[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

                               ----------

                         U.S. GOVERNMENT PRINTING OFFICE 

88-895 PDF                       WASHINGTON : 2014 
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Printing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001



                       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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                Prepared Statement of Hon. Patrick Leahy

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                  Prepared Statement of Rena Steinzor

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

           Prepared Statement of Sam Batkins with Attachments

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                  Prepared Statement of Peg Seminario

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

              Prepared Statement of Dr. Patrick McLaughlin

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         Prepared Statement of Janette Fennell with Attachments

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      Questions submitted by Senator Blumenthal for Rena Steinzor

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

      Questions submitted by Senator Blumenthal for Peg Seminario

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

       Questions submitted by Senator Klobuchar for Rena Steinzor

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Responses of Peg Seminario to questions submitted by Senator Blumenthal

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                Miscellaneous Submissions for the Record

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                      
