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FEDERAL RULEMAKING AND THE 

REGULATORY PROCESS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JULY 27, 2010 

Serial No. 111–143 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

STEVE COHEN, Tennessee, Chairman 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

DANIEL MAFFEI, New York 

ZOE LOFGREN, California 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JOHN CONYERS, JR., Michigan 

JUDY CHU, California 

TRENT FRANKS, Arizona 

JIM JORDAN, Ohio 

HOWARD COBLE, North Carolina 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

JULY 27, 2010 

Page 

OPENING STATEMENTS 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Chairman, Subcommittee on Commercial and Administrative Law ........................................................................................................... 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on Commercial and Administrative Law .................................................................................................. 2 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 4 

WITNESSES 

Mr. Cass R. Sunstein, Administrator of the Office of Information and Regulatory Affairs (OIRA), Executive Office of the President, Office of Management and Budget 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 9 

Ms. Sally Katzen, Senior Advisor, Podesta Group, and former Administrator 

of the Office of Information and Regulatory Affairs (OIRA) 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 24 

Mr. Gary D. Bass, Ph.D., Executive Director, OMB Watch 

Oral Testimony ..................................................................................................... 36 

Prepared Statement ............................................................................................. 39 

Mr. Richard A. Williams, Ph.D., Managing Director, Regulatory Studies Program and Government Accountability Project, Mercatus Center at George 

Mason University 

Oral Testimony ..................................................................................................... 58 

Prepared Statement ............................................................................................. 60 

Mr. Curtis W. Copeland, Ph.D., Specialist in American National Government, 

Government and Finance Division, Congressional Research Service 

Oral Testimony ..................................................................................................... 88 

Prepared Statement ............................................................................................. 90 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing Questions from Cass R. Sunstein, Administrator 

of the Office of Information and Regulatory Affairs (OIRA), Executive Office 

of the President, Office of Management and Budget ........................................ 109 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Ranking Member, Subcommittee 

on Commercial and Administrative Law ........................................................... 117 

(1) 

FEDERAL RULEMAKING AND THE 

REGULATORY PROCESS 

TUESDAY, JULY 27, 2010 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:12 a.m., in 

room 2237, Rayburn House Office Building, the Honorable Steve 

Cohen (Chairman of the Subcommittee) presiding. 

Present: Representatives Cohen, Franks, Smith, and Jordan. 

Staff present: (Majority) Carol Chodroff, Counsel; Adam Russell, 

Professional Staff Member; (Minority) Daniel Flores, Counsel; Richard Hertling, Counsel; and Jennifer Lackey, Staff Assistant. 

Mr. COHEN. Well, now that the distinguished Ranking Member 

of the Subcommittee—of the full Committee—and the distinguished 

Member has arrived, Mr. Smith of San Antonio, we will commence 

this hearing with the banging of the gavel. 

This hearing of the Committee on the Judiciary Subcommittee on 

Commercial and Administrative Law will now come to order. Without objection the Chair will be authorized to declare a recess of the 

hearing. I will now recognize myself for a brief statement. 

Each year Federal regulatory agencies create thousands of new 

rules that affect our lives, including regulations that impact the environment, the economy, and the health and safety of our citizens. 

Transparency and public participation in the process of issuing 

those rules and regulations are essential both to the quality of regulations and the legitimacy of regulatory proceedings. 

The Office of Information and Regulatory Affairs, here inafter 

known as OIRA, has played a central role in the Federal rulemaking process for more than 25 years. There are competing views 

about the nature of Federal rulemaking and OIRA’s proper role. 

Some argue that Federal rulemaking is essentially presidential 

in nature and that because OIRA is part of the executive office of 

the President, it helps to ensure the rules of covered agencies reflect the President’s policies and priorities. Other observers view 

OIRA as having a shared allegiance between the President and the 

Congress and emphasize that OIRA was created by Congress and 

has been given a number of statutory responsibilities through the 

Paperwork Reduction Act and other laws. 

With both statutory and executive order responsibilities, OIRA 

embodies broader tension between Congress and the President for 

2 

control of administrative agencies. Of course, Congress also creates 

courts but Congress has no responsibility or right to deal with the 

courts. There are things called separation of powers. We remember 

those. 

I look forward to hearing from our witnesses about this delicate 

balance and the proper role of government within our constitutional framework of a separation of powers that we revere and salute on many occasions and the proper role of OIRA in the Federal 

rulemaking process. 

There have been concerns expressed in previous Administrations 

about the lack of transparency of OIRA’s regulatory reviews. I understand this Administration has been working hard to promote 

greater transparency and I am interested in learning more about 

what OIRA is doing and plans to continue doing in this Administration to promote transparency and facilitate public participation 

in the regulatory process. 

I also look forward to hearing about the status of any upcoming 

changes to the existing executive order or the creation of new executive orders, or memorandum, or other guidance to assist the Federal regulatory process in this Administration. On January 30, 

2009, President Obama issued a memorandum to the heads of executive departments and agencies instructing the director of OMB, in 

consultation with representatives of regulatory agencies, to 

‘‘produce within 100 days a set of recommendations for a new executive order on Federal regulatory review.’’ 

On February 26, 2009, the director of OMB published a notice 

from the Federal register requesting comments from the public on 

how to improve the regulatory review process. The director noted 

that although executive orders are not subject to notice-and-comment procedures and public comments are not normally invited before the reissuance OMB was doing so in this case because there 

had been an unusually high level of public interest and because of 

the evident importance and fundamental nature of the relevant 

issues. Thus, we commend the Administration for its actions. 

In response to its request OMB, received 183 comments from the 

public, including Members of Congress, representatives of public interests and private sector interest groups, academicians, and other 

individuals. To date, no new executive order has been issued and 

I am interested in learning more about the status of a new order 

or other guidance that might be forthcoming. 

Finally, I am looking forward to a discussion of the implementation of the Congressional Review Act, which requires Federal agencies to submit all of their final rules to both houses of Congress and 

the Government Accountability Office before they take effect. I am 

especially interested in the opinion of our witnesses regarding the 

proper role of Congress and OIRA with respect to guidance on and 

implementation of the Constitutional Review Act. 

I thank the witnesses for appearing today and look forward to 

their testimony. 

I will now recognize my colleague, Mr. Franks, who knows when 

to make an entrance, the distinguished Ranking Member of the 

Subcommittee, for his opening remarks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And thank you, Mr. Sunstein, for being here. 

3 

Mr. Chairman, Federal rulemaking and the regulatory process 

are, indeed, immensely important topics, and I welcome the opportunity to dedicate our attention to them. First, these topics bring 

front and center so many of the issues that are most important to 

Americans and their concerns about government and its process. 

During the New Deal the seat of Federal power began to seep 

more and more away from Americans’ elected officials and to the 

unelected, unaccountable Federal bureaucracy. As the New Deal 

era began to give way to the Great Society and the regulatory initiatives of the 1970’s Congress aggressively abetted this power shift 

and it did so through statute after statute that garnered public acclaim for Congress but broadly addressed, essentially, national concerns, but also granted the real decision-making power to the Federal agencies. Only when these agencies filled in the content of 

myriad statutes through the rulemaking process did the Federal 

Government’s full decision emerge in full view. 

Now, Ronald Reagan, the conservative movement, and millions 

and millions of Americans rightly sense the disturbing nature of 

this trend, which was gradually corroding the core of our constitutional democracy. Through the deregulation and strengthen presidential oversight of the rulemaking process the Reagan administration began to reverse trend. It is on account of this effort that the 

White House office before us today, the Office of Information and 

Regulatory Affairs, actually exists in the first place. 

This office is the threshing floor on which the White House is 

supposed to separate sensible Federal regulations from those that 

serve no sufficient need, produce too little benefit for their costs, 

or otherwise excessively burden the American people and the 

American economy. And this brings me to the second most important reason that we return our attention to the regulatory process 

and particularly to the Office of Information and Regulatory Affairs 

today. 

Perhaps never before has this Nation so needed this office to 

zealously perform its mission. Growing consensus holds that it is 

the Obama administration’s vast new regulatory activity and uncertainty over how much more and how much more costly regulation is to come that has frozen our economy’s ability to create jobs. 

If businessmen cannot know what future costs will be they cannot 

rationally invest and create new jobs; the uncertainty is such an 

enemy to economy. 

And I say that, Mr. Chairman, as a former businessman myself. 

The Office of Information and Regulatory Affairs is not charged 

with scaling back the scope of the Administration’s regulatory 

agenda, but it is charged with assuring that any new regulations 

under this Administration pass a rigorous cost-benefit analysis— 

that they are cost effective, are least burdensome, and are clear 

and certain in their terms. Further, it is the job of the Office of Information and Regulatory Affairs to reign in the agencies’ regulatory impulses when cold, hard analysis shows that it would be 

better to have no regulations than the regulations agencies actually 

propose. 

When Administrator Cass Sunstein took charge of the Office of 

Information and Regulatory Affairs Republicans took some heart. 

