U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

88–895 PDF 2014

S. HRG. 113–344 

JUSTICE DELAYED: THE HUMAN COST OF 

REGULATORY PARALYSIS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT, 

FEDERAL RIGHTS AND AGENCY ACTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

AUGUST 1, 2013 

Serial No. J–113–26 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON OVERSIGHT, FEDERAL RIGHTS AND AGENCY ACTION

RICHARD BLUMENTHAL, Connecticut Chairman 

PATRICK J. LEAHY, Vermont 

AMY KLOBUCHAR, Minnesota 

ORRIN G. HATCH, Utah, Ranking Member 

JEFF FLAKE, Arizona 

JON DONENBERG, Democratic Senior Counsel 

THOMAS JIPPING, Republican Chief Counsel 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut ........ 1 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 32 

WITNESSES 

Witness List ............................................................................................................. 31 

Steinzor, Rena, President, Center for Progressive Reform; Professor, University of Maryland Carey School of Law, Baltimore, Maryland .......................... 4 

prepared statement .......................................................................................... 33 

Batkins, Sam, Director, Regulatory Policy, American Action Forum, Washington, DC ............................................................................................................. 6 

prepared statement and attachments ............................................................. 48 

Seminario, Peg, Director, Safety and Health, AFL–CIO, Washington, DC ........ 8 

prepared statement .......................................................................................... 70 

McLaughlin, Patrick A., Ph.D., Senior Research Fellow, Mercatus Center, 

George Mason University, Arlington, Virginia .................................................. 10 

prepared statement .......................................................................................... 81 

Fennell, Janette E., President and Founder, KidsAndCars.org, Bala Cynwyd, 

Pennsylvania ........................................................................................................ 12 

prepared statement and attachments ............................................................. 90 

QUESTIONS 

Questions submitted by Senator Blumenthal for Rena Steinzor and Peg 

Seminario .............................................................................................................. 121 

Questions submitted by Senator Klobuchar for Rena Steinzor ........................... 128 

QUESTIONS AND ANSWERS 

Responses of Rena Steinzor to questions submitted by Senators Blumenthal 

and Klobuchar ...................................................................................................... 129 

Responses of Peg Seminario to questions submitted by Senator Blumenthal .... 147 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Consumers Union, statement ................................................................................. 153 

Heinzerling, Lisa, ‘‘Who Will Run the EPA?’’, Yale Journal on Regulation, 

April 1, 2013, article ............................................................................................ 154 

Institute for Policy Integrity, New York University School of Law, A Framework for Addressing Delayed Regulatory Reviews at OIRA, statement ......... 159 
Page

IV 

Mercatus Center, George Mason University, Research Summary: Test-Driving 

Some Regulatory Process Reforms, Jerry Ellig and Rosemarie Fike .............. 160 

Mercatus Center, George Mason University, Research Summary: The Regressive Effects of Regulation—Who Bears the Cost?, Diana Thomas ................... 162 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government or other criteria determined by the Committee: 

‘‘Ten Principles for Better Regulation’’ by Jerry Ellig; available at http:// 

mercatus.org/sites/default/files/Ellig_10RegPrinciples_v1.pdf 

‘‘The Pathology of Privilege: The Economic Consequences of Government 

Favoritism’’ by Matthew Mitchell; available at http://mercatus.org/sites/ 

default/files/Mitchell_PathologyofPrivilege_v3_1.pdf 
(1) 

JUSTICE DELAYED: THE HUMAN COST OF 

REGULATORY PARALYSIS 

THURSDAY, AUGUST 1, 2013 

U.S. SENATE, SUBCOMMITTEE ON OVERSIGHT, FEDERAL

RIGHTS, AND AGENCY ACTION, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Richard Blumenthal, 

Chairman of the Subcommittee, presiding. 

Present: Senators Blumenthal, Whitehouse, and Hatch. 

OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, A U.S. 

SENATOR FROM THE STATE OF CONNECTICUT 

Chairman BLUMENTHAL. Good afternoon and welcome, everyone, 

to this first hearing of a new Subcommittee, and our subject this 

afternoon, ‘‘Justice Delayed: The Human Cost of Regulatory Paralysis,’’ is one that I think is fundamentally about the rule of law. 

I do not know anyone more dedicated to the rule of law than the 

Ranking Member of this Subcommittee, Orrin Hatch. Senator 

Hatch has been a longstanding advocate of effective, fair, impartial 

enforcement of the law, and so I am particularly pleased to be 

working with him and want to thank him and his staff for his cooperation in making this hearing happen on the verge of our recess. 

Senator HATCH. Well, thank you, Mr. Chairman. 

Chairman BLUMENTHAL. And as our Chairman, Senator Leahy, 

mentioned this morning, this is the time in the legislative process 

when the fumes of gasoline for jets fill the hallways and prompt 

us to be especially mindful about time. And we may have a vote 

at 3, but I would like to begin as soon as possible and just say I 

appreciate our first witnesses being here, and I am going to swear 

you in in just a moment. But I will make a brief statement and 

then turn to Senator Hatch. 

Every year in Connecticut, we gather in Bridgeport for a very 

solemn ceremony to remember the victims of L’Ambiance Plaza, 

who were workers on that day, more than 20 of them, who perished—28 workers who perished on that day because of a method 

of construction known as ‘‘lift slab.’’ Lift slab was a patented construction technique designed to achieve maximum speed at minimum cost, and it involved casting large slabs of concrete and then 

literally lifting them to create floors and ceilings and putting them 

in place using hydraulic lifts. 
2 

On April 23rd, one of the slabs broke, destabilizing the whole 

structure, which was partially built, and burying, literally burying 

28 workers, who left their homes that morning saying goodbye to 

their families, expecting to return home, having plans for the 

spring and the summer, and never coming back. 

Now, the workers who died that day were victims of bad engineering, but they were also victims of bad policy, because more 

than 5 years before the L’Ambiance tragedy, the Occupational Safety and Health Administration actually released an Advanced Notice of Proposed Rulemaking on lift-slab construction. The agency 

has recognized that lift-slab construction created special risks and 

needed special regulations under its existing authority, under its 

obligation to enforce that authority and use the law to protect people. And over the 5 years following that notice, OSHA opened and 

closed two comment periods and held one public meeting but produced no rule. 

The final rule ended lift-slab construction. It came 3 years after 

L’Ambiance Plaza, too late for those 28 people who died needlessly 

and tragically on that day. 

We are here about L’Ambiance Plaza but much more, because 

many other rules and many other rulemaking procedures have 

been needlessly delayed—maybe not as long as the 8 years that it 

took OSHA to issue that rule that banned lift-slab construction, but 

much too long and with tragic costs for many, many Americans. 

Today we are here about delays in justice in the regulatory process that affect millions of Americans who depend on clean water 

and clean air, on safe products, who depend on enforcement of the 

law when they go to work or come home, use appliances, and run 

their cars. 

In a recent study of three key Environmental Protection Agency 

programs, the Competitive Enterprise Institute found that 98 percent of EPA rules since 1993 have been promulgated late by an average of 2,072 days after their statutory deadline. 

Now remember, these deadlines are not just about it would be 

nice if you get these regulations done. They are often, more commonly than not, a matter of statutory deadline. 

The various agencies responsible for implementing the DoddFrank Act have missed 62.7 percent of the 279 statutory deadlines 

that have passed so far. As of a recent report, 136 draft rules from 

executive agencies were under review at the White House, and of 

them, 72 had been held for longer than the 90-day statutory limit 

set by the relevant Executive order; 38 had been under review for 

more than a year, including 24 from 2011 and 3 from 2010. 

The White House has made tremendous progress. OIRA has 

issued some regulations more recently. I want to commend that 

progress. But I go through these numbers because they have a reality to American life that I think is undeniable, and they are essential to public trust and confidence in the law. 

I know about costs and benefits and the importance of considering them. I know about the importance of listening and the importance of doing it. I believe in listening and weighing cost/benefits and quantifying the results of the regulatory process. But very 

simply, my belief is we can do better, and that is our goal—again, 

not only because of the impacts on human safety and quality of life 
3 

as well as health, but also because it is vital to confidence and 

trust in the rule of law. And to us as a legislative body, it ought 

to be a matter of personal pride. We work very hard. We have a 

lot of debate. We disagree and then we come to a consensus in 

making a law. And then to have it unenforced or ignored ought to 

be considered an affront professionally and also as a matter of 

democratic process. 

So we are beginning. This hearing is our first—I hope that we 

will have others—to consider the specific areas of enforcement that 

deserve attention and, again, I just really want to thank our Ranking Member Senator Hatch for his longstanding commitment to the 

principles that underlie this hearing and his very important help 

in being here today. 

Senator Hatch. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. I am proud of 

you and very pleased to be able to work with you on this Committee. This is a Subcommittee that really can make a difference 

in the lives of many people and in the safety of their lives. We have 

been working productively together on the full Judiciary Committee, and I look forward to doing so in our roles here on this Subcommittee. 

As I think the witnesses in the record from this hearing will confirm, there are very different perspectives on the costs and benefits 

of regulation. More specific to the title of this hearing, there are 

human costs from regulatory excess as well as from regulatory paralysis. Some see delays; others see a process that can produce better quality results. There may be costs to the quality of regulations 

from a process that is unnecessarily hastened or artificially driven 

by political considerations. Some focus on individual regulations 

that can impose benefits or costs on discrete populations or even 

on individuals. 

But the aggregate accumulation of regulations can increase costs, 

even significant human costs, on virtually all of our fellow citizens. 

A senior citizen, for example, may, on the one hand, benefit from 

regulations that improve the quality of her prescription drugs but, 

on the other hand, find that her retirement savings are insufficient 

because regulatory burdens undermine economic growth during her 

working life. 

I think that the witnesses here today bring these different views 

and perspectives, and we are really grateful to all of you for showing up and helping us to understand this better. 

Once again, Mr. Chairman, I want to thank you for your courtesy 

and fairness in putting together this hearing, and I look forward 

to hearing from the witnesses and, of course, working with you in 

the future on future hearings as well. 

Chairman BLUMENTHAL. Thank you, Senator Hatch. 

