[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.]


[GRAPHIC] [TIFF OMITTED]67091A.001

[GRAPHIC] [TIFF OMITTED]67091A.002

[GRAPHIC] [TIFF OMITTED]67091A.003

[GRAPHIC] [TIFF OMITTED]67091A.004

[GRAPHIC] [TIFF OMITTED]67091A.005

[GRAPHIC] [TIFF OMITTED]67091A.006

[GRAPHIC] [TIFF OMITTED]67091A.007

[GRAPHIC] [TIFF OMITTED]67091A.008

[GRAPHIC] [TIFF OMITTED]67091A.009

[GRAPHIC] [TIFF OMITTED]67091A.010

[GRAPHIC] [TIFF OMITTED]67091A.011

[GRAPHIC] [TIFF OMITTED]67091A.012

[GRAPHIC] [TIFF OMITTED]67091A.013

[GRAPHIC] [TIFF OMITTED]67091A.014

[GRAPHIC] [TIFF OMITTED]67091A.015

[GRAPHIC] [TIFF OMITTED]67091A.016

[GRAPHIC] [TIFF OMITTED]67091A.017

[GRAPHIC] [TIFF OMITTED]67091A.018

[GRAPHIC] [TIFF OMITTED]67091A.019

[GRAPHIC] [TIFF OMITTED]67091A.020

[GRAPHIC] [TIFF OMITTED]67091A.021

[GRAPHIC] [TIFF OMITTED]67091A.022

[GRAPHIC] [TIFF OMITTED]67091A.023

[GRAPHIC] [TIFF OMITTED]67091A.024

[GRAPHIC] [TIFF OMITTED]67091A.025

[GRAPHIC] [TIFF OMITTED]67091A.026

[GRAPHIC] [TIFF OMITTED]67091A.027

[GRAPHIC] [TIFF OMITTED]67091A.028

[GRAPHIC] [TIFF OMITTED]67091A.029

[GRAPHIC] [TIFF OMITTED]67091A.030

[GRAPHIC] [TIFF OMITTED]67091A.031

[GRAPHIC] [TIFF OMITTED]67091A.032

[GRAPHIC] [TIFF OMITTED]67091A.033

[GRAPHIC] [TIFF OMITTED]67091A.034

[GRAPHIC] [TIFF OMITTED]67091A.035

[GRAPHIC] [TIFF OMITTED]67091A.036

[GRAPHIC] [TIFF OMITTED]67091A.037

[GRAPHIC] [TIFF OMITTED]67091A.038

[GRAPHIC] [TIFF OMITTED]67091A.039

[GRAPHIC] [TIFF OMITTED]67091A.040

[GRAPHIC] [TIFF OMITTED]67091A.041

[GRAPHIC] [TIFF OMITTED]67091A.042

[GRAPHIC] [TIFF OMITTED]67091A.043

[GRAPHIC] [TIFF OMITTED]67091A.044

[GRAPHIC] [TIFF OMITTED]67091A.045

[GRAPHIC] [TIFF OMITTED]67091A.046

[GRAPHIC] [TIFF OMITTED]67091A.047

[GRAPHIC] [TIFF OMITTED]67091A.048

[GRAPHIC] [TIFF OMITTED]67091A.049

[GRAPHIC] [TIFF OMITTED]67091A.050

[GRAPHIC] [TIFF OMITTED]67091A.051

[GRAPHIC] [TIFF OMITTED]67091A.052

[GRAPHIC] [TIFF OMITTED]67091A.053

[GRAPHIC] [TIFF OMITTED]67091A.054

[GRAPHIC] [TIFF OMITTED]67091A.055

[GRAPHIC] [TIFF OMITTED]67091A.056

[GRAPHIC] [TIFF OMITTED]67091A.057

[GRAPHIC] [TIFF OMITTED]67091A.058

