[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]









                    FEDERAL GOVERNMENT ON AUTOPILOT:
                   DELEGATION OF REGULATORY AUTHORITY
                    TO AN UNACCOUNTABLE BUREAUCRACY

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

                                HEARING

                               BEFORE THE

                     EXECUTIVE OVERREACH TASK FORCE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 24, 2016

                               __________

                           Serial No. 114-79

                               __________

         Printed for the use of the Committee on the Judiciary



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      Available via the World Wide Web: http://judiciary.house.gov
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

                     Executive Overreach Task Force

                       STEVE KING, Iowa, Chairman

F. JAMES SENSENBRENNER, Jr.,         STEVE COHEN, Tennessee
Wisconsin                            JERROLD NADLER, New York
DARRELL E. ISSA, California          ZOE LOFGREN, California
LOUIE GOHMERT, Texas                 SHEILA JACKSON LEE, Texas
JIM JORDAN, Ohio                     HENRY C. ``HANK'' JOHNSON, Jr.,
TED POE, Texas                         Georgia
JASON CHAFFETZ, Utah                 JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
RAUL LABRADOR, Idaho                 CEDRIC RICHMOND, Louisiana
RON DeSANTIS, Florida                SCOTT PETERS, California
KEN BUCK, Colorado
MIKE BISHOP, Michigan

                     Paul B. Taylor, Chief Counsel

                    James J. Park, Minority Counsel
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                            C O N T E N T S

                              ----------                              

                              MAY 24, 2016

                                                                   Page

                           OPENING STATEMENTS

The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Chairman, Executive Overreach Task Force....     1
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Ranking Member, Executive Overreach 
  Task Force.....................................................     3
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     6

                               WITNESSES

John D. Graham, Dean, Indiana University School of Public and 
  Environmental Affairs
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Sofie E. Miller, Senior Policy Analyst, Regulatory Studies 
  Center, The George Washington University
  Oral Testimony.................................................    57
  Prepared Statement.............................................    59
Amit Narang, Regulatory Policy Advocate, Public Citizen
  Oral Testimony.................................................    67
  Prepared Statement.............................................    70
Gail Heriot, Professor of Law, University of San Diego School of 
  Law
  Oral Testimony.................................................   110
  Prepared Statement.............................................   112

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Ranking Member, 
  Executive Overreach Task Force.................................   135

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared statement of David Stacy, Government Affairs Director, 
  Human Rights Campaign..........................................   156
 
FEDERAL GOVERNMENT ON AUTOPILOT: DELEGATION OF REGULATORY AUTHORITY TO 
                      AN UNACCOUNTABLE BUREAUCRACY