Let me introduce the witnesses and then swear them in, and 

then we will hear from you individually. 

Rena Steinzor is a law professor at the University of Maryland 

Francis King Carey School of Law and president of the Center for 

Progressive Reform. The Center for Progressive Reform was found-
4 

ed in 2002 and is a network of 60 scholars across the Nation dedicated to protecting health, safety, and environment through analysis and commentary. She has written very widely and extensively. 

Her most recent book, published by the University of Chicago 

Press, is entitled, ‘‘The People’s Agents and the Battle to Protect 

the American Public: Special Interests, Government, and Threats 

to Health, Safety, and the Environment,’’ co-authored with Professor Sidney Shapiro, of Wake Forest School of Law. 

Sam Batkins is the director of regulatory policy at the American 

Action Forum. He focuses his research on examining the rulemaking efforts of administrative agencies, and his work has appeared in the Wall Street Journal, the Washington Post, the New 

York Times, Reuters, Politico, among other publications. 

Peg Seminario is director of occupational safety and health for 

the AFL–CIO. She has worked for the AFL–CIO since 1977, and 

since 1990 has been responsible for directing that organization’s 

program for safety and health, and she has worked on a wide variety of regulatory and legislative initiatives at the federal and State 

levels. 

Dr. Patrick McLaughlin is a senior research fellow at the 

Mercatus Center at George Mason University. His research focuses 

on regulations and the regulatory process with additional interests 

in environmental economics, international trade, industrial organization, and transportation economics. And he has published widely 

in the fields of law, economics, public choice, environmental economics, and international trade. 

Janette Fennell is president and founder of KidsAndCars.org. 

She is recognized as a national leader on health and child safety 

as it relates to dangers children face in and around motor vehicles, 

with an in-depth specialty regarding events that take place off public roads and highways, most commonly referred to as ‘‘non-traffic 

accidents’’ or ‘‘incidents.’’ Ms. Fennell has testified before the Subcommittee on Commerce, Trade, and Consumer Protection of the 

House Committee on Energy and Commerce, and she, too, has 

written extensively. 

We welcome you all today, and I am going to ask you to please 

stand and be sworn, as is the custom of the Judiciary Committee. 

Do you affirm that the testimony that you are about to give before 

the Committee will be the truth, the whole truth, and nothing but 

the truth, so help you God? 

Ms. STEINZOR. I do. 

Mr. BATKINS. I do. 

Ms. SEMINARIO. I do. 

Mr. MCLAUGHLIN. I do. 

Ms. FENNELL. I do. 

Chairman BLUMENTHAL. Thank you. Professor, maybe we can 

begin with you and then go across the table. 

STATEMENT OF RENA STEINZOR, PRESIDENT, CENTER FOR 

PROGRESSIVE REFORM; PROFESSOR, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW, BALTIMORE, MARYLAND 

Ms. STEINZOR. Mr. Chairman, Ranking Member Hatch, and 

members of the Subcommittee, I appreciate the opportunity to testify. 
5 

The Subcommittee deserves tremendous credit for airing the 

truth about the public health regulations that agencies are writing 

as directed by Congress. The costs of delay are as real as they 

should be unnecessary, given the clear mandates of the law. Unfortunately, the overwhelming clout of Fortune 100 companies and 

their relentless, self-serving effort to ignore the great benefits provided by these essential protections has dominated the airwaves. 

This hearing is a most welcome effort to achieve some balance. 

One does not need to look far to see why regulations are essential. Just ask anyone whose life was saved by a seat belt, whose 

children escaped brain damage because the EPA took lead out of 

gas, who turns on the faucet knowing the water will be clean, who 

takes drugs for a chronic illness confident the medicine will make 

them better, who avoided having their hand mangled in machinery 

on the job because an emergency switch was there to cut off the 

motor, who has taken their kids on a trip to a heritage national 

park to see a bald eagle that was saved from the brink of extinction. The list goes on and on. 

The EPA’s regulations are among the most beneficial safeguards 

the U.S. regulatory system has ever produced. Remember that we 

have reached the point where children and the elderly are routinely warned not to go outside on Code Red days when the weather is hot and the smog levels unhealthy. It is reminiscent of living 

in a Mad Max movie. Clearly we have no time to waste in setting 

EPA free to do its job. 

An analysis assessing Clean Air Act regulations found that in 

2010 these rules saved 164,300 adult lives and prevented 13 million days of work loss and 3.2 million days of school loss due to pollution-related illnesses such as asthma. By 2020, if additional rules 

are issued promptly and Congress resists shrill demands that it derail them yet again, the annual benefits of these rules will include 

237,000 adult lives saved as well as the prevention of 17 million 

work loss days and 5.4 million school loss days. 

Even the most conservative practitioners of cost/benefit analysis, 

including John Graham, President Bush’s regulatory czar, acknowledge what an amazing bang for the buck these regulations deliver 

in relationship to the costs they impose. 

Conversely, because Clean Air Act regulations have been so long 

delayed—after all, Congress passed the Clean Air Act Amendments 

in 1990, and we sit here 23 years later—thousands of additional 

lives have been lost, hundreds of thousands of people have had 

heart attacks and visited the hospital because of respiratory illness, and people have lost millions of days off work and out of 

school. 

Instead of acknowledging that they have reached the end of the 

line on delaying tactics that are within the law, the owners and operators of coal-fired power plants, chemical production facilities, oil 

companies, and motor vehicle manufacturers have shifted focus to 

the fraught world of polarized politics that you know only too well. 

These efforts have turned what should be an expert-driven, sciencebased process for formulating public policy into a blood sport, with 

the party able to spend the most money becoming the most likely 

to win. Nothing less than the future integrity of the administrative 

process is at stake. 
6 

In fact, several of my students are in the audience today, and I 

am pained to tell you that when they study health, safety, and environmental regulation, they are learning more about scofflaw than 

law. They see that when Congress votes on a piece of legislation 

by overwhelming margins—the Senate approved the 1990 Clean 

Air Act amendments by a margin of 89 to 10—everything you write 

down as an apparently ironclad mandate is far from certain to become reality. They see that instead of trying to muster enough 

votes to repeal a law, regulated industries have learned to go underground and sabotage it, in the process doing irreversible damage to the credibility not just of the EPA, but of the Senate and 

the House, and ultimately the rule of law in this country. 

Industry lobbyists characterize the Clean Air Act rules that have 

finally reached the end of the pipeline as a ‘‘train wreck’’ dreamed 

up by Lisa Jackson, EPA Administrator in President Obama’s first 

term. But Ms. Jackson did not take a trip to the basement of her 

office building and get drunk on her own whiskey, writing down 

her best fantasies for torturing the industry. Rather, she did her 

best—at long last—to satisfy congressional mandates instructing 

her agency to impose more stringent controls on power plants, 

automobile fuel, boilers, et cetera. Fighting through the considerable resistance confronting her at the White House, resisting lastminute threats by industries that had successfully battled against 

this day of reckoning for 2 decades, Ms. Jackson tried to do no 

more and no less than what Congress told her agency to do. 

The truth is that these rules, and the civil servants who write 

them, do not sweep industry’s hard-earned money into a pile and 

set it on fire for no good reason. The regulations impose costs, but 

they also deliver tremendous benefits. 

Just like the controls on smoking you have championed throughout your career in Congress, Senator Hatch, the chemical and manufacturing sectors have fought these important rules with a 

disinformation strategy that should sound quite familiar: disputing 

the danger of air emissions of smog and toxic chemicals and distorting the content of the rules the EPA has imposed. This Subcommittee, with its jurisdiction over the effective and efficient implementation of the law, is well positioned to investigate this 

record and help get the administrative process back on track. 

Thank you. 

[The prepared statement of Ms. Steinzor appears as a submission 

for the record.] 

Chairman BLUMENTHAL. Thank you, Professor Steinzor. 

Mr. Batkins. 

STATEMENT OF SAM BATKINS, DIRECTOR, REGULATORY 

POLICY, AMERICAN ACTION FORUM, WASHINGTON, DC 

Mr. BATKINS. Chairman Blumenthal, thank you, Ranking Member Hatch. I would like to start by making three basic points. 

Regulatory growth has peaked in recent years, with 100 major 

rules in 2010, which was a record. Many of these regulations have 

little to do with protecting public health, and some regulations admittedly cause environmental dis-benefits. And, finally, proper 

oversight is the standard practice across the globe for regulatory 

policy. A regulatory system that creates 10.3 billion hours of paper-
7 

work can cause needless delays for veterans, immigrants, and 

countless American businesses, even with the current oversight 

that we do have. 

So if we put regulation in perspective, during the last 4 years we 

have issued more than 330 major regulations, those with an economic impact of more than $100 million. Our paperwork burden, 

as I have mentioned, the amount of time Americans spend filling 

out federal forms, is 10.3 billion hours. In that time, it would take 

more than 5.1 million employees working 2,000 a years to complete 

the required paperwork. 

Now, much of this talk on regulations stems from 2010 when the 

Federal Government issued 100 major rules. That same year Congress passed 129 private sector mandates and 86 unfunded mandates on States, also records. These legislative mandates, as we all 

know, are now working their way into the regulatory system. OIRA 

reported that Fiscal Year 2012 was the costliest year on record, 

and despite these costs, OIRA did not report record benefits, although it did report large benefits. A large portion had nothing to 

do with protecting clean air, water, or reducing greenhouse gases. 

Instead, some benefits arose from altering consumer preferences for 

the purchase of goods. With the Federal Government managing 

more than 9,100 different collections of information, our current 

regulatory burden consumes far more than just clean air, water, 

and worker protection. 

Beyond the top-line figures that I have mentioned, there are, of 

course, human costs to these numbers. If you are a veteran trying 

to manage VA’s 7 million hours of paperwork, or a potential American citizen making your way through the 116 different Customs 

and Immigration forms, an ossified regulatory system can have a 

profound impact. 

Take the 380 people now without a job at the Hatfield’s Ferry 

Power Plant in southwest Pennsylvania. Four years before the 

plant closed, it invested $650 million in scrubbers to reduce mercury and sulfur emissions. When the MATS rule was finalized, the 

plant was faced with another bill for $900 million. This time, increased regulation, in concert with market trends, forced the plant 

to close. 

