    [House Hearing, 106 Congress]
    [From the U.S. Government Publishing Office]

                      OSHA'S PROPOSED ERGONOMICS STANDARD:
                          ITS IMPACT ON SMALL BUSINESS

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

                                    HEARING

                                   before the

                       SUBCOMMITTEE ON REGULATORY REFORM
                            AND PAPERWORK REDUCTION

                                     of the

                          COMMITTEE ON SMALL BUSINESS
                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED SIXTH CONGRESS

                                 SECOND SESSION

                         WASHINGTON, DC, APRIL 13, 2000

                                   __________

                               Serial No. 106-51

                                   __________

             Printed for the use of the Committee on Small Business

                          COMMITTEE ON SMALL BUSINESS

                      JAMES M. TALENT, Missouri, Chairman
    LARRY COMBEST, Texas                 NYDIA M. VELAZQUEZ, New York
    JOEL HEFLEY, Colorado                JUANITA MILLENDER-McDONALD,
    DONALD A. MANZULLO, Illinois             California
    ROSCOE G. BARTLETT, Maryland         DANNY K. DAVIS, Illinois
    FRANK A. LoBIONDO, New Jersey        CAROLYN McCARTHY, New York
    SUE W. KELLY, New York               BILL PASCRELL, New Jersey
    STEVEN J. CHABOT, Ohio               RUBEN HINOJOSA, Texas
    PHIL ENGLISH, Pennsylvania           DONNA M. CHRISTIAN-CHRISTENSEN,
    DAVID M. McINTOSH, Indiana               Virgin Islands
    RICK HILL, Montana                   ROBERT A. BRADY, Pennsylvania
    JOSEPH R. PITTS, Pennsylvania        TOM UDALL, New Mexico
    JOHN E. SWEENEY, New York            DENNIS MOORE, Kansas
    PATRICK J. TOOMEY, Pennsylvania      STEPHANIE TUBBS JONES, Ohio
    JIM DeMINT, South Carolina           CHARLES A. GONZALEZ, Texas
    EDWARD PEASE, Indiana                DAVID D. PHELPS, Illinois
    JOHN THUNE, South Dakota             GRACE F. NAPOLITANO, California
    MARY BONO, California                BRIAN BAIRD, Washington
                                         MARK UDALL, Colorado
                                         SHELLEY BERKLEY, Nevada
                         Harry Katrichis, Chief Counsel
                      Michael Day, Minority Staff Director
                                     ------

           Subcommittee on Regulatory Reform and Paperwork Reduction

                       SUE W. KELLY, New York, Chairwoman
    LARRY COMBEST, Texas                 BILL PASCRELL, New Jersey
    DAVID M. McINTOSH, Indiana           ROBERT A. BRADY, Pennsylvania
    JOHN E. SWEENEY, New York            DENNIS MOORE, Kansas
    JOHN THUNE, South Dakota
                   Meredith Matty, Professional Staff Member

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on April 13, 2000...................................     1

                                   Witnesses

    Jeffress, Charles N., Asst. Secretary of Labor for Occupational
      Safety and Health, Dept. of Labor..............................     4
    O'Shaughnessy, Laura, Corporate Secretary, Revere Copper Products    29
    Landon, Brian, Owner, Landon's Car Wash & Laundry................    31
    Kremp, Charles, President & CEO, Kremp Florists..................    33
    Russ, Leonard, Administrator, Bayberry Care Center...............    35
    Saxon, Edward, President, Conco Systems, Inc.....................    37
    Woodbury, Jennifer, Esq., McDermott, Will & Emery................    52
    Nowell, Jackie, Director, United Food and Commercial Workers
      Int'l Union....................................................    54
    Halprin, Lawrence, Esq., Keller & Heckman........................    56
    Mirer, Frank, Director, UAW Int'l Union..........................    58
    Cheffer, John P., Chairman, American Society of Safety Engineers.    60

                                    Appendix

    Opening statement:
        Kelly, Hon. Sue..............................................    72
    Prepared statements:
        Jeffress, Charles N..........................................    74
        O'Shaughnessy, Laura.........................................    88
        Landon, Brian................................................    99
        Kremp, Charles...............................................   104
        Russ, Leonard................................................   116
        Saxon, Edward................................................   156
        Woodbury, Jennifer...........................................   165
        Nowell, Jackie...............................................   172
        Halprin, Lawrence............................................   176
        Mirer, Frank.................................................   190
        Cheffer, John P..............................................   209
    Additional material:
        OSAH's Proposed Ergonomics Standard: Its Impact on Small
          Business...................................................   263
        Letter from Hon. James Talent to Hon. Charles Jeffress.......   266
        OSHA followup................................................   278

       OSHA'S PROPOSED ERGONOMICS STANDARD: ITS IMPACT ON SMALL BUSINESS

                                  ----------

                            THURSDAY, APRIL 13, 2000

                  House of Representatives,
              Subcommittee on Regulatory Reform
                               and Paperwork Reduction,
                                   Committee on Small Business,
                                                        Washington, DC.
        The subcommittee met at 10:35 a.m. in room 2360 of the
    Rayburn House Office Building, the Honorable Sue Kelly,
    chairwoman of the subcommittee, presiding.
        Chairwoman Kelly [presiding]. Good morning. Today the
    Subcommittee on Regulatory Reform and Paperwork Reduction is
    meeting to discuss the Occupational Safety and Health
    Administration's proposed ergonomics program standard. I am
    going to call it OSHA from now on, because you all know what
    OSHA is.
        OSHA released the proposed rule and accompanying material
    for comment by interested parties on November 23, 1999. The
    material for comment was voluminous and included a 300-page
    Federal Register notice and an 1100-page economic analysis.
    Despite more than a thousand requests for an extension of the
    comment period, OSHA maintains that comments would be due on
    February 1st, 2000. With only five days left in the comment
    period, OSHA then extended the comment deadline by 30 days to
    March 2d, 2000.
        One of the concerns that I have with OSHA at this point,
    Mr. Jeffress, I have to just say we didn't get your testimony
    until almost 6:00 o'clock last night, so I had to stay up very
    late to have a chance to read it. I really am very concerned
    about the fact that it didn't get in here on time. There is a
    committee rule that it should be here earlier, and I think you
    know that.
        Mr. Jeffress. I apologize to you for that being late.
        Chairwoman Kelly. I think this may be, perhaps, indicative
    of OSHA's procedures, where it is a normal operating standard
    of being a little late here, despite the fact that the
    invitation letter and the committee rules require that all
    testimony be delivered 48 hours in advance of the hearing. OSHA
    didn't get it to us until last night, so I really am concerned
    that, if we ask you to come back, and if you are willing to
    come back, Mr. Jeffress, that OSHA will come back within our
    committee rules and get that 48 hours in advance to us so that
    I don't have to stay up until midnight to read it.
        Any Chairman would ask the same of you. I hope it is not
    indicative of how OSHA plans to conduct the rest of the
    proceeding implementing the proposed standard.
        OSHA has made it abundantly clear that you intend to issue
    a final standard by the end of the year. In response to the
    notice of proposed rulemaking, OSHA received some 7000
    comments. In addition, many organizations, small business
    owners, union representatives, and individual workers have
    agreed to testify before public hearings being held by OSHA on
    the proposed standard. Obviously, there is a great deal of
    interest in the proposed standard, especially considering the
    amount of effort that is needed to submit written comments to a
    Federal agency or appear at a hearing.
        I am going to go back to your late testimony. It is a big
    effort on the part of people to get here to submit their
    testimony. I had the testimony from these folks who are
    testifying 48 hours in advance, but you are here in Washington,
    Mr. Jeffress, and I didn't get it. So, I think it is important
    that small business owners who generally have more significant
    things to worry about, like operating their businesses than
    filing comments with a Federal agency on a proposed rule, be
    treated with due consideration by OSHA.
        This interest really has been confirmed on the part of
    small business in this ergonomics rule. The interest has been
    confirmed in my discussions with a lot of the small business
    owners in my district. I have to say that they have been coming
    up and talking with me even as I walk down the street in my
    village.
        The small business owners, as we will hear today, strive to
    provide the safest working environment for their employees.
    Now, all of a sudden, they are being told by OSHA that they
    have to do more. These small business owners certainly would do
    more if they knew what to do.
        The proposed standard, although written in plain English,
    is difficult to understand and may leave far too much
    discretion in the hands of OSHA inspectors in assessing
    compliance. So, it is not surprising to find that many small
    business owners are confused over how they will comply and what
    costs of compliance will be.
        Even if they are going to be able to comply, it is very
    important for OSHA to understand these concerns. It is one of
    the primary reasons for holding the hearing, to ensure that
    OSHA understands that small businesses are different from large
    businesses in terms of financial resources, technical
    expertise, and daily operation. OSHA needs to take that into
    account in developing a final rule.
        Otherwise, I fear segregation. Workers for larger
    enterprises will get ergonomic protections, because their
    employers can figure out how to comply with the standard while
    employees of smaller businesses do not, because OSHA has
    abdicated its responsibility to draft a rule that actually
    provides scientific, identifiable workplace and engineering
    practice guidelines to substantially reduce or eliminate
    ergonomic hazards.
        The proposed standard is one of the most far-reaching
    initiatives ever undertaken by OSHA or, for that matter, any
    Federal regulatory agency that is going to affect the vast
    majority of small businesses throughout the United States. As a
    result, I look forward to the hearing even though it may be
    very long. However, given the importance of the issue, it is
    critical that we in Congress devote the necessary time to
    understanding the ramifications of this regulatory initiative.
        Let me just simply stop here and ask if anyone else--Mr.
    Pascrell, do you have an openingstatement you would like to
    make.
        I am going to call on Mr. Pascrell.
        Mr. Pascrell. First, I want to thank my good friend,
    Chairwoman Kelly, for holding this hearing today so we can
    examine the proposed ergonomic standard. Hopefully, this
    committee will be able to keep the level of bipartisanship that
    it always has in the past.
        For the past few days again, I have been examining these
    standards, and I have heard the concerns of many sides. Some
    small business owners look at the OSHA proposal and are
    skeptical about how the standard will affect their business.
    They have asked what the costs will be. Legitimate questions.
    Who will be there to help them? Very legitimate questions.
        I am truly confident that Assistant Secretary Jeffress will
    be able to alleviate those fears. That is what I am counting on
    this morning as we move away from the lock-step approach which
    we had just a few years ago. That is horrible. That is a
    bureaucracy which attains no objective, really, except
    frustration.
        I think we are making progress here. Each year, 1.8 million
    workers experience injuries related to overexertion, repetitive
    motions. Six hundred thousand [600,000] are injured severely
    enough to require time off from work. These disorders cost
    employers between $15 billion and $20 billion.
        If we can prevent these things from happening, it will be
    to the advantage of businesses all across America. If we can do
    it within cost, within reason, this is what we should be trying
    to do.
        The evidence is that MSDs caused by ergonomics hazards are
    the biggest safety problem in our workplaces today, and
    something must be done about it. We should use this
    opportunity, therefore, to look at the pain and suffering being
    experienced by our workers, much of which can easily be
    averted. We are talking about real people who, I believe, need
    and deserve the standard to avert potentially crippling
    injuries. This is really an issue that hits home in my
    district, where there's 1100 manufacturing firms.
        While I surely do not want to see them overly burdened by
    the government, God knows they are already. Those firms do
    employ 57,000 people, all of whom must be protected against
    MSDs.
        This threat of injury is out there, and what OSHA
    recommends are common-sense solutions that will make a
    difference in their lives. The proposal is not designed, as I
    see it now, to create massive penalties and paperwork, because,
    if it was, I am not going to support it. To me, it looks to
    create a scenario where the problems of ergonomic injuries are
    abated rather than prosecuted. We are doing in this area what
    we have attempted to do in the environmental situation, working
    together to move away from prosecution to abatement of problems
    together.
        I would like to recount the example of a New Jersey door
    assembly plant, where a consultant was informed by employees of
    wrist discomfort and pain from the repetitive motion caused by
    tightening the screws with a regular, straight screwdriver.
    Pretty elemental. Among other recommendations made by the
    consultant in his report to the employer, it was suggested that
    pistol-grip screwdrivers replace the straight ones at an
    increased cost of $25 per screwdriver. The employer implemented
    the recommendation, and it resulted in a dramatic reduction in
    injuries, especially wrist problems associated with the
    operation.
        The proposed rule we examine today is a significant step
    toward ensuring the health of millions nationwide. Hundreds of
    companies who have implemented changes in ergonomic design have
    saved money, increased productivity, and they pay less in
    workers' compensation costs. I hope that is an objective of
    everybody in this room.
        In conclusion, I think balancing the safety of workers and
    maintaining the viability of small business is a goal that,
    with proper communication and interaction, can be achieved. We
    would be terribly remiss today if we focus solely on the impact
    this proposed rule will have on our business. We must look
    closely and, in my view, strongly support the benefits and
    protections that this rule will give to our workers. The aims
    of OSHA's proposed rule are laudable, and we should not lose
    sight of that. I am hopeful that we will be able to find common
    ground, which we did in the environmental area. We must do so
    here. So, I would like to thank my friend, the Chairwoman from
    New York, for being so accommodating in setting up the hearing.
    I look forward to the testimony. Thank you.
        Chairwoman Kelly. Thank you very much, Mr. Pascrell. I was
    happy to move the hearing so that we could accommodate your
    schedule. Mr. Manzullo has informed me he does not have an
    opening statement.
        So, I am going to move directly to the first panel, who
    will be the Honorable Charles N. Jeffress, the Assistant
    Secretary of Labor, and the Administrator of OSHA. I am
    interested in hearing from Mr. Jeffress on his views concerning
    small business compliance, the cost thereof, and the
    alternatives that will be considered in reducing the
    potentially adverse consequences on small businesses.
        Mr. Jeffress, we are going to go directly to you.