                              ----------                              


                         TUESDAY, MAY 24, 2016

                        House of Representatives

                     Executive Overreach Task Force

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 3:03 p.m., in room 
2141, Rayburn House Office Building, the Honorable Steve King 
(Chairman of the Task Force) presiding.
    Present: Representatives King, Goodlatte, Jordan, Cohen, 
Conyers, Nadler, Lofgren, Johnson, and Peters.
    Staff Present: (Majority) Paul Taylor, Chief Counsel; 
Tricia White, Clerk; Zachary Somers, Parliamentarian & General 
Counsel, Committee on the Judiciary; (Minority) James Park, 
Minority Counsel; and Veronica Eligan, Professional Staff 
Member.
    Mr. King. The Executive Overreach Task Force will come to 
order. Without objection, the Chair is authorized to declare a 
recess of the Task Force at any time.
    And I recognize myself for an opening statement.
    Today's hearing of the Task Force on Executive Overreach 
will focus on the delegation of regulatory authority to an 
unaccountable Federal bureaucracy. Since the 1960's, the 
portion of the Federal budget dedicated to Federal regulatory 
agencies has grown dramatically. Not only does Congress 
delegate vast swaths of lawmaking power to Federal agencies, 
but there's been a great rise in additional ways Congress, the 
President, and the Federal agencies have deviated from the 
traditional process of lawmaking, thereby diffusing 
responsibility for policies in complicated ways that few people 
can even begin to understand.
    For example, Congress has passed overlapping, overlapping 
delegations of regulatory power to multiple agencies. That 
allows a bevy of Federal regulators to bring simultaneous 
enforcement actions against Americans and American businesses, 
pressuring possibly innocent Americans to settle with them and 
comply simply to avoid the vast expense of fighting several 
Federal agencies at the same time, and that's not to mention 
conflicting regulations that--both of which cannot be complied 
with.
    Further, more than one-third of major Federal rules have 
been promulgated without prior notice and comment by the 
public, which deprives the American people of any opportunity 
to weigh in on how new regulations might hurt them. The 
President now uses more executive memoranda and blog posts for 
major policy shifts. Controversial issues are also outsourced 
to boards and commissions, as happened with the new Medicare-
cutting board created by ObamaCare.
    Regulations also impose, de facto, by the issuance of 
Federal agency guidance that, while technically not binding, 
nevertheless tells Americans how their Federal regulatory 
overlords are interpreting the law and that Americans should 
comply immediately or risk an enforcement action against them 
brought by those same agencies. An egregious example of just 
this happened days ago.
    The Department of Education and the Justice Department 
issued guidance claiming all public schools will lose Federal 
funding if they don't let anatomical boys use facilities 
formerly reserved for anatomical girls. As one of our witnesses 
today summarizes, it would be--and I quote, ``it would be an 
understatement to say that the transgender guidance goes beyond 
what Title IX, which was passed in 1972, actually requires. If 
someone had said in 1972 that one day Title IX would be 
interpreted to force schools to allow anatomically intact boys, 
who physiologically identify as girls, to use the girls' locker 
room, he would have been greeted with hoots of laughter. OCR 
has simply engaged in legislating.''
    These unorthodox practices have led to the type of legal 
uncertainty condemned by James Madison. In Federalist number 
62, Madison wrote the following, which is worth quoting at 
length: ``It will be of little avail to the people that the 
laws are made by men of their own choice if the laws be so 
voluminous that they cannot be read or so incoherent that they 
cannot be understood. If they be repealed or revised before 
they are promulgated or undergo such incessant changes that no 
man who knows what the law is today can guess what it will be 
tomorrow. Great injury results from an unstable government. And 
what prudent merchant will hazard his fortunes in any new 
branch of commerce when he knows not but that his plans may be 
rendered unlawful before they can be executed? What farmer or 
manufacturer will lay himself out for the encouragement given 
to any particular cultivation or establishment when he can have 
no assurance that his preparatory labors and advances will not 
render him a victim to an inconstant government? In a word, no 
great improvement or laudable enterprise can go forward which 
requires the auspices of a steady system of national policy.''
    With James Madison's concerns in mind, I look forward to 
the hearing today. But I would point out that I started a 
construction business in 1975, and through the course of, you 
know, seeking to advance my professionalism, I found myself 
conducting seminars in multiple States among other similar 
contractors similarly situated. I began asking the question, 
how many agencies regulate your trade? And I did that from 
State to State, and we came up with kind of a constant number. 
This is back in about, oh, the late 1980's or so. Forty-three 
different agencies had a voice on my construction business that 
regulated me, and that was consistent with many other 
companies. We came to essentially an average consensus of 43. 
And so I wondered what I'd actually done to my oldest son when 
I sold that business to him. There are more agencies today that 
regulate him.
    It's impossible to know even all the agencies that regulate 
your business, let alone know all of the regulations--statutes 
and regulations that regulate businesses. So I would submit 
this: not one business in America has a banner on their home 
page stating, ``notice, we are in compliance with all 
government regulations, conflicting or otherwise.''. You will 
not find that on anybody's Web site, because we know what would 
happen. If you once bragged about being in compliance with all 
regulations, regulators will show up to prove you wrong, and 
over time your profit margin goes into the red and eventually 
you will no longer be in business if we unleash all of the 
regulators that are available to be unleashed on our businesses 
in this country or on our people.
    So I look forward to the testimony. And I would yield back 
the balance of my time and recognize the Ranking Member, Mr. 
Cohen, for his opening statement.
    Mr. Cohen. Thank you. I appreciate that. I didn't listen as 
closely maybe as I should have, and I wasn't sure. What was 
James Madison's position on transgendered?
    Mr. King. He wants you to label your own bathroom.
    Mr. Cohen. Was he--but did they even have that back then? 
That's the great thing about our Constitution, is it can adjust 
and change with the times and what needs to--you know, reflect 
the current situation.
    James Madison probably didn't have much of an opinion on 
it, but this is a concept we've heard a lot about. And when I 
was Ranking Member of the Subcommittee on Regulatory Reform, 
Commercial, and Antitrust Law, most of our hearings were 
devoted to antiregulatory themes, a lot of talk about critics--
critical of regulation by unelected bureaucrats and a lack of 
political accountability. We considered various measures that 
would have added numerous unnecessary and burdensome steps to 
the rulemaking process, throwing whatever we could into the 
wheel to stop the--stop it. There were recommendations to 
expand the authority of the Office of Information and 
Regulatory Affairs, OIRA, require ongoing retrospective review 
of all agency rules, and impose new rulemaking requirements on 
guidance documents. All these measures were to stop the 
agency's actions.
    An important point that gets lost in all this is that 
Congress created the agencies, delegated broad authority to the 
agencies, and Congress funds the agencies. So if Congress does 
not approve the direction of the agency action, it can always 
rescind or limit the scope of the delegated authority. It can 
also restrict funds for the implementation of specific rules 
that it disapproves of. And the fact is, it can--the opponents 
of regulations often do not have the votes to achieve those 
ends through the legislative process, so instead they try to 
raise issues and rhetoric and propose changes that would muck 
up the process.
    Most of the protections that are provided through 
regulation are popular. Most people like clean air and clean 
water, fresh air. It's a nice thing. They like the fact that 
the traffic is, especially in the air is controlled in such a 
way that planes don't crash into each other regularly because 
we've got air traffic controllers. So people like that thing.
    Regulations and broad agency authority that are necessary 
to craft those regulations are critical for public health and 
safety and protecting consumers from fraud and stopping 
unlawful discrimination, among many other things.
    Workplace safety, the Bureau of Labor Statistics reports in 
its 2014 census of fatal occupational injuries that there were 
4,821 workplace deaths in 2014, the most ever reported. And so 
a lot of the regulations are intended to make the workplace 
safer, and maybe could have helped some of those 4,821 people 
who no longer are with us.
    According to researchers from the National Institute for 
Occupational Safety and Health, the American Cancer Society, 
and Emory School of Public Health, there are an estimated 
50,000 to 70,000 deaths from occupation-related diseases in the 
United States annually.
    Why is it that we have agencies that develop regulations? 
As the Supreme Court has recognized, Congress's delegation of 
authority, the executive arises from the practical recognition 
that our society and our economy are far more complex and 
problems far more technical than in the late 18th century at 
the time of the founding and at the time of James Madison and 
his inability to address the issue, of which seems to be the 
issue du jour in the scope of getting the American people 
aggravated about something that doesn't rise to a major level 
of aggravation with most people, because he didn't know about 
it, James Madison.
    Congress sets broad principles into statute and leaves it 
to the agencies to carry out the statute and to formulate those 
principles. This process has worked well to protect millions of 
Americans from a wide variety of harms, enhance innovation and 
economic growth, and ensure basic fairness and justice. And 
Congress retains ultimate legislative authority over agency 
action, ensuring democratic accountability.
    I thank the witnesses for participation in today's hearing. 
I welcome your testimony, and yield back the balance of my 
time.
    Mr. King. I thank the gentleman from Tennessee.
    And now I yield to the Chairman of the full Committee, Mr. 
Goodlatte from Virginia.
    Mr. Goodlatte. Well, thank you, Chairman King, for 
convening this fifth hearing of the Task Force on Executive 
Overreach, this one focusing on executive overreach in Federal 
regulations.
    Federal regulations take a huge toll on small business. 
Warren Meyer, the owner of a company who runs campgrounds said 
recently, ``in 1 year I literally spent more personal time on 
compliance with a single regulatory issue, implementing 
increasingly detailed and draconian procedures, so I could 
prove my employees were not working over their 30-minute lunch 
breaks, than I did thinking about expanding the business or 
getting new contracts.''
    On a larger scale, a Mercatus working paper concludes that, 
had regulation been held constant at the lower levels observed 
in 1980, the economy would have been nearly 25 percent larger 
by 2012, meaning regulatory growth since 1980 cost $4 trillion 
to the American economy in 2012, or about $13,000 per person in 
that year.
    The U.S. economy has generally also grown less dynamic over 
time, as the number of firms less than a year old--as a share 
of all firms has declined dramatically, hampered in large part 
by regulatory burdens. Recently, and for the first time, the 
number of firms folding exceeded the number of firms created in 
America. It's no surprise, then, that the growth in startup 
company employment has also declined significantly over the 
last few decades.
    Surveys of small business owners show a steady rise in the 
ranking of government requirements and red tape as a most 
important problem, and this has contributed to American 
companies having to move overseas to thrive. In a 2011 survey, 
Harvard Business School alumni were asked about 607 instances 
of decisions on whether or not to offshore operations. Of the 
reported results, the United States retained the business in 
just 96 cases and lost it in 511 cases. Research shows that the 
loss of jobs to overseas markets results in higher 
unemployment, lower labor force participation, and reduced 
wages, which in turn increases the demand for spending programs 
for those who are negatively impacted, making our fiscal crisis 
even worse.
    More regulations also means higher prices generally. For 
example, since the once heavily regulated airline industry was 
deregulated in the 1970's, inflation-adjusted domestic airfare 
prices have fallen dramatically. Overall, while the cost of 
things the Federal Government regulates have soared, such as 
education, healthcare, and childcare, the costs of things the 
government generally doesn't regulate have declined, such as 
clothing, cell phones, personal computers, and televisions.
    The way Federal agencies operate also makes it very 
expensive for people harmed by their regulations to challenge 
them in court. As Professor Gary Lawson has written, consider 
the typical enforcement activities of a typical Federal agency, 
for example, the Federal Trade Commission.
    The Commission promulgates substantive rules of conduct. 
The Commission then considers whether to authorize 
investigations into whether the Commission's rules have been 
violated. If the Commission authorizes an investigation, the 
investigation is conducted by the Commission, which reports its 
findings to the Commission. The Commission's complaint that a 
commission rule has been violated is then prosecuted by the 
Commission and adjudicated by the Commission. If the Commission 
chooses to adjudicate before an administrative law judge rather 
than before the Commission, and the decision is adverse to the 
Commission, the Commission can appeal to the Commission. If the 
Commission ultimately finds a violation, then and only then the 
affected private party can appeal to an Article III court, but 
the agency decision, even before the bona fide Article III 
tribunal, possesses a very strong presumption of correctness on 
matters of both fact and law.
    That's not a recipe for freedom in America. That's not a 
recipe for success in America. That's not a recipe for job 
creation in America.
    I look forward to hearing from all our witnesses today 
about the growth in Federal regulatory burdens imposed by an 
increasingly unaccountable Federal bureaucracy.
    Thank you, Mr. Chairman.
    Mr. King. I thank Chairman Goodlatte for his opening 
statement, and now recognize the gentleman from Michigan and 
Ranking Member of the full Committee, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman King.
    Members of the Committee, distinguished witnesses, and 
those who are attending the hearing in person, today's hearing 
is the 32nd antiregulatory hearing that we have had since the 
beginning of the 112th Congress. The antiregulatory fervor of 
some in this legislature is no doubt passionate and heartfelt, 
but as I have noted during the 31 previous hearings that we've 
had on this topic, regulation is vital to protecting everyday 
Americans from a myriad of harms. And broad agency authority is 
crucial to ensuring a well-run regulatory system that promotes 
public health and safety, while providing certainty for 
business.
    So as we consider our witnesses' testimony, we should keep 
the following in mind: to begin with, the broad delegation of 
authority by Congress to administrative agencies is 
constitutional. During our first Task Force hearing, we heard 
testimony from some witnesses that called into constitutional 
doubt the entire notion of Congress delegating authority to an 
executive branch agency.
    It is true that the Constitution provides that all 
legislative power is vested in the Congress and that Congress 
cannot completely delegate this power. The Supreme Court, 
however, has recognized that the Constitution doesn't prevent 
Congress from obtaining the assistance of the other branches of 
government. In fact, as the Court noted in Mistretta versus the 
United States, its decisions in this area have been driven by a 
practical understanding that in our increasingly complex 
society, replete with ever-changing and more technical 
problems, Congress simply cannot do its job absent an ability 
to delegate power under broad general directives. That 
recognition, in turn, highlights the central role of regulation 
and of administrative agencies in addressing a broad spectrum 
of harms in our modern society.
    Without question, regulations provide critical protections, 
such as ensuring the safety of the water we drink, the air we 
breathe, the food we eat, the cars we drive, and the places 
where we work. These matters require highly technical expertise 
and sometimes years of study in order to address properly. 
After all, how many House Members have the knowledge and the 
time to determine exactly how many parts per million of carbon 
monoxide would be acceptable to ensure safe air to breathe? How 
many senators are equipped to determine the proper amount of 
air pressure that's necessary to ensure that a train's braking 
system works properly? I would guess that the answer is 
probably not many, not too many.
    Finally, Congress already has at its disposal a number of 
tools to ensure due process and democratic accountability with 
respect to agency actions. Most obviously, Congress can always 
rescind or limit the scope of delegation, if it so chooses. 
Congress also has the power of the purse to limit an agency's 
power or its ability to implement a rule. The fact that 
congressional opponents of regulation often lack the political 
support to do these things does not mean that checks do not 
exist.
    And so with these points in mind, I look forward to our 
witnesses' testimony, and I thank the Chair and yield back.
    Mr. King. I thank the gentleman from Michigan. Precisely to 
the second.
    And without objection, other Members' opening statements 
will be made a part of the record.
    Let me now introduce the witnesses. Our first witness is 
John Graham, dean of the Indiana University School of Public 
and Environmental Affairs. Our second witness is Sofie Miller, 
senior policy analyst at George Washington University 
Regulatory Studies Center. Our third witness is Amit Narang, 
regulatory policy advocate at Public Citizen. And our fourth 
witness is Gail Heriot, a law professor at the University of 
San Diego School of Law, and a member of the U.S. Commission on 
Civil Rights.
    We welcome you all here today and look forward to your 
testimony.
    Each of the witness's written statements will be entered 
into the record in their entirety. I ask that each witness 
summarize his or her testimony in 5 minutes or less. To help 
you stay within that time, there's a timing light in front of 
you. The light will switch from green to yellow, indicating you 
have 1 minute to conclude your testimony. When the light turns 
red, it indicates that the 5 minutes have expired.
    Before I recognize the witnesses for their testimony, it's 
the tradition of the Task Force that they be sworn in, so I'd 
ask you to please stand and raise your right hand.
    Do you solemnly swear that the testimony that you're about 
to give will be the truth, the whole truth, and nothing but the 
truth, so help you God?
    You may be seated. Thank you.
    Let the record reflect that the witnesses have answered in 
the affirmative.
    I now recognize our first witness, Mr. Graham, for your 
testimony. Mr. Graham.

