[Senate Hearing 112-725]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-725
 
                 TIME TAKES ITS TOLL: DELAYS IN OSHA'S

                    STANDARD-SETTING PROCESS AND THE

                        IMPACT ON WORKER SAFETY

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


                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,

                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                                   ON

 EXAMINING DELAYS IN OSHA'S STANDARD-SETTING PROCESS AND THE IMPACT ON 
                             WORKER SAFETY

                               __________

                             APRIL 19, 2012

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


      Available via the World Wide Web: http://www.gpo.gov/fdsys/
?

          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland
JEFF BINGAMAN, New Mexico
PATTY MURRAY, Washington
BERNARD SANDERS (I), Vermont
ROBERT P. CASEY, JR., Pennsylvania
KAY R. HAGAN, North Carolina
JEFF MERKLEY, Oregon
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
SHELDON WHITEHOUSE, Rhode Island
RICHARD BLUMENTHAL, Connecticut

                                     MICHAEL B. ENZI, Wyoming
                                     LAMAR ALEXANDER, Tennessee
                                     RICHARD BURR, North Carolina
                                     JOHNNY ISAKSON, Georgia
                                     RAND PAUL, Kentucky
                                     ORRIN G. HATCH, Utah
                                     JOHN McCAIN, Arizona
                                     PAT ROBERTS, Kansas
                                     LISA MURKOWSKI, Alaska
                                     MARK KIRK, IIllinois
                                       

           Pamela J. Smith, Staff Director and Chief Counsel

                 Lauren McFerran, Deputy Staff Director

              Frank Macchiarola, Republican Staff Director

                                  (ii)


                            C O N T E N T S

                               __________

                               STATEMENTS

                        THURSDAY, APRIL 19, 2012

                                                                   Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................     3
Moran, Revae, Director, U.S. Government Accountability Office, 
  Washington, DC.................................................     6
    Prepared statement...........................................     8
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    20
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    22
Ward, Tommy C., Jr., Member, Local 1 Michigan, International 
  Union of Bricklayers and Allied Craftworkers, Woodhaven, MI....    25
    Prepared statement...........................................    26
Silverstein, Michael, M.D., MPH, Clinical Professor of 
  Environmental and Occupational Health, University of Washington 
  School of Public Health and Community Medicine; Retired 
  Director of State OSHA Program at Washington State Department 
  of Labor and Industries, Seattle, WA...........................    29
    Prepared statement...........................................    31
Rabinowitz, Randy, Director, Regulatory Policy, OMB Watch, 
  Washington, DC.................................................    37
    Prepared statement...........................................    39
Sarvadi, David G., Partner, Keller and Heckman LLP, Washington, 
  DC.............................................................    47
    Prepared statement...........................................    49
Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................    63

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    American Composite Manufacturers Association.................    72
    Response to questions of Senators Harkin and Enzi by:
        Michael Silverstein, M.D., MPH...........................    77
        Randy Rabinowitz.........................................    79
    Response to questions of Senator Enzi by David Sarvadi.......    83
    Letters:
        Coalition for Workplace Safety (CWS).....................    84
        RAND Corporation.........................................    85
        Keller and Heckman LLP...................................    86

                                 (iii)

