[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]




 
         OSHA'S CONTEMPLATED SAFETY AND HEALTH PROGRAM STANDARD

=======================================================================

                                HEARING

                               before the

                      COMMITTEE ON SMALL BUSINESS
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                     WASHINGTON, DC, June 26, 1997

                               __________

         Printed for the use of the Committee on Small Business


                           Serial No. 105-15

                     U.S. GOVERNMENT PRINTING OFFICE

41-801 CC             WASHINGTON : 1997

------------------------------------------------------------------------------

               For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402





                      COMMITTEE ON SMALL BUSINESS

                  JAMES M. TALENT, Missouri, Chairman
LARRY COMBEST, Texas                 JOHN J. LaFALCE, New York
JOEL HEFLEY, Colorado                NORMAN SISISKY, Virginia
DONALD A. MANZULLO, Illinois         FLOYD H. FLAKE, New York
ROSCOE G. BARTLETT, Maryland         GLENN POSHARD, Illinois
LINDA SMITH, Washington              NYDIA M. VELAZQUEZ, New York
FRANK A. LoBIONDO, New Jersey        JOHN ELIAS BALDACCI, Maine
SUE W. KELLY, New York               JESSE JACKSON, Jr., Illinois
MARK E. SOUDER, Indiana              JUANITA MILLENDER-McDONALD,
STEVEN J. CHABOT, Ohio                 California
JIM RYUN, Kansas                     ROBERT A. WEYGAND, Rhode Island
VINCE SNOWBARGER, Kansas             DANNY K. DAVIS, Illinois
MICHAEL PAPPAS, New Jersey           ALLEN BOYD, Jr., Florida
PHIL ENGLISH, Pennsylvania           CAROLYN McCARTHY, New York
DAVID M. McINTOSH, Indiana           BILL PASCRELL, Jr., New Jersey
JO ANN EMERSON, Missouri             VIRGIL GOODE, Jr., Virginia
RICK HILL, Montana                   RUBEN HINOJOSA, Texas
JOHN SUNUNU, New Hampshire           MARION BERRY, Arkansas
                     Mary McKenzie, Staff Director
             Jeanne M. Roslanowick, Minority Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 26, 1997....................................     1

                               WITNESSES
                        Thursday, June 26, 1997
                                APPENDIX

Bailey, Melissa, Esq., McDermott, Will and Emery.................     7
Church, Earlyn, Vice President, Superior Technical Ceramics 
  Corporation....................................................    15
Gekker, Katherine, President, The Huffman Press, Inc.............    13
Landon, Brian, Proprietor and Operator, Landon's Car Wash and 
  Laundry, Landon's Paint and Touchup............................     9
Rainwater, Gary, D.D.S...........................................    11
Watchman, Greg, Acting Assistant Secretary for Occupational 
  Safety and Health, U.S. Department of Labor....................     4
Opening statements:
    Talent, Hon. James...........................................    45
    McIntosh, Hon. David.........................................    47
    Davis, Hon. Danny K..........................................    49
    Jackson, Hon. Jessie L., Jr..................................    51
    Pascrell, Hon. Bill, Jr......................................    52
    Poshard, Hon. Glenn..........................................    53
Prepared statements:
    Bailey, Melissa..............................................    55
    Church, Earlyn...............................................    66
    Gekker, Katherine............................................    74
    Landon, Brian................................................    77
    Rainwater, Gary..............................................    83
    Watchman, Greg...............................................    89
Additional material:
    OSHA's Working Draft of a Proposed Safety and Health Program 
      Standard...................................................    97
    Safety and Health Programs of The Occupational Safety and 
      Health Administration......................................   113
    Statement of American Farm Bureau Federation.................   117
    Letter to Chairman Talent from Society for Human Resource 
      Management.................................................   123
    OSHA Compliance Checklist for the Dental Office..............   131
    Statement of the Associated General Contractors of America...   147
    Letter to Assistant Secretary Joseph A. Dear.................   156
    AGC Guide for a Basic Company Safety Program.................   160
    Response from Dr. Rainwater..................................   201
    Letter to Chairman from U.S. Department of Labor.............   202
    OSHA's Worker Protection Program Success Stories.............   203
    Small VPP Facilities in New York.............................   207


         OSHA'S CONTEMPLATED SAFETY AND HEALTH PROGRAM STANDARD

                              ----------                              


                        Thursday, June 26, 1997

                          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, Hon. Jim Talent 
[Chairman of the Committee] presiding.
    Chairman Talent. I am going to go ahead and convene the 
hearing, since the two really important people are present.
    Mr. LaFalce. You and your counsel?
    Chairman Talent. Yes, and by that we mean the Majority and 
Minority counsel, they are here. They are what is important.
    Today's hearing is about a proposed OSHA standard requiring 
federally dictated health and safety programs. We will be 
looking specifically at the working draft of that proposal. 
Judging by the working draft, the proposed standard would place 
heavy new burdens of a procedural recordkeeping nature on every 
small business in the country, including those which have no 
record of safety problems and which are otherwise in compliance 
with OSHA's substantive standards.
    Moreover, this new burden would be different in kind from 
OSHA's typical standards in two ways: First, OSHA typically 
regulates safety, not management. OSHA usually requires that 
employers maintain safe conditions in the workplace, but 
doesn't regulate how they run the business, provided that they 
achieve the safe conditions.
    For example, my brother is a tavern owner in St. Louis, a 
fact of which I am very proud. There very well may be 
regulations requiring that he store beer kegs at a safe 
pressure level, but to this point OSHA hasn't told him what 
management technique he must use in getting the kegs to that 
level.
    Second, OSHA typically requires the elimination of hazards 
which can be objectively identified. This new regulation would 
require that small employers maintain safety programs, the 
elements of which are almost totally subjective in nature. 
Under the working draft, for example, small-business people 
must systematically manage safety with programs that are 
appropriate; must provide supervisor training commensurate with 
their responsibility; must allow each employee meaningful 
participation in the program through ongoing and effective 
communication and so on.
    When I read the working draft, I wasn't certain whether I 
was reading a proposed law or a draft script for the Oprah 
Winfrey Show.
    The working draft offers no definition of what these terms 
mean, nor could it, because the terms are conceptual and 
relative, rather than objective in nature. Unless the working 
draft is fundamentally modified during the process of 
rulemaking, it will result in a standard with which no employer 
in the country can comply, because it will not be a standard at 
all, but a series of vague, if well-intended, admonitions 
carrying the penalties, but not the clarity, of real law.
    I hope the Agency doesn't respond to these concerns by 
promising to be flexible in enforcing this new standard and 
assuring us its inspectors will be adaptable in applying its 
vague language to small employers. Far from being a virtue of 
the new rule, the vesting of arbitrary power in the Agency and 
its inspectors, the power to make and redefine the law while 
enforcing it, is a serious vice. The American people are 
entitled to know what the law requires them to do before the 
law is enforced against them. They should not have to depend 
for their rights on the good faith, the good will or the good 
mood of any government official on any given day.
    I have many other concerns with the proposed draft, but 
will withhold discussing them until after the witnesses have 
testified. I want to defer as always now to my colleague, the 
distinguished Ranking Member and former Chairman of this 
Committee and my good friend from upstate New York for any 
comments he may wish to make as an opening statement.
    [Mr. Talent's statement may be found in the appendix.]
    [The information may be found in the appendix.]
    Mr. LaFalce. Thank you very much, Mr. Chairman, most 
especially for holding this hearing about OSHA's draft safety 
and health program standard.
    This is appropriately a subject of concern to our Committee 
because any action in this area will most definitely have an 
impact on the small business community. One question for us to 
look into is whether that impact will be good or otherwise, and 
to offer our suggestions to help ensure that small business' 
legitimate concerns are dealt with as the process moves 
forward.
    I am pleased to learn that OSHA has been working with the 
Small Business Administration and its Office of Advocacy, as 
well as countless trade associations which represent the small 
business community, in developing and refining its proposed 
program standard. This is the way the regulatory process ought 
to work, and I commend Acting Assistant Secretary Watchman and 
his colleagues at OSHA for those efforts.
    Mr. Chairman, the people of the United States want to know 
that their workplaces are as safe as reasonably possible. 
Employers and employees alike have a definite interest in 
preventing workplace illnesses and workplace injuries to the 
extent it is possible. Doing so will mean happier, healthier 
workers, lower costs for our products, lower insurance rates, a 
stronger economy. As always, the devil will be in the details.
    So I will take no longer today except to join you in 
thanking the witnesses for coming to share their knowledge and 
opinions with us on these important matters, and to thank you 
again, Mr. Chairman, for holding this hearing at an early 
enough point in the process for our efforts to make a 
difference as OSHA moves forward with this program standard.
    Chairman Talent. I thank the gentleman for his comments and 
for his long-standing commitment to worker safety, which I know 
has been one of his priorities. Nothing would make me happier, 
as I know it would make him happier, than if we found some 
angels in the details as well as devils in the details.
    [The information may be found in the appendix.]
    Chairman Talent. Our first witness today is the Honorable 
Greg Watchman, the Acting Assistant Secretary for Occupational 
Safety and Health. Before I ask Mr. Watchman to proceed, I want 
to thank him for his willingness to be available both for this 
hearing and also making himself available to me for personal 
discussions about this and other topics. I really am very 
pleased at the time he has made available to me, and I am 
grateful for that.
    Having said that, I wanted to comment on the procedure 
today. I have discussed this briefly with my friend yesterday, 
but I think it is important now to air this with the Committee 
as a whole. The Committee may recall that I have said on 
several occasions that when we have executive branch witnesses 
and small business people or citizens, that I typically would 
want the executive branch witnesses to testify after the 
citizens do, not that they are not citizens, but after the 
nongovernment witnesses, and there are three reasons for that. 
The first two are practical. One of them is that I know that 
many of the Members wanted to question the executive branch 
officials, and I have been at too many hearings when once that 
questioning is over, the Members who have other things to do 
leave, and they are not available for the nongovernment 
witnesses, some of whom have come from halfway across the 
country. Also, I think it is important that the government 
witnesses hear the concerns that are raised and then be 
available to answer them. That is a very practical concern.
    Then the third reason is not practical, it is just that I 
feel strongly that we work for all of them, and we should be at 
their service rather than the other way around. But I have 
rather consistently received letters and communications from 
the protocol people in the various executive branch agencies 
who are concerned that testifying second would somehow affect 
the -- what is the right word -- the ``majesty'' of the offices 
at stake, and so they have been reluctant to do it.
    Now, to Mr. Watchman's credit, and to the credit of many of 
the actual officials, they don't seem to care personally. They 
would just as soon go second, but they feel like they have to 
comply with the policies of their Department.
    I am going to have entered into the record without 
objection a letter to that effect that we received from the 
Department of Labor.
    Chairman Talent. I welcome again Mr. Watchman, and thank 
him for his flexibility. He will testify on the first panel, 
but he has agreed to withhold answering questions until the 
second panel is finished so we can question everybody at the 
same time. That deals with the substantive concerns and that 
housekeeping matter, so I will now ask Mr. Watchman to go ahead 
with his statement.

