On March 1st, the U.S. House of Representatives (House) passed the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act (SCRUB Act) by a vote of 240 to 185, split mostly along party lines. If passed by the U.S. Senate and signed by President Trump, the SCRUB Act would establish the Retrospective Regulatory Review Commission (Commission) to find and recommend regulations for repeal, implement “cut-go” procedures for executive agencies to repeal certain regulations identified by the Commission, and provide for the future review of new rules every 10 years. It is unclear when and if the Senate will take up the SCRUB Act. However, the Act seems to be consistent with President’s stated goal of reducing the number and burden of regulations.
If the bill is enacted as passed by the House, the SCRUB Act would charge the Commission to review the Code of Federal Regulations to identify rules or sets of rules for repeal based on whether the original purpose of the regulation has been achieved; its cost is unfunded, excessive compared to alternatives, or unjustified based on benefit to society; or the rule is obsolete, ineffective, duplicative, hinders innovation, or harms competition or wage growth. The Commission would prioritize the review of “major rules” that meet certain thresholds for cost or regulatory burden. Through an annual report to Congress, the Commission could recommend regulations for either immediate repeal, which would force responsible agencies to take those rules off the books within 60 days after the enactment of a joint resolution of Congress approving the Commission’s recommendations, or for repeal through the regulatory cut-go procedure, which would make rules eligible for repeal by the responsible agencies to offset the cost of new rules. The SCRUB Act mandates that agencies not reenact regulations that are substantially similar or contain the same defects as those repealed based on Commission recommendations. Additionally, any new regulation would have to contain a plan for review of the rule not later than 10 years after the rule is made.
Government officials and employees and the public would be able to request the Commission’s review of particular regulations by submitting a statement of evidence to demonstrate that a specific rule or set of rules qualifies to be identified for repeal based on the statutory criteria described above along with any other information the submitter believes would be helpful to the Commission.
If enacted, the SCRUB Act could be used to reconsider rules promulgated by agencies with authority to regulate the health care and life science industries, including the U.S. Food and Drug Administration, the Centers for Medicare and Medicaid Services, and the Office of Inspector General. We will continue to follow legislative developments, including the progression of the SCRUB Act.