In the past Administrator Sunstein had been a prominent proVerDate Aug 31 2005 17:59 Dec 01, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\COMM\072710\57672.000 HJUD1 PsN: DOUGA
4 

ponent of cost-benefit analysis and less intrusive Federal regulation. Republicans reached out to the administrator and offered cooperation and efforts to reform the regulatory process. 

But the outreach met with no reply, Mr. Chairman. 

Moreover, reports have reached us that the Office of Information 

and Regulatory Affairs is at best halfheartedly performing its core 

mission of regulatory review. It is ceding power to White House 

czars, and in short it is doing little to mitigate the cloud of regulation and regulatory uncertainty that hangs over our economy, paralyzing the power of free enterprise to create new jobs so desperately needed today. 

And, Mr. Chairman, finally, let me just say that I think sometimes that conservatives are castigated for being so focused on competition in the economy that we overlook the greater substance of 

the economy that makes it work well, and that is this thing called 

trust. 

If people in the economy—those with capital to risk, those with 

dreams and hopes to make a business—if they believe that they 

can trust the regulatory framework of government, if they believe 

that they can have their contracts enforced, and if they believe that 

government will not confiscate everything that they earn then 

there is some motivation for them to go forward in their endeavors. 

But if they are convinced that they are just shooting in the dark 

then they are hesitant. And I would just suggest that there is nothing more damaging to our business environment right now than 

uncertainty and a lack of trust in government. 

So with that, I look forward to questions, look forward to talking 

the Administrator Sunstein about these concerns, and hearing from 

our distinguished witnesses today. 

And thank you, Mr. Chairman. I yield back. 

Mr. COHEN. Thank you, Mr. Franks. 

I would like to ask if the other Members would like to introduce 

statements or make statements? And we always entertain statements from the distinguished Member from San Antonio, the home 

of the Alamo where so many Tennesseans gave their lives to preserve the state of Texas. [Laughter.] 

Mr. SMITH. Thank you, Mr. Chairman, for promoting tourism in 

San Antonio. Appreciate that. 

Mr. Chairman, as we near the midpoint of the Obama administration the American economy continues to lose, not create, private 

sector jobs. There are a number of reasons for this chronic unemployment and the failure of the Administration to create jobs, beginning with the ineffective stimulus bill. That legislation siphoned 

close to $1 trillion of capital away from the private sector. 

The Administration promised it would keep unemployment below 

8 percent. Unemployment instead rose to almost 10 percent. 

The private sector has lost 2.5 million jobs since the stimulus bill 

became law. The Federal Government has gained over 400,000 

jobs, but those jobs came at the expense of the private sector. After 

all, the private sector has to spend capital on taxes, not investment, if government jobs are to be funded. Perhaps it is no coincidence that four out of every five jobs the Administration claims to 

have created or saved are public sector jobs. 

5 

Also at the head of the job-killing pack are the regulatory policies 

of this Administration. Americans ask daily, ‘‘Where are the jobs?’’ 

but the answer from Washington too often is, ‘‘Here are the regulations and there are plenty more coming.’’ 

The wave of regulations is killing private sector jobs. Rules 

adopted by the Administration so far, like the Environmental Protection Agency’s carbon dioxide endangerment finding, already tell 

businesses that their costs will rise. 

And rules coming down the pike tell them that their costs will 

only continue to rise under this Administration. These rules include hundreds due under the health care and financial reform legislation, and may include many, many more feared under pending 

cap-and-tax legislation and other expansions of the Federal Government’s power. 

Rules that increase cost kill jobs Americans now hold. Rules that 

will increase costs still more in the future kill the creation of new 

jobs. How can businesses make the investments that they will create new jobs if they cannot tell whether a host of new regulations 

will turn potential profits into certain losses? 

The equation is simple. When Washington reduces regulatory 

overreach and regulatory uncertainty jobs will return. 

One part of the White House that unquestionably should listen 

is the Office of Information and Regulatory Affairs. This White 

House office assures that Federal agencies do not regulate when 

they do not need to, regulate only in ways that are cost beneficial, 

adopt only the most cost effective regulations, do not compound existing problems with unsound regulation, and regulate with consistency across the executive branch. 

Yet, according to reports the Office of Information and Regulatory Affairs is missing in action. The number of rules that cross 

the office’s desk is substantially on the rise, yet the amount time 

the office takes to consider them is considerably on the decline, and 

the number of rules the office returns to agencies for improvement 

is minimal to nonexistent. There is no excuse for this as the burden 

and uncertainty of regulation contributes to a regrettable jobless 

economy. 

Mr. Chairman, I will yield back. 

Mr. COHEN. I appreciate your statement, if not—and I would like to—could I ask you one question, sir? Did you say there was $1 billion in the stimulus that is getting out of the private sector? Is that 

what I—— 

Mr. SMITH. I said, ‘‘close to,’’ that is correct. 

Mr. COHEN. Okay. I think it was $787 billion, and I think 35 percent of it was tax cuts—— 

Mr. SMITH. I think we were rounding to the nearest $1 trillion 

on that. You are right. [Laughter.] 

And that is not including the interest. Thank you—— 

Mr. COHEN. And just under 40 percent of it was tax cuts, so that 

went back to the private sector, which leaves—40 percent of $787 

billion would leave about $400-and-something billion, which, rounded off to the nearest $1 trillion, would be zero. So we are working 

on the deficit. The stimulus bill was really no cost. 

Mr. SMITH. More harm than good. You are right, Mr. Chairman. 

Mr. COHEN. Thank you, sir. 

6 

And I now would like to recognize—all other statements can be 

entered for the record. 

We have got a system here that most of you know about that is 

a lighting system, and when I start this and it is green it means 

you have got 5 minutes; when it gets to yellow it means you are 

in your last minute; and then when it gets to red it means you 

should be finished—or in your case, Mr. Sunstein, we will give you 

a few extra seconds, but you should be rounding it off. 

We will have 5 minutes to ask you questions, and subject to the 

same 5-minute rule. And then when we finish we can submit other 

questions to ask you to respond to later. You will never be finished 

with answering questions; it is part of this Committee’s—— 

Our first witness is Mr. Cass R. Sunstein. Before becoming the 

administrator for OIRA Mr. Sunstein was the Felix Frankfurter 

Professor of Law at Harvard Law School. 

He clerked for Justice Thurgood Marshall of the United States 

Supreme Court, and he did not make it into the play but I am sure 

that was an omission. And he worked as an attorney advisor in the 

Office of Legal Counsel of the U.S. Department of Justice. He was 

a faculty member of the University of Chicago Law School from 

1981 to 2008 at the period of time in which the Chicago White Sox 

were victorious. 

Mr. Sunstein has testified before congressional Committees on 

many subjects and he has been involved as an advisor in constitution-making and law reform activities in a number of nations. A 

specialist in administrative law, regulatory policy, and behavioral 

economics, Mr. Sunstein is the author of many articles and a number of books. 

Thank you, Mr. Sunstein. We will now begin your testimony. 

TESTIMONY OF CASS R. SUNSTEIN, ADMINISTRATOR OF THE 

OFFICE OF INFORMATION AND REGULATORY AFFAIRS 

(OIRA), EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF 

MANAGEMENT AND BUDGET 

Mr. SUNSTEIN. I am most grateful to have the opportunity today 

to discuss some of our work at the Office of Information and Regulatory Affairs. 

As you are aware, OIRA is charged with a number of functions, 

including coordination of statistical policy, information policy, and 

regulatory review. One of OIRA’s most important roles is to ensure 

compliance with the Paperwork Reduction Act (PRA). Reducing paperwork burdens on the American public and taking advantage of 

current technological possibilities—note, what just happened—have 

been high priorities for us. In the last months we have taken numerous steps to promote these goals associated with the Paperwork 

Reduction Act. 

In April we issued a data call to agencies calling for new burden 

reduction initiatives, and let me underline those words—burden reduction initiatives. We asked agencies to develop new steps to 

standardize inconsistent processes and requirements, to eliminate 

duplicative reporting requirements, to eliminate unnecessary complexity, to improve coordination among multiple offices with particular emphasis, by the way, on small business. We also asked 

7 

agencies for initiatives that take advantage of electronic filing, increase simplification, and, simply put, reduce burdens. 

Regulatory review of significant rules, as the opening comments 

suggest, may well be the most visible of our functions, and let me 

spend the rest of my time in these brief remarks on that topic. As 

I see it, such review—review of regulations—has three key functions. First, it helps to ensure that regulations are consistent with 

the law, our lodestar, and with the principles and priorities of the 

President of the United States. 

Second, regulatory review promotes coordination among different 

parts of the executive branch. Some statutes require a consultation 

among multiple agencies during the development of regulations, 

and even in cases where statutes don’t require such consultation, 

the positions of one agency are frequently usefully illuminated by 

the views of other agencies that have relevant experience and expertise. 

Third, in a function that picks up on some of your opening remarks, regulatory review helps to improve the analysis that lies behind rules, and thus helps to improve rules. This includes careful 

attention to both costs and benefits. OIRA oversees a process of 

interagency review that promotes compliance with these requirements so that agencies look before they leap. 

Since I was confirmed in September OIRA, has devoted attention 

to three topics—special attention to these three. First, promoting 

open government and transparency, including attention to the 

views of affected stakeholders; second, improving regulatory analysis so the rules have a solid foundation; third, improving disclosure policies and increasing simplification for the American people. 

