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+
+ - THE VIEWS OF THE ADMINISTRATION ON REGULATORY REFORM
+
+[House Hearing, 112 Congress]
+[From the U.S. Government Publishing Office]
+
+
+
+
+ THE VIEWS OF THE ADMINISTRATION ON REGULATORY REFORM
+
+=======================================================================
+
+
+
+
+ HEARING
+
+ BEFORE THE
+
+ SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
+
+ OF THE
+
+ COMMITTEE ON ENERGY AND COMMERCE
+ HOUSE OF REPRESENTATIVES
+
+ ONE HUNDRED TWELFTH CONGRESS
+
+ FIRST SESSION
+
+ __________
+
+ JANUARY 26, 2011
+
+ __________
+
+ Serial No. 112-1
+
+
+ Printed for the use of the Committee on Energy and Commerce
+
+ energycommerce.house.gov
+
+
+
+
+ U.S. GOVERNMENT PRINTING OFFICE
+64-695 WASHINGTON : 2011
+-----------------------------------------------------------------------
+For sale by the Superintendent of Documents, U.S. Government Printing
+Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
+area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
+20402-0001
+
+
+
+ COMMITTEE ON ENERGY AND COMMERCE
+
+ FRED UPTON, Michigan
+ Chairman
+JOE BARTON, Texas
+ Chairman Emeritus
+CLIFF STEARNS, Florida
+ED WHITFIELD, Kentucky
+JOHN SHIMKUS, Illinois
+JOSEPH R. PITTS, Pennsylvania
+MARY BONO MACK, California
+GREG WALDEN, Oregon
+LEE TERRY, Nebraska
+MIKE ROGERS, Michigan
+SUE MYRICK, North Carolina
+ Vice Chair
+JOHN SULLIVAN, Oklahoma
+TIM MURPHY, Pennsylvania
+MICHAEL C. BURGESS, Texas
+MARSHA BLACKBURN, Tennessee
+BRIAN BILBRAY, California
+CHARLIE BASS, New Hampshire
+PHIL GINGREY, Georgia
+STEVE SCALISE, Louisiana
+BOB LATTA, Ohio
+CATHY McMORRIS RODGERS, Washington
+GREGG HARPER, Mississippi
+LEONARD LANCE, New Jersey
+BILL CASSIDY, Louisiana
+BRETT GUTHRIE, Kentucky
+PETE OLSON, Texas
+DAVID McKINLEY, West Virginia
+CORY GARDNER, Colorado
+MIKE POMPEO, Kansas
+ADAM KINZINGER, Illinois
+MORGAN GRIFFITH, Virginia HENRY A. WAXMAN, California
+ Ranking Member
+ JOHN D. DINGELL, Michigan,
+ Chairman Emeritus
+ EDWARD J. MARKEY, Massachusetts
+ EDOLPHUS TOWNS, New York
+ FRANK PALLONE, Jr., New Jersey
+ BOBBY L. RUSH, Illinois
+ ANNA G. ESHOO, California
+ ELIOT L. ENGEL, New York
+ GENE GREEN, Texas
+ DIANA DeGETTE, Colorado
+ LOIS CAPPS, California
+ JANE HARMAN, California
+ JAN SCHAKOWSKY, Illinois
+ CHARLES A. GONZALEZ, Texas
+ JAY INSLEE, Washington
+ TAMMY BALDWIN, Wisconsin
+ MIKE ROSS, Arkansas
+ ANTHONY D. WEINER, New York
+ JIM MATHESON, Utah
+ G.K. BUTTERFIELD, North Carolina
+ JOHN BARROW, Georgia
+ DORIS O. MATSUI, California
+_________________________________________________________________
+
+ Professional Staff
+
+ Gary Andres, Staff Director
+James D. Barnette, General Counsel
+Philip S. Barnett, Minority Staff
+ Director
+
+ (ii)
+ Subcommittee on Oversight and Investigations
+
+ CLIFF STEARNS, Florida
+ Chairman
+SUE MYRICK, North Carolina DIANA DeGETTE, Colorado
+MARSHA BLACKBURN, Tennessee Ranking Member
+LEE TERRY, Nebraska JAN SCHAKOWSKY, Illinois
+JOHN SULLIVAN, Oklahoma MIKE ROSS, Arkansas
+TIM MURPHY, Pennsylvania ANTHONY D. WEINER, New York
+MICHAEL C. BURGESS, Texas EDWARD J. MARKEY, Massachusetts
+BRIAN BILBRAY, California GENE GREEN, Texas
+PHIL GINGREY, Georgia CHARLES A. GONZALEZ, Texas
+STEVE SCALISE, Louisiana JOHN D. DINGELL, Michigan
+CORY GARDNER, Colorado HENRY A. WAXMAN, California (ex
+MORGAN GRIFFITH, Virginia officio)
+JOE BARTON, Texas
+FRED UPTON, Michigan (ex officio)
+
+ C O N T E N T S
+
+ ----------
+ Page
+Hon. Cliff Stearns, a Representative in Congress from the State
+ of Florida, opening statement.................................. 2
+ Prepared statement........................................... 3
+Hon. Diana DeGette, a Representative in Congress from the State
+ of Colorado, opening statement................................. 5
+ Prepared statement........................................... 6
+Hon. Fred Upton, a Representative in Congress from the State of
+ Michigan, opening statement.................................... 7
+ Prepared statement........................................... 8
+Hon. Joe Barton, a Representative in Congress from the State of
+ Texas, opening statement....................................... 8
+ Prepared statement........................................... 9
+Hon. Cory Gardner, a Representative in Congress from the State of
+ Colorado, opening statement.................................... 10
+ Prepared statement........................................... 11
+Hon. Henry A. Waxman, a Representative in Congress from the State
+ of California, opening statement............................... 12
+ Prepared statement........................................... 13
+Hon. John D. Dingell, a Representative in Congress from the State
+ of Michigan, prepared statement................................ 24
+Hon. Greg Walden, a Representative in Congress from the State of
+ Oregon, prepared statement..................................... 25
+
+ Witnesses
+
+Cass R. Sunstein, Administrator, Office of Information and
+ Regulatory Affairs............................................. 28
+ Prepared statement........................................... 31
+ Answers to submitted questions............................... 113
+
+ Submitted Material
+
+Supplemental memorandum, dated January 26, 2010, submitted by Mr.
+ Waxman......................................................... 15
+``Toward a 21st-Century Regulatory System,'' article dated
+ January 18, 2011, by Barack Obama, Wall Street Journal......... 78
+``The EPA's War on Texas,'' article dated January 4, 2011, Wall
+ Street Journal................................................. 80
+Subcommittee exhibit binder...................................... 82
+``EPA `confident' Obama reg policy won't affect new climate
+ rules,'' article dated January 18, 2011, by Andrew Restuccia,
+ The Hill....................................................... 118
+
+
+ THE VIEWS OF THE ADMINISTRATION ON REGULATORY REFORM
+
+ ----------
+
+
+ WEDNESDAY, JANUARY 26, 2011
+
+ House of Representatives,
+ Committee on Energy and Commerce,
+ Subcommittee on Oversight and Investigations,
+ Washington, D.C.
+ The subcommittee met, pursuant to call, at 10:02 a.m., in
+room 2123 of the Rayburn House Office Building, Hon. Cliff
+Stearns (chairman of the subcommittee) presiding.
+ Members present: Representatives Stearns, Terry, Sullivan,
+Murphy, Burgess, Blackburn, Myrick, Bilbray, Gingrey, Scalise,
+Gardner, Griffith, Barton, McKinley, Upton (ex officio),
+DeGette, Schakowsky, Weiner, Markey, Green, Gonzalez, Dingell,
+and Waxman (ex officio).
+ Staff present: Karen Christian, counsel; Stacy Cline,
+counsel; Todd Harrison, chief counsel; Sean Hayes, counsel;
+Alan Slobodin, deputy chief counsel; Sam Spector, counsel;
+Peter Spencer, professional staff member; Kristin Amerling,
+minority chief counsel; Karen Nelson, minority deputy committee
+staff director, health; Karen Lightfoot, minority
+communications director and senior policy advisor; Greg Dotson,
+minority chief counsel, energy and environment; Alexandra
+Teitz, minority senior counsel; Stacia Cardille, minority
+counsel; Tiffany Benjamin, minority counsel; Anne Tindall,
+minority counsel; Ali Neubauer, minority investigator; Brian
+Cohen, minority senior investigator and policy advisor;
+Jennifer Berenholz, minority chief clerk; Lindsay Vidal,
+minority deputy press secretary; and Mitchell Smiley, special
+assistant.
+ Mr. Stearns. Good morning everybody, and let me welcome
+all of you to the Subcommittee on Oversight and Investigations.
+We appreciate your early attendance, and if possible, we would
+like to start promptly at 10:00. I would also like to point out
+that Chairman Upton has indicated that this will be a very
+active subcommittee. It is a very important subcommittee. I
+think most of us on both sides of the aisle realize that
+Congress, the House of Representatives, has a very important
+role in oversight of the Executive Branch. In this case, there
+are many areas that we can explore both in a way that is
+substantive and at the same time, I think, in a bipartisan way
+to have a better understanding of where there is error, where
+there is complement, and in the long run to give full oversight
+to the Executive Branch according to the Constitution. So I
+welcome this opportunity as chairman of this very important
+subcommittee, and I thank Mr. Upton, our chairman of the Energy
+and Commerce Committee, for this distinct honor to be able to
+be chairman.
+ And of course, on the Democrat side, they have had some
+very illustrious people as Oversight and Investigations
+chairmen, including Mr. Dingell and Mr. Waxman and others, so I
+look forward to this opportunity for the next term and I
+welcome from both sides of the aisle any comments or feedback.
+ Let me open with a little bit of procedure. All members
+will have 5 days to make their opening statements part of the
+record by unanimous consent. Also, we have agreed under our
+procedures that there will be no opening statements except for
+the chairman and the ranking member, Ms. DeGette, and then she
+will allot 5 minutes to her members for another additional 5
+and then I will do the same on this side. So again, I will do
+my 5 minutes, Ms. DeGette will do her 5 minutes, then I have 5
+minutes that I have allocated to members on this side, and then
+you will have the same thing. With that, let me proceed to my
+opening statement.
+
+ OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN
+ CONGRESS FROM THE STATE OF FLORIDA
+
+ We convene this hearing of the Subcommittee on Oversight
+and Investigations today to gather information concerning the
+Administration's views and plans for regulatory reform. Now, we
+can all agree that this is a critically important topic, worthy
+of being the Energy and Commerce Committee's first hearing
+under the new Majority leadership.
+ Over the past 2 years, as the American public confronted
+the worst unemployment crisis in a generation, it
+simultaneously has faced an onslaught of federal regulations,
+with more yet to come. While the growth of the regulatory state
+has been a continuous concern over the past 2 decades, the pace
+in recent years has been breathtaking, given the Nation's dire
+economic situation.
+ According to the OMB data compiled by the Heritage
+Foundation, in fiscal year 2009, which spanned both the Bush
+and Obama Administrations, major rules added $13 billion in new
+costs to the economy. In fiscal year 2010 alone, federal
+agencies promulgated 43 major rules that imposed compliance
+costs estimated by the regulators themselves at almost $27
+billion, the highest annual level since 1981. And we know
+agencies' estimates of costs may often be just the tip of the
+iceberg when it comes to the economic impact on jobs,
+competitiveness and innovation.
+ Now, along with all of these major rules come daunting
+levels of red tape, the costs of which cannot easily be
+counted. The Obama Administration's regulatory agenda released
+this past fall identifies 4,225 rules under development. The
+EPA alone has finalized 928 regulations since the start of this
+Administration, and it has also proposed a number of expensive
+and complex new rules affecting our energy system, our
+industrial and manufacturing infrastructure, and even the
+electric power we rely upon every day.
+ On top of this, new rules related to the expansive new
+health care law and the financial services reforms are
+certainly looming on the horizon, with regulatory impacts on
+many different aspects of our lives. From our health to our
+wealth to the freedom to live our lives the way we want, the
+federal regulatory state continues to grow and intrude.
+ Of course, many regulations, derived from the laws Congress
+enacted, are essential to protect the public health and welfare
+and ensure free markets. While appropriate implementation of
+these laws is essential for these purposes, appropriate
+consideration of the economic and employment impacts of the
+regulations is essential for protecting the Nation's economic
+health and individual freedom. I am concerned that this balance
+has not properly been struck during the apparent rush to
+regulate over the past 2 years.
+ Against this backdrop, we consider today the President's
+new Executive order, initiatives relating to regulatory review
+and his stated focus on reducing the economic burdens of
+regulations and promoting job growth. Now, this focus is to be
+commended. We hope it will lead to meaningful results.
+ To this end, we seek to understand specifically how the
+Administration performs its regulatory reviews and what changes
+we can expect that will reduce the regulatory burden,
+especially in the areas of this Committee's jurisdiction. We
+will hear testimony and ask questions of a single witness
+today: Mr. Cass Sunstein, the current Administrator of the
+Office of Information and Regulatory Affairs, within OMB. Mr.
+Sunstein's office serves as the intersection of the
+Administration's rulemaking review process. In some respects,
+his office serves or can serve as a regulatory traffic cop,
+carefully reviewing significant rules to ensure that they are
+consistent with the law, the President's policies and
+priorities and that they receive appropriate review and
+analysis from other federal offices and agencies. He is
+especially qualified to explain the prospects and limits of the
+Administration's regulatory reform plans.
+ My colleagues, it is important that rhetoric is matched
+with measurable results and actions. For example, after the
+Bush Administration took office in 2001, it made little change
+to the existing regulatory guidance, but it made extensive use
+of the available tools to return rules, ask questions and
+prompt additional review. It took an active role, sending 19
+so-called return letters in the first 2 years of the
+Administration. The present Administration has not even sent
+one return letter. We will gather information about this today.
+ We will also gather information to help us to understand
+the substance of the plans for retrospective regulatory review
+called for by the President. We should seek to understand the
+limits of the review ordered by the President. Rules issued by
+independent agencies like the FCC, the BCFP, CFTC, CPSC, FERC,
+FTC, SEC, FDIC, and the Federal Reserve and the NRC, among
+others, have apparently been placed beyond the purview of the
+President's review, and thus will not be affected by this
+initiative.
+ The information we gather today should help this
+committee's various oversight projects in the coming session of
+Congress. We have much ground to cover.
+ [The prepared statement of Mr. Stearns follows:]
+
+ Prepared Statement of Hon. Cliff Stearns
+
+ We convene this hearing of the Subcommittee on Oversight
+and Investigations today to gather information concerning the
+Administration's views and plans for regulatory reform. We can
+all agree this is a critically important topic, worthy of being
+the Energy and Commerce Committee's first hearing under the new
+Majority leadership.
+ Over the past 2 years, as the American public confronted
+the worst unemployment crisis in a generation, it
+simultaneously has faced an onslaught of federal regulations,
+with more yet to come. While the growth of the regulatory state
+has been a continuous concern over the past 2 decades, the pace
+in recent years has been breathtaking, given the nation's dire
+economic situation.
+ According to the OMB data compiled by the Heritage
+Foundation, in fiscal year 2009, which spanned both the Bush
+and Obama Administrations, major rules added $13 billion in new
+costs to the economy. In fiscal year 2010 alone, federal
+agencies promulgated 43 major rules that imposed compliance
+costs estimated by the regulators themselves at almost $27
+billion, the highest annual level since 1981. And we know
+agency estimates of costs may often be just the tip of the
+iceberg when it comes to the economic impact on jobs,
+competitiveness, and innovation.
+ Along with all of these major rules come daunting levels of
+red tape, the costs of which cannot easily be counted. The
+Obama Administration's regulatory agenda released this past
+fall identifies 4,225 rules under development.
+ The EPA alone has finalized 928 regulations since the start
+of this Administration. And it has also proposed a number of
+expensive and complex new rules affecting our energy system,
+our industrial and manufacturing infrastructure, even the
+electric power we rely upon every day.
+ On top of this, new rules related to the expansive new
+health care law and the financial services reforms are looming
+on the horizon, with regulatory impacts on many different
+aspects of our lives. From our health to our wealth to the
+freedom to live our lives the way we want, the federal
+regulatory state continues to grow and intrude.
+ Of course, many regulations--derived from the laws Congress
+enacted--are essential to protect the public health and welfare
+and ensure free markets. While appropriate implementation of
+the laws is essential for these purposes, appropriate
+consideration of the economic and employment impacts of the
+regulations is essential for protecting the nation's economic
+health and individual freedom. I am concerned that this balance
+has not properly been struck during the apparent rush to
+regulate over the past 2 years.
+ Against this backdrop, we consider today the President's
+new Executive order and initiatives relating to regulatory
+review and his stated focus on reducing the economic burdens of
+regulations and promoting jobs growth. This focus is to be
+commended; we hope it will lead to meaningful results.
+ To this end, we seek to understand specifically how the
+Administration performs its regulatory reviews and what changes
+we can expect that will reduce the regulatory burden,
+especially in the areas of this committee's jurisdiction. We
+will hear testimony and ask questions of a single witness: Mr.
+Cass Sunstein, the current Administrator of the Office of
+Information and Regulatory Affairs (OIRA), within OMB.
+ Mr. Sunstein's office serves at the intersection of the
+Administration's rulemaking review process. In some respects,
+his office serves or can serve as a regulatory traffic cop,
+carefully reviewing significant rules to ensure they are
+consistent with the law, the President's policies and
+priorities, and that they receive appropriate review and
+analysis from other federal offices and agencies. He is
+especially qualified to explain the prospects and limits of the
+Administration's regulatory reform plans.
+ It is important that rhetoric is matched with measurable
+action and results. For example, after the Bush Administration
+took office in 2001, it made little change to the existing
+regulatory guidance, but it made extensive use of the available
+tools to return rules and ask questions and prompt additional
+review. It took an active role--sending 19 so-called return
+letters in the first 2 years of the Administration; the present
+Administration has not even sent one return letter. We will
+gather information about this today.
+ We will also gather information to help us to understand
+the substance of the plans for retrospective regulatory review
+called for by the President. We should seek to understand the
+limits of the review ordered by the President. Rules issued by
+independent agencies--FCC, the BCFP, CFTC, CPSC, FERC, FTC,
+SEC, FDIC, the Federal Reserve, the NRC, among others--have
+apparently been placed beyond the purview of the President's
+review, and thus will not be affected by this initiative.
+ The information we gather today should help this
+Committee's various oversight projects in the coming Session of
+Congress. We have much ground to cover; so let me recognize,
+with pleasure, our new Ranking Member, Ms. DeGette.
+
+ Mr. Stearns. It is my pleasure to recognize our new
+ranking member, Ms. DeGette.
+
+ OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN
+ CONGRESS FROM THE STATE OF COLORADO
+
+ Ms. DeGette. Thank you very much, Mr. Chairman. I am
+excited about the opportunity to serve in the 112th Congress as
+the ranking member of this esteemed committee. As you
+mentioned, Mr. Chairman, this is one of the most effective
+committees in the House, and in my 14 years on this
+subcommittee, it can also be one of the most bipartisan
+committees, and I look forward to working with you and my
+colleagues on both sides of the aisle both on new initiatives
+and also to follow up on some of the key investigations that we
+were working on in the last session of Congress. I also want to
+thank my chairman, Mr. Waxman, and my chairman emeritus, Mr.
+Dingell, for their fine investigative work on this subcommittee
+over the years.
+ Both Democrats and Republicans have supported laws to
+protect the health, environment, financial security, and safety
+of the American people. Today's hearing is about how to ensure
+that the regulatory system that implements these laws functions
+as effectively and efficiently as possible. This is a laudable
+goal that both sides of the aisle should support and which I
+personally support wholeheartedly. I was encouraged by the
+President's announcement last night in the State of the Union
+about his new initiative to streamline and modernize
+government, which is way overdue in many cases.
+ The President's new Executive order on improving regulation
+and regulatory review is an excellent starting point in this
+process. The order is based on such sound principles as the
+regulatory system must be based on the best available science,
+regulations protect public welfare while promoting economic
+growth and job creation should be retained, and the process
+must allow for public participation and open exchange of ideas,
+and the process must take into account both cost and benefits.
+Consistent with this directive, the Obama Administration has
+already identified several regulations that could be refined or
+cut, and I expect that we will hear from our witness today
+about additional areas where we can look at regulations.
+ I commend the Administration for this effort, and I hope
+that we can work together to support cost-effective
+implementation of the laws Congress has enacted to protect the
+American public's health, financial safety and security and
+their personal safety. These sensible safeguards are vitally
+important to the American people.
+ We must recognize, however, that regulations per se are not
+the problem. The mantra that all regulations are inherently bad
+and kill jobs is wrong and dangerous. Just 2-and-a-half years
+ago, for example, our financial system virtually collapsed
+following years of deregulatory efforts by Congress. The
+Securities and Exchange Commission and other federal financial
+regulators sat on the sidelines while flawed and unchecked
+financial practices robbed Americans of their retirement
+savings and caused our economy to nearly collapse. It wasn't
+regulations that caused the financial collapse and the deepest
+economic recession since the Great Depression, it was unbridled
+deregulation.
+ For too long, big polluters have been allowed to dump toxic
+mercury into the air, resulting in birth defects and
+developmental problems for children in affected communities.
+Finally, after years of delay, the Administration is taking
+action to rein in this toxic contamination, and we should all
+support these efforts. Again, it is not regulations that caused
+these problems, it is the lack of regulations.
+ At the direction of the Supreme Court, the EPA has recently
+set standards to cut carbon pollution from cars and trucks.
+This regulation is a win-win. Not only does it cut pollution
+responsible for climate change, it saves 1.8 billion barrels of
+oil, making the Nation more energy-independent and secure and
+saving American families money at the pump.