TIME TAKES ITS TOLL: DELAYS IN OSHA'S STANDARD-SETTING PROCESS AND THE 
                        IMPACT ON WORKER SAFETY

                              ----------                              


                        THURSDAY, APRIL 19, 2012

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:05 a.m., in 
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
chairman of the committee, presiding.
    Present: Senators Harkin, Enzi, Murray, Isakson, 
Whitehouse, Franken, and Blumenthal.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    We're here today to discuss the important issue of 
workplace safety and, specifically, why it takes so long for 
OSHA to issue a new safety standard. We are going to hear from 
GAO about a new study finding that there are alarming delays in 
this process. But before I get into what the report says, I 
first want to talk about why delays at OSHA matter.
    Statistics tell us that 12 American workers are likely to 
die today from a workplace injury. Countless more will be 
seriously hurt or contract a fatal illness or disease in their 
workplace. These injuries take a massive toll on our economy 
and society, dramatically increasing the costs of medical care 
and decreasing productivity in workplaces across the country.
    But these economic costs don't begin to reflect the grief 
that families feel when their lives are torn apart by a tragedy 
on a job. No dollar figure can capture what a family must 
endure when a loved one goes to work in the morning and never 
comes home again.
    In honor of Workers' Memorial Day, which is later this 
month, I'd like to now take a moment to acknowledge some people 
that are in attendance here today. These are the family members 
of victims of workplace tragedies and others who have been 
personally affected by workplace deaths and injuries. I know 
many of you have brought pictures. Others of you haven't.
    So could I ask all of you who are here who have had a 
family member, a loved one, others who have been affected by 
workplace deaths and injuries--could you please just stand up? 
Let's just see how many of you are here. And you all have 
pictures. Thank you very much for being here. You add greatly 
to our hearing. Thank you.
    The pictures that you hold are the faces that we should 
remember every time we hear that safety rules are too 
burdensome or that regulations cost jobs. Safety rules save 
workers' lives, and that should be our top priority.
    I now ask that the statements of these individuals be 
included in the record.
    [The information referred to may be found in Additional 
Material.]
    The Chairman. Keeping our workers safe is the 
responsibility of every employer across this country. The 
Occupational Safety and Health Administration's job is to make 
sure that employers are living up to this responsibility. While 
there are many tools that OSHA can use to achieve these goals, 
safety standards are among the most important and most 
effective ways that OSHA can help save lives.
    But, unfortunately, as we will hear today, the standard-
setting process at OSHA is broken. Even when the evidence is 
undeniable that our workers are dying from workplace hazards, 
OSHA still takes an eternity to issue a new safety rule. It 
took OSHA nearly a decade to issue a commonsense rule on crane 
safety. In the meantime, several cranes toppled and lives were 
ruined. OSHA's silica standard has been under consideration 
since 1974. But OSHA hasn't even published a proposed rule yet 
for the public to even comment on.
    Since the 1980s, it has taken OSHA an average of almost 8 
years to put out a final rule. That's 50 percent longer than 
the EPA, twice as long as the Department of Transportation, and 
five times as long as the SEC takes to issue a rule. Detailed 
scientific analysis is a big part of OSHA rulemaking, and, of 
course, that analysis is going to take time. But 8 years seems 
to be unduly long.
    The GAO report explores some of the procedural problems 
that hamstring OSHA's efforts. It tells us how inefficient the 
process is. I know today's witnesses will offer even more 
constructive criticism of OSHA's rulemaking. No one wants or 
expects OSHA to issue new rules without careful consideration 
of the impact on health and the cost of compliance. But it is 
simply unconscionable that workers must suffer while an OSHA 
rule is mired in bureaucracy.
    Slow procedures alone cannot explain why OSHA has issued so 
few rules recently. Rules have always taken a long time to 
finalize. Yet, after putting out 47 new safety standards in the 
1980s and 1990s, OSHA has put out only 11 since then. I might 
note that the Reagan administration issued new rules at a rate 
four times faster than the current Administration.
    I suspect that the lack of new rules is at least partly the 
result of relentless external pressure from business lobbyists 
and anti-labor groups. These groups pressure both OSHA and OMB 
to create delays that cost lives.
    Today, rather than hearing outrage over worker deaths, we 
hear misinformation campaigns from corporate lobbyists about 
OSHA supposedly killing jobs. We see legislative proposals that 
call for blanket prohibitions on new regulations and proposals 
to add even more red tape to the regulatory process. Some folks 
