Bob Goodlatte

Mr. GOODLATTE

Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, it is a new day in America. For 8 years, the Obama administration has brought us one thing in response to the Nation's need for recovery from hard times--failure. Bold, innovative measures to unleash American freedom, opportunity, and resourcefulness could have brought prosperity's return after the Great Recession, just as under Ronald Reagan following his era's recession. But the Obama administration responded differently, with measure after overreaching measure, through regulation, taxes, and spending. It was consumed by the folly of trying to force transformation from the American people through command and control from Washington. Everywhere it went, it sought to choose the winners and losers. When Washington tries to choose the winners and losers, we all lose. And lose we have. We have a national debt of $20 trillion thanks to the outgoing administration's blowout spending. We have an economy that for 8 years has failed to produce enough good, new, full-time jobs to sustain growth and restore dignity to the unemployed. We have 92 million Americans outside the workforce, a level not seen since the Carter years, and nearly $2 trillion of American wealth is commandeered each year to be spent as Washington bureaucrats see fit, through runaway regulation. But it is a new day in America. An incoming administration promises a new approach to make America great again. Central to that approach is regulatory reform. The Obama administration abused regulation to force its will on the American people. The assembling Trump administration promises to wipe out abusive regulation, freeing Americans to innovate and prosper once more. Today's legislation will give this new administration the tools. The heart of today's bill, the Regulatory Accountability Act, title I, restores to the people the true right to be heard by Washington's regulators. It commands Washington bureaucrats to listen to the facts and ideas offered by the people and to follow them when they are better than the bureaucracy's own. It calls on regulatory agencies to achieve the benefits Congress has called on them through statutes to achieve. But it gives the people full opportunities to offer fresh alternatives for doing so and to vet with the agencies the facts and ideas that work and those that don't. After the public has fully contributed its say, agencies must choose the lowest cost alternative proven to work, achieving the needed benefits but rejecting unneeded costs. That leaves resources free to generate the benefits, create the jobs, and yield the higher wages only the private sector, through hard work and ingenuity, can achieve. The other titles of the bill strongly buttress this reform. Title II, the Separation of Powers Restoration Act, wipes out judicial deference to agency interpretations of statutes and regulations and restores to our system of checks and balances the rule Justice Marshall declared in Marbury v. Madison that ``it is emphatically the province and duty of the judicial department to say what the law is''--not the bureaucracy. When title II is law, our courts will no more be rubber stamps for runaway regulatory interpretations that burst the bounds of what Congress truly intended through statutes. Title III, the Small Business Regulatory Flexibility Improvements Act, provides teeth to existing law written to prompt regulatory agencies to tailor flexibility for small businesses into their rules. Small businesses have fewer resources to comply with Washington's mandates. They need flexibility to survive. The terms of existing law for too long have been ignored by Washington bureaucrats. Title III assures the law will no longer be ignored, resulting in freedom and flexibility for America's small businesses, which create the lion's share of new jobs in this country and are pillars of communities across this land. Title IV prevents one of the most egregious of bureaucrats' regulatory abuses: the promulgation of new rules that impose over a billion dollars in annual compliance costs, which must then be complied with even while meritorious litigation challenging their issuance proceeds in court. Title IV, the REVIEW Act, eliminates this abuse, forcing agencies to stay their billion-dollar rules administratively if they are timely challenged in court. And in titles V and VI of the bill, the ALERT Act and the Providing Accountability Through Transparency Act, this legislation delivers much-needed, greater transparency for the public about what new regulations agencies are developing and proposing so they can better prepare to comment on what is proposed, shape what is promulgated, and comply with final rules. With the help of these reforms, we can truly make America more competitive again, put Americans back to work, and free America's entrepreneurs to innovate and launch more exciting new products and services again. I thank my colleagues, Small Business Committee Chairman Chabot, Subcommittee Chairman Marino, Representative Ratcliffe, and Representative Luetkemeyer, who have joined me in contributing titles to this legislation. I urge all of my colleagues to support this bill, and I reserve the balance of my time. House of Representatives, Committee on Oversight and Government Reform, Washington, DC, January 6, 2017. Hon. Bob Goodlatte, Chairman, Committee on the Judiciary, Washington, DC. Dear Mr. Chairman: I write concerning H.R. 5, the Regulatory Accountability Act of 2017. As you know, the Committee on the Judiciary received an original referral and the Committee on Oversight and Government Reform a secondary referral when the bill was introduced on January 3, 2017. I recognize and appreciate your desire to bring this legislation before the House of Representatives in an expeditious manner, and accordingly, the Committee on Oversight and Government Reform will forego action on the bill. The Committee takes this action with our mutual understanding that by foregoing consideration of H.R. 5 at this time, we do not waive any jurisdiction over the subject matter contained in this or similar legislation. Further, I request your support for the appointment of conferees from the Committee on Oversight and Government Reform during any House-Senate conference convened on this or related legislation. Finally, I would ask that a copy of our exchange of letters on this matter be included in the Congressional Record during floor consideration to memorialize our understanding. Sincerely, Jason Chaffetz, Chairman.

Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 5.

Mr. GOODLATTE. Mr. Chairman, I yield 4 minutes to the gentleman from Pennsylvania (Mr. Marino), the chairman of the Regulatory Reform, Commercial and Antitrust Law Subcommittee and the chief sponsor of one of the bills contained herein.

Mr. GOODLATTE. Mr. Chairman, I include in the record a list of organizations supporting H.R. 5. I urge my colleagues to support this important amendment. Agricultural Retailers Association, Washington, DC, January 11, 2017. To All Members of the U.S. House of Representatives: On behalf of the Agricultural Retailers Association (ABA), I am writing to urge a vote in support of H.R. 5, the ``Regulatory Accountability Act'' sponsored by Representative Bob Goodlatte (R-VA). This legislation includes a number of important provisions designed to reform the Federal rulemaking process. All stakeholders have a right to fair, open, and transparent rulemaking that respects the proper role of the states and the intent of Congress. For decades, there have been Executive Orders issued from both Republican and Democrat Administrations highlighting the importance of an open, transparent, and fair regulatory process. H.R. 5 is an important step forward in codifying the principles that Presidents of both parties have issued in Executive Order 12004 (Issued in Match 1978), Executive Order 12291 (Issued in February 1981), Executive Order 12866 (Issued in September 1993), Executive Order 13132 (Issued in August 1999), and Executive Order 13563 (Issued in January 2011). Some of the reforms in H.R. 5 include provisions such as requiring federal agencies to use less costly regulations, rather than more costly proposals, to obtain a stated objective; requiring federal agencies to explain how their proposed regulations would impact small business owners, their employees, and customers; prohibiting any new rules with a significant economic impact from taking effect until litigation against such proposal has been fully settled without impacting existing regulations; and requiring Federal agencies to publish mandatory transparency reports. Rep. Collin Peterson (D-MN) plans to offer an amendment on the floor of the U.S. House of Representatives to prohibit agencies from using social media to sway public opinion in favor of a pending agency proposal. This common-sense amendment is necessary to prevent actions taken by federal agencies such as the U.S. Environmental Protection Agency (EPA) that the General Accountability Office (GAO) found took unlawful actions during its `Waters of the United States'' (WOTUS) proposed rulemaking. ARA urges all House members to vote in favor of the Peterson amendment and to vote ``Yes'' on final passage of H.R, 5. Sincerely, Richard D. Gupton, Senior Vice President, Public Policy & Counsel.

Mr. GOODLATTE. Mr. Chairman, I yield back the balance of my time.