+ Regulations to protect children from the health effects of
+tobacco and to prevent another salmonella outbreak in eggs or
+other threats to food safety are also important examples of
+where these problems have not been caused by an excess of
+regulations but rather a lack of regulations. So when you
+examine the details of these and other safeguards, you find
+that there is a real need for government action.
+ Now, I look forward to hearing from our witness today
+regarding the implementation of the Obama Administration's
+Executive order on improving regulations and the regulatory
+process. It is a commonsense plan to cut outdated regulations
+and promote transparency. I also look forward to working with
+all members of this subcommittee to examine regulatory reform
+in a sensible way. Thank you, Mr. Chairman.
+ [The prepared statement of Ms. DeGette follows:]
+
+ Prepared Statement of Hon. Diana DeGette
+
+ Both Democrats and Republicans have supported laws to
+protect the health, environment, financial security, and safety
+of the American public. Today's hearing is about how to ensure
+that the regulatory system that implements these laws functions
+as efficiently and as effectively as possible.
+ This is a laudable goal that both sides of the aisle should
+support. The President's new Executive order on improving
+regulation and regulatory review is an excellent starting
+point. The order is based on sound principles such as:
+ The regulatory system must be based on the best
+available science;
+ Regulations protect public welfare while promoting
+economic growth and job creation;
+ The process must allow for public participation
+and the open exchange of ideas; and
+ The process must take into account both costs and
+benefits.
+ Consistent with this directive, the Obama Administration
+has already identified several regulations that could be
+refined or cut.
+ I commend the Administration for this effort. And I hope
+that we can work together to support cost-effective
+implementation of the laws Congress has enacted to protect the
+American people's health, financial security, and safety. These
+sensible safeguards are vitally important to the American
+people.
+ We must recognize, however, how important regulations are
+to our national welfare. The mantra that regulations are
+inherently bad and kill jobs is wrong and dangerous.
+ Just 2-and-a-half years ago, our financial system virtually
+collapsed. Following years of deregulatory efforts by Congress,
+the Securities and Exchange Commission and other federal
+financial regulators sat on the sidelines while flawed and
+unchecked financial practices robbed Americans of their
+retirement savings and caused the our economy to collapse.
+ It wasn't regulations that caused our financial collapse
+and the deepest economic recession since the Great Depression.
+It was unbridled deregulation.
+ For too long, big polluters have been allowed to dump toxic
+mercury into the air--resulting in birth defects and
+developmental problems for children in affected communities.
+Finally--after years of delay--the Administration is taking
+action to rein in this toxic contamination. We should all
+support these efforts.
+ At the direction of the Supreme Court, EPA has recently set
+standards to cut carbon pollution from cars and trucks. This
+regulation is a win-win. Not only does it cut pollution
+responsible for climate change, it saves 1.8 billion barrels of
+oil--making the nation more secure and saving American families
+at the pump.
+ Regulation to protect children from the health effects of
+tobacco and to prevent another salmonella outbreak in eggs or
+other threats to food safety are other important examples of
+where government is on schedule to act and must do so.
+ When you examine the details of these and other safeguards,
+you find that there is a real need for governmental action and
+that action will substantially benefit the public and the
+nation.
+ I look forward to hearing from our witness regarding
+implementation of the Obama Administration's Executive order on
+improving regulations and the regulatory process. This is a
+common sense plan to cut outdated regulations and promote
+transparency. In contrast, the Republican plan to eliminate
+safeguards vital to the welfare of Americans makes absolutely
+no sense at all.
+
+ Mr. Stearns. I thank the gentlelady.
+ And now, according to our procedures, we have 5 minutes on
+this side, and they will be allocated to Mr. Upton, the
+chairman, at 1 minute, Mr. Barton, 2, Mr. Burgess, 1, and Mr.
+Gardner, 1. So the chairman, Mr. Upton, is recognized for 1
+minute.
+ Mr. Upton. Well, thank you, Mr. Chairman, and I would ask
+unanimous consent that my full statement be made part of the
+record.
+ Mr. Stearns. By unanimous consent.
+
+ OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
+ CONGRESS FROM THE STATE OF MICHIGAN
+
+ Mr. Upton. Thank you for your very quick efforts to begin
+work in this 112th Congress. We have a lot to accomplish over
+the next 2 years, and this subcommittee will certainly play a
+key role.
+ Let me begin by welcoming our witness today, Mr. Cass
+Sunstein of the Office of Information and Regulatory Affairs.
+It is fitting that our first hearing is focused squarely on job
+creation and economic consequences of burdensome regulations
+that stifle investment and shift jobs overseas. Our Majority
+has made it clear that jobs are priority number one in this
+Congress. We can create a climate of job growth by cutting
+spending, by limiting the size and scope of government. I have
+asked our committee members to track down burdensome
+regulations that choke investment and destroy jobs, so we will
+identify these regulations, shine a light on them and then seek
+their repeal.
+ I welcome the President's announcement that his
+Administration plans to evaluate regulations to ensure that the
+benefits justify the costs and federal rules are tailored to
+impose the least burden on society, and I would ask again that
+the rest of my statement be made part of the record. I yield
+back.
+ [The prepared statement of Mr. Upton follows:]
+
+ Prepared Statement of Hon. Fred Upton
+
+ Thank you, Mr. Chairman, and thank you for your quick
+efforts to begin the work of the 112th Congress. We have a lot
+to accomplish over the next 2 years, and this Subcommittee will
+play a key role.
+ Let me begin by welcoming today's witness, Mr. Cass
+Sunstein of the Office of Information and Regulatory Affairs.
+Mr. Sunstein is the Administration's point person on regulatory
+issues, which makes him the ideal witness for today's hearing
+on recent changes--announced last week by President Obama--to
+the Administration's regulatory stance.
+ It is fitting that our first hearing is focused squarely on
+job creation and the economic consequences of burdensome
+regulations that stifle investment and shift jobs overseas. Our
+majority has made it clear that jobs are priority number one
+for the 112th Congress. We can create a climate of job growth
+by cutting spending, and by limiting the size and scope of
+government. I have tasked our Committee Members to track down
+burdensome regulations that choke investment and destroy jobs.
+We will identify these regulations, shine a light on them, and
+then seek repeal.
+ I welcome the President's announcement that his
+administration plans to evaluate regulations to ensure the
+benefits justify the cost and federal rules are tailored to
+impose the least burden on society.
+ I also hope today's hearing will shed light on the many
+unanswered questions about the new Executive order. How does it
+differ from practices currently in place? How will the
+administration's regulatory approach change for the thousands
+of pages of forthcoming regulations as a result of legislation
+enacted last year?
+ Last year more than 6,000 pages of regulations were
+released to implement the health care law. Next month, the EPA
+will issue Boiler MACT rules, an earlier version of which were
+estimated by the agency itself to cost thousands of jobs.
+ We will also explore what this Executive order means for
+the litany of other regulatory policies in the pipeline, from
+greenhouse gas standards to government regulation of the
+internet. With 20 consecutive months of near double digit
+unemployment, the public expects, and demands, that we do
+better.
+ Thank you. I yield back.
+
+ Mr. Stearns. The gentleman yields back.
+ The gentleman from Texas is recognized for 2 minutes.
+ Mr. Barton. Mr. Chairman, do you want to go back and
+forth?
+ Mr. Stearns. No, we are going to take our full 5 minutes
+on this side and then she is going to do her 5 minutes.
+ Mr. Barton. OK. I ask unanimous consent that my entire
+statement be put in the record, Mr. Chairman.
+ Mr. Stearns. Consent granted.
+
+ OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN
+ CONGRESS FROM THE STATE OF TEXAS
+
+ Mr. Barton. Let me congratulate you on being the chairman
+of this subcommittee. It is one of the important, if not the
+most important subcommittee of what I consider to be the best
+committee in the House. In a previous majority, I was
+subcommittee chairman of this subcommittee for 4 years and
+enjoyed it immensely. I have worked with numerous other
+subcommittee chairmen in Oversight.
+ The importance of congressional oversight cannot be
+overstated. In my opinion, the last 2 years under Mr. Waxman,
+Subcommittee Chairman Stupak was not aggressive in subjecting
+the Obama Administration to stringent oversight. I am sure you,
+Mr. Chairman, are going to correct that. As chairman emeritus
+of this committee, I stand with Chairman Upton and yourself in
+support of immediate and ongoing oversight of the Obama
+Administration and its practices and policies. Congressional
+oversight, if effective, leads to better functioning of
+government, one that protects the taxpayers by identifying
+excessive government spending, abusive regulatory regimes, and
+discovering ways to decrease spending and stimulate the
+economy.
+ Today we are going to discuss the President's Executive
+order entitled ``Improving Regulation and Regulatory Review.''
+The order instructs federal agencies to develop plans to ensure
+that past, present and new regulations protect the public
+health, safety and welfare, and the environment while at the
+same time promoting economic growth. Who can be opposed to
+that, Mr. Chairman? However, having said that, in the last year
+alone, I have sent three letters calling attention to the lack
+of such analysis. I sent a letter to the White House concerning
+the impact of the Environmental Protection Agency's
+CO2 endangerment finding. I sent another letter to
+the EPA regarding the proposed economic impact of proposed
+ozone standards, and this September I sent a letter to Chairman
+Waxman asking that he schedule a hearing on the
+Administration's decisionmaking and consideration of job
+impacts in connection with a major rulemaking and other
+regulatory initiatives that might adversely affect employment
+in the United States.
+ I see my time has expired, Mr. Chairman, so I am going to
+yield back and ask that the rest of my statement be put in the
+record.
+ [The prepared statement of Mr. Barton follows:]
+
+ Prepared Statement of Hon. Joe Barton
+
+ Thank you Mr. Chairman for holding this important hearing,
+which marks the first oversight hearing of the 112th Congress.
+The importance of congressional oversight of the Executive
+branch cannot be overstated. For the past 2 years, the Obama
+Administration has not been subject to stringent oversight. As
+Chairman Emeritus, I stand with Chairman Upton and Subcommittee
+Chairman Sterns in support of immediate and ongoing oversight
+of the Obama Administration and its practices and policies.
+ Effective oversight leads to a better functioning
+government-one that protects taxpayers by identifying excessive
+government spending and abusive regulatory regimes and
+discovering ways to decrease spending and stimulate the
+economy.
+ Today we are here to discuss President Obama's Executive
+order entitled ``Improving Regulation and Regulatory Review.''
+The order instructs federal agencies to develop plans to ensure
+that past, present, and new regulations protect the public's
+health, welfare, safety, and environment while at the same time
+promoting economic growth and job creation. In theory I agree
+with the President's order. However, for the past two years the
+Obama Administration has pursued an aggressive agenda of
+regulatory expansion. Regulations were passed prior to the
+completion of a meaningful cost-benefit analysis that weighed
+the proposed benefit to the public against the actual cost to
+the economy.
+ Last year alone, I sent three letters calling attention to
+the lack of this analysis. In January, I sent a letter to the
+White House concerning the impact of the Environmental
+Protection Agency's CO2 endangerment finding on
+American jobs. In June, I sent a letter to EPA regarding the
+economic and job impacts of proposed ozone standards. And, in
+September, I sent a letter to then Committee Chairman Waxman
+requesting the Majority schedule a hearing to examine
+Administration decision-making and consideration of job impacts
+in connection with major rule-making and other regulatory
+initiatives that may adversely affect employment in the United
+States. I am glad that the President is finally asking for some
+kind of cost-benefit review and I look forward to our
+discussion on how his Administration plans to do this today.
+ I want the public to know what I stand for. I support
+government regulations that equate to effective protection of
+the public's health and safety. I do not support those that
+suppress innovation and unnecessarily burden small businesses.
+I support government regulations that are based on sound
+science. I do not support those that are based on bureaucrats'
+opinions. And, as long as I serve the American public I will do
+my best to ensure that good governance prevails over lofty
+ideological goals.
+
+ Mr. Stearns. By unanimous consent, will do. I thank the
+gentleman from Texas and recognize Dr. Burgess for 1 minute.
+ Dr. Burgess. Thank you, Mr. Chairman, and I also want to
+welcome our witness here today. An important subject, improving
+the regulatory environment. In our country, in fact, the
+President himself penned an op-ed in the Wall Street Journal on
+January 18th. Quoting from the President, ``Over the past 2
+years the goal of my Administration has been to strike the
+right balance, and today I am signing an Executive order that
+makes clear this is the operating principle of our
+government.'' It is too bad that we didn't have that principle
+2 weeks prior, because in another editorial in the Wall Street
+Journal on January 4th they talked about the EPA violating
+every tenet of administrative procedure to strip Texas of its
+authority to issue air permits that are necessary for large
+power and industrial plants. Going on, the best the EPA could
+offer up as a legal excuse for voiding Texas permitting
+authority last Thursday was that the EPA had erred in
+originally improving the State's implementation plan in 1992.
+The error that escaped the EPA's notice for 18 years was that
+the Texas plan did not address all pollutants. Back then, Texas
+hadn't complied with regulations that didn't exist and wouldn't
+exist for an additional 18 years.
+ I will yield back the balance of my time, Mr. Chairman.
+ I would ask that both of these be made part of the record,
+these reprints from the Wall Street Journal.
+ [The information appears at the conclusion of the hearing.]
+ Mr. Stearns. I thank the gentleman, and I want to welcome
+two freshmen on the Oversight and Investigation Subcommittee:
+Morgan Griffith from Virginia and Cory Gardner from Colorado,
+and at this point allow Mr. Gardner 1 minute.
+ Ms. DeGette. First of all, would the gentleman yield?
+ Mr. Stearns. I would be glad to yield.
+ Ms. DeGette. This is the first I can remember we have had
+two Coloradoans on this committee, and so I also want to
+welcome my neighbor to the north and also our other new
+freshman, but particularly Cory.
+ Mr. Stearns. Good. Mr. Gardner, you have 1 minute.
+ Mr. Gardner. Thank you, Mr. Chairman, and thank you,
+Congresswoman DeGette. Thank you very much for the time to be
+here. Thank you to the witness. And I ask unanimous consent
+that my statement be entered in its entirety in the record.
+ Mr. Stearns. By unanimous consent.
+
+ OPENING STATEMENT OF HON. CORY GARDNER, A REPRESENTATIVE IN
+ CONGRESS FROM THE STATE OF COLORADO
+
+ Mr. Gardner. Thank you. Each day I am in town, my staff or
+I sit down with about five businesses from Colorado, and every
+business that we meet with talks about the concern that they
+have that this Administration is regulating them out of jobs
+and out of business, and those that aren't already being
+regulated out of business are fearful that the proposed rules
+will put them on that path. We exist in an environment where
+government regulation is the answer to all of our problems.
+Congress can't get both the House and the Senate to pass a bill
+so the Administration does it, and they do it without having a
+process through Congress. The people speak through their
+representatives and then the Administration circumvents the
+people's representative. The process must be fixed and it must
+be fixed here.
+ The Executive order is the Administration's attempt to
+clean the regulatory house, so to speak. It is a directive to
+agencies that they must provide a cost-benefit analysis when
+justifying regulations and reduce the burdens on small
+businesses that are forced to comply. The question I have,
+though, is, how do you define benefits and what constitutes a
+burden? The last 2 years have shown that the Administration has
+a very different view of what benefits our economy and our
+working families.
+ So today is the first step that we have to go back to our
+hardworking constituents with the answers that are presented to
+every member here. We need to examine these sweeping federal
+rule changes that have the potential to cripple various sectors
+of our economy and negatively affect every business.
+ I thank you, and I hope we move away from ``when all fails,
+regulate.''
+ [The prepared statement of Mr. Gardner follows:]
+
+ Prepared Statement of Hon. Cory Gardner
+
+ Mr. Chairman, I've been in office for about 3 weeks now.
+Each day I'm in town, I, or my staff, sit down with at least 5
+businesses that operate in and out of Colorado. We have met
+with a cement production company, various municipalities trying
+to find ways to deal with water shortages, mining operations,
+manufacturing companies, and the list goes on.
+ Every business that talks to my office has the same
+complaint: the Administration is regulating them out of jobs
+and out of business. And those that aren't already being
+regulated out of business are fearful that proposed rules will
+put them on that path.
+ We exist in an environment where government regulation is
+the answer to all our problems. Congress can't get both the
+House and the Senate to pass a bill like cap and trade so the
+Administration does it--and they do it behind closed doors
+without having had an open and honest vetting process. What
+kind of democracy is that? The people speak through their
+representatives, and then the administration circumvents the
+people's will. The process must be fixed and it must be fixed
+here.
+ Executive Order 13563 is the Obama Administration's attempt
+to clean the regulatory house, so to speak. It's a directive to
+agencies that they must provide a cost-benefit analysis when
+justifying regulations, and reduce the burdens on small
+businesses that are forced to comply. The question I have is:
+how do you define benefits and what constitutes a burden? The
+last 2 years have shown that the administration has a very
+different view of what benefits our economy, our culture, and
+our working families. I define benefits by protecting the
+environment that has been given to us, providing affordable
+healthcare to those that want it, while at the same time
+keeping Americans at work, and allowing businesses to prosper.
+I define burden as something that will put so much pressure on
+industries that they must let go many of their employees, pay
+fines that put them way behind production, litigate until they
+can't afford it anymore, or worse--shut down entirely.
+ Today is the first step in addressing the concerns of my
+hard-working constituents and those of every member present. We
+need to examine sweeping federal rule changes that have the
+potential to cripple various sectors of our economy and
+negatively affect Colorado businesses.
+ I hope that this new Executive order is an indication that
+the administration believes the same thing, but I am skeptical
+that they are wed to the traditions of the past 2 years: when
+all else fails, regulate. This cannot continue and I look
+forward to hearing the witness's answers to many of our
+questions on how it will assess pending and future regulations.
+ Thank you, Mr. Chairman. I yield back my time.
+
+ Mr. Stearns. I thank the gentleman, and I recognize Ms.
+DeGette.
+ Ms. DeGette. Mr. Chairman, I will recognize our ranking
+member of the full committee, Mr. Waxman, for our additional 5
+minutes.
+
+OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
+ CONGRESS FROM THE STATE OF CALIFORNIA
+
+ Mr. Waxman. Mr. Chairman, I am a strong opponent of
+unnecessary regulations. In my years of service on this
+committee and on the Oversight and Government Reform Committee,
+I led numerous oversight and legislative efforts to promote
+government efficiency and eradicate wasteful spending and
+programs. In fact, in the 1990s, I served on the Advisory
+Committee for the corrections calendar set up by Speaker Newt
+Gingrich to identify outdated and pointless regulations so they
+could be quickly eliminated. I believe eliminating unnecessary
+government regulation is integral to ensuring effective
+government, but this is an area where it is easy to paint with
+too broad a brush. We need to remember that federal regulations
+also play a vital role in growing our economy and protecting
+our health and environment.
+ That is why I am concerned that much of the rhetoric we are
+hearing from the Republican side of the committee is a repeat
+of what happened the last time the Republicans took control of
+Congress. In 1995, the newly elected Republican majority
+conducted an all-out assault on regulations. They told alarming
+anecdotes about the impact of senseless government regulation.
+We were told that the Consumer Product Safety Commission
+required holes in the bottoms of buckets and that OSHA killed
+the tooth fairy by preventing parents from taking home their
+children's baby teeth from the dentist's office. These stories
+share two traits. They sounded compelling and they were simply
+not true. Now we are hearing repeated claims that regulations
+destroy jobs and stymie economic growth, and this is another
+myth.
+ Consider the collapse of the financial markets in 2008.
+This meltdown on Wall Street threw our economy into the deepest
+recession since the 1930s. Millions of Americans lost their
+jobs and it cost U.S. taxpayers billions of dollars to bail out
+AIG and Wall Street banks. The cause wasn't regulation. It was
+the absence of regulation. As Alan Greenspan testified before
+me and other members of the Oversight Committee, he said he
+made a mistake in promoting deregulation. He said he had found
+a flaw looking back over the situation in his free market
+ideology and was in a state of shock and disbelief.
+ The Deepwater Horizon oil spill, which Chairman Stupak held
+hearings on in this subcommittee as well as on food safety as
+well as on automobile problems, that Deepwater Horizon oil
+spill wreaked havoc on the economies of the Gulf States. It was
+caused by too little oversight and regulation, not too much.
+ Members who were on this committee last Congress may
+remember our very first hearing. We brought in the CEOs from
+our Nation's leading manufacturing and energy companies to
+testify. What they told us is that they needed Congress to pass
+comprehensive energy legislation so they could plan and invest
+for the future. Jim Rogers, CEO of Duke Energy, told us: ``It
+is critical we know the rules of the road of climate change as
+soon as possible to make sure that we are making the right
+investments. Regulatory uncertainty is postponing investments
+and is postponing the creation of jobs from apprentices to
+engineers to Ph.Ds.'' Jeffrey Immelt, chairman and CEO of
+General Electric, who last week was asked by President Obama to
+lead the Council on Jobs and Competitiveness, told us:
+``Certainty in the investment world is critical to success and
+what we lack today is certainty. I am a capitalist pure, plain
+and simple, and I just want the system we have today not to be
+untenable over the long term insofar as the science is
+compelling on global warming.'' What these CEOs were telling us
+is that they needed more energy and carbon regulation, not
+less, so they would know the rules and plan and invest for the
+future.
+ Subcommittee Ranking Member DeGette and I circulated a
+memorandum to our Democratic members that provides more detail
+about these examples and others, and Mr. Chairman, I ask
+unanimous consent that this memorandum be included in the
+record to today's hearing.
+ Mr. Stearns. Granted.
+ Mr. Waxman. Thank you.
