Blumenthal Urges End To Regulation Delay Endangering Workers And Children

(Washington, DC) – Yesterday, U.S. Senator Richard Blumenthal (D-Conn.) sent a letter to the Office of Management and Budget  (OMB) urging the federal agency to end serious delays in reviewing proposed regulations and guidelines intended to protect workers from inhaling silica dust and children from car accidents and arsenic. In some cases, these delays have lasted more than two years and are in clear violation of the Executive Order that states OMB has 90 days to issue final regulations.

“I’m writing OMB to remind the agency that there are human costs to delay,” Blumenthal said. “Parents should not have to worry about whether the juice they give their child has arsenic in it, and workers should not have to risk contracting lung disease while on the job. Rules and guidelines that could prevent both of these problems have been moved from the back burner to the deep freeze at OMB. Another regulation that would decrease deaths due to back-over accidents has been stuck at OMB for years.”
 
The first proposed regulation – submitted by the Occupational Safety and Health Administration – is intended to protect workers from inhaling silica dust, a toxic substance that can cause serious respiratory issues. This proposed regulation has been sitting before OMB’s Office of Information and Regulatory Affairs (OIRA) for 814 days – two years and 84 days. The second proposed regulation – submitted by the Department of Transportation – is intended to expand visibility in and around cars to protect children from being backed over by vehicles. This proposed regulation has been sitting before OIRA for 539 days – one year and 174 days. Final regulations are necessary to enforce the law.
 
“As you know the Executive Order that requires federal agencies to submit proposed and final rules to OMB for review, also sets out a 90-day timeframe for OIRA to complete its work. Currently, 84 of the 153 regulatory actions pending review at OIRA have been there longer than 90 days,” Blumenthal wrote in a letter to OMB Secretary Sylvia Mathews Burwell. “I urge you to complete your review of these proposed agency actions immediately and return those actions to the promulgating agencies. Otherwise, I would like you to please explain in writing the reasons for delay, and propose an alternate timeline for completion of OIRA’s review process.” 
  
Blumenthal also urged OMB to review a proposed set of guidelines submitted by the Food and Drug Administration (FDA) that would limit the amount of arsenic in juice. In January of 2012, Consumer Reports® exposed concerns about arsenic and lead in apple and grape juices. The company found that roughly 10 percent of the juice samples they tested had total arsenic levels that exceeded federal drinking-water standards. As a result, FDA committed to conducting tests and offering new guidelines to reduce the risks posed by arsenic in juice. However, according to reports, review of these guidelines by OMB has been delayed.
 
“OMB should act quickly to ensure children are protected,” Blumenthal said. “High levels of arsenic in apple juice is unacceptable and unsafe, and these federal agencies have a responsibility to make sure that the safety of children isn’t jeopardized.”
 
The Judiciary Subcommittee on Oversight, Federal Rights, and Agency Action has jurisdiction over the following: (1) administrative practices and procedures including agency rulemaking and adjudication; (2) judicial review of agency action; (3) third-party enforcement of federal rights; and (4) Department of Justice grant programs, as well as government waste and abuse. As Chairman of the subcommittee, Blumenthal plans to take additional steps to ensure federal agency regulations are issued efficiently and effectively. He was chosen to chair the subcommittee in January.

Text of Blumenthal’s letter to OMB is below:
 
May 7, 2013
 
The Honorable Sylvia Mathews Burwell
Director
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503
 
Dear Director Burwell:
 
I write regarding several regulatory proceedings currently under review by the Office of Information and Regulatory Affairs (OIRA). Cost-benefit analysis can play an important role in policy-making, and OIRA review of agency decisions can help to ensure that rules maximize net benefits to society. However, when proposals get seriously delayed at OIRA it undermines the credibility and legitimacy of the Office as an independent arbiter.
 
As you know the Executive Order that requires federal agencies to submit proposed and final rules to OMB for review, also sets out a 90-day timeframe for OIRA to complete its work. Currently, 84 of the 153 regulatory actions pending review at OIRA have been there longer than 90 days. 
 
I am particularly troubled about two pending actions that have been under review for an unacceptable amount of time. First, a proposed rule from the Occupational Safety and Health Administration (OSHA), which seeks to protect workers from exposure to crystalline silica dust, has been before OIRA for 813 days. Second, Congress mandated the Department of Transportation create a rule to expand visibility in and around cars to protect children from being backed over. That proposal has been before OIRA for 538 days.
 
OSHA’s proposed rulemaking seeks to limit workers’ exposure to cancer-causing silica dust. According to the Center for Disease Control 1.7 million workers are exposed to dangerous levels of silica each year, many go on to contract debilitating lung conditions. The rear-view visibility rulemaking from DOT was mandated by Congress, in order to address visibility problems in cars. This proposed rule would help save children that are injured or killed because drivers don’t see them while backing up. Even a small blind zone of just a few feet can be big enough for a child to dart behind a vehicle, unseen by the driver. These are common-sense proposals with real-life consequences.
 
I am also concerned about reports that a guidance by the Food and Drug Administration (FDA), proposing limits on the amount of arsenic in apple juice, is being held at OMB. In January of 2012, Consumer Reports® exposed concerns about arsenic and lead in apple and grape juices. The company found that roughly 10 percent of the juice samples they tested had total arsenic levels that exceeded federal drinking-water standards. Most of that arsenic was inorganic arsenic, a known carcinogen. As a result, FDA committed to conducting tests and offering new guidelines to reduce the risks posed by arsenic in juice. It’s recently been reported in that magazine and other publications that the FDA has been waiting on OMB for review of this new guidance for some time now.
 
Given the health and safety implications of these agency actions, the length of delay in OIRA’s review is unacceptable.  I urge you to complete your review of these proposed agency actions immediately and return those actions to the promulgating agencies. Otherwise, I would like you to please explain in writing the reasons for delay, and propose an alternate timeline for completion of OIRA’s review process.
 
OIRA serves an important purpose, but attached to that responsibility is an obligation to be open and transparent to the public. Undue delay in the rulemaking process poses costs on the public, creates uncertainty in the industry, and reflects poorly on OIRA’s role in the regulatory process by giving the impression that life-saving public policy is being bottled up for political reasons or due to pressure from special interests.
 
Cost-benefit analysis can be complex, and it’s understandable that from time to time OIRA may exceed its ninety day timeframe. When that happens, the public should be informed of the delay, the justification and the amount of time the Administration estimates it will take to complete its review.
 
Sincerely,
 
RICHARD BLUMENTHAL
Chairman, Judiciary Subcommittee on Oversight, Federal Rights, and Agency Action

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