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S. Hrg. 114–32 

EXAMINING FEDERAL RULEMAKING CHALLENGES 

AND AREAS OF IMPROVEMENT WITHIN THE 

EXISTING REGULATORY PROCESS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MARCH 19, 2015 

Available via http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

KEITH B. ASHDOWN, Staff Director 

GABRIELLE A. BATKIN, Minority Staff Director 

JOHN P. KILVINGTON, Minority Deputy Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

LAUREN CORCORAN, Hearing Clerk 

SUBCOMMITTEE ON REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

JAMES LANKFORD, Oklahoma, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

MICHAEL B. ENZI, Wyoming 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

HEIDI HEITKAMP, North Dakota 

JON TESTER, Montana 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

JOHN CUADERESS, Staff Director 

ERIC BURSCH, Minority Staff Director 

KELSEY STROUD, Chief Clerk 
(III) 

C O N T E N T S 

Opening statement: Page 

Senator Lankford .............................................................................................. 1 

Senator Heitkamp ............................................................................................ 2 

Senator Ernst .................................................................................................... 13 

WITNESSES 

THURSDAY, MARCH 19, 2015 

Hon. John Graham, Dean, Indiana University School of Public and Environmental Affairs, Former Director, Office of Information and Regulatory Affairs ....................................................................................................................... 5 

Neil Eisner, Senior Fellow, Administrative Conference of the United States, 

Former Assistant General Counsel, Regulation and Enforcement, U.S. Department of Transportation ................................................................................. 7 

Drew Greenblatt, President and Owner, Marlin Steel Wire Products, LLC, 

Executive Board Member, National Association of Manufacturers ................. 9 

Pamela Gilbert, Partner, Cuneo Gilbert and LaDuca, LLP, Former Executive 

Director, Consumer Product Safety Commission .............................................. 11 

ALPHABETICAL LIST OF WITNESSES

Eisner, Neil: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 48 

Gilbert, Pamela: 

Testimony .......................................................................................................... 11 

Prepared statement .......................................................................................... 74 

Greenblatt, Drew: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 61 

Graham, Hon. John: 

Testimony .......................................................................................................... 5 

Prepared statement .......................................................................................... 33 

APPENDIX 

Responses to post-hearing questions for the Record: 

Mr. Graham ...................................................................................................... 82 

Mr. Eisner ......................................................................................................... 86 

Mr. Greenblatt .................................................................................................. 92 

Ms. Gilbert ........................................................................................................ 97 

(1) 

EXAMINING FEDERAL RULEMAKING 

CHALLENGES AND AREAS OF IMPROVEMENT 

WITHIN THE EXISTING REGULATORY 

PROCESS 

THURSDAY, MARCH 19, 2015 

U.S. SENATE,

SUBCOMMITTEE ON REGULATORY,

AFFAIRS AND FEDERAL MANAGEMENT,

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:01 a.m., in 

room SD–342, Dirksen Senate Office Building, Hon. James 

Lankford, Chairman of the Subcommittee, presiding. 

Present: Senators Lankford, Ernst, Heitkamp, and Peters. 

OPENING STATEMENT OF SENATOR LANKFORD 

Senator LANKFORD. Good morning. This is the first hearing in a 

series of hearings to pursue the issues and solutions surrounding 

the Federal regulations. 

I want to welcome each of our witnesses. We are very fortunate 

to have three witnesses who have been regulators and one witness 

who faces regulations on a daily basis. I thank you all for your 

written and your thoughtful testimony. I look forward to speaking 

with each of you and the contributions you can make to the ongoing conversation. 

Today’s hearing will focus on the Federal Government’s regulatory process. How does the regulatory process affect the quality, 

structure, efficiency, and accountability of agency rulemaking? Focusing on the processes will enable this Subcommittee to view the 

forest through the trees of all the regulations. 

Although Federal regulations have undoubtedly conferred benefits to everyday Americans, it is clear there are also regulatory excesses and significant burdens. More than 25,000 pages of rules 

published on average from 2010 to 2013 by many of the Federal 

Government’s 430-plus agencies, regulations today place a $2 trillion burden on the United States’ economy. In other words, the regulatory burden today equals 12 percent of the Nation’s gross domestic product (GDP). 

At some point individuals cannot make a reasonable day-to-day 

decision to advance their own family or their business because they 

spend time and treasure completing forms and Federal requirements: forms to prove to the government what they do each day, 
2 

even forms to tell the government they have nothing to tell the government. 

One simple way to ensure that the regulatory process benefits 

everyday Americans is to make sure that individuals have the opportunity to voice their opinions on all proposed regulations and 

make sure their comments are actually heard. 

In fact, Congress required notice and comment in the rulemaking 

process. When an agency seeks to promulgate a rule, that agency 

must provide notice of its proposed rule in the Federal Register and 

seek comment on that rule. In theory, notice and comment allows 

everyday Americans who are affected by regulations to participate 

with their government to develop the regulation. A government by 

the people, and for the people, should also hear and respond to the 

people when regulations are written. 

In practice, however, many Americans feel that their voices are 

not adequately heard. Those without the resources to hire attorneys or those who are too far outside the beltway to share their 

perspectives feel that notice and comment is not enough. 

Today, I hope we can discuss ways in which the Federal Government, whether it be individuals or agencies or Congress, can better 

respond to individuals’ concerns. 

The Subcommittee takes these issues very seriously. In fact, I 

would like to announce before we begin the hearing a project that 

Ranking Member Heitkamp and I are working on together. Senator 

Heitkamp and I have designed a portal for the Subcommittee 

website called ‘‘Cut Red Tape’’ where we encourage Americans to 

tell us about how specific regulations negatively affect them. We 

want to know if there are particular Federal regulations that are 

onerous, out of date, lack common sense, or have an enormous burden. This is our own version of a regulatory look back. 

I do not believe that our Nation should have no regulations, but 

I do believe that regulations should be local whenever possible, limited in scope, and that the least costly solutions should be followed. 

We hope to have this web-based effort ready in the very near future. Once it is up and running, the Subcommittee will collect and 

read all submissions, and we hope to highlight regulatory stories 

in the future to address these individuals’ particular concerns. 

I look forward to discussing these issues with our Members and 

witnesses today. With that, I would recognize Ranking Member 

Heitkamp. 

OPENING STATEMENT OF SENATOR HEITKAMP 

Senator HEITKAMP. Thank you, Mr. Chairman. 

Welcome to the ‘‘Redhead Caucus.’’ You did not know you were 

signing in for that, did you? 

We are very excited about this project because what you will discover, kind of moving forward, is that this is not a partisan issue. 

Most of us who actually receive comments from constituents can 

tell you clearly that these issues do not know political parties. They 

are business issues. They are important issues of how we move the 

country forward. 

And so I want to tell you, Mr. Chairman, I am so grateful that 

we are going to be working on these regulatory issues, as well as 
3 

other issues involving Federal employees, which fall under the Subcommittee’s jurisdiction. 

When most people think of regulation, they probably think of paperwork a small business might have to fill out or the records 

someone needs to keep in order to file their income taxes, but regulations are much more than that. 

Regulations underpin almost everything our Nation and our citizens do. Regulations keep our products and food safe. Regulations 

work toward making a fair society. Regulations work to prevent 

fraud and keep our economy and America working. It is safe to say 

that regulations are one of the most important parts of the Federal 

Government, even if they are not always well understood. 

For our Nation to be successful, for our citizens to be able to 

work hard and provide for their families, for our Nation to be secure and safe, we need effective, efficient, and rational regulatory 

process that works for American business and American families. 

In the upcoming months, you will hear me talk a lot about efficiency and effectiveness. Those words need to be the key focus of 

any discussion about our regulatory process. A world without regulation will not work, but we need effective, efficient, and rational 

regulation. 

Businesses large and small need certainty. They do not get that 

if the Federal regulatory process stretches on for years and years. 

That is not efficient, and that is not effective, and that seriously 

harms the economy and local businesses. 

As we have been talking about this process and talking about existing regulation, I have also put on the table the delayed regulatory impacts, when regulations are delayed or not done in a timely fashion. I think a prime example of that is the Environmental 

Protection Agency (EPA’s) continued failure to set renewable volume obligations under the renewal fuel standards. Because of their 

failure to follow the law, biodiesel plants across the country, including the one in Velva, North Dakota, have had to shut down production placing an economic burden on this critical industry. 

If the Agency had done its job, there would be no harm. Therefore, the lack of regulation has caused serious economic disruption 

in that industry. 

Effectiveness is just as important as efficiency. I think everyone 

agrees that a level playing field is a good thing. Effective regulations get us there, and effective regulation balances the costs imposed on business with the benefit to consumers and to Americans. 

They also balance the cost to manufacturers and the safety benefits 

our families experience. 

One of my focuses today is to engage with the witnesses on how 

best to make the Federal regulatory process more effective. A myriad of laws make up the regulatory framework, from the Administrative Procedure Act (APA) to the Paperwork Reduction Act and 

others. It is critical that we examine these rules for our regulatory 

process and determine what needs to change, what needs to be updated and what simply needs to be eliminated. Those last points 

are critical. We must always work to eliminate, simplify, and update regulations that are out of date. 

Think about that. Thousands of regulations that have no purpose, that add no value to our society, to our economy continue to 
4 

be on the books. This retrospective review process needs to be at 

the heart of any consideration on how we improve this process. 

Technological changes, regulations that impact how industries operate must also change. 

The Administration has made retrospective review a priority, 

and we have seen some success. Federal agencies posted updated 

lists of regulations they are reviewing just yesterday. It is clear 

that a lot of good work is being done. The Administration reports 

that finalized initiatives through this retrospective process will 

achieve $20 billion in savings over 5 years. 

I met with the Office of Information Regulatory Affairs (OIRA) 

Administrator last week, and he reiterated to me the Administration’s strong commitment to do better regulatory process, and I 

hope Howard and the Federal agencies will work with the Chairman and me as we examine this regulatory process from all sides. 

We will hear a strong variety of opinions at today’s hearing, and 

I look forward to hearing about how we can best resource regulation. 

