[Senate Hearing 112-725]
[From the U.S. Government Publishing Office]
S. Hrg. 112-725
TIME TAKES ITS TOLL: DELAYS IN OSHA'S
STANDARD-SETTING PROCESS AND THE
IMPACT ON WORKER SAFETY
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
ON
EXAMINING DELAYS IN OSHA'S STANDARD-SETTING PROCESS AND THE IMPACT ON
WORKER SAFETY
__________
APRIL 19, 2012
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpo.gov/fdsys/
?
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland
JEFF BINGAMAN, New Mexico
PATTY MURRAY, Washington
BERNARD SANDERS (I), Vermont
ROBERT P. CASEY, JR., Pennsylvania
KAY R. HAGAN, North Carolina
JEFF MERKLEY, Oregon
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
SHELDON WHITEHOUSE, Rhode Island
RICHARD BLUMENTHAL, Connecticut
MICHAEL B. ENZI, Wyoming
LAMAR ALEXANDER, Tennessee
RICHARD BURR, North Carolina
JOHNNY ISAKSON, Georgia
RAND PAUL, Kentucky
ORRIN G. HATCH, Utah
JOHN McCAIN, Arizona
PAT ROBERTS, Kansas
LISA MURKOWSKI, Alaska
MARK KIRK, IIllinois
Pamela J. Smith, Staff Director and Chief Counsel
Lauren McFerran, Deputy Staff Director
Frank Macchiarola, Republican Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, APRIL 19, 2012
Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming,
opening statement.............................................. 3
Moran, Revae, Director, U.S. Government Accountability Office,
Washington, DC................................................. 6
Prepared statement........................................... 8
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 20
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 22
Ward, Tommy C., Jr., Member, Local 1 Michigan, International
Union of Bricklayers and Allied Craftworkers, Woodhaven, MI.... 25
Prepared statement........................................... 26
Silverstein, Michael, M.D., MPH, Clinical Professor of
Environmental and Occupational Health, University of Washington
School of Public Health and Community Medicine; Retired
Director of State OSHA Program at Washington State Department
of Labor and Industries, Seattle, WA........................... 29
Prepared statement........................................... 31
Rabinowitz, Randy, Director, Regulatory Policy, OMB Watch,
Washington, DC................................................. 37
Prepared statement........................................... 39
Sarvadi, David G., Partner, Keller and Heckman LLP, Washington,
DC............................................................. 47
Prepared statement........................................... 49
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 63
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
American Composite Manufacturers Association................. 72
Response to questions of Senators Harkin and Enzi by:
Michael Silverstein, M.D., MPH........................... 77
Randy Rabinowitz......................................... 79
Response to questions of Senator Enzi by David Sarvadi....... 83
Letters:
Coalition for Workplace Safety (CWS)..................... 84
RAND Corporation......................................... 85
Keller and Heckman LLP................................... 86
(iii)
TIME TAKES ITS TOLL: DELAYS IN OSHA'S STANDARD-SETTING PROCESS AND THE
IMPACT ON WORKER SAFETY
----------
THURSDAY, APRIL 19, 2012
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Enzi, Murray, Isakson,
Whitehouse, Franken, and Blumenthal.
Opening Statement of Senator Harkin
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order.
We're here today to discuss the important issue of
workplace safety and, specifically, why it takes so long for
OSHA to issue a new safety standard. We are going to hear from
GAO about a new study finding that there are alarming delays in
this process. But before I get into what the report says, I
first want to talk about why delays at OSHA matter.
Statistics tell us that 12 American workers are likely to
die today from a workplace injury. Countless more will be
seriously hurt or contract a fatal illness or disease in their
workplace. These injuries take a massive toll on our economy
and society, dramatically increasing the costs of medical care
and decreasing productivity in workplaces across the country.
But these economic costs don't begin to reflect the grief
that families feel when their lives are torn apart by a tragedy
on a job. No dollar figure can capture what a family must
endure when a loved one goes to work in the morning and never
comes home again.
In honor of Workers' Memorial Day, which is later this
month, I'd like to now take a moment to acknowledge some people
that are in attendance here today. These are the family members
of victims of workplace tragedies and others who have been
personally affected by workplace deaths and injuries. I know
many of you have brought pictures. Others of you haven't.
So could I ask all of you who are here who have had a
family member, a loved one, others who have been affected by
workplace deaths and injuries--could you please just stand up?
Let's just see how many of you are here. And you all have
pictures. Thank you very much for being here. You add greatly
to our hearing. Thank you.
The pictures that you hold are the faces that we should
remember every time we hear that safety rules are too
burdensome or that regulations cost jobs. Safety rules save
workers' lives, and that should be our top priority.
I now ask that the statements of these individuals be
included in the record.
[The information referred to may be found in Additional
Material.]
The Chairman. Keeping our workers safe is the
responsibility of every employer across this country. The
Occupational Safety and Health Administration's job is to make
sure that employers are living up to this responsibility. While
there are many tools that OSHA can use to achieve these goals,
safety standards are among the most important and most
effective ways that OSHA can help save lives.
But, unfortunately, as we will hear today, the standard-
setting process at OSHA is broken. Even when the evidence is
undeniable that our workers are dying from workplace hazards,
OSHA still takes an eternity to issue a new safety rule. It
took OSHA nearly a decade to issue a commonsense rule on crane
safety. In the meantime, several cranes toppled and lives were
ruined. OSHA's silica standard has been under consideration
since 1974. But OSHA hasn't even published a proposed rule yet
for the public to even comment on.
Since the 1980s, it has taken OSHA an average of almost 8
years to put out a final rule. That's 50 percent longer than
the EPA, twice as long as the Department of Transportation, and
five times as long as the SEC takes to issue a rule. Detailed
scientific analysis is a big part of OSHA rulemaking, and, of
course, that analysis is going to take time. But 8 years seems
to be unduly long.
The GAO report explores some of the procedural problems
that hamstring OSHA's efforts. It tells us how inefficient the
process is. I know today's witnesses will offer even more
constructive criticism of OSHA's rulemaking. No one wants or
expects OSHA to issue new rules without careful consideration
of the impact on health and the cost of compliance. But it is
simply unconscionable that workers must suffer while an OSHA
rule is mired in bureaucracy.
Slow procedures alone cannot explain why OSHA has issued so
few rules recently. Rules have always taken a long time to
finalize. Yet, after putting out 47 new safety standards in the
1980s and 1990s, OSHA has put out only 11 since then. I might
note that the Reagan administration issued new rules at a rate
four times faster than the current Administration.
I suspect that the lack of new rules is at least partly the
result of relentless external pressure from business lobbyists
and anti-labor groups. These groups pressure both OSHA and OMB
to create delays that cost lives.
Today, rather than hearing outrage over worker deaths, we
hear misinformation campaigns from corporate lobbyists about
OSHA supposedly killing jobs. We see legislative proposals that
call for blanket prohibitions on new regulations and proposals
to add even more red tape to the regulatory process. Some folks
don't seem to be satisfied until it will take 80 years for OSHA
to issue a regulation instead of 8. But that is unacceptable.
The truth is that OSHA doesn't kill jobs. It keeps jobs
from killing people. OSHA's process must be reformed to be more
responsive to workplace safety concerns, not less. We must come
up with ways for OSHA to do its job without intimidation or
interference.
I know GAO has some ideas on how to do this, and I think
the witnesses from our second panel have even more ideas. So I
look forward to today's hearing and I hope it can be the start
of a productive conversation about making workers safer.
And with that, I will turn to Senator Enzi for his opening
statement.
Opening Statement of Senator Enzi
Senator Enzi. Thank you, Mr. Chairman, and thank you for
holding this hearing today. This is the first workplace safety
hearing the HELP Committee has held since 2010, when we spent a
great deal of time discussing mine safety because of the most
tragic accident in 40 years that had just occurred at the Upper
Big Branch Mine in West Virginia. Twenty-nine men lost their
lives in that single accident, yet they represent just a
fraction of the workplace deaths that occur all over the world.
Here in the United States, statistics confirm that we are
making significant progress. Workplace fatalities, injuries,
and illnesses continue their historic decline. Since 2003,
injuries and illnesses have decreased by nearly 30 percent, and
fatal injuries have decreased 19 percent.
Despite this decline, I agree with the Chairman that we can
and must do better. I remember when my daughter was going to
have a tonsillectomy, and the doctor explained to us that it's
99.9 percent safe. But it occurred to me that if that one tenth
was my daughter, it was 100 percent to me, and I recognize that
to all of you in the audience, too. So we do have to do better.
Workplace safety is surely one of the most important
missions Congress has authorized for the Department of Labor.
There are literally lives and livelihoods on the line. This
hearing focuses on one tool: issuing new safety and health
standards by regulation. This is a necessary tool. I'm
interested in the findings of the Government Accountability
Office, GAO, on this subject.
But I would also encourage OSHA to better pursue multiple
methods to improve safety, rather than focusing all its
resources into new regulations and stronger enforcement.
Voluntary programs involving employees and management, such as
the Voluntary Protection Programs, have been shown to make
workplaces considerably safer and save money. Yet under the
current Administration, VPP has been threatened and undermined.
Instead, we should be talking about expanding VPP to smaller
employers and making it even more effective.
I'm pleased that several Senators sitting on this committee
have co-sponsored legislation introduced by Senator Landrieu
and I to preserve VPP. I thank Senators Hagan, Isakson,
Murkowski, and Burr for their support and look forward to
opportunities to bring this bill up for a markup.
I've been to some of the ceremonies where companies are
being awarded for their safety at these VPP sites. And I know
that one of the reasons they're successful is the pride that
all of the employees are taking in making sure that all of them
are safe.
Workplace drug testing is another important way to reduce
risk of injury and death in the workplace. All of the
regulations and required compliance in the world are not going
to work if an employer or manager disregards them because his
or her judgment is impaired.
The field of workers' compensation insurance has developed
a long record of experimentation with strategies to make
workplaces safer and has measureable results. Every State
creates its own workers' comp regime. OSHA should look at the
best practices out there and determine if there are any new
ideas that can be translated to the Federal level.
As someone who has run a workplace safety program
personally, I am very supportive of giving employers quality
information and flexibility to see what works best to keep
their work site safe. Today, even the smallest employers must
grapple with thousands of pages of regulation and burdensome
recordkeeping requirements.
But what should matter the most is the result, and that's
keeping workplaces safe. Since it was created in 1970, OSHA has
been empowered to establish standards for workplace safety and
health. Congress has entrusted OSHA to identify common
workplace hazards which cause injuries and illness, to conduct
survey and research on the cause of hazards, to discover what
preventative steps can be taken to mitigate hazards, and to
issue and enforce regulations.
Given this broad delegation of authority, Congress also
required that OSHA use it appropriately. A new standard must
address an actual hazard. The preventative steps OSHA may
mandate must actually work to reduce the risk. They must be
feasible to institute and cost-effective. If the cost will
weigh heavily on small businesses, OSHA must engage in panel
discussions with actual small business stakeholders.
All of these considerations are appropriate for OSHA to
undertake before finalizing a new standard. And this committee
should closely scrutinize any proposals to shortcut them.
As the GAO report released today makes clear, the interval
of time between when a standard is proposed and finalized can
range from 15 months to 19 years, which is comparable to other
agencies GAO has reviewed, such as the Food and Drug
Administration. The finalization interval has varied throughout
OSHA's existence. In fact, it was much longer in the 1990s than
in either the 1980s or the 2000s.
GAO reports on the many factors that affect the
finalization interval. Some of them are the same issues facing
regulations from any agency, such as shifting priorities.
Change in administration is a clear example of when priorities
shift. But they also shift under the same leadership when
different hazards capture attention.
For example, today's report notes that the ergonomic
standard issued at the end of the Clinton administration was
proposed and finalized in just 1 year. In order to accomplish
that, the vast majority of OSHA's standard-setting resources
were focused on the ergonomics rule and taken off of other
standards.
While most standards use about 5 staff members, OSHA
deployed 50 office staffers, 7 attorneys, and half of the
agency's economists for the development of the ergonomics rule.
You don't have to be a management guru to see how disruptive
that would be to the development of other agency priorities.
In the administration's response to this GAO report, OSHA
endorses the notion of statutory deadlines imposed by Congress
to speed standard-setting. Deadlines imposed by Congress or the
courts do, indeed, seem to speed up the regulatory process by
about half. But OSHA should be cautious about wishing for such
dictates.
The entire point of creating OSHA was to allow experts to
determine the most dangerous and addressable hazards, the best
ways to mitigate them, and when it was most appropriate to do
so. If Congress is setting the agenda instead of safety
experts, American employees will not benefit.
Let me cite a recent example. In 2007, legislation was
passed by the House of Representatives to require an interim
standard within 90 days and the final standard within 2 years
to restrict the use of a flavoring additive. The bill was not
taken up in the Senate, and the Bush administration and OSHA
did not initiate rulemaking.
One of the co-sponsors of the bill, Congresswoman Hilda
Solis, became the Secretary of the Department of Labor just a
year later. Yet under 3 years of her leadership, OSHA has not
finalized a standard for the flavoring additive. In fact, they
found that a new regulation was not needed because
manufacturers acted quickly to mitigate the risk. Therefore, if
the legislation to dictate new standards had been enacted, OSHA
would have spent valuable resources on a regulatory effort that
was no longer necessary.
I also hope this GAO report will not be misconstrued to
justify limiting stakeholder involvement in OSHA's regulatory
process. Stakeholder review and discussion is one of the most
beneficial parts of the rulemaking process. That's where you
work out the kinks of the new regulation and ensure both that
it will work in the real world and that it accomplishes the
goal in the most efficient manner.
Many of the best examples of regulatory efforts that have
failed because of insufficient stakeholder outreach come from
OSHA itself. One of today's witnesses, Mr. David Sarvadi, will
testify about those missteps and suggest ways OSHA can be more
effective in setting new standards. One of his suggestions is
to involve stakeholders earlier in the process, not just after
the risk has been assessed and the remedy formed.
There's one recent example of OSHA standard-setting which I
do want to comment on, because I've had a long involvement with
the issue, and that's the new Hazard Communication Standard
finalized last month. OSHA spent more than 6 years working to
harmonize the current Hazard Communication Standard with the
global standard.
Recognizing that chemicals and goods routinely cross
country lines today, it's beneficial to all involved if the
hazard labels and the material safety data sheets, MSDS, are
uniform and easily understood. This rulemaking has had a great
deal of support from all stakeholders.
Several years ago, Senator Murray and I introduced
legislation intended to aid this rulemaking process by
involving stakeholders through a commission. Last year,
President Obama listed this regulation as one of his
accomplishments to reduce costs imposed by regulations.
With all of this support, this should have been an easy
win. Instead, the rule that was finalized last month included
new provisions not covered in earlier stakeholder outreach and
is already being questioned on several fronts. Safety data
sheets will have to include additional information not required
by other countries, erasing some of the cost savings.
The final rule also inserted two provisions that are sure
to cause confusion by having it cover combustible dust, which
is an undefined hazard, and unclassified hazards. In this case,
shortcutting stakeholder involvement and other regulatory steps
required by law have only led to a more questionable standard
that may now be prolonged even further.
Considering that this regulation was advertised as reducing
regulatory burden and saving money, it's even more
disappointing. And I used to do some work in safety in the oil
well servicing business and found that what works for the oil
well drilling is not the same safety procedures as for the oil
well servicing. And that's why stakeholders need to be involved
in the process, so that it will actually work with the kind of
equipment they're using which can often be different.
I look forward to hearing the testimony and suggestions for
improvement from today's witnesses. And I thank you, Mr.
Chairman.
The Chairman. Thank you, Senator Enzi.
We have two panels. Our first panel is the GAO. Revae Moran
is the Director in the Government Accountability's Office of
Education, Workforce, and Income Security Group. She directs
teams of analysts in conducting reviews of the Department of
Labor's enforcement agencies, including the Occupational Safety
and Health Administration.
The GAO report has just been released this morning. We have
a copy of it. I was able to give it a cursory review last
evening.
Without objection, your statement will be made a part of
the record in its entirety, that is, the document itself.
Ms. Moran, we welcome you, and if you can sum up in 5
minutes or so, we would appreciate that.
Welcome to the committee. Please proceed.
STATEMENT OF REVAE MORAN, DIRECTOR, U.S. GOVERNMENT
ACCOUNTABILITY OFFICE (GAO), WASHINGTON, DC
Ms. Moran. Thank you.
Mr. Chairman and members of the committee, I'm pleased to
be here today to discuss the Occupational Safety and Health
Administration's, OSHA's, standard-setting process. GAO
recently reviewed this process and the factors that affect the
length of time it takes OSHA to set standards.
We reviewed standards set by OSHA from 1981 through 2010.
We selected that year as our starting point because several
laws that affect the length of time it takes OSHA to set
standards were passed in or after 1980, including the
Regulatory Flexibility Act and the Paperwork Reduction Act.
We reviewed all of the standards OSHA issued except minor
ones such as technical amendments to existing standards. During
this period, OSHA has issued 58 standards. The time it took
OSHA to finalize them ranged widely from 15 months to 19 years,
with an average time of 7 years, 9 months. Fifteen of these
standards, over 25 percent, took OSHA over 10 years to issue.
We found that many factors affect the time it takes OSHA to
finalize a standard, including the complex framework of
procedural requirements the agency must follow; shifting
priorities within the agency, the Congress, and presidential
administrations; and the high standard of judicial review for
OSHA's standards. For example, an Executive order issued in
1993 requires OSHA to determine whether a new standard is
economically significant, such as whether it will have an
annual effect on the economy of $100 million or more. If it is,
OSHA must submit a detailed cost-benefit analysis to the Office
of Management and Budget for review, which can add several
months to the process of setting a new standard.
Under another new law enacted in 1996, OSHA is one of only
three agencies required to seek and consider input from panels
of small businesses affected by certain new standards, a
process that can add 8 months to the time it takes OSHA to set
a new standard. Court decisions and actions by the Congress can
also significantly affect the timeframes, either slowing them
down or speeding things up.
For example, in 1981, the U.S. Supreme Court ruled that the
Occupational Safety and Health Act requires OSHA to determine
that all new standards are technologically and economically
feasible. And other courts have held that OSHA must evaluate
the feasibility of new standards on an industry by industry
basis, which takes a lot of time.
On the other hand, when laws or the courts specify
timeframes for developing these standards, it can speed up the
process. Such timeframes were specified for nine of the 58
standards we reviewed. For these standards, it took OSHA about
half the time to issue them, 4\1/2\ years on average, compared
to the almost 8 years for standards for which timeframes were
not specified.
We also reviewed the standard-setting processes of
regulatory agencies similar to OSHA, such as the Environmental
Protection Agency, EPA, and the Mine Safety and Health
Administration, MSHA. We found, however, that their processes
offered little insight into the challenges OSHA faces, because
their statutory frameworks and resources differed so markedly
from OSHA's. For example, one provision of the Clean Air Act
gives EPA clear requirements and statutory deadlines for
regulating air pollutants and for periodically reviewing and
updating them.
We sought the opinions of occupational safety and health
experts and agency officials on ways to improve OSHA's
standard-setting process. In our report, released today, we
present the pros and cons of each of these ideas, noting that
many of them would make it easier for OSHA to develop new
standards more quickly, but might not allow all stakeholder
concerns to be considered. In addition, many of these ideas
would require substantive procedurally legislative changes, for
example, changing the standard of judicial review, which would
require Congress to amend the Occupational Safety and Health
Act.
In conclusion, it is essential that OSHA set occupational
standards that protect the safety and health of workers. The
administrative burdens and costs associated with such standards
must be carefully considered. But once the need for a new
standard has been established, it is important for OSHA to be
able to move forward as quickly and efficiently as possible in
order to protect workers.
This concludes my oral statement. I would be happy to
answer any questions you have at this time.
[The prepared statement of Ms. Moran follows:]
Prepared Statement of Revae Moran
summary
GAO reviewed the time it took OSHA to set all of the
standards set by the agency from 1981 through 2010 (except minor ones
such as technical amendments to existing standards).
We selected 1981 as the starting point because several new
laws that affect the length of time it takes OSHA to set standards were
passed in or after 1980, including the Regulatory Flexibility Act, the
Paperwork Reduction Act, and the Small Business Regulatory Enforcement
Fairness Act (SBREFA).
During this 30-year period, OSHA issued 58 standards.
It took OSHA from 15 months to 19 years to issue
these standards--on average, 7 years, 9 months.
It took OSHA over 10 years to complete 15 of the 58
(over 25 percent).
Most of the standards (over 80 percent) were issued
prior to 2000.
Many factors affect the time it takes OSHA to finalize a
new standard:
(1) the multiple procedural requirements the agency must follow;
(2) shifting priorities within the agency, the Congress, and
presidential administrations; and
(3) the high standard of judicial review OSHA's standards must
meet (the rigorous ``substantial evidence'' standard vs. the more
deferential ``arbitrary and capricious'' standard for most other
agencies).
Court decisions and actions by the Congress can also
significantly affect the timeframes, both slowing them down and
speeding things up. For example, timeframes for 9 of the 58 standards
were specified in laws or by the courts, and it took OSHA half the time
to issue those standards.
We sought the opinions of agency officials and safety and
health experts on how to streamline the process. Our report presents
the pros and cons of the major policy options, noting that many of them
would make it easier for OSHA to develop new standards more quickly but
might curtail opportunities for full stakeholder input. Many of the
ideas suggested would require legislative action, such as amending the
OSH Act to change the judicial standard OSHA's rules must meet.
______
Chairman Harkin, Ranking Member Enzi, and members of the committee,
thank you for the opportunity to discuss the challenges the Department
of Labor's (Labor) Occupational Safety and Health Administration (OSHA)
faces in developing and issuing safety and health standards. Workplace
safety and health standards are designed to help protect over 130
million public and private sector workers from hazards at more than 8
million worksites in the United States, and have been credited with
helping prevent thousands of work-related deaths, injuries, and
illnesses. However, questions have been raised concerning whether the
agency's approach to developing standards is overly cautious, resulting
in too few standards being issued. Others counter that the process is
intentionally deliberative to balance protections provided for workers
with the compliance burden imposed on employers. Over the past 30
years, various presidential Executive orders and Federal laws have
added new procedural requirements for regulatory agencies, resulting in
multiple and sometimes lengthy steps OSHA and other agencies must
follow.
My remarks today are based on findings from our report, which is
being released today, entitled Workplace Safety and Health: Multiple
Challenges Lengthen OSHA's Standard Setting.\1\ For this report, we
were asked to review: (1) the time taken by OSHA to develop and issue
occupational safety and health standards and the key factors that
affect these timeframes, (2) alternatives to the typical standard-
setting process that are available for OSHA to address urgent hazards,
(3) whether rulemaking at other regulatory agencies offers insight into
OSHA's challenges with setting standards, and (4) ideas that have been
suggested by occupational safety and health experts for improving the
process. To determine how long it takes OSHA to develop and issue
occupational safety and health standards, we analyzed new standards and
substantive updates to standards finalized between calendar years 1981
and 2010 and identified as significant by the agency. Through
semistructured interviews with current and former Labor officials and
occupational safety and health experts representing both workers and
employers, we identified the key factors affecting OSHA's timeframes
for issuing standards and ideas for improving OSHA's standard-setting
process. We reviewed relevant Federal laws and interviewed current OSHA
staff and attorneys from Labor's Office of the Solicitor to identify
alternatives to the typical standard-setting process available for OSHA
to address urgent hazards. To determine whether rulemaking at other
regulatory agencies offers insight into OSHA's challenges with setting
standards, we conducted semistructured interviews with policy and
program officials at the Environmental Protection Agency (EPA) and at
the Mine Safety and Health Administration (MSHA). For more information
on our scope and methodology, see the full report. This testimony is
based on work performed between February 2011 and April 2012 in
accordance with generally accepted government auditing standards.
---------------------------------------------------------------------------
\1\ GAO-12-330 (Washington, DC: Apr. 2, 2012).
---------------------------------------------------------------------------
In summary, we found that, between 1981 and 2010, the time it took
OSHA to develop and issue safety and health standards ranged from 15
months to 19 years and averaged more than 7 years. Experts and agency
officials cited several factors that contribute to the lengthy
timeframes for developing and issuing standards, including increased
procedural requirements, shifting priorities, and a rigorous standard
of judicial review. We also found that, in addition to using the
typical standard-setting process, OSHA can address urgent hazards by
issuing emergency temporary standards, although the agency has not used
this authority since 1983 because of the difficulty it has faced in
compiling the evidence necessary to meet the statutory requirements.
Instead, OSHA focuses on enforcement activities--such as enforcing the
general requirement of the Occupational Safety and Health Act of 1970
(OSH Act) \2\ that employers provide a workplace free from recognized
hazards--and educating employers and workers about urgent hazards.
Experiences of other Federal agencies that regulate public or worker
health hazards offered limited insight into the challenges OSHA faces
in setting standards. For example, EPA officials pointed to certain
requirements of the Clean Air Act to set and regularly review standards
for specified air pollutants that have facilitated the agency's
standard-setting efforts. In contrast, the OSH Act does not require
OSHA to periodically review its standards. Also, MSHA officials noted
that their standard-setting process benefits from both the in-house
knowledge of its inspectors, who inspect every mine at least twice
yearly, and a dedicated mine safety research group within the National
Institute for Occupational Safety and Health (NIOSH), a Federal
research agency that makes recommendations on occupational safety and
health. OSHA must instead rely on time-consuming site visits to obtain
information on hazards and has not consistently coordinated with NIOSH
to assess occupational hazards. Finally, experts and agency officials
identified several ideas that could improve OSHA's standard-setting
process. In our report being released today, we draw upon one of these
ideas and recommend that OSHA and NIOSH more consistently collaborate
on researching occupational hazards so that OSHA can more effectively
leverage NIOSH expertise in its standard-setting process.
---------------------------------------------------------------------------
\2\ Pub. L. No. 91-596, 84 Stat. 1590.
---------------------------------------------------------------------------
background
The basic process by which all Federal agencies typically develop
and issue regulations is set forth in the Administrative Procedure Act
(APA), \3\ and is generally known as the rulemaking process. \4\
Rulemaking at most regulatory agencies follows the APA's informal
rulemaking process, also known as ``notice and comment'' rulemaking,
which generally requires agencies to publish a notice of proposed
rulemaking in the Federal Register, provide interested persons an
opportunity to comment on the proposed regulation, and publish the
final regulation, among other things.\5\ Under the APA, a person
adversely affected by an agency's notice and comment rulemaking is
generally entitled to judicial review of that new rule, and a court may
invalidate the regulation if it finds it to be ``arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law,''
sometimes referred to as the arbitrary and capricious test.\6\ In
addition to the requirements of the APA, Federal agencies typically
must comply with requirements imposed by certain other statutes and
Executive orders. In accordance with various presidential Executive
orders, agencies work closely with staff from the Office of Management
and Budget's (OMB) Office of Information and Regulatory Affairs, who
review draft regulations and other significant regulatory actions prior
to publication.\7\ Most of the additional requirements that affect OSHA
standard setting were established in 1980 or later.
---------------------------------------------------------------------------
\3\ Pub. L. No. 79-404, 60 Stat. 237 (1946), codified in 1966 in
scattered sections of title 5, United States Code. Agencies may follow
additional or alternative procedures if certain exceptions apply, or
when required by other statutes.
\4\ The APA defines a rule as ``the whole or part of an agency
statement of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or policy or
describing the organization, procedure, or practice requirements of an
agency.'' 5 U.S.C. Sec. 551(4). For this testimony, we use the terms
rule and regulation interchangeably.
\5\ The APA also provides for formal rulemaking in certain cases.
Formal rulemaking includes a trial-type hearing, and if challenged in
court, the resulting rule will be struck down if unsupported by
substantial evidence. 5 U.S.C. Sec. 553.
\6\ 5 U.S.C. Sec. Sec. 702, 706(2)(A).
\7\ A regulatory action is ``significant'' if it will (1) have an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities
(sometimes referred to as ``economically significant''); (2) create a
serious inconsistency or otherwise interfere with an action taken or
planned by another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of the recipients; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive order. Executive Order No.
12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993). The principles,
structures, and definitions established in Executive Order 12866 were
reaffirmed by Executive Order 13563, 76 Fed. Reg. 3821 (Jan. 18, 2011).
---------------------------------------------------------------------------
The process OSHA uses to develop and issue standards is spelled out
in the OSH Act. Section 6(b) of the act specifies the procedures OSHA
must use to promulgate, modify, or revoke its standards.\8\ These
procedures include publishing the proposed rule in the Federal
Register, providing interested persons an opportunity to comment, and
holding a public hearing upon request. Section 6(a) of the act directed
the Secretary of Labor (through OSHA) to adopt any national consensus
standards or established Federal standards as safety and health
standards within 2 years of the date the OSH Act went into effect,
without following the procedures set forth in section 6(b) or the
APA.\9\ According to an OSHA publication, the vast majority of these
standards have not changed since originally adopted, despite
significant advances in technology, equipment, and machinery over the
past several decades. In leading the agency's standard-setting process,
staff from OSHA's Directorate of Standards and Guidance, in
collaboration with staff from other Labor offices, explore the
appropriateness and feasibility of developing standards to address
workplace hazards that are not covered by existing standards. Once OSHA
initiates such an effort, an interdisciplinary team typically composed
of at least five staff focus on that issue.
---------------------------------------------------------------------------
\8\ Codified at 29 U.S.C. Sec. 655(b).
\9\ Codified at 29 U.S.C. Sec. 655(a). In general, national
consensus standards are voluntary safety and health standards that a
nationally recognized standards-producing organization adopts after
reaching substantial agreement among those who will be affected,
including businesses, industries, and workers. For purposes of section
6(a) of the OSH Act, a national consensus standard must have met
certain requirements. See the full report for more information on
national consensus standards. The OSH Act defines an ``established
Federal standard'' as any operative occupational safety and health
standard established by any Federal agency or contained in any Act of
Congress that was in effect on the date of enactment of the OSH Act. 29
U.S.C. Sec. 652(10). Prior to the enactment of the OSH Act, other
Federal laws included provisions designed to protect workers' safety
and health, such as the 1936 Walsh-Healey Act.
---------------------------------------------------------------------------
osha's standard-setting timeframes vary widely and are influenced by
the many procedural requirements and other factors
We analyzed the 58 significant health and safety standards OSHA
issued between 1981 and 2010 and found that the timeframes for
developing and issuing them averaged about 93 months (7 years, 9
months), and ranged from 15 months to about 19 years (see table 1).\10\
---------------------------------------------------------------------------
\10\ We included in our review standards that OSHA considered to be
important or a priority, including but not limited to standards that
met the definition of ``significant'' under Executive Order 12866.
Table 1: Significant OSHA Safety and Health Standards Finalized between 1981 and 2010
----------------------------------------------------------------------------------------------------------------
Average number
Number of Average number of months from
Decade/year standards of months from proposed rule
finalized \1\ initiation to to final rule
final rule \2\ \3\
----------------------------------------------------------------------------------------------------------------
1980s........................................................... 24 70 30
1990s........................................................... 23 118 50
2000s........................................................... 10 91 36
2010............................................................ 1 --\3\ --\3\
Overall......................................................... 58 93 39
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of Federal Register.
\1\ For the purposes of this analysis, we considered a standard to have been finalized on the date it was
published in the Federal Register as a final rule.
\2\ For the purposes of this analysis, we considered a standard to be initiated on the date OSHA publicly
indicated initiating work on the standard in the Federal Register, by publishing a Request for Information or
Advance Notice of Proposed Rulemaking. In cases where OSHA mentioned neither of these in the final rule, we
used the date the standard first appeared on OSHA's semiannual regulatory agenda.
\3\ Because only one standard was finalized in 2010, we did not list the average number of months. However, the
overall calculations include the 2010 standard.
During this period, OSHA staff also worked to develop standards
that have not yet been finalized. For example, according to agency
officials, OSHA staff have been working on developing a silica standard
since 1997, a beryllium standard since 2000, and a standard on walking
and working surfaces since 2003.\11\ For a depiction of the timelines
for safety and health standards issued between 1981 and 2010, see
appendix I.
---------------------------------------------------------------------------
\11\ Agency officials told us that OSHA issued a proposed standard
on beryllium in 1975, but it was never issued as a final rule. Staff
started collecting information on beryllium again in 2000. In addition,
they told us that a 2010 proposed rule on walking and working surfaces
replaced an outdated proposed rule from 1990 that was never issued as a
final rule because of other regulatory priorities.
---------------------------------------------------------------------------
Experts and agency officials frequently cited the increased number
of procedural requirements established since 1980 as a factor that
lengthens OSHA's timeframes for developing and issuing standards. They
indicated that the increased number of procedural requirements affects
the agency's standard-setting timeframes because of the complex
requirements OSHA must comply with to demonstrate the need for new or
updated standards (see fig. 1). For example, OSHA must evaluate
technological and economic feasibility of a potential standard \12\
using data gathered by visiting worksites in industries that will be
affected, on an industry-by-industry basis.\13\ Agency officials told
us this is an enormous undertaking because, for example, it requires
visits to multiple worksites. In addition to the feasibility analyses,
OSHA staff generally must also conduct economic analyses, including
assessing the costs and benefits of significant standards,\14\ and may
be required to initiate a panel process that seeks and considers input
from representatives of affected small businesses.\15\ According to
agency officials, the small business panel process takes about 8 months
of work, and OSHA is one of only three Federal agencies that is subject
to this requirement.\16\
---------------------------------------------------------------------------
\12\ These analyses are necessary because the Supreme Court has
held that the OSH Act requires that standards be both technologically
and economically feasible. Am. Textile Mfrs. Inst. v. Donovan, 452 U.S.
490, 513 n.31 (1981).
\13\ See United Steelworkers v. Marshall, 647 F.2d 1189, 1301 (D.C.
Cir. 1980), quoted in AFL-CIO v. OSHA, 965 F.2d 962, 980 (11th Cir.
