IIB
114th CONGRESS
2d Session
H. R. 1155
IN THE SENATE OF THE UNITED STATES
January 11, 2016
Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs
AN ACT
To provide for the establishment of a process for the review of rules and sets of rules, and for other purposes.
Short title
This Act may be cited as the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2016
or as the SCRUB Act of 2016
.
Table of contents
Sec. 1. Short title.
Sec. 2. Table of contents.
Title I—Retrospective Regulatory Review Commission
Sec. 101. In general.
Title II—Regulatory Cut-Go
Sec. 201. Cut-go procedures.
Sec. 202. Applicability.
Sec. 203. OIRA certification of cost calculations.
Title III—Retrospective Review of New Rules
Sec. 301. Plan for future review.
Title IV—Judicial Review
Sec. 401. Judicial review.
Title V—Miscellaneous Provisions
Sec. 501. Definitions.
Sec. 502. Effective date.
Retrospective Regulatory Review Commission
In general
Establishment
There is established a commission, to be known as the Retrospective Regulatory Review Commission
, that shall review rules and sets of rules in accordance with specified criteria to determine if a rule or set of rules should be repealed to eliminate or reduce the costs of regulation to the economy. The Commission shall terminate on the date that is 5 years and 180 days after the date of enactment of this Act or 5 years after the date by which all Commission members’ terms have commenced, whichever is later.
Membership
Number
The Commission shall be composed of 9 members who shall be appointed by the President and confirmed by the Senate. Each member shall be appointed not later than 180 days after the date of enactment of this Act.
Term
The term of each member shall commence upon the member’s confirmation by the Senate and shall extend to the date that is 5 years and 180 days after the date of enactment of this Act or that is 5 years after the date by which all members have been confirmed by the Senate, whichever is later.
Appointment
The members of the Commission shall be appointed as follows:
Chair
The President shall appoint as the Chair of the Commission an individual with expertise and experience in rulemaking, such as past Administrators of the Office of Information and Regulatory Affairs, past chairmen of the Administrative Conference of the United States, and other individuals with similar expertise and experience in rulemaking affairs and the administration of regulatory reviews.
Candidate list of members
The Speaker of the House of Representatives, the Minority Leader of the House of Representatives, the Majority Leader of the Senate, and the Minority Leader of the Senate shall each present to the President a list of candidates to be members of the Commission. Such candidates shall be individuals learned in rulemaking affairs and, preferably, administration of regulatory reviews. The President shall appoint 2 members of the Commission from each list provided under this subparagraph, subject to the provisions of subparagraph (C).
Resubmission of candidate
The President may request from the presenter of the list under subparagraph (B) a new list of one or more candidates if the President—
determines that any candidate on the list presented pursuant to subparagraph (B) does not meet the qualifications specified in such subparagraph to be a member of the Commission; and
certifies that determination to the congressional officials specified in subparagraph (B).
Powers and authorities of the Commission
Meetings
The Commission may meet when, where, and as often as the Commission determines appropriate, except that the Commission shall hold public meetings not less than twice each year. All meetings of the Commission shall be open to the public.
Hearings
In addition to meetings held under paragraph (1), the Commission may hold hearings to consider issues of fact or law relevant to the Commission’s work. Any hearing held by the Commission shall be open to the public.
Access to Information
The Commission may secure directly from any agency information and documents necessary to enable the Commission to carry out this Act. Upon request of the Chair of the Commission, the head of that agency shall furnish that information or document to the Commission as soon as possible, but not later than two weeks after the date on which the request was made.
Subpoenas
In general
The Commission may issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence relating to the duties of the Commission. The attendance of witnesses and the production of evidence may be required from any place within the United States at any designated place of hearing within the United States.
Failure to obey a Subpoena
If a person refuses to obey a subpoena issued under subparagraph (A), the Commission may apply to a United States district court for an order requiring that person to appear before the Commission to give testimony, produce evidence, or both, relating to the matter under investigation. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey the order of the court may be punished by the court as civil contempt.
Service of subpoenas
The subpoenas of the Commission shall be served in the manner provided for subpoenas issued by a United States district court under the Federal Rules of Civil Procedure for the United States district courts.
Service of process
All process of any court to which application is made under subparagraph (B) may be served in the judicial district in which the person required to be served resides or may be found.