Mr. GOODLATTE. I thank the gentleman for his amendment. Title III of the bill contains important reforms to make sure agencies finally take seriously Congress' directive to write rules with flexible accommodations for small businesses, the source of most of our Nation's job creation. Congress' demands for flexibility began with the Regulatory Accountability Act during the 1980s, but agencies have never fully complied. One of the key ways agencies have skirted the law's requirements has been to certify their way out of any need to actually provide flexibility by finding that a proposed or final rule will not have a significant impact on a substantial number of small entities. This amendment puts the brakes on an inadequately substantiated certification by requiring certifications to include economic assessment details sufficient to support the certifications. I support the amendment.

Mr. GOODLATTE. Mr. Chair, I was unavoidably detained. Had I been present, I would have voted ``nay'' on rollcall No. 37. Amendment No. 9 Offered by Mr. Cicilline

Mr. GOODLATTE. Mr. Chairman, I thank the gentleman for yielding, and I support his amendment. Title I of the bill contains critical reforms to the rulemaking process first introduced in the 112th Congress. In one sentence, one could say that these reforms have one ultimate goal--to assure a fair rulemaking process that achieves the benefits Congress seeks and keeps unnecessary costs to a minimum. The gentleman's amendment, of which I am a cosponsor, responds to an extreme example of rulemaking abuse that played out during the 114th Congress. That abuse was the Environmental Protection Agency's advocacy campaign to skew the information submitted for its administrative record and promote lobbying on behalf of its massive proposed waters of the United States rule. It is one thing to propose a rule and open the agency's doors impartially to information from all members of the public. It is quite another to promote public submissions to guarantee the cooking of the administrative record to support the agency's view and to advocate lobbying of Congress to support that view. This amendment makes sure that the biased agency activity manifest in the waters of the United States rulemaking never happens again. Mr. Chairman, I support the amendment.

Mr. GOODLATTE. Mr. Chairman, if Congress is effectively to rein in the runaway administrative state, a crucial part of the plan must be to overturn, legislatively, the doctrines of judicial deference to agencies' interpretations of the statutes and regulations they administer. These doctrines, founded in the Supreme Court's decision in Chevron v. NRDC and Auer v. Robbins, have, over the years, turned the courts far too much into a rubberstamp rather than a vigorous check on the self-serving tendencies of agencies to interpret the law to expand their own power. Title II of the bill, the Separation of Powers Act, delivers this legislative reversal of Chevron and Auer. There is one thing, though, that still needs to be added to that portion of the bill; that is language to check the potential that once they are restored--the full interpretive powers that rightfully belong to them--our Article III courts will not engage in judicial activism. To put a point on it, judges must not be allowed to use the Separation of Powers Act as a license to interpret ambiguous statutes always to expand agency power. My amendment, therefore, succinctly but powerfully provides just that. It prohibits courts from reading ambiguities in statutes to contain implicit delegation of legislative rulemaking authority to agencies or from reading those ambiguities expansively to extend agency power. Although it failed in its task, the Chevron doctrine was originally crafted to help check that kind of judicial activism. As we end the failed Chevron experiment, we should make sure we do not go back to judicial activism. I urge my colleagues to support this amendment. Mr. Chairman, I reserve the balance of my time.

Mr. GOODLATTE. I thank the gentleman from Louisiana, and I support his amendment. Mr. Chairman, many of the reforms in title I of the bill focus on assuring better decisionmaking and cost control for major rules-- typically, those that impose more than $100 million or more per year in costs. One of these reforms is the commonsense requirement that an agency, when it publishes a major rule, include a plan for reviewing how the rule is working within 10 years. A focus of that review is to determine whether it is possible, after the rule has been put into practice, to find new ways to lower the rule's costs. The gentleman's amendment speeds this process up, requiring review within 5 years, and increases Congress' oversight, requiring reports by agencies to Congress on their reviews. Most importantly, the amendment requires that, if an agency's report to Congress shows the rule's costs in practice are higher than anticipated at promulgation, the agency must institute a notice-and-comment process aimed at identifying revisions that can lower costs. This is a measure that can only strengthen the bill's effectiveness and help lower unnecessary burdens on the American people. I support the amendment.

Mr. GOODLATTE. Mr. Chair, I have an amendment at the desk.