TESTIMONY OF JOHN D. GRAHAM, DEAN, INDIANA UNIVERSITY SCHOOL OF 
                PUBLIC AND ENVIRONMENTAL AFFAIRS

    Mr. Graham. Thank you, Mr. King, and Members of the 
Committee.
    I agree with the sentiments that Federal regulation is an 
essential tool of government, and my testimony addresses the 
question of how to make it more informed and smarter, based 
upon the available evidence and public opinion.
    I want to introduce as a theme the notion of stealth 
regulation. In the dictionary, the word ``stealth'' refers to 
secretive behavior, like the sneakiness of a cat burglar. And I 
want to talk about regulators, who sometimes, not always, 
engage in this stealth-like behavior, and it's something that I 
want to draw to the Committee's attention.
    Now, how do they do this? They do this with innocuous-
sounding actions, such as guidance documents, official notices, 
policy statements, risk assessments, directives, enforcement 
advisories, and waivers for State regulators. All of these 
constructs are often useful and necessary for a good 
functioning regulatory system, but they can also be used to 
accomplish what would normally be accomplished through 
rulemaking. And sometimes they do this to avoid the basic 
protections that are provided in the Administrative Procedure 
Act for rulemaking.
    So, for example, today, some of the most controversial 
issues in regulatory policy are being resolved with stealth 
regulations: civil rights policy at the Department of 
Education, coal mining permits at the Department of Interior 
and EPA, immigration policy at the Department of Homeland 
Security, Affordable Care Act policies at the IRS and the 
Department of Health and Human Services.
    So what are the process problems with a stealth regulation? 
The first is the basic concept of opportunity for public 
comment can be compromised, either because the agency doesn't 
seek public comment, they simply issue the guidance document, 
or they receive comments but are under no obligation to respond 
to the comments. In the rulemaking process, you have a legal 
obligation as an agency to consider and respond to those 
comments.
    The second problem with stealth regulation is that OMB and 
the interagency review process may be compromised. In 
rulemaking, those draft regulations go to OMB and OMB shares 
those with all agencies of the government, they take comments, 
OMB passes back the comments. I worked 5 years, from 2001 to 
2006, at OMB-OIRA, and I was in the midst of all that process.
    Now, these other types of processes may not involve either 
OMB or the other agencies, so you don't get the same vetting 
process inside the government that you would do normally.
    Third, requirements for cost-benefit analysis and small 
business impact analysis are applicable to rulemakings, but not 
necessarily to all of these other actions. So you don't get the 
same kind of economic analysis and small business analysis when 
you allow these stealth regulations to evolve.
    And finally, the scope for judicial review of agency 
actions may be narrowed if it's not a rulemaking, if it's one 
of these other actions. Judges may be reluctant to intervene if 
there's not a robust rulemaking record that's been provided. 
And when you do these stealth regulations, you can often 
accomplish it without that robust record.
    Now, there are some courts that are beginning to detect 
this problem and are striking down some of these regulations, 
de facto regulations through stealth activity.
    I want to conclude and just give one small example, it's on 
an issue that we can all relate to, which is the growing 
interest in electric cars in America. And I happen to be a 
person who's interested in an electric car. I drive from 
Bloomington to Indianapolis. It takes about 60 miles. To get 
there and back, I need an electric car with a range of 120 
miles. So the technology's getting better, but it's not quite 
there, but I'm interested in this.
    What I find fascinating is that the State of California has 
actually required, through regulation, that 15 percent of all 
new vehicles will be electric or zero emission by 2025. Ten 
other states have joined them, so we now have effectively a 
third of the country covered by an electric car mandate.
    Now, I looked closely at the history of this. Each of these 
electric vehicles could cost on average $10,000 more than the 
average vehicle, but they'll save the consumer some money. So 
there's an important cost-benefit question there. But the 
California analysis that supports this regulation only analyzes 
the regulation from California's perspective. It doesn't 
consider the impact on other States in the country.
    Meanwhile, California's not permitted to do this regulation 
unless they get approval from the EPA on a waiver authority 
under the Clean Air Act. EPA granted the waiver, but EPA never 
did a cost-benefit analysis on a national perspective. So here 
we have, through a combination of activities, a national 
regulatory program, never been subject to a national cost-
benefit analysis.
    Thank you very much. I look forward to the comments and 
questions.
    [The prepared statement of Mr. Graham follows:]
    
    
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]  
    
       
                               __________
                               
    Mr. King. Thank you, Dean Graham, for your testimony.
    And the Chair now recognizes Ms. Miller for her testimony.

TESTIMONY OF SOFIE E. MILLER, SENIOR POLICY ANALYST, REGULATORY 
        STUDIES CENTER, THE GEORGE WASHINGTON UNIVERSITY

    Ms. Miller. Thank you, Chairman King, Ranking Member Cohen, 
and Members of the Task Force, for inviting me to share my 
expertise. Thank you also, Chairman Goodlatte and Ranking 
Member Conyers, for joining us today. I appreciate your 
attention to this issue. I appreciate the Task Force's interest 
in the rulemaking process, including in retrospective review, 
and opportunities for Congress to improve it.
    I am the senior policy analyst at the George Washington 
University Regulatory Studies Center, where I analyze the 
effects of regulation on public welfare and evaluate regulatory 
reforms, including the success of current and past 
retrospective review efforts. Through my research, I've 
identified ways to improve these initiatives.
    Retrospective review is a bipartisan reform effort that can 
improve both the quality of existing rules and of future rules 
by learning what works well in a regulatory context and what 
doesn't. My remarks today include how retrospective review can 
be a powerful tool toward an effective regulatory process, how 
past and current reforms have faired, and ways to improve 
retrospective review to ensure that regulations are 
accomplishing their intended outcomes.
    Retrospective review is a form of program evaluation that 
reviews the efficacy of a policy, in this case, a regulation, 
after implementation to evaluate whether it has had its 
intended effect and whether it should be continued or revised. 
These reviews can inform policymakers on how best to allocate 
limited resources to accomplish broad social goals, like 
improved environmental quality or better human health through 
regulation. Retrospective review can provide valuable feedback 
and learning that improves the design of future regulations.
    While policymakers have the opportunity to revisit many 
Federal programs each time Federal funds are being 
appropriated, regulatory programs often exist in perpetuity 
without a statutory requirement to revisit them after the fact. 
Every year Federal agencies issue thousands of new regulations, 
but despite the pace of regulatory activity, regulators seldom 
look back at existing rules to consider whether they are 
accomplishing their goals and resulting in the estimated public 
benefits and costs. That's why President Obama in 2011, like 
Presidents before him, directed Federal agencies to review 
existing regulations and to ``modify, streamline, expand, or 
repeal them in accordance with what has been learned.''
    Policies that apply retrospective review to regulations 
have a long history in the United States, dating back to the 
Carter administration and continued by every President since 
then. Despite 40 years of bipartisan reform efforts, agencies 
still do not conduct effective retrospective review of the 
rules.
    More recent efforts to encourage this review, such as the 
three executive orders issued by President Obama, have not 
resulted in a systematic culture of evaluation or large burden 
reductions for the regulated public. For example, an analysis I 
conducted of EPA's 2013 plan for retrospective review found 
that it did not include the unprecedented cost savings and 
burden reductions for the regulated public which many observers 
had hoped for. Only one-fifth of the regulatory actions in 
EPA's progress report were expected to reduce costs, and a 
number of actions actually increased burdens on the regulated 
entities.
    One reason why agencies struggle to review the effects of 
their rules is because they don't design their rules at the 
outset to facilitate this measurement, despite existing 
recommendations from OMB that they do so. Writing rules to 
facilitate later retrospective review can ensure effective data 
collection and encourage regulators to clearly identify and 
think through how the proposed rule will address the policy 
problem at hand.
    In 2014, our team at the G.W. Regulatory Studies Center 
examined high priority proposed rules to see whether they 
included components that would help the agencies review their 
effects after implementation. We found that not a single rule 
we evaluated contained a plan for review, and most rules didn't 
contain any quantitative metrics that could be used to measure 
whether the rule was successful. Independent agencies scored 
particularly poorly on these criteria. This suggests that the 
current review system, while headed in the right direction, is 
not sufficient to create the right incentives for effective 
evaluation.
    Retrospective review is a key component of an effective 
regulatory review process because it allows agencies to review 
the effects of their existing rules and evaluate whether they 
are accomplishing their intended goals and determine what 
effect they have on the regulated public. Writing these rules 
at the outset to facilitate this measurement can improve 
regulatory outcomes and enable policymakers like yourselves to 
learn from what has worked and what hasn't.
    Thank you all.
    [The prepared statement of Ms. Miller follows:]*
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    *Note: Supplemental material submitted by this witness is not 
printed in this hearing record but is on file with the Task Force, and 
can also be accessed in her statement at:

      http://docs.house.gov/Committee/Calendar/
      ByEvent.aspx?EventID=104981
      
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                               __________
    Mr. King. Thank you, Ms. Miller.
    I now recognize the gentleman, Mr. Narang, for his 
testimony.

