cost of any agency action, including issuing informal 
memoranda. The result of this misguided legislation would be 
years of delays in the rulemaking process, an unprecedented 
burden on agencies and taxpayers, and a dangerous threat to the 
agencies' missions to protect the public health and safety from 
imminent harm.

     I. REGULATORY CUT-GO WOULD IMPOSE BURDENSOME AND UNNECESSARY 
         REQUIREMENTS THAT WOULD STALL OR PREVENT AGENCY ACTION

    Title II of the SCRUB Act would prohibit any regulatory 
agency from issuing any new rule, including non-legislative and 
procedural rules, until the agency first offsets the costs of 
the new rule by eliminating an existing rule identified by the 
Commission.\16\ This process, also known as regulatory cut-go, 
would present a dangerous false choice to agencies, cause years 
of delays in the rulemaking process, and create additional 
burdens due to its implementation problems. As administrative 
law experts Sidney Shapiro and Richard Murphy argue, regulatory 
cut-go is ``so fundamentally flawed that it cannot be regarded 
as a serious policy proposal,'' but instead is ``a political 
stunt designed to appeal to the anti-regulatory reflexes of 
corporate interests that find regulation costly and of people 
who subscribe to the ideological belief that government is 
always the problem and never the solution.''\17\
---------------------------------------------------------------------------
    \16\H.R. 1155, 114th Cong. 201 (2015).
    \17\Sidney A. Shapiro et al., Regulatory `Pay Go': Rationing the 
Public Interest, Ctr. for Progressive Reform Issue Alert #1214 1 (Oct. 
2012), http://progressivereform.org/articles/
Regulatory_Pay-Go_1214.pdf [hereinafter Shapiro].
---------------------------------------------------------------------------
A. LRegulatory Cut-Go Would Require Agencies to Estimate the Cost of 
        Virtually Every New Action
    The SCRUB Act would require agencies to calculate the costs 
of any new ``rule,'' which includes practically any agency 
action or communication, to determine whether the rule triggers 
the bill's regulatory cut-go provisions.\18\ The bill defines 
``rule'' through reference to section 551 of the APA.\19\ This 
definition is so broad that it applies to virtually any agency 
action, including (1) legislative rules that bind regulated 
entities; (2) non-legislative rules, such as general statements 
of policy such as a press release, speech, memorandum, 
statements, and informal guidance document;\20\ and (3) rules 
of agency organization, procedure and practice, which courts 
have defined as technical regulations to prescribe order and 
formality in business transactions.\21\ The practical impact of 
this sweeping requirement would be nothing short of disastrous, 
as Professor Ronald Levin argued in his testimony on the bill:
---------------------------------------------------------------------------
    \18\H.R. 1155, 114th Cong. 203 (2015) (``The Administrator of the 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget shall review and certify the accuracy of agency 
determinations of the costs of new rules under section 201.'')
    \19\5 U.S.C. Sec. 551 (2015).
    \20\5 U.S.C. Sec. 553(b)(3)(A) (2015); William Funk, A Primer on 
Nonlegislative Rules, 53 Admin. L. Rev. 1321, 1322 (2001) (``These 
rules are often called nonlegislative rules, because they are not `law' 
in the way that statutes and substantive rules that have gone through 
notice and comment are `law,' in the sense of creating legal 
obligations on private parties.'').
    \21\Pickus v. United States Board of Parole, 507 F.2d 1107, 1113-14 
(D.C. Cir. 1974).

        [E]ven if the Title II process were justified in 
        principle, the unwieldiness of the process would 
        counsel against adopting it. The challenges an agency 
        would face in implementing it would be daunting. The 
        process would require the agency to quantify the costs 
        of every new rule, no matter how trivial the rule might 
        be. This is a substantial departure from current 
        practice. . . . The SCRUB Act . . . goes much further 
        by requiring the same procedure for every rule, not 
        just every major rule. I have to assume that the 
        subcommittee did not give sufficient thought to this 
        manifestly extravagant requirement. Could the sponsors 
        really mean to require an agency to prepare a plan for 
        decennial review of rules that would have such minor 
        impact that they would even be exempted from notice and 
        comment requirements? Rules that would have no 
        compliance costs at all, because they are instituted to 
        distribute benefits rather than to impose burdens? 
        Rules that are designed to address a short-term 
        situation, so that they will not even exist 10 years 
        after they are promulgated? Rules of particular 
        applicability, such as decisions approving corporate 
        reorganizations? [This section] is stunningly 
        overbroad, but I am not going to recommend that it be 
        trimmed back to encompass major rules, because even 
        with that limitation it should be eliminated from the 
        bill.\22\
---------------------------------------------------------------------------
    \22\Searching for and Cutting Regulations that are Unnecessarily 
Burdensome (SCRUB) Act of 2014: Hearing Before the Subcomm. on 
Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the 
Judiciary, 113th Cong. 9, 11 (2014) (statement of Ronald M. Levin, 
Professor of Law, Washington University School of Law), http://
judiciary.house.gov/_cache/files/61953df7-cc3f-486a-bb27-71a8d2be42c0/
levin-scrub-act-testimony.pdf [hereinafter H.R. 4874 Hearing].

    Due to its practically limitless scope, this cost-
assessment requirement would likely deter agencies from 
proactively clarifying matters of law or policy through non-
legislative and procedural rules. Agency personnel routinely 
rely on non-legislative rules to inform the public and to 
maintain the consistent applications of statutes and 
regulations within agencies.\23\ These rules are routine and 
serve a variety of critical functions, such as assuring the 
uniform application of a statute or regulation and informing 
the public of an agency's practice and views.\24\ For instance, 
David Cohen, the Under Secretary for Terrorism and Financial 
Intelligence at the U.S. Department of the Treasury, delivered 
remarks in March 2014 to clarify the risks involved with 
virtual currency such as Bitcoin, which is an emerging topic in 
the field.\25\ These remarks, which described prior enforcement 
actions by the agency and agency guidance in the area of 
virtual currency, would not be considered a ``meeting'' within 
the meaning of section 553 of the APA.\26\ However, these 
remarks would still be within the SCRUB Act's definition of a 
rule, thereby triggering the SCRUB Act's cost-assessment 
requirement. In another example, the Food and Drug 
Administration (FDA) regularly issues informal guidance on 
routine matters to inform the public of its practices, such as 
its recent guidance on the FDA's voting procedures for advisory 
committee meetings.\27\ The FDA also issues guidance to ensure 
the uniform application of statutes, such as when it recently 
issued informal guidance on the quality requirements of baby 
formula,\28\ as well as the nutritional labeling for foods that 
are gluten-free or contain allergens.\29\ Again, because the 
SCRUB Act's cost-estimate requirement does not distinguish 
between routine guidance and major rules, it is unclear whether 
agencies would continue to perform this function if each action 
triggered procedural hurdles under the SCRUB Act. This reverse 
incentive to avoid offering clarification or additional 
guidance would result in the inconsistent application of 
regulation and statutes by agency personnel. Without routine 
informal guidance, agency personnel would lack a consistent 
mechanism for applying rules and statutes. Worse still, the 
SCRUB Act would have a chilling effect on speech by agency 
officials, who would think twice before delivering statements 
or issuing press releases to inform the public of agency views 
or activity if every speech required a cost-estimate, shrouding 
agencies' practices and views from the public. Regardless of 
the result, the practical effects of this over-broad 
requirement would be to diminish agencies' ability to protect 
and inform the public through clarifications and updates of 
non-legislative and procedural rules.
---------------------------------------------------------------------------
    \23\Sam Kalen, Guidance Documents and the Courts, in 57 Rocky 
Mountain Mineral Law Institute Proceedings of the Rocky Mountain 
Mineral Law Fifty-Seventh Annual Institute 5-1 (Rocky Mountain Mineral 
Law Foundation ed., 2011).
    \24\Id.
    \25\David S. Cohen, Remarks From Under Secretary of Terrorism and 
Financial Intelligence David S. Cohen on ``Addressing the Illicit 
Finance Risks of Virtual Currency, Department of the Treasury (Mar. 18, 
2014), http://www.treasury.gov/press-center/press-releases/Pages/
jl236.aspx.
    \26\5 U.S.C. 553(b) (2015) (defining ``meeting'' as ``the 
deliberations of at least the number of individual agency members 
required to take action on behalf of the agency where such 
deliberations determine or result in the joint conduct or disposition 
of official agency business.'').
    \27\Food and Drug Administration, Voting Procedures for Advisory 
Committee Meetings (Aug. 2008), http://www.fda.gov/downloads/
RegulatoryInformation/Guidances/UCM125641.pdf.
    \28\21 CFR 106.96(i) (eligible infant formulas).
    \29\Food Allergens Guidance Documents & Regulatory Information, 
Food and Drug Administration, http://www.fda.gov/Food/
GuidanceRegulation/GuidanceDocumentsRegulatory
Information/Allergens/default.htm (accessed on April 1, 2015).
---------------------------------------------------------------------------
    Requiring cost estimates for every new rule would create 
daunting challenges for agencies. In a December 2014 report 
commissioned by the Administrative Conference of the United 
States (ACUS), Professor Joseph E. Aldy, an Assistant Professor 
of Public Policy at Harvard's John F. Kennedy School of 
Government, notes that the dearth of ex post cost and benefits 
estimates presents a major challenges for agencies to comply 
with the SCRUB Act:

