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OSHA REFORM AND RELIEF FOR SMALL BUSINESS: 
WHAT NEEDS TO BE DONE? 



Y 4,BH 1:104-93 



DSHA Reforn nd Relief for Snail Bus... 

HEAUING 

BEFORE THE 

COMMITTEE ON SMALL BUSINESS 
HOUSE OP REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

SECOND SESSION 



WASHINGTON, DC, SEPTEMBER 25, 1996 



Printed for the use of the Committee on Small Business 



Serial No. 104-93 







U.S. GOVERNMENT PRINTING OFFICE 
27-530 CC WASHINGTON : 1996 



For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-054037-2 



OSHA REFORM AND RELIEF FOR SMALL BUSINESS: 
WHAT NEEDS TO BE DONE? 



Y 4.SH 1; 104-93 

DSHA Reforn nd Relief for Snail Bus... 

HEAKING 

BEFORE THE 

COMMITTEE ON SMALL BUSINESS 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

SECOND SESSION 



WASHINGTON, DC, SEPTEMBER 25, 1996 



Printed for the use of the Committee on Small Business 

Serial No. 104-93 



4' i .„ : 



'W;j/ 




«^.? / 3 ^SS7 



U.S. GOVERNMENT PRINTING OFFICE 
27-530 CC WASHINGTON : 1996 



For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-054037-2 



COMMITTEE ON SMALL BUSINESS 
JAN MEYERS, Kansas, Chair 



JOEL HEFLEY, Colorado 
WILLL^M H. ZELIFF, Jr., 

New Hampshire 
JAMES M. TALENT, Missouri 
DONALD A. MANZULLO, IlUnois 
PETER G. TORKILDSEN, Massachusetts 
ROSCOE G. BARTLETT, Maryland 
LINDA SMITH, Washington 
FRANK A. LoBIONDO, New Jersey 
ZACH WAMP, Tennessee 
SUE W. KELLY, New York 
DICK CHRYSLER, Michigan 
JAMES B. LONGLEY, Jr., Maine 
WALTER B. JONES, Jr., 

North Carolina 
MATT SALMON, Arizona 
VAN HILLEARY, Tennessee 
MARK E. SOUDER, Indiana 
SAM BROWNBACK, Kansas 
STEVEN J. CHABOT, Ohio 
SUE MYRICK, North CaroUna 
JACK METCALF, Washington 
STEVEN C. LaTOURETTE, Ohio 



JOHN J. LaFALCE, New York 

IKE SKELTON, Missouri 

NORMAN SISISKY, Virginia 

FLOYD H. FLAKE, New York 

GLENN POSHARD, IlUnois 

EVA M. CLAYTON, North Carolina 

MARTIN T. MEEHAN, Massachusetts 

NYDIA M. VELAZQUEZ, New York 

CLEO FIELDS, Louisiana 

DOUGLAS "PETE" PETERSON, Florida 

KEN BENTSEN, Texas 

WILLIAM P. LUTHER, Minnesota 

JOHN ELIAS BALDACCI, Maine 

JESSE JACKSON, JR., Illinois 

JUANITA MILLENDER-MCDONALD, 

CaUfomia 
EARL BLUMENAUER, Oregon 
XAVIER BECERRA, California 
JAMES E. CLYBURN, South CaroUna 
ELEANOR HOLMES NORTON, 

District of Columbia 
MAXINE WATERS, CaUfornia 



Jenifer Loon, Staff Director 
Jeanne M. Roslanowick, Minority Staff Director 



(II) 



CONTENTS 



Page 

Hearing held on September 25, 1996 1 

WITNESSES 
Wednesday, September 25, 1996 

Dear, Hon. Joseph, Assistant Secretary for Occupational Safety and Health, 

U.S. Department of Labor 4 

Hayden, Ed, Safety and Health Director, The Associated General Contractors 

of America, Milwaukee Chapter, Milwaukee, Wisconsin 11 

Larsen, Larry, Larsen Homes, Ltd., Englewood, Colorado, testifying on behalf 

of the National Association of Home Builders 16 

Lunnie, P.M. "Pete", Jr., Executive Director, Coalition on Occupational Safety 

and Health, Washington, DC 9 

Swanson, Kent, Nurses Available Staffing, Inc., Towson, Maryland, testifying 

on behalf of the National Federation of Independent Business 13 

APPENDIX 

Opening statements: 

Manzullo, Hon. Donald A 38 

Meyers, Hon. Jan 40 

Velazquez, Hon. Nydia 43 

Prepared statements: 

Dear, Hon. Joseph 45 

Hayden, Ed 62 

Larsen, Larry 70 

Lunnie, P.M. "Pete", Jr 78 

Swanson, Kent 85 

Additional material: 

OSHA Reinvention and Regulatory Reform 90 

National Association of Manufacturers 94 

Letter from Midco to Mr. Talent 97 

Guidelines for Workplace Violence Prevention Programs for Night Retail 

Establishments 99 



(III) 



OSHA REFORM AND RELIEF FOR SMALL 
BUSINESS: WHAT NEEDS TO BE DONE? 



WEDNESDAY, SEPTEMBER 25. 1996 

House of Representatives, 
Committee on Small Business, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 
2359, Rayburn House Office Building, the Honorable Jan Meyers, 
(Chair of the Committee), presiding. 

Chair Meyers. Good morning. At the beginning of the 104th 
Congress a clear consensus existed in Congress and within Presi- 
dent Clinton's administration that there was a need to change how 
OSHA does business with the small business community. There 
was a difference of views on how to bring about this cultural 
change, on how to end what was referred to as the "Gotcha mental- 
ity." 

The administration announced initiatives to reinvent OSHA that 
could be accomplished administratively and asserted that legisla- 
tion was really not needed. My colleague from North Carolina, Cass 
Ballenger, has spearheaded legislative proposals. Earlier this ses- 
sion he introduced H.R. 3432, the "Small Business OSHA Relief 
Act," which I am pleased to cosponsor. This bill is a modified ver- 
sion of an earlier bill which seeks to codify reform initiatives that 
the administration indicates it is already undertaking. 

Today's hearing will revisit the issue of how well OSHA has re- 
formed itself, whether legislation is needed and would be useful to 
bring about the needed changes. As has become the Committee's 
practice, representatives of the small business community will be 
empaneled with our distinguished guests from the administration, 
Secretary Joe Dear. After everyone has presented, members of the 
Committee will have an opportunity to engage the panel. I want to 
thank our witnesses and the Secretary for their participation in 
this morning's forum. 

At the end of the White House Conference on Small Business 
last year, Vice President Gore addressed the delegates and noted 
they had singled out OSHA as a top target on the small business 
hit list. He pledged that OSHA would change, stated that Secretary 
Dear had been given the ball, and then he asked the delegates to 
tell a neighbor if they experienced the change that reinvention 
would bring. If the changes did not occur, he encouraged small 
business to tell the administration. 

We will hear feedback on OSHA's implementation of specific rec- 
ommendations from the 1995 White House Conference and the Na- 

(1) 



tional Performance Review. I hope we will get a sense for the an- 
swer to the question: Has OSHA lived up to its promise to change? 

In addition, this Congress passed and enacted the Paperwork Re- 
duction Act of 1995 and the Small Business Regulatory Enforce- 
ment and Fairness Act, which includes provisions to strengthen the 
Regulatory Flexibility Act and to establish Congressional review of 
Agency regulations. Together, these two laws encompass major leg- 
islative initiatives for regulatory reform contained in the "Contract 
with America" and supported by the small business community. 
They are measured that received overwhelming support from Re- 
publicans and Democrats and the President. They are measures 
that should significantly change the way OSHA interacts with 
small business in the future. I anticipate we will receive feedback 
on whether these reforms are making a difference. 

As regards Mr. Ballenger's bill, I believe the practical provisions 
to codify a cost-benefit standard, waive penalties for the small busi- 
ness owners who correct mistakes within a specified time period, 
eliminate certain penalties for paperwork violations, and establish 
a consultation program under which small businesses can request 
an independent safety inspection without fear of penalties makes 
sense and would help OSHA change. 

I am proud to be a cosponsor. I commend my colleague for trying 
to take the administration's ideas and putting them in legislative 
form. That strikes me as a common sense step. I have mentioned 
to Secretary Dear before, many of us in Congress want to try to 
make changes to OSHA which will last beyond his tenure and that 
of other secretaries. 

We have accomplished much on behalf of small business in the 
104th Congress, including increasing the insurance deductible for 
the self-employed, a broader health insurance portability measure 
with small business benefits, regulatory relief measures, and, most 
recently, tax incentives and pension reform. 

However, the larger issue of OSHA reform is of such tremendous 
importance to small business owners. I am hopeful that forums 
such as this and legislative initiatives like the one introduced by 
Mr. Ballenger will continue efforts to make progress. We all agree 
we can be smarter about protecting workers at the same time we 
enable small businesses to create jobs, innovate and grow. 

At this time I would yield to the Ranking Member, Mr. LaFalce 
of New York. 

Mr. LaFalce. Thank you very much, Madam Chair. I believe it's 
always appropriate to have a hearing on occupational safety and 
health and what we can do to improve the safety and health of em- 
ployees in the workplace. Of course, at this juncture it's a bit late 
if we were to consider this a legislative hearing in an effort to move 
a bill in this Congress, and I don't think that is your intent. 

I do have problems, however, with the Ballenger approach and 
should that be pursued in the next Congress, I think there would 
be staunch opposition, certainly from this Member should I be re- 
elected, and I would suspect, too, from the administration should 
the President be reelected. I think it would be wise for the industry 
to get off of that horse and try to work together and say, "OK, now 
what can we do jointly, cooperatively in order to improve occupa- 
tional safety and health?" This would include improving the imple- 



mentation of our existing laws, in addition to trying to figure out 
where the laws should be changed. 

I'm very pleased that Assistant Secretary Joe Dear is testifying 
before our Committee again because I really think he's done a 
great job in trying to, on the one hand, make the OSHA law more 
user-friendly. You'll never make everylDody happy, either the em- 
ployer groups or the employee groups, because you're walking a 
tightrope and trying to reduce whatever unnecessary burdens exist 
on the employer sector and make the employees happy and trying 
to prevent any potential health or safety problem, but it's a tight- 
rope that you must walk. That's your job. 

I think certain things, though when you start saying, "Well, let's 
have a cost-benefit analysis of a proposed rule," well, it depends on 
what you mean by that. If you mean you're going to put a pre- 
mium, a dollar price tag on the life of an individual, that's just 
going a bit too far. If you mean that we have to make these reason- 
able, we have to not expect the absolute impossible, financially or 
otherwise, well, that's something else. 

Everybody comes to these issues from their own perspective and, 
as I said before at hearings on this, both my mother and my father 
had serious injuries in the workplace, which injuries were clearly 
caused by bad practices on the part of management. It's nice to 
think that those practices existed in a world that no longer exists 
today but unfortunately, that's not the case. 

My father was exposed to toxic substances in the workplace and 
had hepatitis and it affected him his entire life. My mother lost her 
fingers on a machine. There are a great many individuals in this 
Congress who could give you similar stories. 

I'm frequently asked by employers in my district to come visit 
their plants and I try to accept as many as I possibly can, the 
places of business. It's not for the purpose of investigating their 
health and safety; it's to get to know them better, to get to know 
their operations better. 

I have a 15-year-old son. When I was 16 I started working and 
I just think, "Where will my son work in the future?" I think, 
"Would I want him working here?" 

I we have to wear a lot of hats. We have to wear the hats of 
members of the Small Business Committee trying to understand 
the problems of the small business community. We also have to 
wear the hats as parents of the children and future work force, the 
present work force of America, in saying, "If these were our rel- 
atives, would we want them working in those circumstances? 
What's reasonable when it would come to our own family and 
they're part of our own family?" 

That's the approach I think we should be taking in the future — 
employer and employee. It makes good business sense to have a 
safe workplace. I mean, it is in the employer's best interest, and 
I think that most employers know this. Most employers know this 
but they don't want to be pushed too far. 

So, with those thoughts. Madam Chair, I'm glad you're having 
this hearing. I regret, because it's either the last week or the sec- 
ond to the last week of the session, that I've got a million other 
things that I had previously scheduled before I was aware of this 
hearing, so I'm going to have to bid you adieu. Thank you. 



Chair Meyers. You're going to leave me alone. 

Mr.LAFALCE. Yes. I bet you're glad about that. 

Chair Meyers. I've been abandoned by my Ranking Member. 

Mr.LAFALCE. Well, I've made her day. 

Chair MEYERS. Thank you for being here, John. 

We will start. I will light the lights. I hope that we have more 
Committee attendance later. I am aware that in the last days of 
the session there are problems. We have, I will tell all of the wit- 
nesses, the staff people of all of our members in the audience today, 
so I'm sure the word will get communicated, but I apologize for the 
Committee. We will set the lights. 

Oh, I'm glad you're here. 

Mr.BALDACCl. It's a pleasure to be with you. 

Chair MEYERS. We will set the lights and we will start with Mr. 
Dear and Mr. Dear will have 10 minutes. Then each of our wit- 
nesses will have five and then we will have questioning from the 
Committee. The reason that we are giving Mr. Dear more — he 
doesn't feel like he has to take it — is because he is alone at the 
table. 

All right, Mr. Dear. 

TESTIMONY OF THE HONORABLE JOSEPH DEAR, ASSISTANT 
SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. 
DEPARTMENT OF LABOR 

Mr.DEAR. I see some small business partners, I hope, with me 
here. 

Thank you. Madam Chair and members of the Committee, for 
this opportunity to bring you up to date on the implementation of 
the new OSHA initiatives that President Clinton, Vice President 
Gore, and Secretary Reich announced in May 1995. This is my first 
chance to update the Committee since I was here last in July 1995. 

Because of these initiatives, OSHA now emphasizes cooperative 
partnerships with employers and workers, common sense regula- 
tions written in plain language, and a new Agency culture focus- 
sing on injury and illness reduction, rather than on the number of 
inspections and penalties we issue. Our approach is improving the 
ability of OSHA to protect America's working men and women. 

At times the old OSHA was too confrontational with employers, 
often failing to distinguish between responsible employers and 
those who were neglectful of their work force. The new OSHA re- 
wards responsible employers with cooperative programs, penalty 
reductions, and other incentives. Serious violators of the law, how- 
ever, receive serious penalties. 

Firms who choose partnership, to work together with the Agency, 
will find this a cooperative relationship as we try to assist them in 
identifying and eliminating workplace hazards. Under OSHA's co- 
operative compliance programs, we're working in partnership with 
employers in almost 20 States to encourage and assist them in re- 
moving such hazards. Traditional OSHA enforcement is reserved 
for those employers who do not want to be cooperative in protecting 
their work force. 

In the past, many employers believe that OSHA did not listen to 
them when the Agency was working on new regulations that would 
affect their business. As a result, rules, they felt, turned out to be 



too complicated and difficult to understand, particularly for small 
business owners. 

The new OSHA consults with those affected by its standards at 
the earliest opportunity to ensure that new rules make sense. As 
required by the Small Business Regulatory Enforcement and Fair- 
ness Act, we involve small business employers whenever a rule 
would have a significant affect upon their business. 

That's the summary of our initiatives. I'd like now to turn to dis- 
cussions specifically with respect to where we are on the implemen- 
tation of the recommendations from the White House Conference 
on Small Business and then turn to matters related to Congress- 
man Ballenger's proposed legislation, H.R. 3234. 

The 1995 White House Conference on Small Business issued 60 
recommendations, 3 of which pertain directly to OSHA. The con- 
ference recommended, first, that Agencies periodically review all 
regulations, simplifying rules and reducing paperwork wherever 
possible. Consistent with an executive order by President Clinton, 
OSHA responded by conducting a page by page review of our exist- 
ing rules to identify those which were outdated, duplicative or con- 
flicting. We then took a number of actions. 

First, we've eliminated 645 pages of duplicative regulations that 
affected the construction and shipyard industries. Then, last 
March, OSHA removed more than 275 more pages of our rules by 
combining a number of regulations dealing with cancer-causing 
chemicals and eliminating regulatory text that discussed certain 
testing procedures and specifications. 

Two weeks ago we became more user-friendly by proposing a re- 
write of our standard on access and egress. Here you see our old 
standard on access and egress. That's just the definition. Even if 
you could get up close and read it, I think you would find it some- 
what confusing. It's got a formula and a lot of people aren't even 
sure what egress is. 

We've written and have published in the Federal Register a revi- 
sion of this standard. We now call it exit routes, and the definition 
which replaces that complicated table is down there. You can see 
it; it's substantially simpler. In all, our proposed revision of the ac- 
cess-egress standard, changing it to exit route, will reduce the 
number of words by almost 40 percent. 

We believe, and we published this for public comment, but I be- 
lieve that this is an indication of what we can do to more than 600 
pages of OSHA regulations like these that were adopted in 1971 
and 1972 without any public hearing. These are old consensus 
standards that were adopted by reference when OSHA began oper- 
ation. These plain language simplifications will go a long way to- 
ward making OSHA regulations easier for business owners and for 
workers to understand. 

Depending on how our budget fares in the next several days, 
we've made specific requests for appropriation to accelerate this re- 
write of the standards into plain English. Before we're through, 
we're going to eliminate more than 1,000 pages of OSHA regula- 
tions and simplify hundreds more. Consistent with SBREFA, these 
materials will include a focus on small business. 

Now, the White House Conference also recommended that there 
be a single source for regulatory information for small business em- 



ployers, and the Small Business Administration has the U.S. Busi- 
ness Advisor and that software contains links to OSHA's home 
page on the Internet, through which employers can obtain informa- 
tion about all our regulations, interpretations, and new products, 
such as Asbestos Advisor, which is a software program which can 
be downloaded for free, which steps employers through their obliga- 
tions under the final asbestos standards. We've gotten favorable re- 
view and comment on the practical assistance that OSHA's Asbes- 
tos Advisor provides. 

Another action we've taken in line with recommendations from 
the Conference concerns how we enforce regulations. We have ex- 
panded on the Maine 200 program and are working to make it ef- 
fective in all 29 Federal enforcement states and we think this is 
an excellent way of encouraging employers to work with OSHA to 
improve hazards when information indicates that serious work- 
place health and safety concerns exist in those workplaces. 

This formation of partnerships allows OSHA to leverage its re- 
sources and to reach more workplaces than could be done through 
our old means of trjdng to physically inspect each workplace. 

Another program we've expanded is OSHA's voluntary protection 
program. These are firms which achieve excellent sustained per- 
formance in worker health and safety protection. Typically, most 
participants in VPP are large firms. However, VPP participants are 
also reaching out through mentoring programs to assistant small 
employers. 

One example is in New Jersey where the Exxon refinery has 
coached and mentored two small businesses in Linden, New Jersey 
to help them come into compliance with OSHA regulations. 

Another White House Conference recommendation dealt with 
hazard communication and paperwork. The hazard communication 
standard is designed to ensure that workers are aware of the dan- 
gers of the toxic substances that they use in their work environ- 
ment. It requires that information on toxic substances, on thou- 
sands of toxic substances, be sent from manufacturers to employers 
and that employers pass this on to workers, make it available to 
them. 

Some small business employers talked about being overwhelmed 
by the volume of information sent by manufacturers and requested 
assistance in understanding the more technical aspects of the 
standards. To address this problem, we convened a working group 
of our statutory National Advisory Committee on Occupational 
Safety and Health to make recommendations on how the hazard 
communication standard could be improved. The committee just re- 
ceived the report of its work group this month and we expect them 
to formally transmit their report to us shortly. 

The work group has recommended that OSHA, in partnership 
with industry and labor, develop a core training program and pro- 
cedures for identifying hazards to assist small employers. In fact, 
this recommendation makes such sense that we've actually com- 
missioned some research, a contractor, to begin work on such a pro- 
gram. 

The work group further recommended that OSHA urge chemical 
manufacturers to include a statement on the first page of the mate- 
rial safety data sheet, and that's the core piece of information, indi- 



eating whether the substance is covered by OSHA's hazard commu- 
nication standard. I think this would be a very important practical 
step because many of the complaints you hear about common prod- 
ucts allegedly being covered by hazard communication aren't cov- 
ered, but that's not clear on the MSDS that's transmitted. This 
would help employers understand what they need to keep and pay 
attention to and what they don't. We will be implementing the rec- 
ommendations of the work group as they come to us from the com- 
mittee. 

Another of the Conference recommendations dealt with paper- 
work, exemptions from fines, voluntary compliance audits and the 
development of construction standards. I've heard a lot from busi- 
nesses about OSHA paperwork citations and the next chart will 
show you that in 1992 OSHA issued 3,842 violations of the require- 
ment that employers post a poster. There was a slight decline in 
1993 and 1994. In fiscal 1995 it went from over 3,000 violations to 
about 649 and for 1996, which ends next week, there have been 9. 
I've asked about those 9. I'd like to know who did those. 

The old OSHA used to give employers a citation if they didn't 
have a poster. The new OSHA gives them the poster. If there's any 
indication that we're changing how we do business, I think this is 
a vivid illustration. 

On a more general note, paperwork citations, including hazard 
communication and other requirements, we can see that in 1992 we 
issued over 41,000 citations for all types of paperwork violations. 
Again, in keeping with the new OSHA directives to the field, we 
have reduced the number of these citations by 61 percent between 
fiscal 1992 and fiscal 1995 and we're expecting a much further de- 
cline by the end of this year, to less than 5,000. 

We're concentrating on serious hazards that pose serious threats 
to worker health and safety and we're not fining employers if they 
fail to sign an OSHA 200 log that doesn't have any injuries and to 
go after them for multiple violation of hazard communication if 
they're trying to have a good program. 

Another area that the Conference recommended concerned pen- 
alty reductions for small business. We are currently pilot-testing a 
new penalty policy in the field. This will reduce, for the smallest 
employers, proposed OSHA penalties by 80 percent. This pilot test 
will end later this fall. We'll evaluate the test and if it's successful, 
which I expect it to be, we'll implement it nationwide. 

This policy further says that we will eliminate penalties for any 
employer with fewer than 250 employees if there are no willful, re- 
peat, or failure-to-abate violations and that the hazards we find are 
other than serious, and that is entirely consistent with one of the 
recommendations of the Committee. 

In the interest of time let me now move to a few comments about 
H.R. 3234. I'm deeply concerned about this legislation and the im- 
pact it would have on worker health and safety. Rather than codify 
the new OSHA initiatives, as claimed, this bill would substantially 
compromise worker protection. 

One of the most troubling sections is Section 2, which contains 
an undefined new requirement that all OSHA standards must be 
based upon a cost-benefit analysis. This provision will increase liti- 
gation among workers, employers and OSHA, and worse, it could 



8 

be interpreted to be inconsistent with the core principle in the Oc- 
cupational Safety and Health Act that American workers should be 
protected from significant risks to the extent feasible. 

The Supreme Court has said that OSHA can and should produce 
standards that have justifiable benefits without translating the 
right to be free of preventable harm into a monetary formula. We 
do consider costs and benefits before we adopt regulations but we 
do not affix a dollar value to life and limb. 

H.R. 3234 would substitute a formal, strict cost-benefit analysis 
that treats worker deaths, injury and illnesses as a cost of doing 
business. I think to illustrate our concern about this, our cotton 
dust standard, adopted in 1978, which has been credited with re- 
ducing the rate of brown lung disease in the textile industry from 
over 20 percent of the industr/s employees to less than 1 percent, 
might not have been able to have been adopted had this strict cost- 
benefit test been in law at the time. 

H.R. 3234 would also impede our efforts to target the most dan- 
gerous workplaces. As I said, we're eliminating penalties for minor 
paperwork violations and we're directing our enforcement toward 
serious hazards. The bill would preclude OSHA from issuing cita- 
tions for nonwillful first-time violations of any recordkeeping or 
written program requirements unless the violation resulted in the 
employee being exposed to a hazard. This provision would make 
OSHA's recordkeeping requirements largely unenforceable, since 
failing to keep a record of an injury or illness would not, in most 
cases, by itself expense a worker to a hazard. 

This would make it extremely difficult for OSHA to target its en- 
forcement where the hazards are greatest. It would affect our abil- 
ity to evaluate the impact of our actions. We believe it could also 
distort the entire picture of injury and illness in terms of the 
records that are used to develop national injury and illness statis- 
tics. 

In summary, H.R. 3234 poses reforms which come at the expense 
of worker protection. Although some provisions appear consistent 
with the administration's reinvention efforts, the sections on cost- 
benefit analysis and recordkeeping enforcement could impede 
OSHA's ability to do a better job. If this bill becomes law, it would 
represent a retreat on worker protection rather than an advance. 

I've been doing this job for almost 3 years. I'm convinced that the 
significant problems and opportunities facing OSHA stem not from 
the statute but from the way it is enforced. As OSHA reinvention 
initiatives over the past 3 years have shown, administrative 
changes, stakeholder involvement with the Agency, use of common 
sense and the proper use of our resources demonstrate that we can 
help employers achieve safety and health. We can solve OSHA's 
problems without changing the law in problematic ways. 

The new OSHA has made partnership a cornerstone of the way 
we do business with employers and workers. By offering employers 
a choice between cooperation and enforcement, by using common 
sense in developing and enforcing regulations, and by focussing 
OSHA on results, we have changed the Agency for the better. The 
changes we have made will be lasting ones because they make 
sense to those who are involved with this Agency. 



Once again, Madam Chair, I appreciate the opportunity to come 
back before the Committee and your interest in improving worker 
health and safety. 

Chair MEYERS. Thank you very much, Mr. Dear. 

Our next witness is Mr. Pete Lunnie. He is the Executive Direc- 
tor of the Coalition on Occupational Safety and Health of Washing- 
ton, DC and this organization has kind of been the point organiza- 
tion to make sure that the interests of business are represented 
when dealing with OSHA and the problems of OSHA. Mr. Lunnie. 

[Mr. Dear's statement may be found in the appendix.] 

TESTIMONY OF F.M. "PETE" LUNNIE, JR., EXECUTIVE DIREC- 
TOR, COALITION ON OCCUPATIONAL SAFETY AND HEALTH, 
WASHINGTON, DC 

Mr.LuNNlE. Thank you, Madam Chair, member of the Commit- 
tee. My name is Pete Lunnie. I am Executive Coordinator of the 
Coalition on Occupational Safety and Health. The Coalition is com- 
prised of some 365 organizations, principally companies and trade 
associations, but it does include also professional societies and pub- 
lic sector groups. Significant to this Committee's inquiry, the ma- 
jority of businesses represented by our members are small- to mid- 
sized companies, even though some of the Nation's largest compa- 
nies are represented. All of our members share an interest in safe- 
ty and health. We're committed to making it work and committed 
to working with our employees toward that end. 

Some general observations on safety and health. One of the 
points, I believe, that has been stressed by Secretary Dear and I 
certainly would agree with it is that cooperation is certainly the 
route to go. We believe it's the result of cooperation between em- 
ployers and employees in the workplace. 

There's no den3dng that OSHA has played a role. I started out 
my career in 1972 at OSKLA. and spent 5 years there. I appreciate 
some of the problems that he's facing because most of them aren't 
new. Many of the problems that we see today have been examined 
year in, year out, since 1970. 

From a purely economic standpoint, safety and health pays. It 
was pointed out earlier, I believe, by Mr. LaFalce, the workers 
comp premium, and certainly their consideration is factored into 
the equation. 

OSHA, the mandates set forth in the Occupational Safety and 
Health Act providing working men and women safe and healthful 
working conditions is one with which we don't quarrel and we don't 
think anyone quarrels. But as it was pointed out earlier, it's the 
manner in which that mandate is carried out. From our perspec- 
tive, it's a disjointed approach to enforcement, confusing burden- 
some and nit-picking standards, among other practices, that have 
made OSHA one of the least liked Agencies in Washington. 

This was highlighted by the White House Conference on Small 
Business in 1995. Mr. Dear told me stories about attending meet- 
ings associated with that and other regulatory Agencies and said 
it was sitting in the hot seat, that he was invited by some of his 
colleagues in Government to come along with them so that he could 
take the heat and not they. 



10 

Among the reasons that OSHA has become the "bogeyman" in 
Washington, the one that they feel is playing "gotcha" with them 
is the fact that there were quotas for citations. That was a meas- 
urement of an inspector's performance. Paperwork violations, not- 
withstanding the fact that they have been reduced by Mr. Dear in 
the current year, nevertheless constituted 12 of the top 20 most fre- 
quently cited standards and among those, hazard communication 
was a majority of them, and in the absence on the part of the small 
business community of a good targeting mechanism to hit the peo- 
ple who were really ignoring their responsibilities under the act 
and not providing the sort of consultation that they thought was 
necessary. 

But in 1995, as was noted, we had an announcement of the new 
OSHA and it included some things that we certainly agree with. 
OSHA must change its fundamental operating method from one of 
command and control to one that provides employers real choice be- 
tween partnership or the traditional means of enforcement, and we 
certainly agree. 

But we also would support restructuring the OSHA act in ways 
that replace the traffic cop enforcement quota approach to regula- 
tion, replacing it with a collaborative model under which there 
would be more education, training and technical assistance and 
employers would be encouraged to avail themselves of those re- 
sources without the fear of retaliation. 

We talked about 1834 and I'd like to express our appreciation, 
Madam Chair, for your having joined Mr. Ballenger. It was a com- 
prehensive bill, one around which we certainly thought was a 
benchmark for judging OSHA reform. Mr. Ballenger and you and 
other sponsors of that legislation were attacked, I think unfairly, 
by distorted characterizations of that bill. But rather than be 
stopped, you and Mr. Ballenger decided to go forward with H.R. 
3234. It included a requirement for cost-benefit analysis, a reduc- 
tion or waiver of penalties for certain violations, a conditional limi- 
tation on issuing citations for paperwork violations, the small busi- 
ness consultation would have been codified, and one dealing with 
the issue of quotas. While it didn't go as far as we thought was ap- 
propriate, nevertheless we rallied around it. 

The administration, unfortunately, chose to oppose that measure, 
as well. We regret that. We thought that there was an opportunity 
to forge new partnerships that had not been realized. 

But nonetheless, looking back over the past year into the future, 
the battles over OSHA will continue in the future. Democrats in 
the 102nd and 103rd Congress were unable to get through propos- 
als when they were in control and likewise, for the past few years, 
we've been unable, in view of the threat of a Presidential veto, to 
move something. 

