[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
 INVESTIGATING OSHA'S REGULATORY AGENDA AND ITS IMPACT ON JOB CREATION 

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, FEBRUARY 15, 2011

                               __________

                            Serial No. 112-5

                               __________

  Printed for the use of the Committee on Education and the Workforce


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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Dale E. Kildee, Michigan
Judy Biggert, Illinois               Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania    Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Duncan Hunter, California            Lynn C. Woolsey, California
David P. Roe, Tennessee              Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania         Carolyn McCarthy, New York
Tim Walberg, Michigan                John F. Tierney, Massachusetts
Scott DesJarlais, Tennessee          Dennis J. Kucinich, Ohio
Richard L. Hanna, New York           David Wu, Oregon
Todd Rokita, Indiana                 Rush D. Holt, New Jersey
Larry Bucshon, Indiana               Susan A. Davis, California
Trey Gowdy, South Carolina           Raul M. Grijalva, Arizona
Lou Barletta, Pennsylvania           Timothy H. Bishop, New York
Kristi L. Noem, South Dakota         David Loebsack, Iowa
Martha Roby, Alabama                 Mazie K. Hirono, Hawaii
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
[Vacant]

                      Barrett Karr, Staff Director
                 Jody Calemine, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    TIM WALBERG, Michigan, Chairman

John Kline, Minnesota                Lynn C. Woolsey, California, 
Todd Rokita, Indiana                     Ranking
Larry Bucshon, Indiana               Donald M. Payne, New Jersey
Trey Gowdy, South Carolina           Dennis J. Kucinich, Ohio
Kristi L. Noem, South Dakota         Timothy H. Bishop, New York
Dennis A. Ross, Florida              Mazie K. Hirono, Hawaii
Mike Kelly, Pennsylvania             George Miller, California
[Vacant]

























                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 15, 2011................................     1

Statement of Members:
    Hirono, Hon. Mazie K., a Representative in Congress from the 
      State of Hawaii, prepared statement of.....................    54
    Kucinich, Hon. Dennis J., a Representative in Congress from 
      the State of Ohio, prepared statement of...................    55
    Walberg, Hon. Tim, Chairman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     2
        Additional submissions:
            Letter, dated Feb. 22, 2011, from Tree Care Industry 
              Association, Inc. [TCIA]...........................    56
            Letter, dated Oct. 15, 2010, to Hon. Hilda L. Solis, 
              Secretary, U.S. Department of Labor, from U.S. 
              House Members......................................    57
            Letter, dated Feb. 4, 2011, to Secretary Solis, from 
              U.S. Senators......................................    60
            Letter, dated Aug. 5, 2008, Hon. Elaine L. Chao, 
              former Secretary, U.S. Department of Labor, from 
              U.S. House Members.................................    62
            Letter, dated Sept. 27, 2007, to former Secretary 
              Chao, from U.S. Senators...........................    64
    Woolsey, Hon. Lynn, ranking minority member, Subcommittee on 
      Workforce Protections......................................     3
        Prepared statement of....................................     5
        Additional submission:
            Slide with photo of Hayes Lemmerze combustible dust 
              explosions and fire................................    66

Statement of Witnesses:
    Holmes, Jacqueline M., Esq., of Counsel, Jones Day, 
      testifying on behalf of the U.S. Chamber of Commerce.......    26
        Prepared statement of....................................    29
    Miser, Tammy, founder, United Support and Memorial for 
      Workplace Fatalities.......................................    22
        Prepared statement of....................................    23
    Sessions, Stuart L., president, Environomics, Inc............    13
        Prepared statement of....................................    15
    Sullivan, Hon. Thomas M., Esq., of Counsel, Nelson Mullins 
      Riley and Scarborough......................................     7
        Prepared statement of....................................     9


 INVESTIGATING OSHA'S REGULATORY AGENDA AND ITS IMPACT ON JOB CREATION

                              ----------                              


                       Tuesday, February 15, 2011

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:03 a.m., in 
room 2175, Rayburn House Office Building, Hon. Tim Walberg 
[chairman of the subcommittee] presiding.
    Present: Representatives Walberg, Kline, Bucshon, Noem, 
Ross, Kelly, Woolsey, Payne, Kucinich, and Miller.
    Staff present: Kirk Boyle, General Counsel; Casey Buboltz, 
Coalitions and Member Services Coordinator; Ed Gilroy, Director 
of Workforce Policy; Ryan Kearney, Legislative Assistant; Brian 
Newell, Press Secretary; Molly McLaughlin Salmi, Deputy 
Director of Workforce Policy; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; Loren Sweatt, Professional 
Staff Member; Aaron Albright, Minority Deputy Communication 
Director; Tylease Alli, Minority Hearing Clerk; Daniel Brown, 
Minority Staff Assistant; Jody Calemine, Minority Staff 
Director; Brian Levin, Minority New Media Press Assistant; Kara 
Marchione, Minority Senior Education Policy Advisor; Richard 
Miller, Minority Senior Labor Policy Advisor; Megan O'Reilly, 
Minority General Counsel; Julie Peller, Minority Deputy Staff 
Director; and Michele Varnhagen, Minority Chief Policy Advisor 
and Labor Policy Director.
    Chairman Walberg [presiding]. Well, I am told a quorum is 
present. It is time to begin, so let's begin.
    The subcommittee will come to order. Good morning. Allow me 
to welcome my colleagues and our guests to our first hearing of 
the Subcommittee on Workforce Protections. The subcommittee 
oversees a number of federal policies and programs that reach 
into America's workplaces. The decisions that we make in this 
subcommittee touch upon the lives of countless workers, 
employers, and their families.
    I look forward to working with my colleague, Lynn Woolsey, 
the ranking Democrat member of the subcommittee. She has a deep 
passion for these issues, and no one can question her 
commitment to worker safety.
    I know there will be times when we disagree. We have talked 
about that. But I have pledged to put forward my best efforts 
to find common ground whenever possible. The cause of worker 
safety is best advanced when we work together.
    And so that is why today's hearing will examine the 
regulatory agenda at the Occupational Safety and Health 
Administration. Since 1970, OSHA has been charged with 
enforcing laws that govern worker safety and health by 
developing rules intended to keep workplaces free from 
recognized hazards. The regulatory agenda speaks to the 
Administration's priorities. Worker safety is a goal we all 
share. However, we have real concerns with the policies and 
process the Administration has recently proposed to reach that 
goal.
    Over the last 2 years, OSHA has not only attempted to 
implement several policy changes that would have profound 
impact on the workplace; it has become an Administration more 
focused on punishment than prevention. All employers who 
jeopardize the safety of workers should be held accountable to 
the fullest extent of the law.
    However, punishment is just one piece of enforcing the law. 
Our goal should be to prevent workplace accidents before they 
happen, not simply shame an employer once a tragedy has 
occurred on the job site.
    And so that is why I am concerned with the recent actions 
that suggest the Administration has shifted the balance toward 
punishment and taken its sights off commonsense rules that 
promote prevention.
    Worker safety is a priority and so, too, is promoting 
policies that will allow businesses to grow and hire new 
workers. Needless rules and onerous regulations are often 
roadblocks to economic growth and job creation, which we all 
want.
    The President has called on his Administration to scour the 
books in search of policies that undermine private-sector job 
growth. This subcommittee looks forward to joining that effort 
in the weeks and months ahead.
    I am particularly aware of the urgency of the task before 
us. My home state of Michigan has been hit hard by recent 
recession. Currently, the unemployment rate in Michigan stands 
at 11.7 percent, and even higher in some counties in my 
congressional district that I represent. We all must be 
partners in an effort to get the American people back to work.
    Our witnesses today will discuss the potential economic and 
worker safety impact of OSHA's regulatory agenda. We have heard 
the mantra that good jobs are safe jobs. I agree. But let us 
ensure that bad policy does not destroy the good jobs we need 
to create.
    At this time, I would like to yield to Congresswoman 
Woolsey, the ranking member of the subcommittee, for her 
opening remarks.
    [The statement of Mr. Walberg follows:]

           Prepared Statement of Hon. Tim Walberg, Chairman,
                 Subcommittee on Workforce Protections

    Good morning. Allow me to welcome my colleagues and our guests to 
our first hearing of the Subcommittee on Workforce Protections. This 
subcommittee oversees a number of federal policies and programs that 
reach into America's workplaces. The decisions we make in this 
subcommittee touch upon the lives of countless workers, employers, and 
their families.
    I look forward to working with my colleague Lynn Woolsey, the 
ranking Democratic member of the subcommittee. She has a deep passion 
for these issues and no one can question her commitment to worker 
safety. I know there will be times when we disagree but I pledge to put 
forward my best efforts to find common ground whenever possible. The 
cause of worker safety is best advanced when we work together.
    That is why today's hearing will examine the regulatory agenda at 
the Occupational Safety and Health Administration. Since 1970, OSHA has 
been charged with enforcing laws that govern worker safety and health 
by developing rules intended to keep workplaces free from recognized 
hazards. The regulatory agenda speaks to the administration's 
priorities. Worker safety is a goal we all share, however, we have real 
concerns with the policies and process the administration has recently 
proposed to reach that goal.
    Over the last two years, OSHA has not only attempted to implement 
several policy changes that would have profound impact on the 
workplace, it has become an administration more focused on punishment 
than prevention. All employers who jeopardize the safety of workers 
should be held accountable to the fullest extent of the law.
    However, punishment is just one piece of enforcing the law. Our 
goal should be to prevent workplace accidents before they happen, not 
simply shame an employer once a tragedy has occurred on the job site. 
That is why I am concerned with recent actions that suggest the 
administration has shifted the balance toward punishment, and taken its 
sights of commonsense rules that promote prevention.
    Worker safety is a priority, and so too is promoting policies that 
will allow businesses to grow and hire new workers. Needless rules and 
onerous regulations are often roadblocks to economic growth and job 
creation. The president has called on his administration to scour the 
books in search of policies that undermine private-sector job growth. 
This subcommittee looks forward to joining that effort in the weeks and 
months ahead.
    I am particularly aware of the urgency of the task before us. My 
home state of Michigan has been hit hard by the recent recession. 
Currently, the unemployment rate in Michigan stands at 11.7 percent and 
even higher in some counties in the congressional district I represent. 
We all must be partners in an effort to get the American people back to 
work.
    Our witnesses today will discuss the potential economic and worker 
safety impact of OSHA's regulatory agenda. We have heard the mantra 
that ``Good jobs are safe jobs.'' I agree. But let us ensure that bad 
policy does not destroy the good jobs we need to create. At this time, 
I would like to yield to Congresswoman Woolsey, the Ranking Member of 
the Subcommittee, for her opening remarks.
                                 ______
                                 
    Ms. Woolsey. Thank you, Mr. Chairman. And congratulations 
on your election as chair of this subcommittee.
    Chairman Walberg. Thank you.
    Ms. Woolsey. It was a very active subcommittee in the last 
Congress. And I look forward to actually continuing much of the 
work that we started in, moving forward in this Congress. And I 
am certain that we are going to have a good working 
relationship.
    I applaud today's focus on OSHA's regulatory agenda, 
because over the past 4 years, this panel has explored a number 
of loopholes in OSHA's regulatory safety net. And I am hoping 
that under your leadership, Mr. Chairman, together we can fix 
what is needed and bring OSHA into the 21st century.
    But first things first. If OSHA comes under assault from 
the new majority, the fact is, the agency may not be able to 
carry out its core missions. For example, the 18 percent 
reduction of OSHA's budget in the Republican Continuing 
Resolution for fiscal year 2011 would eliminate 415 employees, 
bringing OSHA to its lowest staffing levels since 1974, likely 
forcing OSHA to furlough all of its employees for 3 months. 
This would mean 8,000 fewer workplace hazard inspections and 
740 fewer whistleblower discrimination investigations this year 
alone.
    And the deeper one digs, the worse it appears. The 
Republican funding resolution completely zeroes out OSHA's 
statistics and information division. Mr. Chairman, that means 
no more data collection on workplace health and safety trends, 
which is critical for targeting hazardous work sites. This cut 
even shuts down OSHA's website.
    The continuing resolution we are currently debating 
includes cuts to state OSHA programs, including California and 
Michigan, both of our states, which are under extreme fiscal 
duress at the moment. It cuts OSHA's safety and health 
standards by 16 percent, blocking long-overdue rules, like the 
one to prevent falls at non-construction sites.
    In other words, Mr. Chairman, the Republican C.R. doesn't 
just trim OSHA's budget; it absolutely cripples the agency and 
needlessly jeopardizes safety standards and endangers American 
workers.
    So today's hearing about how OSHA's regulatory agenda 
affects job creation and investment is truly serious. I 
strongly believe it is the lack of regulation that has killed 
workers and their jobs.
    Take, for example, a deadly 2009 explosion at the ConAgra 
Slim Jim plant in Garner, North Carolina. Contractors purged 
the natural gas line they were connecting to a new industrial 
water heater, but they didn't smell gas, and they kept venting 
the pipe for 2.5 hours, until the gas found a spark. Three 
workers were killed; 71 were injured in that explosion.
    Rather than rebuild the section of the plant that was 
destroyed, ConAgra is consolidating production elsewhere, 
closing the plant and putting 700 people out of work.
    Now, I want you to look at this hose.----
    Chairman Walberg. I will move over, if necessary. 
[Laughter.]
    Ms. Woolsey. Had there been OSHA regulations banning indoor 
gas purging, the contractors would have simply taken a piece of 
hose like this, a piece of hose like this, and connected it to 
the gas pipe and vented it outside, away from the building. So 
everyone has to agree: Had there been such a rule, there would 
have been no deaths, there would have been no injuries, and 700 
people would still have their prized factory jobs in their same 
area where they live.
    Red tape has slowed OSHA's efforts to prevent combustible 
dust fires and explosions, like the 2008 tragedy at Imperial 
Sugar and the Indiana dust explosion illustrated at the easel, 
which is to my right over there. That is what that looked like, 
that killed the brother of a witness who is here today.
    We know the dust explosion problem can be fixed and without 
damaging competitiveness. Following a string of grain elevator 
explosions, OSHA issued a grain-handling standard in 1987. 
Since that rule, there has been a dramatic decline in 
explosions without any negative economic impact on the grain-
handling industry or related small businesses.
    So, Mr. Chairman, as we begin our first hearing of the 
112th Congress, we have to challenge some of the long-held 
erroneous assumptions about regulations being bad for profit 
margins and economic growth. OSHA needs the resources to carry 
out its mission to protect its workers and to help businesses 
at the same time.
    So, again, I want to thank you and I want to thank the 
witnesses who are here today, especially those of you who have 
had to travel long distances to be with us. I look forward to 
your testimony. Thank you.
    [The statement of Ms. Woolsey follows:]

   Prepared Statement of Hon. Lynn Woolsey, Ranking Minority Member, 
                 Subcommittee on Workforce Protections

    Thank you Mr. Chairman, and congratulations on your election as 
Chair of this subcommittee.
    I applaud today's focus on OSHA's regulatory agenda, because over 
the past four years, this panel has explored a number of loopholes in 
OSHA's regulatory safety net, and i'm hoping that under your 
leadership, together we can fix what is needed and bring OSHA into the 
21st century.
    But first things first. If OSHA comes under assault from the new 
majority, the fact is, the agency may not be able to carry out its core 
missions.
     For example, the 18% reduction to OSHA's budget in the 
Republican continuing resolution for fiscal year 2011 would eliminate 
415 employees, bringing OSHA to its lowest staffing level since 1974.
     Likely forcing OSHA to furlough all of its employees for 3 
months. This would mean 8,000 fewer workplace hazard inspections and 
740 fewer whistleblower discrimination investigations this year.
    And the deeper one digs, the worse it gets:
     The Republican funding resolution completely zeroes out 
OSHA's statistics and information division. That means no more data 
collection on workplace health and safety trends, which is critical to 
targeting hazardous work sites. This cut even shuts down OSHA's web 
site.
     The continuing resolution we are currently debating 
includes cuts to state OSHA programs, including California and 
Michigan--both of which are under extreme fiscal duress.
     It cuts OSHA's safety and health standards by 16%--
blocking long overdue rules, like the one to prevent falls at 
construction sites from comint to fruition.
    In other words, Mr. Chairman, the Republican CR doesn't just trim 
OSHA's budget, it absolutely cripples the agency needlessly 
jeopardizing safety standards and endangering American workers.
    So today's hearing about how OSHA's regulatory agenda affects job 
creation and investment is truly serious.
    I strongly believe it's the lack of regulations that has killed 
workers and their jobs.
    Take, for instance, a deadly 2009 explosion at the Con Agra ``Slim 
Jim'' plant in Garner, North Carolina. Contractors purged a natural gas 
line they were connecting to a new industrial water heater. But they 
didn't smell gas and kept venting the pipe for 2\1/2\ hours--until the 
gas found a spark. Three workers were killed and 71 were injured in the 
explosion.
    Rather than rebuild the section of the plant that was destroyed, 
Con Agra is consolidating production elsewhere, closing the plant and 
putting 700 people out of work.
    Had there been OSHA regulations banning in-door gas purging, the 
contractors would have simply taken a piece of hose like this, and 
connected it to the gas pipe, and vented it outside away from the 
building.
    Everyone agrees: had there been such a rule, there would have been 
no deaths or injuries, and 700 people would still have prized factory 
jobs.\1\
---------------------------------------------------------------------------
    \1\ Safety Bulletin, Dangers of Purging Natural Gas into Buildings, 
Chemical Safety Board, September 2009.
---------------------------------------------------------------------------
    Red tape has slowed OSHA's efforts to prevent combustible dust 
fires and explosions, like the 2008 tragedy at imperial sugar, and the 
indiana dust explosion illustrated at the easel to my right, that 
killed the brother of a witness here today.
    We know the dust explosion problem can be fixed * * * and without 
damaging competitiveness. Following a string of grain elevator 
explosions, OSHA issued a grain handling standard in 1987. Since that 
rule, there has been a dramatic decline in explosions without any 
negative economic impact on the grain handling industry or related 
small businesses.
    Mr. Chairman, as we begin our first hearing of the 112th Congress, 
we must challenge some of these long-held, erroneous assumptions about 
regulations being bad for profit margins and economic growth. OSHA 
needs the resources to carry out its mission, protect workers, and help 
businesses at the same time.
    I want to thank our witnesses for being here today, especially 
those who had to travel a long distance to be with us, and I look 
forward to their testimony. Thank you.
                                 ______
                                 
