    [Senate Hearing 113-344]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-344

            JUSTICE DELAYED: THE HUMAN COST OF REGULATORY PARALYSIS

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

                                    HEARING

                                   before the

                           SUBCOMMITTEE ON OVERSIGHT,
                        FEDERAL RIGHTS AND AGENCY ACTION

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 AUGUST 1, 2013

                                   __________

                              Serial No. J-113-26

                                   __________

             Printed for the use of the Committee on the Judiciary

                                   ----------

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking
    CHUCK SCHUMER, New York                  Member
    DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
    SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
    AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
    AL FRANKEN, Minnesota                JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
                Bruce A. Cohen, Chief Counsel and Staff Director
            Kolan Davis, Republican Chief Counsel and Staff Director
                                     ------

          Subcommittee on Oversight, Federal Rights and Agency Action

                    RICHARD BLUMENTHAL, Connecticut Chairman
    PATRICK J. LEAHY, Vermont            ORRIN G. HATCH, Utah, Ranking
    AMY KLOBUCHAR, Minnesota                 Member
                                         JEFF FLAKE, Arizona
                    Jon Donenberg, Democratic Senior Counsel
                    Thomas Jipping, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Blumenthal, Hon. Richard, a U.S. Senator from the State of
      Connecticut....................................................     1
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     3
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................    32

                                   WITNESSES

    Witness List.....................................................    31
    Steinzor, Rena, President, Center for Progressive Reform;
      Professor, University of Maryland Carey School of Law,
      Baltimore, Maryland............................................     4
        prepared statement...........................................    33
    Batkins, Sam, Director, Regulatory Policy, American Action Forum,
      Washington, DC.................................................     6
        prepared statement and attachments...........................    48
    Seminario, Peg, Director, Safety and Health, AFL-CIO, Washington,
      DC.............................................................     8
        prepared statement...........................................    70
    McLaughlin, Patrick A., Ph.D., Senior Research Fellow, Mercatus
      Center, George Mason University, Arlington, Virginia...........    10
        prepared statement...........................................    81
    Fennell, Janette E., President and Founder, KidsAndCars.org, Bala
      Cynwyd, Pennsylvania...........................................    12
        prepared statement and attachments...........................    90

                                   QUESTIONS

    Questions submitted by Senator Blumenthal for Rena Steinzor and
      Peg Seminario..................................................   121
    Questions submitted by Senator Klobuchar for Rena Steinzor.......   128

                             QUESTIONS AND ANSWERS

    Responses of Rena Steinzor to questions submitted by Senators
      Blumenthal and Klobuchar.......................................   129
    Responses of Peg Seminario to questions submitted by Senator
      Blumenthal.....................................................   147

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Consumers Union, statement.......................................   153
    Heinzerling, Lisa, ``Who Will Run the EPA?'', Yale Journal on
      Regulation, April 1, 2013, article.............................   154
    Institute for Policy Integrity, New York University School of
      Law, A Framework for Addressing Delayed Regulatory Reviews at
      OIRA, statement................................................   159
    Mercatus Center, George Mason University, Research Summary: Test-
      Driving Some Regulatory Process Reforms, Jerry Ellig and
      Rosemarie Fike.................................................   160
    Mercatus Center, George Mason University, Research Summary: The
      Regressive Effects of Regulation--Who Bears the Cost?, Diana
      Thomas.........................................................   162

                     ADDITIONAL SUBMISSIONS FOR THE RECORD

    Submissions for the record not printed due to voluminous nature,
      previously printed by an agency of the Federal Government or
      other criteria determined by the Committee:

      ``Ten Principles for Better Regulation'' by Jerry Ellig;
        available at http://mercatus.org/sites/default/files/
        Ellig_10RegPrinciples_v1.pdf

      ``The Pathology of Privilege: The Economic Consequences of
        Government Favoritism'' by Matthew Mitchell; available at
        http://mercatus.org/sites/default/files/
        Mitchell_PathologyofPrivilege_v3_1.pdf

            JUSTICE DELAYED: THE HUMAN COST OF REGULATORY PARALYSIS

                                  ----------

                            THURSDAY, AUGUST 1, 2013

                                   U.S. Senate,
                     Subcommittee on Oversight, Federal
                             Rights, and Agency Action,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2 p.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. Richard
    Blumenthal, Chairman of the Subcommittee, presiding.
        Present: Senators Blumenthal, Whitehouse, and Hatch.

     OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. SENATOR
                     FROM THE STATE OF CONNECTICUT

        Chairman Blumenthal. Good afternoon and welcome, everyone,
    to this first hearing of a new Subcommittee, and our subject
    this afternoon, ``Justice Delayed: The Human Cost of Regulatory
    Paralysis,'' is one that I think is fundamentally about the
    rule of law. I do not know anyone more dedicated to the rule of
    law than the Ranking Member of this Subcommittee, Orrin Hatch.
    Senator Hatch has been a longstanding advocate of effective,
    fair, impartial enforcement of the law, and so I am
    particularly pleased to be working with him and want to thank
    him and his staff for his cooperation in making this hearing
    happen on the verge of our recess.
        Senator Hatch. Well, thank you, Mr. Chairman.
        Chairman Blumenthal. And as our Chairman, Senator Leahy,
    mentioned this morning, this is the time in the legislative
    process when the fumes of gasoline for jets fill the hallways
    and prompt us to be especially mindful about time. And we may
    have a vote at 3, but I would like to begin as soon as possible
    and just say I appreciate our first witnesses being here, and I
    am going to swear you in in just a moment. But I will make a
    brief statement and then turn to Senator Hatch.
        Every year in Connecticut, we gather in Bridgeport for a
    very solemn ceremony to remember the victims of L'Ambiance
    Plaza, who were workers on that day, more than 20 of them, who
    perished--28 workers who perished on that day because of a
    method of construction known as ``lift slab.'' Lift slab was a
    patented construction technique designed to achieve maximum
    speed at minimum cost, and it involved casting large slabs of
    concrete and then literally lifting them to create floors and
    ceilings and putting them in place using hydraulic lifts.
        On April 23rd, one of the slabs broke, destabilizing the
    whole structure, which was partially built, and burying,
    literally burying 28 workers, who left their homes that morning
    saying goodbye to their families, expecting to return home,
    having plans for the spring and the summer, and never coming
    back.
        Now, the workers who died that day were victims of bad
    engineering, but they were also victims of bad policy, because
    more than 5 years before the L'Ambiance tragedy, the
    Occupational Safety and Health Administration actually released
    an Advanced Notice of Proposed Rulemaking on lift-slab
    construction. The agency has recognized that lift-slab
    construction created special risks and needed special
    regulations under its existing authority, under its obligation
    to enforce that authority and use the law to protect people.
    And over the 5 years following that notice, OSHA opened and
    closed two comment periods and held one public meeting but
    produced no rule.
        The final rule ended lift-slab construction. It came 3
    years after L'Ambiance Plaza, too late for those 28 people who
    died needlessly and tragically on that day.
        We are here about L'Ambiance Plaza but much more, because
    many other rules and many other rulemaking procedures have been
    needlessly delayed--maybe not as long as the 8 years that it
    took OSHA to issue that rule that banned lift-slab
    construction, but much too long and with tragic costs for many,
    many Americans.
        Today we are here about delays in justice in the regulatory
    process that affect millions of Americans who depend on clean
    water and clean air, on safe products, who depend on
    enforcement of the law when they go to work or come home, use
    appliances, and run their cars.
        In a recent study of three key Environmental Protection
    Agency programs, the Competitive Enterprise Institute found
    that 98 percent of EPA rules since 1993 have been promulgated
    late by an average of 2,072 days after their statutory
    deadline.
        Now remember, these deadlines are not just about it would
    be nice if you get these regulations done. They are often, more
    commonly than not, a matter of statutory deadline.
        The various agencies responsible for implementing the Dodd-
    Frank Act have missed 62.7 percent of the 279 statutory
    deadlines that have passed so far. As of a recent report, 136
    draft rules from executive agencies were under review at the
    White House, and of them, 72 had been held for longer than the
    90-day statutory limit set by the relevant Executive order; 38
    had been under review for more than a year, including 24 from
    2011 and 3 from 2010.
        The White House has made tremendous progress. OIRA has
    issued some regulations more recently. I want to commend that
    progress. But I go through these numbers because they have a
    reality to American life that I think is undeniable, and they
    are essential to public trust and confidence in the law.
        I know about costs and benefits and the importance of
    considering them. I know about the importance of listening and
    the importance of doing it. I believe in listening and weighing
    cost/benefits and quantifying the results of the regulatory
    process. But very simply, my belief is we can do better, and
    that is our goal--again, not only because of the impacts on
    human safety and quality of life as well as health, but also
    because it is vital to confidence and trust in the rule of law.
    And to us as a legislative body, it ought to be a matter of
    personal pride. We work very hard. We have a lot of debate. We
    disagree and then we come to a consensus in making a law. And
    then to have it unenforced or ignored ought to be considered an
    affront professionally and also as a matter of democratic
    process.
        So we are beginning. This hearing is our first--I hope that
    we will have others--to consider the specific areas of
    enforcement that deserve attention and, again, I just really
    want to thank our Ranking Member Senator Hatch for his
    longstanding commitment to the principles that underlie this
    hearing and his very important help in being here today.
        Senator Hatch.

     OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
                           THE STATE OF UTAH

        Senator Hatch. Well, thank you, Mr. Chairman. I am proud of
    you and very pleased to be able to work with you on this
    Committee. This is a Subcommittee that really can make a
    difference in the lives of many people and in the safety of
    their lives. We have been working productively together on the
    full Judiciary Committee, and I look forward to doing so in our
    roles here on this Subcommittee.
        As I think the witnesses in the record from this hearing
    will confirm, there are very different perspectives on the
    costs and benefits of regulation. More specific to the title of
    this hearing, there are human costs from regulatory excess as
    well as from regulatory paralysis. Some see delays; others see
    a process that can produce better quality results. There may be
    costs to the quality of regulations from a process that is
    unnecessarily hastened or artificially driven by political
    considerations. Some focus on individual regulations that can
    impose benefits or costs on discrete populations or even on
    individuals.
        But the aggregate accumulation of regulations can increase
    costs, even significant human costs, on virtually all of our
    fellow citizens.
        A senior citizen, for example, may, on the one hand,
    benefit from regulations that improve the quality of her
    prescription drugs but, on the other hand, find that her
    retirement savings are insufficient because regulatory burdens
    undermine economic growth during her working life.
        I think that the witnesses here today bring these different
    views and perspectives, and we are really grateful to all of
    you for showing up and helping us to understand this better.
        Once again, Mr. Chairman, I want to thank you for your
    courtesy and fairness in putting together this hearing, and I
    look forward to hearing from the witnesses and, of course,
    working with you in the future on future hearings as well.
        Chairman Blumenthal. Thank you, Senator Hatch.
        Let me introduce the witnesses and then swear them in, and
    then we will hear from you individually.
        Rena Steinzor is a law professor at the University of
    Maryland Francis King Carey School of Law and president of the
    Center for Progressive Reform. The Center for Progressive
    Reform was founded in 2002 and is a network of 60 scholars
    across the Nation dedicated to protecting health, safety, and
    environment through analysis and commentary. She has written
    very widely and extensively. Her most recent book, published by
    the University of Chicago Press, is entitled, ``The People's
    Agents and the Battle to Protect the American Public: Special
    Interests, Government, and Threats to Health, Safety, and the
    Environment,'' co-authored with Professor Sidney Shapiro, of
    Wake Forest School of Law.
        Sam Batkins is the director of regulatory policy at the
    American Action Forum. He focuses his research on examining the
    rulemaking efforts of administrative agencies, and his work has
    appeared in the Wall Street Journal, the Washington Post, the
    New York Times, Reuters, Politico, among other publications.
        Peg Seminario is director of occupational safety and health
    for the AFL-CIO. She has worked for the AFL-CIO since 1977, and
    since 1990 has been responsible for directing that
    organization's program for safety and health, and she has
    worked on a wide variety of regulatory and legislative
    initiatives at the federal and State levels.
        Dr. Patrick McLaughlin is a senior research fellow at the
    Mercatus Center at George Mason University. His research
    focuses on regulations and the regulatory process with
    additional interests in environmental economics, international
    trade, industrial organization, and transportation economics.
    And he has published widely in the fields of law, economics,
    public choice, environmental economics, and international
    trade.
        Janette Fennell is president and founder of
    KidsAndCars.org. She is recognized as a national leader on
    health and child safety as it relates to dangers children face
    in and around motor vehicles, with an in-depth specialty
    regarding events that take place off public roads and highways,
    most commonly referred to as ``non-traffic accidents'' or
    ``incidents.'' Ms. Fennell has testified before the
    Subcommittee on Commerce, Trade, and Consumer Protection of the
    House Committee on Energy and Commerce, and she, too, has
    written extensively.
        We welcome you all today, and I am going to ask you to
    please stand and be sworn, as is the custom of the Judiciary
    Committee. Do you affirm that the testimony that you are about
    to give before the Committee will be the truth, the whole
    truth, and nothing but the truth, so help you God?
        Ms. Steinzor. I do.
        Mr. Batkins. I do.
        Ms. Seminario. I do.
        Mr. McLaughlin. I do.
        Ms. Fennell. I do.
        Chairman Blumenthal. Thank you. Professor, maybe we can
    begin with you and then go across the table.

     STATEMENT OF RENA STEINZOR, PRESIDENT, CENTER FOR PROGRESSIVE
    REFORM; PROFESSOR, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW,
                          BALTIMORE, MARYLAND

        Ms. Steinzor. Mr. Chairman, Ranking Member Hatch, and
    members of the Subcommittee, I appreciate the opportunity to
    testify.
        The Subcommittee deserves tremendous credit for airing the
    truth about the public health regulations that agencies are
    writing as directed by Congress. The costs of delay are as real
    as they should be unnecessary, given the clear mandates of the
    law. Unfortunately, the overwhelming clout of Fortune 100
    companies and their relentless, self-serving effort to ignore
    the great benefits provided by these essential protections has
    dominated the airwaves. This hearing is a most welcome effort
    to achieve some balance.
        One does not need to look far to see why regulations are
    essential. Just ask anyone whose life was saved by a seat belt,
    whose children escaped brain damage because the EPA took lead
    out of gas, who turns on the faucet knowing the water will be
    clean, who takes drugs for a chronic illness confident the
    medicine will make them better, who avoided having their hand
    mangled in machinery on the job because an emergency switch was
    there to cut off the motor, who has taken their kids on a trip
    to a heritage national park to see a bald eagle that was saved
    from the brink of extinction. The list goes on and on.
        The EPA's regulations are among the most beneficial
    safeguards the U.S. regulatory system has ever produced.
    Remember that we have reached the point where children and the
    elderly are routinely warned not to go outside on Code Red days
    when the weather is hot and the smog levels unhealthy. It is
    reminiscent of living in a Mad Max movie. Clearly we have no
    time to waste in setting EPA free to do its job.
        An analysis assessing Clean Air Act regulations found that
    in 2010 these rules saved 164,300 adult lives and prevented 13
    million days of work loss and 3.2 million days of school loss
    due to pollution-related illnesses such as asthma. By 2020, if
    additional rules are issued promptly and Congress resists
    shrill demands that it derail them yet again, the annual
    benefits of these rules will include 237,000 adult lives saved
    as well as the prevention of 17 million work loss days and 5.4
    million school loss days.
        Even the most conservative practitioners of cost/benefit
    analysis, including John Graham, President Bush's regulatory
    czar, acknowledge what an amazing bang for the buck these
    regulations deliver in relationship to the costs they impose.
        Conversely, because Clean Air Act regulations have been so
    long delayed--after all, Congress passed the Clean Air Act
    Amendments in 1990, and we sit here 23 years later--thousands
    of additional lives have been lost, hundreds of thousands of
    people have had heart attacks and visited the hospital because
    of respiratory illness, and people have lost millions of days
    off work and out of school.
        Instead of acknowledging that they have reached the end of
    the line on delaying tactics that are within the law, the
    owners and operators of coal-fired power plants, chemical
    production facilities, oil companies, and motor vehicle
    manufacturers have shifted focus to the fraught world of
    polarized politics that you know only too well. These efforts
    have turned what should be an expert-driven, science-based
    process for formulating public policy into a blood sport, with
    the party able to spend the most money becoming the most likely
    to win. Nothing less than the future integrity of the
    administrative process is at stake.
        In fact, several of my students are in the audience today,
    and I am pained to tell you that when they study health,
    safety, and environmental regulation, they are learning more
    about scofflaw than law. They see that when Congress votes on a
    piece of legislation by overwhelming margins--the Senate
    approved the 1990 Clean Air Act amendments by a margin of 89 to
    10--everything you write down as an apparently ironclad mandate
    is far from certain to become reality. They see that instead of
    trying to muster enough votes to repeal a law, regulated
    industries have learned to go underground and sabotage it, in
    the process doing irreversible damage to the credibility not
    just of the EPA, but of the Senate and the House, and
    ultimately the rule of law in this country.
        Industry lobbyists characterize the Clean Air Act rules
    that have finally reached the end of the pipeline as a ``train
    wreck'' dreamed up by Lisa Jackson, EPA Administrator in
    President Obama's first term. But Ms. Jackson did not take a
    trip to the basement of her office building and get drunk on
    her own whiskey, writing down her best fantasies for torturing
    the industry. Rather, she did her best--at long last--to
    satisfy congressional mandates instructing her agency to impose
    more stringent controls on power plants, automobile fuel,
    boilers, et cetera. Fighting through the considerable
    resistance confronting her at the White House, resisting last-
    minute threats by industries that had successfully battled
    against this day of reckoning for 2 decades, Ms. Jackson tried
    to do no more and no less than what Congress told her agency to
    do.
        The truth is that these rules, and the civil servants who
    write them, do not sweep industry's hard-earned money into a
    pile and set it on fire for no good reason. The regulations
    impose costs, but they also deliver tremendous benefits.
        Just like the controls on smoking you have championed
    throughout your career in Congress, Senator Hatch, the chemical
    and manufacturing sectors have fought these important rules
    with a disinformation strategy that should sound quite
    familiar: disputing the danger of air emissions of smog and
    toxic chemicals and distorting the content of the rules the EPA
    has imposed. This Subcommittee, with its jurisdiction over the
    effective and efficient implementation of the law, is well
    positioned to investigate this record and help get the
    administrative process back on track.
        Thank you.
        [The prepared statement of Ms. Steinzor appears as a
    submission for the record.]
        Chairman Blumenthal. Thank you, Professor Steinzor.
        Mr. Batkins.

