A RUSH ΤΟ REGULATE THE CONGRESSIONAL REVIEW ACT AND RECENT FEDERAL REGULATIONS TUESDAY, MARCH 27, 2001 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENERGY POLICY, NATURAL 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. ŎSE. 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 lateissued 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:] Chairman Doug Ose Opening Statement A Rush to Regulate - the Congressional Review Act and Recent Federal Regulations March 27, 2001 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 - the Congressional Review Act (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. Under law, Congress has two opportunities to review agency regulatory actions: at the proposed rule stage and at the final rule stage. Under the Administrative Procedure Act (APA), Congress can comment on agency proposed and interim rules during the public comment period. Under the CRA, Congress can disapprove an agency final rule after it is promulgated. Congressional Committees and Members Congress expressed concern regarding the rules to be discussed today. Earlier this month, the Senate and then the House passed a joint resolution of disapproval for the Department of Labor's (DOL) major rule establishing a new comprehensive ergonomics standard. The reversal of the ergonomics rule was 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 in Congress felt was not in the interest of their constituents. The ergonomics rule addressed employee exposure to the risk of musculoskeletal disorders (MSDS) in jobs in general industry workplaces. DOL estimated that the rule would affect 6.1 million employers and 102 million employees. The rule held employers responsible for nonwork-related injuries. Cost estimates for the rule varied, e.g., the prior Administration estimated $4.5 billion annually but the Employment Policy Foundation estimated up to $100 billion annually. In January 2000, this Subcommittee submitted an 18-page comment letter objecting to DOL's proposed rule and then conducted an extensive investigation of DOL's improper use of contractors in this rulemaking. The Subcommittee questioned possible augmentation of DOL full-time equivalents by use of contractors, DOL's improper use of contractors for inherently governmental functions in the rulemaking process, DOL's use of contractors (including 28 paid "expert" witnesses) to unfairly bias this rulemaking, and a conflict-of-interest between the DOL official leading the ergonomics rulemaking and the lead ergonomics contractor. Reducing injuries on the job is a laudable goal but penalizing industry for injuries that may not be jobrelated is a sure way to put jobs and the nation's economy at risk. Soon after issuance, this rule was challenged in court on both procedural and substantive grounds. On December 20, 2000, the three principal procurement agencies - the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration |