1:38 PM EDT

George Miller, D-CA 7th

Mr. GEORGE MILLER of California. Mr. Chairman and members of the committee, this is an amendment technical in nature, and it clarifies that if no one is using diacetyl, it is not necessary for OSHA to issue a standard. The second portion clarifies that the purpose of the required NIOSH study is to study the health effects of substitutes of diacetyl. I urge passage of the amendment.

Mr. Chairman, I reserve the balance of my time.

1:38 PM EDT

Joe Wilson, R-SC 2nd

Mr. WILSON of South Carolina. Mr. Chairman, I include for the Record letters in opposition from the American Bakers Association, dated September 25, 2007; the OSHA Fairness Coalition, September 25, 2007; and the Office of Management and Budget, dated September 25, 2007.

AMERICAN BAKERS ASSOCIATION,

Washington, DC, September 25, 2007.

Hon. Howard McKeon,

House of Representatives,

Washington, DC.

DEAR MR. MCKEON: On behalf of the American Bakers Association (ABA), I am writing to express our opposition to H.R. 2693, ``the Popcorn Workers Lung Disease Prevention Act,'' which the House of Representatives is expected to consider this week. Passage of H.R. 2693 would significantly short circuit the appropriate regulatory process by mandating that the Occupational Safety and Health Administration (OSHA) implement a regulation, including a Permissible Exposure Limit (PEL), applicable

to all sectors of the food industry, and based on limited scientific data. For over 100 years, the ABA has represented the interests of the wholesale baking industry and its suppliers--companies that work together to provide over 80 percent of the wholesome and nutritious bakery products purchased by American consumers.

The American Bakers Association prides itself on our long history of assisting baking companies to stay ahead of the curve on safety and health in the workplace. Our Safety Committee provides tremendous leadership on safety and health policy issues. We are committed to keeping our workers safe and support science-based standards and regulations. The ABA is aware of recent data from the National Institute for Occupational Safety and Health (NIOSH) regarding the use of diacetyl in popcorn manufacturing

and the flavor manufacturing industry. We also understand the severity of the health effects that have been demonstrated in a limited number of cases. However, we strongly believe that the recent NIOSH data does not accurately reflect the use of diacetyl in other sectors of the food industry, such as baking. Differences exist in the food processing industry, the concentrations of diacetyl used, and the existing controls in place.

Mandating specific requirements that OSHA must include in a diacetyl standard sets a precedent that should be avoided. Congress's role as set forth in the OSH Act of 1970 is to ``assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.'' However, it is the role of the Department of Labor to use its expertise for implementing regulations. For Congress to specify the applicable requirements of a ``final standard''

would bypass inappropriately the mechanisms and tests established under the OSH Act. Expedited regulation, even if directed by Congress, would rest on very limited scientific evidence and would represent rushed and inappropriate legislative and Agency action.

Further H.R. 2693 does not address the carefully developed procedures for rulemaking that Congress and the courts have put in place under the Administrative Procedures Act (APA), including provisions designed to protect small businesses. Finally, on September 24, 2007 OSHA announced its intent to move forward with a rulemaking [Page: H10925]

on diacetyl. This rulemaking process should be allowed to move forward as it includes the appropriate procedural safeguards.

ABA respectfully urges you to oppose this legislation and allow the regulatory procedures designed to protect the interests of small businesses to guide OSHA in developing a standard.

Sincerely,

Robb MacKie,

President and CEO.

--

OSHA Fairness Coalition

TO THE MEMBERS OF THE HOUSE OF REPRESENTATIVES: We write to inform you of our strong opposition to H.R. 2693, ``the Popcorn Workers Lung Disease Prevention Act,'' which the House of Representatives is expected to consider this week. The bill directs the Occupational Safety and Health Administration (OSHA) to issue a standard regulating exposure to diacetyl (a substance used to impart butter flavor to various foods, most notably microwave popcorn) even though the science and data available

are insufficient to allow OSHA to establish an exposure limit. Such a mandate would be completely at odds with all other laws, judicial decisions, executive orders and sound policy considerations under which OSHA promulgates standards and regulations.

This bill mandates that OSHA issue an interim final regulation within 90 days of enactment, and then a final regulation which would include a short term exposure limit and a permissible exposure limit, within two years of enactment. Unfortunately, data does not currently exist as to where these lines could be drawn. The very NIOSH document cited in the bill for support also states with respect to diacetyl and other flavorings: ``Little is currently known about which chemicals used in flavorings

have the potential to cause lung disease and other health effects, and what workplace exposure concentrations are safe. ..... Most chemicals used in flavorings have not been tested for respiratory toxicity via the inhalation route, and occupational exposure limits have been established for only a relatively small number of these chemicals.'' (NIOSH Publication 2004-110, pp. 5-6).

