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THE VIEWS OF THE INDEPENDENT AGENCIES 

ON REGULATORY REFORM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND 

INVESTIGATIONS 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JULY 7, 2011 

Serial No. 112–71 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

JOE BARTON, Texas 

Chairman Emeritus 

CLIFF STEARNS, Florida 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO MACK, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

SUE WILKINS MYRICK, North Carolina 

Vice Chairman 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

BRIAN P. BILBRAY, California 

CHARLES F. BASS, New Hampshire 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

EDWARD J. MARKEY, Massachusetts 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

CHARLES A. GONZALEZ, Texas 

JAY INSLEE, Washington 

TAMMY BALDWIN, Wisconsin 

MIKE ROSS, Arkansas 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

(II)

(III) 

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

CLIFF STEARNS, Florida 

Chairman 

LEE TERRY, Nebraska 

JOHN SULLIVAN, Oklahoma 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

SUE WILKINS MYRICK, North Carolina 

BRIAN P. BILBRAY, California 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

CORY GARDNER, Colorado 

H. MORGAN GRIFFITH, Virginia 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

DIANA DEGETTE, Colorado 

Ranking Member 

JANICE D. SCHAKOWSKY, Illinois 

MIKE ROSS, Arkansas 

KATHY CASTOR, Florida 

EDWARD J. MARKEY, Massachusetts 

GENE GREEN, Texas 

DONNA M. CHRISTENSEN, Virgin Islands 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California (ex officio) 

(V) 

C O N T E N T S 

Page 

Hon. Cliff Stearns, a Representative in Congress from the state of Florida, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Diana DeGette, a Representative in Congress from the state of Colorado, 

opening statement ................................................................................................ 4 

Prepared statement .......................................................................................... 5 

Hon. Lee Terry, a Representative in Congress from the state of Nebraska, 

opening statement ................................................................................................ 6 

Hon. Henry A. Waxman, a Representative in Congress from the state of 

California, opening statement ............................................................................. 8 

Prepared statement .......................................................................................... 9 

Hon. Fred Upton, a Representative in Congress from the state of Michigan, 

prepared statement .............................................................................................. 10 

Hon. Sue Wilkins Myrick, a Representative in Congress from the state of 

North Carolina, prepared statement .................................................................. 11 

WITNESSES

Robert S. Adler, Commissioner, Consumer Product Safety Commission ............ 13 

Prepared statement .......................................................................................... 16 

Answers to submitted questions ...................................................................... 244 

Anne Northup, Commissioner, Consumer Product Safety Commission .............. 29 

Prepared statement .......................................................................................... 31 

Answers to submitted questions ...................................................................... 247 

Robert McDowell, Commissioner, Federal Communications Commission .......... 54 

Prepared statement .......................................................................................... 56 

Answers to submitted questions ...................................................................... 264 

Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission ................ 87 

Prepared statement .......................................................................................... 88 

Answers to submitted questions ...................................................................... 277 

Philip D. Moeller, Commissioner, Federal Energy Regulatory Commission ...... 97 

Prepared statement .......................................................................................... 99 

Answers to submitted questions ...................................................................... 277 

Jon Leibowitz, Chairman, Federal Trade Commission ........................................ 106 

Prepared statement .......................................................................................... 110 

Answers to submitted questions ...................................................................... 288 

William E. Kovacic, Commissioner, Federal Trade Commission ......................... 106 

Prepared statement .......................................................................................... 110 

Answers to submitted questions ...................................................................... 295 

SUBMITTED MATERIAL

Memorandum, dated February 2, 2011, from Cass R. Sunstein, Administrator 

of Office of Information and Regulatory Affairs, submitted by Mr. Stearns ... 152 

Report, dated July 2011, entitled, ‘‘Evaluation of the Consumer Product Safety Database,’’ submitted by Ms. DeGette ........................................................... 158 

Report, dated September 2010, entitled, ‘‘The Impact of Regulatory Costs 

on Small Firms,’’ submitted by Mr. Scalise ....................................................... 161 

(1) 

THE VIEWS OF THE INDEPENDENT AGENCIES 

ON REGULATORY REFORM 

THURSDAY, JULY 7, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON ENERGY AND COMMERCE, Washington, DC. 

The subcommittee met, pursuant to call, at 10:35 a.m., in room 

2322 of the Rayburn House Office Building, Hon. Cliff Stearns 

(chairman of the subcommittee) presiding. 

Members present: Representatives Stearns, Terry, Burgess, 

Blackburn, Bilbray, Scalise, Gardner, Griffith, Barton, DeGette, 

Schakowsky, Castor, Markey, Green, Christensen, and Waxman (ex 

officio). 

Staff present: Allison Busbee, Legislative Clerk; Stacy Cline, 

Counsel, Oversight; Todd Harrison, Chief Counsel, Oversight & Investigations; Brian McCullough, Senior Professional Staff Member, 

Commerce, Manufacturing, and Trade; Andrew Powaleny, Press 

Assistant; Alan Slobodin, Deputy Chief Counsel, Oversight; Sam 

Spector, Counsel, Oversight; Kristin Amerling, Democratic Chief 

Counsel and Oversight Staff Director; Michelle Ash, Democratic 

Chief Counsel, Commerce, Manufacturing, and Trade; Phil Barnett, 

Democratic Staff Director; Tiffany Benjamin, Democratic Investigative Counsel; Jocelyn Gutierrez, DOE Detailee; Karen Lightfoot, 

Democratic Communications Director, and Senior Policy Advisor; 

Felipe Mendoza, Democratic Counsel; Ali Neubauer, Democratic Investigator; and Roger Sherman; Democratic Chief Counsel, Communications and Technology. 

OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA 

Mr. STEARNS. Good morning, everybody. The Subcommittee on 

Oversight and Investigation will come to order, and there will be 

an opportunity for each of us to give an opening statement, and I 

shall open with mine. 

President Obama’s Executive Order 13563 states that agencies 

must take into account the costs and benefits of proposed regulations; use the least burdensome methods to achieve regulatory 

goals; maximize net benefits; and evaluate alternatives to direct 

regulation. 

The Order also requires agencies to conduct periodic reviews of 

significant regulations to determine whether they are outmoded, 

ineffective, insufficient, or excessively burdensome. These retrospective reviews have been required for more than 30 years, and 

2 

if conducted as intended, could be a crucial tool in reducing the 

burden of regulation on our economy today. 

As chairman of this subcommittee, I have set out to ensure that 

these goals are simply achieved. Regulations cost money, and in today’s weak economy, we cannot afford such burdens when they are 

totally unnecessary. During our June 3rd hearing, Mr. Cass 

Sunstein of OMB indicated that although independent agencies 

were not bound to comply with the Executive order, he believed 

that they should. 

Unfortunately, none of the independent agencies under the committee’s jurisdiction have to date complied with the Executive 

order. 

We are holding this hearing today to ask the CPSC, the FCC, the 

FTC and FERC to explain why they did not submit a regulatory 

review plan to Cass Sunstein by May 18th, as they were asked to 

do. While each of these agencies engages in some degree of regulatory review, none of them conduct the kind of top-to-bottom, regular retrospective review that will help to unburden our economy. 

The CPSC, perhaps more than any other agency today, seems determined, in our opinion, to pass regulations without even a hint 

of regulatory humility. Commissioner Northup will testify that 

CPSC regulations are estimated to cost industry billions of dollars 

with no cost-benefit analysis done to justify those regulations and 

no analysis done to show improved safety for our children. Commissioner Northup has also submitted for the record today a list of 

businesses that have closed their doors in part because of CPSC 

regulations. 

Now, we realize many of the CPSC’s most damaging regulations 

are required by the CPSIA, which has had a number of unintended 

consequences. Until Congress can act to reform that law, we would 

hope the CPSC would use its discretion where possible to comply 

with the President of the United States Executive order. Where 

CPSC doesn’t have discretion, we would hope the CPSC Democrat 

commissioners would be cooperative in helping this committee 

identify where they need more discretion rather than sending lastminute partisan letters meant to derail the reform process. 

Meanwhile, Congress asserted deregulatory goals in regard to 

the FTC decades ago, removing its authority to operate under the 

Administrative Procedure Act and instead instituting Mag-Moss 

procedures, created under a Democratic Congress to halt the agency from further significant rulemaking. Today, the agency resorts 

to rulemaking through orders and guidelines that do not undergo 

a notice and comment process. 

Although FERC does not issue a large number of regulations, 

there is room to improve in its rulemaking and regulatory review 

also. FERC regulations call for broad ranges of data sets without 

a clear indication on how the agency utilizes this information. It 

has not conducted a top-to-bottom review of its regulations since 

the Clinton Administration. And it is unclear what, if any, costbenefit analysis is done of the impact its policies have on the energy industry and consumers. 

Now, as for the FCC, in drafting both the Communications and 

Telecommunications Acts, Congress emphasized the importance of 

deregulation. The FCC is required to review its telecommunications 

3 

regulations every 2 years and its media ownership rules every 4 

years. But these reviews fall short of what the President and this 

committee have asked agencies to do. They only cover a narrow set 

of rules at the FCC and the commission can’t seem to get these reviews done on time, and the commission hasn’t repealed or modified any significant regulations in recent review periods. Perhaps 

that is because the commission is too busy taking conclusion-driven 

actions, such as the Net Neutrality Order and the Chairman’s Section 706 report. 

So my colleagues, I look forward to learning more about what 

each agency will do to adopt the principles of the President’s Executive order. I hope the format of this hearing gives you all the opportunity to learn about what other agencies are doing to improve 

these processes. 

[The prepared statement of Mr. Stearns follows:] 

PREPARED STATEMENT OF HON. CLIFF STEARNS

President Obama’s Executive Order 13563 states that agencies must take into account costs and benefits of proposed regulations; use the least burdensome methods 

to achieve regulatory goals; maximize net benefits; and evaluate alternatives to direct regulation. The Order also requires agencies to conduct periodic reviews of significant regulations to determine whether they are outmoded, ineffective, insufficient, or excessively burdensome. These retrospective reviews have been required for 

more than 30 years, and if conducted as intended, could be a crucial tool in reducing 

the burden of regulation on our economy. 

As Chairman of this Subcommittee I have set out to ensure that these goals are 

achieved. Regulations cost money, and in today’s economy we cannot afford such 

burdens when they are unnecessary. During our June 3 hearing, Cass Sunstein of 

OMB indicated that although independent agencies were not bound to comply with 

the Executive order, he believed that they should. Unfortunately, none of the independent agencies under the Committee’s jurisdiction have to date complied with the 

Executive order. 

We are holding this hearing today to ask the CPSC, FCC, FTC, and FERC to explain why they did not submit a regulatory review plan to Cass Sunstein by May 

18, as they were asked to do. While each of these agencies engages in some degree 

of regulatory review, none of them conduct the kind of top to bottom, regular retrospective review that will help to unburden our economy. 

The CPSC, perhaps more than any other agency here today, seems determined 

to pass regulations without even a hint of regulatory humility. Commissioner 

Northup will testify that CPSC regulations are estimated to cost industry billions 

of dollars with no cost benefit analysis done to justify those regulations and no analysis done to show improved safety for children. Commissioner Northup has also submitted for the record today a list of businesses that have closed their doors in part 

because of CPSC regulations. 

We realize many of the CPSC’s most damaging regulations are required by the 

CPSIA, which has had a number of unintended consequences. Until Congress can 

act to reform that law, we would hope the CPSC would use its discretion where possible to comply with the President’s Executive order. 

Where CPSC doesn’t have discretion, we would hope the CPSC Democrat Commissioners would be cooperative in helping this Committee identify where they need 

more discretion rather than sending last minute partisan letters meant to derail the 

reform process. 

Meanwhile, Congress asserted deregulatory goals in regard to the FTC decades 

ago, removing its authority to operate under the Administrative Procedure Act and 

instead instituting Mag-Moss procedures—created under a Democratic Congress to 

halt the agency from further significant rulemaking. Today, the agency resorts to 

rulemaking through Orders and Guidelines that do not undergo a notice and comment process. 

Although FERC does not issue a large number of regulations, there is room to 

improve in its rulemaking and regulatory review. FERC regulations call for broad 

ranges of data sets without a clear indication on how the agency utilizes this information. It has not conducted a top to bottom review of its regulations since the ClinVerDate Nov 24 2008 10:37 Feb 15, 2012 Jkt 037690 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-71 070711\112-71 CHRIS
4 

ton Administration. And it’s unclear what (if any) cost-benefit analysis is done of 

the impact its policies have on the energy industry and consumers. 

As for the FCC, in drafting both the Communications and Telecommunications 

Acts, Congress emphasized the importance of deregulation. The FCC is required to 

review its telecommunications regulations every two years and its media ownership 

rules every four years. But these reviews fall short of what the President and this 

Committee have asked agencies to do. They only cover a narrow set of rules at the 

FCC. The Commission can’t seem to get these reviews done on time. And the Commission hasn’t repealed or modified any significant regulations in recent review periods. Perhaps that’s because the Commission is too busy taking conclusion driven 

actions, such as the Net Neutrality order and the Chairman’s Section 706 report. 

I look forward to learning more about what each agency will do to adopt the principles of the President’s Executive order. I hope the format of this hearing gives you 

all the opportunity to learn about what other agencies are doing to improve their 

processes. 

Mr. STEARNS. With that, I yield to the ranking member, Ms. 

DeGette. 

OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Ms. DEGETTE. Thank you so much, Mr. Chairman. 

This is the fourth in a series of hearings examining the government’s regulatory review process, and I frankly am pleased to hear 

you today embrace the President’s Executive order that sets forth 

principles of regulation protecting public health, welfare, safety 

and the environment while at the same time promoting economic 

growth and competitiveness. I thought that Cass Sunstein was an 

excellent witness talking to us about how we can all agree on a bipartisan basis that we should eliminate unnecessary regulations at 

the agencies. 

Now, today we have witnesses, and I am happy to welcome all 

of them, particularly our former colleague, Congresswoman 

Northup, and these witnesses represent four important independent federal agencies: the Consumer Product Safety Commission, the Federal Energy Regulatory Commission, the Federal Communications Commission, and the Federal Trade Commission. 

Now, Congress created these agencies as independent entities, and 

so therefore, as you noted, Mr. Chairman, they are not covered explicitly by the President’s Executive order on regulatory review. 

But it is important, though, for the subcommittee and the public 

to understand whether the independent regulatory review processes at these agencies are effective and efficient. 

I would like to correct the record. Mr. Sunstein when he testified, 

he said he had urged these independent agencies to conduct regulatory review processes but he did not say that they should submit 

reports to him like the agencies under the purview of the Executive 

order, so I was a little confused, Mr. Chairman, when you had said 

that somehow they should submit reports because not only are they 

not required to but Mr. Sunstein himself does not believe that 

these agencies are directly subject to the Executive order and that 

is an order to pervert any President, Democrat or Republican, from 

overreaching their authority. 

Now, as we hear from these agencies on their regulatory review 

efforts, I think we need to keep a few thoughts in mind. First of 

all, these agencies were created originally as independent entities 

5 

to insulate them from political influence and we have given them 

decision-making flexibilities that other agencies do not have. Secondly, irrespective of the Executive order, as I mentioned, there are 

a number of statutory requirements concerning transparency and 

efficiency in the regulatory process that already apply to the independent agencies. For example, the Regulatory Flexibility Act requires federal agencies, including independent agencies, to analyze 

the impact of their rules on small organizations. The Administrative Procedure Act broadly lays out the scheme under which agencies propose and finalize regulations, and provides for public participation in the rulemaking process. 

Finally, it is important to remember that the underlying mission 

of all of the agencies before us today is to ensure the safety and 

the health of all of our citizens. While we should make sure that 

the regulations they propose are well crafted and not overly burdensome, we should also acknowledge the importance of the work 

hey do and the regulations they promulgate. For example, this 

year, the FCC issued a report and order to adopt a rule requiring 

mobile providers to enter data roaming arrangements with other 

providers, allowing consumers to remain connected when they travel outside of their provider’s coverage area. FTC recently established the Do Not Call registry, which lets consumers choose 

whether they want to receive calls from telemarketers. This is wildly popular with my constituents, by the way. And every day, FERC 

acts as a neutral adjudicatory body handling extremely complicated 

technical issues on the electricity market. 

But I want to talk just in the last minute that I have about the 

recent proposals on the other side of the aisle that would undermine the Consumer Product Safety Commission and some of the 

other good work that they have done. Three years ago, this committee and this Congress worked hard in a significantly bipartisan 

manner to put meaningful reforms for consumers into the Consumer Product Safety Improvement Act. This has yielded unbelievable benefits. The CPSC has initiated a wide range of recent efforts 

to protect children from mandatory standards to cribs to the problem of dangerous toys to banning certain phthalates, and on and 

on. And this evidence shows that it is beginning to happen. 

So I think it is important to notice that these reforms were 

worked out by this committee in one of the last great efforts that 

was completely bipartisan. We should embrace that. If there are 

problems with the way the regulations are being promulgated, we 

need to talk about that, but eliminating these important consumer 

product safety provisions is simply not an option. 

Thank you, Mr. Chairman. 

[The prepared statement of Ms. DeGette follows:] 

PREPARED STATEMENT OF HON. DIANA DEGETTE

Today, we are holding the fourth in a series of hearings examining the Federal 

Government’s regulatory review process. The Subcommittee has been focused in particular on President Obama’s Executive order setting forth principles of regulation 

that include protecting public health, welfare, safety, and the environment while 

promoting economic growth and competitiveness; and providing for public participation and transparency. 

The witnesses before us today represent four important federal agencies: the Consumer Product Safety Commission, the Federal Energy Regulatory Commission, the 

6 

Federal Communications Commission, and the Federal Trade Commission. Because 

Congress created these agencies as independent entities, they are not covered by the 

President’s Executive order on regulatory review. It is important, however, for the 

Subcommittee and the public to understand whether the regulatory process employed by each of these agencies is effective and efficient. 

As we hear from these agencies on their regulatory review efforts, we should keep 

a few thoughts in mind. First, Congress created these agencies as independent entities to insulate them from political influence and granted them decisionmaking flexibilities other agencies do not have. 

Second, irrespective of the Executive order there are a number of statutory requirements concerning transparency and efficiency in the regulatory process that already apply to the independent agencies. For example, the Regulatory Flexibility 

Act requires federal agencies, including independent agencies, to analyze the impact 

of their rules on small organizations. The Administrative Procedure Act broadly lays 

out the scheme under which agencies propose and finalize regulations, and provides 

for public participation in the rulemaking process. 

