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CLEARING THE WAY FOR JOBS AND GROWTH: 

RETROSPECTIVE REVIEW TO REDUCE RED 

TAPE AND REGULATIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

JULY 12, 2012 

Serial No. 112–134 

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 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

DENNIS ROSS, Florida 

BEN QUAYLE, Arizona 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

JARED POLIS, Colorado 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

JULY 12, 2012 

Page 

OPENING STATEMENT 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Courts, Commercial 

and Administrative Law ...................................................................................... 1 

WITNESSES 

Randall W. Lutter, Ph.D., Visiting Scholar, Resources for the Future 

Oral Testimony ..................................................................................................... 3 

Prepared Statement ............................................................................................. 6 

Response to Questions for the Record ................................................................ 72 

Michael Mandel, Ph.D., Chief Economic Strategist, Progressive Policy Institute 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 13 

Response to Questions for the Record ................................................................ 75 

Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University School of Law 

Oral Testimony ..................................................................................................... 30 

Prepared Statement ............................................................................................. 33 

Response to Questions for the Record ................................................................ 79 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Howard Coble, a Representative in 

Congress from the State of North Carolina, and Chairman, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 60 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 63 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 64 

Prepared Statement of Nancy Nord, and Anne Northrup, Commissioners, 

U.S. Consumer Product Safety Commission ...................................................... 66 

Letter from the United States Consumer Product Safety Commission .............. 69 

(1) 

CLEARING THE WAY FOR JOBS AND GROWTH: 

RETROSPECTIVE REVIEW TO REDUCE RED 

TAPE AND REGULATIONS 

THURSDAY, JULY 12, 2012 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, 

COMMERCIAL AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:35 a.m., in room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Coble, Gowdy, Franks, Johnson, and 

Watt. 

Staff Present: (Majority) Daniel Flores, Subcommittee Chief 

Counsel; John Mautz, Counsel; Bobby Cornett, Professional Staff 

Member; Ashley Lewis, Clerk; (Minority) Susan Jensen-Lachmann, 

Counsel; and Rosalind Jackson, Professional Staff Member. 

Mr. COBLE. The Subcommittee will come to order. 

Good to have you all with us today. I am sure there are some 

Members on their way, but I don’t want to penalize people who are 

promptly present. I want to give my opening statement and get 

that beyond us. But it is good to have everybody with us, particularly our three panelists. 

Retrospective regulatory review is not a novel concept. There 

have been multiple good-faith efforts to implement procedures and 

initiatives for retrospective reviews, but they have not produced 

sufficient results. This is partly due to the size and rapid growth 

of our regulatory system. It is also due to the complexity of our regulations and the incentives of regulatory agencies. 

That being said, several bills have been introduced on this topic, 

and I am pleased to turn our attention to it today. Representative 

Quayle, a distinguished Member of this panel, has, for example, introduced H.R. 3392, which, among other things, requires agencies 

to perform decennial reviews of existing major rules, including costbenefit analysis, and to provide recommendations on improving 

these rules wherever warranted. Others, such as Representative 

Hultgren and Representative Young, have also introduced bills on 

retrospective review. 

The theme throughout these proposals is consistent. Government 

should have some responsibility to audit and review its regulations. 

I believe this sentiment is supported by the prepared testimony 

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from today’s witnesses. Every Member on this panel understands 

and appreciates that regulations are important for our safety and 

security and that changing them outside of ordinary procedures for 

promulgating rules raises significant questions. 

At the same time, regulations impose a cumulative burden that 

is too high, and we should look for creative measures to reduce that 

burden. I am very interested in learning today what proposals most 

merit our attention and support. And I am also interested to know 

of any other suggestions from our witnesses that could assist our 

Subcommittee as we pursue this matter more thoroughly. 

I understand that in addition to requiring agencies themselves to 

review their regulations, the creation of a legislative commission 

tasked for the sole purpose of reviewing existing regulations and 

reporting back to Congress may be a viable suggestion. If so, then 

what would be the mandate and parameters for such a commission, 

and what tools would be needed to make it effective? 

That being said, I hope today’s hearing will be a productive first 

step—and I am confident that it will be—in making effective retroactive regulatory review a reality. And I look forward to the testimony from our witnesses. 

And if you all will bear with me, we are still waiting for a Member from the Democratic side. I presume that someone is en route. 

So you all just stand easy for the moment, and we will resume this 

imminently, hopefully. 

While we are waiting, let me introduce our distinguished panelists, if I may. 

Randall Lutter joined Resources for the Future in 2010 following 

a long and distinguished career as an economist featuring service 

in three different Federal agencies under four Presidents. Mr. 

Lutter’s past positions include chief economist and deputy commissioner for policy at the U.S. Food and Drug Administration and 

senior economist at the Office of Information and Regulatory Affairs, Office of Management and Budget. His teaching experience 

includes serving as an adjunct professor of economics at American 

University and as an assistant professor of managerial economics 

and policy at the State University of New York in Buffalo. Mr. 

Lutter earned his Ph.D. and M.A. from Cornell University and his 

B.A. from the University of California at Berkeley. 

Dr. Lutter, good to have you with us this morning, as well. 

Dr. Michael Mandel is a chief economic strategist for the Progressive Policy Institute and the founder of Visible Economy, LLC, 

a New York-based news and education company. He is the author 

of many books and wrote a basic economics textbook for McGrawHill. Mr. Mandel also served as chief economist at Businessweek 

magazine, where he was named one of the top 100 business journalists of the 20th century for his writings on innovation and 

growth. Mr. Mandel’s work at the Progressive Policy Institute focuses on the impact of regulation on innovation. He currently is 

president of South Mountain Economics, a consulting company, and 

a senior fellow at the University of Pennsylvania Wharton School’s 

Mack Center for Technological Innovation. Mr. Mandel holds a 

Ph.D. degree in economics from Harvard University. 

Dr. Mandel, good to have you with us, as well. 

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Professor Levin is a nationally recognized legal scholar who specializes in administrative law and related public law issues. He is 

a co-author of a casebook on administrative law and has published 

numerous articles and book chapters on administrative law topics. 