        Generating an aggregate estimate of the costs of a 
        given agency's suite of regulations--especially given 
        the variations in the timing of costs (some rules 
        impose large capital investments, which are one-shot 
        investments, while others impose periodic operational 
        costs), potential interactive impacts of multiple 
        regulations (which could either increase or decrease 
        aggregate costs relative to assessment of the 
        individual regulations), and even potential interactive 
        impacts of regulations with other agencies--is very 
        difficult. Moreover, whatever estimate an independent 
        commission would produce would be subject to quite 
        significant uncertainty, which could be problematic 
        given the precision within which the estimates would be 
        used in determining whether a new regulation could go 
        forward.\30\
---------------------------------------------------------------------------
    \30\Joseph Aldy, Learning from Experience: An Assessment of the 
Retrospective Reviews of Agency Rules and the Evidence for Improving 
the Design and Implementation of Regulatory Policy, Admin. Conf. of the 
U.S. (Nov. 17, 2014), https://www.acus.gov/sites/default/files/
documents/Aldy%2520Retro%2520Review%2520Draft%252011-17-2014.pdf.

The SCRUB Act is also silent on how agencies would calculate 
the costs of every new rule. Far from an exact science, costs 
are notoriously difficult for agencies to calculate.\31\ The 
Office of Management and Budget (OMB) observed in its first 
annual report on the costs and benefits of Federal regulations 
that there are ``enormous data gaps in the information 
available on regulatory benefits and costs.''\32\ If tasked 
with determining the costs of each regulatory action, agencies 
would likely rely on industry-supplied data, which routinely 
overstates the costs of rules.\33\ In a review of several dozen 
environmental and occupational safety regulations, researchers 
repeatedly found that ``cost estimates tend to be much higher 
than real-world compliance costs.''\34\ This is particularly 
true for the initial estimates of rules' costs, which were ``at 
least double'' their actual cost, and ``could be seen more in 
the nature of debating points than objective cost assessments 
of costs.''\35\
---------------------------------------------------------------------------
    \31\Shapiro, supra note 17, at 8.
    \32\Office of Mgmt. & Budget, 1998 Report of OMB to Congress on the 
Costs and Benefits of Federal Regulations 2 (1998).
    \33\Thomas O. McGarity & Ruth Ruttenberg, Counting the Cost of 
Health, Safety, and Environmental Regulation, 80 Tex. L. Rev. 1997, 
2011, 2042 (2002)
    \34\Id.
    \35\Id.
---------------------------------------------------------------------------
    In addition to tasking agencies with calculating the costs 
of any new rule, Section 203 of the SCRUB Act would further 
require that OIRA certify the accuracy of these estimates. 
Currently, OIRA only reviews a small portion of ``significant'' 
proposed rules,\36\ allowing it to efficiently allocate its 
finite resources to review the most pressing rules. By 
substantially expanding OIRA's mandate to include every 
regulatory action, the SCRUB Act would water-down OIRA's 
oversight of the rulemaking process. Additionally, requiring 
OIRA to review every new rule would facilitate greater 
political interference in the rulemaking process by giving the 
executive branch more control over congressionally-mandated 
rulemaking. In short, greater presidential control over 
rulemaking, in the wrong administration's hands, could 
undermine important health, safety, consumer protection, 
financial and other regulations by providing industry with an 
additional bottleneck for the issuance of rules. As a detailed 
analysis of the Bush Administration's involvement of the 
rulemaking process demonstrates that overly restrictive control 
of the rulemaking process by the executive branch undermines 
the public interests and circumvents legislative intent.\37\
---------------------------------------------------------------------------
    \36\Exec. Order 12,866, 58 Fed. Reg. 51,735, Sec. 6(b)(1) (1993).
    \37\H. Comm. on the Judiciary Majority Staff, 111th Cong., Reining 
in the Imperial Presidency--Lessons and Recommendations Relating to the 
Presidency of George W. Bush 186 (Comm. Print 2009).
---------------------------------------------------------------------------
B. LRegulatory Cut-Go Would Require Agencies to Conduct a Costly and 
        Time-Consuming Rulemaking Process for Each Rule Eliminated
    The SCRUB Act would require agencies to offset the costs of 
virtually all agency action by eliminating an existing rule 
with equal or greater estimated cost. Agencies, however, are 
unable to simply rescind rules. Instead, the APA requires that 
agencies follow the same notice-and-comment procedures to 
eliminate a rule as would be required to issue the same rule in 
the first place.\38\ Therefore, prior to eliminating any rule 
through regulatory cut-go, agencies must undertake a lengthy 
rulemaking process to carefully ``examine the relevant data and 
articulate a satisfactory explanation for its action,''\39\ 
thereby forcing agencies to undertake twice as much work to 
issue a single new rule. Prior to promulgating a new 
legislative rule, agencies would have to prepare two proposals: 
one for promulgating a new rule, and one for eliminating an 
existing rule required by the Commission.\40\ This process may 
take anywhere from a few months to several years,\41\ 
especially when the underlying rule involves complex matters of 
science or economics.\42\ And even though Congress specifically 
excluded non-legislative rules from this process,\43\ the SCRUB 
Act's broad definition of rule would circumvent this 
commonsense exclusion.\44\ Furthermore, unless agencies are 
able to justify the elimination of a rule through a rational 
basis supported by the rulemaking record, any rescission of a 
rule may be vacated as ``arbitrary and capricious'' under 
section 706 of APA.\45\ Thus, the SCRUB Act would essentially 
function as a chokehold on agency rulemaking, delaying any new 
action by an agency and draining agency resources in a time of 
widespread budget austerity.\46\
---------------------------------------------------------------------------
    \38\5 U.S.C. Sec. 551 (2015).
    \39\See Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29, 31 
(1983).
    \40\Id.
    \41\Center for Effective Government, Notice-and-Comment Rulemaking, 
http://www.foreffectivegov.org/node/3463 (last visited April 1, 2015).
    \42\Regulations from the Executive in Need of Scrutiny Act of 2011: 
Hearing on H.R. 10 Before the Subcomm. on Courts, Commercial and Admin. 
L. of the H. Comm. on the Judiciary, 112th Cong. (2011) (statement of 
David Goldston, Director of Government Affairs, Natural Resources 
Defense Council) (``Agencies often take several years to formulate a 
particular safeguard, reviewing hundreds of scientific studies, drawing 
on their own experts in science and economics, empaneling outside 
expert advisors, gathering thousands of public comments, and going 
though many levels of executive branch review''); Center for Effective 
Government, Notice-and-Comment Rulemaking, http://
www.foreffectivegov.org/node/3463 (last visited April 1, 2015).
    \43\5 U.S.C. Sec. 553(b)(A) (2015) (excluding ``interpretative 
rules, general statements of policy, or rules of agency organization, 
procedure, or practice'' from section 553).
    \44\Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29, 31 
(1983).
    \45\5 U.S.C. Sec. 706(2) (2015); Motor Veh. Mfrs. Ass'n v. State 
Farm Ins., 463 U.S. 29, 31 (1983).
    \46\Shapiro, supra note 17, at 10.
---------------------------------------------------------------------------
C. LThe SCRUB Act Would Open the Floodgates to Legal Challenges to 
        Rules Eliminated through Regulatory Cut-Go
    In the event that agencies could overcome the procedural 
hurdles imposed by the SCRUB Act, courts would have ample 
opportunity to review any agency action to implement the 
statute, opening the floodgates of legal challenges. Title IV 
of the bill subjects an agency's compliance with the bill's 
cut-go procedures to judicial review. Additionally, the APA 
provides that ``final agency action for which there is no other 
adequate remedy in a court [is] subject to judicial review,'' 
including those actions that are otherwise unreviewable.\47\ 
Courts may therefore vacate any rule, including a rescission of 
a rule,\48\ as ``arbitrary and capricious'' under section 706 
of the APA unless the agency carefully reviews each rule 
eliminated and is able to justify the rescission of a rule 
through an adequate basis in the rulemaking record.\49\ The 
Supreme Court has construed this standard to require a 
reviewing court to conduct a ``searching and careful'' review 
of agency action.\50\ This type of heightened review under the 
arbitrary and capricious standard--also referred to as the 
``hard look'' doctrine--requires courts to carefully analyze 
both the administrative record and the agency's explanation to 
review whether the agency applied the ``correct analytical 
methodology, applied the right criteria, considered the 
relevant factors, chose from among the available range of 
regulatory options, relied upon appropriate policies, and 
pointed to adequate support in the record for material 
empirical conclusions.''\51\ The SCRUB Act lacks any 
clarification of the Commission's methodology for reviewing 
rules, as well as any limit on the criteria the Commission must 
follow for identifying rules that must be repealed so long as 
rescinding these rules would ``eliminate or reduce 
unnecessarily burdensome costs to the United States economy'' 
pursuant to section 101 of the bill. It is doubtful that the 
Commission's blank-check to identify rules to eliminate through 
cut-go would provide agencies with adequate empirical support 
to satisfy the hard-look doctrine's requirement of a thorough 
administrative record supporting a rule's recision,\52\ making 
it unlikely that the SCRUB Act's process of regulatory cut-go 
would even withstand judicial scrutiny.
---------------------------------------------------------------------------
    \47\5 U.S.C. Sec. Sec. 702, 704 (2015). Any plaintiff that is 
``adversely affected or aggrieved'' by a final agency action, including 
the recisision of a rule, may invoke judicial review. 5 U.S.C. 
Sec. 702.; see Webster v. Doe, 486 U.S. 592 (1988); Oestereich v. 
Selective Service System, 393 U.S. 233 (1968).
    \48\Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29, 31 
(1983).
    \49\5 U.S.C. Sec. 706(2) (2015); Motor Veh. Mfrs. Ass'n v. State 
Farm Ins., 463 U.S. 29, 31 (1983).
    \50\Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 
407-09 (1971).
    \51\Thomas O. McGarity, Some Thoughts on Deossifying the Rulemaking 
Process, 41 Duke L.J. 1385, 1410 (1992).
    \52\Shapiro, supra note 17, at 10.
---------------------------------------------------------------------------
D. LRegulatory Cut-Go Would Disproportionately Affect New Agencies, 
        Inviting Controversy and Discouraging Government Efficiency
    The SCRUB Act would create strong disincentives to 
streamline government agencies or respond to crises through the 
creation of new agencies. Regulatory cut-go applies to any 
agency that promulgates rules without exception, creating 
substantial uncertainty for a newly-created agency starting 
with a regulatory budget of $0.\53\ If regulatory cut-go 
applies to the entire regulatory budget of an administration, 
then the initial regulation issued by new agency would have to 
displace an existing regulation from another agency. If, 
however, the bill's procedural hurdles only apply to the 
regulatory budget of each agency, it is unclear whether 
Congress would have to specifically exempt new agencies from 
regulatory cut-go, or if these agencies would borrow through 
other agencies' regulatory budgets. For instance, if regulatory 
cut-go existed prior to the creation of the Consumer Financial 
Protection Bureau (CFPB), an entirely new agency created in the 
wake of the financial crisis, either an agency separate from 
the CFPB would have to offset a new rule issued by the CFPB, or 
Congress would have needed to provide a special exemption for 
the CFPB due to the agency's inability to function without a 
regulatory budget.\54\ Regardless of how new agencies would 
address these difficult, unnecessary, and controversial 
choices, the SCRUB Act would create barriers to reorganizing 
agencies to more effectively serve the public interest.\55\
---------------------------------------------------------------------------
    \53\See id. at 9.
    \54\Id.
    \55\See id.
---------------------------------------------------------------------------

