[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]



 
  A RUSH TO REGULATE--THE CONGRESSIONAL REVIEW ACT AND RECENT FEDERAL 
                              REGULATIONS
=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON ENERGY POLICY, NATURAL
                    RESOURCES AND REGULATORY AFFAIRS

                                 of the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 27, 2001

                               __________

                           Serial No. 107-14

                               __________

       Printed for the use of the Committee on Government Reform









  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform
                               -------

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75-850                          WASHINGTON : 2002
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                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida         EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York             PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California             PATSY T. MINK, Hawaii
JOHN L. MICA, Florida                CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia            ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia                    ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida                  DANNY K. DAVIS, Illinois
DOUG OSE, California                 JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky                  JIM TURNER, Texas
JO ANN DAVIS, Virginia               THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania    JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida                 WM. LACY CLAY, Missouri
CHRIS CANNON, Utah                   ------ ------
ADAM H. PUTNAM, Florida              ------ ------
C.L. ``BUTCH'' OTTER, Idaho                      ------
EDWARD L. SCHROCK, Virginia          BERNARD SANDERS, Vermont 
------ ------                            (Independent)


                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                     James C. Wilson, Chief Counsel
                     Robert A. Briggs, Chief Clerk
                 Phil Schiliro, Minority Staff Director

Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs

                     DOUG OSE, California, Chairman
C.L. ``BUTCH'' OTTER, Idaho          JOHN F. TIERNEY, Massachusetts
CHRISTOPHER SHAYS, Connecticut       TOM LANTOS, California
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEVEN C. LaTOURETTE, Ohio           PATSY T. MINK, Hawaii
CHRIS CANNON, Utah                   DENNIS J. KUCINICH, Ohio
------ ------                        ROD R. BLAGOJEVICH, Illinois
------ ------

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
                       Dan Skopec, Staff Director
               Jonathan Tolman, Professional Staff Member
                        Regina McAllister, Clerk
                     Michelle Ash, Minority Counsel














                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on March 27, 2001...................................     1
Statement of:
    Gestrin, Terry E., chairman, Valley County Commissioners, 
      Cascade, ID; Evan Hayes, wheat farmer, American Falls, ID, 
      representing the National Association of Wheat Growers; 
      Sharon Buccino, senior attorney, Natural Resources Defense 
      Council; and Thomas O. McGarity, W. James Kornzer Chair, 
      University of Texas School of Law..........................    91
    Gramm, Dr. Wendy Lee, former Administrator, Office of 
      Information and Regulatory Affairs, OMB, and director, 
      Regulatory Studies Program & distinguished senior fellow, 
      Mercatus Center, George Mason University; Marshall E. 
      Whitenton, vice president, Resources, Environment and 
      Regulation Department, National Association of 
      Manufacturers; Dr. Robert H. Nelson, professor, School of 
      Public Affairs, University of Maryland; and Raymond E. Ory, 
      vice president, Baker and O'Brien, Inc.....................     8
Letters, statements, etc., submitted for the record by:
    Buccino, Sharon, senior attorney, Natural Resources Defense 
      Council, prepared statement of.............................   106
    Gestrin, Terry E., chairman, Valley County Commissioners, 
      Cascade, ID, prepared statement of.........................    94
    Gramm, Dr. Wendy Lee, former Administrator, Office of 
      Information and Regulatory Affairs, OMB, and director, 
      Regulatory Studies Program & distinguished senior fellow, 
      Mercatus Center, George Mason University, prepared 
      statement of...............................................    11
    Hayes, Evan, wheat farmer, American Falls, ID, representing 
      the National Association of Wheat Growers, prepared 
      statement of...............................................    99
    McGarity, Thomas O., W. James Kornzer Chair, University of 
      Texas School of Law, prepared statement of.................   116
    Nelson, Dr. Robert H., professor, School of Public Affairs, 
      University of Maryland, prepared statement of..............    51
    Ory, Raymond E., vice president, Baker and O'Brien, Inc., 
      prepared statement of......................................    67
    Ose, Hon. Doug, a Representative in Congress from the State 
      of California:
        Memorandum dated September 25, 2000......................    79
        Prepared statement of....................................     4
    Whitenton, Marshall E., vice president, Resources, 
      Environment and Regulation Department, National Association 
      of Manufacturers, prepared statement of....................    38














  A RUSH TO REGULATE--THE CONGRESSIONAL REVIEW ACT AND RECENT FEDERAL 
                              REGULATIONS

                              ----------                              


                        TUESDAY, MARCH 27, 2001

                  House of Representatives,
  Subcommittee on Energy Policy, Natural Resources 
                            and Regulatory Affairs,
                            Committee on Government Reform,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room 2154, Rayburn House Office Building, Hon. Doug Ose 
(chairman of the subcommittee) presiding.
    Present: Representatives Ose, Otter, and Tierney.
    Staff present: Barbara Kahlow, deputy staff director; Dan 
Skopec, staff director; Jonathan Tolman, professional staff 
member; Regina McAllister, clerk; Michelle Ash and Elizabeth 
Mundinger, minority counsels; and Jean Gosa, minority assistant 
clerk.
    Mr. Ose. The committee will come to order. I want to 
welcome everybody to the meeting of the Subcommittee on Energy 
Policy, Natural Resources and Regulatory Affairs. This morning 
we're having a hearing entitled, ``A Rush to Regulate--The 
Congressional Review Act and Recent Federal Regulations.''
    In the waning days of his administration, President Clinton 
issued a flood of new regulations. Some are surely meritorious, 
others raise serious concerns.
    Congress has a tool to correct defective regulations. It's 
called the Congressional Review Act. We're going to refer to 
that as the CRA. The purpose of today's hearing is to examine 
some of the late-issued rules and to ensure that the 
decisionmaking process was careful and above reproach. The 
hearing will consider not only substantive concerns but also 
procedural flaws in issuance of these rulemakings.
    Earlier this month, the Senate and the House passed a joint 
resolution of disapproval for the Department of Labor's major 
rule establishing a new comprehensive ergonomics standard. The 
reversal of the ergonomics rule is the first instance in which 
the CRA resulted in the nullification of a rule. This reversal 
demonstrated that there is at least one rule that a majority of 
Congress felt was not in the interest of their constituents.
    On December 20, 2000, the three principal procurement 
agencies, the Department of Defense, the General Services 
Administration, and the National Aeronautics and Space 
Administration, issued an amendment to the existing rules 
governing present responsibility, to clarify what constitutes a 
satisfactory record of integrity and business ethics for 
contracting with the government. This is commonly called the 
``blacklisting rule.''
    Since the rule changes could potentially have a significant 
impact on a substantial number of small businesses, the 
agencies mistakenly certified that the rule will not have a 
significant impact on a substantial number of small entities, 
and thus the agencies failed to prepare the required initial 
and final regulatory flexibility analyses. This rule is 
currently being litigated.
    On January 12, 2001, the Department of Agriculture 
published a major rule prohibiting the construction of roads 
and banning timber harvesting on 58 million acres of national 
forest land, or 31 percent of all national forest land. For 
comparison, all of new England, that being Connecticut, Maine, 
Massachusetts, New Hampshire, Rhode Island, and Vermont 
encompass only 44 million acres.
    In the vast majority of the areas affected by this rule, 
the biggest threat does not come from timber conditions but 
from fire. Last year, more than 84,000 fires raged across the 
country, scorching nearly 7 million acres of public land. The 
number of acres harvested each year by comparison is roughly 
half a million acres. The stated goal of the rule is to 
preserve the forests for endangered species, recreation and 
maintenance of water quality. Unfortunately, a forest ravaged 
by serious fire is unlikely to provide any habitat for species, 
little in the way of recreation, and probably a degraded water 
quality. The rule, originally scheduled to become effective on 
March 13th, is being reviewed by the new administration and is 
also being litigated.
    Two days prior to the inauguration of a new President, the 
Environmental Protection Agency published a major rule 
establishing new standards for diesel fuel. Under the rule, oil 
refineries must remove 97 percent of the sulfur in diesel fuel 
by 2006. The current standard of 50 parts per million was 
reduced to 15 parts per million. The reason that sulfur needs 
to be reduced from diesel fuel is not because sulfur itself is 
a major source of pollution but because it interferes with 
catalytic converters and other pollution control devices 
necessary to produce cleaner-burning diesel engines.
    I support the environmental goals of the diesel sulfur 
rule. Diesel engines account for a substantial portion of the 
ozone and particulates that pollute the air of our cities. This 
pollution has a wide range of adverse health effects, 
particularly the evidence linking diesel exhaust to an 
increased risk of lung cancer. Dozens of studies link airborne 
fine particles, such as those in diesel exhaust, to increased 
hospital admissions for respiratory diseases, chronic 
obstructive lung disease, pneumonia, heart disease and up to 
60,000 premature deaths annually in the United States.
    Despite my support for the environmental benefits that will 
be achieved by this rule, I am concerned by the timing, both 
the timing of the rule's publication and the timing of its 
implementation. Economic studies have suggested that our 
Nation's refineries may not be able to produce enough low-
sulfur diesel fuel to meet expected demand.
    As a Member representing California, I can tell you first 
hand it is not a good thing when energy supplies fail to meet 
energy demands. Yet, that this rule was finalized days before 
the end of an administration and just as our Nation is 
struggling with several energy issues is somewhat 
disconcerting.
    I want to welcome our witnesses today. And, prior to 
starting testimony from them, I am reserving the right for Mr. 
Tierney to make an opening statement.
    [The prepared statement of Hon. Doug Ose follows:]
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    Mr. Ose. Mr. Otter, would you care to make an opening 
statement?
    Mr. Otter. Thank you, Mr. Chairman. I do have an opening 
statement that I would like to submit for the record. But I 
will be very brief in the comments that I make now.
    Mr. Ose. Without objection.
    Mr. Otter. I, too, am concerned, Mr. Chairman, about the 
rush to judgment, the rush to regulate that we've had not only 
in the two agencies that are coming before us this morning and 
the devastating effects that they have had on our abilities to 
produce, to travel, to indeed carry on the commerce that needs 
to be carried on not only in my State but also in the entire 
Union. And, because of that, I am particularly happy, Mr. 
Chairman, that you have sought to call this hearing, and I look 
forward to talking to the panels that will be coming before us 
this morning.
    But, I do want you to know that the outcome of this hearing 
and the results that we will be able to go forward on are 
extremely important to us because there's a lot of folks back 
home in Idaho and in the Pacific Northwest that are hoping to 
at least get some relief as a result of this subcommittee 
hearing, Mr. Chairman. So I applaud you in your efforts this 
morning.
    Mr. Ose. Thank you, Mr. Otter.
    This committee typically swears in its witnesses, so if you 
would all rise.
    [Witnesses sworn.]
    Mr. Ose. Let the record reflect the witnesses answered in 
the affirmative. I would like to introduce the witnesses. 
Joining us today on my left is Dr. Wendy Lee Gramm, the former 
administrator of the Office of Information and Regulatory 
Affairs, OMB. She's currently at the Mercatus Center, where she 
is a distinguished senior fellow and runs the regulatory 
studies program.
    Next to her is Marshall Whitenton who is the vice president 
of Resources, Environment and Regulation Department for the 
National Association of Manufacturers.
    And sitting next to him is Dr. Robert Nelson, who is a 
professor in the School of Public Affairs at the University of 
Maryland.
    And our final witness on this panel is Raymond Ory who is 
the vice president of Baker & O'Brien, Inc.
    If you could be so kind as to summarize your testimony 
within the 5-minute timeframe, that would be most appreciated 
and we would be able to get to questions quicker.
    Dr. Gramm.

STATEMENTS OF DR. WENDY LEE GRAMM, FORMER ADMINISTRATOR, OFFICE 
   OF INFORMATION AND REGULATORY AFFAIRS, OMB, AND DIRECTOR, 
   REGULATORY STUDIES PROGRAM & DISTINGUISHED SENIOR FELLOW, 
     MERCATUS CENTER, GEORGE MASON UNIVERSITY; MARSHALL E. 
     WHITENTON, VICE PRESIDENT, RESOURCES, ENVIRONMENT AND 
 REGULATION DEPARTMENT, NATIONAL ASSOCIATION OF MANUFACTURERS; 
  DR. ROBERT H. NELSON, PROFESSOR, SCHOOL OF PUBLIC AFFAIRS, 
  UNIVERSITY OF MARYLAND; AND RAYMOND E. ORY, VICE PRESIDENT, 
                    BAKER AND O'BRIEN, INC.