    Chairman Walberg. I thank the gentlelady. And I think we 
are both committed to making sure that these hearings do deal 
with subjects of great interest, concern, and close to your 
heart, as well as the rest of the committee.
    Pursuant to Committee Rule 7(c), all members will be 
permitted to submit written statements to be included in the 
permanent hearing record. And without objection, the hearing 
record will remain open for 14 days to allow such statements 
and other extraneous material reference during the hearing to 
be submitted for official hearing record.
    It is now my pleasure to introduce our distinguished panel 
of witnesses, the first being the Honorable Thomas Sullivan, 
works in the law firm of Nelson, Mullins, Riley & Scarborough, 
where he represents clients on a number of regulatory and 
rulemaking matters, while also serving as the head of the Small 
Business Coalition for Regulatory Relief. Prior to joining 
Nelson Mullins, Mr. Sullivan served as the chief counsel for 
advocacy in the Small Business Administration from 2002 to 
2008. Mr. Sullivan earned his JD from Suffolk University Law 
School and a bachelor of arts in English from Boston College.
    We welcome you.
    Mr. Stuart Sessions is president of Environomics. Mr. 
Sessions was formally an analyst and manager with the Office of 
Management and Budget and Environmental Protection Agency. Mr. 
Sessions holds a master's of public policy from the Kennedy 
School of Government at Harvard University and a bachelor of 
arts and economics from Amherst College. Mr. Sessions is 
testifying today on behalf of the Coalition for Workplace 
Safety.
    Thank you, and we welcome you.
    Ms. Tammy Miser is an advocate for worker safety and 
founder of United Support and Memorial for Workplace 
Fatalities, an organization that serves as an advocacy group 
for individuals affected by workplace-related injury or death, 
and to add to that, has experienced the impact in her own life.
    We welcome you and thank you for being here.
    And then, finally, Ms. Jacqueline Holmes works in the law 
firm of Jones Day, where she focused her practice on litigation 
involving federal and state regulatory agencies. Ms. Holmes 
earned a JD from Loyola Law School in Los Angeles, California, 
and a bachelor in science from the California Institute of 
Technology. Ms. Holmes is testifying today on behalf of the 
U.S. Chamber of Commerce.
    And we welcome you. Thank you.
    Before I recognize each of you to provide your testimony, 
let me briefly explain our lighting system. You will each have 
5 minutes to present your testimony. When you begin, the light 
in front of you will turn green. When 1 minute is left, the 
light will turn yellow. And when your time is expired, the 
light will turn red, and it doesn't get any redder than that.
    I promise I won't gavel you down mid-sentence. I probably 
won't gavel you down, either. But we will make it clear that 
your time is expired. But I would ask you that you try to wrap 
up your testimony when your time has expired.
    After everyone has testified, members will each have 5 
minutes to ask questions of the panel. I won't make the same 
promise to members that I won't gavel them down when their time 
is expired, but I am sure that we can work on that.
    With that, let me now turn to our distinguished panel, and 
let's begin with Mr. Sullivan.

STATEMENT OF HON. THOMAS M. SULLIVAN, ESQ., OF COUNSEL, NELSON 
                 MULLINS RILEY AND SCARBOROUGH

    Mr. Sullivan. Thank you, Mr. Chairman, members of the 
committee. I am pleased to present this testimony on how OSHA 
considers the impact on small entities when developing 
regulatory proposals.
    The testimony this morning is not being presented on behalf 
of any specific clients at my law firm. Rather, my advice today 
is drawn from my 2 decades of work on small business regulatory 
issues. I would like to briefly summarize my statement, so I 
ask that the full written statement be entered into the record.
    Thank you.
    Chairman Walberg. So ordered.
    Mr. Sullivan. The Regulatory Flexibility Act requires 
agencies to satisfy certain procedural requirements when they 
plan new regulations, including identifying the small entities 
to be affected, analyzing and understanding the economic 
impacts that will be imposed, and considering alternative ways 
to achieve the regulatory goal, while reducing the economic 
burden on those entities.
    The Reg Flex Act was amended in 1996 by the Small Business 
Regulatory Enforcement Fairness Act--yes, there is an acronym. 
That acronym is SBREFA, and SBREFA requires OSHA, EPA, and the 
newly created Consumer Financial Protection Bureau to convene 
small-business review panels. I refer to those panels as SBREFA 
panels. Whatever their planned rules are likely to have a 
significant economic impact on a substantial number of small 
entities.
    The panel prepares a report containing constructive 
recommendations for the agency planning the rule, and that 
report is published with the proposed rule.
    So why are there small-business protections in the 
rulemaking system? Well, there are three basic reasons. One-
size-fits-all federal mandates don't work when applied to small 
business. Small businesses face higher costs per employee to 
comply with the federal regulations. And small businesses are 
critically important to the American economy.
    First, prevention of one-size-fits-all federal mandates. 
Many times, federal rules that may work for large corporations 
simply don't work for small firms. The Regulatory Flexibility 
Act is supposed to force federal regulators to think about how 
a small operation would actually comply with a rule and tweak 
the proposal to make sure that it works for the small business, 
in addition to the large corporation.
    Disproportionate impact that federal rules have on small 
business. Research published last year pegs the total cost of 
complying with federal rules at over $1.75 trillion. That 
burden amounts to a cost of $15,580 per household, which is 
more than 1.5 times what households pay for medical care. Most 
alarming is the fact that in the 4 years studied, the cost of 
complying with federal rules rose faster than the cost of per 
household of providing medical care.
    Implementation of the Regulatory Flexibility Act at OSHA. 
In three recent regulatory actions, OSHA appears to be ignoring 
both the spirit and the legal requirements of the Reg Flex Act. 
First, OSHA's MSD reporting rule.
    In January last year, OSHA proposed that businesses record 
work-related MSDs in a new column on their OSHA 300 Log. OSHA 
estimated that the proposed rule would require employers to 
spend roughly 5 minutes to become familiar with the new rule 
and 1 minute to record the MSD injury or illness.
    This burden estimate is what OSHA used to justify its 
decision not to move forward with a SBREFA panel. Small 
businesses felt that OSHA's cost estimate reflected a 
misunderstanding of how small employers work and the pressure 
that employers feel writing down a number on a form that is 
required by the federal government.
    The purpose of SBREFA is for OSHA to better understand the 
impacts its regulations will have and how its cost estimates 
play out in the real world. OSHA missed that opportunity by 
deciding to bypass the SBREFA panel process.
    The second rule that I can talk about is the proposed 
changes to the on-site consultation procedures rule. Last 
September, OSHA proposed changes to the program. And the on-
site consultation program is a shining example of how OSHA can 
evolve from ``gotcha'' to ``help ya.''
    When OSHA decided to propose changes, it did not convene a 
SBREFA panel. OSHA, therefore, missed an opportunity to learn 
directly from small businesses about how changes would affect 
their participation in the program.
    And, finally, OSHA's noise rule. In October, OSHA proposed 
to change the requirements for employers to control noise 
exposures. OSHA's proposal last year was to reverse the 
preference for personal protective equipment and require 
engineering controls without consideration of cost unless it 
would threaten a company's ``ability to remain in business.''
    OSHA circumvented the SBREFA panel requirement by declaring 
its proposal was just revising an interpretation and therefore 
was not a rule subject to normal rulemaking procedures, 
including the SBREFA panel requirement. That type of rationale 
is unfortunate, because it ignored the value of SBREFA panels.
    OSHA's policy apparatus suffers--and I will sum up here--
when the agency treats the SBREFA process as a legal barrier. 
The purpose of the Reg Flex Act and the SBREFA amendments is 
for OSHA to benefit from small-business input, so the agency 
can fulfill its mission to ensure safe workplaces without 
unduly burdening small employers. Constructive input by small 
firms provides OSHA with valuable insight that allows for the 
agency to draft proposals that will work on Main Street, and 
OSHA benefits when it embraces the SBREFA process as a 
constructive dialogue.
    Thank you.
    [The statement of Mr. Sullivan follows:]

Prepared Statement of Hon. Thomas M. Sullivan, Esq., of Counsel, Nelson 
                     Mullins Riley and Scarborough