  STATEMENT OF GREG WATCHMAN, ACTING ASSISTANT SECRETARY FOR 
    OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR

    Mr. Watchman. Thank you, Mr. Chairman. Thank you for the 
opportunity this morning to tell you about our progress on 
developing a safety and health program proposed standard. This 
morning I would like to answer four questions about this 
rulemaking.
    First, why do American workers need a safety and health 
program standard? Second, what is OSHA considering? Third, what 
is the rulemaking process we are using to develop the standard? 
Fourth, what is OSHA doing to address the needs of small 
employers?
    The first question, why do American workers need a safety 
and health program rule? We have made a lot of progress in the 
last 25 years in this country in reducing occupational fatality 
rates, but the reality is the job is far from done. Every year 
tens of thousands of workers die in safety accidents or from 
occupational disease, and millions more are injured. These 
incidents cost our society over $100 billion each year. The 
good news is that most of these incidents are preventable, but 
OSHA lacks the resources to get to these workplaces to protect 
workers. We have only 2,000 Federal and State inspectors across 
the country to protect over 100 million workers, so we need 
employers and employees to play a much larger role in 
protecting workers through ongoing systematic approaches to 
safety and health.
    Safety and health programs represent exactly this kind of 
approach. We have substantial experience with safety and health 
programs. Many States already require them. Most collective 
bargaining agreements require them, and many employers 
somewhere established them on their own.
    Ultimately we have learned that safety and health programs 
help to reduce injury and illness rates. They can save between 
$4 and $6 for every dollar invested in a safety and health 
program, and they also in many cases have been shown to improve 
morale and productivity in workplaces across this country.
    Let me give you several examples of the success of these 
programs. In Colorado, over 500 employers established a safety 
and health program under an insurance industry program. 
Accidents declined by 23 percent, accident costs declined by 62 
percent, and ultimately the employers that participated in this 
program saved $23 million just in the first year of the 
program.
    Second, in Massachusetts, employers with safety and health 
programs in a study had their losses decline by 17 percent, 
while those without a safety and health program saw their 
losses increase by 15 percent.
    Our voluntary protection programs, which recognize 
excellence in safety and health, are another piece of evidence. 
Participants in these programs have comprehensive safety and 
health programs, and they have injury rates that are 35 to 90 
percent below their industry averages.
    Last, in Maine, we had a cooperative compliance program 
called Maine 2000. By establishing comprehensive safety and 
health programs, employers were able to identify 14 times more 
hazards than OSHA could have identified through inspections 
alone.
    We have seen many examples of what happens when employers 
use safety and health programs and when they do not. Boise 
Cascade had a program, and they were able to reduce their 
workers' compensation costs from $1.3 million to just $37,000 a 
year. In contrast, in North Carolina, Imperial Foods had no 
safety program, no means of identifying and fixing fire 
hazards. There was a fire there; 25 workers died. Subsequently, 
North Carolina enacted its own safety and health program 
requirement.
    Question number 2: What is OSHA considering? We are 
considering development of a rule consistent with five new OSHA 
themes following five principles with five core elements. The 
new OSHA themes are to develop a rule that is consistent with 
common sense, that involves stakeholders in the process, that 
is written in plain language, that shifts the Agency's focus 
from technical violations to a systematic approach, and that 
treats responsible employers differently from less responsible 
employers.
    The five principles we are following are to include the 
core elements necessary for an effective standard, to make the 
standard as flexible and performance-based as possible, to 
focus on effectiveness rather than documentation, to address 
the needs of small businesses, and to provide extensive 
compliance assistance.
    The five core elements include management commitment, 
employee involvement, finding and fixing hazards, employee 
training, and evaluation of the program. There is very 
substantial agreement within the safety and health community 
about these core elements.
    Question 3: What is the rulemaking process we are using? We 
began work in 1993. We started stakeholder meetings in October 
1995. We held a second series in June 1996, and a third series 
last December. We are now working on a proposed standard, and 
our hope is to publish a proposed standard by the end of this 
calendar year.
    Obviously the proposal will only then trigger the formal 
rulemaking process, which itself is very thorough and allows 
for lengthy hearings, comment periods and cross examination of 
witnesses.
    Along the way we have had many, many other informal 
meetings. We have interacted and met with hundreds of 
stakeholders, including many employers, employer 
representatives, worker representatives, and safety and health 
professionals. We have also taken many significant steps in the 
working draft and in our subsequent efforts to address the 
concerns that employers have raised, as well as the concerns 
that workers have raised.
    The last question: What is OSHA doing to address small-
business concerns? First we are attempting to identify those 
concerns by including small employers and their representatives 
at our stakeholder meetings; by holding separate meetings, 
which we began in Cleveland in 1995 and intend to continue next 
month in Atlanta, Philadelphia, Columbus, and Portland, Oregon; 
also by conducting a regular SBREFA regulatory review panel 
process; and last by working closely with SBA to address small-
employer concerns.
    All of these are steps we are taking prior to the issuance 
of a proposal, and we will have a lengthy process, as I said, 
after that during which small employers can make their views 
known before a final rule ever takes effect.
    Second, in addition to identifying their concerns, we are 
responding to those concerns. We have deleted many requirements 
and have stripped the standard down to core elements. We have 
based it on flexible language and plain language. We have added 
long phase-in periods and made a commitment to compliance 
assistance. We have dropped a written program requirement, 
minimized the documentation requirement, and exempted the 
smallest employers from that requirement.
    Last, we have addressed the enforcement issue up front and 
have adopted a policy under which no penalty would be issued 
for a violation of the standard unless there was also a pattern 
of serious hazards or violations.
    In conclusion, Mr. Chairman, first, American workers need a 
safety and health program standard. Second, OSHA is considering 
a common-sense approach that has a long track record of 
success. Third, OSHA has listened and will continue to listen 
to stakeholders regarding the development of this rule. Last, 
OSHA has taken steps and will continue to address small 
employer concerns in the future.
    Thank you.
    Chairman Talent. I thank you. Thank you also for 
summarizing your testimony, Mr. Watchman.
    [Mr. Watchman's statement may be found in the appendix.]
    Chairman Talent. We will now go to the second panel. Mr. 
Watchman, you can either stay or retire for the time being and 
then come on back for questions. So I ask the second panel to 
come forward.
    Our next witnesses, I do want to ask the witnesses, I know 
you have prepared statements, which will all be admitted into 
the record without objection. In the case of statements that 
are fairly long, if you could summarize the high points, that 
would be helpful to the Committee. Often the most fruitful 
parts of these hearings are when the Members get to ask 
questions about the areas of concern to them. I am not trying 
to put a damper on anybody, but if you could keep that in mind, 
that would be good.
    Our first witness is Ms. Melissa Bailey, Esquire, of 
McDermott, Will and Emery, of Washington, DC, who is a legal 
expert on OSHA and health and safety matters. Ms. Bailey.
    Mr. LaFalce. Mr. Chairman, before we proceed, Mr. Watchman, 
when the turn comes for questioning, my first question is going 
to be what comments do you have to make on the most salient 
points made by each of the other of the five witnesses. So I 
would ask you to listen to them and jot down at least their 
most salient points, and then I will ask the Chair for leniency 
in time in permitting you to answer that.
    Mr. Watchman. Thank you for the advanced warning, Mr. 
LaFalce.
    Chairman Talent. I will give an advance ruling. Of course 
the gentleman has unlimited time for the questions he may wish 
to ask.

  STATEMENT OF MELISSA BAILEY, ESQ., MCDERMOTT, WILL AND EMERY

    Ms. Bailey. Thank you, Chairman Talent and Members, for 
inviting me to testify today about OSHA's draft proposed safety 
and health program standard. I appreciate the opportunity.
    My name is Melissa Bailey, and I am an Attorney in 
McDermott, Will and Emery's OSHA practice group here in 
Washington. The OSHA practice group consists of eight attorneys 
who spend the majority of their time representing employers of 
all sizes in inspections, enforcement litigation, rulemaking, 
and compliance counseling.
    OSHA issued a draft proposed safety and health programs 
standard in November, 1996. The standard would apply to 
employers of all sizes and would mandate that safety and health 
programs with certain core elements be established in each 
workplace.
    OSHA has set out a laudable goal in this draft proposal, to 
require employers to implement comprehensive safety and health 
programs to prevent injuries in the workplace. The problem is 
that on the day this standard is adopted, every employer will 
become a lawbreaker. The reason for that is simple: The 
language is so vague that OSHA inspectors will be able to 
interpret it any way they want to, and no employer will ever be 
sure whether or not he or she is in compliance.
    OSHA adopts basically two types of standards: Specification 
standards and performance standards. A standard requiring 
guardrails is an example of a specification standard, because 
OSHA tells the employer how high and how wide the guardrail has 
to be for the employer to be in compliance. A performance 
standard lets the employer decide the best and most efficient 
way to reach a certain safety goal. The noise standard, for 
example, provides that if employers get to a certain decibel 
level, then they are in compliance with the standard. The 
employer, rather than OSHA, decides how to get to that level.
    This draft proposal is neither a performance standard nor a 
specification standard. OSHA calls the proposal a 
``performance-based'' standard, but it lacks an objective 
safety goal. Rather, it just lays out a set of very general, 
vague requirements. Just to give one of many examples, the 
draft says the employer must conduct hazard assessments ``as 
often as necessary'' and in a way ``appropriate'' to safety and 
health conditions.
    What inevitably happens with this kind of vague language is 
that the company thinks it is ``appropriately'' assessing 
hazards ``as often as necessary,'' but the compliance officer 
shows up and believes otherwise. A favorite professor of mine 
described it like this: A performance standard becomes a 
specification standard in the hands of the OSHA inspector.
    When OSHA adopted the process safety management, or PSM, 
standard for the chemical industry in 1992, it too was touted 
as a performance-based standard. Having represented employers 
throughout the nation in PSM inspections and enforcement 
litigation, we have discovered that once a standard leaves 
Washington and lands in the hands of OSHA inspectors, the idea 
of a performance standard becomes a hoax.
    The PSM standard's requirements for operating procedures 
are an excellent example of this problem. The standard requires 
that operating procedures be ``clear.'' There was very little 
debate over this provision during the PSM rulemaking because 
employers believed that they knew how to write clear operating 
procedures. What employers have now discovered is that they 
don't know how to write operating procedures, it is OSHA who 
knows how to write operating procedures. It is OSHA that issues 
citations and penalties that specify the level of detail that 
make the procedures ``clear'' enough for employees to 
understand.
    OSHA is trying to sell this standard to stakeholders as 
harmless because it is ``performance-based'' and flexible. What 
employers will find if this standard is adopted is that 
compliance is a moving target.
    In addition to enforcement concerns, the draft raises 
significant policy issues with regard to OSHA rulemaking and 
the way employers are cited. OSHA issues two types of citations 
to employers: Citations alleging violations of hazard-specific 
standards such as the machine-guarding standard; and citations 
alleging that the employer has violated the general duty clause 
by failing to maintain a workplace free of hazards. The general 
duty clause is basically used when OSHA does not have a 
standard on a particular hazard. In recent years, OSHA has used 
the general duty clause to cite employers for ergonomics 
violations since the Agency has not been able to adopt an 
ergonomics rule.
    The draft safety and health program standard mandates that 
employers assess, prevent, and control all hazards, including 
hazards like ergonomics that OSHA currently has to cite using 
the general duty clause. So, this draft is in essence a back-
door ergonomics standard because, rather than going to the 
trouble of issuing a general duty clause citation, it will 
allow OSHA to cite the employer for a violation of the safety 
and health program standard and then require abatement of the 
ergonomics hazards.
    In other words, OSHA will simply use the safety and health 
program standard to cite the employer for having an ineffective 
program that doesn't deal with ergonomics. So, by adopting a 
safety and health programs rule, OSHA is really adopting back-
door standards on ergonomics, workplace violence, and every 
other conceivable hazard that could be the subject of a general 
duty clause citation. But rather than being forced to develop a 
record, talk to experts, and negotiate with industry and labor, 
OSHA is able to avoid all the controversy of actually adopting 
this type of standard.
    I am sure I must sound like the voice of doom at this 
point, and I guess to some degree I am, because this draft 
standard simply cannot be fixed. Any standard broad enough to 
cover all of American industry and yet flexible enough to 
account for each workplace's special circumstances will 
inevitably use the broad language that is so problematic once 
it leaves Washington.
    The good news, if you will, is that a safety and health 
program standard is simply not necessary because it doesn't add 
anything new to what OSHA can already regulate. It does not 
focus on a specific hazard, and OSHA already has the 
enforcement authority to issue citations and penalties for 
every hazard included in the safety and health program standard 
by using the general duty clause and the standards it has 
already promulgated.
    In addition, a safety and health program standard 
duplicates the requirements set out in hazard-specific 
standards. OSHA already has requirements in numerous hazard-
specific standards like lockout/tagout, PSM, personal 
protective equipment, and others that require the same type of 
hazard assessments this standard would.
    The draft proposal says that OSHA is prepared to launch 
``the most extensive outreach, education and compliance 
assistance campaign in the Agency's history'' to help small 
businesses develop programs. I question why the Agency needs a 
standard to conduct such a campaign. Why not help small 
businesses without promulgating a costly, unnecessary standard?
    The enforcement and rulemaking issues I have raised are the 
most significant problems in the draft, but there are others 
that are detailed in my written testimony that I simply didn't 
have time to mention. For example, the draft may expand OSHA's 
ability to issue criminal penalties, and it implicates 
important labor-management relations issues.
    Thank you for giving me the opportunity to speak today.
    Chairman Talent. Thank you, Ms. Bailey.
    [Ms. Bailey's statement may be found in the appendix.]
    Chairman Talent. Our next witness is Mr. Brian Landon. He 
is the proprietor and operator of Landon's Car Wash and Laundry 
and Landon's Paint and Touchup in Canton, Pennsylvania.
    You don't launder the cars, you launder, I take it, 
clothes, right?
    Thank you for coming here, Mr. Landon. We will hear your 
testimony now, sir.

 STATEMENT OF BRIAN LANDON, PROPRIETOR AND OPERATOR, LANDON'S 
        CAR WASH AND LAUNDRY, LANDON'S PAINT AND TOUCHUP

    Mr. Landon. Mr. Chairman and Members, good morning.
    As the Chairman said, I am Owner and Operator of Landon's 
Car Wash and Laundry and Landon's Paint Touchup in Canton, 
Pennsylvania. I have been a small-business owner for 22 years. 
Currently I have two employees.
    Mr. Chairman, I respectfully request that my written 
statement be entered into the record.
    Chairman Talent. Without objection.
    Mr. Landon. It is my pleasure to offer comments on the 
draft proposal of OSHA's safety and health program standard for 
general industry. Today I am speaking not only for myself, but 
on behalf of the National Federation of Independent Business, 
of which I have been a member for over 20 years. With two 
employees and gross sales of just over $200,000, I am fairly 
typical of the 600,000 NFIB members.
    In opening, I would like to say that I, like other NFIB 
members, have a strong commitment to my employees' safety and 
health. This is a commitment that is rooted in the unique 
relationships that exist in a small business, relationships 
that come about by working side by side with my employees at 
the car wash, at the laundry, and in the paint touchup 
business; working in an atmosphere where there are no strict 
job descriptions, and daily tasks are often shared between 
myself and my employees.
    I am typical of many small businesses whose employees are 
family and friends. In my case, one of my employees is a good 
friend and my brother-in-law, and another is another close 
friend. It is these personal relationships that drive my 
concern for safety.
    My employees know that I will provide them with whatever 
support, be it information, supplies or equipment, that is 
necessary to create a safe workplace and to protect their 
health. I work alongside my employees at each of the work 
sites, so it is both to the advantage of myself and my 
employees to provide a safe workplace. I am proud to say we 
have never had an injury, accident or health hazard occur at my 
car wash, laundry or paint touchup business.
    I am extremely concerned with the burdens and associated 
costs that the requirements in the draft proposal would place 
on me and my small business, requirements that include 
implementation of a general health and safety standard for each 
work site, management leadership, employee participation, 
hazard prevention and control, training, and system evaluation. 
Although the recordkeeping, monitoring and application checkoff 
lists are not mandated by the standard, for liability 
protection purposes I would need to undertake each of them. In 
my case, these requirements are compounded by the fact that my 
car wash, laundry and paint touchup businesses encompass four 
different buildings.
    As a small two-employee business, I cannot assign these 
tasks to a management team or a manager or even one of my 
employees. The full burden would fall on me. This would have a 
serious detrimental effect on my productivity, and it is my 
productivity on which the success of my small business and my 
employees' jobs depend.
    As always, the cost of compliance would fall heaviest on my 
small business and other small businesses like mine. As 
published in the document by the Small Business Administration, 
regulatory costs to small businesses are approximately 50 
percent higher per employee than larger firms, and the smaller 
the firm, the higher those costs.
    Although the draft suggested that there would be a phase-in 
for small businesses with fewer than 10 employees, this phase-
in would only delay the inevitable and in no way offset the 
disproportionate costs in dollars and productivity that my 
small business would incur.
    The draft proposal states that the participation of my 
employees will be a necessary element of any new general OSHA 
standard, and that this participation should include employee 
activity in assessing and controlling hazards, developing safe 
and healthful work practices, training and evaluating the 
safety and health program. I have four different buildings 
where my small businesses are located. Oftentimes my employees 
must travel from one site to the next to complete their duties. 
With only two employees and four work sites, my employees will 
be so busy completing their assignments under the general 
industry standard that they will not have time to do their 
jobs. Again, this employee participation would have a negative 
impact on the productivity of my employees without necessarily 
adding to safety in the workplace in any form.
    So, because the draft safety and health standard does not 
allow for the unique nature of the smallest employers like 
myself, and because the burdens and costs would fall heaviest 
on the smallest of small businesses such as mine without 
significantly increasing workplace safety, I strongly urge the 
Agency to provide a very meaningful small-business exemption.
    Mr. Chairman, thank you again for the invitation to appear 
before your Committee, and I will be happy to take any 
questions you might have.
    Chairman Talent. Thank you, Mr. Landon.
    [Mr. Landon's statement may be found in the appendix.]
    Chairman Talent. Our next witness is Dr. Gary Rainwater of 
Dallas, Texas.
    Dr. Rainwater.