 II. THE SCRUB ACT WOULD UNDERMINE AGENCIES' ABILITY TO PROTECT PUBLIC 
                           HEALTH AND SAFETY

A. LThe Scrub Act Would Force Agencies to Make a Dangerous False Choice 
        Between Existing Rules and New Rules to Protect the Public 
        Health and Safety
    Regulatory cut-go imposes a false choice between existing 
protections and responding to a new threat to public health and 
safety. If an agency needed to respond to an imminent hazard to 
the public or environment, it would have to either rescind an 
existing rule that is haphazardly identified by the 
Commission's arbitrary and cost-centric process, or choose not 
to act. Testifying in opposition to H.R. 1155, Amit Narang, a 
Regulatory Policy Advocate for Public Citizen, argued that 
``title II would potentially prevent agencies from putting 
forth critical new regulations of a similar magnitude that were 
identified by the [Commission] and approved by Congress that 
were not concurrently removed.''\56\ Narang further observed 
that this requirement would potentially require the Department 
of Transportation to eliminate existing auto-safety rules, such 
as requiring seatbelts in cars, before issuing rules requiring 
additional auto-safety features.\57\ Regardless of how it is 
implemented, the SCRUB Act would force agencies to choose the 
least-worst option, leaving the public and the environment 
without safeguards against risks that agencies have 
identified.\58\
---------------------------------------------------------------------------
    \56\See H.R. 1155 Hearing, supra note 11, at 9.
    \57\Id. at 9-10.
    \58\Shapiro, supra note 17, at 5 (``Regulatory pay-go completely 
ignores this less [of cost-benefit analysis], and thus is even more 
extreme than cost-benefit analysis in its disregard of regulatory 
benefits.'').
---------------------------------------------------------------------------
    Highlighting the importance of the ``many public health and 
safety benefits that Federal regulations advance and protect,'' 
Representative David Cicilline (D-RI) offered an amendment to 
except from the bill any rule issued by the Food and Drug 
Administration.\59\ Representative Cicilline observed that H.R. 
1155 ``is based on the idea that the absolute value of a rule 
is limited to the cost that it may impose on corporate or 
businesses interest,'' and that ``ultimately this bill asks us 
to prioritize those interests at the cost of the public 
good.''\60\ Speaking in support of Representative Cicilline's 
amendment, Representative John Conyers, Jr. (D-MI) argued 
flexible agency rulemaking is necessary to the public interest, 
and that H.R. 1155's ``burdensome regulatory framework would 
delay or sometimes even prevent agencies from protecting public 
health and safety, including the FDA.''\61\ This amendment 
failed along party lines by a vote of 8 to 13.\62\ Recognizing 
the false choice that the SCRUB Act imposes on agency 
rulemaking, Representative David Cicilline (D-RI) offered an 
additional amendment to H.R. 1155 that excepted from the bill 
rules issued by the Department of Veterans Affairs.\63\ This 
amendment also failed along party lines by a vote of 9 to 
17.\64\
---------------------------------------------------------------------------
    \59\Tr. of Markup of H.R. 1155, ``Searching for and Cutting 
Regulations that are Unnecessarily Burdensome Act of 2015 by the H. 
Comm. on the Judiciary, 114th Cong. 136 (March 24, 2015), http://
judiciary.house.gov/_cache/files/26476c04-a8fb-48a1-96cc-914ea82f001c/
03.24.15-markup-transcript.pdf [hereinafter Markup Tr.].
    \60\Id. at 137.
    \61\Id. at 139.
    \62\Id. at 145.
    \63\Id. at 155.
    \64\Id. at 175.
---------------------------------------------------------------------------
    To further illustrate how H.R. 1155 would interfere with 
the ``responsibilities of the actual agency to really do its 
job and its mission,'' Representative Sheila Jackson Lee (D-TX) 
offered an amendment that would except from the SCRUB Act any 
rule issued by the Department of Homeland Security.\65\ 
Speaking in support of her amendment, Representative Jackson 
Lee noted that through her position as a senior Member of the 
Homeland Security Committee, she well-understood the challenges 
that face the Department of Homeland Security and its important 
function in preventing terror threats, which would be slowed 
and undermined by H.R. 1155.\66\ Rather than engaging in a 
wasteful and redundant analysis of all of its rules, 
Representative Jackson Lee concluded that the Department of 
Homeland Security should be focused ``on the crucial mission of 
securing the homeland.''\67\ Speaking in support of this 
amendment, Representative Conyers stated that ``effective 
rulemaking is a critical tool for the Department of Homeland 
Security to protect the nation from acts of terrorism,'' among 
other things.\68\ This amendment also failed along party lines 
by a vote of 8 to 15.\69\
---------------------------------------------------------------------------
    \65\Id.
    \66\Id. at 148.
    \67\Id. at 152.
    \68\Id. at 151.
    \69\Id. at 158.
---------------------------------------------------------------------------
B. LThe Scrub Act Lacks Any Flexibility for Agency Response to Urgent 
        Public Health and Safety Matters through Emergency Rulemaking
    Title II of the SCRUB Act fails to provide any exception 
from cumbersome procedural hurdles for agencies to issue 
emergency rules that protect the public and environment from 
imminent harm. Agencies often promulgate emergency rules in a 
timely response to immediate threats to public health and 
safety. Indeed, the APA specifically permits agencies to 
finalize rules not subject to the notice-and-comment process 
where the agency has good cause for genuine emergencies.\70\
---------------------------------------------------------------------------
    \70\Staff of S. Comm. on the Judiciary, 79th Cong., Administrative 
Procedure Act: Legislative History (1946) (requiring that agencies 
publish a ``true and supported or supportable finding of necessity or 
emergency'' when using the good cause exception).
---------------------------------------------------------------------------
    For instance, the U.S. Department of Transportation last 
year issued an emergency order in response to the derailment of 
a railroad train in Quebec, Canada that killed 47 people,\71\ 
with requirements for additional safety procedures to prevent 
railroad accidents involving the sudden release of flammable 
liquids.\72\ Following a ``string of fiery accidents'' in North 
Dakota, Alabama, and Virginia, the Department of Transportation 
also issued an emergency order in May 2014, requiring railroads 
that carry more than one million gallons of fuel to provide 
certain information to the Department.\73\ The Department of 
Transportation thereafter issued another emergency order 
following the derailment of a train carrying crude oil in 
downtown Lynchburg, Virginia that spilled thousands of gallons 
of oil into the James River.\74\ This oil later caught fire and 
disbursed throughout the James River, traveling in an oil slick 
that was 17 miles long toward Richmond and the Chesapeake 
Bay.\75\ Following the train's derailment, officials stated 
that ``2 to 5 trains carrying at least one million gallons of 
oil pass through 20 Virginia counties weekly,''\76\ 
demonstrating the importance of swift agency response. 
Observing that railroad shipments of crude oil were causing an 
unsafe condition, the Department of Transportation found that a 
``pattern of releases and fires involving petroleum crude oil 
shipments originating from the Bakken and being transported by 
rail constitute an imminent hazard under 49 U.S.C. 5121(d),'' 
justifying the emergency order.\77\ In each response to unsafe 
conditions, the Department of Transportation issued orders to 
protect the public safety and environment. Prior to these 
orders, railroads were under no obligation to notify emergency 
responders when trains carrying millions of gallons of crude 
oil passed through their states.\78\ The SCRUB Act's cut-go 
procedures, however, would have prevented the Department of 
Transportation from issuing these orders without first 
identifying the cost of the order and then offsetting this cost 
by eliminating a rule identified by the Commission, which in 
turn would trigger the APA's rulemaking process for rescinding 
a rule.\79\ Although the APA's good cause exception does not 
require that agencies provide a notice-and-comment period for 
genuine emergencies,\80\ the SCRUB Act fails to provide any 
such flexibility for agencies to bypass the cut-go procedures 
while issuing emergency rules to protect the public and 
environment from imminent harm, creating a serious risk to the 
safety of the public and environment. Thus, even though 
Congress sought to encourage agency efficiency and speed when 
responding to public emergencies by establishing a good-cause 
exception to the APA's comment and notice requirements for 
legislative rules, the SCRUB Act would effectively eviscerate 
this exception, impairing the ability of any agency to respond 
to any threat to public health, safety, and the environment, no 
matter how dangerous or imminent.
---------------------------------------------------------------------------
    \71\Matthew Brown, U.S. Railroads Disclose Figures, Details on 
Volatile Oil Train Shipments, Calgary Herald (June 25, 2014), http://
www.calgaryherald.com/business/Railroads+
disclose+figures+details+volatile+train+shipments/9970734/story.html.
    \72\49 CFR 232.103(n).
    \73\Brown, supra note 71.
    \74\Curtis Tate, Lynchburg, Va., Oil Train Derailment Illustrates 
Threat to Rivers, McClatchyDC (May 2, 2014) http://www.mcclatchydc.com/
2014/05/02/226425/lynchburg-va-oil-train-derailment.html.
    \75\Id.
    \76\Brown, supra note 71.
    \77\Dept. of Transportation, Petroleum Crude Oil Railroad Carriers, 
DOT-OST-2014-0067, Petroleum Crude Oil Railroad Carriers (May 7, 2014), 
http://www.dot.gov/briefing-room/
emergency-order.
    \78\Jad Mouawad, U.S. Issues Safety Alert for Oil Trains, New York 
Times (May 7, 2014), http://www.nytimes.com/2014/05/08/business/us-
orders-railroads-to-disclose-oil-shipments.html.
    \79\See Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29, 31 
(1983).
    \80\Staff of S. Comm. on the Judiciary, 79th Cong., Administrative 
Procedure Act: Legislative History (1946) (requiring that agencies 
publish a ``true and supported or supportable finding of necessity or 
emergency'' when using the good cause exception).
---------------------------------------------------------------------------
    Recognizing the threat that the SCRUB Act poses to 
agencies' ability to respond to urgent public health and safety 
matters, Representative Suzan DelBene (D-WA) offered an 
amendment to except from the bill all rules made by an agency 
in response to an emergency.\81\ Speaking in support of her 
amendment, Representative DelBene noted that this amendment 
confronts the faulty premise of H.R. 1155 and other anti-
regulatory bills, stating that ``there's no shortage of ways 
for this Committee to attack regulations and regulators that 
are focused on keeping our food and medications safe; our air 
and water clean; and our families safe.''\82\ Representative 
DelBene also observed that H.R. 1155 would prevent Federal 
agencies from providing relief to local communities following a 
natural disaster, such as the landslide in Oso, Washington, 
which was a ``horrific natural disaster that took the lives of 
43 people'' last year.\83\ Representative DelBene further 
argued that H.R. 1155 would not only prevent an effective and 
timely response by Federal agencies to disasters like the Oso 
landslide by requiring ``regulatory cut-go when people's lives 
are at risk,'' but the bill would also politicize public health 
and safety by creating leverage for attacking unpopular 
regulations at times of crisis.\84\ Speaking in support of this 
amendment, Representative Hank Johnson, Jr. (D-GA) agreed that 
H.R. 1155 ``imposes a false choice between existing protections 
and issu[ing] new rules in response to an emerging threat to 
public safety and health.''\85\ This amendment failed along 
party lines by a vote of 8 to 13.\86\
---------------------------------------------------------------------------
    \81\Markup Tr., supra note 59, at 125.
    \82\Id. at 126.
    \83\Id.
    \84\Id.
    \85\Id. at 129.
    \86\Id. at 135.
---------------------------------------------------------------------------
    To address the totality of these concerns raised by 
regulatory cut-go, Representative Hank Johnson Jr. (D-GA) 
offered an amendment to eliminate the SCRUB Act's cut-go 
requirement by striking Title II of the bill.\87\ Noting that 
regulatory cut-go would have far-reaching consequences for 
every new agency rule, he stated that regulatory cut go is 
``unsafe, dangerous, and would tie the hands of agencies 
responding to a public health crisis requiring timely 
regulatory responses.''\88\ This amendment failed along party 
lines by a vote of 5 to 12.\89\
---------------------------------------------------------------------------
    \87\Id. at 99.
    \88\Id. at 100.
    \89\Id. at 125.
---------------------------------------------------------------------------

