John Conyers

Mr. CONYERS

Mr. CONYERS. Madam Speaker, I am pleased to yield as much time as she may consume to the distinguished gentlelady from Houston, Texas (Ms. Jackson Lee), a senior member of the committee.

Mr. CONYERS. Madam Speaker, I yield as much time as he may consume to the distinguished gentleman from New York (Mr. Tonko).

Mr. CONYERS. Madam Speaker, I yield back the balance of my time.

Mr. CONYERS

Mr. CONYERS. So you don't want to improve it?

Mr. CONYERS. I thank the gentleman for yielding.

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. I want to begin our discussion this morning with the reference that Federal regulations impose an annual cost of $1.75 trillion on business. I would like the Members to know that the reference made to this study is the Crain study. I'd like to use the name so that you can track exactly what is being said about it. The study was never intended to be used as a decisionmaking tool. Who says this? They said it as a preface to the study itself. And for the benefit of the 433 other Members besides myself and the chairman, I am going to put this in the Record and also make it available to all of our colleagues on the Judiciary Committee. The Crain study was never intended to be used as a decisionmaking tool, and the Congressional Research Service, our own operation, criticized much of the Crain study's methodology and noted that the authors of the Crain study themselves told the Congressional Research Service that their analysis was not to be a decisionmaking tool for lawmakers or Federal regulatory agencies to use in choosing the right level of regulation. So every time somebody mentions this study again on the floor, I am going to refer them to the Congressional Research study, which has never been disputed or declaimed by anybody. In no place in any of the reports do we imply that our reports should be used for this purpose--that's the Crain study people themselves. That's not the Congressional Research study; that's the authors. And here is the Congressional Research study that I would like to introduce into the Record at this time. [From the Congressional Research Service] Analysis of an Estimate of the Total Costs of Federal Regulations (By Curtis W. Copeland, Specialist in American National Government, April 6, 2011) [CRS Report for Congress, Prepared for Members and Committees of Congress--Congressional Research Service, 7-5700, www.crs.gov, R41763] Summary Some policy makers have expressed an interest in measuring total regulatory costs and benefits (e.g., the Congressional Office of Regulatory Analysis Creation and Sunset and Review Act of 2011, H.R. 214, 112th Congress), and estimates of total regulatory costs have been cited in support of regulatory reform legislation (e.g., H.R. 10, the Regulations from the Executive In Need of Scrutiny (REINS) Act, H.R. 10, 112th Congress). However, measuring total costs and benefits is inherently difficult. This report examines one such study to illustrate the complexities of this type of analysis. A September 2010 report prepared by Nicole V. Crain and W. Mark Crain for the Office of Advocacy within the Small Business Administration (SBA) stated that the annual cost of federal regulations was about $1.75 trillion in 2008. This cost estimate was developed by adding together the estimated costs of four categories or types of regulation: economic regulations (estimated at $1.236 trillion); environmental regulations ($281 billion); tax compliance ($160 billion); and regulations involving occupational safety and health, and homeland security ($75 billion). Some commenters have raised questions about the validity and reliability of this estimate. For example, Crain and Crain's estimate for economic regulations (which comprises more than 70% of the $1.75 trillion estimate) was developed by using an index of ``regulatory quality.'' One of the authors of the regulatory quality index said that Crain and Crain misinterpreted and misused the index, resulting in an erroneous and overstated cost estimate. Other commenters have also raised concerns about using the index to estimate regulatory costs, and about the regression analysis that the authors used to produce the cost estimate. Crain and Crain said that they believe they interpreted and used the regulatory quality index correctly. Crain and Crain's estimates for environmental, occupational safety and health, and homeland security regulations were developed by blending together academic studies (some of which are now more than 30 years old) with agencies' estimates of regulatory costs that were developed before the rules were issued (some of which are now 20 years old). Although the agency estimates were typically presented as low-to-high ranges, Crain and Crain used only the highest cost estimates in their report. The Office of Management and Budget has said that estimates of the costs and benefits of regulations issued more than 10 years earlier are of ``questionable relevance.'' Crain and Crain's estimate for the cost of tax paperwork was based on data from the Internal Revenue Service and the Tax Foundation, but OMB data indicate that the number of hours of tax paperwork may be much higher than Crain and Crain's estimate. On the other hand, the authors' assumptions regarding the cost of completing the paperwork may be too high. A threshold question, however, is whether tax paperwork should be considered in the same category as regulatory costs. OMB does not include tax paperwork in its annual reports to Congress. Crain and Crain said they did not provide estimates of the benefits of regulations, even when the information was readily available, because the SBA Office of Advocacy did not ask them to do so. OMB's reports to Congress have generally