              STATEMENT OF GARY RAINWATER, D.D.S.

    Dr. Rainwater. Thank you very much. I assume that the 
written testimony will be entered into the record.
    Chairman Talent. Without objection.
    Dr. Rainwater. At least when I talk to you, something 
intelligent will come out of my testimony. I would just like to 
have a conversation with you. I would like to tell you who I 
am. I am Gary Rainwater. I am a Dentist. I am in full-time 
private practice of dentistry in Dallas, Texas, except for this 
year, and I am there only maybe a day or two because I am also 
President of the American Dental Association, and as such I 
represent 144,000 licensed practicing dentists across this 
country.
    In November, I went to Washington, and I had a meeting with 
Greg Watchman and Joe Dear. This is when I first learned about 
this proposed safety and health standard.
    I went there for a different reason, a very unusual reason, 
a reason that I would never have thought I would have gone 
there 5 years before. I went there to compliment OSHA for being 
reasonable, for listening to us, for being receptive, for doing 
some common-sense things. They have introduced the phone and 
fax method of dealing with complaints in dental offices. It 
makes sense; pick up the phone and ask if there is a problem, 
and can we solve it before we send an inspector out. It has 
worked very well. It is a good thing they are doing, and I 
applaud them for it.
    Chairman Talent. Dr. Rainwater, I am sure Mr. Watchman 
would want to make sure everybody in the room heard that, 
right? You went to see him and Mr. Dear to compliment OSHA on 
its responsiveness and its common sense.
    Dr. Rainwater. Yes. Five years before I would have never 
have thought I would be in that position. But we did do that. 
That doesn't mean that I agree with everything that OSHA does 
and that I agree with a lot of these regulations, but I do 
applaud them for changing, trying to be rational, and trying to 
be sensible, and they have done a good job to that effect, at 
least for our profession.
    Mr. LaFalce. Did you take Congressman Charlie Norwood, 
another dentist, with you?
    Dr. Rainwater. No, Charlie was not there.
    This is when I first learned about this proposed standard. 
I said to Joe Dear and to Craig that, wait just a minute. Now, 
as I read this, you are going to come out with this, and it is 
already covered under our blood-borne pathogens standard, it is 
already covered on our hazard communication standard. We have 
sat down with you and come up with this OSHA compliance 
checklist for a dental office, and you can go through this and 
you can come up with every possible hazard that you can in 
dentistry, and we have a checklist that we go through with our 
members. So we already have two standards that cover this, and 
everything else involved is intrinsic to the practice of modern 
dentistry.
    We sit down with our employees and have regular meetings, 
how to treat patients better, to deal with new materials and 
new techniques, and to discuss those things regularly as to how 
in that dental office we can make it safer.
    The typical dental office in the United States of America 
today has a solo practitioner in the office. Over 80 percent 
are solo practitioners. They have typically three or four 
employees. The average dental office is about 1,000 square 
feet. All offices, I believe, under 96 or 97 percent don't take 
my figures entirely, but somewhere along 96, 97, or 98 percent 
are under 4,000 square feet. The thing about it is that we all 
work along beside each other. I do the same things my employees 
do. I may do them on a different level, but I am exposed day 
in, day out to the same workplace hazards that my employees 
are. So that means that I am as conscious about safety in our 
workplace as my employees.
    In my office I have three employees. I have got a 
secretary, I have got a hygienist, I have got a chairside. They 
have been with me 27 years. They are like a family. I work in 
1,500 square feet. If I called together a committee of my 
office staff and said, we are going to form a committee and it 
is going to be ``find and fix,'' they are going to laugh at me. 
Find and fix what? Are you talking about the light bulb burned 
out over there? When I get enough time in my busy duties, I 
will replace the light bulb. In a small office like mine, that 
is something we do day in and day out, when we pass in the 
hall. That is something we do in the meetings we regularly 
hold. This is not something that is going to really be received 
very well.
    On a national level, dentistry is saying with the five core 
elements of this, we are already complying with this. We are 
already going beyond it. We are looking for emerging hazards; 
not only the hazards there, but the ones out there. We are 
dealing with the nitrous oxide situation and have been since 
1979, to make the equipment safe and to be sure it is properly 
maintained. We are also dealing with the ergonomic issue. We 
are engaged in research and have reported it. Do we need more 
research to see is there a real problem out there? Does good 
science tell us that there is a problem with ergonomics in the 
dental office?
    So, you say if you are doing all this, why are you 
protesting about it? It is one more layer of regulation. It is 
one more one size fits all. This regulation might apply to a 
Fortune 500 company, it might apply to a manufacturing company, 
it might apply to a warehouse, but it does not apply to a 
modern dental office. It creates more problems for us in 
dentistry than it solves.
    We worry about the enforcement of it, and I don't care what 
you say, we are scared to death of the enforcement. Is this 
double jeopardy? If we violate the blood-borne pathogen, we 
also violate this. Are we fined twice?
    We agonize over the recordkeeping. Don't tell me we don't 
need to keep records on this. We have dealt with OSHA for many 
years, and we know we need to document everything that we do.
    We are concerned because this is vague. We don't know what 
to read into it. When it goes out to my members, it may make 
sense in here to somebody, but when it goes out there, it is 
not going to make good sense to them.
    It is going to be one more regulation. Where do you get to 
the point that everybody throws up their hands and says, there 
are so many regulations out there now, there is no way that we 
can possibly deal with all of them, and just give up and say, I 
will take my chances? When do you get to that point? You may be 
getting to it now.
    So, to summarize this, it is unnecessary for the regulation 
of dentistry because it is already covered under other things, 
and it is part of the intrinsic practice of dentistry. If we 
are going to talk about common sense here, common sense then 
dictates dental offices should be exempt, because dental 
offices already have an effective alternative in place.
    Thank you.
    Chairman Talent. Thank you, Dr. Rainwater.
    [Dr. Rainwater's statement may be found in the appendix.]
    Chairman Talent. Now Ms. Katherine Gekker, the President of 
the Huffman Press Company of Alexandria, Virginia. Thank you 
for being here.

 STATEMENT OF KATHERINE GEKKER, PRESIDENT, THE HUFFMAN PRESS, 
                              INC.

    Ms. Gekker. I wanted to thank you, Chairman Talent and 
Members, for giving me the opportunity to speak to you about 
the OSHA proposed safety and health program standard.
    My name is Katherine Gekker, and I am the owner of the 
Huffman Press, located in Alexandria, Virginia. I am also here 
representing the Printing Industries of America.
    I have been in business since 1974. My company specializes 
in high-quality printing for graphic artists, corporations and 
museums. Currently I have nine full-time employees and one to 
two part-time employees, depending upon our workload. Our gross 
sales are roughly $1.2 million annually.
    Safety within the Huffman Press is a priority for me 
because I am trying to build the healthiest company that I can. 
If I do not provide a healthy work environment, my employees, 
our customers, and our suppliers and I myself suffer.
    We participate currently in industry safety programs and 
buy the many workbooks and guides made available to us about 
plant safety and training. It is a constant struggle to keep 
up, and while we do our best, I will admit readily I am not 
able to read everything that I should or even all of the safety 
and training materials that we buy.
    My business is typical of many in the printing industry. In 
fact, the average printer has 11 employees. Because of our 
small size, changing government regulations place a significant 
burden on my company as well as on most other small companies. 
We do not have the resources to hire an expert on safety, nor 
do we have the time most days to fully keep up with new rules, 
training requirements, or other regulations. In fact, most days 
we barely keep up with the demands of our customers, suppliers 
and tax and payroll laws.
    My plant manager and I are constantly scrambling to make 
sure we are conscientious with respect to safety and health. A 
number of years ago when my business was doing a little bit 
better than it is right now, we used an insurance carrier that 
would send out an inspector on an annual basis to conduct an 
audit of our safety and health program. She would issue a 
report outlining what they believed to be violations and even 
trained our employees in safe work practices. I cannot tell you 
how much I appreciated this information and service. Having 
come close to losing my own finger in one of our machines, I 
personally value knowing I am doing everything I can to provide 
a safe workplace. Unfortunately, we have had to switch to a 
less expensive insurance carrier recently, and they do not 
offer that service.
    We have also benefited from the city of Alexandria program 
in which the fire department inspects us annually for fire and 
chemical safety. Again, I welcome their inspections because I 
know that they will tell me what I need to do to create a 
healthier work environment, and that they will give me the time 
to correct what needs to be corrected without penalizing me.
    I have also invited the Virginia Department of Safety to 
inspect our premises and to advise us on audio levels and 
chemical levels in order to learn if we were within safe 
parameters. This voluntary inspection was also done without 
fear of penalty.
    While my business has never been cited by OSHA, I do not 
relish the thought of a surprise inspection. I have heard 
inspectors never leave without expensive citations, regardless 
of a business's good intent. I and other business owners would 
jump, however, at the chance to get information about how to 
make our plants safer. It would be particularly valuable if we 
could do this without being punished for wanting to learn.
    I believe that all employees should play an active role in 
promoting safe practices in the workplace. However, OSHA's 
proposed safety and health program standard does not appear to 
do anything that would help me make my plant safer. The 
proposed standard is very vague and leaves a lot up to the 
individual inspector and individual business owner. If it were 
enacted, I may think I am doing everything I can to develop the 
best safety program for my plant by asking my employees for 
meaningful participation and by conducting periodic self-
inspection, but an OSHA inspector may see it altogether 
differently. Effectively, this is a closed-loop system in which 
no real communication takes place.
    The proposal also fails to solve the problem of lack of 
safety education and consultation for employers. We need more 
specific information about safety. Without providing extensive 
training, consultative services and direct guidelines, this 
proposal will do little to prevent accidents. It offers a one-
size-fits-all safety program that simply does not provide what 
employers desire most, industry-specific information.
    Mistakes and accidents occur everywhere. Historically, the 
majority of the accidents that have occurred in my plant were 
caused by carelessness, and they would not have been prevented 
by the kind of safety and health program OSHA is proposing.
    In closing, I would like to stress that I and most business 
owners I know see a strong need for OSHA. Most of us want to 
do, and will do, the right thing. We simply need help. I am 
leery of a new standard that requires more paperwork from 
employers. This proposal reminds me of what it is like to deal 
with the IRS. Tax laws can be interpreted many different ways, 
they are confusing, take a lot of time, and they are expensive. 
Interpretations differ with whomever you speak with. I am 
afraid that the same will be true with OSHA's proposal.
    I believe OSHA can have a real impact on safety by 
permitting people like me to seek expertise without fear. It 
would also help if OSHA undertook a voluntary compliance 
program that used warnings in lieu of citations. This type of 
approach would do a lot more for preventing accidents than the 
proposed safety and health program standard.
    Thank you for your time. I will be happy to answer any 
questions.
    Chairman Talent. Thank you. I should have mentioned that 
you received a major educator of the year award this year. 
Congratulations to you for that.
    [Ms. Gekker's statement may be found in the appendix.]
    Chairman Talent. Our final witness is Ms. Earlyn Church, 
who is the Vice President of the Superior Technical Ceramics 
Corporation of St. Albans, Vermont.
    You have come a long way, Ms. Church. I thank you for being 
here. We will hear your testimony now.