But one thing is clear, that nobody's really satisfied with the sta- 
tus quo. Organized labor appears to feel as though there's a need 
for a bigger club. Business, on the other hand, seeing the need for 
a more cooperative approach, looking at that first item pointed out 
in the mission statement of OSHA, encouraged the kind of coopera- 
tive efforts between employers and employees that are essential to 
safety and health. 



11 

The concepts of the new OSHA suggest the administration un- 
derstands some of these points and I would, on behalf of COSH, 
commend Secretary Dear for his efforts, trying a number of dif- 
ferent approaches, for example, in the construction industry, fo- 
cussed inspections, some of the pilot projects he's talking about 
right now. But the administration's reaction to H.R. 3234 suggests 
that promise has not been realized. 

I would just highlight our concern is premised on the fact that 
this same administration supported the Kennedy-Ford bills in the 
102nd and 103rd Congresses, which were antithetical to the provi- 
sions of the new OSHA and certainly strenuously opposed by busi- 
ness. 

Concluding as I began, I think that cooperation is the key to 
safety and health, improved safety and health in our workplaces. 
Employees, employers, in a partnership with OSHA, we hope that 
the collective we can move forward jointly toward that end. We ap- 
preciate the opportunity to join you and will answer any questions 
you may have at the conclusion of this panel. 

Chair MEYERS. Thank you very much, Mr. Lunnie. 

Our next witness is Mr. Ed Hayden and he's the Safety and 
Health Director of The Associated General Contractors of America 
of the Milwaukee Chapter, Milwaukee, Wisconsin. Mr. Hayden. 

[Mr. Lunnie's statement may be found in the appendix.] 

TESTIMONY OF ED HAYDEN, SAFETY AND HEALTH DIRECTOR, 
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 
MILWAUKEE CHAPTER, MILWAUKEE, WISCONSIN 

Mr.HAYDEN. Good morning. My name is Ed Hayden. I'm the 
Safety Director and the Associate Executive Director of the AGC of 
Greater Milwaukee. I'm also the Safety Director for the Milwaukee 
Construction Industry Safety Council. I would like to take this op- 
portunity to thank Mrs. Meyers and the other members of the 
Committee for giving me this opportunity to address you on the Re- 
invent OSHA initiative. 

My responsibility is to train contractors in safety and health. I 
also conduct safety and health training for craft workers, field su- 
pervisors and management. Thousands of people receive training 
from my small office each year in the AGC of Milwaukee, as they 
do in the over 100 other chapters nationwide who provide similar 
services. 

For the past 20 years, through four Presidents and more heads 
of OSHA than I can remember, I've been involved in dealing with 
OSHA in helping contractors achieve safe work sites. During that 
time period the hazards facing construction workers have remained 
the same. However, the way OSHA addresses these hazards has 
changed from administration to administration, from Agency head 
to Agency head. OSHA's inconsistent policies complicate safety and 
health training. 

Oftentimes the current hot safety item at OSHA has no relation 
to real world safety and health problems. For example, in 1988 
OSHA began the hazard communication enforcement in the con- 
struction industry. At that time we surveyed our members and de- 
termined that less than 2 percent of all of our recordable injuries 
were related to chemical exposures that were covered by the haz- 



12 

ard communication standard. Despite this fact, the construction in- 
dustry was forced to spend millions of dollars to train employees 
and collect massive amounts of material safety data sheets, which 
very few contractors or their employees can understand. 

It is clear that if the same time and resources had been spent 
in other high-hazard areas in the construction industry, there 
would have been a far better safety return for the investment. 
Even though OSHA knows chemical exposures in construction are 
not a major problem, the hazard communication standard remains 
one of the top violations cited during OSHA inspections. 

The effect of OSHA's focus on Haz-Com is to force construction 
companies to spend their limited resources to achieve OSHA com- 
pliance, instead of protecting employees from known hazards. This 
is a choice no contractor should have to make. 

The construction industry is made up of small contractors. Ac- 
cording to Government figures, more than 80 percent of the con- 
struction companies in this country employ fewer than 20 workers. 
These small companies cannot afford to pay for OSHA require- 
ments that fail to enhance the safety of their workers. 

The most recent policy change to affect contractors is the result 
of the Reinventing OSHA initiative. The focussed inspection con- 
centrates on problem safety areas within the construction industry. 
It keys out four major hazard areas: Fall hazards, electrical haz- 
ards, caught-between and struck-by. 

Unfortunately, the interpretation of what is a focussed inspection 
varies greatly from the different OSHA regional offices and within 
the various OSHA offices themselves. I was in Portland, Oregon 
when Assistant Secretary Dear announced the focussed inspection 
initiative. The first citation in the first informal conference I at- 
tended, however, bore no resemblance to the concept outlined by 
Mr. Dear. Some OSHA area offices, like the one in Milwaukee, 
have been true to Mr. Dear's original concept; others have not. 

The announced intent of the Agency to focus on four major haz- 
ards is clearly a step in the right direction and in sharp contrast 
to the focus placed on Haz-Com. AGO would like to see this initia- 
tive codified so that it remains a valuable tool in construction acci- 
dent reduction. It also needs to have uniform interpretation across 
the entire Agency. 

AGC supports the creation of the Construction Industry Direc- 
torate. Assistant Secretary Dear was very helpful in creating this 
office within OSHA and I would like to thank him once again for 
his cooperation and support of this initiative. 

AGC believes that creation of the directorate will better educate 
OSHA inspectors assigned to construction job sites and improve 
construction safety and health standards. 

Having OSHA focus on four hazards in the industry which cause 
90 percent of our fatalities makes sense. The imposition of an 
ergonomic standard on the construction industry does not make 
sense. Simply put, the human body develops more aches and pains 
as it ages. Construction craftsmen are known to work many hours 
outside their 9-to-5 jobs, plying their crafts to earn extra income. 
Many construction workers also lead an active lifestyle outside the 
workplace. 



13 

An ergonomic standard would place the responsibility for wear 
and tear to the human body caused by these activities and the 
aging process solely on the employer. There's no recognition by 
OSHA that safe practices put in place by employers make the 
workplace safer than the activity the employee participates in out- 
side of his workplace. It makes no sense to burden contractors with 
a proposed ergonomic standard when there's no sound scientific 
data that proves repetitive motion disorders reported by construc- 
tion workers are work-related. 

In all construction, consistency is the key to success. Contractors 
are specification-oriented. Give them a book of rules, explain it to 
them, and most of them will follow the rules to the best of their 
ability as long as the rules are clear and appropriate to the con- 
struction safety and health hazards they experience. If they are not 
clear and appropriate, compliance is likely to be low. 

We train contractors to comply. However, when we're finished 
laying out all the requirements of OSHA regulations, we then have 
to say, "Oh, and by the way, there's this other rule called the gen- 
eral duty clause, which makes you responsible for regulations that 
haven't been thought of or approved, been through the normal rule- 
making process, and also makes you responsible for situations that 
haven't been addressed by OSHA safety and health standards over 
the years." 

Contractors have come to view the general duty clause, 5(a)(1), 
as an "I gotcha" clause used by OSHA inspectors when no other 
violations can be found. We believe OSHA should be prohibited 
from issuing any more general duty citations. At the very least, 
OSHA should be required to enforce the second part of the general 
duty clause, which holds employees responsible for conduct that 
leads to safety violations. 

I would like to make one final point. The construction industry 
needs the freedom to test for alcohol and illegal narcotics. Alcohol 
and drug abuse are serious problems in our industry. We employ 
only 5 percent of the working population, yet, according to Govern- 
ment statistics, we have 20 percent of the working abusers. 

A construction site is an extremely dangerous place to be under 
the influence of alcohol or controlled substances. Drug testing is 
something that contractors view as a critical part of workplace 
safety. 

I thank you for the opportunity to address you today and I would 
be happy to answer any questions. 

Chair Meyers. Thank you, Mr. Hayden. 

[Mr. Hayden's statement may be found in the appendix.] 

Our next witness is Mr. Kent Swanson of Nurses Available Staff- 
ing, Inc. in Towson, Maryland. 

TESTIMONY OF KENT SWANSON, NURSES AVAILABLE STAFF- 
ING, INC., TOWSON, MARYLAND, TESTIFYING ON BEHALF OF 
THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS 

Mr. Swanson. Chair Meyers, thank you for the opportunity to 
testify before you today. My name is Kent Swanson. I was elected 
as a Delegate to the 1995 White House Conference on Small Busi- 
ness and I own Nurses Available Staffing, a small private duty 
staff relief nursing Agency. We provide nursing services in the 



14 

home and nursing staff to health care institutions. I have approxi- 
mately 40 employees in my Baltimore office and approximately 125 
employees in my Pennsylvania offices. 

I am testifying today as a member of the National Federal of 
Independent Business. I am here to encourage Congress to intro- 
duce reform legislation in the next Congress which will assist small 
business owners to comply with OSHA regulations and provide a 
safe working environment for its employees. 

We want safe workplaces for our employees because without 
them we are nothing. In addition, OSHA reform was 1 of the 60 
recommendations of the 1995 White House Conference on Small 
Business. 

OSHA reform legislation introduced in the 105th Congress must 
ensure that OSHA's primary concern will be safety and not the 
punishment of small business owners for minor mistakes. During 
the 104th Congress, bills introduced in the House, such as H.R. 
1834 and H.R. 3234 and in the Senate, S. 1423 included specific 
provisions which would ensure that OSHA goes after small busi- 
nesses violating the law and not those making paperwork mis- 
takes. 

A 105th Congressional bill should include small business ele- 
ments from H.R. 1834, H.R. 3234 and S. 1423. First, the bill must 
require OSHA to demonstrate that the benefits of any new OSHA 
standards outweigh the costs of those standards before they can be 
issued. 

Government regulations continue to be one of the greatest prob- 
lems I deal with on a day-to-day basis. Cost-benefit analysis would 
control the multiplication of new regulations imposed on my busi- 
ness and assure everyone that such regulations are really needed. 

Additionally, any OSHA reform introduced in the next Congress 
should waive OSHA penalties for small business owners who cor- 
rect minor mistakes within a certain time period. It should also 
eliminate fines against small business owners for paperwork viola- 
tion. These small business owners are oftentimes cited by OSHA 
exclusively for paperwork infractions and minor mistakes and not 
because of violations endangering our employees. Because, as own- 
ers, we are the lynch pin of our business, we must spend the time 
running our business so that we're able to keep paying our employ- 
ees and sometimes paperwork, not workplace safety, falls between 
the chairs. 

Finally, I would recommend that any OSHA reform bill expands 
the OSHA consultation program for small business owners and en- 
sures that it becomes a part of the OSHA law. 

While I applaud Assistant Secretary Dear and OSHA for provid- 
ing needed reforms to assist small business owners and eliminate 
citations for minor violations, I believe that these changes should 
be made part of the law to ensure that future administrations will 
follow through on the reform already begun by Mr. Dear in the cur- 
rent administration. 

However, I strongly disagree with the myriad of proposed regula- 
tions and guidelines which have recently been proposed by OSHA. 
These will have a devastating impact on my small business and 
other small businesses. For instance, the ergonomics regulations 



15 

drafted by OSHA will be one of the most costly and sweeping regu- 
lations ever issued by the Department of Labor. 

Under this new regulation, small businesses like mine would be 
required to implement comprehensive medical management pro- 
grams for jobs with high signal risk factors for employees, includ- 
ing lifting 25 pounds, repetition, such as using a computer key- 
board or clicking a mouse, pushing or pulling, vibrating, and using 
an awkward position. This regulation would require me to retrain 
my employees and radically re-engineer my business. 

A second regulation recently proposed by OSHA is the indoor air 
quality proposal. This regulation would require me to designate a 
person responsible to assure compliance in the preparation of a 
written indoor air quality program. I would also be responsible for 
providing special training for my employees involved in building 
systems and maintenance. Additionally, the recordkeeping require- 
ments would be enormous under this new regulation for my small 
business. This regulation doesn't take into account that I have lit- 
tle or no control over the heating, ventilating and air conditioning 
systems where my businesses are located. 

A third proposed regulation, the general industry standard, re- 
quires employers to implement a general health and safety stand- 
ard for each work site. This standard would include management 
leadership and employee participation, hazard assessment and con- 
trol, training, recordkeeping, and a system evaluation. 

Most small employers do not employ an individual specifically as- 
signed to carrying out safety and health policies. I know I don't. 
Consequently, the business owner would be responsible for such 
recordkeeping, training, evaluation and leadership of employees. A 
cookie cutter approach is likely to result because small employers 
simply don't have the time to meet the specific requirements of 
such a standard. 

These are only a few of the recently proposed regulations now 
being issued by the Federal Government. Obviously, these three in 
particular do not reflect an OSHA which is leading the way in 
eliminating the unnecessary paperwork and regulatory burden im- 
posed on small business owners by the Federal Government. 

Thank you, Chairwoman Meyers. I'd be happy to answer any 
questions from you or other members of the Committee. 

Chair Meyers. Thank you very much, Mr. Swanson. I think you 
have expressed very well the concern that I hear from small busi- 
nesses and that is that they have to do all of the work themselves 
and all of the paperwork themselves. They don't have office man- 
agers and other people who carry this out for them. Yet they are 
trying to implement regulations that, in terms of safety, maybe 
don't really make sense to them. So, that's what we can be talking 
a little more about later. 

Our next witness is Larry Larsen, Larsen Homes of Englewood, 
Colorado. He will be speaking for himself, of course, and on behalf 
of the National Association of Home Builders. 

[Mr. Swanson's statement may be found in the appendix.] 



16 

TESTIMONY OF LARRY LARSEN, LARSEN HOMES, LTD., ENGLE- 
WOOD, COLORADO, TESTIFYING ON BEHALF OF THE NA- 
TIONAL ASSOCIATION OF HOME BUILDERS 

Mr Larsen. Thank you. Madam Chair and members of the Small 
Business Committee, I'd like to thank you for the opportunity for 
me to come before you this morning to give my perspective on H.R. 
3234, the Small Business OSHA Relief Act of 1996, and to discuss 
the issue of OSHA reform. 

My name is Larry Larsen. I am President of Larsen Homes in 
Englewood, Colorado. We build single family homes. I employ 22 
people and a number of subcontractors, and build approximately 60 
homes a year. 

Tm a member of the National Association of Home Builders, also 
known as NAHB, a building trade association with over 185,000 
member firms nationwide. Therefore I speak on behalf of the build- 
ers in your State, also on this important issue. I also serve as 
chairman of the NAHB's Construction Safety and Health Commit- 
tee. 

While I have a detailed written statement which I've submitted 
for the record, I'd like to briefly touch on why builders across the 
country feel that statutory OSHA reform is important. 

I must begin by applauding Members of the 104th Congi-ess for 
their efforts to move this issue forward and I must also commend 
the current administrator of OSHA, Joe Dear, for his efforts to 
make administrative improvements in the Federal Government's 
role in worker safety and health. 

However, there is much more that needs to be done. While ad- 
ministrative reforms are worthwhile, the underlying act must be 
amended to ensure that reforms remain permanent. The act itself 
is still far too strong on punitive enforcement and far too weak on 
cooperative consultation to be truly helpful to the small business 
community. 

In fact, the White House Conference on Small Business of 1994, 
which has been referenced here by a couple of speakers, proved 
that OSHA is one of the top concerns of small business owners 
across the country. At that conference the whole spectrum of small 
business came together and nearly universally indicted OSHA for 
difficulties that the Agency creates in their business. 

Statutory reform of the sort beginning with H.R. 3234 is the only 
way to ensure that OSHA becomes an ally of small business in- 
stead of an adversary. H.R. 3234, which NAHB supports, would 
make narrow, targeted improvements in the OSH Act. First, it 
would require that OSHA conduct a cost-benefit analysis on each 
regulation before it is issued. This would ensure two things: One, 
that the actual safety and well-being of workers would clearly jus- 
tify the cost of these regulations. 

Second, it would force the Agency to think twice about developing 
regulations based loosely on scientific data, with no clear benefit to 
worker safety and health. We believe the current effort on 
ergonomics is a perfect example of this. OSHA plans to go forward 
with a rule on ergonomics when it is clear that there is little or 
no agreement within the scientific and medical communities as to 
the direct causes of repetitive stress injuries or how to remedy the 
problem. 



17 

Second, H.R. 3234 would provide small business owners an op- 
portunity to correct OSHA violations without a citation, provided 
the employer has made a good faith effort to comply with the regu- 
lation and the violation does not amount to a significant threat to 
employer health and safety. Additionally, an employer could use 
funds normally assessed as fines to actually help correct these vio- 
lations. 

H.R. 3234 would codify the State consultation program currently 
operating at OSHA. This provision is identical to a provision in 
Senate OSHA reform bill S. 1432 and OSHA Administrator Joe 
Dear testified in support of this provision at a Senate hearing on 
this legislation. 

Finally, H.R. 3234 would prohibit the use of inspection or citation 
quotas of any kind. Even though Administrator Dear insists that 
this practice has been reduced at the Agency, it is important that 
the OSHA Act be amended to end this policy officially. 

There are several additional issues which we feel must be ad- 
dressed by any legislative OSHA reform effort. It has long been a 
priority of NAHB that OSHA view residential construction as sepa- 
rate from heavy commercial construction. Most construction safety 
and health regulations are designed with large, heavy commercial 
projects in mind, with little thought given to light, smaller-scale 
residential-type construction. 

NAHB is involved in a bipartisan effort to secure $2 million in 
the fiscal year 1997 Labor, Health and Human Services and Edu- 
cation funding bill to have OSHA begin the process of evaluating 
the application of construction regulations to residential consti-uc- 
tion, and we hope that this provision will be included as part of the 
funding measure for fiscal year 1997. 

Another big problem for builders with respect to OSHA is the 
fact that OSHA currently cites general contractors for violation of 
their subcontractors under the multiemployer work site provision, 
even if the general contractor did not create the hazard or know 
about the hazard. It is our strong view that OSHA needs to target 
the employer who is directly responsible for the hazard, whether it 
be the general contractor or the subcontractor. 

Last year legislation was introduced in the Senate which would 
relieve general contractors of the liability they currently face for 
their subcontractors' violations. NAHB will continue to advocate 
that a similar provision be included in any OSHA reform proposal. 

The building industry is encouraged by the Congress' commit- 
ment to OSHA reform but we support H.R. 3234 and must take 
this opportunity to emphasize the importance of separate residen- 
tial construction standards for safety and health and the multiem- 
ployer work site issue. 

We look forward to working toward common sense OSHA reform 
in the 105th Congress. Again, I thank the members of the Commit- 
tee for this opportunity, especially those who are working hard to 
implement OSHA reform. I'd be happy to answer any questions 
that you may have. Thank you. 

[Mr. Larsen's statement may be found in the appendix.] 

Chair Meyers. Thank you very much and I'd like to thank all 
of our witnesses for being with us today. 



18 

We'll start the lights on the questions, too. I have a lot of them 
so we may have another round or we may decide to submit some 
questions for the record, but I'd like to ask as many as possible 
here because I would like the interaction between Mr. Dear and 
the remaining panel members. 

I think that Mr. Dear certainly heard that each of the panel 
members was saying, yes, there has been improvement, however. 
It's the "however" I would like to get to. 

Let me ask about the Maine 200 Program, which you cited at the 
last hearing where we were and it's now being implemented in 
other States; it's the Missouri 500. 

I have heard some real concern, and I think it's just beginning, 
Mr. Dear. Maybe this is, again, part of the — I believe one of the 
witnesses says it isn't that we aren't concerned with safety and 
health but in some cases the approach is so bad. 

As I understand it, the Missouri 500, the Maine 200, and so 
forth, approaches employers in a State that might have the most 
difficult work sites and they give them an opportunity to cooperate 
in changing that work site and it's a "voluntary" program. How- 
ever, and this is from the Fort Worth area office and it says, "If 
an employer has not met the criteria in the instructions provided 
or has decided not to develop satisfactory programs, a comprehen- 
sive wall-to-wall inspection of the facility will be performed. Cita- 
tions and penalties will be assessed, if appropriate." 

I think the people in these programs feel very threatened, Mr. 
Dear, and I think we're going to hear a lot about that. In the Mis- 
souri 500, the concern that has been expressed to me is the amount 
of paperwork that is required. It says, "Each employer will be given 
45 calendar days after receiving this instruction to submit a re- 
sponse to the St. Louis and Kansas City office and to acknowledge 
participation in this program. The employer's response must in- 
clude the following documents," and there is a whole page of them 
listed. 

Now, I am not sure this was covered under the Paperwork Re- 
duction Act. I don't know if it's kind of a way to get around the 
Paperwork Reduction Act and I would like to hear your comments 
on how this program is working. 

Mr.DEAR. This is a terrific approach to workplace health and 
safety. We've seen that in Maine, we've seen that in Wisconsin, 
where we'd also had a program of fairly long duration, and in other 
States, and our goal is to make it as extensive across the country 
as we can. 

We're learning as we implement these. I haven't tried to dictate 
one model for all of these programs for every State. There's some 
variation and some of the learning we do is some of the variations 
tell us that there may be better ways of doing it. 

But Chair Meyers, I have to tell you this is one of the most im- 
portant single innovations OSHA has undertaken. This really 
points at a new way. 

Now, let me be clear about what the innovation is. We're offering 
employers a choice between partnership or traditional enforcement. 
We're not offering them a choice between having a healthy and safe 
workplace or not having a healthy and safe workplace. 

Chair Meyers. I understand that. 



19 

Mr.DEAR. I mean, that's a moral obligation before we ever get to 
public policy. 

The employers identified in most of these programs, and all of 
them in future programs, are identified using specific work site in- 
formation — OSHA 200 illness injury records, rate-specific worker 
compensation data. 

So, we would, in the old OSHA, have placed these employers on 
inspection targeting lists and we wouldn't have written them a let- 
ter saying we're worried about conditions at your workplace. We 
would have just come out there and cited and fined them for every 
single violation we could have found. 

By writing the letter, and I would agree with you the tone of 
some of these letters and the information request, particularly in 
the Missouri letter, are not what I would find acceptable; the letter 
says we'll give you an opportunity to get your workplace shaped up 
before we come out. 

In Wisconsin, where we used rate information and identified 200 
employers, 100 of them dropped their workers compensation rate 
so quickly they got out of the program before we arrived to see 
what they had done. 

Now specifically with respect to Missouri, we've written all of the 
employers who received the first letter saying that we have new 
and better data to use, based on employee site-specific data, rather 
than generalized sheer number of workers compensation claims, 
which is the information we had. We've told them they do not have 
to respond within the 45 days, that we will use the new data to 
identify participants, that employers with injury and illness rates 
below the average for the Nation, 3.8, won't be included in the pro- 
gram. I've personally committed to having a meeting with inter- 
ested employers in the State before we resume operation. 

With respect to the data request, we do want to get OSHA 200 
log information from the employers and I think that's appropriate 
and I think that's appropriate under the law, under the Paperwork 
Reduction Act. Some of the other information we've got there we 
don't need and we will not ask for it in the next letter. 

Chair MEYERS. All right. We will have a second round. I see my 
time is up and you talked too long, Mr. Dear, because I have lots 
of other questions. 

Ms. Velazquez. 

Ms. Velazquez. Madam Chair, I would like to ask unanimous 
consent to insert my opening statement into the record. 

Chair MEYERS. Without objection. 

[Ms. Velazquez' statement may be found in the appendix.] 

Ms.Velazquez. Mr. Dear, we've heard here so many complaints 
coming from small businesses about complying with the paperwork 
and they don't have the administrative managers to comply with 
paperwork regulations. What efforts has your Agency taken to min- 
imize that burden? 

Mr.DEAR. We've taken several steps. In my testimony I talked 
about the reduction in citations for minor paperwork violations. We 
are complying with the requirements of the Paperwork Reduction 
Act adopted in 1995. OSHA's paperwork burden, as calculated as 
a result of that, went up dramatically because the change in the 
law specifically overturned a Supreme Court decision which had 



20 

determined that a lot of OSHA required information was not sub- 
ject to PRA requirements. 

We calculated OSHA's total paperwork burden at about 207 mil- 
lion hours. We have to reduce that figure by 10 percent in fiscal 
1996, which we have done, and a subsequent 10 percent reduction 
in 1997, which we're planning. We've accomplished this reduction 
primarily by looking at the recordkeeping requirements for the haz- 
ardous waste operations and emergency response standard and for 
the process safety management standard. These are the two largest 
paperwork burden generators in the OSHA standards. 

In addition, we're working to make improvements with the haz- 
ard communication standard now that we've received the report of 
the advisory committee. 

Furthermore, and I guess I talk too long, we have a proposed 
change to the recordkeeping requirements themselves, which is 
awaiting final action of the record closed in July 1996 and we're 
reviewing the record, but this is a proposal which would eliminate 
275,000 small businesses from the requirement to keep OSHA in- 
jury illness logs. We raise the threshold from 10 to 20 employees. 
In addition, it will reduce by several million hours the paperwork 
burden associated with injury and illness recordkeeping. Plus, we 
have a simpler form. 

Ms.Velazquez. But still Mr. Lunnie referred to it, that no one 
is happy with the status quo. Do you think that is fair? 

Mr.DEAR. I'm not happy with the status quo. I think there's an 
enormous amount of preventable injury, illness and death in Amer- 
ica's workplaces. It costs workers an enormous toll in human terms 
and it costs employers a lot in economic terms. 

We've made real improvements in 3 years but we all have a long 
way to go. 

Ms.Velazquez. Mr. Dear, so many supporters of H.R. 3234 allege 
that the cost-benefit provision is essential to saving business 
money. I guess the real issue is one of priorities. Does the cost-ben- 
efit provision put businesses' expenses before worker safety? 

Mr.DEAR. Strictly interpreted, I believe that the cost-benefit test 
that would be required in that act would put the economics above 
worker health, specifically by overturning the Supreme Court's in- 
terpretation of OSHA's requirement. 

I want to emphasize we're not opposing the use of economic costs 
and benefits in determining whether we have inappropriate stand- 
ards but we need to consider that reducing the health risks to 
America's workers to the extent feasible, and feasible means eco- 
nomic and technical feasibility, is the appropriate balancing test, 
not a strict economic accounting of the value of life and limb. 

Chair Meyers. If the gentlelady would yield, if you would not 
mind giving the other witnesses time to respond to your question. 

Ms.Velazquez. I have a specific question for Mr. Swanson that 
is related to cost-benefit. 

Mr. Swanson, you mentioned your support for Congressional ef- 
forts to require that OSHA and other Federal Agencies perform a 
cost-benefit analysis on regulations prior to their enactment to en- 
sure that the regulations do not impose an unnecessary burden on 
the small business community. 



21 

Is there ever an instance when cost to business is more impor- 
tant than saving even one Ufe? 

Mr.SwANSON. Definitely not, but we all go through, in a running 
a business and what we're doing, a cost-benefit analysis or risk re- 
ward and I think that that's probably appropriate for the Govern- 
ment to take a look at, too. 

Why have the multiplication of different regulations causing a 
higher bureaucracy and higher Federal debt and putting the bur- 
den on the small business person to keep up with all the paper- 
work? That takes me away from running my business and pretty 
soon I fold. At this point the economic train in this country is being 
driven by the small business community. 

Ms.Velazquez. Any other of the witnesses like to respond to that 
question? 

Mr.LUNNlE. I'd like to mention very quickly there is a very fun- 
damental, and I take the Secretary's word, an honest difference on 
the question of cost-benefit. We would argue that you're not trying 
to balance the value of a human life versus what it costs in the 
standard. 

We would argue, however, that unless you take into consider- 
ation the economic consequences, along with the benefits and what 
one expects to follow from a new rule, unless you do that you're not 
likely to get the best rule, number one, and you're not likely to be 
able to prioritize your standards development priorities. I'd follow 
that up with including in the standards development process itself 
an independent peer review, letting other people look at it, assess- 
ing relative risk and a number of other issues, beyond cost-benefit. 

Ms.Velazquez. Don't you agree that with the executive order 
from the President to reduce paperwork, that there has been a 
change in attitude coming from the administration? 

Mr.LuNNlE. Well, I don't disagree that there hasn't been a 
change. Where I do disagree is just as there have been improve- 
ments, we could slough off and see a change with any new adminis- 
tration. If they work, we see it appropriate to put it into law. 

Ms.Velazquez. You don't consider that H.R. 3234 in no way 
weakens health and safety? 

Mr.LuNNlE. We think it will improve OSHA. 

Ms.Velazquez. What is your reaction, Mr. Dear? 

Mr.DEAR. Congresswoman, I believe that H.R. 3234 would be a 
retreat, not an advance, in worker health and safety, specifically 
with respect to the cost-benefit test, basing all our standards deci- 
sions upon that strict test, and also the changes in the record- 
keeping requirement, which would make it impossible for us to as- 
sure that we had accurate information about workplace health and 
safety conditions. 

Ms.Velazquez. Thank you. Madam Chair. 

Chair Meyers. Thank you, Ms. Velazquez. 

Mr. Brownback. 

Mr.BROWNBACK. Thank you very much. Chair Meyers. I appre- 
ciate that very much. 

I have two questions for Mr. Dear, if I could, on the issue of 
methylene chloride, so it's a very particular and narrow issue and 
I apologize but if you could respond to this, I'd appreciate it. 



22 

I understand that EPA is currently reassessing the potential can- 
cer risk of methylene chloride under its proposed revised guidelines 
for carcinogenic risk assessment and that the reassessment will 
provide for a review of all the scientific evidence with open peer re- 
view by the scientific community. 

Can you tell the Committee what steps you would propose to 
take to assure that OSHA's methylene chloride standards, which I 
understand are now before 0MB for clearance as a final rule, 
would be based on a risk assessment that is consistent with the as- 
sessment being carried out by EPA under the new guidelines? 

Mr.DEAR. You're correct. Congressman Brownback. The standard 
is in the final stage of review at the Office of Management and 
Budget. The question you asked about the consistency of OSHA's 
determination of the risk of methylene chloride with EPA's is one 
of the things that 0MB is looking at. 

I'd be happy to reply in some detail but in general, EPA and 
OSHA are in agreement about the nature of the risk posed by 
methylene chloride, and that communication has been made to the 
Office of Management and Budget. 