indicated that regulatory benefits exceed costs. Crain and Crain said their report was not meant to be a decision-making tool for lawmakers or federal regulatory agencies to use in choosing the ``right'' level of regulation. This report will not be updated. * * * * * Policymaking and the Crain and Crain Estimate As noted at the beginning of this report, Crain and Crain's estimate that federal regulations cost $1.75 trillion in 2008 has been cited as evidence of the need for regulatory reform legislation. However, Crain and Crain told CRS that their report was ``not meant to be a decision-making tool for lawmakers or federal regulatory agencies to use in choosing the `right' level of regulation. In no place in any of the reports do we imply that our reports should be used for this purpose. (How could we recommend this use when we make no attempt to estimate the benefits?)'' \103\ --------------------------------------------------------------------------- \103\ E-mail to the author from Nicole V. Crain and W. Mark Crain, March 7, 2011. --------------------------------------------------------------------------- As Crain and Crain suggest, information on regulatory costs alone, whether for individual rules or for all rules in the aggregate, provides only one piece of information that Congress and other policymakers can use in determining how to proceed. For example, even if all federal regulations did cost $1.75 trillion in 2008 (which at least some commenters believe may not be correct), if the monetized benefits of those regulations were determined to be greater than those costs, then policymakers may conclude that those costs were (in the words of Executive Order 12866) ``justified.'' On the other hand, if the monetized benefits of federal regulations were estimated to be less. than the estimated costs, policymakers may reach another conclusion, or may decide to examine any non-monetized costs and benefits of those rules. But a valid, reasoned policy decision can only be made after considering information on both costs and --------------------------------------------------------------------------- benefits. The Center for Progressive Reform is another study that notes that the $1.75 trillion cumulative burden cited by the study fails to account for any benefits of the regulation. I am going to, at the appropriate time, introduce that into the Record. The Congressional Research Service notes that the study's methodology is seriously flawed with respect to how it calculated economic costs. So I would urge the Members to be aware of what I am going to do during this debate the next time somebody names this study without naming the name of the study and the fact that it was put together by Mark and Nicole Crain, commonly called the Crain study. The Congressional Research Service notes that the study's methodology is seriously flawed with respect to how it calculated economic costs. The study relied on international public opinion polling by the World Bank on how friendly a particular country was to business interests and ignored actual data on costs imposed by the Federal regulation in the United States. The Congressional Research Service concluded that a valid, reasoned policy decision can only be made after considering information on both costs and benefits of regulation. The next thing I would like to do is examine what seems to be a political or legislative strategy that is being used in this debate. You see, there are three bills that are antiregulatory bills--and there's no question or dispute about that--designed to slow or halt rulemaking and give industry more opportunities to disrupt the rulemaking process of the Federal Government. H.R. 3010, which we are taking up today, is one of them. H.R. 527, which we took up yesterday, is another one of them. H.R. 10, the king of all regulatory antiregulatory bills, is coming up next week, the REINS Act, which, for the first time in American history, determines that the Congress must also approve the rules of all the agencies, of which there are some 40 or 50. And for the benefit of every Member of the Congress, I am getting together every agency that would now be involved and that would have to have their rules--believe it or not, this is not ``Saturday Night Live''--would come through the Congress. Can you imagine what that would do to our schedule? These bills are blatantly and unhesitatingly designed to slow down and even halt all Federal rulemaking, thereby threatening public health and safety by undermining the agencies' ability to address a whole range of issues. What about food-borne illnesses? What about toy safety? What about infant formula safety? What about financial security? All three antiregulatory bills also give industry more opportunities to disrupt the rulemaking process. The bill under consideration now, for example, requires formal rulemaking and expands opportunities to challenge agency action in court. As if they need any help from the corporate lawyers that are all lined up to do their work at the present moment, but no, we want to give them more opportunities to go in court, as if they can't figure it out for themselves. H.R. 527 of the previous day does this by expanding the use of small business review panels. The measure coming up next week would require Congress to approve all major rules. Not only do we have to do that, but we have to do it within 70 legislative days before they could take effect, effectively, of course, allowing industry to intervene in Congress to stop a rule. Mr. Chairman, I reserve the balance of my time.

Mr. CONYERS. Yes, sir.

Mr. CONYERS. Mr. Chairman, I yield 5 minutes to the gentleman from Tennessee, Steve Cohen, the ranking member of the Subcommittee on Courts, Commercial and Administrative Law.