    Mr. Chairman and Members of the Committee, I am pleased to present 
this testimony on how the Occupational Safety and Health Administration 
(OSHA) considers the impact on small entities when developing 
regulatory proposals. My name is Tom Sullivan. I am an attorney with 
the law firm of Nelson Mullins Riley & Scarborough, LLP and I run the 
Small Business Coalition for Regulatory Relief.\1\ This testimony is 
not being presented on behalf of any specific clients. Rather, my 
advice to the Committee today is drawn from my two decades of work on 
small business regulatory issues.
    My first job in Washington was with the U.S. Environmental 
Protection Agency (EPA). I served under both Administrator Bill Reilly 
and Administrator Carol Browner. After learning about regulatory policy 
development from within government, I joined the Washington office of 
the National Federation of Independent Business (NFIB). In February 
2002, I was unanimously confirmed to head the Office of Advocacy at the 
U.S. Small Business Administration (SBA).\2\ The Office of Advocacy is 
responsible for overseeing the Regulatory Flexibility Act.\3\ I served 
as Chief Counsel for Advocacy until October 2008.
OSHA must consider the impact on small entities prior to issuing a new 
        regulation
    The Regulatory Flexibility Act requires federal agencies to satisfy 
certain procedural requirements when they plan new regulations, 
including: (1) identifying the small entities that will be affected, 
(2) analyzing and understanding the economic impacts that will be 
imposed on those entities, and (3) considering alternative ways to 
achieve their regulatory goal while reducing the economic burden on 
those entities.\4\ The Regulatory Flexibility Act was amended in 1996 
by the Small Business Regulatory Enforcement Fairness Act (SBREFA).\5\ 
SBREFA requires OSHA, EPA, and the Consumer Financial Protection Bureau 
(CFPB) to convene small business review panels (I refer to the panels 
as ``SBREFA panels '') whenever their planned rules are likely to have 
a significant economic impact on a substantial number of small 
entities. SBREFA panels include representatives from SBA's Office of 
Advocacy, the Office of Management and Budget's Office on Information 
and Regulatory Affairs (OIRA) and the agency proposing the rule. The 
panel prepares a report containing constructive recommendations for the 
agency planning the rule and that report is published with the proposed 
rule.
The need for small business protections in the federal rulemaking 
        system
    There are three basic reasons for the Regulatory Flexibility Act.
     one-size-fits-all federal mandates do not work when 
applied to small business; and
     small businesses face higher costs per employee to comply 
with federal regulation; and
     small businesses are critically important to the American 
economy.
Prevention of one-size-fits-all federal mandates
    Many times federal regulations that may work for large corporations 
simply do not work for small firms. I remember working with Brian 
Landon on the ergonomics regulation when it was being developed in the 
late 1990's. Brian owned and operated a carwash in Canton, 
Pennsylvania. Parts of the ergonomics regulation distinguished between 
the employees who worked on equipment and employees who were in charge 
of paperwork and accounting. As is the case in many small businesses, 
Brian did all the jobs. And, his most trusted employees also performed 
multiple tasks, some clerical and some operational. The ergonomics 
regulation spelled out duties for equipment maintenance employees that 
were very different from those responsibilities for employees in charge 
of paperwork. Brian continually asked OSHA for help to figure out which 
classification would apply to him--and never really got an answer. 
Sometimes we forget that our country has millions of small enterprises 
that are at various stages of automation. For instance, when there is a 
new labeling requirement, a tendency is to naively think that 
compliance with a regulation mandating changes to labels can be 
accomplished with little effort through a computer program. The 
Regulatory Flexibility Act is supposed to force federal regulators to 
think about how a small operation would actually comply, realizing that 
it may not be as simple as entering information into a computer.
The disproportionate impact federal regulations have on small business
    Research published in September by Nicole Crain and W. Mark Crain 
of Lafayette College updates three previous studies on the impact of 
federal regulations on small business.\6\ The report is entitled, ``The 
Impact of Regulatory Costs on Small Firms,'' and it provides a look at 
the regulatory burden in 2008. The total cost of complying with federal 
regulations was over $1.75 trillion. The burden amounts to a cost of 
$15,586 per household which is more than 1\1/2\ times what households 
pay for medical care. Most alarming, is the fact that in the four years 
studied, the cost of complying with federal regulations rose faster 
than the per-household cost of medical care.
    The Crain study found that small businesses shoulder costs that are 
36% more than their larger business competitors. Firms with fewer than 
20 employees pay $10,585 per employee per year and firms with 500 or 
more employees pay $7,755 per employee to comply with federal 
regulations. The cost difference is most severe when looking at 
compliance with environmental regulations, with the smallest firms 
paying 4 times the amount per employee than the largest businesses.
    The research provides data for a common sense reality in a small 
business owner's world. Small businesses generally do not have vice 
presidents for safety and health to figure out OSHA rules. They do not 
have accounting departments to navigate changes to the tax code. Even 
if small businesses hire accountants to prepare their taxes, the owners 
take hours sweating the details because it is their signature on the 
IRS forms. Nor do small firms usually employ occupational health 
experts and safety engineers to keep up with OSHA rules and the more 
than 22,000 national consensus standards that exist in the United 
States. The task of figuring out volumes of federal requirements often 
falls on the small business owners themselves, taking more time for 
them than it would for regulatory experts. Since time is money--it 
costs the small businesses more.
    The intention of the Regulatory Flexibility Act and, in particular 
the SBREFA panel process, is to bring small entities directly into an 
advisory role with agencies so that final regulations reflect an 
accurate understanding of how compliance can cost small firms more.
The importance of small business to the U.S. economy
    Recent figures show there are more than 27.3 million small 
businesses in the United States.\7\ They represent over 99% of the 
employer firms in the United States, employ half of the private sector 
employees, and produce 13 times more patents per employee than large 
research & development firms.\8\ Of particular importance is the job-
creation aspect of entrepreneurship. Small firms accounted for 65% of 
the 15 million net new jobs created between 1993 and 2009. Data show 
that since the 1970's small businesses hire two out of every three jobs 
and the Ewing Marion Kauffman Foundation likes to point out that in the 
last 30 years, literally all net job creation in the United States took 
place in firms less than five years old.\9\
History of the Regulatory Flexibility Act
    One of the top five recommendations from the 1980 White House 
Conference on Small Business was for a law requiring regulatory impact 
analysis and a regular review of regulations. That recommendation 
became reality when President Jimmy Carter signed the Regulatory 
Flexibility Act into law on September 19, 1980. The Regulatory 
Flexibility Act directed all agencies that use notice and comment 
rulemaking to publicly disclose the impact of their regulatory actions 
on small entities and to consider less burdensome alternatives if a 
proposal was likely to impose a significant impact. The law authorized 
SBA's Chief Counsel for Advocacy to appear as amicus curiae in 
Regulatory Flexibility Act challenges to rulemakings and it required 
SBA's Office of Advocacy to report annually on agencies' compliance 
with the Regulatory Flexibility Act.
    In 1996, Congress considered changes to the Regulatory Flexibility 
Act. Again, there was a White House Conference--and that conference's 
top recommendation was to strengthen the Regulatory Flexibility Act by 
directing small business participation in rulemakings and to allow for 
judicial review of agency compliance. President Clinton signed SBREFA 
in March of 1996.\10\ Those amendments to the Regulatory Flexibility 
Act established formal procedures for the EPA and for OSHA to receive 
input from small entities prior to the agencies proposing rules.\11\
    In August of 2002, President Bush signed Executive Order 13272, 
Proper Consideration of Small Entities in Agency Rulemaking.\12\ The 
Executive Order directed SBA's Office of Advocacy to train regulatory 
agencies on how to comply with the RFA and further instructed agencies 
to consider the Office of Advocacy's comments on proposed rules. The 
Small Business Jobs Act signed five months ago codified the Executive 
Order's requirements for agencies to respond to the Office of 
Advocacy's comments in final rules.\13\
    There was one recent additional amendment to the Regulatory 
Flexibility Act. An amendment authored by Senators Olympia Snowe and 
Mark Pryor was adopted as part of the Dodd-Frank financial regulatory 
reform law. That amendment requires the newly created Consumer 
Financial Protection Bureau (CFPB) to undergo a SBREFA panel process 
when issuing rules, the same requirement that has applied to EPA and 
OSHA since 1996.\14\
What is required by the Regulatory Flexibility Act
    The basic spirit of the RFA is for government agencies to analyze 
the effects of their regulatory actions on small entities and for those 
agencies to consider alternatives that would allow agencies to achieve 
their regulatory objectives without unduly burdening small entities.
    The RFA covers all agencies that issue rules subject to the 
Administrative Procedure Act (APA). The RFA requires agencies to 
publish an initial regulatory flexibility analysis (IRFA) unless the 
promulgating agency certifies that the rule will not have a significant 
impact on a substantial number of small entities.\15\ The IRFA is 
supposed to be a transparent small business impact analysis that 
includes discussion of alternatives that can accomplish the stated 
objectives of the rule while minimizing impact on small entities. In 
the case of EPA, OSHA, and the CFPB, a SBREFA panel aids the agency's 
analysis and discussion of alternatives. This transparent analysis and 
exchange of information with small entities is published with the 
agency's proposed rule, educating stakeholders who participate in the 
notice and comment process.
    The availability of an IRFA allows for a more informed notice and 
comment process that can guide an agency's formulation of its final 
rule. Under the RFA, an agency's final rule must contain a final 
regulatory flexibility analysis (FRFA) if it published an IRFA with its 
proposal. The FRFA is basically a public response to issues raised in 
the IRFA.
Implementation of the Regulatory Flexibility Act at OSHA
    Under the Regulatory Flexibility Act, an agency either certifies 
that a proposed rule has no significant economic impact on a 
substantial number of small entities or the agency prepares an IRFA on 
the proposal. When OSHA decides to prepare an IRFA, the agency convenes 
a SBREFA panel to obtain pre-proposal input from small entities. In 
three recent regulatory actions, OSHA appears to be ignoring both the 
spirit and the legal requirements of the Regulatory Flexibility Act. 
Even if OSHA is able to certify that a regulation will not have 
sufficient impact to warrant a SBREFA panel, the agency always has the 
option to voluntarily use the SBREFA panel process to gain insight from 
the small business community.
    1. Proposed Occupational Injury and Illness Recording and Reporting 
Requirements Rule (MSD Reporting Rule):\16\
    In January of last year, OSHA proposed that businesses record work-
related musculoskeletal disorders (MSDs) in a new column on their OSHA 
300 Log. When OSHA proposed the rule, it certified under the Regulatory 
Flexibility Act that the rule, if promulgated, would not have a 
significant economic impact on a substantial number of small 
entities.\17\ OSHA estimated that the proposed rule would require 
employers to spend roughly 5 minutes to become familiar with the new 
rule and one minute pre MSD injury or illness to record the MSD in the 
new column on the OSHA 300 Log. This burden estimate is what OSHA used 
to justify its decision to move forward with the rule without a SBREFA 
panel.
    Small businesses strongly disagreed with OSHA on its estimate of 
how much the rule would cost. Recording an MSD in a column is not as 
simple as just transcribing a number. Under the rule, employers would 
be required to diagnose whether the injury or illness is a MSD and 
whether it is work-related. Keep in mind that after several years of 
study and research, experts are unable to reach consensus over the 
definition of an MSD, yet small business owners would be expected to 
make a diagnosis of the injury or illness and determine whether it is 
work related--in less than 5 minutes. That burden estimate reflected a 
clear misunderstanding of how small employers work and the pressure of 
legal liability employers feel when writing down a number on a form 
required by the federal government.
    The purpose of SBREFA panels is for OSHA to better understand the 
impacts its regulations will have and how its cost estimates play out 
in the real small business world. OSHA missed that opportunity by 
deciding to bypass the SBREFA panel process.
    2. Proposed changes to On-Site Consultation Procedures rule:\18\
    Last September, OSHA proposed changes to the criteria under which 
participants in the agency's On-site Consultation program could be 
subject to enforcement action by OSHA inspectors. The On-site 
Consultation program is a shining example of how OSHA can evolve from 
``gotcha'' to ``help ya.'' Under the program, small businesses can 
request a free consultation with a state-certified consultant. The 
consultant identifies hazards and provides advice on how to address 
them.
    Part of the program's success is derived from the understanding 
that information uncovered by the voluntary inspection is not shared 
with OSHA enforcement if the identified hazards are corrected. OSHA's 
proposal last September threatened to break down the barrier between 
the On-site Consultation program and OSHA's enforcement program. I 
doubt OSHA wanted to push small firms out of its On-Site Consultation 
program, but the agency lacked an appreciation for how the changes 
would impact small business's willingness to participate. OSHA did not 
convene a SBREFA panel prior to proposing the changes to its 
consultation agreements program despite the On-site Consultation 
program's focus on small business. OSHA, therefore, missed an 
opportunity to learn directly from small businesses about how changes 
would affect their participation in the program. Through a SBREFA 
panel, OSHA would have heard how the agency could achieve its goal, 
without scaring away small businesses from a program that has improved 
workplace safety in thousands of small businesses.
    3. Proposed Interpretation of OSHA's Provisions for Feasible 
Administrative or Engineering Controls of Occupational Noise:\19\
    In October, OSHA proposed to change the requirements for employers 
to control noise exposures. Currently, OSHA requires engineering and 
administrative controls to prevent hearing loss if personal protective 
equipment (PPE) such as earplugs is ineffective in reducing workplace 
noise to acceptable levels or if such controls can be implemented for 
less cost than PPE. OSHA's proposal last year was to reverse the 
preference for PPE and require engineering controls without 
consideration of cost unless it would threaten a company's ``ability to 
remain in business.'' \20\
    OSHA circumvented the SBREFA panel requirement by declaring its 
proposal was just revising an interpretation and, therefore, was not a 
new rulemaking subject to normal rulemaking procedures, including the 
SBREFA panel requirement. That type of rationale was unfortunate 
because it ignored the value of SBREFA panels. A SBREFA panel could 
have informed OSHA that PPE has proven effective in reducing harmful 
exposure to noise in the workplace and that driving employers away from 
the preference for PPE could actually increase danger. Also, a SBREFA 
panel could have informed OSHA about the cost considerations of 
engineering controls. Maybe OSHA wanted to see what engineering 
controls were ``feasible'' for small manufacturers. The way to find out 
was to convene a SBREFA panel, not to declare that ``feasible'' is 
anything short of causing a business to close its doors and go out of 
business.
Conclusion
    In the examples of OSHA's proposed MSD reporting rule and OSHA's 
proposed changes to its On-site Consultation program, SBA's Office of 
Advocacy wrote to the agency and shared the concerns voiced by the 
small business community.\21\ In both letters, the Office of Advocacy 
publicly criticized the failure by OSHA to incorporate flexibility for 
small business in their proposals. Even though OSHA recently pulled 
back its plans to go ahead with the noise rule and the MSD reporting 
rule, the Committee is justified in its concern that OSHA is moving 
forward with regulatory policy that will impact the small business 
community in a way that ignores their input. OSHA's policy apparatus 
suffers when the agency treats the SBREFA process as a legal barrier. 
The purpose of the Regulatory Flexibility Act and the SBREFA amendments 
is for OSHA to benefit from small business input so the agency can 
fulfill its mission to ensure safe workplaces without unduly burdening 
small employers. Constructive input by small firms provides OSHA with 
valuable insight that allows for the agency to draft proposals that 
will work on Main Street. OSHA benefits when it embraces the SBREFA 
process as a constructive dialogue.
                                endnotes
    \1\ See http://www.SBCRR.com.
    \2\ See http://www.sba.gov/advocacy.
    \3\ Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164 
(1980), amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, Pub. L. No. 104-121, 110 Stat. 857 (1996) (codified as 
amended at 5 U.S.C. Sec. Sec.  601-612), also amended by Sec.  1100 G 
of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. 
L. No. 111-203, 124 Stat. 2112 (July 21, 2010).
    \4\ Keith W. Holman, The Regulatory Flexibility Act at 25: Is the 
Law Achieving Its Goal?, 33 Fordham Urban Law Journal 1119 (2006).
    \5\ Small Business Regulatory Enforcement Fairness Act of 1996, 
Pub. L. No. 104-121, 110 Stat. 857 (1996).
    \6\ Nicole V. Crain and W. Mark Crain, The Impact of Regulatory 
Costs on Small Firms, written for the Office of Advocacy, U.S. Small 
Business Administration (September 2010), available at http://
www.sba.gov/advocacy/853/2016.
    \7\ Office of Advocacy, U.S. Small Business Administration, 
Frequently Asked Questions (January 2011), available at http://
www.sba.gov/advocacy/7495.
    \8\ Id.
    \9\ John Haltiwanger, Business Dynamics Statistics Briefing: Jobs 
Created from Business Startups in the United States, Ewing Marion 
Kauffman Foundation (January 2009), available at: http://
www.kauffman.org/research-and-policy/bds-jobs-created.aspx.
    \10\ Small Business Regulatory Enforcement Fairness Act of 1996, 
Pub. L. No. 104-121, 110 Stat. 857 (1996).
    \11\ See, 5 U.S.C. Sec. 609.
    \12\ Executive Order 13272, Proper Consideration of Small Entities 
in Agency Rulemaking, 67 Fed. Reg. 53461 (August 16, 2002).
    \13\ Small Business Jobs Act of 2010, Pub. L. No. 111-240, 
Sec. 1601 (September 27, 2010).
    \14\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Pub. L. No. 111-203, Sec. 1100G (July 21, 2010).
    \15\ See, 5 U.S.C. Sec. 605(b).
    \16\ 75 Fed. Reg. 4728 (January 29, 2010).
    \17\ 75 Fed. 4736.
    \18\ 75 Fed. Reg. 54064 (September 3, 2010).
    \19\ 75 Fed. Reg. 64216 (October 19, 2010).
    \20\ 75 Fed. Reg. at 64217.
    \21\ Susan M. Walthall, Acting Chief Counsel for Advocacy, letter 
to OSHA Assistant Secretary David Michaels, (March 30, 2010). Available 
at: http://www.sba.gov/content/letter-dated-033010-department-labor-
occupational-safety-and-health-administration. Winslow Sargeant, Chief 
Counsel for Advocacy, letter to OSHA Assistant Secretary David 
Michaels, (November 2, 2010). Available at: http://www.sba.gov/content/
letter-dated-110210-department-labor-occupational-safety-and-health-
administration.
                                 ______
                                 
    Chairman Walberg. Thank you, Mr. Sullivan.
    Moving on to Mr. Sessions?

 STATEMENT OF STUART SESSIONS, PRESIDENT, ENVIRONOMICS, INC., 
   TESTIFYING ON BEHALF OF THE COALITION FOR WORKPLACE SAFETY

    Mr. Sessions. Good morning, Mr. Chairman and members of the 
Subcommittee on Workforce Protections. Thank you for inviting 
me here to testify specifically on OSHA's recent proposal 
regarding the noise exposure standard and the potential impact 
of this proposal on job creation. This is one of OSHA's three 
actions that Tom Sullivan just referred to.
    I am here on behalf of the Coalition for Workplace Safety. 
The coalition has retained me to analyze the potential cost and 
economic impacts if OSHA were to finalize this proposed new 
reinterpretation of the term ``feasible'' as it applies to the 
noise standard.
    I want to share with the subcommittee today some initial 
results from two recent analyses of this new reinterpretation 
by OSHA that have been conducted by the coalition and its 
members. The two analyses are, number one, a series of case 
studies.
    I have been working with a number--about a dozen different 
companies to evaluate what the impact of OSHA's proposal would 
be on their operations. How much would it cost each of these 
companies? How much would the new interpretation revise what 
they need to do in terms of meeting the noise standard? And 
what would these compliance costs mean to these businesses in 
terms of their competitive position and in terms of jobs?
    The second piece of research is a large survey that has 
been done by the National Association of Manufacturers, in 
which they asked their manufacturing members what the impact of 
OSHA's proposal would be on their operations and on their 
competitive position. And NAM obtained more than 315 lengthy 
responses to this questionnaire on the impact of the OSHA 
proposal.
    I have combined data from these two sources, my case 
studies and the NAM survey, along with other data to attempt to 
estimate what the overall impact on the national economy would 
be if OSHA's proposal were finalized, the impact in particular 
in terms of costs and in terms of jobs.
    I draw four conclusions from these analyses, and I would 
like to share these conclusions with the subcommittee. First, 
the proposed OSHA noise reinterpretation would affect a large 
number and very broad range of American businesses and their 
employees. Most companies involved in manufacturing, most 
involved in construction, and many involved in transportation 
have employees exposed to noise levels at which the OSHA 
reinterpretation would apply.
    In addition, there are many other businesses that do 
various other activities, including lawn care, tree service, 
automobile repair, warehousing, anything involving maintenance 
and repair of large, noisy equipment that would also be 
affected by OSHA's proposal. In total, I estimate that 
somewhere between 2 million and 7 million workers would be 
affected by OSHA's proposal, and their employers would 
similarly be affected.
    Second conclusion: The costs for American business to 
comply with OSHA's proposed new policy would be very high. OSHA 
estimated long ago that the average highly exposed worker who 
is exposed to a level of noise at which this proposal would 
have an impact, OSHA estimated that the average cost per 
engineering controls--engineering controls alone to protect 
that worker would average about $4,000 per worker per year.
    The NAM survey provides more recent information than OSHA's 
old estimate on the cost per worker. And the NAM survey 
estimates costs for engineering controls alone as a protective 
approach of somewhere between $2,000 and $10,000 per year per 
highly exposed worker.
    Under the current policy, employers are allowed to protect 
workers via a combination of engineering controls, 
administrative controls, and hearing protection--earmuffs, 
earplugs, and the like--and typically earmuffs and earplugs are 
far less expensive than engineering controls.
    So OSHA's policy essentially requires employees to spend on 
the order of this $2,000 to $10,000 per employee, rather than 
the much lesser sums that they can spend to protect employees 
via hearing protection alone.
    If we put these costs of $2,000 to $10,000 per worker per 
year together with the number of exposed workers, the total 
cost for OSHA's proposal, as I estimate it, is somewhere 
between $1 billion and $27 billion per year. This amount, if it 
were to be a cost of a regulation, would trigger the 
requirements for Executive Order 12866 and economic analysis of 
significant regulations, and it would trigger the SBREFA 
requirements that Mr. Sullivan referred to for small-business 
panels, et cetera. OSHA essentially sidestepped these 
procedural safeguards by issuing this as an administrative 
interpretation rather than a regulation.
    Conclusion number three: OSHA's proposed new interpretation 
and these costs would have a substantial negative impact on 
U.S. jobs and competitiveness. We have done a little bit of 
work to run the estimated compliance costs through a national 
model that predicts the macroeconomic impacts of compliance 
costs. Actually, we haven't run them through the model; we have 
analogized from a recent run of the model on it, a different, 
similar regulation.
    And we estimate that the impact on the nation's employment, 
if OSHA's proposal were to be finalized, would be a loss of 
somewhere between 10,000 and 220,000 jobs.
    Final conclusion number four. All of this would be for 
relatively little benefit in terms of improved hearing 
protection for workers. Two points.
    One, currently the number of reportable work-related 
hearing losses for highly exposed workers is very low. The 
current system of--the current regulation and OSHA's previous 
interpretation of the noise standard are working, less than 
0.6----
    Chairman Walberg. I would ask you to wrap up.
    Mr. Sessions. Fifteen seconds. Less than 0.6 percent of 
workers are currently--have evidence of a work-related hearing 
loss. Under the current system, that is less than the number 
of--the percentage of the general population that has such 
hearing losses.
    So there isn't a problem in the first place that the 
regulation would be addressing. And, secondly, the regulation 
would have minimal impacts in reducing--or the proposal would 
have minimal impacts in reducing this already low rate of 
hearing loss.
    Thank you, sir.
    [The statement of Mr. Sessions follows:]

Prepared Statement of Stuart L. Sessions, President, Environomics, Inc.