Mr. Levin previously served as Washington University Law 

School’s associate dean and is currently a public member of the Administrative Conference of the United States. Prior to joining the 

faculty at Washington University in 1979, Mr. Levin worked as an 

associate in the Washington, D.C., office of Sutherland Asbill & 

Brennan. He clerked for Judge John C. Godbold at the U.S. Court 

of Appeals for the Fifth Circuit. Mr. Levin earned his J.D. degree 

from the University of Chicago and his B.A., magna cum laude, 

from Yale University. 

As I said before, we are fortunate to have such a distinguished 

panel. 

And we will continue to stand easy until someone joins us. 

The gentleman from South Carolina is here. 

Mr. GOWDY. Good morning, Mr. Chairman. 

Mr. COBLE. A prominent golfer, I have been told. Good to have 

you, Mr. Gowdy. 

Mr. GOWDY. Delighted to be here. 

Mr. COBLE. With that in mind, we can commence. 

So, Dr. Lutter, why don’t you start us off? 

If you would, gentlemen, try to confine your comments to within 

the 5-minute rule, if possible. You have an amber light that will 

appear after the green light vanishes. That amber light will alert 

you that you have about a minute to wrap up. Now, you won’t be 

keel-hauled if you violate the 5-minute rule, but we do try to comply with the 5-minute rule. 

So, Dr. Lutter, why don’t you start us off? 

TESTIMONY OF RANDALL W. LUTTER, Ph.D., VISITING 

SCHOLAR, RESOURCES FOR THE FUTURE 

Mr. LUTTER. Chairman Coble, Members of the Subcommittee, I 

am pleased to be able to speak to you today about retrospective review and analysis of Federal regulations. 

I am Randall Lutter, visiting scholar at Resources for the Future. 

My testimony today is based partly on a report I recently authored 

for the Mercatus Center at George Mason University, which I submit for the record, and partly on my experience managing and evaluating Federal regulatory programs to reduce risks. I have served 

in senior staff and executive positions at the Federal Office of Management and Budget, the Council of Economic Advisers, and the 

Food and Drug Administration. My work on different regulatory 

matters appears in a variety of scholarly journals. And my testimony represents exclusively my own views and not necessarily 

those of any organization. 

While the Federal Government offers substantial protections to 

Americans’ health, safety, environment, and financial security, the 

specifics of Federal regulation deeply frustrate many Americans as 

they try to read prescription drug labeling or mortgage disclosure 

forms, board airliners or manage small businesses. Codified Federal regulations today total more than 165,000 pages and have 

grown at an average annual rate of 2.8 percent per year since 1970. 

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Concern over Federal regulations has led President Obama to 

issue three Executive orders on Federal regulatory policy since 

January of last year. All three spell out policies on retrospective review—the reexamination of extant regulations to identify modifications, including possible elimination as warranted. 

My remarks today focus on such review and on the retrospective 

analysis that can inform such review. Today I emphasize two specific question; the appendix to my testimony provides supporting 

information and details. 

The first question is how well recent regulatory review efforts 

have worked. 

Fifteen years ago, President Clinton’s National Partnership for 

Reinventing Government, under the leadership of Vice President 

Gore, was successful in reducing the number of pages of regulations. The total number of pages in the Code of Federal Regulations fell by 7,000 from 1995 to 1997, leaving it about 14,800 pages 

below where it would have been if it had instead followed long-term 

trends. 

But a count of pages is not equivalent to regulatory burden or 

a measure of people’s welfare. Moreover, in a later listing of accomplishments for its first 5 years, the National Partnership makes no 

mention of any specific reduction in regulatory burden. Were the 

economic effects of this simplification of rules nil because the 

changes in rules were simply housekeeping steps, such as the 

elimination of unnecessary regulations governing buggy whips and 

horse-drawn carriages, or were there instead genuine efficiency 

gains as the result of modification or elimination of regulations 

seen as inefficient with the benefit of hindsight? In fact, it is quite 

unclear what aggregate economic effects this reinvention initiative 

had because there was no claim of aggregate effects and I am unaware of any estimate from an independent source. 

In the George W. Bush administration, the Federal Office of 

Management and Budget conducted different regulatory review efforts, including a major push to review existing regulation of the 

entire manufacturing sector that it began in 2004. I focus briefly 

on this effort, which OMB described in its 2008 report to Congress 

on Federal regulations. 

Its effort began with 189 nominations that members of the public 

provided in response to a request in a 2004 draft report to Congress for suggestions for specific reforms to regulation, guidance 

documents, or paperwork requirements that would improve manufacturing regulations. OMB determined that 76 of the 189 nominations were priorities, and it found that 69 of the 76 reform items 

were complete as of January 2009. 

The items listed in that report are quite diverse and include 

many actions better characterized as administrative steps rather 

than modification or elimination of Federal regulations. For example, the OMB report mentions 16 Federal reports, at least 2 of 

which concluded that no change in existing rules was appropriate. 

The report also includes four guidance documents, which don’t have 

the full force and effect of law. They also include actions such as 

an EPA determination, a response to a petition, a revised reporting 

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ess initiated in 2004, as well as a legislative action regarding taxation. 

At least two of these actions, however—EPA’s spill prevention, 

control, and countermeasures rule and its hazardous waste rules to 

encourage recycling—likely offered significant savings. Since OMB 

didn’t offer any aggregate estimates of the benefits and costs of 

these regulatory changes, however, there is little basis for an overall judgment. 

In the interest of time, let me offer a quick sum-up, if I may. A 

continuing challenge is efforts to measure the actual results of Federal regulations. President Obama stated eloquently in an Executive order in January of last year that the regulatory system must 

measure and seek to improve the actual results of regulatory requirements. This year, he reiterated that same phrase. In fact, it 

is very difficult to estimate the actual results, and regulatory agencies have taken only very limited steps in that regard. 

So let me stop here and say that I look forward to this opportunity to testify. I am grateful for it. And I look forward to your 

questions. 

Mr. COBLE. Thank you, Dr. Lutter. 

[The prepared statement of Mr. Lutter follows:] 

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Mr. COBLE. Dr. Mandel? 

TESTIMONY OF MICHAEL MANDEL, Ph.D., CHIEF ECONOMIC 

STRATEGIST, PROGRESSIVE POLICY INSTITUTE 

Mr. MANDEL. Mr. Chairman, Members of the Subcommittee, 

thanks very much for the opportunity to address the issues with 

retrospective regulatory review, and alternative mechanisms for reducing the burden of regulation without losing its benefits. 