No one disagrees that we need an effective, efficient process, and 

I think that everyone understands the importance of retrospective 

review. However, all that work requires resources: People to do the 

process, people to review the cost benefits, all the things that we 

must do to achieve smart, efficient, and rational regulation. 

In the near future, Chairman Lankford, as he has discussed 

today, and I will launch an effort to not just hear from witnesses 

who have the resources to come here to Washington, DC. to have 

discussions, but to hear from North Dakotans, to hear from 

Oklahomians—— 

Senator LANKFORD. Oklahomans. Just an Okie. 

Senator HEITKAMP. Oklahomans. I was not going to use the other 

word. OK. 

To hear from people who have had for years this pent-up frustration who will now have a vent to talk to people who are serious 

about listening about those regulations, and we hope that this will 

ensure for us a continued commitment to the process as we read 

through this effort but also will give us a better understanding of 

how we prioritize. 

So, I think it is critical that any discussion on how to improve 

regulation begins with an honest discussion of resources and how 

we are going to modify and to take a look at the burdens that this 

body imposes on regulatory agencies. 

With that, I look forward to hearing from the witnesses and discussing with them their ideas on how we can improve for our Nation the regulatory process. 

Thank you, Mr. Chairman. 

Senator LANKFORD. Thank you. I look forward to the conversation. 

At this time we will proceed to testimony from our witnesses. 

John Graham is the Dean at Indiana University School of Public 

and Environmental Affairs where he has been since 2008. Dr. 

Graham served as the Administrator in the Office of Information 

and Regulatory Affairs—you will hear that term used a lot—from 

2001 to 2006. 
5 

1The prepared statement of Mr. Graham appears in the Appendix on page 33. 

Neil Eisner is the Senior Fellow of the Administrative Conference of the United States. Mr. Eisner served as the Assistant 

General Counsel to the U.S. Department of Transportation’s Regulation and Enforcement Division through six Presidential administrations from 1978 to 2013. Mr. Eisner also teaches courses as an 

adjunct professor at the American University School of Law. 

Drew Greenblatt is the President and owner of Marlin Steel Wire 

Products, a manufacturing company out of Baltimore, Maryland. 

Mr. Greenblatt bought the company in 1998. Today Marlin Steel 

employs 25 people, had $5.5 million of sales in 2014, and exports 

worldwide. He also serves on the executive board of the National 

Association of Manufacturers (NAM). 

Pamela Gilbert is a partner at the law firm of Cuneo Gilbert & 

LaDuca focusing on government relations, where she has been 

since 2003. Ms. Gilbert served as the Executive Director of the 

Consumer Product Safety Commission (CPSC) from 1995 to 2001. 

I would like to thank the witnesses for appearing today. It is the 

custom of this Subcommittee to swear in all witnesses who appear 

before us. So, if you do not mind, I would like to ask you to stand 

and raise your right hand. 

Do you solemnly swear or affirm that the testimony you are 

about to give to this committee will be the truth, the whole truth, 

and nothing but the truth, so help you, God? 

Mr. GRAHAM. I do. 

Mr. EISNER. I do. 

Mr. GREENBLATT. I do. 

Ms. GILBERT. I do. 

Senator LANKFORD. Thank you. You may be seated. 

Let the record reflect the witnesses answered in the affirmative. 

We will be using timing today as we have your oral testimony. 

We have all received your excellent written testimony. That will be 

a part of the record. We would like to ask your oral testimony to 

be about 5 minutes to save time for questions. 

Dr. Graham, you are first up. 

TESTIMONY OF THE HON. JOHN GRAHAM,1 DEAN INDIANA 

UNIVERSITY SCHOOL OF PUBLIC AND ENVIRONMENTAL AFFAIRS, AND FORMER DIRECTOR, OFFICE OF INFORMATION 

AND REGULATORY AFFAIRS 

Mr. GRAHAM. Thank you, Mr. Chairman and Members of the 

Subcommittee. 

It would seem that the process of rulemaking should be simple: 

define a problem, propose a solution, take comment, issue the rule, 

wait for the lawsuits. That is the American way. 

But in reality, it is a more complicated process than that. And 

it starts, quite frankly, not in the Executive Branch, but in the 

U.S. Congress. When Congress regulates in the dark, bad things 

can happen. 

There is a tendency to define this problem exclusively in terms 

of agency abstractions like EPA and CPSC but, if you look at a lot 

of the regulatory problems we have and trace it back to the original 

lawmaking, you see seeds of the problem in the legislation itself. 
6 

I have in my written testimony the tortured history of the requirement for ethanol as a motor fuel. And coming from Indiana, 

I want you to know I have some sympathy with ethanols in motor 

fuel, but the details of the way Congress wrote the original legislation precipitated a lot of the problems we had with food prices and 

so forth. 

I suggest a little beefing up of the Congressional Budget Office 

(CBO). A little bit more of the analysis they do for budget issues 

should also apply to regulatory issues. We can talk about that 

more, if you would like. 

Theme No. 2, when regulators use poor quality data, bad things 

can happen. The Consumer Product Safety currently has an inquiry into the safety of table saws. Each year, believe it or not, 

30,000 woodworkers end up in emergency rooms with injuries due 

to blade contact. About 2,000 of them lead to amputation of at least 

one digit. 

They tried to figure out at CPSC which of these categories of 

table saws were most involved, and they came to the conclusion 

that it is the large expensive cabinet saws that are responsible for 

most of this. 

This was a big surprise to many of us in the field of injury control and risk analysis. It turns out there was a wording error in 

the way the survey was designed to these patients in emergency 

rooms, and they made it sound like if they had a bench top, a small 

bench top saw, that they really had a cabinet saw. So they answered, ‘‘I had a cabinet saw.’’ 

This data has been published and released to the public, and it 

has, in my opinion, created a misdirected effort at thinking a big 

cabinet saw is the problem when, frankly, the ordinary table saws, 

the small bench-top models at Walmart for $100 or $200, these are 

the ones that are most often used in these problems. 

Gee, aren’t their remedies for this problem? The Office of Management and Budget (OMB) already has remedies for this problem. 

One, this type of study should be subject to independent peer review by qualified experts before it is released to the public. Two, 

there should be information quality correction mechanisms applied 

before it is disseminated. After it is disseminated, if there is an 

error, it should be corrected, but the OMB guidance has no teeth 

it. There is no remedy if, in fact, the agency does not solve these 

problems. 

Three, when multiple regulators tackle the same problem, bad 

things can happen. I highlight in the written testimony the incredible progress we are making in natural gas and oil production in 

this country, passing Saudi Arabia and Russia as the leading producer in the world, but yet what is incredible, we could be doing 

even better if our regulatory systems are more responsive to the 

needs of a growing industry like this. 

Take one simple example: In order to do hydraulic fracturing you 

need sand. You need a particular kind of sand that is uniquely 

available in Minnesota and Wisconsin, Northern White sand, because it can withstand the pressure and high temperatures at 

10,000 feet below the earth’s surface. To get sand, you have to 

mine sand. To mine sand, you have to get permits. 
7 

1The prepared statement of Mr. Eisner appears in the Appendix on page 48. 

I have laid out, with my doctoral student, in my written testimony, all of the steps in the State of Minnesota to get a permit to 

do sand mining. There are 15 separate steps, multiple agencies 

and, if you look carefully at it, a lot of it has its roots in the Federal Government, not in the State Government of Minnesota because this authority is being passed along to the local level. 

Fourth theme, when Federal agencies skirt OMB and cost-benefit 

analysis review, bad things can happen. I cite a paper I have done 

with a Harvard law student where we lay out all the creative 

mechanisms that Federal agencies can use, and often do use, to 

regulate without having any OMB review and no cost-benefit analysis. 

Neil and I have been on the opposite sides of this, so I will be 

fascinated to get him into the dialogue, but agencies often have an 

incentive to skirt OMB review. They do not want to deal with 

OMB. Believe me, I hired some of these examiners at OMB. I 

would not want have to deal with them either. They are tough. 

So, if you can figure out a way to navigate this process without 

dealing with OMB, why not? That is a big problem because that 

leads to no second looks, no cost-benefit analysis, and a lot of regulatory activity. 

Final theme, when U.S. regulators do not collaborate with our 

trading partners in Europe, bad things can happen. Automobiles, 

companies trying to sell cars on both sides of the Atlantic, are an 

illustration. The United States and EU both see tremendous opportunities for cooperation, but it turns out that going back all the 

way to 1958, the United States regulators and the European regulators could not agree on how they were going to do this process. 

So, we went in different directions, and we have different regulatory programs, and we have literally dozens of rules from tires 

to headlights to various aspects of the vehicle that are different in 

Europe than the United States. 

It would take a long time to make all of these rules compatible. 

A more simple approach the Europeans have proposed is a mutual 

recognition. We recognize their safety standards; they recognize our 

safety standards. It is a practical approach. It deserves consideration. 

I hope I have you off to a good start and put some ideas on the 

table. I look forward to the comments and discussion. 

Senator LANKFORD. Mr. Eisner. 

TESTIMONY OF NEIL EISNER,1 SENIOR FELLOW, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, AND FORMER 

ASSISTANT GENERAL COUNSEL, REGULATION AND ENFORCEMENT, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. EISNER. Chairman Lankford, Ranking Member Heitkamp, 

Members of the committee, thank you for inviting me to testify 

today on this important topic. 

As one who has worked in the rulemaking process for many 

years, I appreciate the effort of the committee to hear from a diverse group of people in a bipartisan effort to examine the need for 

improvements. 
8 

Based on a lot of my experience as an attorney in the government, working with other agencies and work I have done in a variety of different arenas, I have provided you some details in my prepared statement illustrating how I think the regulatory process 

works well—I am not saying everybody does it well, but it works 

well in general; the many voluntary actions agencies have taken to 

make the process more efficient and effective; and I have also provided some specific suggestions for improvements. 

I would like to summarize the key points in that statement now. 

First, the Administrative Procedure Act established an excellent, 

relatively simple process. Almost 70 years of agency experience and 

court decisions have provided a solid basis for determining what is 

acceptable and what works well. 