Pay and Travel Expenses
Pay
Members
Each member, other than the Chair of the Commission, shall be paid at a rate equal to the daily equivalent of the minimum annual rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which the member is engaged in the actual performance of duties vested in the Commission.
Chair
The Chair shall be paid for each day referred to in subparagraph (A) at a rate equal to the daily equivalent of the minimum annual rate of basic pay payable for level III of the Executive Schedule under section 5314 of title 5, United States Code.
Travel expenses
Members shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.
Director of Staff
In general
The Commission shall appoint a Director.
Pay
The Director shall be paid at the rate of basic pay payable for level V of the Executive Schedule under section 5316 of title 5, United States Code.
Staff
In general
Subject to paragraph (2), the Director, with the approval of the Commission, may appoint, fix the pay of, and terminate additional personnel.
Limitations on appointment
The Director may make such appointments without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and any personnel so appointed may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates, except that an individual so appointed may not receive pay in excess of the annual rate of basic pay payable for GS–15 of the General Schedule.
Agency assistance
Following consultation with and upon request of the Chair of the Commission, the head of any agency may detail any of the personnel of that agency to the Commission to assist the Commission in carrying out the duties of the Commission under this Act.
GAO and OIRA assistance
The Comptroller General of the United States and the Administrator of the Office of Information and Regulatory Affairs shall provide assistance, including the detailing of employees, to the Commission in accordance with an agreement entered into with the Commission.
Assistance from other parties
Congress, the States, municipalities, federally recognized Indian tribes, and local governments may provide assistance, including the detailing of employees, to the Commission in accordance with an agreement entered into with the Commission.
Other Authority
Experts and consultants
The Commission may procure by contract, to the extent funds are available, the temporary or intermittent services of experts or consultants pursuant to section 3109 of title 5, United States Code.
Property
The Commission may lease space and acquire personal property to the extent funds are available.
Duties of the Commission
In general
The Commission shall conduct a review of 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. The Commission shall give priority in the review to rules or sets of rules that are major rules or include major rules, have been in effect more than 15 years, impose paperwork burdens or unfunded mandates that could be reduced substantially without significantly diminishing regulatory effectiveness, impose disproportionately high costs on entities that qualify as small entities within the meaning of section 601(6) of title 5, United States Code, or could be strengthened in their effectiveness while reducing regulatory costs. The Commission shall have as a goal of the Commission to achieve a reduction of at least 15 percent in the cumulative costs of Federal regulation with a minimal reduction in the overall effectiveness of such regulation.
Nature of review
To identify which rules and sets of rules should be repealed to lower the cost of regulation to the economy, the Commission shall apply the following criteria:
Whether the original purpose of the rule or set of rules was achieved, and the rule or set of rules could be repealed without significant recurrence of adverse effects or conduct that the rule or set of rules was intended to prevent or reduce.
Whether the implementation, compliance, administration, enforcement, imposition of unfunded mandates, or other costs of the rule or set of rules to the economy are not justified by the benefits to society within the United States produced by the expenditure of those costs.
Whether the rule or set of rules has been rendered unnecessary or obsolete, taking into consideration the length of time since the rule was made and the degree to which technology, economic conditions, market practices, or other relevant factors have changed in the subject area affected by the rule or set of rules.
Whether the rule or set of rules is ineffective at achieving the purposes of the rule or set of rules.
Whether the rule or set of rules overlaps, duplicates, or conflicts with other Federal rules, and to the extent feasible, with State and local governmental rules.
Whether the rule or set of rules has excessive compliance costs, imposes unfunded mandates, or is otherwise excessively burdensome, as compared to alternatives that—
specify performance objectives rather than conduct or manners of compliance;
establish economic incentives to encourage desired behavior;
provide information upon which choices can be made by the public;
incorporate other innovative alternatives rather than agency actions that specify conduct or manners of compliance; or
could in other ways substantially lower costs without significantly undermining effectiveness.
Whether the rule or set of rules inhibits innovation in or growth of the United States economy, such as by impeding the introduction or use of safer or equally safe technology that is newer or more efficient than technology required by or permissible under the rule or set of rules.
Whether or not the rule or set of rules harms competition within the United States economy or the international economic competitiveness of enterprises or entities based in the United States.
Whether or not the rule or set of rules limits or prevents an agency from applying new or emerging technologies to improve efficiency and effectiveness of government.