1992). Assessing feasibility on an industry-by-industry basis requires
that the agency research all applications of the hazard being
regulated, as well as the expected cost for mitigating exposure to that
hazard, in every industry.
\14\ Executive Order 12866 requires that OSHA provide an assessment
of the potential overall costs and benefits for significant rules to
OMB. For rules that are ``economically significant,'' the agency must
also submit a more detailed cost-benefit analysis. See 58 Fed. Reg.
51,735 (Sept. 30, 1993).
\15\ Under the Small Business Regulatory Enforcement Fairness Act
of 1996, this panel process is required if OSHA determines that a
potential standard would have a significant economic impact on a
substantial number of small entities, such as businesses. OSHA staff
must work with the Small Business Administration to set up the small
business panels. 5 U.S.C. Sec. 609(b),(d).
\16\ The other two agencies that are subject to this requirement
are EPA and the Consumer Financial Protection Bureau.
Experts and agency officials also told us that changing priorities
are a factor that affects the timeframes for developing and issuing
standards, explaining that priorities may change as a result of changes
within OSHA, Labor, Congress, or the presidential administration. Some
agency officials and experts told us such changes often cause delays in
the process of setting standards. For example, some experts noted that
the agency's intense focus on publishing an ergonomics rule in the
1990s took attention away from several other standards that previously
had been a priority.\17\
---------------------------------------------------------------------------
\17\ OSHA issued a final standard just 1 year after publishing the
proposed rule, but, according to agency officials, in order to develop
the rule so quickly, the vast majority of OSHA's standard-setting
resources were focused on this rulemaking effort, including nearly 50
full-time staff in OSHA's standards office, half the staff economists,
and 7 or 8 attorneys. The rule was invalidated by Congress 4 months
after it was issued under the Congressional Review Act. Pub. L. No.
107-5, 115 Stat. 7 (2001).
---------------------------------------------------------------------------
The standard of judicial review that applies to OSHA standards if
they are challenged in court also affects OSHA's timeframes because it
requires more robust research and analysis than the standard that
applies to many other agencies' regulations, according to some experts
and agency officials. Instead of the arbitrary and capricious test
provided for under the APA, the OSH Act directs courts to review OSHA's
standards using a more stringent legal standard: it provides that a
standard shall be upheld if supported by ``substantial evidence in the
record considered as a whole.'' \18\ According to OSHA officials, this
more stringent standard (known as the ``substantial evidence''
standard) requires a higher level of scrutiny by the courts and as a
result, OSHA staff must conduct a large volume of detailed research in
order to understand all industrial processes involved in the hazard
being regulated, and to ensure that a given hazard control would be
feasible for each process.
---------------------------------------------------------------------------
\18\ 29 U.S.C. Sec. 655(f).
---------------------------------------------------------------------------
According to OSHA officials and experts, two additional factors
result in an extensive amount of work for the agency in developing
standards:
Substantial data challenges, which stem from a dearth of
available scientific data for some hazards and having to review and
evaluate scientific studies, among other sources. In addition,
according to agency officials, certain court decisions interpreting the
OSH Act require rigorous support for the need for and feasibility of
standards.
An example of one such decision cited by agency officials is a 1980
Supreme Court case, which resulted in OSHA having to conduct
quantitative risk assessments for each health standard and ensure that
these assessments are supported by substantial evidence.\19\
---------------------------------------------------------------------------
\19\ Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S.
607, 639 (1980). Although the decision interpreted a provision of the
OSH Act that applied only to health hazards, Labor officials said that
there is little practical distinction between the evidence OSHA must
compile to support health standards and the evidence it must compile
for safety standards.
---------------------------------------------------------------------------
Response to adverse court decisions. Several experts with
whom we spoke observed that adverse court decisions have contributed to
an institutional culture in the agency of trying to make OSHA standards
impervious to future adverse decisions. However, agency officials said
that, in general, OSHA does not try to make a standard ``bulletproof ''
because, while OSHA tries to avoid lawsuits that might ultimately
invalidate the standard, the agency is frequently sued. For example, in
the ``benzene decision,'' the Supreme Court invalidated OSHA's revised
standard for benzene because the agency failed to make a determination
that benzene posed a ``significant risk'' of material health impairment
under workplace conditions permitted by the current standard.\20\
Another example is a 1992 decision in which a U.S. Court of Appeals
struck down an OSHA health standard that would have set or updated the
permissible exposure limit for over 400 air contaminants.\21\
---------------------------------------------------------------------------
\20\ Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S.
607, 639 (1980).
\21\ AFL-CIO v. OSHA, 965 F.2d 962, 986-87 (11th Cir. 1992).
---------------------------------------------------------------------------
osha has authority to address urgent hazards through emergency
temporary standards, enforcement, and education
OSHA has not issued any emergency temporary standards in nearly 30
years, citing, among other reasons, legal and logistical
challenges.\22\ OSHA officials noted that the emergency temporary
standard authority remains available, but the legal requirements to
issue such a standard--demonstrating that workers are exposed to grave
danger and establishing that an emergency temporary standard is
necessary to protect workers from that grave danger--are difficult to
meet. Similarly difficult to meet, according to officials, is the
requirement that an emergency temporary standard must be replaced
within 6 months by a permanent standard issued using the process
specified in section 6(b) of the OSH Act.
---------------------------------------------------------------------------
\22\ Section 6(c) of the OSH Act authorizes OSHA to issue these
standards without following the typical standard-setting procedures if
certain statutory requirements are met. 29 U.S.C. Sec. 655(c).
---------------------------------------------------------------------------
OSHA uses enforcement and education as alternatives to issuing
emergency temporary standards to respond relatively quickly to urgent
workplace hazards. OSHA officials consider their enforcement and
education activities complementary. Its enforcement efforts to address
urgent hazards, OSHA uses the general duty clause of the OSH Act, which
requires employers to provide a workplace free from recognized hazards
that are causing, or are likely to cause, death or serious physical
harm to their employees. \23\ Under the general duty clause, OSHA has
the authority to issue citations to employers even in the absence of a
specific standard under certain circumstances. Along with its
enforcement and standard-setting activities, OSHA also educates
employers and workers to promote voluntary protective measures against
urgent hazards. OSHA's education efforts include on-site consultations
and publishing health and safety information on urgent hazards. For
example, if its inspectors discover a particular hazard, OSHA may send
letters to all employers where the hazard is likely to be present to
inform them about the hazard and their responsibility to protect their
workers.
---------------------------------------------------------------------------
\23\ 29 U.S.C. Sec. 654(a)(1).
---------------------------------------------------------------------------
other regulatory agencies' experiences offer limited insight
into osha's challenges
Although the rulemaking experiences of EPA and MSHA shed some light
on OSHA's challenges, their statutory framework and resources differ
too markedly for them to be models for OSHA's standard-setting process.
For example, EPA is directed to regulate certain sources of specified
air pollutants and review its existing regulations within specific
timeframes under section 112 of the Clean Air Act, which EPA officials
told us gave the agency clear requirements and statutory deadlines for
regulating hazardous air pollutants.\24\ MSHA benefits from a narrower
scope of authority than OSHA and has more specialized expertise as a
result of its more limited jurisdiction and frequent on-sight presence
at mines. Officials at MSHA, OSHA, and Labor noted that this is very
different from OSHA, which oversees a vast array of workplaces and
types of industries and must often supplement the agency's inside
knowledge by conducting site visits.
---------------------------------------------------------------------------
\24\ 42 U.S.C. Sec. 7412. However, as GAO reported in 2006, EPA
failed to meet some of its statutory deadlines under section 112 of the
Clean Air Act. See GAO, Clean Air Act: EPA Should Improve the
Management of its Air Toxics Program, GAO 06-669 (Washington, DC: June
23, 2006).
---------------------------------------------------------------------------
experts suggested many ideas to improve osha's standard-setting
process, including more interagency coordination and statutory
deadlines
Agency officials and occupational safety and health experts shared
their understanding of the challenges facing OSHA and offered ideas for
improving the agency's standard-setting process.\25\ Some of the ideas
involve substantial procedural changes that may be beyond the scope of
OSHA's authority and require amending existing laws, including the OSH
Act.
---------------------------------------------------------------------------
\25\ The ideas presented here are those most frequently mentioned
in our interviews by agency officials and experts that are not
addressed in other sections of the full report. For more information on
our methodology, see the full report.
Improve coordination with other agencies: Experts and
agency officials noted that OSHA has not fully leveraged available
expertise at other Federal agencies, especially NIOSH, in developing
and issuing its standards. OSHA officials said the agency considers
NIOSH's input on an ad hoc basis but OSHA staff do not routinely work
closely with NIOSH staff to analyze risks of occupational hazards. They
stated that collaborating with NIOSH on risk assessments, and generally
in a more systematic way, could reduce the time it takes to develop a
standard by several months, thus facilitating OSHA's standard-setting
process.
Expand use of voluntary consensus standards: According to
OSHA officials, many OSHA standards incorporate or reference outdated
consensus standards, which could leave workers exposed to hazards that
are insufficiently addressed by OSHA standards that are based on out-
of-date technology or processes. Experts suggested that Congress pass
new legislation that would allow OSHA, through a single rulemaking
effort, to revise standards for a group of health hazards using current
industry voluntary consensus standards, eliminating the requirement for
the agency to follow the standard-setting provisions of section 6(b) of
the OSH Act or the APA. One potential disadvantage of this proposal is
that any abbreviation to the regulatory process could also result in
standards that fail to reflect relevant stakeholder concerns, such as
an imposition of unnecessarily burdensome requirements on employers.
Impose statutory deadlines: OSHA officials indicated that
it can be difficult to prioritize standards due to the agency's
numerous and sometimes competing goals. In the past, having a statutory
deadline, combined with relief from procedural requirements, resulted
in OSHA issuing standards more quickly. However, some legal scholars
have noted that curtailing the current rulemaking process required by
the APA may result in fewer opportunities for public input and possibly
decrease the quality of the standard.\26\ Also, officials from MSHA
told us that, while statutory deadlines make its priorities clear, this
is sometimes to the detriment of other issues that must be set aside in
the meantime.
---------------------------------------------------------------------------
\26\ See, for example, Jacob E. Gersen and Anne Joseph O'Connell,
``Deadlines in Administrative Law,'' University of Pennsylvania Law
Review, vol. 156 (2007-8).
---------------------------------------------------------------------------
Change the standard of judicial review: Experts and agency
officials suggested OSHA's substantial evidence standard of judicial
review be replaced with the arbitrary and capricious standard, which
would be more consistent with other Federal regulatory agencies. The
Administrative Conference of the United States has recommended that
Congress amend laws that mandate use of the substantial evidence
standard, in part because it can be unnecessarily burdensome for
agencies.\27\ As a result, changing the standard of review to
``arbitrary and capricious'' could reduce the agency's evidentiary
burden. However, if Congress has concerns about OSHA's current
regulatory power, it may prefer to keep the current standard of review.
\28\
---------------------------------------------------------------------------
\27\ 59 Fed. Reg. 4669, 4670-71 (Feb. 1, 1994). The Administrative
Conference of the United States is an independent Federal agency that
makes recommendations for improving Federal agency procedures,
including the Federal rulemaking process.
\28\ One suggested justification for judicial review of agency
rulemaking is when there is genuine concern about the power agencies
have in the regulatory process. Mark Seidenfeld, ``Bending the Rules:
Flexible Regulation and Constraints on Agency Discretion,''
Administrative Law Review (spring, 1999).
---------------------------------------------------------------------------
Allow alternatives for supporting feasibility: Experts
suggested that OSHA minimize on-site visits--a time-consuming
requirement for analyzing the technological and economic feasibility of
new or updated standards--by using surveys or basing its analyses on
industry best practices. One limitation to surveying worksites is that,
according to OSHA officials, in-person site visits are imperative for
gathering sufficient data in support of most health standards. Basing
feasibility analyses on industry best practices would require a
statutory change, as one expert noted, and would still require OSHA to
determine feasibility on an industry-by-industry basis.
Adopt a priority-setting process: Experts suggested that
OSHA develop a priority-setting process for addressing hazards, and as
GAO has reported, such a process could lead to improved program
results.\29\ OSHA attempted such a process in the past, which allowed
the agency to articulate its highest priorities for addressing
occupational hazards. Reestablishing such a process may improve a sense
of transparency among stakeholders and facilitate OSHA management's
ability to plan its staffing and budgetary needs. However, it may not
immediately address OSHA's challenges in expeditiously setting
standards because such a process could take time and would require
commitment from agency management.
---------------------------------------------------------------------------
\29\ See GAO, Managing for Results: Enhancing Agency Use of
Performance Information for Management DecisionMaking, GAO-05-927
(Washington, DC: Sept. 9, 2005).
---------------------------------------------------------------------------
concluding remarks
The process for developing new and updated safety and health
standards for occupational hazards is a lengthy one and can result in
periods when there are insufficient protections for workers.
Nevertheless, any streamlining of the current process must guarantee
sufficient stakeholder input to ensure that the quality of standards
does not suffer. Additional procedural requirements established since
1980 by Congress and various Executive orders have increased
opportunities for stakeholder input in the regulatory process and
required agencies to evaluate and explain the need for regulations, but
they have also resulted in a more protracted rulemaking process for
OSHA and other regulatory agencies. Ideas for changes to the regulatory
process must weigh the benefits of addressing hazards more quickly
against a potential increase in the regulatory burden imposed on the
regulated community. Most methods for streamlining that have been
suggested by experts and agency officials are largely outside of OSHA's
authority because many procedural requirements are established by
Federal statute or Executive order. However, OSHA can coordinate more
routinely with NIOSH on risk assessments and other analyses required to
support the need for standards, saving OSHA time and expense. In our
report being released today, we recommend that OSHA and NIOSH more
consistently collaborate on researching occupational hazards so that
OSHA can more effectively leverage NIOSH expertise in its standard-
setting process. Both agencies agreed with this recommendation.
Mr. Chairman, this concludes my prepared statement. I would be
pleased to respond to any questions you or other members of the
committee may have.
(GAO Contact and Staff Acknowledgments: For questions about this
testimony, please contact me at (202) 512-7215 or [email protected].
Contact points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this statement. Individuals
who made key contributions to this statement include, Gretta L.
Goodwin, assistant director; Susan Aschoff; Tim Bober; Anna Bonelli;
Sarah Cornetto; Jessica Gray; and Sara Pelton.)
appendix i: timelines of significant osha safety and health standards
The following two figures (fig. 2 and fig. 3) depict a timeline for
each of the 58 significant safety and health standards OSHA issued
between 1981 and 2010.
The Chairman. Thank you very much, Ms. Moran. We'll now
start a series of 5-minute questions.
In looking through this document last evening, it occurred
to me that other agencies move more quickly on rulemaking, even
ones that also have to have a lot of scientific analysis and
stakeholder input. Can you describe for me in general terms how
OSHA's rulemaking process compares to the process at other
Federal agencies, and why does OSHA take so much longer than
these others?
Ms. Moran. I'm afraid that this isn't a very satisfying
answer. But in some cases, we were not able to tell exactly why
it takes OSHA so long. There are certain factors, such as the
Small Business Enforcement Act, the SBREFA, as it's called,
that--OSHA is one of only three agencies, including EPA and the
Consumer Financial Protection Bureau, that have to meet the
requirements and pull together small business panels, a process
that can take 8 months, add 8 months to the process.
But that doesn't explain the entire timeframe. And a lot of
times, I think it's because of the shift in priorities within
the agency. It will start work on a new standard or, you know,
updating an existing standard, and then put it aside, work on
other things, and come back to it, and that's not documented
anywhere.
So it was difficult for us to determine exactly what
happened, for example, on the scaffold standard. Why it would
take 19 years to set a scaffold standard doesn't necessarily
make sense.
The Chairman. But, again, can you speak just a little bit--
other agencies have rulemaking processes that require similar
kinds of inputs as OSHA--scientific inputs, stakeholder
inputs--but their timeframes are much less. But maybe you can't
speak to that. I don't know.
Ms. Moran. We did look a little bit at, for example, the
EPA. But in that case, under the Clean Air Act, there were
statutory deadlines set. For MSHA, it deals with one industry
for the most part. There are some ancillary ones like trucking
that's involved in mining.
But for the most part, MSHA can set standards more quickly
because it's dealing with one industry, and it has inspectors
that go into the mines at least twice a year and for
underground coal mines four times a year. So they have a lot of
close knowledge of what the hazards are that miners face.
The Chairman. One option in your report deals with the
standard of review that courts use to consider OSHA rules. OSHA
must demonstrate to a court that there was substantial evidence
to support its conclusions, whereas most Federal agencies only
have to show that the decision was not arbitrary and
capricious.
Can you explain in practical terms what this means, and how
significant of a burden is this for OSHA?
Ms. Moran. I do believe it is a significant factor in the
timeframe that it takes OSHA to set standards, the substantial
evidence standard that they must meet. When the courts go to
review the standards that OSHA sets, most other agencies--and
that's a very good point that you're making, that they only
have to show that the standards that they set were not
arbitrary and capricious, that the agency was not being
arbitrary and capricious in setting a new standard.
For OSHA, they have to show substantial evidence that a
material impairment would occur to a worker, and that is a much
higher standard for them to meet. So they spend a lot of time
gathering evidence, scientific evidence, to support the need
for a new standard. And I do believe that adds a substantial
time burden to the agency.
The Chairman. As part of the regulatory process, OSHA
clears regulations through the Office of Management and Budget.
My understanding is that OMB is supposed to respond to OSHA
within 120 days. OSHA submitted a proposed rule governing
silica exposure to OMB in February 2011. OMB has still not
responded to the proposed rule, 14 months later.
What role does OMB play, generally, in the time it takes
for OSHA to issue a regulation, and, particularly, with respect
to the silica rule?
Ms. Moran. We have heard that the silica standard has been
with OMB since February 2011. We asked them about that, and
they said they could not comment on their review of a proposed
rule. It is, however, one of the only instances that we heard
people complain about. We did not hear substantial complaints
about the time it takes OSHA to review other standards that we
reviewed.
The Chairman. That it takes OMB.
Ms. Moran. Right. We did not hear a lot of complaints about
OIRA's review, the office within OMB that reviews the
standards.
The Chairman. I'll have more about that for other
witnesses, also. But thank you very much, Ms. Moran.
Senator Enzi.
Senator Enzi. Thank you, Mr. Chairman.
Some of the people that you consulted for your report
mentioned that more frequent use of negotiated rulemaking could
help OSHA. Why isn't that used more often? Do you believe that
would speed up the process or could speed up the process?
Ms. Moran. Well, we know that negotiated rulemaking has
been used for a number of different rules. When we spoke with
the OSHA staff, they said that it, unfortunately, doesn't
really buy them a lot of time. For example, the cranes and
derrick standard committee was established and work was started
in 2003. They completed the work in 1 year and pulled together
the small business panels that were required under SBREFA--
completed their work in 2006 and issued a 276-page report on
that work. But it still took OSHA until 2011 to finalize the
rule.
So even despite negotiated rulemaking, it didn't speed up
the process substantially. And that's the case with other
standards, such as 1,3-Butadiene in 1985-95. They used
negotiated rulemaking, but it took them 12 years.
Senator Enzi. You mentioned that the previous example even
included the small business review and that only took 6 months,
but then it took them 3 years to write the rule after they got
that done?
Ms. Moran. I believe it took a couple of years for the
small business panels, that process. But that was completed in
2006, and then the final rule was not published until 2011.
Senator Enzi. So they had all their information for 5 years
before they put out the rule.
Ms. Moran. Yes.
Senator Enzi. Thank you. An OSHA official in your report
said that they do not attempt to make any standard bulletproof.
I'm a little curious as to what that means. Congress and the
courts have worked to ensure that agencies take the necessary
steps to establish a thorough record of the rulemaking process,
whether it's holding a small business roundtable, conducting
economic or technical feasibility analyses or conducting risk
assessments, or OMB review.
All of these steps, while time-consuming, are integral to
making a proposed rule that would actually work and be
enforceable. Would you agree?
Ms. Moran. Yes, I would. But the comment that the OSHA
staff made was that they still know that they're going to be
sued, no matter how much work that they do on a rule. And
that's where the bulletproof comment came from, that they
realize that at some point, they have to move forward.
Senator Enzi. I think that's a normal result on a lot of
regulation. As you mentioned in the report, OSHA was able to
complete its ergonomic standard in just over 1 year, due to an
influx of more than 50 staffers who worked on the rule. Despite
the rule being invalidated by Congress a short time after it
was finalized, this example shows that the agency can use the
necessary resources available on a priority standard.
Did you find that this happens in other OSHA rulemakings?
And if not, why not?
Ms. Moran. It does happen sometimes, but we didn't find an
example where they put that level of resources to bear on one
standard that was being worked on. And I will mention that even
though the final part of putting together the ergonomic
standard took only a year, they had been working on it for some
time and collecting information from the stakeholder community.
Senator Enzi. Thank you. And your report concludes that any
streamlining of the current process must guarantee sufficient
stakeholder input to ensure the quality of standards does not
suffer. Over the last few years, OSHA has taken a number of
actions that can be described as sub regulatory. Essentially,
the intent seems to be to achieve its standard of enforcement
change without having to go through the regulatory process.
In many cases, these have been misguided precisely because
they did not benefit from the step or the regulatory process
such as stakeholder outreach, feasibility and cost-effective
assessments. Given your years of experience reviewing the
Federal regulatory process, how important is the stakeholder
input?
Ms. Moran. I think it's essential. I'm not sure that it
should take over 10 years to issue some of these standards. But
it is important in order for them to hold up to court
challenges for the stakeholder input to be considered
throughout the entire process.
Senator Enzi. Now, you did find--going back to my previous
question--the shifting priorities within OSHA was a major
factor in the length of time that it took to finalize new
standards. It's obvious this occurs when the administrations
change, but it also occurred within one administration.
It's not necessarily a bad thing when a priority shifts. We
want the government to be able to respond to new developments
and concerns of the people. But when significant resources are
taken from other important priorities, it may not serve the
agency well in the long run.
Did you find any example of that in your review?
Ms. Moran. Well, the ergonomic standard was the one that we
talk about in the report, where they had taken so many
resources to work on that standard that they had to put other
standards, potential ones, aside at that time. That was the
biggest one.
Senator Enzi. Thank you for your answers.
My time has expired, Mr. Chairman.
The Chairman. Thank you, Senator Enzi.
Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Thank you, Mr. Chairman.
And thank you for your testimony today. In your prepared
statement, you note that OSHA has authority to address urgent
hazards through emergency and temporary standards under the
general duty clause. Is that not correct?
Ms. Moran. Yes, it is.
Senator Isakson. So even though it may take a substantial
period of time to have enough evidence to determine that a rule
should be made, OSHA has the ability in the absence of that
evidence to issue a temporary standard because of--in the
interest of the health, safety, and welfare of workers in most
cases. Is that not true?
Ms. Moran. It is. OSHA has to prove that there is a grave
danger and that an emergency temporary standard is needed to
address that grave danger within a 6-month period. So that is
the requirement, and it's very difficult for them to meet. They
have not issued an emergency temporary standard since 1983.
Senator Isakson. Under the general duty clause, they
haven't?
Ms. Moran. Not under the general duty clause. But an
emergency temporary standard--they have not issued one since
1983.
Senator Isakson. Well, we had a hearing on MSHA--Mr.
Chairman, you'll remember--a couple of years ago. And people
were suggesting they ought to have injunctive rights to go to
court, and they had them, but they never exercised them. So
some of the things we're talking about are agency-specific in
terms of their initiative, not necessarily because of the
requirements we place on them. Is that not true?
Ms. Moran. I think that is true, yes.
Senator Isakson. And there's a second agency that we have a
lot of say-so over, and that's the FDA, the Food and Drug
Administration. We're hopefully going to be doing a
reauthorization of PDUFA and getting some expansion of industry
input and industry fees to accelerate the time period it takes
to take a drug from its discovery to actually being able to be
prescribed.
But it's very important that we have substantial evidence
that that's a safe drug. That's why it takes a long time to
approve a lot of things through the FDA. If we remove
substantial evidence, as the Chairman was asking earlier, are
we not putting ourselves at risk of OSHA being arbitrary in its
rulemaking?
Ms. Moran. That's really a policy decision. What I can say
is that substantial evidence--that standard is a higher
standard than other agencies to which they're held, the
arbitrary and capricious standards. So it's really something
that does make OSHA take longer in proving that it has
substantial evidence of a material impairment to a worker to go
through their standard-setting process. So it does take time.
Senator Isakson. And one of those agencies you're referring
to is EPA. Is that not correct?
Ms. Moran. Yes, it is.
Senator Isakson. I have one other comment about the small
business--the requirements for the small business panels and
the fact that it took, I think you said, about 8 months to meet
that standard. Is that right?
Ms. Moran. That's what OSHA's officials told us, yes.
Senator Isakson. That's 8 months. In a 19-year rulemaking
procedure, 8 months is a small amount of that time. So I want
to point out that I ran a small business, and the biggest thing
I worried about was my workers' comp premiums and losing a
worker or having an accident that caused productivity to go
down.
So it's very important for those small businesses to have
input as the rule is made, because many times, they can come up
with a better standard than the Occupational Safety and Health
Administration might come up with, because they're doing it on
a daily basis.
The second comment I would make--we've had three instances
in Georgia that have involved health, safety, and welfare of
the public. The Peanut Corporation of America in Camilla, where
salmonella got released--and that was--it turned out to be a
criminal act by an individual who had actually tested and found
evidence of salmonella but hid it from OSHA inspectors and from
health and safety inspectors that came in.
But many of the other accidents we've had--I know the Sago
Mine accident--Chairman Enzi, at the time, went with me and
Senator Kennedy and Senator Rockefeller. Everybody was rushing
to judgment. But we finally found out after about 18 months
that a lightning strike that hit a buried ground wire removed
from the mine had actually caused the explosion.
We had to wait to get the substantial evidence to make the
determination of the right thing to do in terms of improving
the MSHA law. Much of the improvements that we made came from
suggestions by the mine owners themselves. So I would caution
anybody for thinking that we ought to remove or lessen the
input or the standard of small business in terms of their input
into regulatory rulemaking, because many times they can offer
suggestions that are far better than what a neophyte may offer
otherwise.
I just wanted to make that point, Mr. Chairman, and I
appreciate the time.
The Chairman. I hope the Senator doesn't think that I was
in any way implying that the standard should be changed to
lessen the input of small businesses. That's not--I never said
that, and I never intended to say that or imply that.
Senator Isakson. And I didn't mean to imply that. But I was
just noting the comment to make the statement that I made. But
I didn't mean to imply that, if I did.
The Chairman. I'm just saying that I agree with Senator
Enzi. Stakeholder input is vitally important in this. The
question is why does it take so long after the stakeholder
input. After they do that, then they sit on it for years and
years after that. That was sort of what I was trying to get at,
and maybe Senator Enzi, too. I don't know. You were asking
that, too.
Senator Franken.
Statement of Senator Franken
Senator Franken. Ms. Moran, thank you for testifying today
and for your work on this report. I'm sorry I wasn't here for
your testimony, but I read it last night.
In advance of Workers' Memorial Day in a couple of weeks,
this hearing is highlighting some vital issues, issues
affecting lives of working men and working women across this
country. The Occupational Safety and Health Act was passed with
the intent to guarantee, ``every working man and woman in the
Nation safe and healthful working conditions.''
Today, we're going to be examining the question: Is the
current system enabling OSHA to fulfill its mission? And I
think the answer is it's not good enough. There were 4,340
workplace deaths in 2010. That is 4,340 too many. I'd like to
recognize all the families that are here with pictures of their
loved ones.
This is America. This is 2012. I believe that we can do
better, and today we should be serious about trying to figure
out how to do that.
Ms. Moran, despite the length of your report, GAO only
identifies one recommendation to improve OSHA's standard-
setting. How did GAO arrive at this recommendation, and what is
GAO's response to some suggestions raised in our next panel?
Did you read the testimony of the next panel?
Ms. Moran. I did.
Senator Franken. OK. What is GAO's response to suggestions
like--and I'll run through four of them--legislation allowing
OSHA to easily adopt industry voluntary consensus standards;
legislation directing OSHA to work on regulating certain
hazards; using surveys instead of onsite studies to determine
rule feasibility; or, eliminating or reducing OMB economic
analyses since OSHA already conducts its own analyses?
Ms. Moran. I'll start with the last one. The reason we did
not recommend that last issue is because we did not hear that
that was a substantial problem in terms of the amount of time
that it takes OSHA to issue regulations. As I mentioned, other
than OMB's review of the silica standard that has been there
for 14 months, they generally, as far as we were told from
OSHA, by OSHA, do maintain the 90 days that it takes--that
they're required to review them and with a 30-day possibility
of an extension.
But, generally, they do adhere to the 90-day period, which
certainly isn't the bulk of the time that it takes. Some of the
other recommendations that have been made just really are
things like voluntary consensus standards that OSHA is required
now to consider. So they do do that.
However, the standards that are proposed by consensus
setting organizations, such as the American National Standards
Institute, ANSI, and the National Fire Protection Association,
are not required to be based on the same information on which
OSHA standards are based. They're not quite as scientifically
based. They're not based on the same economic and technological
feasibility that OSHA is required to meet. So it would take a
legislative change to require that.
Senator Franken. Right.
Ms. Moran. But that's really a policy consideration. We
didn't see that that would necessarily----
Senator Franken. So if we changed that legislatively, it
could make sense, because Senator Isakson was talking about the
input of the industry, and if the industry has some common-
sense voluntary standards that they've adopted, consensus
standards that would be an improvement, it's possible that OSHA
adopting those could further the process along in a more
expeditious manner. Is that right?
Ms. Moran. It's possible. It also might not allow all the
exact same stakeholder input that's being considered in the
current process.
I also wanted to comment on one of the other
recommendations that one of the witnesses has proposed, and
that's using data from EPA and their Integrated Risk
Information System, IRIS. GAO reported on that system in
another report from one of our other units in 2008, and we
found serious problems with the data in that system, that it
was at risk of becoming obsolete, and we pointed to a lot of
problems with the quality of the data. So that was why we
wouldn't have recommended something like that.
Senator Franken. What about legislation directing OSHA to
work on regulating certain hazards, in particular?
Ms. Moran. I think that certainly could speed up the time.
On the nine standards for which timeframes were either mandated
in the law or by the courts, it took OSHA about half the time
to issue those. And so it really can speed up the process.
Senator Franken. OK. And what about using surveys instead
of onsite studies to determine rule feasibility?
Ms. Moran. I think that could speed it up slightly. It's
not something that we found was a major problem. It does take
more time because they have to go to OMB to get--under the
Paperwork Reduction Act--those surveys approved. But they do
use surveys now. It's just not the only piece of evidence that
they use.
Senator Franken. OK. Thank you. We have another panel of
witnesses, and I might ask them the same questions.
Ms. Moran. Sure.
Senator Franken. Thank you very much for your service, Ms.
Moran.
Ms. Moran. Thank you.
The Chairman. Thank you, Senator Franken.
Thank you very much, Ms. Moran, for your work and for your
service to our country. We appreciate it very much.
Ms. Moran. You're very welcome.
Senator Enzi. Good report and good presentation. Thank you.
The Chairman. Very good. Thank you.
Now, we'll move to our second panel. At the table, we have
Mr. Tom Ward, a member of the Bricklayers Union Local 1 near
Detroit, MI. After many years in the bricklayer trade, he
became involved in safety training for his fellow workers. Mr.
Ward has had firsthand experience of the impact of silica dust
in the workplace.
We have Dr. Michael Silverstein, recently retired as
director of the State OSHA Program at Washington State
Department of Labor and Industries; formerly a Policy Director
at Federal OSHA. Dr. Silverstein is also a Professor of
Occupational Health and has 40 years of experience in the
field.
Next, we have Randy Rabinowitz, the Director of Regulatory
Policy at OMB Watch, an organization that monitors Federal
safety regulations. She previously served as co-chair of the
American Bar Association's Committee on Occupational Safety Law
and as an adjunct professor teaching safety and health law.
Before beginning her work at OMB Watch, she represented labor
unions in OSHA proceedings.
And Mr. David Sarvadi, an attorney at the law firm of
Keller and Heckman, who specializes in occupational safety and
health law. Mr. Sarvadi also has over 30 years of experience as
a certified industrial hygienist. He has participated in OSHA
rulemaking on behalf of companies and trade associations on
numerous occasions.
We thank you all for being here to testify today. We'll
just go from left to right as I introduced you. Each of your
statements will be made a part of the record in their entirety.
I would ask each of you to sum up in about 5 minutes. We'll go
through the panel, and then we'll open up for general
discussion.
Mr. Ward, welcome and please proceed.
STATEMENT OF TOMMY C. WARD, Jr., MEMBER, LOCAL 1 MICHIGAN,
INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS,
WOODHAVEN, MI
Mr. Ward. Thank you, Chairman Harkin, for the opportunity
to testify before you today, Ranking Member Enzi and the other
distinguished Senators. My name is Tom Ward, and I'm a member
of the International Union of Bricklayers and Allied
Craftworkers Local 1 Michigan, and it is an honor to be here
today. Thank you.
What I'm about to share with you is deeply personal. But
the reason I agreed to speak with you today is much more
important than just my story. It's a chance to speak on behalf
of every American worker in the country.
I was just 13 years old when my dad passed of silicosis. He
did sandblasting work for about 6 years in his twenties. And I
remember going to work with him one day, and I was amazed. A
rusty old truck frame came in, and, man, it looked brand new at
the end of the day. And I see that same look in my son's eyes
every time he sees me fix something around the house or build
something or look at a building that I had something to do
with.
My dad eventually moved on to a better job with better pay,
benefits for the family, and he was a proud member of the
Teamsters Union. A few years into his new job, he started
becoming short of breath, and the doctors couldn't figure it
out for quite a while. The official diagnosis of silicosis came
when he was 34. It took 5 years to kill him, and he died at the
age of 39.