Finally, it is important to remember that the underlying mission of all of the 

agencies before us today is to ensure the health and safety of our citizens. While 

we should make certain the regulations they propose are well crafted, we must also 

acknowledge the importance of the work that they do and the regulations they promulgate. For example: 

o This year, FCC issued a report and order to adopt a rule requiring mobile providers to enter data roaming arrangements with other providers, allowing consumers to remain connected when they travel outside of their provider’s coverage 

area. 

o FTC recently established the Do-Not-Call registry, allowing consumers to choose 

whether they want to receive calls from telemarketers. 

o CPSC has initiated a wide range of recent efforts to protect our children, from 

developing mandatory standards for cribs . to addressing the problem of dangerous 

toys . to banning certain phthalates in children’s products. 

o And every day, FERC acts as a neutral adjudicatory body handling extremely 

complicated technical issues concerning our electricity market. Through its work the 

Commission limits regional disparities in electricity, natural gas, and oil pricing. 

I am pleased that we have before us today Commissioners from both parties. One 

of the ways Congress ensured bipartisan input at these agencies was to provide that 

no more than three Commissioners at the agencies can be of the same party. I hope 

that the Subcommittee will use this opportunity to hear a variety of perspectives 

on how to best ensure an effective regulatory process at the independent agencies, 

and that avoid focusing on policy or personality disagreements among Commissioners. I look forward to hearing from our distinguished witnesses. 

Mr. STEARNS. I thank the gentlelady. 

The gentleman from Nebraska, Mr. Terry, is recognized for 3 

minutes. 

OPENING STATEMENT OF HON. LEE TERRY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEBRASKA 

Mr. TERRY. Well, thank you, Mr. Chairman. I appreciate you 

holding this important regulatory reform hearing. 

I applauded the President when he issued his Executive order 

creating this cost-benefit analysis and look towards creation of jobs 

versus elimination of jobs by regulation, and I feel that it is time 

that the independent agencies adopt this and that is why I have 

introduced H.R. 2204, the Employment Act, which will require that 

all major regulations include a statement of the number of jobs created, lost, or sent overseas because of the new rules and regulations. Under this Act, all major federal action significantly affecting 

jobs and job opportunities require rigorous analysis compared to 

that given to the environmental impacts, and this legislation would 

establish a policy that jobs are important as is public health and 

the environment. And this would be an issue of, you could take into 

effect the jobs lost by certain American toy companies when we figVerDate Nov 24 2008 10:37 Feb 15, 2012 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-71 070711\112-71 CHRIS
7 

ure out that children don’t eat ATVs but yet banning children 

ATVs could have an impact on jobs. 

Now, we have already seen the problems caused by regulators 

not paying enough attention to the effect their actions have on jobs. 

In my own district, regulations enacted by the Consumer Product 

Safety Commission acting far beyond its authority or intent of this 

law, what I feel isn’t one of the most important ones, it is important but I think it may be an example of one of the most poorly 

written bills too. For example, Wes and Willie’s. I shouldn’t have 

used their name but it is a local small business making children’s 

clothes, some of which they have contracted to have done in China 

as well as Omaha. Does it really make sense that the same design 

has to be tested on every size of tee shirt, different color of tee 

shirts? Does it make sense that they have to add 10 tee shirts together assuming a child is going to completely eat 10 tee shirts in 

one sitting? None of this really makes sense. 

So this type of system where it is one size fits all, Mattel versus 

Wes and Willie’s, it really doesn’t make a lot of sense. I have found 

out the irony is that many of these rules don’t really protect the 

consumers but just make it more difficult to do their job, really 

putting small businesses in particular on the brink of extinction because of these unnecessary rules and regulations. 

So I appreciate this hearing so we can protect, and I will give my 

time back to the chairman. 

Mr. STEARNS. I thank the gentleman, and I yield 2 minutes to 

the gentlelady from Tennessee, Mrs. Blackburn. 

Mrs. BLACKBURN. Thank you, Mr. Chairman, and welcome to our 

witnesses. We appreciate that you are here to talk with us about 

the President’s Executive Order 13563 and its non-application to 

the independent agencies. 

These agencies have refused to voluntarily comply with the order 

to require justification for the cost and the burdens of their regulations. Some agencies believe that their political ends justify their 

regulatory means and that their insulation from the traditional 

checks and balances is a blank check for them to pursue 

hyperactivist causes. Bureaucrats bolted a restrictor plate to our 

economic engine and they really have flagged private sector job 

growth to the pits and now they are resisting voluntary compliance 

with the Obama order because failing to justify their costly regulations means Congress and the American people are going to raise 

more questions instead of delegating more power and authority. 

Now, these agencies don’t know how to make the best individual 

decisions for us, what foods we eat, what toys we buy, what privacy 

settings we want on our mobile devices or what light bulbs we prefer to use in our homes. These agencies that use explicit regulatory 

intimidation and threats of government taking to impose voluntary 

regulations on job creators aren’t even willing to hold themselves 

to the same standard. They refuse. We need to hold these agencies 

accountable. Let us ensure greater efforts are taken to balance the 

economic harms with the agencies that these agencies are causing 

on our economic growth and jobs, and I yield back. 

Mr. STEARNS. The gentlelady yields back, and I recognize the distinguished ranking member, Mr. Waxman, for 5 minutes for his 

opening statement. 

8 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

This is the fourth hearing this subcommittee has had on the 

issue of regulations. The others have been on the President’s Executive order, and the third focused on health regulations that were 

recently adopted. Now we are looking at the independent regulatory agencies. The President’s Executive order applies to those 

agencies that are under the Office of Management and Budget. 

They are not independent. The agencies before us are determined 

by law to be independent. That doesn’t mean they don’t take into 

consideration costs and benefits when they issue regulations. They 

have to have notice and comment and get full input. I think that 

what we need to do is to make sure we don’t have regulations that 

are unnecessary but these hearings that we have had devolved into 

forums for questioning health, environment, and consumer protection laws that my colleagues on the Republican side of the aisle 

find objectionable. I was struck by the comments of the last speaker that we don’t want these independent agencies, they don’t make 

good decisions, they don’t know how to make the best decisions, 

they are using regulatory intimidation on jobs creators. I can think 

of no other expression of hyper view of all this. We shouldn’t have 

a lopsided focus on the costs with no seeming consideration of the 

benefits, and we haven’t had hearings that have resulted in any 

substantial legislation or important oversight findings. 

Now, the four independent agencies have done a lot to make the 

lives of American citizens better. The Consumer Product Safety 

Commission recently launched a new consumer complaint database, which allows parents and concerned consumers to obtain important product safety information and which will improve CPSC’s 

ability to identify trends in product hazards more efficiently. Just 

this morning, I released the first analysis of the product safety 

database. We found that in its first 3 months of operation, the 

database has already logged over 1,600 incident reports, including 

reports of almost 500 injuries or fatalities. And consumers visiting 

the online database have conducted almost 1.8 million product 

searches. Now, maybe some of these manufacturers don’t want anybody looking over their shoulder but that is not the job of these 

agencies to do what the manufacturers want. Their job at the 

CPSC is to protect the consumers. 

Mr. Chairman, I would ask unanimous consent that this report 

be included as part of the committee record. 

Mr. STEARNS. Will the gentleman hold? I think we just have a 

copy of it. 

Mr. WAXMAN. I will withdraw my—— 

Mr. STEARNS. Just withdraw until we have a chance to look at 

it. 

Mr. WAXMAN. The FCC just proposed rulemaking to require cell 

phone companies to provide usage alerts that warn consumers of 

unexpected charges on their bills. Less than 7 months ago, the 

agency adopted a crucial rule to protect the openness of the Internet. I think these are two very important accomplishments, and 

Ms. DeGette pointed out others. The FTC has recently adopted 

9 

rules to protect homeowners from scams falsely promising relief 

from mortgage payments. In the last year alone, the FTC’s Bureau 

of Consumer Protection filed over 60 cases to protect the rights of 

consumers. Is this intimidation? It seems to me these agencies are 

doing their job, and we want to keep them independent from the 

political pressure that you can see clearly in the comments of members of this committee. FERC protects consumers from price 

gouging in the electricity and energy markets. 

These accomplishments are important. They save money for the 

American public, prevent fraud and improve public safety and public health. They may offend powerful companies that would like to 

take advantage of consumers, and which may have support by 

some members of Congress in carrying their water, but that is no 

reason for us to browbeat the agencies. The focus of our oversight 

should be to help these agencies advance the goal of enhancing the 

lives of the American family. 

Our committee is responsible in the area of legislation in some 

key areas: health care for seniors, setting our Nation’s energy policy, promoting telecommunications innovation and competitiveness, 

and ensuring appropriate consumer protections for American families and children. The oversight work of this subcommittee should 

shed light on how to best legislate in these and other important 

subjects. 

That is why there are real costs when this committee focuses its 

time on partisan wheel spinning and messaging. We lose the opportunity to move legislation that will promote jobs, promote economic 

security and protect the health, safety and welfare of the American 

public. 

I hope that we make good use of our time today with the commissioners, and I urge the chairman and all members to support their 

efforts on behalf of the American public, and I yield back the balance of my time. 

[The prepared statement of Mr. Waxman follows:] 

PREPARED STATEMENT OF HON. HENRY A. WAXMAN

Today, this subcommittee is holding its fourth hearing on regulatory reform. The 

first two hearings focused on the President’s Executive order on regulatory review. 

The third hearing focused on the Administration’s recent health regulations. 

This time we are focusing on four independent agencies—the Consumer Product 

Safety Commission, the Federal Communications Commission, the Federal Energy 

Regulatory Commission, and the Federal Trade Commission—which are not subject 

to the President’s Executive order. 

I support efforts to ensure that federal regulations are clearly drafted and narrowly tailored, and I believe in transparency and eliminating needless regulation. 

But the focus of the Subcommittee’s hearings on regulatory review thus far has not 

been on improving the regulatory process. These hearings have devolved into forums 

for questioning health, environment, and consumer protection laws that my colleagues on the other side of the aisle find objectionable. These sessions also have 

been marked by a lopsided focus on costs with no seeming consideration of benefits. 

And they have not resulted in any substantial legislation or important oversight 

findings. 

The four independent agencies before us have done a lot to make the lives of 

American citizens better. 

The Consumer Product Safety Commission recently launched a new consumer 

complaint database, which allows parents and concerned consumers to obtain important product safety information and which will improve CPSC’s ability to identify 

trends in product hazards more efficiently. Just this morning, I released the first 

analysis of the product safety database. We found that in its first three months of 

10 

operation, the database has already logged over 1,600 incident reports, including reports of almost 500 injuries or fatalities. And consumers visiting the online database 

have conducted almost 1.8 million product searches. 

Mr. Chairman, I ask that this report be included as part of the Committee record. 

The FCC just proposed a rule to require cell phone companies to provide usage 

alerts that warn consumers of unexpected charges on their bills. Less than 7 months 

ago, the agency adopted a crucial rule to protect the openness of the Internet. 

The FTC has recently adopted rules to protect homeowners from scams falsely 

promising relief from mortgage payments. In the last year alone, the FTC’s Bureau 

of Consumer Protection filed over 60 cases to protect the rights of consumers. 

And FERC protects consumers from price gouging in the electricity and energy 

markets. 

These accomplishments are important. They save money for the American public, 

prevent fraud, and improve public safety and public health. They may offend powerful companies that would like to take advantage of consumers, but that is no reason 

for us to browbeat the agencies. The focus of our oversight should be to help these 

agencies advance the goal of enhancing the lives of American families. 

Our Committee is responsible for forging legislation in key areas: providing health 

care for seniors; setting our nation’s energy policy; promoting telecommunications 

innovation and competitiveness; and ensuring appropriate consumer protections for 

American families and children. The oversight work of this Subcommittee should 

shed light on how to best legislate in these and other important areas. 

That is why there are real costs when the Committee focuses its time on partisan 

wheel-spinning and messaging: we lose the opportunity to move legislation that will 

promote jobs, promote the economic security, and protect the health, safety, and 

welfare of the American public. 

I hope the Subcommittee makes good use of our time today with the Commissioners, and I urge the Chairman and all members to support their efforts on behalf 

of American families. 

Mr. STEARNS. I thank the gentleman, and all opening statements 

are concluded. 

I ask unanimous consent that the written opening statement of 

Mr. Upton and others who wish to provide opening statements for 

this hearing be made part of the record. Without objection, the documents will be entered into the record. 

[The prepared statements of Mr. Upton and Mrs. Myrick follow:] 

PREPARED STATEMENT OF HON. FRED UPTON

In January, President Obama issued Executive Order 13563 and joined a government-wide dialogue about regulatory reform. While he is not the first president who 

has tried to tackle this challenge, his stated commitment to reining in overregulation was a hopeful first step this year. Regulatory relief is essential to a strong economic recovery and boosting job creation. That’s why it plays a leading role in the 

GOP’s Plan for America’s Job Creators. 

Five months later, however, I must say that I am disappointed with the Executive 

order’s results. The President’s stated goals are far from being realized and nowhere 

is that more true than among the independent regulatory agencies. 

The Office of Information and Regulatory Affairs estimates that independent 

agencies have a $230 billion a year impact on the U.S. economy—not an insignificant figure. Nevertheless, Executive Order 13563, like those which preceded it, does 

not expressly apply to these agencies. 

According to a February guidance memo sent by OIRA Administrator Cass 

Sunstein, the independent agencies ‘‘are encouraged to give consideration to all [of 

the Executive order’s] provisions. . .Such agencies are encouraged to consider undertaking, on a voluntary basis, retrospective analysis of existing rules.’’ Shamefully, 

at this Subcommittee’s June 3, 2011 hearing, Mr. Sunstein confirmed for us that 

not one of the independent agencies under this Committee’s jurisdiction had voluntarily submitted to his office such a plan. 

In a June 1st letter to the editor printed in the Wall Street Journal, Nancy Nord, 

a Commissioner of the Consumer Product Safety Commission, noted that, under the 

Obama administration, CPSC has ‘‘ignored the recent direction to look for and eliminate burdensome regulations. We are just too busy putting out new regulations.’’ 

Two of Ms. Nord’s fellow CPSC Commissioners are here today, along with several 

other representatives from independent agencies. I hope they can provide us with 

11 

an update on their efforts to provide regulatory relief and answer troubling questions about what appears to be inaction until now in complying with the letter and 

spirit of the President’s Executive order. 

Independent regulatory agencies contribute their fair share of burdensome regulations that affect all aspects of our economy and stifle job creation. The President’s 

push for regulatory reform is meaningless if independent regulatory agencies are 

left out of this effort. 

PREPARED STATEMENT OF HON. SUE WILKINS MYRICK

I appreciate the Subcommittee’s examination of how independent agencies are approaching the ‘‘Improving Regulation and Regulatory Review’’ Executive order 

issued by President Obama. As we’re all well aware, regulations can create unnecessary burdens that hinder economic development and job creation. 

An electric utility headquartered in my home state of North Carolina is tangled 

up in an ongoing hydropower relicensing problem which I think exemplifies the real 

world detriment that can result from a lack of coordination at the federal level. 

As I understand it, Duke Energy is trying to relicense a set of dams in the Catawba-Wateree river basin in South Carolina. Working with local stakeholders and 

the local office of the National Marine Fisheries Service (NMFS), the Federal Energy Regulatory Commission (FERC) agreed to incorporate a set of recommendations to protect the endangered short-nose sturgeon as part of the project’s Final Environmental Impact Statement for the project. Unfortunately, the regional NMFS in 

St. Petersburg, Florida ultimately recommended a different set of recommendations 

that continue to delay the relicensing process. 

Not only does this seem to be a case in which two federal entities cannot agree 

on the appropriate path forward, it highlights a case in which two offices within the 

same agency cannot agree. A NMFS office several hundred miles away is substituting its judgment for a local office that has been involved throughout the process. Aside from affecting utility rates paid by consumers in North Carolina and South 

Carolina, the provisions sought by the regional NMFS office could potentially jeopardize a carefully-negotiated water rights apportionment settlement. 

Sadly, the Catawba-Wateree relicensing issue is just one of many situations in 

which federal regulatory actions harm Americans. It is my hope that today’s hearing 

will lead to improvements in the regulatory environment. 

Mr. STEARNS. Now it is my opportunity to welcome our distinguished panel. I don’t remember in my experience in Congress 

where I have ever seen these many agencies collected together, and 

I don’t think there ever has been, at least in my experience. So it 

is a very auspicious occasion to have this distinguished group here 

to meet, and we appreciate you coming. 

I thought for the members I would just give you a brief bio of 

each of the witnesses. Commissioner Robert Adler, Consumer Product Safety Commissioner, is a commissioner at the United States 

Consumer Product Safety Commission. He was appointed in August 2009. Prior to assuming office, he served as a professor of 

legal studies at the University of North Carolina at the Luther 

Hodges Junior Scholars in Ethics in Law at Chapel Hill’s KenanFlagler Business School. At the University of North Carolina, he 

served as the Associate Dean of the MBA program as Associate 

Dean of the school’s bachelor of science in business. Welcome. 

Commissioner Anne Northup is the honorable—in fact, she 

serves the 3rd Congressional District of Kentucky representing 

Louisville district in the United States House of Representatives as 

a Republican from 1997 to 2006. Before her tenure in Congress, she 

served in the Kentucky House of Representatives for 9 years from 

1987 to 1996. On July 30, 2009, President Obama nominated her 

to a seat on the Consumer Product Safety Commission and was 

confirmed by the Senate on August 7, 2009. Welcome, Anne. 

12 

Commissioner Robert McDowell was first appointed to a seat on 

the Federal Communications Commission by President Bush in 

2006. He was reappointed to the commission by President Barack 

Obama in 2009. He brings over 16 years of private sector experience in the telecommunications industry to the commission. Welcome. 

Chairman Jon Wellinghoff was named chairman of the Federal 

Energy Regulatory Commission, FERC, the agency that oversees 

wholesale electric transaction and interstate electric transmission 

and gas transportation in the United States by President Obama 

on March 19, 2009, a member of the commission since 2006. The 

U.S. Senate confirmed him to a full 5-year FERC term in December 

2009. He is an energy specialist with more than 34 years experience in the field. Welcome. 

Commissioner Philip Moeller is currently serving his second term 

on the commission of FERC, having been nominated by President 

Obama and sworn in for a term expiring on June 30, 2015. He was 

first nominated to FERC by President Bush in 2006 and sworn into 

office on July 24, 2006. From 1997 through 2000, he worked in 

Congress, serving as an energy policy advisor to Senator Slade Gordon, where he worked on electricity policy. 