Whether the rule or set of rules harms wage growth, including wage growth for minimum wage and part-time workers.
Such other criteria as the Commission devises to identify rules and sets of rules that can be repealed to eliminate or reduce unnecessarily burdensome costs to the United States economy.
Methodology for review
The Commission shall establish a methodology for conducting the review (including an overall review and discrete reviews of portions of the Code of Federal Regulations), identifying rules and sets of rules, and classifying rules under this subsection and publish the terms of the methodology in the Federal Register and on the website of the Commission. The Commission may propose and seek public comment on the methodology before the methodology is established.
Classification of rules and sets of rules
In general
After completion of any review of rules or sets of rules under paragraph (2), the Commission shall classify each rule or set of rules identified in the review to qualify for recommended repeal as either a rule or set of rules—
on which immediate action to repeal is recommended; or
that should be eligible for repeal under regulatory cut-go procedures under title II.
Decisions by majority
Each decision by the Commission to identify a rule or set of rules for classification under this paragraph, and each decision whether to classify the rule or set of rules under clause (i) or (ii) of subparagraph (A), shall be made by a simple majority vote of the Commission. No such vote shall take place until after all members of the Commission have been confirmed by the Senate.
Initiation of review by other persons
In general
The Commission may also conduct a review under paragraph (2) of, and, if appropriate, classify under paragraph (4), any rule or set of rules that is submitted for review to the Commission by—
the President;
a Member of Congress;
any officer or employee of a Federal, State, local or tribal government, or regional governmental body; or
any member of the public.
Form of submission
A submission to the Commission under this paragraph shall—
identify the specific rule or set of rules submitted for review;
provide a statement of evidence to demonstrate that the rule or set of rules qualifies to be identified for repeal under the criteria listed in paragraph (2); and
such other information as the submitter believes may be helpful to the Commission’s review, including a statement of the submitter’s interest in the matter.
Public availability
The Commission shall make each submission received under this paragraph available on the website of the Commission as soon as possible, but not later than 1 week after the date on which the submission was received.
Notices and reports of the Commission
Notices Of And Reports On Activities
The Commission shall publish, in the Federal Register and on the website of the Commission—
notices in advance of all public meetings, hearings, and classifications under subsection (h) informing the public of the basis, purpose, and procedures for the meeting, hearing, or classification; and
reports after the conclusion of any public meeting, hearing, or classification under subsection (h) summarizing in detail the basis, purpose, and substance of the meeting, hearing, or classification.
Annual reports to Congress
Each year, beginning on the date that is one year after the date on which all Commission members have been confirmed by the Senate, the Commission shall submit a report simultaneously to each House of Congress detailing the activities of the Commission for the previous year, and listing all rules and sets of rules classified under subsection (h) during that year. For each rule or set of rules so listed, the Commission shall—
identify the agency that made the rule or set of rules;
identify the annual cost of the rule or set of rules to the United States economy and the basis upon which the Commission identified that cost;
identify whether the rule or set of rules was classified under clause (i) or clause (ii) of subsection (h)(4)(A);
identify the criteria under subsection (h)(2) that caused the classification of the rule or set of rules and the basis upon which the Commission determined that those criteria were met;
for each rule or set of rules listed under the criteria set forth in subparagraph (B), (D), (F), (G), (H), or (I) of subsection (h)(2), or other criteria established by the Commission under subparagraph (I) of such subsection under which the Commission evaluated alternatives to the rule or set of rules that could lead to lower regulatory costs, identify alternatives to the rule or set of rules that the Commission recommends the agency consider as replacements for the rule or set of rules and the basis on which the Commission rests the recommendations, and, in identifying such alternatives, emphasize alternatives that will achieve regulatory effectiveness at the lowest cost and with the lowest adverse impacts on jobs;
for each rule or set of rules listed under the criteria set forth in subsection (h)(2)(E), the other Federal, State, or local governmental rules that the Commission found the rule or set of rules to overlap, duplicate, or conflict with, and the basis for the findings of the Commission; and
in the case of each set of rules so listed, analyze whether Congress should also consider repeal of the statutory authority implemented by the set of rules.