       STATEMENT OF MR. CHARLES JEFFRESS, ASSISTANT SECRETARY OF
                      LABOR, ADMINISTRATOR OF OSHA

        Mr. Jeffress. Thank you, Madam Chair. I am happy to be here
    with you.
        Let me call your attention to a new publication in the past
    two weeks that OSHA has produced for small businesses,
    Questions and Answers for Small Business Employers, with
    information on OSHA, how it operates, what to expect from us,
    and where to go for help. It is a part of our continuing effort
    to reach out to small business, to assist small business to
    protect their workers.
        Our goal here is to keep people from getting hurt, the same
    goal the businesses have. I think they have a common goal, and,
    to the extent we can promote it and educate people through
    materials like this, we seek to do that.
        Work-related musculoskeletal disorders, which I am going to
    call MSDs for simplicity's sake, are the most widespread
    occupational health problem facing our country today.
        As Mr. Pascrell said, nearly two million workers suffer
    MSDs on the job. More than 600,000 have to lose time from the
    job as a result of these injuries. While the median number of
    days lost is seven, the most severe injuries of this type can
    put people out of work for months, and even permanently disable
    them.
        In addition, from the employer's point of view, not only
    are people being hurt and made less productive, one out of
    every three dollars that they spend on workers' compensation
    goes for MSDs. Not only is this a burden for America's workers
    in terms of ergonomics, it is a major burden for American
    businesses. As Mr. Pascrell said, the direct costs attributable
    to MSDs are between $15 billion and $20 billion each year, and
    every year total costs ranging upwards to $60 billion. Reducing
    the total on workers as proposed through this ergonomic
    standard will also reduce the financial burden on American
    businesses.
        As businesses throughout the country have proven, good
    ergonomics is good economics. Thousands of employers across the
    country are proving that everyday.
        The human dimension of this problem is striking. Now, let
    me give you a couple of examples. Ursula Stafford, a 24-year-
    old paraprofessional in the New York City school district--She
    was assigned to assist a paralyzed student who uses a
    wheelchair. The student weighed 250 pounds. Ursula weighed 122.
    She received no training on how to lift the student, which she
    had to do to assist the student to go to the bathroom, for
    example. Nor did her employer provide any lifting equipment.
    Ursula worked only two days before seriously injuring her back
    on the third day. She had a herniated disc and spasms in her
    neck. Today, she wears a back brace. She endures constant pain.
    She has been told she may not be able to have children, because
    her back cannot support the weight of a pregnancy. Compounding
    this tragedy is the fact the Ursula's predecessor was hurt in
    exactly the same way. Under the requirements of our proposal,
    Ursula's employer would have been required to fix this hazard
    after the first injury occurred, and she might never have been
    hurt.
        Then there is Walt Frazier, a 41-year-old poultry worker.
    For nearly nine years, Walt worked as a live hanger in a
    chicken processing plant. He stood beside the processing line,
    stretched over a barrier bar designed to contain the chickens,
    grabbed the chickens by the legs, and then stretched upward to
    hang the chickens onto the shackles. He repeated this process
    once every three seconds. That is 10,000 times a day, 50,000
    times a week, two and a half million times every year. Finally,
    in 1998, barely able to lift 20 pounds and unable to perform
    many daily household chores, he agreed with his doctors'
    recommendations and had the first of four surgeries in an
    attempt to repair his damaged hands. In addition to severe hand
    problems, Walter has lower back pain and severe and chronic
    arthritis in his hands and shoulders.
        Another worker lost her job. Mary, a nurse in Oregon. She
    sustained a back injury. She worked on light duty for a year.
    Then, her hospital told her to find another job, because they
    did not have anything for her to do. Today, she works at
    different part-time jobs in different locations and can no
    longer provide patient care.
        Workers shouldn't have to suffer like this. Many
    businesses, both large and small, have already demonstrated the
    value of ergonomics programs.
        Enid Memorial Hospital's small nursing care facility in
    Oklahoma instituted an ergonomics program focused on back
    injury prevention. They presented a program to staff through
    lectures, videos, hand-outs, demonstrations. The facility
    purchased mechanical lifts and made them available throughout
    the establishment in '97 to '98. This practical ergonomics
    program cut their rate of work-related injuries by almost 75
    percent. They reduced the number of associated lost workdays by
    over 85 percent.
        Another example. A 25-person lumber yard in Ohio developed
    checklists for use by each of their employees in evaluating the
    ergonomic appropriateness of their personal protective
    equipment, their mechanical equipment, and their overall
    workplace. The lumber yard completely redesigned their work
    stations in 1994. As of July of last year, they had not had any
    lost time injuries since strengthening their program.
        Another company, Ultra Tool & Plastics, a New York plastics
    product manufacturer, implemented an ergonomics program that
    cut injuries by 70 percent, reduced lost workdays by 80 percent
    by their solutions they put in place. This is a small employer
    purchasing ergonomic chairs for production employees, providing
    back safety training, installing robot presses to eliminate the
    need for production employees to reach for parts, and making
    pallet jacks available for metal bins to allow height
    adjustments.
        These are only a few examples among many that are
    available.
        We published our 11-page ergonomics standard, which I have
    right here. That's the total ergonomics standard, the total
    rules that the employer has to read.
        We published our standard in November. It is based on sound
    scientific evidence, including findings by the National Academy
    of Sciences that strongly supports two basic conclusions. One,
    there is a positive relationship between work-related
    musculoskeletal disorders and the workplace. Two, ergonomics
    programs and specific ergonomic interventions can reduce these
    injuries.
        We are providing ample opportunity for the public to
    provide input on the ergonomics proposal. As the Chairwoman
    said, we have heard from more than 7000 stakeholders during our
    hundred-day prehearing comment period. We are now in the midst
    of nine weeks of public hearings on the proposal. During the
    hearings, we expect to hear from more than a thousand
    witnesses, including representatives of large and small
    businesses, small business owners, employee representatives,
    and individual workers, as well as physicians, ergonomists,
    occupational health nurses, and others. Not only was there a
    pre-hearing comment period and nine weeks of hearings,
    participants who have filed a notice of intent to appear will
    also have an additional 90 days after the close of the hearing
    to submit further comments. In total, the combined period which
    interested members of the public will have to comment on OSHA's
    proposal exceeds eight months. This period is in addition to
    the small business panel review process conducted under SBREFA,
    the opportunity for comment after that process is concluded,
    and the more than eight years of dialogue that have occurred
    since OSHA issued its advance notice of proposed rulemaking in
    1992.
        Our proposed standard relies on a practical, flexible
    approach. It is not one-size-fits-all. It is an approach that
    can be tailored to individual companies. It is an approach that
    reflects best industry practices. It would require general
    industry employers to address ergonomics for manual handling
    and manufacturing production jobs, where we know the problems
    are most severe. It requires other general industry employers
    to act only when someone is hurt.
        The proposal identifies six elements for a full program--
    management leadership and employee participations, hazard
    information and reporting, job hazard analysis and control,
    training, MSD management, and program evaluations. The
    ergonomics program need not cover all jobs in the workplace.
        Only MSDs caused by a work activity that is a core element
    of an employee's job or a significant part of her work will
    trigger coverage. Because the proposed standard is only
    triggered when an MSD is reported, its protectiveness relies
    heavily on workers' willingness and ability to raise problems
    when they occur.
        Evidence shows that employees are reluctant to report
    symptoms if doing so might cause them to miss work and lose
    pay. Therefore, we have proposed that workers whose injuries
    prevent them from working could receive 90 percent of their net
    pay and 100 percent of their benefits to eliminate any economic
    loss as a result of their injuries. This proposal is roughly
    equivalent to the two-thirds of pre-tax pay of gross pay that
    workers receive under most state workers' compensation
    programs. But, this provision is not about worker pay. It is
    about injury prevention. It is designed to encourage early
    reporting and intervention, which is to the worker's benefit
    and the employer's benefit. We have included similar provisions
    in several other standards, including those on asbestos, cotton
    dust, formaldehyde, lead, methylene chloride, benzene, and
    cadmium.
        We estimate that this proposed standard will prevent about
    three million work-related MSDs over the next ten years and
    save an estimated $9 billion annually for American employers in
    terms of lost production, administrative and other direct
    costs. The total benefit for American businesses far outweighs
    the estimated $4.2 billion annual cost of the program.
        As requested by Mr. Pascrell and Ms. Kelly, we paid close
    attention to the unique needs of small businesses as we have
    developed this proposal. We have drafted the 11-page proposal
    in a question and answer format, as you requested, that is
    written in plain language. The proposal also exempts businesses
    with ten or fewer employees from recordkeeping requirements. It
    extends the phase-in requirements for up to three years for
    implementing engineering controls.
        In accordance with the Small Business Regulatory
    Enforcement Fairness Act, OSHA, the Office of Management and
    Budget, and the Small Business Administration convened a panel
    to review and comment on a working draft of the ergonomics
    proposal last year. We then made changes, both to our economic
    analysis and to the proposal after the panel's review and the
    input from small businesses. Those changes included refining of
    the work restriction provision that I just mentioned. We
    increased the cost estimates based on what people told us. We
    added the quick-fix option. The draft that we provided to
    SBREFA panel employers said you have to put a full program in
    place if an MSD occurs. After listening to small businesses,
    small businesses said, ``Gee, if I have one problem job and I
    can fix it right away and it doesn't give me any further
    problems, why, I don't have to do the full program.'' We
    listened. We heard that. We inserted the quick-fix option, so,
    if you identify a problem job, fix it. No problems. In ninety
    days, you are done.
        You don't have to put the full program in place. In
    addition to drafting a standard that places a minimal burden on
    small businesses, we plan to provide extensive assistance to
    small businesses, as you requested, to assist with compliance--
    publications, checklists, training grants, information sheets
    that will help employers provide their employees with
    information on ergonomics. We also will use Internet-based
    materials, outreach sessions, and our free consultation program
    available through state agencies. Every small employer that
    needs help will be able to contact one of OSHA's state
    consultation programs for free assistance on-site to decide
    whether they need a program and what to do if they need one.
        We are also undertaking extensive efforts to train our
    compliance staff. Our Training Institute already trains our
    compliance officers about ergonomics, since we have been
    addressing ergonomic issues for more than ten years. Consistent
    with our standard practice, whenever we promulgate a new
    standard, we will revise our courses based on the final rule
    and assure that all compliance officers who perform ergonomics
    inspections receive updated training.
        MSDs have a very measurable impact on the lives and careers
    of American workers. Companies that have worked to prevent
    these injuries with sound programs have often improved their
    productivity, drastically reduced their workers' compensation
    costs, and improved job satisfaction. We believe that same
    opportunity for a safer workplace must be extended to other
    workers whose livelihoods and careers remain at risk.
    Preventable hazards too often mean the difference between a
    happy, healthy, productive worker and one whose life and career
    may forever be changed by the misery of chronic pain from a
    needless injury.
        Madam Chairman, I will be happy to respond to questions.
        [Mr. Jeffress' statement may be found in appendix]
        Chairwoman Kelly. Thank you very much, Mr. Jeffress. I
    obviously have obviously a number of questions that I would
    like to ask, but I am just going to ask one right now.
        I might ask a follow-up, but then I am going to let the
    other people speak and ask their questions before I go back to
    finish with my questioning.
        As I said in my opening statement, no one denies that the
    injuries suffered by individuals that you cite are not a
    problem in the workforce. My concern is whether the rule that
    you are promulgating will prevent these injuries from
    Occurring. Telling small businesses that we have a problem but
    not telling them how to fix it leaves it up to them to figure
    out.
        As a former small business owner, I have to tell you that I
    wouldn't necessarily be able to fix a problem and fix it
    correctly according to what your inspector might say, because I
    don't know how to fix it without some kind of expert advice and
    consultation or something that is carefully delineated in what
    you are promulgating.
        So, do you plan to tell small businesses how to fix a
    particular injury?
        Mr. Jeffress. There are a number of ways we are going to
    address this issue.
        What we heard when we met with small businesses and other
    stakeholders prior to issuing this proposal was every business
    is different. There is no one fix that will work for every
    business, so don't put a rule in place that mandates that
    everybody do the same thing.
        We ask, then, how do we put a rule in place? What kind of
    rule should we have? We were told, ``tell us the elements of a
    program that makes sense'', which is what our rule now does
    based on the actual practice of businesses that have ergonomics
    programs in place.
        The rule says there are six principles important to follow
    in establishing programs--getting leadership from your
    management, involvement from your employees, training your
    employees, analyzing your hazards and fixing them, giving
    medical treatment to employees who need it, evaluating the
    program. So, those principles are what's required by this rule.
    There is no one fix, because each business is going to be
    different.
        So, the question that you asked, then, is, okay, the small
    business understands the principles. How do they get an idea of
    what fix works? We will be producing and have produced examples
    of solutions that work for different businesses. Our expert
    advisers on the Internet that we have on other subjects, for
    instance, allow a small business to hit on the Internet, ask
    about their particular business, what kinds of hazards can be
    expected, and how to fix those hazards. With respect to
    ergonomics, here is a booklet, for instance, that has been
    prepared by the Consultation Program in the state of
    California, that is available to small businesses and is an
    example of the kinds of information which you have just asked
    us to provide for small businesses. We have in here pictures of
    solutions that work. We have specific solutions for different
    types of workplaces. This type of information will be available
    in print form and over the Internet and in person through state
    consultants.
        So, a small business employer who determines that they have
    problems and wants help can get specific advice, can get on-
    site help, but is required not to put any specific solution in
    place but to put a program in place that fits their workplace.
        Chairwoman Kelly. I am going to ask a follow-up question
    here.
        OSHA determined that this rule is significant under the
    Regulatory Flexibility Act.
        According to SBREFA, OSHA is required to draft a compliance
    guide for use by the small businesses. When are you going to
    that? When are you going to get that drafted? I am going to ask
    you several questions here.
        The final rule has to be issued for publication in the
    Federal Register, so small businesses have material to help
    them comply. Or, is that going to be done later? Is that going
    to be done after the rule gets promulgated, and shouldn't you
    be trying to develop a compliance guide along with this final
    standard?
        Mr. Jeffress. Yes, we will publish a final compliance
    guide.
        As you indicated, that guide has to give guidance on how to
    comply with the final rule.
        The final rule is now up for hearing. We are listening to
    people. We will be making modifications to our proposal based
    on what we hear to improve the rule, so the compliance guide
    cannot be written finally until the final rule is in place.
        The final rule has a three-year phase-in for engineering
    controls for small businesses, a two-year phase-in for job
    hazard analysis.
        We are already publishing, as I say, lots of advice on how
    to put ergonomic solutions in place and what works. The
    specific compliance guide that we are developing will be issued
    after the final rule is issued.
        Chairwoman Kelly. Well, I have looked through this. I hope
    you are going to give people more than something like this.
        One of the things that I find disturbing about this is that
    you have lifted that 11-page guide that you have offered to
    people. You say all they have to do is read that, and they will
    have a clear understanding of what it is you are trying to do.
    If I understood you correctly, that is what you said.
        Mr. Jeffress. I said to read this to determine if they are
    covered by this rule and what it is they are required to do.
        Chairwoman Kelly. Well, on page 1077 of your Economic
    Analysis, you note that the preamble has additional definitions
    of key items in the regulatory text. So, somebody reads that
    11-page rule and your own analysis doesn't support reading just
    11 pages is going to give anybody the full information that
    they need.
        I want to know if you want to comment on that.
        Mr. Jeffress. Yes, ma'am. I would suggest to you that the
    practical application of rules like this is being done every
    day in workplaces across this country. Earlier this week, I was
    in two workplaces in Illinois, NCS, Incorporated, in Rockford
    and at Dayco in North Aurora, Illinois. In both of those cases,
    meeting with the owner of the businesses, I talked to them
    about how do you identify these problems.
        How is it you figure out that you've got a problem that
    needs addressing? Their comment to me was this doesn't take any
    expert. In the case of Dayco, the person was applying a rust
    inhibitor to a flywheel, had to get up underneath a conveyer,
    and squeeze her handgun like this, and then get on top of the
    conveyor and squeeze again like that. He said it is pretty
    clear that is a problem for us. It is a problem for that
    employee. They fixed that problem for $200. They fixed that
    problem and prevented injuries to their employees. That's the
    kind of thing that employers are required to do. That is the
    kind of thing employers can do, and that is the thing they are
    doing without having to read thousands of pages of information.
        Chairwoman Kelly. Mr. Jeffress, I am sorry to keep going,
    because I really want to let these other people go.
        I do have a whole lot of questions for you. This is just
    the beginning. Sorry about that, but this raises so many
    issues, and, as a small businesswoman, I care ardently that
    people really get it right, just as you do.
        I want to make sure that workers get protected, but I also
    want to make sure that the small businesses understand what it
    is you are trying to get them to do. You just said that it
    doesn't take any expert, is what you heard, for them to define
    what needs to be done. On the other hand, how do we know from
    what you have written so far, and from what I understand from
    all of the things that I have read, I don't know, as a small
    businesswoman, that what I do is going to meet the criterion of
    your inspector who comes in.
        That's the rub. That is the real rub, is when your
    inspector comes in--every inspector. It is going to be a little
    like, if you will forgive me, the IRS. When they come in, they
    are going to play ``aha, I got ya.'' Some of them will, because
    that is just the nature of human beings. I am very concerned
    for the small businesses who get caught in that trap. That is
    all I am going to say on that, because we can go back to that a
    little bit later. But, I am raising a cautionary flag to you,
    sir, that, when you do your training for these people, that
    they understand that is not the government's attitude.
        Mr. Jeffress. I assure you consistency is important to us
    and every compliance officer calls things the same way.
        But, what is most important to us is reducing injuries and
    illnesses. It's not the ``gotcha.'' It's not the violations of
    the rules we are looking for. We are looking to help employers
    protect their employees. That is why our compliance officers
    are out there.
        Chairwoman Kelly. I hope you put those words in large-type
    on the wall.
        Thanks. I am going to go now to Mr. Pascrell.
        Mr. Pascrell. Mr. Jeffress, we are facing a philosophical
    abyss here. That depends if we want to take you back five years
    or you want to go here. But, I think we are going to get there.
    I think we will get to the center eventually.
        To those who believe that we can do all of these things
    through self-examination--I believe in self-examination. No
    question about it, but I also believe that, through the state
    of the art, through science, we can help the worker who is on
    the job without bankrupting the company so that he is not on
    the job any longer. This is what your objective is, I hope. Is
    that correct?
        Mr. Jeffress. Yes, sir.
        Mr. Pascrell. I've got to tell you, though, I am very
    frustrated at rules that exist and are created by us and
    Federal agencies, and there's no way to monitor these things.
        I mentioned to you before new laws and new rules that went
    into effect about our fire departments throughout the United
    States of America. There's 32,000 fire departments. You
    promulgated a rule--OSHA did in terms of fighting fires, that,
    whenever this went to multiple alarm, when two men or two women
    were in regardless, two had to be outside, one monitoring the
    situation. That rule was promulgated over a year ago. Seventy
    percent of the departments are not complying.
        You could have all the rules in the world. You can have all
    the laws in the world, which leads me to believe that the best
    thing that we can do is make sure we try--we are all finite
    beings--to get it as right as possible in the beginning. So,
    don't be too quick, and I will say this in a declarative way.
    Don't be too quick to jump to put this rule into effect, to
    hear from a lot of folks.
        I believe there should be a standard, but we have graduated
    from the fact of how many times can we allow the employee to
    raise his arm. Come on. Every person is different. Every person
    brings his own being to the job. Every person is unique. It is
    tough to deal with a standard, but that we should have a
    standard, that there is a threshold. That there is a plan to
    avoid or shrink the possibilities of injury is what we should
    be after.
        I will support you on that if I know that you have taken
    into account the things that you are about to hear today.
        Now, I've got two examples. In Clifton, New Jersey, part of
    my district, Union Camp, which is not a small business, was
    very dissatisfied with the high levels of back injuries
    experienced. I might add that the workers who experienced the
    back injuries were not pleased, either. [Laughter.]
        Mr. Pascrell. Despite the company's training program on
    manual lifting, in its effort to reduce carton heights,
    injuries continued to occur. The company decided, because of
    lost time, dollars spent, that automatic pallet positioners
    represented the best solution. The equipment enables workers to
    keep working at waist level. Workers fill the pallet. The top
    of the positioner automatically adjusts so the work height
    remains the same, reduces lifting and other awkward motions.
    The impact at Union Camp has been remarkable. Productivity--and
    we have only witnessed an increase in productivity in the
    American worker in the last three years--the American worker is
    doing his job. Productivity increased--We didn't have that
    productivity increase, by the way, in the '80's. We have it
    now. Productivity increased as car impactors no longer needed
    to bend, stoop, or reach. Workers can now load a pallet in 40
    percent less time and less fatigue. Good stuff. Suits your
    purpose.
        You can use that model in other places, and I am sure that
    is what that booklet that you held up, I hope, is all about.
    How many of these success stories have you found, and how did
    you incorporate them into where we are at this point?
        Then, I have a second smaller business I want to talk
    about.
        Mr. Jeffress. In preparing for the proposal for the seven
    to eight years after we issued the advanced notice, before we
    issued the proposal, we held stakeholder meetings around the
    country--all around the country so people could come talk to us
    about things that worked, such as the Union Camp proposal and
    what they did in their workplace. We also held best practices
    conferences, where people came and reported on the solutions
    that were working for them, that were reducing injuries and
    reducing Workers' Comp costs.
        After listening to those proposals, those ideas, those
    actual practices that made a difference, we digested, what are
    the essential elements of these, because no one proposal would
    fit every workplace. What are the essential elements of these?
    We arrived at these six principles, fed them back to people,
    and are asking, in the course of this hearing, are these the
    right principles. Are these the right ways to guide the
    development of ergonomics programs?
        They are based on the actual practices of hundreds of
    employers that came to the stakeholder meetings and told us
    that this is the way we do business. So, we did meet with folks
    like Union Camp. We did learn from them. We did incorporate
    into our proposal the kinds of solutions, the kinds of
    principles they followed in adopting those solutions.
        I would also point out that the kind of solution you
    mentioned at Union Camp is not unusual. Businesses are finding
    these solutions. At Mr. Manzullo's district recently, I had a
    meeting with the Zenith Corporation folks. They had people
    carrying heavy metal pieces from a table over to a machine.
    Carrying that was an issue for them, but there's a back
    problem. The owner of the business looked at it and said, well,
    why don't we put wheels on the table so you can wheel the whole
    table over there, and they don't have to carry it from one
    place to another? That is what they did and solved the problem.
    Those kinds of solutions are out there.
        Our proposal is built on the program that helps people
    identify those solutions, not specifying which one to follow
    but specifying a process for arriving at those solutions.
        Mr. Pascrell. Before I get to the smaller business, which
    is really a concern of ours--all of us here--when I said that
    we have some philosophical problems here--and I used the
    example of the environment before--They are parallel issues in
    my mind, okay? That is how I am thinking, anyway.
        We seem to be moving in government from a prosecutorial
    approach to these things to abatement. I have to be assured
    that that is where you are coming from. I think this is
    critical for us, that you are going to help businesses and you
    are not going to bog them down in paperwork and bureaucracy and
    nothing is accomplished. I mean, I wouldn't mind if something
    was accomplished. Do you know what I am saying?
        Mr. Jeffress. Yes, I do. In response, we are moving in the
    direction you are suggesting we move.
        One of the ways we are doing that, OSHA's standards used to
    specify exactly what an employer had to do--put that fire
    extinguisher 34 inches off the floor. Thirty-six inches or 32
    inches, you are not doing what the standard says. Put it 34
    inches off the floor. That is not productive. That is not
    conducive to safety and health.
        We are moving to performance-based standards that says to
    employers, as to ergonomics, put a program in place that fits
    your workplace to solve the problems you have. That's the kind
    of performance-oriented approach that I think is important in
    putting that approach in place. Our goal here is to reduce
    injuries and illnesses, not to see that a block is checked or a
    piece of paper is written, but to reduce injuries and
    illnesses.
        We are increasingly providing compliance assistance
    materials. As a matter of fact, President Clinton--His last
    three budgets to this Congress has proposed dramatic increases
    in assistance to businesses on much more of a percentage
    increase for compliance assistance than enforcement, because we
    are trying to reach out and teach. OSHA would like to be as
    well known for our education as we are for enforcement. We
    believe that is an important way to help reduce injuries and
    illnesses in this country.
        Mr. Pascrell. You would agree, though, that the conclusion
    is going to be much better if we can do this thing together in
    a partnership rather than you come in and tell somebody that.
    We have gotten complaints from one worker, two workers, and
    this is what you need to do.
        The only time you are talking--the only way you are going
    to spend some money is if you are going to make the workplace
    safer. Are you stating that for the record?
        Mr. Jeffress. Mr. Pascrell, yes. The only need for
    employers to invest in safety and health is to protect their
    workers.
        That is what OSHA rules are designed to achieve. We would
    always rather do it in a cooperative manner and a partnership.
    Let me hasten to add, though, that I make no apology for using
    strong enforcement means when it is necessary to get someone's
    attention. But, having gotten someone's attention, the way to
    teach people to work more safely then is through education
    partnerships.
        That is the way we strive to make our workplaces safer.
        Mr. Pascrell. Thank you, Madam Chairman.
        Chairwoman Kelly. Thank you very much, Madam Chair. Mr.
    Manzullo has asked to have one question before we go to vote.
    We have been called to a vote. I am going to allow him to do
    that, because I think he has other things he has to do.
        Mr. Manzullo. Thank you. I really appreciate your coming to
    my district.
        The purpose of that was to show you that the plants were
    quite capable in solving their own problems, which OSHA can do
    based upon, you said, 11 pages. These are the 600 pages of
    regulations and instructions regarding ergonomics in the
    Federal Register.
        My question is this. My brother has a restaurant, and this
    is how you wash dishes. Somebody there comes in. This is how
    you scrub pots, and, if somebody develops an injury there, how
    are you going to stop that injury? He does not have an
    automatic dishwasher.
        Mr. Jeffress. I am going to say that my children tell me
    that the dishwashers are far superior.
        Mr. Manzullo. But it costs about $40,000. He can't afford
    it. How is he going to solve that problem? Tell me how you are
    going to solve it.
        Mr. Jeffress. We are going to solve the problem of
    dishwashers. Has he had dishwashers with repetitive motion
    injuries?
        Mr. Manzullo. He has not had that, because they come and
    go, but sometimes his dishwashers are there for periods of
    time.
        Mr. Jeffress. If he has not had an injury, this standard is
    not going to trigger anything.
        Mr. Manzullo. What happens if he has an injury?
        Mr. Jeffress. If he has an injury, he has to look at what
    is there in that job that can be fixed.
        Mr. Manzullo. How does he fix that? It is a simple
    question.
        Mr. Jeffress. Until someone is hurt, there is no
    requirement to do anything and for years he has operated that
    restaurant and had no one hurt.
        Let's not hypothesize it. That solves a problem that
    doesn't exist.
        Mr. Manzullo. This standard that federalizes workers'
    compensation laws and encourages lawsuits. It is a very simple
    question. What happens when a person reports an injury because
    of washing dishes? A very simple question, the type of
    questions that at least 900,000 businesses are going to have to
    ask, because they are required to have a plan.
        How do you stop that type of injury?
        Mr. Jeffress. I think what Mr. Pascrell pointed out is the
    guidance we are trying to use is let's solve real problems.
        This man has never had an injury. There is no problem to
    solve.
        Mr. Manzullo. What it amounts to is you can't stop that
    type of injury. It is an issue of an injury that will occur,
    and you can't fix that type of injury.
        Mr. Jeffress. It is not an injury, Mr. Manzullo. When there
    is an injury, we have to work with them to solve that.
        Chairwoman Kelly. Mr. Jeffress, if I may ask, we are going
    to have to leave, because we have to go to this vote. Just
    hypothesize. If there were an injury. I think that is really
    what Mr. Manzullo was asking. If there were such an injury, how
    would you, under this new rule, tell someone--that restaurant
    owner--to fix it?
        Mr. Jeffress. Anytime someone is hurt by an MSD, what we
    would expect is for that employer to look at what are the risk
    factors in this job that have caused that injury. If there are
    risk factors in the job that are causing an injury, they would
    need to be addressed.
        Chairwoman Kelly. How would you address them is really what
    Mr. Manzullo is asking.
        Mr. Jeffress. At this point, Madam Chairman, the
    hypothetical example has no injury.
        Chairwoman Kelly. I asked you to suggest by saying--let's
    have a hypothetical. Let's suggest that there are injuries like
    that. What would you do?
        What he is trying to point out is, I believe, that the lack
    of flexibility, the lack of real defined solutions for
    businesses to follow may lead us all into a swamp that we don't
    want to get into.
        We want to protect those workers. We just don't want to get
    into the swamp.
        Mr. Jeffress. The whole purpose of this standard is to
    address real problems, because there are real people out there.
    There's 600,000 people every year suffering injuries in these
    jobs, losing time from work, that need help. There is no
    injury. We are not trying to solve hypothetical problems. We
    are trying to solve real problems.
        Mr. Pascrell. Madam Chair, we are trying to abate a
    situation, not be prosecutorial to the witness.
        Mr. Manzullo. Come on. We want an answer.
        Mr. Pascrell. Madam Chair, I have the floor. Number two.
        I would think, in that situation, which is a legitimate
    situation that you put forth, that the people whose business it
    is would come up with some kind of a plan.
        Mr. Manzullo. What is the plan?
        Mr. Pascrell. I don't know what the plan is. Maybe they
    become ambidextrous at knowing how to wash the dishes. The
    point is that they would come up with the plan, not OSHA, and I
    think we should keep this in mind as we move along.
        Chairwoman Kelly. With that, I am going to take a brief--we
    are going to have a ten-minute break here, so we can go and
    vote. We'll be back.
        [Recess.]
        Chairwoman Kelly. I am going to call the committee back to
    order here.
        In the absence of Mr. Pascrell who had the floor, I am
    going to go ahead, Mr. Jeffress, and ask a few of the other
    questions I had.
        One of our panelists raises the issue of pre-existing
    conditions and conditions that are unrelated to work. That is
    one of the serious things that I think we must consider with
    this rule before the rule is finalized. How do you address
    these?
        Mr. Jeffress. It is very important to us that this proposal
    be read as addressing work-related problems. The rule is
    designed to only be triggered if there is a work-related
    musculoskeletal disorder.
        The issue of things that happen off the job, have been
    happening for years. Employers have had to make decisions ever
    since workers' compensation has been in place about whether
    injuries are work-related or not.
        This rule doesn't change that. This proposal doesn't change
    what is considered work-related or not considered work-related.
    So, the decision that employers have been making for years for
    workers' compensation purposes about whether things are work-
    related is the same type of decision they will have to make in
    the future.
        So, the rule is only intended to address work-related
    injuries. It is not intended to address things that are not
    work-related, and I share your view that we need to draw a
    sharp line there and assure that people read this as only
    applying to injuries that occur in the work environment.
        Chairwoman Kelly. That I understand. My concern is how does
    an employer know. You probably know if you have listened to any
    kind of testimony from this committee that I am a small
    businesswoman. My kids, my husband, we are all small
    businesspeople.
        I know that, upon occasion, and my husband is a building
    contractor and folks take the tools that he has provided them
    and the safety things he has provided them, and they will work
    for him five days a week. But, then, they have their own
    sideline job, and they will go out on the weekend and do their
    own job for themselves. They may injure themselves on that
    weekend job, come back on the job, work a couple of hours for
    my husband, and say. Oops, sorry, I hurt my back. How is my
    husband to know, because it is a work-related injury. It's just
    not my husband's problem. It is their own problem, because they