It was a slow and very painful process for our family to
watch. As painful as it was, the hardest day for me is the last
day he worked. He came in, closed the door, fell to the ground
and started crying. He said, ``I just can't do it anymore.''
I started my apprenticeship in 1991 after working as a
laborer for a few years. I had no idea that I was going into a
trade that had the same hazard. I was exposed to the same
hazard that killed my father, and I didn't know. I didn't have
the training at the time. Training back then--it was just 20
years after the OSHA Act, so it wasn't a big deal at the time.
It was only after several years ago, when I became involved
in training myself, that I learned all the hazards, the details
of the hazard, what it's about. What is silicosis? I was in a
train-the-trainer course at our international training center,
and the presenter showed us the video called Stop Silicosis. I
don't know if anyone in here has seen it.
But what was shocking for me is that the video was produced
in 1938. Almost 70 years ago, we knew exactly what it was.
Thousands of people were dying every year due to silicosis, and
there are simple control hazards to fix it. In some cases, most
cases, it's as simple as adding water to whatever you're
drilling or grinding. And it's on Youtube if you want to take a
minute to look at it.
The workers in that video refer to their jack hammers as
widow-makers. I'm here to tell you, we have our own modern day
widow-makers on construction sites. Masonry saws, concrete
saws, and grinders, when they're used dry, are our widowmakers.
They just came around in the late 1970s, 1980s. So to set a
timeline up for you, my generation of guys are going to come
down with it next, in my opinion.
The control measures are simple as water or hooking up a
vacuum. Manufacturers of this equipment have been on board for
a couple of decades almost. Most saws and grinders come with
control measures, and we're supposed to use engineer controls.
It's real simple.
Every year, about 4,000 or 5,000 people die on the job. And
in our OSHA classes, we have to spend 6 hours on the Focus
Four, the four leading causes of death on the job, and only two
on health hazards, hazards that kill 50,000 people every year.
It's amazing to me that we can't get this done.
In my opinion, the problem is it's not the contractor's
problem. It's your family's problem when you're trying to enjoy
retirement. It'll get you a few years later. Since my dad died,
there's been no change in the silica standard, and I wonder to
myself if I'm going to--if my family is going to watch me
suffer the same fate.
We must get this done now. There's no telling how many
workers have contracted silicosis in the 14 years it's been in
the process. The video I mentioned earlier states at the end
that these workers will not have died in vain if we use what we
have gained to help prevent workers from contracting this
disease.
The standard is complicated. But I'm here to tell you it
really isn't. If you look at the standard, it says that we are
allowed to be exposed to 0.1 milligrams per meter cubed. This
is 1 gram. If you divide it in a thousand pieces, it would take
0.1--that's how much we're allowed to be exposed to in an 8-
hour period. It doesn't take an industrial hygienist or a
rocket scientist to figure out that if you're standing, dry
cutting in a plume of dust, you are well over the limit.
In conclusion, I just want to say again that I am honored
to be here today and to be, hopefully, a small part of ensuring
that my father and all that have perished on the job or from
diseases from the job did not die in vain.
Thank you.
[The prepared statement of Mr. Ward follows:]
Prepared Statement of Tommy C. Ward, Jr.
summary
When I was 13 years old, my father died of silicosis. In his late
twenties, he worked as a sandblaster, and was exposed to silica dust on
the job. A few years later, he started getting short of breath. He was
officially diagnosed with silicosis at age 34. My dad was 39 years old
when he died in February 1982.
I joined the International Union of Bricklayers and Allied
Craftworkers (BAC) in 1991 after working as a laborer for a few years.
I had no idea when I started working as a laborer and later as a
bricklayer that I could be exposing myself to silica dust. To this day,
I wonder if I will develop silicosis myself and if my children will
have to watch me suffer the same fate as my father.
After 14 years on the wall, I became involved in training; part of
my job is to provide safety training to apprentices and journeyworkers.
I'm concerned that the men and women I'm training are being exposed to
the same hazard that killed my dad all these years later. I'm concerned
that the same weak OSHA silica standard that was adopted in 1972
remains on the books today, allowing workers to be exposed to harmful,
even deadly, levels of silica dust. OSHA has been working on a new
stronger silica standard for more than 14 years--since 1997. But there
have been all kinds of delays in issuing this rule. Currently the draft
of a new proposed rule is at OMB for review, where it has been for more
than a year.
We can fix this problem. Young men and women don't have to die from
exposure to silica. There are simple and cost-effective solutions to
prevent exposure to silica dust on the job.
It's as simple as water; as simple as outlawing dry cutting on
construction sites. Most, if not all, of the tools that when used may
disperse silica dust come with water hook-ups or have other attachments
that prevent dust from becoming airborne. Without a stronger standard
in place including dust control provisions, however, there is nothing
to compel employers to provide these simple and relatively inexpensive
tools. Good contractors get it and do the right thing; they put in
place controls and good programs, but they're having problems competing
with contractors who won't, contractors who see their workers as
disposable, and who know OSHA can't do a thing to make them protect
their workers?
We must act together now so our children and grandchildren are not
victims. We cannot let another generation pass us by without taking
action.
______
Thank you Chairman Harkin for the opportunity to testify before
you, Ranking Member Enzi, and the other distinguished Senators on the
Committee on Health, Education, Labor, and Pensions this morning. My
name is Tom Ward, and I am a member of the International Union of
Bricklayers and Allied Craftworkers, Local 1 Michigan. It is an honor
to have this opportunity to testify before you on the delays in OSHA's
Standard-Setting Process and the Impact on Worker Safety. This topic is
particularly important to me and my family.
When I was 13 years old, my father died of silicosis. In his
twenties, he worked as a sandblaster for 5 to 6 years. There's not a
whole lot I remember clearly about my childhood; but I do remember
going to work with my dad a couple times. I remember old rusty truck
frames coming in to be blasted and primed, the effort he put into the
job, his work ethic; and I remember being amazed that it was my dad
that made them look new at the end of the day.
After he left his job sandblasting, my dad took a job where he was
represented by the Teamsters' Union--he had good pay and benefits that
my family relied on. A few years into his new job, he started getting
short of breath. I remember my mom telling me the doctors suspected
lung infections. We got the official diagnosis--silicosis--when he was
34 years old. The hardest memory to live with is the last day he
worked--he came in the door, fell to the floor and started crying. He
said ``I can't do it anymore.''
My dad was 39 years old when he died in February 1982. It took 5
years for silicosis to kill him. It was a slow and very painful process
for me, my sisters and for my mother to witness. In the end, his
disease suffocated him.
My dad's death had profound impacts on me. He was a very hands-on
guy--he would fix the car himself, and make repairs to the house. It's
a trait that I inherited from him, and that led me into the trades
myself. I'm not sure if I inherited his tremendous work ethic or if it
was the result from watching him work until he dropped, I still live
with the image every day even though it's been 30 years already.
In 1991, I joined the International Union of Bricklayers and Allied
Craftworkers (BAC) after working as a laborer for a few years. Coming
into the trade was easy for me because I loved working with my hands. I
got a great job, and turned it into a great career. I had no idea when
I started working as a laborer and later as a bricklayer that I could
be exposing myself to silica dust. To this day, I wonder if I will
develop silicosis myself.
At the time I started in the trades, there wasn't a lot of training
being done about respiratory protection or silica. A lot of the guys I
worked with were completely unaware of the seriousness of silica
exposure, and the contractors out there weren't consistent about
providing protective equipment because the standard was completely
lacking; the rules were lax and there was no enforcement. The same
standard exists today.
Once I became aware of the silica hazards in the trade I had
chosen--and given my father's experience--I did what I could to protect
myself including research on the standard. It was very confusing for an
apprentice, paper masks were the only option on the job. After 14 years
in the trade I became involved in training, this is when I first
received training on the hazard. When the presenter showed us a video
called ``Stop Silicosis'' my heart sunk as I wondered if my children
ages 7 and 5 at the time would watch me suffer the same fate as my
father. What may be shocking to you about the video is that it was
produced in 1938 by Secretary Frances Perkins' Department of Labor. In
the video, they refer to jackhammers as ``widow makers.'' A digital
copy is available on Youtube, its 11 minutes that shows simple, very
inexpensive control measures to eliminate the hazard.
As bricklayers, we have our own widow makers--masonry saws and
grinders. Before the 1970s, most of our cuts were made by hand with a
hammer and chisel. In the late seventies, though, diamond-bladed saws
were increasingly prevalent on jobsites, and later gas-cutoff saws
started appearing. In the early eighties, more and more saws were used
because the newer, more complicated buildings required more and more
cuts to the masonry materials. These saws all come with a water hook-up
or an available vacuum attachment, but they rarely get used even though
they are a cheap and effective way of reducing exposure to airborne
silica dust.
Part of my job instructing apprentices and journeyworkers is to
provide safety training to them. I'm concerned about the men and women
I'm training; that they're being exposed to the same hazard my dad was
all these years later.
In my own classes, I try to give our apprentices and journeymen and
women a good understanding of respiratory dangers and how to use
protective equipment. In addition to sharing my personal story, I tell
them that according to NIOSH, over 50,000 men and women die each year
from diseases contracted at work including silicosis. We are required
to spend 6 hours teaching the Focus 4 in our OSHA 30-hour course--
falls, electrocution, caught-in or between and struck by--the leading
causes of death on the job. These Focus 4 hazards kill 4,000 to 5,000
workers each year. We are only required to teach 2 hours on health
hazards--hazards that kill 10 times that every year. In my opinion we
have forgotten about the very real threat of inhaling dust on the job;
about the workers who slowly suffer for years and then die from an
illness like my dad did and like 50,000 others do each year. Training
apprentices and journeymen and women helps them understand the risks
they face from silica, and they understand how to protect themselves.
It's not easy for workers to apply this knowledge on the jobsite;
those who speak up may not be called back for the next project.
Although there are good contractors out there who are aware of the dust
hazards, construction workers are typically employed by many
contractors in a given year and not all of them provide such equipment,
or even require the use of the equipment when it is provided. Without
strengthened standards and enforcement efforts, there is nothing
compelling employers to keep their employees safe from silica and other
dust.
For my entire career--no, longer-- since my dad died--there has
been no change in the OSHA silica exposure limits or changes to
strengthen the silica standard. OSHA has been working on a new stronger
silica standard for more than 14 years--since 1997. But there have been
all kinds of delays in issuing this rule. Currently the draft proposed
rule is at OMB for review, where it has been for more than a year.
I'm concerned that in the entire careers of the young men and women
I'm training today there will be no change in the silica standard and
to make stronger the requirements for dust control. For some it may
already be too late. It is in our power to fix the problem. Young men
and women don't have to die from exposure to silica. Secretary Perkins
gave us the solutions some 74 years ago; they are easy and relatively
inexpensive--especially when compared to the years of health care costs
for the thousands of men and women that have died from disease related
to silica exposure on the job. We must get this done now.
The 1938 video I mentioned earlier addressing the dangers of silica
exposure ends with the line ``these workers will not have died in
vain.'' Thousands of workers have died in vain since that video was
produced. It's impossible to believe that in almost 80 years we have
done little to reduce the dangers to our working men and women from
silica. After years of hard work, no one should lose everything then
end his or her life struggling to draw a breath because of minute dust
inhaled on the job.
I am honored to have an opportunity to ensure that my father and
all that have perished from diseases contracted at work will not have
died in vain.
The Chairman. Thank you, Mr. Ward, for a very poignant
presentation. I appreciate it very much.
Dr. Silverstein, please proceed.
STATEMENT OF MICHAEL SILVERSTEIN, M.D., MPH, CLINICAL PROFESSOR
OF ENVIRONMENTAL AND OCCUPATIONAL HEALTH, UNIVERSITY OF
WASHINGTON SCHOOL OF PUBLIC HEALTH AND COMMUNITY MEDICINE;
RETIRED DIRECTOR OF STATE OSHA PROGRAM AT WASHINGTON STATE
DEPARTMENT OF LABOR AND INDUSTRIES, SEATTLE, WA
Dr. Silverstein. Thank you. Chairman Harkin, Ranking Member
Enzi, I appreciate the opportunity to speak to you today. And
I'd like to summarize my testimony in five points.
First of all, nearly 40 years after the OSHA Act was
signed, the national toll of preventable workplace illness,
injury, and death remains appallingly high. A recent study
found 5,600 fatal injuries, 53,000 fatal illnesses, and 9
million other workplace injuries and illnesses every year for
an annual cost of $250 billion.
Second, OSHA's rules have kept workers from being killed,
but roadblocks have interfered with forward progress. OSHA had
a good start in the 1970s with rules for asbestos, arsenic,
lead, cotton dust, and there's strong evidence that these have
been effective in protecting workers with no evidence of
reduced competitiveness, productivity, or profits.
Simply put, OSHA regulations have saved lives without
killing jobs. However, myths about rules have overshadowed this
reality, and procedural and political roadblocks have brought
OSHA rulemaking to a virtual halt. If there is a crisis, it's
not over-regulation, but unregulated hazards. For example, the
U.S. Chemical Safety Board reported on the dangers from
combustible dust in 2006 after reviewing nearly 300 serious
fires and explosions that had killed 119 workers. The Board
recommended new OSHA rules.
Just 2 years later, a huge explosion of combustible sugar
dust at the Imperial Sugar Refinery in Georgia killed 14
workers. And 3 years after that, five more workers were killed
in iron dust explosions in Texas. Now, 6 years since the Board
warning, without a new OSHA standard, it is a national
embarrassment that workers continue to be blown up in
combustible dust explosions.
My third point is that lost time means lost lives. It takes
OSHA almost 8 years, as you've heard, on average, to adopt a
safety and health rule and, in many cases, much longer.
Exposure to silica dust causes crippling lung disease and lung
cancer. OSHA started toward rulemaking in 1974. After 37 years
of bureaucratic delay, draft documents were finally submitted
for OMB review.
And now, as you pointed out, Mr. Chairman, more than a year
later, the proposal remains handcuffed within OMB. Now,
assuming a very best case scenario, it will take another 3
years after the proposal emerges from OMB for a new silica rule
to be adopted, 41 years after the process started. And by this
time, more than 2,000 lives could have been saved.
Fourth point, when problems are found, we need to find
solutions, and here are some suggestions. First, OSHA and the
National Institute of Occupational Safety and Health, or NIOSH,
should be required to establish a shared priority list for
rulemaking. OSHA should work with NIOSH on a new national
survey of workplaces to get detailed information on worker
exposures and control measures for hazards that are on the
priority list.
OMB should acknowledge that OSHA's public hearing process
is especially robust. All issues of concern to OMB are
discussed and debated on the record--economic impacts,
potential alternatives, technological and economic feasibility.
The OMB review only slows things down without adding
substantial value. OMB should limit itself to cursory review of
this, or simply exempt OSHA from the review requirements of
Executive Order 12866.
Congress should direct OSHA to update more than 400
chemical exposure limits that haven't been changed for more
than 40 years. It should allow an expedited process for OSHA to
adopt modern consensus standards that have widespread support
in reputable national or international organizations.
Congress should also be more willing to step in when the
rulemaking process fails in a timely way to protect workers
from known hazards. And I would point out that this approach
has, in fact, worked well on several occasions at the Federal
level and more recently has worked quite well in two specific
examples in the State of Washington.
In one of these, the Washington State Legislature directed
the State OSHA program to develop rules to protect healthcare
workers from exposure to chemotherapy and other hazardous
drugs, drugs that are helpful to patients but can actually kill
workers. The second was a requirement for employers who have
violated safety and health regulations to correct the hazards
right away, even if they've appealed the citation. And that
rule also provides due process for employers to seek a stay and
to be granted a stay if, in fact, one is appropriate. In both
these cases, the State completed the process in about 6 months.
Also, improved standard-setting is necessary but it's not
sufficient. Public employees in 31 States and territories are
completely excluded from OSHA protections. Now, while public
employees in the other 27 States and territories may experience
long delays before a standard is passed, they at least enjoy
protections when the rules are adopted. The rest have remained
out in the regulatory cold for 38 years, and this is a gap that
Congress can and should fix.
Finally, my fifth point is that a bad situation can, in
fact, become worse. Several proposals now before Congress will
slow OSHA standard-setting even further, and we simply need to
be moving in the other direction. You know, most OSHA rules
that were adopted before 1981, before the GAO timeframe, were
completed quickly.
The rules for asbestos, arsenic, cotton dust, and lead were
all adopted within just a few years. And there's no evidence at
all that those rules were any more burdensome or costly, any
less protective or effective, or any less supported by
scientific evidence than subsequent rules that have taken many,
many years longer.
We have created barriers based on false alarms. And the
need now is to lower them so that worker protection can proceed
again without delay. And it's no exaggeration to say that lives
are at stake.
That concludes my comments, and I'll be happy to respond to
questions later. Thank you.
[The prepared statement of Dr. Silverstein follows:]
Prepared Statement of Michael Silverstein, M.D., MPH
summary
I am a physician certified in occupational medicine with nearly 40
years of experience in workplace safety and health. I recently retired
from the Washington State Department of Labor and Industries where I
directed the State OSHA Program for 10 years. My previous positions
include Director of Policy for Federal OSHA, Washington State Health
Officer, and assistant director for Occupational Safety and Health for
the United Automobile Workers.
1. Nearly 40 years after the OSHAct was signed the national toll of
preventable workplace injury, illness and death remains appallingly
high. The most recent published study has documented 5,600 fatal
workplace injuries, 53,000 fatal illnesses and more than 9 million non-
fatal injuries and illnesses every year for total estimated annual
costs of $250 billion.
2. OSHA's rules have kept workers from being killed, but roadblocks
have interfered with forward progress. There is strong evidence that
OSHA rules have been effective in protecting workers with no evidence
of interference with competitiveness, productivity or profits. However,
myths about rulemaking have overshadowed this reality. As a result,
procedural and political roadblocks have brought OSHA rulemaking to a
virtual halt.
3. Lost time means lost lives. OSHA started rulemaking on silica
dust in 1974. OSHA estimates that 60 worker deaths a year would have
been prevented with a new rule. We've already lost the opportunity to
prevent more than 2,000 deaths from silica exposure.
4. When problems are found, we need to find solutions. OSHA and
NIOSH should be required to establish a shared priority list for
rulemaking. OMB should acknowledge that OSHA's public hearing process
is especially robust and should limit itself to cursory reviews or
exempt OSHA from OIRA review. Congress should direct OSHA to update its
400 obsolete chemical exposure limits. Congress should extend the
protections of OSHA rules to all public employees.
5. A bad situation could become worse. Several proposals on
regulatory process currently before Congress will cause harm by slowing
down OSHA's standard setting process even further.
______
Chairman Harkin and Ranking Member Enzi, my name is Dr. Michael
Silverstein and I appreciate the opportunity to testify before you
today.
1. Nearly 40 years after the OSHAct was signed the national toll of
preventable workplace injury, illness and death remains appallingly
high. The most recent published study of workplace injuries and
illnesses by Dr. Paul Leigh has documented 5,600 fatal injuries, 53,000
fatal illnesses and more than 9 million non-fatal injuries and
illnesses every year for total estimated annual costs of $250
billion.\1\ The human impact and national cost for these predictable
and preventable losses is unacceptably huge.
---------------------------------------------------------------------------
\1\ Leigh, JP. (2011) Economic Burden of Occupational Injury and
Illness in the United States. Milbank Quarterly, 89(4):728-72.
---------------------------------------------------------------------------
2. OSHA's rules have kept workers from being killed, but roadblocks
have interfered with forward progress. Congress intended rulemaking to
be one of the principle vehicles for OSHA to ensure that workers return
home safe and healthy every day. OSHA had a good start with rules
protecting workers from asbestos, vinyl chloride, coke oven emissions,
arsenic, lead, cotton dust and hazards associated with power
transmission and generation, scaffolding, and mechanical power presses.
There is strong evidence that these and other OSHA rules have been
effective in protecting workers for reasonable costs with no evidence
of interference with competitiveness, productivity or profits.\2\
Simply put, OSHA regulations have saved lives without killing jobs.
However, in recent years myths about rulemaking have overshadowed this
reality. As a result, procedural and political roadblocks have brought
OSHA rulemaking to a virtual halt.
---------------------------------------------------------------------------
\2\ Office of Technology Assessment, Gauging Control Technology and
Regulatory Impacts in Occupational Safety and Health: An Appraisal of
OSHA's Analytical Approach. Washington, DC, OTA, 1995.
---------------------------------------------------------------------------
If there is a crisis it is not over-regulation, but persistently
deadly unregulated hazards such as silica, workplace violence and
combustible dust. For example, the U.S. Chemical Safety Board (CSB)
issued a report on the dangers from combustible dust in 2006 after
reviewing nearly 300 serious fires and explosions that killed 119
workers, including a 2003 plastic dust \3\ explosion in Tennessee that
killed seven workers and a 2003 plastic dust \4\ explosion in North
Carolina that killed six workers. The CSB recommended that OSHA conduct
rulemaking to prevent these deadly explosions. \5\ Just 2 years later,
while OSHA was struggling with the bureaucratic obstacles to
rulemaking, a huge explosion of combustible sugar dust at the Imperial
Sugar refinery near Savannah, GA killed 14 workers. And 3 years after
that five workers were killed in a series of iron dust explosions in
Gallatin, TX. Now, nearly 6 years since the CSB warning, it is a
national embarrassment that workers continue to be blown up.
---------------------------------------------------------------------------
\3\ Phenolic resin dust explosion, CTA Acoustics plant, Corbin, TN.
\4\ Polyethylene dust explosion, West Pharmaceutical Services,
Kinston, NC.
\5\ U.S. Chemical Safety and Hazard Investigation Board. November
2006. Combustible Dust Hazard Study. Washington, DC. Report # 2006-H-1.
---------------------------------------------------------------------------
3. Lost time means lost lives. Between 1981 and 2010 it has taken
OSHA an average of 7 years 9 months to adopt a workplace safety and
health standard. Over 25 percent of the rules completed during these
years took more than 10 years with several being delayed for nearly 20
years. And there have been even longer delays for some that have yet to
be completed.
For example, workplace exposure to silica dust (the basic
ingredient in common sand) has long been known to cause crippling lung
disease and lung cancer. OSHA started the rulemaking process for a new
silica standard in 1974 after the National Institute for Occupational
Safety and Health (NIOSH) reported that the old standard left workers
at high risk. A draft was finally presented for review, 29 years later,
to a small business panel as required by the Small Business Regulatory
Fairness Enforcement Act (SBREFA). After 8 more years rulemaking
documents were submitted for OMB review under Executive Order 12866.
Today after yet another year the silica proposal remains handcuffed
within OMB. Assuming a best-case scenario after this hearing, it will
still take another 3 years for a new silica rule to be adopted--41
years after the process started! OSHA has estimated that 60 worker
deaths a year would be prevented by reducing the standard to the levels
recommended in 1974. By 2015 we will have lost the opportunity to
prevent nearly 2,500 deaths.
4. When problems are found, we need to find solutions. The GAO
report on OSHA standard setting correctly identifies many of the
reasons OSHA rulemaking has slowed down, but the report falls far short
on recommendations for improvement. A practical, effective action
agenda should include at least the following:
OSHA and NIOSH should be required to work together to
establish a shared priority list for rulemaking. This should be done
with substantial stakeholder input, similar to the priority process
OSHA began in the mid-1990s but later abandoned.
OSHA should work more closely with NIOSH and EPA on risk
assessments and feasibility analyses that are required for rulemaking.
This should include a new national survey of workplaces to get detailed
information on worker exposures and control measures for hazards on the
priority list.
OMB should acknowledge that OSHA's public hearing process
is especially robust, going well beyond the requirements of the
Administrative Procedure Act. An independent administrative law judge
presides. Witnesses present information, analysis and opinions and are
challenged through cross-examination. All issues of concern to OMB are
discussed and debated on the record--including the need for regulatory
action, economic impacts, potential alternatives, and technological and
economic feasibility. OSHA then makes decisions based on the evidence
and testimony. If challenged it must be able to prove in court that its
actions are ``supported by substantial evidence in the record
considered as a whole.'' Given this openly deliberative process the OMB
review only slows down the rulemaking without adding substantial value.
OMB should limit itself to very cursory reviews or simply exempt OSHA
from the review requirements of Executive Order 12866.
OSHA's rules for more than 400 dangerous chemicals have
not been updated for almost 40 years. Congress should direct OSHA to
update these obsolete permissible exposure limits (PELs) using an
expedited process to adopt contemporary consensus standards that have
received widespread support by reputable national or international
organizations.
Congress should be more willing to step in when the normal
rulemaking process fails in a timely way to protect workers from
dangers. This approach has worked well recently in Washington State
where two safety and health rules were required by statute. In one of
these the Legislature directed the State OSHA program to develop rules
to protect health care workers from exposure to chemotherapy and other
hazardous medicines. The rules had to be consistent with but could not
exceed provisions in existing NIOSH Guidelines. The second rule
requires employers who are cited for violating safety and health
regulations to correct the hazards promptly even if they have appealed
the citation unless they seek and are granted a stay. In both cases the
State OSHA program was able to complete the process in a 12-month
period.
Improving standard setting is necessary but not
sufficient. Public employees in 31 States and territories are
completely exempted from the protections of the OSHAct. While public
employees in the other 27 States and territories may experience long
delays, they at least enjoy protections once rules have been adopted.
The rest have remained out in the regulatory cold for 38 years. This is
a gap that Congress can and should close.
5. A bad situation could become worse. Several proposals on
regulatory process currently before Congress will predictably slow
OSHA's standard setting process even further. For example, the
Regulatory Accountability Act will require cost-benefit analysis for
all conceivable alternative approaches to a proposed new rule, a
requirement that will grind a slow process to a virtual halt. We need
to be moving in the other direction. Most OSHA rules adopted before
1981 were completed with greater speed than is now routine. The rules
for asbestos, coke oven emissions, arsenic, cotton dust, and lead were
all adopted within 1 to 4 years. There is simply no evidence that any
of these was less protective, more burdensome, more costly, less
effective or less supported by scientific evidence than subsequent
rules subject to the current procedures. We created barriers based on
false alarms and the need now is to lower them so that worker
protection can proceed again without delay. It is no exaggeration to
say that lives are at stake.
rulemaking in slow motion: the gao report on osha standard setting
documents a broken bureaucratic process
It is disturbing but not surprising that GAO's central finding in
its report on OSHA standard setting is that between 1981 and 2010 it
has taken OSHA an average of 7 years 9 months to adopt a workplace
safety and health standard. More troubling is that over 25 percent of
58 rules completed during these years took more than 10 years with
several being delayed for nearly 20 years.
And still more distressing is that there have been even longer
delays for some important rules that didn't make it into the GAO report
at all because they have yet to be completed. Most notably, workplace
exposure to silica dust (the basic ingredient in common sand) has been
known since ancient times to cause chronic, life threatening scarring
of the lung. OSHA's standard for airborne silica was adopted in 1972,
grandfathered in from an older consensus standard. Just 2 years later
NIOSH issued a formal statement declaring OSHA's rule to be inadequate
and recommending that it be strengthened.\6\ OSHA agreed and started
rulemaking in 1974 by issuing an Advance Notice of Proposed Rulemaking
but now 38 years later OSHA has still not been able to publish a
proposed rule and schedule public hearings.
---------------------------------------------------------------------------
\6\ National Institute for Occupational Safety and Health. 1974.
Criteria for a Recommended Standard: Occupational Exposure to
Crystalline Silica. Washington, DC. DHHS (NIOSH) Publication No. 75-
120.
---------------------------------------------------------------------------
During this long period the need for a stronger rule has become
more compelling. The International Agency for Research on Cancer (IARC)
and the National Toxicology Program (NTP) have both listed silica as a
known human carcinogen. The Bush administration designated silica as a
high priority in its Fall 2002 regulatory agenda. A draft proposal was
reviewed in 2003 by a small business panel under the Small Business
Regulatory Fairness Enforcement Act (SBREFA). In February 2011 another
draft and a peer reviewed risk assessment were submitted for OMB review
under Executive Order 12866. After 4 months of OMB silence Senators
Harkin and Murray and Representatives Miller and Woolsey wrote to OMB
Director Jacob Lew expressing frustration with OMB's ``paralysis by
analysis'' and urging that the proposal move forward for full public
review. After 6 more months I wrote a letter, in my capacity as Chair
of NACOSH, to the Secretaries of Labor and HHS expressing distress at
the extraordinary delay and urging them to enhance their efforts to get
OMB to finish its review.
Now, as this hearing proceeds, 4 additional months have gone by and
the silica proposal still sits handcuffed within OMB. Let's presume a
best case scenario following this hearing--the OMB handcuffs are
removed, the proposal is immediately published by OSHA, and the
rulemaking then continues without further exceptional delay. Given the
average time of 3 years and 3 months from the publication of a proposed
rule to final adoption, a new silica rule would not be completed until
July 2015--41 years after the process started!
regulatory inertia has deadly consequences
This record of regulatory stupor is troubling because of ample
evidence that lost time means lost lives. OSHA's preliminary risk
estimate was that 60 worker deaths a year would be prevented by
reducing the silica exposure limit to the level recommended by NIOSH in
1974. Forty-one years of delay means a lost opportunity to have
prevented 2,461 deaths.
Similarly, a significant number of lives and injuries could have
been prevented by more timely adoption of OSHA's cranes and derricks
rule that was published in 2010. This began in 2003 with a negotiated
rulemaking process. During the 6 years before the process began there
were 512 crane-related fatalities. Unanimous agreement among the
stakeholders on a new rule was reached in 2004, but extra procedural
steps delayed adoption until 2010. During the 6-year delay after
agreement had been reached there were nearly 500 more crane deaths.
During this period the State of California adopted its own rules for
certification of crane operators and crane fatalities dropped from 10
during the 3 years before the California rule to 2 during the 3 years
after the rule.
osha rules, once adopted, prevent injuries and save lives
Additional studies have shown that once adopted and enforced, OSHA
rules effectively prevent injuries, illnesses and deaths.
OSHA adopted its Lockout/Tagout rule \7\ in 1989 after 12.7 years
of rulemaking. Prior to the rule adoption OSHA determined that
approximately 144 fatalities per year were due to unexpected activation
of machinery. In 2000 OSHA conducted a look-back review of the first 7
years of the rule pursuant to the Regulatory Flexibility Act and
Section 5 of Executive Order 12866. The review found that the rule
resulted in a 20 percent to 55 percent reduction in fatalities, or the
prevention of 29 to 79 fatalities per year. If the rulemaking had taken
half the actual time of 12.7 years this would have meant saving this
many fatalities in each of 6.35 years, or 184 to 502 fewer fatalities.
---------------------------------------------------------------------------
\7\ ``Lockout/Tagout (LOTO)'' refers to specific practices and
procedures to safeguard employees from the unexpected energization or
startup of machinery and equipment, or the release of hazardous energy
during service or maintenance activities. According to OSHA compliance
with the lockout/tagout standard (29 CFR 1910.147) prevents an
estimated 120 fatalities and 50,000 injuries each year.
---------------------------------------------------------------------------
Other OSHA rules have been equally effective. Between 1978 when the
OSHA cotton dust rule was adopted and 2000 when OSHA evaluated its
impact the rate of byssinosis (or ``white lung'' disease) among textile
workers dropped from 12 percent to less than 1 percent. Similar
reductions in injury, illness and death have followed adoption of OSHA
rules for confined space entry, grain elevator safety, lead exposure,
and bloodborne pathogen protection.
Additional evidence comes from the SHARP research unit within the
Washington State Department of Labor and Industries, which for 20 years
has been studying the effectiveness of workplace safety regulations.
For example, after the State OSHA program adopted a new fall protection
rule for the construction industry SHARP examined injury rates before
and after construction companies were inspected for compliance with the
new rule. When companies were cited for failure to comply and were
required to come into compliance there were subsequent decreases in
fall related injuries greater than in comparable companies that had no
inspection.
Washington's SHARP program has also recently completed a 10-year
analysis of worker compensation claims in the year following safety and
health inspections. When companies were cited for failure to comply
with safety and health rules and were required to come into compliance,
there was a significant drop in serious injuries over the next year.
This drop was 20 percent greater than in comparable workplaces that
were not inspected.\8\
---------------------------------------------------------------------------
\8\ Foley M, Fan ZJ, Rauser E, Silverstein B. 2011. The Impact of
DOSH Enforcement and Consultation Visits on Workers' Compensation
Claims Rates and Costs, 1999-2008. SHARP Technical Report Number: 70-5-
2011. http://www.lni.wa.gov/Safety/Research/Files/OccHealth/
DoshEnforce19992008.pdf.
This study evaluated changes in the kinds of injuries most closely
related to the rules that were being enforced. For example, falls and
amputations were included because they are related to fall protection
and machine guarding rules. But cumulative musculoskeletal disorders
like tendinitis were not covered because there is no ergonomics rule
that covers the risks that cause these injuries.
---------------------------------------------------------------------------
the gao findings warrant more robust recommendations
The evidence clearly indicates that finding ways to speed the
rulemaking process even modestly would have significant positive impact
on employers, employees and communities. The strength of the GAO study
is in the detail and analytic depth with which it identified multiple
causes of regulatory delay and many options for speeding the process.
It was surprising to find that it offered only a single recommendation
and disappointing that this recommendation did no more than ask two
agencies to work closely together, something that has been required by
the OSHAct since 1971.
The findings in the report warrant a much more specific and
substantive set of recommendations such as the following:
First, OSHA and NIOSH Should Improve Collaboration on Rulemaking:
OSHA and NIOSH should work together to establish a shared
priority list for rulemaking. This should be done with substantial
stakeholder input, similar to the priority process OSHA began in the
mid-1990s but later abandoned.\9\ It should also be modeled on NIOSH's
successful process for establishing its National Occupational Research
Agenda (NORA).