    Dr. Gramm. Thank you for inviting me to testify on the 
issue of the Congressional Review Act and recent Federal 
regulations. Please note that this testimony reflects my own 
views and not that of either the Mercatus Center or George 
Mason University.
    The objective of the Regulatory Studies Program is to 
advance knowledge of regulations and their impact on society. 
What we do is to analyze regulations and regulatory issues from 
the perspective of the public interest and the typically 
underrepresented consumer. We've long been concerned about the 
growing burden of regulations and recently have focused on the 
phenomenon of midnight regulations, or those regulations 
promulgated during the 3 months following a national election.
    Mercatus scholar Jay Cochran analyzed the number of pages 
in the Federal Register in post-election quarters since 1948; 
although an imprecise measure of regulatory activity, it's 
about the best we have. Dr. Cochran found this phenomenon of 
midnight regulations to be systemic and nonpartisan. This year 
was no exception when the page count in the Federal Register 
jumped by 51 percent when compared with the same quarters in 
the preceding 3 years.
    I have outlined in my written testimony some examples of 
regulations that were finalized during this election period. 
And, you, Mr. Chairman, have commented on many of them. More 
detailed analyses of many of these regulations are available on 
our Web site in the form of public interest comments that we 
submitted during the comment period, as required by the 
Administrative Procedure Act.
    Our public interest comments provide independent analyses 
of agency proposals from the perspective of the public interest 
and not any special interest. Some analyses are performed by 
Mercatus scholars; others are done for Mercatus by outside 
academics and practitioners. Last year, alone we wrote 24 
public interest comments covering most of the regulations being 
discussed today and many more.
    While our public interest comments may be lengthy, we have 
a one-page summary with each public interest comment, along 
with a checklist appended to each one. In the checklist, we 
provide a very simple list of questions that policymakers 
should address when crafting a regulation, and then summarize 
whether or not the agency answered each question, along with a 
grade ranging from A to F for excellent to unsatisfactory. The 
kinds of questions we ask, for example, are did the agency 
identify a specific problem that can't be addressed by either 
market regulation or by other levels of government--State and 
local government.
    We ask whether agencies examined alternative approaches to 
the ones they're proposing, whether they attempted to maximize 
net benefits, whether there is a strong scientific or technical 
basis for the regulation, and, finally, we ask whether or not 
the agencies understood and considered both the distributional 
effects of the regulation on different populations, but also 
how individual choices would be affected.
    I would like to just say a few sentences on some of the 
important midnight regulations, some of which you have 
commented on. The Forest Service roadless area regulation 
covers biologically diverse areas, as you said in your opening 
comments. And, while much public attention has been paid to the 
impact on logging, our concern is that the Forest Service has 
not shown that the ban on road construction is necessary or 
appropriate for protecting other important values, such as 
water quality, wildlife, and recreation in these areas.
    The agency did not consider alternatives to a complete ban, 
such as allowing low-impact temporary roads as needed for 
forest health, fire protection, or ecosystem restoration.
    The Federal Acquisition Regulation Council's blacklisting 
rule shifts the burden of determining whether a firm meets 
proper ethical standards from the agencies authorized by 
Congress to government procurement agents. Under this regime, 
blacklisting replaces the formal process and firms cannot 
answer the charges against them and may be blacklisted for an 
administrative complaint even before evidence is heard.
    HHS's medical privacy regulations are costly, but HHS has 
not identified any net social benefits that can be expected to 
flow from this regulation.
    Arsenic is a naturally occurring substance for which health 
risks have not been observed at the levels found in U.S. 
drinking water systems. EPA justified these standards using 
evidence of risk from high arsenic doses in other countries, 
although those populations smoke more, and have poorer health 
in general. And actually there was a U.S. study of U.S. 
populations where there was no statistical arsenic risk.
    The reporting thresholds for lead under the toxic release 
inventory would be reduced substantially, but release here 
means the amount transferred offsite as waste, or even recycled 
or retreated.
    There are a number of other regulations. I see my time is 
running out. I would like to point out that washing machine 
standards and the energy efficiency standards are also very 
costly to consumers. For the washing machine standards, for 
example, the Department of Energy in their estimates would 
imply that these standards would reduce energy use by 0.16 
percent over a 24-year period, but we think its estimates are 
overstated.
    There are many other regulations worth reviewing, but I 
thank you for your interest in regulations, especially midnight 
regulations, because these are regulations pushed through at 
the end of an administration's term when congressional 
oversight is unavailable and can result in potentially costly 
mandates that may do little to solve an identified problem.
    I also applaud your use of all your authorities, including 
the Congressional Review Act, to ensure that regulations which 
are a hidden tax on citizens are appropriate and advance the 
public interest. Thank you.
    Mr. Ose. Thank you Dr. Gramm.
    [The prepared statement of Dr. Gramm follows:]
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    Mr. Ose. Mr. Whitenton.
    Mr. Whitenton. Mr. Chairman and members of the 
subcommittee, on behalf of the National Association of 
Manufacturers, our 14,000 member companies, large, medium-
sized, and small, and the 18 million people who make things in 
America, I want to thank you for this opportunity to testify 
before you today.
    At the outset, it's important to remind everyone that the 
men and women working in the manufacturing sector share basic 
American environmental health and safety values and want them 
applied in their workplaces, their homes, and their 
communities. Manufacturers certainly do not oppose health, 
safety and environmental rules that are founded in sound 
science and developed in a deliberative and public process that 
is as cost effective as possible.
    However, a number of rules that were hurried through the 
promulgation process in the final days of this last 
administration suffered from a serious deficiency in these 
essential qualities of responsible rulemaking. As a result, 
some recently finalized rules could require huge expenditures 
even for modest, let alone any genuine, protection of human 
health, the environment, and worker safety.
    This hearing properly focuses on unfair or inadequate 
agency rulemaking that technically met the requirements, if not 
the spirit, of the APA as they were rushed to the Federal 
Register before the end of the last administration. Examples of 
rushed rules that have large impacts on manufacturers include 
the EPA's TMDL rule, arsenic rule, TRI lead rule and diesel 
sulfur reduction rule, OSHA's ergonomics rule, and the 
Department of Agriculture's roadless areas rule.
    Other witnesses at this hearing are scheduled to discuss 
specifically the diesel sulfur reduction rule and the USDA 
roadless rule. With respect to the other rules I mentioned, NAM 
supports Administrator Whitman's recent decision to reconsider 
the arsenic rule and asks Congress to require the EPA to 
reconsider the TMDL rule and the lead TRI rule. The NAM 
applauds Congress for its wise and courageous decision to use 
the Congressional Review Act to disapprove the flawed 
ergonomics rule. However, Congress must look at the root of the 
problem. The EPA and OSHA could not have abused the public 
trust if they had not had such a broad delegation of authority 
from Congress.
    Since the World War II era, Congress has established and 
increased the power of non-independent Federal agencies. 
Initially, Congress provided strong checks on the new agencies 
through the one-House veto. In fact, by the early 1980's, there 
were more than 200 statutory provisions that contained one-
House or even one-committee vetoes of regulations.
    With the 1983 Supreme Court decision in INS versus Chadha, 
however, the one-house veto regulation was declared 
unconstitutional. The court ruled that Congress cannot overrule 
an executive branch decision except by passage of legislation 
and presentment or presentation of that legislation to the 
President. In other words, except by passing a law.
    In the mid-1990's, Congress passed the Congressional Review 
Act, which is simply a procedural framework for focusing and 
expediting congressional review and, if necessary, rejecting an 
agency's rule. It is founded on the Chadha principle that 
Congress can only change an agency rule with a law.
    On a personal note, I was privileged to serve with Senator 
Don Nickles when he devised and introduced, along with Senator 
Harry Reid, the Congressional Review Act legislation in 1995, 
and I also had the pleasure of working with the staff of this 
subcommittee the following year, and House Judiciary Committee, 
during the informal conference on that measure following its 
amendment and passage by the House in 1996.
    In the aftermath of the Chadha decision, the CRA has given 
Congress another tool to oversee the implementation of its 
legislative delegations to the agencies. It certainly is not 
the only tool. The TMDL rule, for example, is outside the 
window of CRA review by this Congress. And, we hope it will be 
dealt with in other legislation.
    Congress has not only every legal right to critically 
review agency rulemaking, but it also has a duty to do so. This 
is particularly true today because there are too many statutes 
on the books that give agencies very broad statutory authority 
to meet very general goals. For example, the EPA has authority 
under the Clean Air Act to, ``protect public health with an 
adequate margin of safety.'' In this connection, the NAM was 
very disappointed in last month's Supreme Court decision in 
Whitman v. ATA in which the court declined to agree with the 
D.C. Circuit Court which had found that EPA had interpreted the 
broad authorities in the Clean Air Act in a way that created an 
unconstitutional delegation of legislative power to the 
executive.
    Unfortunately, it seems that Congress is going to have to 
actively address its past broad grants of authority without 
judicial help, and we hope that Congress will be much more 
careful in the future when it is granting authority to the 
Federal agencies. In the meantime, we urge Congress in general 
to follow the example that has been set by this subcommittee of 
conducting frequent and meaningful oversight over the agencies.
    Thank you. I would be pleased to answer any questions you 
might have.
    Mr. Ose. Thank you Mr. Whitenton.
    [The prepared statement of Mr. Whitenton follows:]
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    Mr. Ose. Dr. Nelson.
    Dr. Nelson. I am pleased to be here. I am a professor of 
environmental policy in the School of Public Affairs of the 
University of Maryland, and senior fellow of the Competitive 
Enterprise Institute. My experiences in Federal land management 
include working in the Office of Policy Analysis within the 
Office of the Secretary of the Interior from 1975 to 1993.
    In January 2001, former President Clinton set aside 58 
million acres of new roadless areas on the national forests. 
This was adding to an existing 35 million acres of roadless 
areas in the national wilderness system that had previously 
been approved by Congress. Combined, if the Clinton action 
stands, congressionally approved and de facto wilderness areas 
would now equal 93 million acres, almost half of the total land 
in the national forest system. This is a vast amount of land to 
set aside in such a restrictive land status that precludes most 
management actions. Congress should now, I believe, act to 
apply the provisions of the Congressional Review Act to rescind 
these designations.
    There are also procedural failings. Prior to the Clinton 
designations, local citizens in good faith put in countless 
hours in learning about, discussing and debating the land 
management options for the nearby national forest lands. The 
Clinton roadless mandates amounted to a betrayal of the trust 
of these citizens in the land use planning process for national 
forest decisionmaking.
    The Clinton actions also swept aside a longstanding role of 
the U.S. Congress. Since the Wilderness Act of 1964, Congress 
has specifically approved each new permanent wilderness area. 
The Clinton administration simply bypassed this process to 
increase the total effective area of wilderness on the national 
forest system by 160 percent.
    Most management options will automatically be precluded 
over the 58 million acres of roadless areas. What may be 
helpful for the Congress is to consider some of the many 
potentially desirable and even necessary management actions 
that would now be ruled out in the future without further 
consideration.
    Despite the appealing public image of protecting nature 
little touched by prior human impact, according to the Forest 
Service's own figures, about 50 percent of the newly designated 
roadless areas in the lower 48 States actually consist of 
declining forests in a moderate state of ill health, ecological 
deterioration, and fire-prone conditions.
    The principal reason for their dire condition is the 
previous century of the Forest Service following an active 
policy of suppression of forest fire. By the fall of 2000, the 
Forest Service had established priority areas for forest 
treatments to reduce excess fuels and fire hazards, including 