Mr. GOODLATTE. Mr. Chairman, I yield 5 minutes to the gentleman from Texas (Mr. Ratcliffe), a member of the Judiciary Committee and the chief sponsor of two of the measures contained here.

Mr. GOODLATTE. Mr. Chairman, may I inquire how much time is remaining on each side.

Mr. GOODLATTE. Mr. Chairman, I yield 3 minutes to the gentleman from Missouri (Mr. Luetkemeyer), the chief sponsor of one of the bills contained herein.

Mr. GOODLATTE. Mr. Chairman, at this time it is my pleasure to yield 1\1/2\ minutes to the gentleman from California (Mr. Knight).

Mr. GOODLATTE. Mr. Chairman, I yield 1 minute to the gentleman from Minnesota (Mr. Peterson), the ranking member of the House Agriculture Committee.

Mr. GOODLATTE. Mr. Chair, I yield myself such time as I may consume. The facts are plain, the conclusion is clear: the rampant tide of unchecked, unbalanced Federal regulation is overwhelming job creators and households all across this Nation. Thanks to Washington's endless excess of regulations, hardworking Americans face higher prices, lower wages, fewer jobs, and fewer new business starts; and America as a whole is less competitive, less innovative, and less prosperous. Federal regulations now impose an estimated burden of an amazing $1.89 trillion per year. That burden is burying America's job creators and suffocating job opportunities. It equals roughly $15,000 per U.S. household, over 10 percent of America's GDP, and more than the GDP of all but eight countries in the world. The Obama administration set new records for numbers and effects of major regulations, over 600 in total, with an average of 81 per year. That is roughly one every 3 working days. Through just August 2016, these rules had economic effects of over $740 billion and imposed 194 million paperwork burden-hours; and this only built upon the insufficiently checked regulation already imposed by previous administrations. This problem must be solved, and this bill is the number one solution to this problem. Its bold, innovative measures will unleash American freedom, opportunity, and resourcefulness by dramatically reducing new regulatory costs; and they will do that while still allowing agencies to achieve the benefits that Congress' statutes have tasked them to achieve. Far fewer costs, all the benefits, who could be against that? We all should be for it, just as the American people are. Support the American people. Support the Regulatory Accountability Act. I urge my colleagues to do so. Mr. Chair, I yield back the balance of my time.

Mr. GOODLATTE. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Pennsylvania (Mr. Rothfus).

Mr. GOODLATTE. Mr. Chairman, I yield 2 minutes to the gentleman from Utah (Mr. Chaffetz) who is the chairman of the Oversight and Government Reform Committee and a member of the Judiciary Committee.

Mr. GOODLATTE. Mr. Chairman, I yield 1 minute to the gentleman from California (Mr. McCarthy) who is the distinguished majority leader of the House.

Mr. GOODLATTE. Mr. Chairman, I just want to say that title I of the bill contains several key requirements for the Office of Information and Regulatory Affairs, OIRA, to put out high-quality, governmentwide guidelines that all agencies can follow. These include, for example, guidelines on cost-benefit analysis, risk assessment, consistency with the Information Quality Act, and good guidance practices. Since the importance of these issues and the need for swift and effective implementation of reform, the amendment's institution of a 270-day deadline for the issuance of these guidelines is very reasonable, very constructive. I urge my colleagues to support this amendment.

Mr. GOODLATTE. Mr. Chair, I thank the gentleman for the time. I support his amendment. Agency guidance is a crucial part of our regulatory system--flexible because not legally binding, but needed so regulated entities can understand how best to comply with agency rules. Guidance, if it responds in a timely way to the regulated community's need for it, helps everything to function smoothly. But one thing that does not help is agency heel-dragging in the issuance of guidance as the regulated community comes up against legal or practical deadlines by which it needs to implement compliance measures. Too often agencies hurry up and wait to produce needed guidance, then tell those who waited long and hard for it to hurry up and respond, pronto. That can leave very little time for the regulated community to act before deadlines hit. To solve this problem, the amendment offers a simple but much-needed solution. It requires that, within ``good-guidance'' guidelines to be issued by the Office of Information and Regulatory Affairs under the bill, there be guidelines for agencies generally to assure at least 90 days for regulated entities to institute measures consistent with newly issued guidelines. I support the amendment.