Final report
Not later than the date on which the Commission members’ appointments expire, the Commission shall submit a final report simultaneously to each House of Congress summarizing all activities and recommendations of the Commission, including a list of all rules or sets of rules the Commission classified under clause (i) of subsection (h)(4)(A) for immediate action to repeal, a separate list of all rules or sets of rules the Commission classified under clause (ii) of subsection (h)(4)(A) for repeal, and with regard to each rule or set of rules listed on either list, the information described in subparagraphs (A) through (F) of subsection (h)(2). This report may be included in the final annual report of the Commission under paragraph (2) and may include the Commission’s recommendation whether the Commission should be reauthorized by Congress.
Repeal of regulations; Congressional consideration of commission reports
In general
Subject to paragraph (2)—
the head of each agency with authority to repeal a rule or set of rules classified by the Commission under subsection (h)(4)(A)(i) for immediate action to repeal and newly listed as such in an annual or final report of the Commission under paragraph (2) or (3) of subsection (i) shall repeal the rule or set of rules as recommended by the Commission within 60 days after the enactment of a joint resolution under paragraph (2) for approval of the recommendations of the Commission in the report; and
the head of each agency with authority to repeal a rule or set of rules classified by the Commission under subsection (h)(4)(A)(ii) for repeal and newly listed as such in an annual or final report of the Commission under paragraph (2) or (3) of subsection (i) shall repeal the rule or set of rules as recommended by the Commission pursuant to section 201, following the enactment of a joint resolution under paragraph (2) for approval of the recommendations of the Commission in the report.
Congressional approval
In general
No head of an agency described in paragraph (1) shall be required by this Act to carry out a repeal listed by the Commission in a report transmitted to Congress under paragraph (2) or (3) of subsection (i) until a joint resolution is enacted, in accordance with the provisions of subparagraph (B), approving such recommendations of the Commission for repeal.
Terms of the resolution
For purposes of paragraph (A), the term joint resolution means only a joint resolution which is introduced after the date on which the Commission transmits to the Congress under paragraph (2) or (3) of subsection (i) the report containing the recommendations to which the resolution pertains, and—
which does not have a preamble;
the matter after the resolving clause of which is only as follows: That Congress approves the recommendations for repeal of the Retrospective Regulatory Review Commission as submitted by the Commission on ____
, the blank space being filled in with the appropriate date; and
the title of which is as follows: Approving recommendations for repeal of the Retrospective Regulatory Review Commission.
.
Reissuance of rules
No substantially similar rule to be reissued
A rule that is repealed under paragraph (1) or section 201 may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution approving the Commission’s recommendation to repeal the original rule.
Agency to ensure avoidance of similar defects
An agency, in making any new rule to implement statutory authority previously implemented by a rule repealed under paragraph (1) or section 201, shall ensure that the new rule does not result in the same adverse effects of the repealed rule that caused the Commission to recommend to Congress the latter’s repeal and will not result in new adverse effects of the kind described in the criteria specified in or under subsection (h).
Authorization of appropriations
In general
There are authorized to be appropriated such sums as may be necessary to the Commission to carry out this Act, not to exceed $30,000,000.
Availability
Any sums appropriated under the authorization contained in this section shall remain available, without fiscal year limitation, until the earlier of the date that such sums are expended or the date of the termination of the Commission.
Website
In general
The Commission shall establish a public website that—
uses current information technology to make records available on the website;
provides information in a standard data format; and
receives and publishes public comments.
Publishing of information
Any information required to be made available on the website established pursuant to this Act shall be published in a timely manner and shall be accessible by the public on the website at no cost.
Record of public meetings and hearings
All records of public meetings and hearings shall be published on the website as soon as possible, but not later than 1 week after the date on which such public meeting or hearing occurred.
Public comments
The Commission shall publish on the website all public comments and submissions.
Notices
The Commission shall publish on the website notices of all public meetings and hearings at least one week before the date on which such public meeting or hearing occurs.
Applicability of the Federal Advisory Committee Act
In general
Except as otherwise provided in this Act, the Commission shall be subject to the provisions of the Federal Advisory Committee Act (5 U.S.C. App.).
Advisory committee management officer
The Commission shall not be subject to the control of any Advisory Committee Management Officer designated under section 8(b)(1) of the Federal Advisory Committee Act (5 U.S.C. App.).
Subcommittee
Any subcommittee of the Commission shall be treated as the Commission for purposes of the Federal Advisory Committee Act (5 U.S.C. App.).
Charter
The enactment of the SCRUB Act of 2016 shall be considered to meet the requirements of the Commission under section 9(c) of the Federal Advisory Committee Act (5 U.S.C. App.).