Since it was passed, however, dozens of additional requirements 

have been directly or indirectly imposed on the process. A consolidation of the requirements without substantive changes would be 

welcomed by many, but I admit that it would be very difficult to 

achieve. 

For it to work well, we need to have constant oversight of the 

process and, particular, rulemaking actions to ensure effective decisions. For example, the Department of Transportation (DOT’s) Deputy Secretary meets each week with a different operating administration in the Department to discuss issues in all of its 

rulemakings. 

OIRA provides very good guidance. I hope John is not surprised 

by some of the good things I will say about OIRA. They provide 

very good guidance, they ensure appropriate coordination, and they 

provide a check on the objectivity of an agency’s decisions. And in 

Congress, simply setting up a hearing gets the attention of very 

senior officials. That and other less formal action can help identify 

specific changes that an agency can be required or encouraged to 

take. 

Too many people believe that agencies do not take public comment seriously. My experience was that DOT did. It takes extra, 

voluntary steps to increase effective public participation, significant 

comments are discussed in senior level briefings, and changes are 

made to proposed rules. 

Legislation cannot correct the misperception, but Congress may 

be able to help, for example, by providing agencies the encouragement or resources they need to take the steps that have helped to 

educate the public in some instances and improve perceptions. 

Some also complain that agencies’ compliance programs are 

based on a ‘‘gotcha’’ philosophy. DOT policy was different. It was 

not that way. It encouraged the highest level of compliance. We did 

not want to fine people after they had accidents. We wanted to help 

them learn how to comply so that they would have no accidents. 

They achieved this through a variety of steps such as providing 

time to fix a problem before they decide whether to impose a penalty. 

Some question the quality of risk assessments and cost-benefit 

analyses. DOT agencies are generally well regarded for their analyses. The disagreements are usually over such things as assumptions made when good data is not available. Good agencies try to 

address these issues openly, mindful of the Paperwork Reduction 
9 

1The prepared statement of Mr. Greenblatt appears in the Appendix on page 61. 

Act and with techniques such as ‘‘teardown’’ studies and sensitivity 

analyses. 

Another current issue is international regulatory cooperation. 

Done correctly, I agree with John, it can increase benefits and decrease costs. A good example involved DOT including the Canadian 

Government in a successful effort to negotiate a common, model 

rule to be used in both countries. However, under the Federal Advisory Committee Act the Canadians could participate in the process, 

but they could not vote. To prevent future problems, I would suggest Congress consider ways to address this issue. 

Many do not believe the agencies effectively review existing 

rules, however, a well-run agency is reviewing rules on an informal, but daily, basis, everyday looking at what is working and 

what is not working. Before reviews were even required, the Federal Aviation Administration (FAA) and the predecessor of the 

Pipeline and Hazardous Materials Safety Administration (PHMSA), 

had very impressive in-depth review programs. PHMSA’s predecessor even created a separate office to conduct the reviews. But 

competing priorities and decreasing resources essentially ended 

both. 

Since 1988, DOT has tried to have a formal review program. We 

published a plan, and every 10 years we set up a new schedule to 

review all of our rules in the Department. Considering the limited 

resources available to agencies, I would not recommend any general legislative changes in this area. Agencies know they need to 

do a better job. 

The rulemaking process generally works very well. It can be improved, but we should not amend general requirements because 

some use them ineffectively, and we need to recognize that new requirements may unnecessarily slow down or stop good rules or the 

rescission of bad ones. They also may encourage agencies to use 

less effective tools than binding rules or stop use of valuable voluntary steps because of a lack of time or resources. 

I want to thank you for the opportunity to speak with you today. 

I look forward to any comments or questions you may have. 

Senator LANKFORD. Thank you. Mr. Greenblatt. 

TESTIMONY OF DREW GREENBLATT,1 PRESIDENT AND 

OWNER, MARLIN STEEL WIRE PRODUCTS, LLC, AND EXECUTIVE BOARD MEMBER, NATIONAL ASSOCIATION OF MANUFACTURERS 

Mr. GREENBLATT. Good morning. My name is Drew Greenblatt, 

and I am the President of Marlin Steel. We are based in Baltimore, 

Maryland. 

I appreciate this opportunity to testify on behalf of the National 

Association of Manufacturers. We are the voice of 12 million factory 

workers, men and women all throughout the Nation. 

Marlin Steel produces custom wire baskets, wire forms, and precision sheet metal fabrications like this one for material handling 

applications for clients all over America and the world, 38 countries. We make everything in the USA. Our sales are over $5.5 million, and our growth has come despite government policies and un-
10 

necessary burdensome and inefficient regulations that place us at 

a competitive disadvantage. We need to refine and revise these regulations to grow jobs in America. 

Manufacturers in the United States have been experiencing an 

economic recovery, but we continue to face extensive challenges. 

Our competitors in Europe, Asia, South America, they are aggressively seeking new customers and opportunities, and their countries strategize for success in manufacturing. They want to eat our 

lunch. 

Meanwhile, manufacturers in the United States face expanding 

regulatory requirements that impose increasing burdens, and it 

drives up our costs. This hurts our employees’ chances. We believe 

that regulation is critical to the protection of worker safety, public 

health, and the environment. As a matter of fact, at our company, 

we have gone 2,286 days without a safety incident. We buy into 

safety. It is important. 

Indeed, some critical government objectives can only be achieved 

through regulation, but new regulations are too often poorly designed, poorly analyzed, and inefficient. They can be unnecessarily 

complex. They can be duplicative, and their critical inputs, science 

and other technical data, are sometimes unreliable and fail to account for significant uncertainties. 

The cumulative burden of regulation is the greatest threat for a 

business like mine, small business. It is not just one regulation 

that could hurt my business. It is the collection of thousands of accumulated requirements. It is like Chinese water torture. These 

are hidden penalties that hold back Marlin’s full potential and 

America’s full potential. 

I can attest that poorly designed regulations and unnecessary paperwork requirements create real costs that affect the bottom line. 

For example, in 2010, we received a love letter from the Department of Treasury—I am being facetious here—imposing a $15,000 

fine for inadvertently omitting a single signature on a 20-page 

form. We signed in three places. We forgot the fourth. This is from 

a 2006 form. This is for our 401(k) plan, which is a good thing for 

our employees. This simple oversight led to wasteful costs, activity 

unrelated to operating a business, and months of anxiety. 

We had to pay a small penalty for this missed signature. This 

episode totally diverted important resources away from more important pressing things, like competing with China, competing with 

Germany. Unfortunately regulations are allowed to accumulate 

with no real incentives to evaluate or cleanup the past, and they 

too often are a one size fits all—big company, small company, everybody in the same bucket—without the need or sensitivity to impact the small businesses. We can do better. 

Government would do well to adopt a practice from business 

called ‘‘lean manufacturing.’’ All factories do this nowadays. We 

constantly strive to eliminate waste or anything unrelated to accomplishing our objectives, making our client happy. Real incentives are necessary to promote such a culture. And some form of 

sunsetting regulations would do just that. We implore you to get 

sunsetting going. 

We believe that independent regulatory agencies need to be more 

accountable and should be required to follow cost-benefit require-
11 

1The prepared statement of Ms. Gilbert appears in the Appendix on page 74. 

ments and be subject to third-party review. Principles for reviewing 

regulation should be statutory and improved for the increasingly 

complex and highly scientific inputs in modern regulations. 

The Regulatory Accountability Act introduced by Senator 

Portman would help ensure that agencies engage in these sound 

regulatory principles. The regulatory process should be more sensitive to small business. This act should be reformed to improve the 

quality of regulations and prevent agencies from exploiting loopholes in current law. Dollars spent by manufacturers on regulatory 

compliance for unnecessarily cumbersome or duplicative regulations are dollars not spent buying new tools, hiring new talent, 

making us more competitive. Marlin Steel and other manufacturers 

in the United States cannot achieve our full potential if we fail to 

change the regulatory system that is increasingly inefficient in 

meeting objectives. 

Reforming our regulatory system is a necessary component for 

growth and job creation. Manufacturers are ready to lead if Congress and regulators will remove some of the barriers in our success. 

Thank you for this opportunity to testify today. I will be happy 

to answer your questions. 

Senator LANKFORD. Thank you. Ms. Gilbert. 

TESTIMONY OF PAMELA GILBERT,1 PARTNER, CUNEO GILBERT & LADUCA, LLP, FORMER EXECUTIVE DIRECTOR, CONSUMER PRODUCT SAFETY COMMISSION 

Ms. GILBERT. Hi, good morning. 

Chairman Lankford, Ranking Member Heitkamp, Members of 

the Subcommittee, thank you for the opportunity to testify today 

on the issue of improving the efficiency and effectiveness of the 

Federal regulatory process. 

My name is Pamela Gilbert. I am a partner at Cuneo Gilbert & 

LaDuca, but I served as Executive Director of the Consumer Product Safety Commission from 1996 through mid-2001. Today I am 

testifying on my own behalf, and all of these opinions are just my 

own. 

When we discuss effective regulation, it is crucial that we remember what happens when the regulatory system breaks down. 

The public, the news media, public officials from both parties, every 

geographic region, people rise up. They ask how could this have 

happened? And they commit, we are going to make changes to 

make sure that the regulatory system steps up and this never happens again. 

We saw this last year when the National Highway Traffic Safety 

Administration (NHTSA), oversaw recalls involving more than 60 

million vehicles: record setting. This record breaking number of recalls began when it was discovered that General Motors (GM) waited for over a decade to recall cars with a deadly ignition switch defect that now has been linked to scores of deaths and serious injuries. I sat in the hearings last year held by the Senate Commerce 

Committee in which Senator after Senator asked NHTSA’s thenActing Administrator ‘‘what went wrong? ’’ 
12 

In 2007 the United States experienced a similar but different 

year of the recall in which hundreds of consumer products were recalled under the supervision of the CPSC. Many of them were toys 

that we grew up with and we gave to our children and our grandchildren like Barbie Dolls, Thomas the Tank, Easy-Bake Ovens. So, 

all of a sudden this relatively unknown agency was front page 

news, and it was a topic of conversation at the playground and the 

water cooler. Americans throughout the country in red States, blue 

States, purple States, were asking what is this agency doing to protect our children? Congress responded and passed, by almost a 

unanimous vote—I think there were three votes against on both 

sides, House and Senate—passed the Consumer Product Safety Improvement Act, which is the most far-reaching reform of the Agency since it was founded in 1973. 

