-2 As the graph below shows, delay is a major problem in selected agencies, such as the Department of Labor. The average review time for major regulations from DoL was three times that for regulations government-wide in 1988 and more than that in 1989. The same is true for nonmajor regulations from DoL. Historically, the problem of delay is mounting - even under the new Administration. The table and chart below provide a more complete picture of the problem. Since 1986, the the average review time government-wide has increased 20.8%; since 1981, it has more than tripled. While the average review time government-wide has dropped slightly between 1988 and 1989, the difference between the review time for DoL and EPA, on the one hand, and the government-wide average, on the other hand, has steadily widened since 1986. In 1986, it took 25 days longer on average for OIRA to review DoL rules than all government regulations; in 1988, it took 55 days longer; and in 1989, it took 57 days longer-nearly triple the government-wide average. The same trend is true. for EPA. OIRA Regulatory Delays: 1981-89 Average Number of Days for OIRA Reviews OMB Watch has now analyzed OIRA regulatory information for the last quarter of 1989 (October-December). At least 29 regulations reviewed by OIRA during that quarter languished at OIRA for over 90 days (see Attachment A). One fifth of those sat at OIRA for twice that long- that is, at least 180 days. EPA had the most-eight. These numbers only reflect the delay for those regulations OIRA has already reviewed; as you know, the public cannot obtain any information about regulations OIRA has not yet acted on. Unreliability OIRA review was and is unreliable. In the fall of 1989, two reports gave a strikingly similar assessment of of OIRA's paperwork clearance process. GAO, in Paperwork Reduction: Mixed Effects on Agency Decision Process and Data Availability (PEMD-89-20, September, 1989), and OMB Watch, in our report, Playing the Numbers: OMB and Paperwork Reduction (October, 1989), described a process in which: ■ OIRA desk officers lack expertise to review the activities assigned to them; ■ Procedures are applied inconsistently across programs; Decisions are often based on conduit communications and/or unsupported political judgments; and ■OIRA review has a disproportionate impact on a narrow range of programs (i.e., health and safety protection). Inaccessibility and Unaccountability Finally, OIRA review was and is inaccessible and unaccountable. The 1986 proce -4 Just in the last month, an OIRA desk officer responded to a request for regulatory review documents from an attorney with the statement that she knew nothing of the 1986 Gramm Memo procedures. When given a copy of the memo by the attorney and OMB Watch, she granted its existence, but indicated the requester would have better luck getting more documents using the Freedom of Information Act; ■ According to OIRA, it held the following telephone calls and meetings with the public concerning regulations under review from four electing agencies - HUD, Labor, Transportation, and Treasury - and EPA: This is a curious set of numbers. Apparently no one has called OIRA regarding a regulation from these five agencies since 1987. ■ Documents from the Regulatory Planning Process have never been compiled or organized in a manner to permit meaningful review of the E.O. 12498 process: no file organization, no dates on documents, no indication of OIRA review comments or decisions (and no publication at all of the Regulatory Program in 1989); Sometime in early 1989, OIRA began using a new regulatory review decision category, called "suspension." A suspension allows OIRA to stop the clock until an agency responds to its concerns (and thus confuses the issue of delay in OIRA regulatory review). A suspension also evades OIRA's own recordkeeping system. While total suspension statistics are available, records of individual suspensions do not appear on the monthly regulatory review action list. Moreover, the required letter to the agency head explaining the suspension is often not in any public file. These issues, all of which have been brought up in hearings before the Committee on Governmental Affairs, combine to paint a picture of OIRA review that is far different from the rosy scenario OMB would have you believe. II. The Factual Record on OIRA Review The unattributed "Review of Allegations of OMB Interference" is striking also for what it does and does not say: (1) Many of its statements are misleading, providing only partial information about the 29 case studies. For example, on the National Survey of Health and Sexual Be -5 quest..." It does not describe that OMB telephoned HHS to ask for additional materials and instructed HHS to submit such information on an SF-83 form. By submitting the information on the form, OMB was free to log-in the additional material as a "new" submission and record the previous submission as withdrawn. Most important, that extended the review beyond the legislatively mandated 90-day time limit. Other problems with the content of the document remain. (2) The document is conspicuously missing many important details. For example, the document does not address several examples OMB Watch and others raised at hearings on reauthorization of the Paperwork Reduction Act. The most glaring omission is any discussion of OIRA's interference with the dress rehearsal for the decennial census, for which OMB Watch prepared a detailed chronology as part of its testimony. Senator Sarbanes also testified before the House and the Senate about OIRA interference in the decennial census. Other examples of specific OIRA review decisions - for paperwork and regulations – missing from the document follow. The list is not exhaustive, but illustrative of the document's lack of completeness. Three Paperwork Examples Used by OMB Watch Not Covered By Document Dress Rehearsal for the 1990 Decennial Census OIRA "raised questions" about one third of the questions on the dry run for the 1990 Census, and many of those questions involved housing quality, important for assessing low-income housing needs. OIRA also waited until late in the process to raise the questions, even though a member of its staff had chaired a federal advisory council charged with designing the Census for three years. After a joint congressional hearing and 1,000 public comment letters (only 10 of which supported OIRA position), OIRA continued to insist that the Bureau delete and change questions, move questions from the short to the long form, and change the sampling strategy for the dress rehearsal. Nearly six months later, OIRA relented partially. But OIRA's actions guaranteed that the Bureau had wasted time and money (on computer processing plans that it would never use, for example) because of the difference between the dress rehearsal and the actual Decennial Census. Carpets & Rugs and Broadwoven Fabrics OIRA disapproved these two quarterly textile surveys because it said the Census Bureau lacked the authority to make them mandatory, despite congressional intent to the contrary. OIRA staff also actively sought out industry representatives to criticize the -6 1987 Charter, Rural, and Intercity Bus Survey May, 1988, and March, 1989 OIRA thought the survey should be voluntary, although industry trade associations expressed the need for its mandatory nature. OIRA disapproved the survey twice, taking a total of nearly six months to do so. In effect, OIRA's action stymied the Commerce Department's first effort to gather more information on service industries in the United States, part of a major effort to beef up the leading economic indicators. Three Regulatory Examples Used by OMB Watch Not Covered By Document Disease-Specific Health Claims on Food Labels Proposed rule and advance notice of proposed rule First submitted for OIRA review in 1987; OIRA revised to allow food manufacturers greater latitude. FDA submitted more restrictive final rule to OIRA on September 19, 1988. OIRA extended review September 27, 1988; OIRA “suspended" review July 14, 1989. FDA issued a new ANRPM, in August, 1989, effectively putting its work back at square one. OIRA backed off in light of congressional and public pressure over the issue and allowed FDA to publish a re-proposed rule - similar to the 1987 proposal - in February, 1990. Occupational Exposure to Bloodborne Diseases OIRA changed the wording of an advance notice of proposed rulemaking (ANPRM) in 1987. Proposed rule went for OIRA review in mid-December, 1988; OIRA approved it in May, 1989. OIRA disapproved the proposed rule's information collection requirements in July, 1989. Verified Residue Control Program Food Safety and Inspection Service Proposed rule and regulatory paperwork Proposed rule and paperwork went to OIRA for review in September, 1989. Review suspended in December, 1989; paperwork withdrawn in December. The proposal would have tightened restrictions on the use of claims, such as “natural,” on beef and poultry products and better ensured their accuracy. OIRA Interference Not only has OMB Watch and Public Citizen documented repeated abuses by OIRA, but other researchers and numerous Congressional committees have also. While by no means a comprehensive list of hearings that chronicled OIRA interference, the |