    STATEMENT OF SAM BATKINS, DIRECTOR, REGULATORY POLICY, AMERICAN
                      ACTION FORUM, WASHINGTON, DC

        Mr. Batkins. Chairman Blumenthal, thank you, Ranking Member
    Hatch. I would like to start by making three basic points.
        Regulatory growth has peaked in recent years, with 100
    major rules in 2010, which was a record. Many of these
    regulations have little to do with protecting public health,
    and some regulations admittedly cause environmental dis-
    benefits. And, finally, proper oversight is the standard
    practice across the globe for regulatory policy. A regulatory
    system that creates 10.3 billion hours of paperwork can cause
    needless delays for veterans, immigrants, and countless
    American businesses, even with the current oversight that we do
    have.
        So if we put regulation in perspective, during the last 4
    years we have issued more than 330 major regulations, those
    with an economic impact of more than $100 million. Our
    paperwork burden, as I have mentioned, the amount of time
    Americans spend filling out federal forms, is 10.3 billion
    hours. In that time, it would take more than 5.1 million
    employees working 2,000 a years to complete the required
    paperwork.
        Now, much of this talk on regulations stems from 2010 when
    the Federal Government issued 100 major rules. That same year
    Congress passed 129 private sector mandates and 86 unfunded
    mandates on States, also records. These legislative mandates,
    as we all know, are now working their way into the regulatory
    system. OIRA reported that Fiscal Year 2012 was the costliest
    year on record, and despite these costs, OIRA did not report
    record benefits, although it did report large benefits. A large
    portion had nothing to do with protecting clean air, water, or
    reducing greenhouse gases. Instead, some benefits arose from
    altering consumer preferences for the purchase of goods. With
    the Federal Government managing more than 9,100 different
    collections of information, our current regulatory burden
    consumes far more than just clean air, water, and worker
    protection.
        Beyond the top-line figures that I have mentioned, there
    are, of course, human costs to these numbers. If you are a
    veteran trying to manage VA's 7 million hours of paperwork, or
    a potential American citizen making your way through the 116
    different Customs and Immigration forms, an ossified regulatory
    system can have a profound impact.
        Take the 380 people now without a job at the Hatfield's
    Ferry Power Plant in southwest Pennsylvania. Four years before
    the plant closed, it invested $650 million in scrubbers to
    reduce mercury and sulfur emissions. When the MATS rule was
    finalized, the plant was faced with another bill for $900
    million. This time, increased regulation, in concert with
    market trends, forced the plant to close.
        These rules doubtless have benefits, but even current EPA
    Administrator Gina McCarthy admitted last year to the House
    Energy and Commerce Committee that, ``No one has ever denied
    that our regulations are not a factor in retiring power
    plants.''
        On regulation, as with any matter in Government, I believe
    that getting it right the first time is important. One example
    is EPA's recent biomass-based diesel rule. EPA admitted the
    rule would cost $52 million in environmental dis-benefits from
    dirtier air and dirtier water. EPA noted the impacts on water
    quality would be ``directionally negative.'' OIRA did review
    this rule, but I think many are puzzled why EPA would issue a
    regulation that would cause environmental harm. I think it
    underscores the importance of thorough regulatory oversight.
        And it is not just the U.S. that reviews agency
    rulemakings. The OECD recommends that all of its members
    establish mechanisms and institutions to actively provide
    oversight of regulatory policy. South Korea, Portugal, and the
    United Kingdom all have oversight. The U.K., for example,
    removes two regulations for every new rule.
        Now, the issues we have highlighted here today are indeed
    ones of life and death, financial security, recession,
    employment, and unemployment. Regulators are issue area
    experts, but they are not soothsayers. They can plan based on
    their assumptions, but planned solutions might not always be
    superior.
        To address this planning paradox, Indiana recently passed a
    measure to review regulations 5 years after their effective
    date, reviewing for consumer protection, costs, benefits, the
    environment. We should get regulation right the first time and
    then examine its effectiveness to ensure the rule is working as
    designed.
        Every President since Jimmy Carter has issued an Executive
    order on regulatory reform and oversight, not because some
    large special interest made them but because they wanted a
    regulatory system that protects public health and fosters
    economic growth--two goals that we know are not mutually
    exclusive. Despite these commendable past efforts, it is clear
    that I think we can do more to examine regulatory policy.
        So, again, I am pleased to appear before the Committee
    today, and I look forward to taking your questions.
        [The prepared statement of Mr. Batkins appears as a
    submission for the record.]
        Chairman Blumenthal. Thanks very much, Mr. Batkins.
        Ms. Seminario.

     STATEMENT OF PEG SEMINARIO, DIRECTOR, SAFETY AND HEALTH, AFL-
                          CIO, WASHINGTON, DC

        Ms. Seminario. Chairman Blumenthal, Ranking Member Hatch,
    thank you very much for the opportunity to testify today on the
    human costs of delays in regulatory protections. In particular,
    thanks to you, Chairman Blumenthal, for scheduling this hearing
    to look at the impacts of the failure in the regulatory system.
        During the 36 years that I have had the privilege to work
    at the AFL-CIO, I have participated in dozens of rulemakings at
    the Occupational Safety and Health Administration, rules
    dealing with asbestos, lead, benzene, and other hazards. One of
    the benefits of my long tenure is that I have witnessed
    firsthand how these rules have made a difference in preventing
    injuries and illnesses and saving workers' lives.
        But at the same time, over that long work time, I have seen
    the system and process for developing and issuing worker safety
    rules devolve from one that worked to produce needed rules in a
    relatively timely manner to the current broken and
    dysfunctional system which is failing to protect workers and
    costing them their lives.
        The Occupational Safety and Health Act, passed in 1970,
    promises workers the right to a safe job. And since the law was
    passed, great progress has been made because of the statute and
    its implementing regulations. The job fatality rate has been
    cut by more than 80 percent, the job injury rate by nearly 70
    percent. And there have also been significant reductions in
    workplace exposures to hazards like asbestos, lead, and benzene
    as a result of these rules.
        But despite this progress, the toll of workplace injury,
    illness, and death in the United States remains enormous. In
    2011, nearly 4,700 workers were killed on the job, and more
    than 3.8 million workers were injured. An estimated 50,000
    additional workers died from occupational diseases like lung
    cancer from asbestos.
        Some groups of workers, including Latino workers and
    immigrant workers, are at much greater risk, experiencing
    higher fatality and injury rates than other workers. And the
    cost of job injury, illness, and death is staggering. It is
    estimated at over $250 billion a year.
        Now, workers' compensation covers some of these costs, but
    only about 21 percent. The rest of these costs are borne by
    workers themselves or society as a whole through private health
    insurance, Medicare, Medicaid, and Social Security Disability.
        Over the years there have been added layers and layers of
    regulatory requirements, which, in my view, have crippled the
    regulatory system. During the first decade of OSHA, the
    promulgation of rules from start to finish took 1 to 3 years,
    and major rules were produced on asbestos, vinyl chloride,
    cotton dust--a whole host of hazards--under both Republican and
    Democratic administrations. There were challenges and
    objections from industry to most rules, but most of these
    objections were largely about how stringent the rule should be,
    not over the issue of whether the regulation was needed.
        But over the years, as opposition to regulations increased,
    there were calls for more analyses and considerations of the
    impact of rules, particularly their costs, and more and more
    requirements were added to the rulemaking process through
    legislation, Executive orders, and other directives. And all of
    these requirements have added significant delay to the
    regulatory process and increased the costs of developing rules.
        A 2012 GAO study on OSHA rules found that the average time
    for developing and issuing major OSHA rules was 8 years,
    similar to the time period for the lift-slab rule which
    Chairman Blumenthal referred to earlier. And this did not
    include rules that were still pending, many of which have taken
    much longer.
        One of the main sources of delay in rules at the present
    time is the interference from OMB and delays by OMB in review
    of rules under Executive Order 12866. Since 2011, virtually
    every worker protection rule that has been submitted to OIRA
    for review has been delayed, and most of them are still there.
    The worst case has been for OSHA's draft proposed silica
    standard, which has been held by OMB since February 2011, 2\1/
    2\ years.
        The delays that we see in the regulatory process and the
    failure to issue needed rules are costing workers their lives.
    I presented several examples in my testimony, and let me just
    talk briefly about two of them.
        OSHA's rule on crane and derricks--In 2002, OSHA initiated
    a rulemaking to update an obsolete construction safety standard
    for cranes and derricks. There was agreement between industry
    and labor that a new rule was needed to deal with this hazard
    which was causing severe injury and multiple deaths.
        The rule was developed through a negotiated rulemaking
    process in which labor, management, and the Government
    participated, and within a year's time, they drafted the text
    of a proposed rule, which everyone agreed on, and delivered it
    to OSHA in 2004. And there the rule sat, and nothing was done.
        And then in 2008, there were a series of deadly crane
    collapses in New York, Miami, and Texas, which claimed over a
    dozen workers' lives, and that spurred the rulemaking. And,
    finally, in 2010, the rule was issued. But it is really
    inexcusable that for a rule that there was total agreement on
    that it took more than 8 years, and workers had to die for this
    rule to be issued.
        Silica, a serious workplace hazard that has been
    recognized, its hazard have been recognized for centuries, a
    hazard that is in need of regulation. OSHA started working on
    this rule back in 1997. Today, in 2013, we still do not have a
    proposed rule. The draft rule has been at OMB for 900 days, and
    the Executive Order allows a maximum of 120 days. The failure
    to regulate silica has allowed uncontrolled exposure and more
    unnecessary death and disease.
        In conclusion, we have a regulatory system which is broken,
    imposing requirements on agencies that are difficult to meet,
    that are causing extreme delay, that are costing workers,
    costing the public their lives. We encourage the Congress to
    look at the sources of these delays and take action to fix this
    terribly broken system.
        Thank you.
        [The prepared statement of Ms. Seminario appears as a
    submission for the record.]
        Chairman Blumenthal. Thank you very, very much.
        Dr. McLaughlin.

      STATEMENT OF PATRICK A. MCLAUGHLIN, PH.D., SENIOR RESEARCH
     FELLOW, MERCATUS CENTER, GEORGE MASON UNIVERSITY, ARLINGTON,
                                VIRGINIA