STATEMENT OF EARLYN CHURCH, VICE PRESIDENT, SUPERIOR TECHNICAL 
                      CERAMICS CORPORATION

    Ms. Church. Thank you, Chairman Talent. Good morning to the 
panel and to the Committee. I appreciate this opportunity to 
testify before you on OSHA's proposed safety and health program 
standard.
    My name is Earlyn Church, and I am Owner and Officer of 
Superior Technical Ceramics Corporation of St. Albans, Vermont. 
STC manufactures high-tech ceramic components for the welding, 
aerospace and electronic industries. We are labor-intensive 
with 100 highly skilled employees. STC is 100 years old.
    I am also on the Board of Directors of the National 
Association of Manufacturers. Further, I am President of 
Excalibur Laboratories, which employs 12 people.
    I am testifying today on behalf of the NAM's more than 
14,000 members, 10,000 of which are classified as small 
manufacturers. Through them we represent 18 million people who 
make things in America.
    We appreciate the attention the Small Business Committee 
Members and staff are paying to OSHA's initiatives and proposed 
standards. Our safety program consists of written manuals, an 
employee handbook, a training program for all new hires with 
some use of videos, and continuous education of all employees. 
An employee safety committee meets monthly. They report to 
management, who then makes appropriate corrections.
    We oppose OSHA's safety and health program standard, not 
because employers who ignore worker safety would be punished 
under the proposed standard, but rather because employers, such 
as STC, who have taken every reasonable step to assure 
compliance with the standard, could also be severely punished. 
Good companies with excellent safety and health programs could 
face punishment in terms of increased costs, criminal 
prosecution, arbitrary enforcement by OSHA, breaches of 
confidentiality, and mandated safety committees that by their 
structure violate employer-employee relations as prescribed 
under the National Labor Relations Act.
    STC is fortunate that we have someone to oversee our human 
resources. This same person, however, in addition to 
maintaining all records required for OSHA, EEOC, ADA, and FMLA, 
administers all documentation and training for our workers' 
comp program, our hazardous waste program, community right to 
know, and she herself trains constantly. We felt the need to 
hire such a full-time person approximately 10 years ago because 
of rising regulations. To comply with the proposed standard, we 
would have to hire more staff.
    I stress the size of STC to show that a 100-employee 
company extremely stressed to meet existing regulations. Tiny 
Excalibur is not exempt. You, as a Member of the House Small 
Business Committee, must be as confused as I as to what small 
business exemptions are.
    STC uses computer systems with adequate software for the 
currently required data. Such packages cost us in excess of 
$1,000 per year. This system is reaching capacity. Upgrading 
our hardware or purchasing a new software program and hiring 
consultants to comply with these new requirements would be 
enormously expensive. It would not increase the safety and 
health of our employees. We would rather spend that money on 
training or making modifications to our facility.
    STC is wary, given OSHA's past record, of the vague 
language of the proposed standard. It must be vague in order to 
cover all industries. Because it is vague, it allows OSHA broad 
latitude in enforcement under the general duty clause, which 
allows OSHA to cite employers for hazards not covered by 
specific standards.
    The general duty clause was most recently used to cite the 
employer in Pepperidge Farm, decided by the Occupational Safety 
and Health Review Commission in April 1997. OSHA's proposed 
safety and health program standard would require employers to 
``provide for the systematic control of hazards.''
    Right now we are being asked to anticipate feelings of 
discomfort in the workplace. Already STC is employing workers' 
comp managed care to help with the whole range of reported 
repetitive motion injuries. Without speaking at length on the 
dreaded E word, ergonomics, we are having a very hard time 
distinguishing between the pain from a weekend or a second job 
and pain related to factors in our workplace. If the injuries 
are cumulative, where did the accumulation begin? Is work the 
sole factor, or play, or home or the second job?
    While we never get up in the morning and set out to kill or 
maim our work force, as suggested repeatedly at OSHA at the 
stakeholders meetings I attended, we are often faced with 
situations where a worker violates company policy and is 
injured. Sometimes there are hazards impossible to identify or 
foresee. We do conduct a monthly walk-through with our safety 
committee, but in a job shop, the workplace is different every 
day.
    OSHA's proposed standard seems more a deliberate attempt to 
prove the hazards of going to work, yet the No. 1 cause of 
work-related deaths in the statistics is vehicular accidents, 
which do not take place at work sites under the supervision of 
employers. The No. 2 cause is violence in the workplace. Are 
these work risks or life risks?
    As to confidentiality, employees' rights would be violated 
by the revelation of names, addresses and medical information 
not now available to other employees or outside sources other 
than required by law. Under this proposed standard, other 
employees and their legal or union representatives have access 
to employee records, personnel, medical and otherwise.
    BLS stats show that the workplace today is safer than at 
any other time since the information was tracked. STC's 
workers' comp experience modification has decreased 15 percent 
over the past 4 years due to company initiatives separate from 
any OSHA requirements. We are being proactive in increasing 
health and safety in our place because it is a good business 
practice. Why hamper and discourage these initiatives and those 
of other good companies with onerous paperwork requirements, 
increased costs to the employer for staffing, computer needs 
and consulting?
    We appreciate this opportunity and look forward to 
answering questions.
    Chairman Talent. Thank you. I am sorry the mikes went out. 
I hope that is not the case with all the others.
    [Ms. Church's statement may be found in the appendix.]
    Chairman Talent. We now have one combined panel here. I 
appreciate the number of Members who have come, and in view of 
the Members waiting to ask questions, I will defer my 
questions. I am going to, after Mr. LaFalce has his 
opportunity, I am going to recognize Members in the order in 
which they have appeared, and those who were here when the 
hearing began will be recognized first, according to seniority. 
We will go after Mr. LaFalce to Mr. Snowbarger and then Mr. 
Pascrell and so on.
    Now I will recognize my good friend Mr. LaFalce.
    Mr. LaFalce. I thank the Chair. I am just going to have a 
few brief questions for Dr. Rainwater, and then I will go to my 
question for Assistant Secretary Watchman.
    First, congratulations on being president of the American 
Dental Association. This is unrelated to this hearing, but I 
was very surprised when we were debating health care at all 
that the dental association didn't try to take a much more 
aggressive role in trying to ensure that dental services would 
be covered in whatever coverage might be enacted into law. It 
just seemed to me at that time, circa 1993, they weren't as 
aggressive as they were passive. That is the first point. I 
appreciate your comments on that.
    Second, it is my -- I am taking the advantage of the fact 
that I have the president of the dental association -- it seems 
to me that insurance coverage for dental work is absolutely 
atrocious; that there is necessary dental work that must be 
done, and it is almost never covered. Whether is it is a root 
canal or a crown or what have you, these are necessary items, 
and when there is coverage, that the coverage is so minimal.
    For example, with respect to Federal employees, I don't 
think there has been an increase in coverage for dental work 
for Federal employees in over a dozen years, and they utilize a 
very low base cost. Whatever it is they call usual and 
customary, it is extremely low. What is the dental association 
doing about this? This might have nothing to do with OSHA, but 
I am interested.
    Dr. Rainwater. What are we doing about it?
    Chairman Talent. I am sure my friend doesn't expect Mr. 
Watchman to respond to that.
    Mr. Hefley. Mr. Watchman, he also has a wisdom tooth fairy.
    Dr. Rainwater. Are you talking in 1993 we were not 
aggressive? We certainly were not aggressive in 1993 when the 
Health Care Reform Act came forward. We saw all kinds of 
problems with it. I think that you saw the wisdom of our ways, 
as you deliberated and didn't enact that at that time. We have 
great concern about government programs that involve dentistry, 
because we need to be sure in those programs and very often 
they are not adequately funded. So it is one thing to put them 
in there. But if you don't put the money in there to back them 
up, it doesn't work.
    Mr. LaFalce. Let's talk about the insurance coverage.
    Dr. Rainwater. See, that is our problem. We have a hard 
time explaining dental insurance to the public, because it is 
not dental insurance. It is simply prepayment of dental care. 
There is no great accident that is going to occur out there 
usually to give one person more dental problems than another 
one. They have different problems. So it is very difficult to 
insure it, because if you open insurance all the way, the 
people who have the major problems and the expensive problems 
sign up.
    You are right, dental insurance has not increased probably 
since I have been in practice. It covers approximately 40 to 45 
percent of the dental bill; 55 percent is still paid out of the 
patient's pocket. That is stimulus for the patient 
participation and is probably the reason we have held down 
dental costs across this nation. We still have freedom of 
choice of the patient for dentistry. They are able to choose 
the dentistry that they are to receive.
    It needs to cover more, but to cover more, somebody has to 
pay for it. What you are finding now is that you are seeing in 
managed care areas in which they are promising more, but the 
dollars are not there to pay for it. So therefore, when you get 
into it, that is not to say managed care is all bad, but if you 
don't fund it, and if the money is not there to cover it, when 
you get into that plan, you find you have no benefits, you find 
that it covers little, and you find very often that you might 
be better off just paying for it out of your own pocket.
    So it is a matter of economics. If you are going to have 
dental insurance, you have got to put the money into it. The 
employer has to put the money into it in order to get good 
care.
    Mr. LaFalce. All right. That is off the subject. I just 
personally think that the insurance coverage for dental care is 
either atrocious or nonexistent.
    Dr. Rainwater. I agree with you.
    Mr. LaFalce. I don't think the American Dental Association 
has done very much at all about it.
    Let me go on to Mr. Watchman. Mr. Watchman, what comments 
do you have about the most important points made by the other 
members of the panel?
    Mr. Watchman. Thank you for the opportunity to respond, Mr. 
LaFalce.
    Let me just say briefly overall, I am very grateful that 
the small employer/owners, small-business owners here this 
morning have chosen to make their views known and participate 
in our process of developing a rule. We are taking steps to 
address many of the concerns that they have raised this 
morning, and I would welcome an opportunity to work with all of 
you toward the development of a rule that does take into 
account the concerns that you have raised.
    That being said, I have a number of specific concerns and 
clarifications I would like to make with regard to some of the 
testimony. First, I think it is important to clarify in 
response to Ms. Church's accusation. She claimed that OSHA 
repeatedly said during our stakeholder meetings that employers 
get up in the morning and set out to kill or maim their work 
force. Maybe some of us recognize that as rhetoric, but I just 
want to make clear that such a statement was never made a 
single time, let alone repeatedly, at any stakeholder meeting. 
I am frankly disappointed in Ms. Church that she would make 
such an accusation in this forum. She was an active and useful 
participant in that dialog, and we have tried hard to respond 
to her concerns.
    Let me talk a little bit about Ms. Bailey's concerns. She 
made some very negative predictions about the standard. I think 
really there is no need to speculate here. As I said, many 
States already have safety and health program requirements that 
apply to hundreds of thousands of employers in this country. I 
have not heard in 2 years of working on our proposal a single 
employer come forward to show any of the requirements imposed 
by those statutes and regulations are burdensome. In fact, in 
1992, the General Accounting Office did a study of safety and 
health programs. They looked at Oregon and Washington, both of 
which have comprehensive safety and health program 
requirements, and they found that small employers as well as 
large employers did not have problems implementing those 
requirements.
    Let me correct also several particular claims that she 
made. First, the notion that the performance-based standard is 
a hoax. Let me make clear, sir, and to the Members of the 
Committee at large, OSHA used to develop and issue very 
specific standards which detailed every last thing an employer 
needed to do to address a particular hazard. The employer 
community for years has pushed us to develop performance-based 
standards that would set a goal of regulating employee 
exposures to a hazard, but let the employer determine the best 
way, given the circumstances at that workplace, to get to that 
goal.
    That is the desire of the stakeholders in this instance as 
well. Through our meetings, the vast majority of stakeholders 
have asked us to draft a standard that is flexible and 
performance-based. That being said, it is not an easy thing to 
do. I recognize that some of the wording we have used in that 
working draft needs some more definition and clarification. But 
we are taking steps to do that.
    First, we are revising the standard and will do so further 
before we issue a proposal. Second, we have agreed to work with 
stakeholders to prepare a compliance directive that will 
instruct our inspectors about how to enforce this standard. 
Third, we have agreed that we would not impose a penalty for 
violation of the standard unless there was a pattern of hazards 
or violations at that workplace. Fourth, we have agreed to 
produce a vast range of compliance assistance materials like 
programs and checklists and videos. Last, we have agreed that 
many of these materials should serve as safe harbors. If 
employers have complied and followed them, they will be in 
compliance with the standard.
    Another issue regards the supposed effort of OSHA to 
circumvent our statutory requirements under the OSHA Act, 
SBREFA and the Reg Flex Act. Let me be clear, we are complying 
with all of those laws and fully intend to comply with them in 
the development of this rule. In fact, we are working closely 
with SBA to go beyond our SBREFA obligations and hold many more 
meetings with stakeholders, and particularly small businesses 
around the country.
    Ms. Bailey also suggested that the standard goes beyond 
recognized hazards. Let me make clear that our standard 
specifically says on pages 4 and again on page 5 that it does 
not go beyond recognized hazards, it only governs hazards that 
are covered by our standards currently or covered currently by 
our general duty clause. In fact, Ms. Bailey admits that 
subsequently in her testimony on page 6.
    Let me now address several comments made by the other 
witnesses. Mr. Landon, it sounds like, has a terrific safety 
approach at your workplace. We have done some preliminary time 
estimates for what would be involved for a small workplace like 
Mr. Landon's to comply with the safety and health program 
requirement. We estimate that it would take about 20 hours 
initially to startup the program, and that after that it would 
take about 10 hours a year to keep the program running. That 
would be at a workplace with maybe 10 or fewer employees with 
relatively few risks.
    We are in the process of planning our meetings in July with 
small employers around the country to evaluate whether those 
time estimates are accurate and get input from small employers 
about whether it would take more or less time to maintain a 
safety and health program.
    With regard to Dr. Rainwater, I want to thank you for your 
compliments. Those may be the only compliments we get today. I 
do want to also applaud the dental community for already doing 
much of what the standard would require, as Dr. Rainwater has 
indicated. Let me make clear, though, there is no requirement 
in the working draft or any other OSHA plans for a safety and 
health committee. We do say specifically in the proposal, or in 
the working draft, rather, that informal approaches would be 
expected and would be acceptable at small workplaces.
    I also want to make clear that employers could not be fined 
twice for a single violation by the development of a safety and 
health program rule. On page 13 of our working draft, we 
specifically make clear that there would be no piggyback 
violations.
    I think Ms. Gekker recognized the importance of finding 
hazards and the importance of training workers with regard to 
hazards in their workplace, and those really are the core 
fundamental parts of this program.
    She also stated that she has heard that inspectors never 