 TESTIMONY OF AMIT NARANG, REGULATORY POLICY ADVOCATE, PUBLIC 
                            CITIZEN

    Mr. Narang. Thank you. Chairman King, Ranking Member Cohen, 
and distinguished Members of this Task Force, thank you for the 
opportunity to testify today. I'm Amit Narang, regulatory 
policy advocate at Public Citizen's Congress Watch.
    Public Citizen is a national public interest organization 
with more than 400,000 members and supporters. For more than 40 
years, we have successfully advocated for stronger health, 
safety, consumer protection, and other rules, as well as for a 
robust regulatory system that curtails corporate wrongdoing and 
advances the public interest.
    Public health and safety regulation has been among the 
greatest public policy success stories in our country's 
history. Regulations have made our air far less polluted and 
our water much cleaner, they've made our food and drugs safer, 
they've made our workplaces less dangerous, they have made our 
financial system more stable, they have protected consumers 
from unsafe products and from predatory lending practices, 
they've made our cars safer, they've outlawed discrimination on 
the basis of race and gender, and much more.
    Although these regulations are now considered to be bedrock 
protections widely popular with the public, it is important to 
keep in mind that opponents of these regulations at the time 
predicted economic doom and gloom if they were adopted. None of 
these predictions came true, of course, and this is an 
important lesson when considering current doomsday predictions 
from opponents of new regulations.
    In short, our regulatory safeguards are to be celebrated 
and emulated. Unfortunately, the state of our current 
regulatory system is a deep cause for concern. Our regulatory 
system is badly broken and in dire need of reform. The 
rulemaking process moves too slowly to protect the public, 
agency funding continues to stagnate or even decline, and the 
revolving door between regulated industry and Federal agencies 
continues to spin, leading to industry capture of our 
regulatory system.
    Given the focus of this hearing, I will spend the rest of 
my time on the current crisis of regulatory delay. The sad 
truth is that nearly every major new piece of legislation that 
Congress enacts to protect the public takes far too long to 
result in regulations that actually do benefit and protect 
consumers and working families. Take these four laws passed on 
a bipartisan basis during President Obama's first term as an 
illustration: the Pipeline Safety Act of 2011, the Food Safety 
Modernization Act, the Family Smoking Prevention and Tobacco 
Control Act, and the Dodd-Frank Wall Street Reform Act.
    All of these laws were passed by Congress to protect the 
public's health, safety, and financial security, and yet 
regulators have taken on average 4 to 6 years to develop and 
put in place important new regulations that implement and 
enforce each law. Astonishingly, three of the four laws still 
have not been fully implemented. For all of these laws, Federal 
agencies miss statutory deadline after statutory deadline as if 
those deadlines were optional instead of mandatory.
    It's the public that pays the price of regulatory inaction 
and delay: pipeline leaks that pollute the environment and make 
neighborhoods uninhabitable, increasing use of and addiction to 
e-cigarettes, continued reckless gambling on Wall Street, and 
frequent tainted food scandals. The unacceptable delays in 
implementing these laws are the rule, not the exception. As the 
breadth of these laws demonstrates, the crisis of regulatory 
delay extends across agencies and across regulatory sectors. 
The anecdotal examples are backed up by comprehensive empirical 
evidence of systemic regulatory delays.
    Last year the conservative-leaning think tank, the R Street 
Institute, undertook a comprehensive study of how often Federal 
agencies are able to meet the statutory deadlines when enacting 
significant new regulations. The results are deeply troubling. 
Regulators missed congressional deadlines a shocking 50 percent 
of the time over the last 20 years.
    What are causing these delays? The bulk of new regulations 
that are minor and technical in nature do not encounter 
significant delay. Rather, it is the most important 
regulations, sometimes termed ``significant'' or ``major,'' 
that provide Americans with the greatest benefits, but also 
take the longest to finalize. This is because the rulemaking 
process for these rules has become inefficient at best and 
dysfunctional at worst.
    When developing significant or major regulations, agencies 
are required to analyze not only the rule itself, but also 
multiple alternatives, even when alternatives are prohibited by 
statute. Agencies are required to conduct multiple cost-benefit 
analyses that are highly speculative yet demand enormous 
resources. Agencies are required to conduct at least one, and 
often more than one, public comment period and respond to the 
hundreds of thousands of comments submitted by stakeholders. 
Executive agencies must submit their significant rules to OIRA 
for review, an increasing source of delay, as OIRA reviews have 
taken longer under this Administration than any previous one.
    Finally, all of these procedural requirements occur against 
the backdrop of a likely court challenge by regulatory 
opponents.
    As the saying goes, protections delayed are protections 
denied. The regulatory process that disregards statutory 
deadlines, vetoes congressional mandates on the basis of flawed 
cost-benefit analysis, and is generally unable to fulfill 
congressional intent in protecting the public should be a high 
priority concern for all Members of Congress.
    This Congress has been interested in streamlining 
inefficient regulatory processes that result in undue delay, 
such as legislation passed last year to expedite energy and 
infrastructure permit approvals by stripping away environmental 
cost-benefit analysis, imposing hard caps on public comment 
periods, and sharply reducing the ability for stakeholders to 
bring court challenges. It is disappointing, then, to see 
Congress propose essentially the opposite reforms for public 
health and safety regulations, adding more cost-benefit 
analysis, longer comment periods, more OIRA review, and more 
opportunities for regulatory opponents to challenge in court.
    Congress can and should fix our regulatory process, and 
it's long past time that it does. This is the kind of 
congressional accountability that is needed. Public Citizen 
stands ready to work with lawmakers on both sides of the aisle 
to make our regulatory system work effectively and efficiently 
for consumers, working families, and the public.
    Thank you, and I'm looking forward to answering any 
questions you may have.
    [The prepared statement of Mr. Narang follows:]
    
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                                __________
                                
                                
    Mr. King. Thank you, Mr. Narang.
    The Chair now recognizes Ms. Heriot for her testimony.