Much of my testimony is drawn from a policy brief published in 

February of 2011 by the Progressive Policy Institute, where I am 

chief economic strategist. I am also affiliated with the Mack Center 

for Technological Innovation at Wharton as a senior fellow. 

One of my main concerns as an economist is the link between innovation and regulation. Innovation is the key force propelling 

growth and creating jobs. On the other hand, regulation is essential for making our economy work smoothly. Unfortunately, if the 

regulatory burden is too heavy, it can tend to suppress the innovation and entrepreneurial energy that we need. So if we care about 

the long-term performance and competitiveness of the American 

economy, we have to focus on periodically lightening the regulatory 

load. 

This is not a new idea, as Dr. Lutter describes. It is not even terribly controversial. Reaching back to Jimmy Carter, every President, Democratic and Republican, has instructed his agencies to reconsider and review existing regulations. Yet, without exception, all 

of these attempts at retrospective review seem to have produced 

considerably less than the desired result. One might almost say 

they have failed. 

The question is, why is retrospective review so hard to do effectively? One issue is foot-dragging by agencies, but that isn’t the 

whole story. First, the retrospective review process consists of analyzing the costs and benefits of each regulation individually. The 

problem is, it is possible for every individual regulation to pass a 

cost-benefit test while the total accumulation of regulations still 

creates a heavy burden on Americans. The number of regulations 

matter, even if individually all are worthwhile. I call this the pebble-in-the-stream effect. Throw one pebble in the stream, nothing 

happens. Throw two pebbles in the stream, nothing happens. 

Throw 100 pebbles in a stream, and you have dammed up the 

stream. Which pebble did the damage? It is not any single pebble; 

it is the accumulation. 

The other issue is the very structure of the regulatory process 

makes it more expensive and difficult to undo regulations than to 

create them in the first place. When the original reg is put in place, 

the agency can use whatever evidence is available. By contrast, 

after a regulation has been in place for a while, the agency has to 

do a cost-benefit analysis using real data on actual outcomes and 

costs, which is expensive and difficult to collect. 

So what we need is a process that allows us to tackle the accumulation of regulation without having to fight over each one individually. What PPI has proposed is an independent Regulatory Improvement Commission, modeled somewhat along the successful 

process set up for the Base Realignment and Closure Commission, 

or BRAC. The Regulatory Improvement Commission would be 

12 

given the task of coming up each year with a package of 10 to 20 

regulations to undo, rewrite, or otherwise improve. They can be 

small regs or large ones. The package is sent to Congress for an 

up-or-down vote and then, if passed, sent to the President for his 

signature. 

What are the benefits of the Regulatory Improvement Commission over retrospective review? First, it would get us away from 

agencies reviewing their own regulations. The commission would 

draw on expertise from different agencies, but it would be able to 

make an independent decision. Second, if the experience with 

BRAC is any guide, voting on a package of regulatory reforms 

would be easier than hand-to-hand fights over individual regs. 

Third, and perhaps most important, having Congress vote on the 

package of reforms legally allows us to short-circuit the cumbersome regulatory review process. The Regulatory Improvement 

Commission would hold hearings, but because the package of reforms would need the approval of Congress, the hearings wouldn’t 

have to be arduous compared to the process that an agency would 

have to follow by itself. 

The bottom line is that the Regulatory Improvement Commission 

needs to combine efforts of both the legislative and executive 

branches to be effective. The executive branch by itself cannot get 

a grip on the problem. That is why retrospective review doesn’t 

work no matter who the President is. 

I should note that the February 2011 policy brief lays out some 

more details about how the Regulatory Improvement Commission 

could be structured. For example, the scope of the commission 

could be structured to stay away from environmental regulations or 

expanded to encompass agencies such as the FCC. The commission 

could be made temporary like the BRAC Commission so that it regularly has to be reauthorized. The commission could set up a Web 

site where businesses and individuals could submit suggestions for 

which regulations to undo or change. 

In truth, there are a lot of different ways to make a Regulatory 

Improvement Commission work. The key is to set up a mechanism 

which offers a systematic and objective process for identifying a 

package of regulations to be undone or fixed, while acknowledging 

that Congress has to be an essential part of the process. 

Thank you. 

Mr. COBLE. Thank you, Dr. Mandel. 

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ATTACHMENT 


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Mr. COBLE. Professor Levin? 

TESTIMONY OF RONALD M. LEVIN, WILLIAM R. ORTHWEIN 

DISTINGUISHED PROFESSOR OF LAW, WASHINGTON UNIVERSITY SCHOOL OF LAW 

Mr. LEVIN. Thank you, Mr. Chairman and Members of the Subcommittee. 

As the Chairman mentioned, I am a scholar who specializes in 

the field of administrative law. And I think you would find a broad 

agreement among students of my field that agencies don’t do as 


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much reexamination of their existing rules as they should. In any 

large regulatory program, there are going to be some rules that 

have outlived their usefulness or need updating or perhaps can 

now be seen as having been mistakenly drafted from the beginning. 

So the question is what steps might be taken to identify those rules 

and how to go about fixing them. 

The Administration has devised an elaborate lookback program, 

and the Subcommittee should evaluate its track record, but I am 

prepared to assume for purposes of today’s discussion that Congress will take a serious look at establishing a program of retrospective reviews on its own. The other panelists today have some 

interesting ideas for setting up external bodies to manage the retrospective review or lookback process, but, at least for purposes of 

comparison, I intend to explore how Congress might structure a 

mandate for retrospective review to be administered by agencies 

themselves, which is the more common pattern and possibly the 

most workable one. 

In my statement, I draw on recommendations issued by the 

American Bar Association and the Administrative Conference of 

the United States on the very subject of retrospective reviews. 

Those are both organizations that I have worked with for years, although I am not speaking for either of them today. 

Specifically, in this discussion, I will emphasize four themes that 

I believe the Subcommittee should take into account as it considers 

possible legislation on retrospective review. And I call these themes 

selectivity, affordability, flexibility, and evenhandedness. 

As to selectivity, I think priority-setting is essential to an effective scheme. If you direct an agency to review all of its rules, as 

sometimes has been done in the past, they will do a superficial job 

on them. So if you want a rigorous examination of a rule’s effects, 

that level of effort should be targeted at particular rules in a wellconsidered fashion. And the agencies will need discretion to do 

that. 