14 million acres within the Clinton roadless areas. These 
treatments will largely be ruled out by the roadless 
designations, leaving the West to face greater forest fire 
hazards, as seen in the summer of 2000.
    The roadless designations will also make it ``harder to 
fight wildland fires.'' When intense and historically 
unprecedented fires burn, the Federal Government not only ends 
up spending huge amounts of money fighting them, more than $1 
billion in 2000, but also the fires can do significant 
environmental damages.
    The largest economic values that would be automatically 
foreclosed by the roadless designations involve future losses 
in recreational opportunity. If the Clinton actions stand, they 
will leave 56 percent of the total national forest lands set 
aside for primitive recreation, and 44 percent will be 
available for all the many other forms of more developed forms 
of recreation. Yet, activities associated with developed 
recreationsites are more popular with the American public and 
are also the most rapidly growing. Hikers, hunters, fishermen, 
snowmobilers, skiers, bird watchers, and many others, will all 
face new limits on the ability to expand their recreation 
opportunities.
    A total of 7.6 million acres of land with oil and gas 
potential are found within designated roadless areas. According 
to a recent study commissioned by the U.S. Department of 
Energy, a mean estimate of about 11 trillion cubic feet of 
natural gas may underlie the designated roadless areas and 
would largely be lost for exploration and production.
    In summary, as I said, I am not arguing for any particular 
management in the future for any particular area of land in the 
national forests. Roadlessness may be appropriate in some 
places. But to seek to impose a single national land standard 
is the central error of the Clinton actions. These actions try 
to resolve such matters from Washington, DC. My concern is to 
maintain our future management options. Without any adequate 
justification, the Clinton roadless designations would preclude 
many important management actions that could offer large 
benefits to the American people. The Congress should act 
promptly to restore an element of common sense to national 
forest management.
    Mr. Ose. Thank you Dr. Nelson.
    [The prepared statement of Mr. Nelson follows:]
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    Mr. Ose. Mr. Ory.
    Mr. Ory. My name is Raymond Ory and I am vice president of 
Baker & O'Brien, an independent consulting firm serving the 
domestic and international petroleum processing industries.
    For more than 26 years, I have consulted to the petroleum 
industry on matters involving commercial, strategic, and 
technical issues. In September 2000, I coauthored a study for 
the American Petroleum Institute, assessing the impact of 
sulfur regulation on the supply and price of diesel fuels in 
the United States. The new regulation was driven by the need 
for future diesel fuel vehicles that employ new, emerging low 
emissions technology. In general terms, this new law applies to 
all refiners and importers and requires that sulfur levels in 
at least 80 percent of the diesel fuel produced for on-road use 
be 15 parts per million or less by June 1, 2006. This 
represents a reduction of 97 percent from the currently 
mandated levels of 500 parts per million. On May 31, 2010, 100 
percent compliance is mandated.
    This new law is but one of a number of recent and emerging 
rules that will impact the refining industry during this 
decade. While each is a cause for concern, collectively they 
present a formidable challenge for even the most financially 
capable within the industry. These regulations give rise to a 
number of concerns. Refiners will need to make significant 
capital investments, and compliance will tend to further reduce 
capacity and invariably strain the volume of products being 
produced.
    Some refiners will be unable to support the level of 
defensive investment necessary to comply and will seek to 
divert product to export markets or withdraw from certain 
domestic product markets. In some instances, the financial 
inability to comply will result in the company exiting from the 
refining business.
    In forming its rule, the EPA believes that the industry 
will respond in such a manner as to provide adequate domestic 
supply, at a relatively low cost, and with little disruption 
and little difficulty within the pipeline and distribution 
systems. While we believe that the industry will, as it always 
has, engage in investment and infrastructure change consistent 
with the law, we also believe that the cost will be greater, 
the difficulties more onerous, and a high potential for supply 
disruption and price spikes will exist during the transition 
period. This will be the result of insufficient regional 
supplies necessary to satisfy demand.
    We believe that this new law will have a dramatic 
consequence to the overall business of refining, distribution 
and marketing of petroleum products in the United States. It is 
capital-intensive within the refining structure and will also 
require investment and change in much of the national 
infrastructure, some of which will be redundant after 2010. The 
range of capital investments necessitated by the law is 
arguably between $5 and $8 billion, or between $40 million and 
$60 million for the average refinery.
    In the past year, regions of the United States have 
experienced price spikes in gasoline and heating oil, natural 
gas and electricity. Despite the impact of such occurrences on 
the consumer and local economies, we believe that this is 
evidence that fundamental economics are at work. When supply is 
insufficient to satisfy demand for any reason, market prices 
will rise to levels sufficient either to decrease demand or to 
attract additional supply.
    In the short term, this can represent significant price 
increases. I believe that under the provisions of the current 
rule there is a high probability that such conditions will 
exist in the 2006 to 2007 period that could cause regional 
supply shortfalls and price spikes in ultra-low sulfur diesel 
as well as 500 parts per million diesel. Thank you.
    [The prepared statement of Mr. Ory follows:]
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    Mr. Ose. I want to thank the witnesses for their testimony. 
For the record, I want to enter into the record a memorandum 
dated September 25, 2000 from Michael Sipple regarding the 
blacklisting, proposed blacklisting rule at that time.
    [The information referred to follows:]
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    Mr. Ose. I will recognize the gentleman from Idaho for 5 
minutes for questions.
    Mr. Otter. Thank you very much, Mr. Chairman. I would like 
to start off by asking Dr. Gramm if the study, the U.S. study 
that you referred to relative to the arsenic levels, do you 
have that report? Is that available?
    Dr. Gramm. I believe that's available. It was a study of 
the Mormon population. And it is probably in the record as 
well. It would be in EPA's docket. Would you like me to get it 
for you?
    Mr. Otter. I would like very much, Mr. Chairman, not only 
to have Dr. Gramm provide that for the committee, but also make 
that an official part of this committee hearing record.
    Mr. Ose. Without objection.
    Mr. Otter. Thank you very much Mr. Chairman.
    Dr. Gramm, in the Mercatus Center checklist, will these 
rules and regulations make it better off for the people, and is 
it a good thing for us to do? Would you run through that 
checklist--the 7 points right quick for me?
    Dr. Gramm. Yes. And, what we do I'll show to you. And I 
have appended to this record in my testimony a list of all the 
comments we've done on specific rules so you can look at these 
checklists.
    But, we ask the question, has the agency identified a 
significant market failure or a systemic problem? Has the 
agency identified an appropriate Federal role? Has the agency 
examined alternative approaches? Does the agency attempt to 
maximize net benefits? Does the proposal have a strong 
scientific or technical basis? Are the distributional effects 
clearly understood? And, No. 7, are individual choices and 
property impacts understood?
    Mr. Otter. Would you then, Dr. Gramm, using that checklist, 
describe for me the school's--your checklist in grading on the 
Forest Service's roadless rule?
    Dr. Gramm. Under whether or not the agency has identified a 
significant market failure: we've given them an unsatisfactory.
    Mr. Otter. Was that the same as an F?
    Dr. Gramm. As an F, that's right. As a matter of fact, we 
have shifted from verbal--satisfactory, etc.--to just letter 
grades.
    Mr. Otter. That may be great for elementary school kids but 
trust me, Dr. Gramm, we need F's and A's in Congress.
    Dr. Gramm. F. F. Unsatisfactory, F.
    And has the agency identified appropriate Federal role? C.
    Alternative approaches, have they considered alternative 
approaches? F.
    Do they attempt to maximize net benefits? F.
    Does the proposal have a strong scientific or technical 
basis? F.
    Are the distributional effects clearly understood? F.
    And, are the individual choices and property impacts 
understood? F.
    And, what we also do is we put a sentence in explaining the 
agency approach, and then our comments.
    Mr. Otter. Thank you very much, Dr. Gramm.
    I would like to now move to the next witness. Sir, I was 
particularly interested in your historical review of what has 
happened with the Administrative Procedure Act in Congress. 
And, specifically, I do know that, when Congress entertains to 
pass a piece of legislation, even though this is my first term 
here, I'm already well aware of the ``power to enforce clause'' 
and I'm sure you know that, too. But, just to remind us both 
that we're both speaking from the same page, the final clause, 
the enacting clause says, ``and the director shall promulgate 
such rules and regulations necessary to carry out the 
provisions of this Act.''
    Do we agree that's the delegation of authority then to the 
agency or the Secretary?
    Mr. Whitenton. As I understand what you're asking, do we 
agree with the Constitution? And, yes, of course we would. The 
Congress does have the power to delegate. Hopefully--we believe 
it also has the obligation to keep track of what the agencies 
do with that delegation and to keeping--setting the course 
right when the agencies fail.
    Mr. Otter. Yet, in three of the court cases that you 
mentioned in your discussion, in your opening statement, that 
power to enforce clause was in fact absent from two of those, 
wasn't it?
    Mr. Whitenton. I'm not sure, sir, what you're saying.
    Mr. Otter. One of the questions before the court in the 
1983 case, wasn't it whether or not the Congress had delegated 
its authority to promulgate rules and regulations in that 
instance?
    Mr. Whitenton. It's my understanding that Congress had 
delegated, but it was reserving too much, so therefore it was 
not delegating properly.
    Mr. Otter. Then it was a question of extent; is that right?
    Mr. Whitenton. Yes, sir.
    Mr. Otter. Would it be the only way for Congress to regain 
its proper role to not put that clause in?
    Mr. Whitenton. To not put the one-House veto in?
    Mr. Otter. No, to not put the power to enforce clause in 
that suggests that the Secretary or the department shall 
promulgate such rules and regulations necessary to carry out 
the provisions of the act?
    Mr. Whitenton. We certainly believe that the proper 
approach would be for Congress to take a much tighter view on 
what it delegates in the first place so we do not get into the 
problem, and be a little more specific and be much more 
reluctant to give the power to agencies, and give more guidance 
to the agencies in the promulgation of rules.
    Mr. Otter. Thank you very much.
    Dr. Nelson, in your testimony you suggested that not only 
was the Clinton administration, as we have suggested, in a rush 
to regulate and a rush to judgment, would, in your estimation 
of environmental studies, the roadless rule do more harm than 
good or more good than harm?
    Dr. Nelson. I think it would be more damaging. 
Environmentally it would be more damaging on the whole. 
Basically it precludes taking a whole host of actions that 
could be environmentally beneficial. As I mentioned, the 
Clinton administration and the Forest Service had developed 
plans for fuels treatments on Western national forests because 
of the stressed, diseased condition of these forests. Many of 
them are fire-prone and unhealthy, they include about a third 
of the roadless areas in the lower 48 designated by the Clinton 
roadless rule. Those would be largely precluded from future 
management. So those areas would then be left in their current 
unhealthy and fire-prone condition. If fires break out, as 
we've seen, and especially in the current highly overstocked 
condition of Western forests, they can do a lot of 
environmental damage as well as threaten lives and property, 
and cost $1 billion for the Federal Government to try to 
suppress.
    Mr. Otter. I thank you very much, Doctor. Thank you, Mr. 
Chairman.
    Mr. Ose. We'll have another round if you have additional 
questions.
    Dr. Nelson, I represent a district that has significant 
forests in and around it, and the people who live in my 
district use the forests for recreation, vacation time, family 
time and the like. The thing I'm curious about is that, in 
addition to the environmental benefits, the roadless rule seeks 
to preserve recreation values which would be very important to 
the people in my district.
    The question I have is--I actually have a couple of 
questions. Does the rule, as crafted, maximize the recreation 
opportunities within our national forests or does it favor 
certain types of recreation over others or certain recreation 
users over others?
    Dr. Nelson. Well, I think it clearly favors what we might 
call the 20-year-old backpacker or anyone else who has the 
energy to hike 10 or 20 miles at a time and is interested in 
camping in the back country. It definitely is going to impede 
the future opportunities to expand recreation for a host of 
other kinds of people--hunters, fishermen, snowmobilers, 
ordinary hikers who may want to walk 3 miles, as is more the 