        Mr. McLaughlin. Chairman Blumenthal, Ranking Member Hatch,
    thank you for inviting me to testify.
        One focus of this hearing is the human costs of rulemaking
    delay. I applaud the Committee's concern over how the often
    obscure regulatory process can lead to real human costs--costs
    measured not just in dollars but in human lives.
        The regulatory process in the U.S. creates human costs in
    more ways than can be covered in this testimony. I will cover
    three.
        First, the accumulation of regulations stifles innovation
    and entrepreneurship, slowing economic growth and reducing
    household income.
        Second, the unintended consequences of regulations are
    particularly detrimental to low-income households, resulting in
    costs to precisely the same group that has the fewest resources
    to deal with them.
        Third, the quality of regulations matters. Agencies
    sometimes rush regulations through the crafting process. That
    can lead to poor execution and poor quality, which in turn
    incurs very real human costs.
        Careful consideration of regulatory options can help
    minimize the costs and unintended consequences that regulations
    incur. If additional time can improve regulations in this
    regard, then additional time should be taken.
        By design, regulations restrict choices. These restrictions
    have accumulated for decades, exceeding 1 million in the year
    2010. What does this accumulation of restrictions have to do
    with human costs? The accumulation of restrictions inhibits
    innovation. Would-be entrepreneurs are sometimes prohibited
    from creating a new product that could improve consumers'
    quality of life or even save lives. And this loss of innovation
    negatively effects economic growth. An academic study found
    that between 1949 and 2005, the accumulation of federal
    regulations has slowed economic growth by an average of 2
    percent per year. An average reduction of 2 percent over 57
    years translates into an annual loss of about $277,000 per
    household. That is a very substantial reduction in the
    abilities of households to purchase necessities, like housing
    and clothing.
        There is another human cost of regulation to consider.
    Regulations can be regressive, particularly in their effects on
    prices. When regulations force producers to use more expensive
    production processes, some of those cost increases are passed
    along to consumers in the form of higher prices. For example,
    in 2005 the Food and Drug Administration banned the use of
    chlorofluorocarbons as propellants in medical inhalers, such as
    the inhalers that millions of Americans use to treat asthma.
    Since the implementation of that ban, the average price of
    asthma inhalers has tripled. To individuals with high incomes,
    the tripling of the price of inhalers may not have even
    registered. But to people with low incomes, the higher price
    may lead to the choice to not buy an inhaler and instead leave
    the asthma untreated--potentially leading to a real human cost
    if the person suffers an asthma attack without an inhaler
    available.
        As a society, we are often willing to sacrifice some
    economic growth in exchange for regulations if they can address
    an otherwise unfixable problem. But it takes time to discern
    what option can yield the most bang for the buck, and picking
    the wrong approach risks sacrificing a lot.
        This is why every administration for the past 4 decades has
    required some form of economic analysis of regulations prior to
    their implementation. Among other things, a good economic
    analysis of a regulation first determines whether there is
    evidence that some otherwise unfixable problem actually exists
    and then weighs the pros and cons of various approaches to
    fixing that problem.
        Several years ago, a colleague and I launched a project
    called the ``Regulatory Report Card'' that systematically rates
    the quality of those economic analyses of regulations. Using
    the data from that project, scholars have come up with a few
    insights that are relevant to this hearing.
        First, both statutory deadlines and shorter review times at
    OIRA are associated with lower-quality regulatory analyses.
        Second, the overall quality of regulatory analyses leaves
    much to be desired: the average score was 31.2 out of 60
    possible points--barely 50 percent.
        Third, the quality of analyses accompanying several interim
    final regulations created in 2010 to quickly implement the
    Affordable Care Act was even worse than that overall average I
    just cited.
        If you are concerned with the human costs of regulations,
    you should be concerned that regulatory analyses are poorly
    performed. One reason that the regulatory analyses of the
    interim final regulations related to the Affordable Care Act
    scored so poorly, for example, was that the analyses often
    ignored more effective alternatives. A better analysis might
    have led to a better regulation and therefore lowered its human
    costs.
        It is worth considering what forces are contributing to
    this failure. Given that both statutory deadlines and shorter
    review times are associated with lower-quality analyses,
    perhaps such deadlines and pressures to quickly produce a final
    rule should be reconsidered.
        In closing, I will reiterate a dilemma created by our
    regulatory system. On the one hand, regulations are
    consistently accumulating. On the other hand, we cannot have
    confidence agencies are making the best regulatory choices
    because their analysis is unsatisfactory. In general,
    regulations are costly. Poorly executed regulations are even
    costlier. Scholars and legislators have put forth many ideas to
    improve the quality of regulations coming out of our regulatory
    system. Perhaps the easiest idea to understand and implement is
    this: If time can improve regulations, then time should be
    taken.
        Thank you.
        [The prepared statement of Mr. McLaughlin appears as a
    submission for the record.]
        Chairman Blumenthal. Thank you, Dr. McLaughlin.
        Ms. Fennell.