        III. THE SCRUB ACT IS A SOLUTION IN SEARCH OF A PROBLEM

A. LThe SCRUB ACT is Yet Another Anti-Regulatory Bill Based on False 
        Assumptions
    The SCRUB Act's regulatory cut-go process is premised on 
the misguided belief that the public cannot benefit from new 
public protections and safeguards unless old ones are repealed. 
Proponents of so-called regulatory ``reform'' measures like the 
SCRUB Act claim that regulation imposes such costs on 
businesses that it stifles economic growth and job creation. In 
support of this contention, they repeatedly cite a widely-
debunked study by economists Mark and Nicole Crain that claims 
Federal regulation imposes an annual cost of $1.75 trillion on 
business.\90\ The Crain study, however, has been extensively 
criticized for exaggerating the costs of Federal rulemaking. 
For example, the Center for Progressive Reform (CPR) notes that 
the $1.75 trillion cumulative burden cited by the study fails 
to account for any benefits of regulation.\91\ CPR observed 
that OMB estimated in 2008 that major rules imposed $46 billion 
to $54 billion in costs, but also produced $122 billion to $656 
billion in benefits.\92\ Moreover, the study's methodology is 
flawed with respect to how it calculated economic costs. The 
study, which relied on international public opinion polling by 
the World Bank on how friendly a particular country was to 
business interests, ignored actual data on costs imposed by 
Federal regulation in the United States.\93\
---------------------------------------------------------------------------
    \90\Nicole V. Crain & W. Mark Crain, The Impact of Regulatory Costs 
on Small Firms, Rep. No. SBAHQ-08-M-0466 (Sept. 2010), http://
archive.sba.gov/advo/research/rs371tot.pdf.
    \91\Sidney Shapiro, et al., Setting the Record Straight: The Crain 
and Crain Report on Regulatory Costs, Center for Progressive Reform 
(Feb. 2011).
    \92\Id.
    \93\Id.
---------------------------------------------------------------------------
    The Congressional Research Service (CRS) also conducted an 
extensive examination of the Crain study and criticized much of 
its methodology.\94\ CRS noted that the authors of the Crain 
study themselves told CRS that their study was ``not meant to 
be a decision-making tool for lawmakers or Federal regulatory 
agencies to use in choosing the `right' level of regulation. In 
no place in any of the reports do we imply that our reports 
should be used for this purpose. (How could we recommend this 
use when we make no attempt to estimate the benefits?)''\95\ 
CRS concluded that ``a valid, reasoned policy decision can only 
be made after considering information on both costs and 
benefits'' of regulation.\96\
---------------------------------------------------------------------------
    \94\Curtis W. Copeland, Cong. Research Serv., R41763, Analysis of 
an Estimate of the Total Costs of Federal Regulations (2011).
    \95\Id. at 26 (quoting an e-mail from Nicole and W. Mark Crain to 
the author of the CRS report).
    \96\Id. The Economic Policy Institute also issued a critique of the 
Crain study outlining additional concerns with the study's methodology 
and data. See John Irons and Andrew Green, Flaws Call for Rejecting 
Crain and Crain Model: Cited $1.75 Trillion Cost of Regulations Is Not 
Worth Repeating, Economic Policy Institute (July 19, 2011), http://
w3.epi-data.org/temp2011/IssueBrief308.pdf.
---------------------------------------------------------------------------
    In his testimony regarding H.R. 1155, Amit Narang, a 
Regulatory Policy Advocate at Public Citizen, likewise noted 
that there is ``simply no credible, independent, and peer-
reviewed empirical evidence supporting the claim that there is 
a trade-off between economic growth and strong, effective 
regulatory standards.''\97\ Narang added that evidence that is 
used in support of anti-regulatory bills ``doesn't pass 
muster'' when scrutinized:
---------------------------------------------------------------------------
    \97\See H.R. 1155 Hearing, supra note 11, at 2.

        For example, the Washington Post recently vetted a 
        report entitled ``the Ten Thousand Commandments'' from 
        the Competitive Enterprise Institute claiming that the 
        annual regulatory burden adds up to $15,000 for each 
        household in America or 1.8 trillion for the whole 
        country. As the Post notes, the report foregoes any 
        attempt at computing the benefits of the regulations it 
        includes and the Post found that the report has 
        ``serious methodological problems'' and deserved ``two 
        pinocchios'' given that the report's authors themselves 
        admit that the report is ``not scientific'' and ``back 
        of the envelope.'' Reports using similar methodology 
        and reporting similar figures have also been exposed as 
        flawed and have been disavowed.\98\
---------------------------------------------------------------------------
    \98\Id. at 3.