style of the average person, 3 miles in and 3 miles out. That 
doesn't get you very far into a lot of wilderness areas.
    As I mentioned, 56 percent of the total national forest 
lands would now be left in a status basically suited for 
primitive recreation. Primitive recreation is a relatively 
small part of the total recreational base. There were something 
over 90 million picnickers in the national forests in 1994 and 
1995, and about 15 million backpackers. And, there were similar 
results in all the other numbers that you look at. The use of 
developed recreationsites is vastly greater than the levels of 
primitive recreation on the national forests.
    Mr. Ose. Before we leave that point, you're suggesting that 
the use by general recreation is 6 times that, at least by your 
numbers, the 90 and the 15 of primitive recreation users?
    Dr. Nelson. I was actually saying picnickers. But yes, I 
think that's reasonable. There are other areas of more 
intensive recreational activity which have numbers approaching 
100 million per year. As I say, backpackers are the more 
primitive forms of recreation--you might be looking at 10, 20 
million per year.
    Mr. Ose. Let me ask this question very directly, then. To 
the extent that we have a roadless policy, it's your opinion 
there will be certain areas that will then be off limits to the 
picnickers or general recreational users just by the nature of 
having no ability to get there?
    Dr. Nelson. Basically people drive to get at least within a 
reasonably short distance to get to these areas. Ninety percent 
of the use of forest service roads right now is for 
recreational purposes. Now, of course, where you have the 
existing road network, that is still going to be there. So what 
we're talking about is roadless areas which hold the 
opportunities for expanded future recreation use to meet 
increasing recreation demands on the part of the American 
public. Especially if you look at the areas where recreation 
demands are increasing most rapidly, it's for the developed 
forms of recreation. Unfortunately, some of the baby-boomers 
and so forth are getting older and don't want to walk as far.
    Mr. Ose. It happens.
    Dr. Nelson. It also turns out that if you start looking at 
the statistics, it's quite interesting. Minority groups--
Blacks, Hispanics, and so forth--have quite strong preferences 
for developed recreation relative to these primitive forms of 
recreations. Actually, primitive forms of recreation are the 
particular domain of college-educated, relatively wealthier 
portions of the population.
    Mr. Ose. So you have been able to draw a connection between 
the availability of some of these roadless areas and the 
ability of some of our lower-income or other groups to access 
recreational lands?
    Dr. Nelson. As part of my preparation for this testimony, I 
did look fairly exhaustively at the Forest Service's own 
environmental study. And it's quite clear about these matters. 
So I'm not simply basing it on my opinion, I'm using the 
existing documented record prepared by the Forest Service.
    Mr. Ose. My time has expired.
    Mr. Otter for 5 minutes.
    Mr. Otter. Thank you, Mr. Chairman. I would like to go back 
to the question with Mr. Ory on the diesel fuel. During your 
testimony you referred to a shortage of diesel fuel. Does your 
study attempt to discuss or figure out how much of a shortage 
there is going to be?
    Mr. Ory. The study that we conducted was, as I indicated, 
really as an assessment of the notice of proposed rulemaking. 
And it was conducted in September, approximately September of 
last year. And given those criteria and the provisions of the 
notice, the shortage was approximately 15 percent nationally.
    There were certain regions of the country that were more 
exposed than others; in particular, the mountain States.
    Mr. Otter. How much was the shortage going to be in the 
mountain States, in the Pacific Northwest?
    Mr. Ory. I don't remember the numbers specifically, but 
higher; 30 percent, 25 or 30 percent.
    Mr. Otter. My sources tell me that 37 percent is probably 
pretty close. So I would be willing to halve that with you and 
go with 34 percent if that's all right with you.
    Mr. Ory. You have my permission.
    Mr. Otter. What in your estimation would that do to the 
price?
    Mr. Ory. Well, I think we have a very valid example of what 
those kinds of shortages or conditions, I should say, can do to 
price. And, looking at the situation in California on 
incremental power costs and natural gas, and certainly looking 
at some of the regional shortages that occurred in the upper 
Midwest in the middle of last year, in the summer of last year, 
and there is expectation that a similar condition will occur in 
the summer of this year, the price can go as high as it takes 
to do one of two things: to either discourage demand, or to 
cause very expensive increments of supply to occur.
    Mr. Otter. What was your estimate that the shortage was 
going to be in California?
    Mr. Ory. From an ultra-low sulfur diesel standpoint, the 
State of California is actually balanced. We didn't see a 
particular condition existing in that part of the country. And, 
the reason for that is that the State of California has already 
spent their big dollars in reaching their so-called carb diesel 
rule back in 1995, so they have to spend incremental dollars to 
only take out the sulfur. So they will be the least affected. 
We didn't foresee any shortage there.
    Mr. Otter. And, those trucks that would be bringing 
products and services, products into the U.S. economy, say, 
from Mexico and from Canada, would they have that--the same 
impairment on their use of diesel?
    Mr. Ory. No, not to my knowledge.
    Mr. Otter. Only for the diesel that they purchased while 
they were in the United States?
    Mr. Ory. That's correct.
    Mr. Otter. And, also, Mr. Ory, the use of nonroad diesel, 
did you make--did your study include nonroad uses?
    Mr. Ory. No, it didn't. That's an issue yet to be decided, 
I understand, by the EPA.
    Mr. Otter. OK. So, we could have the trucks that are 
actually taking the gas to market that would be regulated, and 
they're moving around, so there's a certain displacement of 
their ``pollutants,'' right?
    Mr. Ory. That's right.
    Mr. Otter. Yet the energy-producing, the electrical-
producing generator that may be sitting just off my backyard, 
which would be sitting in one place and not going anywhere, its 
pollution could be concentrated just in that area. So, we have 
one area that is being regulated and another not.
    Mr. Ory. That's correct. Diesel in stationary uses or off-
road uses, as the definition may be, has yet to be regulated.
    Mr. Otter. Does your study divide up the quantity use 
between the two? What percentage is used that would be 
regulated and what percentage not?
    Mr. Ory. When we look at--and not to get overly technical 
here--of the fuel that goes into combustion engines, let's say 
of any type and nature, some of which are in heavy trucks, 
we're all familiar with those. Those are called on-road uses, 
and they represent approximately 55, 56 percent of that part of 
the petroleum barrel that is generically called distillate fuel 
oils. Approximately another 30 percent to 35 percent is off-
road uses, and the rest is heating oil.
    Mr. Otter. One last question, Mr. Chairman, 45 percent then 
is not regulated?
    Mr. Ory. That's correct.
    Mr. Otter. Thank you very much.
    Mr. Ose. I want to come back to Dr. Nelson, if I could. The 
Forest Service put out an environmental document on the 
roadless policy. I mean, they're required to do that. They 
released it in November 2000. If I understand your written 
testimony on page 2, the actual document that the Forest 
Service put out in the form of the final EIS noted a change in 
the procedure by which the Forest Service promulgated this 
rule. That is, they went away from a historical collaborative 
approach toward one that was almost top-down, if you will. 
Could you expand on that, please?
    Dr. Nelson. Well, the Forest Service, based on a mandate 
from the Congress which goes back to the National Forest 
Management Act of 1976, is directed to, and in fact has been 
preparing land use plans for each national forest. These land 
use plans are a continuing process. It involves extensive local 
involvement of the citizenry. The people who are requested to 
participate in this process do so with the expectation that the 
land use planning process is, in fact, going to govern the 
future uses, as the Congress seemingly directed, of the lands 
in these particular national forests.
    Essentially this Clinton roadless process bypassed and 
superseded that land use planning process in which local people 
had invested their time, their energy, and their trust. And, so 
in that sense, I believe that there may even be some legal 
questions raised, but certainly it was a violation of the trust 
that the citizens had put in the Forest Service. The 
expectations had been created by the Forest Service that land 
use planning would drive the outcomes on these forests.
    Instead, now a third of the national forest system, a 
national dictate from Washington, DC, superseded all that land 
use planning effort.
    Mr. Ose. I think the operative thing I would like to 
emphasize, I'd like to repeat it for the record, is on page 2 
of your testimony you cite the Forest Service's final EIS, 
``The roadless rule contradicts the past emphasis placed on 
collaboration, and instead reflects a strategy of maximizing 
national prohibitions on the use of National Forest lands,'' 
which is exactly what you've just said. So I appreciate your 
highlighting that in your testimony.
    Now, Mr. Whitenton on page 2 of your testimony, in the--
let's see, 1, 2, 3, 4, 5, 6, 7th line from the bottom, I don't 
quite understand something. Where you're talking about the U.S. 
Court of Appeals of the D.C. Circuit vacating the EPA 
interpretive guidance as unenforceable. Is there a word left 
out there? Shouldn't it have the word--between ``had'' and 
``legal,'' shouldn't the word ``no'' legal force and effect be 
in there?
    Mr. Whitenton. That is certainly correct. Yes, sir.
    Mr. Ose. OK. I struggled with that last night.
    Finally, I want to ask Dr. Gramm a couple questions on the 
blacklisting. As I understand the blacklisting rule--we worked 
on this last session of Congress--there is a duty or an option 
on the part of the contracting officer to entertain allegations 
of behavior that might not comply with someone's standards, and 
that those allegations can be used as rationale for 
disqualification of a bidder. Am I correct on that?
    Dr. Gramm. That is correct. Indeed, if there is a complaint 
brought by an administrative agency, that could immediately 
cause you to be blacklisted, even before you've provided 
evidence to the contrary or allowed a hearing.
    Mr. Ose. Why would--I mean, in a sense that's almost being 
judged guilty before you're proven innocent, which is seemingly 
a little bit backward.
    Dr. Gramm. I believe you have it right, because it does 
shift the burden of proof.
    Mr. Ose. To the potential contractor.
    Dr. Gramm. That's correct. To prove himself innocent if a 
complaint is brought, but before he goes through the 
proceedings. And, indeed, and again, this is a regulation we 
actually did not do a large public interest comment on, but it 
was a regulation we focused on during the midnight period. And, 
there are some procedural issues. For example, it appears that 
this authority that might have been delegated, for example, to 
the National Labor Relations Board on some labor issues or 
differences that might come up. In fact the blacklisting rule 
would abrogate and supersede what Congress had given to the 
National Labor Relations Board and those procedures.
    Mr. Ose. My time has expired. I may come back to this with 
you.
    The gentleman from Massachusetts.
    The gentleman from Idaho for 5 minutes.
    Mr. Otter. Thank you once again, Mr. Chairman. I would like 
to go now back to Dr. Nelson relative to the study that was 
made by the Forest Service. In the reports on the roadless 
area, the Forest Service said that they had received 1.1 
million comments. Would you agree--is that what the study said?
    Dr. Nelson. I believe that's correct, something of that 
magnitude.
    Mr. Otter. Do you feel like the citizens of the United 
States, the citizens of the affected areas, had an adequate 
opportunity to testify?
    Dr. Nelson. I think that they were given adequate 
opportunity to comment on the roadless rule. But, the end 
result was always going to be this single national 
determination. And, I believe also that the Forest Service, as 
in fact it has documented in its own materials, ran into many 
strenuous objections in its planning and its hearings and the 
consultation process that it engaged in. But, yes, it did give 
people quite a bit of opportunity to comment.
    Mr. Otter. The actual scoping process was 120 days, was it 
not?
    Dr. Nelson. I believe so. I'm not sure.
    Mr. Otter. We had 1.1 million comments that they took 120 
days to gather and then analyze. So, roughly, you wouldn't have 
any idea would you, Doctor, how many people were involved in 
this process?
    Dr. Nelson. I really--no, I don't know. But they did issue 
it as a draft and then it was another 5 months from the draft 
to the final.
    Mr. Otter. During that time period, there should have been 
some analysis of the input that was made during the scope of 
the hearings.
    Dr. Nelson. You would assume so.
    Mr. Otter. And, try to reflect that.
    Dr. Nelson. Yes.
    Mr. Otter. By my calculations, if we took that entire time 
for the analysis, it would have taken about 8,000 comments per 
day or roughly 1,000 analyses per hour in order to--by however 
many people were involved--in order to come up with the final 
result and, if that final result was truly going to represent 
the input that was received during that scoping hearing. Would 
you agree with that?
    Dr. Nelson. Yes, I'm sure that they had a huge volume of 
material to deal with, there is no doubt about that.
    Mr. Otter. As a professor of environmental studies, what 
would you instruct to your students during their process of 