We have worked very closely in the domain of open government 

with others in the executive office of the President and with agencies—multiple agencies—to ensure disclosure of data sets that have 

never been public before. They can be found—thousands of them— 

on data.gov. We have also worked together with more than two 

dozen agencies to produce open government plans. We believe that 

the result of this process—this process that has no predecessors— 

has been a dramatic increase in openness and transparency both 

for the American people and for American businesses. 

For over 3 decades, through five Administrations starting, as 

noted, with President Reagan, regulatory impact analysis, including discussion of costs and benefits, has played an important role 

in the assessment and design of significant rules. As the President 

said on May 2, ‘‘Sometimes regulation fails, and sometimes its benefits do not justify its costs.’’ 

In 2009, in our report to Congress, we linked the interests in regulatory analysis and attention to costs and benefits with our interest in open government. We said that openness about costs and 

benefits helps to reduce the risk of insufficiently justified regulation, imposing serious burdens and costs for inadequate reason. We 

believe that regulatory analysis should be developed and designed 

in a way that fits with the commitment to open government. 

We have taken our own advice seriously, recently creating a regulatory dashboard which offers a clear and novel, vivid picture of 

Federal rulemakings under OIRA review. With a very quick glance 

any American can get a picture of what is under formal review 

8 

from a large number. Over two dozen agencies—and have a sense 

of what is coming, thus promoting the goal of predictability and 

participation. People have notice of what is coming and participate 

in its improvement. 

This new dashboard is just the beginning, but we hope that it is 

a step toward greater transparency in a way that unifies our interest in open government with our interests in smart, effective regulation. 

I look forward to answering your questions. 

[The prepared statement of Mr. Sunstein follows:] 

9 

PREPARED STATEMENT OF THE HONORABLE CASS R. SUNSTEIN


CRS-1.eps
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CRS-2.eps
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CRS-3.eps
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Mr. COHEN. Thank you, Mr. Sunstein, and I will start the questioning. 

My first question, I guess: Who was your predecessor in the previous Administration? 

Mr. SUNSTEIN. Susan Dudley is my immediate predecessor, and 

before that John Graham. 


CRS-5.eps
14 

Mr. COHEN. And they both were during the Bush administration? 

Mr. SUNSTEIN. That is correct. 

Mr. COHEN. What changes have you—have taken place in the office since the change of Administrations? 

Mr. SUNSTEIN. If you look at our Web site you will see we have 

done several things. As noted, under the Paperwork Reduction Act 

we have issued a data call to try to have burden reduction initiatives, which don’t look like—I hope they are consistent with the 

previous interest in burden minimization, but they don’t look like 

anything that has been seen before. 

We have also taken steps to bring the Paperwork Reduction Act 

into the 21st century, both by making it clear and predictable—by 

the way, both for agencies and for businesses. There has never 

been a clear statement of what the Paperwork Reduction Act requires and doesn’t require. That is right up there. 

We have also had new efforts to introduce clarity with respect to 

the relationship between the Paperwork Reduction Act and modern 

technology. So we have guidance to that effect. Of course, the office 

has operated within the broad framework set by the President of 

the United States and our approach to regulation is consistent with 

his, and in that sense you will see some differences. 

But you will see something that I think will be noteworthy to 

those who were concerned about overregulation, which is that in 

our first year we have actually a better record, in terms of net benefits, than the first year of either the Clinton administration or the 

Bush administration. They were in the red with respect to net benefit—a few hundred million dollars in the red; we are in the black. 

We are $3.1 billion positive in 2009. 

Mr. COHEN. And why you say net benefits are you—what are you 

exactly referring to? 

Mr. SUNSTEIN. We take account, as some of the opening remarks 

emphasized, of the costs—the social costs of regulation. So if businesses are facing new costs as a result of our regulations that is 

something we calculate, we publicize, we try to find ways of working with agencies to reduce those costs, to make sure they are 

smaller, and then the social costs are calculated as costs. 

Then there might be social benefits. Deregulation, for example, 

can remove burdens. If you save people’s lives or if you improve 

people’s health that produces benefits. There are real challenges 

with monetization, but we try to include everything that we can. 

Mr. COHEN. Who came up with those figures? 

Mr. SUNSTEIN. In the first instance they come—the cost and benefit figures—from agencies themselves, and then the analysis, like 

the rules, are subject to an interagency process of review. So the 

Council of Economic Advisors in the Obama administration—I believe this is true in his predecessors too—plays a significant role 

in making sure that the cost-benefit figures are accurate. The National Economic Council and other agencies participate. 

There is also a great deal of public participation in this calculation, so if it turns out that affected stakeholders or just interested 

citizens think we don’t have the numbers right, we are listening 

and they will get better. 

Mr. COHEN. You mentioned that there are obvious changes with 

the previous Administration and yours, and I think what you were 

15 

saying is in substance in how you look at the different policies and 

whatever, but how about procedure? Have there been any changes 

in—since this Administration came in and the procedures of OIRA? 

Mr. SUNSTEIN. The major one is external—our dealings with disclosure to the public of what we are all about, and that is the dashboard. So we have now—anyone can see it—a snapshot of what is 

before OIRA and people can see everything at a glance. 

We have also issued, in the domain of transparency, two bits of 

guidance which you have to be a bit of a geek, I think, to be as 

excited about as I am, but I think they are kind of exciting. One 

is, there is—it requires a regulatory identifier number on regulations throughout the process so that people who are interested in 

a regulation that will affect them, or that matters to them can see 

it at every stage and not get lost in the bureaucratic process. So 

we are required that regulatory identifier number to be on all regs 

at every stage. That is a significant step forward in terms of transparency. 

We have also required everything to be up on regulations.gov 

that can feasibly be up there, so that if businesses are concerned 

or if environmentalists are concerned about the information on 

which the agency is relying they get a chance to see it and comment on it. So we are trying to bring, really, the Federal rulemaking process step-by-step into the 21st century with these two, 

as I say, in my view, significant guidance documents, and there 

hasn’t been anything like them before. 

Mr. COHEN. I think I mentioned in my opening remarks that the 

President called for a review and possible revision of Executive 

Order 12866. There were comments filed but no executive order 

has been issued to date. What is the status of that effort and does 

the Administration plan to revise or offer new guidance on that 

particular—— 

Mr. SUNSTEIN. Thank you, Mr. Chairman. You referred to the 

fact that we received 183 public comments, and we got a great 

number of helpful suggestions about what to do. 

I would put the bulk of the suggestions in the following categories: first, scientific integrity—the centrality of objectivity with 

respect to scientific findings should be a given in the regulatory 

process; second, transparency and openness—there was a widespread plea for more clarity with respect to the rulemaking process, 

and as just noted, we have done a few things; third, there was 

widespread approval—not universal, but widespread approval of 

the time-honored function of OIRA in assessing costs and benefits 

and bringing what is learned to bear on regulatory judgments; 

fourth, there was not universal but widespread approval of OIRA 

coordination of a process of interagency review—as noted, we get 

lots of comments by other agencies on what an agency proposes to 

do. 

We have taken every one of those four themes really seriously, 

so scientific integrity has been something to which we have been 

greatly committed in the last months. That is bedrock. We have 

been taking transparency much further than ever before with the 

open government directive, which actually was issued by the Office 

of Management and Budget, and OIRA has played a role in implementing that directive. We have taken cost-benefit analysis very 

16 

seriously, as a number of commenters emphasized that we ought 

to. 

With respect to the executive order itself, we are operating under 

the one that President Clinton and President Bush operated under, 

and it is up to the President of the United States to decide whether 

to amend it. 

Mr. COHEN. Well, thank you. My time is expired and your questions have been so complete and your statements so complete that 

I suspect there will be no questions from the other side; therefore, 

I recognize Mr. Franks, the—— [Laughter.] 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

And, Mr. Sunstein, I know that you probably were not in the 

middle of the regulatory bills that just passed the Congress, and 

so I will try to avoid that. But I do want to say that I think that 

is like a train coming and business sees it and they are trying to 

get the heck off the tracks fast. And I think that bodes a pretty 

grave situation for 2011 for a lot of business interests. 

It is, I know, a basic crucible of contention between the two parties as to the impact of regulation and the cost—having a reciprocal 

impact on the actual hiring of people, but it is mathematical reality 

that cannot be avoided without repealing the laws of mathematics. 

So, Mr. Sunstein, my question first to you, sir: Are you doing everything in your power to minimize the adversity of the Obama administration’s agency rules on jobs and job creation? 

Mr. SUNSTEIN. The way I would put it, Congressman, is that I 

spend every day trying to make sure that regulations are first, lawful; second, consistent with the commitments of the President; and 

third, justified by reference to costs and benefits. So we do everything we can to try to make sure that the benefits are strong 

enough to justify the costs and to try to reduce the costs if we can 

consistently with the requirements to which I referred. 

Mr. FRANKS. I guess the hard—and I ask you to grant me diplomatic immunity here—the hard and corresponding question is, how 

many Obama administration agency rules submitted to your office, 

OIRA—I always say that wrong, OIRA—have you personally rejected because they did not rest on adequate analysis of their impacts on jobs and job creation? 