 TESTIMONY OF GAIL HERIOT, PROFESSOR OF LAW, UNIVERSITY OF SAN 
                      DIEGO SCHOOL OF LAW

    Ms. Heriot. Good afternoon, Chairman King, Ranking Member 
Cohen, and distinguished Task Force Members. Thank you for this 
opportunity to testify on this important topic. I should note 
I'm here as an individual member of the Commission on Civil 
Rights and not on behalf of the Commission as a whole.
    I will be brief, although I should say, that's not so easy, 
since there's plenty to talk about here. I will thus be 
focusing my remarks on the Department of Education's Office for 
Civil Rights, though there are many other government agencies 
that would also be worthwhile to discuss.
    To put it plainly, OCR is out of control. Its 
pronouncements are in no way tethered to the actual law. OCR 
officials have shown again and again that they're not 
interested in what the statutes they're charged with enforcing 
really say. They are pushing their own agenda.
    Congress is supposed to be the one who makes the laws. 
Composed of the people's representatives, Congress is the one 
that's supposed to make decisions about policy. OCR is supposed 
to implement those. Somehow our system of representative 
democracy is not working.
    The best, but by no means the only, example is the recently 
announced transgender guidance requiring schools across the 
country to allow intact anatomically male, that is, boys, who 
psychologically identify with girls, to share toilet, locker 
room, and shower facilities with actual girls.
    Congress intended no such thing when it passed Title IX 
back in 1972. That statute prohibits sex discrimination by 
federally funded schools, colleges, and universities, plain and 
simple. It makes an exception for separate living facilities, 
which was crystalized in a rule promulgated in 1975 which 
explicitly authorizes separate toilet, locker room, and shower 
facilities based on sex, actual sex, not the sex we might 
desire to be.
    To claim back in the 1970's, that the 92nd Congress 
intended or that the American people understood Title IX to 
require schools to allow anatomical boys who view themselves as 
girls to use the girls' room would flunk the laugh test. 
Indeed, OCR doesn't even claim it. Instead, OCR's argument, 
insofar as it has one, is that it just noticed, surprise, that 
a 1989 Supreme Court case, Price Waterhouse versus Hopkins, 
requires this result. Well, no, it doesn't.
    Price Waterhouse concerned a woman who allegedly had not 
been promoted because she was perceived as too aggressive. The 
Court reasoned that if a male employee with the same aggressive 
personality would have been promoted, that she was indeed 
discriminated against on account of her sex within the meaning 
of Title VII. Fine. But let's try that same line of reasoning 
in connection with the transgender guidance.
    Suppose a school had a student who was anatomically male, 
but who identifies psychologically as female. Would a female 
student with the same psychological identification be permitted 
to use the girls' room? Well, yes, of course. But that's very 
different from Price Waterhouse versus Hopkins, because Title 
IX and its implementing regulations explicitly permit schools 
to ``provide separate toilet, locker room, and shower 
facilities on the basis of sex.''
    More important, note that applying this line of reasoning 
proves too much. Consider instead an anatomically male student 
who identifies as male, that is, the more typical male. It is 
still true that if his female counterpart, an anatomical 
female, who identifies as male, she would have been permitted 
to use the girls' locker room, yet we know that schools are 
explicitly authorized to have separate toilets, locker rooms, 
and shower facilities for each sex. This takes the case outside 
of the Price Waterhouse situation.
    Note that in my testimony so far I haven't argued whether 
OCR's transgender guidance is good or bad policy. For the 
record, I think it happened to be bad policy, at least when 
it's shoved down the throats of schools, colleges, and 
universities. Far better to allow these institutions to make 
their own choices on these matters.
    You can ask me about the underlying policy issue in the 
question-and-answer period if you so desire, but right now my 
point is more limited. This is not what Title IX actually 
requires. OCR's actions are lawless.
    In my written testimony, I discussed a few ideas about how 
to get OCR and other agencies back on track. The simplest 
recommendation is stop giving them more money. Last year the 
Obama administration asked for a huge budget increase for OCR. 
I wrote a long epistle to Republican appropriations leaders 
saying, please don't do it, and explained why, but Congress 
gave it to OCR anyway; not quite as large as the Administration 
had asked for, but nevertheless very large. We are now 
experiencing the results of that decision.
    I have two somewhat more complex proposals in my written 
testimony, but I see that I'm running out of time. So I would 
be very glad to talk about those ideas during the question-and-
answer period or with your staff after the hearing.
    The bottom line is that the Framers of the Constitution 
knew that they had to structure the institutions they were 
creating to get the incentives right. That work did not stop 
with them. The incentives of administrative agencies have to be 
carefully structured as well, and I would urge this Congress to 
do that.
    [The prepared statement of Ms. Heriot follows:]
    
    
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                    __________
                                       
                                       
    Mr. King. Thank you, Ms. Heriot, for your testimony, and 
each of the witnesses.
    I now recognize myself for 5 minutes of questioning.
    I'd turn first to Dean Graham and ask you the question this 
way: that you heard in my opening statement that no business, I 
suppose this to be true, in the United States has a banner on 
their home page that says, notice, we are in compliance with 
all Federal regulations. Could you think that it's possible to 
be in compliance with all--just all Federal regulations?
    Mr. Graham. I don't know for sure, but I do know that 
colleges and universities are also heavily regulated sectors of 
the American economy, and we don't have any such statements on 
our Web sites, that I'm familiar with.
    Mr. King. And when you talked about some of the ways, 
guidance, notices, advisories, and could you speculate as to 
how difficult it might be just to be aware of all the 
regulations, let alone being in compliance with them?
    Mr. Graham. Yes. It's a little easier with rulemakings and 
regulations, because we have accounting mechanisms in the 
Federal Government to count them. But for these other types of 
stealth regulations, I call them, guidance documents, 
enforcement notices, there's actually no centralized method to 
even count how many there are in various agencies in the 
Federal Government as a whole. So it's very hard to get your 
arms around the magnitude and the trends.
    Mr. King. Do you recall, it seems to me that I do, about a 
second or third tier U.S. Treasury Web page that issued a 
regulation on ObamaCare 2 or 3 years ago? Does that ring a 
bell, Mr. Graham?
    Mr. Graham. Well, I'm aware of several of them. The one--it 
was addressing the employer mandate and the delay in the 
employer mandate. And if you remember, the context for a lot of 
that, obviously quite understandably, the Administration was 
trying to address a very difficult situation. But we insist 
upon the idea that when you're going to make changes in major 
programs like that, that you go through a standard rulemaking 
process. So it was highly--a highly unusual situation.
    Mr. King. I thank you, Mr. Graham.
    I'd turn to Ms. Miller. And in your testimony, you 
commented that President Obama post-inauguration of his first 
term directed a review to modify, streamline, or expand 
regulations. Do you have a judgment on what actually happened? 
Was there modifying, streamlining, or was it expansion that we 
witnessed?
    Ms. Miller. That's a good question. So what we saw a lot of 
through the agencies' progress reports is that they listed 
rules that they were already conducting and planning to conduct 
as part of the retrospective review programs. I don't know how 
many of those actions were initiated as a result of the 
executive order. I would guess that most of them they were 
planning to do already and decided to categorize as 
retrospective review so that it could look as if they were 
complying. But my research did find that many of these 
retrospective review actions did increase burdens on the 
regulated public, and that was as a result of recategorizing 
large rules, such as EPA's tier three, as regulatory actions 
pursuant to the President's executive order.
    Mr. King. Thank you, Ms. Miller.
    And I turn to Mr. Narang. And in your testimony, you 
mentioned the likely court challenge by a regulatory opponent. 
That would likely be a business that was affected by those 
regulations, it seems to be the most likely. And can you tell 
me if, say, if you're a business and there's a regulation that 
emerges in one of these unreviewed--say an unreviewed 
regulation that has the force and effect of law, and a business 
is disadvantaged by that, and they appeal through this process. 
You heard Chairman Goodlatte's opening statement about the 
convoluted way by which one seeks justice from outside the 
commission, I believe, was the language that was used in that, 
and you end up appealing back to the very agency that has 
issued the rule in the first place without an opportunity for a 
de novo review, how then does a person in America receive 
justice?
    Mr. Narang. So the guidance documents, I believe, are the 
type of regulatory actions that you're referring to that could 
result in enforcement actions. I don't think that's a proper 
characterization of the legal effect of binding--of guidance 
documents. Guidance documents are not legally binding. 
Noncompliance with guidance documents can result in other types 
of sanctions. For example, you know, an entity is receiving 
Federal funding for compliance with regulations----
    Mr. King. But the question was about without a de novo 
review, how does a person ever achieve justice if they're 
appealing back to the same agency that has created the 
regulation that they claim that the individual's in violation 
of?
    Mr. Narang. Sure. So, generally speaking, and I'll use the 
SEC and their administrative adjudication as an example as a 
case study. But generally speaking, the rates for--essentially, 
the rates at which litigants win within administrative 
education tribunals and rates that litigants win in Article III 
courts are roughly similar. In fact, sometimes agency tribunals 
result in increased rates of victories for legal----
    Mr. King. We conclude that it's about as difficult as 
understanding how.
    And I think that my time is nearly out, but I would like to 
ask a concluding question to Ms. Heriot, because you put the 
most provocative testimony out here in front of this panel. And 
I'm trying to--I don't really want to visualize this order 
that--or this directive that the President has issued, but the 
girls that are in the shower when the anatomically intact male 
comes in, how do they determine the gender of that anatomically 
correct male?
    Ms. Heriot. It's what he says it is. They're not--a 
transgender person is not required to provide----
    Mr. King. Does that shock those girls any less?
    Ms. Heriot. I feel that the girls are going to be shocked 
regardless of what the evidence is of transgender status. One 
problem, though, is given that no proof is required, this--this 
causes a greater likelihood of pranksterism, of voyeurism, and 
such, because who's to challenge someone who says that they're 
transgender? Nobody's going to want to be in that position, and 
therefore, we can expect to see some foolishness going on here.
    I think most schools have a great deal of sympathy for 
those who are in the transgender status, but by forcing these 
schools to engage in a one-size-fits-all, here's how we're 
going to deal with it, I think that's a big mistake. And for 
the Department of Education to do that, given that Title IX in 
no way requires this, particularly to do it through a guidance, 
is utterly inappropriate.
    Mr. King. This turns, in my opinion, on the difference 
between immutable characteristics and mutable characteristics, 
and I think that's when we went down the wrong path.
    I thank all the witnesses.
    And I'd now yield to the gentleman from Tennessee for his 5 
minutes.
    Mr. Cohen. Thank you, Mr. Chair.
    The American Association of University Women and Know Your 
IX, a group empowering students to stop sexual violence, have 
got a letter, so I'd like to introduce into the record. The 
Know Your IX particularly takes great exception to Professor 
Heriot's testimony and suggests that much of it is factually in 
error, let alone questioning some of her legal theories. And 
then the AAUW just as some general. So without objection, we'd 
like to enter these into the record.
    Mr. King. Hearing no objection, so ordered.
    [The information referred to follows:]
    
    
    
    
    
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                               __________
                               