trying to arrive at a proper program or, let's say, a proper 
rule in the future? Would you suggest that they could take and 
analyze 8,000 comments a day and, in the process, come out with 
a rule which would be representative of what was necessary? 
Or----
    Dr. Nelson. Well, I'm sure that the Forest Service found 
that there were certain common themes through a lot of these 
comments. So, although they did receive a million, there 
obviously weren't a million separate issues. I do think, 
however, that there was a great deal of selection, especially 
in the selection of the alternatives for the final 
environmental statement, which were very narrowly construed. 
There were four alternatives. Three of them were all versions 
of the roadless policy and the other one was no action.
    There were a host of other possibilities that could have 
been raised, and not only could have but should have been 
raised. They include various forest fuels treatment 
alternatives, different forms of timber harvesting, different 
forms of use of roads. I don't know whether it was specifically 
due to their failure to take account of the comments. It 
probably was to some extent, but whatever the explanation, I 
would definitely fault the Forest Service for a failure to 
consider an adequate range of alternatives.
    However, I would say that, despite all the failures, if you 
actually read the EIS document rather closely and you discount 
for some of the rhetorical flourishes that are there because 
the administration is obviously defending its own policy, I 
believe the document actually makes a rather strong case 
against this policy. So, I have tried in my written testimony 
to show some of the reasons why, if you actually read the 
document, I think a fair-minded reader could only come away 
with a conclusion that this is a significant mistake to pursue 
this roadless policy in the manner proposed.
    Mr. Otter. Thank you very much, Mr. Nelson.
    Mr. Whitenton. Mr. Chairman, I want to apologize. When you 
asked me the question about whether the word ``not'' should be 
inserted on page 2, I do want to explain that it was 
accurately, if inartfully drafted, as written. The court in 
Appalachia Power v. EPA had vacated the EPA guidance because it 
had forced an effect of law and because they hadn't followed 
APA procedures. If the EPA had followed the proper rulemaking 
procedures, then the court would not have vacated the guidance.
    Mr. Ose. I understand your point. It was inartfully read 
also, so I want to make that clear. I appreciate the 
clarification.
    Dr. Gramm, if I might, I want to go back to the 
blacklisting issue. We talked a few moments ago about 
allegations being disqualifiers if the contracting officer 
found them sufficient. The concern I have is the compounding 
effect of that. If we had a contractor who is in front or 
before the government seeking to provide a service, allegations 
surface that its behavior or its standards are unacceptable to 
some third party, how do you ever stop or resolve such a 
process?
    Dr. Gramm. I think that's the very great difficulty. You 
could inflict great harm for what may be a complaint for which 
there isn't strong evidence--that that complaint should go 
forward. And, this would supersede and abrogate a number of the 
formal procedures and safeguards that are already in place to 
deal with those kinds of complaints. For this reason the 
members of that FARC council have opposed this particular 
regulation.
    Mr. Ose. So the FARC council itself opposed the regulation?
    Dr. Gramm. That's right. General Services Administration, 
the Environmental Protection Agency, NASA, and the Defense 
Acquisition Regulation Council oppose the regulation. The FARC 
council that proposed the regulations included some of these 
members, DOD, GSA and NASA, but yet the members also oppose the 
regulation.
    Mr. Ose. All right.
    Dr. Gramm. If I could raise another issue on some of the 
issues----
    Mr. Ose. If I may, I do want to go back to an earlier part 
of your testimony. You offered testimony about the grades on 
some of the rules in terms of compliance with standards or 
procedures. Would you be willing to submit for the record the 
grades that you have with you for the various rules that are 
the subject of our concerns?
    Dr. Gramm. Yes. As a matter of fact, I would like to 
include the whole public interest comment, when we have a 
written public interest comment, which will be more amplified.
    Mr. Ose. Without objection, we will accept that.
    So go ahead.
    Dr. Gramm. May I raise a few issues that have been raised 
on some of the other issues? I rather rushed through my oral 
statement, trying to keep under the time. But, on the roadless 
rule, I by and large agree with what Dr. Nelson has said, and I 
raise one question. I believe that in the proposed rule the 
Forest Service was going to exclude Tongass, but in the final 
rule they included Tongass, and that is a very major change 
that perhaps should have gone out for further comment.
    On TMDLs, which Mr. Whitenton has discussed, I wanted to 
say that EPA's approach to water quality management in the TMDL 
rule would attempt to address water bodies that are not meeting 
standards, but its approach is very procedural, very 
prescriptive, and would create a program for water that is much 
like the State implementation program that we have for air. And 
I would argue that has some severe issues especially as it 
relates to unfunded mandates.
    With regard to the diesel rule, which we again have 
information that I didn't go into here, I would point out that 
the diesel rule aims at reducing the amounts of emissions, but, 
in fact, most of the areas are already in compliance with the 
Clean Air Act. So, you have all these costs imposed in areas 
where they are already in compliance with the Clean Air Act.
    Finally, on energy efficiency standards, which I rushed 
quickly through, I would point out that the air-conditioning 
and the heating efficiency standards would particularly 
adversely affect consumers in the Pacific Northwest and other 
areas where they do not use these machines as much as what the 
Department of Energy has assumed.
    Mr. Ose. Thank you. I want to thank our witnesses, Dr. 
Gramm, Mr. Whitenton, Dr. Nelson, Mr. Ory, for joining us this 
morning. I appreciate your testimony.
    Dr. Gramm. Thank you.
    Mr. Ose. We will now ask the second panel to join us. That 
would be Terry Gestrin, Evan Hayes, Sharon Buccino, and Thomas 
McGarity, please.
    As with the first panel, I would ask these witnesses please 
rise to be sworn in.
    [Witnesses sworn.]
    Mr. Ose. Let the record show the witnesses answered in the 
affirmative. I would like to recognize the gentleman from 
Massachusetts for the purposes of an opening statement.
    Mr. Tierney. Thank you, Mr. Chairman. I apologize for 
making this statement at this point in time but one of our 
deregulated agencies, the airlines, doesn't seem to do its job 
very well these days and we were delayed considerably getting 
in.
    Mr. Chairman, I thank you for holding this hearing and I 
have no objection to you having discussion and conversation 
about whether or not the Clinton administration rushed through 
regulations before going through necessary checks and balances. 
However, I think we also have to look at the actions taken by 
the Bush administration and Congress in its recent rush to 
deregulate.
    Near the end of the Clinton administration, many important 
environmental, labor, and health protections were issued. Many 
were the result of years of thorough analysis of numerous 
scientific and economic studies and volumes of public comment. 
For instance, Mr. Chairman, before issuing the rule that 
protects inventories of roadless areas in our national forests 
from roads and logging, the Clinton administration received a 
recordbreaking 1.6 million comments; 95 percent of those 
comments urged the adoption of stronger protection for roadless 
areas. The Forest Service also held over 600 public meetings 
where it heard from the communities that would be directly 
affected by the rule.
    Congress held a number of hearings on this rule and 165 
Members of Congress wrote a letter asking that roadless areas 
be protected from roads for logging and mining. There are 
opponents to the roadless rule, as you would expect from any 
regulation. However, I don't see how they can claim that this 
was rushed when it was issued or it was issued without adequate 
public participation.
    In another instance, the EPA issued its new stricter 
standard for arsenic in drinking water. Under the old standard, 
the National Academy of Sciences estimated that 1 out of 100 
people would get bladder, lung, skin, kidney, or liver cancer. 
This risk is about 100,000 times greater than the cancer risk 
that we allow for food.
    It was long past time to update the standard and, in fact, 
Congress should have required the revision of the standard over 
25 years ago. The EPA issued a proposed Rule 18 years ago, and 
again in June 2000. After reviewing over 1,000 comments and 
numerous scientific and economic analyses, the EPA issued its 
final rule. Again, the public had plenty of opportunity to 
express its views and any rush was the result of congressional 
mandates.
    Similarly, rules protecting the confidentiality of our 
medical records, setting new emission limits for diesel trucks 
and buses, and ensuring that lawbreakers are not rewarded with 
Federal contracts were the result of a lengthy, thorough public 
process. They are not ``midnight regulations'' that were rushed 
through the process without public input or thorough review of 
scientific and economic studies.
    However, the same cannot be said for the actions recently 
taken for those opposed to rules. In its rush to undermine the 
roadless rule, the arsenic standard, and the contractor 
responsibility rule, the Bush administration has suspended 
these rules without giving the public notice and an opportunity 
to comment on suspension. And, as some witnesses will explain, 
these suspensions may well have been illegal.
    I am also concerned about the use of the Congressional 
Review Act to disapprove these labor, environmental and health 
protections. The procedures for disapproval leave very little 
opportunity for debating these issues. When Congress 
disapproved the ergonomics rule, debate in the House and Senate 
combined was limited to 12 hours, only 2 of those in the House, 
with little or any notice given to the public to share their 
concerns about disapproval. It would be unfair to the public to 
undo the final result of a thorough public process in such a 
rushed manner.
    Furthermore, congressional disapproval is a harsh remedy 
that severely limits the opportunity to enact a similar rule in 
the future. Thus, we ought to take great care in deciding to 
use this drastic measure to undo rules that were enacted 
pursuant to a thorough public process.
    Mr. Chairman, there are very serious questions behind the 
current rush to deregulate. Sunday's Washington Post indicated 
that the coal industry, which has provided over $12 million to 
Republicans, is the primary beneficiary of many of the proposed 
revisions and repeals. The new arsenic standard makes it harder 
for mining companies to pollute our drinking water. The 
roadless rule would make it more difficult for the mining 
industry to destroy pristine areas in our national forests. And 
another threatened rule strengthens environmental protections 
applicable to the mining industry and makes it harder for the 
mining industry to escape liability for environmental 
violations.
    All of these rules have been targeted for repeal by the 
Bush administration and the Republican Majority in Congress. 
The Post article entitled, ``Coal Scores With Wager on Bush,'' 
reports that ``Few businesses placed as big a bet on the 
Republicans in the last election as the coal industry which 
gave 88 cents out of every dollar in campaign contributions to 
GOP candidates or organizations. Two months into the Bush 
Administration, that wager has begun to pay off.''
    The article lists the close connection between coal 
lobbyists and the administration. It reports ``Among them were 
Irl Engelhardt, chairman of the Peabody Group, the Nation's 
largest coal enterprise, whose holding company contributed 
$250,000 to the Republican National Committee in July. 
Engelhardt himself served as an energy advisor to the Bush-
Cheney transition team. The Bush-Cheney transition team was 
sprinkled with industry officials.''
    The article also reports, ``The coal industry may enjoy 
even better connections in Congress.'' I ask unanimous consent, 
Mr. Chairman, that this article and other materials relevant to 
the hearing be included for the record.
    Mr. Ose. Without objection.
    Mr. Tierney. Thank you. Mr. Chairman, there are a lot of 
concerns regarding the rush to deregulate. I share your concern 
that Presidents and Congress may rush regulatory decisions 
without going through the public rulemaking process with its 
important checks and balances. Implementation, repeals, 
suspensions, and other modifications of rules are important 
decisions that should not be taken lightly. I look forward to 
hearing from the witnesses on these issues. Thank you.
    Mr. Ose. I thank the gentleman.
    I would like to call Mr. Otter to introduce some folks.
    Mr. Otter. Thank you Mr. Chairman. I bring before the 
committee this morning the chairman of the Valley County, ID 
County Commissioners, Mr. Terry Gestrin, who will talk to us 
this morning about the effects of this rush to regulate in 
terms of locking up 9.7 million acres in Idaho alone for 
roadless use.
    I also at this time, Mr. Chairman, would like to invite my 
old friend, Evan Hayes, who will be here to talk to us about 
the diesel and the low sulphur diesel ruling by the EPA. Mr. 
Hayes does represent the National Association of Wheat Growers, 
and Mr. Hayes and I have served on many committees in the State 
of Idaho. I can tell you this is a gentleman that has been 
working at ground zero for most of these regulations. I welcome 
both of you to the U.S. Congress.
    Mr. Ose. Thank you, Mr. Otter. I want to welcome all the 
witnesses and please confine your summary of your remarks to 5 
minutes so we can have the questions accordingly. Mr. Gestrin.