        STATEMENT OF JANETTE E. FENNELL, PRESIDENT AND FOUNDER,
               KIDSANDCARS.ORG, BALA CYNWYD, PENNSYLVANIA

        Ms. Fennell. Good afternoon. My name is Janette Fennell,
    and I am the founder and president of a nonprofit organization
    called ``KidsAndCars.org.'' Thank you very much, Mr. Chairman
    and Ranking Member Hatch, for holding this important hearing
    and for the opportunity to address this Subcommittee about the
    need for issuing the rear visibility standard.
        In 1996, after my family had been kidnapped at gunpoint and
    locked in the trunk of our vehicle, we were able to use this
    very traumatic experience to help guide the federal regulatory
    process to ensure that no one else had to end up in the trunk
    of their vehicle without a way to escape. Now, all vehicles
    2002 or newer come with a glow-in-the-dark internal trunk
    release as standard equipment. Though we are proud of that
    accomplishment, the most important lesson we continue to learn
    every day is that these simple changes to vehicles save lives.
    In fact, not one person has died in the trunk of a vehicle
    equipped with an internal trunk release mechanism. Not one.
        I founded KidsAndCars.org, and one of the first issues we
    worked on was the issue of children being backed over and
    killed. By studying the number of deaths, it was clear that
    educating parents and caregivers about the importance of always
    looking behind and around their vehicle before moving it would
    not be enough. Young children are very impulsive, and they do
    not have the cognitive ability to understand when they are
    putting themselves in harm's way. When a child follows a
    relative outside just to get another kiss from Grandma and
    stands behind that vehicle, that extra kiss should not cost
    that child their life.
        I find it just as amazing today as I did the first day that
    I learned our country does not have a regulation about what a
    driver should be able to see when they are backing up their
    vehicle. As hard as that is to believe, it is simply a fact.
        All of our vehicles are required to have a rearview mirror
    but not a rear view. I am quite sure that no one would purchase
    a vehicle if they could not see 20 to 30 feet moving forward,
    yet we have all been purchasing defective vehicles that do not
    provide you with the ability to see what is behind you when you
    are backing.
        Every vehicle has a ``blindzone,'' and that is a term we
    coined to describe the area behind a vehicle that cannot be
    seen by the driver. We do not refer to this area as a ``blind
    spot'' anymore because not only has that term already been
    associated with the area a driver cannot see when they are
    changing lanes, but when the area behind a typical vehicle
    where you cannot see if there is a child behind it is
    approximately 8 feet wide and from 8 to 60 feet long, we knew
    that large of an area could never be referred to as a ``spot.''
        The good news is that we have a commonsense and cost-
    effective solution. Bipartisan support to address this problem
    was led by former Senators Clinton and Sununu and
    Representatives King and Schakowsky, who shepherded in the
    Cameron Gulbransen Kids Transportation Safety Act. The bill was
    signed into law by President Bush in 2008, and it gave DOT 3
    years to issue a final rule, with the ability to phase in the
    technology.
        However, the bad news is the rear visibility rule has been
    the subject of unwarranted delays and is the epitome of
    ``Justice Delayed: The Human Cost of Regulatory Paralysis.''
        Even worse, is that the victims of this tragic delay are
    almost always 1-year-old children. I am talking 12 months to 23
    months. And to further compound this tragedy, which we all
    would agree that the worst thing that can happen is the death
    of a child, in 70 percent of these cases the person behind the
    wheel who kills that child is a parent or a close relative. The
    people who love them the most are suddenly responsible for
    killing them.
        So here we are today. DOT had a very open and transparent
    rulemaking process where the auto industry, technology
    suppliers, consumer health and safety groups, and parents who
    had lost their child due to a back-over crash submitted
    thousands of pages of comments. The agency even held a public
    hearing, but unfortunately DOT has announced five substantial
    delays in issuing a final rule. Currently we are more than 2
    years overdue.
        The recent announcement by DOT that the final rule will be
    delayed until January 2015 is unacceptable, unnecessary, and,
    most of all, deadly.
        I strongly disagree with the testimony of another witness.
    In the case of the rear visibility standard, when OIRA delays a
    rule, it does have profound economic and emotional costs to
    consumers. The delay in this rule has resulted in 1,100
    fatalities and over 85,000 injuries, resulting in staggering
    costs to families and society.
        Furthermore, rearview camera systems are now more common,
    less expensive, and better quality than when the rule started.
    By the end of this week, at least 50 children will be backed
    over and at least 2 of them will die. It is imperative that OMB
    and DOT issue the rear visibility rule immediately.
        Thank you very much.
        [The prepared statement of Ms. Fennell appears as a
    submission for the record.]
        Chairman Blumenthal. Thank you very much, Ms. Fennell.
        Let me begin with a number of questions to Dr. McLaughlin
    and Mr. Batkins. Would you agree with Ms. Fennell that the rear
    visibility rule should be issued sooner than 2015? We can begin
    with Mr. Batkins if you----
        Mr. Batkins. Sure. We do not have a particular position on
    the substance of the rearview visibility laws. A 501(c)(3), we
    do not take positions for or against any particular regulation
    or piece of legislation. It is my hope that we do have a proper
    procedure in place and that OIRA finishes the review and the
    procedures that it has.
        Chairman Blumenthal. Dr. McLaughlin, do you have a view on
    that?
        Mr. McLaughlin. Thank you. So what Ms. Fennell has
    identified is what I will call a ``partial analysis.'' She has
    given some data and that should absolutely be considered. The
    decision to make in any regulatory proceeding is both what are
    the consequences of taking an action and what are the
    consequences of inaction. So if you do not do anything, what
    are the human costs? She has taken a step toward identifying
    that. If you do something, will it actually reduce those human
    costs? This is part of the consideration that has to go into
    the analysis.
        If so, then who pays for it? Does it, for example,
    disadvantage the poor? What are those unintended consequences
    that the rule will inevitably make? Will people----
        Chairman Blumenthal. Well, let me--and I apologize for
    interrupting you, but I think that we need to look at the
    process and the amount of time as well as the substance, and
    quite understandably you are identifying an analytical process
    that should be undertaken, weighing costs and benefits. The
    question, though, that is raised by Ms. Fennell's very
    compelling testimony is: Shouldn't it be done quicker and
    sooner? What would you say to that question?
        Mr. McLaughlin. It depends on what the cause is for the
    delay. So if there is--let us call it like it is----
        Chairman Blumenthal. And you do not know what the cause for
    the delay is?
        Mr. McLaughlin. If there are shenanigans going on, if there
    are political games going on that are causing the delay, then
    by all means call it that. But if the cause of the delay is
    allowing the agency or OIRA to improve the analysis to make
    better choices, to avoid unintended consequences that could
    also cost human lives, then the delay may be worth it.
        Chairman Blumenthal. Ms. Seminario, do you have a view on
    that issue?
        Ms. Seminario. Well, I am somewhat stunned here. Dr.
    McLaughlin seems to be more concerned about the process than he
    does about the real outcome. Again, I have been doing
    regulatory work for a very, very long time. We used to be able
    to get rules out. There were decent analyses. The rules were
    held up in court. There are more and more requirements that
    have been put in place, largely coming from people who objected
    to rules, who used more analysis as a way to slow them down.
        And so, yes, I do think that delay is a problem, and I
    think what we should look at is: To what extent are the kind of
    analyses that are being done adding real value to the
    protections that are being issued?
        I do not see a lot of difference in the safety and health
    rules that came out in the 1970s--and one of the first ones
    that came out was 14 rules on carcinogens, 1974, a four-page
    preamble. The rule was held up in court.
        One of the last toxic chemical rules that OSHA came out
    with, hexavalent chromium. Thirteen years in the making. The
    only reason it was issued was because a court ordered OSHA to
    do it, and thousands and thousands of pages of analysis behind
    a 200-page preamble.
        So, no, I do not agree that analysis for the sake of
    analysis and getting better analysis is really worth it, and I
    think we have to reexamine if we have not gone too far.
        Chairman Blumenthal. I am chagrined to tell you that a roll
    call vote has just started, so I think the best way to proceed
    is for us to take a very, very brief recess, just giving us
    enough time to go down, vote, and come back. I really do
    apologize to everyone here, but we will be back, and the recess
    will be very brief. Please do not go away.
        Thank you.
        [Recess at 2:51 p.m. to 3:17 p.m.]
        Chairman Blumenthal. Thank you all. We are going to
    reconvene, and I believe that we were talking about the passage
    of time and the possible costs in the passage of time, even
    when the analysis of cost/benefit is fully justified and has to
    be and should be undertaken.
        Mr. Batkins, in your testimony you looked at the rules
    issued in 2002, and you noted that there were, I am quoting,
    ``record costs,'' and the amount that you gave was $29.5
    billion. On the other hand, your testimony also states that
    there were benefits of $100 billion, and that was in a bad
    year. So the net benefit was $70.5 billion.
        Now, I am not sure, you know, what the methodology was that
    calculated the benefits, but don't those numbers argue for a
    more expeditious analysis of costs and benefits as well as the
    sizable net benefits of regulations?
        Mr. Batkins. Well, in terms of methodology, it was just
    looking at the rules that OIRA itself reviewed in Fiscal Year
    2012, the final rules, and I would not categorize it as a good
    year or a bad year, and it was just our audit of what OIRA went
    through in terms of costs and benefits and those figures
    adjusted to today's dollars. And if you do an audit of Fiscal
    Year 2012, they do show, according to every rule, roughly $29
    billion in costs and roughly $100 billion in benefits.
        In terms of delay, I do not know how those numbers reflect
    increased delay. We have talked a lot about delay, but there
    are, of course, dozens of other anecdotal examples that we can
    bring out for rules that do get sped through the process. One
    example is the notice of benefit and payment parameter rule
    that was issued--that arrived at OIRA in November 2012 and left
    OIRA by March 2012. That was the entire process. And in terms
    of transparency delay, I think we mentioned in our testimony we
    are always happy if there is more transparency. And one thing
    that we have seen in the past is a lack of return letters sort
    of explaining OIRA's decision. There were a lot of return
    letters during the last administration. We have only seen one
    this administration. And in terms of why these rules are being
    held up, I think that is one of the few ways that we could
    actually tell why a rule has been sitting in OIRA for a period
    of time.
        Chairman Blumenthal. I am going to yield to Ranking Member
    Hatch for his questions, and then I want to follow up on some
    of what you just said and some other questions to other
    witnesses. Thank you.
        Senator Hatch. Well, thank you, Mr. Chairman. I am honored
    to be with you in this hearing today. I am sorry about my
    voice, but I have a mild case of laryngitis.
        Mr. McLaughlin, let me start with you, Dr. McLaughlin.
    Based on the data that you presented about the volume of
    federal regulations, especially those that actually impose
    restrictions, is it fair to say that you challenge the premise
    of this hearing that there exists regulatory paralysis?
        Mr. McLaughlin. There has been no deviation from a long-
    term trend of the accumulation of restrictions, of regulations,
    in the last couple of years. I can give you some specific
    statistics on that. A couple of ways that you can measure how
    much regulation is coming out of the Federal Government is you
    can look at the actual book of laws, the Code of Federal
    Regulations. Going back to 1975, there were 71,224 pages of
    regulation in the Code of Federal Regulations. In 2012, there
    were 174,545 pages. There were 5,244 more pages added between
    2011 and 2012. The trend goes back through the Bush
    administration. It is nothing--if you were to graph this and
    look at the slope of the line, it is pretty much a constant
    sloping line.
        So, yes, I do not think there is any evidence of paralysis
    by analysis. Rulemaking is going on as always.
        Senator Hatch. Okay. The Labor Department says that women
    are more likely to work in jobs without a retirement plan, more
    likely to invest conservatively, more likely to live longer
    than men. Now, does this mean that when regulatory accumulation
    suppresses economic growth, it has a disparate impact on women?
        It is not an easy question. I understand.
        Mr. McLaughlin. Well, it is certainly the case that any
    effects on economic growth do have human costs. Human costs of
    holding back, of inhibiting economic growth are most likely to
    be felt by those who most can--excuse me, who least can afford
    to lose some money.
        Now, I would perhaps refocus this on low-income households,
    for example. When you have a regulation that causes prices of
    goods to increase or inhibits innovation that would allow
    prices of goods to go down, or maybe even more importantly,
    would allow some sort of innovation that could save lives to be