                               
    Mr. Cohen. Thank you.
    Ms. Heriot, you've got a phenomenal background, resume, 
obviously a very smart woman. I thank you for dedicating some 
of your work here to the Office of Civil Rights. You are on the 
Civil Rights Commission. Is that correct.
    Ms. Heriot. That's correct.
    Mr. Cohen. Appointed by President--reappointed by President 
Obama?
    Ms. Heriot. No. I was appointed by the Senate. I am Senator 
McConnell's nominee to the----
    Mr. Cohen. Oh, I see. What are some of the things that you 
have done on the civil rights--to promote civil rights?
    Ms. Heriot. What have I done to promote civil rights? 
Everything we do promotes civil rights.
    Mr. Cohen. What have you done? I mean, what have you done 
to help voting rights, for instance? Have you done things to 
help get people--extend the right to vote, because----
    Ms. Heriot. The Commission doesn't go out and register 
people to vote. What we do----
    Mr. Cohen. I'm hip to that.
    Ms. Heriot [continuing]. Is issue reports.
    Mr. Cohen. Yeah. And have you issued some reports that 
suggest that maybe some of the activities that have taken place 
in recent--with photo IDs and other things might be barriers to 
voting and tried to find ways to maybe suggest we should find 
ways to encourage people to get the----
    Ms. Heriot. I don't think we've done one on voter ID in 
particular, but we have done voter fraud and voter suppression 
reports in the past.
    Mr. Cohen. Okay. And what are some of the things that 
you've found that has extended civil rights that may be that 
your work on the Commission has--you've been most proud of?
    Ms. Heriot. Well, let's see. Most proud of. That's kind of 
a difficult question. I am quite interested in our eminent 
domain report that we did recently. I like that----
    Mr. Cohen. How about something a little bit closer----
    Ms. Heriot. We have a religious liberty report that's 
coming out soon that I think is quite a good report. I'd be 
very happy to furnish you with copies of those reports.
    Mr. Cohen. Religious liberty. Is that--tell me what the 
perspective is on that.
    Ms. Heriot. It's a very complex subject. You don't want to 
spend your time on that. We could go on forever and ever and 
ever.
    Mr. Cohen. Well, then thank you.
    Ms. Heriot. Absolutely. I will make sure that you get a 
copy as soon as it comes out.
    Mr. Cohen. Thank you. We've had--you know, there's 
different perspectives on religious liberty, and some, you 
know, see it one way and some another. I mean, it's all----
    Ms. Heriot. Yeah. Our report is not limited to one aspect 
of it. Our report has--deals with lots of different aspects of 
religious liberty.
    Mr. Cohen. Mr. Narang, you suggest in your testimony that 
there are some problems because we don't get the rules adopted 
quickly enough? Is that because we don't have--our budgeting 
process and we don't have enough people there, or is it--is 
that the problem?
    Mr. Narang. So some of it is, you know, claims that the 
Federal workforce has increased dramatically since the 1960's. 
There's some needed context there. It's true that the Federal 
workforce has increased. I think the GAO pointed out in a 
recent report that about over the last 10 years, 94 percent of 
that increase is DHS, DOD, and the VA. So the public health and 
safety agencies, the agencies that oversee and regulate Wall 
Street, they are not getting massive funding or staffing 
increases, and at the same time, they're getting quite a few 
more responsibilities with respect to public health and safety 
and financial security.
    Mr. Cohen. Thank you, sir.
    Ms. Miller, I want to congratulate you. I understand you 
just graduated, right? Did you just graduate?
    Ms. Miller. I'm sorry?
    Mr. Cohen. Or get a master's degree?
    Ms. Miller. Oh, I have a master's degree, yes.
    Mr. Cohen. Did you just get it?
    Ms. Miller. I did. In May. Thank you.
    Mr. Cohen. Good. Congratulations.
    Ms. Miller. Thank you.
    Mr. Cohen. In your report, there was something here about 
some of your work had to do with airline passenger protections. 
What are the--what airline passenger protections have we had 
lately? I mean, we----
    Ms. Miller. I think in the report, what that might be 
referencing--are you talking about my bio or about the----
    Mr. Cohen. Oh, it's in your bio.
    Ms. Miller [continuing]. Testimony?
    Mr. Cohen. It says that you submitted public comments 
establishing, among other things, airline passenger 
protections.
    Ms. Miller. Generally, what those were were passenger 
protections for consumers, such as transparency in----
    Mr. Cohen. Ticketing?
    Ms. Miller [continuing]. Ticket purchasing and things like 
that and other transparency measures for consumers while riding 
on airlines.
    Mr. Cohen. I got you. Nothing about getting seats a little 
bit more further apart.
    Ms. Miller. No, sorry to say.
    Mr. Cohen. No. That--I would miss that if it was the case.
    Did you--do you agree with Mr. Narang that we don't have 
enough money allocated to get these regulations approved 
quickly enough?
    Ms. Miller. That's a good question. The G.W. Regulatory 
Studies Center does an annual report that tallies the amount of 
money that's budgeted to Federal agencies to conduct 
regulation, and we do find that the budget adjusted for 
inflation has been increasing steadily over time. So it seems 
that the--there are resources there. I think there are enough 
resources to be able to promulgate rules sufficiently.
    One issue that I've heard when speaking with regulators is 
that sometimes the deadlines that are established in statute 
are a bit ambitious, and it's difficult for them to conduct a 
very thorough analysis and make good decisions within those 
time frames.
    Mr. Cohen. Thank you. And I don't have any time left, but I 
would to comment that Dr. Graham has got a marvelous vitae as 
well, and he's been praised by Senator Moynihan and he had the 
wisdom to live in Santa Monica, so I can't really ask him 
anything.
    Mr. King. The gentleman's time has expired.
    And I now recognize the Ranking Member of the full 
Committee, Mr. Conyers of Michigan.
    Mr. Conyers. Thank you, Chairman King. And I thank the 
witnesses.
    I want to talk with Mr. Narang for a few minutes about the 
2008 financial crisis that we're still coming out of. Was that 
a result of too much or too little regulation, or did it play 
any part at all?
    Mr. Narang. Thank you, Congressman. Definitely too little 
regulation and oversight of Wall Street.
    Mr. Conyers. Anybody else want to venture a response to 
that question?
    Mr. Graham. Yeah. I guess I would have said both, because 
we also had the problem of putting a lot of expectations on 
lenders to make loans into households and communities that were 
not in a position to actually pay back those loans. So those 
kinds of expectations, and much of that was in government 
policy but not necessarily in formal regulation. So I would say 
both played a role.
    Mr. Conyers. Mr. Narang, some of your fellow witnesses at 
the table suggest that Federal agencies use various means, 
including the issuance of guidance documents to circumvent 
various checks on agency rulemaking authority, including the 
Administrative Procedure Act and OIRA. Is that a possibility or 
reality in the present circumstances we find ourselves in?
    Mr. Narang. Sure. Thank you. So I think it is too 
simplistic a claim and it ignores the fact that, for example, I 
note a claim was made that a third of rules don't go through 
the notice and comment process. That's often because those 
rules are needed for urgent circumstances, like national 
security. It's often because Congress itself, has told the 
agency explicitly, you're not supposed to go through notice and 
comment rulemaking. Please issue an interm or direct final 
rule. So with respect to those rules, it's that context is 
necessary.
    And I'd also say with respect to guidance documents, 
there's well-developed authority for agencies to pursue 
guidance documents when needed. It's interesting to note that, 
you know, a subset of guidance documents are no-action letters, 
and businesses often request those no-action letters 
expediently and want clarity as to whether a certain business 
practice is outlawed and will be--will result in an enforcement 
action against them. I don't hear similar concerns from the 
Committee or from my fellow witnesses that those no-action 
letters go through insufficient process and don't result in 
notice and comment.
    In fact, Public Citizen actually has been advocating for a 
notice and comment process for the CFPB's newly enacted no-
action letter process. Unfortunately, the CFPB has declined to 
undergo notice and comment where Public Citizen could comment 
on the results of a no-action letter issued by the CFPB. And so 
that is disappointing in that sense, you know, it--public 
comment, if it's only applied to guidance documents, will 
result in, you know, a basically unfair system with respect to 
guidance that prioritizes one form of guidance over another.
    And I would say the last point I make is that I've gone 
through the various reasons why our regulatory process for 
notice and comment rulemaking is dysfunctional. It's hard to 
blame agencies for not wanting to go through that process. 
Although I don't agree that you can just assume that's the 
intent when agencies issue guidance or----
    Mr. Conyers. Finally, let me ask you, why does Congress, in 
your view, delegate broad authority to administrative agencies 
in the first place?
    Mr. Narang. Well, thank you, Congressman. You mentioned it 
earlier. For practical reasons, delegation makes a lot of 
sense. Congress is not able to come up with the minutiae and 
technical details to determine what will be an effective 
regulation that protects the public. Congress gives broad 
direction. Delegation is----
    Mr. Conyers. Inevitable.
    Mr. Narang [continuing]. Is a model that's followed by the 
corporate world. It's not surprising that it's followed by our 
government.
    Mr. Conyers. Thank you, Mr. Chairman. And I thank the 
witness and I appreciate all of your testimony.
    Mr. King. I thank the Ranking Member from Michigan.