We have done what we believe is a state-of-the-art risk assess- 
ment on methylene chloride. We reviewed our risk assessment 
after submitting it to 0MB in 1994 and completely redid it before 
we resubmitted the proposal this summer to the Office of Manage- 
ment and Budget. We have tried to take account of all the latest 
scientific information and the latest techniques for evaluating risk. 

There's one other thing I want to point out with respect to peer 
review. OSHA rule hearings are conducted in a way that's very un- 
usual. These are open trial-type hearings and all the parties are 
permitted to speak and question other parties as they present in- 
formation on the record. 

So, for example, when OSHA makes its case about the nature of 
the risk, industry or labor participants can ask OSHA direct ques- 
tions on the record. Similarly, industry, scientific or labor rep- 
resentatives are subject to questioning by other parties participat- 
ing in the process. I think this is a very robust form of peer review, 
if you will, in the standard-setting process. 

We reopened the record on methylene chloride to be sure we 
have the latest available information. We have tried to be, in our 
evaluation, compliant with the concerns about small business im- 
pact, even though this final rule is not subject to the new SBREFA 
requirements. We've done a very detailed review of impact because 
there are small business impacts in that regulation. 

So, I'm very confidant that we have a proposal which is going to 
be successful in preventing a number of cancer deaths that would 
currently occur if we do not reduce the exposure limit on methylene 
chloride. 

Chair MEYERS. If the gentleman would yield, why is it not sub- 
ject to the Reg-Flex Act? 

Mr.DEAR. Portions of SBREFA apply, particularly with respect to 
the small business participation, to the proposal stage. So, for in- 
stance, on our tuberculosis proposal, we have convened with SBA 
the review panels of small business that are required by the act. 

Methylene chloride is a proposal that's been around for a while. 
It is subject to the Regulatory Flexibility Act in terms of the ana- 



23 

lytical requirements for small business impact, but there are some 
participation requirements which are different between final and 
proposed standards. 

Mr.BROWNBACK. So, will your standards, then, be consistent with 
EPA when we're done with this or are they going to be different 
standards? 

Mr.DEAR. Our standard will be applicable to worker exposures in 
the workplace. I do not know, Congressman, what EPA has specifi- 
cally proposed. If those proposals deal with exposures outside of the 
workplace setting, then they could not be inconsistent with what 
OSHA has proposed. 

Mr.BROWNBACK. I guess my point here is that you've got two 
Agencies looking at the same issue and you're providing potentially 
different standards and yours having a substantial impact on small 
business. I hope you will take this back and look at it again since 
it is still in the clearance stage with 0MB and make sure that you 
are consistent with EPA and not applying harsher standards on 
small business than what EPA is requiring them to do, such that 
you have some adverse impacts that you wouldn't necessarily want 
to count on. 

Mr.DEAR. We are definitely working with EPA on that issue of 
consistency. 

Mr.BROWNBACK. Thank you. 

Chair MEYERS. Mr. Poshard. 

Mr.PoSHARD. Thank you. Madam Chair. 

Mr. Secretary, I appreciate your being here with the other wit- 
nesses on the panel. I represent a district with a lot of coal mines 
and I certainly don't want to see OSHA any less vigilant with re- 
spect to your oversight authority or MSHA, which some folks have 
recommended be eliminated or replaced or changed in some fash- 
ion, because safety is a big concern of mine. 

But I guess I do want to ask you a couple of questions that con- 
cern me, not just with respect to safety in the workplace but our 
approach to environmental considerations in the country and so on. 

We're limited, in our resources here, via a $5 trillion debt that 
we've incurred as a Nation and about .22 cents of each tax dollar 
going to the interest on that debt now. So, in turn, we have asked 
almost every Agency of Government to cut back and I know OSHA, 
like other Agencies, has more limited resources than they ought to 
have. 

So, I guess, given that fact, it bothers me a little bit that we 
somehow take this approach that we have to get to a zero risk en- 
vironment, wherever that happens to be in the country. 

Now, I know I'm overstating a little bit here. I'm making it rnore 
simplistic than it really is. But I was sitting in my office last night 
waiting for a couple of votes and was watching "24 Hours" or one 
of those programs and we have a whole underclass of industry in 
this country that's growing, apparently, of textile workers and 
other people who are working in the most unsafe conditions, maybe 
even in the history of this country, with the exception of the sweat- 
shops at the turn of the century and other things. 

I get a home builder in my district that's calling me up. He's got 
eight guys, nine guys out on the job building a house and we're out 
there trying to insist that there's got to be somebody full-time over- 



24 

seeing safety on a little job like that and it seems like our concern 
for a whole building full of workers that aren't even getting paid 
minimum wage and having electrical wiring falling out of the ceil- 
ings and rodents running around on the floor — it doesn't seem like 
we're getting to that. 

I'm just wondering about priorities. Given the limited amount of 
resources we have, where are we putting our priorities? I'm not try- 
ing to be adversarial; I just need to know that from every Agency 
of Government because you can't be everything; you can't reduce 
the work environment in this country to absolute zero risk. 

But are we attacking the high priority safety needs in this coun- 
try or are we majoring on the minors, so to speak? I'm just asking. 

Mr.DEAR. I'm keenly aware, as the head of an Agency that's re- 
sponsible to assure the health and safety of over 90 million work- 
ing Americans who are employed at 6 million workplaces, with a 
budget of $304 million and 2,100 staff that we've got to find better 
ways of working and the strategic use of resources is key to that. 

One of the things that Congress has helped us out with is in fis- 
cal 1995 you approved an appropriation to allow us to get a better 
targeting system, to use actual individual workplace injury and ill- 
ness rates to target our enforcement resources. 

We are required by court interpretations to be random in our un- 
announced inspections. That does send us into workplaces that 
may not require OSHA enforcement attention. But that used to 
send us to workplaces that no good targeting system would have 
done. That appropriation you approved in 1995 has now resulted 
in new data available to us in August 1996 which will change the 
targeting program. 

We're really trying to work with employers who want to work 
with us in the partnership approaches, to leverage the resources in 
a constructive manner. We also have to use that enforcement re- 
source where it's now and the show you saw about the appalling 
conditions in sweatshops is an indication of why it's important that 
we have a strong public policy about worker health and safety and 
why we have Agencies with adequate resources to do the job. 

Now, in those sweatshops one of their problems is repetitive mo- 
tion injuries. We're currently blocked by Congress from even pro- 
posing a standard which would allow us to address that hazard. 
We've not made a proposal. I've not even recommended to the Sec- 
retary what we should do in that area, but I hope we'll have the 
ability to address a hazard like that, through all of the appropriate 
processes of involvement and bringing the controversial questions 
to light. 

The last thing, if I could, the zero risk question because we're ac- 
cused of doing that. I've heard the owners of small businesses and 
I've heard the chairman of a very large enterprise say the same 
thing, which is our goal in this company is zero accidents. It may 
not be realistic but if we say we will accept an injury, then we're 
saying we will tolerate that one of our employees be hurt on the 
job, and I won't do that, so our company's goal is zero injury. 

Our goal at OSHA is to drive the rate down to as low as we can 
get it. 

Mr.PoSHARD. As well it should be. Again, I just want to make 
sure that given the limited resources we have, we're trying to ac- 



25 

complish that objective in the worst case first because we have to 
set priorities, too. All of us do. 

Madam Chair, I need one more question here. I'm probably not 
going to be able to stay for another round, if I may. 

Chair Meyers. Proceed. 

Mr.PoSHARD. I'd like to direct this question, I think, to Mr. 
Larsen, if I may. Mr. Larsen, I think it was in your testimony that 
you made the statement something to the effect that even though 
some progress is being made, we still have more of a punitive en- 
forcement approach, as opposed to a consultative cooperation ap- 
proach. 

I guess the defining measure there as to what constitutes one or 
the other of those is the good faith effort. Now, how do we define 
that. Who makes that decision as to whether someone is making 
a good faith effort to come into compliance with the law? Can I get 
both yours and Mr. Dear's response to that? 

If we haven't gotten there yet, where's the middle ground be- 
tween the Agency and the small business to adequately define that 
so that there's satisfaction both ways? 

Mr.LARSEN. We are making progress and we have certainly been 
working with Joe Dear and some of his people, and our regional ad- 
ministrator in Region 8 in Colorado to change that culture, and it's 
moving in the right direction. But we still need to go further and 
we'd like to see some changes become part of the statutes. 

Right now, with Administrator Dear's help, it's certainly been co- 
operative and we're moving the right way but we need to change 
the statute so that when Administrator Dear retires or the admin- 
istration changes, we have that carry forth. We'd like to see that 
written into the regulations. 

Mr.PoSHARD. Thank you. Mr. Secretary? 

Mr.DEAR. We're testing an evaluation tool, a program evaluation 
profile, a single sheet of paper with basic questions about an em- 
ployer's approach to health and safety. Our intention is to use that 
tool to be the thing that helps us guide the decision about whether 
we have an employer who's doing a great job, whether we have em- 
ployer who's trying but has some room for improvement, or wheth- 
er we've got somebody that's not obeying their obligation to provide 
a healthy and safe workplace. I'll give you a copy of it. This is it. 

Mr.PoSHARD. So, there is some attempt, then, to standardize this 
approach so that we just don't have some nebulous quality out 
there left up to the discretion of any individual investigator. 

Mr.DEAR. Exactly. The reason why we haven't implemented it 
nationwide is I want to be sure, as we test this out, that we don't 
have something that's too simple and doesn't do a good enough job 
of making distinctions and we don't have something that's too cum- 
bersome and takes too long and that is overkill in terms of what 
we do. 

I think we're getting close with this form but this is designed to 
tell us what's the management leadership position in this com- 
pany? Have they done an analysis of the hazards that are present 
in the workplace? Do they keep track of what's happening? Do they 
keep injury and illness records? And what are they doing in train- 
ing? 



26 

If you score high on this, then you're eUgible for a huge penalty 
reduction, an 80 percent penalty reduction if you score on the top 
score. If you score low, you'll see enforcement and serious con- 
sequences. 

So, yes, sir, we've got a tool. 

Mr.PoSHARD. Thank you, sir. Thank you. Madam Chair. 

Chair Meyers. Thank you, Mr. Poshard. I'm going to make a 
couple of comments and then I'm going to recognize Mr. Hefley. 

You don't have to respond to this right now, Mr. Dear, but I 
would like you to think about this and maybe later you can com- 
ment on it. 

I do believe that there was a draft of the ergonomics rules be- 
cause this is what motivated Congress. I mean, it seemed to us as 
this was going to be a multibillion-dollar concept in its impact on 
business and we felt like we really had to do something to slow 
down the train. I think it was very frightening to business, to em- 
ployees who felt they might lose their jobs. It was going to be very 
costly. 

Second, I think the cost-benefit that's called for, if it were called 
for in the bill and they said if it exceeds a certain cost-benefit, you 
can't implement it; if it exceeds a certain cost-benefit, no one has 
to pay a fine, I would not be a cosponsor of the bill. 

But I think it's very worthwhile to have Agencies look at what 
they're doing and what the cost impact is. I think that's all the bill 
calls for. So, I'm sure the opportunity will come for you to respond 
to both of those things. I don't want to take more than my time. 

Mr. Hefley. 

Mr.HEFLEY. Thank you, Madam Chair. I apologize for not being 
here for the whole hearing. You have an outstanding panel and I 
had another hearing I have to be at, so I don't want to cover 
ground that you already have. If I ask about something you've al- 
ready covered, just tell me that. 

Joe, Mr. Secretary, you have one of the most hated Agencies in 
the U.S. Government and I'm sure you're aware of that, second 
only, I think, to the IRS, and I think for the same reasons — be- 
cause OSHA has the reputation, as does the IRS, of ruling by in- 
timidation and fear. 

We've had a building boom in Colorado — Highland Ranch, Pueb- 
lo, Colorado Springs. But all of a sudden, in the middle of a work- 
day, you can find projects which look like ghost towns. Why? Be- 
cause the word got around that the OSHA inspector is in town. 

Now, we should not be intimidated and afraid of our Govern- 
ment, our own Government. It belongs to us. Yet people are afraid 
of the IRS and OSHA in this sense. That's wrong. 

So, I introduced a bill about a year ago that you're aware of 
which basically said let's take the adversarial role out of the OSHA 
business relationship and make you a helping Agency, make you 
help create a safe workplace, and that was considered a radical 
viewpoint. The chairman of the Committee that that bill went to 
said, "Oh, gosh, I can't get this bill out of my Committee. I agree 
with it but I can't get it out." 

You, in your testimony here, have indicated you agree with that 
concept because you're trying to make it more helpful, less adver- 
sarial, and I think that's a step in the right direction. 



27 

But when I was researching for that bill I looked at all the statis- 
tics I could find on how well OSHA had done to improve workplace 
safety and found that they had done very, very little, if you can be- 
lieve the statistics, and yet they're a big part of our life out there. 

When I interviewed people like Larry here, they said in terms of 
workplace safety, there are two things that rule it much more than 
OSHA, in terms of us trying to have a safe workplace. First, we 
want to get and keep good employees. We don't want employees to 
be hurt. Second, litigation. We don't want to be sued and we don't 
want workman's comp claims and that kind of thing. But OSHA is 
just a hassle, that they don't really do anything to help us have a 
safe workplace. 

But they hassle us with enormous paperwork and if we've got a 
problem and we call them and we say, "Come down and look at 
this problem and tell us what we can do to make it safer," they 
come down and they may tell you but they will cite you at the same 
time. 

Now, you say you're getting away from this. What can you tell 
me and what can the rest of the witnesses tell me about the reality 
of that change in attitude in OSHA? You ought to nail the bad ac- 
tors. If you've got some people who are running sweatshops or 
mines that aren't safe or whatever, you ought to nail them, but 
don't be like the IRS and assume that most of the people out there 
are crooks trying to get past the system. Assume most of them are 
trying to do the right thing and they may not exactly know what 
it is and you can help them do that. 

So, what has changed since your tenure in the attitude of OSHA 
regarding this adversarial role? 

Mr.DEAK. Well first, I don't think the administrator of OSHA is 
ever going to be a popular person or that OSHA will ever be a pop- 
ular Agency, but it's not one that should create a sense of fear that 
you spoke of. Maybe some apprehension that things need,it's like 
passing a test. 

What are we doing? We have reduced paperwork violations from 
1992 to 1995 by 61 percent. We've virtually eliminated citations for 
posters, from over 3,800 in 1992 to 9 in the past year. 

We have doubled the size of our voluntary protection program, 
which is a recognition typically for larger employers of excellence 
in safety and health, and those companies are reaching out to 
small business to mentor them to improve their operations. 

We reach over 25,000 small businesses a year through free, no- 
fault consultation services, a type of helpful call. We have estab- 
lished cooperative compliance programs in over 20 States — these 
are built on our successful Maine 200 program — to give employers 
who have health and safety problems an opportunity to partner 
with us and correct those before we begin enforcement inspection 
operations. 

We've changed how we measure the performance of our people in 
the field. We don't measure them in terms of how many inspections 
they did or how many penalties or citations they issued but on 
their impact on worker health and safety. I'm trying to change the 
culture of the organization, which is not something you can do with 
a press release or a memo. It takes long, hard disciplined work. 



28 

We're trying to do a better job of distinguishing, as you've done, 
between those employers who are doing everything they can and 
may need some help from those, that minority, that tiny minority, 
who are out there neglecting the health and safety of their work- 
ers, and using tough enforcement on that small group and trying 
to help others. 

Well, Congressman, I'm convinced, and this is why proposals like 
yours and others that would eliminate OSHA's enforcement ability, 
knock out the underpinnings of the safety and health system we 
have in the United States, that the partnerships are the way to go 
when we can get them but that enforcement which establishes a 
line below which we, as a society, will not accept and creates sanc- 
tions for falling below that line is important and that even those 
companies that do a great job recognize that there are some out 
there for whom the enforcement tool is the appropriate thing to 
use. 

So, we're changing OSHA. Are we finished? No, sir, not yet. Have 
we made a huge difference in 3 years? We certainly have. 

Mr.HEFLEY. Well, I appreciate the way you couch it, in changing 
the culture of OSHA, because I think that's what has to be done 
for there to be dramatic change. I wouldn't want to take away all 
your enforcement power but I wouldn't want you to use it on people 
who are really trjdng to make an effort. 

Mr. Larsen calls the Region 8 administrator today and says, "We 
think we've got this worked out. Come out and look and see if 
we've got it like it ought to be." What happens? 

I'm sorry. Madam Chair. I see the red light has gone on. 

Chair Meyers. That's all right. You can get a response to your 
question. 

Mr.DEAR. Mr. Larsen can answer your question because I know 
he talks to our regional administrator. 

Chair Meyers. Before we get an answer there, let me say I will 
alert all of the witnesses that I'm going to give them an oppor- 
tunity to make a burning comment or ask a question of Mr. Dear, 
so you may want to think about just exactly what this is you want 
to say. 

Mr. Larsen? 

Mr.LARSEN. Thank you. As I mentioned before, we have, in Re- 
gion 8, with the administrator there, made progress on an adminis- 
trative basis in dealing and becoming more cooperative, and that's 
been healthy. I was just talking with Administrator Dear before 
the meeting started today that we have a pilot program in Region 
8 that we hope will work for us long term in the residential con- 
struction industry to keep things focussed on what's really impor- 
tant. 

Those are very productive and they're moving forth, but they are 
administrative things right now. What we want to see is the stat- 
utes changed to make things more consultative, that they're going 
to be more helpful and more assisting instead of punitive. 

I don't think that we want to take those away entirely because 
I still think that the bad actors need to — if you can't get them to 
listen and be consultative and helpful — be punished. Some people, 
the only thing they understand is a hammer. Well, use it, but we 
need to see the culture changed. We need to see the statute 



29 

changed so the attitude of everyone from top to bottom is more co- 
operative. 

Administrator Dear and his regional administrator in Region 8 
understand that, but it isn't always filtering down to the very bot- 
tom. Once in a while we run into an inspector that's as mean as 
a junkyard dog that's out there wanting to go out and get hold of 
someone. I think there's less of that than there used to be, but we 
still need to change the culture, as Administrator Dear is talking 
about doing. 

Mr.HEFLEY. There's still some hesitancy, Joe, about being com- 
pletely open with you for fear that you get the junkyard dog. 

I'd like, Larry, for you and anyone else who would like to, to look 
at the legislation we've introduced and make suggestions about 
how you think it ought to be balanced. 

Thank you very much. Madam Chair. 

Chair Meyers. Thank you, Mr. Hefley. 

I'm going to start — well, Mr. Bartlett has come in. We'll have 
questions from Mr. Bartlett and then we'll start with Mr. Lunnie. 
I'm going to give up my questioning time so that the panel can 
make some comments. Then we'll start on a second round. 

Mr.BARTLETT. Thank you very much. I'm sorry that I had a con- 
flicting Committee appointment and couldn't be here for the testi- 
mony. 

There's a young man in one of our counties about probably 50 
miles north of here who is severely handicapped. He is confined to 
a wheelchair but he chooses to make it on his own. He runs a con- 
sulting business that tries to get the regulators together. 

He told me one story that brought him to his business and that 
was a businessman who was putting in a business; he was told he 
had to have a handicapped bathroom so large and the door had to 
swing out so you couldn't get trapped inside with a wheelchair. So, 
he was building that bathroom and the fire marshall came through 
and said, "You can't swing a door out because that door is in the 
way of egress from the building." So he now had to tear out the 
door that he had swinging out. 

So, what this young man does is to get all of the regulators to- 
gether in one room at one time and tell them, "These are the plans 
and either now speak your peace or forever hold your peace be- 
cause after we leave this room we don't want anybody saying that 
the building built to these plans is not appropriate." 

Is OSHA cooperating in this kind of activity so that our business 
people across the country have the feeling that the Government is 
there to help them, rather than to harass them? 

Mr.DEAR. I'm not familiar with that specific program and, as you 
know, OSHA is administered by the State of Maryland in your dis- 
trict. 

Mr.BARTLETT. It's MOSH in Maryland; that's correct. 

Mr.DEAR. I have participated personally in round table discus- 
sions with employers when I've visited around the country to hear 
directly concerns of employers, to talk about what we're doing and 
to kind of get some news from the real world to bring back here 
to one organization inside the beltway, and I encourage all of our 
managers and staff to get out and do similar kinds of things. 



27-530 97-2 



30 

It's my hope that those discussions will produce information 
about a circumstance where employers are caught between. If 
there's a specific invitation or problem that he'd like to get us in- 
volved in, please let me know. That's a common sense kind of ap- 
proach. 

Mr.BARTLETT. Let me talk to you about one other common sense 
kind of thing. This Congress passed what I think every American 
agrees is common sense legislation relative to new regulations. 
They have to make it over three hurdles or they won't be a regula- 
tion. 

The first hurdle is that they have to be based on good science or 
good technology or good economics. The second hurdle is that the 
cost has to be justified by the benefit. As the old farmer said, "Why 
would you do that? The juice ain't worth the squeezing." I suspect 
there are a lot of our regulations where the juice ain't worth the 
squeezing. 

The third hurdle they have to make it over is that we want to 
know — our people want to know relative risk. There is a risk of 
being struck by lightening on a golf course on a clear day. That's 
not a big enough risk that I see very many golfers trailing along 
behind them a lightening asserter. Many of the risks that we're 
being protected from are no greater risks than being struck by 
lightening on a golf course on a clear day. 

Is your Agency prepared to look at all of the existing regulations 
and apply these three very common-sense rules to see if you should 
maintain that regulation? First, is it based on good science or good 
technology? Second, is the cost justified by the benefit? Is the juice 
worth the squeezing? Third, is it a risk that we really need to be 
protected against? Is your Agency prepared, without legislation 
from the Congress, to look at all of your existing regulations, apply 
those three sensible rules and eliminate all of those that don't pass 
muster? 

Mr.DEAR. We're looking at our regulations. We've conducted a 
page by page review in 1995. We've taken specific action in re- 
sponse to that page by page review, which includes eliminating 
over 1,000 pages of obsolete or conflicting standards and we're well 
on the way to accomplishing that. Over 800 pages have been done 
thus far. 

The Presidents Executive Order and OSHA's own policy and the 
interpretation of the Supreme Court with respect to costs and bene- 
fits do require us to propose regulations whose benefits justify their 
costs and we take those into account when we're promulgating 
OSHA standards. 

Third, legislation you passed does require us now, on a 10-year 
schedule, to review regulations and to see that they are, in fact, ac- 
complishing the purpose that was set out for them. 

Furthermore, we have pending requests in our fiscal 1997 budget 
which ask for funds to rewrite some of our existing standards into 
plain language. Some 600 pages of OSHA's formerly 3,000 pages of 
regulation were adopted by reference in 197 1 and 1972 without any 
public hearing. They were old consensus standards. They're the 
source of a lot of the confusion that exists today and I'd like to re- 
write them all. 



31 

We've made one proposed revision to our egress standard — you 
referred to egress in your example — in the Federal Register last 
week. So, we have begun to do that. 

As to relative risk, I think it's important to communicate relative 
risk and to try to relate the risks that people face at work to risks 
elsewhere. We generally, at OSHA, look at taking action on health 
risks, cancer risks or other health risks, when the risk level is one 
in a thousand of contracting a fatal condition. 

In our environmental standards, that standard is often more like 
one in a million. So, we're tolerating three orders of magnitude 
greater risk in the workplace than we do with the health standards 
that we set in the general environment. I think that's something 
that we ought to consider in moving forward. Your test is a way 
of raising that question. 

I'm convinced that OSHA standards make a real difference, day 
to day, in the lives and health of millions of working Americans, 
that they really make a difference and that we need to be able to 
consider to adopt common sense standards that protect health and 
safety. 

Mr.BARTLETT. Thank you. Thank you, Madam Chair. 

Chair Meyers. Thank you. 

Mr. LoBiondo, before you came in I told each of our panelists 
that they would get to ask a question of Mr. Dear and so we'll let 
them do that and then I'll come back to you for your questions. 

Mr.LoBiONDO. I'll pass. 

Chair MEYERS. Mr. Lunnie. 

Mr.LuNNlE. This is like a quiz show. I think there's general 
agreement that this administration, under the direction of Joe 
Dear, has made some improvements, certainly not all that we 
would have advocated. 

The point has been raised, I think, by all four of the business 
witnesses that the changes that have been suggested should be 
made statutorily. 

Chair Meyers. You might get a little closer to your mike, Mr. 
Lunnie. Those are very voice-activated and the people in the back 
of the room sometimes can't hear. 

Mr.LuNNiE. There may be advantages to that. 

Mr.HEFLEY. There's a short in that mike if you're not careful. 

Mr.LuNNiE. I guess the question I would pose to Mr. Dear would 
be given your goodwill, your good ideas, absent a change statutorily 
of those ideas where we can agree, just as a starting point, what 
guarantee is there that someone coming in, in a different adminis- 
tration, wouldn't change them just as easily? 

Mr.DEAR. I have found some of the changes we're trying to make 
to be hard to do. I suspect that somebody who comes in to reverse 
them in some other direction will find them equally difficult to 
change. I'm thinking specifically here about changing the organiza- 
tion's culture to one that's focussed on results. So, as hard as it is 
to change, that's a protection against making it easy. You've got to 
stick around a while to see these through. 

As I said in my statement, I believe that the fundamental chal- 
lenges that OSHA faces in dealing with the criticisms from worker 
advocates and from employer advocates deal with the administra- 
tion of the act, not the law itself, and that the law does not have 



32 

to be weakened to improve OSHA's operations. As I said, I'm more 
convinced of that after having hved under the act as administrator 
than I was even when I came here. 

I think the other key thing is that for all of the complaint that 
the citizens have about their Government and how we need to im- 
prove, and there is certainly a lot of it, that this is a responsive 
system of Government and that if employers and workers can find 
a way of speaking about their needs in a way, the Government will 
listen. I think common sense changes at OSHA — offering partner- 
ship for employers who want to do it right and want to work with 
us, using common sense in developing and enforcing regulations, 
and getting the bureaucracy itself focussed on results — are what 
people want. 

I think the next leaders of OSHA, whenever they arrive, will re- 
spond to that, as will the Congress in its oversight responsibilities 
and seeing how the Agency moves forward. 

So, I'm confident that the direction we've taken is the only logical 
one under the circumstances, the circumstances being enormously 
constrained resources, a problem which is out there which costs the 
economy and workers a great deal, and a demand from the public 
that Government improve its performance. As such, I'm confident 
that the direction we've set is the one that OSHA will continue to 
move in. 

Chair Meyers. Mr. Hayden. 

Mr.HAYDEN. I've been doing this for the last 20 years and I've 
seen olive branches before. I've also seen branding irons. Many of 
the things that Mr. Dear has initiated are good for construction 
safety and I'd like to see them continued, so I don't really have a 
burning question for him but I do have a comment. 

I hope he'll come to understand that not only does this process 
he's started need to continue, but it needs to be expanded and it 
does need to be codified, to put into law so that we can be assured 
that it will continue. 

Chair Meyers. Yes. Thank you very much, Mr. Hayden. I would 
agree with that last sentiment. 

Mr. Swanson. 

Mr.SwANSON. Thank you. Mr. Secretary, in my testimony I ap- 
plaud you for the changes that you've made but I'm a little con- 
fused with the fact that you're trying to lessen the amount of regu- 
lation, yet you have a draft of ergonomics and your other two pro- 
posals that I talked about in my testimony. It seems that OSHA 
is talking the talk but not walking the walk and I wonder if you 
could clarify that for me. 

Mr.DEAR. Well, I told you the statistics on enforcement, which in- 
dicate that we are making changes there. Let me be clear about 
ergonomics, and the Chairwoman also mentioned that. 

We certainly did engender a great deal of interest in a proposal 
to reduce 

Chair Meyers. I think you can say that. 

Mr.DEAR [continuing], the number of repetitive motion injuries. 
That's a little understatement. But we have not made a proposal. 
We published on the Internet and for anyone else who wanted a 
copy a draft set of regulations. 



33 

I did not recommend to the Secretary of Labor, and the Depart- 
ment of Labor did not forward to the Office of Management and 
Budget any specific regulatory proposal. We were still trying to get 
feedback from employers and from industry about a proposal, 
which we haven't made, and we still haven't made. If the rider goes 
away at the beginning of fiscal 1997, we're not going to come in on 
October 2 with a new ergonomics proposal. We'll be working with 
employers and experts, labor, to talk about how we can sensibly ad- 
dress the problem, and this is a real problem, as I'm sure you're 
aware in your business. 

So, it's an issue we want to deal with and we would like to deal 
with it ultimately in the form of proposed regulation as well as 
guidelines and conferences and education and outreach, but we 
haven't made a proposal. 

On safety and health programs, we'd like to make a proposal and 
we're intending to do one by the end of this year but we're develop- 
ing a proposal in the way I described in my testimony — a continu- 
ous dialogue between OSHA and those affected by the regulation 
before we even make the proposal. Shortly we'll be presenting some 
draft regulatory text, inviting representatives in to give feedback 
on that text in the next month or so and before we take the step. 

You ask some good questions about safety and health programs 
and their practical impact on small business, and those are things 
we want to consider. We want to consider how such a standard 
would be enforced. Could it be another paperwork standard or are 
we going to look at the effectiveness of the program? Does it, for 
example, even have to be written if the employer is actually taking 
care of hazards on the job? Those are the kinds of questions we're 
looking at. So, I think we're going to pass your test when we make 
that proposal. 

But I also want to say that the question of how regulatory Agen- 
cies work with small business is of continuing importance. I think 
we've made big steps but there is a difference, for a very small 
firm, in how it interacts with a Government regulatory Agency 
from a medium size or large firm. There are opportunities and ten- 
sions around that. 

Small businesses would like us to be very specific about what we 
require so that additional interpretation doesn't have to be made. 
Larger enterprises want us to be very flexible, let them figure out 
the best way. Well, that creates a tension in how we develop a reg- 
ulatory proposal. That is a matter of continuing challenge, to bal- 
ance out those interests. 

At the end of the day we all share a common interest, which is 
workplaces which are free of hazards and workers who aren't sick 
or injured, and everybody gains. I think the panel discussion and 
the Congressional interest is illustrative that everybody gains from 
that, and the question is not ends; the question is means. How do 
we accomplish that? 

Chair Meyers. Mr. Larsen. 