    Good morning, Mr. Chairman and Members of the Subcommittee on 
Workforce Protections. Thank you for inviting me today to testify on 
OSHA's recent proposal regarding the noise exposure standard and the 
potential impact of the proposal on job creation.
    I am Stuart Sessions, President of the consulting firm 
Environomics, Inc. I am here today representing the Coalition for 
Workplace Safety (CWS). The Coalition for Workplace Safety is a group 
of associations and employers who seek to cost-effectively improve 
workplace safety. The Coalition has retained me to analyze the 
potential costs and economic impacts if OSHA were to finalize their 
proposed new interpretation of the term ``feasible'' as it applies to 
the Agency's standards for occupational exposure to noise.
    As an economist, I have worked for more than 30 years in analyzing 
how a wide variety of environmental, health and safety regulations and 
administrative actions may affect the U.S. economy. Roughly half of my 
work in analyzing the economic impact of environmental, health and 
safety requirements has been as a Federal government employee or 
contractor, and about half has been as a consultant to private 
industry.
    OSHA proposed its reinterpretation of the noise standard as a 
policy interpretation and not specifically as a regulation. 
Nevertheless, this proposed action is typical of how a new government 
requirement, whether achieved by formal regulation or simply as a 
declaration of policy by the agency that enforces the regulations, can 
affect the U.S. economy and jobs.
    I want to share with the Subcommittee today some initial results 
from two recent analyses of OSHA's proposed noise reinterpretation by 
CWS and its members. These analyses have not yet been completed, and 
they may well not be completed, since OSHA has withdrawn its proposed 
new interpretation. These analyses, however, focus directly on the 
Subcommittee's concern about how OSHA's requirements may affect job 
creation I expect that our preliminary findings from these analyses 
will be of interest and I have no expectation that the thrust of these 
analyses will change in a material way. The two analyses are:
    1. Case studies. I have been working with about a dozen different 
companies on case studies of what the OSHA proposal would mean to their 
operations. The case studies examine how each of these employers 
complies with the OSHA noise standard now, what they would have to do 
differently if the proposed interpretation were finalized, and how much 
compliance with the new interpretation would cost them. And then, the 
case studies proceed to analyzing the impacts of these compliance 
costs: what would these compliance costs mean to these businesses and 
their competitive position, and what would the costs mean in terms of 
jobs? Would some of the current employees of these companies lose their 
jobs because the companies become less competitive and lose business, 
or might the noise compliance measures open new opportunities for these 
businesses and perhaps result in increasing numbers of jobs in the 
future?
    2. NAM survey. The National Association of Manufacturers (NAM) has 
conducted a large survey of its member companies with regard to the 
companies' hearing protection programs for their employees and the 
potential impact of the OSHA noise proposal. NAM asked a broad set of 
questions of the companies, including similar questions as in my case 
studies about the costs and economic consequences of OSHA's proposed 
new interpretation. NAM has obtained more than 315 responses to their 
survey from manufacturing companies.
    In addition to reporting today on some of the results from my case 
studies and the NAM survey, I have combined data from these and other 
sources and have estimated the overall potential impact on the national 
economy of OSHA's noise reinterpretation in terms of costs and in terms 
of jobs. While I readily admit that my estimates are rough and 
uncertain, they contrast with the complete absence of any economic 
analysis conducted by, or at least made public by, OSHA.
    I draw four conclusions from this set of analyses--from the 
combination of my case studies, the NAM survey, and the national 
aggregate analysis:
    1. The proposed OSHA noise interpretation would affect a large 
number and very broad range of American businesses and their employees.
    2. The costs for American businesses to comply with OSHA's proposed 
new policy would be very high.
    3. OSHA's proposed new interpretation would have substantial 
negative impacts on U.S. jobs and competitiveness.
    4. All this would be for relatively little benefit in terms of 
improved hearing protection for workers.
    Before I explain these conclusions in more detail, I would like to 
summarize what OSHA's proposed noise reinterpretation would have 
required.
    OSHA has long had a standard that prescribes 90 decibels as the 
maximum average noise level to which a worker may be exposed over an 8-
hour work shift. OSHA has for several decades maintained the policy 
that an employer can comply with this 90 decibel standard through 
whatever combination of three noise-limiting approaches that the 
employer finds is cost-effective. The three noise-limiting approaches 
include what are known as: 1) Engineering controls; 2) Administrative 
controls; and 3) Personal protective equipment. ``Engineering 
controls'' include measures to reduce noise by engineered means such as 
mufflers on noisy equipment, sound-deadening enclosures for noisy 
equipment, redesigning or changing equipment or processes so as to make 
them less noisy, and so forth. ``Administrative controls'' include 
measures such as rotating a worker's tasks so as to limit the fraction 
of his work shift that the worker spends performing activities with 
high noise levels. ``Personal protective equipment'', or PPE, includes 
such things as ear plugs or ear muffs that reduce the amount of noise 
exposure the individual worker receives despite whatever level of 
ambient noise surrounds the worker. In general, reducing a worker's 
noise level is substantially less costly through use of personal 
protective equipment than through engineering controls or 
administrative controls.
    OSHA's noise standard does not treat these three means of reducing 
a worker's noise exposure equivalently. The standard requires an 
employer to limit exposure to 90 decibels first by implementing all 
feasible engineering and administrative controls. Only then, after all 
feasible engineering and administrative controls have been implemented, 
can an employer add personal protective equipment in order to get below 
the 90 decibel limit. The key in how OSHA has sensibly implemented for 
many years this preference for engineering and administrative controls 
lies in how OSHA has interpreted the term ``feasible'' as a limitation 
on the engineering and administrative controls that will be required. 
OSHA has long interpreted the word ``feasible'' as meaning ``cost-
effective relative to PPE''. Those engineering and administrative 
controls that are defined as feasible and required to be implemented 
first consist only of those that are cost-effective relative to PPE. 
Or, said in a different way, if PPE is effective in limiting workers' 
noise exposure to less than 90 decibels and is less costly than 
engineering and administrative controls, the employer can choose to 
implement PPE rather than more costly engineering and administrative 
controls.
    In the fall of last year, though, OSHA proposed to reinterpret the 
term ``feasible'' as it applies in the noise standard. OSHA proposed to 
reinterpret ``feasible'' to mean ``capable of being done'' instead of 
meaning ``cost-effective''. Under OSHA's proposed new interpretation, 
then, in seeking to limit noise exposures to below 90 decibels, an 
employer would need to implement all possible engineering and 
administrative controls without regard to cost unless the employer can 
show that the engineering and administrative controls would threaten 
the employer's ability to remain in business. Under the proposed new 
interpretation, the limit on required engineering and administrative 
controls would change from only those that are cost-effective to all 
such controls that are available short of putting the employer out of 
business.
    Obviously OSHA's proposed new interpretation of the term 
``feasible'' would greatly increase the required use of engineering and 
administrative controls relative to PPE in reducing noise exposures. I 
and the Coalition for Workplace Safety have been working to estimate 
the costs and economic impacts that would result from OSHA's proposed 
new policy. I would like to summarize the four conclusions that I have 
drawn from our analyses thus far.
    1. The proposed OSHA noise interpretation would affect a large 
number and very broad range of American businesses and their employees.
    There are a wide variety of tools, machines, vehicles and processes 
that can generate noise exceeding 90 decibels: saws, hammers, punches, 
presses, sanders, burners, boilers, blowers, crushers, generators, 
compressors, aircraft, trucks, busses, locomotives, boats, compressed 
air, combustion, abrasive blasting, welding and many, many more. 
Workers operating or maintaining these items, or performing other tasks 
in the vicinity of these items, can be exposed to noise that may exceed 
an average of 90 decibels across an 8-hour work shift.
    I have reviewed various data sources in order to develop a rough 
estimate for the number of employees that are exposed above 90 decibels 
and that therefore could be affected by OSHA's proposed 
reinterpretation. I have organized these estimates by industry:
     Manufacturing. In regulatory impact analyses that OSHA 
developed in the late 1970s/early 1980s to support potential changes to 
the noise standard, the Agency estimated that 19.4% of all production 
employees in manufacturing industries (SIC codes 20 through 37, plus 
SIC 49, utilities) work in settings with average ambient noise 
exceeding 90 decibels. This estimate is rather old, but is apparently 
the most recent comprehensive estimate that OSHA has developed. Noise 
exposures in manufacturing have likely been reduced since OSHA's 
estimate. I will assume in my calculations that the fraction of 
manufacturing production workers now exposed above 90 decibels is 
somewhere between the roughly 20% that OSHA estimated 30 years ago and 
2%, a level one-tenth as high.
     Construction (SIC 15-17). A large recent noise survey for 
residential construction trades found for virtually every job category 
that at least 10% of full-shift samples exceeded 90 decibels (roofer, 
framing carpenter, finish carpenter, excavator, drywall installer, 
brick mason and helpers, landscaper, miscellaneous trades). Exposures 
among commercial construction workers are higher than among residential 
workers, while exposures among heavy/public works construction workers 
are likely also to be higher. Any particular construction worker's 
noise exposure can vary significantly from shift to shift as a function 
of how much of the shift he spends using or near a noisy tool. A brick 
mason, for example, may spend a large share of one shift using a noisy 
brick saw, but may not use the saw at all on the next shift. The result 
is that the fraction of construction workers who are occasionally 
exposed above 90 decibels for a shift substantially exceeds the 
fraction of all full-shift samples that exceed 90 decibels. I will 
assume that somewhere between 20% and 50% of all construction workers 
are occasionally exposed above 90 decibels, in contrast to the roughly 
10% or so of all construction worker samples that exceed 90 decibels.
     Transportation (SIC 40-49). Workers around concentrations 
of transportation vehicles, particularly aircraft, can be exposed to 
noise levels exceeding 90 decibels. I will assume that the fraction of 
non-office transportation workers exposed above 90 decibels is similar 
to that for manufacturing production workers; somewhere between 2% and 
20%.
     Other industries. There are many additional industries 
where workers can often be exposed at average levels exceeding 90 
decibels, such as lawn care, tree service, automobile repair, 
maintenance and repair of large, noisy equipment, and warehousing. 
These other industries likely account for many fewer highly exposed 
workers than manufacturing, construction and transportation. I have not 
sought to estimate the likely much smaller numbers of highly exposed 
workers in additional industries.
    Combining recent employment figures for manufacturing, construction 
and transportation with estimates of the percentages of each industry's 
workers that are exposed to average noise levels exceeding 90 decibels, 
I estimate that there are some 2 to 7 million workers currently exposed 
at such levels. These workers and their employers would be directly 
affected by OSHA's proposed new interpretation.
    I have provided a table at the end of this testimony that shows 
these estimates and summarizes how I proceed further to calculate the 
costs and job impacts of OSHA's proposed policy.
    2. The costs for American businesses to comply with OSHA's proposed 
new policy would be very high.
    OSHA has not estimated what the costs would be for the additional 
engineering and administrative controls that would be necessitated by 
the policy. The most recent nationwide cost estimates that OSHA has 
developed involving additional noise controls can be found in the 
regulatory impact analyses in the late 1970's/early 1980's that I 
referred to earlier. At that time, OSHA estimated the costs for 
additional technologically feasible engineering and administrative 
controls sufficient to reduce ambient noise to 90 decibels or less as 
the equivalent of $4,037 per affected employee per year in 2010 
dollars. Said another way, OSHA estimated for each employee exposed to 
ambient noise levels exceeding 90 decibels that the cost of engineering 
and administrative controls to reduce these levels to 90 decibels or 
below would average $4,037 per year. This cost estimate is OSHA's most 
recent, but it is still roughly 30 years old.
    A much more current estimate for the costs of the engineering and 
administrative controls necessitated by OSHA's proposed 
reinterpretation can be developed from the NAM survey results and my 
case studies. Across these two data sources, 45 companies or facilities 
have estimated both the number of their employees exposed to average 
ambient noise levels exceeding 90 decibels and the costs of available 
engineering and administrative controls to reduce these exposures. The 
resulting estimates for the cost of the proposed OSHA policy per 
affected employee span a very wide range, all the way from less than $1 
per employee per year to more than $200,000 per employee per year. The 
median estimate from the case studies and NAM's survey is $2,950 per 
affected employee per year, while the average across the 45 companies 
or facilities is $18,137 per employee per year. I believe that this 
average figure is skewed by several very high estimates of cost per 
employee that represent situations where costly controls would reduce 
noise exposures for very few workers, and that these controls might not 
actually be implemented in practice. I will assume that the controls 
more likely to be implemented in practice might average somewhere 
between about $3,000 and about $10,000 per employee per year. This 
range brackets the figure that OSHA derived previously of about $4,000 
per affected employee per year.
    These represent my estimated costs per affected worker of OSHA's 
proposed new policy for manufacturing industries specifically. (Both 
OSHA's estimate and the NAM survey that provided most of my cost data 
addressed manufacturers only.)
    I would expect that the cost per affected worker for transportation 
industries would be roughly similar to these estimated costs for 
manufacturing industries. I thus will assume an identical range of 
between $3,000 and $10,000 per affected employee per year.
    For construction industries, I believe that these costs for 
engineering and administrative controls would be much lower than for 
manufacturing, perhaps only one-tenth as much. Most of the engineering 
controls for construction involve changes to small equipment--less 
noisy saws, compressors, jackhammers, etc., in contrast to 
manufacturing where the noise-reducing measures would often involve 
changes to large machines, entire process lines or significant portions 
of a shop floor. For my very rough total national cost estimate for 
OSHA's proposed policy, I estimate the cost per affected worker in 
construction industries at one-tenth that for manufacturing, and thus 
roughly $300 to $1,000 per worker per year.
    To develop an estimate for the total national cost of OSHA's 
proposed policy, we can multiply each of these figures on the cost per 
affected employee by the estimates I discussed earlier for the number 
of employees in different industries that are exposed to ambient 
workplace noise exceeding 90 decibels. In total, we get a national cost 
estimate for OSHA's proposed noise reinterpretation that is somewhere 
in the range from $1.2 billion dollars per year to $27 billion dollars 
per year. The total national cost is nearer the higher end of this 
range if we assume OSHA's figure to the effect that nearly 20% of 
manufacturing production workers are in work settings with ambient 
noise levels exceeding 90 decibels, while the figure is near the lower 
end of this range if we assume conservatively that only one-tenth as 
many workers are exposed to high noise levels as OSHA estimated.
    An annual cost of somewhere between $1.2 and $27 billion is quite 
large relative to most other new requirements that the Federal 
government imposes on private industry. Only a few Federal regulations, 
typically fewer than five per year over the several decades that OMB 
has been keeping records, impose a burden of this magnitude on the 
economy. This figure reflects all Federal regulations for all 
purposes--environmental protection, homeland security, transportation 
safety, consumer protection, etc., as well as occupational health and 
safety. OSHA's proposed new policy on noise would be among the most 
expensive new requirements that the Federal government considers each 
year.
    This is a very large cost for a policy that OSHA proposed to adopt 
by simply declaring it, without meeting the due process sorts of 
requirements that would apply if the policy reinterpretation were 
instead to be a regulation. If OSHA's reinterpretation were to have 
been proposed as a regulation, as many would say it should have been, 
at a cost of more than a billion dollars per year this initiative would 
have been subject to the following important requirements:
     Executive Order 12866. The Executive Order requires any 
agency proposing a regulation that would cost more than $100 million to 
prepare a regulatory impact analysis (RIA). In the RIA, OSHA would need 
to: 1) Provide a clear and thorough explanation of the need for the 
proposed action; 2) Explicitly estimate the benefits and costs and 
economic impacts of the proposal; and 3) Fairly consider alternatives 
to the proposal.
     The Small Business Regulatory and Enforcement Fairness Act 
(SBREFA). OSHA's proposal would undoubtedly have a significant impact 
on a substantial number of small businesses. As such, pursuant to the 
requirements of SBREFA, OSHA would need to: 1) Analyze the impact of 
the proposed policy on small businesses specifically; 2) Convene a 
panel of small business representatives that would provide the Agency 
with advice on how potentially to reduce the impact of the proposal on 
small businesses; and 3) Consider a range of alternatives that would 
reduce the economic burden on small businesses.
    By attempting to issue the noise standard interpretation as a 
policy declaration instead of a regulation, OSHA avoided all these 
procedural safeguards. OSHA avoided the need for analyzing costs and 
benefits and considering alternatives under Executive Order 12866. 
Indeed, the Office of Information and Regulatory Affairs was not even 
informed of this proposal. OSHA avoided the need to examine impacts on 
small businesses and the need to consider alternatives that might 
reduce these impacts. In my view, avoiding these requirements for 
analysis, disclosure and transparency makes for poor public policy.
    3. OSHA's proposed new interpretation would have substantial 
negative impacts on U.S. jobs and competitiveness.
    The companies responding to the NAM survey and those involved in 
the case studies have offered a variety of comments on what OSHA's 
proposed new interpretation would mean for their businesses. I will 
quote some responses to the question of whether OSHA's proposal would 
affect the company's competitive position:
     Foreign imports (even from Canada) are coming in at lower 
delivered cost. Labor content is already more than 25% of each sales 
dollar. More labor inefficiency [from administrative controls] will 
push us far higher.
     I would shut down.
     Most of our facilities agreed that given the estimated 
costs required to comply, they would in many cases either contract the 
work to outside suppliers (who would have to meet the same 
requirements) or consider moving the work out of the U.S.
     Cost increases would significantly increase cost for two 
processes where there is already significant and growing competition 
from China.
     Added costs with no commensurate increase in efficiency or 
output make us even less competitive than we are against the Chinese 
who have no such requirements to hamper them.
     The changes would have to be paid for. With already slim 
margins it would almost certainly require an increase in our product 
cost. It is already difficult to compete with foreign competitors on a 
cost basis. We can't and won't produce product for free or at a 
negative margin.
     Negative impact. We would have to invest precious assets 
in equipment that actually negatively affects productivity.
     We would shift more of our production overseas.
     We would attempt to fully automate the noisy process so it 
would not need an operator who would be exposed to the noise.
     As we continue to spend money on new and existing 
compliance requirements the cost to do business goes up each year. It 
gets tougher to stay competitive especially with the overseas markets 
because you can't pass these costs on to the customers.
     It would cost us a lot of unnecessary money. We are a 
small company and it would be a hit to our bottom line for sure, but 
our competitors would have the same issues so we'd all lose money 
together at least.
     There is no return on that investment. We don't see 
hearing loss now, so why invest any money in it?
     Our competition would be investing their money into 
projects that make them lower cost producers.
     Significant distraction from what we need to do to stay 
competitive in a globalized manufacturing economy.
     Implementing all feasible engineering and administrative 
controls would be a very expensive exercise that would have significant 
safety and financial consequences.
    The great majority of the responses forecast an important negative 
impact on the responding company's competitiveness.
    In answer to another question on whether OSHA's proposed new 
approach would cause the company to reduce its number of employees in 
the U.S., 70% of the respondents said ``yes'' and 30% said ``no''.
    In my view, the best way to quantitatively estimate the ultimate 
economic impact from a broad new requirement such as OSHA's noise 
reinterpretation is to use a national economic forecasting and policy 
simulation model. The estimated industry-by-industry compliance costs 
from the new requirement are loaded into the model, and the model then 
predicts the particular industries that will be winners and losers and 
the overall impacts on GNP, employment and other economic variables of 
interest. We have not yet run such a model to estimate the impacts that 
would ensue from OSHA's proposed noise reinterpretation, but I believe 
that we can reasonably extrapolate from the recent results when such a 
model was run for a comparable potential new requirement.
    The REMI Policy Insight Model is one of the most respected national 
economic forecasting models that is used to estimate the aggregate 
economic impacts from significant new spending initiatives, whether the 
initiatives involve private industry compliance spending such as may be 
required by a regulation, or investment spending such as might be 
associated with a governmental stimulus program. The REMI model was 
recently run to estimate the impact of EPA's proposed national 
regulation to tighten the air quality standard for ozone. EPA's 
potential requirement regarding ozone and OSHA's potential requirement 
regarding noise are qualitatively similar: both affect primarily the 
manufacturing and transportation industries, both will have broad 
national impact, and both have costs estimated to exceed a billion 
dollars per year. The recent REMI run for EPA's proposed ozone standard 
found that a net of about 8 U.S. jobs would be lost for every million 
dollars per year in compliance costs. Applying this factor to the 
compliance costs that we estimate for the proposed OSHA noise 
reinterpretation, we project a net loss of somewhere between about 
10,000 and 220,000 U.S. jobs if OSHA's noise proposal were to be 
finalized.
    4. All this would be for relatively little benefit in terms of 
improved hearing protection for workers
    I would like to make two points here:
     First, it does not appear that work-related hearing loss 
is a frequent problem now, under OSHA's existing and long-standing 
noise regulation and enforcement policies.
     Second, it seems unlikely that OSHA's proposed policy 
shift would significantly reduce the already low rate of work-related 
hearing loss.
The current rate of work-related hearing loss is low
    OSHA's noise standard requires an employer to operate a hearing 
conservation program if any employees are exposed to an average noise 
level exceeding 85 decibels. A hearing conservation program must 
include monitoring of ambient noise levels and employee noise 
exposures, provision of hearing protectors, annual audiometric testing 
of employees, specific follow-up activities if the annual audiogram 
shows indication of hearing loss, and more. The employer must provide 
hearing protection devices to all employees exposed above 85 decibels, 
and must both provide and require the use of hearing protection devices 
for all employees exposed above 90 decibels. And, as I discussed 
previously, the employer must also implement all feasible engineering 
and administrative controls to reduce exposures exceeding 90 decibels.
    Among the companies responding to NAM's survey, more than 90% have 
employee exposures exceeding 85 decibels and operate a hearing 
conservation program as they are required to do under the noise 
standard. I want to emphasize these two important characteristics of 
the vast majority of the companies that have responded to the NAM 
survey. These companies: a) Have relatively high noise exposures 
(employees exposed over 85 decibels); and b) Take measures to protect 
their employees by operating the hearing conservation programs that 
OSHA requires. These companies provide an ideal test for how well 
OSHA's longstanding approaches are performing in protecting workers' 
hearing. These companies have the relatively high noise levels that 
OSHA is concerned about, and they have been implementing the programs 
that OSHA mandates. What is the result in terms of hearing loss among 
the exposed workers at these companies?
    The answer from the NAM survey is that these companies show very 
low rates of worker hearing loss. For the year 2010, 132 companies 
provided information on both the number of their employees exposed 
above 85 decibels and the number of employees that showed evidence of 
work-related hearing loss (a ``Standard Threshold Shift'' or STS). The 
percentage of these relatively highly exposed workers that had a 
recordable STS was only 0.59% (184 with STS out of 31,074 employees 
exposed above 85 decibels among the 132 companies that responded). This 
incidence of STS is very low.
This already low rate of work-related hearing loss is unlikely to 
        decline much further with OSHA's proposed policy shift
    Most companies in my case studies (and additional companies in the 
NAM survey) reported that the feasible engineering and administrative 
controls they would implement under the proposed OSHA policy shift 
would not be sufficient to reduce current exposures exceeding 90 
decibels to below 90 decibels. PPE would continue to be required for 
these employees, despite the additional engineering and administrative 
controls. Under current OSHA requirements and policy the rate of work-
related hearing loss among highly exposed workers is low and depends 
substantially on the efficacy of PPE--this situation would change 
little if OSHA changed its policy as proposed.
Summary of Conclusions
    1. The proposed OSHA noise interpretation would affect a large 
number and very broad range of American businesses and their employees.
    2. The costs for American businesses to comply with OSHA's proposed 
new policy would be very high.
    3. OSHA's proposed new interpretation would have substantial 
negative impacts on U.S. jobs and competitiveness.
    4. All this would be for relatively little benefit in terms of 
improved hearing protection for workers.
    Thank you for the opportunity to participate in this hearing.