    cheaply implemented in cars, then the people who are going to
    most suffer are those who have the least income to purchase
    goods.
        So the example I gave earlier was the inhalers for asthma,
    for treatment of asthma.
        Senator Hatch. Your prepared testimony gave the example
    about regulations that tripled the cost of asthma inhalers.
    Could you give an example of a product that could save lives
    but is prohibited by regulation today?
        Mr. McLaughlin. So the National Highway Traffic Safety
    Administration, for example, regulates how headlights in cars
    are designed. Basically you can have low beams, high beams, and
    nothing in between. Now, this is an example of what is called a
    design standard. It is very much setting forth how
    manufacturers can make their cars. But manufacturers have been
    innovating, and they have found ways to make something in
    between high and low beams. The reason you switch from high
    beams to low beams when you are driving a car is to keep from
    blinding the oncoming driver, if someone is coming down the
    other side of the road. The tradeoff is you lose some
    visibility on the sides of the road where there could be a
    pedestrian walking. And so when you switch to low beams, you
    may not see the pedestrian. There may be a real human cost
    there.
        There is selective dimming of headlights that has been
    developed, and they have been sold in Europe and Asia, but they
    have not been sold in America because regulations have not
    permitted it. The selective dimming headlight systems will
    allow the car to dim the bright beam from blinding oncoming
    drivers, but simultaneously allow the rest of the road to be
    seen, where pedestrians could be walking.
        Now, that is an innovation, that is a new technology that
    has been developed that could save lives, but that has not yet
    been able to be sold in America because of the intransigence of
    the regulatory system.
        Senator Hatch. Okay. Mr. Batkins, let me ask you this,
    maybe the same question I asked Dr. McLaughlin. The data you
    presented seemed to challenge the premise of this hearing that
    there is, in fact, regulatory paralysis. Is that a fair
    statement? And could you elaborate further on just how
    unprecedented the level of regulatory activity has reached?
        Mr. Batkins. Sure. I think a lot of the regulations we are
    talking about are sort of what you would think in the
    traditional sense command and control regulation. But I am also
    interested in regulations, you know, the figurative red tape
    that makes it more difficult for citizens to interact with
    their Government. If you are a veteran going through the
    benefits and claims process right now and you have to undergo
    training just to look at the chance of applying for benefits,
    if you are an immigrant trying to go from your current status
    to citizenship, that is not an easy process. And, you know,
    just in the last month we have added 10 million paperwork
    burden hours.
        Now, this is something that--I think none of us are going
    to install a wet limestone scrubber on a power plant anytime
    soon, but I think all of us, especially small businesses who
    are particularly affected, have that direct impact of
    paperwork. It is one thing that we know, that we can measure,
    that is growing, that we do not have to adjust for dollar
    values over years. And I think it is one example of regulatory
    accumulation.
        I was happy to see today the administration just released a
    DOT revision that would supposedly cut I think 34 million hours
    of paperwork, and I will be interested to see the details of
    that proposal.
        Senator Hatch. Let me ask you for yes or no answers on
    these three questions. What type of trends do you see with
    regulations? Are they increasing in quality?
        Mr. Batkins. The trends, based on what I have seen from the
    Mercatus tools, is that they have not been.
        Senator Hatch. Are they increasing in quantity?
        Mr. Batkins. In terms of major and economic significance,
    yes.
        Senator Hatch. Are they increasingly burdensome?
        Mr. Batkins. According to OIRA, they are.
        Senator Hatch. Okay. Can I ask one more question?
        Chairman Blumenthal. Take as much time as----
        Senator Hatch. I am going to have to leave.
        Chairman Blumenthal. Take as much time.
        Senator Hatch. Thank you, Mr. Chairman. You are very
    gracious. I appreciate it.
        I would like your take on the criticism of the Office of
    Information and Regulatory Affairs. It seems that the critics
    want to have it both ways. First, they criticize OIRA for
    following Executive orders on cost/benefit analysis before a
    regulation is issued. But then they are happy to cite studies
    showing cost/benefit results after the implementation of a
    regulation.
        With the massive number of regulations and the vast
    regulatory bureaucracy, if I--you know, I am sure that anyone
    can find individual examples of regulations that are waiting
    for OIRA review for a while. But aren't there also rules that
    do speed through the process?
        Mr. Batkins. There are. The benefit and payment rule was
    one that I mentioned. CAFE, which was certainly a big
    rulemaking, I think spent a month at OIRA in the proposed and
    final stage. And in terms of sort of retrospective analysis, I
    think that is probably more important or just as important as
    the ex ante as well. We have heard the retrospective analysis
    of costs and benefits.
        I would like that for more than just a select few rules. I
    think that is one reason why the legislation in Indiana that
    passed last year with five no votes throughout both legislative
    chambers is so important, to review regulations after their
    effective date. I think that is when you really get a handle
    on, you know, are we doing it correctly, is the regulation
    worked as designed. And that is why I think the Indiana law is
    a good model.
        Senator Hatch. What are some of the possible reforms that
    could streamline regulations and still protect public health
    and safety?
        Mr. Batkins. Well, in terms of additional analysis, the
    Administrative Conference of the United States, which is itself
    sort of a quasi-regulatory body, just recently recommended sort
    of these cost/benefit analyses through all independent
    agencies. Now, obviously that is something that independent
    agencies oppose, but one thing we did last year when we
    reviewed all the regulations was we sorted them by CFRs, where
    they are codified in the Code of Federal Regulations, and Title
    17, Commodities and Securities, if you exclude FAA
    airworthiness directives, was number one in terms of volume.
    But that is also the title that is probably least analyzed by
    regulators.
        There are some other ideas. I mentioned paperwork. An idea
    that we have thrown out would be paperwork neutrality for
    information collection and for overall hours. So essentially
    that the total paperwork budget, you know, does not increase.
        Now, this does not affect regulatory requirements for
    health or safety or environment, but it does, I think, perhaps
    maybe provide teeth in the Paperwork Reduction Act analysis.
    There are individual agencies that have cut millions of hours
    or consolidated existing paperwork requirements.
        Senator Hatch. Well, enacting too many regulations is as
    destructive as enacting too few, which is an easy statement to
    make. What type of legislation could we advance to ensure
    executive agencies create and promulgate effective regulations
    that close legislative gaps without oppressing American
    businesses?
        Mr. Batkins. Well, one idea which was actually recently put
    forth by the Progressive Policy Institute would have been--
    would be a BRAC-like commission to review regulations. Again,
    this is a retrospective. I believe there is actually a bill in
    the Senate on sort of this BRAC-like commission. It would be
    bipartisan. Congress would vote up or down. The PPI paper even
    recommended through the first phase of this round perhaps
    exempting environmental rules to make the process easier. I do
    not know necessarily that anything would be easier in terms of
    regulatory reform. But that is one additional idea that is out
    there.
        Senator Hatch. Well, should regulations have an expiration
    date?
        Mr. Batkins. On the paperwork side, they to some extent do.
    They have to be reviewed every 3 years by OMB. There are a lot
    of paperwork collections that expire and the agency does not
    have formal approval, and OIRA will note all the violations of
    the Paperwork Reduction Act. But I think maybe not necessarily
    an expiration date. It depends on the regulation obviously. But
    definitely I think a period of review after the regulation has
    been implemented.
        Senator Hatch. Thank you.
        Ms. Seminario, we have known each other a long time. I have
    a lot of respect for you and what you are trying to do. I worry
    sometimes that our union movement goes too far and it costs a
    lot of jobs, as someone who worked 10 years in the building
    construction trade unions in Pittsburgh and held a union card,
    and proud of it. But I just want you to know that I have great
    respect for what you are trying to do.
        Ms. Fennell, you and I know each other from a long time
    ago, trying to help some of the children and so forth.
        And, Professor, I was very interested in your testimony
    here today.
        I want to compliment our Chairman for holding this hearing.
    It is an important hearing. I would like you, each one of you,
    to tell us how we can do a better job here. What can we do to
    protect the American people without costing an arm and a leg so
    that they do not have jobs? I mean, that is, after all, I think
    one of the things that we are really worried about and really
    trying to do.
        I am sorry I did not ask my usual devastating questions to
    you women here, but--because I wanted to get even. But--that
    was supposed to be humorous. I did not hear anybody laugh at
    all.
        [Laughter.]
        Senator Hatch. But I respect what you are trying to do. I
    respect how important it is to work in the best interests of
    our workers in this country and people in general, just
    consumers in general. But we have got to find a way that
    regulations mean something, that they are enacted quickly, that
    they are dis-enacted when they do not work, and that the costs,
    the excessive costs that result from overregulatory activities
    we can dent and maybe save the taxpayers a lot of money.
        Having said that, I want to thank you, Mr. Chairman, for
    allowing me this extra time and for holding this, what I
    consider to be a very important hearing. And we will look more
    thoroughly into the documents that you have given us and have
    tried to help us with.
        Thank you all for being here.
        Chairman Blumenthal. Thank you, Senator Hatch.
        Senator Hatch. Excuse me. I am going to have to go.
        Chairman Blumenthal. I understand you have other Committee
    commitments and obligations and you will not be able to stay,
    so I really appreciate your giving us this much time and the
    thoughtful questions that you asked. And if you have no
    objection, I am going to continue with my questions.
        Senator Hatch. Of course not. I am honored to be with you.
    Thanks so much.
        Chairman Blumenthal. Thank you very much to Senator Hatch.
        Let me go back to I think the point that you were making,
    Mr. Batkins, which I think is an important one, as to OIRA,
    which is the Office of Information and Regulatory Affairs. Your
    point I think was about the problems with potential lack of
    transparency in the letters that OIRA may send to agencies in
    returning regulations for revision. Maybe you could expand on
    that point.
        Mr. Batkins. Sure. To date, we have only seen one return
    letter, sort of a one-page letter from then-OIRA Administrator
    Cass Sunstein, explaining the reasons for return of the ozone
    letter. Obviously that was very contentious. I think it was
    right before a Labor Day recess. But if you look back at the
    historical OIRA return letters, I think there are several dozen
    during the Bush administration, and occasionally a rule gets
    delayed far beyond its 90-day period and we do not know why.
    Something that we did look at in terms of trends of how rules
    have been at OIRA, we looked last October for rules that had
    been at OIRA longer than 90 days, and I think it was something
    like 84 percent, and people attributed that to political
    reasons, and there is no evidence to--direct evidence, at least
    that I can see, that backs that up. Today that figure is down
    to around 55 percent that I think have been there longer than
    90 days.
        OIRA does provide a lot of transparency for meeting
    records. If you go to OIRA and you meet with the Administrator,
    of course, that will be recorded, as well as any documents that
    you submit.
        Chairman Blumenthal. I wonder if any of the other witnesses
    have comments on the transparency of this process.
        Ms. Seminario. I would just like to make a comment. The
    process really, in my view, is not transparent. As Mr. Batkins
    says, there is a log of meetings of who showed up and if you
    leave a document, but there is no record of what was discussed.
    And if you compare that to the rulemaking process that takes
    place at the agencies under the Administrative Procedures Act,
    there has to be a record. Everything has to be on the record.
    And there is to be no ex parte communication.
        And so it is a great concern that OIRA essentially provides
    a forum for those who wish and those who are able, and it is
    largely industry and Washington representatives. They have the
    means, they have the ability to go in and to make their case.
        And so I think there are some real problems, and we also do
    not see between the agencies and OIRA a clear reason or
    explanation of why the rules are changed. That is supposed to
    be part of the public record. It is routinely not made part of
    the public record. So I would disagree with Mr. Batkins that
    the OIRA process is transparent at all.
        Chairman Blumenthal. Professor?
        Ms. Steinzor. I would like to return to the rearview camera
    issue, because I think it is a very good example. First of all,
    NHTSA asked for the rule to come back, and that was after it
    had been at OIRA for a very extended period of time, quite
    beyond the very strong limits that were set in the Executive