And then we have Chairman Jon Leibowitz from the Federal 

Trade Commission. He served as chairman of this commission since 

February 2009. He was appointed to the FTC as commissioner in 

the fall of 2004. Before coming to the commission, he had a long 

career in the public sector, working for the U.S. Senate Judiciary 

Committee for almost 10 years, and prior to that, in the office of 

Senator Paul Simon. Welcome. 

Commissioner William Kovacic served on the Federal Trade commission since January 2006 and served as chairman from March 

2008 to March 2009. He was the FTC’s General Counsel from 2001 

through 2004 and worked for the commission from 1979 until 1983. 

He has been a professor of law at George Washington University 

Law School and has also taught law at George Mason University 

School of Law. Welcome. 

As you know, the testimony that you are about to give is subject 

to Title 18, section 1001 of the United States Code. When holding 

an investigative hearing, this committee has the practice of taking 

testimony under oath. Do any of you have any objection to testifying under oath? No? OK. 

The Chair then advises you that under the rules of the House 

and the rules of the committee, you are entitled to be advised by 

counsel. Do you desire to be advised by counsel during your testimony today? If not, then if if you would please rise and—— 

Mr. BILBRAY. Mr. Chairman. 

Mr. STEARNS. Yes? 

Mr. BILBRAY. I hate to interrupt right now, but one thing I would 

ask, at least of one member here, is that pictures are not taken 

while they are being sworn in. I know this is done, but I just think 

that is unfair to the witnesses. I think it sends a message that it 

is not appropriate and I would ask the camera people not to take 

a picture of individuals with their right hand raised. I just think 

it is used to often to send the wrong message to the public. Everyone here is voluntarily participating and we should not be giving 

13 

a false impression to the public. That is just one member’s statement but I think in the environment of fairness on both sides, I 

am going to raise this issue again and again, and I am doing that 

today, and I apologize. 

Mr. STEARNS. I thank the chairman, and as you know, he and 

I are good friends. Unfortunately, I will have to overrule you. I 

think the press has a right to take pictures when they want, and 

I think that is probably what I have seen in my experience being 

involved with so many Oversight and Investigation hearings as 

well as others that it is customary to let the press have access, so 

I am sorry to have to overrule you. And if all of you would please 

stand up and raise your right hand? 

[Witnesses sworn.] 

Mr. STEARNS. Well, it is my pleasure now to start with the opening statements, and Mr. Adler, we welcome you and look forward 

to your statement. 

TESTIMONY OF ROBERT S. ADLER, COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION; ANNE NORTHUP, 

COMMISSIONER, CONSUMER PRODUCT SAFETY COMMISSION; ROBERT MCDOWELL, COMMISSIONER, FEDERAL COMMUNICATIONS COMMISSION; JON WELLINGHOFF, CHAIRMAN, FEDERAL ENERGY REGULATORY COMMISSION; PHILIP 

D. MOELLER, COMMISSIONER, FEDERAL ENERGY REGULATORY COMMISSION; JON LEIBOWITZ, CHAIRMAN, FEDERAL TRADE COMMISSION; AND WILLIAM E. KOVACIC, COMMISSIONER, FEDERAL TRADE COMMISSION 

TESTIMONY OF ROBERT S. ADLER 

Mr. ADLER. Thank you very much, and good morning, Chairman 

Stearns, Ranking Member DeGette and the members of the Subcommittee on Oversight and Investigations. Thank you for the opportunity to testify along with my colleague, Anne Northup, on behalf of the Consumer Product Safety Commission. My name is Bob 

Adler and I have been a commissioner at the agency since August 

of 2009. 

I am honored to sit in the company of so many of my fellow independent agency commissioners, and I bring you regrets from Chairman Tenenbaum, who is not able to be here today. 

In order for me to respond to the subcommittee’s request for the 

agency’s response to Executive Order 13563 and similar Executive 

orders, I briefly need to review a few critical points about rulemaking at the CPSC. I do so to make the point that we have undertaken the promulgation of regulations and their retrospective 

review in the full spirit of the policies incorporated in the Executive 

orders despite our being exempt from the orders, so I would like 

to make a few observations and I promise I will be brief. 

First, since 1981, the CPSC has been required under amendments to the Consumer Product Safety Act and to the other acts 

that it enforces to conduct an exhaustive cost-benefit analysis when 

we write safety rules. Under these amendments, our cost-benefit 

approach is as comprehensive, if not more so, as that set forth in 

any Executive order issued by the Office of the President, and I 

think in the case of any other agency. In fact, over the years, in 

14 

part because of the detailed and lengthy cost-benefit procedures 

contained in our laws, the commission has actually promulgated 

very few mandatory safety rules under these procedures. 

Now, I did a count, so I could be off by one or two, but by my 

count, in 30 years we have issued a grand total of nine mandatory 

safety standards, or about one every 31⁄3 years, which has meant 

we have had to turn to alternative approaches, one of which is 

working with the voluntary standards sector to promulgate voluntary standards and to upgrade voluntary standards. The other 

thing that we have done is to work through a very successful corrective action recall program, and I think that has been successful. 

With respect to regulatory review, you did note the passage of 

the Regulatory Flexibility Act in 1980. At that time, the CPSC 

choose to undertake a retrospective review of every safety rule 

under its jurisdiction from the very beginning, not just those identified as having a significant impact on a substantial number of 

small economic entities. Since this review, we have continued for 

the past 30 years to comply with the requirements for retrospective 

review of our regulations under the Regulatory Flexibility Act. 

In addition to conducting a retrospective review of regulations 

under the RFA, the CPSC has voluntarily undertaken a comprehensive review of its regulations beginning in 2004 and temporarily suspended in 2007 in a spirit consistent with Executive 

Order 13563. In fact, in conducting our review, we have committed 

the agency to using OMB’s assessment tool. The only departure 

from our approach arises because of the enactment of the Consumer Product Safety Improvement Act in 2008. In response to its 

grave concerns about the need to protect the lives of young children, Congress voted overwhelmingly, and in the House it was a 

vote of 424 to 1, to set a number of very tight guidelines for the 

commission to meet. Our general counsel did a count of the number 

of deadlines imposed on us. There were 42 separate deadlines imposed by the Consumer Product Safety Improvement Act. 

But recognizing the difficulty of meeting these guidelines, Congress streamlined our rulemaking authority when writing these 

children’s safety rules and limited the requirements in the CPSIA 

for economic analysis of the impact of the rules. The streamlined 

procedure directed to regulate hazardous children’s products such 

as infant bath seats, baby walkers and cribs, all of which were associated with an unacceptable number of fatalities and serious injuries has, I believe, resulted in significantly more expeditious and 

protective safety standards that should save numerous lives in the 

coming years and could not have been accomplished otherwise. 

I particularly want to note the commission’s new crib standards, 

which was unanimously approved by all of our commissioners and 

became effective last Tuesday, June 28. This standard sets the 

most stringent safety requirements for cribs in the world and ensures that the place that infants spend the most time and the most 

time alone will be the safest place in their homes. Having noted 

that, I hasten to add that even with this new authority under 

CPSIA, the commission remains obligated to conduct economic 

analyses under the Regulatory Flexibility Act assuring that our 

most vulnerable small business sector is safeguarded along with 

safeguarding our most vulnerable young consumers. 

15 

The commission is well on its way to meeting the deadlines imposed under the CPSIA. We haven’t met all of them, and we are 

going to miss a few more, but as we wind down the bulk of our 

CPSIA rulemaking, it is my understanding that Chairman 

Tenenbaum has directed staff to develop options to restart the retrospective review process. 

In closing, notwithstanding that independent agencies do not fall 

under the direct purview of Executive orders like 13563, we at 

CPSC have always tried to implement the wisdom contained in 

those Executive orders and to coordinate our efforts in the spirit of 

such orders to the best of our ability. 

Finally, I note that CPSC’s jurisdiction is very broad. Roughly 

speaking, if you walk into a department store, a sporting goods 

store, a hardware store, a toy store or you go to a school, that is 

us. Those products that are in those institutions are the things we 

regulate. But we are an agency that has barely above 500 people 

and a budget just about $118 million. In other words, I am sitting 

at a table with agencies that are between two and a half and three 

times our size. But given these limits on our resources, I think we 

have done a good job in advancing consumer safety, and thank you 

very much. 

[The prepared statement of Mr. Adler follows:] 

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Mr. STEARNS. I thank the gentleman. 

Ms. Northup, welcome. It is particularly nice to have a former 

member. 

TESTIMONY OF ANNE NORTHUP 

Ms. NORTHUP. Thank you. Chairman Stearns and Ranking Member DeGette, thank you so much for the opportunity to testify in 

front of you, and I am delighted to be back on Capitol Hill with 

you. I have great respect and appreciation for the challenges you 

face every day and the decisions you make. I do appreciate the opportunity to come and give you some idea of what it looks like from 

the other side, from a regulatory agency. 

You just heard an excellent history of review of the Consumer 

Product Safety Commission and the past, the way they operated, 

primarily through the development of voluntary guidelines, 

through risk assessment and intervention when there were real 

risks based on science and the ability to intervene when they were 

dangerous products. However, all of what was said about the reviews of our regulations and the reasonableness of that changed in 

2008 when the Consumer Product Safety Improvement Act went 

into effect, and in fact, very little of that would be present today. 

As a matter of fact, we no longer have the option to consider risk 

in most of the things we do. We are required to write rules based 

on numbers that were given to us in the CPSIA but that hasn’t 

stopped us in the regulatory process of casting a wider net including maybe more toys and more children’s products or more products than the law requires us to do to make steps where the testing 

is more rigid than required by the law. And so while the law is 

very difficult, it has been very hard for small businesses in particular to comply with it, we have at the agency, in my opinion, 

gone beyond what the law has required us to do. 

Let me just give you some idea. In the time since the CPSIA 

passed, we have been involved in about 50 rulemakings if you include the statements of policies, the notice of requirements and lab 

accreditations, and by the way, lab accreditations are huge because 

any time we do a notice of requirements for labs to be accredited, 

within 6 months every product under that category has to begin 

sending every component and every part of their product to a lab 

for a third-party test and certify based on those tests and label 

their product to reflect what those certifications are. 

So in truth, while I appreciated what Representative Waxman 

said about big companies complaining, it is actually the opposite. 

Very few of our largest companies complain. Most of them make 

products in such large numbers that they can spread their costs 

around, and what we have really done is put out of competition the 

smaller businesses that made things primarily in this country. 

Those are the people that we hear from because they cannot spread 

their costs over so many products. 

You know, I hear so often people say oh, yes, that is the law we 

passed to decrease the number of things coming in from China or 

that is the law we passed to make the big companies comply, but 

in fact, the effect of the cost of these regulations has been the burden that has put many, many small businesses out of business. It 

has caused those smaller businesses to leave the children’s product 

30 

market. We have the public that has fewer choices than they have 

ever had in the past and we are told that if we—our four, by the 

way, biggest rules are still to come. They are expected to come before December 31st or to take effect by December 31st. 

I thought I would share with the committee one that I anticipate 

that we will agree on, the majority. I expect it to be a 3–2 vote, 

and that is allowing the parts per million of lead in any component 

of a child’s product to reduce to 100 parts per million as of August 

15th. This is what our economic team said about this: ‘‘Economic 

impacts are likely to occur. They are going to have to use more expensive low-lead materials rather than the non-conforming materials used today. The cost associated with the reengineering products to make the new materials, the cost to make leaded components that are inaccessible, the increased testing costs, the increased consumer products, the reductions in the types and quantities of the children’s products available to consumers, businesses 

that are exiting the children’s product market, manufacturers 

going out of business, reduction in the utility of products and the 

reduction in the durability of products.’’ This is all for this one rule 

that we are about to—or this one step-down that we are about to 

take effect, and it says there is no anticipated benefit in health to 

children because of this. And so I would just point out to you that 

10 out of 40 of the small manufacturers of bicycles left the market 

with the original step-down. We anticipate more will exit the market. And my question, I guess, is, what sort of regulation sort of 

rationalization can be brought to this process. I have proposed 

many times ways to within the limits of the law to lessen the impact of this, and I am disappointed that we haven’t done more of 

that at the commission. Thank you. 

[The prepared statement of Ms. Northup follows:] 

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Mr. STEARNS. Commissioner McDowell. 

TESTIMONY OF ROBERT MCDOWELL 

Mr. MCDOWELL. Thank you, Mr. Chairman and Ranking Member 

DeGette and all members of the committee for having me here 

today. 

During my 5 years at the FCC, I have supported policies that 

promote consumer choice through abundance and competition in 

lieu of regulation whenever possible. I therefore welcome today’s dialog on regulatory reform. 

Fifty years ago, there were only 463 pages in the FCC’s portion 

of the Code of Federal Regulations, the C.F.R. During this period, 

Americans only had a choice of three TV networks and one phone 

company. Today, over-the-air TV, cable TV, satellite TV and radio, 

and the millions of content suppliers of the Internet offer consumers with an abundance of choices. In other words, the American communications economy was far less competitive in 1961 

than it is today yet it operated under fewer rules. 

In contrast, by late 1995, the FCC’s portion of the C.F.R. had 

grown to 2,933 pages, up from 463 34 years earlier. As of the most 

recent printing of the C.F.R. last October, it contained a mindnumbing 3,695 pages of rules. Even after Congress codified deregulatory mandates with the landmark Telecommunications Act of 

1996, the FCC still managed to add hundreds more pages of rules. 

To put it another way, the FCC’s rules measured in pages have 

grown by almost 800 percent over the course of 50 years, all while 

the communications marketplace has enjoyed more competition. 

During this same period of regulatory growth, America’s GDP grew 

by a substantially smaller number, 357 percent. In short, this is 

one metric illustrating government growth outpacing economic 

growth. 

To be fair, some of those rules were written due to various congressional mandates and sometimes the FCC does remove regulations on its own accord or forbear from applying various mandates 

in response to forbearance petitions. But all in all, the FCC’s regulatory reach has grown despite congressional attempts to reverse 

that trend. At the same time, Congress has given the FCC ample 

authority to deregulate. The legislative intent of key parts of the 

1996 act such as sections 10, 11, 202H and 706, just to name a few, 

was to reduce the amount of regulation in telecommunications, 

broadcasting and information services. For instance, Congress ordered the FCC through section 10 of the 1996 act to forbear from 

applying a regulation or statutory provision that is not needed to 

ensure that telecom carriers’ market behavior is reasonable and not 

necessary for the protection of consumers. Similarly, section 11 requires the FCC to conduct reviews of telecom rules every 2 years 

to determine whether any such regulation is no longer in the public 

interest as a result of meaningful economic competition and to repeal or modify any regulation it determines to be no longer necessary in the public interest. 

Removing unneeded rules can liberate capital currently spent on 

lawyers and filing fees, capital that would be better spent on powerful innovations. Accordingly, it is my hope that the FCC stays 

faithful to Congress’s intent as embodied in section 11 by promptly 

55 

initiating a full and thorough review of every FCC rule, not just 

those that apply to telecom companies but all rules that apply to 

any entity regulated by the commission. The presumption of the 

FCC’s review should be that a rule is not necessary unless we find 

compelling evidence to the contrary. 

The first set of rules I would discard of course would be the recently issued Internet network management regulatory regime, 

also known as net neutrality. As I have stated many times before, 

those rules are unnecessary at best and will deter investment in 

badly needed next-generation infrastructure at worst. No evidence 

of systemic market failure exists to justify these overly burdensome 

regulations. 

Furthermore, the FCC has too many forms. To give you some examples, there is form 603, form 611T, form 175, form 601, form 

492, form 477, form 323 and forms 396, 396C—I am not sure what 

happened to 396A and B—form 397 and 398, among many, many 

others. While a few forms may be necessary, many could be eliminated or simplified. Similar repeal initiatives should be on our 

plate soon. For example, as I noted in a speech in May, the socalled fairness doctrine is literally still codified in the C.F.R. The 

doctrine regulated political speech. Political speech is core protected speech under the First Amendment and the doctrine is patently unconstitutional, as the FCC found in 1987. 

Chairman Genachowski recently informed your committee that 

he supports removing references to the doctrine and its corollaries 

from the C.F.R. and intends to move forward on this effort in August. I look forward to helping him fulfill that promise. 

In the same spirit, it is time to eliminate the outdated newspaper-broadcast cross-ownership rule in the upcoming review of our 

media ownership regulations. Evidence suggests that the old crossownership ban may have caused the unintended effect of reducing 

the number of media voices, especially newspapers in scores of 

American communities. Overall, however, what is needed is a comprehensive and sustained effort to repeal or, where appropriate, 

streamline unnecessary, outdated or harmful FCC rules. All future 

regulatory proceedings should start with a thorough market analysis that assesses the state of competition in a sober and clear-eyed 

manner. 

In the absence of market failure, unnecessary regulations in the 

name of serving the public interest can have the perverse effect of 

harming consumers by inhibiting the constructive risk-taking that 

produces investment, innovation, competition, lower prices and 

jobs. In sum, decreasing the burdens of onerous or unnecessary 

regulations increases investment, spurs innovation, accelerates 

competition, lowers prices, creates jobs and serves consumers. 

I look forward to working with all of you in pursuit of these 

goals. Thank you, Mr. Chairman. 

[The prepared statement of Mr. McDowell follows:] 

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Mr. STEARNS. I thank the gentleman. 

Welcome, Chairman Wellinghoff, for your opening statement. 

TESTIMONY OF JON WELLINGHOFF 

Mr. WELLINGHOFF. Thank you, Chairman Stearns, Ranking 

Member DeGette and members of the subcommittee. I want to 

thank you all for having us here today, and my colleague, Commissioner Moeller, to discuss our views on regulatory reform in independent agencies. We have submitted full testimony here that I 

would like to have entered into the record, and I will summarize 

my testimony. 