+ As we commence this new Congress, let us put aside the
+false and hyperbolic claims about regulations killing jobs. By
+all means, let us prune unnecessary regulations where we find
+them but let us also not hesitate to regulate where needed to
+protect our economy and our children's future. There is no
+doubt that anybody would understand if you don't regulate to
+protect the environment, it is going to be at a disadvantage
+for a company to put in pollution control if their competitors
+don't do the same thing. Regulations can make the market work
+better for everybody while at the same time protecting the
+public interest. Yield back my time.
+ [The prepared statement of Mr. Waxman follows:]
+
+ Prepared Statement of Hon. Henry A. Waxman
+
+ Mr. Chairman, I am a strong opponent of unnecessary
+regulations. In my many years of service on the Committee on
+Oversight and Government Reform, I led numerous oversight and
+legislative efforts to promote government efficiency and
+eradicate wasteful spending and programs.
+ In the 1990s, I also served on the Advisory Committee for
+the Corrections Calendar, an initiative established by Speaker
+Newt Gingrich to identify outdated and pointless regulation so
+it could be quickly eliminated.
+ I believe eliminating unnecessary government regulation is
+integral to ensuring effective government.
+ But this is an area where it is easy to paint with too
+broad a brush. We need to remember that federal regulations
+also play a vital role in growing our economy and protecting
+our health and environment.
+ That is why I am concerned that much of the rhetoric we are
+hearing from the Republican side of the Committee is a repeat
+of what happened the last time the Republicans took control of
+Congress.
+ In 1995, the newly elected Republican majority conducted an
+all-out assault on regulations. They told alarming anecdotes
+about the impact of senseless government regulation. We were
+told that the Consumer Product Safety Commission required holes
+in the bottom of buckets and that OSHA killed the tooth fairy
+by preventing parents from taking home their children's baby
+teeth from the dentist.
+ These stories shared two major traits: they sounded
+compelling, but they were simply not true.
+ Now we are hearing repeated claims that regulations destroy
+jobs and stymie economic growth. This is another myth.
+ Consider the collapse of the financial markets in 2008.
+This meltdown on Wall Street threw our economy into the deepest
+recession since the Great Depression. Millions of Americans
+lost their jobs and it cost U.S. taxpayers billions of dollars
+to bail out AIG and Wall Street banks.
+ The cause wasn't regulation; it was the absence of
+regulation. As Alan Greenspan testified before me and other
+members of the Oversight Committee, he had ``made a mistake''
+in promoting deregulation. He said he had ``found a flaw'' in
+his free-market ideology and was in ``a state of shocked
+disbelief.''
+ The Deepwater Horizon oil spill wreaked havoc on the
+economies of Gulf states. It was caused by too little oversight
+and regulation--not too much.
+ Members who were on this committee last Congress may
+remember our first hearing. Like today's hearing, our focus two
+years ago was on how to build a strong economic future for our
+country. We invited nine CEOs from our nation's leading
+manufacturing and energy companies to testify.
+ And what they told us was that they needed Congress to pass
+comprehensive energy legislation so they could plan and invest
+for the future. The told us that sensible, market-based
+regulation of carbon emissions would spur billions of dollars
+in new investments.
+ Here is what Jim Rogers, the CEO of Duke Energy, told us:
+``It is critical we know the rules of the road of climate
+change as soon as possible to make sure that we are making the
+right investments. Regulatory uncertainty is postponing
+investments and [i]t's postponing the creation of jobs from
+apprentices to engineers to Ph.Ds.''
+ Jeffrey Immelt, Chairman and CEO of General Electric, was
+asked last week to lead the President's Council on Jobs and
+Competitiveness. He told us the same thing: ``Certainty in the
+investment world is critical to success. And what we lack today
+is certainty. I am a capitalist, pure, plain, and simple. And I
+just think the system we have today is untenable over the long
+term insofar as the science is so compelling on global
+warming.''
+ What these CEOS were telling us is that they needed more
+energy and carbon regulation--not less--so they would know the
+rules and plan and invest for the future.
+ They understood what Alan Greenspan forgot: regulation is
+often needed to promote jobs and economic prosperity.
+ Subcommittee Ranking Member DeGette and I circulated a
+memorandum to our Democratic members that provides more detail
+about these examples and others. I ask unanimous consent that
+this memorandum be included in the record of today's hearing.
+ As we commence this new Congress, let's put aside the false
+and hyperbolic claims about regulations killing jobs. By all
+means, let's prune unnecessary regulations where we find them.
+But let's also not hesitate to regulate where needed to protect
+our economy and children's future.
+[GRAPHIC] [TIFF OMITTED] 64695.037
+
+[GRAPHIC] [TIFF OMITTED] 64695.038
+
+[GRAPHIC] [TIFF OMITTED] 64695.039
+
+[GRAPHIC] [TIFF OMITTED] 64695.040
+
+[GRAPHIC] [TIFF OMITTED] 64695.041
+
+[GRAPHIC] [TIFF OMITTED] 64695.042
+
+[GRAPHIC] [TIFF OMITTED] 64695.043
+
+[GRAPHIC] [TIFF OMITTED] 64695.044
+
+[GRAPHIC] [TIFF OMITTED] 64695.045
+
+ Mr. Stearns. I thank the distinguished member.
+ I ask unanimous consent that the written opening statements
+of all members who so desire be introduced into the record.
+Without objection, the documents will be entered into the
+record.
+ [Additional statements submitted for the record follow:]
+
+ Prepared Statement of Hon. John D. Dingell
+
+ Thank you, Mr. Chairman.
+ I thank you for holding today's hearing, and look forward
+to hearing from Administrator Sunstein.
+ Today's hearing topic is an important one. Executive
+departments and agencies serve a critical role in our governing
+process, promulgating rules and regulations as required in the
+laws written here by Members of Congress.
+ But our responsibilities as Members of Congress do not end
+when the President places his signature on a piece of
+legislation. I have long held that it is our responsibility as
+Members of Congress to ensure that the regulations and rules
+laid forward as a result of legislation allow for public
+comment, do not adversely impact our state and local
+governments and business community, provide a benefit to
+economic growth--not hinder it--and above all protect the
+public good.
+ I commend President Obama for calling on the departments
+and agencies to reform their regulatory process to increase
+transparency, efficiency, coordination and public
+participation, as well as to ensure that regulations and rules
+protect public health, welfare, safety and our environment,
+while also allowing for economic growth and job creation.
+ I also commend the President for taking into consideration
+the impact regulations have on our small businesses, who serve
+a vital role as engines of job creation in our communities.
+Allowing for regulatory flexibility for small employers,
+assures that small employers can comply with the letter of the
+law without endangering their business.
+ Of some concern to me, is the President's directive for a
+government-wide review of regulations and rules deemed to be
+outdated or ineffective. I agree that we must constantly review
+our programs to determine whether they are working effectively
+or efficiently and to determine where gaps, if any, exist, and
+I believe that this provision will further that goal.
+ However, we must ensure that the public participation
+mandate is heeded to when departments or agencies determine
+certain rules or regulations must be withdrawn or repealed.
+ George Santayana said something which I thought was very
+interesting. He said, ``Those who cannot remember the past are
+condemned to repeat it."
+ We have seen what happens when careful consideration is not
+given to deregulation, most recently in the unholy alliance
+between Wall Street and Bush-era policies that resulted in the
+2008 financial crisis.
+ Moving forward we must strive to ensure that there is a
+balance between our responsibilities as the federal government
+to regulate effectively, while also protecting the good of the
+public.
+ Thank you, and I look forward to hearing from Administrator
+Sunstein.
+ ----------
+
+[GRAPHIC] [TIFF OMITTED] 64695.063
+
+[GRAPHIC] [TIFF OMITTED] 64695.064
+
+[GRAPHIC] [TIFF OMITTED] 64695.065
+
+ Mr. Stearns. Also, I ask unanimous consent that the
+contents of the document binder be introduced into the record.
+Without objection, the documents will be entered.
+ [The information appears at the conclusion of the hearing.]
+ Mr. Stearns. Now, we get to our witness, and let me
+welcome the Administrator, Cass Sunstein, to our witness stand.
+I thought before we move forward I would give you a little
+brief background. I know oftentimes we have the witnesses and
+we don't know a lot about them, but I thought it would be very
+illustrative for all of us to hear a brief summary of his
+resume. Before he became Administrator, Mr. Sunstein was the
+Felix Frankfurter Professor of Law at Harvard Law School. He
+graduated in 1975 from Harvard College and in 1978 from Harvard
+Law School. After graduation, he clerked for Justice Benjamin
+Kaplan of the Massachusetts Supreme Judicial Court and Justice
+Thurgood Marshall of the United States Supreme Court, and then
+he worked as an attorney advisor in the Office of Legal Counsel
+of the U.S. Department of Justice. He was a faculty member at
+the University of Chicago Law School from 1991 to 2008. A
+specialist in administrative law, regulatory policy and
+behavioral economics, he is the author of many articles and
+books. And so Mr. Sunstein, I welcome you to the subcommittee's
+hearing.
+ As you know, the testimony that you are about to give is
+subject to Title 18, section 1001 of the United States Code.
+When holding an investigative hearing, this committee has the
+practice of taking testimony under oath. Do you have any
+objection to testifying under oath?
+ Mr. Sunstein. None at all, Mr. Chairman.
+ Mr. Stearns. All right. The Chair then advises you that
+under the rules of the House and the rules of the committee,
+you are entitled to be advised by counsel. Do you desire to be
+advised by counsel during your testimony today?
+ Mr. Sunstein. I do not.
+ Mr. Stearns. In that case, if you would please rise and
+raise your right hand?
+ [Witness sworn.]
+ Mr. Stearns. We welcome your 5-minute opening statement.
+
+ TESTIMONY OF CASS R. SUNSTEIN, ADMINISTRATOR, OFFICE OF
+ INFORMATION AND REGULATORY AFFAIRS
+
+ Mr. Sunstein. Thank you, Mr. Chairman. Thank you, other
+Mr. Chairman. There are several other Mr. Chairmen. Thanks to
+all of you. I am grateful and greatly honored to have the
+opportunity to appear today to discuss our new Executive
+order--it has a new number, 13563, on improving regulation and
+regulatory review--and also our new Memorandum from the
+President on small business and job creation, and I will have a
+few words to say about that memorandum in a moment.
+ The President has made clear that these documents are meant
+to create foundations for a regulatory system that protects
+public health and welfare while promoting economic growth,
+innovation--a key word in his State of the Union address--
+competitiveness and job creation as several of you have just
+emphasized. The Executive order and the Presidential Memorandum
+require a number of concrete steps to achieve that overriding
+goal.
+ By way of background, let me briefly note that since 1993,
+the process of regulatory review has operated under Executive
+order under 12866 from President Clinton, which builds very
+directly on an Executive order issued by President Reagan in
+1981 called Executive Order 12291. The Clinton Executive order
+sets out a number of principles and requirements that were in
+operation both under President Clinton and President Bush.
+Among other things, it calls for careful consideration of costs
+and benefits, for tailoring regulations to impose the least
+burden on society, and for selecting the approach that
+maximizes net benefits. It also calls for a process of
+interagency review coordinated by the Office of Information and
+Regulatory Affairs. That process has been in place for nearly
+30 years.
+ The new Executive Order 13563 has six provisions that are
+designed to supplement and improve the process. First, it
+reaffirms the basic principles and structures of Executive
+Order 12866. In doing so, it emphasizes a point to which
+several of you have just pointed: the need for predictability
+and certainty. That is right out front in the new Executive
+order. It also emphasizes the importance of using the ``least
+burdensome tools for achieving regulatory ends.'' That is a
+quotation. It emphasizes finally what hadn't been in his
+predecessor Executive orders, the need to ``measure and seek to
+improve the actual results of regulatory requirements.'' That
+is the beginning.
+ Second, the new Executive order calls for public
+participation. It tries to bring rulemaking into the 21st
+century by requiring use of the Internet to promote an open
+exchange of ideas and perspectives. It also directs agencies to
+act before they commence rulemaking to seek the views who are
+likely to be affected, including those would be burdened by
+regulatory requirements. Public participation is front and
+center.
+ Third, and a point that has received considerable attention
+over the last several years, indeed decades, the new Executive
+order asks agencies to try to harmonize, simplify, and
+coordinate rules. It emphasizes that some sectors and
+industries face inconsistent, overlapping and redundant
+requirements. To reduce burdens and costs and to promote
+simplicity, it calls for greater coordination across the
+Federal Government. That is designed explicitly to promote
+innovation.
+ Fourth, the new Executive order asks agencies to consider
+flexible approaches that maintain freedom of choice for the
+public. Approaches that are choice preserving include, for
+example, provision of information rather than foreclosure of
+decisions through mandates and commands. This is more than a
+plea, a direction for flexibility.
+ Fifth, as noted, Executive Order 13563 calls for scientific
+integrity. It directs each agency to ensure the objectivity of
+information on which it relies.
+ Sixth and finally, what has been most publicized in the
+week since the Executive order was signed, it calls for
+retrospective analysis of existing rules. It is concerned about
+rules that may be outmoded, ineffective, or excessively
+burdensome. It directs agencies to produce preliminary plans
+for periodic review of significant rules and to submit them to
+the Office of Information and Regulatory Affairs within 120
+days, a pretty tight time frame. In this way, the Executive
+order is aimed at the stock of existing requirements as well as
+the flow of new requirements. Both are covered by the new
+Executive order.
+ The Presidential Memorandum on Small Business and Job
+Creation emphasizes the essential role that small businesses
+play in the American economy. With job creation in the title
+and economic growth in the body of the memorandum, the
+President has insisted as he wrote in the Wall Street Journal
+on federal agencies doing more to account for and reduce the
+burdens regulations may place on small businesses. To do that,
+he has emphasized of the Regulatory Flexibility Act and
+directed agencies specifically to explain themselves whenever
+in proposed rules or final rules they fail to provide
+flexibilities to small businesses in the form, for example, of
+partial or total exemptions, simplified reporting requirements
+or delayed compliance dates.
+ Taken as a whole, Executive Order 13563 and the new
+Memorandum on Small Business and Job Creation create strong
+foundations for improving regulation and regulatory review. I
+am looking forward to answering your questions.
+ [The prepared statement of Mr. Sunstein follows:]
+ [GRAPHIC] [TIFF OMITTED] 64695.048
+
+ [GRAPHIC] [TIFF OMITTED] 64695.049
+
+ [GRAPHIC] [TIFF OMITTED] 64695.050
+
+ Mr. Stearns. I thank the witness.
+ Let me, before we start, perhaps set the tone here. You saw
+that Mr. Sunstein, we sort of changed the rules here to
+expedite things, and it is important, I think, to stress that
+the members' questions that they are going to ask get a direct
+answer from you. All of us have been in hearings where we just
+have 5 minutes and it is very difficult to get an answer, and I
+think that the questions that are going to be asked of you
+reflect that we are willing to do away with our opening
+statements so we can provide more time for testimony and
+questioning. Therefore, I just ask to make it as productive as
+possible if when you answer the questions you can answer yes or
+no. Some members will ask you these type of questions, and I
+know it is going to be difficult but we ask for your patience
+and forbearance that you would answer yes or no to these
+questions, and I thank you in advance for doing that. And with
+that in mind, let me be the first one to ask you questions.
+ The Obama Executive order was issued but the comments from
+organizations representing all the stakeholders and the job
+creators in this country, a lot are concerned with the Obama
+order: that there were a lot of independent regulatory agencies
+not part of the OIRA review. So my question for you, Mr.
+Sunstein, is, are the regulatory actions of the independent
+regulatory agencies such as the SEC, the FCC, the Federal Trade
+Commission, FERC and others, subject to OIRA regulatory review.
+Are they, yes or no?
+ Mr. Sunstein. No.
+ Mr. Stearns. I am also concerned about what appears to be
+a sort of amorphous type of standards that was articulated by
+the President. This is what is quoted in the Executive order:
+``Where appropriate and permitted by law, each agency may
+consider and discuss values that are difficult or impossible to
+quantify including equity, human dignity, fairness, and
+distributive impacts.'' Now, these are all subjective terms so
+you are going to make a decision on regulatory reform based
+upon human dignity, fairness, and distributive impacts, which I
+assume means distribution of income. Is my interpretation
+correct when you say distributive impacts, yes or no? Does that
+mean distribution of income?
+ Mr. Sunstein. That wasn't our intent.
+ Mr. Stearns. You are saying no. OK. But these standards, I
+mean, just looking at it, any rational cost-benefit analysis is
+going to be tossed out the window instead of saying does this
+economically make sense, what you can quantify. These agencies
+are going to be using these amorphous methods to determine the
+economic value of a regulation, and they are subjective. As you
+know, we are all inherently involved with either ideology or
+political correctness, so I guess the question is, won't these
+standards make it very difficult for any rational cost-benefit
+analysis to be implemented?
+ Mr. Sunstein. That would be a no.
+ Mr. Stearns. OK. By April 2010, the Administration had
+issued 190 economically significant regulations or regulations
+having an economic impact of $100 million or more. Is that
+correct?
+ Mr. Sunstein. I want to double-check that number.
+ Mr. Stearns. Sure. I appreciate that. And by December,
+that number was up to 224.
+ Mr. Sunstein. I want to double-check that number as well.
+ Mr. Stearns. So the number of regulations the
+Administration is issuing, in our humble opinion, is rising,
+not falling. That is just a comment.
+ Mr. Sunstein. No, that is actually not true. The number of
+regulations issued in the last 2 years is about the same or
+slightly lower than the last 2 years of the----
+ Mr. Stearns. OK. And if you could just follow up with the
+information to confirm what I asked you earlier, that would be
+helpful.
+ Mr. Sunstein. Absolutely. That would be yes.
+ Mr. Stearns. OK. Good for you. So in our opinion, these
+numbers represent a new amount of regulations including
+regulations into, I think, new areas such as the FCC regulation
+of the Internet for the first time. Will these regulations that
+have been issued in the last 2 years be subject to review under
+the President's new standard?
+ Mr. Sunstein. Yes.
+ Mr. Stearns. OK. And we expect to see more regulations
+issued by Health and Human Service to comply with the new
+health care law, new financial regulations to comply with the
+Dodd-Frank law, and new regulations from the EPA. Now, will
+these regulations be subject to review by OIRA?
+ Mr. Sunstein. I believe you referred to non-independent
+agencies, and thus the answer is absolutely yes.
+ Mr. Stearns. What we have seen from the Administration in
+the last 2 years is, in our opinion not a full exercise in
+responsibility to review these regulations. Are you aware that
+in the first 2 years of the Bush Administration, the agency
+issued 19 return letters to agencies, letters rejecting
+agencies' regulations while this Administration has issued zero
+return letters in the same period?
+ Mr. Sunstein. I would say yes, I am aware of that. Would
+you like an elaboration?
+ Mr. Stearns. We will keep going here. I think when the
+Democrats have a chance, they are going to give you a chance
+for elaboration.
+ Given that we have seen agencies respond to the Executive
+order by stating that they don't need to make any changes, I
+think this is what really concerns me and seems not to change
+anything in terms of how much control your office will really
+have. I think as a Congress we reach out to bureaucracies and
+lots of times we see these bureaucracies unable to act. Back in
+2003, in your book Risk and Reason, you wrote, ``All in all,
+President Clinton's Executive orders did not seem to have much
+impact. OIRA was largely passive and toothless, serving a
+coordinating function without trying to steer regulation in any
+particular direction.'' That is your quote in your book. The
+President's new policy reaffirms this very Executive order you
+have referred to as toothless and not performing, in our
+opinion. Would you think what you said in your book is
+applicable to what happened under the Obama Administration?
+ Mr. Sunstein. Absolutely not.
+ Mr. Stearns. OK. And let me just ask my last question
+here. Do you see that there in tab #3 in the binder before you
+is the President's Memorandum of January 30, 2009, on
+regulatory review? In it, he directs the director of OMB to
+produce within 100 days a set of recommendations for a new
+Executive order on federal regulatory review. The question I
+have for you is, were the set of recommendations produced
+within 100 days of the President's directive?
+ Mr. Sunstein. Yes.
+ Mr. Stearns. OK. That completes my time, and Ms. DeGette.
+ Mr. Sunstein. Thank you for enabling me to be brief.
+ Mr. Stearns. That completes my questions. Ms. DeGette.
+ Ms. DeGette. Thank you, Mr. Chairman. Opening statement
+might have been a better description. Actually on the Minority
+side, we would like to hear some answers to some of these
+questions, so Mr. Sunstein, I have a series of questions I
+would like to ask you.
+ The first one is, OIRA was created in 1980 to oversee
+certain agencies, correct?
+ Mr. Sunstein. That is correct.
+ Ms. DeGette. And----
+ Mr. Sunstein. By the Paperwork Reduction Act.
+ Ms. DeGette. Yes, and it was created by Congress. Is that
+right?
+ Mr. Sunstein. That is correct.
+ Ms. DeGette. So President Obama and the Administration
+could not in and of themselves change the jurisdiction of
+OIRA--only Congress could do that, right?
+ Mr. Sunstein. That is correct.
+ Ms. DeGette. And all of these agencies that Mr. Stearns
+mentioned that are exempt from the President's Executive order
+are exempt from it because OIRA does not have congressional
+jurisdiction to oversee those agencies, correct?
+ Mr. Sunstein. The basic answer is yes, but if I could
+elaborate slightly, if you would permit?
+ Ms. DeGette. Sure.
+ Mr. Sunstein. Under the Paperwork Reduction Act, OIRA does
+oversee the independent agencies' information-gathering
+requests, and actually we have taken strong steps in the last
+months to try to reduce paperwork burdens on the American
+people, including from the independent agencies.
+ With respect to the applicability of the Executive order,
+what President Obama has done is followed the practice of
+President Reagan, who initiated the application of the
+Executive order to the executive agencies because of legal and
+political concerns about overreaching presidential authority.
+Both President Bushes went along with President Reagan on that
+issue.
+ Ms. DeGette. OK. Thank you.