    Bruce Bartlett, a senior policy analyst in the Reagan and 
George H.W. Bush Administrations, has also refuted the claim 
that regulations undermine the economy or job growth, 
explaining that ``[n]o hard evidence is offered for this claim; 
it is simply asserted as self-evident and repeated endlessly 
throughout the conservative echo chamber.''\99\ At a 
legislative hearing held by the Subcommittee on a prior anti-
regulatory bill, the Majority's own witness debunked the myth 
that regulations stymie job creation. Christopher DeMuth stated 
on behalf of the American Enterprise Institute, a conservative 
think tank, that the ``focus on jobs . . . can lead to 
confusion in regulatory debates'' and that ``the employment 
effects of regulation, while important, are 
indeterminate.''\100\
---------------------------------------------------------------------------
    \99\Bruce Bartlett, Op-Ed., Misrepresentations, Regulations and 
Jobs, N.Y. Times Economix (Oct. 4, 2011), http://
economix.blogs.nytimes.com/2011/10/04/regulation-and-unemployment.
    \100\The Regulatory Accountability Act of 2011: Hearing on H.R. 
3010 Before the H. Comm. 
on the Judiciary, 112th Cong. 64-65 (2011) (prepared statement of 
Christopher DeMuth, American Enterprise Institute); see, e.g., Jia Lynn 
Yang, Does Government Regulation Really Kill Jobs? Economists Say 
Overall Effect Minimal, Wash. Post, Nov. 13, 2011, http://www.
washingtonpost.com/business/economy/does-government-regulation-really-
kill-jobs-economists-say-overall-effect-minimal/2011/10/19/
gIQALRF5IN_story.html?hpid=z1 (``In 2010, 0.3 percent of the people who 
lost their jobs in layoffs were let go because of `government 
regulations/intervention.' By comparison, 25 percent were laid off 
because of a drop in business demand. . . . Economists who have studied 
the matter say that there is little evidence that regulations cause 
massive job loss in the economy, and that rolling them back would not 
lead to a boom in job creation.''); See Tara M. Sinclair & Kathryn 
Vesey, Regulation, Jobs, and Economic Growth: An Empirical Analysis 27, 
(The George Washington University Regulatory Studies Center, Working 
Paper), at 27 (finding that the ``macroeconomic effects of regulation 
are uncertain'' and that the study's ``results reveal no impact'' when 
considering either the impact of regulations on the ``total economy or 
strictly the private sector''), available at http://
regulatorystudies.columbian.gwu.edu/files/downloads/
032212_sinclair_vesey_reg_jobs_growth
.pdf.
---------------------------------------------------------------------------
    If anything, regulations can promote job growth and put 
Americans back to work. For instance, the BlueGreen Alliance 
has noted that studies of the direct impact of regulations have 
concluded that ``most regulations result in modest job growth 
or have no effect, and economic growth has consistently surged 
forward in concert with these health and safety 
protections.''\101\ The OMB observed that 40 years of success 
of the Clean Air Act ``have demonstrated that strong 
environmental protections and strong economic growth go hand in 
hand.''\102\ Similarly, the Natural Resources Defense Council, 
the United Auto Workers, and the National Wildlife Federation 
jointly issued a report finding that vehicle emissions 
standards and clean vehicle research, development and 
production are already responsible for 155,000 jobs at 504 
facilities in 43 states and the District of Columbia.\103\ 
According to the same report, 119,000 jobs were created in this 
industry between 2009 and 2011 alone.\104\
---------------------------------------------------------------------------
    \101\Letter to Rep. Lamar Smith (R-TX), Chair, & Rep. John Conyers, 
Jr. (D-MI), Ranking Member, H. Comm. on the Judiciary, from David A. 
Forster, Executive Director, BlueGreen Alliance, at 2 (Nov. 2, 2011) 
(on file with the H. Committee on the Judiciary, Democratic Staff).
    \102\Office of Mgmt. & Budget, Exec. Office of the President, 
Statement of Administration Policy on H.R. 2401, Transparency in 
Regulatory Analysis of Impacts on the Nation Act of 2011 (Sept. 21, 
2011), https://www.whitehouse.gov/sites/default/files/omb/legislative/
sap/112/saphr2401h_20110921.pdf.
    \103\Natural Resources Defense Council et al., Supplying Ingenuity: 
U.S. Suppliers of Clean, Fuel-Efficient Vehicle Technologies (Aug. 
2011), http://www.nrdc.org/transportation/autosuppliers/files/
SupplierMappingReport.pdf.
    \104\Id.
---------------------------------------------------------------------------
    Similarly, it was estimated in 2012 that a pending rule 
under the Clean Air Act requiring power plants to reduce 
mercury and other toxic emissions by 90 percent in the next 5 
years would create 45,000 temporary construction jobs over the 
next 5 years and possibly 8,000 permanent jobs because of the 
upgrades required by the new rule.\105\ This job growth would 
be in addition to the rule's expected benefit of preventing 
11,000 deaths from heart attacks and respiratory diseases like 
asthma.\106\
---------------------------------------------------------------------------
    \105\Editorial, The Job-Creating Mercury Rule, N.Y. Times (Feb. 22, 
2012), http://www.nytimes.com/2012/02/23/opinion/the-job-creating-
mercury-rule.html.
    \106\Id.
---------------------------------------------------------------------------
    Additionally, a report by Northeast States for Coordinated 
Air Use Management (NESCAUM) demonstrates a direct correlation 
between environmental regulations and job growth in the 
Northeast. It found that by enacting stricter fuel economy 
standards and pursuing cleaner forms of energy, more jobs would 
be created.\107\ Specifically, NESCAUM found that stricter fuel 
economy standards and regulations governing cleaner forms of 
energy would increase employment from 9,490 to 50,700 jobs; 
increase gross regional product, a measure of the states' 
economic output, by $2.1 billion to $4.9 billion; and increase 
household disposable income increases by $1 billion to $3.3 
billion.\108\
---------------------------------------------------------------------------
    \107\Northeast States for Coordinated Air Use Management (NESCAUM), 
Economic Analysis of a Program to Promote Clean Transportation Fuels in 
the Northeast/
Mid-Atlantic Region (2011) (on file with Natural Resources Defense 
Council) http://
switchboard.nrdc.org/blogs/ngreene/
CFS%20Economic%20Analysis%20Report%20INTERNAL
.PDF
    \108\Id.
---------------------------------------------------------------------------
    Anti-regulatory proponents also rely on an equally flawed 
corollary argument that regulatory uncertainty undermines 
economic and job growth. Bruce Bartlett, the senior economic 
official from the Reagan and Bush Administrations, observes 
that ``regulatory uncertainty is a canard invented by 
Republicans that allows them to use current economic problems 
to pursue an agenda supported by the business community year in 
and year out.''\109\ Likewise, Professor Sidney Shapiro 
testified before the Subcommittee in the 112th Congress that 
``[a]ll of the available evidence contradicts the claim that 
regulatory uncertainty is deterring business investment.''\110\ 
In fact, a July 2011 Wall Street Journal survey of business 
economists found that the ``main reason U.S. companies are 
reluctant to step up hiring is scant demand, rather than 
uncertainty over government policies.''\111\ Not surprisingly, 
a September 2011 National Federation of Independent Business 
survey of its members found that ``poor sales''--not 
regulation--is the biggest problem.\112\ Indeed, the Main 
Street Alliance, a small business organization, has noted that 
``[i]n survey after survey and interview after interview, Main 
Street small business owners confirm that what we really need 
is more customers--more demand--not deregulation.''\113\
---------------------------------------------------------------------------
    \109\Bartlett, supra note 99.
    \110\Regulatory Accountability Act of 2011: Hearing on H.R. 3010 
Before the H. Comm. on the Judiciary, 112th Cong. 1 (2011) (statement 