Mr.LARSEN. Earlier in our discussion today Representative 
Poshard mentioned an example of the home builder in his district 
that, I believe, had eight employees and was concerned about hav- 
ing full-time supervision there to enforce all of the different sub- 
contractors that work on residential construction jobs. Also the 



34 

panel here was asked about what things would we like to see 
changed on things. 

One of the issues I wanted to reemphasize and then ask Mr. 
Dear his opinion on again is a multiemployer site issue that affects 
our industry. Many builders do not build the entire house them- 
selves. They hire a number of subcontractors. Typically there will 
be anywhere from 20 to 30 different subcontractors involved in one 
home. Everybody just thinks there's two or three — electrician, the 
carpenter and others, but there will be a lot of specialty trades in- 
volved. 

Builders do not have a supervisor, 8 to 10 hours a day on each 
individual home, sitting there watching everyone. Some commercial 
construction projects will have much heavier supervision because 
they're more compact and larger but on a residential site, you do 
not have a supervisor there watching everyone all the time. We all 
want a safe environment, and we make every effort we can to pro- 
vide a safe environment. 

The multiemployer site issue, right now, allows OSHA to come 
on our job and cite a subcontractor for something that they did 
wrong. The general contractor might not have even known about, 
but they'll also cite the general contractor, and we think that's un- 
fair. We're not trying to shirk our responsibility but we would like 
to see that changed to where the company that employs that indi- 
vidual or makes the mistake, causes a violation, that they are the 
ones that are cited instead of the general contractor that may not 
even be there. 

I'd like to get a response from Mr. Dear on that, on whether he 
thinks that we can do something in that regard. 

Mr.DEAR. The multiemployer policy is important in that it pro- 
vides the ability of OSHA to hold accountable individual employers 
who are responsible for creating or allowing the continued exist- 
ence of a hazard on a work site. In my meetings with Mr. Larsen 
and others from the Home Builders sometimes instances are point- 
ed out when they say that really it was beyond the reasonable abil- 
ity of a homeowner, the general contractor, to have known and 
acted on the hazard and in those circumstances there shouldn't be 
a penalty. 

I'm willing to say that we're happy to sit down with the associa- 
tion and look at the policy as it stands today. I will note that in 
the review of OSHA's enforcement actions around multiemployer 
policy that generally we've been upheld under Section 5(a)(2) of the 
act, that employers are responsible for their own employees and to 
protect other employers' employees on a multiemployer work site. 
So, this policy we're attempting to implement is consistent with the 
act. 

The specific interpretations — when is it reasonable to expect the 
general contractor to exercise that? — is something we can talk 
about further. But as you well know, the responsibility and ac- 
countability for health and safety on a multiemployer job site may 
go beyond an individual contractor, and that's important for the 
overall health and safety of job sites. But Mr. Larsen and I and 
others can sit down and look at our current policy. 

Chair Meyers. Thank you, Mr. Dear. 

Ms. Velazquez. 



35 

Ms.Velazquez. I just have one question. Mr. Lunnie, when I 
asked Mr. Dear about if he considered that H.R. 3234 is legislation 
that weakens health and safety you said that it does not. 

Could you mention or can you cite one provision in H.R. 3234 
that is specifically aimed at improving worker safety? 

Mr. Lunnie. You're asking a question to which I'm not — let me 
respond to the question in a different manner. Can I point to a par- 
ticular provision specifically aimed at strengthening, words that 
Secretary Dear used? I would say two things. 

First, it would improve the Agency's ability to look at the broad 
range of issues over which it has authority and responsibility. Sec- 
retary Dear has indicated that he is strapped for resources, will 
never visit each and every work site on any regular basis. 

We think, for example, in the case of the cost-benefit examina- 
tion, it's not a determinative tool. It is not a strict balancing, as 
he suggested, but rather, following the guidelines laid out by Presi- 
dent Clinton in his Executive Order requiring analysis, making 
sure that the Agency is focussing its resources in enforcement but, 
more particularly, in standards development, on issues that are 
posing the greatest significant risks to the largest number of peo- 
ple. 

I would argue that simply by that one fact alone, by permitting 
OSHA to look at areas where they can have the biggest impact in 
enhancing workplace safety and health, that, in fact, that would 
strengthen the safety and health of the individual worker. 

Ms.Velazquez. Do you have a response? 

Mr.DEAR. Congresswoman, I think your question is absolutely on 
point. If the act needs to be changed, then we're going to have to 
look at proposals which not only improve the act from the stand- 
point of employers but also for workers. 

There's no review of improving whistleblower protections for em- 
ployees in the act. There's no consideration of the fact that State 
and local Government employees in 29 States do not have coverage 
under the Occupational Safety and Health Act, to mention two pos- 
sible areas where improvements in the act from the workers' stand- 
point could be made. 

As I said earlier, H.R. 3234, while it has well-stated intentions 
of codifying the administration's reinvention initiatives, would set 
worker health and safety protections and, as such, it's not sup- 
ported by the administration. 

Ms.Velazquez. Mr. Lunnie? 

Mr.LuNNlE. We get back to an area — I had written and it's in- 
cluded in my statement a letter to Secretary Reich to which Sec- 
retary Dear responded. In the second paragraph it indicates that 
we have a very fundamental but honest disagreement on philoso- 
phy of occupational safety and health and nowhere is this made 
more clear than the exchange at this moment. 

We have never advocated, as an example, reducing or backing 
away from enforcement sanctions. Where an employer is not living 
up to his or her obligation, use the biggest hammer that's avail- 
able. But, on the other hand, the cold, harsh reality is that OSHA 
doesn't have the resources it says it needs. Second, those resources 
are not going to be expanded, so it seems it's a much 

Ms.Velazquez. But that could be corrected. 



36 

Mr.LuNNlE. Not likely in this fiscal environment that you'll see 
expanded funding of any Agency. 

Ms. Velazquez. But if we, on this side in the Congress, want 
OSHA to reduce paperwork and regulations, then let's support in- 
creasing their funding. 

Mr.LuNNlE. That may occur but not assuming that in this case, 
OSHA, just as the employer community, I think, and employees 
alike, need to look at doing things better. We think that OSHA re- 
form provides that avenue. 

On H.R. 3234, I'm not sure that there was any sincere effort to 
see whether or not the differences between the administration and 
the sponsor of this legislation — any effort by the administration to 
find some middle ground on that, so I'm not quite as confident that 
there are insurmountable barriers to workplace safety and health. 

Ms. Velazquez. Thank you. Madam Chair. 

Chair Meyers. Thank you, Ms. Velazquez. 

Let me ask a question. I have several and let me say without ob- 
jection I would like to get permission from the witnesses that if we 
have questions that are to be submitted by mail, we would love to 
have responses from you. It's not required but if you have the op- 
portunity to do that, we would like to have a response. 

Let me ask a final question and I'd like to ask Mr. Dear and then 
maybe get a response because I think just as when the ergonomics 
suggested draft went out to people and it became apparent to them 
that it was just going to be overwhelmingly costly and wasn't there 
a better way to approach this than some of the suggestions in the 
ergonomics regulations, I think the next firestorm is going to be, 
if my mail and comments are any indication, has to do with the 
night retail establishment guidelines. 

I can understand where a convenience store, which seem to be 
targets in a very high crime-prone area, you certainly want to take 
some steps, but I think that the idea that this should apply to 
every work site in the country that is open at night is quite alarm- 
ing to some people. It's kind of like if one person gets injured by 
a rock thrown through a window should we require bullet-proof 
glass in every store in America? 

I do think that there is considerable alarm out there about night- 
time violence and the new requirements and would you comment 
on that? 

Mr.DEAR. We are not going to require anj^thing. We want to help. 
What we're talking about 

Chair MEYERS. Excuse me, Mr. Dear. What I am hearing from 
people is that if there are guidelines set and then it leads to litiga- 
tion, it becomes a regulation, even if it is not. 

Mr.DEAR. Well, I disagree and I think I can clarify this for you. 
As you know, homicides are the second leading killer of American 
workers and the largest killer of women at work. There are over 
a million assaults in the workplace currently. In the fatalities, 73 
percent of these are robbery-related. Some people have the percep- 
tion that it's coworkers or spill-over domestic violence that's the 
problem of violence in the workplace. It's not. We're talking about 
crimes. 

We know, because we've been in touch with firms which operate 
stores, that there are sensible steps that can be taken to reduce as- 



37 

saults and murders on the job. The Southland Corporation reduced, 
over a long period of time, robberies and assaults by over 50 per- 
cent as a result of steps they've taken. Hardee's, in describing their 
work, has reduced assaulted by 74 percent since 1992. 

What we're trying to do at OSHA is prepare guidelines and dis- 
tribute them for the use of employers who can use them if they 
apply to their situation or cannot, but this is the absolute opposite 
of a one-size-fits-all regulation. This is what a lot of employers 
have asked us to do, which is, "Give us help." 

Chair Meyers. That is not well understood. I think my com- 
ments have been that it seems like a one-size-fits-all. 

Mr. Dear. Well, it is not. Clearly, if you read the text, it says 
here are some things that work, here's the evidence for them. We 
are getting comments on these guidelines now. Originally we asked 
for comments in 60 days. The SB A said you ought to take more 
time. We've extended that for an additional 90 days. 

But here's the key point about whether this is a regulation or 
not. Some have interpreted OSHA's general duty clause authority 
to allow us to take guidelines and then turn those into a de facto 
standard. We have already issued guidelines on workplace violence 
in health care institutions. I had my chief compliance officer, the 
deputy assistant secretary, send written instructions to the field 
that those guidelines were not to be used to issue citations to em- 
ployers, and I am willing to do exactly the same thing with guide- 
lines for the prevention of violence in night retail establishments. 

So, we just take this issue off the table and talk about what 
could be done in the way of information to help prevent workplace 
tragedies. 

Chair MEYERS. All right. I want to thank all of our witnesses 
very much. You've been extremely helpful and we will probably 
have some questions that are submitted to you for your response. 
Thank you very much for being here. 

[Whereupon, at 12:11 p.m., the Committee was adjourned, sub- 
ject to the call of the Chair.] 



38 
APPENDIX 



STATEMENT OF THE HONORABLE DONALD A. MANZULLO 

BEFORE THE HOUSE SMALL BUSINESS COMMITTEE 

ON OSHA REFORM 

September 25, 1996 

10:00AM ROOM 2359 Ray burn 



Madam Chair, I commend your efforts to 
continue to hold OSHA's feet to the fire. I 
share your dismay regarding the Clinton 
Administration threat to veto HR 3 2 34, the 
Small Business OSHA Relief Act, even though 
it basically proposes to codify the "new" 
OSHA Assistant Secretary Joseph Dear claims 
to exist. 

To show that OSHA still has a long way 
to go and that HR 3 2 34 needs to become law, I 
submit for the record an unsolicited letter I 
received from the Home Builders Association 
of Rockford. For obvious reasons, the 
specific company is not identified. But what 
this letter reveals is that all of the great 
sounding rhetoric about all the changes made 
at the "new" OSHA is still a far cry from 
reality. 

Madam Chair, I look forward to the 
testimony of the witnesses here this morning 
and specifically if Secretary Dear has any 
comments on how the employees of his agency 
may have been manipulated for the purposes of 
union intimidation of a legitimate business. 

Thank you. Madam Chair, and best wishes 
on your retirement. 




39 



HOME BUILDERS 
ASSOCIATION OF 
ROCKFORO.iNC. 



Congressman Don Manzullo 

426 Cannon House Office Building 

Washington, D.C. 20515 

August 7, 1996 

Dear Congressman, 

A member of the Home Builders Association ofRockford recently 
contacted me about an experience with a local union and OSHA 
which I would like to bring to your attention. 

Union representatives were at his job site recruiting employees 
to join the union. They were told to leave the job site. The very 
next week the job site was inspected by OSHA. Three violations 
were cited. 

The builder is not opposed to employees joining the union, just 
the recruitment of employees on the job site. The builder is not 
challenging the right of OSHA to visit the job site, or, the 
existence of the violations which have been corrected. 

His concern, which I am relating to you, is that a government 
agency may have been manipulated for "political" purposes. Then 
again, this may have just been a coincidence which I hope was the 
case. 



Sincerely, 

Dennis J. Sweeney v 
Executive Vice President 
HBA of Rockford 

DJS/djs 



40 



Jan Meyers 
Chair, House Committee on Small Business 

Opening statement for Hearing on 
"OSHA Reform: What Needs to Be Done?" 

September 25, 1996, 10:00 a.m. 
Room 2359 of the Raybum Building 



Good morning. At the beginning of the 104th Congress a clear consensus 
existed in Congress and within President Clinton's Administration that there was a 
need to change how OSHA does business with the small business community. 
There was a difference of views on how to bring about the "cultural change" , on 
how to end what was referred to as the "Gotcha mentality". 

The Administration armounced initiatives to "Reinvent OSHA" that could be 
accomplished administratively and asserted that legislation was not needed. My 
colleague from North Carolina, Cass Ballenger , has spearheaded legislative 
proposals. Earlier this session, he infroduced H.R. 3432, the "Small Business 
OSHA Relief Act" which I am pleased to cosponsor. This bill is a modified version 
of an earlier bill which seeks to codify reform initiatives that the Administration 
indicates it is aheady undertaking. 

Today's hearing will revisit the issue of how well OSHA has reformed itself, 
and whether legislation is needed and would be useful to bring about the needed 
changes. As has become the Committee's practice, representatives of the small 
business community will be impaneled with our distinguished guest from the 
Administration, Secretary Joe Dear. After everyone has presented, members of the 



41 



Committee will all have an opportunity to engage the panel. 1 want to thank our 
witnesses and the Secretary for their participation in this morning's forum. 

At the end of the White House Conference on Small Business last year. Vice 
President Gore addressed the delegates and noted they had smgled out OSHA as a 
top target on the small business hit list. He pledged that OSHA would change, 
stated that Secretary Dear had been given the ball, and then he asked the delegates 
to tell a neighbor if they experienced the change that reinvention would bring. If the 
changes did not occur, he encouraged small business to tell the Administration. 

We will hear feedback on OSHA's implementation of specific 
recommendations fi-om the 1995 White House Conference and the National 
Performance Review. I hope we will get a sense for the answer to the question: 
Has OSHA lived up to its promise to change? 

In addition, this Congress passed and enacted the Paperwork Reduction Act 
of 1995 and the Small Business Regulatory Enforcement and Fairness Act, which 
includes provisions to strengthen the Regulatory Flexibility Act and to establish 
Congressional review of agency regulations. Together, these two laws encompass 
major legislative initiatives for regulatory reform contained in the "Contract with 
America" and supported by the small business community. They are measures that 
received overwhehning support fi^om Democrats, Republicans and the President. 
They are measures that should significantly change the way OSHA intereacts with 
small business in the fiiture. I anticipate we will receive feedback on whether these 
reforms are making a difference as well. 



42 



As regards Mr. Ballenger's bill, I believe the practical provisions to codify a 
cost-benefit standard, waive penalties for small business owners who correct 
mistakes within a specified time period, eliminate certain penalties for paperwork 
violations, and establish a consultation program under which small businesses can 
request an independent safety inspection without fear of penalties makes sense and 
would help OSHA change. I am proud to be a cosponsor. I commend my colleague 
for trying to take the Administration's ideas and putting them in legislative form. 
That strikes me as a common sense step. As I have mentioned to Secretary Dear 
before, many of us in Congress want to try to make changes to OSHA which will 
last beyond his tenure and that of other Secretaries. 

We have accomplished much on behalf of small business in the 1 04th 
Congress, including increasing the insurance deductible for the self-employed, a 
broader health insurance portability measure with small business benefits, regulatory 
relief measures, and, most recently, tax incentives and pension reforms. However, 
the larger issue of OSHA reform is of tremendous importance to small business 
owners. I am hopeful forums such as this and legislative initiatives like the one 
introduced by Mr. Ballenger will continue efforts to make progress. We all agree 
we can be smarter about protecting workers at the same time we enable small 
businesses to create jobs, innovate, and grow. 



43 



REPRESENTATIVE NYDIA VELAZQUEZ 
OPENING STATEMENT 



I would like to first thank Chairwoman Meyers for convening this 
very important hearing. Let me say at the outset that I am deeply 
concerned with the impact that "The Small Business OSHA Relief 
Act of 1996." could have on worker safety and health. 

Supporters of this legislation may argue that HR 3234 is merely in 
step with President Clinton's call for a new OSHA. However the 
reality is that this legislation goes too far by tying the hands of an 
agency whose sole purpose is to protect working class Americans. 
This legislation represents a return to the not so distant past when 
millions of workers died on the job at the hands of unscrupulous 
employers. 

Although OSHA has cut the death rate for American workers in 
half and eliminated many old hazards since its inception, workers 
are still at risk in the workplace. 
At a time when we should be working to protect Americans, this 



44 

legislation reduces regulations and cuts cost at the expense of 
worker safety. In fact, HR 3234 does not include one single 
provision aimed at protecting workers. 

Mr. Dear, given the fact that 55,000 workers die each year and 
another 7 million are injured due to work related injuries should we 
really be working on legislation that will weaken worker protection 
standards? 



45 



STATEMENT OF JOSEPH A. DEAR 

ASSISTANT SECRETARY OF LABOR 

FOR OCCUPATIONAL SAFETY AND HEALTH 

BEFORE THE 

COMMITTEE ON SMALL BUSINESS 

U.S. HOUSE OF REPRESENTATIVES 

September 25, 1996 

Chairwoman Meyers and members of the Subcommittee: 

Thank you for the opportunity to speak today about OSHA's initiatives to reduce 
the regulatory burdens on small business employers while assisting them in protecting 
their employees. When I testified before this Committee in July 1995 OSHA had just 
begun to implement the President's regulatory reform initiatives. I would like to 
bring you up to date on our progress in creating the New OSHA and describe how the 
New OSHA has implemented the recommendations of the White Hoxise Conference 
on Small Business. 

The New OSHA 

In May 1995 President Clinton announced the New OSHA, and the agency began 
doing business in a way that is different than ever before. OSHA now emphasizes 
cooperative partnerships with employers and workers; common sense regulations 
written in plain language; and a new agency cxilture focusing on the reduction of 



46 

injuries and illnesses rather than the number of inspections and penalties. Our new 
approach is improving the agency's ability to protect America's workers. It has won 
numerous awards and has been praised by members of this Congress. 

The old OSHA was too confrontational with employers, often failing to distinguish 
between responsible employers and those who negleaed their workforce. The New 
OSHA rewards responsible employers with cooperative programs, penalty reduaions 
and other incentives. Serious violators of the law, however, receive serious penalties. 
You may have read of the deplorable working and living conditions at Decoster Egg 
Farms in Turner, Maine-one of the largest egg producers in the country. Workers 
toiled 10 to 15 hours a day picking up dead chickens and handling manure potentially 
infected with the Salmonella virus, with no equipment to protect them. OSHA 
inspected the workplace and proposed a fine of $3.6 million for violations foimd there. 

On the other hand, firms which choose partnership work together with the agency 
to identify and eliminate workplace hazards. Under OSHA's Cooperative 
CompUance Programs OSHA is working in partnership with employers in twenty 
states to encourage and assist them in removing such hazards. Traditional OSHA 
enforcement is reserved for those employers who do not cooperate in proteaing their 
workforce. 



47 

In the past, many employers believed that OSHA did not listen to them when the 
agency began working on a regulation that would affect their business. As a result, the 
rules turned out to be complicated and difficult to understand, particularly for small 
business employers. The New OSHA consults with those affected by its standards at 
the earliest opportunity to ensure that new rules make sense. As required by the 
Small Business Regulatory Enforcement Fairness Act (SBREFA) we involve small 
business employers whenever a rule would have a significant economic effect upon 
small businesses. 

For instance, OSHA is developing a regulation that would limit worker exposure 
to tuberculosis. Before we even issue a Notice of Proposed Rulemaking, the first 
formal step in the process, we are consulting with almost a dozen small business 
employers, who are reviewing a draft of the proposal and providing comments and 
information to the agency. OSHA also consulted with small business owners in 
resolving an issue over regulations concerning exposure to asbestos. The industry was 
satisfied with the results of our discussions and as a result will work with us in 
proteaing employees from asbestos dangers. An official with the National Roofing 
Contractors Association said that, "with the cooperation of OSHA we were able to 
negotiate a reasonable and workable solution." 



48 

The Old OSHA seemed more interested in penalizing employers than in reducing 
injuries and illness. In ha, some small business employers believe that OSHA is 
directly funded by the penalty funds it colleas. In past years inspeaors were even 
evaluated en the numbers of inspections, citations and fines which they issued. The 
Nev.' OSHA has eliminated this kind of performance measure. Now, agency 
inspectors will be rated on their ability to help employers and employees bring about 
real improvements in workplace conditions. We are more interested in the number of 
hazards abated than the amount of penalties collected. 



White House Small Business Conference 

In 1995 a White House Conference on Small Business issued sixty recommendations 
for government agencies to follow in dealing with small businesses. Three of the 
recommendations dealt specifically with OSHA. I would like to describe for you our 
response to each of these recommendations. 

The Conference recommended that agencies periodically review all regulations, 
simplifying the rules and reducing paperwork wherever possible. Consistent with a 
directive issued by President Clinton, OSHA responded by conducting a page-by-page 
review of existing rules to identify those which were outdated, duplicative, and 



49 

conflicting. We then took a number of actions. First, we eliminated 645 pages of 
duplicative regulations that affected the construction and shipyard industries. Then, 
last March OSHA removed 275 more pages of our rules by combining a number of 
regulations dealing with cancer-causing chemicals and eliminating regulatory text that 
discussed certain testing procedures and specifications. Two weeks ago we became 
more "user-friendly" by proposing to re-write our standvd on exit requirements in 
simple, easy-to- understand language. Instead of laboriously detailed requirements for 
"means of egress," the rule will simply say employers must ensure that exit routes 
support the maximum load necessary. 

Before we are through, OSHA will eliminate more than 1000 pages of regulations 
and will simplify himdreds more. New rules put out by this administration will be 
written in straight-forward, common sense language and will be accompanied by 
compliance assistance materials. Consistent with SBREFA, these materials will include 
a special focus on small business. 

While recommending that government reduce regulations, the small business 
conference also requested that there be a single source for all government regulatory 
information. The Administration has made available on the Internet the U.S. Business 
Advisor, which is a one-stop point of contaa for information about government rules 



50 

and regulations. It contains links to OSHA's outreach and information sites. In 
addition, OSHA has a Home Page on the Internet, which is being expanded and 
revised. In this interaaive environment, employers can receive copies of OSHA's 
standards and compliance assistance materials. They may also ask questions about our 
rules and receive information on the best work practices to safeguard their employees. 
The Home Page should be particularly helpful to small business employers who were 
hesitant to call OSHA's local offices for assistance in the past because they feared that 
doing so could result in inspections and fines. 

OSHA also offers assistance on individual regulations. We have made available the 

Asbestos Advisor, an interactive compliance assistance tool that can be installed on a 

personal computer. It can interview the user about the type of buildings and work 

sites as well as the kinds of tasks which workers perform there. The Asbestos Advisor 

then provides guidance on how OSHA's asbestos standard applies to the building and 

the work done there. Those who have used this tool find it very helpful. The 

Building Owners and Managers Association has described Asbestos Advisor as: 

logically formatted and easy to use. The idea of compliance software is a new 
one for the govemment-and BOMA is pleased to be part of this venture. It 
opens the door for greater cooperation between government and the private 
sector, and takes advantage of personal computers which nearly everyone can 
now use. 



51 

The second recommendation affecting OSHA was that the federal Government 
change the way in which it enforces regulations. OSHA has been a leader in doing just 
that. For instance in 1993 OSHA initiated the Maine 200 Program in which 200 
employers with the most workers' compensation claims were given a choice-either 
cooperate with OSHA in removing hazards or face traditional OSHA enforcement. 
The program was a success as all but two employers chose to be partners. 
Participating employers eliminated worksite hazards at a rate 14 times greater than was 
possible under the old OSHA. OSHA was able to concentrate its enforcement 
resources on those who refused to cooperate. They received inspections. 

The Maine 200 program won a Ford Foundation Award for Innovations in 
American Government. As I mentioned, the concept of cooperative programs has 
been expanded to nineteen other states. 

Forming partnerships with industry allows OSHA to leverage its resources and 
reach more workplaces than could be done through our own enforcement efforts. 
The Voluntary Proteaion Program consists of companies which have gone beyond 
OSHA's requirements in proteaing their workforce and involving their employees in 
that effort. Most of the participants are larger companies. Some of these larger firms, 
however, are using their expertise to mentor and assist smaller companies in making 



52 

workplace improvements. For example, Exxon's facility in Linden, New Jersey is 
working with two small business employers in that area so that they can meet the 
same standard for worker proteaion achieved by Exxon. 

Another enforcement irmovation is OSHA's "Quick Fix" program through which 
employers can receive a 15 percent penalty reduction if they take corrective actions on 
the same day in which the problem is identified by OSFLA's inspeaor. The policy 
does not apply to violations resulting in a fatality or serious injury. It demonstrates 
that we are more concerned with proteaing workers than colleaing fines. 

OSHA uses focused inspeaions in the construction industry to employ resources at 
the most hazardous construaion worksites and avoid employers who are already 
doing a good job of proteaing their workforce. If the contraaor has a safety and 
health program that meets OSHA's requirements, the inspector concentrates on the 
four leading construction dangers-falls, electrocutions, crushing injuries, and being 
struck by material or equipment. A focused inspection concentrates on these hazards, 
which cause 90 percent of all deaths in construction, instead of the myriad OSHA 
regulations that a general inspection would encompass. In Fiscal Year 1995 OSHA 
conducted 1, 375 focused inspeaions, which represented ten percent of all inspeaions 
in the construaion industry that year. 



53 

The nursing home industry is one the of the fastest growing sectors of our 
economy and incudes many small businesses. Unfortvmately, nursing home workers 
face the third highest rate of occupational injuries and illnesses, according to the 
Bureau of Labor Statistics. To assist the owners in protecting their workforce from 
back injuries, workplace violence, exposure to bloodbome diseases, and other hazards, 
OSHA is offering free, comprehensive safety and health seminars, designed for nursing 
home employers in seven states which have large numbers of these facilities. We have 
learned that enforcement alone does not solve all workplace safety and health 
problems. Innovative efforts such as the nursing industry assistance program are a 
new way of addressing these problems. 

One of OSHA's most important regulations is the Hazard Communication 
Standard, designed to ensure that workers are aware of the dangers from toxic 
substances in their work environment. The regulation requires that information on 
thousands of toxic substances used in American workplaces be sent from 
manufacturers to employers. Employers must pass the information on to employees 
and ensure that they receive training about dangers from chemicals in their workplace. 
Some small business employers have been overwhelmed by the volume of 
information sent by manufaaurers and have needed assistance in understanding the 
more technical aspeas of the standard. To address these problems OSHA convened a 



54 

working group of the National Advisory Committee on Occupational Safety and 
Health to make recommendations on ways for helping small business employers 
understand and comply with the rule. For example, the workgroup recommended 
that OSHA, in partnership with industry and labor, develop a core training program 
and procedures for identifying hazards to assist small business employers. The 
workgroup further recommended that OSHA urge chemical manufacturers to include 
a statement on the first page of each Material Safety Data Sheet indicating whether the 
substance was regulated under the standard. This would reduce the amoimt of 
material that must be compiled by employers. OSHA is considering these 
recommendations and will decide soon if changes need to be made in the way the 
standard is enforced. 

The New OSHA has restructured many of its local offices so that we can serve our 
customers better while eliminating red-tape and improving our inspeaion targeting 
system to focus on the most dangerous workplaces. We measxire the performance of 
OSHA's staff not on the number of citations and fines they issue but on the changes in 
injuries and illnesses in those industries in which they concentrate their resources. 

What does this mean for employers? It means that OSHA tries new ways of 
working with them, such as a projea in Atlanta in which we teamed up with the 



55 

insurance companies and others to do on-site risk assessments for employers who 
wanted to improve safety conditions. One of the risk assessments conduaed by 
Georgia's on-site consultation program and the Argonaut Insurance Company helped 
the Horizon Steel Erectors, Inc. establish a fall protection program for steel erectors. 
Not only were workers proteaed, but the company realized a 96 percent reduction in 
its workers' compensation costs. 

Another of the White House Conference recommendations dealt with paperwork, 
exemption from fines, voluntary compliance audits, and the development of 
construaion standards. 

Small business employers have been particularly concerned when OSHA cited 
them for paperwork violations unrelated to safety and health, such as the failure to put 
up a poster about OSHA. In Fiscal Year 1992 OSHA issued 3842 violations of the 
requirements for a poster. We have stopped these practices. When an inspeaor finds 
a workplace without the required poster, the employer is given a poster rather than a 
fine. 

I have instructed OSHA's inspectors to stop issuing citations and penalties when 
there are minor violations of recordkeeping requirements such as failure to keep a log 



56 

when no injuries occur at the workplace. As a resuh citations for the most common 
paperwork violations declined by 61 percent between Fiscal Year 1992 and Fiscal Year 
1995. 

OSHA is making several changes in its penalty policies that should be of benefit to 
small business employers. The OSH Act has always allowed OSHA to consider the 
size of the business in determining the amount of a proposed penalty, and penalties are 
frequently reduced for small business employers who have shown that they try to 
protect their employees. We are now testing a policy of increasing to as much as 80 
percent the maximum allowable penalty reduaion for size for employers with 1-10 
employees. The agency is also testing a policy that would eliminate penalties for 
other-than-serious violations for employers with 250 employees or fewer if there are 
no willful, repeat or failure-to-abate violations foimd during the inspection. These 
changes are consistent with the New OSHA's philosophy that our ultimate goal is to 
eliminate workplace hazards, not to collea penalty money from employers. 

I have fought hard to ensure that the Congress continues to provide adequate 
funding for OSHA's on-site consultation program, which has provided free safety and 
health advice, upon request, to small business employers for almost twenty years. 
The consultation service, similar to an audit of the workplace, is available throughout 



57 

the nation. It is funded by Federal OSHA and administered by the states. The 
consultants provide assistance over the telephone or at the employer's workplace. In 
the past 5 years more than 100,000 small and medium-sized employers have received 
consultative assistance from this program. 