---------------------------------------------------------------------------
\9\ See OSHA Web site at https://www.osha.gov/pls/oshaweb/
owadisp.show_document?p_
table=NEWS_RELEASES&p_id=1151.
---------------------------------------------------------------------------
The OSHAct directs NIOSH to develop scientific criteria
for OSHA rules and to publish such criteria annually. In its early
years NIOSH developed a substantial number of detailed criteria
documents with recommendations for new OSHA rules, but OSHA rarely
acted on these recommendations and NIOSH stopped producing them. NIOSH
should work with OSHA to develop new criteria documents that will
provide the kind of details on exposures, risks, technological and
economic feasibility that OSHA needs to support new rules.
From 1981-83 NIOSH conducted an on-site survey of
establishments in general industry to provide national estimates of
potential exposures to chemical, physical and biological agents
(National Occupational Exposure Survey or NOES). The survey also
provided data on management's health and safety practices and policies.
The NOES, and its predecessor National Occupational Hazard Survey
(NOHS) from 1972-75, represented the most comprehensive source of data
on the number of U.S. workers potentially exposed to specific hazards
and the distribution of these hazards by industry and occupation. OSHA
and NIOSH should work together on a new national survey that is
specifically designed to provide information on worker exposures and
feasible control measures for hazards on the regulatory priority list.
Second, OSHA Should Take Additional Actions:
OSHA should work more closely with the Environmental
Protection Agency on rulemaking. OSHA and EPA have similar requirements
to base rulemaking on scientific assessments that estimate the nature
and level of risks from exposure to environmental chemicals. EPA's
Integrated Risk Information System (IRIS) contains information on human
health effects for more than 540 chemical substances. This information
could potentially be very useful to OSHA. OSHA and EPA have written
agreements on cooperation for enforcement activities but not
rulemaking. They need to adopt formal arrangements to work together on
risk assessments for rulemaking in a way that is mutually supportive
and avoids redundancies.
As noted in the GAO report OSHA's principle method for
evaluating the feasibility of compliance with proposed new rules is
extensive on-site evaluations. These are extremely lengthy, labor
intensive and costly, but it is not clear that they yield information
substantially superior to that which can be derived from well-designed
surveys. In Washington State scientifically designed stratified, random
sample surveys of businesses are routinely used to support safety and
health rulemaking. These have been found to meet the statutory
requirements for assessment of small business impact, cost-benefit
analysis, and technological feasibility determinations. By relying more
heavily on survey data OSHA could proceed more quickly while still
meeting the ``best available evidence'' test in the OSHAct. Since,
according to OSHA, it currently takes at least 1 year for survey
approval by OMB, as required under the Paperwork Reduction Act, this
approach will only be fully effective if OMB would agree to expedite
review for these rulemaking surveys or if Congress were to grant a
Paperwork Reduction exemption to OSHA for these surveys.
With a few notable exceptions \10\ OSHA has adopted rules
for one safety or health hazard at a time. This is like seasoning your
food one grain of salt at a time. Even if each individual rulemaking
could be completed more quickly than the current average of 7 years,
the sheer volume of hazards would render this approach futile. OSHA
could use its limited rulemaking resources more efficiently by
concentrating on some rules with broad, general impact. OSHA's current
regulatory priority of rulemaking for Injury and Illness Prevention
Programs is an example of this approach and deserves support. Other
examples would be general rules for exposure assessment, medical
surveillance and training.
---------------------------------------------------------------------------
\10\ Successful efforts include rules for process safety
management, personal protective equipment, and respiratory protection.
An unsuccessful effort was rulemaking to update all the permissible
exposure limits, which was rejected by the 11th Circuit Court of
Appeals.
---------------------------------------------------------------------------
Third, OMB Should Allow OSHA Proposed Rules to Move Forward:
One of the steps in rulemaking that has repeatedly
resulted in long delays is the review of proposed OSHA rules by the OMB
Office of Information and Regulatory Affairs (OIRA) as required by
Executive Order 12866. This review covers the need for regulatory
action, an assessment of potential costs and benefits, the anticipated
effect on functioning of the economy and private markets, and an
assessment of possible alternatives to the planned regulation. However,
the OSHA public hearing process is especially robust, going well beyond
the requirements of the Administrative Procedure Act and providing an
open forum in which all issues of concern to OMB are discussed and
debated on the record. An administrative law judge presides, agency
officials participate, witnesses deliver testimony and are subject to
extensive cross-examination, data and documents are introduced and
discussed, and a formal record is kept. OSHA then makes decisions based
on the evidence and testimony. If challenged it must be able to prove
in court that its actions are ``supported by substantial evidence in
the record considered as a whole.'' Given this openly deliberative
process the OMB review only slows down the rulemaking without adding
substantial value. OSHA's process should be considered sufficient to
warrant relatively cursory review, if not outright exemption, by OIRA.
Fourth, Congress Should Provide More Direction For Worker
Protection:
OSHA attempted to update the PELs for more than 400
chemicals in a single rulemaking in 1989. The 11th Circuit Court of
Appeals vacated OSHA's new rule 1992, finding that OSHA failed to
analyze and provide evidence of significant risk, economic and
technological feasibility for each of the individual chemicals. This
decision has proven administratively insurmountable. As a result almost
all of these PELs remain significantly obsolete and are widely judged
to be insufficiently protective. Congress should direct OSHA to update
these PELs by using an expedited process to adopt contemporary
consensus standards that have received widespread support by reputable
national or international organizations.
As noted in the GAO report when statutes or court orders
require OSHA to undertake rulemaking, the average time to adoption is 4
years, 7 months or about half as long as other OSHA rules. Congress
should be more willing to step in when the normal rulemaking process
fails to act in a timely way to protect workers from significant
dangers. Congress, for example, should direct OSHA to act where another
Federal agency, within its own statutory mandate, has recommended that
OSHA's rules be improved and where OSHA has refused. This would apply,
for example, to standing recommendations from the U.S. Chemical Safety
Board regarding the hazards of combustible dust. Congress has done this
before with good results, including statutory requirements for OSHA to
strengthen its bloodborne pathogen standard, adopt rules to protect
workers engaged in hazardous waste operations, and adopt a lead
standard for the construction industry. In two other recent cases
important safety and health rules were adopted in Washington State
following statutory direction. In the first, the 2011 Legislature
directed the State OSHA program to develop rules protecting health care
workers from exposure to chemotherapy and other hazardous medications,
specifying that the rules would be consistent with but would not exceed
provisions in the 2004 NIOSH Guidelines (as updated in 2010). Also in
2011 the Washington Legislature ordered rulemaking to require employers
who have been cited for violation of safety and health regulations to
correct the hazards promptly even if they have appealed the citation
unless they seek and are granted a stay until the appeals process is
completed. In both cases, the Washington Department of Labor and
Industries was able to complete the process in a 12-month period,
including informal stakeholder meetings, publication of proposed rules
and formal public hearings.
Congress should give flexibility to OSHA to complete
rulemaking in a more timely fashion without sacrificing quality by
providing an option for the agency to adopt rules that are technology
based, with affected industries shouldering the burden of proof to
demonstrate infeasibility.
closing remarks
In conclusion, successive waves of legislation, executive action
and case law have created barriers to safety and health rulemaking
resulting in significant delay with consequences that are demonstrably
harmful and, in many cases, deadly. While GAO is to be commended for a
reasonably thorough description of these problems, the report has
failed to articulate meaningful solutions. Also, by limiting its
assessment to the years since 1981 the report also has failed to
identify two important problems that become apparent when assessing the
full history of OSHA since its establishment in 1971.
Most of the OSHA rules adopted before 1981 were completed
with much greater speed than has now become routine. The rules for
asbestos, vinyl chloride, coke oven emissions, DBCP, inorganic arsenic,
cotton dust, acrylonitrile, lead, commercial diving, fire protection,
roof guarding, and electrical systems were all adopted within 1 to 4
years of initiation. There is simply no evidence that any of these
rules was less protective, more burdensome, more costly, less effective
or less supported by scientific evidence than subsequent rules
experiencing the added procedural steps documented by GAO. This
historical perspective suggests that we created barriers based on false
alarms and that there is nothing to be lost by lowering them in the
interest of worker protection.
Perhaps the most glaring and indefensible example of
regulatory delay is a feature of the OSHAct that is more basic than its
particular provisions on rulemaking. Public employees in 31 States and
territories are completely exempted from the protections of the OSHAct.
While public employees in the other 27 States and territories may
experience long delays, they at least enjoy protections once rules have
been adopted. The rest have remained out in the regulatory cold for 38
years--a much more extreme failure than anything reported by GAO. This
is a gap that Congress can and should close.
The Chairman. Thank you very much.
Ms. Rabinowitz, please proceed.
STATEMENT OF RANDY S. RABINOWITZ, DIRECTOR, REGULATORY POLICY,
OMB WATCH, WASHINGTON, DC
Ms. Rabinowitz. Mr. Chairman, members of the committee,
thank you very much for the opportunity to testify today on
delays in OSHA rulemaking. My name is Randy Rabinowitz,
Director of Regulatory Policy at OMB Watch, an independent,
nonpartisan organization that promotes open, accountable
government and health and safety standards that protect people
and the environment.
Congress passed the Occupational Safety and Health Act to
ensure that every working man and woman in the Nation had safe
and healthful working conditions. Under the act, OSHA cannot
issue rules unless it has thoroughly researched the impact of
its rules, shown that the rule would reduce a significant risk
in the workplace, would reduce that risk at a reasonable and
affordable cost, relying on technology already in use or in
development.
OSHA may do so only after an open and transparent
rulemaking process in which workers, unions, scientists, small
and large businesses, and others regularly participate. If
OSHA's analysis is weak on any of these points, courts will
strike down its standard.
In the years since its creation, OSHA's ability to protect
workers from harm has been undermined by Kafka-esque demands
for additional reviews of proposed and final rules mandated by
new statutes and Executive orders. Many of these additional
analytic requirements overlap with, duplicate, and/or conflict
with the requirements of the OSHA Act and serve no apparent
purpose other than to delay and burden the rulemaking process.
As new analytic requirements have been imposed on OSHA, the
time needed to complete a rule has increased. GAO has
calculated that, on average, it takes almost 8 years to
promulgate a standard. But before all these new added reviews
were required, it took OSHA just a few months to a few years.
As we've heard, rules for asbestos, lead, vinyl chloride,
and arsenic and others were developed far more quickly than
would be possible today. And each of these standards has made a
huge difference in the health of workers at costs which studies
show were substantially below what was estimated at the time
the rule was established.
Today it takes OSHA almost a decade to set a standard. Much
of this delay is caused by the cumulative impact of the various
regulatory analyses OSHA is required to complete. These
requirements have crippled OSHA's ability to protect workers in
a timely fashion.
We need to update workplace health and safety standards,
not to bury them. To do so, Congress should limit OMB's ability
to interfere in rulemaking. It should make certain that OMB
does not impose a cost-benefit test on OSHA standards when the
U.S. Supreme Court has ruled that such a test is improper. In
our view, cost-benefit analysis simply cannot properly value
what it means to workers of avoiding disabling injuries and
what it means to their families to avoid having a loved one
killed too soon.
Congress should require that OMB review, if any, be based
on the same rulemaking record that OSHA must rely on, and OMB
should be required to explain the reasons for any changes it
makes to a rule. OMB should no longer be able to develop a
secret record in private, closed-door meetings held mostly with
industry opponents of regulation.
Pending regulatory reform proposals would move in the wrong
direction. Four separate regulatory reform proposals are
pending in the Senate. They are the Regulatory Accountability
Act, the Regulations from the Executive in Need of Scrutiny
Act, the Regulatory Flexibility Improvements Act, and the
Regulatory Time-Out Act.
None of the pending regulatory reform proposals would fix
the OSHA standard-setting process. Each would further delay or
shut down the process. Passage of these bills would hurt
workers and make them less safe. They should be rejected.
Finally, I think it's worth noting that if you look at the
testimony here this morning, there are several things about
which there is wide acceptance and which Congress could do that
would improve the standard-setting process. And some of the
suggestions I'm about to mention are drawn from the testimony
of my colleague, Mr. Sarvadi, with whom I rarely agree on these
matters.
It is unfortunate that GAO's recommendations on improving
the standard-setting process are so limited. So I think that
OSHA should pick a few hazards, devote resources to reducing
worker exposures, and see these priorities through without
shifting gears so often.
OSHA should rely more extensively on comprehensive
scientific evaluations by EPA or NIOSH. Once one agency of
government thoroughly evaluates the hazards of a substance,
other agencies should not have to repeat that analysis. And I
would note that one of the reasons MSHA has been able to move
more quickly than OSHA, in addition to knowing the mining
industry inside out, is that they often follow other agencies
and rely on their scientific evaluation so they don't have to
redo the whole scientific analysis.
OSHA should have better mechanisms to get data voluntarily
from business about the impacts of its rules. Right now, OSHA
must wait months for OMB to approve requests for surveys under
the Paperwork Reduction Act. And Mr. Sarvadi suggests that OSHA
should consult with business more frequently and earlier in the
process. One thing that would help improve such a dialog is if
industry was willing to share with OSHA concrete data that it
needs for the rulemaking process.
OSHA spends, in my mind, too much time quantifying risks.
This is one of the real downsides of OMB's approach. OSHA
should make sure that a hazard it seeks to regulate poses a
real risk large enough to warrant government action, but it
doesn't really matter whether asbestos causes 1,200
mesotheliomas a year or 1,500. The important point is we know
asbestos causes cancer, and we know that worker exposure to
asbestos should be reduced or eliminated.
And, finally, OSHA should be able to update outdated rules
where contemporary consensus exists. That would include
industry consensus standards, negotiating rulemakings, or some
kind of private dialog between labor and industry where they
come up with an agreement. We should be able to get a proposal
out in the public for further debate more quickly than has been
the case in the past.
I think all of these things would improve OSHA rulemaking
and make the workplace more safe for the people who work there
every day.
Thank you.
[The prepared statement of Ms. Rabinowitz follows:]
Prepared Statement of Randy S. Rabinowitz
Summary
Congress passed the Occupational Safety and Health Act of 1970 (OSH
Act) to ensure ``every working man and woman in the Nation safe and
healthful working conditions.'' Under the OSH Act, OSHA cannot issue a
rule unless the impact of its proposal has been thoroughly researched
and shown to address significant risks in the workplace at a reasonable
and affordable cost. And, it may do so only after an open and
transparent rulemaking process which encourages participation by a
broad group of stakeholders.
In the years since its creation, OSHA's charge to protect workers
from harm has been undermined by Kafka-esque demands for additional
reviews of proposed and final rules mandated by new statutes and
Executive orders. Many of these additional analytic requirements
overlap with, duplicate, and/or conflict with the requirements of the
OSH Act and serve no apparent purpose other than to delay and burden
the rulemaking process.
As new analytic requirements have been imposed on OSHA, the time
needed to complete a rule has increased. GAO has calculated that, on
average, it now takes almost 8 years to promulgate an OSHA standard.
Cumulatively, these requirements have crippled OSHA's ability to set
new safety and health standards in a timely and responsive fashion.
We need to update workplace health and safety standards, not bury
them. To do so, Congress should limit OMB's ability to interfere in
rulemaking. It should make certain that OMB does not impose a cost-
benefit test on OSHA standards, when the Supreme Court has ruled that
such a test is improper. Cost-benefit analysis simply cannot properly
value some of the most important benefits of worker protections.
Congress should require that OMB review, if any, be based on the
rulemaking record and OMB should be required to explain the reasons for
any changes it makes to a rule. Secret meetings by OMB with industry
opponents of regulation should stop.
The process for issuing workplace health and safety standards is
broken and needs to be fixed. We need to update workplace health and
safety standards, not bury them. Pending regulatory reform proposals
would move in the wrong direction. Four separate regulatory reform
proposals are pending in the Senate: the Regulatory Accountability Act
(S. 1606), the Regulations from the Executive in Need of Scrutiny
(REINS) Act (S. 299), the Regulatory Flexibility Improvements Act (S.
1938), and the Regulatory Time-Out Act (S. 1538). None of the pending
regulatory reform proposals would fix the OSHA standard setting
process. Rather, each of these proposals is designed to further delay
or shut down the regulatory process. Passage of these bills would hurt
workers and make them less safe.
______
Mr. Chairman and members of the committee, thank you for the
opportunity to testify on delays in standard setting at the
Occupational Safety and Health Administration (OSHA). My name is Randy
Rabinowitz, director of Regulatory Policy at OMB Watch, an independent,
nonpartisan organization that promotes open, accountable government and
health and safety standards that protect people and the environment.
OMB Watch has monitored the Office of Management and Budget's (OMB)
Office of Information and Regulatory Affairs (OIRA), OSHA, and their
interactions for more than 25 years. We co-chair the Coalition for
Sensible (CSS), an alliance of more than 75 consumer, small business,
labor, scientific, research, good government, faith, community, health,
and environmental organizations joined in the belief that our system of
regulatory safeguards is essential to maintaining our quality of life
and building a sustainable economy that works for all. Time constraints
prevented the coalition from reviewing my testimony in advance, and
today I speak only on behalf of OMB Watch.
I am a nationally recognized expert on OSHA standard setting. I
have served as co-chair of the American Bar Association's (ABA) OSH Law
Committee; as the editor-in-chief of the ABA's treatise on OSHA Law and
author of the section on standard-setting; and as an adjunct professor
teaching OSHA law. I have been lead counsel for labor unions on close
to a dozen challenges to OSHA rules, and I have worked for or advised
Congress, OSHA, and other Federal and State health and safety agencies
on regulatory issues.
osha's mission has been undermined by too much regulatory analysis
Congress passed the Occupational Safety and Health Act of 1970 (OSH
Act) to ensure ``every working man and woman in the Nation safe and
healthful working conditions.'' \1\ OSHA protects workers by setting
workplace standards and enforcing those standards through inspections.
Every year, millions of workers are protected from the hazards posed by
grain elevator explosions, dangerous equipment, toxic chemicals and
materials, and dozens of other workplace hazards because of OSHA's
work.
---------------------------------------------------------------------------
\1\ 29 U.S.C. Sec. 651(b).
---------------------------------------------------------------------------
Unfortunately, OSHA's rulemaking process is now so burdened by
requirements for regulatory analysis that the agency is incapable of
issuing timely standards to protect workers. New workplace hazards and
new scientific evidence about the health effects of exposure to a
variety of toxic chemicals should result in the prompt issuance of new
OSHA standards, but OSHA is finding it more difficult to respond to
these threats to workers because the agency is now required to complete
an ever increasing array of onerous, duplicative, and unreasonable
regulatory analyses. These analyses require staff time and agency
resources that would be better spent identifying new threats to
workers' health and enforcing existing safety standards.
Protecting worker safety is the clear and overriding goal of the
OSH Act. The primacy of this objective has been upheld by the U.S.
Supreme Court. In 1981, the Court ruled that worker safety, not cost-
benefit analysis, should determine whether or not a workplace safety
standard is warranted. Yet OIRA insists that OSHA conduct time-
consuming, expensive, and duplicative studies of the ``costs to
industry'' beyond those required by the OSH Act before issuing rules to
protect the health of American workers. These studies allow OIRA to
judge OSHA standards against a cost-benefit test the Supreme Court has
held is improper. This needs to stop. Congress needs to explicitly
limit OIRA's review powers.
the processes required to issue rules under the osh act are thorough
and balanced
Under the OSH Act, before OSHA can issue a new rule or standard, it
must:
(1) comprehensively evaluate the nature and extent of the health
and safety risks to workers;
(2) determine whether those benefits are significant;
(3) ensure that the necessary technology exists to comply with
its rules; and
(4) assess the economic impact of those rules on (a) industry
profits, (b) consumer prices, and (c) intra-industry competition.
In short, OSHA cannot issue a rule unless the impact of its
proposal has been thoroughly researched and shown to address
significant risks in the workplace at a reasonable and affordable cost.
Moreover, the OSHA rulemaking process permits members of the public
greater opportunities to participate than other regulatory agencies
that only operate under the Administrative Procedure Act (APA).
After this careful process, if the health and safety standard is
challenged in court--and most OSHA standards are challenged--OSHA's
analyses will be scrutinized more carefully by the courts than rules
issued by other agencies. If a court rules that OSHA got the analysis
wrong, the courts can stop the standard from going into effect. Thus,
the bar for getting a rule implemented is higher at OSHA than for most
other Federal regulatory agencies because the OSH Act and OSHA's
internal processes require it.
In the early days of its existence, it took OSHA from 6 months to 2
years to develop major rules--even controversial ones that addressed
asbestos and vinyl chloride hazards. The preambles for both of those
standards were 5 to 10 pages, and the courts ruled OSHA's analysis was
adequate. What is more, these standards have been effective in
protecting workers from harm. Now, with the extra-statutory analyses
that have been added to this process, it can take over a decade to
upgrade or issue a new health and safety standard.
analytic requirements added in the past 40 years slow health and safety
protections unnecessarily, duplicate effort, and waste public resources
In the years since its creation, OSHA's charge to protect workers
from harm has been undermined by Kafka-esque demands for additional
reviews of existing rules mandated by new statutes and Executive
orders. Many of these additional analytic requirements overlap with,
duplicate, and/or conflict with the requirements of the OSH Act and
serve no apparent purpose other than to delay and burden the rulemaking
process.
As new analytic requirements have been imposed on OSHA, the time
needed to complete a rule has increased. GAO has calculated that, on
average, it now takes almost 8 years to promulgate an OSHA standard.
Cumulatively, these requirements have crippled OSHA's ability to set
new safety and health standards in a timely and responsive fashion.
process reforms that slow health and safety standards
In 1980, the Paperwork Reduction Act (PRA) created a new office in
the Office of Management and Budget (OMB), the Office of Information
and Regulatory Affairs (OIRA), and tasked it with serving as a central
clearinghouse for all government forms. The PRA was supposed to reduce
the burden of government paperwork on citizens and non-governmental
entities. Ironically, centralization and review by OIRA generated new
paperwork and delays for government agencies as they waited for the
office to review and approve their requests to collect the information
necessary to support new standards.
Shortly after OIRA's creation, President Ronald Reagan issued an
Executive order requiring rulemaking agencies to submit every
regulation to OIRA for review and approval, and the office was tasked
with determining whether the benefits of each rule outweighed its
costs. Congress has never given OIRA this authority. Since the 1980s,
the process has slowed so much that several significant OSHA health
standards were issued after courts or Congress ordered the agency to
move forward. (For example, it took 6 years and a lawsuit before OSHA
issued a formaldehyde standard.)
In 1993, in Executive Order 12866, President Bill Clinton
established the current regulatory review process, which encourages the
use of cost-benefit analysis, risk assessment, and performance-based
standards, and gives OIRA authority to coordinate rulemaking among
agencies and ensure they align with the President's priorities.
Agencies must submit drafts of proposed and final ``significant'' \2\
rules to OIRA.
---------------------------------------------------------------------------
\2\ Significant regulatory actions under Executive Order 12866 are
those: (1) with an annual effect on the economy of $100 million or
more; (2) inconsistent with a rule or action taken by another agency;
(3) which would alter budgetary impact of government program or
recipients of such; or (4) raise novel legal or policy issues. OIRA
views all OSHA standards as ``significant.''
---------------------------------------------------------------------------
Under the presidency of George W. Bush, OIRA interfered even more
aggressively with agency rulemaking activities. With Executive Order
13272, OIRA imposed rigorous guidelines for cost-benefit analyses,
including peer review (adding more time to the process) and began
commenting on agency drafts before they had even been submitted for
review. The Obama administration has continued this regime of
regulatory review.
In addition to the requirements for regulatory analysis imposed by
Executive Order 12866, between 1976 and 1984, Congress passed a series
of laws designed to ensure regulations did not unduly burden small
businesses. These laws added yet another set of analytic requirements
to rulemaking. An Office of Advocacy was established within the Small
Business Administration (SBA) in 1977 and was tasked with monitoring
the impact of regulations on small business. Eventually, the Regulatory
Flexibility Act (RFA) required all agencies to include an assessment of
small business impacts as a key part of the rulemaking process and to
use a ``less burdensome alternative'' if the rule would have
significant impact on or affect a substantial number of small
enterprises. By 1980, the law required agencies to solicit the views of
small entities and the Office of Advocacy and to publish an initial
and/or final analysis of the impact in the Federal Register or certify
that the proposed rule would have no impact on small businesses. RFA
requirements meant an agency would have to not only assess the benefits
and costs of a new rule on the overall economy and regulated
industries, but also assess its impact on small businesses. The burdens
of analysis were growing, increasing the time and resources needed to
propose new health and safety standards.
the osh act requires an evaluation of the benefits and costs of
proposed rules
The original OSH Act requires OSHA to thoroughly examine the costs
of the rules it imposes. Section 6(b)(5) of the OSH Act requires OSHA
to determine, before it issues a final rule, that a standard is
feasible, both technologically and economically. Before it can decide
whether a standard is feasible, OSHA must make a ``reasonable
assessment of the likely range of costs and the likely effects of those
costs'' on each affected industry.\3\
---------------------------------------------------------------------------
\3\ United Steelworkers of America v. Marshall, 647 F.2d 1189, 1266
(D.C. Cir. 1980).
---------------------------------------------------------------------------
OSHA standards protect hundreds of thousands of workers, in
multiple industries, from harm. Obviously, the more workers and
industries affected by a safety standard (for example, a sprinkler
system for fire prevention), the higher the aggregate costs of a rule.
Recognizing this, the courts have ruled that OSHA should ``examine
those [aggregate] costs in relation to the financial health of the
industry and the likely effect of such costs on the unit consumer
prices.'' \4\ To ensure that it does not place an undue burden on small
business, OSHA must make sure that its standard does not ``threaten[ ]
the competitive stability of an industry,'' increase inter- or intra-
industry competition, or create ``undue concentration.'' \5\
---------------------------------------------------------------------------
\4\ Id. at 1265.
\5\ Id.
---------------------------------------------------------------------------
oira cost-benefit analysis and risk assessment requirements contradict
the osh act and the supreme court's interpretation of the law
In addition to assessing the economic impact of its standard, OSHA
must also complete a detailed scientific analysis of the nature and
extent of the hazards posed to workers. When it can do so, OSHA
quantifies this risk, but it is not required to do so by law.\6\
Sometimes the science is not yet conclusive about the health effects on
workers; in such cases, the courts have ruled that ``OSHA cannot let
workers suffer while it awaits the Godot of scientific certainty.'' \7\
Instead, OSHA's scientific judgments must be supported ``by a body of
reputable thought.'' \8\ In fact, after rigorous testing through the
rulemaking process, OSHA's scientific determinations have been
overwhelmingly upheld by the courts.
---------------------------------------------------------------------------
\6\ Industrial Union Dep't. v. American Petroleum Inst., 448 U.S.
607, 655 (1980); Nat'l Maritime Safety Ass'n. v. OSHA, 649 F.3d 743
(D.C. Cir. 2011).
\7\ United Steelworkers of America v. Marshall, 647 F.2d at 1266.
\8\ Industrial Union Dep't v. American Petroleum Inst., 448 U.S. at
656.
---------------------------------------------------------------------------
Significantly, the Supreme Court has weighed in on the use of cost-
benefit analysis in OSHA standard setting. It held:
Congress itself defined the basic relationship between costs
and benefits, by placing the benefit of worker health above all
other considerations save those making attainment of this
benefit unachievable. Any standard based on a balancing of
costs and benefits by the Secretary that strikes a different
balance than that struck by Congress would be inconsistent with
the command set forth in section 6(b)(5).
Thus cost-benefit analysis is not required by the statute
because feasibility analysis is. \9\
---------------------------------------------------------------------------
\9\ American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509
(1981) (emphasis added).
OIRA's demand that an OSHA rule meet a cost-benefit test is
incompatible with the OSH Act. OIRA should be prohibited from
evaluating and rejecting OSHA standards on the basis of a cost-benefit
test. Any analysis by OIRA that uses a different standard than the one
described above is improper. We believe that cost-benefit analyses
simply cannot properly value some of the most important benefits of
worker protections. Without adequate measures of benefits, and with the
insistence on measuring aggregate and cumulative costs, cost-benefit
analysis becomes a tool for blocking worker protections. Delaying
worker protections by using an inherently flawed methodology is
unjustifiable.
OIRA should not be permitted to second guess OSHA's scientific
judgments or to demand scientific certainty before OSHA moves to
protect workers. OIRA analysts are not qualified to assess the complex
toxicological, epidemiological, and quantitative judgments OSHA makes
when it evaluates workplace risks.
the osha rulemaking process is open and participatory; oira reviews are
secretive and subject to undue influence by regulated entities
OSHA rulemaking provides greater opportunity for comment and
participation than is required by most agencies that operate under the
Administrative Procedure Act. The procedures mandated by the OSH Act,
commonly referred to as ``hybrid rulemaking'' procedures, ensure that
OSHA's scientific, technical, and economic analyses are fully vetted.
By contrast, OIRA reviews rules away from public scrutiny, in closed
rooms with representatives of regulated industries. These industries
typically argue against new rules.
OSHA usually begins the rulemaking process by publishing a request
for information and/or advanced notice of proposed rulemaking--in other
words, public input is sought early in the rule development process.
For major rules, numerous stakeholder meetings are held in various
locations around the country. If an OSHA standard will impact small
business, OSHA is one of two agencies that must establish a special
panel to get early input from small entities, as required by the Small
Business Regulatory Enforcement Fairness Act (SBREFA). Once a proposed
rule is issued, interested parties can submit written comments and
evidence.
If any party requests a hearing during rulemaking--and a hearing is
almost always requested--OSHA must hold one. An administrative law
judge presides at the hearing. During the public hearing, interested
parties may present testimony and any participant can cross-examine all
witnesses. OSHA hearings are often held in several locations across the
country and can go on for several weeks. Workers, public health
officials, scientists, small business owners, union representatives,
and business groups actively participate in these hearings. At the end
of the hearing, OSHA provides the public with an opportunity to file
post-hearing comments and post-hearing arguments.
All of the evidence on which OSHA's proposed rule is based, pre-
and post-hearing comments, and hearing transcripts are included in a
public docket. OSHA must base its final decision on information in this
public rulemaking record. OSHA's explanation for its final rule must be
supported by substantial evidence in the record.
By contrast, the OIRA review process is neither transparent nor
open. Most meetings on proposed rules at OIRA are with industry
opponents of regulation, not injured workers. Unlike the broad
participation in OSHA rulemaking, only a select few get to meet with
OIRA. While OIRA is supposed to make the list of individuals who attend
such meetings public, it does not disclose what is discussed. While
OSHA must base its regulatory decisions on the evidence it gathers and
explain its regulatory choices, OIRA is not required to do so.
Typically, neither OIRA nor the regulatory agencies disclose the
changes in agency rules demanded by OIRA.
We believe the narrow, secretive OIRA review process undermines the
public participation guarantees in the OSH Act. If OIRA is going to
have a regulatory review role--and we believe that role should be
substantially more limited than it currently is--it should be limited
to reviewing OSHA's record and ensuring that the agency has reasonably
carried out its statutory duties. OIRA should also have to publish the
rule changes it demands with a written justification for why it is
asking for those changes.
oira delays should not be allowed to bury worker protections
Executive Order 12866 mandates that OIRA complete its review of any
proposed rule within 90 days (with a possible extension of another 30
days). OIRA staff have not been adhering to these deadlines.
The proposed rule limiting the amount of silica allowed in
factories and other worksites is an example of the human costs of
delay. In the decades this rule has been under consideration, thousands
of workers have died and thousands of others have contracted a
debilitating lung disease. According to Centers for Disease Control
statistics, as many as 1.7 million workers are exposed to dangerous
levels of silica in the workplace each year and researchers estimate
that 3,600 to 7,300 of them develop silicosis. Approximately 200
workers die of silicosis each year.\10\ Their illnesses were
preventable.
---------------------------------------------------------------------------
\10\ OMB Watch, ``Worker Safety Rule Under Review at OIRA for Over
a Year: A Tale of Rulemaking Delay,'' Feb. 22, 2012, available at
http://www.ombwatch.org/node/11984.
---------------------------------------------------------------------------
In 2003, OSHA completed a preliminary regulatory impact analysis of
a draft proposed rule on silica and convened small business review
panels. But, under the Bush administration few worker protections moved
forward and the silica proposal was scrapped. Early in the Obama
administration, OSHA revived its effort to reduce worker exposure to
silica. It revised its regulatory impact analysis and sought peer
review of its risk assessment. It drafted a proposed rule and sent it
to OIRA for review in February 2011. OIRA is still reviewing a proposed
rule, 14 months later (as of today, 430 days, or 310 days past the
deadline). OIRA has offered no explanation for this delay. By delaying
publication of this proposal, OIRA has made it impossible to proceed to
public hearings. Regulatory review should not become a graveyard for
burying rules.
the benefits of health and safety standards
Given the enormous investment of agency resources required to issue
a standard, OSHA does not initiate the process without strong evidence
of health risks or dangerous conditions that need to be rectified. Too
often in the heated business rhetoric of today, this basic fact is
lost: workplace health and safety regulations save the lives, lungs,
limbs, and health of American workers.
Unfortunately, while the costs of lost wages, health care, and
worker compensation due to exposure to workplace threats can be
estimated, it is difficult to put a dollar value on the hardship and
suffering of a family when a father dies on the job or a mother
develops a chronic disease. Because of this, the benefits of health and
safety regulations tend to be underestimated.
Meanwhile, independent analyses of the economic impact of various
standards demonstrate that industry estimates of the costs of complying
with new health and safety rules are often exaggerated. The costs of
compliance rarely turn out to be as high as industry claims. In fact,
the General Accounting Office (now the Government Accountability
Office) conducted a retrospective review of the costs of Federal
regulations on 15 representative companies. It concluded that industry
representatives have no reliable method of estimating the incremental
cost of regulation, and Federal agencies have no reliable method of
verifying industry's cost estimates.\11\
---------------------------------------------------------------------------
\11\ U.S. Gen. Accounting Office, Regulatory Burden: Measurement
Challenges and Concerns Raised by Selected Companies, GAO-GDD/97-2,
Nov. 1996.