But when I say ‘‘discretion,’’ I don’t mean to imply that they 

should make their selection of rules to be reviewed in isolation 

from the rest of the world. I think you should have opportunities 

for input by OIRA, by the White House, by the relevant oversight 

Committees of Congress, and from the public. And these days, of 

course, the Internet makes opportunities for the public to participate easier than it ever has been in the past. 

The second criterion I offer is affordability, by which I simply 

mean that rigorous research into the effectiveness of a rule will 

take real resources. And if Congress wants the agency or anybody 

else to do it, it will need to provide funding for it. And I know that 

is not a small consideration these days. Agencies are already, in my 

opinion, seriously constrained by tight budgets in carrying out 

tasks that Congress has assigned to them. But these days, many 

Members have instituted tight curtailment on discretionary spending, and there are proposals to constrain it even more. And there 

is a tension between that impulse and the goal of promoting careful 

analysis that hasn’t been done in the past. 

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ferent needs. Specifically, the ABA resolution that I mentioned 

identifies as possible alternative approaches multi-agency reviews, 

reviews by broad categories of rules or by subjects or by impact on 

specific groups, like small business or State and local governments, 

or cleanup reviews to get rid of entirely obsolete rules. I think a 

statute that governs retrospective reviews might provide a menu of 

approaches for an agency to follow but it should not try to make 

one size fit all. 

My fourth criterion, fourth and last, is what I call 

evenhandedness. Some rules become obsolete by being too restrictive, and others become obsolete by being too weak. And a balanced 

lookback process should facilitate an agency’s capacity to repair either type of problem. In my statement, I use the example of pollution standards that EPA has used under a mandate to apply the 

best technology available. Well, technology evolves, but the agency 

often doesn’t get around to strengthening its rules to bring them 

into compliance with the statute. 

Now, of course, there are going to be disagreements in this body 

and elsewhere about how much the problem of overregulation compares with the problem of underregulation. But if you want to establish permanent legislation along the lines of the Administrative 

Procedure Act, it should be politically neutral, and you could then 

leave it to the political process to determine at any particular time 

what rules are causing the greatest problem. 

With that, I will conclude my oral statement, and I will be happy 

to respond to any questions you may have. Thank you again for letting me testify. 

Mr. COBLE. Thank you, Professor. 

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Mr. COBLE. Thanks to each of you for your testimony. 

We have been joined by the distinguished gentleman from Arizona, Mr. Franks, and the distinguished gentleman from North 

Carolina, Mr. Watt. 

And, gentlemen, we try to apply the 5-minute rule to ourselves, 

as well, so let me get with it. 

Dr. Lutter, to what degree have past regulatory review efforts 

produced few results because the Congress and the White House 

have lacked sufficient leverage to force more effective reviews? 

Mr. LUTTER. The reviews have been modest in terms of their accomplishments. I don’t mean to leave the impression that the accomplishments are nil, the ones that have been conducted to date 

in recent Administrations. But if one looks at the broad scope, the 

pebbles-in-the-river metaphor of the other speaker, and the full extent of accomplishments of these reviews, one is left with the conclusion that there is a few rules alone which are changed and the 

vast majority are left unchanged in broad scope. 

With respect to your question on the congressional authority, I 

think the Reg Flex Act already has a provision—if I recall, it is section 306—which requires agencies to conduct a regulatory review 

on a prescribed basis. This act is widely seen as not especially effective. It is adhered to in the breach, and there is a collection of 

GAO reports which essentially acknowledge that. 

I think the challenge here is between a balance between the 

agencies, which have substantial expertise in the design and the 

management of their regulatory programs, and the need to get 

some independent, outside-the-agency stimulus for the change. And 

the reason for the independence is exactly the difficulty associated 

with self-review. People are reluctant to review their own work in 

an effective way. 

Mr. COBLE. Thank you, Doctor. 

Dr. Mandel, would it be best to give the commission a mandate 

to focus on specific sectors? For example, retrospective review of 

manufacturing regs in year one, environmental regs in year two, 

communication regs in year three, et cetera? 

Mr. MANDEL. That is an excellent point. I think that at least the 

first year, or the first couple of years, it should have a limited mandate so that people can get used to, sort of, how it works. 

In particular—and this may, sort of, disappoint some people—I 

think that in the first couple years it should stay away from some, 

sort of, really controversial topics like environment so that people 

can get used to this idea that we can undo regs in this way. And 

then over time, as people get used to it, the mandate can be expanded. 

Mr. COBLE. I got you. Thank you, sir. 

Professor Levin, if Congress were to establish a regulatory review commission, would it be best to frame the commission with a 

short-term mandate, for example, say, a period of 1 to 5 years? 

Mr. LEVIN. My concern about a commission more broadly would 

be that you have a group of outsiders who don’t have the agency’s 

experience in administering a program as a whole. And so, if they 

identify particular rules to target, they may make the wrong 

choices. And if, as has been proposed, they are able to put forward 

their proposal without a record, or an extensive record, the kind 

50 

that an agency needs to compile, without a reasoned explanation 

of why they chose it, they may not make good choices. And if it is 

really true that all the rules are interconnected, they may, by picking out individual rules, cause disruption to the overall scheme. 

So my concern is that the commission might not be a reliable instrument. And if it is given a short-term mandate, as you described, it doesn’t even have the chance to develop expertise over 

time to alleviate that problem. 

Mr. COBLE. Would former heads of agencies be desirable for 

membership on such a commission? 

Mr. LEVIN. Oh, I definitely think if you have such a commission, 

former heads of agencies would be good candidates for appointment. But that doesn’t get to the ultimate problem, that they aren’t 

responsible for running the show at the moment. 

Mr. COBLE. Thank you, Professor. 

I see my amber light is on. I will yield to Mr. Watt, the gentleman from North Carolina. 

Mr. WATT. Thank you, Mr. Chairman. Thank you for having the 

hearing. 

Dr. Lutter, I believe you testified before the Energy and Commerce Committee or one of their Subcommittees previously, and in 

that testimony you made the following statement: Quote, ‘‘Perhaps 

surprisingly, there has been relatively little scholarly empirical economic research about the effects of environmental regulations on 

employment,’’ close quote. And then you cited two studies which 

had conflicting results on this impact. 