OSHA's construction standards apply to large and small-sized contractors alike 
because many of the hazards faced by employees in the construction industry are 
present in all kinds of workplaces. But OSHA recognizes that smaller contraaors 
may need assistance in complying with its regulations. To assist homebuilders, we 
have issued a directive allowing employers to provide methods of fall protection other 
than the conventional methods required by the standard, as long as workers receive 
equivalent protertion. Because of concerns expressed by representatives of 
homebuilders OSHA is also working on a revision of its fall proteaion rules as they 
apply to residential construction. We will listen to and evaluate fall proteaion 
methods suggested by various industry groups, including the homebuilders and 
roofing contraaors. 



Small Business Relief Act of 1996 

I wish to say a few words about H.R. 3234, the Small Business OSHA Relief Aa of 



58 

1996. I am deeply concerned about this legislation and the impact it would have on 
worker safety and health. Rather than codify the New OSHA initiatives, as claimed, 
the bill would substantially compromise worker proteaion. 

One of the most troubling provisions is seaion 2, which contains an undefined new 
requirement that all new OSHA standards must be "based upon'a cost benefit analysis. 
This provision could increase Htigation among workers, employers, and OSHA. Even 
worse, it could be interpreted to be inconsistent with the core principle in the OSH 
Act that American workers should be protected from significant risks to the extent 
feasible. The Supreme Court has said that OSHA can (and should) produce standards 
that have jixstifiable benefits without translating the right to be free of preventable 
harm into a monetary formula. OSHA considers costs and benefits in developing 
standards, but does not affix a dollar value to Ufe and limb. Executive Order 12866 
calls for rules for which benefits justify costs, and the Department of Labor is in 
compliance with this because it is flexible as opposed to the stria statutory language. 

H.R. 3234 would substitute a formal, stria cost-benefit analysis that treats worker 
deaths, injuries, and illnesses as a cost of doing business. In some cases OSHA might 
have greater difficulty in proteaing workers against certain hazards. OSHA might 
also not be able to give adequate consideration to faaors such as equity (should 



59 

workers have to accept greater risks than the general public because they need a 
paycheck?) in developing regulations. If H.R. 3234 were enaaed OSHA could 
overlook particularly vulnerable subpopulations of workers, such as women of 
childbearing age, or value younger workers more highly than older ones. 

For example, several hundred thousand textile workers developed "brown lung"- a 
crippling and sometimes fatal respiratory disease-from exposure to cotton dust before 
OSHA issued protections in 1978. Subsequently, the percentage of workers affected 
dropped from 20 percent of the industry's workforce to 1%, and the problem has all 
but disappeared today. Yet OSHA might have had to delay these proteaions for 
years, or withdraw them altogether, if it had been required to satisfy a strict cost- 
benefit test. 

H.R. 3234 would also impede our efforts to target the most dangerous workplaces. 
As I have described, the New OSHA has begun reducing or eliminating penalties for 
technical paperwork violations while direaing our enforcement activities to the most 
dangerous worksites. The bill would preclude OSHA from issuing citations for non- 
willful, first time violations of any recordkeeping or written program requirements 
unless the violation resvilted in the employee being exposed to a hazard. This 
provision would make OSHA's recordkeeping requirements largely imenforceable, 



60 

since failing ro record an injury or illness would not, in most cases, by itself expose 
workers to a hazard. Thus, H.R. 3234 would make it extremely difficult for OSHA to 
gather data on injuries and illness. The bill would seriously impede the agency's effort 
to identify the most dangerous workplaces and target them for inspections. In fact, 
without accurate injury and illness records from employers, how would OSHA-or 
even employers-know whether workers had been injured or exposed to harmful 
substances? 

In summary, H.R. 3234 proposes reforms which come at the expense of worker 
protection. Although some provisions appear consistent with the Administration's 
reinvention efforts, the seaions on cost benefit analysis and recordkeeping 
enforcement could impede OSHA's efforts to do a better job. If this bill became law, 
it could represent a retreat on worker proteaion rather than an advance. 

The significant problems and opportunities facing OSHA stem not from the statute 
but from the way it is enforced. As OSHA reinvention initiatives over the past three 
years have shown, administrative changes, stakeholder involvement with the agency, 
use of common sense, and the proper use of our resources demonstrate that we can 
help employers achieve safety and health. We can solve OSHA's problems without 
changing the law in problematic ways. 



61 

The New OSHA has made partnership a cornerstone of the way we do business 
with employers and workers. By offering employers a choice between cooperation 
and enforcement, by using common sense in developing and enforcing regulations, and 
by focusing OSHA on results, we have changed the agency for the better. The 
changes we have made will be lasting changes because they make sense to those who 
are involved with this agency. 

I appreciate the Committee's interest and support for our efforts. I would be happy 
to answer any questions. 



27-530 97-3 



62 

Testimony of 

Ed Hayden 

On Behalf of 

The Associated General Contractors of America 

Presented to 

The House Small Business Committee 

September 25, 1995 



i 



63 



SUMMARY OF THE ASSOCIATED GENERAL CONTRACTORS STATEMENT 

BEFORE THE HOUSE SMALL BUSINESS COMMITTEE 

"OSHA REFORM AND RELIEF FOR SMALL BUSINESS: 

WHAT NEEDS TO BE DONE?" 

The Associated Genera] Contracton of AmericB (ACQ, representing more than 33,000 companies, including 8,000 
of America's leading general construction contracting firms, supports the goal of "Reinvent OSHA," which is to make 
OSHA a more user-Mendly agency dedicated to improving safety. Several of the "Reinvent" initiatives are 
supported by AGO, including the Focused Inspection Program, the creation of die Constiuction Directorate widiin 
the Occupational Safety and Health Administration, and the drop in the number of inspections made by OSHA. 
There arc also several initiatives in "Reinvent OSHA" that AGC opposes, including the proposal to combine 
general industry standards with construction industry standards, the proposed ergonomics standard and the 
proposed recordkeeping standard. 

While there are specific "Reinvent OSHA" initiatives where AGC has taken a position, the policy is 
fimdamentally flawed in one crucial respect. None of the changes proposed by Assistant Secretary Dear are 
permanent. What guarantees are there that the next OSHA administrator v^U maintain the policies set forth m 
"Reinvent OSHA?" That's why enactment of Rep. Ballenger's bill, HR 3234. the SmaU Business OSHA Relief 
Act of 1996 is so important This legislation will ensure that the policy changes initiated by Assistant Secretary 
Dear will be continued. AGC siq)ports HR 3234, which would codify the several "Reinvent OSHA" initiatives, 
including: 

Require OSHA to perform a cost/benefit analysis before issuing a new standard. 

Allow employers to abate violations witiiout citations, provided the employer is acting in good fiiith and 

the violation does not constitute a significant threat to safety and health. 

Eliminate citations for paperwork violations, unless it is a willful or repeat violation or if the £ulure to 

meet the paperwork requirement exposes the employee to a hazard. 

Codify the Small Business Consultation Program. 

Prohibit OSHA from using arbitrary numbers or quotas for citations, inspections or performance measures. 

AGC &vors adding provisions to HR 3234 that would: 

Amend the OSH Act to clarify safety responsibilities on multi-employer worksites. 

Create incentives for participation in the Small Business Consultation Program, as recommended by tiie 

White House Conference on SmaU Business. 

Allow drug testing as ()art of a comprehensive safety and health plan. 

Codify the Voluntary Protection Program (VPP) and require the Secretary of Labor to create a VPP 

program for construction companies. 

Prevent OSHA from issuing General Duty Clause citations. 

Allow third-party inspectors to perform small business consultations, as reconameaded by Vicc-Piesident 

Al Gore in "Reinvent Government" 

Prevent OSHA from issuing citations for accidents caused by employees not following well-established 

woricplace safety and health rules. 



64 



Good morning. My name is Ed Hayden, and I am testifying on bcfaalf of the Associated Oeneral 
Contractors of America. AGC is a national trade association representing more tiian 33,000 firms, inchiding 8,000 
of America's leading general contracting firms. They are engaged m the construction of the nation's commercial 
buildings, shopping centers, factories, >varefaouses, highways, bridges, tunnels, airports, water works fiicilities, 
waste treatment facilities, dams, water conservation protects, defmsc facilities, multi-family housing projects and 
site preparation/utilities installation for housing developments. AGC has committed significant resources to 
expanding safety and health education and training programs, including those sponsored in cooperation with the 
Occiqiational Safety and Health Administration (OSHA). AGC is continuously developing new safety programs, 
products and services to advance construction industry safety and health. I would like to thank the Chairman of 
the Committee, Rep. Meyers, and the other members of the House Small Business Committee for giving me the 
opportunity to testify on this important issue. 

When the "Reinvent OSHA" initiative was announced, AGC welcomed it as a break from the agency's past 
AGC supports the goal "Reinvent OSHA," which is to make OSHA a more user-friendly agency dedicated to 
improving worlq}lace safety and health. Several of the new initianves proposed by OSHA are commoo-seose steps 
in the right direction. For example, AGC members have been the subject of one of the OSHA initiatives, the 
Focused Inspection Initiative. Under the Focused Inspection Initiative, OSHA mspectors will come on a worksite 
and look only at four specific hazards - falls, struck bys, caught in/between, and electrocutions," since 90V* of 
construction fatalities are caused these hazards. Having OSHA focus its limited resources on these hazards will 
force construction companies to improve safety procedures in these areas. While AGC supports the Focused 
Inspection Initiative, its ^iplication has been somewhat mixed. Some contractors have foimd the quality of these 
inspections to be mixed and the targeting of the inspections has been inconsistent 

AGC also siqiports the creation of the Construction Directorate witiiin the Ocoqational Safety aad HeaMi 
Administration. We would like to thank Assistant Secretaiy Dear for his support aiKl cooperation in helping create 
this office. Our members believe that construction industry needs a strong voice within the agency. A lack of 
expertise in construction safety is one of the top complaints AGC members have with OSHA inspectors. AGC 
beheves the creation of the Directorate will better edwatc OSHA inspectors at^rignwl to construction jobsitcs and 
improve construction safety and health standards. 

AGC members have also noticed a drop in the number of inspections made by OSHA. Whether this is part 
of a general policy shift by OSHA to conduct fewer inspections or just a temporary drop is not known. AGC would 
hof)e that the drop in tiie number of inspections is part of a consistent policy by OSHA to better utilize its limited 
inspection resources to focus on hazards in the workplace. AGC also hopes that programs like the Focused 
Inspection Initiative are targeting OSHA's enforcement activities on those hazards that cause woikers the most 
haim. Whatever reason there is for the drop in the number of inspections, it appears for the time being that the 
"fishing expeditions" OSHA inspectors are in&mous for engaging in have decreased. AGC believes its members 
and construction workers are being better served by titis change in policy. 

While there are several items AGC supports m "Reinvent OSHA," there are also policies OSHA is 
cunentiy pursuing that AGC opposes. In June of 1993, OSHA announced in the Federal Register (58 FR3S076) 
aproposal to remove general industry safety and health standards (29 CFR 1910) from the construction-specific 
OSHA safety and health standards (29 CFR 1 926). AGC is opposed to this proposal. Construction contractors have 
come to rely on one unified set of construction-specific safety and health standards from OSHA. This oik set of 
OSHA regulations has served AGC members well In &ct, both AGC and the construction buildmg trades worked 



65 



togetlier to place coiutniction-specific regulations in a consolidated OSHA rule book. Here is one instance where 
labor and management woriced together to develop a product that is beneficial to both. 

WUle both contractors and labor unions siqiport a separate set of standards for the construction industiy, 
OSHA is ready to finalize its proposal to remove gaiiend industry safety and health standards from the construction 
industry safety and health standards. AGC sees this as a political ploy by both the Clinton Administration and 
OSHA to claim they are eliminating regulations, vsiicn in &ct, they are not Removing general industry safety and 
health standards from construction industry safety and health standards will not eliminate or remove any of the 
responsibilities contracton have under OSHA. Instead, this proposal will cause confusion among all contractors 
as to vviiich set of safiny and health standards Qxey must follow. It will also cause contractors to purchase a second 
set of OSHA safety standards. The burden of pinvhasing a second set of OSHA safisty and health standards will 
fall disproportionately on snull contractors. 

The proposed ergonomics standard also causes AGC serious concern. In "Reinvent OSHA," the following 
statement was written about the proposed ergonomics standard. 

"Once. OSHA might have promulgated a detailed, lengthy specification standard to address 
ergonomics, resulting in rigid and ir^exible requirements. Today, using a new "common sense" 
approach OSHA instead is seeking to address the issues of ergonomics by working with business 
arid labor on ergonomics initiatives, including P-aining and education, technical assistance, and 
regulatory approaches. OSHA's effort will reward highperfijrmanceen^loyers, support employers 
requesting assistance, and address employers who fail to keep wor1q>laces free of recognized and 
serious ergonomically-related hazards. " 

While the description in "Reinventing OSHA" may sound q>pealing, the reality of the proposed 
ergonomics standard is a 700 page, 5 inch thick regulation that is not based or eidier sound science or sound 
economics. In fact, there is no found scientific data that proves mnsculoikelcta] disorders (ergonomics 
injuries) reported by constmction workers are work related. Despite the fact there is no sound scientific 
evidence for this regulation, OSHA stands ready to impose it on every company, regardless of size, in the 
construction industry. The compliance costs alone of the proposed ergonomics standard will be in the billions of 
dollars. Small contractors will have to hire outside help in order to comply with this standard. The end result of 
the proposed ergonomics standard will be higher construction costs, transferred onto consumers, and firwer job 
opportunities for construction workers. Until there is sound scientific proof that ergonomics injuries are caused 
by tasks performed at a construction site, OSHA should withdraw its proposed ergonomics standard. 

AGC is also concerned about the proposed Occupational Ii\jury arul Illness Recording and Reporting 
Requirements. This proposed standard would create uimecessary burdens and expenses for construction employers 
nationwide without any improvement in either workplace safety and health or data collection concerning 
workplace safety and health. AOC would like to see OSHA make several changes to this proposed standard. 
Specifically, AGC would like to see the provision defining the site controlling eii^>loyee to be struck from this 
proposed standard, the definition of a health care provider be revised and clarified to ensure that a qualified 
individual makes diagnosis, the criteria for muscdoskeletal disorders be revised to prevent the recording of 
misdiagnoses >^ch would degrade the validity and practical utility of the data collected, the provisions requiring 
recordkeeping on transient construction woriters be revised, and that the proposed definition for a Responsible 
Company Official be revised to reflect the operation of a multi-employer worksite. 



66 



"Reinvent OSHA" is fundamentally flawed in one crucial respect Notk of Ae changes proposed by 
Assistant Secretary Dear are pemianent What guarantees are there that the next OSHA administrator will maintain 
the policies set forth in "Reinvent OSHA?" This issue is very important to AGC members. Contractors operate 
under a fixed set of rules. In order to be successfiil, contractors follow these rules closely, in order to meet the 
obligations they've promised to their customers. Deviation &om these rules results in delays and confusion on a 
construction project When OSHA changes its policies, it is very important that ttie policy changes be enforced 
consistently Aroughout the country. Even small contractors will operate in several states. Consistent rules and 
consistent enforcement of these rules is vital for contractors. 

Consistency in both OSHA policies and inspections is vitally important to contractors. If the changes 
proposed by OSHA in its "Reinvent" policy are to succeed, contractors need to know that these policy changes 
are permanent. Contractors adjust tiiieir operating rules to conform with those of OSHA. If OSHA changes its 
policy every other year because of political consideratioiis, the inconsistency will harm ^ construction industry. 
As mentioned before, AGC welcomes the change of direction within OSHA that has resulted from "Rdnveot 
OSHA." However, AGC members would be disq)pointed if these changes were rescinded due to political pressure 
or a change of administrators. 

In order to prevent the positive changes that have occurred under "Reinvent OSHA" from being reversed, 
AGC supports enactment of Rep. Ballengei's bill, HR 3234, the Small Busmess OSHA Relief Act of 1996. Like 
"Reinvent OSHA," the concepts in Rep. Ballenger's bill r^irescnt conunon-scnse, targeted reforms begun by the 
Clinton Administration. Specifically, AGC stqiports HR 3234 for the following reasons: 

■ It strengthens the Small Business Consultation program: Most of AGC's member companies employ 
fewer than 100 employees. These companies cannot afford to hire safety and health professionals, 
industrial hygicnists or labor lawyers to assist them in complying with OSHA regulations. By codifying 
OSHA's outreach program, small contractors would have a safety resource within OSHA that can assist 
them in protecting their woilccrs. 

■ It introduces mnch-needed refnlatory reforms into OSHA: OSHA safety and health standards are 

burdensome, bureaucratic and are di£5cult to comply wi& and understand. Such broadly written standards 
end up imposing huge compliance costs on contractors, even if Ac hazards addressed by the starxiard do 
not exist within the construction industry. Moreover, OSHA's safety and health standards do not have to 
be based on sound science, or be subjected to risk assessment cost/benefit and economic analysis. By 
requiring OSHA to use cost'benefit analysis on proposed safety and healdi standards, the agency will be 
forced to focus its regulatory efforts on those hazards that hann the most workers. 

■ It gives BDull companies the opportanity to correct violations before being fined: The problems widi 
OSHA's safety and health enforcement stem from the OSH Act Under the OSH Act OSHA inspectors 
do not have the flexibility to allow for abatement of a non-seiious (meaning no threat to safety and health) 
violation of its safisty and health standards. Therefore, an OSHA iitspector must cite a contractor fior every 
violation of safety and health standards. By allowing contractors to abate a non-seiious citation, OSHA 
will remove the safety and health threat to construction workers and reward ^ ovowfaelming majority 
of conscientious contractors who make good-&itii efforts to protect their workers. HR 3234 accomplishes 
these goals without removing fte ability of OSHA to punish those few wiio do not make the proper efforts 
to protect their employees. 



67 



■ It removes OSHA'templuuii on paperwoiicviolatioiu: Most OSHA fines have been for violations of 
the agency's paperwork requirements. However, the number one cause of &talities on construction sites 
is fidls from elevations. OSHA has already begun, through the focused inq)ection program, to focus its 
limited regulatory and enforcement resources on those hazards tiiot harm the most workers. Removing 
citations for paperwork violations that do not result in enqiloyees being exposed to a-hazaid will help 
fuiQia target OSHA's limited resources on direct ttreats to wDilq>lace safiety and health. 

■ It prevents OSHA from niing qnotas to measure inspector performance: OSHA inspections should 
be based on hazards in the worlqilace, not arbitrary quotas set witiiin die agency. 

In addition to tiie proposals contained in HR 3234, AGC would like to recommend the following additions 
to any safety and health improvement legislation: 

■ Create inceatives to participate in the SnuU Business Consnhation Program, as recommended by 
the White Honse Conference on Small Boitaieu: In order for the Small Business Consultation Program 
to be a success, it needs the necessaiy resources to be effective. In addition, there must be incentives for 
smaller companies to participate in this program. Currendy, companies must wait anywhere from two 
months to three years for OSHA to respond to a request for a volimtary safety inspection. Even if OSHA 
provides a consultation, this does not prevent subsequent OSHA inspectois from issuing citations or fines 
for collections made according to the consultatioa AGC would recommend that language be added to HR 
3234 that requires OSHA to respond to all requests for a safety and health consultative inspection. In 
addition, AGC recommends atn<>nVtin£ the Small Business Consultation Program to protect companies that 
participate in this program from citations during subsequent OSHA inspections, only if the ooiaptaiy is 
following, in good &ith, the instructions given during the OSHA safety consultation program. These two 
proposed additions to HR 3234 are consistent with recommendations for improving OSHA made by the 
White House Conference on Small Business. 

■ Amend the OSH Act to clarify safety responiibflitiei on multiemployer woiicsites: OSHA has taken 
the position that a contractor with stipervisory authority over other employers on a jobsite can be held 
Uable for safety and health violations committed by other employers' employees. OSHA claims this 
liability exists even when the contractors' employees are (1) not c}qx>scd to the hazard; and (2) did not 
create the hazard. This policy takes unfair advantage of &e £act that contractors cannot constantly monitor 
the activities of multiple en^loyers. OSHA uses this policy to cite and fme both contractors and 
subcontractors for a violation committed by the subcontractors' employees, even when a construction 
manager does not have employees on a jobsite. Moreover, this poUcy does not consider any action taken 
by a supervisory employer to require that other employcn comply with its safety program/policy, and/or 
safety rules/requirements. AGC believes this policy is unfair, and supports adding language to HR 3234 
that clarifies safety responsibility on multi-employer worksites. 

■ ADow drag testing as part of a comprehauive safety and health plan: AGC members strongly siq>poit 
amending tlic OSH Act to allow for drug and alcohol testing. While drug testing alone does not constitute 
a safety plan, a comprehensive safety plan without drug testing falls short of providing the necessary 
protection cn^jloyees expect from their employes. Drug testing results in fewer accidents. AGC member 
companies w4io have initiated drug testing programs have seen their accident rates drop diamatically. 



68 



Although AGC members support drug testing, they would oppose any federal mandHtf to require drag 
testing, including mandates on die types of tests, the types of facilities used for tests, and the substances 
for v^ch employers test 

Codify the Vohutary Protcctioa Program (VPP) and reqaire Ac Sccretaiy of Labor to create a VFP 
program for constmction companies: The Assistant Secretary of Labor for Occupational Safety and 
Heahh, Joe Dear, has indicated his support for codifying the VPP pFograni. AGC supports codification of 
die VPP program. In addition, AOC st^iports requiring the Deparunent of Labor to issue new regulations 
under the VPP program that would create a special VPP program for the construction industry. 

Prevent OSHA from iiiuing General Duty Claue dtatbas: AGC believes that the need for tte General 
Duty Clause no longer exists. The General Duty Clause was included in the OSH Act because, at die time 
it was written, dierc were fiew federal regulations governing woricplacc safety and health hazards. The 
General Duty clause enabled the Federal government to adopt private sector consensus standards for the 
protection of employees. In addition, the General Duty Clause allowed OSHA to protect employees who 
were working under such unique circumstances diat no standard has yet been enacted to cover the situation. 
Although OSHA has had 25 years to promulgate safety and health standards, die agency still uses the 
General Duty Clause to cite contractors. With more than 1,000 pages of regulations applicable to the 
construction industry, the need for the genera] duty clause no longer exists. AOC believes inclusion of 
language in HR 3234 prohibiting OSHA from issuing General Duty Clause citations is long overdue. 

Allow third-party inipectors to perform iniaO business consultations: Vice President Al Gore, in The 
Report of the National Performance Review (Reinventing Government), recommended. The Secretary 
of Labor will issue new regulations for worksite safety and health, relying on private inspection compames 
or non-management employees. " Since die resources available to OSHA will never be adequate to conduct 
safety inspections of 6 million workplaces and respond to the safety requests of every small business, 
innovative ways of ^aoviding safety consultations need to be developed. By iiiq>lementing Vice President 
Gore's recommendations, OSHA could use the available resources in die private sector to conduct diird- 
party safety inspectors, wliich in turn would provide safety and health assistance to small contractors. 

Prevent OSHA from issuing citations for accidents caused by employeca not following well- 
established woriqiiace safi^ and heaM rules: In spite of die best effort of contractors, some enq>loyees 
refuse to follow workplace safety rules. AGC st^ports adding language to HR 3234 diat would prohibit 
OSHA from issuing citations to contractors if an employee has been provided widi required training, or 
if work rules are esmblished and communicated to employees and employees are disciplined for violating 
these rules, or if the employees failed to observe work rules. Not only do these changes protect employeis, 
but diey also instn« that employees will take a more active role in woriqiiace safety and health. 

Allowing non-union construction companict to utilize employee involveaient in woriqiiace safety and 
health without violating flie National Labor Relations Act: In "Reinventing OSHA" encourages 
employee involvement in safety issues. According to Reinvent OSHA. "Eirgiloyers have an obvious 
interest in working with their employers to improve safety and health at their own establishments. Workers 
possess a keen awareness of hazards to which they are exposed Many workplaces have tapped into this 
important resource and achieved successful results with innovative approaches that involve st^ty and 
health programs and cooperative efforts between management and workers. " However, rulings made by 



the National Labor Relations Board (NLRB) that have called into question wfadfaer employee-invdvement 
groiq^s addressing safety issues cTcatcd in a non-union setting are legal. Contracton in non-union settings 
should be able to establish safety teams without fear of violating the law. 

In conclusion Madam Cbainnan, I would like to restate that AGC believes Ute direction spelled out by 
"Reinvent OSHA" is the right way for the agency to go. While there are specific items like the proposed 
ergonomics standard that AGC opposes, we welcome die change of direction brought about by "Reinvent OSHA." 
The best way to keep OSHA moving in the path spelled out by "Reinvent OSHA" is to codify diese changes. Rep. 
Ballenger's bill, HR 3234, would achieve that goal. 



27-530 97-4 




NxnONAL ASSOdAIVM 



70 



UOI UcliSbfB.NW 
WMmdoo. DC 20Qa$-2aao 
QQZ) 822-(D00 

(n9 3CB-S2<2 

OfHcmbBuIUB«S F« (202) 8Z2-0559 

STATEMENT OF 

LARRY LARSEN 

BEFORE THE 

UNITED STATES HOUSE OF REPRESENTATIVES 
COMMFTTEE ON SMALL BUSINESS 

ON 

H.R. 3234, THE SMALL BUSINESS OSHA RELIEF ACT OF 1996 

SEPTEMBER 25, 1996 

10:00 a.m. 

2361 RAYBURN HOUSE OITICE BUILDING 

Madam Chainnan, Mr. Hefley, and Members of the Comminee: 

My name is Larry Larsen, and I am a home builder from Englewood, Colorado, and I am 
pleased to be here today to discuss the issue of OSHA reform. I represent the 1 85,000 member 
firms of the National Association of Home Builders (NAHB), and serve as Chairman of NAHB's 
Committee on Construction Safety and Health. 

I first want to applaud Representative Meyers for holding this hearing. Clearly, the issue 
of statutory OSHA reform deserves attention, and we look forward to working with members of 
this committee and Congress, in general, to enact meaningfiil OSHA reform legislation in the 
1 05th Congress. 

I must also conunend the efforts of Joe Dear, the current Administrator of the 
Occupational Safety and Health Administration. Mr. Dear has demonstrated his willingness to 
listen to the concerns of the building industry, and we have worked on several specific issues 
with him. We are currently working on a suitable fall protection rule which will hopefully take 
into account the needs of residential construction, and are also working on an effort to have 
OSHA begin to recognize residential construction separately as construction rules are developed. 
There is no question that Mr. Dear has improved OSHA fixjm the small business perspective. 

However, there is a long way to go. The bottom line remains clear: unless there is a 
statutory revision to the Occupational Safety and Health Act, no administrative reforms can 
continue to be effective in the long term. I must also say that the very issues NAHB has worked 



71 



on successfully with OSHA under Joe Dear were made possible, in one way or another, through 
congressional intervention. In this regard, NAHB generally supports H.R. 3234, the Small 
Business OSHA Relief Act, and will work to build support for similar, and hopefully expanded, 
legislation next year. 

BACKGROUND 

Home building uniquely affects virtually every working American, either directly as an 
employee on the construction work site or indirectly as a worker involved in one of the myriad 
trades associated with housing production, or as a housing consimier. Consequently, home 
builders share the legitimate concern of this committee for the health and safety of all men and 
women employed in the construction industry throughout the coimtry. 

Not only do home builders recognize their legal and moral obligation to provide their 
employees with a safe workplace, they know that doing so makes good business sense. Safety 
saves lives - and money — through reduced workers' compensation costs, fire and equipment 
losses, and time spent on accident claims and reports. It also saves money that would be spent 
on replacing injured workers and the resulting lower productivity. 

Additionally, the building industry is perhaps more heavily regulated than any other 
industry. Virtually every aspect of our business is subject to scrutiny under federal, state, and 
local laws and regulations. In fact, the Small Business Administration (SBA) recently released 
a report which illustrates that small businesses bear a disproportionate share of our nation's 
regulatory burden. 

When one factors in all of the fees, taxes and other assessments levied on any given 
building project, the impact on the cost of housing is quite daunting. In fact, the regulatory 
impact on housing costs, in some cases, tops $20,000. When one considers that a $5,000 
increase in the cost of housing can price up to 100,000 people, primarily lower income and 
first time home buyers, out of the housing market, the negative impact of regulations on 
housing is obvious. 

A significant share of these regulations come from OSHA. 

Residential builders' experience with OSHA is relatively recent. For many years, 
residential builders were not often subject to OSHA inspections, in part due to the agency's 
misunderstanding of home building and its related crafts. Around 1990, OSHA began to place 
a much greater enforcement emphasis on the residential sector. As a result, many home 
builders found themselves subjected - for the first time - to OSHA standards which had been 
developed for heavy commercial construction rather than light residential construction. 

Many mistakenly envision the typical home builder as a "high-volume" constructor, 
someone with the perceived ability to spread production and regulatory costs across many 



72 



projects. In contrast, the majority of building firms are truly small businesses, primarily 
engaged in home-remodeling and the construction of single family homes. Indeed, over half 
of our nation's builders construct fewer than 10 homes per year and close to 75 percent build 
25 or fewer homes. 

Yet OSHA's rules for construction amount to hundreds of pages. No small business 
owner should be faced with government regulations of that length and detail and be expected 
to comply with a multimde of regulations from other federal, state and local agencies. As a 
result, builders - like the vast majority of small business owners - have been overcome by the 
complexity and breadth of the OSHA requirements imposed upon them. 

H.R. 3234 makes an attempt to help ease the burden faced by small business owners 
with respect to the requirements imposed by OSHA. Furthermore, H.R. 3234 would codify 
initiatives put into place by the Clinton Administration, or to enact into law various concepts 
put forth by members of the Clinton Administration. In short, H.R. 3234 represents a sensible 
first step toward improving an agency in need of substantial improvement. 

H.R. 3234 - THE SMALL BUSINESS OSHA RELIEF ACT OF 1996 

Section 2 — Standards 

Section 2 of H.R. 3234 requires OSHA standards to be based on a cost/benefit analysis. 
This issue lies at the heart of regulatory reform, and everyone seems to agree that basing 
regulatory action on a cost/benefit analysis makes sense. In fact, this provision merely seeks to 
codify what President Clinton sought to do when he issued Executive Order #12866 on 
September 30, 1993. The Executive Order states: "Each agency shall assess both the costs and 
benefits of the intended regulation and, recognizing that some costs and benefits are difficult to 
quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of 
the intended regulation justify its costs." 