The commission continually seeks to streamline its regulations in 

order to foster competitive markets and facilitate enhanced competition to minimize consumer costs. Implementing the statutory 

authority provided by Congress, I am committed to assisting consumers in obtaining reliable, efficient and sustainable energy services at a reasonable cost for appropriate regulatory and market 

means. Fulfilling this mission involves pursuing two primary goals: 

ensuring that rates, terms and conditions are just and reasonable 

and not unduly discriminatory or preferential, and promoting the 

development of safe, reliable and efficient infrastructure that 

serves the public interest. The commission has taken and continues 

to take a number of steps to make certain that its regulations meet 

the fundamental objectives set forth by Congress without imposing 

undue burdens on regulated entities or unnecessary costs on those 

entities or their customers. 

For example, the commission has taken several steps to remove 

barriers to entry of new businesses and technologies which facilitate competitive markets and can lower consumer costs. The commission also seeks out ways to help entities, particularly small 

ones, navigate the federal regulatory process. The commission has 

also recently reduced burdens on applicants, speeding up processes 

of filings and improved public access to documents. 

In sum, I support the goals of Executive Order 13563. I have directed the commission staff to conduct review of the commission’s 

regulations with the goals of the Executive order in mind. This direction is consistent with the commission’s practice of engaging in 

constant self-review to avoid red tape or unnecessary regulation 

that would impose undue burdens on the energy industry and its 

consumers. 

Thank you, and I look forward to answering any questions. 

[The prepared statement of Mr. Wellinghoff follows:] 

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Mr. STEARNS. I thank the gentleman. 

Commissioner Moeller, welcome. 

TESTIMONY OF PHILIP D. MOELLER 

Mr. MOELLER. Thank you, Mr. Chairman, Ranking Member 

DeGette, members of the committee. I appreciate the chance to be 

before you today to talk about these important issues. I welcome 

your oversight, and I will summarize my written comments with a 

brief history, I guess, of how our regulations have evolved at the 

commission and then give you three examples of where I think we 

kind of struggle with balancing the need to ensure that our services are provided safely at fair and just rates but also making sure 

that we are protecting and not unduly burdening the entities that 

we regulate. 

The Federal Power Commission, our predecessor, really came 

into its own after the passage of the 1935 Federal Power Act and 

the 1938 Natural Gas Act, and as regulators then, the commission 

was highly relating these entities because they were monopoly providers of services that were deemed essential but over the decades 

and particularly in the last 25 years, regulation has evolved so that 

more competitive forces can provide consumers with frankly lower 

prices at better service. These came through two landmark orders 

on the natural gas side, 436 and 636, which restructured the pipelines, and then on the electric side, orders 888 and 2000 that set 

up regional markets and allowed for open access of the transmission systems. Again, these have had great benefits for consumers but our responsibilities as regulators in monitoring these 

markets have increased substantially since then. 

Three areas where we particularly spend time, the first of which 

I will say is the reliability area of assuring the reliability of the 

bulk power system. Now, the origins of this issue came from the 

1965 Northeast blackout a voluntary set of regulations came about 

after that, but as time went on, particularly in the late 1990s, it 

was clear that a mandatory system was going to be necessary, 

some kind of a cop on the interstate electric highway, and although 

there was legislation in the late 1990s, eventually it took the 2003 

blackout and the 2005 Energy Policy Act before you as Congress directed us to create a national electric reliability organization with 

eight regional entities, and in the meantime, we have adopted 101 

national standards, 11 regional standards, and we have had a very 

active enforcement process on those standards. In fact, we have 

had 7,000 violations to date since they became mandatory in June 

of 2007. And frankly, we are struggling with our role, the role of 

NERC, the role of the regional entities because we have a bit of a 

backlog on these violations. They are about to about 3,200. 

I think the good news, though, is that through NERC, or through 

our direction to NERC, they are working to make sure that it is 

a better streamlined process so that we can eliminate the backlog 

and essentially share the best practices amongst the entities we 

regulate on the bulk power system. 

A second area is related to that and that is with our new powers 

of enforcement that you gave us in the 2005 Energy Policy Act, 

partly emanating from the Western crisis in 2000 and 2001. You 

gave us the kind of major league enforcement authority that few 

98 

agencies have. We can fine entities up to $1 million per day per 

violation. And initially when we put out some of our rulings with 

some significant fines, there was some criticism from the industry 

that we lacked transparency in the process and lacked priorities, 

and I am happy to say that our office of enforcement under the 

urging of several of us on the commission has opened up that system so that we are a much more transparent system now. We 

adopted annual priorities in terms of enforcement, adopted guidelines based on the U.S. Sentencing Commission, and essentially 

have processes and policies in place that allow anyone under investigation to know at certain times that they are and give them the 

certain rights that other agencies give them. So we are making 

progress there. 

The third area I would note, because I come from the Pacific 

Northwest, is the hydropower system. We regulate 2,500 hydropower dams throughout the Nation and some have complained that 

that processing of licensing or, more often, re-licensing, is both 

costly and time consuming, and that much is true, but I don’t think 

much of that can be put on FERC. I think actually the laws itself 

that govern the process of re-licensing are worth looking at if this 

is something that inspires you because we actually I think do a 

good job under the current system of setting timetables but often 

the resource agencies don’t have any consequence to missing the 

timetables involved. 

In the meantime, though, I think we have tried as an agency to 

develop small hydropower systems through MOUs with various 

states that are interested. We have tried to open up the process to 

stakeholders and developers that are interested in small hydropower development and we have come up with a pilot licensing 

process for the new hydrokinetic technologies of in-stream power, 

ocean power and tidal power, again in a way through our regulations to try and encourage an industry to move forward. 

And finally, I will send a compliment to our colleagues at the 

Federal Trade Commission. They have been active in some of our 

rulemakings, and their perspectives are always very valuable. 

Thank you for the opportunity again to testify, and I look forward to answering any questions. 

[The prepared statement of Mr. Moeller follows:] 

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Mr. STEARNS. I thank the gentleman. 

Chairman Leibowitz, welcome. 

TESTIMONY OF JON LEIBOWITZ AND WILLIAM E. KOVACIC 

Mr. LEIBOWITZ. Thank you, Chairman Stearns, Ranking Member 

DeGette, Mr. Barton, Dr. Burgess, Mr. Terry, members of the subcommittee. Let me thank you for the opportunity to appear here 

today with my friend and my colleague, Bill Kovacic, to discuss the 

FTC’s longstanding regulatory review program. It has been and it 

is a bipartisan priority for us as well as our plans for ensuring that 

this program continues to protect American consumers while minimizing burdens on American businesses. 

Today, the FTC is announcing additional measures to strengthen 

our regulatory review process including an expedited schedule for 

reviewing rules and guides to meet the demands of the marketplace, a new streamlined form for pre-merger filings, a new page 

on our Web site to provide greater transparency and public participation in reviews and a sort of review of the reviews, that is, we 

are asking stakeholders how we can make our review process even 

better. In that same spirit, we are also seeking to identify acts of 

Congress that appear to be of little value but that impose burdens 

on businesses, particularly small businesses and the commission. 

So let me give you a brief overview of the FTC before Commissioner Kovacic describes the history and nature of FTC regulatory 

reviews. After he is finished, I will tell you a little more about what 

the commission is doing today to enhance and improve our approach to regulations. 

Simply put, we are building on our longstanding regulatory 

housecleaning efforts over the years under which we have eliminated outdated rules from the Mad Men era including those addressing extension ladders, fiberglass curtains and frosted cocktail 

glasses. That is true. 

As you know, the Federal Trade Commission is the only federal 

agency with both consumer protection and competition jurisdiction 

in broad sectors of the economy, and our work touches the lives of 

virtually every American. We are primarily a law enforcement 

agency but we perform our mission using other tools as well including rulemakings from time to time, either when Congress asks us 

or when additional clarity is needed in the marketplace. Most of 

our rules, by the way, are a result of directives from Congress because you have recognized that they would be valuable to consumers and businesses alike by protecting all of us from unfair and 

deceptive acts or practices and by leveling the playing field so that 

legitimate businesses aren’t at a competitive disadvantage from the 

bottom feeders who don’t always play fair, and with that, I would 

like to turn it over to Commissioner Kovacic. 

Mr. STEARNS. Mr. Kovacic, go ahead. Just for members’ information, the two gentlemen from the Federal Trade Commission are 

going to split their 10 minutes so they will be going back and forth, 

as I understand. Welcome. 

Mr. KOVACIC. Thank you, Mr. Chairman, Madam Ranking Member and your colleagues for the opportunity to speak here today. Although the Executive order that we have been focusing on doesn’t 

bind independent agencies, the FTC does endorse its goals, and in 

107 

particular, we endorse the intuition that changing market conditions dictate ongoing efforts to determine whether existing rules 

have become outdated, unduly burdensome or simply ineffective. 

To ensure that our work meets this objective, since 1992 we have 

had a voluntary program to review our rules and guides. We examine each regulation and rule in a 10-year cycle. Each year we publish a schedule of review and we begin the examination of each rule 

or guide by publishing a Federal Register notice, and this notice 

seeks comment on the continuing need for the regulation or the 

guide and an examination of its costs and benefits to consumers 

and businesses. We also ask whether consequent economic developments call for changes in the rule or its outright abolition. We also 

consider whether the measure conflicts with other intervening 

State, local or national legal commends. 

We use these comments and we use the results of workshops 

that we conduct from time to time to decide whether there is a continuing need for the regulatory command or guideline and how 

needless burdens could be avoided, and if adjustments are warranted, we start proceedings to modify or appeal the rule or guide. 

As John mentioned, through this process, we have repealed 37 

rules and guides. We haven’t repealed one outright since 2004. I 

think we did look at the most serious cases first but we have undertaken modifications with respect to others since that time. We 

now have 12 reviews in place. In one proceeding, we are considering amendments to the labeling requirements for the alternative 

fuels and alternative-fueled vehicles, and here we are assessing 

how to eliminate the need for firms to apply redundant labels that 

are mandated by different agencies. In another instance, we have 

accelerated the review of our Hart-Scott-Rodino mechanism for 

mandating the notification and reporting of mergers, and we intend 

to initiate reviews of 11 more rules or guides by the year’s end. 

Comments provided in this process I think overwhelmingly show 

business support for not only the mechanism we have used but for 

the rules and guides themselves, and our guidelines in particular 

stand out as means to reduce business burdens by clarifying what 

we regard to be the line that separates appropriate from inappropriate behavior, and in doing so, we think we have significantly reduced the cost of complying with what you know to be the exceedingly broad general mandates that appear in our statutes. 

My colleague will now explain recent measures that we have 

taken to enhance this review process, and I look forward to your 

questions and comments later. Thank you. 

Mr. LEIBOWITZ. As Commissioner Kovacic has explained, we have 

long had a program for reviewing our guides and our regulations. 

You noted, Chairman Stearns, in your opening statement the importance of taking costs and benefits into account and we do do 

that. It is critically important to us. All of our work including the 

guides is done publicly with input from stakeholders. 

But earlier this year, we began examining what more we could 

do to improve these rules and really relieve undue burdens on industry, so as part of this effort and very much in the spirit of the 

President’s Executive order, here is what we are doing. First, as 

Commissioner Kovacic noted, we are undertaking a review of 23 

rules and guides. That is more than a third of all the rules we adVerDate Nov 24 2008 10:37 Feb 15, 2012 Jkt 037690 PO 00000 Frm 00113 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-71 070711\112-71 CHRIS
108 

minister, rules and guides we administer. As announced in our 

Federal Register notice today, six of the rules under review have 

been accelerated to take into account for rapid changes in the marketplace. Congresswoman DeGette, you mentioned the Do Not Call 

Rule, and we recently strengthened the Do Not Call Rule, the Telemarketing Sales Rule, which Do Not Call is part of. It has 200 million, actually now more than 200 million registered phone numbers, and Dave Barry has called it the most effective government 

program since the Elvis stamp. 

Second, our Federal Register notice asked for the public to comment on the FTC’s 20-year program of reviewing its rules. Businesses have generally been, as Commissioner Kovacic noted, supportive of our regulatory reviews but we nevertheless asked a number of questions. For example, how often should the commission review rules and guides, how can we modify programs to make them 

even more responsive to the needs of consumers of businesses. 

Third, the FTC’s new regulatory reform Web site just went live 

today because not everyone reads the Federal Register, although I 

know many of you do. It serves to provide—and many of us do. It 

serves to provide greater transparency for members of the public 

to understand our regulatory review efforts. It allows them to more 

easily comment on our ongoing rule reviews as well as on the 

FTC’s process to review its rules. It also contains links to the 37 

rules the commission has eliminated over the years as well as easy 

links to other resources like the new 10-year review schedule and 

the streamlined HSR, Hart-Scott-Rodino, pre-merger form. 

Fourth, commission staff are seeking to identify statutes that 

might impose undue burdens on businesses or on the commission. 

Although a law’s goals may be laudable, some statutes passed by 

Congress, as we know, can detract from other beneficial work, and 

I think Commissioner Moeller sort of alluded to this with respect 

to licensing issues. So one example is the FACT Act, which was 

passed in 2003, Fair and Accurate Credit Transactions Act, and it 

came out of the Financial Services Committee, and it required the 

FTC to conduct 30 separate rulemakings, studies and reports, 30. 

Some of those obligations of course make sense, but at one point 

around 2005, and this was shortly after I came to the commission, 

about a third to half of our financial practices staff, and these are 

the folks who go after mortgage fraud, were actually spending time 

writing reports because they were obligated, and we do what Congress tells us to do. Now, we have been writing reports since 1914, 

we are very good at it, but in fact our staff should have been spending more time going after the bad guys who were preying on American homeowners. So consistent with the goal of reducing unnecessary burdens, commission staff is now working to identify reports 

required by statute, and I think statutes themselves that divert 

businesses or commission resources from more pressing work, and 

the staff has identified sort of two such reports at least preliminarily. So year after year, the mandated ethanol industry report 

has shown that there is almost no concentration in the ethanol fuel 

market. The report doesn’t appear to provide significant value to 

the public but it does impose burdens on small businesses because 

they have to respond to inquiries from the FTC, and so our staff 

109 

is proposing that the report be eliminated or at the very least that 

the frequency be reduced to every 3 years. 

Additionally, while the FTC, the DOJ, the Department of Education are very involved in fighting scholarship scams, and for the 

FTC’s part, we compile complaints, the annual report about scholarship scams, the annual report that the three agencies must jointly produce each year on the topic which is required by statute, 

doesn’t appear to FTC staff to advance any real or significant goals. 

So Mr. Chairman, through these four initiatives, we are working 

to improve the FTC’s review program. We will do our best going 

forward and working with this committee to ensure that all of our 

regulations protect American consumers while minimizing burdens 

on businesses. Thank you. Of course, we are happy to answer questions. 

[The prepared statement of Mr. Leibowitz and Mr. Kovacic follows:] 

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Mr. STEARNS. Mr. Kovacic, do you have anything briefly you 

would want to add since Chairman Leibowitz had most of the time? 

Mr. KOVACIC. No, I don’t. Thank you. 

Mr. STEARNS. All right. With that, I will start with opening questions. I think before I start, I would like to put on the record Mr. 

Cass Sunstein’s memorandum of February 2, 2011. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. STEARNS. And I understand the ranking gentlelady has a 

document, ‘‘Evaluation of Consumer Product Safety Database,’’ that 

she would like to put in. 

Ms. DEGETTE. That is correct. 

Mr. STEARNS. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.] 

Mr. STEARNS. Chairman Leibowitz, before I start my questions, 

I think myself and staff are a little struck that you have voluntarily stepped up to the plate and sort of followed the spirit of this 

Cass Sunstein letter right there, and I think it is interesting when 

you look at the letter I just put in the record, he said in particular 

such agencies, talking about the independent agencies, are encouraged to consider undertaking retrospective analysis of the existing 

rules. You have stepped up to the plate to do it. Not all the independent agencies have done it. You have actually identified some 

areas that you think you have to do where you don’t think you 

should be doing it, so I guess the question from Members of Congress is, what would you like us to do to help you? 

Mr. LEIBOWITZ. Well, I think having oversight hearings like this 

is useful. It sort of shines a public light on regulations that do work 

because of course regulations are very important and ones that 

need to be modified. You know, look, we are a very bipartisan consensus-driven agency. We work together. We try to do regulatory 

reviews because we know they are really, really—— 

Mr. STEARNS. Well, you have identified some things that I think 

you would like some legislation to—— 

Mr. LEIBOWITZ. And yes, and we have identified—— 

Mr. STEARNS. We will follow up on that. 

Mr. LEIBOWITZ. That would be terrific, Mr. Chairman. 

Mr. STEARNS. Commissioner McDowell, I couldn’t help but take 

your comments ‘‘sober and clear manner’’ when you talked about 

over 50 years regulations have gone up 800 percent. Is that true? 

That is 16 percent a year in the law of 72. That means every 41⁄2

years these regulations are doubling. That is really staggering to 

think that that is occurring. Is that an accurate explanation of 

what you said, that regulations could possibly be doubling every 

41⁄2 years based upon 800 percent increase for 50 years? 

Mr. MCDOWELL. That would appear to be the case, yes. 

Mr. STEARNS. Let me move, based upon what—I just put a letter 

in from Cass Sunstein where he said these independent agencies 

should step up and voluntarily—that is the spirit of what he is 

talking about. Obviously, President Obama has indicated he wants 

that done, and he didn’t include the independent agencies but I 

would like, if you would, just to answer some questions yes or no 

just for the limited amount of time. So Commissioners Adler and 

124 

Northup, yes or no, did the CPSC submit a regulatory review plan 

to OMB? Just yes or no. 

Mr. ADLER. No. 

Mr. STEARNS. OK. 

Ms. NORTHUP. No, it didn’t. 

Mr. STEARNS. Yes or no, has the CPSC publicly committed to 

conduct a review of all existing regulations in accordance with the 

Executive order? Yes or no. 

Mr. ADLER. As far as I am concerned, yes. 

Ms. NORTHUP. No, I have not been informed that we are having 

any review. 

Mr. STEARNS. OK. Mr. Adler, if you answer yes, as you did, why 

hasn’t there been a notice so that Commissioner Northup would 

know about it if you answered yes? 

Mr. ADLER. Well, first of all, with respect to submitting a formal 

plan to Cass Sunstein, he is actually a hero of mine as a former 

academic, but in order to preserve independence—— 

Mr. STEARNS. You said you have issued a public notice? 

Mr. ADLER. What I said was, we had begun a retrospective review beginning—— 

Mr. STEARNS. But you haven’t issued a public notice? 

Mr. ADLER [continuing]. In 2004 that was temporarily suspended 

in 2007, and as soon as Chairman Tenenbaum gets back, I anticipate we will resume that process. 