I am wondering, since you have testified there, have there been 

any additional empirical studies confirming that regulations adversely impact job creation? 

Mr. LUTTER. Thank you for the question. 

I haven’t done a survey since that testimony, so I am unaware 

of any specific new work on that point. I know that people are researching it actively, but I don’t know if they have any conclusions 

to report. 

Mr. WATT. Dr. Levin, are you aware of any research in this area, 

either ongoing or completed? 

Mr. LEVIN. Right, my understanding of the research is that the 

volume of regulations has a fairly weak relationship to employment. I think, these days, the main concern about a lack of employment is lack of demand, and so I don’t think the connection with 

regulations is a strong one. And that is only looking at the cost 

side. Regulations also have benefits which can improve the economic climate. 

Mr. WATT. You alluded to some of those things in your evaluative 

four criteria. Give me those four, just tick them off for me again 

quickly, if you can. 

Mr. LEVIN. Yes, I mentioned selectivity of which rules to review; 

affordability of the process; flexibility in designing it; and 

evenhandedness in choosing which ones to review. And as to the 

last point, my point is that sometimes a rule is out of date because 

it needs to be strengthened, other times because it needs to be 

weakened or repealed. 

Mr. WATT. So let’s focus a little bit on the selectivity part of this. 

And I guess I would ask all of the panelists, in assessing a regulaVerDate Aug 31 2005 16:22 Oct 02, 2012 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\071212\74978.000 HJUD1 PsN: DOUGA
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tion, should avoiding red tape be prioritized over saving lives or 

should job creation be prioritized over saving lives? What would be 

your assessment on that? If a regulation saved lives and it was intended to do that, should we be encouraging a reprioritization away 

from saving lives to either avoid red tape or to promote job creation? 

Anybody got any opinions about that? 

Dr. Mandel? 

Mr. MANDEL. I think that it is quite possible for any particular 

regulation, that the balance would be in favor of saving lives. But 

I also think that we have a problem, which is that we could keep 

accumulating regulations like that, where each individual one 

makes sense, but then taken together it is too much of a weight 

on the economy. 

Mr. WATT. So it would be a fair thing to assess all of those rather 

than—— 

Mr. MANDEL. Assess all of them. 

And, actually, let me give you another metaphor. I think about 

regulations in some sense as barnacles on the bottom of a ship. 

Okay? You just kind of have to start scraping them off at some 

point. 

Mr. WATT. Uh-huh. 

Mr. MANDEL. And if we go looking for bad regulations, it is like 

looking for the worst barnacle. It is not something that—you know, 

it is the whole totality of it that we have to worry about. 

Mr. WATT. So I assume you agree with Dr. Levin that any kind 

of retrospective review should be evenhanded. 

Mr. MANDEL. When we talk about a Regulatory Improvement 

Commission, we are very careful. It is not deregulation that the 

commission is—that the commission would be charged with both 

undoing regulations but also potentially improving them. 

Mr. WATT. Right. 

Mr. MANDEL. And one of the reasons why we think that Congress 

needs to be involved in voting this up or down is because, you 

know, the fact of the matter is—I wouldn’t put it exactly the same 

way as the professor did, but, in fact, once you start looking at regulations, a package that would be acceptable politically might have 

to include some tightening as well as some loosening. 

Mr. WATT. I think my time is up, but if I could squeeze in one 

more question, Mr. Chairman? 

I assume just like life-saving regulations that are designed to 

save lives, some regulations can actually encourage innovation, too. 

Hasn’t that been your experience? 

Mr. MANDEL. That is right. Potentially—— 

Mr. WATT. Can you give us a couple of examples of that? 

Mr. MANDEL. Potentially some regulations can encourage innovation, though, actually, I generally think that if we are talking about 

genuine innovation, that the best thing to do is to, sort of, have less 

regulation rather than more. 

Mr. WATT. Give us an example of where a regulation has actually 

incentivized innovation. 

Mr. MANDEL. At this point, I mean, we are very concerned about 

innovation, we are very concerned about the impact to people. But, 

in general government, is not the best—— 

52 

Mr. WATT. You are not answering my question. 

Mr. MANDEL. No, because—— 

Mr. WATT. If you are aware of situations where innovation has 

actually been promoted by regulation, that is the question I am 

asking. Are there specific examples? It is not a catch-22—— 

Mr. MANDEL. No, it is not a—and I am trying to answer the 

question genuinely here, is that I am really not aware of regulation—— 

Mr. WATT. Okay. Well, that is a fair answer. And I can’t push 

you, but no reason to waste time answering questions other than 

that, which is—— 

Mr. COBLE. The gentleman’s time has expired. 

Mr. WATT. I yield back. 

Mr. COBLE. The distinguished gentleman from South Carolina is 

recognized. 

Mr. GOWDY. I thank the gentleman from North Carolina, the 

Chairman. 

The President, Mr. Chairman, in the State of the Union, said 

that we should have no more rules or regulations than would be 

necessary for the health, safety, and welfare of the American people. 

Can either of you three name some major rules and regulations 

that would violate the President’s standard, in hopes of maybe giving some of these agencies a jump-start on their retrospective review? 

Not all at once. 

Mr. MANDEL. I would be happy to take a shot at this. And, I 

mean, I have been asked this question many times before, okay? 

And my response is always the same: that the problem is the accumulation of regulations rather than any particular bad one. 

And so I basically refuse to, sort of, identify one. I said, look, we 

have too many regulations. But to, sort of, say any particular one 

needs to be removed, it actually doesn’t reflect what the truth is. 

If we go looking for bad regulations, sort of, the ones that are jobkilling, okay, we are not going to find them. 

Mr. GOWDY. Well, again—and I may have misapprehended what 

the President was saying. I thought he said he had identified 500 

himself. And I figure, with all the various restraints he has on his 

time—no offense to the three of you, but you are all experts in the 

field—that you would be able to come up with a whole lot more 

than 500, given the amount of time you are able to dedicate to the 

topic. I don’t think, in the interest of time, you can list 500. I think 

the Chairman would gavel me down. But you can give me a couple, 

can’t you? 