Most importantly, this bill mandates that OSHA completely ignore the carefully developed, balanced, and necessary requirements for rulemaking that Congress and the courts have put in place to make sure OSHA standards reflect the best science available, are responsive to a specific hazard, and are both technologically and economically feasible for the affected employers. Both Congress and the Supreme Court have made clear that OSHA can regulate only after it has satisfied specific requirements

for data and analysis as contained in Section 6 of the Occupational Safety and Health Act, and the Administrative Procedure Act including specific provisions designed to protect small businesses. Because regulations have a much different and more significant impact on small businesses, adhering to the strict rulemaking guidelines of the APA are that much more important to small businesses. The normal OSHA rulemaking

process allows for regulatory impacts on small businesses (which according to the Small Business Administration are 50 percent higher than they are for large firms) to be assessed, and for important changes to be made to proposed regulations mitigating those impacts. Shortchanging that process could be potentially devastating to those small businesses which provide 60 percent of all new jobs in the United States.

The interim final regulation specified by this bill, which would have the legal effect of an OSHA standard, would not be produced under any rulemaking procedures. Indeed, this bill attempts to write the interim final standard directly, bypassing OSHA's expertise and ability to tailor such a regulation to those circumstances where it is truly warranted. Under the bill the interim final standard would be issued without any analysis of its impact, or opportunity for those subject to it to provide

comments or input, nor would it be subject to comments once issued as is customary for interim final rules. Because there is no data around which to formulate the short term exposure limit and permissible exposure limit, the two year timeframe specified for OSHA to issue the final regulation is too accelerated to permit the agency to conduct the necessary impact analyses and other small business-focused analyses that would normally accompany an OSHA rulemaking.

Finally, any need for this bill has been eliminated as a result of the world's largest producer of microwave popcorn, ConAgra Foods Inc., and another large manufacturer of microwave popcorn recently indicating their plans to eliminate diacetyl from their brands, and OSHA's announcement on September 24 that the agency will move forward with various measures to address the hazard of workplace diacetyl exposure including a rulemaking consistent with the full procedural safeguards.

H.R. 2693, while well intentioned, is ill conceived and would establish a devastating precedent of Congress mandating a regulation when there is no data available to use in setting the exposure limit, and trampling on regulatory procedure designed to protect the interests of small businesses. The Coalition urges the House not to pass H.R. 2693.

Sincerely,

American Bakers Association; Associated Builders and Contractors; International Food Distributors Association; National Association of Home Builders; National Oilseed Processors Association; NFIB; U.S. Chamber of Commerce; Plumbing-Heating-Cooling Contractors--National Association; American Foundry Society; Associated General Contractors; National Association of Convenience Stores; National Association of Manufacturers; Mason Contractors Association of America; and Printing Industries of America.

--

Statement of Administration Policy, H.R. 2693--The Popcorn Workers Lung Disease Prevention Act

(Rep. Woolsey (D) CA and 17 cosponsors)

The Administration strongly opposes House passage of H.R. 2693, ``Popcorn Workers Lung Disease Prevention Act,'' in its current form. H.R. 2693 would require the Department of Labor's Occupational Safety and Health Administration (OSHA) to publish a premature interim standard within 90 days of enactment regulating worker exposure to diacetyl and publish a final regulation that includes a permissible exposure limit (PEL) within two years. The bill also directs the National Institute for Occupational

Safety and Health (NIOSH) to conduct a study to determine the potential exposure hazards of diacetyl and associated chemicals used in the production of microwave popcorn.

The Administration shares the goal of protecting workers from the risk of obstructive lung disease, and OSHA is already taking steps to strengthen worker protections in this area. These measures include: (1) Announcement of a regular rulemaking process under the Occupational Safety and Health Act to address occupational exposure to flavorings containing diacetyl; (2) inspections at every microwave popcorn manufacturing plant in the nation within the calendar year to ensure that acceptable ventilation

and other engineering controls are in place and that appropriate personal protective equipment is in use; (3) issuance of a Safety and Health Information Bulletin that advises employers about diacetyl, recommends specific engineering and work practice controls to regulate exposures,

and requires appropriate personal protective equipment and respiratory protection when handling diacetyl; and (4) issuance of a guidance document about health hazard information that must be included on diacetyl material safety data sheets under the Hazard Communication standard.

The Administration does not believe that H.R. 2693 in its present form is the best regulatory approach for protecting workers. Before a PEL can be promulgated, more time is needed to gather sufficient evidence concerning (1) the causes of bronchiolitis obliterans (``popcorn lung disease'') in workers exposed to diacetyl and other chemicals used in butter flavorings; (2) the range of exposure levels that may be hazardous; and (3) the kinds of control measures that are most effective. Additional

time is also needed to obtain sufficient information about the many other industries besides microwave popcorn manufacturing that use diacetyl and diacetyl-containing flavorings. The expedited rulemaking required by H.R. 2693 would not allow OSHA sufficient time to gather and analyze the kind of evidence and information needed to ensure the promulgation of a standard that adequately protects workers.

The Administration is also very concerned that the interim standard that is mandated by this legislation will not be open for comment by stakeholders, particularly small business, in accordance with the Administrative Procedure Act, Small Business Regulatory Enforcement Fairness Act, and the rulemaking requirements of the Occupational Safety and Health Act. These statutes ensure thorough consideration and transparency in rulemaking, as well as stakeholder input. The Administration believes these

requirements should be waived only in the most exceptional situations. Thorough vetting is particularly critical when the medical and scientific studies do not provide unequivocal conclusions.

Mr. Chairman, I yield such time as he may consume to the gentleman from Georgia (Mr. Price), an experienced physician.