Mr. STEARNS. So you personally believe the CPSC should conduct 

a review? 

Mr. ADLER. Oh, yes, sir. 

Mr. STEARNS. OK. CPSC used to conduct regulatory reviews but 

has stopped in recent years. Is that a fair statement? 

Mr. ADLER. They stopped in 2007 under then-Acting Chairman 

Nord, and I believe it was because of passage of the Consumer 

Product Safety Improvement Act, and just competition for resources within a very tiny agency. 

Mr. STEARNS. OK. Commissioner McDowell, do you believe the 

reviews the FCC conducts under the Telecommunications Act take 

the place of the kind of look-back the President and this committee 

has asked for? 

Mr. MCDOWELL. No. 

Mr. STEARNS. You also state in your testimony that net neutrality is the first rule you would discard upon the agency review 

of its regulation. Is that true? 

Mr. MCDOWELL. Yes. 

Mr. STEARNS. I agree with you. Chairman Genachowski hails the 

net neutrality rulemaking proceedings as a test case for openness. 

However, I believe there were some bad precedents set in this proceeding. Commissioner McDowell, do you believe you were able to 

review the record in the net neutrality docket or were there items 

placed late into the docket that made it very difficult to review before the vote? 

Mr. MCDOWELL. There are about 3,000 pages of documentation 

placed into the record in the final 2 or 3 days or 4 days. 

Mr. STEARNS. And you had no opportunity to review those? 

Mr. MCDOWELL. Well, there was opportunity but there wasn’t 

enough time. 

125 

Mr. STEARNS. As a commissioner, when was the first time you 

saw the net neutrality order that you voted against on December 

21, 2010, and was it the same rules proposed in October 2009? 

Mr. MCDOWELL. There were several drafts, of course, the first in 

October of 2009, but we got the final draft about quarter to midnight the night before the vote. 

Mr. STEARNS. I understand although the agency passed its net 

neutrality rules in December, the docket to reclassify broadband 

services under Title II remains open. I think this is surprising, as 

Chairman Genachowski has made efforts to close other dockets 

opened at the FCC. Do you believe this docket should be closed? 

Mr. MCDOWELL. Yes. 

Mr. STEARNS. Are you aware of any reason why this docket remains open? 

Mr. MCDOWELL. Only speculation. I have no firsthand knowledge. 

Mr. STEARNS. Chairman Wellinghoff, in your testimony you say 

you support the goals of the Executive order and have directed 

commission staff to conduct a review of existing regulations with 

the goals of the Executive order in mind. Why didn’t you submit 

a regulatory review plan to OMB? 

Mr. WELLINGHOFF. Because I believe that we weren’t subject to 

the Executive order under OMB. 

Mr. STEARNS. Notwithstanding what Cass Sunstein had sort of 

directly, the spirit of the law was for you to comply? 

Mr. WELLINGHOFF. I believe in fact we are complying with the 

spirit of the law by directing the regulatory review that I have directed staff to do. 

Mr. STEARNS. Have you submitted a notice for public comment 

on this review? 

Mr. WELLINGHOFF. My general counsel has indicated that is not 

necessary to staff review. 

Mr. STEARNS. Well, let me ask you personally. Do you believe 

FERC should conduct a retrospective review in the spirit of the Executive order? 

Mr. WELLINGHOFF. Yes, we are doing that. I have directed my 

staff to do that. 

Mr. STEARNS. OK. My time is expired. 

Ms. DEGETTE. Thank you, Mr. Chairman. 

Mr. Chairman, my recollection of what Cass Sunstein said is that 

the independent agencies should comply with the spirit of the law, 

not the specific legal requirements, and I guess I will ask you, 

Chairman Leibowitz, since your agency is supposed to be the paragon of virtue today, have you submitted a plan to OMB? Has your 

agency submitted a plan to OMB? 

Mr. LEIBOWITZ. We have not submitted a plan to OMB. 

Ms. DEGETTE. And that is because you are not legally required 

to, right? 

Mr. LEIBOWITZ. And that is because we are not legally required 

to, although as you know—— 

Ms. DEGETTE. But that doesn’t mean you are not doing regulatory reform, correct? 

Mr. LEIBOWITZ. No, no, no. I think as everyone knows, we are 

doing a lot of regulatory reform. 

126 

Ms. DEGETTE. And Commissioner Adler, also your agency, although it hasn’t submitted a plan to OMB, you are doing regulatory reform too? 

Mr. ADLER. That is correct. 

Ms. DEGETTE. Thank you. 

Now, Chairman Leibowitz, something you said was very interesting to me. You talked about how a lot of the regulations that 

you do is a result of statutes passed by Congress directing you to 

do regulations, correct? 

Mr. LEIBOWITZ. That is correct. 

Ms. DEGETTE. And you gave several examples of that, right? 

Mr. LEIBOWITZ. Yes. 

Ms. DEGETTE. Now, Commissioner Northup, you talked about a 

lot of the regulations that the CPSC is promulgating as a result of 

the statute that Congress passed, correct? Like the lead standards 

and other regulations. 

Ms. NORTHUP. That is correct. 

Ms. DEGETTE. So Mr. Chairman, one thing I am concerned 

about, you can’t really talk about regulatory reform in a vacuum 

without looking at the statutes that Congress has passed but ask 

these agencies, and so I think there are two levels here. There is 

the regulations themselves, which may be overly burdensome, but 

there is also statutes that I think we should look at, and I know, 

Chairman Leibowitz, you had actually come up with a list of some 

statutes that you think could be streamlined so that the agencies, 

whether they are the independent agencies or not, could also 

streamline their regulations, correct? 

Mr. LEIBOWITZ. That is correct. 

Ms. DEGETTE. Would you be willing to submit a copy of those 

statutes to this committee so that we could then look at those statutes within the purview of this committee and think about ways 

to fix them so that we can reduce the burden of regulations? 

Mr. LEIBOWITZ. It sounds like very much a bipartisan effort on 

this subcommittee, and we would be glad to do that. 

Ms. DEGETTE. OK. For the rest of the commissioners who are 

here, I would just ask for a yes or no answer. Would you be willing 

to also submit a similar list of statutes that your agency deals with 

that you think could be streamlined so the regulatory process could 

be streamlined? Commissioner Adler? 

Mr. ADLER. Yes. 

Ms. DEGETTE. Commissioner Northup? 

Ms. NORTHUP. I have. 

Ms. DEGETTE. Oh, you have? Great. I would love to get a copy 

of that. 

Mr. McDowell? 

Mr. MCDOWELL. Yes. 

Ms. DEGETTE. Chairman? 

Mr. WELLINGHOFF. Yes. 

Ms. DEGETTE. Commissioner? 

Mr. MOELLER. Yes. 

Ms. DEGETTE. Chairman? 

Mr. LEIBOWITZ. Yes. 

Ms. DEGETTE. And Commissioner Kovacic? 

Mr. KOVACIC. My list is the same as Jon’s. 

127 

Ms. DEGETTE. OK. Great. This is a good effort down here at the 

end of this table. 

And I wanted to ask you, Commissioner McDowell, because you 

had listed off numbers of regulations. I don’t think that you think 

that—first of all, are all those regulations that you listed—I don’t 

know them by heart—are they all duplicative or unnecessary regulations, the ones you listed? 

Mr. MCDOWELL. Are you talking about the number of pages I 

cited? 

Ms. DEGETTE. Well, you listed some different sections. You just 

threw out a whole bunch of regulations. 

Mr. MCDOWELL. The sections I cited were statutory sections that 

gave us the power to deregulate on our own, and I also listed—— 

Ms. DEGETTE. No, no, but—— 

Mr. MCDOWELL [continuing]. The forms—— 

Ms. DEGETTE [continuing]. You said there—oh, the forms. Just 

because there is a form, doesn’t mean that it is per se unnecessary, 

correct? 

Mr. MCDOWELL. No, and I didn’t imply that. 

Ms. DEGETTE. So the numbers of the forms that you listed, are 

those particular forms unnecessary in your view? 

Mr. MCDOWELL. Not all of them necessarily. 

Ms. DEGETTE. OK. So you were—— 

Mr. MCDOWELL. That is what I said in my testimony. 

Ms. DEGETTE. That was kind of a figure of speech that you were 

talking about a lot of forms, right? 

Mr. MCDOWELL. I think that my testimony speaks for itself. It 

is a lot of forms. 

Ms. DEGETTE. Well, here is my question to you. Have you compiled a list of regulations for your agency that you think are duplicative or overly burdensome? 

Mr. MCDOWELL. Yes, ma’am, it is in my testimony. 

Ms. DEGETTE. OK. That is the comprehensive list. And has everybody else—— 

Mr. MCDOWELL. It is not the complete list but there is—— 

Ms. DEGETTE. Could you get us your complete list? That would 

be really helpful. 

Mr. MCDOWELL. Sure. 

Ms. DEGETTE. You know, along with our brand-new member 

from Colorado, Mr. Gardner, my neighbor to the north and others, 

we are trying to develop bipartisan legislation, and to be honest, 

as you see from these folks down here, regulatory reform is not a 

partisan issue. I mean, nobody wants to have overly burdensome 

regulations, and so I guess what I would ask everybody here from 

all of these agencies, as well as a list of statutes that you think 

lead to overly burdensome regulations, if you can give us a list of 

regulations that you think are overly burdensome, that would be 

helpful too. 

Commissioner Adler, would you be willing to do that? 

Mr. ADLER. I am speaking only for myself, but for myself, yes. 

Ms. DEGETTE. OK. Commissioner Northup, I believe you have 

probably already done that. 

Ms. NORTHUP. I have. It is part of my testimony but I have also 

previously sent to the Hill a list of—— 

128 

Ms. DEGETTE. If you could get that to our staff too, that would 

be great. 

And Commissioner McDowell? 

Mr. MCDOWELL. Absolutely. 

Ms. DEGETTE. Mr. Chairman? 

Mr. WELLINGHOFF. Yes. 

Ms. DEGETTE. And Commissioner Moeller? 

Mr. MOELLER. Yes. 

Ms. DEGETTE. And then—— 

Mr. LEIBOWITZ. We certainly will, although we have eliminated 

a lot of regulations. We do ongoing regulatory reviews pretty rigorously. 

Ms. DEGETTE. OK. Thank you very much. 

Mr. STEARNS. The gentleman from Texas, Mr. Barton, is recognized for 5 minutes. 

Mr. BARTON. Well, thank you. I would stipulate that all the individuals before us are paragons of virtue today because they are 

subject to the Energy and Commerce Committee and that recognition makes you a paragon. 

I think we need to repeat, this is kind of a hearing that is unusual in that this Executive order that we are asking you folks to 

comment on explicitly excludes you, and as we all know in Washington, not too many commissioners and chairmen voluntarily comply with things that they don’t have to. Those of us that have been 

around a little bit understand that. 

So my first question is, what should this committee do in the absence of statutory language that would force compliance with something similar to the Executive order? Should we pass some sort of 

a statutory requirement that you all do similar things that the 

President says in his Executive order or should we let the sleeping 

dog lie? Let us try Chairman Wellinghoff. He doesn’t come before 

us too often. 

Mr. WELLINGHOFF. Thank you, Mr. Barton. I don’t have any specific recommendation for you, sir. I think in fact, as I have indicated in my testimony, we are going to comply with the spirit of 

it and in fact have a staff review, and I think our agency certainly 

as an economic regulatory agency, each and every regulation that 

we institute do in fact take into account whether rates are just and 

reasonable and services are, and we also provide the industry with 

an opportunity to fully comment on those regulations and determine ultimately whether the regulations are burdensome based 

upon those comments and information that we gather. So I don’t 

have any specific recommendation for you. 

Mr. BARTON. Mr. Leibowitz? 

Mr. LEIBOWITZ. I would say this. You know, we comply with the 

spirit of the Executive order. I think it is a terrific Executive order. 

We go beyond it because I think only four of our rules would be 

sort of within reg flex, and we do reg reviews of all of rules and 

all of our guides, but I also think it is important to preserve the 

independence of agencies too, and as you can see, you know, agencies provide—by having members not of the President’s party, 

agencies as a sort of institutionalized matter provide checks and 

balances, and they are independent voices. And so I understand 

129 

what you are saying because I think you believe that the Executive 

order has a lot of good things in it, and we agree. 

Mr. BARTON. The Republicans think what the President says he 

is doing, we are not sure he is doing it, but what he says he wants 

to do, we think is a good thing. And so you folks say the right 

words, you are comply with the spirit and you agree in general, but 

the truth is, you are not going to do anything unless you absolutely 

have to. The question is, should I get with Ms. DeGette and Mr. 

Stearns and put together a bipartisan bill that would make it a requirement? 

Mr. LEIBOWITZ. Let me defer to Commissioner Kovacic because I 

know he wants to add something here. 

Mr. KOVACIC. Congressman Barton, I would like to quarrel with 

your suggestion that we only do what the gun at the head compels 

us to do. I was a junior case handler at the FTC for the first time 

in 1979, and I think it has been in the DNA of the agency internally, partly because of our structure, partly because we have a 

large team of economists to do this kind of introspective work as 

long as I have known the agency, and I would emphasize, I think 

that would be very constructive would be two things. First is for 

us to have perhaps a more frequent conversation in settings like 

this with your staff about we do. In 2008, 2009, we did a comprehensive self-study of our agency. We benchmarked ourselves 

with 40 of our counterparts overseas. We talked extensively with 

our counterparts at Federal, State government, and we did a substantial publicly available assessment of how we are doing. I think 

it would be helpful on one front to have a more extensive continuing conversation with the committee about the measures we do 

take that aren’t obliged, and the second is, to go back to something 

that several of you have mentioned—— 

Mr. BARTON. You are going to have to be quick, because I have 

got 20 seconds and I have got one more question. 

Mr. KOVACIC. The other thing is to think more in the design of 

legislation itself about what burdens it will impose. 

Mr. BARTON. I want to ask Commissioner McDowell—I can’t let 

him sit here and not ask him some question. The pending regulation regulating the Internet under Title II is still pending at the 

FCC. Do you have any information for us what Chairman 

Genachowski intends to do with that? Is he going to withdraw it 

or push forward with it? What is your view on that? 

Mr. MCDOWELL. Sir, just to be clear, the open proceeding to regulate the Internet under Title II, I don’t have any information as 

to whether or not he is going to withdraw it or what the reasoning 

might be for keeping it open. 

Mr. BARTON. Don’t you think he should withdraw it? 

Mr. MCDOWELL. I do. 

Mr. BARTON. That is the right answer. Thank you, Mr. Chairman. 

Mr. STEARNS. I thank the gentleman. 

I think the next speaker on this side is Mr. Green. You are recognized for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. 

First, I want to take the opportunity to thank all our commissioners for being here. Those of us who have been on this comVerDate Nov 24 2008 10:37 Feb 15, 2012 Jkt 037690 PO 00000 Frm 00135 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-71 070711\112-71 CHRIS
130 

mittee a number of years welcome back our colleague from Kentucky. What you do every day is very important in ensuring the 

health and safety of our citizens, particularly consumer protection, 

but everything. FERC, obviously from Texas, FERC is very important to what we do, and the FCC and of course FTC. 

Mr. Leibowitz, in your testimony you discuss the children’s online privacy protection rule or regulation your agency promulgated 

that helps protect privacy of children online. Can you please tell us 

more about this rule and does it ensure that children are protected 

while using the Internet? 

Mr. LEIBOWITZ. Well, it was a bipartisan piece of legislation 

passed out of this committee, but we also understand that the 

Internet has changed and technology has changed the way children 

use the Internet dramatically in the last few years, and that is why 

we actually moved up our regulatory review of COPPA by 5 years, 

and so we are working with stakeholders. We put out a sort of notice of inquiry and we will have proposed COPPA improvements, 

draft legislation. We always put out—I am sorry, draft rule. We put 

that out. We take comments again, hopefully within the next few 

weeks by the end of the summer. 

Mr. GREEN. And I know for all the agencies, and this is just an 

example, there is a lot of concern about agency regulation, but so 

much of what you do is in response to legislation, whether it is new 

legislation or previous legislation or may have been amended, and 

this is a good example of a rule that frankly as a father, or a 

grandfather now, I can’t possibly monitor what my grandchildren 

may be doing on the Internet but we do need to have protection 

from an entity other than just the family. 

Mr. LEIBOWITZ. Right, and the whole notion of COPPA, which is 

that if you are 12 years old or younger, you shouldn’t be able to 

give consent to have your personal information go to companies on 

the Internet, you need to have parental consent, is a really good 

one, and that is the bedrock of COPPA, the law you passed. 

Mr. GREEN. Some of us might move that age a little higher, but 

I appreciate it. 

Mr. LEIBOWITZ. Some of us might encourage you to do that. 

Mr. GREEN. And beyond issuing standards that require safety 

such as that, you have done children’s cribs. Consumer protection 

safety works on manufacturers to organize recalls and remove dangerous products from the market. 

Mr. Adler, a recall authority has the potential to save lives, 

doesn’t it? 

Mr. ADLER. It certainly does, sir, and I believe we have saved 

many lives. 

Mr. GREEN. And other agencies have tools to help consumers too. 

For example, the FCC has taken steps against consumer fraud and 

deceptive practices through its enforcement powers. 

Mr. ADLER. All the time. 

Mr. GREEN. Mr. Leibowitz, in your understanding, in fiscal year 

2010 your agency initiated 66 court cases to protect the rights of 

consumers. How valuable is that enforcement action? 

Mr. LEIBOWITZ. Well, we think they are critically—we are principally an enforcement agency. We do rules, mostly when you tell 

us to, but what we really do on both the antitrust and the conVerDate Nov 24 2008 10:37 Feb 15, 2012 Jkt 037690 PO 00000 Frm 00136 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-71 070711\112-71 CHRIS
131 

sumer protection side is go to court to stop unfair or deceptive acts 

or practices and to stop people who engage in unfair methods of 

competition, and we have brought a variety of cases protecting privacy, stopping mortgage scams. That is what we do. 

Mr. GREEN. The lawsuits you file can have real impact on individual lives. Is that correct? 

Mr. LEIBOWITZ. Yes, I mean, often getting redress if we win a 

case or if we settle one for injured victims, yes. 

Mr. GREEN. So there is a positive byproduct of agencies issuing 

regulations and enforcing regulations that are based on what Congress passes and the President signs? 

Mr. LEIBOWITZ. Absolutely. 