Congress established the Federal regulatory system to protect 

the public health, safety, and welfare, and American consumers expect that this system is working to keep the products they purchase safe, the air they breathe clean, and the vehicles they drive 

free from defects. American businesses, in turn, thrive, in part, because consumers have confidence in the safety of the marketplace. 

If you ask the executives at General Motors and Mattel if they 

wish that the regulatory agency had caught these problems sooner, 

before they got out of hand, I know what they would say. Nobody 

benefits when the regulatory system fails. 

Our current regulatory system, unfortunately, is already burdened with insufficient resources and bureaucratic requirements 

that add unnecessary costs and inefficiencies, and these burdens 

have real costs. Unsafe cribs kill innocent babies. Children were 

sent to hospital emergency rooms with repeated and painful surgeries because they swallowed tiny magnets that were in toys. And, 

of course, we know that hundreds of people, thousands of people, 

are killed and injured in defective cars. The pain to the families is 

incalculable, but companies also suffer. They suffer financial losses 

and reputational harm. 

In 2008 Congress passed the Consumer Product Safety Improvement Act (CPSIA) in response to a crisis of public confidence in the 

safety of toys and other children’s products. A key cause of this crisis was the inability of the CPSC, under its existing extensive analytical requirements, to address the hazards in the marketplace 

that were posed by unsafe children’s products. Congress, in the 

CPSIA, acknowledged this, and directed CPSC to enact a series of 

mandatory safety standards for children’s products, including toys 

and cribs, infant walkers, toddler beds, a long list. And it put those 

rulemakings under strict deadlines. 

But here is what is interesting about this. In order to enable the 

Commission to proceed expeditiously to protect children in this 

way, the CPSIA directed CPSC to bypass its existing regulatory requirements and proceed under the streamlined procedures of the 

Administrative Procedure Act, and, in fact, this was not the first 

time Congress had done that. 

Every time Congress has to step in because CPSC is not doing 

its job and it directs the Commission to issue a regulation, it directs CPSC to bypass its own requirements and proceed under 

streamlined requirements because Congress recognizes that CPSC’s 
13 

burdensome regulatory requirements stand in the way of an effective and efficient regulatory response. 

We have many successes to celebrate in our regulatory history: 

Cleaner air, purer water, safer food, drugs, and products, but our 

rulemaking system needs reform. As my experience at CPSC has 

demonstrated, timely and effective response to threats to public 

health, safety, and welfare can only occur if agencies are not 

bogged down with nonproductive, extensive analytical requirements 

and are provided with the resources necessary to carry out those 

actions. 

Thank you for this opportunity, and I am happy to answer your 

questions. 

Senator LANKFORD. Thank you. Using Chairman’s privilege, I am 

going to defer to some of other Members, and I will actually go last 

in my questioning time today. So, I would like to recognize Joni 

Ernst if you are OK with that? 

Senator HEITKAMP. Absolutely. 

OPENING STATEMENT OF SENATOR ERNST 

Senator ERNST. Good morning. Thank you to all of our witnesses 

here this morning, and thank you to the Chairman and the Ranking Member. I appreciate your steps to listen to our constituents 

and their concerns about rulemaking, the regulations process and 

how it is impacting their daily lives. 

This is such an exciting topic. I cannot believe we do not have 

a roomful of people here today. 

When I was out and about over the course of the past year in 

Iowa, this was one of the top issues. Rules and regulations impact 

every individual, every individual in Iowa. It does not matter—insert State here—rules and regulations impact everyone, whether it 

is in manufacturing—and thank you, Mr. Greenblatt, for being 

here today—manufacturing, healthcare, agriculture—very important in the Midwest—and many other industries. 

About 4 years ago in Iowa it had become such a great concern 

that the Governor, Republicans in the House and the Senate at the 

State legislature convened a rules and regulations tour across 

Iowa, and what we did, we established sites all across the State. 

We went out, as legislators, the Governor, lieutenant Governor, 

and we met with individuals and we took their testimony, both 

written and oral. And we compiled all of those statements. 

And at the end of the tour, we had binders with thousands of 

statements on how rules and regulations were sometimes positively 

impacting their lives, but for the most part, I would say probably 

98 percent of the comments we got were how they were impeding 

innovation and productivity in their daily lives, again, whether it 

was as individuals or as businesses. 

Mr. Eisner, I would like to mention and ask you a question because you did mention public participation in the rules process, and 

you mentioned that the perception of the agencies is that they do 

not take public comment seriously. And I often got that perception 

also, is that many of our agencies out there—you may take that 

public comment, but whatever happens to it? Does it just go away 

or do we actually act on it and look into it, which is something we 

did in Iowa. We actually set priorities, separated out what we could 
14 

work on in the State, separated out Federal regulations that would 

have to be dealt with another day. But we do need to take public 

comment seriously. 

I know you have done this. I think you have shown that very 

well through your time at DOT, but I am not convinced that other 

agencies do that. 

Could you please comment your knowledge of other agencies and 

where you think public comment fits in and how do we encourage 

agencies to take this seriously? 

Mr. EISNER. First of all, a lot of agencies do take voluntary steps 

to improve that participation. For example, we are not the only 

ones who have on our general regulatory site instructions on how 

to submit effective comments. EPA has something like that, I believe, the Federal Communications Commission (FCC) has something like that. 

At DOT we also, as I mentioned, had these regular meetings, 

things like that. And in these meetings, the briefing documents 

would say, ‘‘here are the comments from,’’ and then they would list 

major segments of the industries or the public that were regulated. 

Here is what they said, and then a few pages later you would have 

slides on changes that were made or not made. 

The important part—and that is why I stress oversight—is for 

other people like OMB, like my office, and other offices, the Small 

Business Administration’s (SBA) Office for Advocacy, to ask questions during the review, to ask why this? Why couldn’t you make 

that change? And see whether it is a reasonable explanation. 

I think a lot of agencies do that. I did not get involved in looking 

at a lot of their rules, but just from talking to them. We had an 

informal group that would meet periodically or communicate by emails. People were trying to do a better job in that regard. 

And, again, just some of the other examples that I have talked 

about that agencies could use. FAA would provide an expert before 

some of their hearings so that people who needed help in understanding the rules before they commented on them at a hearing 

could ask questions of the expert from the agency. 

Some of the agencies, like Coast Guard, will go to where the people are that they are regulating. When they were part of the department, they had fishery rules. They would go to the fishing 

areas to get public testimony. 

So a lot of that is done by a lot of different agencies inside DOT 

and elsewhere. More can be done. I have heard the comments and 

the concerns enough so that I know some are probably not doing 

it effectively. 

But in all honesty, Senator, I went to meet with a group representing a significant part of one of the industries we regulate, 

and I was talking about a new rulemaking when one of the members asked me why we made no changes. I was talking about an 

alcohol testing rule—and why we made no changes in response to 

their comments as a result of what we did in the drug testing rulemaking that we had issued earlier. 

And he said, ‘‘You did not do anything. You changed nothing.’’ 

And I said, ‘‘I am not here prepared to talk about that rule in detail, but off the top of my head I remember’’—and I listed 10 significant changes we had made. And I said, ‘‘Why do you tell us we 
15 

did not make changes when those responded to your comments and 

did make the rule a better rule?’’ There were delicate balances. 

I cannot explain why some people think we do not make changes. 

I know that not everybody misunderstands. There are a lot of people who are not getting what they want and what they think they 

should get, but when we did it, they still told us we did not make 

any changes. 

Senator ERNST. That is an interesting comment. I know that 

there are a number—and I apologize, is that OK? I have gone over 

my time, if I could just have a couple more minutes on this topic. 

It is interesting. I think communication is a very important part 

of working with the public and making sure that, one, you have annotated that you have received or heard their concerns and explaining why it is necessary to have that rule or regulation or if 

it is not necessary or not common sense, maybe the changes that 

have been made that make it more common sense or whether it 

has gone away. 

What we did, what the result was in Iowa after the rules and 

regulations tour, the legislature did take on this issue. We 

prioritized 10 of the top priorities of Iowans. We looked at those. 

We responded back to constituents across the State, but we did 

enact legislation, which was rolling sunsets of the rules and regulations. Every 5 years, we need to review those, make sure they 

make sense. If they are no longer needed, they go away. If we still 

need them, then we renew them. 

Rolling regulatory reviews, we also did job impact statements 

where, if it fell within certain parameters, then the legislature 

would need to make approval of a rule or a regulation. 

There are things that can be done to make sure we are staying 

on top of rules and regulations. They need to make sense, first. If 

they do not, they need to go away. But communication, again, Mr. 

Eisner, is very important, I think, as part of this in working with 

our public. 

Thank you, Mr. Chairman. 

Senator LANKFORD. I recognize the Ranking Member. 

Senator HEITKAMP. Thank you so much for your very thoughtful 

and—we are already exchanging notes based on what you have 

provided for us today. It has been a great first step in kind of a 

broad overview, and so I want to thank you so much for sharing 

your enormous talents today with us and your thoughts and your 

insights and really your experiences. It has been very helpful. 

I want to start out maybe with a story. I used to be the Attorney 

General of North Dakota, so as Attorney General, I had responsibility for truth in lending, truth in advertising. There was an industry—I will not mention it—it was notorious in terms of advertising, stretching the truth a little bit. And so we tried to kind of 

come in and set some parameters on what could be said and what 

could not be said in advertising. 