don't seem to be satisfied until it will take 80 years for OSHA 
to issue a regulation instead of 8. But that is unacceptable.
    The truth is that OSHA doesn't kill jobs. It keeps jobs 
from killing people. OSHA's process must be reformed to be more 
responsive to workplace safety concerns, not less. We must come 
up with ways for OSHA to do its job without intimidation or 
interference.
    I know GAO has some ideas on how to do this, and I think 
the witnesses from our second panel have even more ideas. So I 
look forward to today's hearing and I hope it can be the start 
of a productive conversation about making workers safer.
    And with that, I will turn to Senator Enzi for his opening 
statement.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman, and thank you for 
holding this hearing today. This is the first workplace safety 
hearing the HELP Committee has held since 2010, when we spent a 
great deal of time discussing mine safety because of the most 
tragic accident in 40 years that had just occurred at the Upper 
Big Branch Mine in West Virginia. Twenty-nine men lost their 
lives in that single accident, yet they represent just a 
fraction of the workplace deaths that occur all over the world.
    Here in the United States, statistics confirm that we are 
making significant progress. Workplace fatalities, injuries, 
and illnesses continue their historic decline. Since 2003, 
injuries and illnesses have decreased by nearly 30 percent, and 
fatal injuries have decreased 19 percent.
    Despite this decline, I agree with the Chairman that we can 
and must do better. I remember when my daughter was going to 
have a tonsillectomy, and the doctor explained to us that it's 
99.9 percent safe. But it occurred to me that if that one tenth 
was my daughter, it was 100 percent to me, and I recognize that 
to all of you in the audience, too. So we do have to do better.
    Workplace safety is surely one of the most important 
missions Congress has authorized for the Department of Labor. 
There are literally lives and livelihoods on the line. This 
hearing focuses on one tool: issuing new safety and health 
standards by regulation. This is a necessary tool. I'm 
interested in the findings of the Government Accountability 
Office, GAO, on this subject.
    But I would also encourage OSHA to better pursue multiple 
methods to improve safety, rather than focusing all its 
resources into new regulations and stronger enforcement. 
Voluntary programs involving employees and management, such as 
the Voluntary Protection Programs, have been shown to make 
workplaces considerably safer and save money. Yet under the 
current Administration, VPP has been threatened and undermined. 
Instead, we should be talking about expanding VPP to smaller 
employers and making it even more effective.
    I'm pleased that several Senators sitting on this committee 
have co-sponsored legislation introduced by Senator Landrieu 
and I to preserve VPP. I thank Senators Hagan, Isakson, 
Murkowski, and Burr for their support and look forward to 
opportunities to bring this bill up for a markup.
    I've been to some of the ceremonies where companies are 
being awarded for their safety at these VPP sites. And I know 
that one of the reasons they're successful is the pride that 
all of the employees are taking in making sure that all of them 
are safe.
    Workplace drug testing is another important way to reduce 
risk of injury and death in the workplace. All of the 
regulations and required compliance in the world are not going 
to work if an employer or manager disregards them because his 
or her judgment is impaired.
    The field of workers' compensation insurance has developed 
a long record of experimentation with strategies to make 
workplaces safer and has measureable results. Every State 
creates its own workers' comp regime. OSHA should look at the 
best practices out there and determine if there are any new 
ideas that can be translated to the Federal level.
    As someone who has run a workplace safety program 
personally, I am very supportive of giving employers quality 
information and flexibility to see what works best to keep 
their work site safe. Today, even the smallest employers must 
grapple with thousands of pages of regulation and burdensome 
recordkeeping requirements.
    But what should matter the most is the result, and that's 
keeping workplaces safe. Since it was created in 1970, OSHA has 
been empowered to establish standards for workplace safety and 
health. Congress has entrusted OSHA to identify common 
workplace hazards which cause injuries and illness, to conduct 
survey and research on the cause of hazards, to discover what 
preventative steps can be taken to mitigate hazards, and to 
issue and enforce regulations.
    Given this broad delegation of authority, Congress also 
required that OSHA use it appropriately. A new standard must 
address an actual hazard. The preventative steps OSHA may 
mandate must actually work to reduce the risk. They must be 
feasible to institute and cost-effective. If the cost will 
weigh heavily on small businesses, OSHA must engage in panel 
discussions with actual small business stakeholders.
    All of these considerations are appropriate for OSHA to 
undertake before finalizing a new standard. And this committee 
should closely scrutinize any proposals to shortcut them.