Mr. CONYERS. Mr. Chairman, I am pleased to yield such time as he may consume to the former chairman of the Education and Labor Committee, the ranking member currently, the gentleman from California, George Miller.

Mr. CONYERS. Mr. Chairman, I yield myself 30 seconds. The AFL-CIO has backed up what the ranking member, Mr. Miller, of Education and Labor has said. They warn that H.R. 3010 would upend more than 40 years of labor, health, safety and environmental laws, and threaten new needed protections. It would cripple the regulatory process and make protecting workers and the public secondary to limiting costs and impacts on business and corporations. American Federation of Labor and Congress of Industrial Organizations, Washington, DC, November 28, 2011. Dear Representative: When the Congress returns from the Thanksgiving break the House is expected to vote on three ``regulatory reform'' bills--H.R. 10, the Regulations from the Executive in Need of Scrutiny (the REINS Act), H.R. 3010, the Regulatory Accountability Act, and H.R. 527, the Regulatory Flexibility Improvements Act. Each of these bills would up-end the entire regulatory system making it impossible for the government to protect workers and the public from workplace hazards, dirty air and water, unsafe drugs, tainted food and Wall Street abuses. The AFL-CIO strongly urges you to oppose each of these bills. The Regulatory Accountability Act (RAA)--H.R. 3010--is a particularly harmful measure. It amends the Administrative Procedure Act (APA), but it goes far beyond establishing procedures for rulemaking. The RAA acts as a ``supermandate'' overriding the requirements of landmark legislation such as the Occupational Safety and Health Act and Mine Safety and Health Act. The bill would require agencies to adopt the least costly rule, instead of the most protective rule as is now required by the OSH Act and MSH Act. It would make protecting workers and the public secondary to limiting costs and impacts on businesses and corporations. The RAA will not improve the regulatory process; it will cripple it. The bill adds dozens of new analytical, procedural, and judicial review requirements to the rulemaking process, which will add years to the process. The development of major workplace safety rules already takes 6- 10 years; the RAA will further delay these rules and cost workers their lives. The RAA substitutes formal rulemaking for the current procedures for public participation for high impact rules and for other major rules upon request. These formal rulemaking procedures will make it more difficult for workers and members of the public to participate, and give greater access and influence to business groups that have the resources to hire lawyers and lobbyists to participate in this complex process. For agencies that already provide for public hearings, such as OSHA and MSHA, the bill would substitute formal rulemaking for the development of all new rules, overriding the effective public participation processes conducted by these agencies. H.R. 3010 would subject all agencies--including independent agencies like the Securities and Exchange Commission, the National Labor Relations Board (NLRB), Consumer Product Safety Commission (CPSC), and the Consuumer Financial Protection Bureau (CFPB) to these new analytical and procedural requirements. It would be much more difficult for agencies to develop and issue new financial reform rules and consumer protection rules required under recently enacted legislation. The REINS Act (H.R. 10) would radically alter the regulatory process by requiring Congress to vote to approve all major rules before they can go into effect. Rules not affirmatively acted on by both the House and the Senate within 70 legislative days would die. Under the REINS Act, politics, not scientific judgment or expertise would dictate all regulatory actions. Corporate opposition and influence would swamp the public's interest and block needed protections. H.R. 10 is impractical, unworkable and unnecessary. Congress has neither the time nor expertise to consider and act on detailed, technical and scientific issues. Moreover, Congress already has the authority to disapprove rules through the Congressional Review Act or block their implementation by withholding funding. H.R. 527, the Regulatory Flexibility Improvements Act, expands the reach and scope of the Regulatory Flexibility Act by covering regulations that may have an indirect effect on small businesses and adding a host of new analytical requirements that will make it even more difficult for agencies to take action to protect workers and the public. Virtually any action an agency proposes even a guidance document designed to help a business comply with a rule could be subject to a lengthy regulatory process. While the bill purports to be focused on small business, it would cover more than 99% of all employers, including firms in some industries with up to 1,500 workers or $35.5 million in annual revenues. This bill also creates a small business ``czar'' by increasing the powers of the Chief Counsel of Small Business Advocacy. This individual would become a super-regulator, with new powers to review proposed regulations and suggest alternatives. Agencies would be subject to review by both the Office of Management and Budget and the Chief Counsel, adding to regulatory delay. H.R. 3010, H.R. 10 and H.R. 527 would further tilt the regulatory process in favor of business groups and others who want to stop regulations, and make it much more difficult for the government to protect workers and the public. These are dangerous proposals that will not create one new job or solve any of the pressing problems facing our country. The AFL-CIO strongly opposes H.R. 3010, H.R. 10 and H.R. 527 and urges you to vote against all three bills. Sincerely, William Samuel, Director, Government Affairs Department. I reserve the balance of my time.