And I got a lot of pushback, and I said, ‘‘That is fine.’’ ‘‘You do 

not want these regulations. I will eliminate all regulation.’’ And I 

said, ‘‘But I am going to take out a full page ad with whatever, 

even personal resources, every Sunday saying, ’Do not believe a 

word you read in the paper in advertising. You think that there are 

laws that protect you against unfair advertising, but we do not 
16 

have regulations that actually enforce those laws, so do not trust 

what you read.’ ’’ 

‘‘Wait, wait, wait, Attorney General, do not do that.’’ 

And so my point in all of this is that when the public thinks 

there are regulations that protect our safety of our children, when 

they think there are regulations that protect and do the appropriate thing with automobiles—I mean, I could go down the line 

with food safety—and then when those systems fail, they wonder 

why. And we could have a long discussion about the financial system, right? 

And so we know that there is an essential part of this, which is 

the public’s expectation and how do we meet those expectations 

without doing what you have suggested, Mr. Greenblatt, which is 

create a completely uncompetitive environment for American manufacturing, for American business, for American farmers, which I 

represent the best in the country, if not the world, and so we are 

very interested in all these processes. 

So I think my first question is to you, Mr. Graham. I think we 

are very interested in what resources OIRA needs, what powers 

they need. Obviously they do not control independent agencies. We 

have to rely on the regular process there. Kind of structural reforms and resource reforms that you think might address some of 

the issues that have been discussed today. 

Mr. GRAHAM. On OIRA’s resources, my recollection is that, when 

the Agency was established in the early 1980s, it had on the order 

of 80 full-time career professionals. You can check those exact numbers. When I was at OIRA in 2001 to 2006, we were at around 50, 

as OMB Director Mitch Daniels had given us four or five extra 

slots. We then declined to 45 or 46. The last I checked with the 

OIRA Administrator, which was a couple months ago, he said they 

were at the 38 level. 

So I think people should understand that OIRA is a troubled 

agency. It is not doing well, and a lot of the talented people that 

have been there for many years have retired. They have not had 

the ability to replace them with good young talent. So, parts of 

OMB are thriving and doing very well, but OIRA is not one of 

them. And I think you could have a big impact if you were able to 

make an impact on that part of the problem. 

Senator HEITKAMP. I want to follow that up with what I see as 

a case-by-case struggle that we have, which is that there may be 

a new law passed like Ms. Gilbert discussed, where let us just bypass the system and do this. And so for all of the generalized rules 

that we have and whether it is Executive Orders (EO) or whether 

it is paperwork rules, every one of these laws that get enacted, for 

the most part, require regulation without ever analyzing what the 

cost will be on the agency of that regulation, that regulatory rulemaking process. And then they may create a completely different 

process with different kinds of requirements. 

And I am wondering when you were at OIRA, did you ever do 

a matrix of what those additional requirements were, what some 

of the reductions in requirements were? Did you ever look at how 

all of those individual pieces of legislation really affected kind of 

a uniform system of understanding of rulemaking? 
17 

Mr. GRAHAM. That is a hard question. That is a complicated one. 

I want to draw a distinction between analytical requirements that 

are placed on regulators and burdens that are placed on businesses 

of regulatees, and embedded in your question is a little bit of both 

of those. 

My experience is agencies, like the Department of Transportation 

and the Environmental Protection Agency, they do not have difficulty getting their act together to regulate when Congress authorizes them to do so. They do the analyses and they take the steps 

they need to. Could that be streamlined a little bit so that it is 

easier for them to regulate when they really need to? Yes, but I do 

not think that is the heart of the regulatory problem. The heart of 

the regulatory problem is the burden of regulation on the rest of 

society. That is the heart of the problem. 

Senator HEITKAMP. But I do want to point out, I gave a classic 

example of where delay in regulation by EPA, who you say is well 

equipped to regulate, delay in regulation has cost my industry and 

biodiesel and the renewable fuels industry tremendous amount of 

uncertainty, if not expense. 

Mr. GRAHAM. Right. I guess we would want to look at the question, is that really because of the analytical requirements that EPA 

has to go through? Is that they are delaying? Or are there reasons 

that relate to the politics of the issue which is why they are delaying? 

Senator HEITKAMP. Right. This gets to the heart of the matter, 

doesn’t it? The law is the law. We expect them to implement the 

law, and when there is a different competing opportunities for not 

necessarily a change in policy for the Administration but different 

industries coming at them in different directions, we end up stalemated, and stalemate is the order of the day in Washington, D.C. 

And we fail to give certainty. 

This is such a big topic. I could talk all day about it, but I guess 

my point is that looking at this and thinking about the overall regulatory process and maybe, Mr. Eisner, you are in better position 

and I am just going to turn this over because we are going to have 

a longer discussion here, but you are in a better position to kind 

of respond to this mishmash that we have where we have a generalized rule that gets co-opted in individual pieces of legislation over 

a long period so we do not seem—you say, yes, but, our enabling 

act said this. So our authorizing act said do it this way as opposed 

to other ways. 

Mr. EISNER. I am sorry. Your question is whether—— 

Senator HEITKAMP. My question is, when we are trying to set an 

overall process here—and that is really what we are trying to do. 

We are trying to say, how can we streamline this? How can we 

make this simpler? How can we guarantee that there is at least 

public satisfaction that they have been heard? And I hear your response to the Senator from Iowa. 

But when the specifics or when the exceptions then change the 

general rules, that makes it extraordinarily difficult for us to say 

we have a process that is working in the way that we expect it to 

work when each enabling act or each authorizing act sets a different process. 
18 

Mr. EISNER. If there are multiple processes imposed on agencies, 

and in some cases I do not think there are multiple processes, but 

there are overlapping requirements; they do slow the process down. 

But there are a lot of reasons the processes slow down. When I do 

a training course, when I initially set it up for DOT I had two 

slides with about 15 or 20 common explanations for delays. Some 

of them, as John said, could be political. Some of them could be incompetence. Some of them could be because they do not have the 

resources or they do not have the data. Some can be because they 

made mistakes while they were developing the document and had 

to go back and start over. There are good reasons and there are 

bad ones. 

Senator HEITKAMP. Mr. Chairman. 

Senator LANKFORD. Thank you. 

I am going to go through a round of questions, and then we will 

start immediately our second round. And the second round, just to 

let everyone know, will be everyone’s microphone is open. We will 

have open colloquy here on the dias and also at the table, and we 

will allow for a lot of more interaction as we go from there. Let me 

just walk through a couple quick questions on this as we try to 

deal with some solution issues on it. 

Mr. Graham, you talked about the cost-benefit analysis, and one 

of the things you brought up specifically was you mentioned the incentives to avoid going through the cost-benefit analysis just because of the process and the paperwork that is internal. So, I find 

it ironic that the companies are struggling with all the paperwork 

and internally in the agencies. They are struggling with all the paperwork and the process as well on it. 

Can we talk a little bit about the incentives and how do we fix 

that so that the incentive is to do a cost-benefit analysis—that was 

the desire of Congress—and benefits all of us rather than the discouragement from actually doing it. 

Mr. GRAHAM. Right. Let me give you a concrete example. Suppose the Environmental Protection Agency we are about to say, we 

are going to require 15 percent of all new cars sold in the United 

States to be electric cars, and you have to sell that many. That is 

the way it is going to be. There will be $10,000 to $20,000 incremental costs for each of these electric cars. That rule would have 

a hard time, under a Democratic or Republican administration, getting through OMB. It would have to have a cost-benefit analysis, 

and OMB would review it. 

We have this regulation now in this country. How did it happen? 

It happened because EPA signed a waiver form that allowed California to enact this requirement. And then under the Clean Air 

Act, other States are allowed to follow California’s program. Now 

we have 10 States doing this. A quarter of the country has this requirement by 2025. 

All of that was done, even though it is a regulation with national 

economic ramifications. There was never an OMB review. There 

was never a cost-benefit analysis. 

So you have to look very carefully at the ways in which these 

agencies can behave to avoid these requirements, you have some 

good legal staff that requires some good looks at it. 
19 

Senator LANKFORD. It does. And here is the issue I think we can 

commonly agree on: regulations are not supposed to just appear out 

of the dark. They follow law. So we are not a nation of regulations. 

We are a nation of law, and we are not trying to promote more regulations, and regulations is not the answer. Law and following the 

law is the answer, and those regulations come out of statute. 

When something happens like that that has no statutory background to it that is invented, I think that is where Americans get 

furious. 

Mr. GRAHAM. But it does have statutory background and it is 

complicated. The Clean Air Act says that States may not establish 

their own standards for motor vehicles unless they are California. 

California is entitled to a waiver, if certain criteria are satisfied, 

and EPA gave that waiver, but they did not do a cost-benefit analysis to support that waiver because the ‘‘waiver’’ isn’t covered as 

the kind of activity that is subject to a cost-benefit analysis. 

Senator LANKFORD. Yes, we are back to the same issue where 

you go to the EPA with the ethanol rules that we have talked 

about a couple times as well. They have in the statute the ability 

to be able to waive the requirements, and it is not being exerted 

on that. They are locked up. We are literally a year-and-a-half past 

when they were supposed to tell us the quantities for last year, and 

manufacturers are sitting and waiting trying to determine how 

much they had to manufacture last year because they are waiting 

on EPA to try to give them a decision. 

Mr. GRAHAM. Yes, and if you are a manufacturer of the more advanced biofuels—like in Indiana, we would like to make ethanol, 

not from the corn but from the cob and the stalk and get credit as 

advanced biofuels. Well, if they keep delaying this requirement, 

there is no guarantee there will ever be any market for this. So you 

have got yourself—— 

Senator LANKFORD. Well, the largest manufacturer in the country that does cellulosic just went out of business last year in the 

process. We can talk about ethanol another time. In fact, we will 

in a few months. That is coming. That is one of the many things 

there. 

The incentive that sits out there for regulators when they are actually trying to impose meeting with companies, whether that be 

a fine for not signing a form or I have met with multiple different 

manufacturers that have told me if they go back 15 years ago, 20 

years ago, government agents came to their business, did an inspection—whether it was the Occupational Safety and Health Administration (OSHA) or whoever it would be—and would help them 

find issues, and it was a helpful process. Now, they are terrified to 

have regulators show up because it is a fine because it does not 

seem to be, ‘‘Hey, here we are here to help you.’’ It is, ‘‘We are here 

to fine you,’’ and there seems to be an attitude shift on it. 