[GRAPHIC] [TIFF OMITTED]67091A.059

[GRAPHIC] [TIFF OMITTED]67091A.060

[GRAPHIC] [TIFF OMITTED]67091A.061

[GRAPHIC] [TIFF OMITTED]67091A.062

[GRAPHIC] [TIFF OMITTED]67091A.063

[GRAPHIC] [TIFF OMITTED]67091A.064

[GRAPHIC] [TIFF OMITTED]67091A.065

[GRAPHIC] [TIFF OMITTED]67091A.066

[GRAPHIC] [TIFF OMITTED]67091A.067

[GRAPHIC] [TIFF OMITTED]67091A.068

[GRAPHIC] [TIFF OMITTED]67091A.069

[GRAPHIC] [TIFF OMITTED]67091A.070

[GRAPHIC] [TIFF OMITTED]67091A.071

[GRAPHIC] [TIFF OMITTED]67091A.072

[GRAPHIC] [TIFF OMITTED]67091A.073

[GRAPHIC] [TIFF OMITTED]67091A.074

[GRAPHIC] [TIFF OMITTED]67091A.075

[GRAPHIC] [TIFF OMITTED]67091A.076

[GRAPHIC] [TIFF OMITTED]67091A.077

[GRAPHIC] [TIFF OMITTED]67091A.078

[GRAPHIC] [TIFF OMITTED]67091A.079

[GRAPHIC] [TIFF OMITTED]67091A.080

[GRAPHIC] [TIFF OMITTED]67091A.081

[GRAPHIC] [TIFF OMITTED]67091A.082

[GRAPHIC] [TIFF OMITTED]67091A.083

[GRAPHIC] [TIFF OMITTED]67091A.084

[GRAPHIC] [TIFF OMITTED]67091A.085

[GRAPHIC] [TIFF OMITTED]67091A.086

[GRAPHIC] [TIFF OMITTED]67091A.087

[GRAPHIC] [TIFF OMITTED]67091A.088

[GRAPHIC] [TIFF OMITTED]67091A.089

[GRAPHIC] [TIFF OMITTED]67091A.090

[GRAPHIC] [TIFF OMITTED]67091A.091

[GRAPHIC] [TIFF OMITTED]67091A.092

[GRAPHIC] [TIFF OMITTED]67091A.093

[GRAPHIC] [TIFF OMITTED]67091A.094

[GRAPHIC] [TIFF OMITTED]67091A.095

[GRAPHIC] [TIFF OMITTED]67091A.096

[GRAPHIC] [TIFF OMITTED]67091A.097

[GRAPHIC] [TIFF OMITTED]67091A.098

[GRAPHIC] [TIFF OMITTED]67091A.099

[GRAPHIC] [TIFF OMITTED]67091A.100

[GRAPHIC] [TIFF OMITTED]67091A.101

[GRAPHIC] [TIFF OMITTED]67091A.102

[GRAPHIC] [TIFF OMITTED]67091A.103

[GRAPHIC] [TIFF OMITTED]67091A.104

[GRAPHIC] [TIFF OMITTED]67091A.105

[GRAPHIC] [TIFF OMITTED]67091A.106

[GRAPHIC] [TIFF OMITTED]67091A.107

[GRAPHIC] [TIFF OMITTED]67091A.108

[GRAPHIC] [TIFF OMITTED]67091A.109

[GRAPHIC] [TIFF OMITTED]67091A.110

[GRAPHIC] [TIFF OMITTED]67091A.111

[GRAPHIC] [TIFF OMITTED]67091A.112

[GRAPHIC] [TIFF OMITTED]67091A.113

[GRAPHIC] [TIFF OMITTED]67091A.114

[GRAPHIC] [TIFF OMITTED]67091A.115

[GRAPHIC] [TIFF OMITTED]67091A.116

[GRAPHIC] [TIFF OMITTED]67091A.117

[GRAPHIC] [TIFF OMITTED]67091A.118