These rules doubtless have benefits, but even current EPA Administrator Gina McCarthy admitted last year to the House Energy 

and Commerce Committee that, ‘‘No one has ever denied that our 

regulations are not a factor in retiring power plants.’’ 

On regulation, as with any matter in Government, I believe that 

getting it right the first time is important. One example is EPA’s 

recent biomass-based diesel rule. EPA admitted the rule would cost 

$52 million in environmental dis-benefits from dirtier air and dirtier water. EPA noted the impacts on water quality would be ‘‘directionally negative.’’ OIRA did review this rule, but I think many are 

puzzled why EPA would issue a regulation that would cause environmental harm. I think it underscores the importance of thorough 

regulatory oversight. 

And it is not just the U.S. that reviews agency rulemakings. The 

OECD recommends that all of its members establish mechanisms 

and institutions to actively provide oversight of regulatory policy. 
8 

South Korea, Portugal, and the United Kingdom all have oversight. 

The U.K., for example, removes two regulations for every new rule. 

Now, the issues we have highlighted here today are indeed ones 

of life and death, financial security, recession, employment, and unemployment. Regulators are issue area experts, but they are not 

soothsayers. They can plan based on their assumptions, but 

planned solutions might not always be superior. 

To address this planning paradox, Indiana recently passed a 

measure to review regulations 5 years after their effective date, reviewing for consumer protection, costs, benefits, the environment. 

We should get regulation right the first time and then examine its 

effectiveness to ensure the rule is working as designed. 

Every President since Jimmy Carter has issued an Executive 

order on regulatory reform and oversight, not because some large 

special interest made them but because they wanted a regulatory 

system that protects public health and fosters economic growth— 

two goals that we know are not mutually exclusive. Despite these 

commendable past efforts, it is clear that I think we can do more 

to examine regulatory policy. 

So, again, I am pleased to appear before the Committee today, 

and I look forward to taking your questions. 

[The prepared statement of Mr. Batkins appears as a submission 

for the record.] 

Chairman BLUMENTHAL. Thanks very much, Mr. Batkins. 

Ms. Seminario. 

STATEMENT OF PEG SEMINARIO, DIRECTOR, SAFETY AND 

HEALTH, AFL–CIO, WASHINGTON, DC 

Ms. SEMINARIO. Chairman Blumenthal, Ranking Member Hatch, 

thank you very much for the opportunity to testify today on the 

human costs of delays in regulatory protections. In particular, 

thanks to you, Chairman Blumenthal, for scheduling this hearing 

to look at the impacts of the failure in the regulatory system. 

During the 36 years that I have had the privilege to work at the 

AFL–CIO, I have participated in dozens of rulemakings at the Occupational Safety and Health Administration, rules dealing with 

asbestos, lead, benzene, and other hazards. One of the benefits of 

my long tenure is that I have witnessed firsthand how these rules 

have made a difference in preventing injuries and illnesses and 

saving workers’ lives. 

But at the same time, over that long work time, I have seen the 

system and process for developing and issuing worker safety rules 

devolve from one that worked to produce needed rules in a relatively timely manner to the current broken and dysfunctional system which is failing to protect workers and costing them their 

lives. 

The Occupational Safety and Health Act, passed in 1970, promises workers the right to a safe job. And since the law was passed, 

great progress has been made because of the statute and its implementing regulations. The job fatality rate has been cut by more 

than 80 percent, the job injury rate by nearly 70 percent. And there 

have also been significant reductions in workplace exposures to 

hazards like asbestos, lead, and benzene as a result of these rules. 
9 

But despite this progress, the toll of workplace injury, illness, 

and death in the United States remains enormous. In 2011, nearly 

4,700 workers were killed on the job, and more than 3.8 million 

workers were injured. An estimated 50,000 additional workers died 

from occupational diseases like lung cancer from asbestos. 

Some groups of workers, including Latino workers and immigrant workers, are at much greater risk, experiencing higher fatality and injury rates than other workers. And the cost of job injury, 

illness, and death is staggering. It is estimated at over $250 billion 

a year. 

Now, workers’ compensation covers some of these costs, but only 

about 21 percent. The rest of these costs are borne by workers 

themselves or society as a whole through private health insurance, 

Medicare, Medicaid, and Social Security Disability. 

Over the years there have been added layers and layers of regulatory requirements, which, in my view, have crippled the regulatory system. During the first decade of OSHA, the promulgation 

of rules from start to finish took 1 to 3 years, and major rules were 

produced on asbestos, vinyl chloride, cotton dust—a whole host of 

hazards—under both Republican and Democratic administrations. 

There were challenges and objections from industry to most rules, 

but most of these objections were largely about how stringent the 

rule should be, not over the issue of whether the regulation was 

needed. 

But over the years, as opposition to regulations increased, there 

were calls for more analyses and considerations of the impact of 

rules, particularly their costs, and more and more requirements 

were added to the rulemaking process through legislation, Executive orders, and other directives. And all of these requirements 

have added significant delay to the regulatory process and increased the costs of developing rules. 

A 2012 GAO study on OSHA rules found that the average time 

for developing and issuing major OSHA rules was 8 years, similar 

to the time period for the lift-slab rule which Chairman 

Blumenthal referred to earlier. And this did not include rules that 

were still pending, many of which have taken much longer. 

One of the main sources of delay in rules at the present time is 

the interference from OMB and delays by OMB in review of rules 

under Executive Order 12866. Since 2011, virtually every worker 

protection rule that has been submitted to OIRA for review has 

been delayed, and most of them are still there. The worst case has 

been for OSHA’s draft proposed silica standard, which has been 

held by OMB since February 2011, 21⁄2 years. 

The delays that we see in the regulatory process and the failure 

to issue needed rules are costing workers their lives. I presented 

several examples in my testimony, and let me just talk briefly 

about two of them. 

OSHA’s rule on crane and derricks—In 2002, OSHA initiated a 

rulemaking to update an obsolete construction safety standard for 

cranes and derricks. There was agreement between industry and 

labor that a new rule was needed to deal with this hazard which 

was causing severe injury and multiple deaths. 

The rule was developed through a negotiated rulemaking process 

in which labor, management, and the Government participated, 
10 

and within a year’s time, they drafted the text of a proposed rule, 

which everyone agreed on, and delivered it to OSHA in 2004. And 

there the rule sat, and nothing was done. 

And then in 2008, there were a series of deadly crane collapses 

in New York, Miami, and Texas, which claimed over a dozen workers’ lives, and that spurred the rulemaking. And, finally, in 2010, 

the rule was issued. But it is really inexcusable that for a rule that 

there was total agreement on that it took more than 8 years, and 

workers had to die for this rule to be issued. 

Silica, a serious workplace hazard that has been recognized, its 

hazard have been recognized for centuries, a hazard that is in need 

of regulation. OSHA started working on this rule back in 1997. 

Today, in 2013, we still do not have a proposed rule. The draft rule 

has been at OMB for 900 days, and the Executive Order allows a 

maximum of 120 days. The failure to regulate silica has allowed 

uncontrolled exposure and more unnecessary death and disease. 

In conclusion, we have a regulatory system which is broken, imposing requirements on agencies that are difficult to meet, that are 

causing extreme delay, that are costing workers, costing the public 

their lives. We encourage the Congress to look at the sources of 

these delays and take action to fix this terribly broken system. 

Thank you. 

[The prepared statement of Ms. Seminario appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you very, very much. 

Dr. McLaughlin. 

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

Mr. MCLAUGHLIN. Chairman Blumenthal, Ranking Member 

Hatch, thank you for inviting me to testify. 

One focus of this hearing is the human costs of rulemaking 

delay. I applaud the Committee’s concern over how the often obscure regulatory process can lead to real human costs—costs measured not just in dollars but in human lives. 

The regulatory process in the U.S. creates human costs in more 

ways than can be covered in this testimony. I will cover three. 

First, the accumulation of regulations stifles innovation and entrepreneurship, slowing economic growth and reducing household 

income. 

Second, the unintended consequences of regulations are particularly detrimental to low-income households, resulting in costs to 

precisely the same group that has the fewest resources to deal with 

them. 

Third, the quality of regulations matters. Agencies sometimes 

rush regulations through the crafting process. That can lead to 

poor execution and poor quality, which in turn incurs very real 

human costs. 

Careful consideration of regulatory options can help minimize the 

costs and unintended consequences that regulations incur. If additional time can improve regulations in this regard, then additional 

time should be taken. 
11 

By design, regulations restrict choices. These restrictions have 

accumulated for decades, exceeding 1 million in the year 2010. 

What does this accumulation of restrictions have to do with human 

costs? The accumulation of restrictions inhibits innovation. Wouldbe entrepreneurs are sometimes prohibited from creating a new 

product that could improve consumers’ quality of life or even save 

lives. And this loss of innovation negatively effects economic 

growth. An academic study found that between 1949 and 2005, the 

accumulation of federal regulations has slowed economic growth by 

an average of 2 percent per year. An average reduction of 2 percent 

over 57 years translates into an annual loss of about $277,000 per 

household. That is a very substantial reduction in the abilities of 

households to purchase necessities, like housing and clothing. 

There is another human cost of regulation to consider. Regulations can be regressive, particularly in their effects on prices. When 

regulations force producers to use more expensive production processes, some of those cost increases are passed along to consumers 

in the form of higher prices. For example, in 2005 the Food and 

Drug Administration banned the use of chlorofluorocarbons as propellants in medical inhalers, such as the inhalers that millions of 

Americans use to treat asthma. Since the implementation of that 

ban, the average price of asthma inhalers has tripled. To individuals with high incomes, the tripling of the price of inhalers may 

not have even registered. But to people with low incomes, the higher price may lead to the choice to not buy an inhaler and instead 

leave the asthma untreated—potentially leading to a real human 

cost if the person suffers an asthma attack without an inhaler 

available. 