Have you noticed, Mr. Greenblatt, on the manufacturing side of 

this, a shift in the way regulators interact with your business? You 

do not have to name any particular agency on it, but has there 

been an attitude shift that you have engaged? 

Mr. GREENBLATT. We work with OSHA. In Maryland it is called 

MOSH, Maryland OSHA. There are two paths. There is the path 

you described, the mentoring counselor path, and there is the alter-
20 

native path. And we have embraced the mentoring role, and we 

have found it to be very helpful and very productive. 

Senator LANKFORD. Good. 

Mr. GREENBLATT. And they have given us many good ideas. 

One concern we have about that is I think we should consider 

the 80/20 rule. We have a factory with many different activities 

going on and when the inspector came around to our facility, he 

passed by 132-ton press brakes and he passed by 20-ton punch 

presses that were very safe, and then what did he find? He found 

that we had a toaster oven connected to the wall in a certain receptacle, and he literally cut it with a scissor as if that is our biggest 

threat to our employee. 

Again, if you do an 80/20 rule, if you look at sheet metal fabricators, that is probably not the next big threat, the toaster oven 

issue. The next big threat is probably going to be something near 

the press brakes or the laser or somewhere. 

And so it was puzzling to us that that was something they would 

cut a cord, literally physically cut a cord on. 

Senator LANKFORD. I am going to ask this question and then I 

am just going to open it up for conversation from there, and we will 

shift into the second round. 

There is a Supreme Court ruling that just came out dealing with 

the Mortgage Bankers Association and the issue of interpretive 

rules. 

The Supreme Court ruled that the agencies have the ability to 

be able to transition interpretive rules without notice and comment 

and to make that change. Now, I do not want to deal with the 

Court aspect of it. My first response on that was, what is an interpretive rule? Is that clearly defined in law what an interpretive 

rule is? Or does this give the ability to agencies to be able to designate any rule change from here on out as interpretive, and then 

they do not have to go through notice and comment? 

Does anyone want to make a comment on the fact there may not 

be a comment in the days ahead? 

Mr. EISNER. I would like to start off the discussion on that, Senator. There are problems in that area, but I do not think we need 

a new definition of interpretation. 

Senator LANKFORD. Is there a current rule, an interpretive definition of what an interpretive rule is? 

Mr. EISNER. In simple terms, it is the agency’s nonbinding statement on what it believes a rule requires, oftentimes in a particular 

situation. That is one of the reasons I would recommend we be very 

careful in this area. By statute in some cases, agencies are required 

to give out telephone numbers of people you can contact for advice 

like that, and a lot of what agencies do when an inspector goes into 

a plant or when somebody is going in and looking at books or looking at records that you have submitted is they get asked questions: 

How do I do this or how do I do that? 

And the agency responds. Sometimes it is in person, sometimes 

it is through an e-mail or a letter. Sometimes if they think it is 

generally applicable to everybody and it might help them, they will 

post it on the Web. 
21 

But day in and day out they are giving advice in very informal 

ways on what you need to do. It is oftentimes ‘‘if I do X, will that 

satisfy the rule? ’’ ‘‘Yes.’’ ‘‘Good.’’ ‘‘Fine.’’ 

There are times when agencies issue interpretations that cause 

people a lot of problems. Sometimes they are going way beyond 

what they had actually said in the rule and insisting it is just guidance. Sometimes they are treating it as if it is binding. That is 

wrong, and not just the courts but others try to get a hold of that. 

When John was the head of OIRA they set up a policy requiring 

agencies to submit certain kinds of guidance documents and interpretations to them. At the Department, if we see something like 

that, we will say, ‘‘What is your basis for that?’’ A lot of agencies 

ask for notice and comment on guidance that they think might be 

controversial and they want to hear people out and see how they 

can expand on it. Most try to do it well. I would be the first one 

to admit, some people abuse the process. That is something you 

cannot handle with a definitional change or a draft of a new term. 

Senator LANKFORD. So the challenge is what is an interpretive 

rule and how do we actually get that out there if now the courts 

have determined interpretive rule does not go through an Administrative Procedure Act. What is to stop any agency in the future 

from just saying every rule is interpretive basically? 

Mr. EISNER. They did not decide in that case that every interpretation does not have to go through notice and comment procedures. 

What they determined was that—because that is in the statute— 

it does not require it. There is an exception for it. 

Senator LANKFORD. Right. 

Mr. EISNER. The problem is people abuse it, and that is what 

gets into court. In this particular situation, they changed their interpretation. 

Senator LANKFORD. Right. 

Mr. EISNER. And the issue is should they have gone out for comment on changing the interpretation to make sure the change 

would not have an adverse affect. That is why a lot of agencies do 

ask for comment. But in this particular case, the Court said there 

was no reason to do that. The Court said when it is unreasonable, 

when the change is unreasonable, they can overturn it under the 

existing requirements in the APA. 

You do not want to stop agencies from being able to give out 

helpful guidance. 

Senator LANKFORD. No, I do not, because we have agencies that 

will not give help that literally I have had folks that have said, ‘‘I 

have called an agency and said ’Does this count?’ and they said, 

‘‘Well, we will determine that when we come out to inspect.’’ At 

that point they say it is too late. 

It is happening a lot with FDIC right now with small community 

banks where they will call and say, ‘‘I would like to do this kind 

of loan. Will this count?’’ They say, ‘‘well, we will tell you when we 

get there. ‘‘ It is too late at that point. 

Mr. EISNER. And to a certain extent John took care of it. It is 

one of reasons we created this website—we are not the only agency 

to put this up. We have a definition of each of our kinds of rules, 

interpretive rules, policy statements, and binding legislative rules. 

We also have detailed explanations of what guidance documents 
22 

may look like, from the preamble to a proposed and final rule, 

which can provide helpful information all the way down to oral advice when there is no record of what the FAA or the NHTSA official said when he was talking to you. 

And we tell people about all these different kinds of ways of giving advice and how they should use some with care and how others 

they can rely on. The agency even says, ‘‘You can rely on this.’’ 

That is the kind of thing that I think a lot of agencies do. Those 

that have problems need to do a better job. 

The Congress had problems with FDA many years ago with the 

way they use their interpretive authority. And Congress focused on 

them with some particular requirements, and they are now considered one of the leaders in the way they handle guidance documents. They have a good operating practice. 

Senator HEITKAMP. One of the concerns that I have is that we 

do not want to get, in this Committee, into the weeds on each individual agency or each individual entity. What we want is we want 

to have the view from a mile high. That is our job on this Committee, and we have talked about this, and each one of these things 

are very helpful illustrations of what might be causing the problem, but I want to get to the overlay of State regulation and how 

much of that—whether the Federal agencies legitimately or actually engage in a review of what is happening with State regulation 

that needs to be harmonized or at least appreciated as we work forward. 

We go back to the discussion about automobiles. Well, it was 

done under the Clean Air Act, but California probably could have 

enacted a statute that said, just like renewable fuel standards, we 

are going to make all these cars go this way. Right? That is California sovereign prerogative. We do not always agree, trust me, in 

North Dakota on what California ought to be doing, but, we have 

to recognize that we are dealing with various levels of sovereignty 

and States’ rights. 

And so we have this overlay of State regulation that does not 

seem to get very well harmonized with Federal regulation. Tell me 

what requirements are in the law today for Federal agencies to actually have consultation, meaningful consultation with State entities that are regulating at the same level. And I think, Mr. 

Greenblatt, you would probably agree that it is the cumulative effect of Federal and State regulation that really has you coming and 

going because they are not always consistent. 

So, what would you recommend to us? What would you suggest 

to us as a good model for better harmonization with State agencies? 

Mr. GRAHAM. That is a great question. One of the things I have 

been doing is studying how the European Member States of the 

European Union interact with Brussels in this regulatory area. 

And, of course, there are lots of differences about Europe and their 

structure of government than the United States, but the one thing 

they have is they have a variety of processes that basically require—I forget what fraction, 60 percent or two-thirds of the Member States—to agree on something before the Federal Government 

does it. 
23 

Now, if you take that general principle and bring it into the regulatory area, maybe the Governors—I do not know, pick what fraction you want—three-quarters, two-thirds—should have to sign on 

to one of these big Federal regulations and say this is a good idea 

before you do it. I think it is a very different way to get meaningful 

participation of the State governments. 

But the agencies will say, ‘‘Oh, we consult with the Governors, 

we consult with the National Governors Association,’’ but there is 

not actually any formal teeth to it, if you understand what I am 

saying. 

Senator LANKFORD. That is part of the conversation here with 

Congress and with the Senate and everything else. There is this 

ongoing conversation because that is what we are supposed to do. 

We are supposed to represent our States bringing that message 

from our States to our own government to say, ‘‘Wait a minute, this 

does not work in our State’’ and bring it to us. 

How could that work within a Federal system even to where 

agencies—obviously as I mentioned before, regulations are supposed to be an extension of the lawmaking process that it actually 

comes back to lawmakers in whatever forms or back to States to 

be able to evaluate does this really work? 

Mr. GRAHAM. Just following up, at the beginning of your question, prior to the Clean Air Act, California or any State was permitted to pass legislation and do whatever they want. But it was 

the Clean Air Act that prohibited any State from passing their own 

automobile legislation except they gave the out for California because of the smog in Los Angeles and the need to have very special 

activity there. 

Senator HEITKAMP. The point I would make is there already was 

a level of preemption. 

Mr. GRAHAM. There is a very strong level of preemption. 

Senator HEITKAMP. Right. So California, if they were listening to 

this discussion, they would say, ‘‘Well, you already preempted. We 

have the exception. You cannot complain about how we are administering our laws and our sovereignty to protect——’’ 

Mr. GRAHAM. No, under the Clean Air Act California must get 

permission from EPA to exercise that authority. 

Senator HEITKAMP. We could talk about the Toxic Substances 

Control Act (TSCA) right now and what is happening with labeling 

and TSCA, and that would probably be a better example because 

they have moved into the void. 