Definition
In this section, the term unfunded mandate
has the meaning given the term Federal mandate
in section 421(6) of the Congressional Budget Act of 1974 (2 U.S.C. 658(6)).
Regulatory Cut-Go
Cut-go procedures
In general
Except as provided in section 101(j)(2)(A) or section 202, an agency, when the agency makes a new rule, shall repeal rules or sets of rules of that agency classified by the Commission under section 101(h)(4)(A)(ii), such that the annual costs of the new rule to the United States economy is offset by such repeals, in an amount equal to or greater than the cost of the new rule, based on the regulatory cost reductions of repeal identified by the Commission.
Alternative procedure
An agency may, alternatively, repeal rules or sets of rules of that agency classified by the Commission under section 101(h)(4)(A)(ii) prior to the time specified in subsection (a). If the agency so repeals such a rule or set of rules and thereby reduces the annual, inflation-adjusted cost of the rule or set of rules to the United States economy, the agency may thereafter apply the reduction in regulatory costs, based on the regulatory cost reductions of repeal identified by the Commission, to meet, in whole or in part, the regulatory cost reduction required under subsection (a) of this section to be made at the time the agency promulgates a new rule.
Achievement of full net cost reductions
In general
Subject to the provisions of paragraph (2), an agency may offset the costs of a new rule or set of rules by repealing a rule or set of rules listed by the Commission under section 101(h)(4)(A)(ii) that implement the same statutory authority as the new rule or set of rules.
Limitation
When using the authority provided in paragraph (1), the agency must achieve a net reduction in costs imposed by the agency’s body of rules (including the new rule or set of rules) that is equal to or greater than the cost of the new rule or set of rules to be promulgated, including, whenever necessary, by repealing additional rules of the agency listed by the Commission under section 101(h)(4)(A)(ii).
Applicability
An agency shall no longer be subject to the requirements of sections 201 and 203 beginning on the date that there is no rule or set of rules of the agency classified by the Commission under section 101(h)(4)(A)(ii) that has not been repealed such that all regulatory cost reductions identified by the Commission to be achievable through repeal have been achieved.
OIRA certification of cost calculations
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. The certification shall be included in the administrative record of the relevant rulemaking by the agency promulgating the rule, and the Administrator shall transmit a copy of the certification to Congress when it transmits the certification to the agency.
Retrospective Review of New Rules
Plan for future review
When an agency makes a rule, the agency shall include in the final issuance of such rule a plan for the review of such rule by not later than 10 years after the date such rule is made. Such a review, in the case of a major rule, shall be substantially similar to the review by the Commission under section 101(h). In the case of a rule other than a major rule, the agency’s plan for review shall include other procedures and standards to enable the agency to determine whether to repeal or amend the rule to eliminate unnecessary regulatory costs to the economy. Whenever feasible, the agency shall include a proposed plan for review of a proposed rule in its notice of proposed rulemaking and shall receive public comment on the plan.
Judicial Review
Judicial review
Immediate repeals
Agency compliance with section 101(j) of this Act shall be subject to judicial review under chapter 7 of title 5, United States Code.
Cut-Go procedures
Agency compliance with title II of this Act shall be subject to judicial review under chapter 7 of title 5, United States Code.
Plans for future review
Agency compliance with section 301 shall be subject to judicial review under chapter 7 of title 5, United States Code.
Miscellaneous Provisions
Definitions
In this Act:
Agency
The term agency has the meaning given such term in section 551 of title 5, United States Code.
Commission
The term Commission means the Retrospective Regulatory Review Commission established under section 101.
Major rule
The term major rule means any rule that the Administrator of the Office of Information and Regulatory Affairs determines is likely to impose—
an annual cost on the economy of $100,000,000 or more, adjusted annually for inflation;
a major increase in costs or prices for consumers, individual industries, Federal, State, local, or tribal government agencies, or geographic regions;
significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets; or
significant impacts on multiple sectors of the economy.
Rule
The term rule has the meaning given that term in section 551 of title 5, United States Code.
Set of rules
The term set of rules means a set of rules that collectively implements a regulatory authority of an agency.
Effective date
This Act and the amendments made by this Act shall take effect beginning on the date of the enactment of this Act.
Passed the House of Representatives January 7, 2016.
Karen L. Haas,
Clerk