    I now recognize the gentleman from New York, Mr. Nadler, 
for his 5 minutes.
    Mr. Nadler. No Republican here? All right, thank you, Mr. 
Chairman. I was waiting for someone on the other side of the 
aisle to have his 5 minutes or her's, but--okay.
    Mr. Narang, you stated that regulatory agencies, especially 
in the more important one, in the more important regulations 
often miss statutory deadlines. How should we enforce statutory 
deadlines? Should Congress change the way we write the laws or 
is there some other way we should enforce them?
    Mr. Narang. So that's a great question. Thank you, 
Congressman. Oversight is probably the most immediate and 
easiest means for Congress to ensure compliance on the front 
end with statutory deadlines and then to ensure that agencies 
are doing their best to get regulations out when they've missed 
those statutory deadlines. There are other ways that Congress 
can allow, essentially, private or third-party enforcement of 
missed statutory deadlines. This is an important way for 
citizens.
    Mr. Nadler. We would have to put that in the underlying 
statute to start with.
    Mr. Narang. Yes. That could be the--that would generally be 
the case. That's right. But this is one of the best ways for 
our government to be responsive to citizens that expect the 
government to protect them.
    Mr. Nadler. Okay. Let me ask you one question. Give me a 
brief answer because I have some questions for other witnesses. 
When these agencies typically miss the statutory deadlines, is 
it because they don't like the underlying policy and they are 
delaying or is it because you're making impossible conditions 
for them?
    Mr. Narang. I'm sorry, can you repeat the second case?
    Mr. Nadler. Well, the second case is, is it because it's 
impossible for them to meet the unrealistic statutory deadlines 
that we set up in the first place?
    Mr. Narang. Well, I would say that it depends on the 
agency. It depends on the circumstances. It's totally 
justifiable for Congress to want agencies to meet ambitious 
statutory deadlines for public health and safety issues that 
are of urgent concern, and there are many of those. And 
agencies should do their best to prioritize and meet those 
statutory deadlines.
    Mr. Nadler. Thank you.
    Ms. Heriot, you said--you didn't really go into the policy 
behind the recent guidance on transgender students. But you 
lambasted the alleged lack of authority in this and similar 
instances by the Department of Education to issue those 
guidances. I'm quoting now from a letter. I'm going to 
paraphrase, rather, from a letter from a group called Know Your 
IX, meaning Title IX, and it quotes from your testimony. It 
says you lambaste the recent joint Justice Department and 
Education Department guidance on transgender student rights 
declaring that, ``If someone had said in 1972 that one day 
Title IX would be interpreted to force schools to allow 
anatomically intact boys who psychologically, 'identify,' as 
girls to use the girls' locker room, he would have been greeted 
with hoots of laughter.'' ``Heriot's glib dismissal of 
transgender students' gender identity as nothing more than 
psychological choices dangerously ignores the high rates of 
discrimination and sexual violence transgender students face in 
schools and glosses over the ways that antitrans bills limit 
students' educational access.''
    So that's--my first question of two is, comment on that, 
please. But my second is, you said that--well, you questioned, 
and the quote I just read, obviously, questions the authority, 
but the Fourth Circuit recently afforded deference to the 
Federal Government's interpretation of Title IX stating, ``In 
the Fourth Circuit decision, the Department's interpretation 
resolves ambiguity in regulation by providing that in the case 
of a transgender individual, the individual's sex as male or 
female is to be generally determined by reference to the 
student's gender identity.''
    In other words, the Fourth Circuit said--approved the 
Department's transgender regulation, in effect, on the basis of 
Title IX. And you said that Title IX gives no--that this is far 
beyond the power vested by Title IX.
    Ms. Heriot. Okay. On the Fourth Circuit, number one, the 
Fourth Circuit got where it did by saying it was deferring to 
the Department of Education. That's not something Congress is 
supposed to do. Congress is actually supposed to be looking at 
this from the standpoint of what the----
    Mr. Nadler. Now, wait a minute. Congress writes laws. 
Congress writes laws. The departments interpret laws. Courts 
can defer to their interpretation or can say your 
interpretation is so far out of line that we're not going to 
defer to it. They're going to knock it down. The Fourth Circuit 
here says your interpretation is not so far out of line. It's 
within your--the permissible parameters of your 
interpretation--of your interpretive authority, and therefore, 
we will accede to it. That's what the----
    Ms. Heriot. And that's what the dissent said was the case, 
that this was----
    Mr. Nadler. Dissent? No, that's what the case said.
    Ms. Heriot. Yeah, but the dissent says that this is, in 
fact, in this certain interpretation of Title IX, I would agree 
with that.
    Mr. Nadler. Okay. So your argument is that the Fourth 
Circuit is wrong, you agree with the dissent.
    Ms. Heriot. I agree with the dissent, but I nevertheless 
say that the Fourth Circuit only could get where they got by 
deferring to OCR. They're not saying that this is, in fact, the 
correct interpretation of Title IX.
    Mr. Nadler. All right. But deferring, deferring--when we 
write a statute, and of necessity the executive agency charged 
with enforcing that statute has to interpret what it means, 
which it does all the time, the court can say one of three 
things: the court can say, well, this is obviously right, or 
the court can say, well, no, this is so out of line that it's 
obviously wrong, or the court can say, well, this is close 
enough so that we will defer to the agency's authority to 
interpret, which is what the Fourth Circuit said here.
    Now, the dissent says, I gather from your quote, because I 
haven't read the dissent, the dissent says, I gather, that it 
is so far out of line that we shouldn't defer, that it's just 
wrong. Okay. So you agree with the dissent, which is your 
privilege, but to say that the department is so out of line 
that it's ridiculous, which is the gist of your testimony, the 
Fourth Circuit found otherwise.
    Mr. King. The gentleman's time has expired, but the 
gentlelady witness will be allowed to answer.
    Ms. Heriot. I got lots of pieces here that I have to get to 
first. Let me just get to some of the other points that were 
made here. The violence issue and the danger of reading into 
Title IX something that isn't there. But one way that schools 
have tried to deal with the transgender issues, and I know of 
no school that has not been sympathetic to the problem here, is 
by allowing a student in that situation to have some special 
dispensation; for example, to use the faculty bathroom if 
that's necessary.
    Mr. Nadler. And thus----
    Ms. Heriot. The trouble here is by----
    Mr. Nadler. And thus, single that person out.
    Ms. Heriot.--Title IX so that it will treat gender identity 
as if that is what is prohibited by the statute will make an 
action like that illegal. Because students--for example, let's 
say you've got a female student who identifies male and is 
being given a difficult time by the other female students, gets 
to use the faculty bathroom because it's thought that this is 
simply better for that student. A student now of the same sex 
but a different gender identity has a reason to object to that 
and regard that as a violation of Title IX.
    So what happens is, in dealing with the violence issue, you 
may, in fact, have this backfire. You're going to have more 
possible solutions that are now illegal under Title IX, less 
discretion by the schools in order to deal with the subject the 
way they think is best. And so you've got to be careful what 
you wish for here.
    You start extending Title IX to include categories that it 
was never intended to include, and rather than deal with the 
problem you're trying to deal with, you're going to end up with 
the problem of more problems, more difficulty in resolving the 
very issues that you're trying to resolve.
    Mr. King. And now the witness' time has expired. Thank you.
    And I now recognize the gentlelady from California, Ms. 
Lofgren, for 5 minutes.
    Ms. Lofgren. Thank you, Mr. Chairman. I, because there's 
been so much discussion about the Office of Civil Rights' 
guidance on transgender students, I actually--it caused me to, 
rather than read the newspaper articles, to read the guidance, 
which was very instructive. And it really was issued in 
response to requests for guidance from schools all over the 
United States and I think is very measured in tone. But one of 
the things it says is, on page 2 or 3, that the departments 
treat a student's gender identity as the student's sex for 
purposes of Title IX and its implementing regulations.
    Now, there's a whole line of Federal cases that basically 
have found the same thing, that--and I'm not going to go into 
them now. But I'll just say this: You know, I don't usually 
call out witnesses, but here's what the written testimony says, 
and this is Mrs. Heriot. ``We are teaching young people a 
terrible lesson. If I believe that I am a Russian princess, 
that doesn't make me a Russian princess, even if my friends and 
acquaintances are willing to indulge my fantasy. Nor am I a 
great horned owl just because, as I have been told, I happen to 
share some personality traits with those feathered creatures.''
    I've got to say, I found this rather offensive. And it says 
to me that the witness really doesn't know anything and 
probably has never met a transgender child who is going 
through, in almost every case, a very difficult experience of 
finding themselves. And I believe that the Department's 
guidance will help schools all over the United States in 
preventing the kind of violence and harassment that these 
transgender kids find too often. So that's all I'm going to say 