Mr. GRAHAM. Right. So, for example, maybe a certain percentage 

of States should have to agree on that and sign onto a Federal 

chemical regulation under TSCA before it is done. 

Senator HEITKAMP. Wow. I mean, this—— 

Mr. GRAHAM. I mean, if it is such a great idea, why can’t you get 

a good chunk of Governors to say it is a good idea? 

Senator ERNST. Or the Senate, yes. 

Senator LANKFORD. This is something we have all talked about 

a lot and that is multiple forms. The trucking company I talked to 

recently in my State—it is a small trucking company and they 

talked about how many times they fill out basically the same form 

for different agencies. 
24 

How can we work that through with OIRA or with whatever it 

may be to try to make sure that one company is not filling out basically the same form four times? 

Mr. Greenblatt, I saw in your testimony there was a comment 

you made there about filling out the same form for multiple sales 

over and over again—I think, for the Securities and Exchange 

Commission (SEC)—that you mentioned that as well. If you want 

to comment on that, but I want to comment on how do we fix this 

so that companies are not repetitively filling out forms? 

Mr. GREENBLATT. So the SEC is requiring publicly traded companies to divulge their conflict minerals, their exposure to conflict 

minerals. So all the publicly traded companies that we sell to, and 

we sell to virtually 400 or 500 publicly traded companies right now, 

they all require us to fill out a form to confirm that we are not selling steel baskets that have these conflict minerals. We buy steel 

from Nucor in Indiana, all 100 percent USA made. We are not buying anything from bad places in Africa. 

So, it is very unpleasant because every single one of the publicly 

traded companies has a different format of a document so that they 

can adhere to their SEC requirements. And it is a very complex 

form, and so you cannot have just anybody fill it out. It has to be 

a very smart person within your company, and every company has 

a different form. 

What happens is it sounds like a noble idea; however, it really 

impacts small business people because they have to address 

this—— 

Senator LANKFORD. You are saying you just cannot have a certificate saying, ‘‘We do not sell things from this one,’’ and just give it 

to everybody and they keep it on file? 

Mr. GREENBLATT. That would be the best way to do it. Please 

enact that. 

Senator LANKFORD. Well, that would be the independent agency 

that is sitting out there that is outside the bounds of everything, 

so that is a whole different issue. 

Senator HEITKAMP. Yes, it sure is. 

Senator LANKFORD. Again, that goes back to the common sense 

thing, and it goes back to the big picture thing that, we just want 

to help solve—that companies are able to be protective, not having 

to chase down forms. That is not what you want to do. It is a reasonable thing to say we do not deal with bad actors. It is unreasonable to say verify it in 400 different ways. 

Mr. Graham, one quick comment on the duplication. Is there 

anything that can happen with OIRA to be able to help manage the 

duplication where entities are basically filling out the same form 

for multiple agencies? 

Mr. GRAHAM. I think you have some good statutory authority 

that exists now under the Paperwork Reduction Act. 

Senator LANKFORD. Right. 

Mr. GRAHAM. You do not really have a viable mechanism at a paperwork-burden-by-paperwork burden basis for OIRA to play a significant role. You are talking about 38 staffers, and you are talking 

about a gigantic regulatory system at the Federal, State, local levels. They cannot be there for all these paperwork activities. 
25 

So basically what I would say is the thinking that needs to be 

done is how do you take the Paperwork Production Act, which is 

an existing statutory authority and then make it meaningful. That 

is a hard problem, but that is the assignment. 

Senator LANKFORD. Where would they go for this trucking company to say, ‘‘I just filled out the same form three times for three 

different agencies.’’ 

Mr. GRAHAM. Right. 

Senator LANKFORD. Who do they go to? Who do I go to to say ‘‘fix 

this’’? 

Mr. GRAHAM. Right. 

Senator LANKFORD. I think that is one of the key issues we could 

find is where do they go to say ‘‘make this stop?’’ 

Mr. GRAHAM. Right. 

Senator HEITKAMP. Many States have adopted streamline processes where they make those agencies come together because they 

are obviously at the ground level much more responsive and nimble 

than we are and so those one-stop shops that can be great models 

that the States have created, in my State and other States, could 

be good models to talk about how you streamline permitting, how 

you streamline all of this. 

Senator PETERS. Well, thank you, Mr. Chairman and Ranking 

Member. 

Actually, as I listen to this conversation of streamlining paperwork, I was involved in this issue in the House on a bill with Mr. 

Latta that we worked on, Mr. Chairman, that dealt with paperwork related to buying an automobile. 

As you know, when you buy automobiles, there is usually a pretty thick stack of documents that you have to fill out. One of the 

pieces of paper was that you had to sign to verify that the automobile complied with the Clean Air Act, which passed back in the 

1970s. Every automobile complies with the Clean Air Act. There 

are all sorts of things on the car and all sorts of recognitions, but 

this paperwork was required, and it was required by Congress. It 

was not an agency that required it. 

It took an act of Congress to get rid of a piece of paper that is 

with every car purchase that makes no sense whatsoever. So we 

also have to put the light on us a little bit as well, that a lot of 

these paperwork requirements have some sort of congressional action that was taken sometimes 30, 40 years ago, that hopefully in 

this committee we will have an opportunity to continue to work on. 

Senator LANKFORD. That goes back to the same conversation. We 

have to have someplace that people can respond to and say ‘‘How 

do we fix this,’’ and then we can separate out. That is congressional 

action that is needed to get rid of that, or that is already the agencies have authority. Somewhere people need to be able to go to fix 

that. 

Senator PETERS. Right. And I look forward to doing that. 

If I can switch gears a little bit and just ask, Ms. Gilbert, I noticed in your testimony a lot about cost-benefit analysis, and that 

certainly has become a topic here in Congress and a lot of folks like 

to see cost-benefit analysis. I know you have had an interesting 

take on some of that, one that the costs tend to be overestimated 

versus the benefits when some of that is done. 
26 

So if you could maybe flesh out a little bit of what you have said 

in your opening as well as your testimony as to what do you see 

as the role of cost-benefit analysis as we are looking at regulations 

and passing things and understanding that there are some biases 

perhaps in that? 

But if you could talk a little bit about that, that would be helpful. 

Ms. GILBERT. Sure. Thanks, Senator Peters. 

Just so you understand, at the Consumer Product Safety Commission, it is in the statute itself, not relying on Executive Orders 

or other things that have been passed since. The statute itself requires extensive cost-benefit analysis, not only for the rule that the 

Agency is proposing, but for all the alternatives that have been 

presented. Then the Commission also has to pick the least burdensome alternative of those alternatives using an extensive cost-benefit analysis. 

As the former Executive Director and also now as a consumer advocate working with the Agency, I will tell you that that often 

paralyzes the Agency. 

And the table saw rule is one example that, I know John 

Graham and I agree on. It is a very commonsense rule. It is tragic. 

Every single one of these amputations—and there are tens of thousands of them—can be prevented, and the Commission has the way 

to do it, but it cannot get through the process. So cost-benefit analysis can just hold back very important commonsense rules in the 

government. 

Of course, it makes sense to look at the costs of complying with 

regulations when you are putting a regulation together. There is a 

commissioner at the CPSC now, Bob Adler, who likes to talk about 

this, and I think he has it right that, it is really misstated to say 

a cost-benefit analysis. It is really cost versus cost. 

When there is a dangerous product out in the market that is killing and/or injuring people, there are costs to that, there are costs 

to not fixing it. There are societal costs. There are costs that are 

indirect and direct. And then to fix that problem, let us say it is 

putting air bags in automobiles, for example, or taking lead out of 

children’s products, also costs. There is no doubt it costs companies. 

But we need to be looking at the cost of doing it and the cost of 

inaction. And as I have described it to you, you can imagine, it is 

hard, it is very hard to estimate. I think it is difficult to estimate 

on the business side how much does it cost to retool, to put those 

air bags in? 

I know when the air bag issue was going on for decades, the cost 

of putting air bags in cars was widely inflated to what it actually 

is today. And I would also say that I think the American public is 

very grateful we have a regulation that requires air bags in cars. 

It could have happened decades earlier, but it did not. And now nobody—manufacturers, dealers, consumers—would want to take 

that regulation away, I think. 

I think we want agencies to look at the costs for sure, but what 

you need to be very careful about is layering this cost-benefit analysis on top of this one, on top of that one. And I would be very 

careful about requiring what CPSC is required to do, which is to 

do a cost-benefit analysis on all the alternatives that are out there 

because sometimes that is almost impossible to do. And yet, that 
27 

holds up, again, the commonsense regulation that everyone may 

agree to. 

Mr. GRAHAM. Just a quick response. I have done a cost-benefit 

analysis of the rule she is talking about, and the benefits do look 

like they exceed the costs. I do not think the problem is in costbenefit analysis. A lot of things she describes as a cost/cost analysis, that is what we do in a cost-benefit analysis. 

The problem with the CPSC is that it has a very particular way 

the statute was written by Congress in the beginning, and what it 

does is it creates this presumption for a voluntary standard before 

you can consider a mandatory standard, and the structure of the 

deliberation in the voluntary standard puts the industry that is to 

be regulated as in a key driver seat in the voluntary standard setting process. This makes it very hard for CPSC to enact regulation. 

This is a very unusual feature of the CPSC process. I do not 

think it is a generic thing that is across many agencies. 

I agree with you that the rule is potentially a very good idea, and 

I think it can pass, and I have published peer-reviewed articles indicating that passes cost-benefits analysis tests, but the heart of 

the problem is that the feature of the rulemaking process at CPSC 

where they go through this very long industry-led voluntary standard setting process first. 

Senator HEITKAMP. I want to make just a quick point because I 

do not know that I was really articulating my point about various 

laws that change the rules. Here we are. We think we are going 

to set a cost-benefit analysis. This makes sense. Well, we have an 

individual statute that says do it this way. How much of that is 

out there, is my point? How much of this do we think we are fixing 

a problem. We are not fixing anything because we have all these 

mini little structures out there that are in law already that make 

it impossible to set general rules. 