+ Now, I want to talk for a few minutes about an issue that I
+think we are going to be hearing a lot about in this
+subcommittee, and that is the EPA regulations. The first target
+that I have heard about is large industrial boilers and the EPA
+proposed regulation to limit the emissions of toxic air
+pollution like mercury, lead, and dioxin. Are you familiar with
+that proposed rule, Mr. Sunstein?
+ Mr. Sunstein. Yes.
+ Ms. DeGette. And are you aware that EPA's proposed rule
+would potentially save thousands of lives per year and protect
+children from neurotoxins because the benefits are projected to
+be about 14 times greater than the cost?
+ Mr. Sunstein. I don't have the exact number before me but
+I am aware of numbers in that vicinity in the proposed rule.
+ Ms. DeGette. Did the Administration engage in an open
+regulatory process in working on promulgation of that rule?
+ Mr. Sunstein. Absolutely, and it continues.
+ Ms. DeGette. Yes. In fact, the chairman of this committee
+has said that there were flawed regulatory tactics, so I want
+to talk for a minute about the EPA process that you just
+referred to. After proposing the rule last April, EPA received
+over 4,800 comments on the proposal from stakeholders including
+a large amount of data from industry on the capabilities and
+costs of various pollution-control options. Are you aware of
+that data that the EPA received?
+ Mr. Sunstein. Yes, I am aware of the sheer volume of
+comments.
+ Ms. DeGette. OK. And are you aware, sir, that in
+September, Administrator Jackson of the EPA sent a letter to
+Congress indicating that the EPA was going to give more time to
+look at this because there were so many comments that were
+being received?
+ Mr. Sunstein. Yes.
+ Ms. DeGette. And are you aware that on September 7th last
+year, EPA asked the court for an extension of time to continue
+the process but the extension given by the court was only very
+short?
+ Mr. Sunstein. Yes, 30 days.
+ Ms. DeGette. Thirty days. And are you aware that the EPA
+has suggested that if all the comments cannot be addressed in
+the final rule, the parties may petition the EPA to reconsider
+the rule and the EPA has the authority to stay the rule pending
+the reconsideration? Is that correct?
+ Mr. Sunstein. I remember something very close to that, and
+that may be precisely what the EPA said.
+ Ms. DeGette. OK. Now, do you think that the EPA's efforts
+to respond to the comments on the proposed boiler MACT are in
+line with this Executive order that is the subject of this
+hearing today?
+ Mr. Sunstein. I would say very much that the EPA's careful
+consideration of public comments is in line with section 2 of
+the Executive order.
+ Ms. DeGette. Section 2. OK. Do you think that the EPA's
+request for an extension was in any way an admission of failure
+of the regulatory process?
+ Mr. Sunstein. No.
+ Ms. DeGette. And can you explain why you believe that?
+ Mr. Sunstein. Well, it is perfectly legitimate as some of
+the opening comments have suggested to try to take account of
+public concerns and comments to respond to stakeholder data or
+stakeholder perspectives and sometimes that takes a long time.
+There is a tradeoff between doing things and doing things
+right.
+ Ms. DeGette. And finally, do you think that criticizing
+the EPA's efforts on this rule is consistent with calls for
+greater process and transparency?
+ Mr. Sunstein. What I would say is that greater
+transparency is exceedingly important and the EPA's effort to
+take account of public comment is admirable.
+ Ms. DeGette. Thank you. I yield back.
+ Mr. Stearns. I thank the gentlelady.
+ The chairman of the full committee, Mr. Upton from
+Michigan, is recognized for 5 minutes.
+ Mr. Upton. Well, thank you, Mr. Chairman, and again, I want
+to compliment you on the hearing. As I learned when I was
+chairman of the Oversight and Investigations Subcommittee, we
+are to identify problems and then come back with legislation to
+fix them. I think that what is happening is that we are finding
+a number of agencies that are exempt from OIRA's process, and
+this is something we ought to look into and we ought to come
+back with bipartisan legislation to fix that, give this
+Administration and any future Administration the ability to
+oversee all the regulations that are there. No agency should be
+exempt.
+ I want to compliment the President on his Wall Street
+Journal op-ed from this last week. I think many of us here
+would agree with some of the comments that he made when he
+wrote that we have to have the proper balance. Sometimes these
+rules have gotten out of balance, placing unreasonable burdens
+on business, which has had a chilling effect on growth and
+jobs. We need to promote economic growth. Sometimes regulations
+are not worth the cost, which is just plain dumb. I think a
+number of us welcomed that piece.
+ But I want to go back to the boiler MACT regulations here
+for a moment. EPA, as you know, estimated that the new rules
+would impose new capital costs of $12.6 billion, annual costs
+of over $3 billion. A study by the Council of Industrial Boiler
+Owners concluded that the true economic costs would in fact be
+$113.5 billion. The rules would place some 337,000 or more jobs
+at risk. So as you know, on January 21st, the court rejected
+EPA's request for a 15-month extension to finalize the boiler
+MACT rules and directed EPA to issue final rules by February
+21st. My first question is, when OMB cleared the proposed rules
+last year, did OMB have concerns about the economic impacts
+given the state of the economy, particularly related to the
+numbers that I just cited?
+ Mr. Sunstein. Any rule that imposes significant cost, we
+have significant concerns about.
+ Mr. Upton. Is OMB now working with EPA to make changes to
+bring down the costs and ensure that the final rules will not
+create those risks?
+ Mr. Sunstein. The EPA said in court filings that the rule
+would look significantly different, the final, and we are
+working closely with EPA to try to put it in the best form
+possible, and that work will be undertaken in line with the
+President's Executive order, which calls for careful attention
+to cost.
+ Mr. Upton. So knowing all the comments that have been made,
+all the work that has been done, particularly over this last
+year, the admonition in essence by EPA in December that they
+need 15 more months: do you believe that you can do all that
+work in the next 3 weeks?
+ Mr. Sunstein. It would be premature to say exactly how
+much can be achieved in the next 3 weeks.
+ Mr. Upton. I used to work at OMB so I know how many people
+are there.
+ Mr. Sunstein. I know you did. You know how hard people
+work. What I would say is that engagement with affected
+stakeholders, with you, with members of your staff is most
+welcome in the period we have, that EPA, as the earlier line of
+questioning suggests, is completely alert to the concerns that
+have been expressed about cost. The Administrator has been
+clear on that. And we are going to do the best we can to get it
+right and to keep the costs down, to take account of objections
+and perspectives in the time that remains, and look forward to
+working with you on that.
+ Mr. Upton. Knowing that you have got 3 weeks to go, would
+OMB welcome a congressional delay to give the agency more time
+to do its work on the rule that EPA in essence said will take
+it 15 more months? It is just hard to believe that EPA says
+that it needs 15 more months, the court says no, you are going
+to do it in 30 days, and now you say that we are going to get
+it done in 3 weeks even though your agency initially said it
+would take 15 months?
+ Mr. Sunstein. Our focus, as your question suggests, is on
+implementing the law, taking account of costs and concerns, and
+complying with the court order. That is what we are focusing
+on. With respect to congressional responses, that is not
+exactly my lane. We are going to focus hard on implementation
+and try to get it right.
+ Mr. Upton. Last question: would you like to have more time
+if given an opportunity?
+ Mr. Sunstein. We agreed with the EPA that to get more time
+of the length that the EPA sought was a very reasonable
+request. So the EPA's request to the court, we supported.
+ Mr. Upton. Yield back.
+ Mr. Stearns. Thank you, distinguished Chairman.
+ I recognize Ms. DeGette.
+ Ms. DeGette. Mr. Waxman.
+ Mr. Waxman. Thank you very much, Mr. Chairman.
+ Mr. Sunstein, I appreciate your answers. The question that
+was just being pursued was over the boilers under the Clean Air
+Act. Now, let us not forget the purpose of it. The purpose of
+the regulation is not to cost a lot of money to business which
+might lead them to reduce jobs. The purpose is to reduce
+mercury and lead damage which when it affects our children can
+lead to lack of brain development. Dioxin causes cancer. These
+industrial boilers are the second largest source of mercury
+emissions in our country. So when the EPA has proposed a rule,
+it has to be reviewed in terms of the costs and the benefits,
+and at the same time under your new procedures you are trying
+to fine-tube it to be sure it is the least costly way for
+business to comply. Isn't that correct?
+ Mr. Sunstein. Exactly.
+ Mr. Waxman. Now, I know that no one here would support
+duplicative and pointless regulations, but I worry a lot of
+what we are going to hear the rest of this hearing are not
+those regulations, they are going to single out important
+regulations. Some Republicans are even saying that we shouldn't
+regulate the most abusive and risky Wall Street practices, even
+though those practices ended up nearly driving our economy over
+a cliff. Regulations don't just prevent harm, they can also
+help our economy. And the boiler one was to prevent harm.
+ But there are some regulations that really are important
+for business. One example of that is a carbon pollution
+standard for vehicles issued by the EPA and the National
+Highway Traffic Safety Administration April 2010. I understand
+that these standards improve national security by reducing our
+dependence on oil. They reduce carbon pollution and improve
+public health. They save consumers a lot of money, far more
+than manufacturers will spend building more efficient cars. I
+understand that these rules will save 1.8 billion barrels of
+oil. Is there any other action by this Administration or its
+predecessors that is even in this ballpark in terms of reducing
+our oil dependence?
+ Mr. Sunstein. Offhand, I don't think there is an example
+that is as impressive.
+ Mr. Waxman. So this regulation is to reduce our dependence
+on oil, and in fact, as a result of it, for the first time
+America's oil consumption is flat. Right now even though the
+DOE regularly says that our consumption of oil was going to go
+up, it is not increasing. We are projected to use less oil in
+2020 than in 2007. So if we are concerned about oil exports
+propping up unsavory governments around the world, which is
+certainly the case, then this rule is very good news.
+ Mr. Sunstein, I also understand this rule will reduce U.S.
+greenhouse gas emissions by 960 million metric tons, reducing
+overall greenhouse gas pollution from light-duty vehicles by
+about 20 percent by 2030. How does this compare with other
+actions this or other Administrations have taken to tackle the
+climate issue?
+ Mr. Sunstein. I think this is the prize winner on that
+count as well.
+ Mr. Waxman. So these benefits don't cost the consumer a
+thing. In fact, they save consumers money. The majority of
+consumers will pay less overall for running their cars. On
+average, consumers will save $3,000 over the life of the
+vehicle. You are a nationally acclaimed expert on cost-benefit
+analysis. Are these estimates solid? Will people really be
+better off with these regulations in place?
+ Mr. Sunstein. We don't have any serious question that this
+rule survives cost-benefit balancing.
+ Mr. Waxman. My understanding is that these cost savings
+are based on assumed gas prices ranging from $2.61 per gallon
+in 2012 to $3.60 per gallon in 2030, and we are seeing gas
+prices go up. In fact, if they go up, it will produce even
+greater net benefits of roughly $140 to $190 billion.
+ Now, we talked about the benefits to our national security
+and the environment but the rule also benefits the auto
+industry because it will harmonize State and federal standards
+across the country, and that is why the industry strongly
+supported these regulations. It provided certainty for them,
+clear paths for innovation, and it will make their job better
+as they try to innovate. EPA's contribution to these standards
+produced benefits 30 percent higher if we just had the NHTSA
+portion in place. Any effort to remove the EPA standard or its
+statutory authority would severely undermine the benefits of
+this rule. This is just one example. Overall, the benefits of
+the Clean Air Act vastly outweigh its costs by a ratio of 32 to
+1. Rather than being a drag on the economy, these critical
+regulations improve our lives just as they are intended to do,
+and that is the whole point of having regulations in the first
+place.
+ Thank you very much, Mr. Chairman.
+ Mr. Stearns. I thank the gentleman.
+ The gentleman from Texas is recognized for 5 minutes.
+ Mr. Barton. Thank you, Mr. Chairman. Timing is impeccable.
+I am supposed to be doing a live radio interview right now; we
+planned it very carefully that I can't do that.
+ There has been an explosion of regulation and regulations
+issued in the first years of the Obama Administration. Quite
+frankly, I don't see that your organization has done anything
+to slow that down. I don't see that you have done anything to
+actually do what the existing Executive order says. What gives
+us the confidence to think that this new Executive order is
+going to be any different? Does this Executive order require or
+will your office require agencies to determine the net job gain
+or loss of past, current, or new regulations?
+ Mr. Sunstein. OK. If I may, can I discuss the idea of
+explosion? Actually----
+ Mr. Barton. Well, discuss it very quickly because I have
+only got 3 minutes.
+ Mr. Sunstein. I will be very fast. The number of
+regulations issued in the last 2 years is approximately the
+same as the number of regulations issued in the last 2 years of
+the Bush Administration. The total costs of regulation in the
+last fiscal year are lower than the total costs of regulations
+in the executive agencies in fiscal year 2007.
+ Mr. Barton. Just the regulations issued under the new
+health care law are in the thousands.
+ Mr. Sunstein. The numbers that have been issued in the
+last months are not in the thousands, so in terms of finalized
+economically significant rules, I don't think the data supports
+the claim.
+ Mr. Barton. But what is the answer to the question? Is
+this new Executive order going to require a determination by
+your group, your agency of the net job gain or loss of past,
+current, and new regulations?
+ Mr. Sunstein. We will be focusing very much on job loss as
+a result of regulations. The Executive order----
+ Mr. Barton. So the answer is yes?
+ Mr. Sunstein. Well, there are some technical reasons--
+that----
+ Mr. Barton. So the answer is no?
+ Mr. Sunstein. Well, I am afraid that the answer to this
+one uniquely thus far is neither yes or no.
+ Mr. Barton. Well, that is a very evasive answer, and the
+President is going to give you an A plus for evading a straight
+question.
+ Mr. Sunstein. Well, if I can explain----
+ Mr. Barton. Let me go on because I have only got 2 minutes
+and 39 seconds.
+ You are aware, I am sure you are conversant with the
+endangerment finding that was issued the first 90 days by the
+EPA Administrator?
+ Mr. Sunstein. I am aware of it.
+ Mr. Barton. Are you aware of any cost-benefit analysis
+that went into that endangerment finding?
+ Mr. Sunstein. A scientific finding is not a regulatory
+action so----
+ Mr. Barton. So the answer is, there was none?
+ Mr. Sunstein. There couldn't be at that time. The
+regulatory action that followed the scientific finding was full
+of cost-benefit analysis.
+ Mr. Barton. Do you agree that that endangerment finding if
+actually implemented would cost millions of jobs to the U.S.
+economy and hundreds of billions of dollars?
+ Mr. Sunstein. The endangerment finding by itself costs no
+money and no jobs. It is a scientific finding.
+ Mr. Barton. That is not my question.
+ Mr. Sunstein. If implemented, meaning if followed by
+regulatory action?
+ Mr. Barton. Well, if implemented, if actually put into
+practice.
+ Mr. Sunstein. Well----
+ Mr. Barton. Every independent analysis has said it would
+cost millions of U.S. jobs and hundreds of billions of
+dollars----
+ Mr. Sunstein. What I will tell you is----
+ Mr. Barton [continuing]. Per year.
+ Mr. Sunstein [continuing]. what we and the EPA are
+determined to do and with the new emphasis in the Executive
+order which I am grateful for your enthusiasm for is to try to
+minimize burdens and----
+ Mr. Barton. I have 1 minute and 13 seconds. In Monday's
+Wall Street Journal, an EPA spokesman was quoted as saying that
+President Obama's new Executive order that you are here to
+testify on will not affect the EPA at all. Do you agree or
+disagree with the attestation of the spokesperson at the EPA?
+ Mr. Sunstein. The Executive order will affect all agencies
+to which it applies, including the EPA.
+ Mr. Barton. So you will send a letter to the EPA and
+inform them that they are going to be subject to this order?
+ Mr. Sunstein. It is clear on the face of the Executive
+order that the EPA----
+ Mr. Barton. So the EPA spokesperson just misspoke?
+ Mr. Sunstein. I would like to see exactly what the EPA
+spokesperson said, but it is as clear as day----
+ Mr. Barton. It is clear as day?
+ Mr. Sunstein [continuing]. That the Executive order applies
+to the EPA.
+ Mr. Barton. My last question. Would you support an
+amendment to the Clean Air Act that would require the EPA to do
+a true cost-benefit analysis of any proposed regulation it
+proposes to implement under that Act?
+ Mr. Sunstein. We are in favor of cost-benefit analysis of
+any regulatory action, and that is already required by the
+Executive order.
+ Mr. Barton. So the answer to that is yes?
+ Mr. Sunstein. With respect to legislative action, that is
+not quite my lane. We are in the implementation business. So on
+the general idea of cost-benefit analysis for regulatory
+actions, absolutely.
+ Mr. Barton. Thank you. I yield back.
+ Mr. Stearns. I thank the gentleman.
+ The gentleman from Michigan, Mr. Dingell, is recognized for
+5 minutes.
+ Mr. Dingell. Thank you, Mr. Chairman.
+ I am interested in the last question just raised. Under the
+Clean Air Act, EPA is required to consider first, the health
+implications, and second, the best and the most economic way of
+accomplishing that purpose. Is that right?
+ Mr. Sunstein. It depends on the----
+ Mr. Dingell. Yes or no.
+ Mr. Sunstein. Not quite, no.
+ Mr. Dingell. Oh, yes, quite, because I helped write that
+law.
+ Mr. Sunstein. No. If you need more than a yes or no
+answer, no, that's not correct.
+ Mr. Dingell. What is wrong with it?
+ Mr. Sunstein. Under the National Ambient Air Quality
+Standards, cost is not relevant. It is only a scientific
+interpretation.
+ Mr. Dingell. Dearly beloved friend, I said that the first
+step taken is to comply with the law and address the health
+care questions. The second question that is addressed is to do
+it in the most efficient and economic way. Is that right?
+ Mr. Sunstein. I don't think that is quite right either.
+ Mr. Dingell. I would suggest strongly you go back and take
+a look at it because that is the way we wrote it.
+ Now, let me go into some matters here of concern. OIRA is
+required under the Executive order to submit a preliminary plan
+to review rules and regulations for the purposes of modifying,
+streamlining, expanding, and repealing. Do you believe that 120
+days is sufficient time for the agencies to conduct such a
+review and to prepare an appropriate plan? Yes or no.
+ Mr. Sunstein. Yes.
+ Mr. Dingell. All right. Next question. Will these plans be
+subject to public notice and comment requirements of the
+Administrative Procedure Act?
+ Mr. Sunstein. It is not a rule so no, but we do hope to
+have a high degree of public engagement.
+ Mr. Dingell. Well, the Administrative Procedure Act
+requires these things to be subject to public notice and
+comment, does it not?
+ Mr. Sunstein. No, it does not apply to preliminary plans.
+ Mr. Dingell. All right. Now, will the agencies be required
+to have a public notice and comment period for any rules or
+regulations that are withdrawn or repealed? Yes or no.
+ Mr. Sunstein. Yes.
+ Mr. Dingell. Given the intent to reduce federal non-
+security spending in fiscal year 2008 levels, do you believe
+federal agencies will have the funding necessary to complete
+the required look-back of existing rules and regulations, yes
+or no?
+ Mr. Sunstein. Yes.
+ Mr. Dingell. Do you believe that the agencies have the
+personnel resources necessary to complete the look-back and do
+the other things that they must do? Yes or no.
+ Mr. Sunstein. Yes.
+ Mr. Dingell. Do you anticipate that the regulatory
+reviews, for example, by the Department of Health and Human
+Services will prevent the agency from completing the
+rulemakings required in and hinder the general implementation
+of the Affordable Care Act? Yes or no.
+ Mr. Sunstein. No.
+ Mr. Dingell. Similarly, will regulatory reviews prevent
+the Food and Drug Administration from completing the
+rulemakings required in and hinder general implementation of
+the Food Safety Modernization Act passed by the Congress in the
+last session? Yes or no.
+ Mr. Sunstein. No.
+ Mr. Dingell. Thank you, Mr. Chairman. I have stayed within
+my time.
+ Mr. Stearns. I thank the gentleman from Michigan.
+ Mr. Sullivan is recognized for 5 minutes. We have a vote,
+and we are going to continue on, and then I urge everybody to
+come back. We need just a couple members. So we will adjourn
+after this vote and then come back. We don't have a series of
+votes until 3:00, I believe, so we should be able to get
+through the hearing. I recognize Mr. Sullivan.
+ Mr. Sullivan. Thank you, Mr. Chairman, and thank you, Mr.
+Sunstein, for being here today.
+ The EPA responded to the President's new Executive order
+last week by saying that they were confident it wouldn't need
+to alter a single current pending rule. EPA's statement went on
+to say that in fact EPA's rules consistently yield billions in
+cost savings that make them among the most cost-effective in
+government. Do you agree with the EPA's statement on this new
+Executive order review rule?
+ Mr. Sunstein. The Executive order applies to the EPA. The
+retrospective analysis it requires is new so the EPA will have
+to do something new, and it welcomes that retrospective
+analysis, and the various provisions of the Executive order
+emphatically do apply to the EPA.
+ Mr. Sullivan. So it is yes?
+ Mr. Sunstein. Well, anything involving greenhouse gases or
+air pollution or water pollution, and what I would want to
+emphasize is the provision calling for integration and
+harmonization. So sometimes sectors and industries are faced
+with overlapping and redundant requirements, and EPA I know
+welcomes the opportunity and direction to try to promote
+greater simplicity, reduce burdens, and promote greater
+certainty, a point which has had a lot of emphasis in this
+hearing.
+ Mr. Sullivan. Do you believe that all of the pending
+economically significant rules before the EPA as currently
+drafted will yield taxpayer savings?
+ Mr. Sunstein. I would have to look at them all to make a
+judgment.
+ Mr. Sullivan. Are you involved in that process, though?
+ Mr. Sunstein. We look at them when they come over
+typically to our office so the ones that are in the early
+stages of development where sometimes the EPA won't even decide
+to send the rule over because it needs to do more work. We
+don't typically engage with the agency before they have
+something that they are able to submit to us.
+ Mr. Sullivan. Do you believe that all of the pending rules
+before the EPA as currently drafted will create jobs which we
+need desperately in this country?
+ Mr. Sunstein. It would be--I do not believe that every
+rule that any agency is considering is likely to create jobs.
+ Mr. Sullivan. So your answer is no?
+ Mr. Sunstein. I do not believe that every rule that the
+EPA is considering is likely to create jobs.
+ Mr. Sullivan. Do you disagree with the EPA then, for
+example?
+ Mr. Sunstein. I am reluctant to disagree with newspaper
+accounts of spokespeople, so I would need to see the quotation
+and I would need to see what its accuracy is. It is true that a
+number of EPA rules have benefits well in excess of costs.
+ Mr. Sullivan. And your boss seems to think that too.
+ Mr. Sunstein. Seems to think a number of EPA rules have
+benefits well in excess of cost?
+ Mr. Sullivan. No, that he is concerned about our economy
+and that some of these regulations might hurt jobs.
+ Mr. Sunstein. Oh, we very much--you are exactly right,
+Congressman. That is our focus. That is the focus of this
+Executive order, to make sure that regulations are helpful to
+economic growth.
+ Mr. Sullivan. I hope so.
+ The President's new Executive order says that agencies must
+consider equity, human dignity, fairness, and distributive
+impacts in determining cost-benefit of regulations. I have no
+idea what that actually means in bureaucratic language but say
+for example your cost-benefit test imposed $110 billion in hard
+costs to the economy but supposedly result in a $1 trillion
+increase in human dignity. What does this mean, and please
+explain this to me as I have several companies in my district.
+Mr. Gardner pointed that out. They're scared to death. They
+really are. They bring this up all the time--town hall
+meetings, meetings in my office, chemical companies, Oklahoma
+energy companies, trucking companies. And how do I explain all
+this gobbledy gook and stuff that you talk about? I mean, can
+you break it down on simple terms for me so I can go home to
+Oklahoma and talk about this?
+ Mr. Sunstein. I am extremely grateful for that question
+because it is very important, and I understand the concerns to
+which it might give rise.
+ Mr. Sullivan. There are a lot of concerns.
+ Mr. Sunstein. Let me explain if I may.
+ Mr. Sullivan. It is the most concerning thing to this
+economy and business right now.
+ Mr. Sunstein. I think it ought not to be, and let me
+explain why. The sentence right before the one that refers to
+human dignity says ``quantify in the most accurate way possible
+costs and benefits using the best available techniques.'' That
+is a firmer statement in favor of quantification than any
+American President has made.
+ With respect to equity, here is an example. We have a rule
+that has been proposed that involves children being run over--
+this is an immense tragedy--by their own parents because there
+isn't visibility, they can't see behind in the cars, and we had
+parents begging Congress to have a law that would save hundreds
+of children from being killed in those accidents. This rule,
+which is directly implementing a statute, it is about equity.
+It is about children typically. I have a son myself who is not
+quite 2. The children are typically around that age just
+learning to walk and getting hit. That is about 45 percent of
+those who are hurt in those accidents. That is equity. That
+plays a role.
+ With respect to human dignity, we do not mean this as an
+all-purpose qualifier of cost-benefit analysis, which is the
+foundation of the Executive order. We do mean it as a
+recognition that if you have a regulation or a law that is
+helping people who are wheelchair-bound--often they are
+veterans, by the way--to have access to bathrooms, there is a
+dignitary concern there. It is about human dignity, not just
+about----
+ Mr. Sullivan. I understand that, but someone keeping their
+job is dignity too.
+ Mr. Sunstein. Absolutely, and that is why----
+ Mr. Sullivan. It is a dignified thing to do.
+ Mr. Sunstein. That is why job creation is in the first
+sentence of the Executive order.
+ Mr. Sullivan. Thank you. I yield back.
+ Mr. Stearns. I thank the gentleman. We will temporarily
+put the subcommittee into recess until 11:35, 11:40. Coming up
+on the Democrat side is Mr. Gonzalez and Mr. Green, and then on
+our side would be Burgess and Blackburn. So I urge everybody to
+return.
+ [Recess.]
+ Mr. Stearns. The subcommittee will reconvene, and the
+chairman recognizes Ms. Schakowsky from Illinois for 5 minutes.
+ Ms. Schakowsky. Thank you, Mr. Chairman.
+ I wanted to thank you, Mr. Sunstein, for mentioning the
+requirement now to have some rearward visibility in cars. Along
+with Republican Peter King of New York, that was my legislation
+that would require some rulemaking, and I am very grateful for
+the lives that will be saved and injuries that will be
+prevented because of the regulation.
+ I am wondering, one way to judge, I suppose, how we are
+doing with regulation is just to count the numbers, but I think
+another way would be to look at what are the net benefits of
+those regulations, and I am wondering if you could describe
+that and perhaps even compare that to prior Administrations.
+ Mr. Sunstein. Thank you for that question. In the first
+year of the Clinton Administration, the net benefits of final
+regulations were minus $400 million. In the first year of the
+Bush Administration, the net benefits of regulations were minus
+$300 million. In our first year, 2009, the net benefits of
+regulations were plus $3.1 billion, and it is going to look a
+lot better for 2010. So our net benefits are way ahead of our
+predecessor Administrations.
+ In terms of human realities behind the numbers, which your
+question points to, the rear visibility rule, which hasn't been
+finalized yet but it has been proposed, will save hundreds of
+lives or serious injuries, a plurality of which occur to
+children. We have a rule involving salmonella and eggs which
+will prevent 79,000 diseases, protect Americans a number of
+whom would die without the rule. We have rules involving
+stopping distance for trucks so they don't crash into people,
+so they stop more quickly. This will save hundreds of lives. So
+we are looking very carefully at the cost side, but as your
+question suggests, it is sometimes worth incurring a cost if
+you can save significant lives, prevent injuries, prevent
+diseases and illnesses.
+ Ms. Schakowsky. I would also like you to describe the
+process. Clearly, OIRA doesn't always agree with regulations
+that are proposed, and again, there are a number of ways to
+measure that but I am wondering if you could describe your
+process and what the effect has been when you don't agree with
+regulations that have been proposed.
+ Mr. Sunstein. Thank you for that question. The OIRA
+process which has been built up really since President Reagan
+and has had bipartisan approval involves agencies' submission
+of rules, proposed or final, to the Office of Information and
+Regulatory Affairs and then we coordinate a process of
+interagency analysis. So different parts of the government with
+different perspectives and expertise will weigh in on the
+proposed rule, and we have a period when the proposed rule is
+with the Office of Information and Regulatory Affairs when we
+are available to members of the public including stakeholders,
+including Congressional staffs, who can come over to us and
+frequently do to weigh in on rules.
+ There was a reference to the return letter and the absence
+of one from the Obama Administration thus far. That is a
+nuclear option, and if you look at the practice under the Bush
+Administration and the Clinton Administration and the Bush
+Administration before, the return letter is a very rarely used
+tool. I think the median number in the Bush Administration
+certainly in its last 5 or 6 years was one or two for thousands
+of rules. What more typically happens is a collaborative
+process by which the agency responds to the concerns expressed
+in the review process, and in our Administration, 75 percent of
+the time, three-quarters of the time the rule has been
+concluded on, meaning approved, consistent with change, meaning
+in the overwhelming majority of cases when the rule is
+concluded on, it has been altered, not necessarily by the
+Office of Information and Regulatory Affairs, but as a result
+of the process, typically by the agency itself which sees maybe
+there is a less burdensome way to do it, maybe we can cut costs
+this way, maybe this will have less of an adverse potential
+effect on jobs. Also, agencies not infrequently withdraw their
+rules when they conclude on the basis of what they have heard
+that it is not appropriate to go forward, and the withdrawal is
+a much more collaborative and constructive approach than the
+return letter, and I am sure previous OIRA administrators would
+agree with that. We have had at last count 99 rules that were
+submitted to the Office of Information and Regulatory Affairs
+withdrawn.
+ Ms. Schakowsky. So the record of this collaborative effect
+is to actually get rid of some potential rules and to
+significantly change a number of them?
+ Mr. Sunstein. Absolutely.
+ Ms. Schakowsky. In the very few seconds I have left, let
+me just associate myself with the President's remarks yesterday
+that he would not hesitate to enforce commonsense safeguards to
+protect the American people. That is what we have done in this
+country for more then a century, and I think that is the way we
+should go forward. So I thank you very much.
+ Mr. Stearns. I thank the gentlelady.
+ The gentlelady from Tennessee, Ms. Blackburn, is
+recognized.
+ Ms. Blackburn. Thank you, Mr. Chairman. I appreciate that,
+and I thank our witness for being here. I do have about three
+questions that I want to move through as quickly as possible.
+ We have discussed these orders that have been given, and
+one is entitled Regulatory Flexibility, Small Business, and Job
+Creation. In it, the President states that his Administration
+is, and I am quoting, ``firmly committed to eliminating
+excessive and unjustified burdens on small businesses.'' Now,
+this is important to me because small business is our main
+employer in Tennessee. So as the President states in his memo,
+isn't it true that eliminating burdens on small business is the
+purpose of the Regulatory Flexibility Act?
+ Mr. Sunstein. Absolutely correct.
+ Ms. Blackburn. OK. Under this Act, if any agency's
+proposed regulation will have a--quoting from the Act--
+``significant economic impact on a substantial number of small
+entities'' an agency must conduct a regulatory flexibility
+analysis, correct?
+ Mr. Sunstein. That is correct.
+ Ms. Blackburn. But isn't it true that in the vast majority
+of cases, the agency does not end up performing that analysis
+because it determines that its own regulation will not have a
+significant impact on small businesses?
+ Mr. Sunstein. That is correct, with the qualification that
+the agency's determination to that effect is subject to a
+public and internal scrutiny including from the Office of
+Advocacy, which is an important partner in the regulatory
+process.
+ Ms. Blackburn. Well, I would point out to you also that a
+GAO report showed that 89 percent of its rules were certified
+as not having a significant impact. This is from the time
+period from 1994 to 1999. So the EPA was doing the analysis
+only 10 percent of the time. So do you have any current data on
+how often agencies are making this determination and therefore
+avoiding the requirement to fulfill that regulatory flexibility
+analysis?
+ Mr. Sunstein. I don't have a number offhand but we can----
+ Ms. Blackburn. Would you submit for the record?
+ Mr. Sunstein. Absolutely.
+ Ms. Blackburn. OK. Also in the memo regarding small
+business, it directs agencies to give, quoting, ``serious
+consideration to reducing burdens on small businesses only in
+those cases where the agency is conducting a regulatory
+flexibility analysis,'' correct?
+ Mr. Sunstein. That is correct.
+ Ms. Blackburn. But since these agencies rarely do it, it
+sounds like this memorandum won't really have much impact on
+small businesses. Do you agree with that?
+ Mr. Sunstein. No, that I don't agree with, and you can
+just see in the last week two rules from the Occupational
+Safety and Health Administration have been withdrawn in order
+to engage with small business.
+ Ms. Blackburn. Do you make the determination that
+withdrawing those has a potential impact on small businesses'
+ability to conduct business?
+ Mr. Sunstein. I don't personally make a determination that
+the withdrawal will have a positive impact but the Department
+of Labor----
+ Ms. Blackburn. But, sir, you are our witness today.
+ Second question that I'd like to go to with you. One of the
+protections for small business found in current law is the
+Small Business Regulatory Enforcement Act, and under that Act,
+EPA and OSHA must notify the SBA before publishing the
+regulatory flexibility analysis for a proposed rule so that an
+advocacy panel, which you just mentioned, can be convened to
+review it and provide feedback on its impact on small business.
+Recently, the new governor of Tennessee, Bill Haslam, issued a
+45-day freeze on all new regulations and rules as part of a
+top-to-bottom review to fully understand new burdens being
+placed on businesses in our State. Regulatory reviews like the
+one that Tennessee is undergoing are important because States
+and small businesses are concerned that agencies are ignoring
+their feedback and the feedback that comes from the advocacy
+panel. I do think this is a problem that you all have and needs
+to be addressed. Here is an example. The EPA did not follow the
+recommendation of the advisory panel with respect to the boiler
+MACT rule, instead issuing a standard that many small
+businesses feel and have spoken out on that it is impossible to
+satisfy regardless of the cost. So who reviews the agency's
+decision with respect to how it considers the panel's advice?
+Does OIRA do that? What is the role here?
+ Mr. Sunstein. We participate in that. There is a group, we
+participate in that, and you can be confident given the recent
+Presidential Memorandum and Executive order, and not just that,
+but concrete actions in the recent past that the concerns of
+small business will be very much taken into account.
+ Ms. Blackburn. Your consideration of it, do you consider
+it to be objective or subjective?
+ Mr. Sunstein. Consideration of the significant impact on a
+substantial number?
+ Ms. Blackburn. Yes.
+ Mr. Sunstein. To the best of our ability, that is an
+objective determination.
+ Ms. Blackburn. I have other questions. I will submit them
+to you in writing and ask for your timely response in writing.
+ Mr. Sunstein. You will have that.
+ Ms. Blackburn. Thank you, sir. Yield back.
+ Mr. Stearns. Mr. Green is next. Mr. Green, you are
+recognized for 5 minutes.
+ Mr. Green. Thank you, Mr. Chairman.
+ Mr. Sunstein, some of the regulations that raise the most
+ire of my Republican colleagues are regulations that are
+designed to implement the new health care reform law. In fact,
+you have to have regulations to implement a law typically. I am
+trying to think of an example that you don't. But Republicans
+have voted to repeal the entire law but a close look at these
+regulations shows that they will make insurance better and less
+expensive for patients for companies that provide workers with
+their insurance. On November 22, 2010, the Obama Administration
+issued a regulation implementing the medical loss ratio
+provision of the Affordable Care Act. This regulation will make
+the insurance marketplace more transparent and make it easier
+for consumers to purchase plans that provide better value for
+their money. The guts of the regulation require that insurance
+companies provide more value for their premium dollar by
+actually spending your health insurance costs on health care.
+Such a novel issue for a health care company, I think, and to
+have a regulation that actually requires that, and not inflated
+administrative costs or excessive executive salaries. Mr.
+Sunstein, do you think that these rules would establish greater
+transparency and accountability for insurers, that they will
+guarantee Americans receive more value for their premium dollar
+and they will even give more Americans a rebate of some of
+their insurance premiums? Now, again, without the regulations
+that law would not be effective. Is that correct?
+ Mr. Sunstein. That's correct.
+ Mr. Green. These all seem like they are good people who
+need health insurance. Isn't there a good example of
+regulations helping consumers, for example? Another regulation
+put in effect as a result of the health care reform law is the
+so-called grandfathering clause. This rule protects the ability
+of individuals and businesses to keep their current plan. It
+provides important consumer protections that give Americans
+rather than insurance companies control over their own health
+care. And it provides stability and flexibility to insurers and
+businesses that offer insurance coverage as the Nation
+transitions into a more competitive marketplace in 2014.
+ My question is, let me ask you about this rule. Isn't there
+a good example of regulations helping consumers and providing
+certainty for businesses?
+ Mr. Sunstein. Absolutely that is a good example.
+ Mr. Green. Can you give us any insight here where there
+have been so many attacks on commonsense regulations that help
+consumers? Again, this is something that we have it in the law,
+and if the Administration didn't promulgate the regulations, I
+think you would not be doing your job.
+ Mr. Sunstein. Well, we have a rule that has been issued
+that is going to help consumers make choices about tires by
+giving information--it is not a mandate, it is not very
+expensive--about safety, fuel economy and durability, and that
+is part of consumer protection providing information so that
+people can make their own choices.
+ Mr. Green. There are rules, and these are good examples of
+how regulations can actually help the American public and our
+constituents. They give Americans better value for their health
+insurance dollar and give businesses certainty about the
+insurance that they are paying for for their employees. It
+would seem like we should be cheering those kind of regulations
+instead of saying no, we want to abolish them. Now, we can take
+votes up here and you are not involved in that, but if you are
+not promulgating the regulations, again, the Administration
+would not be doing their job, and that is true whether it is
+President Obama, President Bush, President Clinton, or all the
+way back to President Reagan that promulgated regulations that
+was the intent of the law. Is that correct?
+ Mr. Sunstein. Yes. Our first obligation is to respect the
+law.
+ Mr. Green. Thank you.
+ Mr. Chairman, I have no other questions but I would be glad
+to yield my 1 minute left to our ranking member.
+ Ms. DeGette. Thank you for yielding.
+ Let me just follow up on a couple of questions or maybe
+one. Mr. Sunstein, you were asked earlier about the direction
+in the Executive order to consider values that are difficult to
+quantify like human dignity. Can you elaborate for about 40
+seconds on the intent of this direction?
+ Mr. Sunstein. Yes. The idea is to recognize that under the
+law as the previous question suggested, human dignity is
+sometimes something that agencies are supposed to consider.
+Just this week, the Department of Justice issued a rule
+involving rape, and in the analysis of the rule the agency paid
+careful attention to monetizable costs and benefits. That is
+very important, but it recognized that the act of rape involves
+an assault to human dignity and it is not reducible just to
+numbers.
+ Ms. DeGette. Thank you.
+ Mr. Stearns. Dr. Burgess is recognized for 5 minutes.
+ Dr. Burgess. Thank you, Mr. Chairman.
+ Mr. Sunstein, we were all grateful when the President
+signed an extension of the sustainable growth rate law in
+December, but I think as we all recognize, access for our
+seniors to physicians of their choice is being adversely
+affected by what we know of as the sustainable growth rate
+formula, the formula by which Medicare pays physicians. Now, is
+it the President's intention to follow through on his promise
+that this formula abnormality be fixed in this 13-month time
+interval that we have given ourselves?
+ Mr. Sunstein. I greatly appreciate the questions. It is a
+bit out of my domain as OIRA Administrator but----
+ Dr. Burgess. You do work in Office of Management and
+Budget, correct?
+ Mr. Sunstein. I do.
+ Dr. Burgess. Is it likely to be in the President's budget
+request to Congress that there is some type of relief on the
+sustainable growth rate formula?
+ Mr. Sunstein. I would have to defer to the director of the
+Office of Management and Budget lacking clarity on the right
+answer to that one.
+ Dr. Burgess. Do you have a sense whether it is the
+President's commitment to follow through on this?
+ Mr. Sunstein. My belief is that anything the President has
+made a commitment to, he is likely to follow through on.
+ Dr. Burgess. Well, as you know, I mean, the price tag for
+this varies depending on who you talk to, but you get figures
+from $200 billion to nearly $400 billion over the 10-year
+budgetary cycle. Do you have an idea, a sense as to what
+programs the President is looking at cutting or replacing in
+order to come up with this figure?
+ Mr. Sunstein. Actually on the budgetary side, there is an
+army of people who are working and that is not a side that the
+Office of Information and Regulatory Affairs works with at that
+level of detail. So in particular budgetary requests, we are
+respecting the workload of others.
+ Dr. Burgess. Perhaps we can get that information from
+another source. But I do want you to understand that the
+Administration has made a commitment on this and America's
+doctors are looking to the Administration to fulfill that
+commitment.
+ On the issue of regulations, there was an entirely new
+federal agency that sprang up like mushrooms after a spring
+rain after the health care law was signed, and this was the
+Office of Consumer Information and Insurance Oversight. I
+talked to some of the people who were at the head of that
+agency in the fall and they could not identify for me where the
+authorization language existed in the Patient Protection
+Affordable Care Act for that new federal agency. I asked if
+there were not other areas of HHS that might do this same
+activity, and they said oh, no, this is an entirely new
+activity that we will be undertaking. Never before has the
+Federal Government regulated private insurance on a national
+level. That has always been left up to the States. So in this
+new climate of regulatory reform, is this a good idea to be
+going in this direction?
+ Mr. Sunstein. As I say, the lane of the Office of
+Information and Regulatory Affairs is relatively narrow so
+issue of organization within HHS or DHS or others----
+ Dr. Burgess. Let me interrupt you. Never mind that,
+because they actually have reorganized since we started asking
+questions and it is now in a different part of HHS, but just
+overall, if we are looking at a new climate of perhaps easing
+some of the regulatory burden, your words, not mine, is it a
+good idea to be instituting an entirely new federal agency that
+will perform this function?
+ Mr. Sunstein. What I would say in the spirit of the
+Executive order just signed is that any decision with respect
+to regulation should be connected with the principles that the
+President has laid out, and that includes structural decisions.
+ Dr. Burgess. Well, of course, it would have been helpful
+if we could have had those individuals in front of us for an
+oversight hearing during the fall. We were not permitted to do
+that. I suspect we will be now under Chairman Stearns'
+leadership. But again, in the interest of this new climate of
+regulatory reform, it seems like this is something where your
+office should take a direct interest. I mean, we are told, for
+example, that you can't sell insurance policies over State
+lines because that has always been a State regulated function
+and yet this individual is telling me that for the first time
+there is now going to be a national regulation of private
+insurance that has never existed in this country before. If
+that is OK, then maybe it is OK that we sell insurance across
+State lines, that that may be a logical follow-on that perhaps
+we should explore. But from the regulatory side, I do hope that
+your agency will take at least some passing interest and have
+some curiosity into this new agency that has been set up and
+now been absorbed into CMS but it is still there. The purpose
+is still there.
+ Mr. Sunstein. I appreciate it.
+ Mr. Stearns. I thank the gentleman.
+ Mr. Weiner from New York is recognized.
+ Mr. Weiner. Thank you. Let me begin by congratulating you,
+Mr. Chairman, on this hearing. You are showing you are running
+a very efficient, quick hearing, so quick in fact that it is
+uncontaminated by actual testimony from the witness in most
+cases.