    STATEMENTS OF TERRY E. GESTRIN, CHAIRMAN, VALLEY COUNTY 
COMMISSIONERS, CASCADE, ID; EVAN HAYES, WHEAT FARMER, AMERICAN 
   FALLS, ID, REPRESENTING THE NATIONAL ASSOCIATION OF WHEAT 
  GROWERS; SHARON BUCCINO, SENIOR ATTORNEY, NATURAL RESOURCES 
   DEFENSE COUNCIL; AND THOMAS O. McGARITY, W. JAMES KORNZER 
            CHAIR, UNIVERSITY OF TEXAS SCHOOL OF LAW

    Mr. Gestrin. Thank you, Mr. Chairman. I appreciate the 
invitation to testify today. Outside of Tongass, with over 9 
million acres of roadless areas, Idaho will suffer the greatest 
impact. Of the 44 counties in Idaho, it appears that Valley 
County is the most affected county in the Nation. This is hard 
to determine because we were never supplied with definitive 
maps to tell us exactly where these acreages are. Valley County 
has a little over 2.2 million acres; 88 percent of that, or 
over 2 million acres, is Federal public lands. Our static 
population in our county is 8,000 people. It swells to over 
30,000 in the summer. Most of these people come to recreate on 
national forest lands.
    The roadless initiative will affect that. The Payette 
National Forest, with over 2.3 million acres, and the Boise 
National Forest, with almost the same acreage, comprise the 
majority of the forestlands located in Valley County. Between 
the wilderness and the new roadless area management program, we 
are left with only 17 percent of the Payette and 27 percent of 
the Boise National Forest available for active management. 
Valley County recently had an economic study completed by the 
University of Idaho, which I would also like to enter into the 
record today.
    Mr. Ose. Without objection.
    Mr. Gestrin. This shows the effect of losing the timber 
industry brought about by many, many regulations of which the 
roadless initiative is just a last nail in our coffin. Direct 
loss by the loss of our sawmill creates an economic loss of $27 
million, with over 225 front-line jobs potentially at stake. 
Combine this with secondary jobs, the loss of economy to Valley 
County alone is over $43 million, according to the University 
of Idaho study.
    I would suggest, if we are going to promote economic 
development, we would want to make policies or promote 
activities with local benefits. Our local school district with 
an enrollment of about 400 students in Cascade is going to lose 
75 children whose parents are going to be without work come 
June when the sawmill closes. The superintendent of that 
district estimates its economic loss to the school in hard 
dollars of $200,000.
    We are facing the worst forest health crisis in history. It 
is inconceivable to me that we could even consider implementing 
a roadless initiative in its present form; 67 million acres of 
national forest is classified by the Forest Service as high to 
moderate-risk to catastrophic fire, insect infestation and 
disease. Last year, more than 7 million acres of public lands 
burned to the ground in the worst fire season in 90 years. I 
assure you that we've had the mildest winter in 40 years. With 
current tests by the Forest Service indicating the timber is at 
about 14 percent moisture content. So look out, folks, we are 
facing the worst-case scenario of burning what hasn't burned.
    Incidentally, I understand that kiln-dried lumber is 
between 12 to 16 percent moisture.
    We need to engage in policies that allow local management, 
not adding another strand of barbed wire to the existing fence 
created by regulations that eliminate the ability to manage our 
natural resources.
    I have talked on some of the economic impacts. Time 
restraints will limit my comments on social impacts, but there 
are many. Could you imagine for a moment telling your spouse 
and children when you come home with the news that you don't 
have a job, your way of life is in imminent danger? Divorce 
rates are going to increase, spousal abuse, child abuse, and 
all the other things that go with that.
    We are losing our rural and national resource heritage. I 
would like to comment on what I understood our NEPA process 
guaranteed for us. NEPA to me meant that we are guaranteed a 
true and meaningful process to provide public comment that will 
be given due consideration prior to the decision being made. 
The Interior Columbia Region Basin project has taken in excess 
of 6 years for the NEPA process and a Record of Decision is yet 
to be made. This project is only for one watershed in the West. 
It's a huge watershed, by the way. Now we are expected to have 
this decision on the roadless initiative, and this was 
completed in 1 year and 3 months.
    I realize that NEPA does not guarantee a good decision but 
it certainly is intended to guarantee a good process.
    I'll sum up with one statement. In 1887, the Purpose of 
National Forests was enacted to improve and protect the forest 
within the boundaries, or for the purpose of securing favorable 
conditions of water flows and to furnish a continuous supply of 
timber for the use and necessities of the citizens of the 
United States.
    In conclusion, I would ask that we're not fenced out. Local 
government needs to be involved in the decisionmaking process 
which will ultimately lead to the improvement of our local 
forest health, economy, and social health of our own local 
communities. Please realize that the best decisions that can 
possibly be made are at the local level. This ensures that 
accountability is at the highest level.
    Thank you Mr. Chairman.
    Mr. Ose. Thank you Mr. Gestrin.
    [The prepared statement of Mr. Gestrin follows:]
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    Mr. Ose. Mr. Hayes.
    Mr. Hayes. Mr. Chairman, Ranking Member----
    Mr. Ose. Pull that mic next to you.
    Mr. Hayes. Mr. Chairman, Ranking Member, Congressman Otter, 
thank you for your kind words. Congressman Otter has been an 
extremely good friend to us----
    Mr. Ose. Mr. Hayes, is that microphone turned on?
    Mr. Hayes. Is that better?
    I will just start over again so we can do it right.
    Mr. Chairman, Ranking Member, sorry about not knowing how 
to run the microphone. I am just a farmer. Congressman Otter, 
thank you for your kind words. I want you all to know that 
Congressman Otter has been an extremely good friend to us in 
Idaho as Lieutenant Governor and as a Congressman. We are 
tickled to death to have him back here to represent our great 
State.
    Today, I would like to visit with you just for a few 
moments about the diesel fuel regulations and the possibilities 
or the effects it would have on agriculture. Let me begin and 
tell you a little story about a farmer. This was a story that 
President Kennedy told years ago. He talked about our ability 
to market as farmers. He said, you know, farmers are a rare 
group. He said, they buy retail, sell wholesale, and pay the 
transportation both ways.
    That's what we are folks. We are extremely poor marketers. 
But we are a very unique group of marketers because of the fact 
that we do not go to the marketplace and say, we want X dollars 
for our product. We go to the marketplace and say, how much 
money will you give us for our product? This makes us 
completely different than the rest of the economy. And so this 
regulation is going to affect us considerably differently 
because we don't have the option to add fuel surcharges and 
things of this nature.
    Supply and demand is a tremendous item for us in 
agriculture. Last year, I got a real shock. I was hauling 
malting barley to Idaho Falls, 125 mile haul. As the so-called 
shortage on oil became more apparent and the concerns of a 
shortage of oil, we saw our diesel fuel prices skyrocket. What 
a sticker shock it is when you put the nozzle in your tank and 
fill the tank on your truck that holds 200 gallons of fuel. You 
turn around and you look at the pump and it says you owe them 
$400. That is 50 cents a mile, because we run it 4 miles to the 
gallon in the mountains of Idaho. That is a real sticker shock 
to you.
    We need to really take a long look at this new EPA 
regulation on how much money this is going to cost us. How much 
money is it going to cost us to run our tractors and trucks. 
Can we afford to do that?
    Agriculture has the largest trucking fleet in the world. 
Now, farmers didn't become farmers because they wanted to 
become truckers. Farmers owned trucks because they are a 
mandatory part of our operation. We have to be able to take 
fertilizer, fuel, grain, etc., to our drills in the spring of 
the year. Then we have to be able to at harvest time take our 
commodity from the combine to our first part of storage, or to 
our bins. Then it comes marketing time. We have to be able to 
haul this product on to the market. We don't do this because we 
like to be truckers. We do this because it's necessary for our 
farm use. Now, we can't afford to run new trucks, so, 
therefore, we buy used over-the-road trucks. Currently, I own 
one that I consider to be a road truck. It's a 1984 Peterbilt 
which I bought for $9,000. I have run this truck in the 9 or 10 
years that I have owned it about 70,000 miles. So, in other 
words, I'm running this truck at about 7,000 miles a year.
    Now, under the new regulations, if I understand them 
correctly, by 2006, 50 percent of these trucks are going to 
have to meet the new emissions standards, and by 2010 we are 
all going to have to meet the emissions standards. This means 
we're either going to have to retrofit our engines, replace our 
engines, or buy new trucks. Now, it doesn't make a lot of sense 
to me to put a $10,000 or $15,000 engine to meet the emissions 
standards in a $10,000 truck. Somehow that just doesn't balance 
in my baseline. Also it doesn't balance in my books to pay 
$80,000 for a new truck to haul a commodity that I run 7,000 
miles a year.
    The next item I need to discuss with you is our tractor 
fleet. Our tractor fleet, as you know, is also the largest 
tractor fleet in the world. Presently, I am running a tractor 
on my farm that my father purchased in 1960 when I was a 
freshman at Idaho State University. I am still using that 
tractor. We have to maintain our tractors. We have to make sure 
that we run them as long as we possibly can.
    My concerns under the new diesel fuel regulation is that 
can we burn the fuel in these old tractors? If we can't burn 
this new fuel--and I am not sure we can because I am only being 
speculative on this--but can we burn this fuel? If we can't, we 
will have some awfully expensive mailbox holders out there. 
That's the only thing we will be able to use these tractors for 
is to hang our mailbox on them, because we're certainly not 
going to be able to use them in the farm.
    Mr. Ose. Mr. Hayes you will have to wrap up.
    Mr. Hayes. I will.
    Mr. Ose. We will give you 30 seconds to wrap up.
    Mr. Hayes. Thirty seconds to wrap up. I would recommend 
that the committee do one thing as quickly as possible, that is 
that this committee introduce legislation under the 
Congressional Review Act to repeal the recent diesel fuel 
emissions standard by the EPA and then to rework these 
standards to something that will protect the environment and at 
the same time be economically feasible for us in agriculture.
    Thank you, Mr. Chairman. I will stand for questions.
    Mr. Ose. Thank you Mr. Hayes.
    [The prepared statement of Mr. Hayes follows:]
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    Mr. Ose. I now have the pleasure of introducing Mrs. Sharon 
Buccino who is a senior attorney for Natural Resources Defense 
Council. I want to welcome you. I appreciate you for forwarding 
your testimony. I did have the pleasure of reading it last 
night and it was quite informative. So, if you can summarize, 
thank you.
    Ms. Buccino. Good morning. My name is Sharon Buccino. I am 
a senior attorney at the Natural Resources Defense Council.
    Mr. Ose. Can you move that closer?
    Ms. Buccino. NRDC is a national membership organization. 
NRDC is a nonprofit organization with over 400,000 members 
across the country. NRDC members value the public health, 
safety and environmental protections put in place by Federal 
agencies, such as the Environmental Protection Agency.
    The protections issued in the last few months of the 
Clinton administration have been attacked by some, but this 
regulatory activity is neither unique to the previous 
administration nor cause for dramatic reversal by the current 
one or Congress. The protections that have come under attack, 
like the plan to protect the few remaining wild areas in our 
national forests and efforts to reduce cancer-causing arsenic 
in our drinking water, promise to deliver tremendous benefits 
to the American public. They enjoy broad public support and, in 
some cases, have explicitly been mandated by Congress. These 
protections are the law of the land and should be expeditiously 
implemented, not delayed or rescinded.
    The allegation that these protections were rushed through 
at the last minute and lacked substantial support is completely 
indefensible. The protections are all the product of a lengthy, 
deliberative, public process, a process established by law 
pursuant to the Administrative Procedure Act. Those who wish to 
change the important public protections recently enacted should 
engage in the same deliberative process rather than circumvent 
the process through the Congressional Review Act or suspending 
the effective dates of the rules.
    I would like to address four of the specific environmental 
protections that have come under attack. First, the plan to 
protect our remaining wild forests. It is simply incorrect to 
characterize this rule as a ``midnight regulation'' rushed 
through at the last minute. The public input that went into the 
development of this forest protection plan is perhaps the most 
of any rulemaking effort ever.
    I would also like to address the issue that was raised by 
one of the earlier witnesses about access. This plan protects 
the last and best of America's rapidly shrinking pristine 
forests for public access and recreation, including hiking, 
hunting and fishing. It is incorrect to equate these areas with 
wilderness designation. The main characteristic of wilderness 
areas is a prohibition on motorized use. And motorized use like 
snowmobiles, all-terrain vehicles, are allowed in roadless 
areas so they are very different from wilderness areas.