---------------------------------------------------------------------------
Costs of compliance studies also fail to take into account the
positive role that new standards can play in encouraging innovation and
the use of new technologies by firms and industries. A 1995 review of
major OSHA rules by the now defunct Office of Technology Assessment
found that OSHA almost always overestimated the costs of rules because
advances in technology were not factored into the analysis: ``the
actual compliance response that was observed included advanced or
innovative control measures that had not been emphasized in the
rulemaking analyses, and the actual cost burden proved to be
considerably less than what OSHA estimated.'' \12\ By way of example,
OSHA's cotton dust and vinyl chloride standards were not only less
costly than predicted, but led to technological innovations that made
the covered industries more productive.
---------------------------------------------------------------------------
\12\ U.S. Office of Technology Assessment, Gauging Control
Technology and Regulatory Impacts in Occupational Safety and Health: An
Appraisal of OSHA's Analytical Approach, OTA-ENV-635, Sept. 1995.
---------------------------------------------------------------------------
A comprehensive review of the relationship between industry
regulations and job growth within those industries conducted by the
Economic Policy Institute found that most regulations result in modest
job growth.\13\ Even researchers at the Mercatus Center, a conservative
regulatory policy center, acknowledged in written comments to House
Oversight and Government Reform Committee Chair Darrell Issa, and in
testimony to that committee, that there is little evidence that at a
macro level, regulations have caused massive job loss in the United
States.\14\ There is no evidence that occupational safety and health
regulations issued by OSHA have cost America jobs.
---------------------------------------------------------------------------
\13\ Isaac Shapiro & John Irons, Regulation, Employment and the
Economy: Fears of Job Loss are Overblown, Economic Policy Institute
(2011).
\14\ Letter from Richard Williams, Ph.D., Dir. of Policy Research,
Mercatus Ctr, to Darrell Issa, Chairman, H. Comm. on Oversight & Gov't
Reform (Jan. 5, 2011) (on file with author); Testimony of Jerry Ellig,
Regulatory Analysis: Understanding Regulation's Effects, before the H.
Comm. on Oversight & Gov't Reform (Feb. 10, 2011).
---------------------------------------------------------------------------
pending regulatory reform ``solutions'' would exacerbate delays and
undue influence by regulated industries
Unfortunately, recent regulatory reform proposals would do nothing
to ensure workers are protected from hazards; instead, they would slow
or stop the rulemaking process. Four separate regulatory reform
proposals are pending in the Senate: the Regulatory Accountability Act
(S. 1606), the Regulations from the Executive in Need of Scrutiny
(REINS) Act (S. 299), the Regulatory Flexibility Improvements Act (S.
1938), and the Regulatory Time-Out Act (S. 1538). These bills, and
others like them, would change the regulatory process in different ways
but would have the same ultimate result: more delay, fewer standards to
protect workers, and more illness and injury among exposed workers.
Regulatory Accountability Act (S. 1606)
The Regulatory Accountability Act (RAA) is a breathtakingly broad
bill that would fundamentally rewrite the Administrative Procedure Act
(APA). Currently, there are more than 110 separate procedural
requirements in the rulemaking process \15\; the RAA would add more
than 60 new procedural and analytical steps. Commentators have
estimated that the RAA would add at least 21 to 39 months to the
rulemaking process for the most important rules, meaning that the
average OSHA rulemaking would take more than 12 years to complete--
potentially spanning four different presidential administrations.\16\
---------------------------------------------------------------------------
\15\ See Mark Seidenfeld, A Table of Requirements for Federal
Administrative Rulemaking, 27 Fla. St. L. Rev. 533 (2000), available at
http://www.law.fsu.edu/journal/lawreview/downloads/272/Seid.pdf.
\16\ Testimony of Sidney A. Shapiro, University Distinguished Chair
of Law, Wake Forest School of Law, at Hearing on H.R. 3010, The
Regulatory Accountability Act of 2011, before the H. Comm. on the
Judiciary, 112th Cong. 4 (Oct. 25, 2011) at 6.
---------------------------------------------------------------------------
OSHA rulemaking already includes a process that gives participants
many opportunities to present their views and to challenge those with
opposing views. It does so in an open process. The RAA would supplant
these proven procedures with a more adversarial process. It would
mandate cost-benefit analysis, overturning the Supreme Court's ruling
in the Cotton Dust case. It would require that OSHA always use the
lowest cost rule, leaving workers with less protection, probably
nothing more than a dust mask to protect themselves from known
carcinogens. Further, it authorizes the courts to disrupt the
rulemaking process before it has been completed. Each of these changes
would complicate rather than simplify rulemaking, and delay worker
protections.
Regulations From the Executive in Need of Scrutiny (S. 299)
The Regulations from the Executive in Need of Scrutiny, or REINS
Act, would reinsert Congress into the rulemaking process by requiring
that both houses of Congress approve each major rule, with no
alterations, within a 70-day window. If either chamber fails to approve
the rule, it will not take effect and cannot be reconsidered until the
next congressional session. Given the polarized character of Congress
today, this law is a recipe for a freeze on new rules.
Such an affirmative approval requirement would turn the current
process upside down. Congress already has substantial power to
influence agency rulemaking: through its oversight power; through the
appropriations process; and under the Congressional Review Act of 1996.
There is no reason to require an affirmative vote of Congress before a
rule takes effect.
The REINS Act would waste agency resources. For example, it took
OSHA more than 10 years to publish a standard regulating the operation
of cranes and derricks at construction sites, even though both industry
and unions agreed a standard was needed. If the REINS Act became law,
inaction by Congress would block the rule from going into effect,
wasting the significant resources OSHA had invested in developing the
rule.
Regulatory Flexibility Improvements Act (S. 1938)
The Regulatory Flexibility Improvements Act would expand range of
rules covered by the Regulatory Flexibility Act to include those that
have a reasonably foreseeable indirect effect on small businesses;
establish more onerous requirements for the initial and final
regulatory flexibility analyses, including an estimate of cumulative
impacts on small businesses; allow the Chief Counsel for Advocacy of
the Small Business Administration to issue rules to govern Federal
agencies' rulemaking procedures; and establish a more onerous
requirement for the notice that Federal agencies must give the Small
Business Administration prior to publishing a proposed rule.
OSHA is already required to analyze the impacts of its standards on
small business, consult with small business owners and the SBA about
those impacts, and make changes to its rules where appropriate to
minimize those impacts. Additional analysis of small business impact
duplicates the requirements in existing law. Workers in small
businesses face the same hazards as those in larger business. This bill
would do little to protect workers in small businesses or to help their
employers reduce such hazards. Moreover, it concentrates enormous power
in the hands of one appointed official in the Office of Advocacy, while
the OSHA hearing process gathers information from a host of small
business owners from all over the country.
Regulatory Time-Out Act (S. 1538)
The Regulatory Time-Out Act, which would prohibit agencies from
issuing most significant regulations for a year, is one of several
bills which would prohibit new rules. These laws would simply keep
Federal agencies from carrying out their legally defined missions of
protecting the health and safety of the American people.
When Congress passed the OSH Act in 1970, it promised workers that
OSHA would protect them from workplace hazards. Too many chemicals and
other hazards remain unregulated. The Environmental Protection Agency
has listed more than 62,000 chemicals in its Toxic Substance Control
Act Chemical Substance Inventory, but OSHA regulates worker exposures
to only 400 of them.\17\ Too many of OSHA's existing standards are
based on outdated science. They need to be upgraded to reflect current
scientific and medical research. The current rulemaking process makes
this impossible.
---------------------------------------------------------------------------
\17\ Occupational Safety and Health Administration, ``Hazardous and
Toxic Substances,'' http://www.osha.gov/SLTC/hazardoustoxicsubstances/
index.html (last visited Apr. 16, 2012).
---------------------------------------------------------------------------
streamlining improvements in health and safety protections
The process for issuing workplace health and safety standards is
broken and needs to be fixed. We need to update workplace health and
safety standards, not bury them. None of the pending regulatory reform
proposals would fix the OSHA standard setting process. Rather, each of
these proposals are designed to further delay or shut down the
regulatory process. Passage of these bills would hurt workers and make
them less safe.
Instead of following this low road, Congress should streamline the
rulemaking process so that standards can move forward in a reasonable
amount of time, after thoughtful scrutiny of the need for new
protections and their costs, without unnecessary and duplicative
reviews and analysis. Congress should limit the role of OIRA and non-
technical experts in standard setting. Only with such reforms will
workers gain the protections Congress promised them when it passed the
OSH Act more than 40 years ago.
______
Appendix A: Table of Relevant Statutes and Executive Orders
Administrative Procedure Act (5 U.S.C. Sec. 551 et seq.)
Passed in 1946
The Administrative Procedure Act is the bedrock of the
regulatory process. It offers baseline procedures for both ``formal''
(on the record) and ``informal'' (notice-and-comment) rulemaking.
Paperwork Reduction Act (44 U.S.C. Sec. Sec. 3501-3520)
Passed in 1980, significantly amended in 1986 and 1995
The Paperwork Reduction Act requires that OSHA, and
other agencies, obtain approval from the Office of Information and
Regulatory Affairs (OIRA) for any survey or ``collection of
information'' designed to help the agency determine the economic impact
or practical implication of proposed rules. (OIRA was created by the
Paperwork Reduction Act.)
Regulatory Flexibility Act (5 U.S.C. Sec. Sec. 601-612)
Passed in 1980
The Regulatory Flexibility Act requires OSHA, and other
agencies, to specifically analyze the effect of its regulations on
small entities. OSHA must publish the reason it is considering
regulating, a description of the small entities which will be affected,
a description of the proposed rule's compliance requirements, and a
list of alternative actions.
Executive Order 12291
Signed in 1981
President Reagan's Executive order was the first to
require rulemaking agencies to submit all regulations to the then-newly
created OIRA. OIRA was tasked with reviewing and approving rules to
ensure they met a cost-benefit test. (This Executive order has been
supplanted by later Executive orders on regulatory review.)
Executive Order 12866
Signed in 1993
President Clinton's Executive order restricted OIRA to
reviewing only ``economically significant'' (those with a $100 million
economic impact) regulatory actions, as well as those which created
conflict with another agency's rules; altered the budgetary impact of
entitlements, grants, user fees, or loan programs; or raised novel
legal or policy issues. This decreased the number of rules OIRA
reviewed each year from between 2,000 and 3,000 to between 500 and 700.
Executive Order 12866 set deadlines for OIRA reviews and established
standards for agency and OIRA transparency.
Unfunded Mandates Reform Act (2 U.S.C. Sec. Sec. 1532-1538)
Passed in 1995
The Unfunded Mandates Reform Act requires OSHA, and
other agencies, to analyze and minimize the costs a proposed regulation
would impose on private parties and State and local governments. OSHA,
and others, must also identify alternative actions and justify the
reasons for selecting its preferred rule.
Small Business Regulatory Enforcement Fairness Act (110 Stat. 857, 5
U.S.C. Sec. 601 note)
Passed in 1996
The Small Business Regulatory Enforcement Fairness Act
(SBREFA) permits judicial review of OSHA's, and certain other
agencies', compliance with the Regulatory Flexibility Act. In addition,
OSHA must now convene an ``advocacy review panel'' of representatives
of small entities before it can publish a regulatory flexibility act
analysis. SBREFA also requires OSHA, and certain other agencies, to
assist small entities with understanding and complying with new and
existing regulations, and requires that the agency waive some fines for
noncompliant small entities.
The Chairman. Thank you, Ms. Rabinowitz.
And now Mr. Sarvadi. Thank you very much. Please proceed.
STATEMENT OF DAVID G. SARVADI, PARTNER, KELLER AND HECKMAN LLP,
WASHINGTON, DC
Mr. Sarvadi. Thank you, Mr. Chairman, for the invitation,
and Ranking Member Enzi for the offer to participate. I'm here
representing the Chamber of Commerce, which is the lead
organization in the Coalition for Workplace Safety. You have my
background and my written statement.
I want to just mention one experience that I had early on
in my career. I was asked in the late 1970s to work with a
small company that was manufacturing materials that were used
to make dental molds. And the experience there was that they
had a young person working in the facility who came down with
acute silicosis, which is a very devastating disease that
occurs very, very rapidly within months of the initial
exposure, and it comes from extraordinarily high exposure
levels.
And the point I wanted to make about this is that the
people who were working in that facility, including the
management, didn't know about the effects of the material and
were interested and demanded ways to correct the problem so
they wouldn't be faced with it in the future. And so they hired
me to come in as an industrial hygienist and look at their
facility and help them make the improvements.
I would suggest that in the current situation with regard
to standard-setting that our problem is more about making sure
that the agency sets priorities and sticks to its list. My
experience over the last 35 years in dealing with OSHA
regulations--and my experience goes back to the lead standard,
the vinyl chloride standard, and the early benzene standard in
the 1970s--in submitting the data that Ms. Rabinowitz is
requesting, we did submit the data, and the industry routinely
submits data to help OSHA make those assessments.
The problem with the current system is they don't do that
until after they issue what's called the risk assessment, the
draft risk assessment. And that's the first time people really
get a chance to sit down and talk about what data OSHA is
relying on and how the data demonstrate either a significant
risk or a risk for a particular industry.
And I would strongly recommend--and I've been pushing for
this for a long time to, unfortunately, deaf ears--to have this
process opened up to the public. OSHA needs to talk to people
before they sit down and start writing the rule. They need to
spend time with us, get the industry experts, the people that
deal with these things day in and day out, to understand the
vagaries of the application of the principles of safety that
they have to face every day.
The second major point I want to make--and particularly in
regard to silicosis--is OSHA has all the tools right now to
eliminate the problem. The general duty clause requires that
OSHA show that there's a hazard. I don't think anybody would
disagree that excess exposure to silica dust is a hazard. They
have to show that there are feasible means of abatement--and we
heard Mr. Ward describe techniques that can be used to
eliminate exposure to the dust--and OSHA has to then
demonstrate that it's recognized in the industry.
I don't think there's anybody in the construction industry
that doesn't know that silica can be a significant problem and
that it can be dealt with. So with that information in hand,
OSHA is fully empowered, using the general duty clause, to take
enforcement action against any employer who is not doing those
things.
And I know that in the Coalition for Workplace Safety and
in the companies that I represent, they want OSHA to take that
kind of step and that kind of action because it creates a level
playing field. The companies that advance safety and health and
have comprehensive programs want regulations that clearly
define what should be done, that create an opportunity for
everybody to compete on a level playing field, and to make sure
that the regulations that are adopted make sense in the real
world.
I want to make one other point about the discussions with
OMB. Ms. Rabinowitz suggested that these meetings are conducted
in private. To my knowledge, they are conducted in a public
way, that is, there is a public announcement about them. The
summaries from the meetings, the information that's provided,
can be made available to the public.
But it's an important function, because OMB does have the
responsibility to make sure that OSHA's single-minded focus on
workplace safety doesn't overrule important but competing
interests. It's sort of a reality check for the agency, and
it's an important function.
The only way the agency can do that, that is, OIRA can do
that is if they take into account not only what OSHA is saying,
but if they hear from people who have to deal with these things
on a day-to-day basis. I've been in these meetings. The last
meeting I was involved in--there were eight OSHA staff members
there who heard what we had to say. I think it's an important
function that OIRA produces or makes--an important function
they create in order to make sure that the regulations make
sense and that they fit within an overall regulatory agenda.
Nevertheless, it's clear that OSHA has a job of
establishing standards that have a high degree of protection
for employees and that require employers to provide a safe
workplace. And the last point I'd want to make about that is
that employers are the ones and employees are the ones who have
to implement these standards. OSHA can write them, but if we
don't have people who voluntarily and enthusiastically
implement those standards, they won't be nearly as effective.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Sarvadi follows:]
Prepared Statement of David G. Sarvadi, Esq.
The U.S. Chamber of Commerce is the world's largest business
federation, representing the interests of more than 3 million
businesses of all sizes, sectors, and regions, as well as State and
local chambers and industry associations. More than 96 percent of the
Chamber's members are small businesses with 100 or fewer employees, 70
percent of which have 10 or fewer employees. Yet, virtually all of the
Nation's largest companies are also active members. We are particularly
cognizant of the problems of smaller businesses, as well as issues
facing the business community at large.
Besides representing a cross-section of the American business
community in terms of number of employees, the Chamber represents a
wide management spectrum by type of business and location. Each major
classification of American business--manufacturing, retailing,
services, construction, wholesaling, and finance--is represented. Also,
the Chamber has substantial membership in all 50 States.
The Chamber's international reach is substantial as well. It
believes that global interdependence provides an opportunity, not a
threat. In addition to the U.S. Chamber of Commerce's 115 American
Chambers of Commerce abroad, an increasing number of members are
engaged in the export and import of both goods and services and have
ongoing investment activities. The Chamber favors strengthened
international competitiveness and opposes artificial U.S. and foreign
barriers to international business.
Positions on national issues are developed by a cross-section of
Chamber members serving on committees, subcommittees, and task forces.
More than 1,000 business people participate in this process.
______
Chairman Harkin, Ranking Member Enzi, and members of the committee,
thank you for the opportunity to testify today. My name is David
Sarvadi. As an attorney, I assist employers in creating and
administering occupational safety and health programs, complying with
Occupational Safety and Health Administration regulations and
standards, and in resolving disputes with OSHA as to the interpretation
and application of those rules and standards in enforcement cases.
Prior to practicing law, I managed safety and health programs in
several companies, including a Fortune 500 company early in my career,
and in a small construction company later. I am testifying today on
behalf of the U.S. Chamber of Commerce and participate on its Labor
Relations Committee and the OSHA Subcommittee.
I believe I was asked to testify today, because in addition to my
experience in the field generally, I have been deeply involved in OSHA
standards development since 1974. In the course of that time I have
participated in OSHA's rulemakings on more than two dozen standards. On
behalf of the companies I worked for and the trade associations to
which they belonged, I wrote comments or participated in the
development for such standards as the original lead standard, the vinyl
chloride and benzene standards, and the 1983 Hazard Communication
Standard (HCS) as well as its 1994 Amendment. In the benzene and HCS
cases, the comments prepared by the trade association resulted in the
adoption of a practical provision in the final rule. I also had a
significant role in shaping the employer community's response to the
ergonomics standard as it was being developed during the Clinton
administration.
Prior to practicing law, I was an industrial hygienist in private
industry and in consulting. I was certified in the practice from 1978
until 2010. Much of what I did in that practice is similar to what I do
today.
I have practiced in the area of workplace safety and health law for
more than 20 years at Keller and Heckman LLP. As part of my practice, I
taught week-long seminars on all of OSHA's general industry standards
all around the country, covering essentially the same material included
in OSHA's 30-hour training course. Over the years, I estimate that more
than 1,000 people participated in those classes. The attendees have
been mostly the people who had to translate OSHA standards into
actions, practices, and procedures in their companies, ranging in size
from employers with fewer than 10 employees to those with hundreds of
thousands of employees.
the requirements governing osha's standard setting process were
established by congress and reflect important public policy objectives
Federal Government rulemaking and standard setting has long
reflected a tension between having uniform standards to curb
undesirable behavior and retaining the freedom and flexibility
associated with limited government intrusion into business decisions.
This tension drove the compromise that underlies the passage of the
Administrative Procedure Act in 1947 that created a series of
procedural checks in response to the largest perceived problem:
unlimited administrative discretion. According to the Attorney
General's Manual on the Administrative Procedure Act (1947), the
purposes of the APA are (1) to require agencies to keep the public
informed of their organization, procedures and rules; (2) to provide
for public participation in the rulemaking process; (3) to establish
uniform standards for the conduct of formal rulemaking and
adjudication; and (4) to define the scope of judicial review. An
important part of the public participation process is to help educate
the government about the subject matter and to help craft regulations
that achieve public policy goals while limiting impediments to
commerce.
OSHA's standard setting process, as defined in its statute, is
intended to achieve each of those aims but with additional requirements
that reflect the impact of OSHA's standards which can take significant
time to complete. We are here today to examine whether this has
negative workplace safety ramifications and whether OSHA's rulemaking
process should and can be improved.
To establish a safety standard, OSHA must establish, based on the
evidence in the official rulemaking record, that current conditions
pose a significant risk of material harm to workers, that the proposed
rule would significantly reduce that risk, that the proposed rule is
technically and economically feasible for each industrial sector and
activity regulated by the rule and, at least in theory, that the
proposed rule provides the most cost-effective approach for addressing
that hazard. We believe those are the appropriate criteria for an OSHA
safety standard. For health standards dealing solely with toxic
materials or harmful physical agents, the OSH Act takes a more
conservative approach. An OSHA health standard must, to the extent
feasible and within reasonable bounds, reduce workplace exposures to a
level below that which presents a significant risk of material
impairment of health or functional capacity to employees.
As the U.S. Supreme Court recognized in the Benzene case, it is not
practical, much less feasible to achieve zero risk in any aspect of
life. The scope of the OSH Act standards must necessarily be limited to
addressing significant risks of material harm. There is no
justification for expending resources on a rulemaking or compliance
efforts in connection with a rule that does not offer a meaningful
improvement in workplace safety.
Furthermore, in requiring OSHA to demonstrate that a rule was
technically and economically feasible, Congress properly determined
that an agency should not have the authority to effectively regulate an
entire industrial sector or activity out of existence. As interpreted
by the courts, OSHA's obligation is to demonstrate either that it has
satisfied these criteria for each industrial segment or activity that
would be covered by the standard, or that there is no material
difference between the sectors or activities for purposes of applying
the rule. Even so, Congress determined that the protections provided by
the APA and the OSH Act were inadequate to provide small business with
a meaningful opportunity to participate in OSHA rulemakings and, for
that reason, adopted the Small Business Regulatory Enforcement and
Fairness Act which requires OSHA to conduct small business review
panels when a proposed regulation is estimated to have a significant
economic impact on a substantial number of small entities.
The GAO report which is at the heart of this hearing was requested
based on an underlying premise that OSHA has not been able to issue
enough regulations to protect America's workers. And yet, we see that
workplace fatality, injury, and illness rates have been declining
steadily during the entire history of OSHA, even the recent period
which is the focus of the report and is characterized as one with few
new standards.
The Chamber recognizes the need for well developed, science and
data driven safety standards. Such standards can be useful to employers
in providing information and clarity about hazards and the proper
approaches to controlling them. However, standards should not be issued
merely for the sake of putting more rules on the books, where the
hazards they seek to control are not well understood or the controls
are unproven, or to establish new ways to control the workplace and
issue more citations against employers.
A guiding principle to bear in mind is that improving standard
setting does not require OSHA to take short cuts. The steps required in
the standard setting process are vital to achieving important public
policy objectives. These steps must not be curtailed as to do so would
make OSHA's standards less effective and more impractical by reducing
valuable information from the public. Rather, the process must be
streamlined so that OSHA can accomplish each step in the standard
setting process more efficiently.
recommendations
We believe that OSHA can improve its performance in setting
standards. While the task is not easy, there are several things OSHA
can do to affirmatively improve the process.
Ensure That OSHA Standards Writers Have Practical, Hands-
On Experience With The Hazards To Be Addressed and Involve Interested
Parties More Substantially In The Standard Development Process Earlier.
We all recognize that funding constraints limit OSHA's ability to
develop information on its own. The process that is contemplated by
OSHA standard setting provides an opportunity for the agency to educate
itself fully on the matter about which it proposes to regulate. One way
to do this is to maintain a continuous dialogue among trade
associations, who are often involved as standards setting
organizations, other professional associations, and members of
industry. The Chamber has always been open to a productive dialogue
about occupational safety and health issues. It has been at the
forefront of debates over numerous standards, reflecting our members'
concerns about the practical problems they face in managing safety and
health programs and improving workplace safety practices. The Chamber
now co-chairs, the Coalition for Workplace Safety, that has been active
in representing a broad array of employer concerns on OSHA regulatory
and legislative matters.
Too often there is a perception that OSHA is determined to pursue a
new standard regardless of how it will impact employers or whether it
is justified. When employers raise concerns, these are dismissed as not
being consistent with protecting employees, instead of constructive
input into the process. In reality, both OSHA and the employers who are
subject to its regulations are interested in improving workplace
safety. OSHA would do well to view comments in this light and take
these comments seriously rather than just looking for ways to dispose
of them.
OSHA has previously recognized the need for its compliance
personnel to be knowledgeable about the industrial operations they are
inspecting and the application of OSHA standards to those operations.
We believe the same considerations are even more significant when one
person or a small group of people are writing a standard that will
apply to 60 million workers at 5 to 8 million worksites across the
United States.
One way to foster a more cooperative relationship would be for OSHA
staff to participate in the professional societies and associations
where people who actually have to implement OSHA's directives meet to
discuss common problems. In all my years in the Washington area, I saw
fewer than five OSHA headquarters professionals at local industrial
hygiene or professional safety meetings. The result is a professional
isolation that prevents the staff from learning about the practical
problems, and more importantly the successes of the regulatory program.
To facilitate that, I believe OSHA staff, including specifically
those who are tasked with writing standards, should be expected as a
matter of professional development to participate in such groups. The
government should fund that participation, as it is critical to
effective public policy implementation.
Similarly, OSHA should not be conducting any part of the standards
development process in secret. The procedure now is for the agency to
issue requests for information and advance notices of rulemaking to
collect information when the agency thinks there is a need for these
extra steps. Then it works with contractors to develop the standard,
risk assessments, and economic and technical feasibility analyses
behind closed doors. The first time the public sees the results of
these efforts is after the decisions have begun to set in concrete,
generally at the panels conducted under the Small Business Regulatory
Enforcement and Fairness Act (SBREFA) if OSHA decides it must conduct
such a review and does not have a colorable argument for avoiding it.
Even though this is before a regulation gets proposed, that is far too
late. And too often, OSHA finds a reason to not conduct these reviews
which means the first time anyone can see what they have in mind is the
publication of the actual proposed rule and the supporting materials.
Again, if OSHA regarded employer input as part of helping it develop a
sound path forward, rather than objections to be overcome, the pre-
proposal period could benefit OSHA's ultimate approach. OSHA should be
encouraged, even required to have regular and frequent contact, both
formally and informally, with interested parties. OSHA should request
the meetings and not wait until interested parties do. And the peer
review panels should conduct all their business in the open, similar to
the process that EPA follows with reviews of their preliminary risk
assessments.
Failure to open up the process and to get OSHA staff engaged on an
individual level can produce anachronistic results and employer
resentment of OSHA as the industry is subjected to standards with
little relevance to the ``real world.''
Do Not Make ``Perfect'' The Enemy Of The ``Good.''
In my view, OSHA has not been willing to do a good job, and come
back later should it decide more needs to be done or after experience
has shown the need for refinements. For that reason, standard
development at OSHA takes decades. Often, the final standard is delayed
because OSHA does not want to be accused--unfairly in my view--of
overlooking something. But these programs and processes depend on
people and people are imperfect. OSHA needs to be able to leave out the
issues that take more time to resolve. Admitting more information is
needed is not a failure, but waiting until all possible questions have
been resolved can be a failure if it impedes moving forward with
something that would be more practical and largely beneficial.
An excellent example of this problem is OSHA's confined spaces
standard that was introduced in 1975. The final rule was issued in
1993--18 years later. Most of the provisions of that standard were in
common practice in many industries and by many employers. OSHA excluded
the construction industry from the scope of that rule, was sued by
organized labor for that approach and agreed to quickly proceed with a
rule for construction. That rule is pending and may be issued this
year. Part of the reason it took so long to complete the general
industry rule was OSHA's excessive preoccupation with the fine details
of an entry. Almost 20 years later, the central problems remain the
same--the failure to recognize a space to be a hazardous confined
space, the failure to understand the potential hazards of the space,
and the human tendency to rapidly respond when someone has collapsed in
a space under the assumption that the person had a heart attack or
fainted rather than recognizing the person was overcome by a hazardous
atmosphere that will have the same effect on the rescuer.
Part of the reason it took so long to complete was in the details:
when does an ``entry'' occur, for example. Most people in the
industries that had such spaces knew when those procedures were
required. Similarly, the Lockout/Tagout Standard took 12 years (1977-
89). There are many other examples.
A more recent example is the revisions to the Hazard Communication
Standard (HCS) to align it with the Globally Harmonized System of
Classification and Labeling of Chemicals (GHS). Initially contemplated
in 2002, OSHA finally issued an Advance Notice of Proposed Rulemaking
regarding GHS on September 12, 2006. On September 30, 2009, 3 years
later, a proposed rule was issued. OSHA then held public hearings for 6
months and the record was closed on June 1, 2010.
Unfortunately, the proposed rule went beyond the concept that had
been envisioned and supported by both political parties and employers.
It included two provisions that were controversial and likely made the
rule harder to finalize: unclassified hazards (now call Hazards Not
Otherwise Classified) and coverage of combustible dust. Combustible
dust is a complicated, multi-factorial hazard which has not been
previously regulated by OSHA's HCS. As there is no OSHA developed
definition for combustible dust, OSHA was unable to provide a
definition of combustible dust thereby leaving the regulation unclear
and unexplained. OSHA's need to shoehorn combustible dust into the HCS
regulation likely delayed the promulgation of the HCS regulation
unnecessarily by almost 2 years, and more importantly, has created
employer anxiety and uncertainty. I believe that some in OSHA
management saw the GHS proposal as a shortcut way to incorporate a
combustible dust standard. Unfortunately, the complex issues of how to
define when the hazard exists and what should be done to mitigate a
hazard that has varying degrees of severity--requiring less activity
when risks are low--have now been left to the enforcement process. That
is a recipe for litigation.
Increase Reliance On Established Science, And Real World
Observations, Rather Than Seeking Out That Information Which Confirms
The Agency's Preconceived Hypothesis.
My experience has been that OSHA tends to rely on information that
supports a preconceived idea, seeking that which will bolster its
position on a given topic. In many of the risk assessments, OSHA
credits studies that support its conclusions, while discounting studies
that do not. The hexavalent chromium standard is an example. The
discussion of the risk assessment contains long, technical commentary
and summaries of studies, but in the end, OSHA could only conclude that
even at the lowest level of proposed exposure limits, some risk
remained. We all balance risks and rewards in our lives, and know from
long experience that low probability risks deserve less attention and
mitigation than those of more immediate concern. OSHA pays lip service
to the Supreme Court's decision in the Benzene case about only
regulating when it can show significant risk, but in reality the risk
assessment OSHA uses, like many agencies, imposes assumptions that
magnify the risk. That leads to conclusions such as in the chromium
standard, where even at levels of exposure that are difficult to
measure, employers are still required to mitigate the risk.
Another example is the silica standard. Industry made it clear that
it was willing to accept a reasonable comprehensive silica standard
based on the existing permissible exposure limit (PEL), 20 years ago.
Instead, based on highly conservative modeling, OSHA insisted that it
needed to reduce the PEL. In 2003 OSHA conducted a SBREFA review of its
draft silica standard. At that time, industry pointed out that, based
on NIOSH data, the incidence of silicosis had decreased dramatically,
that the cost of compliance with the proposed rule would be billions of
dollars per year and that it was impractical to treat a material that
made up 12 percent of the earth's crust, covered the beaches from Maine
to Florida, was naturally found in soil and in virtually all building
materials under the same scheme governing asbestos. The SBREFA panel--
including representatives of OSHA, OMB and SBA--recommended that OSHA
go back to the drawing board on that initiative. Based on the status of
the rule at OMB, it appears that OSHA largely ignored that panel
report.
Assuming that the only acceptable level of risk is zero risk at
zero exposure forces OSHA to lower and lower acceptable exposure
levels, which in turn increases costs not only financially but in the
additional time and management attention that restrictive rules
require. This also makes finalizing such regulations increasingly
difficult as justifying such increased compliance costs creates
additional political difficulties. With silica, it cannot be that the
only acceptable risk level is zero. Silica is ubiquitous, and we are
exposed to it throughout our entire existence at some level. If OSHA
accepts what some propose, every construction site in the country will
become a regulated area, and many non-construction manufacturing
facilities will as well. Lung cancer is the signal risk most would seek
to reduce with the standard. Yet, we attribute the bulk of U.S. lung
cancer experience to tobacco, leaving little room for the conclusion
that exposure to crystalline silica is causing large numbers of cases
of lung cancer to occur. Indeed, incidences of silica related lung
disease have been declining steadily.
Too many in the occupational health field are blinded by the
passion they bring to the work, and push OSHA to ignore inconsistent
observations like this and pursue unrealistic targets. The remedy is a
culture change at OSHA, an acceptance to do what is achievable and
widely supported rather than push the envelope beyond practicality.
Take Into Account Advice Provided By OMB.
OSHA tends to act as an advocate for the employee representatives,
and to develop standards from that perspective. However, it can often
lose sight of the fact that there are competing interests at play and
that a proposed standard may have unforeseen effects when viewed from
only one perspective. OSHA can become so entrenched in its position
that the employer community, on whom the obligation and burden of
compliance will fall, often feels that it has no voice before the
agency. For that reason, many employers seek to share their views with
the Office of Management and Budget's Office of Information and
Regulatory Affairs when OSHA's final rules, and even some proposed
rules, are reviewed under various Executive Orders and statutes. OIRA's
role is to assess the overall burden of a new standard and ensure
regulatory consistency between different Federal agencies and adherence
with rulemaking requirements like the Regulatory Flexibility Act. OIRA
can be of assistance to OSHA in pointing out competing interests of
other agencies and emphasizing the importance of industry views.