[GRAPHIC] [TIFF OMITTED]67091A.119

[GRAPHIC] [TIFF OMITTED]67091A.120

[GRAPHIC] [TIFF OMITTED]67091A.121

[GRAPHIC] [TIFF OMITTED]67091A.122

[GRAPHIC] [TIFF OMITTED]67091A.123

[GRAPHIC] [TIFF OMITTED]67091A.124

[GRAPHIC] [TIFF OMITTED]67091A.125

[GRAPHIC] [TIFF OMITTED]67091A.126

[GRAPHIC] [TIFF OMITTED]67091A.127

[GRAPHIC] [TIFF OMITTED]67091A.128

[GRAPHIC] [TIFF OMITTED]67091A.129

[GRAPHIC] [TIFF OMITTED]67091A.130

[GRAPHIC] [TIFF OMITTED]67091A.131

[GRAPHIC] [TIFF OMITTED]67091A.132

[GRAPHIC] [TIFF OMITTED]67091A.133

[GRAPHIC] [TIFF OMITTED]67091A.134

[GRAPHIC] [TIFF OMITTED]67091A.135

[GRAPHIC] [TIFF OMITTED]67091A.136

[GRAPHIC] [TIFF OMITTED]67091A.137

[GRAPHIC] [TIFF OMITTED]67091A.138

[GRAPHIC] [TIFF OMITTED]67091A.139

[GRAPHIC] [TIFF OMITTED]67091A.140

[GRAPHIC] [TIFF OMITTED]67091A.141

[GRAPHIC] [TIFF OMITTED]67091A.142

[GRAPHIC] [TIFF OMITTED]67091A.143

[GRAPHIC] [TIFF OMITTED]67091A.144

[GRAPHIC] [TIFF OMITTED]67091A.145

[GRAPHIC] [TIFF OMITTED]67091A.146

[GRAPHIC] [TIFF OMITTED]67091A.147

[GRAPHIC] [TIFF OMITTED]67091A.148

[GRAPHIC] [TIFF OMITTED]67091A.149

[GRAPHIC] [TIFF OMITTED]67091A.150

[GRAPHIC] [TIFF OMITTED]67091A.151

[GRAPHIC] [TIFF OMITTED]67091A.152

[GRAPHIC] [TIFF OMITTED]67091A.153

[GRAPHIC] [TIFF OMITTED]67091A.154

[GRAPHIC] [TIFF OMITTED]67091A.155

[GRAPHIC] [TIFF OMITTED]67091A.156

[GRAPHIC] [TIFF OMITTED]67091A.157

[GRAPHIC] [TIFF OMITTED]67091A.158

[GRAPHIC] [TIFF OMITTED]67091A.159

[GRAPHIC] [TIFF OMITTED]67091A.160

[GRAPHIC] [TIFF OMITTED]67091A.161

[GRAPHIC] [TIFF OMITTED]67091A.162

[GRAPHIC] [TIFF OMITTED]67091A.163

[GRAPHIC] [TIFF OMITTED]67091A.164

[GRAPHIC] [TIFF OMITTED]67091A.165

[GRAPHIC] [TIFF OMITTED]67091A.166

[GRAPHIC] [TIFF OMITTED]67091A.167

[GRAPHIC] [TIFF OMITTED]67091A.168

[GRAPHIC] [TIFF OMITTED]67091A.169

[GRAPHIC] [TIFF OMITTED]67091A.170

[GRAPHIC] [TIFF OMITTED]67091A.171

[GRAPHIC] [TIFF OMITTED]67091A.172

[GRAPHIC] [TIFF OMITTED]67091A.173

[GRAPHIC] [TIFF OMITTED]67091A.174

[GRAPHIC] [TIFF OMITTED]67091A.175

[GRAPHIC] [TIFF OMITTED]67091A.176

[GRAPHIC] [TIFF OMITTED]67091A.177

[GRAPHIC] [TIFF OMITTED]67091A.178