Mr. GREEN. Mr. McDowell, I was pleased that the chairman of 

the FCC announced that the commission would comply with the 

President’s Executive order on regulatory review. It is important 

that that review is as comprehensive as possible, and I am looking 

forward to seeing the streamlining of the FCC, which I am sure as 

commissioners you would love to have. Given the constant change 

and the growing competition in the communications market, do you 

agree that the FCC should be diligent in reviewing and potentially 

eliminating regulations that no longer protect the public interest? 

Mr. MCDOWELL. Absolutely, in a comprehensive way. 

Mr. GREEN. The biannual review requirement is the commissioner’s major tool to accomplish this. Is this correct? 

Mr. MCDOWELL. It is, but only for telecom companies, not for 

media companies or information service providers, etc. 

Mr. GREEN. Over the past 10 years, the commission has complied 

with its statutory duty to prepare and submit a biannual review? 

Mr. MCDOWELL. Yes, sir. 

Mr. GREEN. Do you believe the biannual review requirement 

should be amended to include other entities? 

Mr. MCDOWELL. I do. 

Mr. GREEN. And would you submit your recommendations for the 

record? 

Mr. MCDOWELL. Yes, sir, and it is my testimony but I will reiterate it too. 

Mr. GREEN. OK. I appreciate it. 

Mr. Chairman, I will yield back my time. 

Mr. STEARNS. The gentleman yields back his time, and the gentleman from Nebraska is recognized for 5 minutes. 

Mr. TERRY. Thank you, Mr. Chairman. Let me first start by 

thanking Jon Leibowitz. First of all, I like the little play between 

the two of you because it kind of signals that you work with both 

sides and work together, and Mr. Kovacic, the way that you have 

answered questions, you are telegraphing or telling us that you two 

actually work together, and I really appreciate that. I think that 

is the way America expects our agencies to work. So I want to 

thank you for that. And Jon, you are doing a good job. I like that 

you are actually—— 

Mr. LEIBOWITZ. Is this a setup? Because—— 

Mr. TERRY. No, there is no ‘‘comma but’’ coming here. I like that 

you are already attacking the issue of finding the regulations that 

are not very useful anymore and don’t serve the purpose. So good 

job. That is exactly what my bill that is in a different committee 

132 

wants every agency, independent agency to do, and it is to provide 

the flexibility. 

Commissioner Northup, we can sit here and say good job on cribs 

but it is amazing to me that we are sitting here talking about bicycles and ATVs and large cars and trucks that, you know, 6- and 

7-year-olds play with but don’t eat but yet we are regulating them. 

So you have to admit, Mr. Adler, there is some absurdity to the 

law. Do you agree with the rules and regulations—— 

Mr. ADLER. I think that Congress basically got the law right, and 

by the way, what you are talking about is a mandate that Congress 

imposed, not that the commission imposed, but there are always 

some portions of the law that need to be reexamined, and the issue 

you raised with bicycles and ATVs is one of those that we are actually taking a look at. 

Mr. TERRY. And in regard to the absurdity of Congress’s mandate—and by the way, I list this as one of those votes that I 

thought if I had to take back, we should have really fought harder 

on this one to make it a better law. 

So Anne, do you have specific requests for us of where we should 

change the Consumer Product Safety Improvement Act? 

Ms. NORTHUP. Well, let me just said if I had been there, I wasn’t, 

but I can imagine that I would have voted for the law. I certainly 

would expect I would have. When I was being confirmed by the 

Senate, I read the law. It seemed like such a good law. I was supportive. So many of the Senators at the confirmation hearing said 

we want you to use all the flexibility we gave you to rationalize 

this law; we believe that bicycles and ATVs and scooters—I mean, 

it goes way beyond those two—carving them out may be some people happy, but like you say, trucks kids play with, the axles in 

those trucks, if they bend, what good are they, but the problem is, 

when you try to—when we have tried to find flexibility, there just 

hasn’t been three out of five votes for that. So it is going to take 

a change in the law. The discouraging part is that even the commissioners can’t seem to agree how sweeping a change they would 

support but we desperately need—— 

Mr. TERRY. Well, do you have flexibility on, for example, thirdparty testing? I think there was an incident when this bill was 

being developed by a toy manufacturer that manufactured in China 

that perhaps there was accusations that their data in-house was 

not correct, so if you are a large international company, mandating 

third-party testing when you found out your in-house testing was 

inaccurate, but do it on a 10-person company in Omaha, Nebraska, 

on tee shirts where on every size and every color doesn’t make 

sense to me. Do you have the flexibility to—— 

Ms. NORTHUP. No, we don’t have that flexibility. 

Mr. TERRY. Is that an area that we should look at? 

Ms. NORTHUP. It is an area. In fact, today there are vast new 

ways to enforce the law. We track things coming in from overseas, 

tools that we didn’t have in 2008. And I would give the commission 

the ability, the flexibility to require third-party testing where they 

think there is risk and they think it will be effective to enforce it. 

It is one of the proposals I have made. It would make a huge difference in the cost of this because as you say, every small business 

133 

is telling us when they have to third-party test every single component individually for lead, when they have to then do random—— 

Mr. TERRY. Or phthalates. 

Ms. NORTHUP [continuing]. When they have to do phthalates, 

when they have to do it to the toy standard, it is extremely expensive. 

Mr. TERRY. Well, and one quick point on that. Do you guys try 

and obtain data, for example, when the third-party testers are telling a small company that prints motorcycles on tee shirts that asking that they test the cumulative effects of 10 tee shirts of the 

same color and size, do you ask, produce one piece of evidence that 

a child has eaten ten tee shirts? 

Ms. NORTHUP. The problem here is that if there is, say, a dot of 

blue paint on that, they need enough blue paint to test to have a 

quantity of blue paint. I will tell you, I have pushed for a component part testing allowing somebody to—and I think we are going 

to pass this, and this is the flexibility that I think would be—is 

probably the most flexible regulation we have where you can take 

your blue paint and test it and then you can put it on every tee 

shirt and you don’t have to tear up the tee shirt. 

But when you talk about bikes, for example, that have 141 parts 

to them and every part, every time you change the shipment of 

spokes, the shipment of pedals, you have to have a new test for 

that, then you have to change the label so it reflects the component 

test that was used, it is very complicated. 

Mr. STEARNS. The gentleman’s time has expired, and Ms. 

Schakowsky, the gentlelady, is recognized for 5 minutes. 

Ms. SCHAKOWSKY. Thank you. 

You know, I think we all here agree that it is important for regulatory agencies to be efficient and mindful of the impact of regulations on businesses, and I think we all agree. I helped negotiate 

this bill. I am very proud of the legislation. But Henry Waxman introduced legislation that would deal with some of the unintended 

consequences. I think maybe we as a committee ought to take another look at that legislation, and I know that the commission 

would be willing, as I understand it. Is that not true, Mr. Adler, 

on behalf of Mr. Tenenbaum and Ms. Northup? I think we ought 

to look at that. 

But let me just say, to go back to risk-based assessment, that is 

what we had before, and I think that what we have found is that 

why we regulate and that is because time and time again industry 

has shown that they aren’t going to police themselves, and that we 

need to do it, and one of the issues is the industry standard for 

cribs, and we had a press conference with the attorney general in 

Illinois on June 28th when the crib standard went into effect, and 

I congratulate all of you on that, although I have to say, I was disappointed to see the press release that went out that, you know, 

we didn’t give people enough time when of course you had said earlier that you wished it had gone into effect the next day so that 

parents could be sure when we put our kids to bed alone or grandchildren that they are going to be safe. 

So let me ask you, Mr. Adler, do you consider the crib standard 

to be an example of a victory for the Consumer Product Safety Improvement Act? 

134 

Mr. ADLER. I think it is one of the finest things that has been 

done under the Consumer Product Safety Improvement Act. It is 

taking children who are our most vulnerable involuntary risk takers who are put in cribs that have to be the safest place in the 

home because they are there for long periods of time with no supervision, and it is saying that we have the most stringent safety 

standard in the world. I think it is really a magnificent achievement and I commend the Congress for directing us to—— 

Ms. SCHAKOWSKY. And in fact, in the regulation, you did give 

some places that might have cribs some time to comply. Is that not 

true? 

Mr. ADLER. We did, and I am delighted to respond to the issue 

that Commissioner Northup and I disagree on with respect to the 

independent retailers. I think that we had a group that said we 

need more time but we had another group that said please, please, 

please do not give more time, we have compliant cribs and we are 

prepared to sell them right now. 

Ms. SCHAKOWSKY. I ant to mention on the database, I have an 

op-ed from a gentleman in New Jersey whose daughter was injured 

by a crib in 2007. He called the manufacturer and asked if they 

had any other complaints about the crib and was told no, there 

weren’t any, but actually found out that there were 84 reports to 

similar problems. Fortunately, his daughter was not hurt very bad. 

So Mr. Adler, the public information database was created by the 

CPSIA because previously, manufacturers would not, and the 

CPSC could not share lifesaving information with consumers. Is 

that correct? 

Mr. ADLER. That is correct. I think the database is one of the finest pieces of the Consumer Product Safety Improvement Act. 

Ms. SCHAKOWSKY. So do you think that it actually is serving the 

function of making consumers more aware? 

Mr. ADLER. It is, and I might just quickly point out that it is 

modeled after a similar database at the National Highway Traffic 

Safety Administration. Ours actually has more due-process rights 

for manufacturers than they do at NHTSA, and I think it is a very 

balanced piece that provides the proper attention to disclosure to 

protect consumers with the rights of manufacturers to make sure 

that the information is correct. 

Ms. SCHAKOWSKY. Do you think that Congress should force the 

Consumer Product Safety Commission to do a full cost-benefit analysis every time it takes steps to protect children from harmful 

products no matter how dangerous those products are? 

Mr. ADLER. I actually think Congress got it right. Congress didn’t 

say regulate with no attention to the economic impact. Congress 

said that when we regulate with respect to children, that we need 

to follow the dictates of the Regulatory Flexibility Act, and one of 

the things I like about that is, it is focused on vulnerable small 

business. That is the group that we are supposed to make specific 

economic findings with respect to when we are trying to protect our 

most vulnerable consumers. 

Ms. SCHAKOWSKY. I think I will yield back the 2 seconds I have. 

Thank you, Mr. Chairman. 

Mr. STEARNS. I thank the gentlelady. The gentleman from Texas, 

Dr. Burgess, is recognized for 5 minutes. 

135 

Mr. BURGESS. Thank you, Mr. Chairman, and Commissioner 

Northup, it is good to see you here. 

Ms. NORTHUP. Thank you. 

Mr. BURGESS. It is amazing you got confirmed by the Senate, so 

congratulations on that. What an accomplishment. 

And I apologize for being late. We had a Health Subcommittee 

hearing going on simultaneously. Can you give us an idea of the 

scope of the effect on the retail industry on this crib ban that has 

now gone into effect? I mean, I realize that the other commissioner 

said a cost-benefit analysis is not necessary but still, there has got 

to have been an impact. 

Ms. NORTHUP. Let me just say, first of all, the regulatory flex 

analysis that we do is only—it is like checking a box. Sometimes 

it is a paragraph, sometimes it is a page. It says that small businesses are going to be affected, we are going to put some out of 

business, but we go right ahead and regulate. There is nothing, 

there is no requirement that it be cost-effective. 

What happened with the crib standard was, is that we issued it 

and we considered at the request of manufacturers how long it 

would take for them to get the new qualifying cribs tested, thirdparty tested, and into the market. Six months was decided. We 

didn’t really think about retailers. There was one sentence in our 

rule that said we think 3 to 6 months is enough for retailers too. 

Unfortunately, it took longer to get them developed, it took longer 

to get them tested, and by the time they got them to the retail 

stores, the retail stores, some of the orders they had placed last November arrived a week before the new standard took effect. They 

were not third-party tested, and so they were junk to them. How 

many? Well, we know that one group of retailers that did a survey 

had 17,000 of them. We know that we called five, not our biggest 

stores but five major retailers; they had 100,000 as of the 1st of 

June. That comes to about $32 million worth of materials that will 

have to be thrown away if they are not—and these are not dropside cribs. These are not even cribs that are almost identical to the 

standard. They haven’t been third-party tested or certified. But the 

new crib standard that went in in 2009 was the basis of our crib 

standard. And let me just say, if these are unsafe, then why we 

would have allowed daycare centers, the motel-hotel industry, 

leasers 2 years before they had to place them? It is because we did 

not believe they were unsafe. 

Mr. BURGESS. That is a valid question. 

In the winter of 2008, it was kind of a bleak time up here on the 

Hill, and with no thought to my personal safety, I took a trip to 

the CPSC and looked at the testing facility. It is remarkable in 

that it is very Spartan. There are certainly no—— 

Ms. NORTHUP. We have a new one now. 

Mr. BURGESS. Oh, you do have a new one? 

Ms. NORTHUP. Yes. We just moved 3 weeks ago. 

Mr. BURGESS. This was an old missile base, as I recall, when I 

went out there, and I was struck that the folks there were working 

diligently and they were quite inventive and innovative, and I actually took a great deal of confidence away from that, but at the 

same time, I will never forget sitting in that press conference that 

the people on the youth motorcycle thing put together a couple of 

136 

years ago, a beautiful little blond-haired boy about 10 years old in 

full motocross regalia standing at the microphone and said Mr. 

Congressman, if you will let me ride my bike, I promise I won’t eat 

the battery when I am finished. And you know, that is the level 

of absurdity to which we have sunk. 

Ms. NORTHUP. This testimony today has been fascinating, hearing the agency talking about the DNA, the DNA of the CPSC is 

really fabulous, but that has all changed because of the Consumer 

Product Safety Improvement Act and the rulemaking that we have 

done in compliance with levels and requirements that are unrelated to risk. For years this agency was risk-based, it worked with 

the Voluntary Standards Committee, which is very important because products emerge, they evolve, and these voluntary standards 

keep up with these evolutions. Any time we didn’t think they were 

strong enough, we had the right to intervene, and we did, as my 

colleague pointed out. 

Mr. BURGESS. Let me just briefly, I do need to ask our friend 

from the Federal Trade Commission a question on the—familiar 

with the ACO—if you read the Federal Register, you may be aware 

that there was a health care law signed last year that has caused 

some of us some grief, and when this new accountable care organization reg came through, did you guys participate in the writing of 

that regulation? 

Mr. LEIBOWITZ. Well, we participated. It is principally from CMS, 

as you know, and we participated—— 

Mr. BURGESS. Well, what I know is, when we had the briefing, 

they had one guy from CMS and two guys from the Federal Trade 

Commission. 

Mr. LEIBOWITZ. One from the Federal Trade Commission and one 

from the Department of Justice because we wrote it with the Department of Justice, or maybe two from the Federal Trade Commission and one from the Department of Justice. So we did the antitrust component, and their draft guys were taking comments, we 

did a workshop. And can I just say one other thing? And I will turn 

it back over to you. 

We believe that competition is critically important to health care, 

not regulation, and so what we are trying to do with the ACO implementation—you know, ACOs are a brave new world and very 

uncertain, but what we are trying to do is make sure that competition principles remain. 

Mr. BURGESS. Look, you give the antitrust exemption to Major 

League Baseball, the National Football League, but here is the 

deal. The 21st century health care model, and this was started in 

the previous Administration with Secretary Leavitt, has been continued with Don Berwick at CMS, and now we have got an ACO 

rule that doesn’t work in actuality. The rule is—you put something 

that was working in practice and rendered in invaluable in theory, 

and that is the problem that I see with what you have done. 

Mr. LEIBOWITZ. Well, look, we have certainly—one of the reasons 

we put out draft guidance—and again, we have a small component 

of it. It is only the competition portion. One of the reasons why we 

put out draft guidance and why we are meeting feverishly with all 

stakeholders is, we want to make sure that, you know, to the extent that there is an uptake on ACOs, the notion, you pick up 

137 

vertical efficiencies by putting together, as you know, different doctor practices, lab testing facilities and a hospital, is not a bad one. 

We want to make sure that you don’t have one dominant provider 

so that it soaks up all the efficiencies, and we also—— 

Mr. BURGESS. What about the Karen Ferguson? I mean, you give 

a dominant provider status to insurance companies. 

Mr. STEARNS. The gentleman’s time has expired. 

Mr. LEIBOWITZ. We will just point out, we cannot review the insurance industry. We are exempted from that. But yes, I hear what 

you are saying. I don’t think we are in disagreement. We are going 

to try and make it work better. 

Mr. STEARNS. The gentlelady, Ms. Christensen, is recognized for 

5 minutes. 

Mr. CHRISTENSEN Thank you, Mr. Chairman, and I want to also 

add my thanks to all of the commissioners for being here, and as 

I listen to the testimony, it seems that all of the independent agencies that you represent have been undergoing some regulatory reform and even though you are not under the Executive order, that 

you have really gone beyond what you had been doing to keep in 

spirit with the Executive order, and I commend you for that. 

I sat on the Small Business Committee for about 10 years, and 

each of you is governed by the Regulatory Flexibility Act, and so 

you are required to look at how the impact of your regulations on 

small business reviewed. I was going to ask Commissioner 

Northup, my classmate—— 

Ms. NORTHUP. Yes. 

Mr. CHRISTENSEN [continuing]. About the effectiveness, but you 

have already kind of said that it is not effective. Is it the experience of the other commissioners that the Regulatory Flexibility Act 

does not do enough to protect small businesses? 

Mr. ADLER. I don’t agree with my colleague about that. I think 

that especially with respect to the impact of the Regulatory Flexibility Act on our agency, I think it has been a very good provision. 

I was just reviewing section 604 of the Regulatory Flexibility Act, 

and to me, it is a smaller but focused cost-benefit analysis and it 

is something I think the commission has done very conscientiously. 

Mr. CHRISTENSEN Did I misinterpret what you said? 

Ms. NORTHUP. No. It is often just a paragraph in a long rule, and 

even if we find that it will impact small businesses, it is not even— 

it doesn’t require us to decide it is still worth going forward to 

make any changes to our rules. It has no impact on the rules that 

I—one or two maybe but very few that I can remember ever. 

Mr. CHRISTENSEN Does anyone else have that experience that 

RFA—— 

Mr. MCDOWELL. I find it to be toothless, and if you look at it 

from an appellate perspective, the appellate courts agree, there is 

really nothing the courts can do to make agencies change their 

rules based on the RFA. 