                                ESTIMATED COST/YR OF OSHA'S PROPOSED NEW INTERPRETATION OF FEASIBILITY FOR NOISE STANDARD
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Percent of ``line''    Cost/yr of engr/     Estimated total   Estimated jobs impact
                                                                       workers needing     admin controls per     cost for OSHA        of OSHA policy
                                                      Percent in     controls because of   worker exposed >90      policy (in     ----------------------
                                         Current or    ``line,''    ambient exposures >90          dBA            $billions/yr)
                Sector                   typical #    non-office             dBA          ----------------------------------------
                                         of workers      jobs     ------------------------                                            High        Low
                                                                      High         Low       High       Low      High       Low     estimate    estimate
                                                                    estimate    estimate   estimate  estimate  estimate  estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Manfacturing..........................   14,000,000          60%         19%          2%    $10,000    $3,000       $16      $0.5    -130,368     -3,911
Construction..........................   10,000,000          90%         50%         20%     $1,000      $200        $5      $0.4     -36,000     -2,880
Transportation........................    6,500,000          50%         19%          2%    $10,000    $3,000        $6      $0.2     -50,440     -1,513
--------------------------------------------------------------------------------------------------------------------------------------------------------
  Total...............................  ...........  ............  6,760,100   2,026,010   ........  ........       $27        $1    -216,808     -8,304
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                 ______
                                 
    Chairman Walberg. Thank you, Mr. Sessions. I apologize for 
not catching the red light sooner. Since this is my first 
chairman duties, I am more used to listening and enjoying what 
I am hearing or reacting to what I am hearing. But that won't 
continue long, and the next two witnesses I certainly will give 
some latitude, but my--you know, I am from a red state, so it 
looks just normal. But we will try to keep the time here. Thank 
you.
    Moving on to Ms. Miser?

 STATEMENT OF TAMMY MISER, EXECUTIVE DIRECTOR, UNITED SUPPORT 
             AND MEMORIAL FOR WORKPLACE FATALITIES

    Ms. Miser. Chairman Walberg and members of the 
subcommittee, thank you very much for asking me to be here 
today. My name is Tammy Miser, and I have traveled from 
Lexington, Kentucky, to give you a very personal story of why 
OSHA regulations are needed.
    In 2003, my brother Shawn Boone, was 33 years old, and he 
was killed in an aluminum dust explosion. The company, Hayes 
Lemmerz, they produced aluminum wheels. They had had fires on a 
regular basis, and protocol was that they let the fires burn 
down and then they go back in and re-light the chip melt 
furnace. And they were also instructed not to call the fire 
department, because it was costing them too much money to do 
this.
    So that is what they did. And my brother went back in to 
collect his tools in the furnace room, and there was an 
explosion. This explosion caused aluminum dust to rain down 
from the rafters and the equipment, and there was a second, 
more intense explosion.
    This explosion actually left my brother blind with third-
degree burns over most of his--at least 90 percent of his body, 
is what they were saying. Shawn was still conscious. He was 
still aware of what was going on. And some say that in between 
his cries for help he was joking about a fishing trip. It was 
just the kind of guy he was. He was a really wonderful guy.
    So when we were able to actually--he had no clue what 
condition his body was in, because he couldn't see. And we 
think that that is probably why he was able to get through it 
and he was conscious in knowing what was going on.
    But when we finally were able to see him, his face was 
splitting, he was swollen, his body was raw, and they refused 
to bandage his body. And I had been with him for a lifetime. He 
was my brother. And I could only recognize him by a few 
freckles on his face and--and this is the hardest thing that a 
family can face, truly.
    And many can't take this. And in 2007, my youngest brother 
drove halfway across the United States with a few photos of 
Shawn and the phone records of the night he was killed tucked 
in his Bible. He proceeded to shoot himself in the head. And I 
can't say that this incident alone caused my brother to take 
his life, but I know that he was not able to handle it, and 
that was what was on his mind.
    The argument that the regulations kill jobs, and I just 
really feel that it is just nonsense. There have only been two 
OSHA regulations in the past 10 years, crane and derricks and 
chromium. Both only affect a fraction of the U.S. businesses. 
As I talk to families around the country, I don't see this huge 
avalanche of regulations. It is more like a drought.
    Rules that protect construction workers from dying in 
confined spaces has been on the regulatory agenda for 15 years. 
This little guy here, Steven Lillicrap, he was only 21 years 
old when he was pulled in to the cables of 100-ton crane. OSHA 
had been working on revising outdated crane standards for 10 
years.
    But this rule came too late for Steven. It was finally 
issued in July and is expected to prevent 22 deaths and 175 
injuries and millions of dollars in property damage per year. 
The benefits far outweigh the costs of this rule.
    The U.S. Chemical Safety Board warned OSHA in 2006 about 
combustible dust handlers. And it is not well known--but in 
2002, the year before my brother was killed, they had also let 
OSHA know that this was an issue. So if just the National Fire 
Protection Association consensus standards were mandatory, my 
brother would still be here, and others would still be here 
today.
    In 2008, the Imperial Sugar refinery dust explosion killed 
14 workers and injured 36. And some of these were severely 
injured, severe burns. And the means to prevent this was well-
known. Some companies choose to gamble with workers' lives 
because there are no OSHA standards.
    When preventable disasters strike in the workplace, they 
not only take a huge toll on the injured and their families, 
but workers can lose their jobs and communities suffer. In 
2009, the Sunoco refinery in Pennsylvania, the company decided 
not to rebuild after their explosion. Fifty workers were laid 
off. That same year, ConAgra's Slim Jim plant exploded. Three 
workers were killed, and 71 were injured. Before the disaster, 
700 people were employed there. Now the place is closing.
    A contractor working for ConAgra using a dangerous blowout 
procedure that purged natural gas in the indoor work 
environment is what had caused this. It was well known, that if 
OSHA had prevented--if OSHA could have prevented this with 
governing and rulemaking, this would have never happened.
    There is no price tag that can be put on seeing your 
husband walk your daughter down the aisle or seeing your baby 
born. I have talked to family members that have had children 
and their husbands are gone. Their babies are never going to 
know their father. It is nothing like seeing your child 
graduate from college or holding your grandbaby.
    I respectfully ask this subcommittee to not just look on 
one side of the ledger of the costs, but remember the benefits 
of the OSHA rules for workers, responsible employers, and 
families and communities.
    Thank you.
    [The statement of Ms. Miser follows:]

  Prepared Statement of Tammy Miser, United Support and Memorial for 
                          Workplace Fatalities