Mr. SUNSTEIN. Well, the way I would put it is when the process—— 

Mr. FRANKS. Well, I am trying to—forgive me—I am trying to 

stay out of the metaphysical 12th dimension here. I am just asking 

you how many have you rejected personally? 

Mr. SUNSTEIN. Personal rejections are rare, and—— 

Mr. FRANKS. All right. Let me shift it. How many Obama administration rules have you or your staff recommended to be rejected 

because they didn’t rest on adequate analysis of their impacts on 

jobs and job creation? 

Mr. SUNSTEIN. Forgive me and tell me if this is a satisfactory answer: We have worked repeatedly with agencies to make sure that 

regulations are drawn up so that they are compatible with the concerns to which you—— 

Mr. FRANKS. But have you rejected any of them, even one? 

Mr. SUNSTEIN. Well, the word rejected doesn’t really fit with how 

OIRA—— 

17 

Mr. FRANKS. Well, it does if you are subject to the regulation. I 

mean, the regulation is either enforced or it isn’t, so, I mean, it has 

a big impact ultimately. 

Mr. SUNSTEIN. I take the point. A regulation can take multiple 

different forms, and the point of the OIRA process standardly is to 

ensure that it takes the right form. 

Mr. FRANKS. All right. Let me see if I can rephrase it. How many 

of the Obama administration rules have you or your staff personally rejected because they in fact adversely impact jobs and job creation? In other words, make it really clear here. I mean, is there 

one that you found that you have rejected because it had an adverse impact on jobs and job creation? 

Mr. SUNSTEIN. What I can say is that—I wouldn’t want to get 

into a deliberative process, but what I can say—— 

Mr. FRANKS. Well, that is the problem. We are not very deliberative in government. I mean, I don’t meant to be hard on you here, 

but—and it is okay because I wouldn’t want to be in your position. 

I would probably be pretty inadequate in that situation. 

But have you rejected even one Administration rule because it 

had an adverse effect on jobs and job creation? That is a yes or no. 

Mr. SUNSTEIN. We have worked with agencies to make sure that 

rules are designed in such a way as to be compatible, consistent 

with law—— 

Mr. FRANKS. But is that bureaucratic-speak for ‘‘no’’? 

Mr. SUNSTEIN. I hope not. If you look at our Web site you will 

see, Congressman, that there—most rules do not go out the way 

they came in. They are approved consistent with change. 

And I wouldn’t want to attribute to OIRA the change because 

often it comes from the agency itself, which will decide in the process that we can do it in a less burdensome way, or the Council of 

Economic Advisors, or some other sibling agency. So if you are asking how many rules are improved with a view toward economic 

concerns as a result of the deliberative process, it is not zero. 

Mr. FRANKS. Well, I won’t put you on the spot to ask how many 

have been improved. 

But, you know, Mr. Chairman, I have just got to say—and again, 

in all deference to Mr. Sunstein—whatever the class, when 100 

percent of them pass or get an A-plus rating you might want to 

start questioning the test. And, you know, in Europe they had some 

recent regulatory reform where they tried to subject the banks to 

sort of a stress test to see if they could survive, and ironically, they 

put this new protocol in place and nearly all of them were fine. And 

so they began to question the test because we know that that is 

not the case. 

And I guess I just—again, I put it in my words and encourage 

you to edit them if they are—if I am saying something that is not 

true. What I am hearing is that there is not one of the Obama administration or regulatory rules that have been put in place that 

your office thought had enough negative impact on jobs and job creation that it was worth rejecting. And that is putting a lot of faith 

in an Administration that has—forgive me—shown an arrogance to 

competency ratio that is catastrophically out of balance. 

And I would, you know, as someone that has been in business 

I have just got to tell you, when regulations and additional costs 

18 

come to us it has an impact on who we can hire. And in economy 

sometimes we get to thinking it is all just numbers, but ultimately 

it is about people producing goods and services and that is translated ‘‘jobs.’’ 

And I just feel like we are headed in a terrible direction here 

with jobs, and I—talking to the regulatory agency, and there is not 

one regulation that you can say that you have rejected because of 

a negative impact on jobs. And I find that sort of astonishing. 

Mr. SUNSTEIN. Is it helpful to say that a number of regulations 

have been changed in a way that is attentive to economic concerns 

and burdens as a result of a process that OIRA oversees? 

Mr. FRANKS. Well, I think I am going to have to accept that as 

the best that can be offered. And again, with great respect for 

you—due respect for you—I have just got to believe that there 

would have been one, from this Administration especially, that 

would have been worth rejecting. 

And with that, Mr. Chairman, I am going to yield back. 

Mr. COHEN. Thank you, sir. 

And the next questioner was high in the middle and round on 

the ends, Mr. Jordan of Ohio? 

Mr. JORDAN. From Ohio, that is right. Thank you, Mr. Chairman. 

Mr. Sunstein, let me pick up where the Ranking Member left off. 

In your testimony you talk about 900 significant rules that your 

agency has reviewed since taking—since the Obama administration 

took office. 

And let me just be clear on how the process—at least the way 

I understand the process works. Congress passes a law, President 

signs the bill, the agency who has got jurisdiction over the bill— 

let’s take the health care bill, so HHS has jurisdiction, they put together a set of rules, those rules then come to you. What is the authority or power that you have? 

Can you say, as the Ranking Member was alluding to in his 

questions, can you say no? Can you just flat out reject them or do 

you not even have that power? 

Mr. SUNSTEIN. There is authority to issue return letters subject 

ultimately to the President—— 

Mr. JORDAN. That is a yes. You can flat out say, ‘‘This rule does 

not comply with the intent of Congress, the will of the President 

when he signed the law, and we think that rule is not consistent 

at all.’’ So you can do that? 

Mr. SUNSTEIN. That is correct. 

Mr. JORDAN. Of the 900 rules that you have reviewed since January of 2009, taking office, how many times have you done just what 

you described you are allowed to do? 

Mr. SUNSTEIN. Well, I haven’t issued return letters, but if—— 

Mr. JORDAN. So then the answer is—just to be clear with where 

the Ranking Member was—the answer is clearly zero. Nine-hundred rules, zero times—no time have you done a letter saying that 

rule does not comply with the intent of Congress and the will of 

the President, so zero times you have done that? 

Mr. SUNSTEIN. Well, there are two different questions. One question is how many times have I issued a public return letter—— 

19 

Mr. JORDAN. But just to be clear, that is what you said when I 

said, ‘‘Do you have the power to reject?’’ you said, ‘‘Yes, we can do 

this type of letter.’’ 

Mr. SUNSTEIN. Yes. 

Mr. JORDAN. And then the follow-up question was, ‘‘Have you 

done that type of letter?’’ and your answer was, ‘‘No.’’ So the obvious conclusion is zero times—no time have you said the rule does 

not—have you disallowed a rule—— 

Mr. SUNSTEIN. The last statement is not false, but if I may I can 

clarify a little bit. There are rules that come over that are changed 

significantly as a result of exactly the concerns to which you are 

pointing, and I wouldn’t want to give OIRA the credit or the 

blame—— 

Mr. JORDAN. So then how does it work? Do you say, ‘‘Hey, this 

does not comply with what Congress intended, this does not comply 

with the will of the President, so let’s—instead of me doing this 

let’s just work on’’—is there an official thing you do or do you just 

kind of—is it all bureaucratic talking back and forth? How does it 

work? 

Mr. SUNSTEIN. I think it is very much like the way—I defer to 

you about how your office works, but my good guess is it is very 

similar to how your office works, where there will be ideas that are 

floated to you and that you might say, ‘‘No, forget about it,’’ but if 

you trust your staff you are more likely to say, ‘‘Well, maybe we 

can do it this way; maybe this way is better,’’ and then something 

will emerge from that process of discussion which will produce 

something you are comfortable with. 

Mr. JORDAN. Does the public know—you talked about this identifier number, you talked about transparency, and that is all, I 

mean, good; we are glad that is part of the process. Does the public 

know which route you are taking or do they know, like, ‘‘Look, we 

don’t like this. We are asking them to change,’’ short of doing the 

letter of rejection that you are capable of doing? 

Mr. SUNSTEIN. There are a couple of great things I can tell you 

about that are responsive to that. One is, what really matters within a rule—with a rule—is not how it is proposed but how it comes 

out, and you will see a number of rules that have already been finalized in the Obama administration that come out, as a result of 

concerns about economic considerations, very differently from how 

they were proposed, and that is completely publicly available. 

So there are ones just in the last weeks, where the proposals 

looked very different from the final. And that is a wonderful opportunity for Members of Congress, affected stakeholders, small business. 

With respect to OIRA’s own process, the public can find—we 

make available—the difference between how the rule comes in and 

how it came out. So you can see that. 

Mr. JORDAN. Okay. That is at least somewhat positive I think. 

Let me change gears a little bit. One of the things I have heard 

from business owners across the fourth district of Ohio—and frankly, business owners in general; the business roundtable a few 

weeks ago made some statements about some of the things they see 

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tainty that business owners see with what may happen next from 

Congress. 