leave workplaces without issuing citations and penalties, and I 
want to clarify that, in fact, about 1 out of every 3 
inspections that we conduct, we find no violations, or we find 
violations but do not issue any penalties.
    Last, she indicated a desire for consultation. I just want 
to let you know that we, in fact, offer free consultation 
through 50 State Programs around the country that are 90 
percent funded through Federal OSHA, and those inspections and 
visits from consultants can occur free of charge without 
citations and penalties.
    Those are my overall comments for some of the particular 
concerns that were raised, but I would be happy to answer 
further questions as well.
    Mr. LaFalce. Thank you very much.
    Chairman Talent. Before I go to Mr. Snowbarger, where does 
it say you will not piggyback? I was looking for that. I don't 
have my pages numbered.
    Mr. Watchman. This is late in the draft.
    Chairman Talent. Outreach, Compliance?
    Mr. Watchman. Subheading (i), Outreach, Compliance; 
(i)(3)(i), a violation of another OSHA standard or the general 
duty clause will continue to be cited as such and does not in 
itself constitute a violation of this standard.
    What we are really contemplating in terms of enforcement, 
first, as I said, we would not issue any penalty unless there 
was a pattern of hazards or violations; second, we would be 
looking for systematic failures rather than individual 
technical violations. This is part of really, I think, the new 
OSHA's shift in emphasis away from individual technical 
violations and more toward a systematic approach.
    Chairman Talent. In fairness, does not in itself constitute 
a violation of the standard, but in connection with something 
else, it could be evidence of a violation of the standard, 
couldn't it?
    Mr. Watchman. Certainly if we found a broad range of 
hazards at a workplace, that would suggest the employer was not 
making sufficient efforts to find and fix those hazards.
    Chairman Talent. It doesn't say a broad range.
    Mr. Watchman. The particular issue about a piggyback 
violation is that a single violation of a standard would entail 
two rather than one violation.
    Chairman Talent. I think the concern is how this thing is 
going to work in practice, and if you can say, well, here is a 
violation of the standard, and now looking at your program, I 
think in view of the fact that you have a violation of this 
standard, I don't think your training in this area was 
appropriate or adequate, it is a violation plus something, you 
see? I think that is probably the concern you are getting at.
    I wasn't going to ask questions until the others have, so I 
will thank you, Mr. LaFalce.
    Mr. Snowbarger will be next.
    Mr. Snowbarger. Thank you, Mr. Chairman.
    My question is to Mr. Watchman. First, just a general 
question. I would be interested to know what OSHA perceives is 
its role, what is your purpose, why are you there?
    Mr. Watchman. Our statutory mission is to protect worker 
safety and health in workplaces across the country.
    Mr. Snowbarger. I am going to make two or three 
observations that do not come from this panel this morning, 
they come directly from my district. They are confirmed by 
things I have heard on the panel this morning.
    First observation is a presumption on the part of OSHA that 
OSHA knows best, that employers and employees are not concerned 
about -- employers aren't concerned about their employees' 
safety, that employees aren't concerned about their own safety, 
and that somebody in Washington knows better how to handle 
those workplace risks than either employers or employees.
    The second observation, followed by a third one, is that 
OSHA is there in more of a punitive role than in an assistance 
role. The term used back in my district is that the attitude of 
OSHA is to come in and be able to leave saying ``gotcha.'' 
Followed by the third observation, that I have had companies in 
my district that are so convinced that OSHA is in a ``gotcha'' 
mode, they create visible violations so inspectors can go away 
feeling like they have accomplished their mission. Those 
companies in essence figure out how much they can afford to 
spend on the fine, create the violation, and know that 
inspectors, once they have found the easy one, will walk away.
    I am going to suggest those observations lead me to the 
conclusion that OSHA is not performing its statutory duty in 
actually changing workplace safety.
    So my question is what are your observations about those 
observations, I guess?
    Mr. Watchman. I guess I would make a couple of points. 
First, I think it probably was a fair accusation some years ago 
that in many issues OSHA did presume it knew best. We have made 
a lot of effort over the last several years to listen to 
stakeholders, and we recognize, and I think the administration 
recognizes, that government doesn't always know best, and that 
we need to listen to the regulated community, to workers and to 
business owners, about the real world problems in workplaces 
around this country.
    But I will tell you, this is not a concept that we dreamed 
up. This is a concept that thousands of employers are using 
around this country, successfully, to reduce their injury and 
illness rates, but also to save large amounts of money, so it 
really does improve the bottom line.
    Mr. Snowbarger. You are making my point, that employers and 
employees have an interest in doing this. I don't understand 
what you mean by stakeholder, but it seems to me that the 
employer has a much greater interest in employee safety than 
OSHA will ever have, because it is in their economic interest.
    Mr. Watchman. I would agree that it is in the economic 
interest of employers. The reality is, many, many employers 
don't have safety and health programs or any systematic 
approach to protect workers, and we do have millions of workers 
that are injured on the job every year. As I said, many of 
these incidents can be prevented through a systematic approach.
    Mr. Snowbarger. Thank you, Mr. Chairman.
    Chairman Talent. I thank the gentleman.
    A thought just struck me, Mr. Watchman. Would this apply to 
the Congress? I guess it would, wouldn't it?
    Mr. Watchman. The Congress is covered by occupational 
safety and health regulations, but has a separate enforcement 
office of its own, as you know. So that office would have to 
consider the standard and how it would apply to Congress.
    Chairman Talent. Because I don't have a systematic safety 
program in my office, and maybe I should. I don't know.
    Mr. Pascrell will be next.
    Mr. Pascrell. Mr. Chairman, thank you. I strongly support 
OSHA's plan to conduct field hearings in order to get input 
from small businesses. I think this is a critical, critical 
step forward and a very positive way. Whether you have the 
resources to do it to the department you are talking about is 
another question.
    My first question to you is, what about those resources 
that you mentioned in the beginning? Where have you come from 
in the last 5 years in terms of number of inspectors out in the 
field to work with businesses, particularly small businesses, 
as we have been talking about today? Are we going in the right 
direction or the wrong direction?
    Mr. Watchman. Well, our staff has actually declined 
significantly in the last 10 or 15 years, but we have recently 
added some staff to OSHA, and many of the staff people we have 
added are folks that are going to help with a lot of compliance 
assistance activities.
    In addition to our enforcement program, which is required 
by our statute, we have a broad range of consultation programs, 
compliance assistance programs and activities designed to help 
employers in a broad range of ways.
    Mr. Pascrell. Your approach, OSHA's approach, seems to be 
running on a parallel basis with what we have talked about in 
other areas, compliance with Superfund, changes in Superfund, 
changes in environmental standards.
    Are we moving in the direction of abatement rather than 
prosecution, rather than citations? Is this what you are 
communicating to us this morning?
    Mr. Watchman. Yes, sir. In fact, the Agency for many years 
used to judge performance based on the numbers of inspections 
and citations and penalties. We dropped those performance 
measurements in 1994, and we are now judging inspector 
performance based on customer service, prompt abatement of 
hazards, promotion of voluntary and cooperative efforts, and 
targeting of the most dangerous hazards.
    Mr. Pascrell. I frankly do not see anything negative in 
terms of fallout here. On page 4 when you talk about the draft-
proposed safety and health program standards, the purpose of 
the standard, the standard requires employers to set up a 
program for managing workplace safety and health in order to 
reduce the incidence of occupational deaths, injuries and 
illnesses.
    It would seem to me that the reason why we do this is to 
anticipate -- going back to a comment that Ms. Church talked 
about, I don't find that to be foolish. I find that to be very 
sound and logical, to be able to anticipate those problems in 
order to avoid them.
    Is this what we are talking about in this standard?
    Mr. Watchman. Yes. One of the goals of the OSHA act is the 
prevention of illness and injuries and fatalities before they 
occur. That is basically the principal goal of a systematic 
approach.
    Mr. Pascrell. Having said that, do you think there is an 
algebraic relationship between the ability -- because we have 
set this up in certain States, according to State law, do you 
think that there is a real concrete relationship between our 
ability to establish those standards, those prestandards in 
certain States and a reduction of insurance rates or number of 
comp cases that are involved? Do you have the data to present 
to us about that?
    Mr. Watchman. In my opening statement, I cited some of the 
studies that have made those kinds of conclusions, that have 
demonstrated not only that safety and health programs or 
systematic approaches can reduce injuries and illnesses, but 
they do have a significant positive impact on the bottom line 
in terms of reducing Workers' Comp costs, as well as employee 
turnover and training costs and other costs related to 
accidents.
    Mr. Pascrell. Would you provide the committee with that 
information?
    Mr. Watchman. Certainly.
    [The information may be found in the appendix.]
    Mr. Pascrell. I have a final question to Ms. Gekker.
    In some States in the Union, many insurance companies give 
premium reductions to firms which have effective safety and 
health programs, like the one that is being proposed, I 
believe, by OSHA now. Do you think this is a good idea, and how 
do you relate it to your own experiences if that is the case?
    Ms. Gekker. I have never been able to participate in one. 
Despite having, I think, a fairly good health and safety 
program in effect, we have never gotten a reduced rate because 
of having that program. I think it is a good idea----
    Mr. Pascrell. Do you think you should have?
    Ms. Gekker. I am afraid the effectiveness of our program 
has been lacking. We are in a business where there are many 
injuries, and I think we have rarely gone more than 2 or 3 
years without one.
    Mr. Pascrell. Isn't this the point, then? We wanted to set 
up standards that are reasonable and are going to help the 
business and protect the workers and those people who operate 
the business, but if there is no concurrent reduction in 
insurance costs -- as I have found, by the way; I don't know if 
you found that or if Mr. Watchman has found that, although he 
says he is going to give us information to the contrary -- it 
would seem to me that if we could show that relationship, that 
this would be an encouragement, this would help precipitate the 
kinds of programs that at least OSHA talks about in its 
presentation, in its draft presentation. I think it would help 
us in reducing costs and reducing paperwork.
    This Committee acted upon the reduction of paperwork 3 
months ago, which I think is critical. So we know how much 
money is spent on providing paperwork in a lot of Federal laws, 
many of which are incidental and do not help us provide for a 
healthier or safer workplace.
    So we want to get to a point where it is safe for 
everybody, and we want to get to a point where it reduces, 
specifically, insurance rates, and that is not happening. The 
insurance companies are making fools of you guys and those of 
us on this side of the table, because this should be there. We 
should insist upon this, because this is trying to deal 
proactively with a problem; or else we ought to put these guys 
out of business. I don't think we want to do that yet.
    Thank you, Mr. Chairman.
    Chairman Talent. I thank the gentleman for his comments and 
his questions.
    Mr. Hill is next.
    Mr. Hill. Thank you, Mr. Chairman.
    Mr. Watchman, I am going to give you a compliment, although 
it is going to be a qualified compliment; but at least you are 
going to get compliment, and it may surprise you to get one 
from this side of the table. I agree with you that the idea of 
setting performance standards instead of specific standards and 
micromanaging the workplace is successful in creating safe 
workplaces. In fact, I have worked substantially to try to 
build safety groups; and in the instances where we put safety 
groups together, we have seen phenomenal success in terms of 
reducing the cost of Workers' Compensation and reducing the 
rate of injury.
    The problem I see with regard to what you are suggesting 
here is that this new standard is going to be added to the 
existing standards, rather than a replacement for the existing 
standards and the existing mechanisms. The first suggestion I 
would make to you is, you make this optional, that you allow 
employers to have the option of choosing whether they want to 
have a performance-based standard or a specific standard 
mechanism for complying with OSHA standards.
    In that regard, I would also suggest to you that you work 
to certify existing safety group programs, whether they exist 
on a State basis or whether they exist on an industry basis, 
where performance standards are already being implemented and 
certify those, so you don't have to reinvent the wheel.
    There are a lot of efforts going on out there in the 
marketplace to encourage employers to create what we refer to 
in Montana as a ``culture of safety'' in the workplace. One of 
the things I think, from the testimony, that you have heard is 
that part of the problem here is that there is distrust in the 
culture of your organization, and that is that people see your 
organization as an organization that is simply trying to police 
the workplace, rather than trying to create a safe workplace. 
You have done that by trying to micromanage hazards rather than 
trying to create an environment in which employers work with 
their employees to try to find ways to manage those hazards in 
a constructive fashion.
    The first thing I would suggest to you is that you try to 
fashion this as an optional alternative program to the existing 
methods that you are using with the workplace.
    With that, I am really going to ask my question of Ms. 
Bailey.
    If, in fact, this was an alternative that was offered to 
employers, as opposed to added on as a new set of standards, do 
you think that your view of this would change?
    Ms. Bailey. I think it would. This is something that came 
out of the stakeholder meeting that I attended with Mr. 
Watchman. At the end of the meeting, I think the general 
consensus was, this can be a very valuable resource tool, 
especially for small businesses who may not have much 
experience in this area, and they can use this type of document 
to develop a program.
    But to make this a mandatory standard that everyone has to 
comply with just doesn't make any sense. It is duplicative. The 
enforcement programs would just be enormous.
    There is one general comment I wanted to make on some of 
Mr. Watchman's comments. All of these statements about what 
goes on here in Washington in terms of the new OSHA culture and 
the new way they are going to enforce things, those things are 
all wonderful, and I applaud him for trying to make those 
changes. What really counts is what happens out in the field, 
because where the rubber meets the road is when we are talking 
about enforcement. That is when the compliance officer comes 
and knocks on your door. So I think that is really the 
important thing that we need to be talking about here.
    Yes, I think making this an optional standard was an 
excellent idea. I think it can really be an important tool, for 
small businesses in particular.
    Mr. Hill. I appreciate that comment. Mr. Watchman, one of 
the other concerns raised -- in trying to implement safety 
culture in Montana, we ran into this problem, and I think it 
was raised by more than one witness in testimony in regard to 
the National Labor Relations Act -- and that is, are you 
creating a bargaining unit when you establish a safety 
committee within the organization?
    Is it the Administration's position that it would support 
legislation that clarified that, so that in the creation of 
safety groups to comply with the enforcement requirements here, 
that there would be a safe harbor for employers so they would 
not be subject to the conflicts and problems associated with 
the application of the National Labor Relations Act?
    Mr. Watchman. As you probably know, the administration has 
not supported the legislation known as the TEAM act that has 
been considered in this Congress and the previous Congress.
    Mr. Hill. I am talking here specifically about the issue 
with regard to safety groups. Let's take everything else off 
the table.
    With regard to the creation of safety committees within the 
employment situation, is it now the administration's position 
that we could exempt those from the National Labor Relations 