Mr. LEVIN. My answer would be that it is probably not a matter 

of saying that certain regulations should simply cease to exist. I 

think the President’s point is that, in drafting particular regulations, even ones we need, you should structure it in such a way 

that it does not go further than is necessary to promote its objectives. And so I don’t think of it as an either/or question, and I suspect he did not either. 

Mr. GOWDY. Am I pronouncing your name correctly, Dr. Lutter? 

Is that correct? 

Mr. LUTTER. Yes, sir. 

53 

Mr. GOWDY. Maybe you could help me. The President says he can 

come up with 500. Even Cass Sunstein, the noted professor and 

regulatory expert, says there are some. Humor me. Give me a couple. 

Mr. LUTTER. Well, I will go out on a limb. 

I think, first of all, there is a clarification about what we mean 

by regulation. And the language I like to use is regulatory program 

versus rules. And the way that many of the specialists use rule or 

regulation is a particular action as published in the Federal Register, which is a specific rule. But that is not always the common 

usage. I am going to talk about regulatory programs rather than 

specific rules. 

At the Food and Drug Administration, many people believe that 

the regulations to reduce the risk of spread of bovine spongiform 

encephalopathy, commonly called ‘‘mad cow,’’ are addressed at 

something that is a really, really small risk. And that is not to say 

zero risk; it is simply a risk which is widely seen by specialists as 

very, very small. So one can’t say that this has no effect on health 

or safety. It is simply that the effect would be small, if balanced 

against the costs of that regulation, including the costs of administering it, which is borne by the Federal purse. 

Secondly, there has been a collection of estimates over many 

years, including those funded by the EPA in the late 1990’s, evaluating the Superfund program as a whole. And that is not to say 

any specific rule associated with the Superfund program but, instead, its effect on the whole. And the valuation is usually expressed in terms of dollars of total compliance costs relative to cancer cases averted. And similar work that is more up to date on that 

program by Michael Greenstone, looking at other metrics other 

than cancer cases averted, also appears to suggest that it is relatively high cost per unit health improvement. 

Among specialists who work on environmental actions, the Resource Conservation Recovery Act has a collection of regulations 

which are often thought of as relatively high cost per unit health 

improvement or per unit gain in environmental protection. 

So I would nominate these three, not necessarily as ones to be 

revoked, but as ones that would merit the consideration of the commission that has been discussed earlier today. 

Mr. GOWDY. I am out of time, but if the Chairman would allow 

me to ask one more question, I would be forever grateful. 

Mr. COBLE. Without objection. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Can you each give us, briefly, your perspective on the REINS 

Act, which passed the House, and, concomitantly, what role, if any, 

you would give the judiciary with respect to review of our regulatory apparatus, which role the judiciary should have that it 

doesn’t currently have? So the REINS Act and judicial review. 

Mr. LEVIN. I think the REINS Act is one of the worst ideas I 

have ever heard of, because I think it would lead to gridlock not 

only in the enactment of laws but also in the implementation of 

laws. It would mean that a major rule couldn’t be implemented unless you had the concurrence of all the branches of government, 

and that is frequently not going to be possible. And so I would stay 

away from it. 

54 

As far as the judiciary’s role is concerned, I think it plays a very 

important role today in reviewing rules, basically a sound role. And 

so I think it works in a way probably more or less as it should, and 

so I would not make major changes in it. 

Mr. MANDEL. I am going to pass on this question. Thank you. 

Mr. LUTTER. I have not researched the REINS Act, so I think I 

lack the expertise to comment on it. 

Mr. GOWDY. How about judicial review? Do you have expertise to 

comment on that? Additional judicial review, retrospective judicial 

review. 

Mr. MANDEL. I am much more comfortable with the idea of a retrospective review done by a commission which is the joint product 

of Congress and the Administration. Okay? Because I think, ultimately, regulations are the product of the public will. Okay? And 

the undoing of regulations or the improvement should be viewed by 

the bodies, by the branches of government that are the expression 

of public will, as well. 

Mr. COBLE. The gentleman’s time has expired. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. COBLE. Thank you. 

Dr. Lutter, I mispronounced your surname earlier. I apologize for 

that. 

The distinguished gentleman from Georgia is recognized for 5 

minutes. 

Mr. JOHNSON. Yes. Thank you, Mr. Chairman. 

Professor Levin, would you say what you were getting ready to 

say in response to that last comment that Dr. Mandel posed? 

Mr. COBLE. Oh, I didn’t mean to cut you off, Professor. 

Mr. JOHNSON. Well, if it doesn’t apply to my time, if he could answer it. 

Mr. LEVIN. Just now I was going to speak to the issue of judicial 

review in relation to retrospective review, if that is what you have 

in mind. 

What I was going to say is that anytime somebody thinks that 

a rule is out of date, an interest group, a person can file a petition 

to rescind it with the agency. The agency needs to respond to it. 

And if you are not satisfied with the response, you can go to court 

and challenge the decision as an arbitrary decision. 

And so we do have a mechanism in place by which a rule that 

seems obsolete can be challenged and the agency can be forced to 

come to terms with it. 

Mr. JOHNSON. So there is no need to muck up the process, bringing politics into the fray, in terms of the utility of a particular rule? 

Mr. LEVIN. I don’t think you need another layer of review with 

respect to the retrospective review process itself. 

Mr. JOHNSON. All right. Thank you. 

I would like to know, Dr. Mandel and Dr. Lutter, do you think 

that American businesses and the U.S. economy would be better off 

without the Clean Air Act and its associated regulations? Do you 

think we would be better off without it? 

Nobody wants to answer the question? 

Mr. LUTTER. The Clean Air Act is a very important act. There 

has been, actually, a retrospective study, which you may be aware 

55 

of, sir, under section 812 of the Clean Air Act, evaluating the costs 

and the benefits of the act—— 

Mr. JOHNSON. Well, do you think that it is better that we would 

be—we would not have a Clean Air Act? Is it your opinion that we 

shouldn’t even have that act? 

Mr. LUTTER. The—I—— 

Mr. JOHNSON. Yes or no? 

Mr. LUTTER. We are better off with the act than with no act, sir. 

Mr. JOHNSON. What about the Clean Water Act? Do you think 

we would be better off without that? 

Mr. LUTTER. I haven’t studied that in enough detail to know, sir. 

Mr. JOHNSON. What do you think about it, Dr. Mandel? 