It is clear that H.R. 3234 is designed to put into place a mechanism through which 
regulations need to be thoroughly thought out before they are imposed. Clearly, any regulation 
that saves lives directly, or demonstrably improves the health and safety of workers through 
improvements in workplaces, is worth its costs. However, there are plenty of OSHA regulations, 
especially those dealing with paperwork and reporting requirements, which have no direct 
bearing on worker safety and health. It is this type of regulation which would undergo the 
highest level of scrutiny under a cost/benefit analysis. 

NAHB supports congressional efforts to require that OSHA and other federal agencies 
perform a cost/benefit analysis on regulations prior to their promulgation to ensure that the 
regulations do not impose an uimecessary burden on the small business commimity. 



73 



Section 3 — Penalties 

This section intends to give small business owners a chance to come into compliance 
with OSHA regulations before heavy fines and penalties are imposed. For businesses with 250 
or fewer employees. Section 3 of H.R. 3234 requires OSHA to waive any penalties for violations 
if the employer corrects the violation quickly, or uses the amount the fine would impose toward 
correcting the violation. The provisions of this section apply only where the employer has made 
a good faith effort to comply with OSHA regulations, and w^ere the violation does not pose a 
significant threat to an employee's health and safety. 

This provision would amoimt to an improvement in workplace conditions by insuring that 
violations are corrected, as opposed to providing revenue for OSHA, and is specifically geared 
toward small businesses. Clearly, if OSHA's goal is to protect workers through improved 
working conditions, it makes perfect sense to insist that violations are corrected within a set 
period of time, and to allow fimds which would have gone to OSHA to be used, instead, toward 
actual improvements in the working environment. 

Most significantly, this provision would apply only where (1) the employer has made a 
good faith effort to comply with applicable regulations, and (2) the violation constitutes a 
significant threat to an employee's health or safety. In other, words, employers who clearly 
operate without regard to the well being of his or her employees would not be able to take 
advantage of Section 4. Only those employers who are clearly trying to abide by the regulations 
and who work to correct violations will be able to take advantage of this provision. 

NAHB has long supported a reduction or elimination of penalties for non-serious 
violations, especially where the employer has acted in good faith and has a strong health and 
safety record. Among other advantages, this practice would &«e up OSHA's resoim;es allowing 
them to concentrate on those employers who willfully and repeatedly violate important OSHA 
standards. 

Section 4 — Citations 

This section would eliminate the issuance of citations for paperwork-oriented violations, 
such as failure to post and maintain injury and illness records, or to prepare and maintain written 
plans or certifications, unless the employer has acted willfully and repeatedly in violation or 
failure to comply has posed a threat to an employee. This would fi'ee up a vast pool of OSHA's 
resources so the agency might better pursue the true "bad actors" rather than target those 
employers who have solid safety records and act in good faith. 

Many reform opponents characterize this section as "letting businesses off the hook." 
However, in reading the language of the section, it becomes clear that Section 4 states clearly 
that true hazards and careless employers will be cited and fined. 



74 



Again, this provision is favorable fixim NAHB's perspective. OSHA should not be in the 
practice of punitive enforcement against those employers who act in good faith to provide a safe 
working environment for their employees. 

Section 5 - Consultation Services 

This section is identical to Section 9 of S. 1423, the Occupational Safety and Health 
Reform and Reinvention Act of 1996, which was reported to the full Senate by the Senate Labor 
and Human Resources Committee in February, 1996. This section requires OSHA to fund state 
efforts at providing consultation services to employers "concerning the provision of safe and 
healthful working conditions." OSHA Administrator Joe Dear, when testifying before the Senate 
Labor Committee about S. 1423, said, "Section 9 (of S. 1423) would codify the consultation 
services currently funded by OSHA imder section 7(c)(1) of the OSH Act As a general matter, 
OSHA supports the codification of current consultation programs." 

Enactment of H.R. 3234 would allow for small businesses to enter into a cooperative 
relationship with both OSHA and state safety and health agencies to improve workplace safety, 
and would help reduce the level of adversity which currently exists between employers and 
OSHA. Consultation and cooperation is a better approach to workplace safety and health issues 
than punitive enforcement, and parties on both sides of the work safety issue generally agree. 
Again, it is an important distinction that employers with a history of violations, or a history of 
worker injuries or deaths will still be fined to the fullest extent of the law by OSHA. 

Section 6 - Performance Measures 

This provision essentially forbids OSHA from establishing citation quotas or any other 
incentives to increase the number of citations issued or fines assessed. OSHA Administrator Joe 
Dear has asserted the OSHA does not currently operate under a quota system, and that he has 
taken steps to eliminate the practice of using quotas. While this is good news, it does not 
eliminate the need to codify this provision to ensure quotas are not used, irrespective of who is in 
office or the whims of a local OSHA inspector. This provision does not seem to generate 
controversy fi'om any angle, and should be included in any OSHA reform effort. 

ADDITIONAL BUILDER ISSUES 

Separate Residential Standards 

With specific regard to the residential construction industry, many of OSHA's 
construction regulations were designed for large-scale, heavy commercial construction with little 
regard given to small residential-type sites. Light residential construction, as opposed to heavy 
commercial construction, represents an entirely different set of circumstances with respect to 
worker safety and health, ranging fi'om the type of equipment and materials used to the actual 
physical makeup of a job site. Home builders should not be regulated under the same set of 



75 



safety standards as heavy industry - currently, the same regulations that apply to the 
construction of a 50-story office building also apply to the construction of a two-story, single- 
family home. We feel strongly that OSHA would be better able to help home builders provide 
safe work sites if they tailored construction regulations to fit the characteristics of residential 
construction sites. 

On several occasions, OSHA has developed rules for construction that simply did not 
practically apply to home building. For example, the Agency issued a rule on fall protection in 
February 1 994 lowering the threshold at which fail protection measures must be used to six feet. 
When it became evident that many residential contractors had trouble complying with the rule 
and, in some cases, fall and trip hazards actually increased with compliance, OSHA agreed to 
reopen the rule to address the needs of residential builders. This effort is currently pending; 
however, had OSHA been required to examine the impact of this rule on residential construction 
and develop separate standards based on this examination up front, it would have saved time and 
resources, and resulted in a better, more practically applicable rule. 

In no way do we advocate that the residential construction industry be relieved of its 
responsibility to provide safe workplaces. We feel the separate standards for residential 
construction will enable OSHA to develop better rules, which can help home builders provide 
safer workplaces. 

H.R. 3755, the FY 1997 Labor/HHS Appropriations bill, contains a bipartisan provision 
committing $2 million for OSHA to begin the process of evaluating the practical application of 
construction regulations to residential construction. We are hopefiil that this provision will be 
retained in £iny continuing resolution or omnibus funding bill developed to fund programs 
through FY 1 997. However, we will continue to work to ensure that OSHA recognizes the 
obvious differences between heavy commercial construction and light residential construction as 
they develop regulations dealing with the construction industry. 

Multi-Employer Work Sites 

The construction of a single family home may require the utilization of any number of 
subcontractors. It is indeed quite common for a builder to employ a subcontractor to handle 
any number of tasks, including electrical, plumbing, painting, dry wall, and paving. In many 
instances, each of these subcontractors may only have one or two representatives on the site. 
In short, a construction site is, by its very namre, a transitory work enviromnent (even more 
so during residential activity), with constant shifts in the composition of a general contractor's 
or subcontractor's workforce. Furthermore, the role of subcontractors has increased 
significantly. For example, in 1959 about 31 percent of NAHB members subcontracted three- 
quarters or more of their work. By 1987, this niunber had increased to 55 percent. It is safe 
to say that a great number of workers occupying a given job site at any time are employed by 
someone other than the builder. 



76 



Under current OSHA inspection procedures, a builder can be held responsible for the 
safety violations of his/her subcontractors, even though none of the builder's own employees 
may be exposed to danger. While some argue that it is inherently unfair for one employer to 
be held responsible for the faults of another, OSHA has made this questionable policy even 
worse by routinely citing builders for subcontractor violations without taking into 
consideration the efforts of the builder to get the subcontractor to comply with OSHA 
standards. As a result, both the builder and the subcontractor get cited for the subcontractor's 
violations. 

These "mirror citations" reflect a poor understanding by OSHA regarding residential 
construction operations through the assun^ition that a builder is always on site and in complete 
control of all activities at all times. One self-employed builder with no employees can have 
several scattered sites under construction and must travel back and forth between them. 
He/she cannot be on every site at all times. Therefore, Congress should direct OSHA to 
revise the criteria for holding builders responsible for subcontractor violations. OSHA's 
multi-employer citation policy should be discontinued to ensure that builders will not be cited 
for their subcontractor's violation if the builder has no employees exposed to the hazard. 

In fact, OSHA reform legislation introduced by Senator Kay Bailey Hutchison earlier 
this year contains a provision addressing this very issue. In fact, the Senate Regulatory Relief 
Task Force, co-chaired by Senators Bond and Hutchison, submitted a series of 
recommendations to the Labor Committee related to OSHA reform which included a provision 
addressing this issue. NAHB strongly supports this language, and would recommend that any 
OSHA reform proposal include a provision identical to that contained in the Hutchison bill. 

Elimination of the General Duly Clause 

Builders have often been cited for violations - not because they failed to comply with a 
specific OSHA standard - but imder OSHA's "general duty" clause. That clause provides, in 
part, that "each employer shall furnish to each of his employees employment and a place of 
employment which are ft-ee from recognized hazards that are causing or are likely to cause 
death or serious physical harm to his employees." We would respectfully urge that any 
comprehensive OSHA reform measure be amended to eliminate these "general duty" clause 
violations by providing that no OSHA penalties may be issued unless a specific standard or 
regulation exists. 

CONCLUSION 

To sum up my remarks, I would like to reiterate that the members of NAHB are 
committed to worker safety and health. Reform opponents wrongly assert that those in favor 
of H.R. 3234 are attempting to "gut" efforts to protect workers. There is no basis for this 
claim. Irrespective of the level of government involvement through OSHA and the 
Department of Labor, those who make the difference in worker safety are employers and their 



77 



employees. H.R. 3234 moves toward empowering those who make the difference to take an 
active role in worker safety, and encourages them to work with OSHA to develop safe work 
sites. Under the current scheme, employers would rather avoid OSHA for fear of instant and 
prejudicial punitive action. 

NAHB is firmly committed to OSHA reform in the 105th Congress. We intend to 
work with the members of the appropriate committees and others in Congress to deliver 
meaningful, responsible OSHA reform legislation for enactment as soon as possible. 

I thank the Chair and member? of the Committee for allowing me the oppormnity to 
testify on behalf of the 185,000 member firms of NAHB. I would be pleased to answer any 
questions you may have. 



78 



Statement of F.M. Lunnie, Jr 

before the. 

Committee on Small Business 

U.S. House of Representatives 

September 25, 1996 



Madam Chairman and members of the Small Business Committee, I am Pete 
Lunnie, executive coordinator of the Coalihon on Occupational Safety and Health 
(COSH). Thank you for tiie opportunity to contribute to the committee's inquiry on 
"OSHA Reform and Relief for Small Business." My comments will touch briefly the 
activities of the Occupational Safety and Health Administration (OSHA), legislative 
efforts to amend the Occupational Safety and Health Act, tiie administration's reinvention 
initiatives as they relate to business and, conclude with some tiioughts on how we might 
proceed in the future. 

By way of background, I have been involved in worker safety and healdi for nearly 
25 years. I was employed by OSHA shortly after its inception and for more than five 
years, was involved in standards development and policy development. More recently. I 
held a variety of policy position over a period of almost 16 years at the National 
Association of Manufacturers where OSHA was among my principal responsibilities. I 
assumed my current duties in 1991 while with the NAM and continued after leaving the 
association in mid- 1995. 

As the committee may know, COSH is an alliance of companies, associations, and 
professional societies that represents all sectors of business, large and small. COSH's 
more than 360 members are committed to providing safe and healthful working conditions 
for tiieir employees and recognize tiiis as a fundamental responsibility of effective 
management. Coalition members are equally committed to working constructively with 
tiieir employees, OSHA and others for continued improvement in worker safety and 
health. 



79 



Job safety and health is everyone's responsibiht>' and all parries have an important 
role in making it happen. Workplace protection is ultimately the product of cooperative 
efforts between employers and tiieir employees. It is an essenrial component of effective 
employee relations and constitutes good business practice. It is an important responsibility 
business takes seriously and to which substantial resources are devoted. 

Employees must share in the responsibilities of maintaining safe and healthful 
working conditions through adherence to safety and health requirements and by reporting 
any observed hazards to the employer so that they may be quickly remedied. 

Why make tiiese points? OSHA observed its 25* anniversary this April. Its 
mission of promoting on-tiie-job safety and health remains important and is one with which 
no one quarrels. But since OSHA's inception, tiie manner in which the agency carries out 
that mission has been a constant source of controversy. A disjointed approach to 
enforcement and confusing, burdensome and nit-picking standards, among otiier practices, 
have made OSHA one of tiie least-liked regulatory agencies in Washington. 

Without question, safety and health has improved in the past quarter century. 
These improvements are largely a product of cooperative efforts between employers and 
employees. OSHA also has played a constructive role in tiiat process. 

But just as OSHA deserves some of the credit for bringing about positive changes 
in worker protection, it also deserves much of the blame for creating in tlie eyes of many 
employers a sense that tiie agency is all too intent on treating businesses - particularly 
.smaller ones - as an adversary. Imagined or real, that's the perception. 

This sense is not new but it has intensified, as highlighted last year when President 
Clinton convened the White House Conference on Small Business. When asked what 
concerned them most about the federal government, tiie overwhehning response was not 
the IRS, not health care reform, and not the minimum wage - it was the OSHA inspector. 



80 



This reflected an understandable concern on the part of small business owners that 
overzealous OSHA inspectors, determined to meet their monthly citation quotas, were 
citing tiiem for minor paperwork violations and other inconsequential actions that posed 
little or no threat to workers. They noted, for example, that of the top 20 most frequently 
cited violations in 1994, 1 1 of them were for paperwork and of those, the majority 
involved OSHA's hazard communication standard. 

And these small business employers also were correct to point out that OSHA 
should be targeting "bad apples" rather than employers who are doing everything they can 
to make their workplaces as safe as possible. 

Among the resolutions passed by the White House Conference was one stating tfiat 
"small business and OSHA must work togetiier in a non-adversarial, supportive 
relationship to attain public policy safety goals." In addition, recommendations were 
advanced urging an increase in resources for and availability of consultation and training/ 
education availability. 

At about the same time, the Clinton Administration last year announced the need to 
"reinvent" OSHA, calling it "[pjerhaps tiie most disliked agency." {Common Sense 
Government Works Better and Costs Less, Chapter 2.) According to the Administration's 
report, "The New OSHA: Reinventing Worker Safety and Health," OSHA must change 
its fundamental operating method from one of "command and control" to one that provides 
employers "a real choice between a partnership and a traditional enforcement 
relationship." In short, President Clinton, Vice President Gore, Secretary of Labor Reich 
and Assistant Secretary for OSHA Dear, have strongly recognized the need to reform 
OSHA. 

COSH also recognizes tiie need to improve OSHA. COSH has long supported 
restructuring tlie OSH Act in ways that would replace the "traffic cop/enforcement quota" 
approach to regulation with a collaborative model. Under a collaborative model, OSHA 
would provide more education, training and technical assistance, and employers would be 



81 



encouraged to avail themselves of that assistance without fear of becoming embroiled in a 
major controversy with the agency. COSH also supports the concept of providing 
employers with incentives to improve their safety and health voluntarily in cooperation 
with their own employees. In addition, COSH advocates strengthening tiie scientific and 
technical basis of OSHA standards, e.g., independent scientific peer-review, and making 
them as practical, cost-efl'cctive, and performance-oriented as possible. 

The ideas supported by COSH are consistent with many of tiie ideas in tiie 
administration's "Reinvention" initiative. While the employer community favorably 
greeted many of the administration's thoughts on reinventing OSHA, COSH continues to 
believe the changes should be achieved through statutory language so that they would not 
be subject to the whim of any administration. Our concern on this point is highlighted by 
the fact that in the \02'^ Congress, the Clinton Administration endorsed reform legislation 
strongly opposed by business and antithetical to the principles underpinning the "New 
OSHA." 

Concurrent with the White House Conference and release of the administration's 
vision of a new OSHA, Congress was considering legislative reforms to the OSH Act. 
Among tlie first to receive attention was H.R. 1834, introduced last summer by Rep. Cass 
Ballenger, togetiier with Chairman Meyers and a bipartisan list of 155 cosponsors. It was 
a comprehensive bill tliat embodied not only the administration's ideas but many other 
changes reflecting experience gained since the Act's passage. Tlie proposal sought to 
replace the adversarial-enforcement model of the current OSHA with a partnersliip 
paradigm that involves greater consultation, training/technical assistance, employer- 
employee cooperation, and a variety of incentives to improve workplace safely and health. 
Importantly, H.R. 1834 retained strong enforcement sanctions for those employers who 
ignored their responsibilities. 

COSH members found that H.R. 1834 set out an appropriate frame of reference 
and starting point for debate on how to improve worker protection. It should be noted for 
the record that more than 2,700 companies, associations and professional societies signed 



82 



a letter to Rep. Ballenger endorsing the changes proposed by his bill. H.R. 1834 and 
Representative Ballenger' s position were immediately and, we believe, unfairly attacked 
and distorted by organized labor and the administation. 

After concluding that tiie reforms set forth in H.R. 1834, however meritorious, 
were too sweeping and in an effort to achieve limited constructive reforms. Rep. Ballenger 
in April introduced H.R. 3234, the "Small Business OSHA Relief Act." We appreciate. 
Madam Chairman, your joining Rep. Ballenger and others as an original sponsor. 

Businesses of all sizes and their employees in workplaces across the nation should 
be able to focus their resources on workplace safety in an effective, efficient manner. 
COSH believes we can move toward tiiat goal by passing H.R. 3234. Assisting smaller 
businesses to meet their obligations is a good place to start. Placing a greater priority on 
consultation ratiier than confrontation between small business and OSHA in the end will 
benefit everyone. H.R. 3234 offers a helping hand to tho.se who need it while retaining 
strong enforcement sanctions tor those who choose to disregard their responsibilities. It is 
common sense legislation that warrants tiie support of all parties. 

Continued improvement in worker safety and health will be tlie product of 
cooperative efforts between employers, their employees and OSHA. H.R. 3234 would 
enhance that relationship by codifying some of tiie very changes that tiie administration has 
said are essential to making OSHA a partner in worker protection. In fact, every provision 
in H.R. 3234 is drawn from administration statements and its vision for a "New OSHA." 

H.R. 3234 is a modest proposal tiiat makes a first step toward frilfilling President 
Clinton's promise to "Change [OSHA's] paradigm from one of command and control to 
one which provides employers a real choice between partnersliip and a traditional 
enforcement relationsliip." Its five provisions include: 

(1) a requirement that economic benefits and consequences be factored into the 
development of proposed standards; 



83 



(2) a reduction or waiver of penalties for violations which do not pose a significant 
hazard if the violation is corrected immediately or within the time set for 
abatement, 

(3) a conditional limitation on issuing citations for certain paperwork violations; 

(4) codification of OSHA's small business consultation grant program; and 

(5) a prohibition against using quotas for performance evaluation of OSHA 
compliance officers. 

While H.R. 3234 did not go as far as many COSH members felt was warranted, 
there was general support for making this first step toward enhanced, more cost-effective 
workplace safety and health. 

As tiie committee is aware, however, tiie administration chose to oppose H.R. 
3234 as well asserting, among other things, tiiat the proposal would represent a retreat on 
worker protection . COSH was disappointed with the administration's decision on this 
matter and in a letter to Secretary of Labor Reich (attached), noted: 



"The admini.stration's public statements on the "New OSHA" were greeted 
by many, including COSH, with a sense of optimism tiiat changes might be 
forthcoming to better ensure tiie safety and health of workers. These public 
sentiments were antithetical to propo.sals in the 1 03"* Congress (Kennedy-Ford 
bills) that were endorsed at that time by this administration. We thought the 
administration's public statements about a "New OSHA" meant an opportunity to 
forge a real partnership, as opposed to a continuation of the "command-and- 
control" philosophy of the past. 

"It appears, however, that the administration is seeking to capitalize on its 
public statements that are sympatiietic to small business and responsible regulation. 
This, while it quietly walks away from those same statements." 



CONCLUSIONS 

The battle over OSHA reform has been waged for more dian five years. 
Democrats were unable to pass the Kennedy-Ford bills in the 102"^ and 103"* Congresses 
when they were in the majority. The threat of a presidential veto has hampered efforts to 



84 



advance any reforms in the current Congress. It is clear, though, that no one is happy with 
the status quo. 

Organized labor believes that amendment of the Act to authorize increased 
sanctions and stricter obligations on employers - a bigger role for OSHA - is the only 
avenue to improved safety and health. 

The businesses represented by COSH, on the other hand, see the need for more 
cooperation and flexibility in addressing worker protection, along with greater emphasis 
by OSHA on training, consultation and technical assistance. In addition, scientifically 
sound assessments of risk, consideration of economic consequences and peer review must 
all be factored into the standards development process. 

The concepts reflected in the "New OSHA" suggests the administration 
understands some of tiiese points. We commend Assistant Secretary Dear for his efforts 
to implement new ideas such as focu.sed inspections in construction and pilot projects to 
test new approaches. But the administration reaction to H.R. 3234 suggests its promise is 
not yet realized. 

Concluding as we began, woricplace safety and health is an endeavor which 
requires tiie cooperation of employers, employees and government. COSH hopes that the 
collective "we" can move jointly toward tliat end. 

We appreciate the opportunity to share these thouglits and I will try to respond to 
any questions you may have. 



85 

KENT SWANSON 

OWNER 

NURSES AVAILABLE STAFFING, INC. 



Before: 

Date: 
Subject: 



Committee on Small Business 
U.S. House of Representatives 
Septemt}er 24, 1996 
OSHA Reform 



86 



Chairwoman Meyers and Members of the Small Business Committee, thank you 
for the opportunity to testify before you today. My name is Kent Swanson; I was 
elected as a delegate to the 1995 White House Conference on Small Business and I 
own Nurses Available Staffing, Inc., a small private duty / staff relief nursing agency. 
We provide nursing services in the home and nursing staff to health care institutions. I 
have approximately 40 employees in my Baltimore office and approximately 125 
employees in my Pennsylvania offices. I am testifying today as a member of the 
National Federation of Independent Business. 

I am here to encourage Congress to introduce reform legislation in the next 
Congress which will assist small business owners to comply with OSHA regulations and 
provide a safe working environment for its employees. We want a safe work place for 
our employees, because without them we are nothing. In addition, OSHA reform was 
one of the sixty recommendations of the 1995 White House Conference on Small 
Business. 

OSHA reform legislation introduced in the 1 05th Congress must ensure that 
OSHA's primary concern will be safety and not the punishment of small business 
owners for minor mistakes. During the 104th Congress bills introduced in the House 
such as H.R. 1834 and H.R. 3234, and in the Senate, S. 1423, included specific 
provisions which would ensure that OSHA goes after small businesses violating the law 
and not those making paperwork mistakes. A105th Congressional bill should include 



i 



87 



small business elements from H.R. 1834, H.R. 3234 and S. 1423. First, this bill must 
require OSHA to demonstrate that the benefits of any new OSHA standards outweigh 
the costs of those standards before they can be issued. Government regulations 
continue to be one of the greatest problems I deal with on a day to day basis. Cost 
benefit analysis would control the multiplication of new regulations imposed on my 
business and assure everyone that such regulations are really needed. 

Additionally, any OSHA reform introduced in the next Congress should waive 
OSHA penalties for small business owners who correct .•.inor mistakes within a certain 
time period. It should also eliminate fines against small business owners for papenwork 
violations. We small business owners are often times cited by OSHA exclusively for 
paperwork infractions and minor mistakes, and not because of violations endangering 
our employees. Because, as owners, we are the lynch pin of our business, we must 
spend the time running our business so we are able to keep paying our employees and 
sometimes paperwork, not workplace safety, falls between the chairs. 

Finally, I would recommend that any OSHA reform bill expands the OSHA 
consultation program for small business owners and ensures that it becomes a part of 
the OSHA law. 

While I applaud Assistant Secretary Dear and OSHA for providing needed 
reforms to assist small business owners and eliminate citations for minor violations, I 



88 



believe that these changes should be made part of the law to ensure that further 
Administrations will follow through on the reform already begun by Mr. Dear and the 
current Administration. 

However, I strongly disagree with the myriad of proposed regulations and 
guidelines which have recently been proposed by OSHA. These will have a 
devastating impact on my small business and other small businesses. 

For instance, the ergonomics regulation drafted by OSHA will be one of the 
most costly and sweeping regulations ever issued by the Department of Labor. Under 
this new regulation small businesses like mine would be required to implement 
comprehensive medical management programs for jobs with high signal risk factors for 
employees including lifting 25 pounds, repetition (such as using a computer keyboard 
or clicking a mouse), pushing or pulling, vibrating, and using an awkward position. This 
regulation would require me to retrain my employees and radically re-engineer by 
business. 

A second regulation recently proposed by OSHA is the Indoor Air Quality 
proposal. This regulation would require me to designate a person responsible to 
assure compliance, and the preparation of a written Indoor Air Quality program. 

I would also be responsible for providing special training for my employees 



89 



involved in building systems and maintenance. Additionally, the record keeping 
requirements would t>e enormous under this new regulation for my small business. 
This regulation doesnl take into account that I have little or no control over the heating, 
ventilating, and air conditioning systems where my businesses are located. 

A third proposed regulation, the General Industry Standard, requires employers 
to implement a general health and safety standard for each work site. This standard 
would include management leadership and employee participation, hazard assessment 
and control, training, record keeping, and a system evaluation. Most small employers 
do not employ an individual specifically assigned to carry out safety and health policies. 
I know I do not. Consequently, the business owner alone would be responsible for 
such record keeping, training, evaluation, and leadership of employees. A cookie cutter 
approach is likely to result because small employers simply don't have the time to meet 
the specific requirements of such a standard. 

These are only a few of the recently proposed regulations now being issued 
by the federal government. Obviously, these three in particular do not reflect an OSHA 
which is leading the way in eliminating the unnecessary papenwork and regulatory 
burden imposed on small business owners by the federal government. 

Thank you Chairwoman Meyers. I would be happy to take any questions you 
or the Members of the Committee might have. 



90 



AMERICAN SOCIETY 
OF SAFETY ENGINEERS 

1800 East Oakton Street 

Des Plaines. Illinois 60018-2)87 



847 699 2929 

FAX 847 296.3769 

INTERNET: hnp;//www ASSE ORG 



PRESIDENT 

Nancy J McWilllams. CSP ARM 



PRESIDENT-ELECT 
Jerry P Ra» CSP 



SENIOR VICE PRESIDENT 



VICE PRESIDENT OF FINANCE 



IMMEDIATE PAST PRESIDENT 
Lawrence E Oidendort, PE , CSP 



MichaelW Mitchell. Ph.D. REA 
Denver. CO 

James "Skipper' Kefldrtck. CSP 



TESTIMONY ON OSHA REINVENTION 

AND REGULATORY REFORM 

BEFORE THE HOUSE COMMITTEE ON SMALL BUSINESS 

SEPTEMBER 25. 1996 



The American Society of Safety Engineers (ASSE) appreciates the opportunity to 
present our views on OSHA reinvention and the implementation of regulatory 
reform under the Small Business Regulatory Enforcement Act (SBREFA), and the 
Regulatory Flexibility Act (REGFLEX). Founded in 191 1 with more than 32,000 
members, ASSE is the world's largest and oldest society of safety professionals. 
ASSE has committed itself to the protection of people, property, and the 
environment for eighty-five years. This large membership and significant level of 
diverse experience enables the Society to provide soimd insight on a wide range 
of safety and health issues. 

Late last year, ASSE presented national testimony on OSHA reform legislation at 
a joint Senate hearing of the Small Business Committee and the Labor and Human 
Resources Committee. Our statement today focuses on additional areas where the 
private sector, specifically its professional organizations, can be of assistance in 
promulgating regulations which are effective yet efficient, for all levels of U.S. 
business and the American public. 

To this end ASSE offers the following views: 

SMALL BUSINESS ADVOCACY 



ASSE supports the protection of U.S. small business interests. Small business 
represents the fastest growing component of the U.S. economy and many times is 
the birthplace of innovations. We support small business advocacy programs 
EtjwjnPGrantonyjr.FAic.cEs such as thosc containcd in President Clinton's "OSFL\ Reinvention Criteria." We 
believe such an approach balances the interests of both the public, workers, and 
different levels of U.S. business. However, ASSE believes all Americans are 
entitled to equal levels of safety and health regardless of the size of their 
employer. 



Winter Park. FL 
Edward Basinger. CSP 



Paul W Gills. CSP ARM 



91 



Some testimony, delivered before the Senate Small Business Committee at a hearing this summer 
on regulatory reform, appeared to indicate small business should be "exempt" from some of this 
nation's safety, health, and envirormiental laws. ASSE has concerns with this position due to the 
fact that small businesses make up the vast majority of employers in the United States. 

History shows small businesses can benefit financially from some regulatory action. Having all 
employers comply with a standard ensures an equal level of safety and health for all Americans. 
The key to success is in the approach. We believe that small business should be approached in a 
manner which takes into account their access to resources. Exempting small business would be 
equivalent to maintaining the status quo: there are, unfortunately still large numbers of 
Americans being injured, killed, and maimed in the workplace on a daily basis. Pollution of our 
environment is still a reality which we must face. With so much room for improvement, we 
believe the status quo caimot be maintained. 

OSHA GENERAL DUTY CLAUSE 

With respect to OSHA's General Duty Clause, concerns have been expressed that this power is 
invoked in a manner which is not conducive with the provisions of either SBREFA or REGFLEX. 
Some of our members have also commented that the General Duty Clause is not used in the 
manner to which it was crafted. While we agree the General Duty Clause should not be used to 
circumvent the rule promulgation process, we believe use of the General Duty Clause is allowable 
under some circumstances for the reasons we believe it was originally created and because of the 
following factors: 

•Rapid advancement of technology will leave workers exposed to new hazards until the 
labyrinth of benefits/assessments analyses is successfully negotiated. Such rapid advancement 
could not have been foreseen, even in the 1 970s. 