+ We are learning a little bit about this Congress, which is
+that we have lurched so quickly into a very successful campaign
+by my Republican friends that all of the slogans are just being
+transplanted. We are having committee hearings and we are
+starting to see the slogans don't really hold up. For all this
+talk about excessive regulation, the first thing that Mr. Issa,
+a chairman of another committee, says is, hey, guys, tell us if
+there are any regulations you don't like because we don't know
+any. We hear my colleagues, particularly some of my freshmen
+colleagues, talk about how small businesses always tell me
+about regulations and how bad things are. Well, let us take a
+look at the record. The record is that the Dow Jones has had a
+better year than they have had any time in the last 12 years,
+that we have now businesses sitting on over $1 trillion of cash
+that they have done pretty well with, that we have now created
+more private-sector jobs in 2 years of Obama than 8 years of
+President Bush. So this whole idea of, my goodness, the
+crushing regulations, and then the first exchange between
+Chairman Stearns and Mr. Sunstein was interesting. He asked a
+question or postulated something. Mr. Sunstein rebutted it and
+then he returned and said well, let us assume I am right. Well,
+OK, we can do that, or we can actually listen to the evidence.
+There are no more regulations in these 2 years than there have
+been in the past 2 years.
+ But let me just ask, perhaps to put into context, this idea
+of regulation. No one likes bad regulations but regulation to
+try the price on it is kind of a hard thing to do. For example,
+when there was this big effort on the part of financial
+services companies to change the capital requirements to allow
+them to keep less capital, have more debt on their books, they
+said that this regulation was costing us an enormous amount of
+money. Well, I am curious. How do you calculate the cost of
+easing that regulation? Well, you have to count the TARP fund,
+750-some-odd billion dollars, but how do you count the pain
+that it causes some person who did nothing wrong, whose home is
+not foreclosed, who is not underwater but lives on a block now
+with five foreclosed homes because capital requirements weren't
+lived up to? How do you count that? Let us assume each house is
+a $200,000 house. You can say well, there is the $200,000 home
+that is foreclosed on but how do you assess the value to the
+community that has lost the tax base? How do you assess the
+value of that homeowner who did nothing wrong, who took out no
+extra loans but now whose property value has plummeted 75
+percent? How do you say to the rest of the economy that small
+business guy that because the bank has gone under because that
+requirement has been eased, now he can't get a loan?
+ The fact is, ladies and gentlemen, that these regulations
+are in place and they seem so onerous and burdensome sometimes
+but what they are intended to do is stop real damage to our
+economy. The very same Wall Street people who advocated for the
+lessening of the net capital rule are the ones who are now
+unemployed. They thought they were doing a great, smart thing,
+advocating to loosen that rule. We did it, and now their
+company, Bear Stearns, doesn't exist. Now, would you rather
+have a small regulation and have a beautiful company that is
+employing lots of people and giving loans or get rid of that
+burdensome, onerous regulation that requires this silly thing
+like they keep enough money in their bank before they start
+giving loans? Would you rather have a regulation that says all
+hospitals have to have electronic recordkeeping so they can
+share information or do you want to try to figure out the cost
+that it is when someone is given the wrong drug and goes into
+seizure? Yes, it may cost a little bit more money to have these
+regulations in place, but if you are really going to do the
+mathematic calculation that Mr. Stearns alluded to and others
+have alluded to, how exactly do you do that? I think it would
+be helpful, Mr. Chairman, for us to have a hearing on exactly
+how it is you assess these costs. Let us see how much the cost
+is on having a lead in toys regulation. Let us see. How do you
+figure out the cost of brain cancer in a 6-year-old as opposed
+to a 3-year-old? Huh. Let us put that in a ledger and see how
+that works out. But the regulation is so burdensome and
+onerous. Well, to that family, that is the difference between
+their child having a lifetime illness and not, you know what?
+That regulation seems OK. Maybe it is not so bad for a toy
+company to have to not put lead in their toys.
+ So if we are really going to do the math, I think we should
+have a hearing here perhaps when Mr. Sunstein can come back. He
+clearly has a lot he wants to get off his chest, and I am not
+giving him much opportunity here either, but let us really see
+what that ledger looks like and let us be honest about it. Let
+us get past the campaign rhetoric.
+ Mr. Stearns. Ms. Myrick is recognized for 5 minutes.
+ Mrs. Myrick. Thank you, Mr. Chairman.
+ I wanted to go back to the NHTSA rulemaking, and I am going
+to ask you to submit some of this for the record because I have
+got another question and I will be out of time, so I appreciate
+it.
+ The proposed rulemaking that does say, rear visibility
+system and then cameras inside the car, etc., supposedly what I
+have been told is that the accidents that did happen were in
+large trucks and SUVs and vans, bigger vehicles, where the rule
+says it has to go in every car, and my question on the cost-
+benefit analysis again, believe me, I don't want children to
+lose their lives and there is nothing more unimaginable than
+losing a child, and if we can save millions of lives, I support
+saving millions of lives. But when you look at the change that
+the Administration says they want to do in the rulemaking and
+try and put cost-benefit analysis into it, the NHTSA's own
+modeling that they use says that it isn't cost beneficial to do
+it.
+ And then the other question is, if you do put this across
+the board to all the cars, does it raise the price of the cars
+to a point where people can't buy them and then you have still
+got accidents because they don't have availability? So for the
+sake of time, if you would be willing to answer that for me to
+submit for the record, and then also, did you have consultation
+with NHTSA before this happened, I mean, before the proposed
+rulemaking on the----
+ Mr. Sunstein. Yes.
+ Mrs. Myrick [continuing]. Cost benefit?
+ Mr. Sunstein. Always with rules, we review the proposed
+rules before they go out.
+ Mrs. Myrick. Thank you. My next question is on billion-
+dollar costs to the economy on rulemaking. I know you were
+asked by Speaker Boehner and some other House members last year
+to tell them how many billion-dollar rules the Administration
+is preparing, and they didn't receive any answers to my
+knowledge, which has caused a lot of uncertainty in the
+business community. I know Mr. Weiner says everybody is doing
+wonderful but the reason they have got that cash setting aside
+is because they are afraid to invest it, not knowing what
+regulations are going to come down the pike. So, do you have an
+answer today? Can you tell us how many billion-dollar rules
+that you are planning?
+ Mr. Sunstein. I can tell you how many billion dollars we
+have done, and it is a very small number. Planning, as our
+discussion suggests thus far, requires the process of
+interagency review, public review, cost reduction, so the
+number of rules that are planned in any strong sense that cost
+over $1 billion is very hard to specify. Often they are rules
+that are under discussion but they weren't really planned and
+they might come in like a lion and go out like a lamb.
+ Mrs. Myrick. But perhaps we can get back with you on that
+later after a couple months or so.
+ Mr. Sunstein. Yes.
+ Mrs. Myrick. The other thing that I wanted to ask is, when
+you look back on the regulations that have been issued during
+the Administration, can you identify any in which it has been
+determined that the benefits have not justified the cost? Do
+you have that kind of analysis that you could share with us?
+ Mr. Sunstein. Yes. There is only one big one that comes to
+mind. It is called Positive Train Control, and it is a
+statutory requirement, and the Department of Transportation had
+to issue it as a matter of law even though the monetizable
+benefits are lower than the monetizable costs. There aren't a
+lot like that.
+ Mrs. Myrick. Would you be willing to submit again for the
+record?
+ Mr. Sunstein. Unquestionably.
+ Mrs. Myrick. I would appreciate a full answer and
+explanation on that particular situation.
+ With that, I yield back the rest of my time, Mr. Chairman.
+ Mr. Stearns. I thank the gentlelady.
+ The gentleman from Massachusetts, Mr. Markey, is
+recognized.
+ Mr. Markey. Thank you, Mr. Chairman, very much.
+ So we all know what the reality of this hearing is. The
+Republicans hope that they can use the Regulatory Flexibility
+Act to turn the United States into a health, environment,
+safety, and consumer protection regulation-free zone, and the
+presumption is that regulation is bad. But obviously that is
+not necessarily the case. For example, we have heard a lot
+about how EPA's efforts to regulate global warming pollution
+will lead to an economic catastrophe but this is just not borne
+out by the facts.
+ Before the Obama Administration's global warming
+regulations for cars and SUVs were announced in 2009, the auto
+industry in this country was literally in the tank before the
+regulations were in fact promulgated. More than 300,000 jobs
+lost, two American companies in bankruptcy and consumers no
+longer willing to buy the gas-guzzlers that the domestic
+automakers had bet the bank on. And what has happened since the
+regulations were announced? Well, in 2010 auto sales went into
+overdrive and soared more than 11 percent, snapping the
+industry out of its 4-year decline. Companies were rehiring
+thousands of workers, and there has been a proliferation of new
+companies that plan to make and market electric vehicles and
+other advanced vehicles. So this Groundhog Day recitation of
+how regulations will destroy the economy and jobs has already
+been shown to be flat-out wrong.
+ So I have some questions about EPA's future global warming
+regulations that perhaps you could help me with, Mr. Sunstein.
+Will regulations that seek to limit global warming pollution
+from power plants or refineries also take into account the
+increase in jobs that could result from the development and
+installation of new clean energy technologies?
+ Mr. Sunstein. Yes.
+ Mr. Markey. Yes. Isn't it true that regulations to curb
+dangerous air pollutants could result in quantifiable cost
+savings in the form of medical expenses that won't be incurred
+or environmental damages that won't need to be mitigated?
+ Mr. Sunstein. Yes.
+ Mr. Markey. Installing pollution control technologies on
+power plants could also lead to increases in the efficiency of
+the facilities and significant cost savings for companies. Will
+you be quantifying these and other benefits as part of any
+regulatory analysis?
+ Mr. Sunstein. These are not multiple-choice questions, and
+the answer is yes.
+ Mr. Markey. Thank you. The EPA recently announced that it
+would only issue its proposal to regulate global warming
+pollution from refineries and power plants after meeting with
+business leaders and other stakeholders to solicit their input.
+Is this consistent with the President's Executive order
+requiring agencies to seek the views of those who might be
+impacted by regulations before proposing them?
+ Mr. Sunstein. Under section 2, absolutely.
+ Mr. Markey. EPA has also issued a rule that ensures that
+millions of smaller sources of global warming pollution are
+exempted from a requirement to obtain Clean Air Act permits and
+that the requirements for medium and larger emitters would be
+phased in over a period of several years. Is this consistent
+with the President's requirement that regulations take the
+special needs of small businesses into account?
+ Mr. Sunstein. Yes.
+ Mr. Markey. Are EPA's actions also consistent with the
+President's Executive order requiring agencies to promulgate
+regulations that impose the least burden on society and
+maximizing the net benefits to society?
+ Mr. Sunstein. That was the goal of the PSD tailoring rule.
+ Mr. Markey. Thank you. EPA recently proposed a rule to
+regulate air emissions from cement kilns. In its analysis, EPA
+found that the health benefits of the rule would yield between
+$17 and $18 for every $1 in cost. Do you think that this sort
+of return on a regulatory investment is a good one?
+ Mr. Sunstein. It sounds like it would be a very good
+investment.
+ Mr. Markey. Historically speaking, have industries
+typically overestimated the costs of new regulations?
+ Mr. Sunstein. That is frequently the case.
+ Mr. Markey. Now, for the cement kiln rule, EPA didn't even
+consider the benefits of reducing emissions of hazardous
+substances like lead, chromium or arsenic. Historically
+speaking, have agencies typically underestimated the benefits
+of new regulations?
+ Mr. Sunstein. Often they have. We need to be very
+systematic and not answer the question typically.
+ Mr. Markey. I thank you for that precision in your answer,
+but I think the larger point is true, that our lives are longer
+and safer and better because of a regulatory scheme that began
+to be put in place in 1900. Average age of death in the United
+States in 1900 was 48 years of age. These regulations that have
+gone on the books from the Garden of Eden until 1900, 48 years
+of age, now it's 79 years of age, 31 bonus years. Something
+happened in the last 100 years and we exported it around the
+world that we got all those extra years, and a lot of it is
+protecting the health, the safety, the environment and ensuring
+that those regulations are there to protect everyone, not just
+the wealthy, which is what the first 5,000 years of humanity
+was really focused on.
+ I thank the gentleman.
+ Mr. Stearns. I thank the gentleman. The gentleman is very
+active and interested in baseball, and in this case he has
+offered Mr. Sunstein a lot of softball questions.
+ Dr. Gingrey for 5 minutes.
+ Dr. Gingrey. Thank you, Mr. Chairman.
+ Mr. Sunstein, obviously it would appear on the Democratic
+side of the aisle that all regulations and regulatory regimes
+are good and they are suggesting that on our side of the aisle
+they are all bad when obviously it is somewhere in between, and
+really the purpose of this hearing and your testimony, we want
+to glean the truth because clearly some regulatory rules are
+bad, and in regard to the issue of human dignity and consumer
+protection, let me reference last year the Administration
+included an end-of-life Medicare payment rate for physician
+services in its final rule at literally the last minute without
+allowing for a period of public comment. Only after a large
+public outcry did the Administration own up to its actions and
+indeed reversed itself.
+ Section 1 of the President's recent Executive order states
+that our regulatory system, and I quote, ``must allow for
+public participation and an open exchange of ideas.'' I want a
+yes or no answer. In your opinion, did the Administration allow
+for public participation in the crafting of this regulation as
+spelled out in section 1 of the Executive order? Yes or no.
+ Mr. Sunstein. As the repeal of the original rule suggests,
+the judgment of HHS was that there had not been an adequate
+opportunity for public comment.
+ Dr. Gingrey. So the answer is no?
+ Mr. Sunstein. Yes.
+ Dr. Gingrey. Thank you. Another yes or no question. Do you
+or OMB know who in the Administration made that decision to not
+allow public participation, instead slipped this regulation
+into the rule in the dark of night? Yes or no?
+ Mr. Sunstein. I don't personally know.
+ Dr. Gingrey. OK. Another yes or no. Do you know which
+individuals within the Administration would have the authority
+to slip a regulation into a final rule in the dark of night
+without allowing for this public comment?
+ Mr. Sunstein. I don't think anyone has that authority.
+ Dr. Gingrey. So the answer is?
+ Mr. Sunstein. No, I don't know. There are people--the
+Secretary of HHS has considerable authority over her rules and
+she does not slip things in in the dark of night.
+ Dr. Gingrey. Well, it certainly does appear that the
+Administration purposely avoided obtaining Congressional
+approval for an unpopular regulation that they could not sell
+to the American people last Congress. So instead, the measure
+was inserted into this morass of regulations in the hope that
+no one would notice. Do you believe that the American people
+deserve to know why they were not allowed to publicly view this
+regulation before the Administration published it? Yes or no.
+ Mr. Sunstein. I think the American people deserve to see
+the content of rules before they are finalized.
+ Dr. Gingrey. So the answer is yes. Thank you. Again, would
+this recent Executive Order 13563 prevent the Administration
+from enforcing a regulation without allowing public
+participation in the future?
+ Mr. Sunstein. That is correct.
+ Dr. Gingrey. Can you assure us here today, Mr. Sunstein,
+that this Administration will not attempt such an illegal end
+run in the future? Yes or no.
+ Mr. Sunstein. Yes.
+ Dr. Gingrey. Thank you. And finally--and I will yield back
+some time, Mr. Chairman.
+ Mr. Stearns. I thank the gentleman.
+ Dr. Gingrey. If the witness would answer this last
+question? Would you agree this shows how regulations can make
+unpopular actions possible without Congress having to support
+political risky positions? Yes or no.
+ Mr. Sunstein. Well, if I have to answer yes or no, I would
+answer yes to that one.
+ Dr. Gingrey. Thank you. You have been a great witness, and
+I will yield back to the chairman.
+ Mr. Stearns. I thank the gentleman, and now we will move
+on to Mr. Scalise, who is recognized for 5 minutes.
+ Mr. Scalise. Thank you, Mr. Chairman, and Mr. Sunstein, I
+appreciate you coming before the committee.
+ I want to start asking about regulations regarding oil and
+gas drilling operations, and I think you touched on some of
+that but does OMB actually go and review the rules from the
+Department of the Interior concerning oil and gas regulations?
+ Mr. Sunstein. If they are significant regulatory actions,
+yes. So it depends on their nature but some of them, the answer
+is yes.
+ Mr. Scalise. OK, some of them. When the Department of the
+Interior came out with the moratorium on drilling, did you
+review that?
+ Mr. Sunstein. No, that wasn't a regulatory action within
+the meaning of Executive Order 12866 so we did not review the
+moratorium.
+ Mr. Scalise. At least that is your feeling that it wasn't?
+ Mr. Sunstein. No, it is just, it doesn't fit easily within
+the definition of a significant regulatory action.
+ Mr. Scalise. Why would you not think that would be
+significant, the President literally shutting down an entire
+industry?
+ Mr. Sunstein. OK, I----
+ Mr. Scalise. And which cost billions of dollars.
+ Mr. Sunstein. I completely understand appreciate the
+question. The answer is somewhat technical, which is the
+foundation for authority is rules within the meaning of the
+Administrative Procedure Act. A moratorium isn't a rule within
+the meaning of the Administrative Procedure Act. We do extend
+review somewhat beyond that significant----
+ Mr. Scalise. When you look at--I will just bring you back
+to President Clinton's Executive Order 12866, which is still in
+effect and part of your department's purview. If it has an
+annual effect on the economy of $100 million or more or more
+adversely affects in a material way, I mean, we are talking
+about a major policy decision that had an impact on well over
+$100 million and in fact is one of the reasons that we are
+seeing the price of oil approach $100 a barrel. Would you
+consider that first of all a major economic impact of $100 or
+more?
+ Mr. Sunstein. Yes, though the ``it'' which is the
+reference is to regulatory actions, as I mentioned, and that is
+a term of art under the Executive order. The moratorium didn't
+quite fit under that.
+ Mr. Scalise. And I would reference you to also go back and
+look at the federal judge's ruling, who felt that the
+Department did go outside of their purview----
+ Mr. Sunstein. That is correct.
+ Mr. Scalise [continuing]. In issuing that, and I would be
+curious to see what your relationship with those reviews was,
+and I would be surprised if you didn't feel that it was
+something that your department should have had review over. As
+it relates to the current regulatory scheme, are you in review
+of those rules?
+ Mr. Sunstein. Yes. Anything that counts as a rule under
+the Administrative Procedure Act, absolutely, significant
+guidance documents and interpretative statements under March
+2009 memorandum by the director of OMB, we review this also.
+ Mr. Scalise. Is it true that the Department did not
+perform a regulatory flexibility analysis regarding its impact
+on small businesses?
+ Mr. Sunstein. I don't recall the answer to that one. What
+are----
+ Mr. Scalise. I will help you. This is from OMB. This is an
+OMB document that actually says that the oil and gas operations
+on the Outer Continental Shelf, the actions that they took did
+not require--according to your office, did not require--
+flexibility analysis.
+ Mr. Sunstein. Are you referring to the moratorium or are
+you referring to a rule?
+ Mr. Scalise. Their increased safety measures, as they
+referred to them.
+ Mr. Sunstein. Oh, OK. Well, if it is a rule, then there
+has to be an analysis to that effect, and my recollection is
+that the small business impacts were not significant enough to
+require that analysis.
+ Mr. Scalise. And who is that based on?
+ Mr. Sunstein. That is based in the first instance under
+the Regulatory Flexibility Act on the judgment of the relevant
+department.
+ Mr. Scalise. So you just take their word for it if they
+say it won't have $100 million impact? Clearly, and I will just
+run you off some numbers that the White House has actually
+confirmed. It has cost up to 12,000 jobs that our economy has
+lost because of that action. It has cost about 12 percent of
+our current U.S. oil production and about $70 billion of
+investment which there have been a number of private research
+that has been done to show that, $70 billion, so you just took
+their word that it wouldn't cost over $100 million?
+ Mr. Sunstein. OK. If you are referring to the moratorium,
+as I say, that was not subject to our review under our
+Executive order. If you are referring to some rules that we
+have had----
+ Mr. Scalise. The overall rules.
+ Mr. Sunstein. Well, the moratorium is distinct from the
+rules. I don't believe, though I might be wrong on this, that
+the rules are anticipated to have significant adverse job
+impacts. One of them is----
+ Mr. Scalise. Well, it already has. I mean, that has been
+documented by the White House, so when you come out with
+flexibility analysis, and you determine or you take their word
+that they don't need to do one under the law----
+ Mr. Sunstein. No. I said in the first instance, which is a
+very important qualification, we do not take their word as
+authoritative and we engage with the Office of Advocacy and the
+Small Business Administration very carefully.
+ Mr. Scalise. And I would like to get any kind of
+documentation, e-mails, correspondence that you had with them
+in relation to these rules and the determination not to do a
+flexibility analysis by your department because that was a
+ruling that your department----
+ Mr. Sunstein. I believe you are referring, though I am not
+sure, to the moratorium, which, as I say, we didn't review. If
+you are referring to the rules, then we did review at least
+two----
+ Mr. Scalise. And did you review----
+ Mr. Sunstein [continuing]. With full analysis of costs and
+benefits.
+ Mr. Scalise. Did you review the 30-day safety report that
+the President's own scientific commission--because one of your
+challenges or your tasks is to base this on science, and his
+scientists actually said it would reduce safety in the Gulf.
+The scientists said it would reduce safety in the Gulf to
+impose the moratorium. That was in the 30-day safety report
+that came out.
+ Mr. Sunstein. The 30-day safety report isn't a regulatory
+action subject to formal OIRA review.
+ Mr. Scalise. Right. But it was doctored by, from every
+report we have gotten from the climate czar, who is
+conveniently leaving, but that document was doctored to imply
+that the scientists said that the science backed it up when in
+fact the scientists said it actually would reduce safety to
+impose that, and that is what the Department of the Interior
+used as the basis. So do you look at any underlying documents?