Now, that is a very important act that—you know, it is one of 

the things that people most, in industry, one of the acts that people 

most challenge. And you are not familiar with that act? 

Mr. LUTTER. My training and my experience, sir, is always to 

focus on certain provisions of certain rules or certain acts. 

Mr. JOHNSON. All right. I got it. 

Mr. LUTTER. And in that sense, to evaluate it in its whole is really difficult, because one has to ask what is the alternative—— 

Mr. JOHNSON. And I realize that you are an economist and not 

a lawyer, so please forgive me. Thank you. 

Dr. Mandel? 

Mr. MANDEL. I think we are better off with the Clean Air Act. 

Mr. JOHNSON. What about the Clean Water Act? 

Mr. MANDEL. I think we are better off with the Clean Water Act. 

Now, we could—— 

Mr. JOHNSON. Now, what acts can you cite right now that we 

would be better off without in their entirety? 

Mr. MANDEL. Now, remember, what I started—— 

Mr. JOHNSON. Well, no, no—— 

Mr. MANDEL [continuing]. Off by saying was that we could throw 

pebbles in the stream and it wouldn’t dam up the stream. 

Mr. JOHNSON. All right. Okay. 

Mr. MANDEL. So I am worried about the totality. 

Mr. JOHNSON. Well, let’s talk about the pebble-in-the-stream effect. Throwing one pebble into the stream doesn’t do anything, 2 

is okay, 3 is okay, 100 dams up the stream. Which pebble did the 

damage? Is it important that we discover that? 

Mr. MANDEL. It is a hard question. And so, at that point—— 

Mr. JOHNSON. And it is a hard question to answer. Is it better 

for the regulatory rulemaking authorities and the affected industries to have dialogue and try to reform and refashion the rules in 

that way? Or is it better just to throw it into the legislative branch 

and let us muck it up and bog it down in politics and Koch brothers’ money, soft money, hard money, whatever money? Do you 

think it is better to just put it into that system that we are dealing 

with now? 

Mr. MANDEL. My response is, historically—— 

Mr. JOHNSON. Yes or no? 

Mr. MANDEL. The answer is that I think retrospective review 

hasn’t worked. Okay? That it sounds good, but it hasn’t worked. 

And so, therefore, we are looking for an alternative to that. 

Mr. JOHNSON. All right. 

56 

Professor Levin, if you would. 

Mr. LEVIN. Right, so one concern I would have is that if you give 

an independent body jurisdiction over 15 different dams, they may 

tinker with each of them and remove parts of the dam that may 

not be effective in terms of the overall purpose of the dam. So I 

think you do need the specialized perspective of an agency with respect to each one. 

Incidentally, I support the Clean Air Act and Clean Water Act. 

Mr. JOHNSON. All right. Well, I kind of assumed that you did. I 

do, too, if anybody was curious about it. 

Do the Federal agencies—— 

Mr. GOWDY. [Presiding.] Would the gentleman like an extra 30 

seconds? 

Mr. JOHNSON. I would. Well, I would like a minute, if you could 

spare it. 

Mr. GOWDY. Well, I had given you a minute before I asked if you 

wanted 30 more seconds. But how long would the gentleman from 

Georgia, the distinguished gentleman from—— 

Mr. JOHNSON. I just have one more question. 

Mr. GOWDY. Absolutely. Without objection. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Do the Federal agencies, particularly in this era of slash-andburn budget-cutting, have the resources that they need to undertake their regulatory reviews, their retrospective regulatory reviews? 

Mr. MANDEL. Absolutely not. And that is partly why I would like 

to see it moved to an independent commission. Because I don’t 

want the agencies to have to use their scarce dollars to do the retrospective reviews. 

Mr. JOHNSON. That sounds like a recipe for efficiency and perhaps even just wholesale review, not a careful review, but a wholesale, politically charged review. 

Mr. LUTTER. May—— 

Mr. JOHNSON. Dr. Lutter? 

Mr. LUTTER. May I also answer your question? I think the answer is no. And I think that is one of the challenges why the agencies as a group have done so little careful retrospective analysis of 

the existing rules. 

Mr. JOHNSON. So you disagree with the Republican slash-andburn ethic of the 112th Congress. Is that a fact? 

Mr. LUTTER. I am not sure what that ethic is, sir. 

Mr. JOHNSON. Well, it is to cut regulations and make it easier 

for business—— 

Mr. GOWDY. The gentleman is now into his third minute of what 

in soccer they call extra time, I believe. So, with that—— 

Mr. JOHNSON. Well, could he just answer that question? 

Mr. GOWDY. Well, you keep asking new questions after the last 

one, as any good lawyer would. And you are and were. 

But, Dr. Lutter, if you would like to briefly—I emphasize for effect and pause—briefly answer that question, you may. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. GOWDY. Yes, sir. 

Mr. LUTTER. May I ask to have the question repeated? 

57 

Mr. JOHNSON. I am a little too old for that now, Dr. Lutter. We 

can—with that, Mr. Chairman, I will yield back. 

Mr. GOWDY. I thank the gentleman from Georgia. 

And, with that, on behalf of Chairman Coble and all of us on the 

Committee, we want to thank our witnesses for their testimony 

today, for their collegiality and comity, not just with the Members 

of the Committee but also with one another. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as they can so their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, again, I thank all of our witnesses, and this hearing 

is adjourned. 

[Whereupon, at 10:27 a.m., the Subcommittee was adjourned.] 

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Prepared Statement of the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on Courts, Commercial and Administrative Law 

From what I can tell, there appears to be general agreement that periodic retrospective review of existing regulations is a good thing. This makes sense as it is difficult to argue with the idea that agencies should keep track of the effectiveness of 

the rules that they issue and take appropriate action when necessary. 

But beyond this basic notion, there is a range of views on everything from what 

the ultimate purpose of retrospective review should be to how such review should 

be carried out by agencies and the appropriate roles of Congress and the President 

in mandating and crafting a process for such review. 

I infer from both the title of this hearing and the testimony of the Majority witnesses that in some of my colleagues’ view, the main purpose of retrospective review 

is to ensure repeal at least some existing rules. 

Retrospective review, however, should not necessarily lead to rescinding existing 

rules. Sometimes, reviews may require promulgation of new rules or the expansion 

of existing ones. Indeed, a comprehensive review may result in no changes at all 

to existing rules. 