Are, in fact, there going to be the tax—are the Bush tax cuts, 

real 103 tax cuts, going to expire? Is, in fact, this health care bill, 

how it is implemented, what is going to—the uncertainty that is 

out there—many businesses—this is not Jim Jordan, conservative 

guy from Ohio making this, this is people talking to me saying, 

‘‘Look, I am nervous about what may happen next, how all this is 

going to get implemented, the rules that will come down.’’ 

That uncertainty is having, I believe, a direct impact on people’s 

willingness to take risks in our economy, willingness to hire individuals in our economy, willingness to call people back to work who 

they have had to let go during this tough economic time. So talk 

to me about if you think that is a valid concern, because I am certainly hearing it, and your thoughts on how that impacts your 

agency. 

Mr. SUNSTEIN. Yes. Well, I do, I think business uncertainty is 

definitely not desirable, and in fact, Executive Order 12866 refers 

explicitly—that is the one under which we operate—to the need to 

minimize uncertainty. 

I will tell you some of the things we are doing to try to avoid 

that. We are relying very heavily on the notice-and-comment process to make sure that members of the public, emphatically including the business community, get a chance to see what is being proposed, including the economic analysis, and get a chance to weigh 

in and change it. So one thing that has been a very high priority 

since I have been confirmed is to tee-up, as we say, the various options, the analysis, the possibilities, and to have public discussion 

so nobody is going to be surprised. 

Another thing we are really trying to do is to get in very plain 

language in executive summaries, in tables, a statement of exactly 

what is going to be expected of people under the proposal and exactly what we think the burdens are going to be so they can see 

that—— 

Mr. JORDAN. Yes. 

Mr. SUNSTEIN [continuing]. And correct it. We are also trying to 

get alternatives proposed so that if—and agencies have been very 

enthusiastic about this—so if one is going to create uncertainty, impose big burdens, sometimes we will go the other way and we have 

done that. 

Mr. JORDAN. Mr. Chair, if I can—chairman will indulge for one 

further question, or—are we doing a round two? 

Mr. COHEN. Just as long as you induce Ohio work and being 

upset with your rival Wisconsin and badger the witness. [Laughter.] 

Mr. JORDAN. Well, let me just ask this: Obviously you have taken 

a strategy of not outright rejecting rules. Nine-hundred times it 

has come to you and you have not once said, ‘‘We reject a rule.’’ 

You have taken a different approach to arrive at what you believe 

would be the best process and the best outcome. 

But is there something to be said for maybe sending a message 

to the agencies, ‘‘No. We flat out reject what you have sent us. 

There is a new sheriff in town.’’ All the uncertainty that you just 

described that is out there that I have heard from constituents— 

21 

do you think there is ever—maybe the other approach might be 

better where you say, ‘‘Look, this just ain’t going to fly and we are 

telling you outright no right from the get-go; now go back and do 

it right,’’ and you send that message to the bureaucracy—to the entire Federal bureaucracy? 

Mr. SUNSTEIN. Well, it is a good question. The pattern that we 

have set, which is working with the agencies to try to get it right, 

emphatically with reference to cost and burden—that is a central 

concern of ours—that was the pattern basically in the Bush administration and the Clinton administration and the Reagan administration as well. That is the way OIRA normally operates, is 

through, you know, informal improvement rather than public, ‘‘No.’’ 

You are correct that previous Administrations have found it occasionally useful to do that, and that was their judgment. 

Mr. JORDAN. Thank you, Mr. Chairman. 

Mr. COHEN. Thank you, Mr. Sunstein. That concludes the questioning and we appreciate your testimony. And if other Members 

have questions they will submit them to you in writing and we ask 

that you reply with those in writing in the soonest possible time— 

they have 5 minutes to do so. 

Thank you. We will now empanel the second group. 

I am now pleased to introduce the second witness panel to hear 

the testimony for today’s hearing. Our first witness is Ms. Sally 

Katzen. Ms. Katzen serves as the Podesta Group’s executive managing director, a difficult task managing Mr. Podesta. She has testified before Congress 66 times on a broad range of Federal Government activity and has served on panels for the National Academy of Science. 

Her career in the Federal Government includes 8 years in the 

Clinton administration as deputy director for management at the 

Office of Management and Budget, as Deputy Assistant to the 

President for Economic Policy and Director of the National Economic Council, and as Administrator of OIRA. Ms. Katzen was the 

first female partner at Wilmer Cutler & Pickering and is a well respected professor, having taught at George Washington, Michigan, 

George Mason, Pennsylvania, and Georgetown law schools in addition to Smith College, Johns Hopkins, and the Michigan in Washington program. 

Welcome back, Ms. Katzen, and will you please proceed with 

your testimony? 

TESTIMONY OF SALLY KATZEN, SENIOR ADVISOR, PODESTA 

GROUP, AND FORMER ADMINISTRATOR OF THE OFFICE OF 

INFORMATION AND REGULATORY AFFAIRS (OIRA) 

Ms. KATZEN. Thank you very much, Mr. Chairman, Ranking 

Member Franks, Mr. Jordan. I appreciate very much the invitation 

to testify today. This Committee has been terrific in promoting the 

integrity of the Federal regulatory process and I thank you for having this hearing to consider how the Obama administration has 

done in this regard in its first year-and-a-half. 

Now, in my written testimony I begin with the regulatory agencies rather than OIRA because it is the agencies to which Congress 

has delegated the rulemaking authority. And to evaluate how those 

22 

agencies are doing I think it is necessary to have a baseline. So 

where were they in January 2009? 

Well, in addition to having been OIRA Administrator for 5 years 

during the Clinton administration, I was privileged to serve in the 

Obama-Biden transition with responsibility for the executive office 

of the President and all regulatory issues. What I saw during the 

transition was not a pretty picture. 

During the preceding 8 years, the regulatory agencies were required to do more research, more analysis, more consultation, more 

review with fewer resources, fewer—less support. In many regulatory agencies the staff was depleted; in virtually all it was demoralized. It was, overall, a dismal state of affairs. 

Now, the Obama administration took office with a renewed dedication to the regulatory agencies’ missions and a deep respect for 

agency folks who do the work, but with very few new resources because of the economic situation—there was not money to make up 

for the shortfall—and with very few new leaders—the nominationconfirmation process is interminable. Even today, the regulatory 

agencies do not have confirmed appointees in all of their leadership 

positions. 

Now, that said, I think the regulatory agencies have done quite 

well, and in—excuse me—in my written testimony I discuss how 

they dealt with the midnight regs, and at the same time began to 

move forward. 

What about OIRA, which has been charged by both the Republican and Democratic administrations over the last 3 decades to review the regulatory activities? In my written testimony I provide 

a lot of information about the executive orders that govern and I 

look forward to any questions you may have on that. I want to use 

this time to make basically four points about the present and the 

future. 

First, centralized review by OIRA now extends to executive 

branch agencies. I believe it should be extended to the independent 

regulatory commissions as well—those multiheaded agencies like 

the SEC, FCC, FTC, whose members do not serve at the pleasure 

of the President and can only be removed for cause. 

They are not subject to review under the executive orders, either 

the Reagan or the Clinton executive order, and that was not because of a conclusion that they are—I am now a triple negative. 

The draftsmen were told by the legal advisors that there was legal 

authority to extend the review of the IRCs, but the decision not to 

was made for political reasons. 

I would rethink that with the benefit of hindsight, because if you 

think about the problems that plague this Nation, they do not fit 

neatly into one agency. Consider the recent financial meltdown, 

which implicated both executive branch agencies like the Treasury 

and independent agencies like the SEC and even, shall I say, the 

Fed. What have we done? We combined two executive branch agencies—the SEC and—and at the same time we created a new agency 

as a bureau in an independent regulatory commission, the Fed. 

Because they go about rulemaking in the same way there should 

not be a problem with review, but because of the way they are 

structured, situated with respect to the President, the review—the 

type of review—might be different. Congress thought about this 

23 

under the Paperwork Reduction Act and had a really keen 

scheme—elegant, quite elegant scheme—and in my written testimony I go through that. 

The second point is the orientation of OIRA. All discussion in the 

preceding panel had to do with review of individual regs. It is a 

transaction-oriented process. I think that is important—indeed, essential—and would disagree with some of my colleagues who would 

like to see that diminished. 

But it shouldn’t be solely transaction-oriented. I think there 

should be an opportunity for review of areas to create a construct— 

if you will, a framework—for the review of the regulations in a particular area ensuring a comprehensive and coherent regulatory solution rather than a one-off, and what do we think about this one? 

There is a provision in the executive order—section four—which 

goes to planning. That is the basis for this, and I would encourage 

that to be pursued. 

The third point I want to make has to do with the meetings that 

OIRA has with respect to outsiders, and there is a provision in the 

executive order that sets up a process which was the practice during the Clinton administration, and in the Bush administration 

they started to make changes which have continued and accelerated, and I think Mr. Bass might be able to expand on that. 

Finally, I just want to mention e-rulemaking. I was very honored 

to chair a blue ribbon commission under the auspices of the American Bar Association. We talk a lot about data decision—data-driven decision-making, the value of public participation, the potential 

for harnessing technology to produce a more efficient and effective 

government. 