+If a department says we are going to make a rule and we are
+going to base it on underlying documents, do you look at those
+underlying documents?
+ Mr. Sunstein. I was about to say I am very grateful that
+is not a yes or no question, but it ended up being a yes or no
+question. If it is not a regulatory action, then we don't have
+formal review though there may be some participation by some of
+OIRA's staff. Our lane is the lane of regulatory action with
+central feature being rules. Reports of that sort, we may have
+some informal----
+ Mr. Scalise. And I know I am out of time, but the
+regulatory actions are costing jobs in the thousands right now.
+ Mr. Sunstein. That is----
+ Mr. Scalise. That is something we will have to follow up
+on.
+ Mr. Sunstein. That is so appreciated, and at the core of
+the small business memorandum and the Executive order is
+insistent focus on job creation.
+ Mr. Scalise. Thank you, Mr. Chairman. I yield back.
+ Mr. Stearns. Mr. Scalise asked for some documents. I think
+you might provide him, at his request, with some of those
+documents.
+ Mr. Gardner is recognized for 5 minutes.
+ Mr. Gardner. Thank you, Mr. Chairman, and thank you, Mr.
+Sunstein, again for your testimony before this committee.
+ I just want to talk a little bit about how something is
+reviewed under these Executive orders and hoping to have you
+help me understand what takes place. Could you explain briefly
+how your office would review a regulation under Executive Order
+12866 and what are the key components of your review?
+ Mr. Sunstein. OK. Thank you for that. What we would do
+first is explore with other agencies which are going to see the
+rule whether the requirement of consideration of alternatives
+has been met, whether the agency has done a careful analysis of
+costs and benefits, whether the agency has justified its
+reasoned determination that the benefits justify the cost,
+whether the agency has shown that there is a compelling reason
+for federal action, whether the agency has considered reliance
+on the market, reliance on State authority, as some of the
+earlier questions suggested----
+ Mr. Gardner. So it is safe to say that there are basically
+three core components where you identify and assess available
+alternatives to direct regulation dealing with alternative
+forms of regulation and of course getting to impose the least
+burden on society including individuals and businesses?
+ Mr. Sunstein. Yes, and we recently issued a checklist that
+basically puts in a page-and-a-half our essential inquiries.
+ Mr. Gardner. So if you take a real-world example of the
+EPA and greenhouse gas regulations, how did your office use
+those requirements when carrying out that rule review?
+ Mr. Sunstein. Well, the most costly of the greenhouse gas
+rules is the one that there is considerable enthusiasm for,
+which is the fuel economy rule, and what we did for that one
+was to investigate the costs of the rule, the benefits of the
+rule, to think of what alternatives there are in terms of
+stringency, to consider what kind of flexibilities might be
+provided for small business and others, to ensure that there
+was full public participation so that people could comment on
+the options, and to try to come up with the approach that
+maximizes net benefits.
+ Mr. Gardner. And 12866 also says that the underlying
+analysis of costs and benefits of potentially effective and
+reasonably feasible alternatives to the planned regulation
+identified by the agencies or the public, it goes on to say,
+and an explanation why the planned regulatory action is
+preferable to the identified potential alternatives. Did the
+EPA provide and did you review an analysis of the reasonably
+feasible alternatives----
+ Mr. Sunstein. Yes.
+ Mr. Gardner [continuing]. For the endangerment finding and
+the subsequent greenhouse gas regulations?
+ Mr. Sunstein. Yes. That is laid out in great detail in the
+regulatory impact analysis and it is also in the preamble to
+the rule.
+ Mr. Gardner. And what alternatives then did the EPA
+provide to you?
+ Mr. Sunstein. The EPA and NHTSA discussed different levels
+of stringency and explained that a more stringent approach
+would run into serious concerns about feasibility and cost.
+ Mr. Gardner. And that was your evaluation of each as well?
+ Mr. Sunstein. We concurred with the evaluation. We thought
+it was a very reasonable evaluation.
+ Mr. Gardner. The testimony that we have heard today from
+members of the committee as well as our colleagues on the other
+side of the aisle seemed to, as the gentleman from Georgia
+stated, be an extreme left to the right. What am I supposed to
+tell my constituents when it comes to those who come to me and
+say these regulations are costing me jobs? I mean, are they
+wrong? Are they wrong that this is costing them jobs? Do they
+not know what they are talking about?
+ Mr. Sunstein. Well, we need to know what regulation it is,
+but I think the first thing you should say to them, as
+reflected in your opening remarks, is that there are two sets
+of concerns. One is about fear of what is coming and the other
+is trouble caused by what is there. On fear of what is coming,
+you have a very strong signal from the President of the United
+States with respect to small business in particular, and that
+is a document----
+ Mr. Gardner. So they are just fearful?
+ Mr. Sunstein. Well, that is not all. I am using your
+words. And that is a legitimate fear that regulation can be
+harmful. So you asked what should you say to your constituents.
+I think you can say that both your subcommittee is on this
+issue and the President of the United States and the
+Administrator of the Office of Information and Regulatory
+Affairs share this concern, and with respect to fear of what is
+coming, we want to work directly with you to make sure things
+are going right rather than wrong.
+ Mr. Gardner. So will you then make the commitment----
+ Mr. Sunstein. Let me say with respect to the current
+regulations, I am very glad you introduced that because the
+president has called for a look-back at existing regulations
+that cause trouble, and you can find things in the very recent
+past where agencies actually have looked back, including the
+EPA----
+ Mr. Gardner. Who triggers the look-back? Who does that?
+ Mr. Sunstein. The look-back is a process that the Office
+of Information and Regulatory Affairs is helping to coordinate.
+ Mr. Gardner. So you will request the look-back of the
+agency?
+ Mr. Sunstein. Well, the President has requested the look-
+back.
+ Mr. Gardner. But you will request to the regulatory agency
+what rule to review?
+ Mr. Sunstein. They have to submit plans to us within 120
+days, and we will work closely with them to figure out what
+the----
+ Mr. Gardner. But looking back, you will request those
+rules that are already in effect?
+ Mr. Sunstein. We will be participants in the process of
+figuring out what to look back on. I hope you will be a
+participant also.
+ Mr. Gardner. Will you make a commitment today then during
+this time of economic crisis that you will use your power to
+make sure that the Administration doesn't put its stamp of
+approval on any regulation that costs American jobs?
+ Mr. Sunstein. Well, what I would say if there is----
+ Mr. Gardner. That can be a yes or no question pretty
+easily.
+ Mr. Sunstein. A yes answer would be preposterous. If there
+is a regulation that is saving 10,000 lives and costing one
+job, it is worth it. But what I would make a commitment to do
+is to focus every day on job creation and the urgent need, as
+the President emphasized last night, to square everything we
+are doing with the overriding imperative of promoting
+competitiveness, economic growth, and helping people get good
+jobs.
+ Mr. Gardner. Thank you, Mr. Chairman.
+ Mr. Stearns. I thank the gentleman.
+ I recognize Mr. Griffith.
+ Mr. Griffith. Thank you, Mr. Chairman.
+ If I might follow up on that question and ask you, are you
+all taking a look at the--when you are looking at that job
+loss, are you taking a look at the benefit not only in this
+country but the cost of sending those jobs overseas? I mean,
+one of the things that we worry about in my district when
+people are talking about regulations, is this product is going
+to be made and sold in the United States, the question is
+whether or not it is made in the United States or whether or
+not it is made in China or some other country where they don't
+have these regulations, and so when you are looking at this, my
+question to you is, are you looking at what other nations are
+doing? Because if we having a small benefit but we are sending
+the job overseas and we are still going to get the product but
+now instead of having the jobs we have gotten a small benefit
+and no jobs, and do you all take that into account when you are
+looking at these regulations, and particularly the EPA?
+ Mr. Sunstein. Yes. We had in our 2010 report to you all,
+our annual report to Congress, a detailed discussion of the
+risk of job loss from regulations that might send jobs
+overseas, and we continue to be very focused on that risk.
+ Mr. Griffith. Well, I understand that, but are you
+marrying the two concepts? OK, we are worried about sending
+jobs overseas but are you also looking at what is the net
+benefit to the United States and then are we looking at what is
+the net benefit in the world environment? Because if the
+benefit is, is that we are going to clean up the air a little
+bit but we are sending all the jobs to China where they won't
+even have the regulations we currently have, aren't we in
+effect, if we aren't marrying those two, so question number one
+of this would be, are we marrying them, and number two is, are
+we in effect making the environment of the world worse in many
+ways if we send these jobs offshore where they won't follow the
+same rules that we have?
+ Mr. Sunstein. That is a great question. It is a fabulous
+question, and it has been raised in the context of some rules
+where it may be that the environment, the world environment is
+actually worse off as a result of what we do. Our basic source
+of what we should consider and lay out is legal requirements,
+so it may be that some of the environmental harms done
+elsewhere in the world aren't really legally relevant. They are
+not part of the statutory apparatus under which we are
+operating. And thank you for letting me elaborate a bit on
+this, but if you had asked me a yes or no question, I would
+have said with slight embarrassment because it is too simple,
+but I would have said yes.
+ Mr. Griffith. And let me ask this because it has just been
+troubling me, and you have heard these questions before from
+some of the other members about the EPA. Its spokesman has said
+that they don't think that this will affect them, in essence,
+and you have made it very clear that yes, the President's
+Executive order does apply and that you all are looking at
+those regulations as well but clearly somehow they got the word
+they didn't. Do you know whether or not there was a private
+``get out of jail free'' card or a wink and a nod that would
+say that they don't have to--we are going to come look but
+don't worry, everything is going to be OK?
+ Mr. Sunstein. I am confident there was no wink or nod or
+side conversation.
+ Mr. Griffith. All right. I yield the rest of my time back,
+Mr. Chairman.
+ Mr. Stearns. I thank the gentleman.
+ Mr. Terry is recognized for 5 minutes.
+ Mr. Terry. Thank you, Mr. Chairman, and I appreciate you
+being here today. It has been helpful.
+ First of all, I want to comment on a couple of things from
+three of my colleagues on the other side. Do you believe that
+this side of the aisle are regulatory anarchists and want toxic
+materials thrown into rivers and----
+ Mr. Sunstein. If I may say, I think the questions--it is
+an honor to talk with any of you about these things, and the
+questions have been excellent and you deserve an answer, so I
+see no evidence of----
+ Mr. Terry. And you have done well in that area. Let me
+follow up one question from Mr. Markey. Do you think banning
+all use of fossil fuels would yield positive health for human
+beings?
+ Mr. Sunstein. All things considered, no.
+ Mr. Terry. What do you mean by, all things considered? I
+mean, would it be healthier for our people if there were no
+fossil fuels used?
+ Mr. Sunstein. On one dimension, it would be healthier
+because the pollution would go down but the economic hardship
+would be unhealthy.
+ Mr. Terry. And balance is the issue here, so we can't deal
+in extremes is my point.
+ Mr. Sunstein. That is right.
+ Mr. Terry. Cost-benefit analysis is appropriate. And the
+President's Executive Order 13563 includes a cost-benefit
+analysis, correct?
+ Mr. Sunstein. Yes.
+ Mr. Terry. And you testified at the beginning that his
+Executive order does not apply to independent agencies?
+ Mr. Sunstein. That is correct. Following President
+Reagan's lead, really----
+ Mr. Terry. Well, yes, it doesn't. So the FCC--I am vice
+chairman of Communications and Technology, so my focus is with
+the FCC. So the Executive order does not apply to the FCC?
+ Mr. Sunstein. It does not.
+ Mr. Terry. And----
+ Mr. Sunstein. In the small business memorandum, the
+President requests that the independent agencies comply with
+the----
+ Mr. Terry. And has the FCC said they will comply to that
+order?
+ Mr. Sunstein. We have not heard.
+ Mr. Terry. OK. And in that regard, we have talked about,
+or you mentioned that the Executive order would help the
+Administration reach that cost-benefit analysis where you weigh
+both sides, so do you feel as you sit here today in your
+position, not as a law review author but in your capacity today
+that that would beneficial for the Administration if the
+Executive order would apply to the independent agencies?
+ Mr. Sunstein. I believe that cost-benefit analysis is a
+helpful tool for any government actor, and in that sense, I
+believe that its use by the independent agencies would be
+informative.
+ Mr. Terry. Would it be helpful to you in determining
+whether to give advice and counsel from OMB on behalf of the
+Administration through those agencies?
+ Mr. Sunstein. We are very respectful of the independence
+of the Federal Reserve, the FCC, the FTC, which have
+independence as a matter of legal authority. It would be
+helpful to us, I will tell you in one domain that is
+exceedingly important though slightly technical. We provide
+annual reports to you all on the costs and benefits of
+regulation. You have asked us to provide information on the
+costs and benefits of regulations by the FCC, the FTC, all of
+the independents. More often than not, we don't have anything
+to tell you because there isn't a cost-benefit analysis, and--
+--
+ Mr. Terry. I would appreciate it. Is there a separate of
+powers or constitutional issue here in your view?
+ Mr. Sunstein. There is certainly an issue in the sense
+that the President's legal authority over the independent
+agencies has occupied many less than fascinating pages of law
+reviews.
+ Mr. Terry. But can that be resolved by congressional
+action or is there are still in your opinion----
+ Mr. Sunstein. You could resolve it.
+ Mr. Terry. I know you are not a Nebraska graduate so we
+have to question your academic history, but nonetheless, in
+your esteemed opinion.
+ Mr. Sunstein. I think the professors at the University of
+Nebraska would agree that whether the independent agencies are
+subject to presidential control is ultimately up to Congress.
+ Mr. Terry. So congressional authority would be necessary.
+Is that something that the President would request of us?
+ Mr. Sunstein. I am not aware that the President has a view
+on that issue.
+ Mr. Terry. And the independent agencies still have to
+provide regulatory plans?
+ Mr. Sunstein. That is correct.
+ Mr. Terry. Did the FCC provide you a regulatory plan that
+included net neutrality in 2010?
+ Mr. Sunstein. I believe so. I know they provided a plan
+but I don't recall its exact ingredients.
+ Mr. Terry. My time is--would you submit that for the
+record?
+ Mr. Sunstein. I would be delighted.
+ Mr. Terry. Thank you.
+ Mr. Stearns. Mr. Terry's time has expired, and the
+gentleman from California, Mr. Bilbray, is recognized.
+ Mr. Bilbray. Thank you.
+ Mr. Sunstein, last night the President proposed building a
+high-speed rail system in America that would cover 80 percent
+of the people and do it within 25 years. Do you believe under
+existing regulatory realities that that is possible?
+ Mr. Sunstein. As I noted, the OIRA lane is narrow. We
+review existing regulations, so that is beyond my authority and
+my knowledge base.
+ Mr. Bilbray. OK. Let me just say, as somebody who has
+built a rail system, I think that is where you need to--people
+like yourself need to be able to address that issue. When the
+President proposes something and it is not just money, is it
+legal to do it? And as somebody who has built a rail system, my
+opinion, of somebody who has actually done it, is that no, it
+is not legally possible under existing regulatory structure to
+build the system that the President proposed, which places all
+of us in the challenge of, do we not only talk about how much
+it spends but how much regulatory reform we need to make it
+possible? Do you have any experience in implementing projects
+such as transit, such as sanitation, such as building a
+factory? Do you have any experience in going through the
+regulatory process as a participant of that process?
+ Mr. Sunstein. Any citizen has at least some experience in
+navigating the regulatory process, but my own experience with
+the regulatory process has been a participant over the last 2
+years in making sure that the burdens to which you refer are as
+streamlined and navigable as possible, and the most important
+part of my experience in that domain, something that hasn't
+gotten much publicity--I hope it is an answer to your
+question--is that we quietly asked every agency of the Federal
+Government including the independent agencies for burden
+reduction----
+ Mr. Bilbray. Whoa, whoa, whoa. See, you are asking about
+the process and you are doing it as a regulatory member. I am
+asking you, though, have you been the applicant, have you
+personally been through the gauntlet or have you observed it
+from an administrative point of view?
+ Mr. Sunstein. Does my dad count? My dad had a small
+construction company.
+ Mr. Bilbray. No, your dad doesn't count. We don't allow
+crime of blood or benefits of blood on this issue.
+ Mr. Sunstein. My own career has not been navigating
+regulatory processes but I am trying to make them easier for
+people who do.
+ Mr. Bilbray. As somebody who has been on both sides, this
+is where I see a real problem. If you haven't walked the mile,
+if you haven't gone through the frustration, if you haven't
+seen the obstructionism, you really don't understand how to
+correct the problem appropriately, and I think you and I would
+agree if the plumbing in your house was backed up, you would
+not call a doctor or a lawyer to address that issue, and the
+fact is--I would ask you a question. Let me back off and say
+this. Do you believe there are environmental laws on the books
+today that are hurting the environment with their enforcement?
+ Mr. Sunstein. Well, I do believe there are environmental
+laws on the books today that can be significantly improved from
+both the economic and environmental standpoint.
+ Mr. Bilbray. My question is, do you believe that there are
+environmental regs on the books today that their enforcement is
+actually hurting the environment rather than helping it?
+ Mr. Sunstein. It would be most surprising if the answer
+weren't yes for at least some.
+ Mr. Bilbray. OK. Then my question to you is, when we get
+into these review of assuming that the law's intention is
+actually being fulfilled, wouldn't you agree that that is a
+wrong assumption to make from the get-go, that laws' intentions
+are assumed to be effective rather than questioning are they
+effective so that there is a burden of proof of existence of
+those laws need to consistently be tested for their
+effectiveness and efficiency?
+ Mr. Sunstein. Well, the President gave a clear yes answer
+in the Executive order which said we need to measure the actual
+results of regulations and the look-back is intended to do
+that.
+ Mr. Bilbray. OK. Do you know what the reductions for
+vehicle was projected with the new environmental regs on auto
+manufacturers?
+ Mr. Sunstein. The reduction per vehicle? I don't have the
+number. The reduction of emissions per vehicle?
+ Mr. Bilbray. Yes. What was the goal with that reg? That is
+a pretty big reg. We ought to know what the number was.
+ Mr. Sunstein. Per vehicle? I know that the number----
+ Mr. Bilbray. OK. I will give you per vehicle or fleet
+reduction.
+ Mr. Sunstein. Well, the emission reduction?
+ Mr. Bilbray. Yes.
+ Mr. Sunstein. I don't have the exact number.
+ Mr. Bilbray. I am just asking for a percentage.
+ Mr. Sunstein. The goal is about 36.5 miles per gallon.
+ Mr. Bilbray. And what percentage is that a reduction they
+are looking at?
+ Mr. Sunstein. We would have to do a little arithmetic to
+get it right.
+ Mr. Bilbray. OK. What if I told you that scientists are
+already telling us that we can reduce emissions and auto
+emissions by 22.6 percent and Washington has done nothing to
+consider that cost-effectiveness program while it is putting
+burdens on the production of automobiles in this country?
+ Mr. Sunstein. If I may ask, what is the cost-effective
+program you are----
+ Mr. Bilbray. The cost-effective program is for us to go
+back and look at traffic control operated by government that is
+inappropriate.
+ Mr. Sunstein. Oh, we are interested in any method that is
+cost-effective, cost-justified, to make this situation----
+ Mr. Bilbray. Wouldn't that be the kind of savings that we
+need to do more of with our cost-effective analysis?
+ Mr. Sunstein. It sounds like something very much worth
+investigating, yes.
+ Mr. Stearns. I thank the gentleman, and I ask unanimous
+consent to let Mr. McKinley ask questions. He is on the full
+committee but he is not on the subcommittee. Without objection,
+so ordered.
+ Mr. McKinley, thank you for taking the time to come down.
+You are recognized for 5 minutes.
+ Mr. McKinley. Thank you. Thank you, Mr. Chairman.
+ Thank you for being here. I have a series of questions more
+specific, and they deal with the Spruce Mine in West Virginia.
+You are familiar with that?
+ Mr. Sunstein. That is not something----
+ Mr. McKinley. Can you give me some volume, please?
+ Mr. Sunstein. OK. Sorry. That is not something within our
+purview. We review regulations and regulatory actions. I
+believe what you are pointing to isn't something that is within
+the domain of the Office of Information and Regulatory Affairs.
+ Mr. McKinley. But this was a retroactive veto. Are you
+aware of that?
+ Mr. Sunstein. I have a recollection from newspaper
+accounts, but this isn't something within our authority. We do
+look at rules that have effects in this area but what you are
+referring to, I don't believe is a regulatory action under
+Executive Order 12866.
+ Mr. McKinley. Were you aware of this veto prior to it
+happening?
+ Mr. Sunstein. No.
+ Mr. McKinley. You were not aware?
+ Mr. Sunstein. No.
+ Mr. McKinley. Do you have any idea why the EPA came to
+that decision?
+ Mr. Sunstein. This is something which would be good to
+engage the people who made the decision for their explanation.
+ Mr. McKinley. Were you aware that the EPA has made this
+determination to do it retroactive based on some new science?
+ Mr. Sunstein. Because this wasn't regulatory action under
+12866, if I am following, this wasn't something that we saw in
+advance in any way.
+ Mr. McKinley. Do you think that it is something that they
+should have checked with you about before they embarked on
+something that was so draconian to West Virginia?
+ Mr. Sunstein. Well, one thing I will say which is that in
+the regulatory domain, anything that is draconian for West
+Virginia or anything else is of keen concern to us, but that
+thing had better be under the new Executive order as under the
+old a regulatory action within the meaning of both documents,
+and so I wouldn't want to comment on the decision or the
+process because my understanding is that this was not something
+that is subject to our review.