Any of these outcomes is a legitimate result of a properly conducted retrospective 

review, and no process for retrospective review should start with the premise that 

a rule must be rescinded after such review. 

Something else we ought to keep in mind is that Congress must proceed cautiously before imposing a legislative mandate on agencies to conduct retrospective 

review. 

One consideration is whether the President’s efforts regarding retrospective review alleviate the need for Congress to craft a general legislative mandate for retrospective review. 

Some of our witnesses dismiss the notion that a retrospective review conducted 

pursuant to Executive Order can ever be effective. 

I believe this judgment to be a bit harsh. Whatever the results of past presidential 

efforts to require retrospective review of existing rules, President Obama’s Executive 

Orders on the subject are the most extensive ones yet issued to address retrospective review. 

And they are fairly new, so we ought to give them a chance to fully take root before coming to any conclusions about the effectiveness of his initiatives. 

If Congress chooses to impose a retrospective review process on agencies, it must 

be written in broad terms and be flexible enough to accommodate the differences 

among agencies. As both the American Bar Association and the Administrative Conference of the United States recognized, Congress should avoid standardized or detailed review requirements. 

Finally, we should be mindful of the fact that conducting retrospective reviews 

can be very draining on agency resources, in terms of money, time, and staff. In 

2007, the Government Accountability Office issued a report concluding that the 

‘‘most critical barrier’’ for agencies to conduct retrospective reviews was ‘‘the difficulty in devoting the time and staff resources required for reviews while also carrying out other mission activities.’’ 

There does seem to be some rough agreement, at least among our witnesses, that 

it might be useful to have a neutral, third-party entity in charge of conducting retrospective reviews of existing rules. 

I would suggest that, should Congress choose to go down this path, it should consider assigning the task of retrospective review to an existing entity like the GAO 

rather than creating a new entity, particularly given present budgetary and political 

constraints. Perhaps we could start with a pilot program along those lines. 

There are a host of other matters to consider in designing a retrospective review 

process. I will leave it to our witnesses to elaborate on these considerations. I look 

forward to their testimony. 

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Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

This is the fourteenth hearing on regulations that we have held during the 112th 

Congress. 

And, as with the previous hearings, the title trumpets a favorite theme of conservatives—that regulations somehow depress job creation. 

This is unfortunate because the focus of the hearing is supposed to be on the need 

for retrospective review of existing regulations, a topic that is worthy of a thoughtful 

discussion. 

In principle, retrospective review of existing regulations is not a bad idea. It is 

hard to argue against the notion that agencies ought periodically to assess whether 

the rules they have promulgated are as good as they can be or whether they are 

even necessary in light of changed circumstances. 

Nonetheless, there are certain considerations that we must keep in mind as we 

proceed with today’s hearing. 

As an initial matter, there is absolutely no credible evidence establishing that 

regulations have any substantive impact on job creation, and discussion of such a 

link in the context of retrospective review is unhelpful. 

Last year, the Majority’s own witness testified before this Subcommittee that the 

‘‘focus on jobs . . . can lead to confusion in regulatory debates’’ and that ‘‘the employment effects of regulation, while important, are indeterminate.’’ 

The truth is that regulations can, in fact, lead to job creation. And, here are just 

a few examples: 

• A pending regulation limiting the amount of airborne mercury will not just reduce the amount of seriously toxic pollutants, but create as many as 45,000 

temporary jobs and possibly 8,000 permanent jobs, as the New York Times 

noted. 

• Heightened vehicle emissions standards have spurred clean vehicle research, 

development and production efforts that, in turn, have already generated more 

than 150,000 jobs at 504 facilities in 43 states across the U.S. 

It should, therefore, not come as a surprise that Bruce Bartlett, a former senior 

Republican Advisor in the Reagan and George H.W. Bush Administrations, says 

that there is ‘‘no hard evidence’’ that regulations stifle job creation and that it’s simply being ‘‘asserted as self-evident and repeated endlessly throughout the conservative echo chamber.’’ 

If anything, it was a lack of adequate regulation of the financial services industry 

and the mortgage industry that led to the 2008 financial crisis and the tremendous 

job losses that followed. 

The purported link between regulations and jobs is unsupported, and we ought 

to stay away from it when discussing retrospective review. 

Another point to keep in mind is that President Obama has already taken a 

series of significant steps towards instituting regular retrospective reviews by agencies, and that Congress should not jump the gun in seeking to mandate retrospective review legislatively. 

To date, he has issued two Executive Orders outlining steps that federal agencies 

must take to formulate plans for retrospective review of their regulations on an ongoing basis. 

And he has issued a third Executive Order encouraging independent regulatory 

agencies to take similar steps to plan for ongoing retrospective reviews of their 

rules. 

So far, more than two dozen executive agencies and almost 20 independent regulatory agencies have submitted retrospective review plans pursuant to these Executive Orders. 

Altogether, these plans have identified almost 500 different ways to reduce redundancy and inconsistency among existing regulations. 

65 

Before Congress considers imposing a legislative mandate regarding retrospective 

review, it should ensure that the President’s efforts have been thoroughly evaluated 

and have had a chance to fully take root. 

Finally, we must keep in mind the strain that a mandate to conduct retrospective 

review can have on already-limited agency resources. 

The Government Accountability Office noted in a 2007 report that one of the barriers to an effective retrospective review process is the fact that most agencies have 

limited time and staff resources to conduct a proper review while also carrying out 

their other functions, including issuing new rules mandated by Congress. 

If Congress intends to impose a comprehensive retrospective review process on 

agencies, then it must be prepared to provide the funding for additional staff and 

other resources for agencies to conduct such review. 

Without additional resources, agencies could be placed in an impossible position 

of having to comply with competing Congressional mandates for retrospective review, on the one hand, and to issue new rules, on the other. 

Effectively, a mandatory retrospective review regime could become another backdoor way of stifling agency rulemaking and enforcement actions, as agencies shift 

time and resources to retrospective review at the expense of fulfilling these other 

duties. 

The question of whether Congress should mandate retrospective review of existing 

rules is an important one and deserves serious, substantive, and nuanced discussion. 

I am afraid that the signal sent by the hearing’s title suggests that today’s discussion may be otherwise. I hope this is not the case and that we can have a helpful 

conversation on this important topic. 

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