I mean, the single most obvious manifestation of the congruence 

of these in the Federal regulatory process is e-rulemaking. I would 

urge this Committee to consider having a hearing specifically on 

that subject because it seems to me it is an opportunity not only 

to improve the regulatory process but also congressional oversight 

and the implementation of the Congressional Review Act. 

I thank you very much for your kind attention to my comments 

and look forward to answering any questions. 

[The prepared statement of Ms. Katzen follows:] 

24 

PREPARED STATEMENT OF SALLY KATZEN


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Mr. COHEN. Thank you, Ms. Katzen. 

And our next witness will be Dr. Bass, and Dr. Gary Bass is the 

founder and executive director of OMB Watch, a nonprofit research 

and advocacy organization that promotes greater government accountability and transparency and increased citizen participation 

in public policy decisions. Prior to founding OMB Watch—not to be 

confused with Timex—Dr. Bass was president of Human Services 

Information Center, where he wrote two books and numerous articles on human service issues. 

He also serves as director of liaison for the International Year of 

Disabled Persons, worked as a consultant on several projects in 

special education and the mental health of children and youth, and 

served as a special assistant to Wilbur Cohen, then chair of Michigan’s Governor’s Task Force on the Investigation and Prevention of 

Abuse at Residential Institutions. 

Thank you, Dr. Bass. 

TESTIMONY OF GARY D. BASS, Ph.D., 

EXECUTIVE DIRECTOR, OMB WATCH 

Mr. BASS. Thank you, Mr. Chairman and other Members. 

Much of the conversation today has focused on one type of stakeholder, which is the business community. I would like to talk about 

it from the perspective of people who benefit from the regulations 

and give a little bit of a backdrop. 

We have gone through nearly almost a decade—8 years—of really a weakening of our regulatory apparatus within government. 

People who came in to oversee the regulatory agencies had often 

come from agencies—from companies—and now were regulating 

those same industries or companies creating sort of a foxes in the 

henhouse kind of model. 

Those regulations that did make it out were weaker and benefited mostly the regulated industries. Those regulations that were 

in place, the enforcement was greatly reduced and made minimal. 

It was almost a wink and a nod. 

When the Obama administration took over they had to largely 

address this kind of weakening of the regulatory agencies. They 

have put in place excellent people—very qualified, very skilled. 

They have begun building the regulatory apparatus, and they have 

begun thinking about how to strengthen enforcement. 

I raise this because it is in this context of a weakening regulatory environment that the country and the people in this country 

have faced situations where workers and the public have died, 

where people have been displaced in terms of their economic and 

livelihood—general social livelihood—and I am referring to a whole 

series of major crises that have been occurring, whether it is the 

collapse of mines with the Massey Energy situation in West Virginia, whether it is the problem of Toyota recalls, whether it is the 

issue of the disaster of the BP Deepwater Horizon. Or you could 

look around to daily newspapers and see both food and consumer 

products daily having many problems. 

It is in this context that we now see, if you will, a further agenda 

from the business community to deregulate—and, I should say, in 

the context of jobs, as we have been talking about today. It is rather surprising that the business roundtable put out, if I will, a hit 

37 

list of more than 200 rules in the last 2 weeks that should be deregulated covering virtually every aspect of our lives, whether it is 

environment, whether it is worker protections, whether it be financial reform—all of these were in the list. U.S. Chamber of Commerce followed that and made the threat of moving jobs offshore 

if the Administration did not deregulate. 

On top of that, minority leader John Boehner came out and endorsed a 1-year moratorium on most new regulations. All of this is 

in the context where people’s lives are at stake. 

What we need is just the reverse. We need a strong Congress 

and we need a strong Administration to put in place the rulemaking apparatus that will protect the public. 

On top of it, this discussion about harm to jobs and job creation, 

I would like to see some data on that. We also have data that show 

otherwise. 

There is not a rule that has been in place in the past years 

where the business community didn’t scream bloody murder that 

it would hurt, and in the end there has been adaptive technologies 

and adaptive ways to live with those rules and make the economy 

go. I am just thinking of the Clinton years, for example, where the 

business community complained bitterly that the Clinton administration was the regulatory presidency and yet the economy just 

rolled along swimmingly. 

Okay, so in that context, moving back to OIRA, I have four suggestions. One is that what we need to do is—I would disagree with 

Ms. Katzen around the centralized review. Notwithstanding that, 

I do agree 100 percent with her comment about the transactional 

reviews. 

We need the OIRA administrator to focus on these big-picture 

problems; we need to connect the dots. We need to get this regulatory machine working in a way that is respectful of business and 

respectful of the beneficiaries of the regulations. By focusing on 

transactional reviews we will never get to that point of seriously 

looking at the regulatory problems in this country. 

The second thing I would recommend is, to the extent that these 

transactional reviews are occurring the administrator needs to be 

involved in meetings with public stakeholders. The history on this 

was to ensure that the civil service staff that work at OIRA are not 

the ones meeting with the public because of all the politics that are 

involved in that. 

Over the years, particularly starting in the Bush administration, 

that has shifted so that the administrator has not been meeting 

but the staff have been meeting. We need to shift that direction. 

What has happened today is many in the public interest community no longer even request meetings. 

The third point I would make—Administrator Sunstein talked a 

great deal about transparency, and he should be congratulated as 

well as the Administration should be congratulated for all they 

have done. I would encourage more. 

An example would be, to the extent that the kind of dialogue 

that was discussed between OIRA and the agencies occurs even before formal review happens the agencies should be disclosing that 

kind of communication. The dashboard that he was describing— 

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marks so the public can know how to assess whether or not the Administration is moving in the right direction. 

My final point is, congratulations to you, Congress, and to you, 

Mr. Chairman, for hosting this hearing today. I think much more 

needs to be done. The issues I have described, which are catastrophic—the public demands and wants protections and needs 

Congress to step in to think through the right way to make that 

happen, albeit with the balance of business interests and the public 

interest. 

So I thank you for hearing me out today. 

[The prepared statement of Mr. Bass follows:] 

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PREPARED STATEMENT OF GARY D. BASS


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Mr. COHEN. You are welcome, Dr. Bass. I appreciate your testimony. 

Our next witness will be Dr. Richard Williams, who was, I think, 

somewhat ill and is now in good health, and we appreciate and are 

thankful for that, at the time of our last hearing, which had to be 


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put off. Dr. Williams is the managing director of the regulatory 

studies program and government accountability project at the 

Mercatus Center. 

Prior to joining the Mercatus Center he served as director for social science at the Center for Food Safety and Applied Nutrition of 

the Food and Drug Administration for 27 years. Serves as advisor 

to the Harvard Center for Risk Analysis and taught economics at 

W&L. 

Dr. Williams is an expert in benefit-cost analysis, risk analysis, 

particularly associated with food safety and nutrition. He is published in Risk Analysis and the Journal of Policy Analysis and 

Management. He has addressed numerous international governments including United Kingdom, South Korea, Yugoslavia, and 

Australia. 

Thank you, Dr. Williams. 

TESTIMONY OF RICHARD A. WILLIAMS, Ph.D., MANAGING DIRECTOR, REGULATORY STUDIES PROGRAM AND GOVERNMENT ACCOUNTABILITY PROJECT, MERCATUS CENTER AT 

GEORGE MASON UNIVERSITY 

Mr. WILLIAMS. Thank you, and thank you for the invitation to 

testify before the Committee today. I am retired from the Federal 

Government, first in the U.S.—with the U.S. Army in Vietnam and 

then for 27 years in the Food and Drug Administration working in 

regulatory policy, in particular dealing with economics and risk 

analysis. 

I think the goal of everybody here today is to discuss how we can 

get the best possible regulations. My concern, however, is that we 

may be regulating in haste, and without sufficient oversight by 

OIRA the outcome will be to repent at leisure. 

According to the evidence the Administration has put forward 

there has been both a reduction in the number of economic analyses produced by the agencies and diminished oversight by OIRA. 

For example, compared to 2007, in which every single economically 

significant regulation had a regulatory impact analysis, in 2009 one 

in five had no analysis. 

Meanwhile, OIRA has reduced the amount of time they are 

spending on reviewing individual regulation, down about 35 percent in 2009 from the previous 2 years. And finally, as has been 

mentioned, after having reviewed 900 regulations since taking office they have decided that not one rule needs to be returned to the 

agency. 

The problem is that if agencies are failing to do the analyses or 

are doing a bad job of them we will have rules that fail to achieve 

their objectives. There are three reasons why we need strong oversight from OIRA. 

First, we want agencies to focus and make rules based on their 

area of expertise, and in fact they do. My focus at FDA since 1980 

was to try and understand the risk and economic issues associated 

with food safety and nutrition. But we didn’t, for example, consider 

how our rules would affect international competitiveness, job loss, 

or unintended consequences outside of our agency’s purview, and it 

could be argued that no one did. 