    Far from excluding timber companies from our national 
forests, the plan simply channels industrial uses to more than 
half of our national forests that have already been impacted by 
logging and other extractive industries.
    I would also like to address the issue of fire. The new 
protection plan does not foreclose addressing fire. I question 
Dr. Nelson's characterization of the problem being focused on 
roadless areas. Just recently, the Forest Service told the 
House Resources Committee that only 14 percent of high-risk 
fire conditions in the national forest land occur on roadless 
areas. The problem is not in remote areas, but in fact in the 
urban forest interface, and this is where just last year 
Senator Domenici directed significant new funding.
    Dr. Nelson has also ignored that tree removal is in fact 
allowed in roadless areas to address the fire threat.
    I am going to run out of time here quickly so I will leave 
my remarks on arsenic and diesel to what's in my written 
testimony. I will be happy to answer any questions.
    I would like to address the appliance efficiency standards 
because there has been a lot of discussion this morning about 
the energy shortage the Nation faces. A key component of the 
solution is reducing demand through more efficient appliances. 
In January, the Department of Energy issued new efficiency 
standards for air-conditioners, clothes washers, and water 
heaters. These standards were explicitly mandated by Congress 
and they are all more than 5 years late.
    And, contrary to what Dr. Gramm suggested earlier, these 
rules actually save consumers significant money. Consumers and 
businesses are projected to save over $22 billion during the 
next 25 years due to the new standards. And, by 2020, more 
efficient appliances are expected to save 54,000 megawatts and 
that's almost enough to power all of California.
    It makes little sense to talk about delaying these 
standards at precisely the time our Nation is facing an energy 
shortage.
    In conclusion, I urge members not to use the Congressional 
Review Act to block important public health, safety and 
environmental protections. As I discussed, these rules, like 
protecting the last remaining wild areas in our national 
forests, were issued after a lengthy public process over 
several years. Discarding all the effort and public involvement 
that went into important public health and environmental 
protections with one rushed vote in Congress is a disservice to 
the American people. Rescinding environmental protections or 
delaying their implementation denies the public benefits they 
rightfully expect from their government and hopefully neither 
Congress nor the new administration will let them down. Thank 
you.
    Mr. Ose. Thank you, Ms. Buccino.
    [The prepared statement of Ms. Buccino follows:]
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    Mr. Ose. I would like to welcome Thomas McGarity. He holds 
the W. James Kronzer Chair in law at the University of Texas 
School of Law, and is an expert in administrative law 
procedures and the like. Thank you for coming.
    Mr. McGarity. Thank you, Mr. Chairman. My name is Tom 
McGarity, and I do teach and have taught for 20 years at the 
University of Texas School of Law, environmental law and 
administrative law. I will say I do not speak for the 
University of Texas. I speak for myself here in this capacity.
    As is typically the case during the transition between one 
administration and another, the volume of proposed and final 
regulations issued by many executive branch agencies increased 
during the last few weeks of the Clinton administration. Some 
were significant and controversial rules that the agencies had 
been deliberating over for many years. The same thing happened 
at the end of the Carter administration and at the end of the 
Bush administration. It is, of course, not at all unusual for 
decisionmaking institutions like executive branch agencies, 
courts, the Supreme Court of the United States, to increase its 
workload or output at the end, and even this institution 
increases substantially output toward the end of a designated 
term.
    On January 20th, Chief of Staff Andrew Card issued a 
memorandum to the heads of the executive branch agencies. 
Subject to limited exceptions, it required them to withdraw 
proposed or final regulations that had gone to the Office of 
the Federal Register but had not been published in the Federal 
Register. With respect to final regulations that had been 
published but had not taken effect, agency heads were to 
temporarily postpone those regulations for 60 days. The 
executive branch agencies complied by publishing notices in the 
Federal Register, most of which contained pretty much 
boilerplate for those actions.
    The law is clear that the postponement of the effective 
date of a final rule is ``rulemaking'' and is subject to the 
Administrative Procedure Act's notice and comment procedures. 
The Federal Register notices for the 60-day delay contain 
boilerplate explanations that I think were not even remotely 
plausible under the existing case law. They spoke of rules of 
procedure. They spoke of a good cause exception. The rules of 
procedure exception is inapplicable because these regulations 
did, or most of them jeopardize or substantially affect the 
rights and interests of parties; that is, the withdrawal of the 
regulations did.
    The boilerplate explanations did not demonstrate good cause 
because a change of administrations is not the sort of 
emergency situation that justifies the invocation of that 
exemption.
    The Card memo implicitly contemplated that agencies would 
rescind regulations, having considered them, and on March 23, 
2001, EPA did that with respect to the final rule for arsenic 
where it extended indefinitely the effective date for the rule 
for arsenic in drinking water. And I would correct my testimony 
on page 15, line 3. It should say, ``extend indefinitely the 
effective date,'' not ``extends indefinitely the rule,'' if 
that confused anyone.
    Any recission or modification of a published final rule 
must be accomplished through notice-and-comment rulemaking 
procedures. Furthermore, any such action must be supported with 
data and analysis sufficient to pass judicial scrutiny under 
the ``arbitrary and capricious'' test.
    One alternative to unlawful postponement or withdrawal of a 
published rule is action under the Congressional Review Act to 
rescind the major rule. Because it has been--because it has the 
effect, rather, of undoing the work of agencies and private 
parties, all the work they have put into the rule, this 
relatively blunt tool has the potential to waste large amounts 
of public and private resources.
    In my view, Congress should not hastily exercise its power 
to undo the legitimate products of deliberative--of the 
deliberative rulemaking process. In general, neither the 
offices of individual Congresspersons or the committee staffs 
or really any institution within Congress, now with the demise 
of the Office of Technology Assessment, is populated with 
persons with the technical expertise to second-guess the 
conclusions of agency staff and upper-level agency 
decisionmakers. The primary determinants of congressional 
decisions under the Congressional Review Act are likely to be 
political and not technical considerations. The fate of 
individual regulations long in the making should not turn on a 
hasty and unprincipled exercise of raw political power. 
Congress has wisely refrained in the past from using the 
Congressional Review Act to reward political beneficiaries and 
punish political enemies. It should continue to do so in the 
future.
    Thank you Mr. Chairman.
    Mr. Ose. Thank you Mr. McGarity.
    [The prepared statement of Mr. McGarity follows:]
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    Mr. Ose. I would like to recognize Mr. Otter for 5 minutes.
    Mr. Otter. Thank you very much, Mr. Chairman. I appreciate 
all the comments from the panel members. I would like to go 
first to Terry, to Mr. Gestrin. Would you reiterate one more 
time the impact that the roadless rule has had thus far, even 
though we are just entering the phase on the roadless rule, 
would you reiterate the impact it has had on the economy within 
Valley County?
    Mr. Gestrin. Yes, Mr. Chairman, Congressman Otter. As 
indicated by our economic analysis, the loss of our timber 
industry in Valley County is going to be a $43 million hit to 
the economic viability of our community, but it is also a 
complete change in our social structure. It is just one more 
regulation on top of ESA and everything else that just finally 
drives industry out. Plus, we also have the devastations 
created by fires.
    As you can see, an example of last summer's forest fire 
burning, it is a very social and economic impact. But, we also 
have areas that were inventoried recently as roadless but 
they're already roaded. So there's confusion sometimes that 
we're talking about areas that have never had a road, because 
if you go to the Forest Service definition it states nonsystem 
roads. Well, a system road is a road on their map that they 
maintain, which are their system roads. The other roads, the 
work roads, the nonsystem roads, are now being considered 
roadless areas. We have a new designation of 5,000 acres just 
inventoried last year that has had management, active 
management in the past, that, in fact, has work roads in it. So 
it just adds more de facto wilderness, if you will, to what we 
have. Idaho already has the largest wilderness in the lower 48.
    Mr. Otter. Terry, you have mentioned in your testimony that 
I guess by the first of June, Boise Cascade is going to shut 
down the last lumber mill they have in Valley County. They have 
already shut down the one they have in Linn County, another 
county in Idaho. My apologies to the other members, folks here, 
that don't know the geography as well as Terry and I do. That 
will bring the total then to a total of 33 lumber mills, in 
excess of 3,000 folks that have lost their jobs in economies 
within those communities within the last 8 years. With the 
roadless area added to what we consider the mismanagement of 
the last 8 years of our national forest in Idaho, can you 
foresee what's going to take the place of those lumber mill 
jobs or those wood products jobs?
    Mr. Gestrin. We are looking at every aspect we possibly can 
to bring in broadbands or anything else, but in these remote 
locations we don't have the infrastructure, the transportation, 
the things necessary to actually have other types of economic 
activities, if you will. So we will be relying somewhat on the 
Internet and broadband aspect. However, those jobs have 
historically not paid as well as the national resource jobs do. 
Our real basis of our wealth in this country comes from 
national resources.
    I think lately we have watched the stock market and what 
happens when we put our faith in information. Our real wealth 
comes from resources. On the map, if you want to look at 
geography, all those parts from here, it's a dark color, that's 
where I am from. That's what I am talking about that is the 
most affected place in the lower 48.
    Mr. Otter. Mr. Chairman, I think my time is about out.
    Mr. Ose. Mr. Otter, if I might inquire, is it your desire 
to enter the map into the public record?
    Mr. Otter. Yes, it is. Thank you for reminding me.
    Mr. Ose. Without objection.
    The gentleman from Massachusetts for 5 minutes.
    Mr. Tierney. Thank you, Mr. Chairman. Mr. McGarity, I agree 
with you, I think. Your premise, if I am correct in stating it, 
is that you cannot legally suspend or postpone a regulation 
without first going through a notice and a whole process.
    Mr. McGarity. That's right. To rescind or postpone one, you 
need to go through the same sort of process you went through to 
promulgate it in the first place.
    Mr. Tierney. The underlying theory is that you are making 
just a dramatic change in people's lives and the effect on 
their lives doing the suspension or postponement and the 
rescission as you were in implementing the rule in the first 
place.
    Mr. McGarity. That's right. Presumably the rule has 
beneficiaries who will be harmed by its rescission.
    Mr. Tierney. Now, in at least one instance, the 
administration suspended a final rule that is already in 
effect. That was on January 19, 2001, the contractor 
responsibility rule went into effect, providing that when 
awarding a Federal contract, the government must ensure that 
the company receiving the contract has a satisfactory record of 
complying with Federal laws, including tax, labor, employment, 
environmental, antitrust, and consumer protection laws.
    On January 31st, though, the current administration, the 
chairman of the Civilian Agency Acquisition Council, issued a 
memorandum to civilian agencies authorizing a 6-month 
suspension of the rule. Morton Rosenberg, a specialist in 
American public law at the Congressional Research Service, 
analyzed the issue and found that that memo is likely illegal. 
Do you agree with that?
    Mr. McGarity. Yes. In fact, I read that memorandum and I do 
agree with its analysis. Yes, sir.
    Mr. Tierney. Mrs. Buccino, you started to talk about a 
couple of other areas and you didn't get a chance to finish 
because of time constraints. But we've listened to people 
testify about the arsenic rule, and have criticized it. Will 
you tell me what your concerns are with the statements that 
were made by the Bush administration and others concerning the 
suspension and the repeal?
    Ms. Buccino. Yes, I would be happy to. What was done in 
issuing a new arsenic standard was to change the standard from 
50 parts per billion to 10 parts per billion. The 50 parts per 
billion had been based on data from the 1940's. And Congress, 
in fact, has directed three different times to EPA to revise 
that standard. Now, just recently, the administration announced 
that they were going to withdraw the revised standard and 
reconsider it. We believe that action is both potentially 
unlawful and inappropriate because the new standard delivers 
long overdue protections from cancer to the American public, 
and we believe that it should not be undone.
    Mr. Tierney. The new standards are also in effect in the 
European Union and the World Trade Organization.
    Ms. Buccino. That's correct.