    Chairman Wahlberg, Ranking Member Woolsey and Members of the 
Subcommittee: My name is Tammy Miser. I am the founder of United 
Support and Memorial for Workplace Fatalities (USMWF). Our not-for-
profit organization offers support, guidance, resources, and advocacy 
to empower family members who have lost a loved one from work-related 
injuries or illnesses. We work with other organizations, government 
agencies, and businesses as a catalyst for positive change to ensure 
safe and healthy working conditions for all.
    My brother Shawn Boone worked at the Hayes Lemmerz plant in 
Huntington, Indiana where they made aluminum wheels. The plant had a 
history of fires, but workers were told not to call the fire 
department. My brother and a couple coworkers went in to relight a chip 
melt furnace. They decided to stick around a few minutes to make sure 
everything was ok and then went back to gather tools. Shawn's back was 
toward the furnace when the first explosion occurred. Someone said that 
Shawn got up and started walking toward the doors when there was a 
second and more intense blast. The heat from that blast was hot enough 
to melt copper piping. Shawn did not die instantly. He laid on floor 
smoldering while the aluminum dust continued to burn through his flesh 
and muscle tissue. The breaths that he took burned his internal organs 
and the blast took his eyesight. Shawn was still conscious and asking 
for help when the ambulance took him.
    Hayes Lemmerz never bothered to call any of my family members to 
let us know that there was an explosion, or that Shawn was injured. The 
only call we received was from a friend of my husband, Mark, who told 
them that Shawn was in route to a Ft. Wayne burn unit. (Mark also 
worked at the plant.) When Mark asked the hospital staff where Shawn 
was, we found that no one even bothered to identify him. We were told 
that there was a ``white, unidentified male'' admitted to the unit. 
When Mark tried to describe Shawn, the nurse stopped him to say that 
there was an unidentified male with no body hair and no physical 
markings to identify. So my Shawn was ultimately identified only by his 
body weight and type.
    We drove five hours to Indiana wondering if it really was Shawn, 
hoping and praying that it wasn't. This still brings about guilt 
because I would not wish this feeling on anyone. We arrived only to be 
told that Shawn was being kept alive for us. The onsite pastor stopped 
us and told us to prepare ourselves, adding he had not seen anything 
like this since the war. The doctors refused to treat Shawn, saying 
even if they took his limbs, his internal organs were burned beyond 
repair. This was apparent by the black sludge they were pumping from 
his body.
    I went into the burn unit to see my brother. Maybe someone who 
didn't know Shawn wouldn't recognize him, but he was still my brother. 
You can't spend a lifetime with someone and not know who they are. 
Shawn's face had been cleaned up and it was very swollen and splitting, 
but he was still my Bub. My family immediately started talking about 
taking Shawn off of life support. If we did all agree, I would be 
ultimately giving up on Shawn. I would have taken his last breath, even 
if there was no hope and we weren't to blame. I still had to make that 
decision. To watch them stop the machines and watch my little brother 
die before my eyes.
    But we did take him off and we did stay to see his last breath. The 
two things I remember most are Shawn's last words, ``I'm in a world of 
hurt.'' And his last breath.
    This has been the hardest thing my family has had to deal with 
until 2007. My youngest brother drove half way across the United States 
with a few photo's and phone records of the night Shawn was killed that 
he had tucked into his bible. Tommy then proceeded to shoot himself in 
the head. I can't say that Shawn's death alone caused my brother to 
take his own life, but I know for a fact he couldn't deal with it and 
that was what was on his mind.
    The U.S. Chemical Safety and Hazard Investigation Board (CSB) said 
the explosion that killed Shawn probably originated in a dust collector 
that was not adequately vented or cleaned. The dust collector was also 
too close to the aluminum scrap processing area. Hayes Lemmerz 
management allowed dust to accumulate on overhead beams and structures 
which caused a second, more massive explosion. The CSB concluded that 
had the company adhered to the National Fire Protection Association's 
standard for combustible metal dust, the explosion would have been 
minimized or prevented altogether.\1\
---------------------------------------------------------------------------
    \1\ U.S. Chemical Safety and Hazard Investigation Board. 
Investigation Report Aluminum Dust Explosion, Hayes Lemmerz 
International, Huntington, Indiana, October 29, 2003. Report No. 2004-
04-I-IN, September 2005.
---------------------------------------------------------------------------
    During my own struggle for information about the OSHA investigative 
process, it became clear that family member victims of workplace 
fatalities needed a place to get information and support. That's how 
USMWF was formed. We are a virtual community of individuals with the 
shared experience of losing a loved one from a work-related injury or 
disease. Thousands of family members across the U.S. suffer profoundly 
because of our nation's inadequate regulatory system and its failure to 
protect workers' fundamental right to a safe and healthy worksite.
    The buzz is that OSHA regulations are bad for business and kill 
jobs. This is nonsense. There have only been 2 new OSHA regulations in 
the last 10 years: crane and derricks, and hexavalent chromium. Both 
only affect a fraction of U.S. businesses. As I talked to families from 
around the country who have lost loved ones from workplace hazards, I 
don't see an avalanche of new OSHA regulations. It's more like a 
drought. For example, a rule to protect construction workers from dying 
in confined spaces has been on OSHA's regulatory agenda for 15 years.
    Steven Lillicrap was only 21 years old in February 2009 when he was 
fatally pulled into the cables of a 100-ton crane. OSHA had been 
working to revise its outdated crane safety standard for 10 years, but 
the new rule came too late for Steven. It was finally issued last July 
and is expected to prevent 22 deaths, 175 injuries, and millions of 
dollars in property damage per year. The benefits far outweigh the $154 
million cost. When you look at the few standards that OSHA has issued 
over its 40 year history, the benefits always exceed the costs. And 
those are only the benefits you can quantify.
    The CSB warned OSHA in 2006 about combustible dust hazards. Had the 
National Fire Protection Association (NFPA) standard been implemented, 
as a mandatory regulation instead of a voluntary consensus code, my 
brother Shawn and many others would still be here today. In 2008 the 
Imperial Sugar refinery explosion killed 14 workers and 36 were burned. 
The means to prevent these deadly explosions is well known. And 
preventing dust explosions has been done before, such as in grain 
handling facilities. Prior to OSHA's 1978 safety standard, there were 
about 20 explosions per year in grain elevators. Today, there are only 
about six. Yet some companies choose to gamble with workers' lives 
because there is no OSHA standard and failing to act gives them a 
competitive advantage over more responsible companies.
    When preventable disasters strike in the workplace, they not only 
take a huge toll on the injured and their families, but workers can 
lose their jobs and the community suffers.
    Some disasters occur because employers fail to comply with safety 
regulations. After the 2009 explosion at the Sunoco refinery in 
Pennsylvania, the company decided not to rebuild its ethylene unit. 
Fifty workers were laid off.\2\ Had there been better compliance with 
OSHA's process safety management requirements, it would never have 
happened.
---------------------------------------------------------------------------
    \2\ Logue T. Sunoco to lay off 40-50, close ethylene complex. Daily 
(Delaware) Times. July 7, 2009.
---------------------------------------------------------------------------
    Some disasters occur because of inadequate regulations. In 2009, 
Con Agra's Slim Jim plant exploded, 3 workers were killed and 71 were 
injured. A contractor was using a procedure that purged natural gas 
into the indoor work environment, instead of purging the gas out of 
doors and using an explosivity detection meter. This disaster could 
have been prevented if OSHA had regulations requiring natural gas to be 
purged out of doors. The CSB found that OSHA doesn't have specific 
rules for natural gas purging, nor are there voluntary codes.\3\ 
Because there is no OSHA regulation, there have been too many 
explosions of this nature in commercial and industrial facilities.
---------------------------------------------------------------------------
    \3\ U.S. Chemical Safety and Hazard Investigation Board. Urgent 
Recommendations on Gas Purging. August 2010.
---------------------------------------------------------------------------
    The lack of regulations not only killed 3 workers at the ConAgra 
plant, it also killed jobs. Before the disaster 700 people worked at 
the factory. Now the factory is closing. Rather than rebuild the 
damaged portion of the plant, the company is consolidating production 
elsewhere.\4\
---------------------------------------------------------------------------
    \4\ Nagem S, Wolf AM. Slim Jim plant's demise to put 450 out of 
work. NewsObserver.com. March 4, 2010.
---------------------------------------------------------------------------
    The T-2 gasoline additive factory near Jacksonville, Florida had a 
runaway reaction in December 2007 involving highly reactive sodium 
metal. The explosion killed 4 and injured 32, including 28 at 
surrounding businesses. Pieces of the building were found a mile away. 
An investigation by the CSB found that the reactions could have been 
prevented if OSHA's process safety management standard covered reactive 
hazards. Sadly, the owner of the T-2 factory was among those killed by 
the explosion. Three adjacent businesses had to relocate from the 
industrial area, and a fourth business--a trucking company--was put out 
of business due to the damage.
    There's no price tag that can be put on seeing your husband walk 
your daughter down her wedding aisle, or seeing your son graduate from 
college, or holding a grandchild. The economic disruption to a family 
who loses a breadwinner is never offset by workers' compensation 
benefits. Workplace safety regulations and even-handed enforcement help 
level the playing field for employers who do the right thing versus 
those who take the low road.
    A one-sided look at the costs of OSHA rules, but excluding the 
benefits, does a disservice to workers, responsible employers, families 
and communities.
                                 ______
                                 
    Chairman Walberg. Thank you, Ms. Miser. And thank you for 
your courage. And thank you for sharing this with us. I think 
it certainly punctuates the purpose of this subcommittee and 
the importance that we have as we carefully look at all the 
surrounding issues. Thank you.
    Ms. Holmes, thank you for being here.

STATEMENT OF JACQUELINE M. HOLMES, ESQ., OF COUNSEL, JONES DAY, 
      TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF COMMERCE

    Ms. Holmes. Thank you, Chairman Walberg, Ranking Member 
Woolsey, and members of the subcommittee. I appreciate you 
inviting me to testify today.
    Before I summarize my own testimony, I would like to say 
that I was very touched, as I am sure we all were, by Ms. 
Miser's statement. And I, too, appreciate her being here. It is 
always a tragedy when someone loses their life in the 
workplace.
    And I refer in my statement, as I believe you did, as well, 
Chairman Walberg, in your opening statement, to the shared goal 
of worker safety that is shared by businesses and workers, and 
it really is a shared goal. The question, really, that we want 
to look at is, what is the best way to achieve that goal in the 
most cost-effective way?
    By way of background, for purposes of my own testimony, I 
am an attorney with the Washington, D.C., office of Jones Day, 
where I have practiced in the OSHA area since 1994. I am 
pleased to be here today on behalf of the United States Chamber 
of Commerce, which represents the interests of over 3 million 
businesses of all sizes and in all sectors; 96 percent of the 
chamber's members are small businesses who employ 100 or fewer 
employees.
    It may seem surprising to some members of the subcommittee 
that we are here--that many of us are here testifying today 
about proposals that OSHA has withdrawn, such as, for example, 
the noise standard reinterpretation. But we believe it is 
important to do so, because these proposals reflect a troubling 
pattern of efforts by the agency to impose substantial burdens 
on American business without regard to the cost of those 
efforts or their efficacy in improving worker health and safety 
or, indeed, in the case of the noise standard, whether there is 
a problem that requires solving in the first place. This is 
contrary to OSHA's own interpretation of its statutory 
mandates.
    Understanding that OSHA regulations can be very costly, the 
courts and--itself impose very substantial burdens on OSHA when 
it chooses to regulate. OSHA must first identify a problem that 
creates a significant risk of harm in the workplace. It must, 
second, establish that its proposal will substantially reduce 
that risk. It must, third, show that its proposal is 
economically and technologically feasible. And it must, fourth, 
show that it selected the most cost-effective means of 
achieving the health and safety objective that the standard 
sets. The act, of course, does not require a formal cost-
benefit analysis, but that does not mean that costs can be 
ignored.
    I would like to focus briefly on the last requirement that 
I mentioned, which is the requirement of cost-effectiveness, in 
other words, that OSHA select the most cost-effective means to 
achieve its regulatory goals. This is echoed by President 
Obama's recent executive order, which suggests that agencies 
should use the least burdensome means to achieve its regulatory 
ends. Those two concepts are really quite similar.
    OSHA has embraced this interpretation of the act. It did so 
in the early 1990s to assure the federal courts that the OSH 
ACT did not represent an unconstitutional delegation of 
authority to the agency.
    But OSHA completely ignored this requirement for purposes 
of its reinterpretation of the noise standard. Instead, it 
charged ahead with its reinterpretation without any effort to 
consider whether what it was proposing was the most cost-
effective means of achieving its objectives. And given the 
information that Mr. Sessions has presented to the subcommittee 
a few moments ago, it seems quite clear that the methods that 
OSHA selected are not the most cost-effective.
    The problem with OSHA's reinterpretation of the noise 
standard, however, runs even deeper than its failure to select 
the most cost-effective alternative. Indeed, its failure to 
study the cost is only the beginning.
    In proposing its reinterpretation, OSHA also made no effort 
whatsoever even to identify that there was a problem that 
required solving. To be sure, it pointed to hearing loss 
generally as a workplace health and safety issue, which we 
would all agree that it is, but it failed to examine the scope 
of the problem or whether current efforts are reducing it. Had 
it done so, it would have seen occupational hearing loss cases 
have consistently declined since they have been separately 
reported on employer injury and on the logs.
    You can see on the charts that are up on the screen that we 
have a declining trend since 2003 when OSHA mandated that 
employers separately report these types of injuries and 
illnesses.
    These results suggest employers are doing quite well in 
reducing occupational exposure to noise. Noise, like some 
other--noise like other--some other exposures occurs both in 
the workplace and out of the workplace. And over the same 
period, noise exposures have--outside the workplace have 
exploded, the advent of iPods, Bluetooth headsets. People are 
constantly wired for sound. And the fact that we still are 
seeing a decrease in occupational exposure suggests that 
employers are doing a pretty good job.
    Thus, the data suggests employers are really working--and 
employer efforts are working to reduce hearing loss cases. ``If 
it ain't broke, don't fix it'' is not an enforceable maxim of 
administrative law, but it is not a bad place to start.
    So here we are. OSHA hasn't demonstrated any obvious 
problem that requires solving, gave no examination whatsoever 
to the costs of this proposal. On top of that, the agency made 
the proposal at a time of substantial unemployment.
    It is, in effect, telling American industry that it has to 
expend resources retrofitting its factories rather than hire 
new employees and increase production. And because OSHA didn't 
propose to change the exposure levels that are acceptable under 
the noise standard, but simply to require engineering controls 
rather than personal protective equipment in the first 
instance, it was doing so to achieve exactly the same noise 
exposure levels as are currently achieved through less 
expensive means.
    Even if OSHA came up with a legal basis to support its 
actions--and it hasn't done so yet--that doesn't mean it should 
take these actions now without any consideration for how it may 
impact the U.S. economy.
    While we appreciate that OSHA has withdrawn this proposal 
and committed to a number of steps, such as increased outreach, 
a lack of outreach was not the problem with the proposal. The 
problem is the lack of common sense and an overabundance of 
arrogance. There is no evidence that OSHA even believed it 
necessary to assess seriously whether there was a problem that 
required fixing, to study the cost, or to consult with the 
business community before making this change, and these 
failures led them to propose something that was bad policy, 
plain and simple.
    If the law allows OSHA to take such steps--and I am 
skeptical that it does--that law should be changed. And if this 
is how the agency intends to use the agency that it has, it 
should not be given any more.
    Thank you very much.
    [The statement of Ms. Holmes follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
                                ------                                