Act?
    Mr. Watchman. I think you would have to be careful about 
exempting every safety committee, because there may be some 
that in fact do involve substantial employer interference or 
domination in a way that may infringe on worker rights under 
the NLRA.
    What we have tried to do in drafting the working draft and 
progressing beyond that point in the last few months is to 
require employee involvement as a general core element, but 
allow employers to determine what kind of employee 
participation they want to have at their particular work site. 
You would imagine that in a workplace of 10 people, it is going 
to be a lot more informal than at a plant that has a couple of 
thousand people.
    Mr. Hill. You certainly understand the concerns that small 
employers have, particularly with regard to the potential that 
that could be interpreted as a bargaining unit that could 
subject them to rules and regulations and laws they are not now 
subject to.
    Mr. Watchman. It is not so much they would be considered a 
bargaining unit as they might be considered a labor 
organization for purposes of 882 of the NLRA. We are working 
with the NLRB in the development of this rule to make sure we 
address the issue in a way that it doesn't put employers in a 
position where they have to violate one statute to comply with 
another.
    Mr. Hill. Would it be our expectation to see some directive 
from the National Labor Relations Board to clarify this issue 
to make sure employers are going to be protected if you go 
forward with these rules?
    Mr. Watchman. I couldn't speak for the NLRB, but I would 
say we are having conversations with them to make sure that we 
resolve this issue in a way that small employers can understand 
as we go forward.
    Mr. Hill. Thank you, Mr. Chairman.
    Chairman Talent. I appreciate the gentleman's questions.
    We are going to have to break now. We have at least one 
vote and maybe two, so I can't say that we will definitely 
reconvene in 15 minutes or anything like that. But it will be 
shortly. I ask the witnesses to stay, and I ask the members to 
return if they can.
    We will reconvene in a few minutes.
    [Recess.]
    Chairman Talent. All right, I will reconvene the hearing 
without waiting for my good friend, Mr. LaFalce, who has other 
obligations and told me he would not be able to return today.
    Next in line to be recognized is Mr. Davis.
    Mr. Davis. Thank you very much, Mr. Chairman. First, I ask 
permission to submit a written statement for the record.
    Chairman Talent. Without objection.
    Mr. Davis. Thank you very much. I have got just a couple of 
questions.
    Mr. Watchman, both Dr. Rainwater and Ms. Gekker indicated 
some fears that there might be surprise investigations, there 
might be penalties, or there might be unexpected activity on 
the part of OSHA in a sense. Although you have answered this 
question in part once, I just want to reiterate as certain, 
when there is an investigation and a need for compliance, 
whether any intervening actions are required before any real 
penalties are levied?
    Mr. Watchman. Well, we do conduct inspections, and in many 
cases, we do not give advance warnings of inspections to 
employers. Our statute is designed to achieve a preventive and 
deterrent effect from our enforcement program, and we want 
employers to act proactively before we ever get to their 
workplace, particularly given the fact that we don't get to 
many workplaces in the course of a given year. It is important 
for employers to have an approach to protecting workers before 
we ever arrive.
    That being said, we have developed a new targeting and 
enforcement system called the ``cooperative compliance 
programs,'' under which we will send out letters to the highest 
hazard workplaces around the country, letting them know that 
they are on our inspection list, so they will have an 
opportunity to find and fix hazards before we arrive.
    With regard to this particular standard that we are working 
on, that is the subject of this hearing today, we are currently 
considering an enforcement policy under which we would not 
assess a penalty for a good-faith employer that is in violation 
of the standard. We would only assess a penalty if there were a 
pattern of hazards or a pattern of serious violations.
    Mr. Davis. So actually one would not have a great deal to 
fear, other than the fear of not wanting to comply even after 
it has been indicated that there is a need to do so?
    Mr. Watchman. I think there is concern over the way we have 
drafted the standard as a performance-based standard. I 
recognize that when you use performance-based language, it does 
raise subtleties and ambiguities, and these are issues that we 
are aware of and we are attempting to clarify further through 
modifications to the working draft, but also through working 
with stakeholders, meaning employers and workers and safety and 
health professions in the making of a compliance directive that 
will tell our inspectors how the standards will be enforced, so 
all the ambiguities can be resolved and clarified in that 
document as well.
    We will also be providing extensive compliance assistance 
to employers in many forms before the standard ever takes 
effect.
    Mr. Davis. Both you and Dr. Rainwater suggested that 
dentists were partially or pretty much in compliance with this 
rule already. How much distance is there between where the 
dentists are and where perhaps the rule is trying to get them?
    Mr. Watchman. I think probably in the case of dental 
offices, as well as in many other industries, most of the 
employers are acting in good faith to protect their workers. 
But we typically find in most industries, there are a few bad 
actors that are not taking adequate steps to protect their 
workers, and that is really why we need a standard, to set 
minimum threshold performance for a systematic approach to 
protect workers.
    Mr. Davis. You would not view this as any additional burden 
on those dentists, for example, who were already in compliance 
and carrying out what would become the mandate?
    Mr. Watchman. That is correct. In fact, this would serve as 
a very useful tool to make compliance with other regulations 
much easier in a systematic way.
    Mr. Davis. I have one question that I would like one of the 
members of the industry, to answer.
    I understand that there are States like Oregon and 
Washington which already have programs that are pretty much 
like the one we are talking about, and my question is, have you 
heard of any adverse effects on businesses in those States as a 
result of the program?
    Ms. Church. Mr. Davis, may I reply? Vermont is one of those 
States. There are 25 States which have control over the OSHA 
regs, not using Federal inspectors. The Vermont plan is a 
suggested use of the safety program. However, they hand out 
literature that was written by Federal OSHA and suggest that we 
come into compliance with it because ultimately it will be law.
    That is a pretty loose statement, but as you go through it 
and try to meet it, it is not easy to dot all the I's and cross 
the T's. Then you have to look at the fact that I call them 
preemptive States, although that is not quite the correct legal 
term. The States that run their own safety and health programs 
-- Vermont Occupational Safety and Health, VOSHA is the name, 
tries to be stricter; they always try to go one step further 
than any Federal regulation. So on top of this we are always 
going to look forward to then what is going to be applied at 
home.
    Remember, when you get down to a very small statistical 
base, like in a State that has 600,000 people all together, the 
Federal numbers do not work. It just is not a good analysis.
    Thank you.
    Mr. Davis. You are saying there is some fear that in some 
States where there is an effort to go beyond Federal 
requirements and regulations that there might be more harsh 
treatment of the businesses than what you would find in other 
areas?
    Ms. Church. That is true. When we read the kind of books 
that have been handed out to us, we sit down and say, do they 
really want a book of plans in place? Do they want us to walk 
through? How often? Who do they want to carry this out? Who 
have we got to carry it out?
    It is all suggested, but it is very loose, so we do the 
best we can and use it as advantageously as we can, but we 
don't want something imposed upon us.
    Mr. Davis. Thank you very much.
    If Mr. Watchman could respond to that question, Mr. 
Chairman, that would conclude my questioning.
    Mr. Watchman. The State plans that exist around the 
country, in about half of the States currently, do have an 
opportunity to adopt standards that are either consistent with 
and identical to Federal standards, or to go beyond those 
standards and provide a greater level of worker protection. 
That is why in fact in a number of States there exist today 
safety and health program requirements despite the fact that 
there is no Federal requirement at this time.
    I would suggest, though, to Ms. Church that in the 
preparation of this rule, we will allow a compliance assistance 
period of several years before any provision of it becomes 
effective. During that time, we want to engage in a very broad 
and comprehensive effort to disseminate the kind of materials 
that will go beyond the regulatory text in very simple and 
plain language terms, through model programs or checklists or 
interactive software, to let employers know in all industries 
the kinds of things they should be looking for in their 
particular industries, to help them set up and implement and 
maintain a comprehensive safety and health program.
    Mr. Davis. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Talent. I thank the gentleman.
    I recognize the gentlewoman from New York, Mrs. Kelly.
    Mrs. Kelly. Thank you, Mr. Chairman. I appreciate the panel 
being here. I am sorry I wasn't able to hear all of your 
testimony. It has been a busy morning for a lot of us.
    I was interested in what Mr. Watchman said just a minute 
ago about the implementation of this and what you actually 
desire to do with this in terms of implementing this with 
businesses. You said there would be no fines unless a pattern 
of violations were found.
    I would like to know what you mean by ``a pattern''? Is 
that clearly defined?
    Mr. Watchman. Yes. On page 16 of the working draft we have 
defined it to mean a failure to control a number of serious 
hazards of the same or similar type, or serious hazards 
resulting from the same or similar deficiencies in the program.
    Mrs. Kelly. But that is exactly my problem, ``a number.'' 
Is there a number? Who decides that number?
    Mr. Watchman. That is one of the issues that we would need 
to clarify.
    Mrs. Kelly. Exactly.
    Mr. Watchman. From a compliance directive to our 
inspectors. As I said, we have expressly announced our intent 
to work closely with employers and workers in the development 
of that.
    Mrs. Kelly. That is exactly the kind of thing where, if you 
get a vindictive inspector, you could put a company out of 
business. I am concerned about that.
    Another thing: I think that you use a lot of statistics in 
the testimony and in the draft. In particular, I am thinking 
about the claim that injuries cost U.S. businesses over $110 
billion a year. Every $1 that employers spend on safety and 
health programs will save them $4 to $6 in Workers' 
Compensation expenses, reduced employee turnover and so on.
    I am not doubting the accuracy of the figures, but I would 
like to know how you arrived at them.
    Mr. Watchman. The first figure is from the National Safety 
Council. They put out a book, I think called Accident Facts, 
something like that, every year, which tries to estimate the 
total number of injuries and fatalities around the country from 
a variety of causes, including work-related injuries.
    Mrs. Kelly. These are not hard-core reports, but estimates?
    Mr. Watchman. I am not sure exactly of the methodology. I 
think they are fairly confident about their estimates, but they 
are estimates, I believe. They estimate $110 billion a year 
just for injuries. That doesn't count all of the costs incurred 
as a result of fatalities, as well as occupational illnesses.
    Mrs. Kelly. How many fatalities are there a year?
    Mr. Watchman. There are 6,000- or 7,000 reported to the 
Bureau of Labor Statistics, and then there are others that are 
not within their jurisdiction of reporting.
    Mrs. Kelly. I am wondering about whether or not you have 
done anything with regard to rough estimates on what this draft 
will be in terms of costs to the businesses to implement this 
standard. This may have been addressed before I got here, but 
if not, I would like you to answer the question.
    Mr. Watchman. Sure. First, we don't have a formal proposal 
yet, so we have not estimated the cost of the proposal yet. But 
that being said, we have looked at a lot of evidence that 
suggests that employers can save money by implementing these 
programs.
    Mrs. Kelly. How so?
    Mr. Watchman. Because I noted in my testimony and there are 
a host of other examples in which employers have implemented 
programs, reduced their Workers' Comp costs significantly and 
reduced employee turnover and training costs as well. We do 
believe that the aggregate benefits will outweigh the costs, as 
well as believing, for individual employers, the benefits will 
outweigh the costs.
    Just to cite one example of that, in Missouri -- in your 
State, Mr. Chairman -- our voluntary protection program, which 
recognizes excellence in safety and health; we have 13 VPP 
sites in Missouri. Eight of those are medium and small 
employers. Those companies have injury rates that are 53 
percent below the national average. These are companies that 
have implemented a comprehensive safety and health program.
    With those reductions come reductions in Workers' Comp 
costs and other related costs.
    Mrs. Kelly. I understand you basically to be saying, if you 
can get it to cost businesses $25 billion a year to implement 
with this safety and health program, there will be no more 
costs to the U.S. businesses for injury. Is that sort of what 
you are saying?
    Mr. Watchman. First of all, I would not agree with the $25 
billion estimate for a standard, because we don't have a formal 
proposal yet. But our estimate is that this will be a 
significant rule that may involve costs of over $100 billion, 
but it will apply to tens of millions of workers at millions of 
work sites around the country, and is likely to produce 
benefits that far exceed the costs.
    Mrs. Kelly. I have one last question and that is, of the 
core elements of the draft standard, you state that employers 
should regularly evaluate the effectiveness of the safety 
programs.
    I want to know what you define as ``regularly.''
    Mr. Watchman. In the working draft, we talk about the 
frequency issue on page 11. We say that an employer must 
evaluate the program as often as necessary to ensure that it is 
effective, and then set a specific guidance saying, in any 
event, after the deadline for complete guidance with the 
standard, the employer must evaluate the program at least once 
in the next 12 months and at least once in the succeeding 24 
months.
    Mrs. Kelly. Are you going to evaluate your own regulations 
as regularly as you expect the businesses to do that?
    Mr. Watchman. We have started to review regulations. We 
have a variety of projects under way, yes, to review our own 
regulations.
    Mrs. Kelly. This particular one you will also review every 
12 months?
    Mr. Watchman. We with not review it every 12 months, 
because we have a fair number of regulations, but we do review 
regulations on a regular basis.
    Mrs. Kelly. No, that is not what I am asking.
    I am asking: You are expecting an employer to take this 
program and review what they have put in place once every year, 
if I understand you correctly. I am asking you, if you are 
going to do the same, to make sure that this program is 
continuing to be valuable.
    Mr. Watchman. We would certainly monitor the implementation 
of the standard, and in practice for the standards we have 
already issued, we either have in many cases reopened the rule 
to clarify issues that have come up in the implementation or to 
correct problems that have come up.
    In other cases, we issue compliance directives to the field 
that are published, that indicate how certain issues that have 
come up should be resolved, so we either can come back and 
reopen the rule or issue compliance directives.
    Mrs. Kelly. Would you be willing to write into the rule 
that you will review it every 12 months?
    Mr. Watchman. It really is a review that goes on on an 
ongoing basis as people raise questions with us.
    Mrs. Kelly. You are waiting for people to come from outside 
to raise the questions. You are not raising them yourselves. 
You are not monitoring themselves them yourselves. That is my 
concern.
    Mr. Watchman. Concerns are raised by outside stakeholders, 
employers and workers, as well as OSHA staff out there trying 
to enforce our standards.
    We have experts in each of our standards at the national 
office, and those folks basically are working full-time in the 
implementation of our standards. So it is not something we 
would come into and review after a year or once a year; it is a 
continual process of review.
    Mrs. Kelly. So there is no total review ever?
    Mr. Watchman. That is what I was talking about in the first 
part, that at some point then we come back and do a 
comprehensive review of each standard and determine whether it 
is still warranted.
    Mrs. Kelly. I am trying to find out at what point.
    Mr. Watchman. I couldn't say at this point how quickly we 
would do one. We have a couple of projects going on currently 
for standards review, but it is something that we do 
periodically.
    Mrs. Kelly. Thank you very much.