OIRA can sometimes soften the hard edge of OSHA's standards, and
keep OSHA from adopting standards that impose unnecessary requirements
when simpler or equally effective means will do. OSHA also sometimes
glosses over economic and technical feasibility requirements, leaving
the employer community no place to go to be heard. If OSHA were really
listening, employers would not have to seek assistance from OIRA.
An example of the lack of rigor in OSHA's economic assessments is
the recently adopted GHS revisions to the HCS. OSHA's estimates of the
time to train employees on the standard were woefully inadequate. They
estimated that employers were already training people on a periodic
basis on HCS issues, and that the incremental time spent training on
the GHS standards would be 60 minutes for most employees and 30 minutes
for employees with minimal contact with hazardous chemicals. In my
experience, the training will take longer, because the classification
scheme will make some chemicals seem more hazardous. Many more
chemicals will bear a skull and crossbones; some chemicals not
previously deemed hazardous will now be treated as hazardous. A natural
reaction to that change will be questions up and down the chain of
distribution as to whether anything has changed. The answer is the
classification changed, but the chemical did not, which will lead to
discussions of what the classifications mean and how they compare to
prior classifications.
Another example of OSHA's inadequate economic analysis, and OIRA's
involvement, was the ill-fated MSD column proposal under the OSHA
recordkeeping standard. OSHA estimated it would take 15 minutes to
train supervisors on how the change would be implemented. In a meeting
with OMB, I explained that this was unrealistic, because as part of its
proposal, OSHA was abandoning an interpretation that allowed an
employer to let an employee avoid activity that could aggravate
muscular fatigue or minor discomfort without triggering a recordable
case under the rules regarding transfer or change of jobs. The result
would be that the number of incidences an employer would have to review
to determine recordability would explode. I estimated it would take a
retail store operator at least an hour of training of the store manager
and assistant managers, who would be responsible for making these
decisions. For an employer with 1,500 stores, the time involved would
cost an estimate $400,000 or more. There are 7 million workplaces in
the U.S., and assuredly, not all would have such a cost associated with
it. But it would not be the minimalist and dismissive cost OSHA
predicted. In January 2011, OSHA withdrew this regulation from review
by OIRA claiming that it needed more input from small businesses. We
think problems like this explain the difficulty OSHA had finalizing
this regulation and why it is now on the long-term action list.
Accept The Results Of Negotiated Rulemaking.
OSHA has tried negotiated rulemaking, but the results have been
mixed at best. Negotiated rulemaking is a process by which a proposed
rule is developed by a committee comprised of members who represent the
interests that will be significantly affected by the rule. The goal of
the negotiated rulemaking process is to develop a proposed rule that
represents a consensus of all the interests. When parties agree, absent
a major legal impediment, OSHA should not question their judgment.
One example of OSHA's insistence on imposing its judgment over the
people who work in the industry is the Cranes and Derricks standard
promulgated in 2010. In 1971 OSHA issued the original C&D standard
based largely on industry consensus standards. In the intervening
decades those industry standards were updated leading, ultimately, to a
request by the industry that OSHA update its standard. In response,
OSHA's Advisory Committee for Construction Safety and Health
established a workgroup to recommend changes to the C&D standard. The
workgroup developed recommendations on some issues and, in particular,
recommended that OSHA use a negotiated rulemaking process as the
mechanism to update the C&D standard.
In 2002 OSHA announced plans to use negotiated rulemaking to update
the C&D standard, and organized a committee, including representatives
from the agency, from industry, and from other interested parties. The
rules of the committee provided that no consensus could be achieved if
OSHA dissented. As acknowledged by OSHA, the members had vast and
varied experience in cranes and derricks in construction, which gave
them a wealth of knowledge in the causes of accidents and other safety
issues involving such equipment. The members used this knowledge to
identify issues that required particular attention and to devise
regulatory language that would address the causes of such accidents.
At its final meeting in 2004 the committee reached consensus
agreement on all issues. OSHA then proceeded to issue a proposed rule
modifying the C&D standard. However, OSHA identified several problems
in the committee's report such as provisions that appeared inconsistent
with the committee's purpose, or that were worded in a manner that
required clarification, causing OSHA's proposal to deviate from the
committee's report. The standard finally was issued on August 9, 2010.
Whether the extra time was worth the effort is a matter of debate.
A similar situation arose in regard to steel erection standards.
After 6 years of trying to revise the standards applicable to steel
erection, OSHA established the Steel Erection Negotiated Rulemaking
Advisory Committee in May 1994. Members of the committee included
representatives from labor, industry, public interest and government
agencies. OSHA served as a member of the committee, representing the
Agency's interests.
Eighteen months of negotiations followed. Detailed reports were
prepared and the committee met 11 times to debate the reports, hear
submissions from interested parties, and negotiate to find common
ground on regulatory issues. In December 1995 the committee put forth a
proposed revision of the regulation. OSHA then drafted a preamble and
Preliminary Economic Analysis for the proposed rule, but it was not
until August 1998 that OSHA issued a notice of proposed rulemaking. In
response, OSHA received 367 submissions. In response to the Notice of
Hearing contained in the NPRM, OSHA received 55 responses. Following
the December 1998 hearing a post-hearing comment period was
established. Participants were allowed to submit additional data and
information, briefs, arguments and summations. In December 1999 OSHA
presented the committee with the Agency's draft final rule, seeking
comments and feedback. On January 18, 2001 a final regulation was
published.
Currently, OSHA has the opportunity to move quickly on changes to
the beryllium standard. Having first issued a Request for Information
regarding beryllium in 2002, the process stalled in 2010. OSHA has
classified a beryllium standard as a ``long-term'' action unlikely to
be addressed soon. In February of this year, the leading U.S. supplier
of beryllium, Materion Brush Inc., teamed up with the United
Steelworkers and two other unions that represent beryllium workers and
proposed a standard to OSHA that would sharply limit airborne beryllium
exposure in the workplace. The standard would cut the occupational
exposure limit for beryllium by 90 percent and require feasible
engineering controls in any operation which generates any beryllium
dust or fume, even those which meet the exposure limit. The proposal
details new Permissible Exposure Limits, engineering controls, personal
protective equipment, monitoring and assessment, hygiene, housekeeping
and medical surveillance and training requirements. Because the
proposal contains ready-to-use language approved both by industry and
by labor, OSHA could expedite the rulemaking procedure by simply
proposing it. Given that the members of the industry think the proposed
standard's provisions are appropriate, technical and economic
feasibility should not be an issue, and the key parties have agreed
that it mitigates an unreasonable risk in that industry. What else does
OSHA need?
Recognize That OSHA Standards Are More Effective The More
People Volunteer To Adopt Them.
To no one's surprise, OSHA's Voluntary Protection Programs (VPP)
achieve more success in terms of reducing injuries, illnesses,
fatalities, and costs, than do its mandated standards. Implemented in
1982, the VPP was designed to encourage collegial relationships between
labor, management, unions, and government with the goal, ultimately, of
improving safety and health in the workplace. By engaging in OSHA's
challenging application process, employers see a decrease in their lost
workday injuries, injury and illness rates, and workers' compensation
costs.
For example, the Washington State SHARP program recently issued a
report in which they found that employers that participated in the
voluntary consultation program had better outcomes compared to
employers who were inspected by California OSHA inspectors. Some people
think we should ignore this because this group is self-selected. I
think the right answer is to get more people to self-select.
We all know intuitively that it is easier to get people to do
something if they see the benefit and it makes sense to them. Getting
people to volunteer to adopt programs and policies that go beyond
OSHA's standards offers the opportunity to increase the benefits of
safety and health programs at much lower cost. In addition, we all also
know that when we are forced to do something, we are less enthusiastic
and less effective. That is why the VPP program should not be a model
for a mandatory standard as we will not see the benefit of the forced
adoption of the programs. Instead we could invest more in the VPP
program to encourage more employers to join, and thereby multiply the
effect of the money spent.
OSHA should refrain from the following:
Stop Spending Time On Pet Projects And Take Into Account
The Evidence Presented.
OSHA's tendency is to act even when it has no evidence of a
corresponding improvement in safety. Such is the case with OSHA's fall
protection standard. The fall protection standard was promulgated in
1994 and has undergone no substantive changes since then. If the
standard was substantially effective in improving workplace safety and
health, we should expect to see that reflected in the Bureau of Labor
Statistics Census of Fatal Occupational Injuries. Unfortunately, that
is not the case. Rather, workplace fatalities from falls over the past
18 years have remained more or less constant. In 1994, approximately
600 deaths resulted from falls, while preliminary numbers for 2010, the
most recent year for which data is available, show 635 fatal falls. The
numbers increased during the building boom between 1997 and 2007, so
the absolute numbers may be misleading. We did not have the numbers of
employees in the affected industry to calculate rates, but what is
important is that the impact of OSHA's emphasis on fall protection may
not have had the intended effect. Could it be that OSHA is focused on
the wrong causal relationship--the lack of personal fall protection or
guardrails is not the cause of the deaths? It seems a good question to
ask and to answer before imposing another enforcement policy.
Refrain From Regulating Through Interpretations.
Perhaps as a way to get around the rulemaking process, OSHA tends
to try to make changes in its rules via ``re-interpretations'' and
enforcement rather than following the statutorily required rulemaking
procedures. Agencies are making changes to existing rules, which have
significant economic consequences and impose significant compliance
costs without giving the public adequate notice, or informing them of
the unintended consequences of the changes. OSHA should make a diligent
effort to get away from the paradigm described in the following excerpt
from the a frequently quoted 2000 opinion issued by the D.C. Circuit
\1\ because, as long as OSHA continues down that path, industry will be
understandably reluctant to support the agency's rulemaking efforts:
---------------------------------------------------------------------------
\1\ Appalachian Power Company v. Environmental Protection Agency,
208 F.3d 1015, 1020 (D.C. Cir. 2000).
The phenomenon we see in this case is familiar. Congress
passes a broadly worded statute. The agency follows with
regulations containing broad language, open-ended phrases,
ambiguous standards and the like. Then as years pass, the
agency issues circulars or guidance or memoranda, explaining,
interpreting, defining and often expanding the commands in the
regulations. One guidance document may yield another and then
another and so on. Several words in a regulation may spawn
hundreds of pages of text as the agency offers more and more
detail regarding what its regulations demand of regulated
entities. Law is made, without notice and comment, without
public participation, and without publication in the Federal
Register or the Code of Federal Regulations. With the advent of
the Internet, the agency does not need these official
publications to ensure widespread circulation; it can inform
those affected simply by posting its new guidance or memoranda
or policy statement on its web site. An agency operating in
this way gains a large advantage. ``It can issue or amend its
real rules, i.e., its interpretative rules and policy
statements, quickly and inexpensively without following any
statutorily prescribed procedures.'' Richard J. Pierce, Jr.,
Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L.REV. 59,
85 (1995). [footnote omitted] The agency may also think there
is another advantage--immunizing its lawmaking from judicial
---------------------------------------------------------------------------
review.
A clear example of this approach was the unilateral ``re-
interpretation'' of the term ``feasibility'' under the OSHA noise
standard that OSHA announced and then was forced to withdraw in
response to the strong adverse reaction from the Congress and the
business community. As with many occupational hazards, there are many
ways to protect employees from noise. Based on dogma, OSHA has a long-
stated preference for engineering controls, as opposed to personal
protective equipment. Since 1983, OSHA has interpreted its regulation
to require employers to install engineering controls when noise levels
are extraordinarily high, and to allow use of a hearing conservation
program using periodic testing of employees hearing and ear muffs and
plugs below a certain level. While there have been proponents of
changing this policy for many years, the scientific data on whether
such programs work and what makes them successful has been missing;
meanwhile, technology has changed. We now have noise-cancelling ear
muffs, and better ear plugs. We have the capability to test the
effectiveness of each individual's hearing protection to make sure that
the reduction in noise levels is sufficient based on current knowledge.
And we surely have the techniques to determine if the use of such
programs over the last nearly 30 years has been effective. All we have
to do is look.
Yet OSHA did not take any of this into account when it announced
that feasibility under the noise standard would now mean only if
implementing an engineering or administrative control would put the
employer out of business would it be considered infeasible. This would
have required that employers spend excessive amounts of money on
engineering and administrative controls without regard to whether they
were sufficiently effective to eliminate the need for ear muffs and
plugs and all the other aspects of hearing conservation programs. OSHA
would have required employers, who already have hearing protection
programs in place, all over the country to spend resources without
considering whether the people whom OSHA claims it is protecting would
receive any benefit. One estimate put the figure at over $1 billion for
one large company meaning that the overall cost for all employers that
would be covered would have been astronomical. OSHA did absolutely no
analysis to determine the impact or whether spending these amounts
would produce better outcomes. Since this was a mere interpretation,
the agency was not required to satisfy any of the normal feasibility or
economic analyses that are part of rulemaking. Thankfully, this created
such an outcry from many sources that OSHA was forced to withdraw the
proposed reinterpretation.
Similarly OSHA has been using enforcement to advance positions that
should otherwise be done through rulemaking. Just last month, a memo
went out to the regional administrators instructing them on what
constitutes violations of OSHA's protections for whistleblowers. Among
the scenarios was one that now means an employer with a safety
incentive program, such as rewarding employees for remaining injury
free for a period of time, will be considered in violation of the
whistleblower protections. Nowhere does OSHA say that such programs are
not allowed, but under the guise of a memo to the field, OSHA has now
implemented a policy with enforcement consequences for any employer who
uses an incentive program.
conclusion
Despite these criticisms of how OSHA operates, employers and the
agency are seeking the same goal: safer workplaces. OSHA standards
clearly have benefits and can help employers understand hazards and
appropriate approaches to mitigating them. However, more standards is
not always the answer to safer workplaces, and unless standards are
done with proper adherence to key procedural steps and sensitivity to
concerns from those who will have to implement them, there can be
significant unintended consequences. To the extent that OSHA believes
it needs to expedite its rulemaking process, the solution is not fewer
steps but using more of the available expertise and interest in
particular safety issues.
Thank you for your time today and I look forward to responding to
your questions.
The Chairman. Thank you very much, Mr. Sarvadi.
Thank you all, and we'll begin a round of 5-minute
questions here.
I must admit that I was not fully aware of all of the
problems with OMB and OIRA and how they were operating. And I
think this aspect of it, at least from what I heard from three
of you here, should be an area that maybe we ought to really
look at and see if there's some way of streamlining that--the
ability of OMB.
Now, Ms. Rabinowitz, I think you stated that you thought
that maybe Congress needs to legislatively--or do something to
limit how long or what OIRA can do.
I think, Mr. Sarvadi, you suggested that they--correct me
if I'm wrong--be more open, get more people in, and act
expeditiously, something like that. That's my own language.
Mr. Sarvadi. Yes. I'm suggesting that OSHA should get more
people in earlier and act more expeditiously. OMB's review
typically is 90 days at most, and it really doesn't add to the
length of time it takes to get these standards through.
The Chairman. Well, now we're hearing about OMB holding
things up for years. We've got one now that says the silica
thing has been there since--it's been there for 14 months now--
at least from what I've heard.
Dr. Silverstein, do you have any response to that? I mean,
it seems to me OIRA and OMB is kind of doing again what OSHA
already did in the first place, so you're duplicating it. I
don't know. Am I wrong on that?
Ms. Rabinowitz. I think there are three things that it
would be very worthwhile for Congress to consider. OMB
discloses who it meets with, but these are oral meetings. It
does not disclose what is discussed at those meetings on the
public record so that people have an opportunity to rebut it.
And that would be very helpful and make the process more
transparent.
Second, the agency sends a rule to OMB. OMB may insist on
certain changes during its review process, and then the rule is
published in the Federal Register. There is no disclosure of
what that give and take between the two is, what changes were
made at the behest of OMB, and what the nature of those changes
were. Disclosure of the changes that OMB insists on would be
very helpful.
And I think equally as important, the way this process,
this rulemaking process, works is it's open to everybody, and
you build a record, and the agency is supposed to act on the
basis of that record. An OMB review allows a secret record to
be created after the fact, and the process is only open to
some, not to everybody.
For example, while Mr. Sarvadi has been to lots of meetings
at OMB, I've worked on almost a dozen OSHA standards, and
neither I nor my clients have ever been invited to any. So it
creates a lopsided record that's imbalanced. And I think that
undermines the process we have at the agency.
The Chairman. Mr. Sarvadi, you suggested opening up OSHA's
internal processes to greater public participation. OK. I'm all
for that. Ms. Rabinowitz, however, says that the process at
OIRA--OMB is a closed thing. Would you advocate that both of
them be opened?
Mr. Sarvadi. I think they are, Mr. Harkin. In fact, I
suspect the reason Ms. Rabinowitz hasn't been to OMB is because
she hasn't asked to go. Every time that I know of that we've
asked to have a meeting about a particular topic, they've been
willing to talk to us.
My point about opening up the OSHA process so--it's a
little bit different than just simply opening the process. Part
of the problem is the people on the staff at OSHA who get
involved in these things have a very narrow and parochial view
of the world. And they don't have enough information and they
don't have enough real-world experience to be able to integrate
all of the information that they get in an effective way. And
that's my personal opinion. It's something that I've observed
for the last 35 years.
Part of the reason is these people are not engaged
professionally. In my written comments, I talked about having
the OSHA staff who do these kinds of things, that are supposed
to be professional safety and industrial hygiene staff,
participate in the professional societies where they can get to
know people and hear about the kinds of real-world problems
that they face. That would help a lot. And the trade
associations that are around would be available to help the
agency talk to the people in the industry.
The Chairman. I don't know about the specificity of OMB's
OSHA dealings. But I will tell you that this chairman has had
dealings with OMB in the past--under both Democratic and
Republican administrations, I might add--in which people came
in to visit with OMB officials, and the only way I found out
who they were is I asked for the log of who was invited.
What they discussed I could never find out. There was no
record kept, none whatsoever. And none of my staff or no one
was ever invited to sit in on these meetings, either. So OMB--
I've got a little thing there about OMB being this super secret
kind of organization down there that's getting involved in
stuff.
But I'm running out of time. I have run out of time. I'll
follow that up later.
Senator Enzi.
Senator Enzi. Thank you, Mr. Chairman. I'll follow up for
you.
Ms. Rabinowitz, you're advocating for a substantial
limitation on the Office of Information and Regulatory Affairs.
But the OIRA activity that you object to is prescribed by the
Administration, not by Congress. Are you in discussions with
the Administration on your suggestions? Is the President
considering limiting the regulatory review or making the record
more open? If not, why not?
Ms. Rabinowitz. I'm, personally, not involved, but the
organization with which I work and which I joined very recently
has had discussions over the years with the Administration on
various Executive orders. I do not believe there are any
ongoing discussions with the current Administration about
changing the process.
Senator Enzi. So before we do a law, maybe we need to talk
to the Administration and see if they'll just do it
administratively. They're doing everything else
administratively.
A question for Mr. Sarvadi, OSHA had used national
consensus standards as permitted under the OSH Act to create a
uniform standard across certain industries. Other witnesses
today have advocated adopting more consensus standards
wholesale. These standards are developed by national groups
such as the American Society of Safety Engineers. But not all
groups have an open and scientifically reliable process for
creating those standards. Therefore, some of these consensus
standards groups don't actually capture the consensus of the
field.
Do you have concerns about OSHA adopting national consensus
standards? And how can we determine which national consensus
standards are appropriate and based on professionals?
Mr. Sarvadi. Yes, I think I can help with that. There's a
definition of a national consensus standard in the statute.
OSHA would have to determine that a particular standard was
adopted in accordance with those criteria. And if it did, I
think the issues that OSHA has to address when it adopts a
rule, that is, significant risk, feasibility in both economical
and technical, would be largely dealt with because of the fact
that the people involved represent all of the people who have
an interest in a topic.
So, for example, an American National Standards Committee
that has a proper process in place to develop a standard will
have representatives from academia, from government, from
labor, from industry, and from consultants and insurance
companies as well. And I think it's possible to use consensus
standards. I think it could be done more quickly if they did.
But I do have concerns about certain consensus standards
where the situation has been overtaken by people who have a
parochial or a financial interest in having the standards
drafted in a certain way and then push those standards. I think
we've seen that in some cases, perhaps not as much in the
safety area, but in other areas where there are consensus
standards. So OSHA does need to look to those, and they could,
I think, expedite the process. But they need to make sure that
they are true consensus standards.
Senator Enzi. Thank you. Another question for you: The
stakeholders have described the recent OSHA final rule on
hazard communication standards as a missed opportunity, do you
agree?
Mr. Sarvadi. I think it was in the sense that it could have
been done a lot more quickly. And the problem with keeping or
adding combustible dust to the mix, I think, was an example of
what happens when OSHA latches onto a--I'll call it a pet
project.
I don't want to minimize the importance of dealing with
combustible dust. But it got latched onto and added to the
process very late, and it didn't resolve some of the very
significant and important questions that have to be resolved
now through the enforcement process, which is when do we have a
situation where the combustible dust practices and procedures
are required.
So I think it was a missed opportunity in that sense. But
in the end, it's an important change in the standard. And, by
the way, the standard does require that employers inform their
employees about the chemical hazards that they're exposed to.
And I know folks in the masonry industry now know that bricks
contain silica dust, because bricks are hazardous chemicals
that require a material safety data sheet that have crystal and
silica identified on the data sheet.
Senator Enzi. Another question for you in a little
different line here, recently, OSHA issued an enforcement memo
concerning employers' use of safety and health incentive
programs, the incentive programs. As you discuss in your
testimony, this is a situation where OSHA is seeking to change
its rules outside of the rulemaking procedure.
Do you think that employer incentive programs can
contribute to a safe workplace? Is this memo an appropriate use
of OSHA's authority? As evidenced by this enforcement memo,
OSHA seems to believe that their own statistics are not
legitimate, and there is an under-reporting of injuries. While
the memo lists several isolated anecdotes, what's the real
basis, if any, for OSHA's belief that there is endemic under-
reporting of injuries?
Mr. Sarvadi. I'm not sure why that idea has persisted over
the last 25 years. I'm aware of at least three separate
instances where OSHA has actually gone out to look at injury
and illness reporting in the workplace. They've actually gone
out to employers, looked at the records that are available,
talked to the employees, and gathered information on reporting.
And to my knowledge, there has been no suggestion that the
widespread under-reporting that is claimed has actually
occurred.
Even if we're talking about a 10, 15 or 20 percent under-
reporting, I think it's undeniable that the trends in workplace
safety demonstrate continued improvement over the last 30
years. So even if we are looking at numbers that don't reflect
the total reality, we are looking at trend lines and rates that
show that we are on a track that can be improved.
In regard to the specific incentive programs you're talking
about, I think what OSHA is worried about is situations where
employees are discouraged from reporting their injuries and
illnesses because they are afraid of their group or their
company work site suffering from not having the benefit of
whatever the incentive program is. Incentive programs are
helpful. Getting people to voluntarily follow the rules is
always better than trying to force people to do it, and so
there is a place for them.
But I would not disagree that we need to be careful that we
don't use incentive programs improperly. That's why a
rulemaking on that would be more important, because then we
would have an opportunity to find out what works and what
doesn't.
Senator Enzi. Thank you. I've run over, but I may have to
leave before the next round of questions are available. I do
have questions for all of the witnesses. And you've been great
on your testimony. I've read your testimony. It's very helpful,
but it did bring up some other questions. So I hope if I don't
get a chance to ask them that you'll respond in writing for me.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Franken.
Senator Franken. First of all, Mr. Ward, I'm sorry I wasn't
here for your testimony, but I was very touched by reading it.
Mr. Ward. Thank you.
Senator Franken. I have a question for you and maybe for
Dr. Silverstein. I've been to training facilities at various
locations, for laborers, for carpenters, and one of the things
they do emphasize is safety. I remember being at a carpenter
training facility and talking--and the guys they were training
had been nonunion before. And what they were doing now is they
were working at a union site several days a week, and they get
training 1 day or 2 days a week.
So I asked these guys what the difference was between
working on a union site and a nonunion site. One of the things
they said was the union site was safer, that when someone got
hurt at a nonunion site, basically, no one cared. No one did
anything. No one stopped. But at the union site, they made sure
that you got care, that you got what you needed.
My question is--I know that you're doing training.
Mr. Ward. Yes, sir.
Senator Franken. And I'm wondering--are you working at a
union shop?
Mr. Ward. Yes, sir, with the Bricklayers.
Senator Franken. Yes.
And this is for Dr. Silverstein. Do union shops tend to be
safer than nonunion? And that can be for Mr. Ward as well.
Mr. Ward. Well, I've never worked for the other side. But I
can tell you from what I see driving around town, in my city,
the answer is without a doubt, without a doubt. The
contractors--we have a lot of good ones. They are involved. The
training we provide gives them an edge. And I don't have the
numbers for you, but I could tell you my experience and what
I've seen--absolutely.
Senator Franken. Dr. Silverstein.
Dr. Silverstein. I would agree with that. And in my
experience--and that's experience working for an international
union, the Auto Workers, for a number of years, as well as my
experience as an agency executive at both the Federal and State
levels--I think that there is a difference in attention to
safety at union represented sites----
Senator Franken. But that's anecdotal and not borne out by
statistics.
Dr. Silverstein. There have been a limited number of
scientific studies that have tried to look at this in a very
rigorous way. But to the extent that they have--and I think
that Dr. David Wild has looked at this issue in the past and
has published studies that indicate that union participation
does enhance safety performance.
Senator Franken. I'm getting a nod from a woman in the
audience, but we can't call you, I don't think. I'm not the
chairman.
Well, Dr. Silverstein, or anyone else who'd like to
respond, we hear a lot about the cost of regulation all the
time. They stifle the economy. They stifle growth. And I think
we all agree that unnecessary regulation can do that. But not
all regulations are created equal. The standards issued by OSHA
do save lives.
Would you mind sharing with the committee the most
compelling cases you've encountered in terms of data on OSHA
standards saving lives?
Dr. Silverstein. I think there are a number, and there are
a couple of examples in my full written testimony. But one
involves the impact of OSHA's lockout/tagout standard, which
was adopted, and then 7 years after--and this is a standard
that was intended to protect workers from the danger of
equipment being energized while maintenance or other work is
being done on them.
OSHA did a look-back survey, as required under SBREFA, I
believe, after 7 years and found that in the 7 years after the
lockout/tagout standard was adopted, there was a 20 to 55
percent reduction in lockout/tagout deaths. That's one example.
In the State of Washington, the Department of Labor and
Industries has done a number of well-designed studies looking
at the impact of enforcement of OSHA standards on worker
compensation cases. And what the department has found--and I'll
give you just two examples.
One is that following the adoption of the Washington State
Fall Protection Standard a number of years ago, when inspectors
went in, did an inspection, found that the standard was being
violated, they issued an order for corrections to be made. And
so the standard was then--the company then came in compliance--
that as the company came into compliance, that injuries from
falls declined significantly.
In a similar way, the Department of Labor and Industries
recently completed a 10-year review looking at what happens to
worker compensation cases in the year after a State OSHA
inspection took place. And while it is true that in all
workplaces, even without inspections, there's a slow decline in
worker compensation cases, in the instances where an OSHA
inspection was done, violations were found, citations were
issued, and the hazards were corrected, there was a 20 percent
greater decline in the injuries than in other comparable
workplaces. So there's a wide body of information. That's just
some.
Ms. Rabinowitz. If I could add, in the 1970s, OSHA issued a
standard for cotton dust exposure. And at the time, it was very
controversial. Industry said it was going to put the textile
industry out of business. OSHA went forward with the standard.
The case went to the U.S. Supreme Court, which upheld the
standard.
There's been a dramatic decrease in the incidence of
byssinosis among textile workers, and the investment in plant
and equipment that was spurred by the need to comply with the
standard increased productivity in the industry dramatically
and allowed them to stay competitive for a while with
international textile manufacturers in a way that they would
not have been able to in the absence of that investment in
plant and equipment.
Senator Franken. Thank you.
And thank you, Mr. Chairman.
The Chairman. Senator Blumenthal.
Statement of Senator Blumenthal
Senator Blumenthal. Thank you, Mr. Chairman.
I want to thank all of you for being here today. And I want
to say in recognition of the people here who have come with
photographs that I am reminded of the tragedy that Connecticut
encountered literally 25 years ago almost to the day at
L'Ambiance Plaza. As a matter of fact, I'm going to be at a
ceremony this coming Monday marking that 25th anniversary when
28 construction workers lost their lives as a result of a
construction practice known as lift slab that was under review
by OSHA.
In fact, it had been under review for some 5 years and was
eventually found to be unsafe. And yet 28 people lost their
lives on that day, April 23, 1987, as tons of steel and
concrete from an unfinished building came crashing down on
them. And it is a tragedy that we have recalled every
anniversary since, this one being the 25th anniversary.
So as you have testified, Dr. Silverstein, and others have
recognized very eloquently, these delays have real-life
consequences. They have consequences not just in money and
unnecessary medical costs. They have real-life consequences in
lives lost--men and women not coming home from work after
leaving their families that morning, as these 28 individuals
did that day 25 years ago, and not coming home to their
families as the result of an accident and, really, a tragedy
that could have been avoided.
Accident probably is the wrong word, because it was, in
essence, preventable. And it could have been prevented if there
had been prompt or even reasonable review within a period of
time that everyone would agree is one that should be met.
I have read the GAO report, and I would simply ask, Dr.
Silverstein, whether you think that this report adequately sets
forth measures that we can take to address this problem.
Dr. Silverstein. Senator Blumenthal, I think that the GAO
report did a pretty good job of identifying some of the reasons
that OSHA standard-setting takes too long. I think it fell
short with recommendations. We've presented a number of
recommendations here that I think are worthy of consideration.
It's unfortunate the GAO didn't make those in its own report.
But I think that the report itself supports quite strongly some
of the recommendations that we have made.
Senator Blumenthal. So the report essentially identifies
the problems and the reasons and thereby supports going farther
than the recommendations it has made.
Dr. Silverstein. You know, even within the body of the
report, a number of the recommendations that we've made
explicitly here are noted, but they don't appear in the
recommendation section. So the idea that Congress could direct
OSHA to adopt a rule in a more expedited way than currently
takes place is something that's in the GAO report as a
possibility. It just wasn't listed as a recommendation, and I
believe it should have been.
Senator Blumenthal. Thank you.
I'll invite comments from any of the other witnesses if
they have any.
Yes, sir.
Mr. Sarvadi. I'd make the comment that I really think the
problem with OSHA rulemaking is that they just don't stick to
their priorities. And what the statutory recommendations that
we're talking about here do is establish that priority. If OSHA
wanted to get a rule done on silica, it could have done it in
1979 or 1978 without having to go through all of the exercise
that we've gone through since then.
The reason it didn't happen is because I don't think they
understood the significance and the importance of having
established the rule. That doesn't, I don't think, change the
problem that we have in front of us, which is to say the agency
simply gets bogged down in its own processes.
Senator Blumenthal. Thank you, Mr. Chairman.
The Chairman. Well, again, if the agency gets bogged down
in its own processes, Dr. Silverstein, what are your
recommendations?
Dr. Silverstein. Well, I think that some of the points that
Mr. Sarvadi is making are quite appropriate. I agree that
stakeholders should be brought into discussions as early as
possible, and often OSHA does that. So I think the rap on that
is a bit unfair.
But I want to go back for a second to the discussion you
were having about OMB. The real open process in which all the
parties are brought to the table, have an opportunity to put
their concerns out publicly and have them discussed, debated,
worked over--the open process is the public hearing process,
OSHA's public hearings.
The Chairman. Right.
Dr. Silverstein. Those are incredible events which are open
to anybody. There's an administrative law judge. They're on the
record. Witnesses are able to come forward and present their
views, present data, present either support or opposition, and
then the witnesses are subject to cross-examination by anybody
else who's in the room who is on the witness list. They're
incredibly robust, interactive experiences. That's the public
process that works.
Certainly, there are problems internally to OSHA with
setting priorities. I agree with that. But the real problem is
that it takes so long to get to the public hearing process.
There are innumerable procedural delays, including the OMB
delays, the SBREFA delays, and others, that really keep the
process from getting to the point where it really matters--open
public debate and discussion on the record.
The Chairman. But it doesn't--let me ask--that takes place
before it goes to OMB, doesn't it?
Dr. Silverstein. No, it doesn't. It can't happen until it
comes out of OMB.
The Chairman. So the silica rule, that's tied up in OMB
right now.
Dr. Silverstein. Yes. It has not had a public hearing, and
it won't until it comes out of OMB.
Ms. Rabinowitz. OMB gets to look at the rules before a
proposed rule is published in the Federal Register for comment.
And then after the hearing process and the comment period, OMB
gets to look at the rule a second time. When a final rule is
drafted, it's sent to OMB before it's published in the Federal
Register. So they look at it in the beginning and at the end.
The Chairman. Mr. Sarvadi.
Mr. Sarvadi. Mr. Chairman, if I could add to this, the
problem we're talking about right now is the time it has taken
to get to this stage is the time period--I think in the GAO
report they suggested they started in 1994. This is the time
when OSHA has been doing all of its work internally and through
contractors to gather information. And this is the time period
where I'm suggesting we can shorten the time it takes to get to
the rule.
We are going to have the opportunity to go through the
robust process that Dr. Silverstein described only after OMB
releases the proposed rule for discussion. I'm suggesting we
need to have that discussion before it gets to OMB.
The Chairman. Well, OK. This is open for discussion. Why
can't we have it before it goes to OMB?
Dr. Silverstein. Because the only truly open process that
is on the record and is meaningful that OSHA has to base its
record on and defend in court is the record of the public
hearing. I agree that informal discussions with stakeholders
that represent all views should take place very early on. But
then having done that--we need to do that quickly, get past it,
get to the public hearing process where it really counts.
The Chairman. Could you have a public hearing on a proposed
rule--I don't know. Maybe you can't.
Dr. Silverstein. Well, OSHA does have public meetings. And
often OSHA will conduct a public meeting of some kind very
early on in the process. It could do more of that, and it could
do it quickly.