59 

Over time, however, as OIRA began to play a larger role in oversight, these concerns began to be addressed. They would push back 

on us to ensure that our decision-makers knew the opportunity 

costs of, for example, making food a little bit safer relative to other 

social investments, and also to make sure that we had a solution 

that actually worked. In fact, OIRA pushed us to promulgate one 

of the most cost-beneficial rules we had ever done, requiring that 

food manufacturers label trans-fatty acid. 

A second reason we need OIRA to provide oversight is that agencies can become captive to special interests, either the industries 

they regulate or activists with narrow agendas. By ensuring that 

agencies have carefully examined the benefits and costs of their actions OIRA can make sure that when these forces are at work our 

regulations are wise investments that benefit the entire American 

public, not just the special interests. 

Finally, my research and my own experience shows that too often 

agency decision-makers either ignore the findings of regulatory impact analyses or worse, direct the outcomes to support a premature 

decision. Returning a rule to an agency has an amazing ability to 

correct this type of behavior. 

Our research at Mercatus has shown that good regulatory analysis can improve regulations, but it has also shown that these analyses have uneven quality and do not rise to a standard of excellence specified by President Clinton’s economic executive order. In 

fact, one of the biggest problems we have uncovered so far is that 

even for economically significant regulations agencies are often unable to articulate a systemic problem that they are trying to solve. 

Too often, the agencies appear to be content just to recite anecdotes or offer legal authority. The problem is, if you don’t know 

what problem you are trying to solve it doesn’t give you much ability or confidence that you will actually solve anything. 

Mr. Sunstein’s vast scholarship supports better analysis producing better rules, as does the President’s call for a dispassionate 

and analytical second opinion on agency actions. We need those 

second opinions now more than ever at a time when American 

businesses are uncertain about whether or not to invest their capital in the United States because they fear a vast new slate of regulations. 

And part of that uncertainty may be that OIRA is not ensuring 

that new regulations are subject to critical economic analysis. A 

vigorous OIRA can reduce that uncertainty and ensure that we are 

producing effective rules that advance our national interests; however, they must be allowed to take the time necessary to do the job 

thoroughly and return rules that do not measure up. 

[The prepared statement of Mr. Williams follows:] 

60 

PREPARED STATEMENT OF RICHARD A. WILLIAMS


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Mr. COHEN. Thank you, Dr. Williams. Appreciate your testimony 

and your service to our Nation both in the military and at the Food 

and Drug. 

Next witness is Curtis Copeland. Dr. Copeland is a specialist in 

American national government at CRS. Dr. Copeland’s expertise is 


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appropriately relevant to today’s hearing on Federal rulemaking 

and regulatory policy. 

Previously to testifying before this Subcommittee he has held a 

variety of positions at the Government Accountability Office over a 

23-year period, received his Ph.D. from the University of North 

Texas, formerly known as North Texas State, the Flying Eagles, 

and the school that has a master’s degree in jazz band. 

Welcome back, Dr. Copeland, and you will proceed with your testimony. 

TESTIMONY OF CURTIS W. COPELAND, Ph.D., SPECIALIST IN 

AMERICAN NATIONAL GOVERNMENT, GOVERNMENT AND FINANCE DIVISION, CONGRESSIONAL RESEARCH SERVICE 

Mr. COPELAND. Thank you, Mr. Chairman, Mr. Franks. Thanks 

for inviting me here today to discuss Federal rulemaking. 

You asked me to present the results of a recent CRS report that 

I wrote on the implementation of the Congressional Review Act, 

which was enacted in 1996 to give Congress more control over 

agency rulemaking. The first sentence of the CRA requires agencies 

to submit all of their final rules with GAO and both houses of Congress before they can take effect. 

At its own initiative GAO has been checking the Federal register 

to determine whether agencies have, in fact, submitted all of their 

rules. As it turns out, they haven’t. 

Between 1999 and 2008 GAO sent at least five letters to OIRA 

identifying nearly 1,000 substantive rules that had not been submitted. GAO said OIRA didn’t respond to any of these letters and 

GAO and OIRA officials said that they were not aware of any efforts by OIRA to contact Federal agencies regarding these missing 

rules. Also, GAO did not send any of these letters to Congress or 

congressional Committees and did not notify the public about these 

unsubmitted rules. 

In May 2009 GAO sent another letter to OIRA listing 101 substantive rules published during fiscal year 2008 that had not been 

submitted. The Department of Agriculture had the largest number 

of rules on the list. The subjects covered by the rules varied widely 

and included a final list of chemicals of interest as part of the Department of Homeland Security’s antiterrorism standards and several rules designating endangered species’ habitats. 

When contacted by CRS OIRA initially said it had no record of 

having GAO’s May 2009 letter. Later, however, OIRA sent an email to the Federal agencies telling them to contact GAO to find 

out which rules were missing. 

Shortly thereafter the agencies began submitting their missing 

rules. However, as of this month 49 of the 101 missing rules from 

fiscal year 2008 still had not been submitted to GAO. 

In January 2010 GAO sent another letter to OIRA listing 31 

rules published during fiscal year 2009 that it had not received. 

GAO also sent letters to each of the agencies with missing rules. 

Again, the Department of Agriculture had the most missing rules. 

As of last week, however, all but three of the 31 missing rules had, 

in fact, been submitted to GAO. 

Although the CRA says rules can’t take effect until they are submitted to GAO and Congress it appears that Federal agencies are 

89 

implementing most, if not all, of these rules anyway. Section 805 

of the CRA says that no action or omission under the act can be 

the subject of judicial review, and the issue of whether a court can 

prevent enforcement of unsubmitted rules has not been resolved 

conclusively. 

The CRA says that a Member of Congress can introduce a resolution of disapproval as soon as a rule is submitted to Congress. 

Therefore, by not submitting their rules to Congress the agencies 

have arguably prevented Congress from using the expedited procedures in the CRA to disapprove their rules. 

Congress may conclude that agencies’ non-submission of their 

covered rules does not require congressional action. After all, the 

number of unsubmitted rules went down from 101 in fiscal year 

2008 to 31 in fiscal year 2009. 

Also, the agencies seem to be more responsive in submitting their 

rules after notification by GAO. However, if Congress wants to take 

action several options are available. 

Last June the House of Representatives passed H.R. 2247, the 

Congressional Review Act Improvement Act, which you sponsored, 

Mr. Chairman. The legislation would eliminate the requirement 

that rules be sent to Congress and instead would require submission only to GAO. 

This change would make it easier for agencies to submit their 

rules electronically, which they cannot currently do to the House 

and Senate, and therefore could improve the rate of rule submission. H.R. 2247 was referred to the Senate Committee on Homeland Security and Governmental Affairs on June 2009 but it has 

not been acted on since then. 

Congress could take other actions. For example, it could require 

GAO to continue identifying missing rules and could require OIRA 

to take certain actions to improve agencies’ compliance with the 

CRA. Also, GAO could be required to provide Congress with a copy 

of its CRA compliance letters, publish them in the Federal register, 

or publish a list of missing rules on GAO’s Web site. 

Mr. Chairman, that concludes my statement. I would be happy 

to answer any questions. 

[The prepared statement of Mr. Copeland follows:] 

90 

PREPARED STATEMENT OF CURTIS W. COPELAND


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Mr. COHEN. Thank you for your testimony and your service. You 

mentioned my bill, H.R. 2247, that went through, I think, on the 

suspension calendar but didn’t have—I don’t think—not heard. 

What is the Senate’s problem? 

Mr. COPELAND. I don’t know. I have not been in contact with 

folks in the Senate. 


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Mr. COHEN. Does anybody know what the Senate’s problem is, either in a universal way or in a specific way relating to this bill? 

Mr. FRANKS. Takes more than a hearing. [Laughter.] 

Mr. COHEN. Ms. Katzen, you suggested something about extending these rules to the independent agencies—the SEC and the Fed 

and et cetera. All this stuff generally has been done through executive orders. Has there ever been legislation proposed to do such? 

Ms. KATZEN. There has been legislation proposed both to codify 

the executive order and to other aspects of it. It could be done 

under the existing executive order. It could be done not directly, 

the way OIRA currently reviews executive branch agencies, where 

they say yea, nay, and it is done mostly through negotiations. 

But when Congress enacted the Paperwork Reduction Act, which 

applies to government forms for both executive branch agencies 

and the independent regulatory commissions, they said that while 

OIRA could review executive branch paperwork directly the decision with respect to paperwork was to be sent to the agency or the 

commission or the board, which could void any disapproval by a 

full meeting, presumably in public, under the Sunshine Act, and 

the reasons therefore. 

A similar type of review could be applied here, whereby OIRA 

would send to the SEC its written comments, they would be presented in an open meeting of the SEC, and the SEC would have 

to vote as a commission whether to accept or reject. This would enhance not only the transparency process, but should also lead to 

better decision-making, because if you look at the rules proposed by 

independent regulatory commissions they do not do, as a general 

rule, the type of rigorous analysis that has come to be expected for 

and accepted by executive branch agencies. So bringing them into 

the fold should enhance their analytical ability—— 

Mr. COHEN. I understand your proposition, but how do you effectively get that into law? Are they doing anything about it? Are they 

recommending it, or is there any action taking place right now? 

Ms. KATZEN. There is no action taking place that I know of. 