As a society, we are often willing to sacrifice some economic 

growth in exchange for regulations if they can address an otherwise unfixable problem. But it takes time to discern what option 

can yield the most bang for the buck, and picking the wrong approach risks sacrificing a lot. 

This is why every administration for the past 4 decades has required some form of economic analysis of regulations prior to their 

implementation. Among other things, a good economic analysis of 

a regulation first determines whether there is evidence that some 

otherwise unfixable problem actually exists and then weighs the 

pros and cons of various approaches to fixing that problem. 

Several years ago, a colleague and I launched a project called the 

‘‘Regulatory Report Card’’ that systematically rates the quality of 

those economic analyses of regulations. Using the data from that 

project, scholars have come up with a few insights that are relevant to this hearing. 

First, both statutory deadlines and shorter review times at OIRA 

are associated with lower-quality regulatory analyses. 

Second, the overall quality of regulatory analyses leaves much to 

be desired: the average score was 31.2 out of 60 possible points— 

barely 50 percent. 

Third, the quality of analyses accompanying several interim final 

regulations created in 2010 to quickly implement the Affordable 

Care Act was even worse than that overall average I just cited. 

If you are concerned with the human costs of regulations, you 

should be concerned that regulatory analyses are poorly performed. 
12 

One reason that the regulatory analyses of the interim final regulations related to the Affordable Care Act scored so poorly, for example, was that the analyses often ignored more effective alternatives. 

A better analysis might have led to a better regulation and therefore lowered its human costs. 

It is worth considering what forces are contributing to this failure. Given that both statutory deadlines and shorter review times 

are associated with lower-quality analyses, perhaps such deadlines 

and pressures to quickly produce a final rule should be reconsidered. 

In closing, I will reiterate a dilemma created by our regulatory 

system. On the one hand, regulations are consistently accumulating. On the other hand, we cannot have confidence agencies are 

making the best regulatory choices because their analysis is unsatisfactory. In general, regulations are costly. Poorly executed regulations are even costlier. Scholars and legislators have put forth 

many ideas to improve the quality of regulations coming out of our 

regulatory system. Perhaps the easiest idea to understand and implement is this: If time can improve regulations, then time should 

be taken. 

Thank you. 

[The prepared statement of Mr. McLaughlin appears as a submission for the record.] 

Chairman BLUMENTHAL. Thank you, Dr. McLaughlin. 

Ms. Fennell. 

STATEMENT OF JANETTE E. FENNELL, PRESIDENT AND 

FOUNDER, KIDSANDCARS.ORG, BALA CYNWYD, PENNSYLVANIA 

Ms. FENNELL. Good afternoon. My name is Janette Fennell, and 

I am the founder and president of a nonprofit organization called 

‘‘KidsAndCars.org.’’ Thank you very much, Mr. Chairman and 

Ranking Member Hatch, for holding this important hearing and for 

the opportunity to address this Subcommittee about the need for 

issuing the rear visibility standard. 

In 1996, after my family had been kidnapped at gunpoint and 

locked in the trunk of our vehicle, we were able to use this very 

traumatic experience to help guide the federal regulatory process 

to ensure that no one else had to end up in the trunk of their vehicle without a way to escape. Now, all vehicles 2002 or newer come 

with a glow-in-the-dark internal trunk release as standard equipment. Though we are proud of that accomplishment, the most important lesson we continue to learn every day is that these simple 

changes to vehicles save lives. In fact, not one person has died in 

the trunk of a vehicle equipped with an internal trunk release 

mechanism. Not one. 

I founded KidsAndCars.org, and one of the first issues we worked 

on was the issue of children being backed over and killed. By 

studying the number of deaths, it was clear that educating parents 

and caregivers about the importance of always looking behind and 

around their vehicle before moving it would not be enough. Young 

children are very impulsive, and they do not have the cognitive 

ability to understand when they are putting themselves in harm’s 

way. When a child follows a relative outside just to get another 
13 

kiss from Grandma and stands behind that vehicle, that extra kiss 

should not cost that child their life. 

I find it just as amazing today as I did the first day that I 

learned our country does not have a regulation about what a driver 

should be able to see when they are backing up their vehicle. As 

hard as that is to believe, it is simply a fact. 

All of our vehicles are required to have a rearview mirror but not 

a rear view. I am quite sure that no one would purchase a vehicle 

if they could not see 20 to 30 feet moving forward, yet we have all 

been purchasing defective vehicles that do not provide you with the 

ability to see what is behind you when you are backing. 

Every vehicle has a ‘‘blindzone,’’ and that is a term we coined to 

describe the area behind a vehicle that cannot be seen by the driver. We do not refer to this area as a ‘‘blind spot’’ anymore because 

not only has that term already been associated with the area a 

driver cannot see when they are changing lanes, but when the area 

behind a typical vehicle where you cannot see if there is a child behind it is approximately 8 feet wide and from 8 to 60 feet long, we 

knew that large of an area could never be referred to as a ‘‘spot.’’ 

The good news is that we have a commonsense and cost-effective 

solution. Bipartisan support to address this problem was led by 

former Senators Clinton and Sununu and Representatives King 

and Schakowsky, who shepherded in the Cameron Gulbransen 

Kids Transportation Safety Act. The bill was signed into law by 

President Bush in 2008, and it gave DOT 3 years to issue a final 

rule, with the ability to phase in the technology. 

However, the bad news is the rear visibility rule has been the 

subject of unwarranted delays and is the epitome of ‘‘Justice Delayed: The Human Cost of Regulatory Paralysis.’’ 

Even worse, is that the victims of this tragic delay are almost always 1-year-old children. I am talking 12 months to 23 months. 

And to further compound this tragedy, which we all would agree 

that the worst thing that can happen is the death of a child, in 70 

percent of these cases the person behind the wheel who kills that 

child is a parent or a close relative. The people who love them the 

most are suddenly responsible for killing them. 

So here we are today. DOT had a very open and transparent 

rulemaking process where the auto industry, technology suppliers, 

consumer health and safety groups, and parents who had lost their 

child due to a back-over crash submitted thousands of pages of 

comments. The agency even held a public hearing, but unfortunately DOT has announced five substantial delays in issuing a 

final rule. Currently we are more than 2 years overdue. 

The recent announcement by DOT that the final rule will be delayed until January 2015 is unacceptable, unnecessary, and, most 

of all, deadly. 

I strongly disagree with the testimony of another witness. In the 

case of the rear visibility standard, when OIRA delays a rule, it 

does have profound economic and emotional costs to consumers. 

The delay in this rule has resulted in 1,100 fatalities and over 

85,000 injuries, resulting in staggering costs to families and society. 

Furthermore, rearview camera systems are now more common, 

less expensive, and better quality than when the rule started. By 
14 

the end of this week, at least 50 children will be backed over and 

at least 2 of them will die. It is imperative that OMB and DOT 

issue the rear visibility rule immediately. 

Thank you very much. 

[The prepared statement of Ms. Fennell appears as a submission 

for the record.] 

Chairman BLUMENTHAL. Thank you very much, Ms. Fennell. 

Let me begin with a number of questions to Dr. McLaughlin and 

Mr. Batkins. Would you agree with Ms. Fennell that the rear visibility rule should be issued sooner than 2015? We can begin with 

Mr. Batkins if you—— 

Mr. BATKINS. Sure. We do not have a particular position on the 

substance of the rearview visibility laws. A 501(c)(3), we do not 

take positions for or against any particular regulation or piece of 

legislation. It is my hope that we do have a proper procedure in 

place and that OIRA finishes the review and the procedures that 

it has. 

Chairman BLUMENTHAL. Dr. McLaughlin, do you have a view on 

that? 

Mr. MCLAUGHLIN. Thank you. So what Ms. Fennell has identified is what I will call a ‘‘partial analysis.’’ She has given some data 

and that should absolutely be considered. The decision to make in 

any regulatory proceeding is both what are the consequences of 

taking an action and what are the consequences of inaction. So if 

you do not do anything, what are the human costs? She has taken 

a step toward identifying that. If you do something, will it actually 

reduce those human costs? This is part of the consideration that 

has to go into the analysis. 

If so, then who pays for it? Does it, for example, disadvantage 

the poor? What are those unintended consequences that the rule 

will inevitably make? Will people—— 

Chairman BLUMENTHAL. Well, let me—and I apologize for interrupting you, but I think that we need to look at the process and 

the amount of time as well as the substance, and quite understandably you are identifying an analytical process that should be undertaken, weighing costs and benefits. The question, though, that is 

raised by Ms. Fennell’s very compelling testimony is: Shouldn’t it 

be done quicker and sooner? What would you say to that question? 

Mr. MCLAUGHLIN. It depends on what the cause is for the delay. 

So if there is—let us call it like it is—— 

Chairman BLUMENTHAL. And you do not know what the cause for 

the delay is? 

Mr. MCLAUGHLIN. If there are shenanigans going on, if there are 

political games going on that are causing the delay, then by all 

means call it that. But if the cause of the delay is allowing the 

agency or OIRA to improve the analysis to make better choices, to 

avoid unintended consequences that could also cost human lives, 

then the delay may be worth it. 

Chairman BLUMENTHAL. Ms. Seminario, do you have a view on 

that issue? 

Ms. SEMINARIO. Well, I am somewhat stunned here. Dr. 

McLaughlin seems to be more concerned about the process than he 

does about the real outcome. Again, I have been doing regulatory 

work for a very, very long time. We used to be able to get rules 
15 

out. There were decent analyses. The rules were held up in court. 

There are more and more requirements that have been put in 

place, largely coming from people who objected to rules, who used 

more analysis as a way to slow them down. 

And so, yes, I do think that delay is a problem, and I think what 

we should look at is: To what extent are the kind of analyses that 

are being done adding real value to the protections that are being 

issued? 

I do not see a lot of difference in the safety and health rules that 

came out in the 1970s—and one of the first ones that came out was 

14 rules on carcinogens, 1974, a four-page preamble. The rule was 

held up in court. 

One of the last toxic chemical rules that OSHA came out with, 

hexavalent chromium. Thirteen years in the making. The only reason it was issued was because a court ordered OSHA to do it, and 

thousands and thousands of pages of analysis behind a 200-page 

preamble. 