of Prof. Sidney Shapiro, Wake Forest School of Law) http://
judiciary.house.gov/_files/hearings/pdf/Shapiro%2010252011.pdf
    \111\Phil Izzo, Dearth of Demand Seen Behind Weak Hiring, Wall St. 
J., July 18, 2011, available at http://online.wsj.com/article/
SB10001424052702303661904576452181063763332.html.
    \112\Press Release, Nat'l Federation of Independent Businesses, 
Small Business Confidence Takes Huge Hit: Optimism Index Now in Decline 
for Six Months Running (Sept. 13, 2011) (``Of those reporting negative 
sales trends, 45 percent blamed faltering sales, 5 percent higher labor 
costs, 15 percent higher materials costs, 3 percent insurance costs, 8 
percent lower selling prices and 10 percent higher taxes and regulatory 
costs.''), http://www.nfib.com/press-media/press-media-
item?cmsid=58190.
    \113\Letter to Rep. Lamar Smith (R-TX), Chair, & Rep. John Conyers, 
Jr. (D-MI), Ranking Member, H. Committee on the Judiciary, from Jim 
Houser, Co-Chair, The Main Street Alliance, et al., at 1-2 (Nov. 2, 
2011) (on file with the H. Committee on the Judiciary, Democratic 
Staff).
---------------------------------------------------------------------------
B. LThe SCRUB Act's Solution to ``Over-Regulation'' is an Unbalanced 
        and Redundant Review That Agencies Already Conduct
    Even if one were to accept the false premise that 
regulations impede job growth and harm the economy, the SCRUB 
Act represents a redundant and arbitrary solution to any such 
problem. Agencies regularly conduct retrospective reviews.\114\ 
In fact, retrospective review has been a top priority under the 
Obama Administration,\115\ and Congress has long prescribed 
that agencies review regulations to determine whether any 
should be revoked or modified.
---------------------------------------------------------------------------
    \114\H.R. 4874 Hearing, supra note 84, at 2 (statement of Ronald M. 
Levin, Professor of Law, Washington University School of Law).
    \115\Cheryl Bolen, Shelanski Considering Changes in Agency 
Rulemaking Processes in Year Ahead, Bloomberg BNA Daily Report for 
Executives (Jan. 16, 2014), http://www.bna.com/shelanski-considering-
changes-n17179881447.
---------------------------------------------------------------------------
            1. LCongress Already Has Tools for Conducting Effective 
                    Oversight of Rulemaking and Enforcing Retrospective 
                    Review
    Congress already has numerous tools for influencing Federal 
rules. In addition to its numerous tools for exercising 
oversight, Congress may shape agency missions through the 
appropriations process or by narrowing agency authority through 
statute.\116\ Congress may also disapprove any rule proposed by 
an agency through the Congressional Review Act,\117\ or pass 
legislation to stay the effect of an existing rule. For 
instance, the House attempted to do this in the in the 112th 
Congress, passing legislation in response to the Environmental 
Protection Agency's cement manufacturing standards.\118\
---------------------------------------------------------------------------
    \116\See, e.g., Cong.Research Serv., RL 34354, Congressional 
Influence on Rulemaking and Regulation Through Appropriations 
Restrictions, (2008).
    \117\5 U.S.C. Sec. 801(b) (2013).
    \118\Cement Sector Regulatory Relief Act of 2011, H.R. 2681, 112th 
Cong. (2011).
---------------------------------------------------------------------------
    Furthermore, Congress has already enacted several 
legislative mandates that require retrospective review.\119\ 
Section 610 of the Regulatory Flexibility Act (RFA) requires 
periodic evaluation of existing regulations that affect small 
business entities.\120\ The RFA also tasks agencies with 
demonstrating the continued need for rules, whether the agency 
has received complaints from the public concerning the rule, 
the complexity of the rule, and the extent to which the rule is 
duplicative or overlaps with other Federal rules, or State and 
local government rules.\121\ In 1996, the Economic Growth and 
Regulatory Paperwork Reduction Act was enacted,\122\ requiring 
requires certain financial agencies, such as the Federal 
Deposit Insurance Corporation, to conduct a review of their 
regulations every 10 years.\123\ Other reviews are conducted at 
the discretion of the agency.\124\
---------------------------------------------------------------------------
    \119\H.R. 4874 Hearing, supra note 22 (statement of Ronald M. 
Levin, Professor of Law, Washington University School of Law).
    \120\Pub. L. No. 96-354, 94 Stat. 1164, 1169 (1980).
    \121\5 U.S.C. Sec. 610 (2015).
    \122\Pub. L. No. 104-208, Sec. 2222, 110 Stat. 3009 (1996), 
codified at 12 U.S.C. Sec. 3311 (2015). Other agencies subject to this 
statutory mandate are the Board of Governors of the Federal Reserve 
System, the Office of the Comptroller of the Currency, and the Consumer 
Financial Protection Bureau.
    \123\Id.
    \124\GAO Report, supra note 13, at 5.
---------------------------------------------------------------------------
            2. LThe Administration Has Issued Several Executive Orders 
                    Requiring Retrospective Review
    Retrospective review is also a top priority for the Obama 
Administration.\125\ Since 2011, President Obama has issued a 
series of Executive Orders to have agencies conduct meaningful 
retrospective reviews.\126\ In January 2011, President Obama 
issued Executive Order 13563 directing agencies to ``consider 
how best to promote retrospective analysis of rules that may be 
outmoded, ineffective, insufficient, or excessively burdensome, 
and to modify, streamline, expand, or repeal them in accordance 
with what has been learned.''\127\ The Executive Order further 
directs each agency to: ``develop and submit to [OIRA] a 
preliminary plan, consistent with law and its resources and 
regulatory priorities, under which the agency will periodically 
review its existing significant regulations to determine 
whether any such regulations should be modified, streamlined, 
expanded, or repealed so as to make the agency's regulatory 
program more effective or less burdensome in achieving 
regulatory objectives.'' Soon thereafter, President Obama 
issued Executive Order 13579 in July 2011 encouraging 
independent regulatory agencies to ``consider how best to 
promote retrospective analysis of rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to 
modify, streamline, expand, or repeal them in accordance with 
what has been learned.''\128\ These analyses, together with 
supporting data and evaluations, should be released online 
whenever possible, according to the Executive Order. In 
addition, the Executive Order asked each independent regulatory 
agency to ``develop and release to the public a plan, 
consistent with law and reflecting its resources and regulatory 
priorities and processes, under which the agency will 
periodically review its existing significant regulations to 
determine whether any such regulations should be modified, 
streamlined, expanded, or repealed so as to make the agency's 
regulatory program more effective or less burdensome in 
achieving the regulatory objectives.''\129\ Such plans were 
required to be filed within 120 days from the date of the 
Executive Order.
---------------------------------------------------------------------------
    \125\Bolen, supra note 115.
    \126\H.R. 4874 Hearing, supra note 22, at 2 (statement of Ronald M. 
Levin, Professor of Law, Washington University School of Law).
    \127\Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011).
    \128\Exec. Order No. 13,579, 76 Fed. Reg. 41587 (July 14, 2011). 
Independent regulatory agencies are ``independent'' in the sense that 
they are independent of the President. The President has limited 
authority to remove their leaders (usually, heads of such agencies can 
only be removed for cause, rather than at the President's pleasure). 
Stephen G. Breyer, et al., Administrative Law and Regulatory Policy 100 
(4th ed., Aspen Publishers, Inc. 1999). Such agencies are usually 