Mr. CHRISTENSEN That would be very disappointing, but it seems 

as though most agencies have had—most of the commissions have 

had good experience with the act. 

Mr. KOVACIC. I think, Madam, that it has some limited effect in 

focusing our attention on things that are important but I think 

there are a number of other things we have done that have tended 

138 

to be more significant and have come from within, and we would 

be glad to share those with you at your pleasure. 

Mr. CHRISTENSEN Thank you. And what I have been hearing is 

that most of the commissions have gone beyond what really has 

been required, and I appreciate that. 

Commissioner McDowell, on June 20th, you wrote a letter to 

Chairman Genachowski offering several recommendations on how 

the FCC should be reformed. You suggested reforming it to be more 

transparent, efficient, accountable and fiscally responsible, and 

from prior testimony to date, we have learned that Chairman 

Genachowski has proactively implemented some of those changes 

to facilitate your suggested reforms. Through these reforms, the 

FCC has improved external communications by creating a more 

user-friendly Web site which includes providing live streams of all 

public workshops and meetings. Do you think this new Web site 

has enhanced public participation and access to FCC activities? 

Mr. MCDOWELL. Well, the FCC’s Web site right now is a bit controversial. It depends on which segment of the audience that uses 

it you ask. 

Mr. CHRISTENSEN You don’t think that it has enhanced public 

participation? 

Mr. MCDOWELL. Certainly in general, I think, Chairman 

Genachowski has taken some discreet steps on an ad hoc basis but 

I would like to see more comprehensive reform done. 

Mr. CHRISTENSEN But the FCC has also made effort to collect 

broader input from the public and industry, which included having 

more than 85 staff-led public forums and reinvigorating external 

advisory committees. Do you think these efforts have allowed for 

an increase in public participation? 

Mr. MCDOWELL. Absolutely. 

Mr. CHRISTENSEN In fact, you have had several workshops on the 

national broadband plan to discuss potential reforms to the Universal Service Fund. Do you think that those workshops have been 

helpful? 

Mr. MCDOWELL. They have, certainly. 

Mr. CHRISTENSEN OK. And although the FCC is not subject to 

President Obama’s Executive order on regulatory reform, the FCC 

initiated their own look-back process which also is included in the 

statute. According to a letter Chairman Genachowski sent to Chairman Upton and Chairman Walden, this effort has resulted in the 

agency’s eliminating and/or revising 49 regulations and identifying 

more than 20 sets of unnecessary data collection requirements for 

possible elimination. Is that correct? 

Mr. MCDOWELL. I don’t know. I haven’t seen the list of the 49 

or the 20, so I am not quite sure. 

Mr. CHRISTENSEN Does it sound reasonable? 

Mr. MCDOWELL. And I don’t know if some are mainly data collection. I think the proceeding, as I understand, under section 11 that 

was initiated really was focused primarily on data collection, although it has general language in there, but the thrust of it was 

data collection and not just a comprehensive review of all of our 

rules that apply to all the entities regulated by the commissioner. 

Mr. CHRISTENSEN Well, our information is that 49 regulations 

and identifying maybe 20 sets of unnecessary data. So it seems to 

139 

me that the FCC’s current leadership has been really successful in 

implementing new ideas on how to improve current regulations, 

and I look forward to hearing more from the commission and their 

continued focus on ensuring public participation and open exchange 

of ideas that improve the work of our government. 

My time is up. I yield back. 

Mr. STEARNS. I thank the gentlelady, and the gentleman from 

California, Mr. Bilbray, is recognized for 5 minutes. 

Mr. BILBRAY. Thank you. 

Mr. Adler, you were bringing up this issue of trying to make sure 

that we have the safest cribs in the world, as we say. What percentage of the cribs that are on the market in the United States 

have elevated platforms or are made of a hard material—wood, 

plastic, steel? 

Mr. ADLER. I don’t know the answer to that. I would be delighted 

to—— 

Mr. BILBRAY. Would it be fair to say the overwhelming majority 

of them have elevated platforms or are made of hard material? 

Mr. ADLER. I think that makes sense. 

Mr. BILBRAY. And wouldn’t you agree that any elevated platform 

or material when you have a child, you have a potential for injury 

because of dropping off of an elevated platform or injury because 

some activity that may end up meaning impact with the hard material, so there is a risk in both of those design features? 

Mr. ADLER. That is an excellent point, and the commission standard is addressed to what we consider the unreasonable risks, but 

I don’t think we could make that a fatality-free zone under all circumstances. 

Mr. BILBRAY. OK, and that is the point, is what is a reasonable 

level. You know, you could sit there and say that because we do 

not require all cribs to be on the ground, we do not require all cribs 

to be made of inflated material or soft material, it is not the safest 

it could be. It is reasonableness, and I think that is a determining 

factor. Wouldn’t you agree? 

Mr. ADLER. I would absolutely agree with that, but what we have 

done is make the cribs that are produced in the United States the 

safest within the types of fatalities that we think that—— 

Mr. BILBRAY. I just think that—and I appreciate that, making 

sure that, you know, we make these claims and these statements 

and elected officials or as public officials but it is reasonableness 

that really is the determining fact, and that is where the judgment 

issue has to come down. 

Let us talk reasonableness, Mr. McDowell. You recently discovered that the so-called Fairness Doctrine was still on your books, 

almost a quarter of a century after it was abandoned. Do you think 

it is reasonable that a federal agency has basically misinformation, 

if not, some people may say the lingering lie of the Fairness Doctrine on your books? Do you think it is reasonable that almost a 

quarter of a century after a regulation isn’t there, it still is being 

stated as being part of the process? 

Mr. MCDOWELL. I don’t think it is reasonable that the language 

remains on the books, if that is your question. 

Mr. BILBRAY. And what are we doing to make sure that this mistake isn’t throughout your regulatory guidelines so the public and 

140 

the business community can read something and find out is it the 

gospel or isn’t it? 

Mr. MCDOWELL. Exactly. If the commission has opted not to enforce the rule, the rule should disappear from the books. 

Mr. BILBRAY. OK. Let us get down to the fact that the FCC has 

taken nearly 12 months—and I will say this. I spent decades in 

regulatory agencies so I understand how tough it is when you are 

in a regulatory agency of trying to take the theory of legislation 

and make it a practical application. But when you have got decisionmaking that is delayed for over 12 months, you know, and 

there is nothing on the books that requires you to make a decision 

in what is a reasonable time period, don’t you think—is there anything to make you make a decision in less than 12 months? 

Mr. MCDOWELL. Certainly, statutory language helps. There is 

nothing like the force and effect of law. But even that sometimes 

is not observed. For instance, the video competition report we are 

required to produce every year, the last time I think I voted on one 

was in 2007. 

Mr. BILBRAY. OK. So in other words, we need to basically tighten 

it up but also have some enforcement on that tightening. I will just 

tell you, somebody that built the light rail system in San Diego, we 

abandoned any federal funding just so we could avoid the regulatory oversight, and we built that system under budget and on 

time because we didn’t take federal funding, and I think that is one 

of the things we don’t talk enough about. People want transit, they 

want this, they want that. Sometimes the most important component to get the public the services that you claim you care about 

is getting the federal regulatory agencies out of the way so you can 

get the job done, and that is why I would just like to state down 

the line. 

Mr. Moeller, you were talking about hydroelectric. When you are 

reviewing the hydroelectric and the relicensing, are you required to 

consider the no-project option and the environmental damage done 

if you don’t approve it? Things like climate change, emissions, pollution, and that kind of thing, are you required to basically take 

a look at this and understand that if you do not approve it, it will 

have an adverse impact because the alternative-energy capabilities 

or generation is going to cause pollution where the hydroelectric is 

not. 

Mr. MOELLER. Well, typically, I think of the no-action alternative 

as truly no action as opposed to perhaps modifying or taking out 

a dam and then the consequence being that it would be a result 

of more generation that would be less environmentally friendly 

than hydro. But typically I think it essentially doesn’t get to that. 

It is a long settlement process where—— 

Mr. BILBRAY. But you don’t have a specific requirement that you 

have to consider offsets for shutting down a plant? 

Mr. MOELLER. Not that I am aware of. 

Mr. BILBRAY. Well, that is one of those things that I think we 

need to talk about, Mr. Chairman, more, is that, you know, when 

you don’t improve a road improvement, you should have to offset 

the pollution caused by the congestion rather than always we look 

at all of the emissions that happen for construction. But the noproject option and the environmental and economic and social imVerDate Nov 24 2008 10:37 Feb 15, 2012 Jkt 037690 PO 00000 Frm 00146 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-71 070711\112-71 CHRIS
141 

pact of that need to be considered but the environmental impact is 

one that if individual a real hypocrisy that you want to have offsets 

for the emissions caused for building the project but nobody who 

is stopping the project has to account for the environmental pollution by not finishing the project, and I yield back, Mr. Chairman. 

Mr. STEARNS. I thank the gentleman, and the gentleman from 

Louisiana, Mr. Scalise, is recognized for 5 minutes. 

Mr. SCALISE. Thank you, Mr. Chairman. I appreciate you holding 

this hearing. I appreciate all of the commissioners who have come 

here to participate and talk about the costs of regulations, especially how it impacts people, and when you look at lot of the intent 

and what is usually said about regulations that come out, they all 

sound really good and, usually the name of a bill, you can tell how 

bad it is by how good the name sounds. It is usually an inverse 

proportion. 

And so as I talk to people, our economy is still very sluggish 

right now, and of course, in many cases, when you talk to small 

business owners, when you talk to American job creators, as many 

of us do, the first thing they will tell you that is the biggest impediment to job creation in America are federal regulations. You know, 

all of the other things that get in their way, they can manage. It 

seems like the federal regulations have become the biggest burden 

to creating jobs in America today, and so when you look at some 

of these regulations, you definitely want to look and see what is the 

real impact, are they even achieving some of the results that they 

were intended to, and in many cases you find out they are not, and 

then you look at some of these agencies, and we have had a number of hearings and I appreciate the chairman having the hearings 

that we have had going through various agencies, even looking at 

the President’s Executive order, and we have seen and it has been 

pointed out even by some of the people implementing it the shortcomings of the President’s Executive order, how it doesn’t really get 

at the cost of regulation, and I read, there was a report that was 

recently done by the Small Business Administration that is titled 

the Impact of Regulatory Costs on Small Firms, and this really 

looked at how it impacts our small businesses, the people that actually create the bulks of the jobs in our economy and, you know, 

I guess it is not surprising for those of us that have been in some 

of these hearings but they talk about the cost of federal regulations 

to small businesses is over $1.7 trillion, and how does that break 

down? I broke it down per family. Over $15,000 per family is the 

cost to small businesses of these regulations. And so when you look 

at the regulations and when you look at the impact and how it is 

not only affecting jobs, it is a major impacter that is costing us jobs 

but it also costs every American family over $15,000. You say 

where is the bang for the buck. 

And I want to ask Commissioner Northup, you touched on this 

in your opening testimony. You talked about some of the things you 

have seen, and you have seen businesses go under, actually go 

bankrupt because of some of these regulations, and in many cases 

had actually no health impact, you know, bills that were sold and 

regulations that were sold as helping the health of children had actually nothing to do with health and it just had to do with some 

kind of radical policy somebody had that didn’t help anybody’s 

142 

health, it just made a company go bankrupt. Can you expand on 

some of the things you have seen in terms of how these regulations 

not only impact the businesses that you have talked about but also 

how in many cases there is not even a relationship between health 

and—— 

Ms. NORTHUP. Well, I will give you two quickly. One of them is 

the—in the bill that you passed, you had exclusions with the lead 

limit for electrical products, and we have a whole cutout for that. 

You had exclusion for inaccessible parts, and we have addressed 

that. You also had an exclusion for lead where not any lead could 

be absorbed. I assume you meant for some things to be included 

in that, perhaps screws, nuts and bolts that are holding a crib together, maybe the handlebars of a bike because lead in the handlebars, if you suck on it, unlike paint, it is trapped in that metal. You 

can’t suck out the lead. But our agency, even though I proposed a 

de minimis standard where if you rub the handlebars and less than 

a molecule could be gotten off that, it couldn’t possibly change your 

blood lead content, that absorbability exclusion that you wrote in 

the bill, I intended you meant for it to apply to something. And the 

rest of the commissioners decided no, and so basically they have 

found that even though you wrote in the non-absorbability exclusion, that it applies to nothing, that there is not one material that 

it applies to. 

If we had nuts, screws, bolts, things that can’t be swallowed, 

things that have small amounts in them that are in lead, trapped 

in—excuse me—trapped in steel, that those things would have been 

excluded from this law. It would have made a huge difference. 

Mr. SCALISE. Let me ask, and I am running out of time. I want 

to ask just by a show of hands how many people have actually read 

this report that came out just a few months ago on the impact to 

small businesses of the regulations? Can I get a show of hands? 

Not one person on the panel read this. I think it should be required 

reading for all regulators. But if I can ask unanimous consent to 

submit this into the record? 

A final question, if I can ask—— 

Mr. STEARNS. Before we put it in the record, the minority would 

like to look at it. 

Mr. SCALISE. Sure. I will be happy to hand that over. It is a report that was published in September of 2010. It cites a number 

of sources but goes into very good detail on sector of breakdowns, 

also differential between large businesses and small, how they differentially fall higher even on our small businesses. 

Commissioner McDowell, you gave an assessment on the things 

that the FCC did to take into consideration. It was looking at both 

net neutrality and data roaming rules. Did they look into and do 

proper market analysis, in your opinion, to look at the impact how 

that would be on our job creators? 

Mr. MCDOWELL. There was no proper market analysis, no finding 

of market power. In fact, the order, the net neutrality order says 

as much, that there was no market analysis conducted. 

Mr. SCALISE. See, that is the problem with a lot of these regulations that come down. They have dramatic impacts on job creators 

and they cost us jobs, run jobs to other countries, and yet it just 

seems like the regulators kind of go into their own shell and are 

143 

oblivious to the actual impact on our economy, so hopefully we can 

shift that course, and I appreciate the chairman for having this 

hearing and more like it to get our economy back on track. 

Thanks. I yield back. 

Mr. STEARNS. And the minority has looked at this, so by unanimous consent, this will be made part of the record, so I thank you 

for bringing this. 

[The information appears at the conclusion of the hearing.] 

Mr. STEARNS. The gentlelady from Tennessee, Ms. Blackburn, is 

recognized for 5 minutes. 

Mrs. BLACKBURN. Thank you all for your patience in being here. 

Commissioner McDowell, I want to stay with you. On that net 

neutrality order, no market analysis done, no look-ahead at what 

the cost-benefit analysis was going to be. If there had been that 

analysis done, do you believe the commission would have gone 

ahead and issued that order? 

Mr. MCDOWELL. I think so. I think that whole proceeding was 

outcome based, outcome driven. 

Mrs. BLACKBURN. Chairman Leibowitz, I want to come to you. I 

am concerned about the FTC’s food guidelines, food marketing 

guidelines. I have two grandchildren. They are age 3 and age 2. 

And so things of this nature really I pay a lot of attention to. You 

know, you think about the unintended consequences that are going 

to come forward with this, and I think that you may see is that 

an unintended consequence could be seen as hampering free 

speech, harming our economy and not having a significant reduction in childhood obesity, and one of the things that I have found 

recently is that the food currently sold through the WIC program, 

which is designed by USDA experts to provide a healthy diet for 

young children, could no longer be marketed under this proposal. 

So you claim these proposed food marketing restrictions are voluntary but aren’t these government standards going to form the 

basis for NGO attacks? And then also talk about what you think— 

I think that you could see there should be consider about shareholder actions, so if you will address that quickly, please? 

Mr. LEIBOWITZ. Thank you, Congresswoman. Well, first, as you 

know, this was an obligated requirement. We are not the only 

agency. We do the marketing side. We don’t do the science side. 

That is the agriculture department, the CDC and the FDA. But it 

was a Sam Brownback, Tom Harkin obligation in our appropriations bill. We are obligated to do what Congress tells us to do. It 

is voluntary. So in that sense, there is no enforcement mechanism. 

We are taking comments from stakeholders. And let me just say, 

and you recognize, as we all do, there is an obesity crisis and there 

are twice as many obese children as there were a generation ago, 

but speaking only for myself, you know, I try to take a sort of pragmatic approach here. If my kids eat Special K with yogurt in the 

morning, which actually wouldn’t quite meet the nutrition guidelines, I am pretty happy, because you know what? I think that is 

better than what else they might eat or better than not eating anything at all. So my understanding is that within the next week— 

first of all, we will be getting comments and we will be reviewing 

those comments very seriously from stakeholders, but within the 

next week, my understanding is that the food marketing companies 

144 

are going to come up with some proposed standardized or uniform 

guidelines. If they come up with guidelines that are good, and I 

think they will, then we ought to take that into account going forward member of the working group, and we will. 

Mrs. BLACKBURN. Let me shift gears with you. I want to go to 

the privacy issues that are out there, and we know that the Internet online advertising is really an economic engine in this country 

and the industry is beginning to voluntarily enter into some selfregulatory structures when it comes to privacy. Do you believe the 

FTC should impose a top-down technology mandate on the Internet 

governing the privacy issue? 

Mr. LEIBOWITZ. It is the last thing we want to do, no. 

Mrs. BLACKBURN. OK. Thank you for that. I appreciate that. I 

think that just as I said with Chairman McDowell, if you were to 

look at the net neutrality issue, if there had been a robust review 

of cost-benefit analysis, I think that it would have been determined 

that the net neutrality order, especially paragraph 84, was going 

to be detrimental to our economy, and I think that a heavy hand 

on the privacy issue would likewise. 

I have got less than a minute. I want to ask each of you, just 

a show of hands, how many of you have read the Executive order 

that we are discussing and have been through the process of reviewing that? OK. So all of you have. All right. How many of you 

disagree with any part of that order? Is there any part of that 

order that you have disagreement with? Yes, sir, go ahead. 

Mr. KOVACIC. I don’t think—I think a number of the provisions 

aren’t very well specified. I think it could have benefited from a 

much fuller discussion about how it intended specific tradeoffs that 

are implicit in the order were to be made. There has been subsequent guidance, subsequent commentary. It is a nice start. 

Mrs. BLACKBURN. OK. Anyone else? Commissioner? 

Mr. MCDOWELL. I would agree. I think it could be broader and 

more comprehensive and more aggressive. 

Mrs. BLACKBURN. OK. Any other addition to that? Thank you all 

for your patience. Yield back. 