When President Obama, in January 30, 2009, called for comments 

on a potential new executive order this was—subject was discussed 

by some of the commentators. But since we haven’t seen an executive order it could be an OMB memorandum. 

It could also be done, as you suggest, through legislation, whereby OIRA would be authorized to have this type of oversight—— 

Mr. COHEN. Just from your general overall knowledge of politics 

and the world do you think that would be something that would 

be a bipartisan effort? Would there be any reason anybody would 

object to that? 

Ms. KATZEN. You mentioned at the outset ‘‘separation of powers,’’ 

and there are many in Congress, on both the sides of the aisle, who 

feel strongly that the independent regulatory commissions are 

independent of the President and more the stepchildren of Congress and might well be suspicious, if not hostile or resistant, 

to—— 

Mr. COHEN. So Ron Paul is not going to vote for this? 

Ms. KATZEN. I don’t think I could predict where his votes would 

lie, but it is an issue. I am not saying it is unsurmountable, and 

in fact, you could get bipartisan support. I noticed that some of 

106 

your colleagues on this panel listened with interest as I described 

the situation. But I don’t know that it is a—dare I use the expression—slam dunk. 

Mr. COHEN. Yes. I understand that. Obviously it isn’t because 

Mr. Franks has already indicated he is not going to—he is going 

to, you know, beat Bill Russell—slam dunk. 

Dr. Williams, you mentioned, and some other people did, how 

Mr. Sunstein has not—and I think Mr. Jordan’s question—rejected 

any of the rules. Could it not be possible that the agencies are just 

doing a much better job in proposing their rules and nothing really 

needs to be summarily rejected? 

Mr. WILLIAMS. In my opinion that is unlikely. 

Mr. COHEN. But it is possible. 

Mr. WILLIAMS. Anything is possible. 

Mr. COHEN. And Dr. Bass, would you say it is possible or unlikely? 

Mr. BASS. I think it is quite possible. 

Mr. COHEN. Dr. Copeland, from possible to unlikely? 

Mr. COPELAND. Could you repeat the question? I was looking at 

the numbers. 

Mr. COHEN. The fact that they haven’t summarily dismissed and 

rejected these letters to say, ‘‘Hey, not going to do it,’’ could the 

agencies be doing a better job in promulgating their rules and regulations such that they are not inconsistent with the Administration’s policy objectives and they are creating jobs and they are 

doing, you know, America’s work? 

Mr. COPELAND. Certainly possible. If the quality of the rules coming in the door are better then the number of rejections would certainly go down. 

Mr. COHEN. Thank you. 

And Ms. Katzen, to close? 

Ms. KATZEN. First of all, during the last 20 years there has been 

an OIRA, and so the agencies have gotten better at doing their job. 

The second data point is that even during the Bush administration—that would be the George W. Bush administration—the Administrator started off with a roar and returned more regulations 

in that first couple of months than had ever been returned even 

during the Reagan years, and then there were none sent back. It 

stopped. 

Usually the rejections, as you call them, or the returns, are to 

get the agency’s attention and say, ‘‘You are going to have to live 

up to our standards and talk to us about what you are doing.’’ And 

once that message is received—and it can be received with a stick 

or a carrot—then the agencies normally do come to the table. So 

I would say it is definitely possible that the agencies are doing a 

much better job. 

Mr. COHEN. Thank you. Thank you. 

Dr. Williams, you had talked about the repent in leisure. Was 

that some type of anti-marriage statement? 

Mr. WILLIAMS. No, sir. It was not. 

Mr. COHEN. Okay. Thank you, sir. I knew it wasn’t. 

Mr. Franks, you are recognized. 

Mr. FRANKS. You mean a rejection actually got their attention? 

I think that is an epiphany that we should all dwell on. 

107 

Well, Dr. Williams, I appreciate your comments today and the 

fact that you would be so open-minded as to say it is possible that 

no regulations at this point need to be changed because of this 

epiphany that the agencies have come to. I think it is mighty 

broad-minded of you and I think it is really reaching. 

But I guess my question to you, sir: The White House chief of 

staff has said that the President is beginning his own personal review of whether there are things that the agency rules could do in 

a more—you know, these agency rules could be done in a more sensible way, that, to use his ‘‘in a more sensible way.’’ 

And you heard Professor Sunstein’s defense of the White House 

earlier today. What do you think President Obama needs to do or 

to look at to determine whether the regulations under his Administration could be done in a more sensible way, other than resign? 

Mr. WILLIAMS. Sir, I think the first thing that they can do is to 

make sure that for all significant regulations that they actually 

have a regulatory impact analysis. As I mentioned in my testimony, even for economically significant regulations—that is those 

that cost the economy over $100 million in either costs or benefits 

produced—one in five didn’t have any sort of analysis at all. 

I think you also find, if you look at the independent agencies, the 

Federal Reserve produced six economically significant rules within 

the last year or 2. They produced zero economic analyses. 

So the first thing is to make sure the analyses are there. The second thing they can do is they have got to take the time to review 

those analyses or review those regulations. They are large; some of 

them are many thousands of pages. 

There was one regulation on OMB’s Web site that costs over $1 

billion. It was reviewed in 1 day by OIRA. They simply have to 

take more time than that to review those regulations. 

And finally, as I mentioned in my testimony, many of the decision-makers in regulatory agencies—and I know this from my own 

personal experience—basically discount regulatory impact analyses 

and its findings. They make their decision and then they turn 

around and they ask their economists, ‘‘Can you please produce an 

analysis that supports my decision?’’ 

Well, when you work for those decision-makers it is pretty difficult to say no to that request, and what that ends up doing is it 

ends up producing a weak analysis that informs no one. The way 

you get around that is you have to return rules. That tends to 

wake decision-makers up that says, ‘‘We need to have good analysis 

and you need to pay some attention to it.’’ 

Mr. FRANKS. All right, let me just make sure I understood what 

you said. As far as the returning of rules, Mr. Sunstein suggested 

that he done any of that, but earlier in your testimony you said as 

far as economic analysis that even that started out strong and then 

it hasn’t been done since. Can you give me the chronology of that 

again? 

Mr. WILLIAMS. Yes. Well, we first started doing really significant 

economic analysis in 1981 with President Reagan’s executive order 

and we were doing strong regulatory impact analyses. As OIRA 

moved more and more into overseeing regulatory agencies, became 

a stronger oversight agency, there was more and more of a demand 

108 

for better analysis, and when that didn’t happen rules were returned. 

And with every new—and, you know, every 4 years we got new 

political decision-makers. We sort of needed that—we sort of needed those returns in order for them to wake up and go, ‘‘This analysis is important. This is what the President—this is how the 

President is directing us to make decisions.’’ 

That tended to change their behavior. They tended to pay more 

attention to those analyses and we got better analyses which informed not just them but the Congress and the American public. 

I am concerned where we have gone now nearly 2 years without 

a single return of rules. My suspicion, sir, would be that, in fact, 

regulator, impact analyses are worse, not better. 

Mr. FRANKS. Well, it sounds like you may have some potential 

resonance on the rest of the panel here—not all of them, so we will 

try not to get anybody to jump out of their chair here, but that 

there is some at least acknowledgement of your point. 

And what would you recommend to the President, to OIRA, do 

to assure that regulations and regulatory uncertainty do not paralyze business and prevent them from creating jobs? I have just got 

to tell you, I know I hit on that point a lot, but business has some 

realities to deal with and that seems to be one of the—you know, 

there is nothing so tragic in this life as a beautiful liberal theory 

that is totally destroyed by an unruly set of facts, but it happens 

so often. 

And in this case, what do you think could be done to keep from 

paralyzing the job market? 

Mr. WILLIAMS. I think several things: First of all, ensure that 

regulatory agencies actually are addressing a systemic problem, 

make sure that they identify that, make sure that they have a solution. I spoke with many businesses in the food industry, they 

said they are happy to comply with regulations. They want to make 

sure, though, that they work, that they are addressing a real problem—— 

Mr. FRANKS. What a novel idea. 

Mr. WILLIAMS [continuing]. And that they work. 

I think the other thing, as Ms. Katzen mentioned, is that you 

need to make sure in some way or another that the independent 

agencies are performing those analyses as well. 

Mr. FRANKS. Mr. Chairman, my time is expired. Thank you. 

Mr. COHEN. I would like to thank all the witnesses for their testimony today, and without objection the Members have 5 legislative 

days to submit any additional written questions, which we will forward to the witnesses and ask you to promptly respond. Without 

objection the record will remain open for those 5 legislative days 

for the submission of any additional material. 

Again, I thank everyone for their time and patience. This hearing 

of the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 12:36 p.m., the Subcommittee was adjourned.] 

109 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSE TO POST-HEARING QUESTIONS FROM CASS R. SUNSTEIN, ADMINISTRATOR

OF THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS (OIRA), EXECUTIVE

OFFICE OF THE PRESIDENT, OFFICE OF MANAGEMENT AND BUDGET


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MATERIAL SUBMITTED BY THE HONORABLE TRENT FRANKS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ARIZONA, AND RANKING MEMBER, SUBCOMMITTEE

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