on that. You know, I think it's very regrettable that that 
comment was put into the record and I think it's highly 
offensive.
    Now, I'd like to ask you a question, Mr.----
    Ms. Heriot. Well, could I comment on that, please?
    Ms. Lofgren. No, it's just my opinion. You have stated your 
opinion.
    Ms. Heriot. I think you'll find that many people find it 
very offensive that the Department of Education thinks that 
they can be----
    Ms. Lofgren. I think you're a bigot, Lady. I think you are 
an ignorant bigot. I think you are an ignorant bigot and anti--
--
    Mr. King. The gentlelady from California will suspend. You 
are out of order.
    Ms. Lofgren. She's out of order. It's my time, Mr. 
Chairman.
    Mr. King. We don't call names in this Committee. And you'll 
not be recognized to do that.
    Ms. Lofgren. Mr. Chairman, it is my time and I would just 
like to say that we allow witnesses to say offensive things, 
but I cannot allow that kind of bigotry to go into the record 
unchallenged. Now, I don't want to get into a debate about it.
    Ms. Heriot. Does that mean you think I am a Russian 
princess?
    Ms. Lofgren. I have no idea. I'd like to ask a question of 
Mr. Narang.
    I'd like to ask you, sir, you have agreed, I think, that 
Congress is ill-equipped to engage in the kind of work that 
agencies perform in these very technical and complex areas. I'm 
wondering if you have suggestions on how the Congress might 
approach some of these items, for example, in the science area, 
that are so complex and yet have a greater direction than has 
been complained of here today by some?
    Mr. Narang. Sure. Thank you, Congresswoman. Science is 
essential to grounding strong and effective regulation. I think 
that Congressman--congressional staffers should generally defer 
to the consensus, the clear consensus on scientific issues 
where there's ambiguity. I think that there, you know, 
generally is left--is better left to the agency experts, 
especially the agency scientists to make the--you know, to make 
the best determinations grounded on the most up-to-date and 
comprehensive science and scientific findings.
    So I think there's a role there for both Members of 
Congress and their staff to pay close attention to what the 
consensus of scientific findings are. But at the same time, 
it's--we need to rely on agency scientists when it comes to the 
difficult questions that require that kind of expertise.
    Ms. Lofgren. I would just note that I think it's not 
limited to science. I recently had occasion to reread section 
1201 of a statute, the DMCA. And at the end of the statute, we 
go on in some precision about beta, and VCRs, and Betamax, and 
magnetic strips. And you look at it now, it seems laughable 
that we would have put that in the statute about piracy. 
Obviously, people are opposed to piracy, but we would have been 
so much better off had we established goals and then allowed, 
instead of technology, that became dated and now looks 
ludicrous.
    Mr. Narang. So I entirely agree. If Congress wants to enact 
statutes that will stand the test of time that will be able to 
address emerging regulatory issues as they emerge, it's better 
left to the agency experts and it's better that Congress allow 
for those gaps to be filled by the experts as circumstances 
require.
    Ms. Lofgren. I yield back, Mr. Chairman.
    Mr. King. The gentlelady's time has expired and she yields 
back the balance.
    And the Chair recognizes the gentleman from Georgia, Mr. 
Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    Ms. Heriot, I think we can agree that the Framers of the 
Constitution were careful not to consolidate government power, 
or governmental power within any one of the three branches of 
government. Isn't that correct?
    Ms. Heriot. Uh-huh.
    Mr. Johnson. And we would also agree that the Framers 
prevented consolidation of power into any one branch of 
government by separating or dividing governmental functions 
between the three branches of government. Isn't that correct?
    Ms. Heriot. That, and checks and balances. So there's a 
mixture of powers as well as a separation of powers, but not a 
perfect separation of powers.
    Mr. Johnson. It's actually a diffusion of power between the 
three branches of government. Wouldn't you agree?
    Ms. Heriot. In a sense.
    Mr. Johnson. Yeah. It's a check and balance.
    Ms. Heriot. Checks and balances, yes.
    Mr. Johnson. So no particular power is too concentrated 
into any one particular branch so as to adhere to the concept 
of separation of powers. Correct?
    Ms. Heriot. With checks and balances.
    Mr. Johnson. That's right. And so the checks and balances 
have been in place since the founding of this great Nation, or 
at least since the passage of the Constitution. You would 
agree?
    Ms. Heriot. Some of them don't work so well anymore and 
that's part of why we're here. I think the need to----
    Mr. Johnson. Yeah, but----
    Ms. Heriot [continuing]. Design institutions that have the 
same sort of checks and balances that the Framers envisioned 
and, for example, I think that we----
    Mr. Johnson. Well, hold on 1 second. Hold on 1 second. I'm 
asking the questions. I would like for you to respond----
    Ms. Heriot. I thought I was doing that.
    Mr. Johnson [continuing]. To my questions. So are you 
arguing that we need a constitutional convention or a 
constitutional amendment to reign in executive overreach? Is 
that what you are arguing?
    Ms. Heriot. No. I think we can do it a lot more easily than 
that.
    Mr. Johnson. Okay. We can do it with the powers that the 
Framers have invested in this branch of government. Isn't that 
correct?
    Ms. Heriot. And I have some proposals for you.
    Mr. Johnson. I would hope that one day we would get to your 
proposals as opposed to having show hearings out of Task Forces 
created for political purposes.
    Ms. Heriot. My proposals are in my written testimony.
    Mr. Johnson. Well, I'm not so much arguing with you.
    Ms. Heriot. I'd love to talk about them.
    Mr. Johnson. I'm arguing with the body, with the--with my 
Republican friends who control this body. I mean, I view it as 
unnecessary to have a Task Force on Executive Overreach when 
the legislative branch has the very power to check and balance 
any perceived overreach by the executive branch.
    Ms. Heriot. And I've got some ideas for you.
    Mr. Johnson. Well, do you agree with me that this hearing 
seems to be unnecessary?
    Ms. Heriot. Well, if you turn----
    Mr. Johnson. I'll put it like this: What would be a better 
use of our time is perhaps marking up one of the legislative 
proposals that are outlined in your testimony? Isn't that 
correct?
    Ms. Heriot. I would love to work on that with you. What I 
would like to do is try and get----
    Mr. Johnson. What we are doing today--what we are doing 
today is basically wasting time. Aren't we?
    Ms. Heriot. Well, you see, the thing is, what I think is 
going on here is that we're talking past each other.
    Mr. Johnson. Well, we are wasting time is what we're doing.
    Ms. Heriot. Some of the Democrats are talking about 
regulations, about rules, and the people that have been invited 
by the Republicans are talking less about the rules and more 
about the guidances. The notion that we have certain kinds of 
methods by which administrative agencies make law, in a sense, 
through rule.
    Mr. Johnson. Ms. Heriot, you are a Republican yourself, are 
you not?
    Ms. Heriot. And As Mr. Narang was saying, maybe----
    Mr. Johnson. Are you a Republican?
    Ms. Heriot [continuing]. The procedures are a little gummed 
up. So what's happening is everything is being bypassed----
    Mr. Johnson. Are you a Republican, Ms. Heriot?
    Ms. Heriot [continuing]. With guidances, and we need to put 
some limits on guidances.
    Mr. Johnson. Okay. All right. So, Ms. Heriot, I want to 
move from you and ask Mr. Narang to answer my question.
    Are we wasting time here, sir?
    Mr. Narang. My response would be that if Congress has a 
particular problem with a guidance that's not going through 
rulemaking, pass a law to make that guidance go through 
rulemaking. If Congress has a particular problem with a 
regulation, pass a law to repeal that regulation. That is well 
within the powers of Congress and would be a clear direction to 
agencies.
    Mr. Johnson. Well, and would you discuss Congress' power of 
the purse as it bears on the issue of alleged executive 
overreach?
    Mr. Narang. There are many mechanisms at Congress' 
disposal, the power of the purse, and many mechanisms within 
Congress' dispensing of appropriations to control perceived 
executive overreach.
    Mr. Johnson. Is congressional gridlock a contributing 
factor to any executive overreach that may be claimed?
    Mr. Narang. I think it could be.
    Mr. Johnson. Do you think it is in this, given the paucity 
of legislative action by this particular Congress, compared to 
other Congresses? This one has been known as a do nothing 
Congress, if not the most do nothingest Congress in the history 
of the Nation. Would that bear upon this issue of alleged 
executive overreach?
    Mr. Narang. So if Congress has passed a law, that law 
delegates authority, in most circumstances, to agencies. 
Agencies use that authority. If subsequently Congress--a 
congressional inaction occurs, then those agencies are still 
more than allowed to use the congressional authority they have 
to issue regulations that protect the public's health and 
safety.
    Mr. Johnson. Well, Ms. Heriot, I would love to ask you that 
question, but I know that you will take it off wildly in a 
different direction.
    So at this point, I will waive--I will yield the balance of 
my time.
    Mr. King. The gentleman from Georgia returns the balance of 
his time.
    And this concludes today's hearing. And I want to thank all 
the witnesses for attending.
    Without objection, all Members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    I thank the witnesses and I thank the Members and the 
audience, and this hearing is now adjourned.
    [Whereupon, at 4:27 p.m., the Task Force was adjourned.]

                            A P P E N D I X

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