    worked out on their own.
        Mr. Jeffress. My point, Madam Chair, is that this rule
    doesn't affect that. This rule makes no changes in that. He has
    that problem today. He will have that problem tomorrow. This
    rule won't solve that problem or make it worse.
        To make that determination as something work-related--did
    it occur on my job or did it occur on somebody else's job--what
    you have been doing and your husband has been doing in the past
    you will keep doing.
        You'll look at, what kind of injury does this person have.
    That person recently has gotten that injury on my job. Is there
    something on my job that is likely to cause these types of
    injuries? Are there other things this person was doing that I
    know of outside of work that might have contributed to the kind
    or caused the kind of injury this person has? Those are the
    kinds of questions that I presume you have been asking in the
    past, that you will keep asking in the future.
        This proposal doesn't add to or reduce that requirement or
    change the way in which you would do that.
        Chairwoman Kelly. Let me just rephrase this then. Let me
    just take it one step further.
        If the thing goes that far, my husband has got a workmen's
    comp board to take this thing to. But, with this new rule,
    someone could come in from OSHA and assess a fine and tell my
    husband he has to pay this person who injured himself, not on
    my husband's job. While all of this is being tracked, my
    husband has to pay 90 percent of the salary. If he is a union
    person, that would include stamps and benefits and vacation,
    and all the rest of the stuff that is built into a union-paid
    person.
        My concern is that that takes money out of the income
    stream for my husband's business. He is going to have to pay
    that person the money, and suppose the adjudication goes
    against the worker, because people are honest finally and they
    find that the worker injured himself on another job. The worker
    then has to pay my husband back. The chances of my husband
    getting paid back are probably nil.
        You know that. This is the swamp I am talking about. This
    is such a gray area here. There's a heck of a lot of people
    like my husband out there. Not just building contractors but
    lots of other people.
        I don't want to see them hurt. I want that worker to be
    safe.
        When they are on my job, my son will go along to the
    business and make sure that they've got their goggles on, they
    are wearing their boots, they are doing whatever they have to
    do to put their safety clips on. Things like that.
        But, if they are out there working for themselves, even
    though that equipment is in the trunk of their car, they won't
    put it on for themselves, because they don't want to. It is an
    inconvenience, so you've got a real messy situation.
        That swamp is out there, and I just simply want to call to
    your attention that that is there. I think that is what the
    crux is of a lot of the testimony we are going to here today
    from the small businesspeople here.
        I am just simply concerned that you stop, you think, and
    you address this kind of a situation, because that will take
    from the bottom line of a business profitability, I can tell
    you from my own experience. Profitability in small businesses
    isn't great. We make some money. We make enough to live on, to
    feed our kids, but I tell you, what we have if we are a small
    businesspeople we plow back into the business. That is the
    nature of the business. So, you need to make sure what you are
    doing doesn't cut into our bottom line.
        Mr. Jeffress. Again, the decision on this is whether
    something triggers the standard goes back to the employer's
    determination. The employer makes that determination if there
    is some uncertainty.
        The employer--many employers do, and I suspect you do on
    occasion use a physician that you have confidence in to make a
    determination about the injury. The employer in this standard
    can rely on the determination of the physician that the
    employer has chosen in deciding whether this is work-related.
        There are many other OSHA standards where the possibility
    exists for OSHA compliance officers to second-guess employers.
    We try not to do that. There has been a suggestion in the
    rulemaking hearing that there be some appeal mechanism--some
    way of determining whether something is work-related, some
    physician review, if you will, rather than relying just on an
    employer's determination or just on one physician's
    determination.
        We are open to that. We will be exploring that. Again, the
    purpose of the hearing is, where there are difficulties
    presented, if people can come forward with solutions that will
    help us to improve the standard, we will do that.
        Chairwoman Kelly. I just want to say there is no question,
    in the example I gave you, that the injury is work-related. It
    is just not on my job. That is the problem, and I don't know
    how we would work our way out of it. It is a real sticky-wicket
    right now. I am just afraid this is going to make it worse.
        We want people protected, but I just want to make sure
    that, if there is an injury, that we are able to ascertain
    where that injury came from--it didn't come from somebody going
    off and playing rugby on the weekend and coming back on the
    job.
        Again, I am going to hold my questions, and I am going to
    go to Mr. Thune.
        Mr. Thune. Thank you, Madam Chair. Let me just say that I
    appreciate your objective and your goal of workplace safety.
        That is something that we are all interested in here. We
    are obviously also very concerned about how to achieve that in
    a way that minimizes the disruption on, particularly, the small
    business sector, and I represent a state which has a large
    number of small businesses.
        They are all small businesses, with a couple of exceptions,
    and farmers and ranchers. We are very much concerned about the
    impact this is going to have on them.
        I guess, from just my observation--and, granted, it is not
    an in-depth one--but the vagaries that are involved here are
    going to impose a tremendous burden on a lot of small
    businesses in trying to determine compliance.
        You have indicated that small businesses of fewer than ten
    employees are going to be exempted from the recordkeeping
    requirement. But, it would appear to me, that they are going to
    have to do something. If an inspector comes by, they are going
    to have to do a whole lot of recordkeeping to ensure that, when
    that inspector comes by, that they can prove that they are in
    compliance. It would be a smart business practice, I would
    expect--and I would expect most small businesses--to have very
    strong concerns that, if, in fact, they are audited at some
    point, that they are in compliance and are, therefore, going to
    be subject to a lot of the recordkeeping requirements, in any
    case.
        I am just curious what provisions you would contemplate in
    a rule that would assist those small businesses in complying
    with the standard.
        Mr. Jeffress. The kind of assistance that we expect to
    provide are, again, publications of actual solutions that have
    worked for different businesses.
        The Internet-based programs that people can call up and
    inquire about the hazards that apply to their businesses and
    what solutions have been used.
        For smaller employers, my first recommendation is always
    the free, on-site consultation that is available. It is funded
    by OSHA and available through state agencies--usually state
    labor departments--whereby, if an employer wants assistance,
    they can invite a consultant to come in. The consultant charges
    no fees. There are no penalties for anything the consultant
    finds. The consultant is expected to help the employer identify
    what the hazards are and what some solutions are to fix those
    hazards. There are 25,000 of those consultations done across
    the country every year. The President has asked for more money
    to increase the consultation staff so we can do even more of
    those in the future. That would be my first suggestion to the
    business that has a problem.
        If they don't have a problem, obviously, there is no need
    to ask for assistance. But, if they have a problem or think
    they have a problem, we can provide free, on-site assistance.
        We will provide assistance through our publications. I
    would also encourage people to use their trade associations.
    The National Federation of Independent Business has something
    on their Web site about ergonomics and what you should do as a
    small business. If you think you have a problem and want to
    address the kinds of problems you have, these kinds of
    reference materials are available not only from the government
    but from trade associations and other people to assist small
    businesses to resolve their problems.
        Mr. Thune. In the proposed standard, you exempt
    construction, ag, and maritime. My assumption is, at some
    point, you are going to have some sort of standard that will
    apply to those industries.
        I guess I am wondering what kind of a standard you might be
    recommending for agriculture, for construction? What basis and
    scientific data would you use for that recommendation?
        Mr. Jeffress. The types of MSDs that are occurring in
    maritime and construction and agriculture are not terribly
    different from the MSDs that are occurring other places. So, in
    terms of the injuries and the health effects of the science, if
    you will, of the MSDs, I think that is pretty well documented.
    What is less well documented is what solutions will work in
    those different applications.
        With respect to construction, we have asked the
    Construction Advisory Committee of OSHA, that has employers and
    employees on it, to look at what solutions work, to help
    identify solutions, to document solutions that resolve the
    hazards in the construction industry. Any movement forward on
    our part will depend upon the kind of recommendations that we
    get from that Advisory Committee, the kinds of solutions that
    are documented there.
        With respect to maritime, there is also a Maritime Advisory
    Committee for the National Institute of Occupational Safety and
    Health. It also has a two-year study on the way, particularly
    to address what kind of solutions work in the maritime
    industry. So, what kind of action OSHA takes in moving forward
    there would be based on the specific documentation of solutions
    that work in that industry.
        At present, we don't have anything going forward addressing
    solutions in agriculture. That would be an area that the same
    kind of work would have to be done on.
        Mr. Thune. I assume that, if, in fact, you got to that
    point where you were going to propose some regulation, that you
    would also seek input from those who are in the business of
    agriculture. There are a lot of unique demands on people who
    work in that industry. I would expect that it is going to be
    very difficult, I would think, to ensure that, just from an
    inspection regime, to ensure that compliance is there and that
    the regulations are being applied in a uniform way.
        I am curious to know the comments that you are receiving
    from small businesses. You, I think, mentioned having received
    7000 comments from small businesses already, yet you are
    attempting to implement a rule by January of this next year.
    How can you consider those comments and come up with a good
    rule in that short of a time frame?
        It seems to me, at least, that the period for a
    consultation and input from small businesses are being
    overlooked in terms of what it is going to take to fashion
    something or craft something that takes into consideration all
    the unique dynamics of the various businesses. How do you apply
    this in a uniform way, and how do you eliminate some of the
    vagaries that are associated with this?
        Mr. Jeffress. Prior to ever issuing the proposal, as I
    mentioned earlier, we had years of meetings with businesses and
    input from businesses and employees on what types of programs
    work, what kinds of solutions work.
        Then, prior to issuing the proposal, we published a draft
    and had the SBREFA process where we had 21 representatives of
    small businesses. It had the Small Business Administration
    involved and the Office of Management and Budget involved in
    looking at, given our draft proposal, what kind of impact that
    would have on small businesses. That process ran for two months
    where there was an intense review by small business
    representatives of what had been proposed, and comments
    following that process. As I say, we modified our proposal in
    several ways based on the input we got from small businesses.
        Now, by March of this year, as you point out, we had 7000
    comments total from small and large businesses and employee
    groups, and others. From March through May, we will be taking
    oral testimony and then 90 more days of written comments from
    people who participated in the hearings. That gives us a long
    time between March and the end of the year to analyze those
    comments to look at the suggestions for improvements that are
    made and make modifications to our proposal before it becomes
    final.
        Mr. Thune. Your assessment right now as to cost, I
    understand, is escalated. It is up toabout, what, $4-plus
    billion?
        Mr. Jeffress. 4.2.
        Mr. Thune. A lot of the trade associations, I think, are
    suggesting it is going to be much higher than that. You know,
    it just seems to me that, in going through this process, that
    the cost that is going to be imposed on, particularly, the
    smallest of businesses is going to be excessive enough that it
    is going to drive a lot of them out of business.
        I would hope that we could find a way that would, again,
    accommodate some of the unique dynamics of businesses--in my
    case, really small businesses--who are going to be hardest hit
    by this.
        We are going to hear from a lot of groups today, I think,
    large and small. We are going to talk about the financial and
    economic burden that is going to be imposed and the issues
    about, again, the vague nature of the regulation. How are you
    going to apply it in a uniform or equal way? I just think there
    are a lot of questions that are still unanswered. I think that
    it is something that we are going to need more time to deal
    with.
        It seems to me, at least, that the timeframe that is being
    imposed here, even though I know you said that you've got ample
    time to do it, is inadequate for the task that we have at hand.
        But, I see my time is up, Madam Chair, so I will yield back
    to you.
        Chairwoman Kelly. Mr. Thune, just so you know, I am going
    to hold the record open. If you have additional questions that
    you would like to submit, or if you would like to just stay and
    we have some more time, I will be glad to accommodate you with
    those. We will hold the record open for five days following the
    hearing.
        Mr. Jeffress. Madam Chair, I will be happy to respond to
    some of the questions if you would like me to.
        As you pointed out, Mr. Thune, OSHA did listen to the kind
    of comments that we got through the SBREFA process and revised
    our economic assumptions and did almost double the cost
    estimate that we proposed for this rule. During the hearings,
    we will hear, as you have already seen from other associations,
    other employers, about costs. We will also look at those
    assumptions, and, where we find that there is validity to them,
    we will, in fact, revise our economic assumptions.
        But, I would hasten to point out to you that many of the
    assumptions that we have looked at so far are suggesting that
    there have been some fallacies in some of the reports that are
    out there. For instance, the Food Distributors International
    study that projected a $26 billion cost for their industry
    proposed that, in order to implement ergonomics programs, their
    industry would suffer a 25 percent decrease in productivity,
    that they would have more people doing the same jobs, and that
    the ergonomics programs would decrease productivity.
        In fact, they didn't cite a single employer that put in an
    ergonomics program in place that had decreased productivity.
    When we looked at employers in this industry, in fact,
    productivity increases.
        If you look at Sysco Food Systems of Houston that put
    ergonomics programs in place in their place of business
    following an OSHA citation and action by the company there,
    they achieved a 70-some percent reduction in injuries and
    illnesses, a savings in money, and an increase in productivity.
    I think what you will find is that, when people put these
    ergonomics programs in place, that, rather than decreasing
    productivity as food distributors have projected, there will be
    increases in productivity. Certain businesses, Dayco that I
    visited in North Aurora had a significant increase in
    productivity when they revised their lines.
        I think the same thing is going to be true of other
    studies, that we will find assumptions that we question. For
    instance, the American Meat Institute--They said that our
    estimate of costs for business was very low. They thought their
    costs should have been ten times what we estimated for
    business. When we looked at the assumptions in the study, we
    had based our costs on a 17-person business--a small business,
    if you will. They had based their costs on a 150-person
    business, a business almost ten times as large. Their costs
    were eight to ten times higher. Not particularly surprising,
    given the size of the business that was being analyzed.
        So, we will go behind just the numbers and look at the
    assumptions, and, where the assumptions will improve ours or
    give better estimates than our estimates, we will make
    modifications, as we demonstrated with the SBREFA process. But,
    where the assumptions are based on misunderstandings or based
    on fallacious assumptions, we will talk about those, analyze
    those, and give our comments back so that people understand why
    we didn't accept their suggestions.
        Mr. Thune. If I might, Madam Chair, I would just say to
    that I think I am sure that we will hear, too, from groups,
    that there is a lot of anecdotal evidence out there about the
    impact that these sorts of things have and, again, I would say
    because some of the stuff comes to our attention in our state.
        Primarily, we deal with small businesses, but we had one
    that came to our attention here recently. There was a
    regulation. The city had a gravel pit north of town from which
    they were going to get gravel. It was above ground, but,
    because it was a gravel pile, it was considered to be under the
    mining wing, or whatever, of OSHA. Therefore, they had to put
    in a porta-pottie out there eight miles north of town, which
    the guy never used, at a substantial cost and also had to train
    him in CPR even though it was one person, so, if he ever had to
    administer CPR on himself----
        [Laughter.]
        Mr. Thune. My point is that there are a lot of
    circumstances where you are talking about small business
    situations that I don't think fit very well within the
    parameters of a lot of the rules that are fashioned here in
    Washington.
        But, thank you.
        Chairwoman Kelly. Thanks, Mr. Thune. Mr. Moore.
        Mr. Moore. Thank you, Madam Chair. You kind of described
    the rulemaking process here, the proposed rule, and the fact
    that there are hearings coming up over the next several weeks
    and months, and that further consideration will be given to
    information you receive during those hearings.
        I guess my question to you is can you give any assurance to
    people who may wish to testify at those hearings that, in fact,
    they are not wasting their time, that, in fact, consideration
    will be given to any good points that are raised that have
    merit during those hearings, and that OSHA would be willing to
    further amend these proposed rules if meritorious information
    comes to your attention?
        Mr. Jeffress. I think OSHA has a history of taking
    seriously what is said at hearings on OSHA rules since the
    first rulemaking we have done.
        If we look at the previous hearings that OSHA has done, the
    final rule that comes out during those hearings is usually
    modified, sometimes significantly, by the kind of information
    that comes in at the hearing. I can look back at virtually
    every rule that I can remember in OSHA's history and think
    about the changes that have been made to those rules following
    the comments that people provided at hearings.
        So far, in this rule, as a result of the SBREFA process, we
    have made modifications. We have put in a quick fix provision.
    We have put in an incremental fix exception. We clarified work-
    relatedness. We changed our economic assumptions. So, I think
    we have a history of accommodating good suggestions and
    recommendations when they come in. I can assure you, and as for
    the people who have come to these hearings, that we will
    continue that process. We will take their advice to improve
    this rule and put it in place.
        Mr. Moore. I heard you mention the quick fix, and I didn't
    hear all of your testimony, but I have reviewed briefly your
    written testimony here. What other kinds of accommodations, if
    any, does OSHA have to work with small businesses, especially
    to secure compliance and not just impose punishment for
    violations?
        Mr. Jeffress. First, there are a couple of other things in
    the rule.
        One I should mention is the incremental fix. When people
    read this the first time, they felt, well, I've got to put a
    whole program in place and do everything that is feasible right
    away. We clarified that by saying. No, no. You've got a
    problem. You have a fix that you think works, put that fix in
    place. Only if that fix doesn't work do you then go on and put
    more and more fixes in place.
        So, we tried to clarify that incremental fix. Even should
    we adopt this final rule and find some employer who is not in
    compliance, the way OSHA procedures work, if it is a small
    business, should there be a penalty, small business is eligible
    for up to a 60 percent reduction in any penalties simply based
    on the size of the business. If they haven't had previous
    problems with OSHA, they are eligible for another ten percent
    reduction. If they are acting in good faith, they are eligible
    for another 25 percent reduction. So, in terms of a small
    business that is trying to do the right thing, even should
    there be a violation and that would be a violation that could
    hurt someone, the small business would be eligible for up to 95
    percent reduction in any penalties that are out there. So, we
    did go to significant efforts to try to recognize good faith,
    to try to give small businesses credit for what they do to make
    their workplaces safe.
        Mr. Moore. Mr. Thune asked the question and made reference
    to a situation back in his district involving an employer with
    one employee and a remote job site. You heard that. It was kind
    of humorous the way he asked the question. Even you laughed.
    But, seriously--and he does have a good point here, I think,
    and I want to ask the question this way. If the situation is as
    Mr. Thune has described, how can an employer be expected to
    comply with some of these OSHA requirements, that they are not
    the violations or noncompliance?
        Mr. Jeffress. The example he gave where somebody had to be
    trained in CPR, even though there was no other employee to be
    administered CPR to, OSHA would never cite in that situation. I
    would be happy to be corrected if someone has a citation. But,
    I believe that kind of hypothesis is not something that we
    would cite.
        Is the rule written such that it would suggest to someone
    that they should give that person CPR training? It may well be.
    It may well be something that we would have to rely on the
    discretion of the compliance officer or the area director to
    exercise good judgment in that situation. That is always a
    defense that the employer has in terms of any citation or
    potential citation by OSHA is what is feasible for that
    employer to do.
        Mr. Moore. What kind of paperwork requirements will there
    be, especially for small employers?
        Mr. Jeffress. For small employers under ten, there is a
    specific exemption from recordkeeping. So, there would be no
    paperwork requirements at all. In terms of an employer, as Mr.
    Thune was suggesting, just out of habit or in order to defend
    themselves, they might want to keep some paper. As I have
    talked to employers about what they do when they put solutions
    in place, first, they have a record of the injury--that someone
    was injured. They have to have it for workers' compensation
    purposes as well as in OSHA 200 logs if they are an industry
    that requires them to keep those logs. So, that requirement is
    there. If they put in a fix, then they have some record of what
    they paid to buy the part or to make the change to put that fix
    in place. So, there is no new record that would be required in
    order to show--you know--you had somebody hurt and they show
    what they did to fix the problem.
        We are not talking about generating new records here. There
    is a requirement that people do a job hazard analysis if there
    is a hazard at a job that is hurting someone as to how they
    determine what is going to be fixed. In talking with employers
    about that, most employers, if someone is hurt, they do write
    up what caused the accident. In that write-up, they frequently
    identify what the cause was. That write-up could suffice as a
    job hazard analysis. So, we are trying to go to lengths to
    assure that there's not extra paperwork required. These are
    things the prudent employer would otherwise be doing.
        Mr. Moore. Thank you, Mr. Jeffress. Thank you, Madam Chair.
        Chairwoman Kelly. Thank you, Mr. Moore. Mr. Jeffress, you
    raised a question in my mind.
        It is not clear to me, if there is a fine determination,
    who makes the determination about the reduction in the fine?
    The same person that assessed the fine?
        Mr. Jeffress. There is a formula that is in our manual for
    compliance officers that specifies employers of what size, a
    given size, what amount of reduction they have. In terms of
    history, if there have been no serious violations in the past
    three years, there is an automatic ten percent. In terms of
    good faith, the compliance officer doing that assessment, there
    is a formula that is in our manual that the compliance officer
    follows. The area director, of course, ultimately signs off on
    the citations.
        Chairwoman Kelly. But the compliance officers themselves
    are responsible for making those reductions in the fine.
        Mr. Jeffress. Again, the compliance officer is responsible
    for the reductions automatic for size. It is automatic for
    history. The good faith is an assessment of the compliance
    officer, approved by the area director.
        Chairwoman Kelly. That sounds like you have got that fairly
    well defined. It is fairly well laid out. It is an automatic
    process, and I think that is part of what I have my problem
    with.
        This ergonomics rule is that there are a lot of things in
    that that aren't laid out as thoroughly. I wish we could get
    them laid out. I've got a couple of questions that I wanted to
    go back to.
        In your testimony, you cite the Enid Memorial Hospital.
    They have an ergonomics program. I am wondering if you would
    supply the committee with a copy of that program. Could you do
    that for us?
        Mr. Jeffress. I'll be happy to give you the information we
    have from Enid.
        Chairwoman Kelly. You state that the program cut work-
    related injuries by 75 percent. Seventy-five percent to me
    means, if you had four people injured, you now have three
    people who aren't. I really would like to see some hard
    numbers, not percentages. I started life as a research
    scientist, and I have to tell you I early on learned how you
    can play with the percentages. I would sure like to see some
    hard numbers on some of this testimony that you provided.
        Mr. Jeffress. There are numbers available. I would cite the
    Xerox Corporation plant in New York submitted information to
    the ergonomics hearing. They document what they spent on their
    ergonomics solutions. Within Xerox, they spent $3.4 million.
    They also document their savings as a result of those
    solutions. The savings they document are over $7 million. That
    kind of data is available. We'll be happy to provide it to you.
        Chairwoman Kelly. I think that is wonderful for Xerox, but,
    you know, if you talk about somebody who is a small business,
    you are talking about people with not that many employees. It
    is going to be harder for us to document it. So, if the Enid
    Memorial Hospital has some figures and they are, in fact, a
    small business, I think it would be good for us to see them.
        I want to say that this is probably the sign of a
    compulsive or a sick mind, or something. I went to a Washington
    Capitols hockey game the other day, and I really had a good
    time. But, I have to tell you I was sitting there looking at
    the hockey players on the ice, and I was wondering whether or
    not the ergonomic standard is going to cover them. If so, then
    what happens to our hockey games? You can translate that to any
    other major sport--baseball. People get hit with balls. They
    get hit with bats. What about the stickwork on a hockey game? I
    mean, how is this going to affect something like our
    professional sports?
        Mr. Jeffress. As you point out, the injuries in our
    professional sports are not related just to ergonomics. There
    are lots of other problems in professional sports as well.
        I had to address this in North Carolina when I ran a
    program down there with some of our minor league teams, when
    they showed up as having high rates of injuries, and wondered
    what they should do about it.
        OSHA wondered what we should do about it. But, in going out
    and visiting with the sports teams, we discovered that those
    people who were suffering the injuries all had contracts, were
    independent contractors and not employees, so OSHA had no
    jurisdiction. [Laughter.]
        Chairwoman Kelly. I have just been told by counsel that NHL
    players are, in fact, employees.
        Mr. Jeffress. We may well have to look at that.
        Chairwoman Kelly. And they do have MSDs, and you are going
    to affect them. I am not going to be happy if you do something
    to the Washington Capitols.
        Mr. Jeffress. Perhaps we could help them.
        Chairwoman Kelly. Bill is talking about the Devils up here,
    and there's a few other teams from New York we like. But, this,
    again, is a parameter that I wonder if you have actually
    thought through in terms of this rule.
        Mr. Jeffress. In terms of professional sports teams, as I
    say, our general approach to them has been that they are not
    employees that we address. To the extent that we get complaints
    and folks want help or there are things we can do, we will be
    happy to provide assistance to anyone who asks for our
    assistance.
        But, in targeting workplaces for inspection and where OSHA
    focuses our inspection resources, we look at those workplaces
    with the highest injury and illness rates. We have focused our
    inspections on those plants and those businesses where we think
    we can make a difference in reducing injuries and illnesses. I
    think you would be happy with the way we are focusing our
    inspections and reaching those employers with the highest
    rates, where people are being hurt and losing time from the
    job.
        Chairwoman Kelly. Somewhere in my background and some of
    the schooling I have had, it included some Constitutional law.
    I would submit to you that you've got to put together a rule
    that applies to everybody equally, so you cannot exclude my
    hockey players from your rule.
        Mr. Jeffress. I haven't suggested doing that, but I would
    point out, Madam Chair, that we have excluded construction and
    agriculture and maritime. There is good reasons for us to apply
    rules as necessary where they are needed.
        Chairwoman Kelly. You are going to give them a buy on a
    compliance with the standard?
        Mr. Jeffress. No, construction, agriculture, and maritime
    we will come back to and look at when we have more information
    on those.
        Chairwoman Kelly. I am still going back. This is hitting--I
    mean, we are going perhaps too far for it. But, the hockey team
    is going to have to comply. You put this rule in place. The
    hockey team is going to have to comply, and I think that-- I am
    concerned about your rushing into something that you haven't
    got all of the pieces put together on.
        Let me just ask. In another part of your testimony, you
    mentioned Sysco Foods.
        Mr. Jeffress. Of Houston. Sysco is a franchise.
        Chairwoman Kelly. How large is that group?
        Mr. Jeffress. Again, it is just a Houston distributor that
    I was talking about. It is probably still a relatively large
    employer with hundreds of employees.
        Chairwoman Kelly. So that really doesn't affect our small
    business concerns?
        Mr. Jeffress. The larger businesses keep the records and
    can document their cases better, as somebody pointed out. So, a
    lot of information we have on costs comes from larger
    businesses. But, in terms of the solutions, the solutions are
    just as effective in small businesses as they are in larger
    businesses.
        Chairwoman Kelly. Do you have any records on the cost from
    small businesses? Do you have any estimates of what it is going
    to cost, and can you provide them to this committee?
        Mr. Jeffress. Yes, in producing our estimates of the costs,
    we did stratify by certain sizes of businesses. We did surveys
    at businesses to ascertain the costs. Much of it is in our
    economic analysis. We have surveyed over 300 different
    industries. We can provide you that economic analysis, that
    kind of information, if you would like.
        [Information may be found in appendix.]
        Chairwoman Kelly. On page eight of your testimony, you
    state that OSHA allows the hearing participants to question
    each other in the hearings that you hold. I think that is
    really very fair and probably a very productive exchange. I am
    wondering if you would allow the panelists that we have
    following you to question you.
        Mr. Jeffress. You always do a very effective job of
    questioning me.
        We have submitted the OSHA panel to two days of questioning
    on this rule, and we were happy to provide that. We then had
    experts provide it by OSHA on the area of ergonomics. Each of
    those experts was subjected to questioning and the public who
    wanted to question, including most of the organizations
    represented in this room, I suspect, had people there to
    question the OSHA panel and the experts provided. So, there has
    been a fair amount of give and take in answering by OSHA the
    questions.
        I don't have the time today to sit down and respond to
    those questions, but I assure you that, letter after letter
    after letter, we are responding to many of the questions that
    people have been asking.
        Chairwoman Kelly. And you will continue to do that, I hope?
        Mr. Jeffress. Yes, ma'am, we will.
        Chairwoman Kelly. I misspoke before when I said I would
    hold the hearing open for five days.
        I intend to hold it open, actually, for 14 days, so I want
    to make sure people do have a chance, that I have a chance to
    submit more questions to you.
        Will you have some staff that will stay here, though, to
    hear some of these folks?
        Mr. Jeffress. Yes, there are four people from the Labor
    Department who will be here to listen to the rest of the
    panelists.
        Chairwoman Kelly. On page ten of your testimony, you state
    that ergonomics programs need not cover all jobs in the
    workplace.
        Now, this is one of the things that I find troubling about
    what you said. You say nor are all MSDs covered, just those
    caused by a core element of an employee's job. Who decides,
    because this is very, very loose language? Who is going to
    decide these standards? You don't have descriptive guidelines
    for every single job.
        We keep inventing new jobs, because we are small
    businesses, and we are entrepreneurs and we keep coming up with
    new jobs. So, you can't do it that way. So, who is going to
    decide which MSDs are going to be covered when an inspector
    comes in? 1Who is going to decide that an MSD is, in fact,
    caused by a core element of the job?
        Mr. Jeffress. The employer decides whether it is a covered
    MSD or not, and the employer decides is there a core element of
    this job that caused this. The employer decides what kind of
    fix to put in place to respond to the hazard.
        Chairwoman Kelly. I have one last question I am going to
    ask. One of the small businessmen who is here today is going to
    testify that repeated trauma injuries are down among all
    industries in the United States by 24 percent since 1994,
    without any legislation, without any regulation.
        That has just happened. How do you explain that?
        Mr. Jeffress. Overall, injuries and illnesses are down by
    24 percent.
        MSDs are, in fact, down, as well. The last number I saw was
    17 percent. But, injuries and illnesses are down overall, and
    MSDs are down overall, but MSDs are not going down at any
    faster rate than injuries and illnesses all together. They
    remain a third of all injuries and illnesses and the single
    biggest cause of injuries and illnesses. There are still
    600,000 Americans every year losing time from the job because
    of these injuries and illnesses. I am delighted that the rate,
    after going up at a 30- or 40-degree angle for eight or nine
    years, has, the last three years, started to come down. That is
    a sign that things are improving. As I say, injuries and
    illnesses over the last six years have been coming down. But,
    the fact is there are hundreds of thousands of Americans being
    hurt.
        The fact that there are only 30 percent of American
    businesses that have ergonomics programs out there right now
    suggests to us that there remains a need for this rule.
        Chairwoman Kelly. Thank you very much, Mr. Jeffress.
    There's obviously a lot more questions I will have, but I
    appreciate very much your patience with being here as long as
    you have.
        I thank you very much, and I am now going to go to the
    second panel.
        Mr. Jeffress. Let me just ask you to tell Mr. Manzullo we
    have got an ergonomist to come to work with him on his
    dishwashing problem. Thank you, Madam Chair.
        [Pause.]
        Chairwoman Kelly. The second panel is made up of five small
    business owners who are going to testify about their operations
    and how the proposed standard will affect them, what
    information they really need, an ergonomic standard to protect
    their employees.
        I am very glad that Mr. Jeffress has some staff here to
    stay and listen to the testimony in both the second and the
    third panel.
        With that, we are going to begin with Ms. Laura
    O'Shaughnessy.
        Ms. O'Shaughnessy is here on behalf of the Revere Copper
    Products. Ms. O'Shaughnessy has a very impressive bio, and I am
    very happy to have you speak here today. Ms. O'Shaughnessy, if
    you would like to begin, please, feel free to do so.