    Chairman Talent. I thank the gentlelady and want to thank 
all the witnesses for their patience, and particularly for 
being willing to wait through that vote that we had. I don't 
think we are going to have a vote for a while, so we should be 
handle to wrap this up pretty quickly.
    I do have a number of questions, and I want to encourage -- 
I may direct them at a particular person. I would encourage 
those who have comments to make them even if I haven't directed 
it to you in particular.
    Mr. Watchman, let me just followup. I was going to ask 
about a regulatory flexible analysis, and Mrs. Kelly was 
getting into that anyway. Are you planning to do a regular flex 
analysis with the rule?
    Mr. Watchman. Yes.
    Chairman Talent. So although it is a preliminary stage, you 
do think the rule is going to have a significant impact on a 
substantial number of small businesses?
    Mr. Watchman. We haven't made that determination yet, but 
we think we should do a regulatory flexibility analysis.
    Chairman Talent. How are you going to define small 
businesses for the purpose of your regular flex analysis?
    Mr. Watchman. We anticipate using the SBA definition of 
``small entities'' for purposes of our regulatory flexibility 
analysis.
    Chairman Talent. Very good. You are not going to have to 
consult with them about changing it. That was a concern I had 
about the draft, because in terms of your compliance, you are 
going to have different attitudes in compliance toward 
employers with nine or fewer employees than you would with nine 
or more.
    Where did you get the nine, anyway?
    Mr. Watchman. The 10 or fewer, 9 or fewer, is a frequently 
used cutoff point for our standards. It is also, I think, used 
in the appropriations rider that the Congress enacts every 
year.
    Chairman Talent. Why 9? I agree, but why 9? You see, some 
of us have a sense like, you have a dart board with numbers up 
there and you threw a dart up there and hit 9. You don't know 
why nine, as opposed to 10?
    Mr. Watchman. I don't know what the historical cause was.
    Chairman Talent. There is no apparent justification for 9 
as opposed to 10. Can you see any?
    Mr. Watchman. It may be a reflection of how the statistical 
data is reported by other agencies.
    Chairman Talent. It may not be; it may be something else. I 
notice you have more time to comply if you have nine or fewer, 
but that is nine employees on any day in the preceding 9 
months. Now, that would cover a whole lot of people who 
normally don't have nine employees.
    Again, I don't want to focus on my family, but my brother 
has a couple of people who wait tables and work in his tavern, 
but if he has a private party on a given night, he may hire a 
few extra people to wait the tables. So, bang, he has the nine. 
Would it cover part-time as well as full-time?
    Mr. Watchman. I think it does take into account part-time 
employees in the calculation.
    Chairman Talent. You are getting very, very broad coverage 
there. We are not certain, are we? It doesn't say part-time or 
full-time, does it?
    Mr. Watchman. That is the kind of provision we would expand 
upon in the compliance directive and in the preamble to the 
regulation.
    Chairman Talent. Would you anticipate, by the way, because 
you already referred in response to other questions to a number 
of aspects of this that you are going to have to clarify; I am 
going to go over some others that I think -- and I will see 
what you respond, but I think you are going to have to clarify.
    Are you going to clarify those in the proposed rule?
    Mr. Watchman. I am not sure of all of the issues you are 
referring to, so maybe we should take them one by one.
    Chairman Talent. Is the proposed rule going to be in 
substantially greater detail than this working draft?
    Mr. Watchman. We have some conflicting goals. We want to 
issue a standard that is as short as possible so people can 
deal with it. We certainly recognize small employers don't have 
a lot of extra time on their hands, and if we are going to have 
a proposal like this that we want them to implement, we should 
make it as short as possible.
    But that being said, I think we can accomplish the goal of 
providing sufficient information through a variety of 
compliance guides and models and checklists.
    Chairman Talent. See, here is something I want to get into. 
Ms. Bailey referred to this before.
    My opening statement, when I talked a little bit about the 
nature of law, OK, I don't want to turn this into the Judiciary 
Committee, but when you say we are going to put it in 
compliance guides, compliance guides are not subject to the 
safeguards and the APA, the Administrative Procedures Act and 
the other kinds of rulemaking, are they?
    Mr. Watchman. Right.
    Chairman Talent. We don't know what is going to be in the 
compliance guides. But then it is too late for us to comment, 
to give you any input, right?
    Mr. Watchman. Well, certainly the issues you have raised 
are issues we would be considering during the rulemaking----
    Chairman Talent. OK.
    Mr. Watchman [continuing]. Clearly. But in terms of trying 
to provide assistance to employers, we would clarify some 
things in the compliance guides.
    Chairman Talent. You are going to do a compliance guide for 
small employers under SBREFA?
    Mr. Watchman. Yes. In fact what we would like to do is 
target them at some particular sectors or industry groups so we 
can provide more specific assistance.
    Chairman Talent. Let me get into a couple of the areas 
where I am deeply concerned.
    I said in my opening statement that this working draft is 
not really, in my judgment, a law. It is sort of, you are 
urging people to go out and be safe, is the way I regard it. 
The problem with that is, when you have substantial legal 
penalties in connection with it, you are just not telling 
people what they need to do.
    Let's get into the employee participation. I think you 
could take this with any one of these core elements. You define 
``meaningful participation'' as ongoing, effective 
communication between the employer and the employees, so I 
presume -- are they going to have to have official meetings, 
safety meetings?
    Mr. Watchman. Not necessarily. That would be one way of 
having ongoing, effective communication.
    Chairman Talent. But in some circumstances, probably yes; 
in some circumstances, probably no. Is that what you are 
telling me?
    Mr. Watchman. We want to allow employers as much 
flexibility as we can to determine what kind of participation 
is appropriate for their workplace. In a workplace like Mr. 
Landon's, with only a few employees, there really would not be 
a need for formal meetings necessarily, but perhaps one-on-one 
conversations, an understanding if employees encounter a 
hazard, they are free to raise it with Mr. Landon and he will 
respond to their concerns.
    Chairman Talent. You said ``flexibility,'' which I think is 
the key word. Believe it or not, even in my own mind, I am not 
convinced you should not go forward with this in some form or 
another. I think it is important you keep a distinction in your 
mind between a rule that allows flexibility for the employer 
and a rule that allows arbitrariness on the part of the 
inspector.
    You see, if you say in the rule, employers can at their 
discretion have formal meetings or not, or employers with under 
10 employees or something can, that is flexibility. But if you 
just say, well, have as many meetings as necessary, then what 
you have done is you have taken the job of making laws and you 
have given that to the inspectors to do, haven't you?
    Mr. Watchman. Again, that is where the compliance directive 
comes into play, and we would want to work closely with 
stakeholders in the development of that. I think you are 
raising a concern that our stakeholders have raised with us in 
many meetings, which is, we are comfortable with a lot of what 
you are doing in this working draft, but the real question is, 
how are you going to enforce it?
    Typically, we draft a compliance directive on our own and 
put it out there for the inspectors to follow. That clarifies a 
lot of issues. This time around we want to work with 
stakeholders to allay their concerns about the kind of 
discretion that our inspectors will have in the enforcement of 
this standard, and we hope to do that at the proposal stage 
long before it ever becomes a final rule, years before.
    Chairman Talent. I will let you know right now, my judgment 
is that taking all these issues which should be part of the law 
or the regulation and putting them in the compliance directive 
isn't good enough.
    The compliance directive, for example, is not clearly 
covered by the regular flex amendment. It would not necessarily 
subject to judicial review. You can't get around your 
responsibilities by putting them in a compliance directive; 
they need to be part of the rule, which is the way Congress has 
instructed the Agency to legislate when it legislates. Do you 
see what I am getting at?
    Compliance directives on minor points are one thing, but on 
major points -- and there is major point after major point 
here: Employee involvement in such areas as assessing and 
controlling hazards. Again, do you have to have meetings with 
the employees? Do there have to be surveys? Can you form teams? 
Evaluating the effectiveness of the safety and health program, 
do you have to hire consultants?
    I think what you probably are going to answer -- do you 
want to answer that?
    Mr. Watchman. I would just say, any of those could be 
acceptable means of meeting the employee participation 
requirement, but none of them would be specifically required.
    Chairman Talent. When you say, any would be acceptable, so 
if the employer says, I have had meetings, and the inspector 
says, OK, under the law I cannot cite you now, is that what you 
are saying?
    Mr. Watchman. Yes, if in fact the inspector talks to 
workers and they say, we had meetings, we talked about safety 
and health issues.
    Chairman Talent. Sure, assuming the factual statement is 
correct, assuming he could make sure what is being represented 
is correct, sure. A way for employees to promptly report job-
related injuries, would that mean they would have to have 
written forms?
    Mr. Watchman. We do already have a written form requirement 
for recording injuries, and I think that is really an important 
aspect of our program, that employers can be made aware of the 
injuries that are occurring.
    Chairman Talent. ``Promptly.'' What does that mean? See, 
you don't know. You are the head of the Agency and now you have 
people out there trying to figure out what to do.
    By the way, I have to tell you, Mr. Watchman, because of 
something Mr. Landon said, when I was reading through this 
thing, the management leadership section, sub 3, when you say 
small employers may choose to carry out the responsibilities 
listed above instead of delegating them, that really is very 
quaint, because I have to tell you, most small employers are 
not going to have any choice but to carry them out themselves. 
You need to keep that in mind.
    You referred to the States. I have been going through -- I 
am not as expert as you are in all -- in what all the States 
have. It seems to me most of the stated planks I looked at are 
narrower, and rather substantially so, in terms of whether they 
apply to or what they impose upon employers, than what you are 
proposing.
    Oregon, for example, exempts employers with 10 or fewer, 
unless there is something about their industry or their own 
particular records to suggest that they may need a health and 
safety program.
    Are you still considering whether you might just exempt 
very small employers or maybe subject them, conditional to some 
showing that they have themselves a poor safety record or are 
part of an industry that is high risk? Is that still something 
you are considering?
    Mr. Watchman. We are considering the general coverage 
issues for the standard, yes. Our stakeholders agreed, I think 
fairly universally, that they felt that all workplaces should 
be covered and that employees at small workplaces should have 
the same protections as employees at large workplaces.
    But they felt very strongly we should treat smaller 
workplaces differently and expect different things from smaller 
employers. I would agree with that recommendation.
    Chairman Talent. I will give Mr. Watchman a break. Would 
anybody like to comment on that?
    Dr. Rainwater. I would like to comment. Did you say there 
is a possibility that you are going to exempt some employers? 
Did I hear that? I heard that.
    Mr. Watchman. We have not conclusively resolved these 
issues. We are still looking at these issues, but again, I am 
reporting what the stakeholders -- employers and workers -- 
expressed to us in our stakeholder meetings.
    There also are some serious problems with the data that 
would make exemptions difficult to apply without exempting some 
workplaces where workers really are in need of protection. So 
we are looking at these issues. Again, we have not resolved 
conclusively the direction we want to go.
    Obviously, we have looked at a lot of these different State 
laws as well.
    Chairman Talent. I would urge you to consider that very 
strongly. One of the concerns I have about regulations in 
general is that in order to get more control of a relatively 
small fraction of people who have a problem, something applies 
to everybody; and it seems to me we should not confine 
ourselves to those two universes.
    Either we make everybody carry large costs that many people 
don't need to carry -- I think you will agree, as Ms. Church 
said, and Ms. Gekker, many employers are doing all they can; 
and your suggestions are not going to help them as much. Why 
can't we tailor a rule for those who need the help or are the 
bad actor, make people who have bad histories or are in lines 
of business that are particularly hazardous -- frankly, if you 
wanted to have a safety and health program requirement for 
businesses where they make explosives, I don't think I would be 
having this hearing?
    Is that something you can consider doing? Maybe tailoring 
it on the background of the business?
    Mr. Watchman. There is a certain logic obviously in trying 
to target a standard at the highest-hazard workplaces. The 
reality is, we still have significant injury rates around this 
country, that the average rate for the country is about 7.8 
workers out of 100 that will be injured in the course of a 
year. But even in the safest industries, one out of 50 workers 
will be injured in the course of a year, and that is a very 
significant level. Over the course of 10 years, 10 of those 50 
workers will be injured.
    I think there is a lot we can do to reduce these injuries 
and illnesses, even in the low-risk industries; and safety and 
health programs have proven to be a very successful way of 
reducing injury and illnesses and saving money for the 
employers.
    So, yes, there is some logic there, and we are looking at 
that issue. But I think there is also a counterargument that 
makes sense, to try to extend the same protections to all 
workers, but to try to reduce the impact and burden on small 
employers of complying with the standard.
    Chairman Talent. Ms. Bailey, I wanted to followup with 
something you talked about, back-door rulemaking, which I think 
is a real danger of this working draft. Let me say what I 
understand you to be saying, and you tell me whether this is 
correct.
    Let's suppose that OSHA has been considering or working on 
a rule -- in particular you mentioned ergonomics; it could be 
one of a number of them -- and for one reason or another has 
not promulgated that rule, or perhaps Congress said, do not 
promulgate that rule, or do not promulgate it now or in this 
form. But this rule goes forward.
    So now the employer has the responsibility to have a health 
and safety program covering not just the specific standards of 
OSHA, but also comprehending hazards that would be hazards only 
under the general duty clause.
    Ms. Bailey. That is correct.
    Chairman Talent. So let's go back to my example in my 
opening statement about the beer keg that, let's say, weighs 
more than 25 pounds -- and I don't know how much they weigh; I 
have never approached them from that standpoint, picking them 
up. The hose, I could tell you how much they weigh, that you 
put in there. So the inspector comes into the workplace.
    Now, as far as his working draft is written, is it your 
belief, as it is my belief, that there is nothing at all to 
keep that inspector from saying, there is a hazard over here, 
under the general duty clause with this beer keg? You have not 
listed it as a hazard or not corrected the hazard, and in fact 
that incorporates the ergonomic rule into the safety and health 
program.
    Is there anything you could see to keep him from doing 
that?
    Ms. Bailey. No, there is not. As long as the lifting of a 
keg that size is a recognized hazard in that industry and would 
be covered by the general duty clause, then there is no basis 
-- they can't form the basis for a citation saying, you do not 
have an effective safety and health program. That is preventive 
control in regard to that hazard.
    Chairman Talent. Mr. Watchman can speak for himself, and I 
will give him a chance to comment, but perhaps he can say, then 
you can litigate it.
    Let's get reality into the open here. What is the first 
stage at which an employer gets an impartial adjudication of an 
OSHA citation? The ALJ?
    Ms. Bailey. Yes.
    Chairman Talent. What is the nature of the proceeding 
before an ALJ?
    Ms. Bailey. It is very much like a trial. There is no jury, 
but the ALJ is essentially the judge, and both sides present 
their arguments. It is a full-blown trial.
    Chairman Talent. You examine and cross-examine witnesses?
    Ms. Bailey. Yes.
    Chairman Talent. You file written pleadings?