+ Mr. McKinley. But you have enough awareness of it, so
+now--and the last question has more to do with, is it possible
+that if the regulatory bodies think that they can do this
+retroactively to a specific site in West Virginia, it is only
+in the Appalachian district they are doing this in the mines
+and they have applied it--the first application has been in the
+mines in West Virginia. If they feel they have the jurisdiction
+to be able to do that, could they not also do that in other
+markets like, for example, the chemical industry?
+ Mr. Sunstein. What I would say in our domain is that
+rulemaking is not retroactive. Actually, the Supreme Court has
+said that rulemaking is presumed not to be legitimately
+retroactive and that under the President's new Executive order,
+not only are rules not retroactive but they also must be
+preceded by a period of public comment so stakeholders can see
+it. Not only that, the agency is supposed to engage
+stakeholders including those who would be adversely affected
+before they even propose a rule. So that is our policy with
+respect to rulemaking.
+ Mr. McKinley. Do you think that this was a violation then
+if they made this retroactive?
+ Mr. Sunstein. Well, as I say, this is not our lane or our
+area so I wouldn't want to speak to it absent authority or a
+full account.
+ Mr. McKinley. Do you think if they--if rulemaking can
+occur like this in a retroactive fashion directed to the coal
+industry, would it not also apply to petroleum, chemical, other
+industries as well?
+ Mr. Sunstein. The Supreme Court said in a decision a few
+years ago retroactivity is disfavored, and to answer that
+question, I want to know what exactly was the situation here
+and whether there was something unique to it that justified the
+action and whether----
+ Mr. McKinley. From what I understand, sir, there was new
+science introduced but that new science was funded by the EPA.
+The study was funded by the EPA. I don't know whether that
+would--I am an engineer. I don't know that that would
+necessarily--if I fund something whether I am--that is new
+science. That is bolstering my cause.
+ Mr. Sunstein. I greatly appreciate the question, and with
+your indulgence I would want to stay away from an area that I
+don't have authority over and that I haven't studied. I would
+say that with respect to the scientific issue generally, under
+section 5 of the new Executive order, there is strong emphasis
+on objective science and scientific integrity, and that is
+something in the rulemaking area which is our domain that we
+are taking exceedingly seriously.
+ Mr. McKinley. Since you have heard of this now, are you
+going to look into it?
+ Mr. Sunstein. If you would like me to, I would be----
+ Mr. McKinley. I would love to have you look into it.
+ Mr. Sunstein [continuing]. Delighted to have you put in
+contact with the people who have----
+ Mr. McKinley. I would like to know more about what the
+repercussions of this are. Thank you very much.
+ Mr. Sunstein. And thanks to you.
+ Mr. Stearns. I thank the gentleman. We are going to go a
+second round of questions. I ask for your help here. It is just
+a few more and then----
+ Mr. Sunstein. Are you asking me yes or no questions?
+ Mr. Stearns. Say again?
+ Mr. Sunstein. Are you going to ask me yes or no questions,
+Mr. Chairman?
+ Mr. Stearns. I try. There is something here I want to ask
+you. It is a basic question. How many new government
+regulations have been enacted since your appointment?
+ Mr. Sunstein. I believe the number of final regulations is
+going to be approximate.
+ Mr. Stearns. No, I know.
+ Mr. Sunstein. It is about 500.
+ Mr. Stearns. Five hundred. OK. And do you perhaps have any
+idea how many new regulations will be necessary because of the
+new health care bill and because of the new financial service
+bill?
+ Mr. Sunstein. I don't have that number. I would say that
+our number----
+ Mr. Stearns. If you could venture a guess, that would be
+really fine.
+ Mr. Sunstein. I wouldn't want to venture a guess because
+there is a fact of the matter, and one doesn't want to guess
+about things when the fact of the matter is not difficult to
+find.
+ Mr. Stearns. I am just being a little humorous. I will
+give you a range. Over 5,000 for health care?
+ Mr. Sunstein. It would surprise me if it is that high.
+ Mr. Stearns. And over 5,000 for the financial bill?
+ Mr. Sunstein. It would surprise me if it is that high.
+ Mr. Stearns. OK. Earlier I asked you this question and you
+said yes. The director of OMB produced a set of recommendations
+for a new Executive order within 100 days of the President's
+January 30, 2009 directive. That means that the OMB
+recommendations were sent to the President around May 2009. I
+thought you said yes. Is that correct?
+ Mr. Sunstein. Yes.
+ Mr. Stearns. But the new Executive order wasn't issued
+until January 18, 2011--I had staff check that out--after the
+election. So your yes doesn't seem to comply with the facts.
+ Mr. Sunstein. Ah, OK. No, what the President asked for in
+his memorandum to which you point, the early one, was not a new
+Executive order for issuance. It was recommendations for a new
+Executive order, and what we did was to run processes for a
+significant period under the Clinton Executive order under
+which President Bush also operated and acquired experience. We
+had a public comment period. We got a lot of comments from
+affected stakeholders, some from Members of Congress, there
+were informal and formal communications, and the process of
+acquiring information, learning from the agencies and from our
+own processes what works well and what doesn't ran its course
+such that we were able to issue the Executive order last week.
+ Mr. Stearns. In your testimony today, several times you
+mentioned that ``retrospective'' review will be done of
+regulations. It hasn't been defined in my mind: when does that
+begin? Does it include regulations issued during the Obama
+Administration or are you going back to the Bush
+Administration? Are you going back to the Clinton
+Administration? Maybe you might define what ``retrospective''
+means.
+ Mr. Sunstein. The Executive order says significant
+regulations that are on the books so everything is fair game.
+ Mr. Stearns. How far does that go back, in your mind?
+ Mr. Sunstein. It could go back to the 1920s if there is a
+regulation that is costly and not helping people.
+ Mr. Stearns. It could go back to FDR?
+ Mr. Sunstein. It certainly could go back to FDR.
+Everything is fair game. Needless to say, regulations that have
+been issued within the last weeks and months wouldn't be the
+first candidates for retrospective review because they were
+reviewed very recently, but we are eager to get ideas from you,
+Mr. Chairman, affected stakeholders, members of the public. We
+really need your help to identify regulations that should be
+revisited, and if they are doing harm but they are from 1945,
+then by all means let us revisit it as much as we would if they
+were doing harm in 1982.
+ Mr. Stearns. I commend you. You are the first person from
+the Administration I have heard that said they were willing to
+go back and look at regulations from FDR, so that is quite a
+statement.
+ Now, will this review apply equally to all the agencies or
+just certain agencies that you are focusing on? I imagine that
+looking at all the agencies would be a mammoth job.
+ Mr. Sunstein. As you said, the independent agencies
+following President Reagan's lead are not covered but all the
+executive agencies are covered.
+ Mr. Stearns. You are promulgating vehicle fuel efficiency
+standards. Did the agency consider the cost of additional
+injuries and deaths stemming from the use of lighter vehicles?
+ Mr. Sunstein. Yes, that was investigated with great care.
+ Mr. Stearns. When you talk about this retrospective
+review, how are you proposing to bring in the public? The
+gentleman from West Virginia indicated that we had a company
+that got approval for a license and then retrospectively EPA
+revoked its license. Now the company is in jeopardy after
+investing millions of dollars, and employees will lose their
+jobs. Who would think that that could happen, especially after
+the government gave it a license? How are you getting the
+public to interface with you?
+ Mr. Sunstein. It is a tremendous question, and we love
+your ideas. I will give you a few preliminary thoughts. One
+idea we have had is that the public has a lot more information
+than we do about what rules are actually doing on the ground.
+ Mr. Stearns. I agree with that.
+ Mr. Sunstein. So we need their help. It has happened
+already in this very early time that we have gotten a lot of
+communication from the public. The public has not been silent
+about rules that are causing trouble. I think you can expect in
+the relatively near future one very important Cabinet agency
+going out to the public and asking for ideas about
+retrospective analysis, what rules are causing trouble. I think
+you can also expect a high degree of openness both with respect
+to asking for ideas about rules that no longer warrant public
+approval and also for ventilation of the plans, which are due,
+mind you, in 120 days. I would love it if some of those plans
+would beat that deadline and be out to the public before 120
+days but my expectation is that the plans which will include
+candidates will be made public and there will be a period of
+comment, and as Chairman Dingell suggested, there is a full
+process of comment and review as rules get repealed, so that
+will also involve a high degree of public participation.
+ Mr. Stearns. Thank you. My time has expired.
+ Dr. Burgess, second round.
+ Dr. Burgess. Thank you, Mr. Chairman.
+ In reference to Dr. Gingrey's question about the regulation
+that went forward without a period of public comment, are you
+aware that there are in fact at least 10 such regulations under
+the health care law, the Patient Protection and Affordable Care
+Act, at least 10 such rules that were created without a period
+of public comment?
+ Mr. Sunstein. Yes. What I am aware of is that some laws,
+and this is one of them, have for some rules time constraints
+that are so severe that the only option is to do what is called
+an interim final rule rather than go out for public comment,
+and that is a result of legal compulsion. What is noteworthy
+about interim final rules, and we have paid a great deal of
+attention to this, is they are interim rules.
+ Dr. Burgess. Well, let me just--you offered just a moment
+ago that you would follow up with us. I actually look forward
+to you joining us again in about 3 months' time. If you would
+be willing to do that, maybe we could talk about some of the
+public comment that has come in on some of the interim final
+rules because it is important that this process be open and
+transparent and that people be able to communicate with the
+regulatory agencies and their government. I know I have heard
+from a lot of providers, hospitals, and patients that this is
+something that they would like to see.
+ Mr. Sunstein. Absolutely. I spend a lot of my own time,
+sad but true, on regulations.gov where you can see those
+comments on interim final rules and I am quite aware that some
+rules have produced a lot of public interest.
+ Dr. Burgess. I provided to you--I apologize that it wasn't
+in the briefing binder but something prepared by the Business
+Council, the Business Roundtable, policy burdens inhibiting
+economic growth. Did you have a chance to just glance at that
+while we were at the vote?
+ Mr. Sunstein. I did glance at it.
+ Dr. Burgess. And I appreciate you being willing to do
+that. Of course, our purpose here today is to talk about the
+regulatory burden and what we might do. This paper was
+prepared, interestingly enough, last June at the request of the
+Obama Administration, difficulty in this economic climate
+creating jobs, and the Obama Administration asked the private
+sector, provide us some guidance on what the Obama
+Administration might do to facilitate job creation. So I think
+that was a good idea. The question I have is, why are we
+ignoring some of the more important things that were put
+forward in that monograph? We have, and I referenced this in my
+opening statement, the new source review aspect that was talked
+about in that paper was concerned about the fact that Texas
+does seem to be singled out for some special attention on
+taking its flexible permitting process and that other States
+that are using this were not subjected to the same constraints
+that Texas has been. Do you think this is helpful in creating a
+climate for job creation that Texas be singled out in this way?
+ Mr. Sunstein. I should say that the document to which you
+point has a lot of concerns and that that has been reviewed
+carefully by relevant officials trying to make sure we do the
+best we can for the country. Singling out any State, in some
+ways Texas in particular, is not a good idea. Everyone should
+be treated similarly. What I would say about the particular
+example, I will give you my understanding, is that 49 States
+all complied with the EPA's permitting rule in the sense that--
+--
+ Dr. Burgess. My time is pretty limited. Let me just ask
+you a more specific question.
+ Mr. Sunstein. This was an effort to help people in Texas
+get permits. In order to go forward, there had to be some
+permitting process, and the court approved it.
+ Dr. Burgess. Well, that was under the greenhouse gas
+requirement, but did anyone at EPA consult with the Office of
+Management and Budget or the White House before moving forward
+with taking over the flexible permitting program under the
+Clean Air Act?
+ Mr. Sunstein. That one was something that we were involved
+in, yes, and this was an effort, as I say, to permit people to
+get permits in Texas so they could go forward with
+construction, etc. That is my understanding.
+ Dr. Burgess. And what is the status of that today?
+ Mr. Sunstein. The court has approved it.
+ Dr. Burgess. Let me ask you a question that is in a
+different direction. Do you think there should be any
+legislative effort to regulate broadcasting in the interest of
+democratic principles?
+ Mr. Sunstein. What I would say is that as the
+Administrator of the Office of Information and Regulatory
+Affairs, I am focused on the Paperwork Reduction Act and on the
+recent Executive order and Small Business Memorandum. I think
+you might be referring to some academic writing that might have
+had my name attached to it but academic speculations by anyone
+including yours truly just aren't relevant to the current job.
+ Dr. Burgess. But still, there is some talk about people
+who want to bring back the Fairness Doctrine and some people do
+see that as a restriction on free speech. Would that be
+something that would come through your regulatory agency if
+that occurred?
+ Mr. Sunstein. No, we have no role, and I am on record as
+opposing the Fairness Doctrine.
+ Dr. Burgess. Thank you, Mr. Chairman. I will yield back.
+ Mr. Stearns. Mr. Griffith, you are recognized for 5
+minutes.
+ Mr. Griffith. Thank you, Mr. Chairman.
+ If I could go back to some of Congressman McKinley's
+questions relating to the mine closure in West Virginia, and I
+know that what actually may have happened may not be under your
+watch, but wouldn't it be true under the Executive order that
+you would need to look at that? Because as I understood the
+President's comments last night in regard to the salmon, that
+one of the things that he wants to do is to make sure we don't
+have agencies having jurisdiction over what most people would
+think would be the same thing, and in that particular case,
+would you not agree with me that it didn't meet the
+circumstances? The facts didn't meet with what the President
+has said, even in section 1 of his Executive order because for
+that mine, it didn't promote predictability and reduce
+uncertainty, it created more uncertainty for everybody in
+central Appalachia because of that ruling. Would you not agree?
+ Mr. Sunstein. I appreciate the question. I am reluctant to
+say anything critical of colleagues in any agency when I just
+don't know the underlying situation and it isn't something
+within our authority. I can say that EPA in the rulemaking
+domain has been extremely careful and scrupulous about ensuring
+that there is public comment before it goes forward with rules,
+and we had an earlier colloquy about the EPA's insistence
+that----
+ Mr. Griffith. But wouldn't you agree with me that when the
+Army Corps of Engineers signs off on it and says everything is
+fine and then some 18 months to 2 years later the EPA comes in
+and yanks the licenses out, that that does not promote
+predictability and does promote uncertainty?
+ Mr. Sunstein. I would need to know more about the
+particulars. I certainly agree with your emphasis on
+predictability and certainty, which are upfront in the new
+Executive order.
+ Mr. Griffith. And wouldn't you agree that at least on the
+face of it that such action is not plain and easy to
+understand?
+ Mr. Sunstein. Well, I am very concerned about clarity. The
+Plain Writing Act is something that is within our domain. We
+recently issued guidance on it. But I have learned from my
+period in Washington that things that are on the face a certain
+way sometimes aren't fully a certain way and so if you will
+forgive me, I like to be cautious before speaking on that.
+ Mr. Griffith. Well, I understand being cautious but you
+can appreciate that the uncertainty that has now been created
+in the entire region about even attempting to invest money in
+opening up a new mine that has been caused by the actions that
+were taken, and isn't that something that under the Executive
+order that you all should be looking at?
+ Mr. Sunstein. The Administration as a whole is committed
+to promoting certainty, so to look at something that is raising
+concerns along that front is completely appropriate.
+ Mr. Griffith. All right. I thank the gentleman.
+ Mr. Stearns. I thank the gentleman.
+ I now recognize the gentlelady, Ms. DeGette.
+ Ms. DeGette. Thank you very much, Mr. Chairman.
+ Mr. Sunstein, I really want to thank you for coming and
+testifying today. I found your testimony very illuminating and
+helpful, and I think this subcommittee is going to want to have
+ongoing conversations with you.
+ You know, we all agree that unnecessary regulations should
+be repealed and new regulations should not be overly burdensome
+on business or anybody else. I mean, that is a fundamental.
+Listening to the questioning on the other side of the aisle
+today, I kind of realize that there is this assumption that may
+have some vague historic basis but certainly with this new
+Administration and with my colleagues on the Democratic side of
+the aisle, we don't believe in overregulation and we don't
+believe that regulations should be burdensome, especially right
+now with unemployment still over 9 percent. We need to make
+sure that regulations are sensible, that they protect the
+public health and wellbeing and are not overly burdensome.
+ I was particularly interested--and I think, so there is
+some thinking since there is a Democratic Administration, we
+are just overregulating, but in fact, when you look at the
+actual facts and statistics, this is not the case. I was
+particularly interested in your comment earlier that the total
+number of rules in the first 2 years of the Obama
+Administration is comparable to the number of rules in the last
+2 years of the Bush Administration, so about the same. And if
+you look at the number for the EPA specifically, which seems to
+be a great concern on the other side of the aisle, the
+comparison between the Administrations is very noteworthy. The
+EPA has finalized or proposed fewer Clean Air Act rules over
+the last 21 months than in the first 2 years of either
+President George W. Bush's Administration or President
+Clinton's Administration. President Bush finalized or proposed
+146 Clean Air Act rules while president Clinton issued only
+115, and President Obama has issued just 87, and frankly, some
+of the Obama Administration's rules, as you can attest, are
+trying to clean up the mess left by the previous
+Administration.
+ So let me give an example of that. A federal court threw
+out President Bush's rule to cut toxic mercury emissions from
+power plants in February 2008 because frankly, it was illegal
+under statute. So what it would have done would have been to
+let infants and children vulnerable to mercury pollution. So
+President Obama and his Administration were then forced to go
+back to the drawing board and repromulgate those rules because
+they were illegal the first time.
+ And so frankly, I think that, you know, Mr. Stearns and I
+are both eager to talk about regulations that might be
+burdensome and we are eager to work with you and the
+Administration to do that. We were just saying that we would
+welcome suggestions by members on both sides of the aisle and
+we would love to sit down and meet with you and your staff to
+propose anything that we think is overly burdensome because
+frankly, we are not facing a regulatory avalanche. These are
+safeguards for the American public, but I know that you and
+your staff intend to promulgate them in a way that is the least
+burdensome possible. So I just wanted to say that.
+ And Mr. Chairman, I just wanted to ask the Majority a
+question, and maybe you know the answer but if not, maybe your
+staff or somebody else can tell me. The Republican have said
+several folks on your side of the aisle have said that an EPA
+spokesman said that the Executive order won't matter with
+respect to the EPA regulations, and I don't know who that--we
+are unaware of any statement like that on this side of the
+aisle, and I am wondering if your staff or the members who said
+that could tell us who that spokesperson was so that we could
+set the Administration straight that the Executive order is
+going to apply to all regulations of agencies within the
+purview of Mr. Sunstein and his staff.
+ Mr. Stearns. We would be glad to provide it for you. It is
+in The Hill, January 18.
+ Ms. DeGette. Thank you. And what is the name of the
+person?
+ Mr. Stearns. Betsaida Alcantara, and the statement said
+that the agency has already been following many of the
+protocols formalized Tuesday, and so we would be glad to give
+The Hill article to you.
+ Mr. Sunstein. May I----
+ Ms. DeGette. Wait a minute. This doesn't say that the
+Executive order doesn't apply to EPA regulations, and Mr.
+Chairman, I would ask unanimous consent to submit this article
+for the record.
+ Mr. Stearns. I would be glad to, by unanimous consent.
+ Ms. DeGette. Thank you.
+ [The information appears at the conclusion of the hearing.]
+ Mr. Stearns. But I think we have given you a name. It is
+your interpretation.
+ Ms. DeGette. Yes, you didn't, but it doesn't say anything
+about the Executive order and whether it applies.
+ Mr. Stearns. That is your interpretation.
+ Mr. Sunstein. May I make one brief addition to your
+excellent remarks?
+ Mr. Stearns. Sure.
+ Mr. Sunstein. Which is, if you look at the most expensive
+fiscal year of the last ones, it hasn't been 2010, it hasn't
+been 2009, it was 2007.
+ Mr. Stearns. OK. The gentlelady's time has expired.
+ OK. Let me close. Mr. Sunstein, thank you for your patience
+and forbearance while we went and voted. Let me just ask you a
+question to clarify what Ms. DeGette was talking about. In the
+first 2 years of the Bush Administration, how many regulations
+were issued compared to the first 2 years of the Obama
+Administration?
+ Mr. Sunstein. We will have to get that number.
+ Mr. Stearns. OK. That is important because I think what
+she is alluding to--I think those facts are now apples and
+apples instead of apples and oranges.
+ Let me also point out that when Ms. DeGette talks about
+deregulation, on this committee we had a cap-and-trade bill we
+passed which the Senate didn't agree with. We had a health care
+bill pass. The Congress under the Democrats' majority had a
+financial bill. They also had bailouts. And so during that
+entire process, when you pass those four major pieces of
+legislation, you are going to have more regulation. And this is
+what I would like to conclude with. You had indicated that
+there should be a comment period for the citizens of this
+country to tell you and OMB that these regulations are killing
+them, and you are saying that you are willing to listen. So can
+I suggest that we sit down with you and we notify our members
+both on the Democrat and Republican side that you have made
+this very auspicious, generous offer to take seriously some of
+the problems? Now, the gentleman from West Virginia pointed out
+that this company has lost its license after getting approved
+by EPA and that is a problem. That is losing jobs. That is
+exactly what I think the President is talking about. So can we
+have your agreement then today that you would sit down with
+this committee at a later date, not in a hearing but an
+opportunity where Ms. DeGette and I can present you with
+regulations that we think indeed are hurting this country and
+should be repealed?
+ Mr. Sunstein. I would welcome that.
+ Mr. Stearns. Well, I think you suggested the idea, so we
+just want to follow up on it.
+ Let me conclude by saying members have 10 days to submit
+questions for the record, and if there is no further comment,
+the subcommittee is adjourned, and thank you.
+ [Whereupon, at 1:19 p.m., the subcommittee was adjourned.]
+ [Material submitted for inclusion in the record follows:]
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