    Chairman Walberg. Thank you, Ms. Holmes. Appreciate the 
testimony of the witnesses and look forward to further 
statements and developing the concepts during the course of the 
questioning.
    And those questions will have 5-minute time span. And I 
will be much more attentive to that now, since we are starting 
fresh at this point, and so let me begin.
    Mr. Sullivan, in your testimony, you discussed OSHA's on-
site consultation program and the changes the agency proposed 
that could compromise this proactive safety program run by 
OSHA. Can you explain how the changes OSHA proposed would be 
detrimental to small businesses?
    Mr. Sullivan. Thank you, Mr. Chairman. I am happy to.
    It is actually very simple. And my impression of the 
changes is mostly gained from my work when I was at the 
National Federation of Independent Business. The success of 
OSHA's on-site consultation program largely is due to the 
understanding by the small-business community that violations 
and problems that are found will not be shared with the 
enforcement side of the shop, especially if those problems are 
solved.
    And, I mean, isn't that the reason that we are here and 
talking about this, is that we want solutions to these problems 
to fix the different problems? And that barrier between the on-
site consultation and enforcement encouraged small businesses 
to come in and say, ``You know, I am not sure if we have it 
quite right. Can you help me?''
    And the proposed changes break down that barrier between 
the on-site consultation program and the enforcement program. 
OSHA wants to share--now share information between those two 
programs. And in my experience working with small businesses, 
that will have an absolutely awful effect on the program, 
because small businesses will no longer want to participate in 
a program where they may be subject to enforcement without 
having the chance to fix the problem.
    Chairman Walberg. Thank you.
    Mr. Sessions, the noise proposal takes issue with the way 
economists undertake cost-benefit analysis. One of your 
conclusions suggests that, had this proposal gone forward, 
there would have been--and I quote--``relatively little 
benefit'' in terms of improved hearing protection for workers.
    Can you explain how you reached your cost-benefit analysis 
conclusion?
    Mr. Sessions. There are two halves to that conversation. 
The first half is essentially the point that Ms. Holmes was 
talking about, also, which is that the problem is--the problem 
of work-related hearing loss is relatively well managed and 
further declining. The rate of reported work-related hearing 
loss incidents is very low and declining.
    So the problem in the first place isn't all that large. The 
particular approach OSHA proposed for further reducing that low 
level of hearing loss will not significantly further reduce it. 
Under current policy, employers use hearing protection for a 
very large share of the hearing--personal hearing protection 
devices for a very large share of the protection that workers 
get. And under OSHA's proposal, the engineering controls that 
would be required would still not typically reduce noise levels 
sufficiently to eliminate the need for hearing protection.
    So currently, hearing protectors are a large share of the 
protection. And even after OSHA's proposal, they would continue 
to be a large share of the protection. So the problem isn't all 
that large in the first place. And the reduction that would be 
achieved by OSHA's proposal is not particularly substantial.
    Chairman Walberg. Okay. Going on from that, several of your 
answers, Mr. Sessions, you received in your survey of 
manufacturers would give anyone cause for concern. The idea 
that a proposal would cause manufacturers to shut down or move, 
work offshore as a result of the proposed reinterpretation 
would further exacerbate the problems in the economy.
    Are there other proposals that you can point to that would 
have a similar negative impact? And please be brief.
    Mr. Sessions. I think that the jury is out on that. OSHA 
has additional proposals in the works. One is certainly that I 
am following is the proposal to reduce the worker exposure 
level to crystalline silica. But we don't know what the 
specific reduced--tighter standard is that OSHA is going to 
propose.
    And particularly importantly for this and other standards 
that OSHA has in the works, assuming that OSHA is treating them 
as regulations, OSHA will accompany the proposed regulation 
with a full study of, how big is the problem in the first 
place? What are the costs? What are the benefits? And what are 
the economic impacts?
    And it is essentially those requirements for analysis, for 
transparency, for disclosure, for estimating the impacts on the 
economy that give the regulator community and the public the 
chance to make a reasoned decision on OSHA's regulation and----
    Chairman Walberg. Thank you, Mr. Sessions. I am going to 
have to break it there to hold myself to the 5-minute time 
limit.
    I will turn it to the ranking member, Ms. Woolsey?
    Ms. Woolsey. And, Mr. Chairman, I would like to step aside 
for the ranking member of the full committee.
    Oh, we thought you had to leave. Oh, well, thank you.
    Tammy, thank you for your testimony. It is nice to have you 
here again. You are a brave woman.
    I want everybody else to realize--that following three 
combustible dust accidents in 2003, which killed 14 workers--
one of them was Tammy's brother--the U.S. Chemical Safety Board 
investigated. They found that in the 25 years between 1980 and 
2005, there had been 281 combustible dust explosions and fires, 
resulting in 119 fatalities and 718 injuries.
    So in 2006, they urged OSHA to issue a comprehensive 
standard. Yet the recommendation gathered dust until the Obama 
Administration put it on their regulatory agenda in 2009.
    OSHA faces another 4 to 5 years of rulemaking before this 
can become a standard. At best, it will have a rule 13 years 
after Tammy's brother was killed. How is this system working 
for new worker protection rules? And how does it keep employees 
out of danger, large employers, small employers?
    See, as far as I am concerned, if you are an employee, you 
need to be kept safe. It doesn't matter if you work for a large 
or small--and, actually, large employers have fewer accidents 
than the small employers do.
    So, Tammy, do you want to respond to--do you have any 
idea--do any of you have any idea what should be done to speed 
the process along, other than not having a process?
    Ms. Miser. Well, as of right now, they do have--National 
Fire Protection Association has an actual standard. And that 
would actually cover a lot of the issues that they are having, 
because of right now, I mean, we know it is an issue.
    And some--I firmly believe that there are some issues that 
are more urgent, and this would be one of them. I mean, people 
are dying. There are explosions. People are losing their 
businesses. In the House, there is a bill for combustible dust. 
And if that was to be applied now, at least that would be taken 
care of. And that would be a start.
    Because I think a lot of it is, is there is just--there was 
just so must buzz and so much going on about what needed to be 
done and what couldn't be done. And you have seen where people 
have kind of dropped off, because at first I thought there was 
going to be a regulation. Well, now there is not.
    And I am not saying every company is that way. I had a 
small business. I had two small businesses. Some people really 
try, but there are other companies that try to cut corners, and 
this is one of them.
    Mr. Sullivan. Congresswoman, you had asked if any of us had 
suggestions on how to speed the process. I do. And it has to do 
with OSHA's recent MSD rulemaking.
    You know, it is great that OSHA decided to withdraw the 
rule and say, we would like to talk more with small businesses 
before we actually move forward. That is great. But 16 months 
ago, if they had done what the law requires, and that was to 
have a small-business panel made up of small businesses, then 
they would be much longer down the process.
    Ms. Woolsey. Mr. Sullivan, you have already told us that. I 
mean, let's go to something beyond what should have happened. 
What can happen, is what I want to know. What can be done now?
    Mr. Sullivan. OSHA can listen to small businesses at the 
front end of the process, not 16 months later when it says, 
okay, we will start over again. I think that that would speed 
the process, Congresswoman.
    Ms. Woolsey. Ms. Holmes, I appreciate that you acknowledge 
that these standards have been withdrawn, and we are sort of 
beating a dead horse here, the three of you talking about 
something that has already been stopped. I mean, we are not 
going to do it that way.
    A mistake? Possibly. But let's go forward. Where can we go 
forward? And what is our next best step so that everybody 
benefits?
    Ms. Holmes. Well, I think--first of all, I think that there 
is a reason we are talking about things that have been 
withdrawn, and that is because they reflect a fundamentally 
troubling allocation of resources. The notion that OSHA spent 
resources on the noise reinterpretation when there is--without 
even looking to see whether there was an issue----
    Ms. Woolsey. Well, then that was back then. Would you agree 
that employees of small businesses have the same right to a 
safe workplace as a large business?
    Ms. Holmes. I certainly agree that worker safety is 
something that should be of concern to all businesses----
    Ms. Woolsey. Thank you.
    Ms. Holmes [continuing]. Of all sizes. And I believe that 
it is of concern to all businesses of all sizes.
    Chairman Walberg. Thank you for your response. The time has 
expired.
    We will move on now to the gentlelady from South Dakota, 
Ms. Noem.
    Ms. Noem. Thank you, Mr. Chairman.
    Well, I would like to follow up on that discussion with Mr. 
Sullivan in a little bit more of a proactive approach then, 
since that is where the discussion is going. So does the Small 
Business Administration ever partner with other agencies, such 
as OSHA, on regulations in order to better understand the 
implications or impact of regulations or proposals before they 
are issued?
    Mr. Sullivan. Yes. Congresswoman, SBA's Office of Advocacy 
does just that. A pre-proposal in a dialogue between agencies 
that is not a public dialogue--it is a helpful, constructive 
dialogue--the SBA's Office of Advocacy works with agencies, 
EPA, OSHA, the new Consumer Financial Protection Bureau, in 
fact, all agencies, to try to make sure that what an agency's 
going forward with actually makes sense when it comes to a Main 
Street small business.
    When an agency actually takes the advice of SBA's Office of 
Advocacy, it is a much smoother process. And I think that 
Congresswoman Woolsey is right. Looking forward, about how you 
get the process down is where we should be devoting our 
attention. And if these agencies actually do listen to SBA's 
Office of Advocacy, it would be a much smoother regulatory 
process.
    Ms. Noem. So in your opinion, do you feel that these 
agencies look favorably about that process and they are willing 
to cooperate as it goes forward?
    Mr. Sullivan. No, I don't view agencies looking at the 
process as a constructive dialogue, although there is some 
hope. Professor Elizabeth Warren, who is in charge of staffing 
up this new Consumer Financial Protection Bureau, actually has 
traveled with Senator Snowe up to Maine and said, you know, 
Senator, even if I wasn't required to consult with small 
businesses, I would do it, because it makes sense, the type of 
analysis that should be public makes sense, and she is 
committed to doing that moving forward with an entirely new 
regulatory agency.
    So if other agencies adopted that approach, I think we 
would have a much smoother process.
    Ms. Noem. Okay. I have one more follow-up question for Ms. 
Holmes, if that is possible, real quick. OSHA has several 
proposals pending that the agency suggested would not be 
significant regulations and the fact these proposals should 
have been certified as significant.
    So what do you believe would be the outcome, will be on 
your clients and on their businesses?
    Ms. Holmes. You know, I think that OSHA does, as you 
suggested, create a number of proposals that they prefer to 
characterize as insignificant, because that allows them to--
they believe, I think--short-cut a lot of the processes. But as 
Mr. Sullivan has pointed out, that really creates a great deal 
of trouble at the back side.
    If we could have, you know, an honest assessment of what a 
regulation purports to do, what it is going to require, and how 
much it is going to cost at the front end, that would, I think, 
reduce challenges at the back end and would allow those 
regulations to be put in place, you know, more quickly and more 
effectively, and that they would be more effective for 
everyone.
    Businesses certainly have a lot to say about what works and 
what doesn't and what is cost-effective and what isn't, in 
terms of regulation, and I think that is an area that OSHA 
would do well to consult about at the front end.
    Ms. Noem. Okay. Thank you.
    Thank you, Mr. Chairman.
    Chairman Walberg. Thank you. We will move on to the 
gentleman from New Jersey, Mr. Payne?
    Mr. Payne. Thank you very much.
    Let me--Mr. Sullivan, Ms. Holmes, there has been a--you 
know, the dead horse has been beaten. But isn't it sort of the 
American way to try to use technology, try to use our advance 
that we have over other nations, by and large, at least in the 
past, to try to deal with the problem? I mean, it seems like 
you are saying it is so absurd that there might be some notion 
on a part of OSHA to use some technological way to try to 
improve the problem.
    I can't understand--and maybe it was--the cost was 
prohibitive and they decided to withdraw it. But what is so 
wrong about trying to use technology? That is what we are all 
about, isn't it?
    Mr. Sullivan. Congressman, there is nothing wrong with 
using technology. What I have been trying to impress upon the 
committee is the need to force a dialogue between the small-
business community who may be using that technology and OSHA, 
in order to come up with a solution.
    I will give as an example the SBREFA panel that was 
convened for the hexavalent chrome rule. And at one point, OSHA 
was thinking of requiring a venting operation over the chrome 
plating operation. So, basically, you would have chrome plating 
and a flow of air directly above the plating to prevent the 
fumes from reaching the workers.
    Well, because of this small-business panel process, a small 
manufacturer who met with OSHA explained, if you require that, 
then you put me out of compliance with Environmental Protection 
Agency rules. And because of that dialogue, they actually 
worked towards a successful solution.
    So it is bringing in the realities of the workplace, 
sometimes, many times involving advanced technologies that 
helps OSHA come up with a better rulemaking.
    Mr. Payne. Okay, let me ask. There has been an affirmative, 
I think, Ms. Holmes and you, too, Mr. Sullivan, that there has 
been a reduction in the complaints about hearing. You know, 
that doesn't necessarily mean that the problem isn't as bad as 
it was.
    I think when you find employees and when you find an 
unemployment rate of 10 percent, many times employees will 
forego their own safety, as for reporting noise violations, in 
order to keep a job. I mean, in other words, what I am saying 
is that because you say statistically you have empirical data 
that says that there is less of a problem today does not 
necessarily mean that the problem isn't as great.
    And I will tell you, I worked in a place where there was--I 
was personnel director where there was noise. It is very 
difficult to keep compliance. Hard hats will wear hard hats, 
because they are out in the public and people can see them, if 
the hat is on or not. However, in a place where you have over 
85 decibels is where you need to have ear protection.
    It is very difficult to keep those earplugs on, because, 
one, they are uncomfortable; two, they are hot when it is in 
the summertime. Workers really don't like to use them. So you 
have to really stay on top of them. So I am just simply saying 
that, because they are less reported numbers don't necessarily 
mean that the problem isn't as great as it was.
    Let me just ask you, Ms. Miser, there has been a request in 
the new C.R. that the Republicans put forth to cut 15 percent 
from the OSHA in one area and another really slashes. What do 
you think this is going to do, the impact on occupational 
safety, when you don't have inspectors, et cetera?
    Ms. Miser. Well, of course, I am not an expert. But it does 
concern me, because as of right now, it is going to take 100 
years to--if they were to inspect every single employer. And 
the fellow over here was saying, you know, there can't be any 
communication there. If they do want to get the information, 
they won't even be able to get it because of that.
    And then on top of that, my real concern is the fact that 
this may affect the state plans. I mean, I don't know. I don't 
know what the budget is. Kentucky does a pretty good job. They 
really do. And if their budget is cut, they aren't going to be 
able to do that. And they are the only plans that cover 
government employees, these state plans.
    And if--I mean, it is a shame. I think every government 
employee should be--everybody should have the same rights to 
health and safety in the workplace. But they don't. And I am 
just really afraid that it is going to cut that back and harm 
the state plans, who are really doing a good job out there.
    Mr. Payne. Thank you very much.
    Chairman Walberg. The time has ended. We will move on to 
the gentleman from Florida, Mr. Ross?
    Mr. Ross. Thank you, Mr. Chairman.
    I want to take a little different tact here. I know we are 
talking about the regulatory impact of OSHA, but I have a 
concern--and I want to talk about specifically--and to you, Mr. 
Sullivan, with regard to the muscular skeletal disorders. And 
the reason I want to do that is because it appears to me that 
trying to define repetitive trauma and putting the burden on 
the employer would result in the creation of new causes of 
action for which an employer could be sued.
    For example, ADA. Now that they are made aware of a 
particular incident or condition that the employee may have, 
does reasonable accommodation now have to be made? Is there an 
onus on the employer now to investigate that? Is there an onus 
on the employer now to investigate a causal relationship?
    For example, just because a repetitive trauma condition may 
occur either as a result of a bad knee or carpal tunnel or 
something, would that then require the employer to invest in a 
medical diagnosis of his condition and take a patient history 
to determine whether such a condition could be causally related 
to the job requirements or to something else, just maybe even 
degenerative changes?
    And also, when you look at retaliatory terminations, causes 
of actions for retaliatory terminations--in other words, as an 
employee, I have been let go for cause, but I don't believe so. 
I believe it is because I have put on my Log 300 now that I 
have, you know, a constant pain in my back and, therefore, they 
are letting me go because they don't want to have to invest 
further.
    So I would appreciate your opinion with regard to the MSDs 
and the likelihood of a new cause of action may ensue.
    Mr. Sullivan. Well, Congressman, the thought process you 
just went through is similar to the thought process a small-
business owner would go through when they are looking at 
whether or not to put an injury or illness onto a log. And to 
say that that calculation in your mind, even without any type 
of diagnostics, would take under 5 minutes really gets at a 
disagreement between small businesses and OSHA over their 
proposal.
    I would actually elevate your concerns even higher, because 
when you talk about the diagnosis of an injury, you are 
actually putting the employer potentially in the place of a 
doctor to make a diagnosis. And so they have to really go 
through two things. One is to determine whether or not it is an 
MSD, which sometimes requires a doctor, and it wouldn't be fair 
to be put that----
    Mr. Ross. It would require a doctor. I mean----
    Mr. Sullivan [continuing]. Onus on an employer. The other 
is whether or not it is work-related. And you get into some 
really sticky situations not only to see if it was part of a 
weekend touch football game, but, really, whether or not that 
is any of the employer's business. And so navigating all those 
sensitivities under the cloud of potential legal liability is a 
very real concern to small businesses on this proposal.
    Mr. Ross. And, for example, if they left employment and 
later filed suit for a work-related accident under the workers' 
compensation rules for carpal tunnel, but they fail to disclose 
it on their Log 30, then couldn't the employer not be availed 
to an affirmative defense of a misrepresentation of a physical 
condition?
    Mr. Sullivan. All very good concerns that are echoed by the 
small-business community.
    Mr. Ross. Mr. Sessions, you commented about the noise 
protection ruling. And more importantly, you indicated that it 
was done by way of an administrative interpretation, rather 
than by regulation. Is that something that is normally 
delivered or promulgated by OSHA, with disregard to the 
regulatory process?
    Mr. Sessions. It has been a grey area, both for OSHA and 
other regulatory agencies, sort of, what is done by regulation 
and what is done by administrative interpretation, by guidance 
documents, or by other means that aren't subjected to----
    Mr. Ross. Or by regulatory fiat, as I would say.
    Mr. Sessions. You know, there are procedural safeguards if 
an agency is going to do something by formal regulation. SBREFA 
applies, the executive order for analysis applies, but they 
don't apply if the agency somehow takes the action under a 
different guise. And that has been a very difficult issue for a 
number of years across all regulatory agencies.
    Mr. Ross. Thank you.
    Ms. Holmes, just real quickly, because I am running out of 
time here, I think the greatest balance that we could afford is 
to make sure that the regulatory environment is as stringent 
and necessary as possible to maintain a good business 
environment and also to protect against the incidents which 
occurred that cost Ms. Miser her brother.
    But I--my concern at this point--and I address this to you 
for your members and dealing with the chamber--have not we lost 
sight in this regulatory process of the foundation upon which 
we rely, and that is logic and reason?
    Ms. Holmes. You know, I think we have in many respects, 
Congressman, because we have, you know, an agency that, again, 
I said and I meant, what we--what OSHA did in connection with 
the noise standard is really unbridled arrogance. They did not 
feel the need to look to see whether there was a problem, 
whether what they were proposing would fix the problem, or how 
much it would cost.
    We simply can't have that. And they did, in fact, by 
regulatory fiat, as you suggested, rather than going through a 
rulemaking process where there would have been----
    Mr. Ross. Thank you. I believe my time is up. Thank you.
    Ms. Holmes. And now I will be quiet.
    Chairman Walberg. Thank you.
    We will move on to the gentleman from Indiana, Mr. Bucshon?
    Mr. Bucshon. Thank you, Mr. Chairman. And thanks to the 
panel.
    Just to give you a little background on me, I am a 
physician, cardiovascular surgeon. I see a lot of patients with 
their lung problems that have a history of workplace exposure, 
so I understand that concept. And also, my father was a United 
Mine Worker and a coalminer underground for many years, so I 
have also seen that--it from that side.
    And my question is from a budgetary standpoint. And would--
and anyone on the panel can address this. I mean, in 2008, 
would anyone say that OSHA was having difficulty with what they 
were trying to do based on their budget in 2008?
    Ms. Holmes?
    Ms. Holmes. From my perspective, Congressman, I don't think 
they were. I think it is a matter of setting regulatory 
priorities, as well as, to the extent possible, deferring 
resources to compliance. The vast, vast, vast majority of 
employers want very much to do the right thing by their 
employees. It does not serve any business to lose employees or 
have employees become injured on the job. It is--in addition to 
the human factor, which is very important, it is 
extraordinarily costly. Workers compensation costs are very 
high. It is good business to work safely.
    And in businesses of--the vast, vast majority--and 
certainly everyone I have had the privilege to represent in my 
16 years--has taken that tack, that they want to do the right 
thing. And I think OSHA has the resources to--I think it is a 
matter of smart use of resources, candidly.
    Mr. Bucshon. Okay. Thank you.
    I yield back.
    Chairman Walberg. He will be right here. I am looking 
forward to calling on the gentleman who was my chairman the 
last time I served here before coming back this term, and now 
the ranking member of the full committee, Mr. Miller?
    Mr. Miller. Thank you very much, Mr. Chairman. My 
apologies. I am unfortunately having to duck in and out.
    Let me just, if I might, see if I can get some 
clarification. Mr. Sullivan, in your testimony, you are not 
arguing that the Regulatory Flexibility Act at OSHA is not 
working? You don't like the way it is being handled in this 
particular case?
    Mr. Sullivan. I believe that the attitude of trying to 
avoid SBREFA instead of embracing it is cause for concern.
    Mr. Miller. See, that--you are talking about--but it has 
been in one iteration since the 1980s. You are not arguing that 
the underlying law is somehow not working? I mean----
    Mr. Sullivan. I believe that there is an attitudinal 
problem----
    Mr. Miller. I understand that. I understand that.
    Mr. Sullivan. There is----
    Mr. Miller. I am asking about the generic law. Apparently 
you were happy with it 2 years ago.
    Mr. Sullivan. Actually, I testified last week on measures 
that should be adopted to----
    Mr. Miller. That is different. I understand that.
    Mr. Sullivan [continuing]. Improve the law, so----
    Mr. Miller. So what is your testimony?
    Mr. Sullivan. My testimony is before the committee----
    Mr. Miller. You don't like the way this Administration of 
OSHA is administering the law?
    Mr. Sullivan. I have been critical of OSHA's implementation 
of the Regulatory Flexibility Act past this Administration, 
when I was working----
    Mr. Miller. Okay, that is--I am trying to figure this out.
    Mr. Sullivan. Okay. Well, I believe that OSHA has been able 
to do a better job and continues to be able to do a better job 
in complying with the Regulatory Flexibility Act.
    Mr. Miller. Mr. Sullivan, in this discussion of the cost of 
regulation--now, you have obviously chosen to and it is right 
in your testimony, just to talk about the cost. Are you 
suggesting there are no benefits of OSHA regulations? There 
have been no benefits throughout the various administrations of 
OSHA here?
    Mr. Sullivan. I am not suggesting that there are no 
benefits. The reason I focused on cost is because, in that way, 
it is very clear that small businesses are disproportionately 
impacted by costs. And the Regulatory Flexibility Act----
    Mr. Miller. Small businesses----
    Mr. Sullivan [continuing]. Tries to--tries----
    Mr. Miller. Don't small businesses also generate a somewhat 
higher percentage of the accidents, given--to the small-
business employee population?
    Mr. Sullivan. Congressman, I don't know what the comparison 
of small-business accidents are compared to large-business. I 
do know that there is a disproportionate cost on small business 
when it comes to regulation, and the idea of the--Congressman, 
could I actually just finish my answer?
    Mr. Miller. I am running out of time. As you know, the 
chair is being----
    Mr. Sullivan. I would like to just answer your question, 
Congressman.
    Mr. Miller. I would like to ask you another question.
    Mr. Sullivan. Thank you.
    Mr. Miller. Because it goes to the point you are about to 
make. If they generate 45 percent of the fatalities with 14 
percent of the workforce, you might want to check in with them 
to see what is going on.
    Mr. Sullivan. I think OSHA wants to issue rules that work 
on Main Street small business. And in order for it to work, 
they have to consider the impact and the constructive impact by 
small business before moving forward with rules.
    Mr. Miller. I would make the point that when you decide you 
are only going to talk about cost, one, the question is whether 
or not small business is a generator of fatalities that 
justifies their consideration by OSHA for rules and, two, that 
when you talk only about the cost of regulation, somewhere in 
the testimony there has to be some understanding of what the 
benefits are, of whether we can arrive at that mutually or not.
    There has to be some understanding of that, because you get 
studies all the time from various insurance companies and 
others who cover various sectors of our economy about the cost 
of fatalities, about the cost of the injuries, of the 
retraining, of the rehabilitation that go on with this.
    And so I think--I don't get the----
    Mr. Sullivan. I think we actually both want the same end 
point, and that is a smarter regulation at the end of the 
process. And how they get there----
    Mr. Miller [continuing]. If I only talk about the benefits 
of the regulation and suggest we start from that basis and you 
only talk about the costs and suggest that we start from that 
basis.
    Mr. Sullivan. Well, actually, I think we get to the same 
place when OSHA not only asks small business how a rule can be 
written better to reduce costs, but also to ask----
    Mr. Miller. I understand that.
    Mr. Sullivan [continuing]. Ask the small employer, hey, 
this is what we are looking at. Do you think it increases 
benefits more from a small-business perspective----
    Mr. Miller. So you do give some recognition to the fact 
that there are benefits to many of these regulations and have 
been, in terms of saving lives or reducing injuries or cost of 
businesses?
    Mr. Sullivan. Of course I do.
    Mr. Miller. Okay.
    Mr. Sullivan. And I also recognize that the small 
businesses, in engaging in that dialogue with OSHA, would like 
to come up with those solutions.
    Mr. Miller. I understand. Okay. Thank you.
    Chairman Walberg. Thank you.
    Mr. Miller. I yield back my time, Mr. Chairman.
    Chairman Walberg. Appreciate that. We have the Chairman of 
the full committee here, the gentleman from Minnesota, Mr. 
Kline.
    Mr. Kline. Thank you, Mr. Chairman. I apologize for coming 
in late. You have probably noticed that--how this place works. 
It is a bit confusing, as Members are moving back and forth 
between competing hearings and competing commitments.
    I do want to thank all of you for being here today and for 
your testimony. And I want to give Mr. Sullivan the opportunity 
to pick up--he was trying to complete an answer to Mr. Miller's 
question having to do with cost-benefit analysis and assessing 
the costs of regulations, which fall disproportionately on 
small businesses.
    And I know you were starting to finish that thought, and I 
would like to give you the opportunity to do that.
    Mr. Sullivan. Well, thank you, Congressman. There has been 
a great deal of attention to figures that have to do with the 
cost of regulation on small firms. And from my opinion, that 
actually is a separate conversation than what I tried to bring 
across in my testimony, which is that small businesses are 
disproportionately impacted.
    And that really gets at that federal rules just aren't--
they should not be encouraged to be one-size-fits-all. And if 
OSHA sits down with small business and says, ``We would like to 
solve a problem. How do you, small business, propose that we 
try to solve this problem?''
    Forcing that dialogue is what makes for a better final 
regulation. And in my opinion, OSHA is not doing a good enough 
job in having that dialogue.
    Mr. Kline. Thank you. I yield back, Mr. Chairman.
    Chairman Walberg. Thank you, Mr. Kline.
    Now we moved to the gentleman from Ohio, Mr. Kucinich.
    Mr. Kucinich. Thank you, Mr. Chairman.
    To Ms. Miser--and welcome to you and to all the witnesses--
Ms. Miser, your testimony talked about the OSHA crane standard, 
which will provide a net benefit of $55 million a year, based 
on lives saves and injuries avoided, yet the Mercatus 
Institute, a think-tank funded by corporate interests, gives 
this rule a low score on its regulatory report card.
    Now, given the deaths from crane accidents, should OSHA 
have simply ignored this problem? And isn't it the case that 
industry also wanted the standard updated?
    Ms. Miser. Well, in that particular case, all they would 
have needed is a spotter, and he would be here today. So, I 
mean, absolutely not, I don't think that they should. It is a 
simple solution, and it should have, you know, been done way 
before that.
    And I guess, to me, what you need to do is look at 
standards that work, standards that are working now. For 
instance, the grain standard. We know for a fact that it saves 
lives. You know, it saves--I have the figures here. It says 
that--and this was by the National Grain and Feed Association. 
They say that explosions declined 71 percent, injuries by 90 
percent, and fatalities by 95 percent.
    So, no, I don't. I think that there are times when you have 
to--standards, and I think that they are very important. And I 
don't think that they should be given up. I think we should 
keep pushing until we get it done. And if it takes a little 
work, if it takes a little talk, that is fine, but let's get to 
it and let's get it done.
    Mr. Kucinich. Mr. Sullivan, let's discuss fatality rates in 
small business. The Kauffman-RAND Institute Center for the 
Study of Small Business and Regulation found that firms with 1 
to 19 employees had the highest fatality rate in all sectors, 
except wholesale trade. They found that firms with more than 
1,000 employees had the lowest fatality rates in all 
industries.
    The Census of Fatal Occupational Injuries, which is 
published by the Bureau of Labor Statistics, reports that 45 
percent of all workplace fatalities occur at small businesses 
which employ between 1 and 9 employees, even though these 
establishments only employ 14 percent of the workforce.
    So, Mr. Sullivan, do you agree that that small-business 
establishments have on average higher fatality rates than 
larger establishments? And if not, is the Labor Department data 
in error?
    Mr. Sullivan. Congressman Kucinich, I don't disagree with 
the data. I would be interested in having a subsequent 
conversation and drilling into that data. I remember when I was 
working at the Small Business Administration and hearing those 
statistics and asking, why are they so high? And I believe that 
the answer uniformly was because of traffic fatalities, which, 
you know, ironically are outside of the scope of OSHA.
    But I think a very serious set of statistics that point out 
a problem--and I will go back to kind of my--the whole purpose 
of my testimony, which is to encourage OSHA to sit down with 
small employers to hammer out rules that work. And when you 
look at those types of fatality rates, I think it only elevates 
that type of approach, because they do want to finalize rules 
that work on Main Street and not have to redo these regulations 
when fatalities go up.
    Chairman Walberg. Time is expired. I will say thank you to 
each of the witnesses for taking the time to be here today to 
share your expertise, your experience, your data, and your 
heart, as well, on this issue.
    And there will be other opportunities that we will 
aggressively continue to look. And I agree with my ranking 
member that we want to have an aggressive hearing schedule, as 
well, to plum the depths of what is involved here. And even the 
fact with the grain standard, took 7 years to develop that, and 
we want to encourage more rapid, but we certainly want to 
encourage vital and useful standards, as well.
    Having said that, I would like to recognize Ms. Woolsey, 
the ranking member, gentlelady from California, to close with 
her comments.
    Ms. Woolsey. Thank you, Mr. Chairman.
    And it is obvious we have--both sides of this debate are 
interested and active in participating today. I give you a lot 
of credit for that. And my subcommittee has been really active 
for the last 4 years. They want to keep on going.
    I really believe that, unless the goal is to underfund and 
undermine in the long run OSHA, we really can work together, 
because we have to bring OSHA into the 21st century, period, 
because all of our workers are depending on us. So thank you 
very much.
    Chairman Walberg. Thank you, Ms. Woolsey.
    Again, thank you to the witnesses for sharing with us 
today. We will approach these issues differently, I am certain, 
as we work on this subcommittee. And all of the issues 
pertinent to that mix, that creative tension of having jobs, 
which people need, and an expanded economy, which that can 
produce, the prosperity, the lifestyle, the happiness, and the 
safety in carrying out all of these functions in a society that 
works well together.
    But that is a creative tension. And at each time in our 
history, there are approaches that must be flexible in how we 
approach it in order to keep the movement forward, as opposed 
to stopping, which, as we all know, once you stop, you move 
backwards.
    So thank you again for participating. I thank the 
subcommittee for your involvement, as well. We will have 
opportunities to continue to explore. I look forward to doing 
that. We will certainly have OSHA and its representatives in 
front of us. We look forward to hearing the Secretary tomorrow 
in hearing, in the full committee, and then moving from that 
with further testimony from business and industry, from 
workers, and from the regulators themselves.
    So there being no further business, the subcommittee stands 
adjourned.
    [The statement of Ms. Hirono follows:]