      STATEMENT OF MS. LAURA O'SHAUGHNESSY, REVERE COPPER PRODUCTS

        Ms. O'Shaughnessy. Thank you for inviting me to speak here
    on behalf of small businesses, particularly for Revere and the
    National Association of Manufacturers. The National Association
    represents 14,000 manufacturers, of which more than 10,000 are
    small businesses. Small manufacturers specifically are affected
    by this, as we have been discussing this morning.
        I would like to illustrate three specific points of the
    difficulties of compliance with this rule--Number one, how
    ambiguous the kind of standard is--the proposed standard;
    Number two, the relative newness of the ergonomics profession;
    and Number three, how the two of these affect small businesses,
    in general, and Revere in particular.
        Safety--Just to give you a little background on me and why
    I have the place to speak as I do--has been the main focus of
    my professional career and my academic career. I have a
    Master's in Engineering based on human factors engineering and
    consider myself a safety advocate and ergonomist. I could have
    at one point been working with Mr. Jeffress and OSHA, and I
    considered that.
        But, instead of doing that, I found that I had the skills
    to take the theory and put it into practice and, by doing so,
    apply those principles of ergonomics and safety into an
    effective manner in protecting the worker and consumers. I have
    done that through various companies and now through my work at
    Revere as a corporate secretary and a board member. I am able
    to do it there, and I also volunteer for child safety, and I am
    a mother. So, I am very interested in safety and ergonomics all
    over.
        I am not an opponent of standards and regulations. Not at
    all. I work to write them. I have worked to improve them. I
    have been in charge of enforcing them at different companies,
    and I think they do have a place. However, all of the standards
    with which I have worked have one thing in common. They are
    based on something that is measurable, something that is
    empirical, some research.
        I remember, back when I was in graduate school, I was
    working--I think it was H.R. 3160 then. That has been over ten
    years ago. That just illustrates how hard making this
    regulation has been, that ten years ago it was still in draft--
    the proposals.
        It is not very different today. We have not come any
    further on the ability to measure it.
        There are certain risk factors that OSHA asserts, which I
    agree with, by the way, having to do with force, repetition,
    posture, temperature, vibration, rest periods, and so on, which
    bring up the ability to assess risk for a musculoskeletal
    disorder. However, the difference between MSDs, or ergonomics
    problems, and other types of safety issues are the
    measurements.
        I can measure how much is in the air. Mr. Jeffress cited in
    his testimony things like benzene and lead and asbestos. Those
    are very measurable. The risk factors that we discuss for MSDs
    are not necessarily measurable, nor do we have an algorithm
    that can add up the variables associated with all these factors
    to come up with some kind of risk, some kind of measurement of
    the injury, or any kind of costs we have discussed so many
    times, especially with your particular case with construction.
        How do I know where the injury came from? You don't, and
    that is a great problem with this regulation. It is a great
    problem with all safety injuries. You really don't have a way.
    If you can't determine the cause, how can you eliminate that
    cause? That is one of the bigger problems I have with this
    regulation.
        There is one thing, I think, that OSHA is definitely clear
    on, and we all agree on. We want to protect our workers, and
    that can be a problem. I found, just in an industry
    publication--an ergonomics, human factors and ergonomics
    society journal that just came out this month, an article
    entitled Work Organization, Job Stress, and Work-Related
    Musculoskeletal Disorders. Hmmm. It turns out that these three
    authors have come to believe that stress is the primary cause
    of the symptoms associated with many upper extremity work-
    related musculoskeletal disorders. Others disagree. They say
    that in their very first paragraph.
        Now, the interesting thing I would point out besides the
    disagreement in the very first paragraph is that this article
    was submitted in 1993 and has been rewritten three times, and
    just approved in 1999 to be published in 2000. If it takes that
    long for experts to come up with facts, and still the first
    fact that they assert is that there's disagreement, we are in
    trouble.
        Back to the proposed standard. This proposed standard
    leaves an excess of an open-ended burden on the employer not
    only to identify any potential hazard and the cause, but to
    remedy this and create an effective program.
        Unfortunately, what the standard does not do is supply any
    clear program guidelines or any solutions. Employers are left
    guessing what OSHA wants them to do, where they should apply
    any fixes, and which jobs should be addressed.
        This leaves us on the losing end of the musculoskeletal
    disorder battle. Ergonomics is a real puzzle, and I think it
    has been for a long time.
        There is a need for a regulation, but I think it needs a
    lot more work, and specifically it needs some work as far as
    addressing the risks and what the measurement is going to be
    and how to develop a program. A more appropriate arena in which
    to spend funds and allocate resources to address this problem
    is defining quantifiable methods and a clear process, as I say.
        The proposed standard is not without merit, however. An
    ideal standard must do two things. Most importantly, it must
    outline a clear, effective program and elements which, although
    Mr. Jeffress listed six things, the existing OSHA standards
    list almost exactly those same things. We don't have any
    changes in the proposed standard--the elements. It does not
    tell us how to apply them and apply them effectively. Many
    companies haveeffective programs for safety as it is and apply
    those to ergonomic issues. Why add another standard just to increase
    the levels of ambiguity and create a preferential class of injuries?
        Further, this current proposal does not provide a manner to
    create and manage a successful in-house ergonomics program.
    Instead, this standard is going to require employers like
    Revere Copper Products--as higher, costly consultants make
    changes--to make a program that might be a fly-by-night, empty,
    flashy program just in order to meet what their version of the
    standard is--which may not meet what OSHA's auditors believe
    the standard to be.
        Chairwoman Kelly. Ms. O'Shaughnessy, I am sorry, but I am
    going to impose the five-minute rule on the panels, and, if you
    can summarize, it would be helpful.
        Ms. O'Shaughnessy. Certainly. To summarize, my three points
    were the problems with the standard are the ambiguity--current
    level of ambiguity--the newness, and the naivete of the
    ergonomics profession in general--the two of these impacting
    small businesses which do not have the resources to understand
    the regulation and apply them effectively to meet the standard
    and not the imposed fines. Those are my three points. Misspent
    time as well as resources and increased paperwork will limit
    the ability of companies such as Revere to successfully reduce
    these risks.
        Chairwoman Kelly. Would you like to insert the cited
    material into the record?
        Ms. O'Shaughnessy. I don't think that is necessary.
    However, I would like to insert one change to my statement, if
    I may.
        Chairwoman Kelly. We can do that. That is fine.
        Ms. O'Shaughnessy. I think it is very appropriate right
    now.
        It has to do with our mission statement at Revere. I put in
    a shortened mission statement in the interest of reduced
    paperwork, if you will. But, I would like to tell you our
    mission statement is to be the best in the world at what we do
    and have fun doing it. This means using to the fullest extent
    the talent of all Revere people working as a team in a safe--
    that is our most important--environmentally sound and ethical
    manner to achieve absolute customer satisfaction through
    superior quality and reliability.
        Thank you.
        [Ms. O'Shaughnessy's statement may be found in appendix.]
        Chairwoman Kelly. Ms. O'Shaughnessy, we thank you very
    much. Just so you know, the boxes on the table are there
    because they have lights on them. They will be green. When they
    flip up to an orange, that means you have one more minute, and,
    when they go red, that is the end of five minutes. So, for the
    rest of you, I really would like to try to keep within the
    five-minute rule. The hearing is long anyway, and I am just
    trying to move it on. Next, I would like to go to Brian Landon.
    Mr. Landon is the owner of Landon's Car Wash and Laundry in
    Canton, Pennsylvania. He is here for the National Federation of
    Independent Businesses. We are really happy to have you here.
    Thank you for coming.

      STATEMENT OF MR. BRIAN LANDON, OWNER, LANDON'S CAR WASH AND
                     LAUNDRY, CANTON, PENNSYLVANIA

        Mr. Landon. Good afternoon, Madam Chair. Well, as you
    mentioned, my name is Brian Landon. I am owner and operator of
    Landon's Car Wash and Laundry in Canton, Pennsylvania. Besides
    the services part of my business, my business also includes the
    remanufacturing, installation, and service of equipment related
    to the car wash industry.
        I have been a small business owner for almost 25 years.
    Currently, I have three employees--one full time and two part
    time. I am a proud member of the National Federation of
    Independent Business, as you mentioned. With three employees
    and gross sales just over $200,000, I am fairly typical of the
    600,000 NFIB members.
        It is my pleasure to offer comments on OSHA's proposed
    ergonomic standard.
        In opening, I would like to say that I have a strong
    commitment to my employees' safety and health. This is a
    commitment not routed in rules or regulations but in the unique
    relationships that exist in a very small business--
    relationships that come about by working side by side with my
    employees at the car wash, at the laundry, in the shop, and in
    the office, working in an atmosphere where there are no strict
    job descriptions and daily tasks are often shared and traded
    between myself and my employees.
        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 am typical of many very small businesses whose
    employees are family and friends. It is these personal
    relationships, not rules or regulations, that drive my concern
    for their health and safety. I am proud to say that we have
    never had an injury, accident, or health hazard occur at my
    business. The proposed rule ignores these unique
    characteristics of very small businesses.
        As a three-employee business, I don't have a safety and
    health officer. I cannot assign the task required by the rule
    to a management team or a manager, or even one of my employees.
    The full burden would fall on me. This would have a detrimental
    effect on my productivity. It is my productivity on which the
    success of my small business and my employees' jobs depend.
        As always, the overall cost of compliance would fall
    heaviest on my small business and other small businesses like
    mine. The rule does include a recordkeeping exemption for very
    small businesses. This exemption, under the guise of helping
    very small businesses like mine, is a non-exemption, since no
    small business owner, when faced with the threat of an
    inspector zeroing in on the requirements of this rule, could
    ignore the necessity of recordkeeping. Plus, if I were to avail
    myself of the quick-fix provisions of this rule, I would lose
    any recordkeeping exemption, such as it is.
        I am extremely concerned with the regulatory burdens and
    associated costs that the requirements of the proposed rule
    would place on me and my small business--costs that have
    already begun--simply in my need to try and understand the
    proposed ten- or 11-page rule and accompanying 260 pages of
    clarification, a task which OSHA estimates should take one hour
    and to which I have already spent over 20 hours.This is just to
    become familiar with the rule, a task which is not yet completed.
        As a matter of fact, on March 22nd, I testified before the
    OSHA Ergonomics Panel. During the question and answer period,
    the Panel could not tell me whether the remanufacturing I do at
    my business would or would not subject me to the rule. If OSHA
    is uncertain whether a small business would be covered by the
    rule, how should a small business know?
        In closing, there are several factors relative to small
    business that the proposed rule does not take into account--
    One, the very unique nature of small businesses and the unique
    way they provide for the safety and health of their employees;
    Two, the risk of musculoskeletal disorders in a small business
    is extremely low; Three, the burdens and costs of compliance
    would fall heaviest on the smallest of small businesses such as
    mine without significantly increasing workplace safety.
        It seems to me, relative to small business, that the
    proposed standard is a solution looking for a problem.
    Therefore, I strongly urge the agency to withdraw the
    ergonomics rule.
        Thank you for the opportunity to comment, and, at the
    appropriate time, I will be happy to answer any questions.
        [Mr. Landon's statement may be found in appendix.]
        Chairwoman Kelly. Thank you very much, Mr. Landon. Next we
    are going to go to Mr. Kremp.
        He is here for the Society of American Florists, and Mr.
    Kremp, as a fellow florist, I really empathize with you, and I
    am glad to have you here testifying.

      STATEMENT OF MR. CHARLES KREMP, SOCIETY OF AMERICAN FLORISTS

        Mr. Kremp. Thank you. Good afternoon. Chairwoman Kelly and
    members of the committee, my name is Charles Kremp. I am here
    representing the Society of American Florists, which is the
    national voice of the floriculture industry that represents,
    really, all segments of our industry. Most of those members are
    small, family-owned businesses like my own.
        With your permission, what I would like to do is just
    submit my written testimony for the record and then just
    briefly summarize parts of it here.
        Our family has served the Philadelphia area for many years
    since 1946. I was in business with my brother and my father
    until '81 when I went into business for myself.
        Now, along with my wife, I have four sons, who are in the
    family flower business. We currently employ 43 full-time
    employees and 43 part-time employees in six flower shops and
    one small greenhouse in the Philadelphia area.
        OSHA's ergonomics proposal, I believe, does nothing to
    instruct me on how to specifically protect my employees from
    MSDs in the workplace. I have a strong commitment to a safe
    workplace. Our family works in the trenches. We know how the
    jobs are done. We work side by side with our employees.
        I believe our record demonstrates how we protect our
    employees. I looked at our workers' compensation claims report
    over the last several years and found that, when we take out
    automobile accidents, there were only nine injuries. Four of
    them required compensation, and only one was related to an MSD.
    The other five injuries were mostly slips and trips.
        We have employees who are in their 70's who have said to us
    that they can no longer do the jobs that they were hired to do.
    But, they are good workers, and we want to keep them, so we
    found other places for them, and they are happy and we are
    happy.
        One of my immediate concerns with OSHA's proposal is the
    time and cost for me to understand and implement the program.
    I, too, do not employ a safety expert, so this burden would
    fall upon me, as Brian had mentioned with his firm. I also have
    spent several hours trying to understand this document, which
    is 310 pages long, where OSHA says that they estimate one hour
    per business cost. I must be a very slow learner. Trying to
    comply with this rule will divert my time and my attention from
    pursuing the more proven efforts to maintain a safe and healthy
    workplace, and those efforts are already effective with our
    people.
        OSHA's proposal covers any employer whose employees work in
    manual-handling jobs. These kinds of activities involve many
    jobs in a typical retail flower shop. Unlike large employers or
    employers with union contracts, each job's core element is not
    specifically defined.
        The regulation does give some examples of manual-handling
    jobs. However, the definition is very vague. Because of these
    activities that I just described, I think I would automatically
    be required to implement those first three elements of the
    ergonomics program.
        However, we do all of this now--lead, interact with
    employees, identify hazards, and all of this without
    regulations. The problem is the way we operate now may not
    satisfy the OSHA inspector, yet it achieves the goal that is
    intended.
        The first element, the management, leadership, and employee
    participation, if I didn't do this already, I couldn't succeed.
    In a small business, there is no filter to prevent management
    from knowing of problems. As already mentioned, I work side by
    side with and know each of the employees very well. They are
    not faceless numbers. Problems of all sorts are discussed.
    Suggested course of actions are developed and implemented. The
    problems are brought to management's attention and acted upon
    immediately, because we are working together.
        The hazard information and reporting element has
    instructions that are incredibly broad and vague. I prefer to
    know absolutely if and when I am in compliance. OSHA's goal
    should be to identify specific problems with known solutions
    that are effective and proven, because that is what we do now
    in our business, and that is how we stay in business.
        The work restriction provision is troubling to me, as are
    the provisions that mean we have to change our facilities. We
    don't control all of our facilities. We rent space, and we
    don't have the control over those facilities and could not
    control them if we needed to.
        In conclusion, our company is very concerned with safety
    and the health of our employees. If OSHA were to set forth an
    affirmative rule showing me how I can protect my employees from
    MSDs in the workplace, I would most certainly embrace it.
        This rule will have a negative impact on our business with
    no guaranteed benefits.
        I appreciate the opportunity to offer the comments, commend
    you for holding this important meeting. If I can answer any
    questions later, I would be happy to. Thank you.
        [Mr. Kremp's statement may be found in appendix.]
        Chairwoman Kelly. Thank you very much, Mr. Kremp. We are
    going to move on now to Mr. Russ. He is Administrator of the
    Bay Care Center in New Rochelle, New York, and he is here for
    the American Health Care Association.
        Thank you, Mr. Russ.