So, no, I do not agree that analysis for the sake of analysis and 

getting better analysis is really worth it, and I think we have to 

reexamine if we have not gone too far. 

Chairman BLUMENTHAL. I am chagrined to tell you that a roll 

call vote has just started, so I think the best way to proceed is for 

us to take a very, very brief recess, just giving us enough time to 

go down, vote, and come back. I really do apologize to everyone 

here, but we will be back, and the recess will be very brief. Please 

do not go away. 

Thank you. 

[Recess at 2:51 p.m. to 3:17 p.m.] 

Chairman BLUMENTHAL. Thank you all. We are going to reconvene, and I believe that we were talking about the passage of time 

and the possible costs in the passage of time, even when the analysis of cost/benefit is fully justified and has to be and should be undertaken. 

Mr. Batkins, in your testimony you looked at the rules issued in 

2002, and you noted that there were, I am quoting, ‘‘record costs,’’ 

and the amount that you gave was $29.5 billion. On the other 

hand, your testimony also states that there were benefits of $100 

billion, and that was in a bad year. So the net benefit was $70.5 

billion. 

Now, I am not sure, you know, what the methodology was that 

calculated the benefits, but don’t those numbers argue for a more 

expeditious analysis of costs and benefits as well as the sizable net 

benefits of regulations? 

Mr. BATKINS. Well, in terms of methodology, it was just looking 

at the rules that OIRA itself reviewed in Fiscal Year 2012, the final 

rules, and I would not categorize it as a good year or a bad year, 

and it was just our audit of what OIRA went through in terms of 

costs and benefits and those figures adjusted to today’s dollars. And 

if you do an audit of Fiscal Year 2012, they do show, according to 

every rule, roughly $29 billion in costs and roughly $100 billion in 

benefits. 

In terms of delay, I do not know how those numbers reflect increased delay. We have talked a lot about delay, but there are, of 

course, dozens of other anecdotal examples that we can bring out 
16 

for rules that do get sped through the process. One example is the 

notice of benefit and payment parameter rule that was issued— 

that arrived at OIRA in November 2012 and left OIRA by March 

2012. That was the entire process. And in terms of transparency 

delay, I think we mentioned in our testimony we are always happy 

if there is more transparency. And one thing that we have seen in 

the past is a lack of return letters sort of explaining OIRA’s decision. There were a lot of return letters during the last administration. We have only seen one this administration. And in terms of 

why these rules are being held up, I think that is one of the few 

ways that we could actually tell why a rule has been sitting in 

OIRA for a period of time. 

Chairman BLUMENTHAL. I am going to yield to Ranking Member 

Hatch for his questions, and then I want to follow up on some of 

what you just said and some other questions to other witnesses. 

Thank you. 

Senator HATCH. Well, thank you, Mr. Chairman. I am honored 

to be with you in this hearing today. I am sorry about my voice, 

but I have a mild case of laryngitis. 

Mr. McLaughlin, let me start with you, Dr. McLaughlin. Based 

on the data that you presented about the volume of federal regulations, especially those that actually impose restrictions, is it fair to 

say that you challenge the premise of this hearing that there exists 

regulatory paralysis? 

Mr. MCLAUGHLIN. There has been no deviation from a long-term 

trend of the accumulation of restrictions, of regulations, in the last 

couple of years. I can give you some specific statistics on that. A 

couple of ways that you can measure how much regulation is coming out of the Federal Government is you can look at the actual 

book of laws, the Code of Federal Regulations. Going back to 1975, 

there were 71,224 pages of regulation in the Code of Federal Regulations. In 2012, there were 174,545 pages. There were 5,244 more 

pages added between 2011 and 2012. The trend goes back through 

the Bush administration. It is nothing—if you were to graph this 

and look at the slope of the line, it is pretty much a constant sloping line. 

So, yes, I do not think there is any evidence of paralysis by analysis. Rulemaking is going on as always. 

Senator HATCH. Okay. The Labor Department says that women 

are more likely to work in jobs without a retirement plan, more 

likely to invest conservatively, more likely to live longer than men. 

Now, does this mean that when regulatory accumulation suppresses economic growth, it has a disparate impact on women? 

It is not an easy question. I understand. 

Mr. MCLAUGHLIN. Well, it is certainly the case that any effects 

on economic growth do have human costs. Human costs of holding 

back, of inhibiting economic growth are most likely to be felt by 

those who most can—excuse me, who least can afford to lose some 

money. 

Now, I would perhaps refocus this on low-income households, for 

example. When you have a regulation that causes prices of goods 

to increase or inhibits innovation that would allow prices of goods 

to go down, or maybe even more importantly, would allow some 

sort of innovation that could save lives to be cheaply implemented 
17 

in cars, then the people who are going to most suffer are those who 

have the least income to purchase goods. 

So the example I gave earlier was the inhalers for asthma, for 

treatment of asthma. 

Senator HATCH. Your prepared testimony gave the example 

about regulations that tripled the cost of asthma inhalers. Could 

you give an example of a product that could save lives but is prohibited by regulation today? 

Mr. MCLAUGHLIN. So the National Highway Traffic Safety Administration, for example, regulates how headlights in cars are designed. Basically you can have low beams, high beams, and nothing 

in between. Now, this is an example of what is called a design 

standard. It is very much setting forth how manufacturers can 

make their cars. But manufacturers have been innovating, and 

they have found ways to make something in between high and low 

beams. The reason you switch from high beams to low beams when 

you are driving a car is to keep from blinding the oncoming driver, 

if someone is coming down the other side of the road. The tradeoff 

is you lose some visibility on the sides of the road where there 

could be a pedestrian walking. And so when you switch to low 

beams, you may not see the pedestrian. There may be a real 

human cost there. 

There is selective dimming of headlights that has been developed, and they have been sold in Europe and Asia, but they have 

not been sold in America because regulations have not permitted 

it. The selective dimming headlight systems will allow the car to 

dim the bright beam from blinding oncoming drivers, but simultaneously allow the rest of the road to be seen, where pedestrians 

could be walking. 

Now, that is an innovation, that is a new technology that has 

been developed that could save lives, but that has not yet been able 

to be sold in America because of the intransigence of the regulatory 

system. 

Senator HATCH. Okay. Mr. Batkins, let me ask you this, maybe 

the same question I asked Dr. McLaughlin. The data you presented 

seemed to challenge the premise of this hearing that there is, in 

fact, regulatory paralysis. Is that a fair statement? And could you 

elaborate further on just how unprecedented the level of regulatory 

activity has reached? 

Mr. BATKINS. Sure. I think a lot of the regulations we are talking 

about are sort of what you would think in the traditional sense 

command and control regulation. But I am also interested in regulations, you know, the figurative red tape that makes it more difficult for citizens to interact with their Government. If you are a 

veteran going through the benefits and claims process right now 

and you have to undergo training just to look at the chance of applying for benefits, if you are an immigrant trying to go from your 

current status to citizenship, that is not an easy process. And, you 

know, just in the last month we have added 10 million paperwork 

burden hours. 

Now, this is something that—I think none of us are going to install a wet limestone scrubber on a power plant anytime soon, but 

I think all of us, especially small businesses who are particularly 

affected, have that direct impact of paperwork. It is one thing that 
18 

we know, that we can measure, that is growing, that we do not 

have to adjust for dollar values over years. And I think it is one 

example of regulatory accumulation. 

I was happy to see today the administration just released a DOT 

revision that would supposedly cut I think 34 million hours of paperwork, and I will be interested to see the details of that proposal. 

Senator HATCH. Let me ask you for yes or no answers on these 

three questions. What type of trends do you see with regulations? 

Are they increasing in quality? 

Mr. BATKINS. The trends, based on what I have seen from the 

Mercatus tools, is that they have not been. 

Senator HATCH. Are they increasing in quantity? 

Mr. BATKINS. In terms of major and economic significance, yes. 

Senator HATCH. Are they increasingly burdensome? 

Mr. BATKINS. According to OIRA, they are. 

Senator HATCH. Okay. Can I ask one more question? 

Chairman BLUMENTHAL. Take as much time as—— 

Senator HATCH. I am going to have to leave. 

Chairman BLUMENTHAL. Take as much time. 

Senator HATCH. Thank you, Mr. Chairman. You are very gracious. I appreciate it. 

I would like your take on the criticism of the Office of Information and Regulatory Affairs. It seems that the critics want to have 

it both ways. First, they criticize OIRA for following Executive orders on cost/benefit analysis before a regulation is issued. But then 

they are happy to cite studies showing cost/benefit results after the 

implementation of a regulation. 

With the massive number of regulations and the vast regulatory 

bureaucracy, if I—you know, I am sure that anyone can find individual examples of regulations that are waiting for OIRA review 

for a while. But aren’t there also rules that do speed through the 

process? 

Mr. BATKINS. There are. The benefit and payment rule was one 

that I mentioned. CAFE, which was certainly a big rulemaking, I 

think spent a month at OIRA in the proposed and final stage. And 

in terms of sort of retrospective analysis, I think that is probably 

more important or just as important as the ex ante as well. We 

have heard the retrospective analysis of costs and benefits. 

I would like that for more than just a select few rules. I think 

that is one reason why the legislation in Indiana that passed last 

year with five no votes throughout both legislative chambers is so 

important, to review regulations after their effective date. I think 

that is when you really get a handle on, you know, are we doing 

it correctly, is the regulation worked as designed. And that is why 

I think the Indiana law is a good model. 

Senator HATCH. What are some of the possible reforms that could 

streamline regulations and still protect public health and safety? 

Mr. BATKINS. Well, in terms of additional analysis, the Administrative Conference of the United States, which is itself sort of a 

quasi-regulatory body, just recently recommended sort of these 

cost/benefit analyses through all independent agencies. Now, obviously that is something that independent agencies oppose, but one 

thing we did last year when we reviewed all the regulations was 

we sorted them by CFRs, where they are codified in the Code of 
19 

Federal Regulations, and Title 17, Commodities and Securities, if 

you exclude FAA airworthiness directives, was number one in 

terms of volume. But that is also the title that is probably least 

analyzed by regulators. 