    Ms. Bailey. Yes, all those things.
    Chairman Talent. Briefs?
    Ms. Bailey. Yes.
    Chairman Talent. So if the employer wants to have much 
chance, he has to have representation.
    Ms. Bailey. Being a lawyer, I would say yes.
    Chairman Talent. I am a lawyer, too, and I used to be in 
the field of labor law. So how much would a reasonably -- not a 
complex, but an average trial before an ALJ cost an employer?
    Ms. Bailey. Quite a bit.
    Chairman Talent. Even for somebody a little bit less 
qualified than the people at McDermott, Will and Emery, it 
would probably cost $25,000 or $30,000 maybe?
    Ms. Bailey. Yes, I would venture to say. Yes. If you have 
to go beyond the ALJ level, up through the review commission 
and the appellate court, you are talking about hundreds of 
thousands of dollars.
    Chairman Talent. So the inspector says, I will tell you 
what, I am going to fine you $1,500 for the beer keg thing and 
don't ever do it again. Now you can get take the $1,500, or 
maybe go to the regional director and try and get that settled, 
or hire somebody like you for $1,000, or you can litigate it 
for a minimum of $25,000- or $30,000. What are the tavern 
owners, as a practical matter, going to do?
    Ms. Bailey. They are going to have to spend a lot of money, 
it sounds like.
    Chairman Talent. Which means, as a practical matter, that 
that inspector is making the law at that workplace, isn't he?
    Ms. Bailey. That is true to some degree.
    What you also have to realize is, we are not just talking 
about penalties that come with citations. Suppose you have a 
tavern owner -- what you have to think about also is abatement. 
I mean, the real costs don't come with the $1,500 fine. They 
come with the way you have to completely revamp your business 
to change the way you operate, and that is where some of the 
really big costs can come in.
    It is not necessarily the $1,500 fine; it is the way you 
have to change the way you operate your business.
    Chairman Talent. Now, Mr. Watchman, I will give you a 
chance to comment if you want. But let me just add, see, when 
you combine a remedial procedure, which is very expensive for 
the average person -- and I am not saying there is anything we 
can do about that -- we ought to put our heads together and try 
to figure it out. But on the one hand, getting a clarification 
of the law before even a semineutral adjudicator is very 
expensive.
    Then a law, which is very vague, what the average small 
employer is just confronted with then is the person that comes 
out to inspect is the law. I mean, it is like, well, I am not 
going to say what it is like. It is what offends me, I guess, 
in principle, about this kind of a process, that people don't 
know what they can and cannot do; and in order to find out, it 
is extremely -- prohibitively expensive. These are people who 
in many cases may not have any problem with safety.
    Do you have a response to that? Is there anything we can do 
to try and move forward with something you are trying to do and 
minimize that risk?
    Mr. Watchman. I think this is a very creative argument that 
Ms. Bailey has raised, but I don't think there is any merit to 
it. We have made clear in the working draft and we will 
continue to make clear in any proposal we come up with that, 
first, the standard only applies to hazards for which the 
general duty clause already applies or a specific standard 
already applies.
    If in fact the handling of the kegs represents a hazard 
under the general duty clause that is likely to cause death or 
serious physical harm, or is causing death or serious physical 
harm, if in fact it is a recognized hazard in that industry, 
and if in fact there are feasible means of abating that hazard, 
a general duty clause violation would be appropriate in that 
instance -- but only if those criteria are met.
    If they are not met, it would not be appropriate. But the 
existence or nonexistence of a safety and health program 
standard would have absolutely no impact on whether or not the 
handling of kegs represented a general duty clause violation.
    So, again, I think the argument is a creative one, but I 
don't see it as being a problem.
    Chairman Talent. In fairness, though, to Ms. Bailey, the 
Agency's position on these kinds of things hasn't always been 
consistent. A few years ago it was the view of the Agency, 
evidently, that in order to do what you are trying to do now, 
Congress had to pass a law, wasn't it?
    Mr. Watchman. No, sir.
    Chairman Talent. Wasn't the COSHRA bill, introduced in 1992 
and 1993 by Senator Kennedy and Senator Ford, designed to give 
you the authority that evidently they felt they had to give 
you, that you didn't already have, to promulgate a national 
safety and health standard?
    Mr. Watchman. It was. It was the time of a different 
administration.
    Chairman Talent. Not in 1993 it wasn't.
    Mr. Watchman. In 1993, that is true. But that legislation 
was designed to enact a number of reforms to the OSHA statute. 
But I don't believe the sponsors felt that a safety and health 
program rule had to be enacted by legislation.
    Our statute, in fact, gives us broad authority to set 
standards to reduce injuries and illnesses in the workplace, 
and in fact section 8(c)(1) of our statute specifically gives 
us the authority to require employers to conduct self-
inspections, which is really at the heart of this working 
draft.
    Chairman Talent. When I look at a side-by-side of COSHRA 
and your safety and health proposal, it looks pretty similar to 
me. Obviously, there are a few differences.
    Basically, they tried to require through the law -- and 
they were, by the way, unable to pass through a Congress that 
in both sessions was controlled by the other party -- 
essentially what you are trying to do here. So you see why Ms. 
Bailey and some of us are concerned, because administrations 
change and views change and compliance guides change, and none 
of that is subject even to the safeguards in the Administrative 
Procedures Act, much less the safeguards in the Constitution 
regarding how laws are passed here.
    To this point, I don't think you have addressed the 
concerns that I think are here in trying to have such broad 
coverage of a law that must inevitably be vague in what it 
actually says. You are trying to cover everybody, and you 
recognize appropriately that, look, some people may have 
meetings, some people may have surveys.
    You appreciate the fact we could be here all day if I 
wanted to go through all of the elements and bring out what is 
vague in all of them. Wouldn't you recognize there is a whole 
lot more vague in here than what I have talked about to this 
point?
    Mr. Watchman. As I recognize in my testimony, the challenge 
is to respond to employer wishes for a performance-based 
standard, but also giving enough guidance that people know what 
we are asking of them.
    I am not sure we have gotten it exactly right. I think we 
do need to do a better job of defining a lot of these terms. 
But I think there is also a balance to be struck here; it is 
not just a question of defining the terms. Because the more 
specific we make the standard, the more employers are going to 
tell us, why are you telling me to do it that way; I do it this 
other way, and that works perfectly well.
    Chairman Talent. Which would suggest that if you end up 
giving discretion to people who can't be attacked in the 
enforcement stage, that that may be the way to go. That is true 
flexibility; that isn't arbitrariness. Give people safe 
harbors.
    You mentioned checklists before. I know this is in the back 
of the mind and is something you are thinking about. I would 
also suggest to you there is more than just a compromise here; 
there are some very basic principles of law here.
    There is an old Anglo-Saxon maxim of law that what is not 
prohibited is allowed. If you do not let people know with 
reasonable specificity what they cannot do, then they are 
allowed to do it. It is hard to regulate a vast society 
following that principle, but we ought to try to do it as much 
as possible.
    Let me see if I have any other questions. I filibustered 
Mr. Hill out of his. He handed me a note. When he has been 
around here longer, he will just butt in. When he has been 
around here a very long time, he may ask you about his teeth.
    Dr. Rainwater. I am waiting for a reply on that.
    Chairman Talent. I had a question about effective 
alternatives, because I think that is one possible safety valve 
here. Under ``discussion,'' I am interested in this discussion, 
some kind of concept evidently, and I have not tried to codify 
it or to set it forth with great specificity here, but some 
kind of concept that employers who have some effective 
alternative are deemed to be in compliance. That is kind of a 
general safe harbor. Could you elaborate on your thinking in 
that regard?
    Mr. Watchman. Sure. We included language to this effect in 
response to concerns that stakeholders raised. The basic 
concern that was raised initially was, we already have an 
effective safety and health program in our workplace, and we 
are reducing injuries, doing a lot of things, but why should we 
have to change it, when it is working, to comply with the 
standard?
    Our intent is not to force changes in effective programs, 
but the way we have drafted the standard in terms of boiling it 
down to the very basic core elements, they are fairly common 
sense. You have to be committed at a high level of management, 
and not just make it a pro forma exercise.
    You have got to talk to your workers and communicate with 
them. You have got to actually try to identify and address 
hazards that are present at your workplace, if there are some. 
You have to train workers that are exposed to serious hazards 
about how to identify them and how to deal with them.
    Then it makes sense to review the overall approach 
periodically to just get a sense of whether it is working or 
not.
    Nevertheless, we have considered whether we could do some 
alternative language that would allow for other effective 
approaches. But what we have said at every single stakeholder 
meeting is -- to both many different individual employers that 
are present at those meetings, as well as employer 
representatives that represent hundreds of thousands of 
businesses -- give us examples of the kinds of approaches you 
are conceiving of that you think would not meet the core 
elements. Not a single employer has given us an example, and we 
have asked repeatedly.
    I would ask again today, if there are companies that feel 
that they are not providing one of those basic core elements or 
not providing it exactly the way we envision it, either we can 
include an alternative provision or we can broaden that 
particular core element so it allows for that type of delivery 
of that core element.
    Chairman Talent. Would anybody else like to comment on the 
possibility of that being a saving clause for this, if you 
will, and if so, what you think it would have to contain. This 
idea that if you are running your own program and it is an 
effective program, tell me how you think that might need to be 
defined, that that might be a pretty good safe harbor; or do 
you think it would be ineffective? Any comments on that?
    Ms. Church. Chairman Talent, I have a feeling it comes down 
to ``I will know it when I see it.'' I don't think that will 
work.
    Chairman Talent. Any other comments?
    Dr. Rainwater. I would like to comment to Mr. Watchman.
    The OSHA compliance checklist for the dental office that 
the dental profession has worked with OSHA to come up with, 
which includes about everything you can possibly dream of from 
labeling to training to means of egress to fire prevention to 
exits, would that not be a sufficient document to comply with 
everything in this standard?
    Mr. Watchman. It sure sounds like it would. It looks pretty 
comprehensive and looks like it addresses the kinds of issues 
we would envision being addressed in the safety and health 
program. So this is the kind of material that we envision as 
potentially using as a safe harbor under the standard.
    Chairman Talent. OK.
    Dr. Rainwater. May I then ask, would it be possible that 
either we could get an exemption, because we are already doing 
that, or get some sort of directive from OSHA saying that if 
you comply with all this stuff, that is all you need to do to 
fulfill this? Is that possible?
    Mr. Watchman. The problem with an exemption for an entire 
industry is that it assumes every employer is taking exactly 
the same steps. As I am sure you understand, there are many 
employers doing exactly the right thing, some going beyond what 
is required, and then others that are not doing enough. So I 
think we need to apply the standard in places where there are 
problems and industries where there are problems, but I think 
we need to make every effort to develop these kinds of 
industry-specific checklists that can be used as safe harbors.
    Chairman Talent. Let me ask you this, Secretary, because it 
seems to me the core of your argument comes down to the fact 
there are people out there who, either through ignorance or 
they don't care -- and I do agree, the economic motive, 
although if humanity doesn't move people to care about safety, 
which in most cases it does, the economic motive ought to. But 
I agree with you, there are some people out there who are going 
to companies over that thin ice and just hope it never hurts 
anybody. But cannot we apply the same thing to regulatory 
agencies from a different perspective?
    Most regulators I know of are pretty conscientious people 
trying to advance the interests of what they are supposed to be 
doing without necessarily hurting people. But there are some 
out there, either untrained or ignorant or malicious -- they 
got up on the wrong side of the bed this morning, so we are 
going to stick it to somebody.
    So suppose I said to you, Congress is going to pass a law 
requiring the agencies to be fair, and because we are trying to 
cover all the agencies and all the circumstances in which you 
might be regulating people, is it impossible for us to be more 
specific than that? But we are going to have the General 
Accounting Office -- we are going to give them several thousand 
people, and they can go around whenever they want, walk into 
one of your regional offices or follow an inspector or demand 
documents, which you will have to provide, and they are going 
to implement what is fair. They will have compliance 
guidelines.
    Now, those will not be subject to the Administrative 
Procedures Act and they could change without any notice, but we 
will promise we are going to work with your stakeholders. If 
they decide that you are not being fair in a particular 
instance, there is monetary liability for the inspector, but 
they can contest it if they want before a system of ALJ's, most 
of whom, by the way, will be former GAO auditors, OK?
    Now, would you say to me, Congressman, that seems kind of 
unfair and it might stop us in the legitimate things we are 
doing? Or would you say, we have to do something because there 
are some people out there who otherwise are not going to be 
fair?
    How would you respond to that kind of setup?
    I could file a bill like that. Everybody wants fairness.
    Mr. Watchman. In the course of our rulemaking, I don't want 
to suggest that we are going to shuffle off some of these 
issues into a compliance directive that will not be considered 
in the course of the rulemaking. We recognize that there are 
serious concerns that people have about how we could craft a 
standard that could apply in a variety of contexts. It is a 
tough challenge.
    But the issues you have raised, and that a lot of the 
witnesses have raised, are issues that we do intend to explore 
during the rulemaking. Again, there are all these steps 
involving meetings with small businesses, the SBREFA regulatory 
review panel process, interaction with SBA and OMB, and all of 
that takes place before we ever issue a proposal.
    We are still years from issuing a final rule. During the 
postproposal stage, we will have hearings and an opportunity 
with written comments, and again, witnesses can cross-examine 
each other to really get into the detail of these types of 
issues, to hammer out a standard that is fair and reflects as 
big a consensus as possible among stakeholders.
    So I do think we have a very fair process. I think OSHA's 
processes for developing rules is one of the more thorough and 
public processes that exist in the Federal Government, and we 
have only added to that process through all of the preproposal 
activity we have engaged in.
    Chairman Talent. You haven't commented, whether you would 
support that bill or not, whether the Agency would. You would 
probably want to look at it a little bit more.
    Mr. Watchman. Probably.
    Chairman Talent. That is all I have. I want to thank the 
witnesses for their patience.
    Mr. Watchman, I know you needed to go about 1. I want to 
thank you for answering these questions and being willing to be 
so responsive and to listen. I think that speaks very well for 
you and your leadership. I am grateful to you for doing that.
    Without objection, I will keep the record open for 5 days 
so that other members can direct written followup questions 
that they may have to any of the witnesses or submit other 
statements for the record. Without objection, that is ordered.
    [Mr. McIntosh's statement may be found in the appendix.]
    [Mr. Poshard's statement may be found in the appendix.]
    [Mr. Jackson's statement may be found in the appendix.]
    [Mr. Pascrell's statement may be found in the appendix.]
    Chairman Talent. The hearing is adjourned. Thank you all 
again.
    [Whereupon, at 1 p.m., the Committee was adjourned, subject 
to the call of the Chair.]
                            A P P E N D I X

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