      STATEMENT OF MR. RUSS, ADMINISTRATOR, BAY CARE CENTER, NEW
                           ROCHELLE, NEW YORK

        Mr. Russ. Thank you, Madam Chairwoman. Good afternoon,
    ranking member Pascrell and members of the Subcommittee.
        Just as a casual aside, I bring to you, Madam Chairwoman,
    the warmest regards from other health care providers in your
    home district. We have always felt that you have been able to
    champion that delicate balance between the needs and
    aspirations of health care providers, their dedicated workforce
    as well as the patients we serve.
        I am the Administrator and partner in my family's business,
    Bayberry Care Center, in New Rochelle, New York. Bayberry is a
    60-bed, skilled nursing facility employing 50 full-time and 30
    part-time professional and nonprofessional staff, most of whom
    are direct caregivers.
        I am here today, as you mentioned, representing the
    American Health Care Association, a federation of affiliated
    associations representing more than 12,000 nonprofit and for-
    profit nursing facilities, assisted living, residential care,
    and intermediate care for the mentally retarded and sub-acute
    care providers. AHCA's member facilities employ more than 1.2
    million workers, the majority of whom are front-line
    caregivers.
        First, I just want to make two broad points. I want to tell
    you that the imposition of these regulations would surely
    result in the diversion of scarce resources from recruitment
    and retention of caregivers in the tightest labor market we
    have ever experienced. This would divert our desperately needed
    resources away from wages and benefits and towards regulatory
    compliance, an area which remains clearly ambiguous--which may
    sound like an oxymoron but that is something we have had to
    wrestle with.
        Second, the standard will also create a barrier between
    patient and caregiver, and ironically but not surprisingly
    conflicts with the Health Care Finance Administration's own
    regulations, which is the primary regulatory agency governing
    the quality of life of our patients.
        AHCA and its members recognize and emphasize the importance
    of employers protecting workers from recurring or exacerbating
    pre-existing MSDs. Long-term care employers like myself care
    deeply about the health and welfare of our employees. We
    realize that the health and well-being of our patients is tied
    directly to the health of our caregivers. Indeed, we know that
    the physical well-being of our caregivers is actually essential
    to the delivery of the optimal quality of care.
        Recognizing that the potential physical challenges
    associated with caring for the frail and the elderly, my
    facility has worked to reduce injuries to our caregivers for
    many years. I would like to share some of those elements of my
    program with you.
        For more than the last two decades, we have used mechanical
    lifts. The most commonly known is a Hoya lift. These are used
    to elevate and transfer the most physically challenged
    patients. There are many types of such lifts on the market, and
    most operate according to the same basic principle of
    positioning a resident securely in a seated position on a
    canvass sling that is cranked and elevated mechanically. The
    frame of the device is mounted on wheels enabling the transfer
    of the patient to a desired location where the resident is
    lowered and released. Our caregivers are also given back braces
    for use during lifting and transferring, which most employees
    use routinely.
        I found it somewhat ironic, in listening to Assistant
    Commissioner Jeffress, who pointed to the facility in Oklahoma
    and the inordinate success they have had in their voluntary
    program of compliance. We, too, have had incredible success. In
    fact, we have never known or experienced any MSD injuries at
    all.
        It is ironic that, given the track record of the double-
    digit percentage reduction in these MSDs that he, himself,
    pointed to, that we would now have to go into an ergonomic
    standard when we are making such incredible progress on the
    voluntary side with the existing programs. What we need,
    perhaps, from OSHA is guidance. What we do not need are new
    guidelines.
        The lift and transfer of patients from bed to a wheelchair,
    from the bed to the bathroom, are events that occur repeatedly
    throughout the day. They are an integral part of the resident's
    care and the safety of the caregiver.
        Now, when the resident is admitted to the facility, we are
    required by Federal regulation to assess that resident and
    every aspect of their activities of daily living. One of the
    key things that we are required to do by Federal and state
    regulation is to ask them how they would want to be lifted if
    that is what they need. If they prefer to be lifted by
    caregivers--and most of them do prefer that, preferring, of
    course, the intimate and warm contact with another person and
    not wanting to feel dehumanized by the possibility of being
    lifted by a mechanical device--we have to adhere and honor
    their requests. The regulations of the Health Care Financing
    Administration are designed to protect residents' dignity. If a
    caregiver were to follow that, they would possibly be in
    violation of OSHA's regulations.
        More than anything, this paradox illustrates an overall
    dilemma that we face in long-term care, which are layers of
    conflicting regulations promulgated by different Federal
    agencies which are either unaware of or indifferent to each
    other's mandates. This is where Federal standards work at cross
    purposes. HCFA requires caregivers to followthe residents'
    requests, but OSHA imposes ergonomic standards favoring mechanical
    lifts. There is no resolution. I was asked to tell you whether I
    believe the current programs for my facility will grandfather me into
    OSHA's ergonomic standard. The honest answer is I am not really sure.
        Chairwoman Kelly. Mr. Russ, I am sorry, but the five
    minutes is up. Could you please summarize?
        Mr. Russ. I sure can. To put in simple terms, to equip a
    120-bed facility with moderate or heavy acuity including state-
    of-the-art resident-lifting equipment would cost approximately
    $30,000. Long-term care is in a financially fragile position.
    It is a simple reality that business cannot ignore the costs of
    regulation. With almost ten percent of all nursing facilities
    right now in bankruptcy, the desperately needed resources to
    comply with this ambiguous regulation simply are not there. We
    are not, like other businesses, able to raise prices. We are
    paid for largely by Medicare and Medicaid. Unless the
    government is prepared to finance and fund this unfunded
    mandate, there is absolutely no way that we are going to have
    the resources to do so.
        Our first priority is the health and safety and dignity of
    those for whom we care, and our providers are committed to
    that.
        [Mr. Russ' statement may be found in appendix.]
        Chairwoman Kelly. Thank you very much. We have been called
    for another vote.
        We have a few minutes. In that time period, I would like to
    call on you, Mr. Saxon.
        You are our last witness on this panel, and, if you can
    manage to fit this in five minutes, we can get your testimony
    in and still get to our vote on time.
        Mr. Saxon is President of Conco Systems of Verona,
    Pennsylvania, and he is here for the National Small Business
    United. Welcome.