There are some other ideas. I mentioned paperwork. An idea that 

we have thrown out would be paperwork neutrality for information 

collection and for overall hours. So essentially that the total paperwork budget, you know, does not increase. 

Now, this does not affect regulatory requirements for health or 

safety or environment, but it does, I think, perhaps maybe provide 

teeth in the Paperwork Reduction Act analysis. There are individual agencies that have cut millions of hours or consolidated existing paperwork requirements. 

Senator HATCH. Well, enacting too many regulations is as destructive as enacting too few, which is an easy statement to make. 

What type of legislation could we advance to ensure executive 

agencies create and promulgate effective regulations that close legislative gaps without oppressing American businesses? 

Mr. BATKINS. Well, one idea which was actually recently put 

forth by the Progressive Policy Institute would have been—would 

be a BRAC-like commission to review regulations. Again, this is a 

retrospective. I believe there is actually a bill in the Senate on sort 

of this BRAC-like commission. It would be bipartisan. Congress 

would vote up or down. The PPI paper even recommended through 

the first phase of this round perhaps exempting environmental 

rules to make the process easier. I do not know necessarily that 

anything would be easier in terms of regulatory reform. But that 

is one additional idea that is out there. 

Senator HATCH. Well, should regulations have an expiration 

date? 

Mr. BATKINS. On the paperwork side, they to some extent do. 

They have to be reviewed every 3 years by OMB. There are a lot 

of paperwork collections that expire and the agency does not have 

formal approval, and OIRA will note all the violations of the Paperwork Reduction Act. But I think maybe not necessarily an expiration date. It depends on the regulation obviously. But definitely I 

think a period of review after the regulation has been implemented. 

Senator HATCH. Thank you. 

Ms. Seminario, we have known each other a long time. I have a 

lot of respect for you and what you are trying to do. I worry sometimes that our union movement goes too far and it costs a lot of 

jobs, as someone who worked 10 years in the building construction 

trade unions in Pittsburgh and held a union card, and proud of it. 

But I just want you to know that I have great respect for what you 

are trying to do. 

Ms. Fennell, you and I know each other from a long time ago, 

trying to help some of the children and so forth. 

And, Professor, I was very interested in your testimony here 

today. 

I want to compliment our Chairman for holding this hearing. It 

is an important hearing. I would like you, each one of you, to tell 

us how we can do a better job here. What can we do to protect the 

American people without costing an arm and a leg so that they do 
20 

not have jobs? I mean, that is, after all, I think one of the things 

that we are really worried about and really trying to do. 

I am sorry I did not ask my usual devastating questions to you 

women here, but—because I wanted to get even. But—that was 

supposed to be humorous. I did not hear anybody laugh at all. 

[Laughter.] 

Senator HATCH. But I respect what you are trying to do. I respect 

how important it is to work in the best interests of our workers in 

this country and people in general, just consumers in general. But 

we have got to find a way that regulations mean something, that 

they are enacted quickly, that they are dis-enacted when they do 

not work, and that the costs, the excessive costs that result from 

overregulatory activities we can dent and maybe save the taxpayers a lot of money. 

Having said that, I want to thank you, Mr. Chairman, for allowing me this extra time and for holding this, what I consider to be 

a very important hearing. And we will look more thoroughly into 

the documents that you have given us and have tried to help us 

with. 

Thank you all for being here. 

Chairman BLUMENTHAL. Thank you, Senator Hatch. 

Senator HATCH. Excuse me. I am going to have to go. 

Chairman BLUMENTHAL. I understand you have other Committee 

commitments and obligations and you will not be able to stay, so 

I really appreciate your giving us this much time and the thoughtful questions that you asked. And if you have no objection, I am 

going to continue with my questions. 

Senator HATCH. Of course not. I am honored to be with you. 

Thanks so much. 

Chairman BLUMENTHAL. Thank you very much to Senator Hatch. 

Let me go back to I think the point that you were making, Mr. 

Batkins, which I think is an important one, as to OIRA, which is 

the Office of Information and Regulatory Affairs. Your point I think 

was about the problems with potential lack of transparency in the 

letters that OIRA may send to agencies in returning regulations for 

revision. Maybe you could expand on that point. 

Mr. BATKINS. Sure. To date, we have only seen one return letter, 

sort of a one-page letter from then-OIRA Administrator Cass 

Sunstein, explaining the reasons for return of the ozone letter. Obviously that was very contentious. I think it was right before a 

Labor Day recess. But if you look back at the historical OIRA return letters, I think there are several dozen during the Bush administration, and occasionally a rule gets delayed far beyond its 90- 

day period and we do not know why. Something that we did look 

at in terms of trends of how rules have been at OIRA, we looked 

last October for rules that had been at OIRA longer than 90 days, 

and I think it was something like 84 percent, and people attributed 

that to political reasons, and there is no evidence to—direct evidence, at least that I can see, that backs that up. Today that figure 

is down to around 55 percent that I think have been there longer 

than 90 days. 

OIRA does provide a lot of transparency for meeting records. If 

you go to OIRA and you meet with the Administrator, of course, 

that will be recorded, as well as any documents that you submit. 
21 

Chairman BLUMENTHAL. I wonder if any of the other witnesses 

have comments on the transparency of this process. 

Ms. SEMINARIO. I would just like to make a comment. The process really, in my view, is not transparent. As Mr. Batkins says, 

there is a log of meetings of who showed up and if you leave a document, but there is no record of what was discussed. And if you 

compare that to the rulemaking process that takes place at the 

agencies under the Administrative Procedures Act, there has to be 

a record. Everything has to be on the record. And there is to be 

no ex parte communication. 

And so it is a great concern that OIRA essentially provides a 

forum for those who wish and those who are able, and it is largely 

industry and Washington representatives. They have the means, 

they have the ability to go in and to make their case. 

And so I think there are some real problems, and we also do not 

see between the agencies and OIRA a clear reason or explanation 

of why the rules are changed. That is supposed to be part of the 

public record. It is routinely not made part of the public record. So 

I would disagree with Mr. Batkins that the OIRA process is transparent at all. 

Chairman BLUMENTHAL. Professor? 

Ms. STEINZOR. I would like to return to the rearview camera 

issue, because I think it is a very good example. First of all, 

NHTSA asked for the rule to come back, and that was after it had 

been at OIRA for a very extended period of time, quite beyond the 

very strong limits that were set in the Executive Order. As our testimony has indicated, that happens all the time. So they asked for 

it to come back, unclear what the reason is. 

As it turns out—and no promise on when it will escape again— 

very likely that OIRA told them to ask for it to go back. Half the 

cars in the country have cameras like this. There was a report in 

the New York Times that the reason that the auto industry was opposing the rule was because it had become accustomed to bundling 

the rearview camera for these half of the cars that are sold in the 

country with items like satellite radio, which become then a package that is sold to consumers—this certainly does not help low-income people—and that that was the reason, quite apart from the 

cost for the camera itself, because once you have a screen in the 

car, which is used for GPS, then the camera is a minor cost. 

So when you probe into these things—and I have spent a long 

time sort of trying to scratch to the bottom of it; it is sort of like 

a treasure hunt—you often find that the rationale for opposing a 

regulation that would have such important benefits is an economic 

concern of the industry that does not have very much to do with 

the cost of the camera, does not have much to do with the lives 

that are saved, but is instead a strategic decision about profit. And 

that is appropriate for corporations. Corporations should be very 

concerned about profit. But we need a Government to make sure 

that they do the right thing; otherwise, we end up with cut-throat 

competition that really hurts consumers and workers and members 

of the public. 

I also wanted to say that, in terms of what Mr. Batkins was saying, I agree with him about paperwork for the average citizen. I 

could not agree more. I think that, you know, I am in big trouble 
22 

as an advocate for healthy and safety and environmental regulations because when people hear regulation, they think about the 

paperwork they have to do. And as, you know, the mother and a 

family, the time I spend filling out forms just even for health insurance, it goes on forever. So I agree with him. 

But there is a difference between paperwork for the average person and what is happening to veterans when they try to get their 

benefits, big difference between that and the kind of health and 

safety and environmental regulations that Ms. Seminario and I 

were talking about, and Ms. Fennell. 

Chairman BLUMENTHAL. Ms. Fennell. 

Ms. FENNELL. Could I add a little bit to that testimony? 

Chairman BLUMENTHAL. Absolutely. 

Ms. FENNELL. You are absolutely correct. Right now, if you are 

going to have a rearview camera on your vehicle, it is usually a 

high-end vehicle; or the only way you are going to get it is if you 

go to the top of the trimlines and you are going to get leather seats 

and chilled and heated cup holders and all of these wonderful, unnecessary things, which are really creature comforts. And I know 

we heard one of the witnesses say about disproportionately affecting the poor. Well, safety should not be an option. And through the 

regulatory process it would require that all vehicles have a rearview camera. And if I am fortunate enough to have a rearview 

camera in my vehicle but I go to the grocery store and the child 

gets away from me and is backed over and killed by someone who 

does not have a camera. 

So it really does even the playing ground. When people talk 

about losing jobs, it is kind of interesting because so many of these 

elements are made in America. There is a wonderful company up 

in Michigan that is doing very well based on the introduction of 

these type of technologies. But I do not care if it is cameras. I 

mean, if you can put a mirror on a vehicle and see everything that 

is behind you, that is fine. What we are really trying to break loose 

here is the fact that it is unconscionable to put somebody behind 

the wheel of a 3,000-pound lethal weapon and they do not know 

what is behind them when they are backing up. 

Everybody needs that vision and it should not be available just 

to people of means. Safety should not be optional. 

Chairman BLUMENTHAL. Ms. Fennell, have you been given a reason or do you know of the reason that has been given to others as 

to why this rule has been so long delayed? 