    Mr. Tierney. So it wouldn't be anything novel to this 
global environment we find ourselves in.
    Ms. Buccino. That's correct.
    Mr. Tierney. Now, I listened to others of the witnesses who 
made the case for the phasing in of the diesel regulations, and 
I would only imagine that those same arguments or contentions 
were made during the rulemaking process on diesel, and 
apparently adjustments were made for those contentions or they 
just weren't agreed with. Will you tell us a little bit about 
that situation, your views on that?
    Ms. Buccino. Yes. The diesel rule was also a product of a 
very lengthy process. It was initiated in May 1999, so several 
years ago, and there was extensive both information and 
scientific studies regarding the health effects and cost-
benefit analysis that were collected and evaluated by EPA. And, 
all the various stakeholders had extensive formal and informal 
opportunities to comment and have input on that. Now this rule, 
in fact, the administration has decided is so important that 
they were moving forward with implementation of it.
    Mr. Tierney. So far.
    Ms. Buccino. That is correct. And I would also like to 
point out that in response to some of the concerns about the 
shortages in supply, there is a very lengthy time for 
compliance. It is not until 2006 that new trucks have to comply 
with it, and it is a much longer period of time for existing 
engines.
    Mr. Tierney. Much longer time for existing engines. So the 
2006 only applies to new vehicles.
    Ms. Buccino. That's right.
    Mr. Tierney. Mr. McGarity, I agree with your observation 
that the CRA is essentially a political tool providing no 
opportunity for expert testimony or for a more technical view 
of things. In your view, is that law? Is CRA legal? Is it 
constitutional?
    Mr. McGarity. The CRA, in my view, is constitutional. My 
published writings are very much on record as being a proponent 
of Congress when it comes institutionally between Congress and 
the executive branch and Congress and the judicial branch. I 
think Congress is the institution in which power should rightly 
be lodged.
    At the same time, certainly the legislative vetoes of past 
years were unconstitutional. What makes the CRA constitutional, 
if sometimes conceivably unwise and certainly exercised in an 
unwise way, is that it is presented--the joint resolution is 
presented to the President. It's the presentment, I think, 
that's the key point there. That being said, one does hate to 
see it being used very frequently for really purely political 
reasons.
    Mr. Tierney. Thank you.
    Mr. Ose. I want to make sure that Mr. McGarity understands 
that those of us in Congress appreciate his appreciation for 
our influence. It's a roundabout way of saying we probably 
agree with you on that.
    Mr. McGarity, if I might, I want to go back to the 
Administrative Procedure Act, the Congressional Review Act. Now 
if I understand correctly, it was Congress that passed the 
Administrative Procedure Act. It's not a rule, it's an actual 
statute.
    Mr. McGarity. The Administrative Procedure Act was enacted 
after a long period of sort of struggle and deliberations in 
1946.
    Mr. Ose. Something passed by Congress.
    Mr. McGarity. Oh yes, absolutely.
    Mr. Ose. So it is an actual statute.
    Mr. McGarity. Yes.
    Mr. Ose. And, the Congressional Review Act was passed in 
1996. If I recall correctly, it had significant support on both 
sides of the aisle. And President Clinton signed it.
    Mr. McGarity. That is correct, sir.
    Mr. Ose. The difference between the Congressional Review 
Act and the legislative vetoes that have been previously 
attempted, you have characterized as the Congressional Review 
Act, requires the President's participation, if you will, in 
the final determination.
    Mr. McGarity. Right. It's the presentment to the President 
which is required by the Constitution.
    Mr. Ose. So there is nothing in your testimony that we 
might construe as being adverse to the existence of the 
Congressional Review Act. There might be differences of opinion 
as to when and how to use it, but you are not suggesting any 
challenges to its underlying merit or authenticity.
    Mr. McGarity. I certainly don't challenge its authenticity. 
I think it is a constitutional statute.
    Mr. Ose. I want to ask you about the temporary suspension 
issue of a rule. In a previous case before the court of appeals 
in D.C., that being Public Citizen v. Department of Health and 
Human Services, the court upheld a trial court's findings that 
FDA's Food and Drug Administration temporary suspension of the 
rule's effective date pursuant to President Reagan's regulatory 
Executive Order 12291, which was announced without notice and 
public comment, that the temporary suspension does not violate 
the Administrative Procedure Act because it was temporary and 
allowed the new FDA commissioner an opportunity to review a 
pilot program. Are you familiar with this?
    Mr. McGarity. Yes, I know the case. I don't have it before 
me, but I am familiar with it.
    Mr. Ose. From your recollection, do you concur or disagree 
that the temporary suspension of a rule is allowed?
    Mr. McGarity. A temporary suspension of a final rule is a 
rule itself and must be accomplished through rulemaking. It is 
allowed if one goes through the proper procedures.
    Mr. Ose. Which would be the exemptions and what have you?
    Mr. McGarity. Either one can be exempted from section 553 
or one needs to go through notice and comment, yes.
    Mr. Ose. So under this case before the D.C. Court of 
Appeals, apparently the court made a determination that the 
exemption was valid. As I read your written testimony last 
night, the boilerplate language, that is your language, your 
words, I should say, is not sufficient to merit an exemption 
under this case law.
    Mr. McGarity. That's right. What we have is boilerplate, 
literally the same language for 60 regulations, and it's hard 
for me to believe that's a considered analysis in the case of 
each regulation that there's good cause, which I think is the 
exemption that is involved in Public Citizen.
    Mr. Ose. OK. I found your written testimony highly 
informative and I want to thank you for that. I may agree with 
it or disagree with it, but I appreciated your presentation of 
your remarks and I was much more knowledgeable after having 
read it than I was before, and I appreciate that.
    Mr. McGarity. Thank you very much.
    Mr. Ose. However, I do want to go back to one of your 
initial statements to Mr. Tierney, and that is your respect for 
congressional discretion in setting policy. Going back to I 
think the Federalist Papers, or even before that, I think you 
will find wide agreement here that it is Congress that should 
set policy and the executive branch implement it.
    Mr. McGarity. That's not always the case among my 
colleagues in academia who sometimes think the courts ought to 
be having more than that. But I was a constituent of Mr. Brooks 
up here for many years.
    Mr. Ose. We struggle with it here.
    Mr. Otter for 5 minutes.
    Mr. Otter. Thank you very much, Mr. Chairman.
    Mr. Hayes, would you tell me what is the cheapest 
transportation for your farm products? What's the cheapest 
transportation other than throwing it? What is the cheapest 
transportation to get your product to the world marketplace?
    Mr. Hayes. For the entire State of Idaho, I would have to 
say the cheapest transportation is our barge network on the 
river.
    Mr. Otter. Why is that?
    Mr. Hayes. I think it's because they can move large volumes 
of grain in an expedient manner and be able to reach the 
Portland market as economically sound as they can.
    Now, we have a little problem with that from southeastern 
Idaho, hitting the port of Lewiston. However, 30 percent of our 
grain out of southeastern Idaho goes down the river through the 
port of Lewiston.
    Mr. Otter. What is 30 percent of the grain? Give me that 
tonnage.
    Mr. Hayes. I can't do that, I'm sorry. The figure is not in 
my mind.
    Mr. Otter. Would 168,000 of soft white wheat be reasonable 
that goes through?
    Mr. Hayes. Oh, I'm sure, yes.
    Mr. Otter. All right.
    Ms. Buccino, in your organization--you are here for your 
organization?
    Ms. Buccino. Yes.
    Mr. Otter. What is your organization's position on the 
removal of the dams in the four upper Snake River dams?
    Ms. Buccino. That, I'm personally not aware of. There are 
people in our West Coast offices that work on that issue, so I 
am afraid I will not be able to answer that question directly.
    Mr. Otter. So you are normally not familiar with what 
happens out on the West Coast.
    Ms. Buccino. That's not true, but there are different 
substantive areas that we each work in, and we are working in a 
lot of different areas and there has been plenty to keep me 
busy here in Washington, so that's what I have been focusing on 
recently.
    Mr. Otter. For the record, let me state that your 
organization does support the removal of the four Snake River 
dams on the lower Snake. And the reason I bring this up is 
because it seems to me that your position on the diesel fuel 
and your organization's position on the diesel fuel is 
inconsistent with your position on the removal of the dams, as 
testified by Mr. Hayes.
    In fact, I know the figures pretty well, but I want them 
for a matter of record. In order to take 1 ton of wheat from 
Lewiston, ID 514 miles down river to Vancouver, WA and then 
load it onto an ocean-going vessel for shipment to Taipei, it 
takes 1 gallon of diesel fuel. Now, to get that same ton of 
wheat or grain down river on a train, you would only get it 202 
miles. But worst off, on a truck, the very target of this whole 
diesel rule, you would only get it 59 miles. One ton of wheat 
59 miles, not 514 as is the case.
    The other question I would have relative to your 
organization's position, do you suppose that there is any 
connection in your testimony here today in your position and 
your organization's position on these issues relative to 
funding that was received by your organization from the Federal 
Government for those very issues?
    Ms. Buccino. I disagree with that contention. We're a 
nonprofit organization. We represent our membership, which is 
over 400,000 across the country; and we advocate positions that 
we believe are in the public interest based on the science 
regarding health effects and also the various cost-
effectiveness analyses.
    I would actually like to take this opportunity to introduce 
into the record a document related to the wild forest 
protection plan which people have referred to as the roadless 
rule. This is a report by NRDC called End of the Road, but it 
actually is a summary of the scientific--independent scientific 
research that's been done on the adverse ecological impacts of 
logging and road building in the national forests.
    I actually would urge members, when you're evaluating the 
rules that have been discussed today, not just to look at the 
limited amount of material you've collected today, whether it's 
the public interest comments submitted by the Mercatus Center 
or NRDC's documents but to evaluate the administrative--the 
complete administrative records that were collected over the 
years of rulemaking that went into these protections.
    Mr. Otter. Thank you very much, Ms. Buccino; and thank you, 
Mr. Chairman.
    I just would close in stating that the same organization, 
the National Resources Defense Council, has taken a pretty firm 
position in favor of campaign reform; and it did receive--
because they believe that votes follow money. And, they did 
receive $2.5 million in Federal contract awards from 1998 to 
2000 for supporting and spreading the success story for the 
Department of Energy on refrigerators, washing machines and air 
conditioners and heat pumps, is now saying that $2.5 million 
does not color the testimony that we've received here today. I 
would suggest that the organization can't have it both ways.
    Thank you, Mr. Chairman.
    Mr. Ose. The document you held up we will enter into the 
record without objection.
    Ms. Buccino. Yes. Thank you.
    Mr. Ose. I think we're close to the end here. I do have one 
question.
    Ms. Buccino, we had earlier testimony I think from Dr. 
Nelson about the process that the Forest Service used in 
finalizing its Environmental Impact Statement on the roadless 
policy. Embedded in the document were comments about the 
roadless rule process contradicting past emphasis on 
collaboration, and I'm trying to reconcile that. Because your 
comments have been somewhat different. Can you provide some 
feedback on that?
    Ms. Buccino. I think what that reference is to the 
collaborative process is referring to the Forest Service 
management plans that are developed for each individual 
national forest. Nothing in the new forest protection plan does 
away with that process or--those plans are moving forward. The 
idea is that the guidance and the protections that are in this 
recent protection plan are to guide development of those forest 
plans. It's important to remember the extensive public process 
that I emphasized, and I do think it's fair to characterize it 
as the most ever for a rulemaking process that went into the 
new forest protection plan that was recently announced.
    Mr. Ose. If I might just--I don't want to argue with you 
and debate about it. I want to think about what you have to 
say. I'm just trying to reconcile what the Forest Service 
imbedded in its environmental document with what may have 
happened, and I'm frankly a little bit confused, given the 
testimony.
    Mr. Tierney, do you have anything to add?
    Mr. Tierney. I don't.
    Mr. Ose. I want to thank the witnesses for appearing today. 
We appreciate your testimony both written and oral. It was 
highly educational. And with that--one other thing. We're going 
to leave the record open for 10 days. So if you have something 
you want to submit that would be fine.
    Again, thank you for coming. We're adjourned.
    [Whereupon, at 12:03 p.m., the subcommittee was adjourned.]
    [Note.--Various publications from the ''Journal of Labor 
Research, Volume XXII, No. 1, Winter 2001,'' may be found in 
subcommittee files.]
    [Additional information submitted for the hearing record 
follows:]
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