Mr. GRAHAM. Well, I think that one is tempted to think what we 

should do is just go into each one of these areas, CPSC, DOT, and 

really learn and study the details of their system and then tweak 

and refine each of those systems. 

I have been working in this area for decades. If this committee 

goes down that path, OK, you will not—— 

Senator HEITKAMP. Therein lies despair? 

Mr. GRAHAM. You will not succeed. Because there is just so much 

idiosyncracy along the way. You need to pick a couple themes, and 

you need to try to get them across the board at all of these agencies, including independent agencies, and there will be some awkwardness in how these things fit with each individual agency. I acknowledge that, but the alternative of thinking that you are going 

to go in and you are going to fine-tune the architecture in each one 

of these agencies, that just is not going to be possible. 

Senator HEITKAMP. I do not want to fine-tune anything. I just 

want to know where it is. No one knows where it is. No one has 

done that kind of systematic study. 

Mr. GRAHAM. I will give you one example. And I wish the Senator from Iowa were here because she was talking about public 

participation. One of the things I think that members should be 

aware of is that agencies take public comment and public participation after they have proposed a solution. And like all human 
28 

beings, once we think we know what the solution is, we put it on 

the table, it is not that easy to move people off that original proposal. They will refine it and change it a little bit. 

In some of these rules it is probably better if the agency says, 

‘‘Hey, we are thinking about regulating this area. We are going to 

do this advanced notice where we are going to lay out some data, 

what we think the problems are, look at a range of ideas,’’ and not 

lock themselves into anything. Take comment at that stage, and 

then once they have that, then they go to a proposal. 

Does it slow them down 3 to 6 months? Probably does. In a lot 

of important rules it is probably better that they come out and just 

define the problem a little bit and have an advanced notice before 

they even get to the proposal, that way you do not have all that 

ego behind that position. 

Senator LANKFORD. Does anything prohibit that right now from 

an agency from doing that? 

Mr. GRAHAM. No. But there is nothing that requires them to do 

that. 

Senator LANKFORD. Does anyone do that? Does any agency do 

that? 

Mr. GRAHAM. Yes, on occasion they do that. 

Ms. GILBERT. So can I respond to that? 

Up until the CPSIA, CPSC was required to do that. CPSC had 

a three-stage rulemaking process: Advance notice of proposal rulemaking, notice of proposed rulemaking, final rule. It was incredibly 

burdensome. You had to do it every time. 

CPSIA in 2008 changed that. CPSC still, most of the time, does 

an ANPR. But they do it voluntarily. 

Mr. EISNER. If I could, Senator Heitkamp, there are statutes that 

say things like ‘‘you cannot consider cost.’’ That does not prohibit 

the agency from doing a cost-benefit analysis, and we have used 

those cost-benefit analyses in some instances to convince Congress 

to change the statute. 

Sometimes the statute specifically requires something. For example, some device that will tell you if a child is behind your car when 

you are backing up or mudflaps on trucks. We were required to do 

that. We came up with a cost-benefit analysis on the mudflaps on 

trucks and said we do not think it is worth it, and they agreed and 

changed the statute. 

But, again, the agency can do the analysis, and that is important, and, again, analyzing every alternative somebody suggests 

could be burdensome, but analyzing reasonable alternatives, yes, it 

takes time, but it is what a good agency should do, and it should 

be used before the decision is made. 

Senator PETERS. If I could go back to the voluntary requirements, and, Ms. Gilbert, I know you have mentioned some of the 

concerns with voluntary standards and the potential for judicial review. Do you want to comment a little bit from Mr. Graham’s comments and some of the challenges with those voluntary standards 

and how that makes it your job or jobs of folks in your former position very difficult? 

Ms. GILBERT. Sure. Thank you. 

CPSC does have a requirement that it has to defer to voluntary 

standards if they exist, and they will be adequate, and they will 
29 

be likely to be complied with. And there is a different part of the 

statute that says the Commission actually has to wait to see if that 

voluntary standards process is going to happen, to give that process 

a chance. So as you can imagine, that can lead to enormous inordinate delays. 

When I was at the Commission, 90 percent of what we did on 

the regulatory end was through voluntary standards because the 

Commission’s own regulatory process is so burdensome and that 

voluntary standard requirement existed. So we primarily worked 

through voluntary standards, which can work quite well, and we 

were able to participate in a lot of good voluntary standards. But 

we got to one point where we decided we had to regulate because 

the standard was not working and this deals with bunk beds. 

Children were strangling in their bunk beds because the slats 

were the wrong width apart, or there were cutouts for design purposes, and children’s bodies could slip through and then their 

heads would get caught. 

A woman came to our agency who literally found her daughter 

strangled to death in the morning, one morning when she went to 

wake her up. And to her great credit, she took that tragedy and 

came to the Consumer Product Safety Commission and beseeched 

us to pass a mandatory rule because the voluntary standard was 

in place, but it did not work to save her daughter’s life. 

We did regulate—and we were afraid we were going to get a lawsuit. We were really afraid that the industry was going to come in 

and say, ‘‘We had a voluntary standard and therefore you could not 

regulate.’’ They did not at the end of the day. I think it is because 

these deaths, while they do not occur often, are so horrific. 

But that is the kind of problem that agencies would come up 

against when you have a requirement, again, to work through the 

voluntary process. 

Senator LANKFORD. Thank you. Let me ask a question just following up on the same line. Mr. Eisner, there is an interesting 

comment that you made in your written testimony where you said 

the influence of officials outside the agency affect the manner in 

which agencies conduct notice and comment responses, regulatory 

impact analyses and such. 

Can you help me understand that a little bit? You have your 

folks inside the agency that are trying to work through making a 

decision impact, regulatory effects, all those things. When you say 

‘‘outside the agency,’’ is that Congress? Where is that coming from 

on that? And how is it impacted? 

Mr. EISNER. Well, outside the agency could include other agencies that we coordinate with who might have questions or comments about the analysis we have done or the proposal we are 

making. 

Senator LANKFORD. How does that affect the decision of the 

agency as far as when you are evaluating effectiveness and costbenefit, all of those things? 

Mr. EISNER. Well, for example, if we are working closely with another agency that is affected by our regulation, they may point out 

data to us that would affect the analysis we are doing, or they may 

point out an alternative we had not thought about, and we could 

go back and do that before we put it out for public comment. 
30 

Senator LANKFORD. OK. So that is helpful input is what you are 

saying there? 

Mr. EISNER. It can be helpful, but it also can be negative. It can 

be another agency—when I say ‘‘agency,’’ it can include the White 

House—that does not want to rule in that area at that particular 

time. 

One of the points I think I was trying to make is do not assume 

it is the agency. I am not saying agencies do not make mistakes, 

but do not assume that what you do not like is the result of an 

agency decision. 

Senator LANKFORD. So you are saying sometimes the agency will 

make a decision, cost-benefit analysis, whatever it may be, whether 

it be the White House or another agency or somebody else, steps 

in, either slows it down, says, ‘‘No, wait on it,’’ or tries to influence 

it to change it. 

Mr. EISNER. Yes. 

Senator LANKFORD. OK. So is that a fixable issue, or is that just 

the nature of ‘‘Welcome to Washington’’? That is going to always 

happen. 

Mr. EISNER. Welcome to Washington. 

Senator LANKFORD. One of the things that we are trying to deal 

with is obviously there are a multitude of issues. We will try to 

bring as many as we can, and we are trying to address it in the 

most general fashion. You are right. We are not going to be able 

to go agency to agency and try to walk through that process. Ultimately that is the Executive Branch trying to work and managing 

it, but there are also legal issues that we have to be able establish 

as well that we want to make sure that we can clear as much as 

possible. 

Senator HEITKAMP. You made a comment about how frequently 

we fall in love with our ideas or in love with our regulation and 

we are not going change them based on comment. I think that 

what you are hearing from this dialogue today is we are not in love 

with any idea; we are in love with what works. And this has been 

extremely helpful to me to begin to kind of narrow that down and 

trying to figure out 80/20. What is that big bang for—take care of 

the big stuff and maybe let the little stuff go. 

And so I want you to know, this is really an open process. This 

is really an opportunity to continue to have this dialogue with 

great intellectual folks like yourselves who have thought about 

this, who have spent a lot of time working directly in the process, 

and, please, stay tuned because I think we are going to be very serious about this. We hope that it could be one of those places where 

we actually have bipartisan consensus and actually respond to concerns that the American public has. 

But your discussion today has been enormously helpful to me 

personally as I try and sort through where that greatest opportunity is for collaboration and change. 

Senator LANKFORD. We will send some questions to you in the 

days ahead, if you do not mind, and we will try not to belabor you 

with even more paperwork since we have been discussing that as 

well. But some of the things we did not get to, but I do not want 

to continue on with a long hearing. You all have things to do as 

well today, but the issue of back-door rulemaking came up in a cou-
31 

ple of our conversations, how to be able to manage that. I think 

that is a great frustration to a lot of manufacturers that I have 

talked to trying to figure out where did this come from, how did 

this happen, and then to figure out a process. How do we remove 

incentives to not follow the basic parts of the statutes? 

The other one is the independent agencies, and you had mentioned it as well. And that is how that needs to come in line. We 

have a group that are operating without OIRA engaging with them, 

small staff as they are, but there is no real oversight in that part 

of it as well. So, that is something I think we do need to address 

in the days ahead, and I will be interested in any kind of impact. 

I would like to also announce the Subcommittee’s next hearing 

before we adjourn today. It will be on regulatory process and it will 

be Tuesday, April 28. It will be held addressing the proper role of 

judicial review in the Federal regulatory process. Obviously that is 

something that all of you care about deeply and are connected with. 

That concludes our day’s hearing. I would like to thank our witnesses for their testimony. The hearing record will remain open for 

15 days, until April 1, 5 p.m., for the submission of statements and 

questions for the record. 

Thank you for being here. This hearing is adjourned. 

[Whereupon, at 11:31 a.m., the subcommittee was adjourned.] 

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