Mr. GOODLATTE. Mr. Chairman, I yield 2 minutes to the gentleman from Pennsylvania (Mr. Kelly).

Mr. GOODLATTE. Mr. Chairman, I yield 3 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Small Business Committee, a member of the Judiciary Committee, and the chief sponsor of one of the bills contained herein.

Mr. GOODLATTE

Mr. GOODLATTE. Mr. Speaker, I include in the Record an analysis of a previous version of H.R. 5 from the 112th Congress: November 2, 2011. Re H.R. 3010, the Regulatory Accountability Act of 2011 Hon. Lamar Smith, Chairman, Hon. John Conyers, Jr., Ranking Member, Committee on the Judiciary, House of Representatives, Washington, DC. Dear Mr. Chairman and Ranking Member Conyers: The undersigned practitioners and scholars in the field of administrative law, and former regulatory officials in the White House, OMB and federal agencies, have reviewed the provisions of H.R. 3010, the Regulatory Accountability Act of 2011. H.R. 3010 would reform the Administrative Procedure Act's rulemaking provisions to enhance the quality of federal regulation, enhance democratic accountability and oversight for administrative policymaking, and improve policy outcomes for the American people. We strongly support the Committee's effort to enhance the analysis, justification, transparency of, and participation in, federal rulemaking, and we respectfully request that the Committee include this letter in the record. In its current form, the Administrative Procedure Act (APA) does not adequately regulate the federal rulemaking process. It does not obligate agencies to rigorously define and characterize the need for regulation. It does not require agencies to identify the costs of regulations--including both compliance costs and impacts imposed on the economy and general welfare. It does not require agencies to carefully identify and assess the benefits to be achieved by new regulations, and does not compel agencies to choose the least burdensome, lowest-cost regulation that would achieve the statutory objectives. In short, the APA does not necessarily ensure that agencies justify their regulations in accordance with the highest standards the public deserves. H.R. 3010 would correct this. H.R. 3010's critics argue that the bill would impose new burdens on agencies, by interposing additional analytic hurdles before agencies could adopt new regulations. First, it is important to understand that the bill's regulatory standards, and its analytic and justification requirements, are not fundamentally new--they have been previously developed and applied in Executive Orders issued by Presidents Reagan, Clinton and Obama. The bill would effectively codify existing principles and standards from these Executive Orders in law. Second, while agencies would surely take the codified legal standards and requirements very seriously, and thus experience somewhat greater compliance burdens, that is not necessarily unreasonable or unwarranted. We believe the American public would view such additional safeguards as appropriate. To be clear, we do not oppose environmental, health, safety or economic regulation. Nor do we believe that only a regulation's costs should be carefully tabulated and weighed. We agree that the benefits of many well-designed regulations can obviously be highly valuable to society, and we recognize that sound regulations can certainly reflect benefits that include intangible, non-quantifiable values (such as environmental, moral, ethical, aesthetic, social, human dignity, stewardship and other non-pecuniary or practical factors). Taken together, we believe that all such costs and all such benefits must be rigorously analyzed, assessed, justified and scrutinized before significant new rules are imposed on the public, the economy, affected parties and regulated entities. Quite simply, that is ``accountability.'' The heads of regulatory agencies exercise extensive delegated policymaking authority, but are not directly accountable to the public through the democratic process. Accordingly, it is entirely reasonable, appropriate and, indeed, essential, for Congress to (i) specify in law more stringent criteria for rulemaking, (ii) facilitate substantial Presidential oversight of agency regulations (including those promulgated by ``independent'' agencies), (iii) enable more robust public participation in the rulemaking process, (iv) require regulations to be based on more reliable data and other relevant inputs, and (v) provide for more effective judicial scrutiny of the final regulations. Of course, Congress often delegates its policymaking power to agencies, and it is incontrovertible that agencies' rulemaking can often be as highly consequential and important to the public as the congressionally enacted laws themselves. But for that very reason, regulation must not be undertaken without very careful consideration and observation of the most stringent procedures and analysis. The fact that the bill's requirements would embody existing regulatory review duties and obligations (based on numerous Executive Orders) in the APA itself is not objectionable. Before