    Order. As our testimony has indicated, that happens all the
    time. So they asked for it to come back, unclear what the
    reason is.
        As it turns out--and no promise on when it will escape
    again--very likely that OIRA told them to ask for it to go
    back. Half the cars in the country have cameras like this.
    There was a report in the New York Times that the reason that
    the auto industry was opposing the rule was because it had
    become accustomed to bundling the rearview camera for these
    half of the cars that are sold in the country with items like
    satellite radio, which become then a package that is sold to
    consumers--this certainly does not help low-income people--and
    that that was the reason, quite apart from the cost for the
    camera itself, because once you have a screen in the car, which
    is used for GPS, then the camera is a minor cost.
        So when you probe into these things--and I have spent a
    long time sort of trying to scratch to the bottom of it; it is
    sort of like a treasure hunt--you often find that the rationale
    for opposing a regulation that would have such important
    benefits is an economic concern of the industry that does not
    have very much to do with the cost of the camera, does not have
    much to do with the lives that are saved, but is instead a
    strategic decision about profit. And that is appropriate for
    corporations. Corporations should be very concerned about
    profit. But we need a Government to make sure that they do the
    right thing; otherwise, we end up with cut-throat competition
    that really hurts consumers and workers and members of the
    public.
        I also wanted to say that, in terms of what Mr. Batkins was
    saying, I agree with him about paperwork for the average
    citizen. I could not agree more. I think that, you know, I am
    in big trouble as an advocate for healthy and safety and
    environmental regulations because when people hear regulation,
    they think about the paperwork they have to do. And as, you
    know, the mother and a family, the time I spend filling out
    forms just even for health insurance, it goes on forever. So I
    agree with him.
        But there is a difference between paperwork for the average
    person and what is happening to veterans when they try to get
    their benefits, big difference between that and the kind of
    health and safety and environmental regulations that Ms.
    Seminario and I were talking about, and Ms. Fennell.
        Chairman Blumenthal. Ms. Fennell.
        Ms. Fennell. Could I add a little bit to that testimony?
        Chairman Blumenthal. Absolutely.
        Ms. Fennell. You are absolutely correct. Right now, if you
    are going to have a rearview camera on your vehicle, it is
    usually a high-end vehicle; or the only way you are going to
    get it is if you go to the top of the trimlines and you are
    going to get leather seats and chilled and heated cup holders
    and all of these wonderful, unnecessary things, which are
    really creature comforts. And I know we heard one of the
    witnesses say about disproportionately affecting the poor.
    Well, safety should not be an option. And through the
    regulatory process it would require that all vehicles have a
    rearview camera. And if I am fortunate enough to have a
    rearview camera in my vehicle but I go to the grocery store and
    the child gets away from me and is backed over and killed by
    someone who does not have a camera.
        So it really does even the playing ground. When people talk
    about losing jobs, it is kind of interesting because so many of
    these elements are made in America. There is a wonderful
    company up in Michigan that is doing very well based on the
    introduction of these type of technologies. But I do not care
    if it is cameras. I mean, if you can put a mirror on a vehicle
    and see everything that is behind you, that is fine. What we
    are really trying to break loose here is the fact that it is
    unconscionable to put somebody behind the wheel of a 3,000-
    pound lethal weapon and they do not know what is behind them
    when they are backing up.
        Everybody needs that vision and it should not be available
    just to people of means. Safety should not be optional.
        Chairman Blumenthal. Ms. Fennell, have you been given a
    reason or do you know of the reason that has been given to
    others as to why this rule has been so long delayed?
        Ms. Fennell. Well, at the beginning--because, you know,
    there have been five delays. At the beginning, you know, I
    could kind of go along with this because, you know, adding
    rearview cameras to vehicles will forever change the way that
    we drive. And just like seat belts and air bags, you know,
    there are some changes that need to be made. And, you know, I
    have attended all the meetings, and I went to the site in Ohio
    when they pulled together all the manufacturers and, for
    instance, one of the things that I had not thought about is,
    you know, they dictate what you should be able to see, and Ford
    Motor Company had a great invention where, when you are trying
    to hook a trailer up to your vehicle, you could zoom in with
    your camera and make it a very easy task. Well, when you zoom
    in, you would then be out of compliance.
        So there are some of those complexities that needed to be
    looked at and taken care of. But at the same time, we hear a
    situation where, when this rule came out that the industry
    said, well, we thought this was just going to be on SUVs and
    pick-up trucks and minivans, you know, only on the larger
    vehicles, again, very disingenuous because before, you know, a
    month before the bill was going to be passed, they supported
    it. They said they were for it. And now, with all this time and
    all these different things that have changed, they now are
    against it. And, you know, they do not want to put a camera on
    certain vehicles or their low-end vehicles.
        But it does not make sense because it really does make our
    playing field even. No one is going to be disproportionately
    affected by this.
        I have to give a great call-out for Honda. As much as 97
    percent of their fleet have rearview cameras. And I do not know
    if you have seen some of the advertising different car
    companies are using. I mean, they know people want this. And we
    do not want it held captive as the highest trim level. We do
    want it to be available for everyone, and it does not affect
    one manufacturer versus the other, except for the ones that are
    smart enough to realize that consumers want this and they are
    willing to make a brand change to get what they want. I mean,
    it is standard equipment on a Honda Civic that costs $17,000.
        Chairman Blumenthal. Does this viewing device also enable
    drivers to avoid hitting inanimate objects so that someone who
    may be not as cognizant of the road as otherwise would have a
    better view of what they may be backing into?
        Ms. Fennell. I am so glad you brought that up, Senator.
    Thank you. Part of the analysis that is totally missing from
    this look at the need for being able to see where you are going
    when you are backing up is the fact that can you imagine how
    much money you are going to save because you do not have to
    keep repairing your bumper that ran into the pole, into the
    fence, into your garage? This gives you visibility. None of
    that is figured in there, and if people have had bumpers
    repaired lately, it is always in excess of $1,000.
        So there are all these other benefits, and we have a young
    man that we work with that at 18 months he was backed over and
    had a serious spinal injury and has lived his entire life in a
    wheelchair. Those are some serious costs to our country and to
    children who just cannot be seen because there is no standard.
        Chairman Blumenthal. Very well said.
        I guess I should make the point just for the record that
    the ``you'' used in your comment just now was not addressed to
    the Chair or a comment on his driving ability.
        [Laughter.]
        Chairman Blumenthal. But a collective ``you,'' although if
    you ask my wife and children, it could be well addressed to the
    Chair.
        Ms. Fennell. Well, that is probably why you asked that very
    critical question. But I do invite anyone--as part of my
    testimony, I attached the Consumer Reports results because what
    they would do is for every vehicle that went through their test
    site, they would test what the blindzone is for a 5-foot-4 and
    a 5-foot-8 driver. Nobody thinks that your height has anything
    to do with being able to see behind your vehicle. But it does.
    You know, if you have long legs or a long torso, all of that
    goes into it.
        But, more importantly, take a look at where our vehicles
    were, you know, 20, 30 years ago, and look at them today. They
    are much higher off the ground. They have windows in the back
    that are so small you can hardly see. They have a third row of
    seats that have headrests that are this big. They kind of slope
    down. There are spoilers. There is a tire on the back. All of
    those things are happening because there is no standard. You
    can just do whatever you want.
        And, I mean, I think it is cool to have nice-looking cars,
    but I never would want to cause the death of a child for a
    design and style issue.
        Chairman Blumenthal. I appreciate those points, and I am
    going to turn in just one moment to Senator Whitehouse, who
    thankfully has joined us. I appreciate his being here. But just
    one question for Dr. McLaughlin. You know, you have heard
    described--and maybe you knew about it before--the practice of
    bundling or tying the back-view device to other optional items
    on the car, such as radio service. As an economist, I am just
    wondering--and you have also, I am sure, been aware of research
    that shows there are a lot of costs in bumper repairs, which
    are quantifiable, not to mention worst repairs that could
    result from backing into inanimate objects, plus the
    unquantifiable and tragic costs of death. I am just wondering
    what you think about the practice of tying this kind of device
    with potentially such great measurable and important benefits
    to radios, perhaps other optional items that have no
    discernable economic benefits.
        Mr. McLaughlin. Chairman, you are right that bundling is
    studied by economists, and it is indeed a profit-maximizing
    technique. However, I would--just listening to this, I do not
    profess to be an expert on rearview cameras in cars. However,
    just listening to what was discussed now, if the problem is
    bundling, then perhaps one regulatory solution that could be
    addressed is bundling. Is it necessarily the case that it has
    to be a rule that says all cars must have cameras? I do not
    know. I am saying that the agency can take a look at multiple
    options, like they should do in a regulatory analysis. One
    option they could consider is maybe we should stop the practice
    of bundling. Another option is maybe there should be cameras on
    every car.
        And both of those choices--and they should consider other
    options as well--would indeed have costs. They would have
    tradeoffs. They would have benefits. And those should all be
    assessed.
        And I would make the point that one of those costs would be
    to raise the cost of cars. If you require all cars to have
    cameras, they will become more expensive. That does
    disproportionately affect people who have lower income. An
    increase in price of $200 or $1,000, whatever the number may
    be, is a higher percentage increase for someone who has a lower
    income relative to his income than for someone who has a higher
    income.
        Chairman Blumenthal. If he wishes, I am happy to call on my
    colleague and friend from Rhode Island, Senator Whitehouse.
        Senator Whitehouse. Delighted to be called on, Mr.
    Chairman. Thank you. Thank you very much for holding this
    hearing. I think it is very valuable and important, and I know
    that as the Attorney General of Connecticut for a very, very
    long time, you were deeply, deeply involved in consumer issues,
    and so it comes as no surprise that this should be a passion of
    yours in the Senate as well. But I am grateful to you. I think
    it is an important issue and an important hearing, and I thank
    all of the witnesses for being here.
        I would like to add something to the record of the hearing,
    if I may, which is a very thoughtful and interesting article by
    Lisa Heinzerling called, ``Who will run the EPA?'' And, without
    objection, if I----
        Chairman Blumenthal. Without objection.
        Senator Whitehouse. Thank you.
        [The article appears as a submission for the record.]
        Senator Whitehouse. It discusses the EPA-based regulations
    that made their way over to the Office of Management and Budget
    and then sat there. We have a list here for this hearing--the
    article kind of covers the EPA stuff. I just have a list here
    of the Department of Energy regulations that are under OMB
    review. There are 10 of them, and 8 have been there more than
    the 90 days that the Executive Order prescribes: energy
    efficiency and sustainability design the District for new
    federal buildings, solar hot water requirements, water
    efficiencies, and green building ratings, 706 days; fossil fuel
    energy consumption reduction for new construction and major
    renovations to federal buildings, 693 days; energy conservation
    standards for walk-in coolers and walk-in freezers, 670 days;
    and so on, 645 days, 581 days, 523 days, 523 days, 523 days.
    There is a little packet that has been there 523 days.
        Well, 523 days is more than a year more than the 90 days
    that by its own terms the administration is supposed to follow.
    I am pleased that Ms. Burwell has been confirmed into that
    position. She and OIRA Director Schlanksy have both
    energetically addressed themselves to this problem, and I think
    it is going to improve. We are meeting with them regularly to
    make sure that benchmarks are met and that they are able to
    clear this backlog. But I think this is a really important
    thing to get done.
        To Dr. McLaughlin's point, these are regulations that have
    already been through the vetting of public scrutiny, of the
    Administrative Procedures Act, and of the tests required for
    net benefit, net economic benefit. So when they are just being
    stalled, it is pretty clear that something that would be
    beneficial to the public is being stalled, and the public is
    being deprived of those protections.
        So I wanted to make one point and then ask a technical