styled ``commissions'' or ``boards'' (e.g., the Securities and Exchange 
Commission, the Federal Communications Commission, the National Labor 
Relations Board).
    \129\Id.
---------------------------------------------------------------------------
    In May 2012, President Obama issued yet another Executive 
Order requiring agencies to ``conduct retrospective analyses of 
existing rules to examine whether they remain justified and 
whether they should be modified or streamlined in light of 
changed circumstances, including the rise of new 
technologies.''\130\ In particular, this Executive Order 
directed agencies to ``invite, on a regular basis . . . public 
suggestions about regulations in need of retrospective review 
and about appropriate modifications to such regulations.''\131\ 
The Executive Order required agencies to ``give priority, 
consistent with law, to those initiatives that will produce 
significant quantifiable monetary savings or significant 
quantifiable reductions in paperwork burdens while protecting 
public health, welfare, safety, and our environment.''\132\ In 
addition, the Executive Order directed agencies to ``give 
special consideration to initiatives that would reduce 
unjustified regulatory burdens or simplify or harmonize 
regulatory requirements imposed on small businesses.\133\
---------------------------------------------------------------------------
    \130\Exec. Order. 13610, 77 Fed. Reg. 28467 (May 14, 2012).
    \131\Id.
    \132\Id.
    \133\Id.
---------------------------------------------------------------------------
    According to Cass Sunstein, who served as OIRA 
Administrator from 2009 to 2012, these Orders cumulatively 
``energized'' agencies to identify nearly 600 outdated rules 
for elimination.\134\ Agencies have already finalized or 
formally proposed over a hundred of these reforms.\135\ For 
instance, the Department of Health and Human Services (HHS) has 
finalized several rules to remove hospital and healthcare 
reporting requirements, saving $5 billion over 5 years.\136\ 
Additionally, as Howard Shelanski, the current OIRA 
Administrator, recently noted, OIRA plans to establish ``more 
concrete ways to deepen and strengthen retrospective 
review.''\137\ Combined, these good-government initiatives have 
already resulted in hundreds of formal proposals to eliminate 
rules, representing billions of dollars in savings over the 
next several years,\138\ and substantially more in eventual 
savings.\139\
---------------------------------------------------------------------------
    \134\Cass R. Sunstein, The Regulatory Lookback, 94 B.U. L. Rev. 
579, 593 (2014), http://www.bu.edu/bulawreview/files/2014/08/
SUNSTEINDYSFUNCTION.pdf.
    \135\See Cary Coglianese, Moving Forward with Regulatory Lookback, 
30 Yale J. on Reg. 57, 58 (2013).
    \136\Dep't of Health & Hum. Servs., Plan for Retrospective Review 
of Existing Rules 3, 8-17 (2011), http://www.whitehouse.gov/sites/
default/files/other/2011-regulatoryaction-plans/
healthandhumanservicesregulatoryreformplanaugust2011.pdf.
    \137\Bolen, supra note 115.
    \138\Council of Econ. Advisers, Exec. Office of the Pres., Smarter 
Regulations through Retrospective Review 6 (2012), http://
www.whitehouse.gov/sites/default/files/lookback_report_rev_final.pdf.
    \139\Sunstein, supra note 134.
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            3. LThe SCRUB Act's Meat-Cleaver Approach to Rulemaking 
                    Would Create Immense Bureaucratic Hurdles without 
                    Addressing the Critical Barriers to Effective 
                    Retrospective Review
    The existing processes for retrospective review are a 
smart, scalpel-like approach to regulatory revisions. The 
overwhelming consensus of administrative law experts support a 
balanced and affordable approach to retrospective review that 
allows for agency flexibility and selectivity to target rules 
for elimination. In contrast, not even the conservative 
proponents of regulatory cut-go support a meat-cleaver approach 
to every regulation, which will only increase bureaucratic red 
tape and uncertainty.
    There is broad consensus from the nonpartisan 
Administrative Conference of the United States (ACUS) that any 
retrospective review should be selective, flexible, and even-
handed. These goals reflect the assessments and expertise of a 
broad group of practitioners, agency personnel, and academics 
in the administrative law field. In its recommendations on 
retrospective review, ACUS noted that any review should give 
agencies ``maximum flexibility to design processes that are 
sensitive to individual agency situations and types of 
regulations.''\140\ Given differences among agencies, ACUS 
stated that such processes should be ``tailored to meet 
agencies' individual needs'' and that the President as well as 
Congress ``should avoid mandating standardized or detailed 
requirements.''\141\ ACUS also recommended that the review 
should focus on the most important regulations with sufficient 
time and resources to ensure a meaningful review.\142\ In a 
report adopted in December 2014, ACUS confirmed this view, 
urging that each agency ``tailor its regulatory lookback 
procedures to its statutory mandate, the nature of its 
regulatory mission, its competing priorities, and its current 
budgetary resources,'' while finding that ``retrospective 
review is not a ``one-size-fits-all'' enterprise.''\143\
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    \140\Administrative Conference of the U.S., Review of Existing 
Agency Regulations, Recommendation 95-3 (adopted June 15, 1995).
    \141\Id.
    \142\Id. at 1-2.
    \143\Administrative Conference of the U.S., Retrospective Review of 
Agency Rules, Recommendation 95-3 (adopted December 4, 2014).
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    The GAO has likewise reported that the ``most critical 
barrier'' to effective retrospective review is agencies' 
``difficulty in devoting the time and staff resources required 
for reviews while also carrying out other mission 
activities.''\144\ Much like ACUS' recommendation that 
retrospective review be selective and flexible, GAO found that 
``it is not necessary or even desirable for agencies to expend 
their time and resources reviewing all of their 
regulations.''\145\ Rather, agencies should ``conduct 
substantive reviews of a small number of regulations that 
agencies and the public identify as needing attention.''\146\
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    \144\GAO Report, supra note 13, at 7.
    \145\Id.
    \146\Id.
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    Unlike the retrospective review advocated by ACUS and the 
GAO, the SCRUB Act's mandate of an unlimited and unbalanced 
review of all regulations would create immense bureaucratic 
hurdles to effective retrospective review. Furthermore, even 
the conservative proponents of regulatory cut-go acknowledge 
that legislation like the SCRUB Act is ``uncharted policy 
territory'' with major shortcomings.\147\ Noting that potential 
perils of regulatory cut-go, the conservative Competitive 
Enterprise Institute (CEI) recommended that Congress should 
proceed in a step-by-step experiment through pilot programs to 
test the feasibility of regulatory cut-go.\148\ CEI also noted 
that the result of this process could be to ``make regulation 
less accountable.''\149\ Acknowledging that legislation like 
the SCRUB Act could spawn substantial paperwork burdens and 
fines, CEI observed that Congress may even need to create a 
separate regulatory audit agency, similar to the Internal 
Revenue Service (IRS), to ``promulgate rules to standardize 
accounting procedures and reporting requirements'' for costs to 
agencies.\150\
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    \147\Marlo Lewis, Reviving Regulatory Reform: Options for the 
President and Congress, Competitive Enterprise Institute (Dec. 2004) 
84, http://cei.org/pdf/4446.pdf.
    \148\Id. at 3, 84.
    \149\Id. at 75.
    \150\Id. at 82.
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                H.R. 1155 SECTION-BY-SECTION EXPLANATION