       STATEMENT OF MR. EDWARD SAXON, PRESIDENT, CONCO SYSTEMS,
                          VERONA, PENNSYLVANIA

        Mr. Saxon. Thank you very much, Chairwoman Kelly, ranking
    member Pascrell, and members of the Subcommittee on Regulatory
    Affairs and Paperwork Reduction.
        Thank you. My name is Ed Saxon, President and Chief
    Executive Officer of Conco Systems, Incorporated, in Verona,
    Pennsylvania. My family in Conco Systems employs approximately
    80 people in our efforts to provide condenser-related tools and
    services to the fire generation industry. I am also here
    representing the National Small Business United, the nation's
    oldest small business advocacy organization, and SMC Business
    Councils of Pennsylvania.
        I respectfully submit this testimony regarding the impact
    of OSHA's ergonomics rulemaking on behalf of the NSBU and SMC.
        The promulgation of a mandatory workplace ergonomics
    standard is a substantial concern to all small businesses.
    Small business will be significantly and adversely affected by
    this standard as it is currently written. As a small business
    owner, worker, workplace safety and health is a vital concern
    to me, but I do not feel that the ergonomics proposal as it
    appears now is the best means of addressing this problem. Thus,
    I am, as is NSBU and SMC, strenuously opposed to the
    promulgation of final ergonomics standards in its current form.
        I urge OSHA to take a step back, gather all the relevant
    information, comments, and research, to re-evaluate the
    ergonomics proposal. Barring that, I ask the Congress to
    intervene to protect small business from an improperly
    promulgated ergonomics standard.
        Let me share a cautionary tale from my own business, Conco
    Systems. In October, 1990, Conco hired a part-time employee as
    a general laborer and pump mechanic. In November of '92, this
    employee began to complain of pain in his right wrist. The pain
    was originally diagnosed as a possible slight carpal tunnel
    syndrome. Surgery was a possibility. This employee went for
    further testing, and it was found that CTS was an incorrect
    diagnosis. The patient was sent to a neurologist for further
    examination.
        At that time, November of '91, this person's workers'
    compensation claim was denied as a result of a diagnosis that
    the problem was not CTS and could not be traced to any work-
    related incident. The patient-employee continued to pursue his
    claim even after being laid off as a result of reduced
    workload. Some years later in July of '94, this former
    employee's workers' compensation claim was approved, granting
    him medical expenses and back wage benefits to February, '92,
    plus penalties and interest, even though he had left the state
    and removed himself from the workforce. On January 11th, 1999,
    the case was closed on appeal reversing the July, '94 position,
    claiming that this employee was responsible for restitution,
    which, of course, never happened. This former employee made it
    perfectly clear that he had no intention of returning to work,
    either at Conco or anywhere else.
        Not only are these injuries hard to diagnose and trace to
    any specific incidents, work-related or otherwise, they are
    often impossible to evaluate in an effective manner. To place
    the burden on the small business employer to resolve problems
    that medical professionals nor workers' compensation courts
    cannot determine is not fair.
        If the current proposed ergonomics regulation were in place
    when this incident occurred, this single incident would have
    required Conco Systems to investigate this pump mechanic's job
    and find ways for him to perform the functions without further
    aggravating his injuries, at great expense and time. It clearly
    would have potentially opened the door to further claims by
    other Conco Systems employees, although the so-called claim was
    shown to be unrelated to the workplace and the workers'
    compensation award reversed by the courts. Nonetheless, the so-
    called claim was made and accepted at one level of the workers'
    compensation program. This would likely be significant enough a
    situation to have triggered the currently proposed ergonomics
    standard at Conco.
        What this one example illustrates, an example that is, no
    doubt, duplicated almost every day across this country in many
    small businesses, is the potentially devastating impact that a
    poorly thought out ergonomics standard with loose definitions
    and overly easy triggers and harshrepercussions can have on
    honest, productive small businesses like mine. I know that many of my
    fellow panelists will go into great detail as I have in the written
    statement. So, I will leave the detailed critiques and suggestions to
    my submitted written testimony.
        Let me conclude by stating clearly that, as a
    representative of National Small Business United and SMC
    Business Councils, as a small business owner, I strongly urge
    OSHA to reconsider the release of their ergonomics standard
    without a more complete review. I also encourage Congress to
    take the action to stop them if they do not.
        In summary, I really don't believe OSHA should be in the
    insurance business providing benefits to injured employees. The
    standard addresses existing conditions, not only ones caused
    but aggravation on existing conditions.
        None of the testimony of Mr. Jeffress was relevant to small
    business, and, with regard to Mr. Pascrell's statement on the
    pollution analogy, let me say that there are no longer hardly
    any small foundries left in the United States as a result of
    that program.
        Thank you for your time.
        [Mr. Saxon's statement may be found in appendix.]
        Chairwoman Kelly. Thank you very much, Mr. Saxon. You came
    right in right on the dot. That was very impressive.
        Mr. Saxon. Us small business guys are efficient and operate
    well under pressure.
        Chairwoman Kelly. Way to go, Mr. Saxon. We have been called
    for a vote.
        I am going to take a short ten-minute break. When we come
    back, we will go directly to the questions for the panelists.
    Then, we will move on to the third panel. Thank you very much.
        [Recess.]
        Chairwoman Kelly. Thank you very much. I am just going to
    continue to go right on here.
        I am going to start with my own personal questioning with
    you, Ms. O'Shaughnessy. You are evidently an expert in this
    field, although you don't want to be called an expert since you
    say the field is so young.
        But, given your knowledge of the field, you say you
    couldn't tell your employer what constitutes compliance for the
    proposed standard. What if you went to another job? Can you
    come up, tell them, another manufacturer, how to comply with
    the proposed standard?
        Ms. O'Shaughnessy. To clarify that, I believe my statement
    was we could figure out how to comply with our interpretation
    of the standard. But, that is not necessarily equal to OSHA or
    the specific auditor's perception or interpretation of the
    standard, and that is a major issue.
        Chairwoman Kelly. I am sorry if I mischaracterized it. That
    is exactly what you did say.
        Ms. O'Shaughnessy. I think I could at my current employer.
    I could help them interpret it and apply it effectively as well
    as a new employer.
        Chairwoman Kelly. You think you could?
        Ms. O'Shaughnessy. I do, because I have a background in it.
        I don't mind being called an expert, because it is a new
    profession. It is constantly growing and learning and changing.
    It wasn't an insult as much as a fact. I think I could. I have
    legal advisors. I have the background--academic and practical
    background. Not every small business has that.
        I think I would have some difficulty complying with it,
    and, in the event of an audit, I would have difficulty working
    with that particular auditor and their personality, which comes
    into play with the regulation.
        If I am going to have difficulty complying with it, 90
    percent of small businesses are going to have difficulty and
    will not be able to comply with this.
        Chairwoman Kelly. If you were going into, say, Mr. Landon's
    business--now, I shouldn't say you.
        But, suppose someone went into Mr. Landon's business and
    started to just talk with him about compliance, and they didn't
    have your background. What I am driving at here is you stated
    in your testimony that there is a large number of charlatans
    and snake-oil salesmen that are selling ergonomic advice. I
    think that is an important point, and, if you got one of those
    folks going into Mr. Landon's business, how can he protect
    himself from that sort of thing?
        Ms. O'Shaughnessy. It is very difficult, and I think one of
    the things we have to caution ourselves with as we go out and
    find consultants--which small businesses have to do to comply
    with standards--OSHA's free consultants are not always
    available.
        We are not necessarily comfortable using them. Many times
    we get a consultant with a flashy program that speaks very well
    to a group, has very nice graphics and slogans. However, they
    just have enough knowledge to be dangerous. Having enough
    knowledge to be dangerous and not enough knowledge to be
    effective can be a real downfall.
        Chairwoman Kelly. Well, Mr. Landon, we caution you then.
    Get somebody who has got some real expertise in the field.
    [Laughter.]
        And, obviously, according to Ms. O'Shaughnessy, this is
    going to be a little more difficult than one would think.
        One of the things that OSHA mentions is that one way to
    avoid all of the problem is being able to utilize the so-called
    quick fix. How easy would it be in your business, since I know
    you have large pieces of machinery, to reconfigure your shop
    floor to do a quick fix? Would it be possible to do it at all?
        Ms. O'Shaughnessy. It really depends on the level of the
    hazard.
        If we are talking about a broom handle, of course, that
    would be easier. If we are talking about moving the entrance of
    a machine so what is fed in is at a different height for
    differently-abled or different-heighted people, that can go
    into tens of thousands of dollars. Doing something like that is
    going to be prohibitive under budgetary constraints, time
    constraints, business constraints, customer constraints, where
    we are really going to reap the benefits of making those
    changes and not necessarily because of the difficulty of
    finding the actual cost, and fixing the problem.
        Chairwoman Kelly. One of the things that occurred to me
    when you talked about someone feeding a machine is that there
    is usually a fairly big difference between the size of a woman
    and the size of a man. If you have a factory that is running,
    manufacturing 24 hours a day, seven days a week--as plenty of
    them do--and you have a man feeding something into a machine,
    and a woman with amuch smaller stature comes to take over in
    that job, how easy will it be for someone to look at this from an
    ergonomics standpoint and make sure that either the man or the woman
    don't fall into the MSD problem, if there has been a demonstrated
    problem at that machine?
        Ms. O'Shaughnessy. How easy would it be to find the
    problem, or how easy would it be to fix it? To fix it would
    probably be very easy, because you can find all kinds of
    mechanical and engineering means to do it.
        The cost of those may mean that you cannot do it
    immediately or that you remove that employee, which kind of
    negates our whole intent of protecting the worker, because we
    are removing the worker. Finding a feasible fix is not so easy.
    A lot of these machines are over 50 years old, if you will--
    fixed heavy metal, heavy industry machines, and are not
    changeable. So, this will bind our hands considerably.
        Chairwoman Kelly. Thank you. I am going to jump to Mr.
    Landon.
        Mr. Landon, have any of your employees ever requested a
    change in their work environment based on musculoskeletal
    problems? If so, how did you handle it?
        Mr. Landon. No, they haven't, and I need to go into that a
    little deeper. I have just one full-time employee whose range
    of duties cover the gamut and can change drastically from one
    day to the next. But, no, I have not.
        Chairwoman Kelly. I am interested, on page two of your
    testimony, you note that you have already spent 20 hours
    reading the proposed standard and the preamble.
    Congratulations. Have you read the economic analysis in which
    OSHA assesses various workplace controls for correcting
    ergonomic problems? Or, did you simply surrender after trying
    to wade through the preamble and the rule?
        Mr. Landon. ``Wade'' is a good choice of words. I did
    attempt to read some of the economic analysis. I have mentioned
    I am not a safety expert. I am also not an economist. I have to
    say that most of it was Greek to me.
        Chairwoman Kelly. This is it. You don't feel you have a
    real grasp of it.
        Mr. Landon. No.
        Chairwoman Kelly. As a small businessperson, it is going to
    take you hours to try to understand this. Is that what you
    feel? It would take any of us in small business probably the
    same amount of time.
        Mr. Landon. Absolutely, and, as I mentioned, I have spent a
    great amount of time already and have not yet been able to
    fully understand the rule and, particularly, even understand
    whether or not I am going to initially come under the rule that
    is not that clear. I don't have a clear answer to that yet.
        Chairwoman Kelly. I want to go to something that I
    tentatively raised with Mr. Jeffress. I am going to follow up
    in some of my line of questioning with him.
        I want to talk about that with you. As a small
    businessperson, you pay workers' compensation. Who determines--
    Just for the record, who determines whether an injury is
    covered under workers' compensation?
        Mr. Landon. My experience, since I have not had injuries--I
    really have to honestly say I don't know the answer to that. I
    would assume it would be the physician who examined the
    employee.
        Chairwoman Kelly. Who would determine whether the injury
    triggers fixing the job or the worker restrictions?
        Mr. Landon. As the rule reads, it is the employer's
    responsibility. Again, besides not being a safety expert nor an
    economist, I am also not a health care professional, so it
    would be a pretty tough call for me.
        Chairwoman Kelly. So you don't feel you have the expertise?
        Mr. Landon. No, I don't.
        Chairwoman Kelly. Do you feel this is a pretty heavy load
    that is falling on your shoulders?
        Mr. Landon. I feel it would be a tremendous burden. I can
    see huge portions of my time being taken up trying to comply
    with the rule, taking me away from far more productive uses of
    my time.
        Chairwoman Kelly. If the standard is issued, what do you
    think it should include to make sure that you could cost-
    effectively implement it and ensure that you are protecting not
    only yourself, since you work with your workers, but your
    workers, also?
        Mr. Landon. I am not sure I could suggest a modification to
    the rule that would fit very small businesses such as mine. To
    go a little further on that point, one thing I think the rule
    doesn't take into account is the unique characteristics of very
    small businesses such as mine and how we currently deal with
    health and safety based on these personal relationships that
    exist in our business.
        My employees are, all three of them, either family or very
    close friends. These are relationships that don't exist in
    larger businesses. OSHA has done nothing to allow for that
    difference between very small businesses and larger businesses.
        Chairwoman Kelly. But you would work with them, I assume,
    and you just would automatically protect them and take care of
    whatever injury they might experience, and try to work to
    correct it on your own.
        Mr. Landon. Absolutely.
        Chairwoman Kelly. I am going to just go on to my questions
    for Mr. Kremp.
        I was really fascinated, Mr. Kremp, when I read your
    testimony about the experience you had with the worker with the
    MSD injury. Do you mind describing that injury that was
    suffered by your employee and talk about the time that was
    missed?
        Mr. Kremp. Could you tell me just which injury? I wonder if
    that was in my testimony, because we really haven't had any
    serious MSD injuries.
        Chairwoman Kelly. I'm sorry. I see where it is. It is
    here.--Over the past several years, our problems have been
    negligible, in fact, only nine injuries. Only four of the
    injuries required compensation, and only one was related to
    musculoskeletal disorders. Now, that is from your testimony,
    actually, sir. That is on page four.
        Mr. Kremp. Yes, and I believe that these were--There was a
    strain when someone lifted a box. We reported it, but it was
    not serious enough for them to feel they needed compensation.
    The way that this was handled was that our employee reported to
    my son that he had strained his back lifting this box and he
    didn't need to go to the doctor.We said. Take it easy and see
    how this works. We reported it, as we have to with any injuries on the
    job. Within a couple of days, he felt better. He worked for us for
    several years and has since that point. So, he was accommodated in that
    we told him to take it easy and don't do any lifting and let it get
    better.
        Now, the injury may have been caused by some activity that
    was beyond the workplace or it may be that, at that one time,
    he did something in a manner in which he should not have. But,
    it was a minor injury that repaired itself in the normal course
    of healing. We accommodated it. We accommodated it in the
    normal way that we do business.
        A similar situation happened with another employee, where
    they twisted an ankle when they were setting up a display. We
    did the same thing--allowed him to have activities at work that
    would not make this position more severe.
        We have had situations where the workers themselves would
    help each other. For instance, we have an elderly gentleman who
    was not able to lift large boxes--and they are not that large.
    A woman that works for us helped him. I remember seeing this so
    clearly--helped him carry them in.
        So, I think that the situation is such in a business where
    no one wants pain. A businessperson doesn't want pain for their
    employees. They don't want it for themselves, and the
    procedures are in place to prevent pain, and those procedures
    start out with common sense.
        Chairwoman Kelly. Mr. Kremp, having some familiarity with
    the florist business, I am very interested in asking you this
    next question, which is how easy is it for you to find floral
    designers? And, no, I am not yet applying for a job.
        Mr. Kremp. Open for a draft. I understand you are off next
    week or Easter week.
        Chairwoman Kelly. I am pretty fast, Mr. Kremp. I have
    learned.
        Mr. Kremp. You wouldn't have to twist my arm. In most small
    businesses now, especially with the fact that it is a tight
    labor market, we are able to attract employees because we are
    able to provide them with a job they like to do. So, we have a
    lot of people to come to us to be floral designers, because
    that is really what they want to do.
        Now, when they come to us and that is what they want to do,
    it is unrealistic to think that, if they have some kind of an
    injury, that we are going to say. Okay, now you are going to be
    a truck driver, or you are going to work in the greenhouse.
    There are very specific tasks that people like to do, and so
    that is another part of this provision that really doesn't
    reflect reality. Reality should be in being able to give to
    workers the jobs that they like to do.
        Chairwoman Kelly. How easy is it to find a floral designer
    on a temporary basis?
        Mr. Kremp. It is next to impossible. For us to have floral
    designers, we have to start when they have people come in to do
    odd tasks and then train them over years so that we will have
    them. We hire people now to wrap and to do trimming of plants
    so that we can train them over years, so that, maybe in two
    years, we will have a floral designer.
        Chairwoman Kelly. What happens if one of your floral
    designers goes out? How do you cover that right now?
        Mr. Kremp. That person who is trimming plants becomes a
    floral designer much more quickly. We all just have to fill in,
    and a lot of it, quite honestly, is with the management, as I
    said earlier. My four sons, one daughter-in-law, my wife, and
    myself are in this business, and there is nothing in the
    business that we don't do ourselves, and so we have to fill in
    on those jobs.
        Chairwoman Kelly. Would this law make any difference in the
    way you handle your employees and the way you are able to
    handle these situations?
        Mr. Kremp. It would make such a difference that it would
    completely change the way that we do business. I am in a unique
    position that I have four sons that can share the load of these
    management tasks. I am representing-- As I said, there's 16,000
    retail florists in the Society of American Florists. Most of
    those companies, there's one owner and a couple of employees.
    What would discourage these people--other people from going
    into business is that, instead of being a florist, they are
    going to have to be a safety expert and a bureaucrat and going
    on doing things that are not close to the business.
        The situation in small business today is such that these
    problems are being taken care of because of what was said
    earlier. We care about the people we work with, and what is
    being put upon us now are tasks that many would not like to do
    and will discourage people from going into business.
        Chairwoman Kelly. Thank you, Mr. Kremp. I am going to go to
    Mr. Pascrell to ask questions of this panel.
        I thank you all very much. Mr. Russ, I am going to ask you
    a couple of questions in a few minutes.
        Mr. Pascrell. Thank you, Madam Chairlady. First, I think we
    need to clear up, once and for all, that there is nothing in
    the regulations that says that any company has to hire a safety
    officer. Some of you have referred to safety officers in your
    testimony, and some of you have said--Two of you have said that
    you may have to go out and hire a safety officer because you
    feel that the rule is complicated or ambiguous. Somebody used
    that word. But, there is nothing in the rule which in any
    manner, shape, or form can be construed to mean that you are
    mandated to hire a public safety officer.
        Now, look, I am an easy person to get along with through
    the Chair. Very easy. But, you know, you cannot have selective
    memory and stack the deck without looking at the entire
    regulation.
        You don't want to do that, because I am trying to be very
    objective and very open-minded. But, I am telling you now, if
    there is or there has not been any MSD at your workplace, you
    will not be affected by this OSHA standard rule. Call it
    whatever you want. And, I am going to repeat that again.
        I am going to ask each and every one of you, and I want you
    to answer for the record, please, through the Chair, do you
    have, Mr. Landon, an MSD complaint at your workplace--any of
    the five that you have--four or five places, locations? Yes or
    no.
        Mr. Landon. The answer to that question is no.
        Mr. Pascrell. Mr. Russ, do you have, at any of your
    places--and you are including the whole Association, or just
    where you work in New Rochelle, New York--do you have any
    complaints against the company--the corporation?
        Mr. Russ. Against my facility? I don't have any formal
    complaints right now.
        However, I have had people complain about----
        Mr. Pascrell. The weather and things like that?
        Mr. Russ. About things that might, under this standard, be
    construed as MSDs.
        Mr. Pascrell. But you haven't had a complaint as such?
        Mr. Russ. No, and I can expect that I would.
        Mr. Pascrell. Excuse me, what does that mean, you could
    expect that you would?
        If this rule--If it were going into effect tomorrow
    morning, you could expect the complaint pretty soon afterwards?
        Mr. Russ. I would think so, absolutely.
        Mr. Pascrell. Explain that.
        Mr. Russ. Because we have people doing manual things, doing
    lifting, they will often complain. I think my back hurts. If
    there is an opportunity for such remedies as work protection,
    which is to possibly collect 90 percent of your salary while
    not working, for up to six months, I can assure you that many
    of our employees could theoretically, and possibly very well
    expectedly, take advantage of that.
        Mr. Pascrell. Mr. Russ, the answer to the question,
    therefore, is no. For you to imply or for me to imply that,
    because a rule or a standard goes into effect, that everybody
    is going is jump on the gravy train, to me, is part of the
    problem for us to clearly see through the fog at the objective
    that we all want.
        Mr. Russ. With all due respect----
        Mr. Pascrell. Excuse me. To protect the workers. You said
    that yourself. Isn't that your objective?
        Mr. Russ. Absolutely.
        Mr. Pascrell. Then we are on the same thing.
        Mr. Russ. That is particularly why we state that we don't
    need this rule to protect the workers.
        Mr. Pascrell. It doesn't even apply to you so far.
        Mr. Russ. But it could well.
        Mr. Pascrell. Mr. Saxon, have you had any MSD complaints at
    your workplace?
        Mr. Saxon. Yes.
        Mr. Pascrell. Would you just briefly----
        Mr. Saxon. The one that I detailed, and we have
    occasionally a sore back problem.
        Mr. Pascrell. So you would have to--Let's say, if this rule
    was in effect, you would have to put some plan into operation
    to indicate that you would prevent this from happening in the
    future as it is now? As the rule stands now or as a proposal.
        Mr. Saxon. Sure.
        Mr. Pascrell. Let me ask you a question. When the complaint
    was made to you or to your corporation--your company--did you
    think about putting something into effect or finding ways that
    maybe we could alleviate the conditions that produced the pain,
    or whatever? Or the injury? Did you think about that?
        Mr. Saxon. Not with regard to the case that I detailed in
    here, because the perusal of the job and the review of the job,
    and our knowledge of the job, was that that didn't cause that
    injury. We did put into consideration alternative workload for
    that individual. Before that guy, and since that guy, nobody
    having that job has ever had the complaint.
        Mr. Pascrell. Thank you very much for your honesty, Mr.
    Saxon.
        Now, next, Mr. Kremp, do you have any MSD complaints in any
    of your shops?
        Mr. Kremp. Yes.
        Mr. Pascrell. You explained before, basically, one of the
    situations and what happened.
        Mr. Kremp. Yes, and I am sure that, over the course of
    many, many years, there have been other times when someone has
    pulled something or turned in a funny way so that they have had
    what would be described as this. I have been in the business
    for 40 years, and I know, over that time, I have had that
    happen to me. So, yes, that has happened.
        Mr. Pascrell. OSHA, Mr. Kremp--and correct me if I am
    wrong, Madam Chairlady--OSHA does not instruct anybody how to
    protect the workers in the workplace. They can give you
    information, but they do not instruct, so there is really no
    mandate except if there is a complaint made against your
    business or my business. Then, they are asking you to put a
    plan together that would try to avoid this in the future. What
    is so demonic about that?
        Mr. Kremp. I think that is a stronger term than I would
    use. I think that it is impractical, and the reason is that, as
    I read through the proposal, I found out that I am not really
    qualified to make some of the recommendations, in which case I
    would need to have the expert come in in order to come up with
    a solution that would satisfy the needs of OSHA. So, that is
    why I think it takes it from where we do things as we now do
    them, which is react to an individual where there is a problem
    and say. You know, you shouldn't be lifting that.
        Mr. Pascrell. I would think, Mr. Kremp, that some part of
    the standards or some part of the rule needs to be a little bit
    more flexible. I would even say that, but we are not talking
    about if there is a complaint. We are mostly talking about a
    proactive plan. This is my perception. This is my reading of
    what OSHA is projecting, a proactive plan that will avoid those
    problems for you in the future. But, OSHA is not giving you
    that. They are saying you will have to come up with it in your
    own business, which is better for you, isn't it, than if they
    imposed?
        Mr. Kremp. It wouldn't be in certain cases.
        Mr. Pascrell. They are not the experts in the florist
    business.
        Mr. Kremp. But I am not an expert in carpal tunnel
    syndrome.
        Mr. Pascrell. Nor am I.
        Mr. Kremp. That is one area that really concerns me. I
    would love to have somebody tell me how to prevent that from
    happening to me, because I don't want that to happen to me.
        Mr. Pascrell. You asked a very legitimate question, and I
    believe OSHA, from what I have questioned them about before
    this meeting, what I have read, what I have heard today, has an
    obligation to provide to you, as to every other business
    community, some help in getting that information.
        I believe they have that obligation, and the question that
    I asked or was about to ask two persons ago was have any of you
    used, Mr. Saxon and Mr. Kremp, the local--the state
    freeprograms that are available in all 50 states and have been
    available for many years? I ask that question rhetorically.
        Mr. Kremp. I would be happy to answer. We didn't, because
    we had an OSHA inspector come in and made recommendations. We
    went through, and we followed all of those, and I think what
    has happened over time, because there is such a program, is we
    are conscious of hazards, and I think that is fine.
        Mr. Pascrell. I think that is important.
        Mr. Kremp. But, with this, we need to have a specific
    course of action to follow, because it's areas that we know
    nothing about.
        Mr. Pascrell. Mr. Kremp, you sound like a very
    conscientious businessman. I don't say that to pander to you. I
    listen to what you have to say, but we are not going to win
    this battle to bring some sanity to the process of regulation
    by going to either extreme. What we need to do is find some
    common ground that you can live with that is not going to break
    the bank. I understand that, but, where the message is very
    clear, all employers--not just Mr. Kremp who is very
    conscientious--all employers have an obligation to their
    workers. Now, I think, within that common ground, we can find
    some rules that we can agree with. That is my opinion. I may be
    wrong.
        Mr. Kremp. I think we agreed right away, and that is to
    definitively tell us how to take care of the problems which we
    are faced with.
        Mr. Pascrell. Thank you, Mr. Kremp. Appreciate that. Now,
    Ms. O'Shaughnessy----
        Chairwoman Kelly. Will the gentleman yield? I think it is
    important to put on the record that all manufacturers are
    required to implement portions of this rule immediately,
    whether there is an MSD or not. I think that is important to
    put in the record, because manufacturers, in particular, have
    been singled out to have to comply with the rule whether there
    is an MSD or not. They don't have to wait. They just have to
    comply, and there is nothing in the rule that indicates, even
    from our talk with Mr. Jeffress, how they do that, so I think
    that is important to note.
        Mr. Pascrell. It is very important, but, again, the
    question of complaints is at the very axis of this entire
    regulatory process. No one is asking anybody to go out and
    spend money now to put in all different kinds of apparatus if
    there's no complaints.
        I don't see that in the rule. I don't see that anyplace in
    the rule. I do not see where the person who owns a company, who
    owns a business, has to spend any money now to predate the
    problem if there are no problems.
        Now, whether the rule goes into effect with manufacturers
    at a different period of time than would ordinarily be, that is
    another question. We are not finished with the rule, and, as
    you heard OSHA say, they are not finished with the rule.
        All I can say is no complaints, no problem. And, let me ask
    you that question. Do you have in your business an MSD
    complaint?
        Ms. O'Shaughnessy. We are quite a bit larger than most of
    my other panelists. We have almost 500 employees at one
    location, and, yes, we have plenty. Thirty-five percent of our
    injuries are what you could loosely consider a soft-tissue
    injury or a musculoskeletal disorder. What that translates to,
    in 1999, we had over 40 workers' comp cases and over 20 OSHA
    recordables.
        Keep in mind, for nine years running, we won the Copper
    Development Association safety award, which meant that we had
    the best safety record in the industry. So, we are excellent
    performers in the field of safety. We have had huge successes
    in lowering our workers' comp, OSHA recordables, and to tell us
    that we need to have a totally new program just for ergonomic
    injuries that we are treating exactly the same as every other
    injury--effectively we are treating that--I think is out of the
    question.
        Mr. Pascrell. If we duplicated what we already are doing, I
    would agree with you. I said that two hours ago, but the
    question is the standards by which you are judged, for which
    your company got the award, may be inclusive, and may not be. I
    think you can understand that, and there may be things that
    they looked at or didn't look at that should be considered.
        I am not questioning whether you deserved it or not. That
    is not what I am saying at all. What I am saying is, the next
    panel that is going to come on, you are going to hear folks
    that are representing the workers.
        I know your answer is not going to be to them, if I may be
    so bold to anticipate, that you ought to depend upon the
    company to do the best it can and just assume that it is doing
    the best it can, because what you are doing is one thing. What
    all companies are doing may be another thing altogether.
        Ms. O'Shaughnessy. With all due respect, I take offense at
    you saying I am not representing my workers, because it is of
    the utmost priority--the safety of every worker's safety in my
    plant and in my offices. That is where we begin and end.
        Mr. Pascrell. I didn't say that, nor did I imply that.
        Ms. O'Shaughnessy. I represent the workers. I want to
    protect their safety, and what we choose to do is involve every
    single worker in all of our resources in order to treat every
    hazard, whether it is for a musculoskeletal disorder or a slip
    and fall, or a crushing injury, no matter what, and treat them
    the same and have our recordkeeping and our hazard analysis,
    and our abatement issues treated all the same. We have been
    effective, and we represent other manufacturers, I think. I
    don't think too many are far different from us.
        Mr. Pascrell. I don't question what you said one second.
        That is not the issue. The issue is can we have a universal
    rule?
        First of all, it doesn't fit everybody. We know that, but
    can we have a universal rule that is somewhat flexible, that
    can basically prod the process and make sure that folks are
    responding to the employees that work for them.
        Let me tell you something. We are not going to get away
    with no regulation. It isn't going to happen, so isn't it best
    that we work together to come up with something that we can
    live with? Or, do you want to insist on fighting the fight you
    cannot win? You can't win it. There's going to be a regulation.
    Don't we want to have input into it? I would think that that is
    what we want to do.
        Ms. O'Shaughnessy. In response to that question, on page
    eight and page nine of my testimony, I specifically addressed
    that question because I think that is an excellent question.
        If we are going to have a regulation, I suggest several
    appropriate areas in which to allocate our funds and our
    resources, including defining quantifiable methods for
    assessing the risk and measuring an injury, and rehabilitation
    and so on, in addition to outlining clear and effective program
    elements which the standard lacks of right now, and providing
    the manner to create and manage a successful in-house program,
    not putting an excessive burden of consultants, and so on, on
    us as an employer.
        Mr. Pascrell. On page five of your testimony, you state
    that OSHA's WRP provision will increase the number of
    fraudulent workplace injury claims.
        That is on page five of your testimony. Are you with me?
        Ms. O'Shaughnessy. You might be talking about a different--
    --
        Mr. Pascrell. In the last paragraph.
        Ms. O'Shaughnessy. Not to mention an increase in fraud?
    Yes.
        Mr. Pascrell. Okay, that is what you say.
        Ms. O'Shaughnessy. I am with you now.
        Mr. Pascrell. You say that it will increase the number of
    fraudulent workplace injury claims.
        That is a pretty broad statement, Madam Chairlady. We don't
    know what those workers are going to do.
        Ms. O'Shaughnessy. We do.
        Mr. Pascrell. Oh, you do. Let me finish the question, if I
    may. On what evidence do you base this statement?
        Ms. O'Shaughnessy. Past history.
        Mr. Pascrell. Tell us about it.
        Ms. O'Shaughnessy. I have worked at many companies, from
    looking at animal caretakers in genetics testing facilities to
    wire- and cable-making to consumer products manufacturing. I
    don't remember who said it, but knowledge of a class of
    injuries increases the occurrence. Did you ever hear of carpal
    tunnel before ten, 20 years ago?
        You can't tell me it didn't exist at the turn of the
    century in much greater percentages and much greater numbers
    than we have now. However, we didn't have any instances of
    carpal tunnel until we had the name of it and the knowledge of
    it.
        The same thing is going to happen, and it will create a
    greater knowledge of the injury. Therefore, as I state also on
    page five, OSHA's plan will give 90 percent to 100 percent of
    pay to workers who claim musculoskeletal injuries.
        Mr. Pascrell. This is a very good part of this testimony.
        I find it very fascinating and interesting, because--I'm
    sorry, I thought you were done.
        Ms. O'Shaughnessy. No, I wasn't. In New York state
    currently, workers' comp cases are approximately two-thirds. It
    is not that difficult to diagnose any type of injury as
    musculoskeletal injury and, therefore, get 90 to 100 percent of
    your pay as opposed to two-thirds of your pay for a simple
    workers' comp. Now I am finished.
        Mr. Pascrell. Thank you. I think we have a serious problem
    here. I'll be very honest with you, because the many industries
    that I have reviewed, where there is repetitive activity and
    where there is a major problem, I am not concerned about what
    it is called, I am not concerned about the nomenclature, I am
    concerned about whether there was injury or pain.
        What you call it is secondary and that it was caused by
    work. People simply assume that this was part of the job. Now,
    we have grown. The state of the art has grown. What we accepted
    20 years ago we don't accept now. Your job, my job, we try to
    make things a little bit more easy in an imperfect world.
    Couldn't I just as easily say that OSHA's WRP provision will
    increase the number of employers who will discourage their
    employees from reporting workplace injuries? Couldn't that be
    the case, also?
        Ms. O'Shaughnessy. It could, but there is an increase in
    fines and ramifications against employers for not reporting if
    they are found out during an OSHA audit or a walk-through or a
    free consultancy visit, and so on.
        Mr. Pascrell. It works both ways is my point, okay? That is
    why we must work together to come up with a rule that we can
    live with. We can't fight it and think that it is going to go
    away. Then, we won't have to worry about these repetitive
    injuries.
        Chairwoman Kelly. If the gentleman will yield, I don't
    think these people are really feeling as though they are
    fighting the rule. What they are trying to do is trying to have
    some input so that this rulemaking mechanism works for them to
    help them protect their workers. I don't mean to disagree with
    you, my friend, but I do think that the whole point of this
    hearing is to let them have a voice in this rulemaking process,
    which they might not otherwise have had.
        Mr. Pascrell. Madam Chairlady, let us disagree then. It
    doesn't in any manner, shape, or form decrease my respect and
    my admiration for you. But, that is not what I heard from three
    of those testifying today. They don't want the rule. You ask
    them. Thank you.
        Chairwoman Kelly. Thank you very much, Mr. Pascrell. Being
    a small businessperson, having had a couple of small businesses
    and having my family in it, I do understand, Mr. Kremp, Mr.
    Russ, Mr. Landon. I know that you are there working on the
    floor with your workers.
        Anything that comes out of this rulemaking process is going
    to help you protect yourselves, because you are very intimately
    involved in doing the business that you are in. I think, Mr.
    Pascrell, that that is really the point of what, at least, I am
    trying to understand here--is how we can help these folks
    protect themselves and their workers at the same time without
    having a rule that is so large in scope that it undercuts their
    bottom line, undercuts their ability to do what they need to do
    in order to stay in business.
        But, more importantly, it doesn't allow them to protect
    themselves without having to go through a great many steps that
    might not be necessary for these people. They need something,
    but they need something that addresses their concerns as small
    businesspeople--really small businesspeople.
        Many of the examples that we have heard today come from
    large businesses, not small. It is important that we stay
    focused on the small business.
        That takes me to you, Mr. Russ, because I did have one
    question I wanted to ask you.
        OSHA assumes that businesses are going to be able to pass
    along the increased costs of any proposed standards onto their
    customers. That may be true for an ordinary industry, but
    aren't the rates that you receive for patient care in your
    business set by the Health Care Financing Administration and
    the states?
        Mr. Russ. Yes, they are.
        Chairwoman Kelly. So your ability to pass along any of
    these costs is simply blocked off by another agency.
        Mr. Russ. Absolutely, unless there were some concurrence on
    the part of other Federal agencies, namely, the Health Care
    Financing Administration, which would independently recognize
    this as a distinct cost and then add it to the rates at which
    they pay us. There would be no other mechanism to absorb these
    costs. Only a very small fraction of patients in nursing
    facilities today pay their own way. There's a variety of
    reasons for that, but primarily because Medicare--and primarily
    Medicaid--are the primary payers. That is the system we have to
    live with. This unfunded mandate provides no mechanism for any
    kind of recognition of the costs that we are likely to incur.
        As a result of this--and, you know, it would be
    presumptuous to assume that not every facility would be
    affected by this, because, even as a protective measure, in
    order to potentially avoid claims, we would have to purchase
    the number of lifts, as I described to you, that would not only
    conflict with existing regulations--because HCFA precludes us
    from using it on patients who don't want them--but it opens up
    the possibility that we would have to make an enormous capital
    investment and would probably be in violation of other OSHA
    regulations, from a practical standpoint.
        Sometimes we don't see the forest for the trees. If you
    were to actually mandate that every patient should be lifted
    with a mechanical device, there would have to be, literally,
    probably one of these monstrous entities for possibly five or
    six patients. Each one of these devices is an enormous entity.
    We have no place to even store these things. If you would put
    them in the hallways and the corridors, you would be in
    violation of life-safety code and other OSHA regulations. If
    you were to put them in the patients' rooms, you would be in
    violation of certain OSHA regulations as well as regulations of
    the Health Care Financing Administration. No one has thought
    out the actual practical implications of having to do this.
        Chairwoman Kelly. Thank you very much, Mr. Russ. I just
    want to question one more thing, where, again, it seems to me
    that you are caught with agencies controlling things that you
    have no choice over. You brought up the instance of mechanical
    lifts, but aren't you mandated by law to offer that choice to
    patients? They get to choose whether or not they want to be
    lifted by personnel in your institution or they wish to be
    taken on a mechanical life.
        I would also want to point out, having worked in hospitals
    a number of years, that there is a certain dehumanizing aspect
    to being lifted by a mechanical lift. I don't care how heavy or
    light the patient is. It is rather dehumanizing to the patient
    to have a mechanical lift being used on them. It also is not
    necessarily the best way, but aren't you caught by that?
        Mr. Russ. Absolutely. Not only is it dehumanizing, most
    patients are fearful of being lifted by anything--I mean, the
    whole point of all the HCFA regulations that we have
    encountered over the last ten to 15 years has been to enhance
    the quality of life of residents and the patients we serve.
    That is all generated through education and increased bonding
    and closer relationships with the caregivers. This creates a
    barrier between the caregivers and the residents.
        From a practical standpoint, any good, caring facility
    lifts and transfers patients not just once a day. It is not
    just to get the patient out of bed in the morning and into bed
    at night. We take patients out of the wheelchair at every meal
    and put them in regular chairs to enhance their dignity so they
    don't have to eat lunch in a wheelchair, who want them to eat
    in a regular chair like people who are not handicapped. So, we
    would have to be using these lifts in a way five, six, seven,
    eight, nine times a day. It is practically, from a practical
    standpoint, impossible, because there is no way to situate them
    in a dining room to that extent.
        Chairwoman Kelly. Excuse me, sir, but it is also mandates
    by law that you not do that with the patients. Is that correct?
        Mr. Russ. Well, it is not mandated that we do not. We have
    to offer the patient a choice. We educate the patients who are
    competent and those representatives of those patients as to the
    pros and cons of a lift, just as we do with other aspects of
    care. However, if they elect to decline that, we have to honor
    that request by law.
        Chairwoman Kelly. That is exactly what I was driving at.
    You must honor that request by law.
        Mr. Russ. Correct.
        Chairwoman Kelly. So you are another one of the businesses
    caught between agency rules.
        Mr. Russ. Correct.
        Chairwoman Kelly. I thank you very much. At this point, I
    thank the panel. You have been extremely patient, and I really
    appreciate the fact that you came to testify today.
        I know that there are many other things that we would like
    to ask you, and I am sure there are other things you would like
    to say to us, so, again, I am keeping the record open and we
    will, hopefully, continue the dialogue. Thank you so much. I am
    going to excuse this panel, and we will have the next panel.
        [Pause.]
        Chairwoman Kelly. I thank you all very much. We have
    Jennifer Woodbury here from McDermott, Will & Emery, Jackie
    Nowell, who is the Director of the OSHA Office for the United
    Food and Commercial Workers International Union. We welcome
    you. John Cheffer, Chairman of the National Governmental
    Affairs Committee, the American Society of Safety Engineers. We
    have Frank Mirer, the Director of the Health and Safety
    Department from the UAW International Union, and we have Mr.
    Lawrence Halprin from Keller & Heckman, Washington, D.C.
        I do thank you all very much for your enormous patience. I
    hope it has been an interesting experience for you sitting here
    listening to these two different panels.
        With that said, I am going to begin with you, and I am
    going to welcome you back, Jennifer. We are glad to have you
    here, and we are glad to have you on that side of the table
    testifying, so please go right ahead.