    Prepared Statement of Hon. Mazie K. Hirono, a Representative in
                   Congress From the State of Hawaii

    Today Republicans have called a hearing to argue that the 
Occupational Safety and Health Agency (OSHA) costs too much and burdens 
businesses with too much regulation.
    The workers in my district and I know better!
    I have heard from workers in Hawaii about how OSHA regulations and 
enforcement reduce injuries and save lives.
    One worker at an electric utility company told me of the hazardous 
conditions she and her team are exposed to every day: electricity, 
chemicals, high pressure steam and water lines, and high temperature 
fuel. OSHA's rules and guidelines require regular safety trainings and 
updates, and ensure that workers wear safety glasses, steel-toed shoes, 
flame-retardant clothing, chemical hoods, and safety gloves. The goal 
is NO injuries.
    Despite these precautions and wearing the proper equipment, she was 
burned by sulfuric acid in an accident 15 years ago. When reviewing the 
work area she was in when the burn occurred, the company's safety 
department--following OSHA guidelines--determined that additional 
engineering measures were necessary to prevent future injuries. 
Fortunately, no future injuries have occurred at this workplace.
    Safety guidelines and regulations can help save lives, and so can 
enforcement.
    In another story in Hawaii, lack of sufficient enforcement led to 
tragic results. In May 2009, an 800-foot tower collapsed at the 
Hawaiian Cement facility, killing worker Juan Navarro. Subcontractor AG 
Transport did not have a license, engineering survey, or evacuation 
plan for the demolition project. The company was fined a paltry $750. 
This accident could have been prevented, but Hawaii only had 11 state 
OSHA staffers to inspect and enforce worker safety on construction 
projects across all 7 of our inhabited islands.
    In September of 2010, the U.S. Department of Labor (DOL) found that 
under former Governor Linda Lingle, Hawaii had under-funded and 
systematically neglected its state Occupational Safety and Health Act 
plan (OSHA state plan). As a result, Hawaii did not have enough 
workplace inspections or on-site consultations to keep workers safe. 
Hawaii was the only state in the nation found breaking its state plan 
obligations.
    Unfortunately, for Hawaii and the 27 states/territories with 
approved state plans, DOL is extremely limited in its authority to help 
state plans improve. DOL's only option under current law is to 
completely end the state plan's local control and step in with federal 
control.
    My Ensuring Worker Safety Act (H.R. 571) would allow federal OSHA 
more flexibility to collaborate with states and improve underperforming 
state plans, such as Hawaii's. I urge my colleagues to support it.
    On the U.S. House floor today, the Republican job-slashing 
resolution would decimate federal OSHA's budget by $99 billion this 
year, requiring 3-month furloughs of OSHA employees, then layoffs next 
year. This is not the way to ensure worker safety.
    In reviewing today's witness testimony, I note that those who 
question OSHA's programs focus on OSHA's costs without discussing the 
benefits. I would point out the following:
     According to the latest ``Death on the Job'' report, OSHA 
regulations and enforcement have saved an estimated 410,000 lives in 
the 40 years since the Act was passed in 1970.
     Liberty Mutual insurance estimated that the annual direct 
cost to businesses of work-related injuries and illnesses were $53.4 
billion per year, more than $1 billion per week!
     Since 2000, OSHA has reviewed the costs and benefits of 
its rules 8 times, finding its regulations to reduce accidents and 
injuries. For example, the review found that OSHA's grain handling 
standards reduced explosions by 42% and reduced deaths by 70%; sharps 
injuries were reduced by 88%; and excavation fatalities were reduced by 
40%.
    Beyond these measurable economic and safety benefits, what value do 
we place on reducing worker injury, illness, and death? OSHA 
protections must be upheld and enforced properly to keep our workers 
safe.
                                 ______
                                 
    [The statement of Mr. Kucinich follows:]

            Prepared Statement of Hon. Dennis J. Kucinich, a
           Representative in Congress From the State of Ohio

    Today's hearing is presented as an examination of the impact of the 
actions of the Occupational Safety and Health Administration (OSHA) and 
the alleged negative effect on job creation. Despite having issued only 
2 new health and safety standards in the past ten years, OSHA is being 
cast as a villain that has our economy in its clutches. OSHA is being 
asked to be more responsive to the needs of small business, while 
facing $99 million in cuts in the continuing resolution (CR) we are 
expected to vote on this week.
    The unemployment rate is still at record levels. The labor force 
participation rate is nearly at its lowest level in a generation. There 
are nearly 5 unemployed workers for every job opening in this country. 
Millions of Americans are under water on their homes, and so they 
cannot sell them and they cannot move to pursue better economic 
opportunities in other parts of this country. Meanwhile, American 
corporations are sitting on $2 trillion in cash. Much of that $2 
trillion it appears is being spent on high-priced industry lobbyists, 
instead of workers. And we know that worker productivity--the output 
per worker per hour--has steadily increased over the years, especially 
in manufacturing and service industries, but the average worker's 
income has not kept pace. This tells us that employers have the upper 
hand right now. So this Subcommittee should be focused on the matters 
under its jurisdiction: are the regulations designed to protect 
American workers being followed? Can they be improved?
    Instead, we have heard examples of the supposed heavy financial and 
paperwork burden that OSHA regulations impose on small businesses. It 
is true that American businesses large and small deserve clear 
workplace safety regulations from their government. But the evidence 
cannot be ignored that such regulations are absolutely vital to the 
safety of the American worker. Every year in this country, hundreds of 
workplace accidents continue to occur, some of which are playing out 
before our eyes in gruesome detail. But as the fires are put out or the 
toxic spill cleaned or the toll in human lives is counted, the 
opponents of workplace safety laws once again take up their call of 
``overly burdensome regulations.''
    No price tag can be put on the life of a healthy, living American. 
We cannot credibly demand that OSHA should rededicate itself to more 
quickly and efficiently serving American businesses while at the same 
time, extolling the virtues of the complex and time-consuming process 
OSHA undertakes before any new workplace safety and health standard can 
be established.
    Last year, the Office of Management and Budget performed a cost-
benefit analysis of Federal regulations which showed that the benefits 
of regulations far outweigh their costs. Between 1999 and 2009, the 
estimated costs of regulations were between $43 billion and $55 
billion, while the estimated economic benefits were between $128 
billion and $616 billion. That means, during that ten year period, the 
cost-to-benefit ratio of regulations was one-to-two based on OMB's 
lowest estimations, and one-to-fourteen based on OMB's highest 
estimations.
    The data from the Bureau of Labor Statistics shows that in 2008, 
5,214 workers were killed on the job in this country--an average of 14 
workers per day. If the CR passes with the proposed cuts to OSHA, , it 
will have to furlough all employees for the last three months of the 
fiscal year, and then lay off 415 of its 2335 employees. It will cut 
OSHA's funding so drastically that it will cripple its ability to 
function. I intend to do all I can to prevent this from happening.
                                 ______
                                 
    [Additional submissions of Mr. Walberg follow:]

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    [Additional submission of Ms. Woolsey follows:]

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    [Whereupon, at 11:25 a.m., the subcommittee was adjourned.]

                                 
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