•Discovery of new hazards cannot be addressed by OSHA since specific regulations must be in 
existence to address such specific hazards. It would be both a moral and economic disservice to 
allow workers/public to remain exposed to hazards until the rule promulgation process is 
complete. It is appropriate to use the General Duty Clause as a "stop-gap" measure imtil a rule is 
promulgated. 

•The General Duty Clause, a provision in the 1970 OSHAct, is a performance standard which 
speaks to the national priority for safety and health. Its exclusion removes the focus of the 
national priority for occupational safety and health. 

UTILIZATION OF PRIVATE SECTOR EXPERTISE 

The U.S. Small Business Administration and OSHA have been engaged in beneficial outreach to 
different organizations, including ASSE, with respect to the impact of safety and environmental 
regulations on small business entities. We commend this effort since inclusion of the private 
sector makes the regulatory process much more efficient and effective. We encourage the 
continued inclusion of professional societies and associations in outreach initiatives by both the 



92 



SBA and OSHA. These professional groups can offer significant expertise and serve as valuable 
resources for federal agencies and Congress. For example, ASSE has a Technical Consultants 
Division. Many consultants who belong to this division work exclusively with small business 
interests. Therefore, they have the combination of management and technical skill needed to offer 
sound insight. On many occasions, trade associations contacted by the Small Business 
Administration will come to organizations such as ASSE for technical consultation. ASSE can 
offer solutions which achieve the objectives of a proposed regulation in a much more efficient 



A case in point is the implementation of the American Disabilities Act (ADA). Some employers 
were spending significant amounts of money to make water foimtains accessible to the physically 
challenged. Instead of spending money to rebuild facilities, it was pointed out that a plastic cup 
dispenser would accomplish the same objective for thousands of dollars less. This small example 
illustrates why professional societies/associations should be contacted. Organizations such as 
ASSE offer the expertise which can make regulatory actions more efficient/effective for all levels 
of U.S. business. 

INCREASED UTILIZATION OF PRIVATE SECTOR VOLUNTARY CONSENSUS 
STANDARD FOR THE CREATION OF REGULATIONS 

During our review of regulatory reform initiatives and related congressional testimony, one issue 
seemed to surface on a consistent basis. This issue is that small business interests are not being 
heard during the rulemaking process. We suggest many of these concerns could be alleviated 
through increased utilization of national voluntary consensus standards. The American National 
Standards Institute (ANSI), is this country's primary national facilitator of voluntary national 
consensus standards. ASSE is the national Secretariat of five (5) American National Standards, 
which include: 

1.) Z87. 1, Occupational Eye and Face Protection 

2.) Z 1 1 7, Entry of Confined Spaces 

3 .) Z3 59. 1 , Requirements for Fall Protection 

4.) Z390, Training Requirements for Hydrogen Sulfide Exposure 

5.) A 1 264, Stairways, Floor Openings, and Walking/Working Surfaces 

ASSE members also sit on over forty (40) standards development committees and the Society 
sponsors educational sessions on standards development at our annual Professional Development 
Conference. Tom Bresnahan, ASSE Director of Professional Affairs, currently chairs the ANSI 
Safety and Health Standards Board. ASSE is without doubt one of this country's largest, if not the 
largest, national developer of consensus standards for occupational safety and health. 

These standards must be considered during the rulemaking process because they represent a 
consensus of all levels of business, employees, and the general public. For example, the Morella 
Amendment to the 104th Congress' Technology Transfer Act requires such agency review before 
rule development. Further, ANSI committees represent a wide range of organizations from small 
business advocacy groups to the largest corporations in the United States. Standards development 



93 



committees generally are made up of national organizations representing a wide range of 
constituents. The standard must also be distributed for general comment before being published, 
and the operating procedures of ANSI mandate that standards development committees resolve 
outstanding concerns before final publication. 

We suggest such a balance offers the level of participation needed and desired by small business. 
The mandated balance of the cormnittee ensures one interest cannot control the process. These 
standards are already recognized in some federal regulations. OSHA recognizes Z87.1 in the 
Personal Protective Equipment Standard, and Z359.1 was also evaluated during the rulemaking 
efforts of OSHA's Steel Erection Negotiated Rulemaking Advisory Committee. 

Probably one of the best examples of the consensus system and potential benefit for small 
business interests is the recent ANSI conference held on the proposal to create an international 
safety and health management standard under the auspices of the International Organization for 
Standardization (ISO). Small business organizations played a key role in the conference, and 
voiced the position that such a standard was not needed at the present time. In fact, the U.S. 
Chamber of Commerce had one of the general assembly positions, where Mr. Peter Eide Irom the 
Chamber spoke for the protection of small business interests. The U.S. consensus position after 
much debate is that a standard is not needed at this time, but if ISO decides to pursue such a 
standard, the U.S. should become actively involved and seek a leadership position. 

ASSE also points out a section of the Technology Transfer Act mandates that federal regulatory 
agencies consider national volunteer consensus standards when promulgating regulations. We 
urge this Committee to investigate additional ways for ensuring the inclusion of these standards in 
the OSHA rulemaking process. Such an approach ensures a balanced approach to standards 
which results in a consensus acceptable to all parties involved. Such an approach is an effective 
and efficient alternative to the regulatory rulemaking process. 

A case in point is the ongoing revision of ANSI Z87.1 Occupational Eye and Face Protection 
standard. As Secretariat of the standard, we estimate the entire revision process will take 
approximately twenty (20) months. This is a considerably shorter timeline than what is usually 
experienced by federal regulatory agencies. In these days of downsized federal budgets, each of 
us must look for efficient means to accomplish mutually beneficial objectives. 

We thank you for the opportunity to present our views, and may submit additional material for the 
hearing record. If you have any questions/concerns for ASSE, please feel free to contact me at 
804/491-5081 or ASSE's Tom Bresnahan at 847/699-2929, extension 224. 

Sincerely, 



^T^^^uy ^. )0U Ud/M^y^J^c. 



Nancy J. Mc Williams, CSP, ARM 
President 

ALA/TRF/HOUSESMALLBUS 



94 



^kMJf^ ^g^l l^^tional Association 



Sii*fmt F. Citifr 

Vict Prasldafit 

Human Resources PoScy 



of Manufacturers 



September 24, 1996 



The Honorable Jan Meyers 
Chair, Committee on Small Business 
2361 Raybum House Office Building 
Washington, DC 20515-6315 

Dear Madam Chairwoman: 

On behalf of the National Association of Manufacturers (NAM) and its more than 
10,000 small manufacturers, we would like to commend you for holding the hearing, OSHA 
Reform and Relief for Small Business: What Needs to be Done. 

Although the Administration states that changes are being made within the agency, 
legislation is necessary to ensure OSHA's continued commitment to true partners with 
employers. The NAM has grave concerns over so-called "partnership programs, " such as 
the Missouri 500 program. Under the guise of a "partnership" and working with employers, 
the agency sent nearly 500 employers in Missouri its version of the Maine 200 program. 
The Missouri program, however, deviates in a number of important ways. 

Almost aU employers will agree that a partnership with government and industry is 
the best approach to achieving safety and health goals. Many companies have proven it by 
joining the Voluntary Protection Program. While the MO 500 program embodies those 
concepts, it incorporates components that are patently objectionable. 

Although OSHA Assistant Secretary Joseph A. Dear has put the program on hold, the 
over-reaching of the agency should be noted. The Missouri program is inconsistent with 
many other states' programs. Much of the information OSHA requests is simply none of its 
business. Workers' Compensation cost information, names and addresses of trade 
associations and insurance carriers and semi-annual reports are just a few intrusive requests 
in this program. 

If companies decide not to participate, then they are put on the "primary inspection 
category" list for a comprehensive safety and health inspection. First of all, the tone of the 
letter is threatening. Second, OSHA is seeking to enforce mandates and requirements that 
have not gone through the regulatory review process. 

On another front and under the guise of government reinvention, OSHA is actually 
carrying out organized labor's agenda. Much of what OSHA continues to advocate in the 
regulatory arena parallels the goals of the AFL-CIO, which has committed to spending more 
than $35 million to defeat pro-business members of Congress in the November elections. 

Manufacturing Makes America Strong 

1331 Pennsylvania Avenue. NW. Suite 1500 - North Tower. Washington. DC 20004 - 1 730 • 12021 637-3124 • Fax: 1202/ 637-3182 



95 



While OSHA may appear to be doing the right thing in the best interest of employers, its 
agenda bears striking similarity to that of organized labor. 

Meanwhile, in laying the groundwork on a related issue, OSHA has put on a fast 
track its Comprehensive Safety and Health (S&H) Program rule. The Safety and Health 
Program elements are evident in the MO 500 program, yet the agency has not issued a notice 
of proposed rulemaking on this issue. If a mandatory safety and health program is done 
incorrectly, it may have greater adverse impact on NAM members than would OSHA's 
proposed ergonomics rule. Due to the evolving nature of the workplace, flexibility must be 
an integral part of any safety and health program. The current document lacks this element 
of flexibility. OSHA's concept of an S&H program contains elements that are vague, 
ambiguous and incomplete. 

In its current form, the document is too vague to make any determination of what 
OSHA is requiring of employers. In the worst-case scenario, OSHA could expect employers 
to provide medical monitoring; dictate labor-management relations; mandate one-size-fits-all 
training; and provide written programs incorporating OSHA's primary requirements. These 
requirements include management commitment, employee involvement, safety and health 
committees, and hazard assessment and control. 

Although OSHA claims that this would not be a "super mandate" program, there 
is evidence of a super mandate. The idea of safety and health committees is nothing new. 
It is an aberration of the Ford/Kennedy OSHA reform bills that industry fought for four 
years, from 1990-1994. It appears that, because Democrats were unable to pass legislation 
in the 102nd or the 103rd Congresses, OSHA is attempting to circumvent the legislative 
process and set precedents by administratively mandating extensive S&H programs. The 
NAM supports safety and health program requirements for employee participation and 
training, so long as the requirements are stated in broad, performance-based terms. 
Particular elements of the Ford/Keimedy measures are evident in OSHA's document. While 
the NAM stands behind inclusion of written safety and health programs with a non- 
mandatory list of elements, we oppose mandating specific elements for such programs. 

The NAM strongly supports the concept of encouraging employers to provide the 
opportunity for worker participation in workplace safety and health activities, so long as 
the employer has the flexibility and latitude to design and implement the program in the 
manner best suited to his or her particular circumstances. Employee-participation 
programs, in many forms, have been shown to be effective, but only when it has been agreed 
that they are in the best interest of both parties. Requirements that would mandate labor- 
management committees, their composition and the manner in which employee members 
would be selected were key in the Ford/Kennedy OSHA reform bills, which industry 
vehemently opposed. 



96 



The NAM acknowledges the importance of employee training in workplace safety 
and health as an integral part of an effective occupational safety and health program. 
The NAM, however, opposes mandating specific program elements. Mandatory training 
would add a tremendous burden to all employers, who could end up providing continuous 
training for employees. 

The above OSHA activity underscores the importance of OSHA reform legislation. 
Again, we commend you for holding this hearing and building a record for the next 
Congress. 



Sincerely, 



Sharon F. Canner 

Vice President 

Human Resources Policy 

National Association of Manufacturers 



97 



Midco PrOducU Company, Inc. Telephone 314 530 1779 

6?0Spi'ii^i Saini Louis Bou'eva'd Fax 314 530 1575 

Chealortield. Mis30ur( 63005-1005 Toll Iree 1 BOO 325 176E 



MldCO September 24, 1 996 



The Honorable Jomes M. Talent 
U. S. House of Representatives 
1022 Longworth Building 
Washington, D, C. 20515-2502 

Dear Representative Talent: 

Midco Products Company, Inc. is a contract pockager located in 
Chesterfield, MO. One division of Midco sells chemical specialty products 
both private label and branded line to distributors nationally. They, in turn, 
sell to industry and institutions only. 

We have most recently had first-hand experience with the octivities of an 
uncontrolled bounty hunter, "As You Sow", in the state of California. Their 
methods of intimidation, delays, and coercion caused us to settle for 
$11,000.00 over a labeling issue. This, of course, does not include legal 
fees incurred by us. We were also forced to settle with a customer to whom 
we hod no obligation just because it was cheaper to do so, than to fight 
them. Our sales in California over o period of severol years were 
approximately $20,000. 00. We have paid out more in settlement costs and 
ottorneys' fees than our gross sales. There was no wrong doing on Midco's 
part but to fight the injustice would have caused us more money and legal 
fees. 

Enforcement of seporote Proposition 65 {Prop 65) warning requirements for 
those companies operating or marketing in California, especially by 
profiteering privote bounty hunters, is costing our industry millions in unfair 
fines, legal costs, and coerced settlements. 

It is clear that federal OSHA and Colifornia OSHA are currently at o serious 
impasse over who has primary jurisdiction and the proper sequence to 
coordinate their dual authorities. The result is bureaucratic acrimony, 
litigation, and time-consuming court-ordered state administrative hearings. 
Only bounty hunters gain os they take odvantage of the situation. 



98 



It would, therefore, be timely and prudent for Congress to review the 
bureaucrotic knot in the noose Ground the necks of companies trading in 
interstate commerce facing this Prop 65 maze. 

Congress would octually be doing states like California a favor by 
reinforcing its dear intent as expressed in the OHS Act thot o state plan 
omendment is not operational or enforceable until approved by OSHA. 
Separate state systems, like Prop 65, stand to interfere with the overall 
effectiveness of this complex, essential notional worker health ond safety 
regime unless they are geared first to complementing and enhancing the 
federal system. 

Very truly yours, 

MIDCO PRODUCTS COMPANY, INC. 



Randoll D. Garland 
Vice President 



99 




The Voice o( Soull Busliies 



COMMENTS: 

Submitted to Occupational Safety and Health Administration 

Department of Labor 

in re 

Guidelines for Workplace Violence 

Prevention Programs for 

Night Retail Establishments 

(Draft - April 5, 1996) 



600 Maryland Ave S.W., Suite 70O • Washington. DC 20024 • 202-554 9000 • Fax 202 5540496 
Tbt Guardian of Small Busmen for Fifty rears 



100 



On behalf of the National Federation of Independent Business, the following comments 
arc submitted in response to the Draft, "Guidelines for Workplace Violence Prevention Programs 
for Night Retail Establishments," issued by the Department of Labor's Occupational Safety and 
Health Administration. 

L INTRODUCTION 

On behalf of our members, the National Federation of Independent Business (NFIB) is 
pleased to have the opportunity to respond to the Occupational Safety and Health Administration 
(OSHA) regarding these important draft guidelines. This proposal raises complicated policy and 
technical issues -- all of which are of interest to NFIB and the small business community. In the 
following pages, NFEB will comment critically upon both the process by which OSHA 
promulgated the proposal as well as the actual nature and content of the proposal. Regrettably, 
we believe that the guidelines are inconsistent with numerous laws and executive directives, 
inappropriately raise businesses' legal liability, and will mandate unreasonably high compliance 
costs. NFIB will thus request that OSHA remove them entirely from their regulatory agenda. 

NFIB is the nation's largest advocacy organization representing small and independent 
business owners. With a membership of 600,000 business owners, NFIB is a melting pot of 
commercial enterprise: high-tech manufacturers and family farmers, neighborhood retailers and 
service companies. 

NFIB's national membership spans the spectrum of business operation, ranging from one- 
person cottage enterprises to firms with hundreds of employees. Its total membership employs 

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over 7 million people and reports annual gross sales of approximately $747 billion. At the close 
of 1994, NFIB's me^tibership was divided into the following industrial classifications: 12% mining 
and manufacturing; 14% construction; 8% agriculture and agriculture services; 28% services; 6% 
financial services; 23% retail; 6% wholesale; and 3% transportation and communications. While 
there is no standard definition of an average small business, the typical NFIB member employs 
five workers and reports gross sales of around $350,000 per year. 

Founded over 50 years ago, NFIB was created to give small and independent businesses a 
voice in governmental decision making. Today the organization remains true to its charter of 
advancing the concerns of small business owners among state and federal legislators and 
regulators. 

NFIB's positions on issues reflect the attimdes and priorities of our members as reflected 
in the numerous pollings and surveys NFIB has conducted. We poll our members a number of 
times a year to gather member input on current legislative and regulatory issues facing the nation. 
The results of these mandates direct our policy responses and initiatives. In addition to these polls 
and other special member surveys, every four years the NFIB Foundation publishes the results of 
a nationwide survey conducted to determine the top problems and priorities faced by small 
business owners. We use this publication, entitled Small Business Problems and Priorities, to 
help us better address the needs and concerns of our members. 

NFIB and its members share a strong commitment to employee safety and health. Small 
businesses employ 53% of our nation's workforce (SBA, Office of Advocacy) and, since the early 
1970s, have been responsible for creating approximately two-thirds of net new jobs (NFIB, Small 
Business Primer). Small businesses recognize that a healthy and safe work environment is 



27-530 97-5 



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beneficial to all involved, employees and employers. In fact, many small business owners and 
their families work along-side their employees on a daily basis -- thus they recognize the 
importance of deterring third party violence in the workplace on a very immediate personal level. 

NFIB recognizes that the workplace violence is a very serious problem in our society. 
The goal of these guidelines is stated to be the reduction of the incidence of armed robbery and 
other violence perpetrated against employers and employees of late-night retail restaurants, stores, 
gas stations, etc. The means by which the agency is attempting to accomplish this goal, however, 
are quite troublesome ~ especially when viewed against the purposes and requirements of current 
law. Moreover, it is illogical to assume that business owners will succeed where trained and 
well-financed law enforcement agencies have failed. In addition, the resources spent to abide by 
these guidelines will take away important resources form law enforcement efforts in the 
community. 

Small business owners ~ the potential recipients of OSHA citations and defendants to 
lawsuits — must object to the character of the safety program established by these guidelines. 
Arguably, any newly adopted system should effectively and efficiently serve to curtail incidents of 
third party violence. In addition, it should focus resources where workplace intervention will do 
the most good in preventing workplace violence. In order to accomplish this objective, any new 
system must first be considered credible by its administrators as well as business and labor 
stakeholders. It should be consistent with the Occupational Safety and Health Act (OSH Act) as 
well as current law. Secondly, the system must be reasonable and useful. Simply put, that means 
extreme and un-scientifically based requirements should be avoided. The credibility and 
useftilness of any system will suffer dramatically if the actions required will not prevent cases of 



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violence that are clearly related to the workplace situation and can reasonably be prevented by 
workplace intervention and control. And lastly, the system must minimize the administrative 
burdens and costs associated with implementation and not be considered counterproductive to 
accomplishing a safe work environment 

Unfortunately, after a close review of the proposal at hand, NFIB is unable to affirm that 
the draft has sufficiently conformed to any of the objectives noted in the paragraph above. This 
proposal is complicated, vague and overly broad. It is structured in a one-size-fits-all manner that 
ignores the significant differences between types of businesses, size of businesses, and location of 
businesses, etc. Thus it will impose an unnecessary burden upon the small business community by 
creating huge compliance costs, increased paperwork and the potential for increased litigation. 

It should also be noted that if the numerous ambiguous and onerous provisions of this 
proposal are not dramatically clarified or simplified, the regrettable end result may very well be 
non-compliance and increased litigation. 

IL FLAWED DISTRIBUTION PROCESS 

The proposed guidelines arc undoubtedly applicable to the broad range of businesses 
operating during nighttime hours. As such, they will impact thousands of small enterprises. But 
despite the potentially large audience for which these guidelines were drafted, OSHA has done 
little to widely disseminate them. Moreover, it appears that they were formulated by the agency 
with, at best, a minimum involvement from the potentially-regulated community. OSHA's poor 
record in eliciting cooperation from the business community in this instance is especially 



104 



discouraging given the recent movements on the part of the Congress and the President to make 
agencies generally less adversarial and more open and responsive to the regulated community. 

NFIB was extremely distressed to leam that this proposal was released to the public only 
over the Internet and to a select list of "interested parties." Survey data indicates that at this 
time a majority of small businesses lack computer technology and hardware. With so many small 
businesses being potentially impacted by these guidelines this method of distribution was not at all 
responsive to the circumstances of the small business community. Making regulatory actions 
better known to the business community should be an important goal for the federal government. 
According to most businesses, the regulatory process is inefficient -- over a third of firms find out 
about regulations after they become law, and in some cases, only after they are found to have 
broken the regulation. Only one-in-ten firms learns from the relevant federal agency about a new 
rule, most rely on trade associations and trade publications to educate them. (Federal Regulation 
and Its Effect on Business, US Chamber and Voter/Consumer Research, June 25, 1996) 
Obviously, this is a problem that must be rectified. 

In addition, it is even more troubling that in composing its list of "interested parties," the 
agency made little attempt to include major portions of the business community. In addition to 
ourselves, NFIB is aware of numerous other trade associations that should have been considered 
obvious stakeholders in an action of such importance. All these entities should have received 
copies of the draft immediately upon its release. 

Despite the fact that OSHA considers this proposal to be purely advisory in nature, NFIB 
believes that the appropriate method of disseniinating this to the public would have been 
publishing it in the Federal Register as it is our opinion that specific language in the guidelines 



105 



implies that they are actually mandatory in nature. (We will address this point in greater detail in 
the next section of comments.) Also, since the Federal Register is the most recognized and 
widely distributed instrument of government information used by the interested public it would 
have been a more appropriate means of publicizing such a broadly applicable proposal. 

NFIB is also concerned by the fact that contrary to OSHA's contention that the guidelines 
represent a "collaborative effort"and that the agency "[took] steps to involve the small business 
community in the development of the ... guidelines", it appears as if OSHA drafted these 
guidelines without a stakeholder process that openly soUcited involvement by the business 
community. (Letter to Senator Christopher Bond from Asst. Sec. Joseph Dear, August 29, 1996 
and BNA Daily Executive Report, July 24, 1996, OSHA spokesman Stephen Gaskill) 

The stakeholder process is not new to the agency's history. In fact, OSHA's recent 
"Notice of Proposed Rulemaking on Occupational Injury and Uhiess Recording and Reporting 
Requirements" (61 FR 4030), was developed with the input of numerous stakeholders. NFIB 
supports the idea of early stakeholder involvement because by exploring various options and 
incorporating many of the stakeholder's comments in any regulatory endeavor, better, more 
credible regulations will result The general business community also favors a more cooperative 
approach to regulation. A majority of firms would like to have more input in the drafting process 
of new regulations and want to participate in some form of government-business dialogue for they 
believe this would result in more user-firiendly regulations. (Federal Regulation and Its Effect on 
Business, US Chamber and Voter/Consumer Research, June 25, 1996) 

We hope that the type of "closed-door" policy development process used in this instance 
will not be repeated in future regulatory actions taken by the agency. Furthermore, NFIB urges 



106 



OSHA to hold stakeholders meetings with representatives of those interested parties most likely 
to affected by the proposed guidelines. Of course, NFTB would like to be present at this 
gathering to represent the concerns of the nation's small businesses. 

in. THE NATURE OF THE GUIDELINES IS MISLEADING 

NFIB believes that OSHA has not fairly represented the nattue of these guidelines to the 

general public. This problem arises from within the actual text of the draft On line 59, OSHA 

states, "These guidelines are not a new stardard or regulation. They are advisory in nature..." 

[emphasis in the original]. This implies that the proposal will not have the force of law. But, 

upon a further reading, the agency clearly appears to be issuing a different message: 

Employers can be cited for violating the General Duty Qause if there is a recognized 
hazard of workplace violence in their establishments and they do nothing to prevent or 
abate it. Failure to implement these guidelines is not in itself a violation of the General 
Duty clause of the OSH Act. OSHA will not cite employers who have effectively 
implemented these guidelines, [lines 74-78, emphasis added] 

It is inappropriate and misleading to characterize this proposal as advisory while also implying 

that the agency will use the general duty clause (section 5(a) of the OSH Act) to cite employers 

who have not "effectively" implemented them. NFIB would find it unacceptable for the agency to 

use voluntary guidelines as the basis for enforcement actions. 

Since the draft was released, pronouncements and actions on the part of OSHA have done 

little to clarify this matter. Although Assistant Secretary Joseph Dear has assured the Senate 

Committee on Small Business that "[t]hese guidelines are advisory in nature... [and that they] 

cannot and will not be enforced as though they were stardards promulgated after notice-and- 



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comment rulemaking," other pronouncements do not give small businesses comfort. (Letter to 

Senator Christopher Bond from Assistant Secretary Joseph Dear, August 29, 1996) One such 

instance is Dear's recent announcement that "OSHA will be making greater use of its general duty 

clause ...to cite employers." (Restaurant Business, "Learning to Guard Against Crime -- and 

Lawsuits," June 10, 1996) 

Moreover, if the agency has no intention of citing employers under this guideline, then 

NFIB questions the purpose and intent of the Workplace Violence Directive that OSHA is in the 

process of drafting. According to BNA's Daily Labor Report, 

[T]he agency would issue a compliance directive on workplace violence after the final 
guidelines for the late-night retail sector were completed... .The directive, designed to 
instruct regional administrators, area directors, and compliance officers, would provide 
additional guidance on conducting OSHA investigations and issuing citations stemming 
from job-related violence. Currendy, OSHA is using the general duty clause to cite 
employers for failing to protect high-risk workers from violence. 

It is clear to us that the agency is sending the regulated public mixed messages. If OSHA 
desires to hold businesses accountable to a national, third-party violence abatement standard, then 
it should promulgate one "by rule," as section 6(a) of the OSH Act directs. In the absence of 
such a rule, NFIB urges OSHA to, at a minimum, expressly state in any final version of this 
proposal that said guidelines cannot and will not be enforced as standards or under the general 
duty clause. Failure to respond to this request would lead NFIB to believe that this proposal has 
been prepared under the guise of guidance to skirt applicable law governing regulations, with the 
intention of it having the same effect 



108 



IV. LACK OF COMPLUNCE WITH LEGISLATIVE AND EXECUTIVE 
MANDATES 



NFIB asserts, that the guidelines constitute a violation of either the spirit or letter of 
numerous enacted laws and executive directives. NFIB realizes that OSHA has issued 
"guidelines," not regulations but we are legitimately concerned that the agency will nonetheless 
use the guidelines as the basis for enforcement actions under the general duty clause (see Section 
in of our comment for further information on this point). While that provision of the Act allows 
OSHA to use generally recognized health and safety standards as the basis for enforcement, in this 
case, OSHA itself is creating the standard and is clearly bypassing the regulatory review process. 
In addition, the character of these guidelines are such that plaintiffs' lawyers will point to them as 
government issued minimum standards for conduct. They therefore become requirements, 
regardless of what name OSHA gives them. 

NFIB believes the draft guidelines are not in compliance with the spirit or letter of the 
following laws or executive mandates: 

A. The OSH Act 

NFIB is concerned that the agency is using the general duty clause to avoid the 

requirement of section 6(a) of the OSH Act to establish matters of policy through the 

promulgation of rules. Section 6(a) states that 

[T]he Secretary shall,...by rule promulgate as an occupational safety or health standard 
any national consensus standard, and any established Federal standard, unless he 
determines that the promulgation of such a standard would not result in improved safety 
or health for specifically designated employees. 



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NFEB understands this to mean that the agency is compelled by law to issue a rule on what it 

arguably believes is a serious workplace concem that can be abated by workplace intervention. 

Such rules would then become OSHA policy. Matters of policy -- violations of which can result 

in citations and fines - must thus be promulgated through the standard regulatory review process. 

In regard to these guidelines, NFIB sees an attempt by the agency to create policy, not by 

formal rulemaking, but by use of the general duty clause. Specifically, OSHA maintains that their 

"enforcement authority" (line 74) is derived from the general duty clause. Section 5(a) of the 

OSH Act establishes the general duty clause as follows: 

Each employer"(l) shall furnish to each of his employees employment and a place of 
employment which are free from recognized hazards that are causing or are likely to cause 
death or serious physical harm to his employees; (2) shall comply with occupational safety 
and health standards promulgated under this Act. 

But we assert that the use of the general duty clause is not, and was never meant to be, a 

substitute for the promulgation of a standard. Legislative history bears this out Senate Report 

No. 1282 reads: 

The general duty clause in this bill would not be a general substitute for reliance on 
standards, but would simply enable the Secretary to insure the protection of employees 
who are working under special circumstances for which not standard has yet been 
adopted. [9Ist Congress, 2d Session 10, 1970] 

And Congressional records show Representative Steiger relaying a similar conclusion: 

It is also clear that the general duty requirement should not be used to set ad hoc 
standards. The bill already provides procedures for establishing temporary emergency 
standards. It is expected that the general duty requirement will be relied upon infrequenUy 
and that primary reliance will be placed on specific standards which will be promulgated 
under the Act [Senate Committee on Labor & Public Welfare, 92nd Congress, 1st 
Session, 1971; reprinted in Legislative History of the Occupational Safety and Health Act 
of 1970] 

Moreover, the general duty clause was never meant to cover universal exposures to the 

10 



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threats associated with such common actions as walking or sitting, or in matters related to this 

proposal, the unfortunate reality that working in a grocery store during evening hours carries with 

it the real threat of possibly being involved in an act of violence. The general duty clause was 

only intended to be used with regard to anomalous situations: 

[The general duty] clause enables the Federal Government to provide for the protection of 
employees who are working under such unique circumstances that no standard has yet 
been enacted.. ..[emphasis in the original. HR Report No. 1291, 91st Congress, 1st Session 
851-852] 

The Senate Labor and Public Welfare Committee Report concurred with this assessment as well. 