[GRAPHIC] [TIFF OMITTED]67091A.179

[GRAPHIC] [TIFF OMITTED]67091A.180

[GRAPHIC] [TIFF OMITTED]67091A.181

[GRAPHIC] [TIFF OMITTED]67091A.182

[GRAPHIC] [TIFF OMITTED]67091A.183

[GRAPHIC] [TIFF OMITTED]67091A.184

[GRAPHIC] [TIFF OMITTED]67091A.185

[GRAPHIC] [TIFF OMITTED]67091A.186

[GRAPHIC] [TIFF OMITTED]67091A.187

[GRAPHIC] [TIFF OMITTED]67091A.188

[GRAPHIC] [TIFF OMITTED]67091A.189

[GRAPHIC] [TIFF OMITTED]67091A.190

[GRAPHIC] [TIFF OMITTED]67091A.191

[GRAPHIC] [TIFF OMITTED]67091A.192

[GRAPHIC] [TIFF OMITTED]67091A.193

[GRAPHIC] [TIFF OMITTED]67091A.194

[GRAPHIC] [TIFF OMITTED]67091A.195

[GRAPHIC] [TIFF OMITTED]67091A.196

[GRAPHIC] [TIFF OMITTED]67091A.197

[GRAPHIC] [TIFF OMITTED]67091A.198

[GRAPHIC] [TIFF OMITTED]67091A.199

[GRAPHIC] [TIFF OMITTED]67091A.200

[GRAPHIC] [TIFF OMITTED]67091A.201

[GRAPHIC] [TIFF OMITTED]67091A.202

[GRAPHIC] [TIFF OMITTED]67091A.203

[GRAPHIC] [TIFF OMITTED]67091A.204

[GRAPHIC] [TIFF OMITTED]67091A.205

[GRAPHIC] [TIFF OMITTED]67091A.206

[GRAPHIC] [TIFF OMITTED]67091A.207

[GRAPHIC] [TIFF OMITTED]67091A.208

[GRAPHIC] [TIFF OMITTED]67091A.209

[GRAPHIC] [TIFF OMITTED]67091A.210

[GRAPHIC] [TIFF OMITTED]67091A.211

[GRAPHIC] [TIFF OMITTED]67091A.212

[GRAPHIC] [TIFF OMITTED]67091A.213

[GRAPHIC] [TIFF OMITTED]67091A.214

[GRAPHIC] [TIFF OMITTED]67091A.215

[GRAPHIC] [TIFF OMITTED]67091A.216

[GRAPHIC] [TIFF OMITTED]67091A.217

[GRAPHIC] [TIFF OMITTED]67091A.218

[GRAPHIC] [TIFF OMITTED]67091A.219

[GRAPHIC] [TIFF OMITTED]67091A.220

[GRAPHIC] [TIFF OMITTED]67091A.221

[GRAPHIC] [TIFF OMITTED]67091A.222

[GRAPHIC] [TIFF OMITTED]67091A.223

[GRAPHIC] [TIFF OMITTED]67091A.224

[GRAPHIC] [TIFF OMITTED]67091A.225

[GRAPHIC] [TIFF OMITTED]67091A.226

[GRAPHIC] [TIFF OMITTED]67091A.227

[GRAPHIC] [TIFF OMITTED]67091A.228

[GRAPHIC] [TIFF OMITTED]67091A.229

[GRAPHIC] [TIFF OMITTED]67091A.230

[GRAPHIC] [TIFF OMITTED]67091A.231

[GRAPHIC] [TIFF OMITTED]67091A.232

[GRAPHIC] [TIFF OMITTED]67091A.233

[GRAPHIC] [TIFF OMITTED]67091A.234

[GRAPHIC] [TIFF OMITTED]67091A.235

[GRAPHIC] [TIFF OMITTED]67091A.236

[GRAPHIC] [TIFF OMITTED]67091A.237

[GRAPHIC] [TIFF OMITTED]67091A.238