      STATEMENT OF MS. JENNIFER WOODBURY, MCDERMOTT, WILL & EMERY

        Ms. Woodbury. Thank you so much, Chairwoman Kelly. It is my
    pleasure to be here. I am Jen Woodbury with the firm of
    McDermott, Will & Emery in our Washington office, as part of
    the OSHA group.
        I am very happy to be here today. I found the hearing
    illuminating, and, hopefully, what I have to say here today
    will add to that.
        I would like to clarify, first of all, I am testifying on
    my own behalf as opposed to my firm.
        I would like to note--I am going to paraphrase my testimony
    to keep it within the five-minute period. But, I would like to
    request that my entire statement be entered into the record.
        Chairwoman Kelly. Thank you very much.
        Ms. Woodbury. I have been practicing OSHA law for a few
    years now. But, when I started, my knowledge was probably
    equivalent to what some of the small businesses have to deal
    with. So, you can imagine how overwhelmed I was when I learned
    what I would have to learn. These are the CFRs for OSHA only.
    There's something like 1200 pages here, and it is pretty
    intimidating.
        I am a lawyer, but, when I started, I didn't know anything
    about it, and so I had to leaf through all this. So, you can
    imagine what small businesses have to deal with. It is
    unbelievable.
        So, what I would suggest to you is that any rule that is
    promulgated here--we are talking about OSHA--has to be clearly
    objective in nature so that small businesses know exactly what
    they are supposed to do in order to prevent injuries. That is
    the goal, so small businesses can know what they are supposed
    to do. It has to be objective; it has to be measurable; and it
    has to be understandable. I think what you heard here today is
    that the rule isn't all of those things, and that is what the
    problem is.
        The problem that exists is what OSHA terms and really
    bolsters about the rule as being flexible. What flexible means
    is that small businesses have their own opportunity to
    determine what is important for their business.
        I believe that is what Congressman Pascrell was going to. A
    flexible rule can be very good, because it helps the small
    businessperson put into practice things that work for that
    business. But, the problem is that flexible can also mean vague
    and ambiguous.
        My testimony goes into several examples, but I would just
    like to talk about one very briefly to stay within the five
    minutes. One of the key provisions of the OSHA ergonomics
    proposal is that employers must materially reduce MSD hazards.
    Well, all of us could come up with different interpretations of
    what ``materially'' means, so, of course, you want to look to
    the definition. Unfortunately, the definition is not going to
    help us very much, because here is what it says, ``To
    materially reduce MSD hazards means to reduce the duration,
    frequency, and/or magnitude of exposure to one or more
    ergonomic risk factors in a way that is reasonably anticipated
    to significantly reduce the likelihood that a covered MSD will
    occur.''
        Now, I want to be really clear. I think that, if we went
    around the room, there is no way that all of us, or maybe even
    two of us, could agree on what those three terms--reasonably
    anticipated, significantly reduced, or likelihood--mean. I
    don't think there is any way that we could come to one solid,
    absolute determination of what those terms mean. We have heard
    from some pretty respectable small businesses. I bet they
    couldn't even all agree, even as respectable as they are.
        But, despite this fact, no matter how reasonable your
    interpretation is, what this proposal says is: ``my
    interpretation wins, because I am the OSHA inspector.'' That is
    what the small businessperson is dealing with. It is not that
    they hate the rule, in many instances, anyway, or that they
    don't want any rule, or that rules don't work. It is that they
    can do their best, and they will still be cited.
        I heard Assistant Secretary Jeffress state, ``Well, we'll
    have to rely on the reasonableness of our OSHA inspectors.''
    That doesn't make anyone sit very calmly in their chair,
    knowing,''Well, I have no idea, really, what the inspector is
    going to say, but, boy, I am sure they'll be reasonable.'' That
    doesn't work, so I would suggest that that is a major problem
    with this proposal.
        Another major problem is that the proposal asks the
    employer to determine what a ``covered MSD'' is. In other
    words, did the injury occur at work or did it occur in an off-
    work activity, such as tennis-playing or gardening? We are
    expecting the employer not only to make that determination but
    to know that the employee engages in such activities. That is a
    problem, At the OSHA hearing--One of the attorneys in my OSHA
    practice group at the firm asked a Georgetown physician how he
    would make such a determination, and, indeed, there was no
    definitive answer given.
        I will close by saying that the most important thing I can
    get across is that company ergonomics programs absolutely can
    work. They can work when they are well-founded, but, without
    any objective measures, I would be concerned that this proposal
    will force small businesses who have a limited amount of money
    to spend on safety to spend that money trying to comply with an
    ambiguous and vague rule. That is going to be a problem. I
    thank you so much for the opportunity to testify here today and
    would be happy to answer any questions that you have.
        Thank you.
        [Ms. Woodbury's statement may be found in appendix]
        Chairwoman Kelly. Thank you very much. Next, we are going
    to hear from Jackie Nowell, whom I saw doing a lot of head-
    shaking out there. So, I hope this has been an interesting
    experience for you, Ms. Nowell, but I am looking forward to
    hearing your testimony.

      STATEMENT OF MS. JACQUELINE NOWELL, DIRECTOR, OCCUPATIONAL
           SAFETY AND HEALTH OFFICE, UFCW INTERNATIONAL UNION

        Ms. Nowell. Thank you very much, Chairwoman Kelly. It has
    been a long time since I have been up on the Hill, so, yes, a
    lot of head-wagging.
        My name is Jackie Nowell. I am the Director of the
    Occupational Safety and Health Office at the UFCW International
    Union.
        Five minutes goes very fast. Let me give you a little
    background. Then, I would like to actually comment on some of
    the issues that were brought up by the last panel.
        We do represent 1.2 million workers in the U.S. in retail,
    food, meat packing, poultry, food processing, warehousing,
    health care, garment and textile, footwear, and chemical
    industries. Included in this are over 400 small employers in
    virtually every state in the country.
        We strongly support OSHA's proposed ergonomics program. We
    have been actively working on this issue for 20 years. We began
    educating our members, seeing that there was a lack of programs
    and fixes out there in our industries. We filed OSHA complaints
    in the meat-packing, poultry, and catfish industries. We worked
    closely with the Department of Labor to develop red-meat
    guidelines issued by then Secretary of Labor, Elizabeth Dole.
    In 1991, we petitioned OSHA for an emergency temporary standard
    along with 29 other unions. In '92, Secretary Lynn Martin of
    the Department of Labor agreed with the unions' information
    supported initiation of 6(B)(5) rulemaking under the OSH Act to
    address ergonomic hazard. This standard has been ten years in
    the making, and it is long overdue.
        The UFCW has many programs in our plants with full union
    participation that are working to reduce MSDs.
        I am going to highlight three points quickly. Mr. Jeffress
    very clearly talked about these things being real.
        Let me tell you about Carolyn Shebora, who is a cashier at
    a grocery store in Alexandria, Virginia. She had bilateral
    carpal tunnel surgery and is fearful that it is coming back.
    Her company fought her workers' compensation claim for one and
    a half years. She had worked for them 27 years. She was
    devastated by that.
        To highlight what was said on the last panel about these
    conditions having been around forever, there has been an
    enormous change in the way we do work in this country. Just two
    industries--the poultry industry alone, 91 birds a minute, is
    what they will allow that line to go. If you think about word
    processing, secretaries used to do everything in the office,
    which gave them a lot of variety of tasks. Now, when you look
    in an office, you have word processors dedicated to doing
    nothing but keying all day long. So, when we talk about these
    things are new, they are new, but they are a result of changes
    in industry.
        Point two--many industries we represent have recognized the
    problem for more than 15 years and developed programs. One
    meat-packing industry plant, I can tell you, reduced its
    workers' comp costs by nearly 60 percent, reduced turnover by
    75 percent, and recouped all of their investment in the first
    two years of the program. The numbers of MSD cases were halved,
    and the number of surgeries fell 40 percent. 1I could give you
    other examples and will be glad to put them in the record.
        I was going to talk about the retail industry, because I
    thought there were going to be some grocery stores here.
        Let me switch to the health-care industry, and I would be
    happy to put in the record the research that has been done in
    nursing homes on back injuries. Back injuries are their biggest
    problem. They come forward all the time and tell you folks
    that. They have more lost-time injuries than construction has.
    The lift-assist equipment that is out there now is no longer
    mechanical. It is electric, and, in terms of who do you lift
    with that equipment, you lift residents who are not able to
    help the health-care provider--the aide--do that work. You do
    not use those lifts on everybody. They don't work on somebody
    who can assist you in the lift.
        So, just to get that in the record--There is a lot of
    information out there that has been developed by unions, trade
    groups, and associations that will be tremendously helpful to
    small business. I note that, on the table here, the National
    Association of Convenience Stores has put in their testimony
    that they have stuff available and they represent all small
    business. The Food Marketing Institute says that they
    represent--More than half of who they represent are single-
    store entities and they have on their Web site lots of
    information to help small business.
        Workers are being hurt. The examples that Charles gave,
    that I just gave, are but examples of hundreds of thousands of
    workers in the U.S. who are developing MSDs. I could also have
    told you about two more. You can see these workers when you go
    into your neighborhood grocery store, for example. They come
    from small plants and large plants, union plants and non-union
    plants. The point is it doesn't matter where they worked. They
    need help.
        Chairwoman Kelley. I am going to have to ask you to sum it
    up. The red light is on.
        Ms. Nowell. I will note that others have gone beyond the
    red light.
        While we note that there are some differences between small
    and large businesses, we believe the standard is flexible. It
    is programmatic rather than specification-based, meaning it is
    a flexible set of requirements that small business will be able
    to adapt to its establishment. But, if small business believes
    that OSHA needs to clarify the rule for them, then they should
    be informing OSHA of specific provisions that will assist them.
        Thank you for the opportunity to speak with you about this
    matter.
        [Ms. Nowell's statement may be found in appendix]
        Chairwoman Kelley. Thank you very much. We are next going
    to move to Mr. Halprin.

     STATEMENT OF MR. LAWRENCE HALPRIN, PARTNER, KELLER AND HECKMAN

        Mr. Halprin. Madam Chairwoman, members of the committee, my
    name is Lawrence Halprin, a partner in the law firm of Keller
    and Heckman.
        I appreciate the opportunity to be here today. As you can
    tell, there are more issues than we can ever take the time to
    talk about.
        I will try to address some of them. This rulemaking is
    different from any prior rule the agency has ever attempted to
    promulgate. For prior rules--Mr. Jeffress mentioned lead, for
    example--Causation of the harm was established. The harm's are
    due to exposures--to a lead exposure, which is unique to work.
    You are not going to find lead in a typical home. Exposures are
    measurable. The agency has established what it considers to be
    permissible exposure limits, which set safe limits and unsafe
    limits.
        None of that is present in this situation. The agency
    hasn't identified the harm in any meaningful way. You've got to
    look at an OSHA recordkeeping system to figure out what the
    harm is. It is not a medical definition. OSHA has come up with
    a procedure for saying something is an abnormal condition that
    in any way was caused, contributed to, or aggravated to any
    degree in any way by work. Once the employer cannot prove that
    was the case, it ends up on the log. Then, Mr. Jeffress comes
    along and says there's 600,000 of them. It is not terribly
    meaningful. To give the example that you talked about today
    with the worker who came from another job, I asked during the
    hearings. I asked the OSHA panel whether a standard--this
    standard--would be triggered by an employee who reported to
    work with a non-work MSD, then aggravated that injury
    performing the work he performed for many years without any
    problem. The answer from the Associate Solicitor for OSHA, the
    highest attorney responsible for OSHA matters, almost verbatim
    was. Yes, you take the worker as you find them.
        I think that is absurd. The same thing would happen if that
    worker had been working two jobs and injured in another one.
    This agency has absolutely no reasonable limits on the scope of
    this rule.
        An MSD is defined--my reading of this--so broadly that, if
    you have a little muscle discomfort which results in stiffness
    which limits your ability to touch your toes, which you
    normally would be able to do, you have restricted motion under
    this standard. An employer has then got to determine whether he
    has got to take the employee off the job long enough so that
    they can recover sufficient flexibility to touch the toes.
        There is something wrong with a standard that does that. It
    is not based on simply the 600,000 allegedly lost workday
    cases. It extends beyond them to anything else that, under the
    OSHA rule, is considered a recordable musculoskeletal disorder.
    I should mention that the rule in place today for recording
    musculoskeletal disorders is being substantially expanded and
    being incorporated into this rule so that the data will
    probably actually go up, because now OSHA is expanding the
    universe of things that are going to be covered. So, we have
    got an agency that goes beyond its own impairmente of health to
    regulate things that don't fall into that category.
        We've got a situation where they can't even define what the
    problem is, in a sense medically, if they use these assumptions
    and presumptions of work causation. That is what we are dealing
    with. Now, back to some of the research.
        I realize it is controversial, but OSHA must demonstrate
    that there are a significant number of employees who are
    exposed to hazards at unsafe levels by properly quantifying the
    risk. In this case, we think it is disingenuous for OSHA to say
    that it has performed a scientifically valid risk assessment in
    light of what has transpired in this proceeding. This is not an
    academic debate. If the research doesn't demonstrate that what
    OSHA proposes is going to work, whether it is not an effective
    way of doing it, whether it is going to impose burdens on
    employers that they shouldn't be on employers in the first
    place, something is terribly wrong.
        In this case, OSHA and NIOSH selectively relied on a body
    of outdated and inadequate studies. This is based on testimony
    from medical experts, obviously.
        I am not an expert in medical areas. According to BLS, the
    MSD rates, as was previously mentioned, are already declining
    at a rate of 24 percent over the four-year period we have
    talked about. OSHA projects a 50-percent decline in MSDs from
    this rule over ten years. So, actually, OSHA isn't projecting
    any better benefits than seem to be the trend, based on what is
    happening through voluntary programs currently in effect.
        OSHA excluded from its consideration, as you heard
    previously, the entire body of persuasive scientific evidence
    supported by written statements and testimony from people I
    believe to be some of the world's most outstanding medical
    experts, that the vast majority of covered MSDs are not caused
    simply by workplace exposure, to bio-mechanical factors. But,
    there are other considerations involved. Even NIOSH has
    acknowledged that, within the general population, non-
    occupational causes of low-back pain are probably more common
    than workplace causes. However, what OSHA would do would be to
    have this person come into work, and, if the employer doesn't
    catch them--and I will stop here--and stop them from
    aggravating the injury, then all of a sudden the injury is
    aggravated. The standard is triggered.
        I could go on, but I am out of time.
        I appreciate the opportunity. Thank you.
        [Mr. Halprin's statement may be found in appendix.]
        Chairwoman Kelly. Actually, we have a timer up here, so we
    know exactly how far everybody does run over.
        You didn't do too badly. Next, we have Dr. Mirer. Dr.
    Mirer, we would like to hear from you. Thank you very much for
    being so patient.

     STATEMENT OF DR. FRANK MIRER, DIRECTOR, UAW HEALTH AND SAFETY
                               DEPARTMENT

        Dr. Mirer. Dr. Frank Mirer, Director of UAW Health and
    Safety Department. I represent the UAW here today, but I want
    to start by telling you that my late father was a small
    businessman. He ran a union shop in a business in New York
    City. I spent many Sunday afternoons with him helping out
    getting work ready for Monday.
        I want to tell you, from personal experience, there is no
    reason why a small business owner or manager can't do
    ergonomics, can't understand this proposed rule, can't use our
    new knowledge to protect and retain employees. Frankly, if the
    employer associations would concentrate on technical support
    and education for their members, instead of what they are
    doing, especially here today, workers and employers would be a
    lot better off.
        Ten years is not rushing into anything. The ten years this
    has taken is a long lag, particularly in relation to people
    being hurt everyday.
        That is what is happening out in the world. With due
    respect to Ms. O'Shaughnessy, ergonomics is based on
    biomechanics and physiology, two quantitative disciplines.
    Biomechanics uses the same physics that an engineer would use
    in designing a building or an airplane. It is a quantitative
    method. Two observers will agree on the biomechanical stress on
    a body part. They can rank exposures with great precision. They
    can rank exposures before and after modifications of a job.
        The simple checklist systems that are being put in place
    all through industry are based on those biomechanical and
    psychophysical model results, which have been validated dozens
    and hundreds of times over in the scientific literature.
        It is not for a lawyer to say that they don't believe it.
    The scientific consensus was peer reviewed externally to by
    NIOSH and other agencies. It. that was confirmed by the NAS.
        There is a continuum of stresses, related to the continuum
    of health effects. The science is there. There is no question
    about it.
        The second point, is triggering mechanisms. Let's talk
    about what triggers into an ergonomics program. A worker
    complains of pain or injury to his employer. The employer
    selects the health-care provider to which the employee goes.
        The health-care provider determines whether this matter is
    work-related or not work-related. The health-care provider
    keeps other medical information confidential from the employer,
    the same way that the employer's medical information ought to
    be kept confidential from the employees. If it is determined to
    be work-related, then the employer analyzes the job. If the job
    does not contain risk factors for any musculoskeletal
    disorders, that is the end of it. No risk factors, no
    abatement, no other action. Also, the health-care provider
    selected by the employers is the one who determines whether the
    employee is at increased risk, and gets a restriction.
        Now, work removal protection has been in OSHA standards
    since 1978, when the lead standard went into effect. OSHA
    determined then, that medical provisions, where an employer was
    required to honor a restriction, also needed to protect the
    employee. We see no reason why this standard should be
    different.
        We have heard a lot of complaints about the plain language
    of the rule. This rule was reviewed by a SBREFA panel. They
    made 36 recommendations to OSHA regarding the standards. OSHA
    responded to each one of them and made changes in the
    regulatory text, the explanation, and the economic analysis.
    This responsiveness is, quite frankly, now being turned against
    OSHA, because every complaint we have heard today is about the
    plain language, about the flexibility in determining the
    exposure assessment methodology about permitting management to
    defer exposure assessment until injuries are there.
        Quite frankly, every one of these is a recommendation that
    industry, especially small business, made to OSHA. They were
    taken, and now they are here.
        The question of whether everybody has had their say, first
    of all, with due respect to the committee, if we were following
    the OSHA model, the first thing that would have happened here
    is we would be questioning you as to the basis for your
    position. You would have to answer those questions on the
    record. Then, we go to the rest of the proceeding. It has been
    grinding on before OSHA in Washington. I just came back from
    Chicago. We presented testimony from 14 or 15 local union
    representatives who are doing ergonomics successfully in
    plants, large and small, and offices all across the country.
        The bulk of analysis of risk factors on the job in the auto
    industry is being done by hourly workers off the floor who have
    had a training course in how to analyze risk factors. We have
    done this in plants, large and small. It is effective. Their
    ability to do this analysis is validated, and, quite frankly, I
    see no reason why a manager or an employer or an owner of a
    small business would not be able to do everything that our
    workers off the floor can do.
        Thank you very much.
        [Dr. Mirer's statement may be found in appendix.]
        Chairwoman Kelly. Thank you, Dr. Mirer. I appreciate your
    ending when you did, being brief.
        Mr. Cheffer, we have yet to hear from you. Thank you for
    being so very patient.

       STATEMENT OF MR. JOHN CHEFFER, CHAIR, AMERICAN SOCIETY OF
        SAFETY ENGINEERS NATIONAL GOVERNMENTAL AFFAIRS COMMITTEE