    question. The point that I want to make is that it would not
    surprise me if these regulatory delays related to a larger
    problem that we virtually never discuss here in Congress of
    regulatory capture, of the undue influence of regulated
    industries over their regulators. This is a widely, widely
    discussed and commented on phenomenon. Woodrow Wilson wrote
    about it. It is in Nobel Prize-winning authors' economic
    literature. It is throughout the treatises on administrative
    law. It is in the editorial pages of the Wall Street Journal
    right around now. In recent years it has really immensely solid
    academic provenance, both in the economic and in the legal
    fields. And out there in real life, guess what? We saw an SEC
    that coughed up for Wall Street humongous leverage standards
    that led very significantly to the Great Recession that we just
    had. We saw the Mine Safety Administration go lax on mines with
    miners killed in explosions and accidents. And we saw appalling
    conduct out of the Minerals Management Service in the run-up to
    the gulf explosion and oil spill.
        And so, you know, you have got the academic theory that
    goes back, gosh, probably about a hundred years now in several
    disciplines. And then you have got real-life practice of this
    problem, of this principle. And when I held a hearing on it
    sometime ago, I asked my staff, let us go back and look at all
    the other hearings that have been held on this issue so we have
    some historical background. There had never been one. So I
    think that it is important for us to be looking at this in the
    context of regulatory capture as well.
        Ms. Seminario, I saw you nodding your head, so let me ask
    if there is something you would like to add, and then I will
    quickly go to my question.
        Ms. Seminario. What I would like to add is just to relate
    to you an experience I had about a year ago on Workers'
    Memorial Day in 2012. There was a Senate hearing on the delay
    in OSHA rules, and as part of that hearing, there were numbers
    of workers, family members who had lost loved ones from
    explosions, from combustible dust, victims with silicosis who
    came to Washington. And we not only came to the Senate, we also
    went to OMB. We had a meeting with Cass Sunstein. And OMB kept
    asking us: ``What is this meeting about? What is this meeting
    about?'' And we said, ``The meeting is about workers and family
    members who would like to come and talk to you about the
    importance of your job in clearing these rules.'' And we walked
    into the room, and he was very polite. And he said, ``This is a
    very unusual meeting. I have never had a meeting like this. We
    do not hear from people like you. The only people that we hear
    from are the industry. They are here all the time.''
        And as I said, it was a very polite meeting. But the silica
    rule, which was part of that discussion, it is still there at
    OMB. The combustible dust rule is not going anywhere. And after
    that meeting there was a press report a few months later about
    Mr. Sunstein and how there had been a letter that came in on
    silica from the construction industry. And he had sent the
    letter through an e-mail to the White House Chief of Staff's
    office and said, ``Maybe this is something you should look
    at.'' They were complaining about the costs of the rule. Was
    there any conveying of the workers' concern, the family member,
    the fact that these rules were needed? No.
        And so regulatory capture is a huge problem, and it is not
    just in the agencies. It is at the White House where these
    meetings go on behind closed doors.
        Senator Whitehouse. There is very little transparency in
    the OMB process, unfortunately.
        I had a technical question, if I may continue a little bit
    further, about Dr. McLaughlin's testimony.
        Chairman Blumenthal. Sure, absolutely.
        Senator Whitehouse. You have graphs in your testimony that
    show the increasing number and burden of regulations. I am no
    great fan of unnecessary and excessive or obsolete regulation.
    I do not think anybody is. But I just wonder about the
    methodology of that a little bit. I have been a regulator
    myself, and I have been a lawyer engaged in the regulatory
    process myself. And what can happen is that a regulation gets
    developed, and it goes on the books. And then it comes time to
    update or amend it, and so then a new regulation gets adopted
    that is the amendment to the first one, and it updates it. And
    then time goes by or flaws are revealed, and another regulation
    gets put in place of that.
        It looks to me by your graph that you count that as three
    separate regulations, but, in fact, it is one regulation that
    has been added to by another that displaced the first one. And
    so my experience has been that a lot of regulations that are on
    the books that appear to be obsolete either are in desuetude,
    simply not enforced any longer and, therefore, meaningless to
    no one, not creating an active burden, or they have been
    overruled by subsequent legislation or replaced by subsequent
    regulation so that they are no longer a practical, immediate
    problem in the day-to-day lives of the regulated entities.
        Could you tell me how in your graph and in your methodology
    you accounted for those two types of regulations--ones that are
    still on the books but simply are not enforced because they are
    in a state of desuetude, and, second, those that are still on
    the books nominally because you do not formally repeal and
    chuck out a regulation, you update it with a new one, but what
    is enforced is the updated regulation not the old one, so it
    might as well be dead sitting there on the books? Do you have a
    process for counting those out as you do the addition to the
    sum?
        Mr. McLaughlin. So I have also been a regulator, worked for
    DOT, and your points are spot on. That is indeed how
    regulations are formed. Requirements are piled on top of
    requirements on top of requirements. It is not necessarily the
    case that an old one is in force or is as burdensome as a new
    one.
        And, by the way, I would like to make the point, Senator,
    that what I am measuring is regulations. It is not necessarily
    measuring burden.
        Senator Whitehouse. Okay.
        Mr. McLaughlin. I am counting restrictions, I am counting
    pages. Those could lead to benefits, those could lead to costs.
    It is quantifying.
        Senator Whitehouse. So hypothetically, at least, you could
    have a situation in which a burdensome and obsolete regulation
    was replaced by a less burdensome, sensible regulation and
    although in a burden measurement context you would show that
    that went down, the graph that you have shown would actually--
    it would look like it was two because it would be in addition?
        Mr. McLaughlin. So my graph was showing the accumulation of
    restrictions. That has been shown to be an important measure in
    economic analysis, and that is the point. I do not pretend it
    is a perfect measure by any means. But it is a useful measure.
    It does give us an idea of how many regulations we have piled
    on top of regulations on top of regulations, and thrown into a
    context, for example, of----
        Senator Whitehouse. But the point that I am making is that
    in some cases, when you say regulation piled on regulation
    piled on regulation piled on regulation piled on regulation,
    that implies that they are cumulative of one another rather
    than replacing of one another.
        Mr. McLaughlin. Yes, sir. But how do you know when one is
    not in effect or is not?
        Senator Whitehouse. That is the difficulty.
        Mr. McLaughlin. And how does a business know?
        Senator Whitehouse. That is the weakness, I think, in a
    pure mathematical or accumulative process. And I do not think
    you are wrong for putting that information out there, because I
    think having to look into it and make that decision regulation
    by regulation becomes so complex and so riddled with judgment
    calls that it is very hard to tell. But I did think that the
    record of the hearing should reflect that when you are adding a
    new regulation, you are not necessarily adding a new burden on
    an industry. You actually could, in fact, be reducing a burden
    on an industry, and that possibility is not reflected or
    measured in your accumulative graph, correct?
        Mr. McLaughlin. I do not disagree with you, sir. The
    methodology could be improved. I am working on improving it. I
    do not pretend that it is perfect.
        Senator Whitehouse. It ain't easy, and I am not faulting
    you for it. I think it is really a challenge.
        Mr. McLaughlin. However, it has been useful--well, the page
    count, the other graph that was in there, has been used in a
    publication that just came out in the Journal of Economic
    Growth, a peer-reviewed publication, a good journal, that did
    show that this measure, even though it is not perfect, page
    counts is even worse than counting restrictions, arguably. It
    does work well for showing how that does affect economic
    growth.
        Senator Whitehouse. Chairman, you have been very generous
    with the time. I appreciate it. And thank you again for holding
    this hearing. This is such an important topic, and you are such
    an ardent consumer advocate. It is good to see you in action in
    this way.
        Chairman Blumenthal. Thank you very much, Senator
    Whitehouse, and thank you for those very, very salient and
    important points. And I might add that my hope is that we can
    explore in a separate hearing some of the environmental
    regulations that you quite rightly well before this hearing
    called attention to and Ms. Seminario had mentioned as well,
    because what I hope to do is explore subject by subject, topic
    area by topic area, the ways in which environmental workplace
    safety, all of these regulations, when they are delayed have
    consequences and costs going forward.
        And I might just mention a number of organizations have
    expressed interest in this general topic, and without
    objection, I am going to put their statements in the record
    along with a very helpful and supportive statement from
    Chairman Leahy on this issue.
        [The information referred to appears as a submission for
    the record.]
        Chairman Blumenthal. You know, I just really want to close
    this hearing by thanking our witnesses and saying that there is
    a lot of common ground here. In fact, I am tempted to say more
    in common than in conflict, because Mr. Batkins I think, for
    example, mentioned the idea of retroactive views of regulation.
    In the medical device area, I helped to adopt an amendment,
    lead an effort to adopt an amendment that essentially expedites
    the consideration by the FDA of new medical devices, but at the
    same time imposes stronger retroactive or retrospective
    analysis of the potential malfunctions or other problems with
    those devices. So that, in effect, the rulemaking or review
    process is expedited, but there is a stronger lookback
    provision in the law; whereas, before now, almost no lookback
    provision was applied and longer periods of time were taken to
    approve the device.
        So not to say that that model is necessarily applicable
    here, but, for example, if it were applied to the rearview
    camera device, if there were objections, maybe we could require
    implementation of that device, and then folks could come along
    and criticize how it should be changed or how different rules
    might be applicable, but at least we would have more cars with
    more of these devices. We would have more OSHA rules that
    protected people against workplace safety issues, including the
    kind of tragedy that occurred at L'Ambiance.
        So I am going to bring this hearing to a close. I think it
    has been very important, and I really want to thank all of
    those here for their insights and all of the organizations that
    have taken an interest in this area. I am going to encourage
    and ask every one of the witnesses to give me--because you have
    made reference to them--a list of other rules or standards that
    were delayed too long or--and I want to be fair--approved too
    quickly. And Mr. Batkins mentioned a few; Dr. McLaughlin may
    have some in mind, on both sides of the ledger, so to speak,
    because I can promise you, if you give us your suggestions, we
    will look into them, because, as I mentioned, we are going to
    be having other hearings.
        I want to invite everyone who is here to return to them,
    including the students who have accompanied Professor Steinzor.
    I hope you get credit for having attended. Not even a Senator
    can compel credit at a university. But thank you--or especially
    a Senator cannot compel credit.
        [Laughter.]
        Chairman Blumenthal. But thank you all for being here, and
    this hearing is closed. The record will be kept open for a
    week. Thank you.
        [Whereupon, at 4:08 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

                                A P P E N D I X

                  Additional Material Submitted for the Record

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                    Prepared Statement of Hon. Patrick Leahy

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                      Prepared Statement of Rena Steinzor

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               Prepared Statement of Sam Batkins with Attachments

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                      Prepared Statement of Peg Seminario

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                  Prepared Statement of Dr. Patrick McLaughlin

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             Prepared Statement of Janette Fennell with Attachments

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          Questions submitted by Senator Blumenthal for Rena Steinzor

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          Questions submitted by Senator Blumenthal for Peg Seminario

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           Questions submitted by Senator Klobuchar for Rena Steinzor

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         Responses of Rena Steinzor to questions submitted by Senators
                            Blumenthal and Klobuchar

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    Responses of Peg Seminario to questions submitted by Senator Blumenthal

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                    Miscellaneous Submissions for the Record

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