Ms. FENNELL. Well, at the beginning—because, you know, there 

have been five delays. At the beginning, you know, I could kind of 

go along with this because, you know, adding rearview cameras to 

vehicles will forever change the way that we drive. And just like 

seat belts and air bags, you know, there are some changes that 

need to be made. And, you know, I have attended all the meetings, 

and I went to the site in Ohio when they pulled together all the 

manufacturers and, for instance, one of the things that I had not 

thought about is, you know, they dictate what you should be able 

to see, and Ford Motor Company had a great invention where, 

when you are trying to hook a trailer up to your vehicle, you could 

zoom in with your camera and make it a very easy task. Well, 

when you zoom in, you would then be out of compliance. 
23 

So there are some of those complexities that needed to be looked 

at and taken care of. But at the same time, we hear a situation 

where, when this rule came out that the industry said, well, we 

thought this was just going to be on SUVs and pick-up trucks and 

minivans, you know, only on the larger vehicles, again, very disingenuous because before, you know, a month before the bill was 

going to be passed, they supported it. They said they were for it. 

And now, with all this time and all these different things that have 

changed, they now are against it. And, you know, they do not want 

to put a camera on certain vehicles or their low-end vehicles. 

But it does not make sense because it really does make our playing field even. No one is going to be disproportionately affected by 

this. 

I have to give a great call-out for Honda. As much as 97 percent 

of their fleet have rearview cameras. And I do not know if you have 

seen some of the advertising different car companies are using. I 

mean, they know people want this. And we do not want it held captive as the highest trim level. We do want it to be available for everyone, and it does not affect one manufacturer versus the other, 

except for the ones that are smart enough to realize that consumers want this and they are willing to make a brand change to 

get what they want. I mean, it is standard equipment on a Honda 

Civic that costs $17,000. 

Chairman BLUMENTHAL. Does this viewing device also enable 

drivers to avoid hitting inanimate objects so that someone who may 

be not as cognizant of the road as otherwise would have a better 

view of what they may be backing into? 

Ms. FENNELL. I am so glad you brought that up, Senator. Thank 

you. Part of the analysis that is totally missing from this look at 

the need for being able to see where you are going when you are 

backing up is the fact that can you imagine how much money you 

are going to save because you do not have to keep repairing your 

bumper that ran into the pole, into the fence, into your garage? 

This gives you visibility. None of that is figured in there, and if 

people have had bumpers repaired lately, it is always in excess of 

$1,000. 

So there are all these other benefits, and we have a young man 

that we work with that at 18 months he was backed over and had 

a serious spinal injury and has lived his entire life in a wheelchair. 

Those are some serious costs to our country and to children who 

just cannot be seen because there is no standard. 

Chairman BLUMENTHAL. Very well said. 

I guess I should make the point just for the record that the ‘‘you’’ 

used in your comment just now was not addressed to the Chair or 

a comment on his driving ability. 

[Laughter.] 

Chairman BLUMENTHAL. But a collective ‘‘you,’’ although if you 

ask my wife and children, it could be well addressed to the Chair. 

Ms. FENNELL. Well, that is probably why you asked that very 

critical question. But I do invite anyone—as part of my testimony, 

I attached the Consumer Reports results because what they would 

do is for every vehicle that went through their test site, they would 

test what the blindzone is for a 5-foot–4 and a 5-foot–8 driver. Nobody thinks that your height has anything to do with being able 
24 

to see behind your vehicle. But it does. You know, if you have long 

legs or a long torso, all of that goes into it. 

But, more importantly, take a look at where our vehicles were, 

you know, 20, 30 years ago, and look at them today. They are much 

higher off the ground. They have windows in the back that are so 

small you can hardly see. They have a third row of seats that have 

headrests that are this big. They kind of slope down. There are 

spoilers. There is a tire on the back. All of those things are happening because there is no standard. You can just do whatever you 

want. 

And, I mean, I think it is cool to have nice-looking cars, but I 

never would want to cause the death of a child for a design and 

style issue. 

Chairman BLUMENTHAL. I appreciate those points, and I am 

going to turn in just one moment to Senator Whitehouse, who 

thankfully has joined us. I appreciate his being here. But just one 

question for Dr. McLaughlin. You know, you have heard described—and maybe you knew about it before—the practice of bundling or tying the back-view device to other optional items on the 

car, such as radio service. As an economist, I am just wondering— 

and you have also, I am sure, been aware of research that shows 

there are a lot of costs in bumper repairs, which are quantifiable, 

not to mention worst repairs that could result from backing into inanimate objects, plus the unquantifiable and tragic costs of death. 

I am just wondering what you think about the practice of tying this 

kind of device with potentially such great measurable and important benefits to radios, perhaps other optional items that have no 

discernable economic benefits. 

Mr. MCLAUGHLIN. Chairman, you are right that bundling is studied by economists, and it is indeed a profit-maximizing technique. 

However, I would—just listening to this, I do not profess to be an 

expert on rearview cameras in cars. However, just listening to what 

was discussed now, if the problem is bundling, then perhaps one 

regulatory solution that could be addressed is bundling. Is it necessarily the case that it has to be a rule that says all cars must 

have cameras? I do not know. I am saying that the agency can take 

a look at multiple options, like they should do in a regulatory analysis. One option they could consider is maybe we should stop the 

practice of bundling. Another option is maybe there should be cameras on every car. 

And both of those choices—and they should consider other options as well—would indeed have costs. They would have tradeoffs. 

They would have benefits. And those should all be assessed. 

And I would make the point that one of those costs would be to 

raise the cost of cars. If you require all cars to have cameras, they 

will become more expensive. That does disproportionately affect 

people who have lower income. An increase in price of $200 or 

$1,000, whatever the number may be, is a higher percentage increase for someone who has a lower income relative to his income 

than for someone who has a higher income. 

Chairman BLUMENTHAL. If he wishes, I am happy to call on my 

colleague and friend from Rhode Island, Senator Whitehouse. 

Senator WHITEHOUSE. Delighted to be called on, Mr. Chairman. 

Thank you. Thank you very much for holding this hearing. I think 
25 

it is very valuable and important, and I know that as the Attorney 

General of Connecticut for a very, very long time, you were deeply, 

deeply involved in consumer issues, and so it comes as no surprise 

that this should be a passion of yours in the Senate as well. But 

I am grateful to you. I think it is an important issue and an important hearing, and I thank all of the witnesses for being here. 

I would like to add something to the record of the hearing, if I 

may, which is a very thoughtful and interesting article by Lisa 

Heinzerling called, ‘‘Who will run the EPA?’’ And, without objection, if I—— 

Chairman BLUMENTHAL. Without objection. 

Senator WHITEHOUSE. Thank you. 

[The article appears as a submission for the record.] 

Senator WHITEHOUSE. It discusses the EPA-based regulations 

that made their way over to the Office of Management and Budget 

and then sat there. We have a list here for this hearing—the article kind of covers the EPA stuff. I just have a list here of the Department of Energy regulations that are under OMB review. There 

are 10 of them, and 8 have been there more than the 90 days that 

the Executive Order prescribes: energy efficiency and sustainability 

design the District for new federal buildings, solar hot water requirements, water efficiencies, and green building ratings, 706 

days; fossil fuel energy consumption reduction for new construction 

and major renovations to federal buildings, 693 days; energy conservation standards for walk-in coolers and walk-in freezers, 670 

days; and so on, 645 days, 581 days, 523 days, 523 days, 523 days. 

There is a little packet that has been there 523 days. 

Well, 523 days is more than a year more than the 90 days that 

by its own terms the administration is supposed to follow. I am 

pleased that Ms. Burwell has been confirmed into that position. 

She and OIRA Director Schlanksy have both energetically addressed themselves to this problem, and I think it is going to improve. We are meeting with them regularly to make sure that 

benchmarks are met and that they are able to clear this backlog. 

But I think this is a really important thing to get done. 

To Dr. McLaughlin’s point, these are regulations that have already been through the vetting of public scrutiny, of the Administrative Procedures Act, and of the tests required for net benefit, net 

economic benefit. So when they are just being stalled, it is pretty 

clear that something that would be beneficial to the public is being 

stalled, and the public is being deprived of those protections. 

So I wanted to make one point and then ask a technical question. 

The point that I want to make is that it would not surprise me if 

these regulatory delays related to a larger problem that we virtually never discuss here in Congress of regulatory capture, of the 

undue influence of regulated industries over their regulators. This 

is a widely, widely discussed and commented on phenomenon. 

Woodrow Wilson wrote about it. It is in Nobel Prize-winning authors’ economic literature. It is throughout the treatises on administrative law. It is in the editorial pages of the Wall Street Journal 

right around now. In recent years it has really immensely solid 

academic provenance, both in the economic and in the legal fields. 

And out there in real life, guess what? We saw an SEC that 

coughed up for Wall Street humongous leverage standards that led 
26 

very significantly to the Great Recession that we just had. We saw 

the Mine Safety Administration go lax on mines with miners killed 

in explosions and accidents. And we saw appalling conduct out of 

the Minerals Management Service in the run-up to the gulf explosion and oil spill. 

And so, you know, you have got the academic theory that goes 

back, gosh, probably about a hundred years now in several disciplines. And then you have got real-life practice of this problem, 

of this principle. And when I held a hearing on it sometime ago, 

I asked my staff, let us go back and look at all the other hearings 

that have been held on this issue so we have some historical background. There had never been one. So I think that it is important 

for us to be looking at this in the context of regulatory capture as 

well. 

Ms. Seminario, I saw you nodding your head, so let me ask if 

there is something you would like to add, and then I will quickly 

go to my question. 

Ms. SEMINARIO. What I would like to add is just to relate to you 

an experience I had about a year ago on Workers’ Memorial Day 

in 2012. There was a Senate hearing on the delay in OSHA rules, 

and as part of that hearing, there were numbers of workers, family 

members who had lost loved ones from explosions, from combustible dust, victims with silicosis who came to Washington. And we 

not only came to the Senate, we also went to OMB. We had a meeting with Cass Sunstein. And OMB kept asking us: ‘‘What is this 

meeting about? What is this meeting about?’’ And we said, ‘‘The 

meeting is about workers and family members who would like to 

come and talk to you about the importance of your job in clearing 

these rules.’’ And we walked into the room, and he was very polite. 

And he said, ‘‘This is a very unusual meeting. I have never had a 

meeting like this. We do not hear from people like you. The only 

people that we hear from are the industry. They are here all the 

time.’’ 