regulatory agencies impose new burdens on the public and the economy, the agencies should spend the time and make the effort to make sure they get the balance right for the overall benefit of society. Accordingly, we view the Regulatory Accountability Act as serving the public well by mandating in statutory text that new regulations be thoroughly and meaningfully justified. Indeed, to the extent feasible, we would recommend that Congress avail itself of the same cost-benefit analysis prior to enacting regulatory legislation so as to avoid imposing unjustified regulatory mandates that agencies cannot fully resolve in the rulemaking process. As noted above, far from imposing partisan or ideologically divisive requirements, H.R. 3010 embodies and implements a longstanding, bipartisan consensus on the proper principles of regulatory review and reform: Presidents Reagan, George H.W. Bush, Clinton, George W. Bush and--most recently and emphatically--President Obama, have all issued or implemented Executive Orders calling for rigorous justification of the need for regulation, careful cost-benefit analysis before imposing new regulatory requirements, reliance on sound science, and selection of the least burdensome regulatory alternatives that meet the relevant statutory objectives. H.R. 3010 would take those Executive Branch principles and codify them, thereby preserving in federal statutes the very values set forth in President Obama's recent Orders: Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. Each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination' that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. Regulations shall be adopted through a process that involves public participation. Each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. Each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded. Before issuing a notice of proposed rulemaking, each agency, where feasible and appropriate, shall seek the views of those who are likely to be affected, including those who are likely to benefit from and those who are potentially subject to such rulemaking. Each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. Each agency shall ensure the objectivity of any scientific and technological information and processes used to support the agency's regulatory actions. Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. Such decisions are informed and improved by allowing interested members of the public to have a meaningful opportunity to participate in rulemaking. To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative). Executive Order 13563 of January 18, 2011, ``Improving Regulation and Regulatory Review,'' directed to executive agencies, was meant to produce a regulatory system that protects ``public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.'' Independent regulatory agencies, no less than executive agencies, should promote that goal. Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well. Indeed, the Regulatory Accountability Act would implement President Obama's recent call for ``public participation and open exchange'' before a rule is proposed. Specifically, H.R. 3010 would create an Advance Notice of Proposed Rulemaking stage for major rules ($100M+). In this early notice, the agency would identify the problem it wishes to address through regulation and articulate the specific legal authority for doing so; disclose its preliminary views on the direction of the prospective regulation, and provide information concerning possible regulatory alternatives; and invite the public to submit written comments on these issues. While this adds a step in the regulatory process, it is one that allows interested parties a greater opportunity to help the agency reach a sound outcome. The bill would also obligate agencies to rely on better scientific and technical data. While agencies must exercise their expert judgment, it is impossible to argue against the proposition that they should use the best data and other inputs available. Affected parties can invoke judicial and administrative remedies to ensure that agencies rely on scientific and technical evidence that meets the standards of the Information Quality Act. This is, of course, consistent with President Obama's call for regulating ``based on the best available science.'' This is unassailable. If agencies cannot disclose and defend the data they rely on as being the best available, they cannot possibly be confident enough in their regulatory analysis to impose new requirements on the basis of the data at their disposal. The Committee may also wish to consider the possible application, or adaptation, of the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., in the regulatory context. In Daubert, the Court empowered federal judges to reject irrelevant or unreliable scientific evidence, thus providing the judiciary a mandate to foster ``good science'' in the courtroom and to reject expert testimony not grounded in scientific methods and procedures. Some federal agencies have been criticized for lacking a commitment to sound science. Too often, federal courts have