The Chairman. But this open process--as I understand it,
the meetings that OSHA has prior to that are open, on the
record. They aren't?
Dr. Silverstein. No.
The Chairman. No?
Dr. Silverstein. Not the way that public hearings conducted
under the requirements of the Administrative Procedure Act are.
Ms. Rabinowitz. It varies. OSHA has pre-proposal
stakeholder meetings. Sometimes they hire a court reporter and
have transcripts of these meetings, and everyone is invited.
Sometimes they'll meet with some business groups and then some
labor groups. And the process is not regulated by any
procedural statute, and it varies depending on the
circumstances. And I don't think there is any way that you can
generalize.
They do go out and speak to more people than I think Mr.
Sarvadi has acknowledged, but there's not a consistent pattern.
Sometimes they do it more frequently and more openly, and
sometimes they do it less frequently and less openly.
The Chairman. Are you suggesting that maybe we need more
legislative guidance?
Ms. Rabinowitz. My suggestion would be that more analytic
procedures would just bog down the process.
The Chairman. That's what I'm wondering about this
suggestion that was made by GAO and, I think, others that
somehow OSHA now get together with NIOSH and work together from
the beginning. Aren't we adding another layer in there?
Dr. Silverstein. OSHA has worked closely with NIOSH for
about 40 years.
The Chairman. Well, then----
Dr. Silverstein. And the suggestion that they try harder, I
think--you can always try harder and do better, but that's not
the delay. That's not the source of the problem.
The Chairman. They're already working with NIOSH.
Dr. Silverstein. Oh, yes.
The Chairman. I wonder why GAO was suggesting that. That's
the only suggestion they made.
Dr. Silverstein. Right.
The Chairman. OK. Try me one more time. Dr. Silverstein, if
you had a magic wand, if you were the dictator, and you could
do one or two things that would speed up this process while at
the same time making sure that there was adequate public input,
stakeholder representation, time for public comments on the
record, what would you do to speed up the process while
protecting these other elements?
Dr. Silverstein. You're endowing me with extraordinary
powers here.
The Chairman. That's right. I'm asking how you----
Dr. Silverstein. Under those circumstances, I would direct
OSHA to engage in an expedited rulemaking to bring up to date
the more than 400 chemicals for which the permissible exposure
limits are maybe 50 years out of date. And, second, I would
direct OSHA to adopt a general rule that would require safety
and health programs, injury and illness prevention programs in
each workplace.
Ms. Rabinowitz. I would say mandatory deadlines. Whatever
the priorities are, when Congress has enacted deadlines and
forced OSHA to go forward, they've actually had a pretty good
record of meeting those deadlines, and they've been able to do
it with the same public participation. So if silica is
Congress' priority, if updating the permissible exposure limits
is Congress' priority, they should require the agency--
consolidate those procedures into a certain amount--a period.
And I think if we shorten the period between the end of the
comment period and the time it acts--sort of what I like to
call the hand-wringing process, where they--you know, should we
do this, should we do that--if we could just force them to
decide on the record, then we could move on to the next
priority.
The Chairman. Mr. Sarvadi.
Mr. Sarvadi. I think the last point that Ms. Rabinowitz
just made is really important. There's a lot of hand-wringing
that goes on over there. I'm not sure I agree with Dr.
Silverstein that OSHA has worked that closely with NIOSH. They
do have different orientations in the two agencies.
And, actually, my personal opinion, which, again, no one
has listened to for about 30 years, is that NIOSH needs to be
out of CDC. It's not a really good place for it. It's a poor
stepchild over there.
Be that as it may, to try to fix the rulemaking, it's
really about getting managers within the agency to stick to the
deadlines that they set. They simply don't do it. They simply
won't come to a conclusion.
The Chairman. But that's an administration problem. It
seems to me that comes under the administration.
Senator Enzi.
Senator Enzi. Thank you, Mr. Chairman.
Dr. Silverstein, in my view, OSHA's Voluntary Protection
Program that I talked about in my opening statement is an
effective tool in terms of improving the workplace safety
conditions and reducing injuries. Do you believe that the VPP
sites are generally safer than the non-VPP sites? And do you
support continuation of VPP or not?
Dr. Silverstein. Well, Senator Enzi, sure, they're safer,
because that's the requirement for them to be able to be given
the VPP star. They are recognition programs. The program is
intended to identify and to recognize those employers who are
doing the very best job. They've been mischaracterized, I
think, as programs which cause workplaces to become safe. In
fact, they recognize those that are already safe, and, in that
sense, I do support them.
During the 10 years that I was director of the State OSHA
Program, I was very proud to be able to go out to workplaces
where we awarded the VPP star and to talk with the companies
and the unions or the workers on the nonunion sites about the
great things they were doing.
Senator Enzi. Well, they have some requirements for hiring
safety people as well as doing the incentive programs, don't
they?
Dr. Silverstein. It's a high bar. Now, with regard to
incentive programs, we could have a longer discussion about
that. But we certainly--I don't think it's appropriate to award
a VPP star to a site that encourages in any way workers not to
report injuries and illnesses.
Senator Enzi. No. That wasn't the incentive I was referring
to. You referred to VPP as an incentive program where they get
their star and they can be proud of it.
Dr. Silverstein. Yes.
Senator Enzi. It's more than that. They actually have to do
something in order to get that star.
Dr. Silverstein. Companies generally have worked very hard
over a number of years to get to the point where they can be
recognized.
Senator Enzi. Thank you.
Mr. Ward, I want to express my sympathy for the loss of
your father and your health conditions. I appreciate the
comments that you made. I do believe that we can attribute the
progress in improving workplace safety both to employees and
employers, and that needs to be a constant working relationship
if we're going to have a safer workplace for everyone.
That's why the OSH Act prohibits the penalization of
employees for reporting safety violations and making
complaints--the whistle-blowing provisions. But some recent
cases have raised a question that, apparently, a labor union
can fine a member for doing that same kind of reporting on
safety violations.
What do you think? Should a labor union be able to fine
employees for reporting hazardous conduct that endangers
everyone on the work site?
Mr. Ward. I've never heard of that.
Senator Enzi. Well, there are some cases that have happened
that way.
Mr. Ward. I've never heard of that or experienced any of
that. If I may----
Senator Enzi. Sure.
Mr. Ward [continuing]. Take a swing with that magic wand
for just a second, in my opinion, if you want to speed it up,
have everyone involved take a look at the simple, cost-
effective control measures that we've known about for 70 years.
It literally is adding water to what you're cutting, and you
eliminate the hazard for gas-powered equipment. For the
electrical powered equipment, they have vac systems which are
readily available. Industry--the manufacturers have already--
it's already out there. It doesn't have to be re-invented. It's
just that simple.
If you really look at how much you're allowed to be exposed
to and how simple the controls are, everyone would be on board,
I'm almost certain. It really is way more simple than it
appears.
Senator Enzi. That's why we want both the employees and the
employers involved in the process. And I appreciate your
comments.
Mr. Ward. Thank you.
Senator Enzi. Dr. Silverstein, in your testimony, you
mentioned a shared priority for rulemaking between OSHA and
NIOSH, and we touched on that just a few moments ago as a
possible solution. Specifically, you mentioned how a similar
process was started in the 1990s but ultimately was abandoned.
Could you discuss some of the reasons why the formal priority
process didn't work and what could have been done differently
today?
Dr. Silverstein. I don't know that it didn't work.
Senator Enzi. Oh.
Dr. Silverstein. I indicated in my testimony that it wasn't
followed through on, and I don't have a full explanation of
that. The priority planning process was something that I worked
on during the 2 years that I was Director of Policy for Federal
OSHA, and after I left, it diminished in its importance and was
not followed through with. I think there were other competing
demands that took over.
One of the challenges for the agency is figuring out how to
respond from innumerable demands that are coming from the
outside continually. And this is where I would agree with Mr.
Sarvadi that the agencies respond to input and pressure from
the outside. And it's really important that that input be
balanced, that the agency is hearing from all sides.
This is one of the reasons why union participation has been
so important. Where unions have been involved, the discussions
are really full and complete. Where they're not, OSHA gets a
one-sided set of demands.
Senator Enzi. Thank you, and we'll follow up a little more
on why that process was abandoned. And, again, I have
additional questions, but I will submit them in writing,
because I have to leave.
The Chairman. Thank you, Senator Enzi.
Actually, you answered the question to him that I was going
to ask you, Mr. Ward, because I haven't had a chance to ask you
any questions about having the magic wand.
But I will close on this. For all the people who are
sitting here with pictures of their loved ones that they have
lost, I just said to my staff they're probably wondering what
are they talking about up there and all this stuff. Sometimes
experts--and I'll get into the fine tuning of all of this which
we have to do--rules and stuff.
But my question to you is--you said things are simple.
People out there working know what's safe. But they lose their
lives. They get severe injuries. But if they know what to do,
then why are rules--why do you need rules? If they know what to
do to be safe, why do you need rules? Why even have rules if
they know what to do? Why don't the employers just do it?
Mr. Ward. Well, although we do have many good employers,
you know, the owner of the company isn't out there running the
project. So the foremen, you know, who keep their job by making
the boss money are the ones that set the tone. They really do
set the tone for safety. And right now, with the economy and
the few jobs available and so many looking for work, there
isn't anybody that I know that would speak up on the job about
workplace hazards.
In fact, when we do our OSHA training, now we have to spend
2 hours on introduction to OSHA, where we explain to them their
rights in detail. We make them fill out a--well, not make
them--we have them fill out a complaint, an official OSHA
complaint. It's probably the toughest piece to get through in 2
hours because of all the chuckles and sarcasms that comes back
from the crowd.
They're like--there's no way they're going to say anything
about the job, because construction is unique. It really is.
It's simple. If somebody wants to get rid of somebody, if
they're complaining about something, or for whatever reason,
they'll just lay him off. The job slows down, or they'll say
the job slows down, and they just lay them off and just don't
call them back. It's unlike any other industry that I'm aware
of.
The Chairman. And if I'm not mistaken, one of the top three
industries by fatalities is construction.
Mr. Ward. It is.
The Chairman. Transportation, utilities and agriculture
being the other two. I just wonder if it hasn't a lot to do
with just--you know, human nature wants to cut corners. Don't
we all want to cut corners? We all try to get through that
yellow light, you know?
Mr. Ward. In some cases, I'm sure. In a lot of cases,
masons are--they've been around for a while, you know. Some of
the companies have been around for 60, 70 years, way before
OSHA was around. And in some cases, they just don't know.
The Chairman. And in some cases, we do know, like the PELs,
the permissible exposure limits, on these chemicals and stuff--
been around for a long time. I don't know why we can't finally
definitively put out a rule on that. It's just mind-boggling on
that.
Well, any other input that any of you want to put on the
record right now before I close the hearing?
Did you, Dr. Silverstein?
Dr. Silverstein. Yes. I'm sorry that Senator Enzi left,
because some memory is coming back to me, some history with
regard to OSHA's standards priority process. And so I would
just add this from my recollection.
This was all happening in the period from 1993 to 1995. As
you'll remember, Congress changed significantly in 1994, and
the standards came under intense scrutiny and criticism. The
regulatory process was under intense criticism after OSHA had
begun to develop its priority list. And so it became almost
impossible to move forward with any priorities.
The debate became kind of trivialized in some ways. OSHA
had adopted or was trying to adopt its blood-borne pathogen
standard, which resulted in protection of healthcare workers
from needle sticks and protection from HIV and AIDS. But the
debate became a debate about whether or not OSHA had killed the
tooth fairy. That dominated the public airwaves for weeks and
months at a time, and under those circumstances, it became very
difficult to stick to OSHA's priority list.
The Chairman. Well, my recollection is that during the
1970s, 1980s, 1990s, every once in a while, that story would
pop up about how ridiculous OSHA was. I remember out my way, a
farmer would put a toilet in the middle of the field that said,
``Thanks, OSHA,'' that they had to put toilets in their fields
and stuff, which was not really true. But, nonetheless, it
evoked a lot of pictures and a lot of inflammatory types of
comments and stuff.
But there was always something that someone would pick out
that they thought was a ridiculous rule or--I don't remember
the tooth fairy issue, but I do remember others. And then that
always seemed to then just keep us from really promoting OSHA
and promoting this kind of rulemaking, much to the detriment of
all the people whose pictures we see out here today.
Well, I thank you all very much. I think this has been a
good session.
Mr. Ward, thank you.
Dr. Silverstein, Ms. Rabinowitz, Mr. Sarvadi, thank you
very, very much for your testimony and input.
The record will remain open for 10 days for other
submissions. With that, the committee will stand adjourned.
And, again, I want to thank all of the people who came here
today. I just want you to know your presence has not gone
unnoticed. We've noticed it, and, believe me, it has an impact
on what this committee does. And this committee is going to
move ahead on some OSHA things, I can assure you.
Thank you.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of The American Composite
Manufacturers Association \1\
---------------------------------------------------------------------------
\1\ 3033 Wilson Blvd., Suite 420, Arlington VA 22201. Contact: John
Schweitzer, (703) 525-0511.
---------------------------------------------------------------------------
Chairman Harkin and Ranking Member Enzi, we appreciate the
opportunity to submit this statement into the record of this important
hearing on OSHA rulemaking.
The American Composites Manufacturers Association is the national
trade group for the composites industry. Our members companies use
combinations of styrene polyester thermoset plastic resin, glass and
other materials to make underground gasoline storage tanks and
pollution control equipment, wind turbine blades, modular tub/shower
units and bathroom vanities, ballistic panels and armor for military
vehicles, fiberglass recreational boats, automotive, truck and
motorhome components, window lineal and ladder rail, bridge decks and
concrete reinforcing bars, playground equipment, components for
commercial and military aircraft, signs and building fascia, and
thousands of other composites products, as well as the suppliers of raw
material to this industry. Our industry is comprised of some 3,000
small- and medium-sized companies, many family-owned, employing over
250,000 Americans, with facilities in almost every congressional
district.
The title of this hearing suggests a concern that OSHA's standard-
setting process takes too long, and that the delay in issuing a
standard results in additional injuries, illnesses and deaths that
would have been avoided had the rule been issued sooner. With respect
to the first premise, we agree that OSHA sometimes takes significantly
longer than should be necessary to develop and issue a final rule. We
respectfully disagree with those who suggest the delays are due to
excessive legal requirements governing OSHA's standard-setting process.
We believe those requirements are essential to protect employers, jobs,
our economy and our quality of life from unreasonably burdensome and
unnecessary regulatory mandates.
The premise that the delay in issuing rules results in a readily
quantifiable harm to employees that would have been avoided by earlier
adoption of the rule may be emotionally appealing, but, for many
reasons, is overly simplistic. The idea that Congress should reduce or
eliminate fundamental legal protections that interfere with more rapid
agency action suggests an ends justify the means approach to the issue.
Rather than taking away what are recognized as fundamental legal
protections for the regulated community, OSHA, with help from NIOSH,
needs to streamline the existing rulemaking process so that it is more
efficient and makes more effective use of available resources.
The primary objectives of our statement are to assist the Congress
and OSHA in identifying factors that lead to unreasonable delays and
inefficiencies in the OSHA rulemaking process, and measures that would
help to streamline the process. However, before proceeding to address
those issues, we believe it is important to provide the Congress with
an additional perspective on the complexity of assessing the potential
impacts of a delay in issuing an OSHA standard.
the potential impacts of a delay in issuing an osha standard
Despite assertions that OSHA has been unable to issue the standards
needed to protect America's workers from workplace hazards, BLS
statistics demonstrate that workplace fatality, injury, and illness
rates have been declining steadily during the entire period of OSHA's
existence. That includes the more recent period that is the focus of
the GAO report presented to Congress today and is characterized as one
with few new standards. Furthermore, statistics have consistently
demonstrated that, on average, people are more likely to be injured at
home than at work.
Efforts to convert OSHA's numerical guestimates of the benefits of
a rule--in terms of injuries, illnesses or deaths that supposedly would
be prevented--in a quantification of the harm that resulted from the
absence of the rule are clearly misplaced. As part of the required
showing that a proposed rule would result in a significant improvement
in workplace safety, OSHA guestimates the annualized number of
injuries, illnesses and/or deaths that would be prevented by adoption
of the rule, and the courts defer to those estimates. However, there is
no statistical validity to those numbers and it would be highly
inappropriate to assert that those guestimated annualized benefits
would be ``lost'' on a day-for-day basis for each day of ``delay'',
even if one assumes a static situation.
However, the period covered by the development of an OSHA standard
is not a static situation. During that period, OSHA typically
identifies and communicates its concerns about the safety of a practice
or condition through various means, including OSHA guidance documents,
initiation of an OSHA rulemaking and OSHA enforcement actions. When
that occurs, employers will respond in a variety of ways to address the
practice or condition of concern. They do not ignore the issue until
OSHA adopts final rule. This point is clearly demonstrated by the
extensive, ongoing activities at workplaces across the country to
address the hazards of combustible dust. Employers have been active
participants in a massive combustible dust education and outreach
effort by OSHA, NFPA and many other organizations. Employers have
adopted new engineering measures for new facilities and engaged in
massive retrofits of equipment to control ignition sources and reduce
dust accumulations. As a general rule, OSHA does not attempt to measure
or take these material changes in the field into account during the
course of a rulemaking because the agency understandably prefers to
prepare its feasibility and cost analyses based on a snapshot or fixed
point in time rather than attempting to model a dynamic situation.
If OSHA was permitted to take shortcuts to rush a rule through the
process, we can reasonably expect it to lead to the adoption of an
overly burdensome and possibly unnecessary rule. That rule would divert
limited employer resources away from other safety and environmental
needs, and quite possibly drive businesses and jobs overseas.
Finally, if OSHA determines that there is a hazard that needs to be
addressed on an interim basis while a new rule is being developed, or
an existing rule is being amended, OSHA may turn to enforcement
measures based on application of the General Duty Clause as well as
other existing standards. OSHA has made extensive use of the General
Duty Clause and existing OSHA standards to address the hazards of
combustible dust.
Extended delays in OSHA rulemakings can and have also imposed
significant additional costs on employers. As the period of time over
which OSHA develops a rule increases, so does the probability that
personnel with expertise and institutional knowledge in the area of a
particular rulemaking will no longer be available. This is true for
both OSHA and an employer's in house personnel. For example, in the
case of OSHA's Lockout/Tagout Standard, the project officer (lead
technical person) for that rulemaking, in what is now the Directorate
of Standards and Guidance, retired from the agency right after OSHA
published the notice of proposed rulemaking. We believe that untimely
change in OSHA personnel had a severe adverse impact on the utility of
the final rule, and that OSHA, employers and employees continue to live
with and work through the fundamental shortcomings of that rule with
great frustration and mixed results.
the critical role of omb in the osha rulemaking process
OMB intervention in the OSHA rulemaking process remains crucial to
protect the employer community from unanticipated and unnecessary
regulatory mandates that would likely survive a court challenge. It is
also important to note that the severe implementation problems posed by
the Lockout/Tagout Standard probably would have been insurmountable if
OMB had not intervened during its review of the final rule. That
intervention resulted in the addition of a critical provision--commonly
referred to as the ``minor servicing exemption''--before the final rule
was published in the Federal Register.
Some have asserted that the OSHA rulemaking process is more robust
than the minimal protections found in the Administrative Procedures Act
and, therefore, the interests of the regulated community are already
adequately protected without OMB oversight. That view overlooks several
fundamental considerations, the most significant of which is the
principle under which the courts defer to an agency's interpretation of
its ambiguous rule, even if the agency intentionally adopted the rule
with ambiguous language to provide it with the freedom to effectively
amend the rule without notice and comment rulemaking and to immunize
its actions from judicial review.
This unfortunate and inappropriate practice is not unique to OSHA
and was explicitly recognized by the U.S. Court of Appeals for the D.C.
Circuit: \2\
---------------------------------------------------------------------------
\2\ Appalachian Power Company v. Environmental Protection Agency,
208 F.3d 1015,1020 (D.C. Cir. 2000).
The phenomenon we see in this case is familiar. Congress
passes a broadly worded statute. The agency follows with
regulations containing broad language, open-ended phrases,
ambiguous standards and the like. Then as years pass, the
agency issues circulars or guidance or memoranda, explaining,
interpreting, defining and often expanding the commands in the
regulations. One guidance document may yield another and then
another and so on. Several words in a regulation may spawn
hundreds of pages of text as the agency offers more and more
detail regarding what its regulations demand of regulated
entities. Law is made, without notice and comment, without
public participation, and without publication in the Federal
Register or the Code of Federal Regulations. With the advent of
the Internet, the agency does not need these official
publications to ensure widespread circulation; it can inform
those affected simply by posting its new guidance or memoranda
or policy statement on its web site. An agency operating in
this way gains a large advantage. ``It can issue or amend its
real rules, i.e., its interpretative rules and policy
statements, quickly and inexpensively without following any
statutorily prescribed procedures.'' Richard J. Pierce, Jr.,
Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L.REV. 59,
85 (1995). [footnote omitted] The agency may also think there
is another advantage-immunizing its lawmaking from judicial
---------------------------------------------------------------------------
review.
What the D.C. Circuit understandably declined to say was that this
unfortunate practice is the logical outgrowth of decisions by the U.S.
Supreme Court holding that the courts should defer to an agency's
reasonable interpretations of its ambiguous rules. OSHA must make a
diligent effort to separate itself from this paradigm because, as long
as OSHA continues to employ that strategy, the regulated community will
be understandably reluctant to support the agency's rulemaking efforts.
Furthermore, the process and procedural rules followed in the
informal OSHA rulemaking are hardly what one would describe as robust.
It appears that anyone, other than a minor, who takes the time to file
a minimal notice of intent to appear may testify at an informal OSHA
rulemaking hearing. On the other hand, an employer that did not
recognize its interest in the matter in time to file a notice of intent
to appear at the hearing is precluded not only from offering testimony
or cross-examining a witness at the hearing, but, under the applicable
OSHA rules, is arbitrarily precluded from filing post-hearing comments
or post-hearing briefs in the proceeding.
At the hearing, witnesses are permitted to testify as to any
matters relevant to the proceeding. There is no Daubert gatekeeping
function to screen out the testimony of a witness who relies on hearsay
anecdotes and lacks the expertise that would be required to testify on
the subject in a trial court. The amount of time allowed for both
direct testimony and cross-examination is limited. Witnesses are not
placed under oath and are not subject to any sanctions if they evade or
decline to answer the questions posed to them on cross-examination.
The official OSHA witnesses testify on the first panel on the first
day of the hearings and do not make themselves available for further
questioning on the record. During that initial OSHA panel testimony,
when a question is posed to the OSHA witnesses as to how a particular
provision will be interpreted by compliance personnel, the OSHA
witnesses rarely if ever provide a substantive response. The typical
response is along the lines of ``we are still considering that question
and would appreciate your input on it.'' There would never be adequate
time during the time allotted for the OSHA panel at the informal
hearing to go through a comprehensive discussion and evaluation of the
economic impact and technical and economic feasibility issues raised by
the proposal.
When a non-OSHA witness testifies, counsel for OSHA insists on
conducting the final cross-examination of the witness after cross-
examination of the witness by all other participants has been
completed. That allows OSHA to conduct cross-examination of the witness
after hearing all of the other cross examination while precluding any
other participant from re-crossing the witness to address statements
made by the witness during the DOL/OSHA cross-examination of the
witness. In short, for the reasons noted above, and others, it is clear
that the regulated community will continue to rely on OMB to provide
the necessary executive branch oversight and relief from inappropriate
agency actions.
recommendations
We believe that OSHA can substantially improve the efficiency and
effectiveness of the standards-setting process and urge the agency to
carefully consider the following suggestions:
1. NIOSH Should, Consistent with its Statutory Mandate, Support
OSHA Rulemaking by Providing OSHA With Both a Balanced Risk Assessment
and Practical Research on What is Technically and Economically Feasible
to Enable OSHA to Formulate and Adopt Necessary and Appropriate
Occupational Safety and Health Standards in an Efficient Manner.
Through the OSH Act, ``Congress charged NIOSH with recommending
occupational safety and health standards.'' That means Congress charged
NIOSH with recommending ``occupational safety and health standards'' as
that term is used in the OSH Act and interpreted by the decisions of
the U.S. Supreme Court. The term cannot mean one thing for NIOSH and
another for OSHA. For both NIOSH and OSHA, this term refers to
mandatory control measures that are technically, analytically and
economically feasible, whether the measure is a standalone PEL, or a
PEL in a comprehensive substance-specific standard that includes a PEL,
an action level and the traditional ancillary requirements.
The process of developing a health standard would be far more cost-
effective if NIOSH did what it acknowledges was expected of it under
the OSH Act--if NIOSH recommendations were based on an integrated
technical and economic feasibility analysis rather than the more
theoretical technical feasibility analysis found in its traditional
criteria documents. Research is not limited to reviewing toxicological
studies and performing risk assessments. It also includes researching
whether recommended control measures are technically and economically
feasible.
For example, in the recently issued draft criteria document on
diacetyl, NIOSH stated that engineering controls, such as general
ventilation or dust collection, are feasible, without considering EPA
requirements or combustible dust issues.
In its initial criteria document for hexavalent chromium, NIOSH
recommended an airborne exposure limit (1 ug/m3, 8-hour TWA) that OSHA
found to be technically infeasible--impossible for some sectors and
requiring an unacceptably high use of respiratory protection for others
(52 percent of affected employees). In its 2005 post-hearing comments
in the OSHA chromium rulemaking (Item 9 on pp. 9-10), NIOSH did
acknowledge the concern that a PEL of 1 ug/m3 would result in excessive
use of respirators. However, that was very late in the process.
Meanwhile, because NIOSH made a recommendation based on aspirations
rather than a sound feasibility analysis, the business community lived
with years of uncertainty that, as a practical matter, should have come
to an end only in 2009 when the PEL of 5 ug/m3 and AL of 2.5 ug/m3 were
upheld by the U.S. Court of Appeals Third Circuit. However, in 2008,
for reasons that remain unclear, our understanding is that NIOSH issued
a draft criteria document with a REL of 0.2 ug/m3 based on the same
risk assessment OSHA had relied on in setting a PEL of 5 ug/m3. We
believe NIOSH needs to collect and analyze all of the data needed to
ensure its recommendations have real world application and are not
academic risk assessment exercises that create unrealistic
expectations, and needlessly expose the business community and the jobs
they create to these kinds of uncertainties.
What is needed from NIOSH is an integrated technical and economic
feasibility analysis based on the best available data. Under the
current OSHA rulemaking process, OSHA, either directly or through a
contractor, takes years to collect and analyze the minimum amount of
data it believes is necessary to support a proposed rule. Industry then
has only the relatively short time allowed by the rulemaking to
organize and collect additional data. Agencies cannot expect industry
to be continuously collecting and updating data from the time a NIOSH
criteria document is issued. For example, the NIOSH criteria document
on hexavalent chromium was issued in 1975 and the NPRM was issued in
October of 2004.
Rather than continuing the current inefficient division of labor,
NIOSH could facilitate and manage the operation of stakeholder groups
working to prepare pre-rulemaking documents. The pre-rulemaking process
and documents generated from it would provide OSHA a head start in
promulgating a standard by:
Summarizing and incorporating stakeholder-provided data on
hazards, exposures, risk assessment and the technical and economic
feasibility of various compliance options (rather than theoretical
control measures) into its recommendations;
summarizing relevant NIOSH-sponsored research or analysis,
conducted to fill in data gaps on hazards and exposures, identify and
characterize compliance options (rather than theoretical control
measures), and/or evaluate their technical and economic feasibility;
identifying points of agreement among stakeholders; and
identify points of disagreement that will need to be
resolved by OSHA during formal rulemaking.
Pre-rulemaking documents could serve as a resource for employers
during the time it takes OSHA to promulgate final rules.
In short, we believe, at a minimum, NIOSH must address technical
feasibility in a meaningful way that advances the cooperative
development of occupational safety and health standards rather than
suggesting theoretical approaches that create false expectations as to
what is feasible. We also believe it is critical for NIOSH, in
cooperation with OSHA and all stakeholders, to effectively address
economic feasibility. The examination of technical feasibility
independent of economic feasibility tends to become an academic
exercise that generates impractical if not misleading conclusions.\3\
---------------------------------------------------------------------------
\3\ Dr. Michael Silverstein, in his statement for the hearing,
makes the following recommendation:
The OSH Act directs NIOSH to develop scientific criteria for OSHA
rules and to publish such criteria annually. In its early years NIOSH
developed a substantial number of detailed criteria documents with
recommendations for new OSHA rules, but OSHA rarely acted on these
recommendations and NIOSH stopped producing them. NIOSH should work
with OSHA to develop new criteria documents that will provide the kind
of details on exposures, risks, technological and economic feasibility
that OSHA needs to support new rules.
ACMA shares this view. One of the primary reasons OSHA rarely acted
on the NIOSH criteria documents is that the documents did not include
the ``kind of details on exposures, risks, technological and economic
feasibility that OSHA needs to support new rules.''
---------------------------------------------------------------------------
2. Ensure That OSHA Standards Writers Have Practical, Hands-on
Experience With the Hazards to be Addressed and the Industries.
OSHA has previously recognized the need for its compliance
personnel to be knowledgeable about the industrial operations they are
inspecting and the application of OSHA standards to those operations.
We believe the same considerations are even more significant when one
person or a mall group of OSHA professionals are developing a standard
that will apply to as many as 60 million workers at 5 to 8 million
worksites across the United States.
OSHA standards writers (developers) currently place too much
reliance on surveys and site visits by its outside contractors. The
OSHA standards writers need to go on more site visits and educate
themselves to the point where they can understand and appreciate how
the proposed rule would be implemented, the impact it would have on
affected operations, whether it is feasible and practical, whether it
would achieve the desired results, and whether it would provide the
most cost-effective approach for controlling the hazard (``the Critical
Assessments''). Every standards writer should have field experience as
a compliance officer. If a standards writer does not have that field
experience, the standards writer should be required to accompany one or
more compliance officers on an appropriate number and type of
inspections until the person develops sufficient knowledge to perform
the Critical Assessments.
The rulemaking process contemplated by the OSH Act and the APA
provides OSHA with an opportunity to educate itself fully on the matter
it proposes to regulate and to obtain the best reasonably obtainable
information needed to fully address the applicable legal criteria.
Instead, it appears that OSHA typically settles for the minimally
required ``best available information'' that it believes would be
adequate to satisfy its legal obligations. We recognize that OSHA does
not have unlimited funds to conduct studies, research and surveys. On
the other hand, OSHA can be penny-wise and pound-foolish in limiting
the number and scope of employer surveys and site visits (subject to
OMB approval under the Paperwork Reduction Act) to the point where OSHA
does not obtain the information needed to understand the adverse
impacts of the proposed rule and proceed with an alternative and far
more cost-effective approach.
3. Ensure Effective Involvement and Coordination Between the OSHA
Standards Writers and the Directorate of Enforcement Programs.
Unfortunately, the Directorate of Standards and Guidance (DSG)
develops and promulgates a standard with very limited and clearly
inadequate involvement of the Directorate of Enforcement Programs (DEP)
in developing the rule. DSG then turns the completed standard over to
the DEP, and DEP develops a compliance directive for its inspectors to
clarify, fill in the gaps and more fully complete the rulemaking. If
that was not the case, there would be far less need for substantive
interpretations of the new rule in subsequent filed directives and
letters of interpretation. One or more professionals from DEP should be
assigned to the project team for every OSHA rulemaking and, during the
informal hearing, should be prepared to answer substantive questions on
how the agency intended to interpret the provisions of the rule at the
time they were drafted and whether there is any change in the agency's
thinking.
DSG can and should more effectively utilize the knowledge and
experience of OSHA compliance officers in assessing the practicality,
feasibility and expected impact of a draft proposed rule. OSHA conducts
approximately 40,000 inspections per year and should establish a
protocol that would allow OSHA to take advantage of the opportunity to
have its field personnel gather information and perform appropriate
surveys and research during those inspections with the understanding
that this aspect of the visit would be treated as a consultation visit.
The employer would be required to abate any serious violations
identified by OSHA during this consultation visit, but would not be
subject to any enforcement action unless it failed to abate the
violation within a reasonable time.
4. Ensure Effective Involvement and Coordination Between the
Directorate of Standards and Guidance and the Directorate of
Construction.
We recognize that there are major distinctions between most General
Industry activities and most Construction activities and support the
decision to maintain a separate Directorate of Construction. That being
said, we believe the Directorate of Standards and Guidance (DSG) and
the Directorate of Construction should have either joint or concurrent
rulemakings whenever there is a hazard addressed by both directorates.
Otherwise, there will be many situations (1) where it is unclear
whether the General Industry or Construction rule applies, or (2) where
both the General Industry and Construction rule will apply at the same
time, depending on the specific task or employer involved, and they
will have different requirements. In many cases, the hazards presented
by construction work are identical to the hazards presented by General
Industry maintenance work and the affected parties (i.e., employers,
employees, and OSHA) are left to make an often arbitrary decision as to
which rules apply. The pending OSHA rulemakings on fall protection in
General Industry and confined spaces in construction illustrate these
concerns. We congratulate OSHA for holding the concurrent pending
rulemakings on electric power generation in General Industry and
Construction in an effort to avoid these concerns.
5. OSHA Should Make a Diligent Effort to Separate Itself from the
Rulemaking Paradigm Described in Appalachian Power Company.\4\
---------------------------------------------------------------------------
\4\ Appalachian Power Company v. Environmental Protection Agency,
208 F.3d 1015,1020 (D.C. Cir. 2000).
---------------------------------------------------------------------------
Rather than ducking the hard issues and intentionally drafting an
ambiguous rule with the expectation that the courts will later defer to
the agency's interpretation of that ambiguous rule, OSHA should have
the courage to either explicitly resolve those issues or acknowledge
that they are not addressed by the rule.