And as I said, it was a very polite meeting. But the silica rule, 

which was part of that discussion, it is still there at OMB. The 

combustible dust rule is not going anywhere. And after that meeting there was a press report a few months later about Mr. Sunstein 

and how there had been a letter that came in on silica from the 

construction industry. And he had sent the letter through an e-mail 

to the White House Chief of Staff’s office and said, ‘‘Maybe this is 

something you should look at.’’ They were complaining about the 

costs of the rule. Was there any conveying of the workers’ concern, 

the family member, the fact that these rules were needed? No. 

And so regulatory capture is a huge problem, and it is not just 

in the agencies. It is at the White House where these meetings go 

on behind closed doors. 

Senator WHITEHOUSE. There is very little transparency in the 

OMB process, unfortunately. 

I had a technical question, if I may continue a little bit further, 

about Dr. McLaughlin’s testimony. 

Chairman BLUMENTHAL. Sure, absolutely. 

Senator WHITEHOUSE. You have graphs in your testimony that 

show the increasing number and burden of regulations. I am no 

great fan of unnecessary and excessive or obsolete regulation. I do 
27 

not think anybody is. But I just wonder about the methodology of 

that a little bit. I have been a regulator myself, and I have been 

a lawyer engaged in the regulatory process myself. And what can 

happen is that a regulation gets developed, and it goes on the 

books. And then it comes time to update or amend it, and so then 

a new regulation gets adopted that is the amendment to the first 

one, and it updates it. And then time goes by or flaws are revealed, 

and another regulation gets put in place of that. 

It looks to me by your graph that you count that as three separate regulations, but, in fact, it is one regulation that has been 

added to by another that displaced the first one. And so my experience has been that a lot of regulations that are on the books that 

appear to be obsolete either are in desuetude, simply not enforced 

any longer and, therefore, meaningless to no one, not creating an 

active burden, or they have been overruled by subsequent legislation or replaced by subsequent regulation so that they are no 

longer a practical, immediate problem in the day-to-day lives of the 

regulated entities. 

Could you tell me how in your graph and in your methodology 

you accounted for those two types of regulations—ones that are 

still on the books but simply are not enforced because they are in 

a state of desuetude, and, second, those that are still on the books 

nominally because you do not formally repeal and chuck out a regulation, you update it with a new one, but what is enforced is the 

updated regulation not the old one, so it might as well be dead sitting there on the books? Do you have a process for counting those 

out as you do the addition to the sum? 

Mr. MCLAUGHLIN. So I have also been a regulator, worked for 

DOT, and your points are spot on. That is indeed how regulations 

are formed. Requirements are piled on top of requirements on top 

of requirements. It is not necessarily the case that an old one is 

in force or is as burdensome as a new one. 

And, by the way, I would like to make the point, Senator, that 

what I am measuring is regulations. It is not necessarily measuring burden. 

Senator WHITEHOUSE. Okay. 

Mr. MCLAUGHLIN. I am counting restrictions, I am counting 

pages. Those could lead to benefits, those could lead to costs. It is 

quantifying. 

Senator WHITEHOUSE. So hypothetically, at least, you could have 

a situation in which a burdensome and obsolete regulation was replaced by a less burdensome, sensible regulation and although in 

a burden measurement context you would show that that went 

down, the graph that you have shown would actually—it would 

look like it was two because it would be in addition? 

Mr. MCLAUGHLIN. So my graph was showing the accumulation of 

restrictions. That has been shown to be an important measure in 

economic analysis, and that is the point. I do not pretend it is a 

perfect measure by any means. But it is a useful measure. It does 

give us an idea of how many regulations we have piled on top of 

regulations on top of regulations, and thrown into a context, for example, of—— 

Senator WHITEHOUSE. But the point that I am making is that in 

some cases, when you say regulation piled on regulation piled on 
28 

regulation piled on regulation piled on regulation, that implies that 

they are cumulative of one another rather than replacing of one another. 

Mr. MCLAUGHLIN. Yes, sir. But how do you know when one is not 

in effect or is not? 

Senator WHITEHOUSE. That is the difficulty. 

Mr. MCLAUGHLIN. And how does a business know? 

Senator WHITEHOUSE. That is the weakness, I think, in a pure 

mathematical or accumulative process. And I do not think you are 

wrong for putting that information out there, because I think having to look into it and make that decision regulation by regulation 

becomes so complex and so riddled with judgment calls that it is 

very hard to tell. But I did think that the record of the hearing 

should reflect that when you are adding a new regulation, you are 

not necessarily adding a new burden on an industry. You actually 

could, in fact, be reducing a burden on an industry, and that possibility is not reflected or measured in your accumulative graph, correct? 

Mr. MCLAUGHLIN. I do not disagree with you, sir. The methodology could be improved. I am working on improving it. I do not 

pretend that it is perfect. 

Senator WHITEHOUSE. It ain’t easy, and I am not faulting you for 

it. I think it is really a challenge. 

Mr. MCLAUGHLIN. However, it has been useful—well, the page 

count, the other graph that was in there, has been used in a publication that just came out in the Journal of Economic Growth, a 

peer-reviewed publication, a good journal, that did show that this 

measure, even though it is not perfect, page counts is even worse 

than counting restrictions, arguably. It does work well for showing 

how that does affect economic growth. 

Senator WHITEHOUSE. Chairman, you have been very generous 

with the time. I appreciate it. And thank you again for holding this 

hearing. This is such an important topic, and you are such an ardent consumer advocate. It is good to see you in action in this way. 

Chairman BLUMENTHAL. Thank you very much, Senator 

Whitehouse, and thank you for those very, very salient and important points. And I might add that my hope is that we can explore 

in a separate hearing some of the environmental regulations that 

you quite rightly well before this hearing called attention to and 

Ms. Seminario had mentioned as well, because what I hope to do 

is explore subject by subject, topic area by topic area, the ways in 

which environmental workplace safety, all of these regulations, 

when they are delayed have consequences and costs going forward. 

And I might just mention a number of organizations have expressed interest in this general topic, and without objection, I am 

going to put their statements in the record along with a very helpful and supportive statement from Chairman Leahy on this issue. 

[The information referred to appears as a submission for the 

record.] 

Chairman BLUMENTHAL. You know, I just really want to close 

this hearing by thanking our witnesses and saying that there is a 

lot of common ground here. In fact, I am tempted to say more in 

common than in conflict, because Mr. Batkins I think, for example, 

mentioned the idea of retroactive views of regulation. In the med-
29 

ical device area, I helped to adopt an amendment, lead an effort to 

adopt an amendment that essentially expedites the consideration 

by the FDA of new medical devices, but at the same time imposes 

stronger retroactive or retrospective analysis of the potential malfunctions or other problems with those devices. So that, in effect, 

the rulemaking or review process is expedited, but there is a 

stronger lookback provision in the law; whereas, before now, almost 

no lookback provision was applied and longer periods of time were 

taken to approve the device. 

So not to say that that model is necessarily applicable here, but, 

for example, if it were applied to the rearview camera device, if 

there were objections, maybe we could require implementation of 

that device, and then folks could come along and criticize how it 

should be changed or how different rules might be applicable, but 

at least we would have more cars with more of these devices. We 

would have more OSHA rules that protected people against workplace safety issues, including the kind of tragedy that occurred at 

L’Ambiance. 

So I am going to bring this hearing to a close. I think it has been 

very important, and I really want to thank all of those here for 

their insights and all of the organizations that have taken an interest in this area. I am going to encourage and ask every one of the 

witnesses to give me—because you have made reference to them— 

a list of other rules or standards that were delayed too long or— 

and I want to be fair—approved too quickly. And Mr. Batkins mentioned a few; Dr. McLaughlin may have some in mind, on both 

sides of the ledger, so to speak, because I can promise you, if you 

give us your suggestions, we will look into them, because, as I mentioned, we are going to be having other hearings. 

I want to invite everyone who is here to return to them, including the students who have accompanied Professor Steinzor. I hope 

you get credit for having attended. Not even a Senator can compel 

credit at a university. But thank you—or especially a Senator cannot compel credit. 

[Laughter.] 

Chairman BLUMENTHAL. But thank you all for being here, and 

this hearing is closed. The record will be kept open for a week. 

Thank you. 

[Whereupon, at 4:08 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

(31) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
32 

PREPARED STATEMENT OF HON. PATRICK LEAHY
33 

PREPARED STATEMENT OF RENA STEINZOR
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 

PREPARED STATEMENT OF SAM BATKINS WITH ATTACHMENTS
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
61 
62 
63 
64 
65 
66 
67 
68 
69 
70 

PREPARED STATEMENT OF PEG SEMINARIO
71 
72 
73 
74 
75 
76 
77 
78 
79 
80 
81 

PREPARED STATEMENT OF DR. PATRICK MCLAUGHLIN
82 
83 
84 
85 
86 
87 
88 
89 
90 

PREPARED STATEMENT OF JANETTE FENNELL WITH ATTACHMENTS
91 
92 
93 
94 
95 
96 
97 
98 
99 
100 
101 
102 
103 
104 
105 
106 
107 
108 
109 
110 
111 
112 
113 
114 
115 
116 
117 
118 
119 
120 
121 

QUESTIONS SUBMITTED BY SENATOR BLUMENTHAL FOR RENA STEINZOR
122 
123 
124 
125 

QUESTIONS SUBMITTED BY SENATOR BLUMENTHAL FOR PEG SEMINARIO
126 
127 
128 

QUESTIONS SUBMITTED BY SENATOR KLOBUCHAR FOR RENA STEINZOR
129 

RESPONSES OF RENA STEINZOR TO QUESTIONS SUBMITTED BY SENATORS BLUMENTHAL

AND KLOBUCHAR
130 
131 
132 
133 
134 
135 
136 
137 
138 
139 
140 
141 
142 
143 
144 
145 
146 
147 

RESPONSES OF PEG SEMINARIO TO QUESTIONS SUBMITTED BY SENATOR BLUMENTHAL
148 
149 
150 
151 
152 
153 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD
154 
155 
156 
157 
158 
159 
160 
161 
162 
163 

Æ