standards will also prevent 1.5 million lost work days, 7,100 hospital admissions and 2,400 emergency room visits for asthma every year.

The standards are the product of a lengthy process begun with the issuance of an Advanced Notice of Proposed Rulemaking in May 1999. EPA issued a proposed rule in June 2000. The agency held five public hearings in New York, Chicago, Atlanta, Los Angeles, and Denver. EPA received and responded to over 50,000 public comments.

Recognizing the harm that would result from delaying implementation of the new standards, EPA Administrator Whitman recently announced that the agency would move forward on schedule with its rule to make heavy-duty trucks and buses run cleaner. Congress should support, not hinder, EPA's efforts to deliver cleaner, healthier air to the American public.

III. Neither Congress nor Federal Agencies Should Short-Circuit the APA's
Deliberative Process Requirements

Those who believe that certain public health, safety and environmental protections are inappropriate should follow the process set out in the Administrative Procedure Act for making changes to regulations. Unfortunately, instead of going through a deliberative, public process, the new administration has suspended important public health, safety and environmental protections without following the APA's process. Such efforts are both misguided and unlawful.

Suspending final rules without first going through a notice and comment process is unlawful. Changing the effective date of a rule constitutes a change to the rule. NRDC v. EPA, 683 F.2d 752, 761-62 (3d Cir. 1982) (“an effective date is ... an essential part of any rule"). Changing or amending a rule is defined as rulemaking under the APA and requires an agency to follow formal notice and comment procedures except under very limited circumstances. 5 U.S.C. §§ 551(5), 553(b), 553(c).

The courts struck down efforts by the Reagan Administration in 1981 to postpone or ignore final regulations. In one case, a court invalidated postponement of an EPA rule limiting the discharge of toxic pollutants into publicly owned treatment works. NRDC v. EPA, 683 F.2d 752. In another case, the court held unlawful EPA's decision not to call in hazardous waste permits under a final rule. Environmental Defense Fund v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983).

The actions taken by the new Bush Administration to block public health, safety and environmental protections are quite different from the approach the Clinton Administration took when it came into office in 1993. While President Clinton took action to review rules that were still in the pipeline, he did not postpone the effective dates of any rules that had been published in the Federal Register. 58 Fed. Reg. 6074 (Jan. 25, 1993) (memorandum from Leon Panetta, Director of OMB, to heads and acting heads of agencies). In contrast, the new Bush Administration has suspended the effective

dates of numerous public health, safety and environmental protections that were finalized and published. These rules were not merely in the pipeline, but had become law. The Bush Administration is shirking its responsibility to the public to implement and execute the law.

The regulatory activity in the post-election period is not extreme, but the Bush reaction to it is. President Clinton faced the same flurry of regulatory activity in the few months preceding his inauguration as President Bush now does. The number of pages published in the Federal Register from November 1992 to January 1993 was over 36 percent greater than the number for the same period the previous year. Comparing the Federal Register from November 2000 to January 2001 to the same period the previous year reveals a 32 percent increase in the number of pages. It is not surprising that all Presidents and their agency heads, regardless of party, would wish to wrap up longstanding rulemaking processes before leaving office. Having a looming deadline of the inauguration of a new President focuses one's efforts on getting things finished.

The exceptions to the APA's notice and comment procedures are extremely narrow. In enacting the APA, Congress valued the deliberative, public process provided by formal notice and comment rulemaking. Only extraordinary circumstances justify an agency decision to bypass this process. Courts have held that the exemptions from notice and comment rulemaking are "narrowly construed and only reluctantly countenanced.” Action on Smoking and Health v. CAB, 713 F.2d 795, 800 (D.C. Cir. 1983). Accord, United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989).

None of the actions the Bush Administration has taken to block important public, health, safety and environmental protections can be justified under any of the exemptions from the APA's notice and comment procedures. The APA provides two exemptions from notice and comment rulemaking: (1) for interpretative rules, policy statements, and rules of agency organization, procedure, or practice; and (2) good cause. 5 U.S.C. § 553(b)(3)(A) & (B). An agency cannot merely assert one of the exemptions, but most offer a reasoned explanation of why the exemption applies which courts will carefully scrutinize. Action on Smoking, 713 F.2d at 800; NRDC v. EPA, 683 F.2d at 765; Council of the Southern Mountains v. Donovan, 653 F.2d 573, 580 (D.C. Cir. 1981).