    A description of the bill's principal substantive 
provisions follows.
    Sec. 1. Short Title. Section 1 sets forth the short title 
of the bill as the ``Searching for and Cutting Regulations that 
are Unnecessarily Burdensome Act of 2015'' or as the ``SCRUB 
Act of 2015.''

Title I--Retrospective Regulatory Review Commission
    Sec. 101. In General. Section 101 establishes the 
Retrospective Regulatory Review Commission to review rules and 
``sets of rules'' in accordance with specified criteria to 
determine whether such rules should be repealed ``to eliminate 
or reduce the costs of regulation to the economy.'' The 
Commission's life-span is 5 years and 180 days.
    Subsection (b) states that the Commission is to be composed 
of nine members appointed by the President and confirmed by the 
Senate. The President appoints the Commission Chair, who must 
be chosen from among past Administrators of OIRA, 
Administrative Conference of the United States, and others who 
have similar experience and expertise in rulemaking and 
regulatory reviews with respect to the other members of the 
Commission. The Speaker and Minority Leader of the House as 
well as the Majority Leader and Minority Leader of the Senate 
must present a list of candidates for the President's 
consideration. The President must appoint two members from each 
list, but may request a new list upon certification that 
candidates are not individuals with ``expertise and experience 
in rule making affairs.''
    Subsection (c) specifies the powers and authorities of the 
Commission. In particular, the Commission must hold at least 
two public meetings a year. All additional hearings must be 
held in public. The Commission is authorized to have access to 
information in any Federal department or agency and such 
department and agency are required to supply such information 
upon request of the Commission chair. The Commission is also 
authorized to issue subpoenas to anyone in the United States to 
compel attendance and to supply information at any designated 
place within the United States. The Commission may apply to the 
district court for an order to enforce compliance with civil 
contempt.
    Subsection (d) sets forth various administrative details, 
such as the amount of compensation to be paid to Commission 
members, their staff, and travel expenses.
    Subsections (e) and (f) respectively provide for the 
appointment of a staff director for the Commission and staff. 
In addition, subsection (f) permits the Commission to accept 
employees from other Federal departments and agencies as 
detailees and requires the Government Accountability Office 
(GAO) and Office of Information and Regulatory Affairs (OIRA) 
to provide assistance to the Commission. Finally, subsection 
(f) requires other entities, such as Congress, the states, 
municipalities, and others to provide assistance to the 
Commission, including the detailing of employees.
    Subsection (g) authorizes the Commission to retain experts 
and consultants as well as to lease space and acquire personal 
property.
    Subsection (h) specifies the Commission's duties. 
Specifically, the Commission must review the Code of Federal 
Regulations to identify ``rules and sets of rules that 
collectively implement a regulatory program that should be 
repealed to lower the cost of regulation to the economy.'' 
Although the Commission must prioritize major rules, this 
review would also include any rules that have been in effect 
for more than 15 years, impose paperwork burdens, or impose 
disproportionately high costs on small businesses, or could be 
strengthened in their effectiveness while reducing regulatory 
costs. The Commission must set a goal of reducing 15% of the 
cumulative cost of Federal regulation with a ``minimal 
reduction in the overall effectiveness of such regulation.'' 
Additional criteria for review are the following:
    (1) whether the rule's original purpose has been achieved 
and whether its repeal or amendment would not lead to 
significant recurrence of adverse effects or conduct that the 
rule was intended to prevent or reduce;
    (2) whether the implementation, compliance, administration, 
enforcement or other costs of the rule ``are not justified by 
the benefits to society;''
    (3) whether the rule is unnecessary, obsolete in light of 
technological developments, economic conditions, market 
practices or other relevant factors given the passage of time 
since the rule was promulgated;
    (4) whether the rule or is ineffective at achieving its 
purpose
    (5) whether the rule overlaps, duplicates, or conflicts 
with other Federal rules, or state or local governmental rules;
    (6) whether the rule has excessive compliance costs or is 
otherwise excessively burdensome as compared to certain 
specified alternatives; including alternatives that could 
substantially lower costs without significantly undermining 
effectiveness.
    (7) whether the rule inhibits innovation or growth of the 
Nation's economy;
    (8) whether the rule harms competition within the Nation's 
economy or international economic competitiveness of companies 
based in the United States;
    (9) any other criteria as the Commission devises to 
eliminate or reduce unnecessarily burdensome costs to the 
Nation's economy.
    The Commission must establish a methodology for conducting 
its review, identifying rules for consideration, and 
classifying rules. The terms of its methodology must be 
published in the Federal Register and on the Commission's 
website. With respect to classification, the Commission must 
recommend whether the rule's repeal would require immediate 
action or should be eligible for the regulatory cut-go 
procedures later described in the bill. In addition, the 
Commission must recommend whether the rule should be repealed. 
The Commission's decision to identify and classify rules are 
determined by a simple majority vote.
    The Commission must also conduct a review and classify any 
rule submitted by the President, a Member of Congress, an 
officer or employee of any Federal, state or local governmental 
entity, or any member of the public. The submission must 
include a ``statement of evidence'' to demonstrate that the 
rule should be considered by the Commission.
    Subsection (i) requires the Commission to publish in the 
Federal Register and on its website notices of all of its 
public meetings and classifications as well as reports 
summarizing such meetings and classifications. In addition, the 
Commission must submit periodic reports to Congress detailing 
its activities as well as a final report to Congress 
identifying all rules the Commission classified for repeal or 
repeal under the cut-go procedures. Further, the Commission 
must make available on its website all submissions received 
within 1 week.
    Subsection (j) requires the agency with authority to repeal 
a rule identified for immediate action to repeal within 60 days 
or through regulatory cut-go after the enactment of a joint 
resolution by Congress approving the recommendations of the 
Commission's report.
    An agency that has repealed a rule following a joint 
resolution or through regulatory cut-go under title II cannot 
issue a new rule that is ``substantially similar'' to the rule 
that it repealed. Additionally, agencies must ensure that new 
rules do not ``result in the same adverse effects of the 
repealed rule'' as established through the Commission's 
criteria.
    Funding for the Commission is not to exceed $30 million. 
The Commission Chair is required to consult with the OMB 
Director before making requests for agency funds.

Title II--Regulatory Cut-Go
    Sec. 201. Cut-Go Procedures. Section 201(a) requires an 
agency, before it promulgates a new rule, to repeal rules that 
the Commission has classified to be repealed so that the annual 
cost of the new rule to the U.S. economy is offset by the 
repeal of the current rule. An agency may also preemptively 
repeal such rules identified by the Commission, or offset the 
costs of a new rule by repealing a rule listed in the 
Commission's report, but must achieve a net reduction in any 
cost imposed by the agency's rules, which may require repealing 
additional rules of the agency listed in the Commission report.
    Sec. 202. Applicability. Once the agency has repealed all 
the rules identified by the Commission, then it no longer needs 
to go through the offset process.
    Sec. 203. OIRA Certification of Cost-Benefit Calculations. 
The OIRA Administrator must review and certify the accuracy of 
agency determinations of the costs of new rules issued under 
section 201. Such certification must be included in the 
administrative record of the relevant rulemaking by the agency 
promulgating the rule and submitted to Congress.

Title III--Retrospective Review of New Rules
    Sec. 301. Plan for Future Review. Section 301 requires the 
agency, when promulgating a final rule, to include a plan 
providing for the review of such rule not later than 10 years 
after the date on when such rule is promulgated. The review 
must be substantially similar to the review required under 
section 101(h) of the bill. For non-major rules, the agency's 
plan must include procedures and standards to enable the agency 
to determine whether to eliminate unnecessary regulatory costs 
to the economy. When feasible, the agency must include a 
proposed plan for review of a proposed rule in its notice of 
proposed rulemaking and receive public comment on the plan.

Title IV--Judicial Review
    Sec. 401. Judicial Review. Section 401 makes agency 
compliance for immediate repeals and cut-go repeals are subject 
to judicial review under chapter 7 of title 5 of the U.S. Code.

Title V--Miscellaneous Provisions
    Sec. 501. Definitions. Section 501 sets forth various 
definitions. For example, it defines ``agency'' to include 
independent agencies. With respect to major rules, it employs a 
similar, but different definition for that term as used in the 
Congressional Review Act.
    Sec. 502. Effective Date. Section 502 sets forth the 
effective date as the date of enactment.

                               CONCLUSION

    H.R. 1155 threatens to drown agencies in additional layers 
of red-tape and make it nearly impossible to establish any new 
rule, no matter how pressing, or issue any guidance on existing 
rules. By requiring every agency to assess the costs of new 
rules or informal guidance and tasking the Office of 
Information and Regulatory Affairs (OIRA) with certifying each 
of these assessments, the SCRUB Act would waste untold 
resources and water-down existing oversight of Federal 
rulemaking. In addition, the bills unworkable cut-go mandate 
would force agencies to make a dangerous false choice between 
preserving existing rules or implementing new rules to respond 
to emerging threats.
    In principle, retrospective review of existing regulations 
is not without merit. It is hard to argue against the notion 
that agencies should periodically assess whether the rules they 
have promulgated could be improved or rescinded in light of 
changing circumstances. However, rather than streamlining 
rulemaking or eliminating unnecessary rules through a 
thoughtful retrospective review process, this bill would result 
in years of delays by requiring a new rulemaking process for 
any rule eliminated. Further yet, there are already myriad 
tools available for each branch of government to conduct 
effective oversight and make smart regulatory cuts that do not 
threaten the public health or safety. In sum, this 
legislation's meat-cleaver approach is an unnecessary, 
dangerous, and unbalanced attempt to derail agencies' missions 
to protect the public health and safety.
    For the foregoing reasons, we strongly oppose H.R. 1155 and 
we urge our colleagues to join us in opposition.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Ms. Chu.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.

                                  [all]