Response to Questions of Senator Harkin and Senator Enzi by Michael
Silverstein, M.D., MPH
Dear Senators: Below are my responses to questions sent after the
April 19, 2012 hearing entitled: ``Time Takes its Toll: Delays in
OSHA's Standard-Setting Process and the Impact On Worker Safety.''
______
Question 1. What quantifiable costs are passed on to society when a
worker gets hurt?
Answer 1. In addition to worker compensation costs (medical bills,
vocational rehabilitation, partial wage replacement, legal costs,
pensions, and program administration) the quantifiable costs include
the following: medical and disability costs above those covered by
worker compensation; lifetime loss of earnings related to loss of
function, skills and seniority; recruitment, training, wage and benefit
costs for replacement workers; reduced productivity, product quality
and profits; medical and wage loss costs for unreported work-related
injuries and illnesses. Estimates for the ratio of indirect to direct
costs range from 1:1 to more than 6:1. The most recent study (Leigh,
see below) estimates total annual costs of $250 billion with $183
billion of this due to indirect costs such as those listed above, or an
indirect to direct cost ratio of 2.7:1. The two best sources for more
detailed information about these costs are:
Cost-Benefit Analysis of the Ergonomics Standard,
Washington State Department of Labor and Industries, May 2000.
Available at http://www.lni.wa.gov/Safety/Topics/Ergonomics/History/
Documents/cba.asp.
Leigh, JP. Economic Burden of Occupational Injury and
Illness in the United States. Milbank Quarterly, 89(4):728-772. 2011.
Question 2. Why are States sometimes able to act more efficiently
than Federal OSHA?
Answer 2. There are at least three reasons. First, a few States
address workplace safety and health as a constitutional right. Where
this is the case there is a more forceful argument for equity for all
workers. For example, this provided an effective argument for extending
basic safety and health protections to agricultural workers in
Washington State, something OSHA has been unable to accomplish. Second,
the relationships among agency regulators, legislators and major
stakeholders in the business and labor communities are generally better
at the State than the Federal level. While this is by no means always
true there have been numerous examples where the State parties have
been able to work through their differences to reach mutually agreeable
decisions in a timely way. Third, under the OSHAct there is a
requirement that State programs extend all their protections to public
employees who are excluded in States where OSHA retains jurisdiction.
Question 3. Do you agree that Federal OSHA is still vitally
important even though there are effective State agencies out there?
Answer 3. Yes, for two reasons. First, Federal jurisdiction is the
only way to insure that workers in all States who are exposed to
similar risks receive equal protection under the law. While not
perfect, the current requirement that OSHA determine whether State
regulations and enforcement are ``at least as effective as'' OSHA's
provides authority for the Federal Government to hold all States to a
common minimum. However, at the present time workers in some States get
better protection than workers in others because their State program
has acted where OSHA has been silent. Equal protection would require
that when one State takes the lead OSHA steps in to expand protections
nationwide. Second, while a few States have resources adequate for
independent rulemaking at the State level most States find this
impossible to do and rely on OSHA for rulemaking that can be simply
copied at the State level.
Question 4. Is there any data on the number of injuries, illnesses,
and fatalities that could be prevented with a more expeditious standard
setting process?
Answer 4. I am unaware of any recent studies that have estimated
this in a comprehensive manner. However, each time OSHA has developed a
proposed rule it has estimated the numbers of injuries and illnesses
that would be prevented and in some cases OSHA has done look-back
studies to demonstrate actual prevention numbers. My full written
testimony provides examples for silica and lockout/tagout and I will
not repeat these here. The greatest opportunity for more injury
reduction is in the area of work-related musculoskeletal disorders
(WMSDs) that make up 30 to 40 percent of all reportable workplace
injuries and illnesses and nearly 50 percent of worker compensation
costs. The cost-benefit analysis for the Washington State ergonomics
rule (that was eventually repeated in a voter initiative) estimated
that the rule would have prevented 40 percent of WMSD injuries and 50
percent of WMSD costs.
Question 5. How can injury and illness prevention programs improve
OSHA's responsiveness to workplace hazards?
Answer 5. OSHA's current regulatory paradigm is very inefficient,
being limited to a small number of hazard specific rules supplemented
by the ``general duty clause'' which in principle covers all other
recognized hazards. However OSHA must justify each general duty
citation with affirmative evidence that the hazard is ``recognized''
and that there is a feasible means of control. This essentially
requires a fresh regulatory analysis for every general duty citation, a
burden on the agency that renders this tool unworkable except in the
most extreme circumstances. If, on the other hand, there was an OSHA
rule requiring each employer to identify hazards and establish an
injury and illness prevention program to address these hazards, the
burden of proof would lie with the employer to justify why it was not
implementing its own program.
Question 6. Is there, in fact, any solid evidence that responsible
safety and health regulation costs jobs?
Answer 6. I am not aware of any such evidence. To the contrary a
recent review for the Economic Policy Institute found a moderate
association between regulation and job creation.\1\ Moreover, an
important new study in the prestigious journal Science found that the
enforcement of OSHA regulations not only resulted in reduced worker
injuries but also did so with ``no evidence that these improvements
came at the expense of employment, sales, credit ratings, or firm
survival.'' \2\
---------------------------------------------------------------------------
\1\ Shapiro I. & Irons J. 2011. Regulation, Employment and the
Economy: Fears of Job Loss are Overblown, Economic Policy Institute,
Washington, DC.
\2\ Levine D., Toffel M., Johnson M. Randomized government safety
inspections reduce worker injuries with no detectable job loss.
Science. 336, 907-11. 2012.
Question 7. What action do you recommend to Congress to improve the
OSHA standard setting process?
Answer 7. Require that OSHA periodically update its rules to bring
them in line with generally accepted consensus standards such as the
ACGIH threshold limit values, with reduced requirements for significant
risk and feasibility analysis. Direct OSHA to adopt specific rules
within a set time limit, such as rules for combustible dust, safe
patient handling, silica and injury/illness prevention programs.
Establish the presumption that NIOSH recommended exposure limits will
become OSHA requirements unless OSHA has a defensible reason for not
doing so. Extend applicability for all OSHA rules to all public
employees.
Question 8. What are the most important things that OSHA can do to
expedite standard setting in the absence of legislative changes?
Answer 8. Establish a short regulatory priority list, engage
NIOSH's assistance, and then adhere to a fixed timetable for
completion. This may not be possible without the cooperation of OMB.
Question 9. Are there any new Executive orders or modifications of
existing Executive orders that you believe would improve OSHA's
rulemaking process?
Answer 9. Exempt OSHA from the requirements of Executive Order
12866, based on the adequacy and robustness of the existing OSHA
rulemaking process.
Question 10. Should Congress require that OSHA periodically update
Permissible Exposure Limits?
Answer 10. Yes, see #7 above.
Question 11. How should OSHA use national consensus standards to
update exposure limits?
Answer 11. See #7 above.
Question 12. Should OSHA have the ability to update standards en
masse or must they do so one at a time?
Answer 12. See #7 above.
Question 13. Should Congress set a deadline for OSHA to issue a new
silica standard? Are there any other hazards in which Congress should
intervene and mandate OSHA action?
Answer 13. Yes, see #7 above.
Response to Questions of Senator Harkin and Senator Enzi
by Randy Rabinowitz
OMB Watch,
Washington, DC 20009,
May 25, 2012.
Hon. Tom Harkin, Chairman,
Health, Education, Labor, and Pensions Committee,
U.S. Senate,
Washington, DC 20515.
Dear Senator Harkin: My responses to questions sent to me after
the April 19, 2012 hearing entitled: ``Time Takes its Toll: Delays in
OSHA's Standard-Setting Process and the Impact On Worker Safety'' are
included with this letter. I have grouped my responses to questions
from Senator Harkin separate from my responses to questions from
Senator Enzi.
If you have any further questions, please feel free to contact me.
Very truly yours,
Randy Rabinowitz,
Director of Regulatory Policy.
______
senator harkin
Question 1. Success of earlier OSHA standards.
Answer 1. Dr. Silverstein's testimony describes the health benefits
of several early OSHA health and safety standards, from those reducing
lead exposure to those mandating lockout/tagout of energized equipment.
In a 1995 study, ``Gauging Control Technology and Regulatory Impacts in
Occupational Safety and Health,'' the now-defunct Congressional Office
of Technology Assessment conducted retrospective case studies for eight
past OSHA rulemakings--five involving health standards and three
involving safety standards. The cost estimates for OSHA's 1974 vinyl
chloride standard considered during rulemaking exceeded $1 billion, but
a survey of the polyvinyl chloride production industry conducted after
the standard went into effect concluded that the actual compliance
costs were in the $228-$278 million range. OSHA's final cost estimate
for its 1978 cotton dust standard projected annual compliance costs of
$283 million, but OTA concluded that actual costs amounted to only
about $82.8 million per year because as a result of the standard the
textile industry modernized and productivity at its plants improved.
OSHA estimated in the early 1980s that its occupational lead exposure
standard would cost the industry $125 million, but actual costs as
assessed retrospectively by OTA amounted to only around $20 million.
Similarly, OSHA estimated in 1987 that its formaldehyde standard would
impose $11.4 million in costs on the industry, but actual costs were
only $6.0 million, in part because the industry moved rapidly to
substitute low-formaldehyde resins. In each of these instances, OSHA
achieved significant health benefits at a fraction of the predicted
cost.
Question 2. Public input into OSHA rulemaking.
Answer 2. OSHA rulemaking affords stakeholders, and particularly
business, many opportunities to voice their support or opposition to
any standard the agency is considering. Informally, OSHA often consults
with interested parties in deciding whether a hazard should be the
subject of regulation and sometimes holds public meetings or Web chats
to get input from interested parties. For construction regulations,
OSHA is required to consult with the Advisory Committee on Construction
Safety and Health. Often, OSHA will publish a Request for Information
or Advanced Notice of Proposed Rulemaking to obtain stakeholder input
on regulatory issues before moving forward with a proposal. When OSHA
prepares an assessment of a hazard's risks, OMB requires that it seek
peer review of its scientific assessment. For significant regulations,
OSHA must convene a small business review panel and respond to its
concerns before publishing a proposed rule. And, OSHA must seek OIRA
review of any proposed rule under Executive Order 12866. OIRA logs make
clear that the review process presents an opportunity--more often for
opponents of rules than supporters--to urge OIRA to insist on changes.
Most of these procedures, with the exception of SBREFA panels and
review by the Construction Advisory Committee are not mandated by
statute.
Once OSHA publishes a proposed rule, the OSH Act requires that it
provide at least 30 days for public comment, although in practice OSHA
always allows more time for comment. If any party asks for a public
hearing during the comment period, the OSH Act requires that OSHA hold
one. OSHA regulations provide that during the hearing, an ALJ presides
and any party may present testimony or question witnesses. By practice,
OSHA provides a period for post-hearing comment and a separate period
for post-hearing arguments. After the rulemaking record closes, but
before a final rule is published, OSHA must again seek review of its
rule by OIRA under Executive Order 12866. OIRA review usually offers
industry, but not labor, yet another opportunity to comment on the
rule.
OSHA's final rule must be accompanied by a statement of reasons for
the rule. The statement of reasons, or preamble, must demonstrate that
OSHA's standard addresses a significant risk of material impairment in
the workplace, the standard would reduce or eliminate that significant
risk, and is both technologically and economically feasible for
industry to implement. OSHA must respond to all significant comments
and objections to its rule. Any party may seek judicial review of an
OSHA standard. Courts will vacate a standard if OSHA has not adequately
explained its rationale or demonstrated that substantial evidence in
the rulemaking record supports its conclusions.
Question 3. Regulatory reform proposals would further delay OSHA
rulemaking.
Answer 3. Unfortunately, recent regulatory reform proposals would
make the OSHA standard-setting process more burdensome. Four separate
regulatory reform proposals are pending in the Senate: the Regulatory
Accountability Act (S. 1606), the Regulations from the Executive in
Need of Scrutiny (REINS) Act (S. 299), the Regulatory Flexibility
Improvements Act (S. 1938), and the Regulatory Time-Out Act (S. 1538).
These bills, and others like them, would change the regulatory process
in different ways but would have the same ultimate result: more delay,
fewer standards to protect workers, and more illness and injury among
exposed workers.
Regulatory Accountability Act (S. 1606)
The Regulatory Accountability Act (RAA) is a breathtakingly broad
bill that would fundamentally rewrite the Administrative Procedure Act
(APA). Currently, there are more than 110 separate procedural
requirements in the rulemaking process \1\; the RAA would add more than
60 new procedural and analytical steps. Commentators have estimated
that the RAA would add at least 21 to 39 months to the rulemaking
process for the most important rules, meaning that the average OSHA
rulemaking would take more than 12 years to complete--potentially
spanning four different presidential administrations.\2\
---------------------------------------------------------------------------
\1\ See Mark Seidenfeld, A Table of Requirements for Federal
Administrative Rulemaking, 27 Fla. St. L. Rev. 533 (2000), available at
http://www.law.fsu.edu/journal/lawreview/downloads/272/Seid.pdf.
\2\ Testimony of Sidney A. Shapiro, University Distinguished Chair
of Law, Wake Forest School of Law, at Hearing on H.R. 3010, The
Regulatory Accountability Act of 2011, before the H. Comm. on the
Judiciary, 112th Cong. 4 (Oct. 25, 2011) at 6.
---------------------------------------------------------------------------
OSHA rulemaking already includes a process that gives participants
many opportunities to present their views and to challenge those with
opposing views. It does so in an open process. The RAA would supplant
these proven procedures with a more adversarial process. It would
mandate cost-benefit analysis, overturning the Supreme Court's ruling
in the Cotton Dust case. It would require that OSHA always use the
lowest cost rule, leaving workers with less protection, probably
nothing more than a dust mask to protect themselves from known
carcinogens. Further, it authorizes the courts to disrupt the
rulemaking process before it has been completed. Each of these changes
would complicate rather than simplify rulemaking, and delay worker
protections.
Regulations From the Executive in Need of Scrutiny (S. 299)
The Regulations from the Executive in Need of Scrutiny, or REINS
Act, would reinsert Congress into the rulemaking process by requiring
that both houses of Congress approve each major rule, with no
alterations, within a 70-day window. If either chamber fails to approve
the rule, it will not take effect and cannot be reconsidered until the
next congressional session. Given the polarized character of Congress
today, this law is a recipe for a freeze on new rules.
Such an affirmative approval requirement would turn the current
process upside down. Congress already has substantial power to
influence agency rulemaking: through its oversight power; through the
appropriations process; and under the Congressional Review Act of 1996.
There is no reason to require an affirmative vote of Congress before a
rule takes effect.
The REINS Act would waste agency resources. For example, it took
OSHA more than 10 years to publish a standard regulating the operation
of cranes and derricks at construction sites, even though both industry
and unions agreed a standard was needed. If the REINS Act became law,
inaction by Congress would block the rule from going into effect,
wasting the significant resources OSHA had invested in developing the
rule.
Regulatory Flexibility Improvements Act (S. 1938)
The Regulatory Flexibility Improvements Act would expand a range of
rules covered by the Regulatory Flexibility Act to include those that
have a reasonably foreseeable indirect effect on small businesses;
establish more onerous requirements for the initial and final
regulatory flexibility analyses, including an estimate of cumulative
impacts on small businesses; allow the Chief Counsel for Advocacy of
the Small Business Administration to issue rules to govern Federal
agencies' rulemaking procedures; and establish a more onerous
requirement for the notice that Federal agencies must give the Small
Business Administration prior to publishing a proposed rule.
OSHA is already required to analyze the impacts of its standards on
small business, consult with small business owners and the SBA about
those impacts, and make changes to its rules where appropriate to
minimize those impacts. Additional analysis of small business impact
duplicates the requirements in existing law. Workers in small
businesses face the same hazards as those in larger business. This bill
would do little to protect workers in small businesses or to help their
employers reduce such hazards. Moreover, it concentrates enormous power
in the hands of one appointed official in the Office of Advocacy, while
the OSHA hearing process gathers information from a host of small
business owners from all over the country.
Regulatory Time-Out Act (S. 1538)
The Regulatory Time-Out Act, which would prohibit agencies from
issuing most significant regulations for a year, is one of several
bills which would prohibit new rules. These laws would simply keep
Federal agencies from carrying out their legally defined missions of
protecting the health and safety of the American people.
When Congress passed the OSH Act in 1970, it promised workers that
OSHA would protect them from workplace hazards. Too many chemicals and
other hazards remain unregulated. The Environmental Protection Agency
has listed more than 62,000 chemicals in its Toxic Substance Control
Act Chemical Substance Inventory, but OSHA regulates worker exposures
to only 400 of them.\3\ Too many of OSHA's existing standards are based
on outdated science. They need to be upgraded to reflect current
scientific and medical research. The current rulemaking process makes
this impossible.
---------------------------------------------------------------------------
\3\ Occupational Safety and Health Administration, ``Hazardous and
Toxic Substances,'' http://www.osha.gov/SLTC/hazardoustoxicsubstances/
index.html (last visited Apr. 16, 2012).
Question 4. No evidence shows OSHA standards reduces employment.
Answer 4. A comprehensive review of the relationship between
industry regulations and job growth within those industries conducted
by the Economic Policy Institute found that most regulations result in
modest job growth.\4\ Even researchers at the Mercatus Center, a
conservative regulatory policy center, acknowledged in written comments
to House Oversight and Government Reform Committee Chair Darrell Issa,
and in testimony to that committee, that there is little evidence that
at a macro level, regulations have caused massive job loss in the
United States.\5\ There is no evidence that occupational safety and
health regulations issued by OSHA have cost America jobs.
---------------------------------------------------------------------------
\4\ Isaac Shapiro & John Irons, Regulation, Employment and the
Economy: Fears of Job Loss are Overblown, Economic Policy Institute
(2011).
\5\ Letter from Richard Williams, Ph.D., Dir. of Policy Research,
Mercatus Ctr, to Darrell Issa, Chairman, H. Comm. on Oversight & Gov't
Reform (Jan. 5, 2011) (on file with author); Testimony of Jerry Ellig,
Regulatory Analysis: Understanding Regulation's Effects, before the H.
Comm. on Oversight & Gov't Reform (Feb. 10, 2011).
Question 5. Recommendations for change.
Answer 5. I agree with the recommendations made by Dr. Silverstein.
senator enzi
Question 1. Prior consulting work.
Answer 1. Below is a list of the State and Federal agencies for
whom I have worked as a consultant during the past 10 years. This list
is based on my recollection of projects and dates because I no longer
have supporting documentation to verify the dates for these projects.
None of the consulting work involved OSHA standards discussed at the
hearing on April 19, 2012.
2000-2002--Consultant to Washington State Department of
Labor & Industries
2005-2006--Consultant to the Secretariat on Labor
Cooperation
2006--Consultant to Washington State Department of Ecology
2009-2010--Consultant to Ruth Ruttenberg & Associates
which had a contract with Michigan Department of Energy, Labor, and
Economic Growth
2010--Consultant to Project Enhancement Corp. which had a
contract with OSHA
2010-2012--Consultant to URS which has a contract with HHS
Question 2. Requests for OIRA meetings.
Answer 2. I began my employment as Director of Regulatory Policy at
OMB Watch on March 16, 2012. In that capacity, I have not requested a
meeting with OIRA.
Question 3. Setting OSHA priorities.
Answer 3. It is true that when OSHA's leadership decides to
prioritize a hazard specific rulemaking, the process moves more quickly
than would usually be the case. As I said during the hearing, I believe
the standard-setting process would be improved by requiring OSHA to set
a series of rulemaking priorities and to see those priority rulemakings
through to a conclusion. Shifting regulatory priorities is one of many
causes of delay in OSHA rulemaking.
The ergonomics example does not suggest, however, that setting
regulatory priorities more effectively will eliminate delay. In the
case of ergonomics, OSHA was able to move from proposed rule to final
rule in just over 1 year because it had invested substantial efforts
into preparing for rulemaking long before the proposed rule was
published. In reality, the rulemaking effort had begun before 1995.
Requirements for regulatory analysis imposed by Executive Order 12866,
the Regulatory Flexibility Act, and the Small Business Regulatory
Enforcement Fairness Act mean that it is, as a practical matter,
impossible to complete a hazard specific OSHA rulemaking in 1 year.
Further, by shifting, as you describe it, ``50 staffers from other
projects,'' OSHA was unable to move other standard-setting projects
forward while debating ergonomics.
Response to Questions of Senator Enzi by David Sarvadi
Question 1. I am impressed by your long career in workplace safety,
including working as a certified industrial hygienist safety consultant
to many companies and now teaching OSHA compliance seminars. During
your career have you had the opportunity to observe both unionized and
non-unionized worksites? Have you noted any difference in safety
observance between the two?
Answer 1. Overall, my experience is that the level of compliance
with safety requirements is independent of whether the workers at a
site are represented by a union. I have seen both excellent and poor
safety-related practices in both environments. Unfortunately, the
presence of a union sometimes leads to what I view as misuse of the
workplace safety process. I've had both management and union safety
representatives in my classes complain about the use of the grievance
process to shield union members from discipline for safety infractions,
and the use of safety rules to slow down production and harass
employers with OSHA complaints during periods of labor disputes.
Indeed, one critical piece of information to know in an OSHA inspection
is whether there is an ongoing labor dispute.
On the other hand, I have seen less stringent adherence to safety
practices in some non-union environments. In both cases, these seem to
be the exception rather than the rule, and I view with skepticism
published papers and comments suggesting that having a union results in
greater compliance or necessarily a safer workplace. Of the papers I
have reviewed, the authors do not take into account all of the
variables that play into safety performance or compliance, and they
typically overstate the role of having a union.
Question 2. You mention in your testimony, and the rest of the
panelists seem to agree, that involving stakeholders earlier in the
rulemaking process is going to be beneficial for the standard setting
process. You suggest that this sort of input needs to be done long
before a proposed rule is drafted, because once the Notice of Proposed
Rulemaking (NPRM) is released that new standard is largely going to
reflect that. When do you think is the appropriate time for OSHA and
other Federal agencies to begin speaking with stakeholders?
Answer 2. I think it should be done informally from the earliest
possible moment, and should continue up to the time that the proposal
is formally published as a Notice of Proposed Rulemaking (NPRM).
I also think that every rule with a meaningful economic impact or
compliance burden should go through the SBREFA process and, while
limiting the official panel participation to SERs, OSHA should make
public all documents provided to the panel, accept comments from all
interested parties, and make those comments part of the official
record. The ex parte rules really don't go into effect until the
proposal is published, and an open door policy as well as a policy of
reaching out to different affected groups up to the point where the ex
parte rules become effective (when the NPRM is published) should be the
norm. With organized labor representing only about 7 percent of the
private sector workforce, I think OSHA should be making a more
concerted effort to reach employees who are not in organized
workplaces.
Most importantly, OSHA should not conduct the peer review of the
draft risk assessment or the economic and technical feasibility
documents in secret. By comparison, EPA puts its preliminary drafts out
for public input, and holds public meetings with its peer review
panels, at which interested parties are encouraged to submit data and
make presentations, with open discussion between the scientists on the
panels and the interested parties. EPA does conduct some sessions in
private, but much, perhaps most, of the review is done in public. OSHA
(under John Henshaw) initially announced its intention to proceed in
that fashion with respect to crystalline silica, but reversed course
without any explanation. OSHA's practice of not releasing the risk
assessment and other critical documents until it issues the NPRM
undermines the legitimacy of the rulemaking process and runs counter to
commitments made by the administration to have an open and transparent
rulemaking process that provides an adequate opportunity for public
comment.
I mentioned in my testimony that OSHA could engage in a more
effective way with the interested parties through the trade
associations and professional societies that bring those interested
parties together on a regular basis. Frequent discussions in groups of
10-15 people facilitates the kind of information transfer and
understanding that I think would smooth the process. It shouldn't
always be a meeting with all interests represented. Having only one
interest group represented in the room will often make for a more
candid and flexible discussion, as it is not always possible to concede
a position with one's opponents in the room. OSHA would do well to
consider how arbitration and negotiated settlements through
intermediaries can facilitate reaching agreement, in contrast to the
more common process of having all parties present at all meetings. If
OSHA meets with one side of an issue and feels it needs the views of
the other side, it can always arrange a similar meeting to get that
input.
In addition, the current conflict of interest rules often prevent
the very people who have the most knowledge and experience with a
particular subject from informing OSHA and other agencies on that
subject during the time period when it would be most effective--simply
because they are employed by employers who would be affected by a new
or revised rule. This is short-sighted. Having such people participate
in the entire conversation will assure that all relevant information is
considered on a timely basis. Delaying their participation until after
the risk assessments and other analyses are completed and made public
places them in the enormously unfair position of having to overcome the
bias that the people involved in making the decisions have in defending
their work. Moreover, everyone involved in the process will know of the
participant's relationship to the company and financial interest in the
issue, and his or her opinion and comments will be judged in that
light. The alternative is to disregard an important and often critical
source of information, experience, and often, judgment.
Finally, the others on the panel mentioned closer cooperation with
NIOSH. That would help if NIOSH did its analysis on the same basis as
OSHA is required to do so. Currently, it is our understanding that
NIOSH does not take into account economic or technical feasibility in
its Recommended Exposure Limits (REL). That means, in my view, that the
RELs are not very helpful when OSHA is required to do so. NIOSH has
technical expertise in its Engineering Branch, among other branches,
and is tasked with reviewing and developing technological advances in
workplace hazard control. Shouldn't NIOSH's experts take practicality
into account as well?
Question 3. Can you in general terms, describe the process in
obtaining a meeting with the Office of Information and Regulatory
Affairs (OIRA)?
Answer 3. These meetings are held by OIRA in connection with its
pre-publication review of proposed or final rules under the Executive
Order 12866. Once a rule is under review by OIRA (either proposed or
final), Administrator Cass Sunstein has said that any meeting request
will be granted. The process involves contacting the person at OIRA who
is responsible for the topic in question and requesting that a meeting
be scheduled. For these meetings, OSHA (or the relevant agency) is
invited, and at the ones I have attended, they have been well
represented. Since meeting requesters do not know the substance of what
has been submitted for review, the format is usually to go over
information previously provided, with the opportunity to emphasize and
clarify in response to questions the positions and information being
provided. Indeed, at one meeting, we discussed OSHA's economic impact
analysis, and I was able to demonstrate that even a cursory assessment
by someone with real world experience would come up with a practical
calculation that was far different from OSHA's assessment. Cass
Sunstein has said that he welcomes the input from those affected by
regulations during these meetings so that his office has a clear
understanding of the rule they are reviewing.
______
Coalition for Workplace Safety (CWS),
April 19, 2012.
Hon. Tom Harkin, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
SD-428 Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: The Coalition for
Workplace Safety (CWS), a broad coalition comprised of associations and
employers dedicated to improving workplace safety through cooperation,
respectfully submits this letter in response to today's hearing titled,
``Time Takes Its Toll: Delays in OSHA's Standard-Setting Process and
the Impact on Worker Safety.''
The Occupational Safety and Health Administration (OSHA) has been
criticized as unable to proceed quickly enough to implement its
regulatory priorities due to the various requirements it must satisfy
to issue new standards. The premise underlying this criticism is that
this inability to issue more standards has somehow meant employees are
less safe. Yet, during this period when OSHA has issued few new
standards, workplace fatalities, injuries and illnesses have declined
steadily to their lowest recorded levels.
We believe these criticisms are misguided. These critics fail to
understand that the steps in OSHA's rulemaking process exist for a
reason. Congress recognized that without first examining feasibility,
economic impact, and small business impact, among other factors, OSHA
would risk pushing out poorly designed and badly supported standards
and that consequently such standards would not provide appropriate
guidance to employers to assist them in protecting their employees from
the designated hazards.
Employers and OSHA agree that workers need adequate safety and
health protections on the job. CWS believes this can be best achieved
by making agency standards as practical, science and data driven, cost-
effective and performance-oriented as possible. We understand and value
the importance of common sense policymaking based on sound scientific
evidence, with meaningful attention paid to economic analyses and
practical input from stakeholders. In addition, proper consideration
must be given to potential conflict with other requirements outside
OSHA's purview, such as environmental or transportation regulations.
Our members are committed to providing safe workplaces and striving
to improve safety in their workplaces. Ultimately, everyone benefits
when agencies work with the industries they regulate to identify and
achieve mutual goals. CWS stands ready to work with OSHA and Congress
to pursue policies that will help improve workplace safety.
Sincerely,
American Bakers Association; American Composites Manufacturers
Association; American Feed Industry Association; American Foundry
Society; American Hotel & Lodging Association; American Iron and Steel
Institute; Associated General Contractors; Associated Builders and
Contractors; Associated Wire Rope Fabricators; Brick Industry
Association; Corn Refiners Association; Food Marketing Institute;
Forging Industry Association; Heating, Air-Conditioning & Refrigeration
Distributors International; Independent Electrical Contractors;
Industrial Fasteners Institute; Industrial Minerals Association--North
America; IPC--Association Connecting Electronics Industries; Leading
Age; Motor & Equipment Manufacturers Association; National Association
for Surface Finishing; National Association of Chemical Distributors;
National Association of Convenience Stores; National Association of
Home Builders; National Association of Manufacturers; National
Association of Wholesaler-Distributors; National Cotton Council;
National Cotton Ginners Association; National Council of Textile
Organizations; National Federation of Independent Business; National
Grain and Feed Association National Marine Manufacturers Association;
National Oilseed Processors Association; National Roofing Contractors
Association; Non-Ferrous Founders' Society; North American Die Casting
Association; Printing Industries of America; Retail Industry Leaders
Association; Shipbuilders Council of America; Textile Rental Service
Association; Tree Care Industry Association; U.S. Chamber of Commerce.
______
RAND Corporation,
Arlington, VA,
April 27, 2012.
Hon. Tom Harkin, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: I am writing today to
correct a statement made at the Committee on Health, Education, Labor,
and Pensions recent April 19 hearing, Time Takes Its Toll: Delays in
OSHA's Standard-Setting Process and the Impact on Worker Safety.
David Sarvadi, Partner at Keller and Heckman LLP in Washington, DC,
was a witness in the hearing's second panel on behalf of the U.S.
Chamber of Commerce. He also submitted written testimony on behalf of
the U.S. Chamber of Commerce. In this written testimony, he refers to
research that he attributes to the RAND Corporation regarding the
greater effectiveness of consultations over inspections in preventing
injuries. RAND has not conducted research on this topic and thus is not
a source for this conclusion.
I believe he is mistaking this for research done by the Washington
State Department of Labor and Industries' research organization, Safety
and Health Assessment and Research for Prevention (SHARP).
Consultations certainly have an important role to play, but as someone
who is extremely familiar with studies in this area, I can state that
Mr. Sarvadi's interpretation of the data is not valid. Because
employers ask for consultations, those who get them are, on average,
more motivated to improve and would have done so to some degree even
without the consultation. We currently have no way of disentangling the
effect of the consultation.
The RAND Center for Health and Safety in the workplace has done a
number of studies on ways to help improve worker health and safety and
reduce the economic costs of workplace accidents and illnesses. The
Center provides rigorous, objective analysis and a neutral venue in
which to convene stakeholders from government, industry, and labor. I
am happy to discuss any of this research further and as always, please
do not hesitate to contact me with any questions or concerns.
With regards,
John Mendeloff,
Director, RAND Center for Health
and Safety in the Workplace (CHSW).
______
Keller and Heckman LLP,
Washington, DC 20001,
May 3, 2012.
Hon. Tom Harkin, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Re: Rand Corporation Letter on Voluntary Programs
Dear Senator Harkin and Senator Enzi: Thank you for the opportunity
to provide supplemental information for the record of the April 19
hearing. I was provided a copy of a letter from John Mendelhof,
director of Rand Corporation's Center for Health and Safety in the
Workplace, who wrote to you regarding a reference I made in my
testimony to a study I mistakenly attributed to them. He is correct
that the data on which I relied was from a report from the Washington
State SHARP program. I have attached a PDF of the presentation that was
the basis for my statement that employers who participate in the
voluntary consultation have lower injury and illness rates than
employers who are subject to enforcement by the State OSHA program.\1\
---------------------------------------------------------------------------
\1\ The presentation was distributed at the Midwinter meeting of
the Occupational Safety & Health Law Committee, part of the American
Bar Association's Labor and Employment Section, in Sarasota, FL, in
March 2012.
---------------------------------------------------------------------------
Several of the comparisons in the presentation show statistically
significant decreases in compensable claims for employers participating
in voluntary programs than those subject to enforcement, compared to
employers who have neither, and to a larger extent than those who are
inspected. Moreover, it is well-established that participants in the
Federal Voluntary Protection Program (VPP) have far lower rates of
injury and illness reported compared to general industry.
Mr. Mendelhof 's categorical statement that my interpretation is
``not valid'' misinterprets the inference I took from the data. I
believe my statement was that employers who voluntarily adopt strong
compliance efforts produce far more effective programs. While it is
true they are self-selected, the conclusion relevant to the policy
issue that should be drawn is that there should be more effort and more
incentives to get people into voluntary programs. We will get far more
bang for the buck by creating real incentives to sign up than anything
we do on the enforcement side. Clearly, such evidence supports the
expansion of the VPP and other incentive programs for employers to
induce them to voluntarily seek assistance and to adopt programs that
go beyond the minimum. In other words, we need to get more people to
``self-select'' into such programs!
Moreover, my experience with the current enforcement attitude is
that it is making people resent OSHA again, because the Agency is
viewed as an adversary and not as a resource. We need a debate on how
to get to the next level in our national occupational safety and health
programs. I believe the model we are now using has reached the point of
rapidly diminishing returns, and that stronger incentives for voluntary
programs would be more productive in the long run.
Thank you for the opportunity to respond and to participate in this
important discussion. I look forward to seeing the results of your
efforts.
Respectfully submitted,
David G. Sarvadi.
[Whereupon, at 12:03 p.m., the hearing was adjourned.]