accorded great deference to uphold agency decisions that may have been based on faulty scientific evidence or unsupported assumptions and conclusions. Daubert principles could be applied to the review of agency rulemaking under the APA because these principles are consistent with the APA requirement that agencies engage in reasoned decisionmaking, would assure better documentation of agencies' scientific decisions, and would enhance the rigor and predictability of judicial review of agency action based on scientific evidence. This approach would be entirely congruent with the Regulatory Accountability Act's requirement that regulations be based on the best available science. Applying the Daubert principles in judicial review of agency action would allow courts to evaluate the scientific methods and procedures employed by agencies, but must not allow judges to substitute their own policy preferences or conclusions for those chosen by the agencies. The courts' review need not be heavy-handed; it can be both deferential and probing, ensuring that agencies formulate and comply with procedures tailored to producing the best results, while not dictating what those results must be in any given case. Incorporating, or adapting, Daubert principles into administrative law would improve agency decisionmaking and enhance accountability. Agencies would be compelled to identify the most reliable and relevant scientific evidence for the issue at hand and disclose the default assumptions, policy choices, and factual uncertainties therein. Applying Daubert in the administrative context would refine judicial review of agency science, resulting in greater consistency and rigor. We also believe that it is reasonable that H.R. 3010 would expose more agency pronouncements, such as agency guidance documents, to more rigorous standards. Specifically, the bill would adopt the good-guidance practices issued by OMB in 2007 (under then-Director, and now Senator, Portman). Such agency guidance would be clearly noted as ``non-binding,'' and would not be entitled to substantial judicial deference. The heart of the bill is to build cost-benefit analysis principles into each step of the rulemaking process--proposed rule, final rule, and judicial review. As noted earlier, these principles are drawn from Executive Orders issued by Presidents Reagan and Clinton and emphatically reaffirmed by President Obama. The bill would make those principles permanent, enforceable and applicable to independent agencies. Compliance with these codified requirements would be subject to judicial review. Significantly, the bill would require agencies to adopt the ``least costly alternative that will achieve the objectives of the statute authorizing the rule.'' It permits agencies to adopt a more costly approach only if the agency demonstrates that the added costs justify the benefits and that the more costly rule is needed to address interests of public health, safety, and welfare that are clearly within the scope of the statute. This is consistent with the White House's recent instruction to federal agencies to ``minimize regulatory costs'' and the President's directive to ``tailor regulations to impose the least burden on society.'' (Exec. Order 13,563) For high impact, billion-dollar rules, additional procedures would apply--which seems entirely reasonable given the resulting consequences for the public and the economy. Most importantly, affected parties will have access to a fair and open forum to question the accuracy of the views, evidence, and assumptions underlying the agency's proposal. The hearing would focus on (1) whether there is a lower-cost alternative that would achieve the policy goals set out by Congress (or a need that justifies an higher cost than otherwise necessary); (2) whether the agency's evidence is backed by sound scientific, technical and economic data, consistent with the Information Quality Act; (3) any issues that the agency believes would advance the process. Parties affected by major rules ($100M+) would also have access to hearings, unless the agency concludes that the hearing would not advance the process or would unreasonably delay the rulemaking. Following the hearing prescribed in the bill, high-impact rules would be reviewed under a slightly higher standard in court--so-called ``substantial evidence'' review. While this standard is still highly deferential to the agency's judgments, it allows a court reviewing major rules to ensure that an agency's justifications are supported by ``evidence that a reasonable mind could accept as adequate to support a conclusion based on the record as a whole.'' We understand that these additional review and analysis requirements are not perfunctory and may not be easy for agencies to accomplish. However, we believe that because of the extensive delegation of essentially legislative authority from Congress and policymaking discretion that agencies exercise, and the substantial deference that agencies enjoy from the courts, the public deserves more analysis and justification before agencies acts. Moreover, we believe that the