Federal court rulings also lend support to this interpretation of the proper use of the 
general duty clause. In fact, federal courts have long noted this history and have continually 
emphasized that OS HA should enforce the Act through specific standards rather than by resorting 
to the general duty clause. For example, in B&B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th 
Cir. 1978), the court states, "the Act indicates that Congress thought specificity of standards 
desirable" and stressed the importance of input from all industry stakeholders in the development 
of such standards. Two other significant cases carry this theme: ( 1 ) /?X. Sanders Roofing Co. v. 
OSHRC, 620 F.2d 97, 101 (5th Cir. 1980). held that safety concerns should be addressed by 
promulgating standards rather than imposing liability on employers under the general duty clause 
and (2) Brennan v. OSHRC, 513 F.2d 1032. 1038 (2nd Cir. 1975). concludes that standards arc 
"intended to be the primary method of achieving the poUcies of the Act" 

NFIB is concerned that despite such clear legislative intent, OSHA insists upon using the 
general duty clause to enforce the supposed informal and advisory policy contained in these 
guidelines. Because these guidelines were developed outside the standard regulatory process, the 



11 



Ill 



potentially-regulated community was effectively shut out of the standard developing process. 
This was clearly not the intention of the OSH Act. NFIB thus encourages the agency to rectify 
this situation by either withdrawing these guidelines entirely or promulgating this proposal 
through standard administrative procedures. 

B. Administrative Law 

NFIB believes that these guidelines violate the disclosure of information requirements set 
forth in the Freedom of Information Act (POIA). FOIA requires that federal administrative 
agencies make available to the public and publish in the Federal Register information concerning 
agency organization, functions, procedures and policies. (5 USCS § 552(a)(1)) This publication 
requirement reflects congressional concern over the "dearth of published descriptions concerning 
agency structure, function, and procedure." (See Santa Clara v. Andrus, (1978, CA9 Cal) 572 
F2d 660, cert den 439 US 859, 58 1 ed 2d 167, 99 S Ct 177.) 

Specifically, each agency must state and publish in the Federal Register. 

....(C) rules of procedure, ...(D) substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by the agency [Administrative Law Practice and 
Procedure, Lee Modjeska, 1982] 

More importantiy, case law specifies that the publication requirement attaches to matters which, if 

not published, would adversely affect the public. (Hogg v. United States (1970, CA6 Ky) 428 

F2d 274. cert den 401 US 910, 27 L Ed 2d 808. 91 S Ct 871) 

Because the guidelines indicate that employers who have not effectively implemented 

these guidelines could be cited (lines 77-78), this means a member of the public could be 



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adversely affected by this proposal -- a proposal that was not published in the Federal Register. 
To remedy this situation, NFIB urges OSHA to, at a minimum, post these guidelines in the 
Federal Register or make a direct and pronounced statement in said guidelines that they cannot 
and will not be enforced as policy standards. Failure on the part of OSHA to make these 
"enforceable," advisory guidelines available to the potentially-regulated community through the 
Federal Register, will effectively make them "un-cnforceable" for the courts have held that if 
matters are not published as required, such matters may not bind or adversely affect any party. (5 
uses § 552(a)(1), See, for example, Morton v. Ruiz (1974) 415 US 199, 39 L Ed 2d 270, 94 S 
Ct 1055) 

C. Small Business Regulatory Enforcement Fairness Act 

^fFIB is concerned that OSHA is attempting to impose a new regulation without regard to 
the Small Business Regulatory Enforcement Fairness Act of 19% (SBREFA). 

SBREFA was enacted so as to foster a more cooperative, less threatening regulatory 
environment among agencies and small businesses. This is accomplished through numerous 
provisions, the most relevant to our purpose being the requirements to (1) publish a regulatory 
flexibility analysis and (2) submit all new rules to a Small Business Advocacy Review Panel. 

Regulatory flexibility analyses are performed to help ease the regressive impact of "one- 
size-fits-all" regulations on small business. In the preliminary analysis, agencies are required to 
describe the impact of the rule on small entities and to specify the actions taken by the agency to 
modify the proposed rule to minimize the regulatory impact on small entities. The goal of the 
final regulatory flexibility analysis is to demonstrate how the agency has minimized the impact on 

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small entities consistent with the underlying statute and other applicable legal requirements. 

OSHA was one of two agencies required by statute to submit all new rules to Small 
Business Review Panels. This was done to secure early input from small businesses into the 
regulatory process. These panels are composed of individuals who represent affected small 
businesses and must be convened to review the draft proposed rule and the regulatory flexibility 
analysis. The panel then submits a report to the agency on the small business impact collected 
from small business representatives. The agency is obligated to review the repot, make any 
appropriate revision, and publish the proposed rule for comment 

NFIB and other small business advocates fought hard to secure the safeguards for small 
business that are contained in SBREFA. Also, it is important to note that this type of analysis is 
desired not just by small business, but by the regulated community as a whole. According to the 
US Chamber, most businesses want independent, scientific risk assessments done to measure the 
costs and benefits of regulations. {Federal Regulation and Its Effect on Business, US Chamber 
of Commerce and Voter/Consumer Research, June 25, 1996) 

NFIB is fearful that by publishing a "guideline," rather than a proposed standard or final 
rule, OSHA is attempting to make SBREFA a non-issue. OSHA is permitted to bypass SBREFA 
provisions in this instance because they are only triggered by "rules" certified as having a 
significant economic impact on a substantial number of small entities. Because these guidelines 
supposedly are not rules, very important small business safeguards have been avoided. This, in 
itself is a violation of the "spirit," if not the letter of the law. 

The gravity of OSHA's failure to comply with SBREFA provisions has also reached the 
attention of Congress as well. On July 24, 1996, the Senate Small Business Committee held a 

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hearing in part to address whether OSHA and other agencies should interpret the law more 
broadly to iiKlude agency activities that are technically non-regulatory but still have an impact on 
employers. Such actions include voluntary guidelines and compliance directives to agency 
inspectors. The Committee is concerned about such items because in some respects a guideline 
can have the same impact on a business as a regulation both in regard to compliance requirements 
and legal liability. 

As such, we encourage the agency to perform all types of analyses prescribed by 
SBREFA. We also urge OSHA to attempt to better comply with the goals and provisions of 
SBREFA in all future regulatory activities. Such moves should enable the agency to avoid all 
questions regarding their possible circumvention of the law. 

D. The Papenvork Reduction Act of 1995 

NFIB is concerned that these guidelines are not in compliance with the Paperwork 
Reduction Act of 1995 (PRA). 

A strongly bi-partisan reauthorization of the 1980 PRA was one of the first regulatory 
reform achievements of the 104th Congress. The PRA addresses the problems of the growing 
paperwork burden on the public by reauthorizing the Office of Information and Regulatory 
Affairs. This office reviews and approves -- or, if too burdensome or unnecessary, disapproves -- 
all paperwork requests by federal agencies. In addition, the PRA overturned the Supreme Court 
decision in Dole v. United Steelworkers which had exempted from review any government forms 
that did not have to returned to the federal government. This does not appear significant until one 
realizes that such federal mandates account for about one-third of all paperwork requirements. 

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Lasdy, the law set a govemment-wide paperwork reduction goal of 10% in each of the two years 
after enactment and 5% from fiscal 1998 through 2001. 

The need for agencies to respond responsibly to the PRA's paperwork reduction goals is 
crucial to sustaining a competitive business force in America. According to the US Chamber of 
Commerce, many businesses are already spending in excess of 10 employee hours per month 
complying with the paperwork burden of federal regulations -- 27% are spending 10 hours 
monthly doing paperwork for labor rules alone. (Federal Regulation and Its Effect on Business, 
US Chamber and Voter/Consumer Research, June 25, 19%) Most small businesses have ideas 
on how to resolve this problem. According to the SBA, 95% of small firms favor simplifying 
reporting and recordkeeping requirements, 73% advocate adding small business exemptions and 
68% desire increased flexible enforcement of paperwork rules. (The Changing Burden Of 
Regulation, Paperwork and Tax Compliance on Small Business: A Report to Congress, SBA, 
October 1995) NFIB concurs with their conclusions. If government could find a way to reduce 
the paperwork burdens on small business, not only would America's small businesses fair better, 
but, more importandy, so would Americans. This may seem a bold assertion. But, arguably, 
what's good for small business is good for the nation. 

In addition to accounting for approximately 38% of the GDP, small businesses constitute 
more than 98% of the business population. Small businesses have created about two-thirds of the 
net new jobs in the American economy since the early 1970s and they employ 53.7% of the 
workforce. (NFIB Problems and Priorities, 1993 and 1994 Presidential Report on the State of 
Small Business) In fact, small firms will likely contribute more than half of the 23.3 million jobs 
projected to be created in the nation from 1990 to 2005. (Data source: Bureau of Labor 

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Statistics.) 

The recordkeeping and paperwork mandates contained in these guidelines -- all of which 
are not required to be submitted to federal government -- would impose a tremendous burden 
upon small businesses. Moreover, they would only serve to add to OSHA's growing paperwork 
burden tally. (OSHA's burden-hour estimate rose dramatically from about 1.5 million hours in 
June 1995 to about 208 million hours in September 1995! (.Paperwork Reduction Burden 
Reduction Goal Unlikely to Be Met, GAO, June 5, 1996)). Already a June 1996 Government 
Accounting Office (GAO) study is predicting that OSHA will not be able to reduce its paperwork 
burden by 10%. Instead it will only approach a 3% reduction. (Paperwork Reduction Burden 
Reduction Goal Unlikely to Be Met, GAO, June 5, 1996). Thus, as legislated provisions of the 
PRA are being challenged by the OSHA's insistence on generating new paperwork burdens for 
American businesses, NFIB urges the agency to change its course and commit itself to real and 
lasting paperwork reductions. 

E. Unfunded Mandates Reform Act of 1995 

NFIB is concerned that the provisions in the guidelines that mandate establishing and 
expanding liaisons with law enforcement agencies may run contrary to the spirit of the Unfunded 
Mandates Reform Act of 1995 ("Unfunded Mandates"). 

Title n of the Unfunded Mandates law enumerates the regulatory accountability 

provisions. Section 201 states succinctly: 

Each agency shall, unless otherwise prohibited by law, assess the effects of Federal 
regulatory actions on State, local, and tribal governments, and the private sector. 



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Section 202 prescribes that for each significant regulatory action (i.e., those which cost the public 
and private sector $100 million or more to comply), the issuing agency must submit a written 
statement containing a qualitative and quantitative assessment of the anticipated costs and benefits 
of any Federal mandate on the public sector, the private sector and the general economy. Such 
statements must also summarize the prior consultation the agency had with state and local officials 
regarding the proposed rule (required by Section 204). 

On no less than three occasions, the proposed guidelines require employers to establish 
working relationships with law enforcement agencies specific to the purpose of said guidelines: 

(1) Lines 298 to 300 detail one of several minimum requirements of any wiitten workplace 
violence prevention program. Said programs should, "[o]utiine a comprehensive plan for 
maintaining security in the workplace, which includes establishing a liaison with law 
enforcement representatives and others who can help identify ways to prevent and mitigate 
workplace violence." 

(2) Lines 380 to 382 detail one of several actions the workplace safety team or 
coordinator must do when conducting their periodic workplace security analyses. To find 
areas requiring further evaluation, the team or coordinator should, "(a]nalyze incidents, 
including the characteristics of assailants and victims, and give an account of what 
happened before and during the incident, and the relevant details of the situation and its 
outcome. When possible, obtain police reports and recommendations." 

(3) Lines 630 to 631 mention one of several steps employers must perform when they are 
regularly reviewing their overall safety program. An evaluation program should involve, 
"[rjequesting periodic law enforcement or outside consultant review of tiie worksite for 
recommendations on improving employee safety." 

NFIB recognizes that by issuing "guidelines" the agency has effectively by-passed the 
cost-benefit analysis required by the Unfunded Mandates law. But, the spirit of such an important 
step in legislative and regulatory reform should not be derogated. 

Recommendations such as these on the part of OSHA show littie appreciation for how 
state and local concerns regarding mandates may affect their ability to respond to requests for 



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assistance from local small businesses. OSHA must recognize that while employers may attempt 
to develop relationships or partnerships with law enforcement agencies, these agencies may not be 
willing or have the resoiuxres to assist employers with workplace violence programs. 

Moreover, the implications of these provisions are unclear. We recognize that OSHA is 
requiring employers to make such overture to law enforcement officials. Does OSHA believe that 
these same law enforcement officials have an obligation to respond to such overtures? If so, then 
the agency must enumerate those obligations and perform the necessary assessments required by 
the Unfunded Mandates law. Can an employer be cited if law enforcement officials have not been 
involved in the employer's workplace violence prevention program - for whatever the reason? 

NFIB encourages the agency to address these issues in any further development of these 
guidelines. 

F. The National Labor Relations Act 

NFIB is concerned that employee participation on health and safety committees as 
proposed in the guidelines could violate the National Labor Relations Act (NLRA). 

The guidelines urge employers to establish safety and health committees to assess 

workplace safety, receive incident reports, inspect facilities, perform worksite analyses, respond 

to recommendations, etc. The guideline's philosophy on this matter is enumerated on lines 247 to 

251: 

Management commitment and employee involvement are complementary and essential 
elements of an effective safety and health program. To ensure an effective program, 
management and front-Une employees must work together, perhaps through a team or 
committee approach. If employers opt for this strategy, they must be careful to comply 
with the applicable provisions of the National Labor Relations Act which prohibits unfair 

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labor practices. 
While ^fFIB applauds the agency for enforcing employee involvement, we believe that OSHA has 
provided employers insufficient guidance in this regard. 

Presently, b.oth the National Labor Relations Board and the courts interpret section 
8(a)(2) of the NLRA as a broad proscription against employer formation of, or participation of 
almost any kind in, employee committees or organizations that function in a representational 
capacity outside of a collective bargaining relationship. (See Electromation, Inc. v. National 
Labor Relations Board, 35 F.3d 1 148 (7th Cir. 1994)) Because of this interpretation and in the 
absence of new legislation which would serve to eliminate this problem, many employers would 
be reluctant to formally adopt any "team" or "committee" approach that dealt with the issue of 
workplace violence with direct employee representation. 

OSHA should not prescribe a practice that has been ruled illegal. Nor should it encourage 
behavior on the part of the regulated community that could legitimately increase their chances of 
being involved in litigation. We thus encourage the agency to address these problems and to 
work with the small business community to remove the longstanding legal impediments that stand 
in the way of effective, voluntary employee involvement programs. 

G. The Americans With Disabilities Act 

NFLB is concerned that specific provisions of the proposed guidelines would require 
employers to violate the confidentiality requirements of the Americans with Disabilities Act 
(ADA). 

The ADA demands that employers keep certain medical information about employees 

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confidential (ADA, 42 USC § 121 12(d)(B)(3)). No less than three provisions of this draft appear 
to violate the AD\'s confidentiality provision: 

(1) Lines 309 to 320 mandate the creation of a Threat Assessment Team that would 
conduct a step-by-step worksite analysis to find existing or potential hazards for 
workplace violence. In making this analysis, the team or coordinator is asked to "review 
injury and illness records and workers' compensation claims" in an attempt to identify 
patterns of assaults. Injury and illness records are still considered confidential material 
according to OSHA's current recordkeeping practices as well. 

(2) Lines 594 to 604 detail one of several records that should be maintained by the 
employer for the purpose of their workplace violence program. Specifically, employers 
are urged to keep "[m]edical reports of work injury and supervisor's reports for each 
recorded assault." Since teams are encouraged to review such records in their periodic 
assessments of workplace safety, one can only assume that teams will have access to the 
private information contained in such records. 

(3) Line 626 to 627, state that in evaluating their safety programs, employers should 
"[s]urvey employees who experience hostile situations about the medical treatment they 
received initially and, again, several weeks afterward, and then several months later." 

Since the ADA strictiy prohibits employers from breaching the confidentiality of employee 
medical records, each of these provisions appears to violate the ADA. OSHA should never be 
requiring or even advising any employer to perform an action considered illegal. Such legal 
inconsistencies must be remedied. 



H. Executive Branch Directives 

NFIB believes that this draft guideline places an undue burden upon employers - 
particularly small employers - and thus runs contrary to executive prescription. 

On September 30, 1993, President William Clinton issued Executive Order 12866 
Regulatory Planning and Review. In this order all federal agencies were directed to: 



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....make the process more accessible and open to the public... promulgate only such 
regulations as are required by law.. .assess all costs and benefits of available regulatory 
alternatives, including the alternative of not regulating.. .tailor [their] regulations to impose 
the least bwden on society, including individuals, businesses of differing sizes, and other 
entities.. .[and] draft [their] regulations to be simple and easy to understand, with the goal 
of minimizing the potential for uncertainty and litigation arising from such uncertainty. 

The President reinforced these goals in his March 1995 Memorandum on Regulatory Reform. 

(Presidential Document 363) In that directive, agencies were admonished for drafting rules with 

"such detailed lists of dos and don'ts that the objectives they seek to achieve are undermined." 

Agencies were also strongly encouraged to regulate "in a focused, tailored, and sensible way." 

Lastly, agencies were encouraged "to promote consensus building and a less adversarial 

environment..." 

The proposed guidelines do not meet either executive directive. In fact, these guidelines 

appear to violate almost each of the President's orders: The guidelines were promulgated without 

the benefit of involvement from the potentially-regulated community. The guidelines are not 

clearly mandated by law. They impose significant and onerous burdens on the regulated 

community in the form of high compliance costs and increased paperwork requirements. They are 

drafted in a one-size-fits-all manner which ignores the vital differences between entities in regard 

to size and risk factors. They are overly vague and prescriptive. And, lastly, they will 

undoubtedly expose employers to new liabilities once final. 

V. THE GUTOELINES ARE POORLY CONSTRUCTED 

Violence against individuals in their workplaces is a serious problem. Employers in many 



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industries are already taking actions to reduce the incidence and seriousness of workplace 
violence. The federal government, by helping to collect data on this problem, has helped to draw 
attention to it and has assisted employers and employees in responding to the threat of violence. 
But there is not a "one-size-fits-all" solution that is cost effective for small and large facilities, 
family restaurants, bars, convenience stores and other types of night retail establishments. 

A. Excessive Compliance Costs 

The per-site costs specific to these draft guidelines are staggering and undoubtedly, small 
business will bear a disproportionate share of those costs. 

From recordkeeping to major engineering changes, the burden of these regulations is 
enormous. The draft stipulates that key elements of an appropriate workplace violence 
prevention program should include some of the following: creation of a "Threat Assessment 
Team," identification of risks associated with the workplace specific to each job position, industry 
and crime trend analyses, employee surveys, adoption of new cash register policies, employee 
training and counseling, installation of bullet proof barriers, elevation of vantage points, 
alterations to make service areas visible from outside of the establishment, installation of video 
surveillance equipment and closed circuit TVS, construction of speed bumps and fences, and 
requirements mandating more than one employee on duty during evening hours. These are only a 
few of the agency's recommendations. One affected industry estimates that a per-site cost of 
compliance for many small retail establishments will average $70,000, with an annual $6000 cost 
after the first year. Small businesses simply do not have the financial resources to cover such 
costs. 

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Small businesses already face high compliance cost from pre-existing federal regulations. 
Most companies are currently spending 5% or more of their annual budgets complying with 
federal rules. (Federal Regulation and Its Effect on Business, US Chamber and Voter/Consumer 
Research, June 25, 1996) Their budgets arc already stretched and the compounding effect of yet 
another unwarranted federal mandate will further weaken the already constrained economic 
environment for America's small businesses. 

Moreover, these additional regulatory costs hurt more than a company's bottom line. 
Regulations are job-killers and growth-killers - they lead to increased unemployment and higher 
prices. Many companies report either having avoided new hires or having reduced employee 
benefits so as to cover the costs of regulations. While one-in-six companies report having laid off 
employees in order to meet regulatory costs, regrettably, companies are twice as likely to avoid 
hiring new people in the first place. Regulations hamper growth. Increased paperwork 
requirements encourage a loss to productivity and efficiency. The facts bear this out - over 66% 
of companies report reduced profitability and 44% increase consumer prices to pay for their 
compliance costs. (Federal Regulation and Its Effect on Business, US Chamber and 
Voter/Consumer Research, June 25, 19%) 

OSHA must take steps to dramatically reduce the compliance costs of these provisions. 
At this time NFIB would also like to reiterate its prior-stated suggestion that the agency conduct 
all types of analyses required by SBREFA. Such analyses should have a detailed cost-benefit 
assessment The analysis should include data that the guidelines will result in some determinable 
benefits and that what will those benefits cost 



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B. Erroneous Use of the "One-Size-Fits-AII" Approach 

NFIB is concerned that the "one-size-fits-all" approach under which these guidelines were 
written will render them burdensome to all small businesses and not relevant to many. NFIB 
realizes that some recommendations may be appropriate for some small businesses under certain 
circumstances, however, the implementation of each of these provisions is not practical, necessary 
or desirable for every small business. 

Workplace violence is not taken lightly by any responsible employer. Many businesses 
already have established policies and/or guidelines in this regard. These programs have been 
developed over time and are specific to that company and the store location. 

The draft guidelines arc structured to cover any business that is open during the hours of 
9pm to 6am. That could easily include: grocers, retailers, convenience stores, liquor stores, 
restaurants, gas stations, drug stores, bars, movie theaters, hotels, and the like. There is no way 
that only one approach to a workplace violence prevention program could ever be appropriate 
from one site to another, let alone across industries! Yet, OSHA proposes to subject everyone to 
the same guidelines. 

An example illustrates this problem. The guidelines propose that the service and cash 
register area be clearly visible to those on the outside of the establishment (lines 435-438). Does 
this mean a bar or restaurant must now "un-dim" their lights so that the interior can now be visible 
from the street? If an incident does occur, would an OSHA inspector not issue a citation to the 
owner because his only justification for dimming the lights was to create an "atmosphere 
appropriate to the nature of the business?" How would the business owner respond to a plaintiff 
lawyer's claim that "safety" not "ambience" should come first? This is only one of hundreds of 

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examples that could be cited. 

NFIB encourages OSHA to recognize the broad ranging, inappropriate and costly impact 
that this "one-size-fits-all" approach will have on the regulated community. We thus reiterate our 
recommendation that the agency undertake the types of analyses SBREFA envisioned. Such 
analyses are essential to ensuring that the guidelines by OSHA are the solution which will achieve 
a quantifiable benefit and that the impact of these guidelines are not bome disproportionately by 
small business. The question needs to be answered: Would resources be better spent on local law 
enforcement and more jails? 

C. Vague Provisions 

NFIB is concerned that in their current form, the guidelines will be difficult, if not 
impossible to be understood and precisely implemented by small businesses in the regulated 
community. The draft has far too many vague requirements and undefined terms. It is incumbent 
upon the agency to act to clarify all such terms. Some examples are: 

(1) Lines 283 to 286 detail the small business exemption to the written and heavily 
documented job safety and security program. But, nowhere in the guidelines does OSHA define 
"smaller establishments" or "heavily documented." How will a business know it is small enough 
to omit this requirement? When docs documentation become "heavy" -- OSHA cannot hold 
businesses accountable to vague thresholds of compliance. 

(2) Lines 77 to 78 state that, "OSHA will not cite employers who have effectively 
implemented these guidelines." But, the draft does not stipulate what "effectively implemented" 
means. Assuming these guidelines are purely "advisory," a small business owner may opt to 
perform only those suggestions he deems relevant to his business and location. Would he be 
penalized by an OSHA inspector if his definition of "effectively implemented" differs for the 
inspectors? It is unfair for OSHA to hold regulated entities to such subjective standards. 

(3) Through out the document, OSHA makes use of the words "threat" and "risk." 
Employers and workers are not supposed to tolerate them (lines 291-193). Employees are 



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encouraged to suggest ways to reduce of eliminate them (lines 296-297). And teams are 
encouraged to identify them (lines 350-352). Yet, the agency never provides employers with 
exact or practical definitions. Obviously, a handgun pointed at a person is a threat. But, are non- 
verbal gestures a threat? Could the location of the business constitute a threat? 

(4) Lines 263 to 264 tell employers to provide "[a] comprehensive program of medical 
and psychological counseling and debriefing for employees experiencing or witnessing assaults 
and other violent incidents." Are employers required to cover the cost of such counseling? Can 
employers choose any program they want or must they opt for the program desired by the 
employee? What must such a program contain in order for it to be considered "comprehensive?" 



NFIB encourages OSHA to amend the guidelines so as to eliminate these and all other 
instances of vague definitions and ambiguous employer obligations. The federal government is 
obligated to provide the regulated community credible standards and programs that are both clear 
and reasonable. 

VL GUTOELINES ARE BASED UPON POOR SCIENCE 

A fundamental flaw with the guidelines is that OSHA did not base its recommendations on 
sound science. The research utilized by OSHA was almost exclusively limited to the convenience 
store industry. Furthermore, OSHA cannot demonstrate that the underlying assumptions used to 
develop the guidelines are based on credible scientific studies. Because of this, the agency cannot 
say with certainty that the guidelines will actually promote worker safety since the proposals they 
prescribe have not been fully tested and no proof for their assumptions exists. 

Of initial concern is OSHA's limited selection of studies upon which to base their 
conclusions. NFEB questions OSHA's reliance on the Crow and Bull study (lines 169-175). This 
study is now 20 years old. Given the exponential changes in moral and criminal behavior during 

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the past two decades (e.g., just view the emergence of drug related crime/behavior alone), we 
question whether the assumptions and conclusions of this study are now relevant to the present 
day crime deterrence strategies. In addition we question the reliance of the agency on the 
Gainesville study to defend their "two-clerk" requirement On numerous occasions that study has 
been debunked on the basis that its research was too narrow to yield significant results. In fact, 
one of the studies that refutes Gainesville is a study the agency relies upon to defend their focus 
on nighttime establishments -- namely the Erickson study (line 187). 

NFIB is also concerned that OSHA's underlying rationale is not necessarily valid. In 
developing this draft, the agency has assumed two things: ( 1 ) that a decrease in robberies will 
necessarily lead to a proportional decrease in workplace violence; and (2) the strategies set forth 
in the draft arc proven means by which to reduce robberies. It is our understanding that none of 
these assumptions is necessarily valid and, more importantly, that the strategies arc unproven and 
unsupported by scientific evidence. In support of this assertion, NFIB urges the agency to review 
the comments submitted by the National Association of Convenience Stores in this regard. We 
concur with their specific comments delineated on pages 8 through 18. These comments address 
the lack of scientific support for specific measures required by the guidelines. 

In view of these concerns, NFIB reiterates its general objection to the guidelines in their 
present form. We urge the agency to withdraw any and all provisions which cannot be proven to 
ameliorate the causes of third party violent incidents in the workplace. We do not feel that such a 
move would necessarily prove to be detrimental to the health and safety of the nation's workers as 
recent statistics released by the Labor Department's own Bureau of Labor Statistics state that 
number of workers killed in work-related incidents fell 6% in 1995 and the number of shootings 

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fell a dramatic 19% from 1994 - and all of this occurred without the "benefit" of the questionable 
provisions contained in this guideline. {BNA Daily Executive Report, August 12, 1996) 

Vn. EMPLOYER'S LEGAL LUBILITIES ARE UNJUSTLY INCREASED 

NFIB is concerned that these guidelines -- despite being characterized as voluntary - will 

have standing in court as a minimum standard of conduct. Thus, small businesses that do not 

adhere to them could be liable in tort liabUity lawsuits. This legitimate business concem has been 

realized by OSHA as well. The following passage from an interview with Patricia Biles, OSHA 

Workplace Violence Coordinator bears that out: 

"I can't speak for what some lawyers might do." But, she adds, the growing number of 
lawsuits is a compelling reason for employer to take safety issues very seriously. "It's 
exactly for that reason that everybody needs to start thinking about how to protect 
employees." [Restaurant Business, "Learning to Guard Against Crime - and Lawsuits," 
June 10, 1996] 

More specifically, our concem is that this official US Government document will, in 
reality, become a checklist for trial lawyers when any incident occurs on the premises. If the 
hapless employer has not complied with each and every requirement, then this policy will be used 
to prove negligence on the part of the employer. This increased risk in regard to liability suits 
imposes a particular burden on small businesses which, unlike larger employers, lack the resources 
-- and often even the time - to defend themselves against the claims of plaintiff's attorneys. 

OSHA must be sensitive to the legal ramifications of this proposal. Employers are already 
subject to several sources of liability for workplace violence. Courts have already ruled that 
employers tnay be cited for negligence when violence by third parties occurs in the workplace. 

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And, as awards in liability cases allow for the collection of punitive damages, the negative 
financial ramifications of such an action is greater than any OSHA citation and fine, (e.g., 
Maguire v. Hilton Hotels, 10 lER Cas. (BNA) 1323 and Maxwell v. Kroger, No. 95-389 (Miss 
Ct App. March 26, 1996) petition for cert, filed, June 13, 1996) In addition, state workers 
compensation laws also hold employers liable for workplace violence, (e.g., Froshee v. Skoney's, 
Inc., 10 lER Cas. (BNA) 647 (Ind. Sup. Ct 1994)) 

In addition, NblB is concerned that if these guidelines are considered to be a minimum 
standard of conduct, businesses that do not completely adopt these voluntary guidelines may find 
themselves unable to purchase insurance. Cunendy, small businesses have ranked the issue of the 
"cost and availability of liability insurance" as the fifth most significant problem they face. 
{Problems and Priorities, NFIB, 1992) Thus, this concern should be viewed seriously. 

Small businesses are already concerned about the safety of their employees. As they 
oftentimes work side-by-side their employees, who many times are members of their family, this 
concern is amplified and so is their response. Moreover, employers are already well aware of the 
potential liability that can arise from a failure on their part to act responsibly. Federal agencies 
should draft regulations in ways that minimize the potential for uncertainty as well as the probable 
litigation arising from such uncertainty. 

Vm. CONCLUSION 

In conclusion, NFIB wishes to impress upon OSHA its extreme concern that in their 
present form, these guidelines are severely flawed. We believe that the guidelines have 

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fundamental defects: They are inconsistent with numerous laws and executive directives. Their 
provisions do not meet the rigors of proven, tested science. They will inappropriately raise 
businesses' legal liability. And, they will mandate unreasonably high compliance costs. 

NFEB encourages the agency to recognize that most employers are already strongly 
committed to preventing incidents of workplace violence and the unfortunate effects that such 
incidents may have on their employees. The agency should also recognize that most employers 
are also already taking all steps that are feasible to avoid such problems. 

Moreover, NFIB requests that in view of the above-detailed problems, OSHA should act 
to withdraw the guidelines entirely. If this step will not be taken, NhlB urges the agency to act 
favorably upon the numerous suggestions made by this association in the preceding pages. 



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