The actions by the new administration to block important public, health, safety and environmental protections do not fall within the good cause exemption. Courts have limited the use of the good cause exemption to "emergency situations." Associated Builders & Contractors v. Herman, 976 F.Supp. 1, 5-6 (D.D.C. 1997) (citing AFGE v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). The mere existence of deadlines is not good cause to avoid rulemaking. See Action on Smoking and Health, 713 F.2d at 800; Council of Southern Mountains, 653 F.2d at 581 (citations omitted) (imminence of statutory deadlines good cause "only in exceptional circumstances"); see also NRDC v. EPA, 683 F.2d at 765. The pending effective date of a rule is an insufficient excuse under the APA to bypass the rulemaking procedures. The new administration can always review issued rules while the rules are in effect.

Likewise, actions by the new administration to block important public, health, safety and environmental protections do not fall within the exemption for interpretative rules, policy statements, and rules of agency organization, procedure, or practice. Interpretative rules clarify existing law. In contrast, postponing an effective date changes the prior rule. See, e.g., Council of Southern Mountains, 653 F.2d at 580 n. 28 (deferral of implementation of a rule does not constitute an "interpretative rule"). Likewise, postponement of a rule's effective date is not a statement of policy because it "do[es] more than express, without force of law," the [agency's] ... tentative intentions for the future." Thomas v. State of New York, 802 F.2d 1443, 1447 (D.C. Cir. 1986). There is nothing tentative about the actions the Bush administration has taken to suspend various rules; the postponement of the rules is "determinative of issues or rights." Environmental Defense Fund, 713 F.2d at 817 (rejecting argument that deferral of regulations was a “policy statement"). Finally, postponement of the effective date of a substantive regulation aimed at private parties does not relate to agency procedures or operations. Any action that alters the rights or interests of private parties, as does delaying the effective date of a rule, cannot be considered a procedural rule. See Chamber of Commerce v. USDOL, 174 F.3d 206, 211 (D.C. Cir. 1999).

Even if an agency follows the required process, the agency must justify its action. While the Department of Interior has initiated a comment period on the new environmental standards put in place for mining companies using public lands, the agency has indicated its clear intent to weaken the standards. Similarly, EPA has announced that it will withdraw the new arsenic standards. Going through the procedural motions is not enough. An agency must provide a reasoned explanation for any reversal in course and the change must be consistent with the underlying statute. Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Ins. Co. et al., 463 U.S. 29 (1983). Changing or even delaying the implementation of important public health, safety and environmental protections seems particularly difficult to justify when they were issued in response to explicit Congressional direction to do so, as were the arsenic standards.

Using the Congressional Review Act (CRA) to block important public health, safety and environmental protections is also misguided. As discussed above, rules like those protecting the last remaining wild areas in our national forests and protecting our drinking water from harmful levels of arsenic, were issued after a lengthy, public process over several years. Discarding all this effort and public involvement with one, rushed vote in Congress is a disservice to the American people. The result of disapproval of a rule under the CRA is particularly severe because it prohibits an agency from issuing any rule that is "substantially the same." 5 U.S.C. § 801(b)(2). If there are problems with a rule, changes to the troublesome parts should be considered rather than throwing out the whole rule and precluding consideration of a modified version. The Congressional Review Act is a blunt tool with drastic consequences and should be used sparingly, if at all.

IV. Conclusion

The rules that some are complaining so vigorously about are important public health, safety and environmental protections. They may come at some cost, but they deliver tremendous benefits such as decreased risk of cancer, wild forests untouched by chainsaws, and energy savings. These protections are the product of several years of extensive public input and deliberation. Delaying implementation of the rules or rescinding them denies the public benefits they rightfully expect from their government. Hopefully, neither Congress nor the new administration will let the American public down.

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