public also expects the President to influence and control rulemaking by all federal agencies, and thus we support greater centralized White House review of agency regulations--including independent agencies--on behalf of the President by the Office of Information and Regulatory Affairs at OMB (in the Executive Office of the President). We believe the bill, which clearly applies its regulatory standards to independent agencies, should also make clear that the President is responsible for, and entitled to review, the rules issued by independent agencies such as the SEC, CFTC, FCC, FTC, CPSC, CFPB, etc. The need for such Presidential authority is manifest. For example, in a recent case before the U.S. Court of Appeals for the D.C. Circuit, In re Aiken County, the presidentially controlled Department of Energy and the independent Nuclear Regulatory Commission did not actually agree on the merits of how to handle nuclear waste at Yucca Mountain. This prompted Circuit Judge Brett Kavanaugh to explain why the lack of presidential authority and control is constitutionally and politically dubious. Quoting both Alexander Hamilton in the Federalist Papers and the Supreme Court in PCAOB, he wrote that ``the issue created by Humphrey's Executor is that the President's decision on the Yucca Mountain issue is not the final word in the Executive Branch. In other cases, the issue created by Humphrey's Executor is that it allows Presidents to avoid making important decisions or to avoid taking responsibility for decisions made by independent agencies. When independent agencies make such important decisions, no elected official can be held accountable and the people ``cannot `determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.' '' President Obama has acknowledged the importance of Presidential review of independent agency rulemaking in recent, July 11, Executive Order. (Executive Order, 13,579) His Order requests (but does not command) that the independent agencies to submit the regulations they issue to the same principles applicable throughout the parts of the Executive Branch for which he is directly accountable. Specifically, independent agencies are now asked to scrutinize existing and future regulations in accordance with cost-benefit analysis. He also asks them to assure that regulatory policy is cost-effective and protective of innovation and job creation. Perhaps most importantly, independent agencies should also make sure that there is a real problem that needs to be solved before regulating, and then choose the least burdensome regulatory alternative that prevents or abates that harm. The bill currently before Congress should thus make clear--not only that independent agencies are subject to the salutary standards of cost- benefit analysis and rigorous policy justification--but also, that the President has the power and responsibility to review and control all such Executive Branch rulemaking. While we endorse the bill's proposed codification of regulatory standards, analytic criteria, and accountability principles, we would also recommend that Congress consider incorporating the prospectively duplicative provisions of the Regulatory Flexibility Act (with regard to cost-benefit analysis for small business) and the Unfunded Mandates Reform Act (with regard to cost-benefit analysis and minimization of burdens on states, tribes and private sector; though UMRA does not currently apply to independent agencies). Moreover, as previously noted, we also believe the bill should specifically authorize the President to oversee rulemaking by independent agencies. The President's responsibility to oversee independent regulatory agencies, like the Consumer Financial Protection Board, for example, would ensure that the regulations adopted by such agencies are in the overall best interest of the American people. Thank you for considering our views. Respectfully submitted, Alan Charles Raul, Former Vice Chairman, White House Privacy and Civil Liberties Oversight Board, Former General Counsel, U.S. Department of Agriculture, Former General Counsel, Office of Management and Budget, Former Associate Counsel to the President. C. Boyden Gray, Boyden Gray & Associates, Former Ambassador to the European Union, Former Counsel to the President, Former Counsel to the Vice President. James C. Miller III, Former Director of the Office of Management and Budget, Former Chairman of the Federal Trade Commission, Former Administrator of the Office of Information And Regulatory Affairs, OMB. David L. Bernhardt, Former Solicitor, Department of the Interior. Adam J. White, Boyden Gray & Associates. Eileen J. O'Connor, Former Assistant Attorney General, Tax Division, U.S. Department of Justice. Daren Bakst, Director of Legal and Regulatory Studies, John Locke Foundation. Jeffrey R. Holmstead, Former Assistant Administrator of the Environmental Protection Agency for Air and Radiation, Former Associate Counsel to the President. Jeffrey Bossert Clark, Former Deputy Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice. David R. Hill, Former General Counsel, U.S. Department of Energy.