        Mr. Cheffer. Good afternoon, Chairwoman Kelly, members of
    the Subcommittee.
        My name is John Cheffer, I am a professional engineer,
    certified safety professional, and Chair of the American
    Society of Safety Engineers National Governmental Affairs
    Committee. ASSE was founded in 1911 and currently has almost
    33,000 members. It is the oldest and largest Society of safety
    professionals in the world. We are dedicated to the protection
    of property, people, and the environment on a worldwide basis.
        My testimony today focuses on how ASSE views the proposed
    ergonomics standard and how it could affect small business. It
    is also appropriate to point out that, throughout my
    professional life, I have personally worked with hundreds of
    small businesses on safety and health issues, including
    ergonomics.
        ASSE wants to be clear on the following point, and that is
    that the Society is a supporter of OSHA, as we believe the
    agency maintains a national focus on the importance of
    occupational safety and health, and there is a need for a
    functional and understandable ergonomics standard that enables
    all employers to recognize problems and learn how to solve
    them. However, ASSE is concerned that the flaws in the proposed
    rule, such as the single incident trigger, its interference
    with established state workers' compensation programs, and the
    rule's complexity with respect to small business entity
    compliance, may result in the rejection of the entire standard.
        Therein lies our concern, that the employees who would most
    benefit might be harmed. That is the precise reason why ASSE is
    the only organization that wrote an alternative proposal for
    OSHA's consideration with respect to small business issues.
        With respect to small business issues, a key question
    involves the cost and complexity of performing an ergonomic
    analysis. We believe OSHA has provided insufficient information
    to enable any small business owner or operator to understand
    the ergonomic issue and proposed standard or to determine what
    actions must be taken in order to identify and correct
    ergonomic hazards.
        ASSE is at a loss to see how a small business employer
    without specialized training will be able to use the standard
    to prevent work-related musculoskeletal disorders. We suggest
    the current proposal is much too complex for the average
    employer to use as a tool to address ergonomic issues.
        ASSE believes that the agency has underestimated the costs
    associated in implementing and maintaining compliance with the
    standard. The agency gives the perception that ergonomic
    evaluation and of controls are not that difficult to understand
    and are inexpensive to implement.
        However, ergonomics and cumulative trauma disorders are
    very complicated technical issues. Most ergonomic problems
    cannot be corrected through low-tech solutions such as having
    the employee stand on a box or propping up a computer monitor
    with a phone book, as ESHA has suggested.
        ASSE asked OSHA if it conducted any studies or research on
    how many small businesspeople can work in NIOSH lifting
    formula. The agency does not appear to have adequately studied
    this issue. For example, while the NIOSH formula tables and
    assessments are specifically referenced in the preamble, we do
    not believe that the typical small businessperson will be able
    to learn of this in the hour of training allotted in the
    preamble's cost estimate. Later in the preamble OSHA
    acknowledges that more training may be necessary, depending
    upon the specifics of the operation, but, this additional
    training is apparently not factored into the cost estimates.
        ASSE recently completed a survey of our members and other
    safety professionals on the issue of consultation. A total of
    4500 safety professionals were surveyed. While we readily
    acknowledged this is not a scientific evaluation, it does give
    an excellent snapshot of the cost considerations. Our data
    indicates that the average hourly billing rate for an ergonomic
    audit or evaluation is approximately $108.00 per hour for each
    consultant. This is an across-the-board average, and costs
    would probably be higher on the East or West Coasts.
        The basic problem with cost projections is that there are
    so many variables involved in performing a quality ergonomic
    evaluation, including the size and nature of the workplace and
    the workforce. The time required to conduct an evaluation at a
    small business involved with material handling or manufacturing
    would certainly be more extensive than an audit in an office
    setting.
        The fixes could be much more costly as well. Along with the
    initial consultant's visit, there would be cost associated with
    report preparation, follow-up consultation, potential revisions
    to an action plan, and implementation of the recommendations.
        Based upon our data and experience, the OSHA time estimates
    in the proposed rule are inaccurate with respect to
    implementation of a work-related musculoskeletal disorder
    prevention program. With respect to the cost of correcting
    ergonomic hazards at a small retail or service business, ASSE
    cannot give an overall estimate because of the variety of work
    environments. However, I have personally worked on issues which
    have run anywhere from $15.00, a small charge, such as changing
    table legs, to completely re-engineering a work process which
    costs thousands of dollars.
        Each situation is different. That is the key difficulty
    with assessing the impact of OSHA's proposed ergonomics
    standard. There is no one-size-fits-all approach to ergonomics,
    and our core belief is that it is impossible to provide a one-
    size-fits-all cost average.
        Another issue is whether OSHA could have identified
    successful ergonomic intervention controls. In January of 1997,
    ASSE had an opportunity to work with OSHA on a very successful
    conference titled ``Ergonomics, Effective Workplace Practices
    and Programs.'' There were approximately a thousand
    participants representing both the private and public sector.
    The conference focused on different approaches to ergonomics.
    The results were excellent and would have been useful for OSHA
    to point to some of these intervention strategies in the
    proposed rule's preamble for consideration by interested
    stakeholders. Such examples could show how ergonomic hazards
    have been effectively and efficiently addressed in the
    workplace by employers.
        In summary, although ASSE's overall experience with OSHA
    has been very positive and we believe that a standard is
    needed, OSHA should not finalize the rule as drafted in the
    1999 November proposal. OSHA should find an alternative method
    for protecting U.S. workers from work-related ergonomic
    injuries----
        Chairwoman Kelly. Mr. Cheffer, I am going to interrupt here
    and ask you to summarize.
        Mr. Cheffer [continuing]. On impacting small business, and
    I think that is as good a summary as I can do.
        [Mr. Cheffer's statement may be found in appendix.]
        Chairwoman Kelly. Thank you very much. I want to thank all
    of the panel.
        There's a couple of things. I think, Ms. Nowell, you
    pointed out in your meat-packing case just exactly why it is a
    good idea that we have some rule affecting the ergonomics
    situation, because, obviously, the people who own that meat-
    packing plant, who found that they have lowered their injury
    level and there are workers who are retaining their jobs, and
    so on, obviously they were comfortable helping to work with the
    workers to make sure that they stayed on the job.
        It takes a long time to train a worker, as we heard in the
    other panel. You don't want to lose them, so I think your case
    was very well made.
        I am glad to hear that, but I want to go--just one thing
    that Dr. Mirer brought up. You were talking about the trade
    associations being against this and speaking against this
    proposed rule. Are you aware that the Office of Advocacy of the
    U.S. Small Business Administration opposes this rule?
        Dr. Mirer. I am not aware of it. I have been talking from
    our experience over in the OSHA hearings about all--a third of
    the trade associations that have appeared there have said they
    would do some technical assistance, do some training, present
    some information to their members on how to abate ergonomic
    hazards. I would guess about two-thirds of the remainder say
    that all they have done is essentially repeat the comments that
    are on the NAM Web site opposing the standard. So, some of the
    trade associations are stepping up to what they ought to do,
    helping their members protect their workers, and others are
    simply playing the regulatory game.
        Chairwoman Kelly. Well, Dr. Mirer, there's got to be pretty
    good reasons why the Office of Advocacy in the Small Business
    Administration is opposing this rule. I think it would be good
    if you also had a look at those, because that may affect what
    your workers are involved in.
        The other thing is that it points out something that was
    brought forth in the second panel. That is, too frequently,
    people who are regulated by Washington agencies are caught
    between agencies. There's a rule that says this, and there's a
    rule that says that. Nobody knows exactly where they stand, and
    this is one of the biggest problems I have in understanding
    this whole ergonomics thing. I don't see how this is going to
    go through without catching a whole lot of people in a swamp of
    alternate agency rules and regulations. I don't see how that is
    going to happen. This is my grave concern.
        It is important that we take care of our workers. Nobody
    wants to have them be harmed, but on page 11 of your testimony,
    you cite a whole bunch of examples of small businesses that
    have worked with the UAW to establish effective ergonomics
    programs. I want to know if you could supply the details of
    those programs to this committee staff so we could study them,
    and include them in the record. This might be very helpful for
    us. Can you do that?
        Dr. Mirer. Certainly. We will provide our training
    materials.
        With all due respect, about the conflicting regulation
    issue, I believe what Mr. Russ testified to was that, for those
    employees, those patients, who did not want to use the
    mechanical assist, that the employer would have to come up with
    an alternative. But, I was pleased to hear that he did have
    mechanical lifts. I was pleased to hear that the estimate of
    cost of equipping a facility, which I thought was actually
    surprisingly low--I was pleased to hear that, in an industry
    where 78 percent of the injuries are musculoskeletal, which
    leads many, many injuries, he was able to get his rate down to
    zero. I thought that was maybe the strongest testimony in
    support of ergonomics we have heard today.
        Chairwoman Kelly. Dr. Mirer, he did it without any rule or
    regulation. He just did it.
        Dr. Mirer. But, obviously, if you look at the experience of
    the industry as a whole, his competition is not doing it at
    all. In order to achieve the rate that they are seeing,
    somebody had to double the industry rate in order to get to the
    rates that they have.
        Chairwoman Kelly. While you are taking your big stick and
    whacking those people, it would be nice if you didn't take the
    big stick to the people who are really willing and able and had
    conformed and done what they could to try to help their
    workers. That is a real concern.
        I also wanted to ask you, sir, about the fact that say--and
    I really applaud you--I think your training program sounds
    very, very good. That 40-hour course and all the rest of it
    sounds really good. Can you give us an estimate on how much
    time is involved in addition to that 40-hour course that your
    people have where they have had training technique instruction,
    and they have been evaluated by the UAW staff and the
    University of Michigan and the job analyses? How much more time
    beyond that 40 courses--40-hour course is involved?
        Dr. Mirer. The issue is what degree of sophistication.
        Chairwoman Kelly. I am just asking about your course.
        Dr. Mirer. I understand that, but, in the car companies
    where there are full-time ergonomic analysts, they have had
    several courses in addition to that.
        In the smaller plants, the 40-hour course or even the
    shorter course is sufficient to be able to do the initial
    assessment of whether jobs have risk factors or not.
        A simple checklist can be used at UAW GM. They go to
    various computer programs after they have finished with the
    simple assessment. So, the short of it is you don't actually
    need the full 40 hours in order to be able to do the kind of
    risk assessments you would for a dishwasher or a sewing-machine
    operator. If you were going to do very sophisticated analyses
    of car assembly processes, you would need more. But, for the
    kinds of activities that are done in most small workplaces, you
    don't need the 40-hour course to do an effective ergonomics
    analysis.
        Chairwoman Kelly. I am only asking you about your industry,
    the people that the UAW deal with.
        It looks like a very good training program. You say you
    don't need the 40-hour course. What would be the average that
    your folks would have--would spend if they don't take that 40-
    hour course, and the other related people that you deal with
    under the purview of the UAW? What is the average that you
    would think that they need or that they are getting?
        Dr. Mirer. Probably, for ergonomics committee members that
    are going to be doing analysis on an ongoing basis, a sort of--
    start with a one-day course.
        Chairwoman Kelly. One day, eight hours?
        Dr. Mirer. Yes, which enables them to use the basic job
    checklist.
        Chairwoman Kelly. The rule, as I understand it, requires
    one hour.
        Dr. Mirer. The one hour is for the employer to familiarize
    himself with the standard and with the three or four job
    characteristics that are listed in the standard.
        Chairwoman Kelly. Ms. Woodbury, I can see you are shaking
    your head. Would you like to respond to that?
        Ms. Woodbury. If you turn your attention to page 66038 of
    the preamble, Cost to Train Employees, one hour of employee
    time per affected employee is the cost to train employees. This
    is just from OSHA's preamble, that 66038, and two hours of
    managerial time.
        Dr. Mirer. You are talking about a completely different
    thing.
        That is completely different. That is the training for the
    employee exposed on the job. I was talking about the training
    for the person who is analyzing the job in order to measure the
    risk factors and devise abatement methods. Those are completely
    different things.
        Chairwoman Kelly. I am glad we are getting this cleared up.
    So, what would you think we should do about training the
    employees?
        Dr. Mirer. An hour is adequate for the exposed employees.
        Chairwoman Kelly. But you think at least eight hours, if
    you are going to have somebody who is doing the evaluations?
        Dr. Mirer. I think the job analysis requires that amount of
    time.
        Chairwoman Kelly. I am just going to go back to a couple of
    other questions.
        Mr. Halprin. Excuse me, Madam Chairwoman. May I ask? As I
    understand from Dr. Mirer's testimony, the UAW has in many
    cases negotiated risk factor tables--correct me if I am wrong--
    with the employers. So, they are not sitting on a situation
    where they have to guess what the numbers are. They've got a
    list of tables. Either you are above, or you are below. If you
    are above, you've got a problem under their contract, and, if
    you are below, you don't, which is not necessarily something
    that OSHA would accept. Probably will in their scenario, but
    that remains to be seen. But, that is not the scenario that is
    available to a small employer. That is General Motors and Ford
    and companies like that.
        For them to come out and provide that service is wonderful.
    If they would like to expand that to the other millions of
    small employers in this country, that would be wonderful. But,
    I don't think they have got the resources for that, either.
        I am a little concerned about saying it is simplistic.
    They've got a negotiated number. In a sense, they have made a
    policy decision between their companies and their unions about
    what level of stress they think is appropriate for a worker to
    be able to handle, and they have made that on a negotiated
    basis.
        Chairwoman Kelly. Thank you very much for your input. I
    appreciate that.
        I am going to turn now to Mr. Pascrell. I am coming back to
    pick up a couple of questions that I have left, but go ahead,
    Mr. Pascrell.
        Mr. Pascrell. Mr. Halprin, do you agree or disagree with
    the assertion that there is an MSD worker problem in America?
        Mr. Halprin. I believe there is a limited problem. It is
    drastically overstated by the agency.
        Mr. Pascrell. I don't want to put words in your mouth. Is
    that the reason why you thought that you questioned the
    authenticity of the 600,000 figure?
        Mr. Halprin. Let me explain. I think you intended to
    mention repetitive motions. Repetitive motion cases are about
    75,000. The other 575,000 are single-incident events.
        Mr. Pascrell. So you think that the first number, 75,000--
    the 75,000 figure----
        Mr. Halprin. That is a more realistic estimate, a starting
    point for this problem. Now, whether those are caused by
    biomechanical factors or psychosocial factors, or some
    combination, that is what the debate is about.
        Mr. Pascrell. Well, you did say that what the worker brings
    to the workplace has a lot to do with this, too.
        Mr. Halprin. Correct.
        Mr. Pascrell. That isn't to say that the job itself or the
    work entailed on the job precipitated or worsened the
    situation. I mean, that is a person- by-person evaluation,
    isn't it?
        Mr. Halprin. I am not sure I understand the question.
        Mr. Pascrell. If there is a problem, regardless of what the
    number is, we do want to try to be helpful. If we are going to
    promulgate the rule, we want some results to avoid these
    problems in the future. You are not saying, are you, that you
    don't think the problem is such or has reached the point where
    we should have a rule?
        Mr. Halprin. The problem has not reached a level or been
    established to a level that would justify a rule of this scope
    or this reach.
        Mr. Pascrell. What would you suggest?
        Mr. Halprin. Going back to the science, getting some clear
    science. I would respectfully disagree with Dr. Mirer on what
    the level of science currently is and what it shows.
        For example, there are a fair amount of data that show that
    employees' jobs--the physical aspects of the job don't cause
    the problem. But, the workers simply hate their job, or they
    hate their boss, or they have some other problem in life which
    compounds and brings out factors. As a result, they show
    symptoms for unknown reasons. Now, there are going to be some
    highly stressful jobs which cause problems. They are limited.
    This rule does nothing to try to address and sort them out. It
    basically goes after everything and leaves the employer in a
    situation where it is totally up to an OSHA compliance officer
    to decide whether something is covered or not and whether the
    employer has done enough.
        The agency has come up with--It almost looks like
    negotiated bargaining here. They have come up with a proposal
    which is so outlandish that I honestly feel the employer
    community has no choice but to oppose it. I think that is the
    general gist of what I am saying. It is too far out.
        Mr. Pascrell. So you are saying that the rule is too broad?
        I want to clear up this one point, though. OSHA is not
    sending inspectors business by business to see what they have
    in place to prevent certain kinds of injuries. OSHA inspectors
    only go to a business where there has been a complaint to see
    whether there is a plan to prevent it in the future. Is that
    correct or incorrect?
        Mr. Halprin. Partially correct. The other alternative would
    be to go to industries with higher than average--For example,
    lost work to day injury/illness rates, and, potentially, I
    don't know. The agency may consider a program based on
    somebody's musculoskeletal injury rate, which, again, like I
    said, I believe is inflated and, therefore, could very easily
    misguide OSHA compliance officers and send them to the wrong
    place.
        Mr. Pascrell. So, basically, when you come right down to
    this, there is a basic disagreement between yourself and Dr.
    Mirer as to whether or not the science is at the point that we
    can define what is a work-related injury within the category
    that we are talking about here today.
        Mr. Halprin. Whether it is work-related, what the cause is,
    and if there are other factors, how to sort them out, how it is
    fair, is a matter of policy to decide what burdens are
    appropriate to put on an employer and which burdens are not.
        Mr. Pascrell. Let's take a specific industry then that has
    been a target or much has been written, much has been
    discussed--the poultry industry. Have you yourself taken a look
    at that industry to see what are the reasons why there have
    been so many complaints within that industry?
        Mr. Halprin. No, I have not.
        Mr. Pascrell. Actually, it is industries such as that that
    precipitated the research--the ten-year study to get us to
    where we are today.
        Mr. Halprin. Right. Now, that poultry industry, as I
    understand it, and some of the meat-packing, still have,
    although they are improved, the highest rates in the country.
    This standard would require that they be down to zero. Totally
    infeasible. That is what I am talking about, about over-
    reaching, unrealistic, and basically giving employers no choice
    but to say. Forget it.
        Mr. Pascrell. Let's take that meat-packing and poultry
    industry. What you are saying is that the rule as proposed at
    this moment in time, although we are going to see some other
    changes, we think, does not meet the task of solving the
    problem in the first place.
        Mr. Halprin. Correct, it is too broad. It doesn't reach the
    problem. There are already meat-packing guidelines in effect,
    which OSHA has in effect been enforcing. It is questionable
    whether this actual rule would require things that would do
    anything more than what is already in place on a voluntary
    basis.
        Mr. Pascrell. So without studying the industry as such,
    which you provided us, there is a problem. We really don't know
    what the extent of the problem is. This rule is not going to
    solve the problem. We need a much more specific rule to solve
    that problem for that industry.
        Mr. Halprin. No, I did not say that.
        Mr. Pascrell. Then what are you saying?
        Mr. Halprin. There are some industries with high reported
    rates. I can't tell you what all the reasons are for them.
    There are guidelines in place to address that industry. If OSHA
    were going to look at it, it would make more sense to look at
    industries that don't already have those guidelines in place
    and think about developing guidelines for those industries.
        Mr. Pascrell. So, in other words, what we need is a rule
    that pertains to poultry and a rule that pertains, maybe, to
    data entry, and a rule that pertains to machinists.
        Mr. Halprin. Given the current state of the science,
    assuming those can be justified, yes. The agency does not have
    data, to the best of my knowledge--nobody does--that says how
    many times you can lift your arm or push it in a certain
    direction, with how much force, and how much twisting. That is
    the basis on which every one of these other health standards
    has been based on. The closest thing you might call to this is
    probably noise, where there is noise in the workplace, noise
    outside the workplace. But, there is a permissible exposure
    limit, and the noise has been demonstrated to cause hearing
    loss.
        We just don't have clear causation here. We don't have
    numerical links. Basically, OSHA is saying. Go out there and
    guess and experiment, and, if we like what you do, fine. If we
    don't, we'll second-guess you. If you don't do it right,
    basically, be prepared for us to take some enforcement action.
    At that point, of course, they will issue a citation and tell
    you what they think you should have done, and you'll be put in
    the position of trying to defend it. If you are a small
    business, you can't afford to defend the situation, so, unless
    it is going to put you out of business, you roll over and do
    what OSHA says.
        Mr. Pascrell. OSHA doesn't want to put anybody out of
    business. You don't think that?
        Mr. Halprin. I don't think OSHA has enough knowledge to
    know when they are going to put somebody out of business. As
    the Chairwoman mentioned, we can tell pitchers not to throw
    pitches for more than three innings. We can ban the curve ball.
    We can change the game. We can change the business.
        Mr. Pascrell. But we are becoming jocular here about a
    serious problem in the workplace in different places. This is
    serious business, and I am sure he is reading it seriously,
    too. It is easier to measure decibels than it is how many times
    I can go to the plate, and we know that. So, you don't really
    believe we can find some general standard that could
    precipitate what we should be doing in each of those
    industries. You believe they should be all taken separately as
    has been in the past.
        Mr. Halprin. Correct.
        Mr. Pascrell. I don't totally agree with you, but I just
    wanted to clarify some things here. I am not against rule-
    setting. You believe that the rule that is being proposed will
    not correct the problem.
        So, what you are asking for----
        Mr. Halprin. It will be grossly inefficient. It is going to
    be counterproductive. All those things.
        Mr. Pascrell. So what you are suggesting is that it become
    even more specific.
        Mr. Halprin. Provided the science is there to support it,
    correct, not just pull numbers out of thin air, which is what
    the agency does.
        Mr. Pascrell. Thank you.
        Ms. Woodbury. If I could comment on that. I think what we
    would be interested in is, if there is science--Mr. Halprin
    mentioned the noise rule with a dBA of 90. But, then, they
    allow the employer to use feasible means to get there. But,
    there is an objective getting it down to 90 dBA engineering
    controls using personal hearing protection. Here, we don't have
    that 90 dBA as a goal. I use the example of ``materially
    reduce''.
        If we used that same criteria in the noise rule, would
    ``materially reduce'' mean 90, 85, 95, 80? We need an objective
    goal, so I think we agree that flexibility is good. But, we
    need a goal at the end of the rainbow, or else we are all going
    to be all over the map and there's going to be subjective
    differences in how the rule is enforced, and that is a big
    problem.
        Mr. Pascrell. My concern, Madam Chair, about that is that
    the more specific we think we can become the more intrusive we
    become within the business that we are trying to deal with.
    That is my concern, and I think it is a clear concern--To me it
    is. Correct me if I am wrong. What we might be suggesting is
    that we want these rules to be more activity-specific, that the
    standards be more activity-specific, and the solution be more
    activity-specific. Maybe, to me, that goes too far, having
    started out in support, generally, of what OSHA was trying to
    do. We don't want to chop ourselves here, but we do want to
    understand how we are going to come up with a rule--OSHA is
    going to come up with a rule we are going to have to live with.
    We cannot have it both ways.
        Mr. Halprin. I would like to add one point. The logical
    approach would be to come up with some guidelines first and try
    them out first for a few years, not adopt a rule to include the
    entire universe in the U.S. industry.
        Mr. Pascrell. So you would say a pilot program?
        Mr. Halprin. Makes perfect sense.
        Mr. Pascrell. It goes into effect, say, in January rather--
    and see how that works out over two or three years before you
    become industry-specific.
        Mr. Halprin. If industry-specific turned out to make some
    sense.
        Ms. Woodbury. I would agree that a pilot program----
        Mr. Pascrell. Would the National Association of
    Manufacturers support that?
        Ms. Woodbury. I think you would need to ask them, but I
    think that, before we get to the point of saying a rule is
    absolutely necessary, if we are saying to employers, well, you
    have to determine what a covered MSD is--because we don't
    really have the science in place to establish guidelines to
    help you do that--then the guidelines make perfect sense. The
    problem is not whether ergonomics or injuries are happening. It
    is how can we make sure that the money we spend and the things
    that we put in place are actually going to cure them.
        That is the crux, and that is what guidelines can help do.
        Chairwoman Kelly. Thank you very much. Ms. Woodbury,
    something occurred to me when I was reading your testimony.
        Under this proposed rule, the worker who has an injury
    would be allowed to be out for six months with full pay or the
    equivalent of full pay while they are recovering from this
    injury. I just wanted to know if you can tell me what is the
    average maternity leave. It is about three months, isn't it?
        Ms. Woodbury. I have not had the opportunity to have that
    maternity leave. However----
        Chairwoman Kelly. Let me enlighten you. I have.
        Ms. Woodbury. Somewhere around three months.
        Chairwoman Kelly. It is about three months, and they don't
    take into account whether or not you have had a caesarian or
    any other kind of difficult delivery. It simply is three
    months. It is interesting to me that, in this rule, they are
    doubling that amount of time. Under the Family Leave Act, it is
    three months. It is interesting to me that, under this rule,
    they have doubled the amount of time.
        If you have an MSD, I find it very curious that we would
    need six months to recover from something that could be
    considerably less traumatic than a difficult delivery involving
    a C-section. I think that was an interesting--You didn't bring
    that out in your testimony. But, you mentioned the fact that it
    was a six-month leave with full pay, and I think that is a very
    good point to focus on.
        Dr. Mirer. Congresswoman Kelly, could I respond to that,
    please?
        The situation with medical work removal protection is this.
    The employer is selecting the health-care provider. The
    employer's health-care provider determines whether the MSD is
    work-related and whether to place a restriction on the
    employee. It is a choice of the employers, somebody hired by
    the employer to do that.
        The importance of work removal protection is that, if an
    employee goes back on an unabated job that has hurt him or her
    already, we can be virtually certain they will get hurt again.
    We can be virtually certain that the job will progress to
    further disability. So, the purpose of the duration is really
    the time it would take to fix the job that they were on before.
    But, in any case, this is an individual decision being made by
    the employer's health-care provider that they can't work the
    job.
        Now, Mr. Kremp described exactly the way we would hope the
    process would work. He had an employee who was hurt. They found
    him something else to do that he could do. He had employees
    that were too old or they said advanced in age to do the tasks
    that they were originally doing. He found them something to do.
    We think that employers can accommodate this very well.
        Out of the plant--You are disqualified out of the plant,
    that is another factor. In fact, we would like to see the full
    MRP/MPR framework that has been there with lead and cadmium and
    formaldehyde and methylene chloride put back into the rule
    rather than what we have there now, but that is the rationale.
        Chairwoman Kelly. Dr. Mirer, there is one thing about the
    cadmium and all the rest of those things that you have listed.
    They are fatal. The MSDs are not necessarily fatal, and I think
    that is a very important point.
        Ms. Woodbury There is something else that you wanted to
    say.
        I wanted to respond to Dr. Mirer's comment saying that it
    is the health-care professional's determination whether
    something is work-related or not in an injury. That is
    incorrect. What OSHA says is that it is the employer's decision
    whether something is work-related. So, the employer, who is not
    a doctor in most cases, would have to make a decision whether
    something is covered, whether it is work-related. That means
    that that employer would have to know what all of the
    employee's home activities are, whether he is a gardener or
    plays tennis, and would then have to make a determination. Is
    this related to gardening, or is it related to the job?
        As I mentioned in my statement, one of the attorneys in my
    group during the OSHA public hearings asked a Georgetown
    physician how he would make such a determination. There is no
    definitive answer, yet OSHA is expecting the employer to make
    that decision in order to go forward.
        I just wanted to clarify. Thank you.
        Mr. Halprin. Can I add something to that?
        Chairwoman Kelly. Yes, Mr. Halprin.
        Mr. Halprin. Beyond that, because the standard is written
    to say does ``cause or contribute.'' Then, you read the
    preamble and ``contribute'' means aggravate. It doesn't matter
    whether thegardening might have been the primary factor. The
    question is did work in any way aggravate it to any degree.
        If the answer is yes, it is covered. Second, although it is
    the employer's decision, if the employee doesn't like the
    decision, they file a complaint with OSHA. OSHA comes in to
    conduct an inspection to see whether the decision was correct.
        I can't say that is the most efficient way of doing things,
    but it is not as though it is the employer's absolute decision
    and there is nothing else that is going to happen if the
    employee files a complaint. The employer has got to go through
    an OSHA inspection about it and try to justify and document why
    they came to the decision they did. Then, of course, there is
    the problem that the standard, as written, doesn't allow the
    employer to have access to the information they need to make
    the decision. That is another issue.
        Chairwoman Kelly. I thank you. I think that, obviously,
    honest minds can differ on this subject to a certain degree.
        But, as Mr. Pascrell points out, we need to come to a
    thoughtful decision with this rule. There is a need for more
    information. There is a need for thought.
        It is only, I believe, by working together, that we are
    going to come up with some kind of a decision on this rule that
    will be something that is enforceable and workable, will
    protect the workers but also will protect the employers,
    especially those of us who are small businesspeople who must
    contend everyday on an individual basis with many rules and
    regulations that are promulgated by these agencies.
        So often, many of these do conflict. I thank all of you
    very much for being here on the panel today. I really thank you
    for your patience and your willingness to speak forth and to be
    so strong in your opinions.
        Thank you very much. Hearing is adjourned.
        [Whereupon, at 3:15 p.m., Monday, April 14, 2000, the
    hearing was adjourned.]

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