Mr. STEARNS. The gentlelady’s time is expired. The gentleman 

from Virginia, Mr. Griffith, is recognized for 5 minutes. 

Mr. GRIFFITH. Thank you, Mr. Chairman. 

Commissioner McDowell, it is nice for me to be able to say that 

in a formal setting in my new role. When I look at the FCC’s merger review process under Republican and Democrat Administrations, 

I see a process that appears to be broken. The XM and Sirius merger took way too long. The Comcast-NBC merger took way too long. 

There is simply too much discretion for the commission to halt the 

timeline for the review of the transfer of control of licenses in an 

expeditious manner. Is there something we can to provide applicants with certainty regarding the timing of the FCC review process? 

Mr. MCDOWELL. And Congressman Griffith, it feels good to say 

that as well, my first time saying that publicly, so congratulations. 

Yes, the FCC has an 180-day shot clock that is honored more in 

the breach that in the rule to get mergers done. I read yesterday 

also that the Assistant Attorney General for Antitrust, Christine 

Varney, is stepping down and there is a big merger, the AT&T and 

145 

T-Mobile merger, that needs a fair, thorough and expeditious review, and I would hope that her stepping down doesn’t delay that. 

I think we could get that done by the end of the year in a fair, 

thorough manner. 

But I have been in a dialog with Chairman Genachowski about 

making sure that we move as quickly as we can on our merger review process. I think there are a lot of problems with how the commission under both Republicans and Democrats have conducted 

themselves in terms of taking too long or imposing conditions that 

have absolutely nothing to do with the substance of the merger 

itself. So Congress could look at that. There could be a statutory 

provision certainly, but the best thing to do would be for the FCC 

to honor its own 180-day shot clock. 

Mr. LEIBOWITZ. So Congressman, may I just add something? 

Mr. GRIFFITH. Yes, please. 

Mr. LEIBOWITZ. We do from time to time work with the FCC on 

merger reviews, and I think from our perspective, you don’t deserve 

a particular outcome but you do deserve sort of a speedy resolution. 

Sometimes it takes a little longer with documents, but that is what 

you deserve, so I think that is a reasonable point. 

Mr. MCDOWELL. And I agree. 

Mr. GRIFFITH. And I think most of us would agree with that as 

well. 

Commissioner Northup, do you think Congressman Waxman’s 

proposed legislation will actually ease any burdens under the Consumer Product Safety Improvement Act? 

Ms. NORTHUP. No, I don’t think it goes nearly far enough, and 

in fact, he has proposed previously a functional purpose exemption 

which I have to say is like picking winners and losers. If you think 

a part—first of all, it says it can’t be harmful to children and then 

it says if it serves a function, for example, on a bicycle and is necessary, then we can exempt it. Well, if it doesn’t harm a child, why 

do we have to then exempt it in part by part? It means that big 

companies that have lots of product or big expensive products can 

afford to get a functional exemption because it is a very complicated petition you would have to file with us. They can afford to 

file the petition and all the supporting work and everything and 

then we can exempt them but for small needs for these same exact 

materials that do not harm a child, I don’t think that, you know, 

they probably would be able to afford either the wait for us to act 

on it or the cost to put the petition together. So that in particular 

to me is, you know, not a good way to go about easing this. Making 

the absorbability a useful exception would make a huge difference. 

Mr. GRIFFITH. Did you want to add onto that? 

Mr. ADLER. Well, I wanted to disagree. 

Mr. GRIFFITH. Somebody else may give you time to do that but 

let me—I have got one more thing I want to say and if I could take 

back my time because I am running out of time. I did hear from 

several of you as I was listening to the testimony that you all, at 

least a couple of you, made mention that perhaps the legislation 

created more of the problem than the agency created and that we 

should be careful when we craft legislation that that may be costing jobs as well as the regulations costing jobs that are ultimately 

awarded, and while in some cases it may be an agency that is 

146 

pushing the envelope and some cases it is just the agency following 

exactly what Congress told them to do, and I do appreciate that. 

I yield back my time. 

Mr. STEARNS. The gentleman yields back the balance of his time. 

The gentleman from Colorado, Mr. Gardner, is recognized for 5 

minutes. 

Mr. GARDNER. Thank you, Mr. Chairman, and thank you for your 

time and testimony today. 

Chairman Wellinghoff, in developing energy policies such as policies to support the integration of renewables, demand response or 

the deployment of smart grid technologies, does FERC evaluate the 

impact that increased energy price, evaluate the impact that increased energy prices resulting from the implementation of these 

policies will have on jobs? 

Mr. WELLINGHOFF. The policies that we implement aren’t directed to specific technologies but rather directed to the integration 

of all technologies into competitive marketplace. We believe, and I 

think my colleague, Commissioner Moeller, I think would agree, we 

believe that competition is good for consumers and so to the extent 

that we can maximize competition, we can increase the types of resources that are available in the market, whether they be coal or 

nuclear or natural gas or solar, geothermal, hydroelectric or any of 

these resources, and also to the extent that we can do things like 

incorporate in demand response and energy efficiency which usually at the lowest cost resources, the whole mix of those resources 

in a competitive environment allowed to compete fairly in that competitive environment will in fact produce the lowest cost for consumers. 

Mr. GARDNER. So do you do an analysis that these policies, the 

impact they will have on jobs? 

Mr. WELLINGHOFF. We don’t a specific impact on—— 

Mr. GARDNER. So you don’t do an analysis then? 

Mr. WELLINGHOFF. We don’t do a specific analysis. 

Mr. GARDNER. A specific analysis on jobs? You do not do a specific analysis on jobs? 

Mr. WELLINGHOFF. We don’t, but we do believe that—— 

Mr. GARDNER. So in terms of—— 

Mr. WELLINGHOFF. Excuse me, if I could finish. We do believe—— 

Mr. GARDNER. Actually, reclaiming my time. In terms of the Executive order, so you do not believe that the Executive order, which 

I think you said you believe in the spirit of, you do not believe that 

it requires you to look at jobs? I understand that you are exempted 

from it but you believe, you said you want to follow the spirit of 

it. Do you think you ought to be concerned about jobs and looking 

at the job impact? 

Mr. WELLINGHOFF. I think we are always concerned about jobs 

to the extent that we can drive down prices in a competitive atmosphere and allow for the economy to have access to low-cost power. 

To the extent that we can provide low-cost competitive power within the economy, we are going to create jobs and we are going to 

maintain jobs. 

Mr. GARDNER. But you don’t do an analysis to know that or not? 

147 

Mr. WELLINGHOFF. My basic economics, what I know if basic economics, tells me that if we can lower costs for electricity, we are 

going to have the ability to increase jobs. 

Mr. GARDNER. Would you commit today to start beginning a jobs 

analysis when you make decisions? 

Mr. WELLINGHOFF. I certainly have no problem looking at jobs. 

I believe, for example—— 

Mr. GARDNER. But shouldn’t that be our—— 

Mr. WELLINGHOFF [continuing]. Your colleague from Louisiana, 

for example, was talking about this issue with respect to jobs and 

regarding that, Entergy, which is one of the utilities in Louisiana, 

has chosen to join a competitive market, Myso. An analysis was 

done that showed by joining that competitive market, something 

over $700 million could be saved. I think there is a lot of money 

if you can take that money and save it for Louisiana consumers 

and others throughout the region. It wasn’t just Louisiana but 

spread out the region. That additional money in the pockets of consumers is going to help them create jobs and invest back in the 

economy in ways that more jobs will be created. So I think that is 

a very valid example of the types of things that FERC is doing to 

the regulations and the competitive structures that we are putting 

in place to ensure that in fact we can create more jobs. 

Mr. GARDNER. Well, and then so what you are telling the committee then, and I believe what you just said, though, when it 

comes to developing energy policies like integration of renewables, 

demand response or the deployment or smart grid technologies, 

then you are saying today that you will do a jobs analysis on these 

decisions? 

Mr. WELLINGHOFF. I am saying that to the extent that it is possible to do so, we certainly will in fact look at the impact on jobs. 

Mr. GARDNER. I think we ought to be looking at the impact on 

jobs no matter what we do so that we have an idea of—— 

Mr. WELLINGHOFF. I absolutely agree. 

Mr. GARDNER. And so Commissioner Moeller, do you care to comment on this? 

Mr. MOELLER. I generally want to associate my remarks with the 

chairman because we are believers in competitive wholesale markets and those ultimately are what benefit consumers the most and 

allow more resources. I think we should always be cognizant of the 

employment impact we have on rising energy prices because it can 

be substantial. 

Mr. GARDNER. Thank you, Commissioner Moeller. 

I see my time is expired and I yield back. 

Mr. STEARNS. I thank the gentleman for his questions. I think we 

are completed with our first round. I think the ranking member 

and I have talked that we are going to ask a few more questions 

and then wrap up. 

I don’t think there has ever in my experience been such a distinguished group of people that could make an impact on deregulation 

in America as you folks today so we are here with a certain humility in asking you what is the best way for us to move forward. As 

Mr. Scalise pointed out with that Small Business Administration 

report, had every U.S. household paid an equal share of the federal 

regulatory burden, each household would pay $15,586. That was in 

148 

2008. And when you compare that with what we spent for health 

care costs in 2008, the federal regulatory burden exceeded by 50 

percent the private spending on health care, which equaled 

$10,500. So it is within your power to deregulate and to get rid of 

burdensome regulations, which would spur the economy. So we are 

not talking about something insignificant. 

So I guess the larger question is, we passed in 1980 the Regulatory Flexibility Act. Obviously that is not applicable today and it 

is not working, so the question is for you is sort of a wrap-up understanding, the President reached out with his Executive order 

that did not apply to the independent agencies in some of your 

opinions. We think Cass Sunstein’s letter did imply but we don’t 

seem to have you jumping to the forefront to try to deregulate. 

Should Congress should either statutes or legislation provide, one, 

either more flexibility to you or should we update the Regulatory 

Flexibility Act of 1980? So we are reaching out for you to tell us, 

one, should we do some of the things I mentioned, and secondly, 

would you be willing to help us in terms of providing us documentation on what we should do? I will start with Commissioner 

Adler. 

Mr. ADLER. Mr. Chairman, the devil is always in the details. I 

would be delighted to look at anything you drafted and to respond 

to it. 

Mr. STEARNS. So you think that we should take the Regulatory 

Flexibility Act of 1980 and update it in Congress? 

Mr. ADLER. Actually, I am probably a bigger fan of the Regulatory Flexibility Act than some folks here. As I read it, I think it 

is a fairly useful tool, especially in terms of what we do when we 

are trying to regulate and we are looking particularly at the impact 

on small business. That is actually something that both Commissioner Northup and I agree on is that we do have to worry about 

the impact on small business. 

Mr. STEARNS. Commissioner Northup? 

Ms. NORTHUP. Yes, but unfortunately, it has no teeth in it. No 

matter what the regulatory analysis is, if you decide in our agency 

that you should go ahead and regulate, it almost has no impact on 

what we do. So unless we are required to justify the cost with the 

benefit, adding that to it, I think that would be an important improvement, but other than that, it is a box we check and it doesn’t 

have an effect. 

Mr. STEARNS. Just for your information, I checked the Consumer 

Product Safety Improvement Act. Everybody in Congress voted for 

it under the Bush Administration except one, and that was Ron 

Paul. So you probably would have been like most—— 

Ms. NORTHUP. I am sure I would have, and, like I said, when I 

first read it before my confirmation, I was really very excited about 

it. 

Mr. STEARNS. Commissioner McDowell? 

Mr. MCDOWELL. I think statutory action is the best way to sort 

of cut through this Gordian knot of regulation and statutory provisions that have built up over the years and so I would be happy 

to work with you on something like that. 

Mr. STEARNS. Mr. Wellinghoff, Commissioner, Chairman? 

149 

Mr. WELLINGHOFF. Yes, Chairman Stearns. As I indicated to 

Congressman Barton, I don’t have any specific recommendation for 

you. However, certainly anything that the committee decided to 

draft, we would be happy to work with you in any way. 

Mr. STEARNS. Commissioner Moeller? 

Mr. MOELLER. Mr. Chairman, I generally think a government of 

both legislative and regulatory bodies should periodically review 

legislation and regulations, so if that is in order, I would certainly 

endorse that. And as our chairman said, I had a specific example 

about hydropower re-licensing that I would be happy to provide to 

you. It would be quite complicated, given the number of federal 

laws involved, but any help that we can provide, we would be 

happy to do so. 

Mr. STEARNS. Chairman Leibowitz? 

Mr. LEIBOWITZ. I am also happy to work with you, although as 

my colleague, Commissioner Kovacic, pointed out, I think only four 

rules that we have actually are within reg flex but we do do, you 

know, reg reviews and rule reviews. In fact, we are in the middle 

of 23 of them now, so I will defer to my colleague, Mr. Kovacic. 

Mr. KOVACIC. Mr. Chairman, if I could just underscore a couple 

of themes that have come up already today. One, the enormous 

value of having committees and the Congress all assess before the 

fact the likely impact in regulation writing of legislation adopted. 

Second, the custom you are developing in this hearing of making 

a regular question for all of us how much are you spending in each 

budget cycle to look at evaluation and the assessment of effects, not 

just to measure accomplishment by activity itself but looking at actual impacts and ask us how much are you setting aside in each 

budget cycle to do this. And last, we do an enormous amount of 

work as advocates for competition and better consumer protection 

techniques before the government agencies, before our State governments, and this perhaps provides specific suggestions that we 

would be happy to share with you about how adjustments in national and State legislation could improve productivity and improve 

economic performance. 

Mr. STEARNS. I am going to yield to the ranking member, but I 

think each of you have indicated you will help us. You are saying 

something should be done. So I am going to presuppose that all of 

you will submit to us some specifics that we could incorporate and 

still working as the Energy and Commerce Committee towards 

this. 

The gentlelady from Colorado. 

Ms. DEGETTE. Thank you, Mr. Chairman, and I agree. I had 

asked them for that information earlier, and I really look forward 

to working with all of you because as we all said—no, actually it 

was one of you who said the devil is in the details of these regulations. You can say we are all for regulatory reform. We also probably need to streamline some of the statutes because a lot of the 

regulations flow from the statutes and so I think we need to look 

at all of those. 

I have been sitting up here thinking about this lead standard 

with the CPSIA. I was on the conference committee with Chairman 

Barton and others, and Mr. Chairman, you are exactly right. There 

was only one no vote on that bill in the House, and Chairman BarVerDate Nov 24 2008 10:37 Feb 15, 2012 Jkt 037690 PO 00000 Frm 00155 Fmt 6633 Sfmt 6633 P:\MY DOCS\HEARINGS 112\112-71 070711\112-71 CHRIS
150 

ton and Ranking Member Waxman and a bunch of us, and even 

the other body sat around for a long time trying to figure out what 

to do with this lead standard. I remember it so clearly, and when 

we drafted the new lead standards, what we decided was, was that 

determining total lead content was preferable to risk assessment 

because what happened with risk assessment is, it was dependent 

on a product-by-product determination which you couldn’t do because of the large number of children’s products in the marketplace, and so in addition, although with most chemicals a traditional risk-based model can work, if you have persistent bioaccumulative toxins like lead, science has demonstrated that traditional models are inappropriate and exposures inevitable, and we 

spent a lot of time in that conference committee talking about what 

we do about bikes and ATVs and things like that. So it is not like 

Congress never talked about these things. 

I think what we need to do now that we have passed this—and 

it wasn’t one of these provisions slipped in in the middle of the 

night either. We really, really hammered this out on a bipartisan, 

bicameral basis. So now I think what we need to do, given the experience that the CPSC has had in trying to draft the regulations, 

is sit down and figure out what about that new lead standard 

might work, what might not work, and this is what led to this effort by then-Chairman Waxman last year to develop this legislation 

everybody has been talking about. The staff undertook a consultative shareholder process with small business and others to try to 

figure out what we do about the ATVs, the bicycles, the tee shirts 

with the blue ink and things like that. He did release a consensus 

discussion draft of a document to try to figure out how to address 

these concerns because we need to do it but unfortunately your side 

of the aisle, Mr. Chairman, rejected that. 

And so we can sit down and talk about it. We did do that. We 

did that when the Republicans were in the majority in the Congress and when we had President Bush in the White House, but 

we can’t devolve to the stage where we say oK, we are the majority, 

we are just going to do it our way and to heck with you, and vice 

versa. We really need to work together on how to make this work 

for small businesses and most importantly for consumers. So as 

someone who has fortunately or unfortunately been in those 

trenches, sometimes these regulations actually came from scientific 

basis and it is going to take some really hard work to fix it. I think 

every witness here would agree with that on some of these harder 

regulations that might be more burdensome. 

And just one last thing, Mr. Chairman. Ms. Christensen was asking a question about Chairman Genachowski’s efforts to eliminate 

outdated and unnecessary regulations at the FCC, and he had sent 

a letter to the subcommittee, to you and to me, outlining the efforts 

which noted that they eliminated 50 outdated regulations and identified 25 sets of data collection that are no longer necessary. So Mr. 

Chairman, I would like to ask unanimous consent to put that letter 

into the record. 

Mr. STEARNS. Will the gentlelady let us take a few moments to 

review it? 

Ms. DEGETTE. Yes. 

151 

Mr. STEARNS. What is the date of this? I don’t see the date on 

this. 

Ms. DEGETTE. Today. 

Mr. STEARNS. Oh, it is today’s date? OK. I would say at this 

point there is some concern that is really perhaps some of it is applicable but there is others that is concern on this committee we 

talked about earlier, the fact that Chairman Genachowski was invited as chairman to come up. He said he could not come, and so 

it is customary if he doesn’t come, we do not respectfully take his 

statement and make it part of the record since he didn’t show, and 

we are a little concerned that this might in fact be part and parcel 

of his opening statement. So I think at this—— 

Ms. DEGETTE. Mr. Chairman, I would just point out, it is not an 

opening statement, it is a letter to us, and we generally—— 

Mr. STEARNS. I think the staff is interpreting it as an opening 

statement and so I am just saying at this point we are not able to 

rule in favor of that and so I think we are just going to hold off 

and not put it part of the record. 

At any rate, I will close by saying that civilizations rise and fall 

because of burdensome regulation. It is in your hands, you people, 

to do as much as you can to make the small businessperson succeed so that we can have innovation in this country. 

I thank you for your time, and the subcommittee is adjourned. 

[Whereupon, at 1:07 p.m., the subcommittee was adjourned.] 

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