Mr. CONYERS. I continue to reserve the balance of my time.

Mr. CONYERS. Mr. Chairman, I yield myself 1 minute. The distinguished ranking member of Agriculture wasn't here when the ranking member, Mr. Miller of Education and Labor, was here talking about the agricultural problems and the problems that H.R. 3010 presents to us. What I would like to just ask the gentleman, yesterday the Food and Drug Administration issued a recall of both grapes and tomatoes for salmonella contamination. Did the gentleman have some reservation or objection to this regulation that the FDA operated on? I yield to the gentleman from Minnesota.

Mr. CONYERS. I yield myself an additional 1 minute.

Mr. CONYERS. If you think that this bill should go further, then why would FDA need to have H.R. 3010 be made more likely to kill regulations that control jobs and health?

Mr. CONYERS. Mr. Chairman, I yield the balance of my time to the distinguished gentleman from Georgia, Hank Johnson, a ranking subcommittee member in Judiciary.

Mr. CONYERS. Would the gentleman yield to me for just a few seconds?

Mr. CONYERS. Would the gentleman from California tell me now or at some future time which health regulations he would like to get repealed or withdrawn?

Mr. CONYERS. So you don't have any complaint against FDA at the present time?

Mr. CONYERS. But you're okay with them?

Mr. CONYERS. I thank the chairman for yielding to me because we want to acknowledge the committee's parliamentarian, Allison Halataei, on her last day of service to the committee. Allie has been an expert on House and committee rules, has ruled fairly on all matters of legislation that fall within the committee's jurisdiction, and has been valuable to all the members on both sides of the aisle. We've come to rely on her excellent judgment and experience. On behalf of the Democratic members of the committee, we wish her well in her future endeavors.

Mr. CONYERS. Mr. Speaker, I demand a recorded vote.

Mr. CONYERS

Mr. CONYERS. I would, except that your side has far more time than my side does. I reserve the balance of my time.

Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume. I would just like to point out that the Crain study referred to already by the distinguished chairman of the committee, apparently he hasn't found out that it's been held in error in a number of ways but mostly by the Crain study people themselves, who said that their analysis was not meant to be a decisionmaking tool for lawmakers or Federal regulatory agencies to use in choosing the right level of regulation. In other words, the study is flawed because it fails to account for any benefits of regulation. So I want everybody to know that this correction about $1.75 trillion has been thoroughly debunked by not only CRS but other authorities as well. Now, this debate follows a number of pieces of legislation that we're considering. It's sort of a regulation tidal wave--or anti-regulation tidal wave: H.R. 3010, Regulatory Accountability; H.R. 10, which we will see soon, the REINS Act; and H.R. 527, the bill before us now, the Regulatory Flexibility Improvements Act. Now, it's strange to say that this trio of public safety-killing legislation would make it harder to control and make safe our products that we count on. Under the law presently, rulemaking must make an analysis for every new rule that would have a significant economic impact on small businesses. Among other things, the bill would repeal the authority that allows the agency to waive or delay this analysis in response to even an emergency. It's hard to imagine how the bill under consideration would make regulations more cumbersome, would take longer, would risk national emergencies, and would lose a lot of the safety and health protections that we now enjoy. I feel that there hasn't been a careful consideration of what the real final goal is. The Wall Street Journal, which is no enemy of big business, said: The main reason United States companies are reluctant to step up hiring is scant demand rather than uncertainty over government policies. So even the business community recognizes that the big problem with our economy is not that rules are tying up businesses but that we don't have enough people buying, because they don't have enough jobs to create the demand. If you examine it carefully, as many on our Committee on the Judiciary have done, you will find that the safety standards of which we are really very proud are going to be compromised in a very embarrassing way. Regulations don't kill jobs; they save lives. There are plans underway--this is one of them--here in the House to undermine the regulatory process that guarantees the health and the safety of millions of Americans. I urge all of the Members of the House to carefully consider the direction of this bill. I reserve the balance of my time.

Mr. CONYERS. Mr. Chairman, I am pleased to yield 5 minutes to the ranking member of the Courts, Commercial and Administrative Law Subcommittee, the gentleman from Tennessee, Steve Cohen.

Mr. CONYERS. I yield the gentleman an additional 2 minutes.