    As the GAO report released today makes clear, the interval 
of time between when a standard is proposed and finalized can 
range from 15 months to 19 years, which is comparable to other 
agencies GAO has reviewed, such as the Food and Drug 
Administration. The finalization interval has varied throughout 
OSHA's existence. In fact, it was much longer in the 1990s than 
in either the 1980s or the 2000s.
    GAO reports on the many factors that affect the 
finalization interval. Some of them are the same issues facing 
regulations from any agency, such as shifting priorities. 
Change in administration is a clear example of when priorities 
shift. But they also shift under the same leadership when 
different hazards capture attention.
    For example, today's report notes that the ergonomic 
standard issued at the end of the Clinton administration was 
proposed and finalized in just 1 year. In order to accomplish 
that, the vast majority of OSHA's standard-setting resources 
were focused on the ergonomics rule and taken off of other 
standards.
    While most standards use about 5 staff members, OSHA 
deployed 50 office staffers, 7 attorneys, and half of the 
agency's economists for the development of the ergonomics rule. 
You don't have to be a management guru to see how disruptive 
that would be to the development of other agency priorities.
    In the administration's response to this GAO report, OSHA 
endorses the notion of statutory deadlines imposed by Congress 
to speed standard-setting. Deadlines imposed by Congress or the 
courts do, indeed, seem to speed up the regulatory process by 
about half. But OSHA should be cautious about wishing for such 
dictates.
    The entire point of creating OSHA was to allow experts to 
determine the most dangerous and addressable hazards, the best 
ways to mitigate them, and when it was most appropriate to do 
so. If Congress is setting the agenda instead of safety 
experts, American employees will not benefit.
    Let me cite a recent example. In 2007, legislation was 
passed by the House of Representatives to require an interim 
standard within 90 days and the final standard within 2 years 
to restrict the use of a flavoring additive. The bill was not 
taken up in the Senate, and the Bush administration and OSHA 
did not initiate rulemaking.
    One of the co-sponsors of the bill, Congresswoman Hilda 
Solis, became the Secretary of the Department of Labor just a 
year later. Yet under 3 years of her leadership, OSHA has not 
finalized a standard for the flavoring additive. In fact, they 
found that a new regulation was not needed because 
manufacturers acted quickly to mitigate the risk. Therefore, if 
the legislation to dictate new standards had been enacted, OSHA 
would have spent valuable resources on a regulatory effort that 
was no longer necessary.
    I also hope this GAO report will not be misconstrued to 
justify limiting stakeholder involvement in OSHA's regulatory 
process. Stakeholder review and discussion is one of the most 
beneficial parts of the rulemaking process. That's where you 
work out the kinks of the new regulation and ensure both that 
it will work in the real world and that it accomplishes the 
goal in the most efficient manner.
    Many of the best examples of regulatory efforts that have 
failed because of insufficient stakeholder outreach come from 
OSHA itself. One of today's witnesses, Mr. David Sarvadi, will 
testify about those missteps and suggest ways OSHA can be more 
effective in setting new standards. One of his suggestions is 
to involve stakeholders earlier in the process, not just after 
the risk has been assessed and the remedy formed.
    There's one recent example of OSHA standard-setting which I 
do want to comment on, because I've had a long involvement with 
the issue, and that's the new Hazard Communication Standard 
finalized last month. OSHA spent more than 6 years working to 
harmonize the current Hazard Communication Standard with the 
global standard.
    Recognizing that chemicals and goods routinely cross 
country lines today, it's beneficial to all involved if the 
hazard labels and the material safety data sheets, MSDS, are 
uniform and easily understood. This rulemaking has had a great 
deal of support from all stakeholders.
    Several years ago, Senator Murray and I introduced 
legislation intended to aid this rulemaking process by 
involving stakeholders through a commission. Last year, 
President Obama listed this regulation as one of his 
accomplishments to reduce costs imposed by regulations.
    With all of this support, this should have been an easy 
win. Instead, the rule that was finalized last month included 
new provisions not covered in earlier stakeholder outreach and 
is already being questioned on several fronts. Safety data 
sheets will have to include additional information not required 
by other countries, erasing some of the cost savings.
    The final rule also inserted two provisions that are sure 
to cause confusion by having it cover combustible dust, which 
is an undefined hazard, and unclassified hazards. In this case, 
shortcutting stakeholder involvement and other regulatory steps 
required by law have only led to a more questionable standard 
that may now be prolonged even further.
    Considering that this regulation was advertised as reducing 
regulatory burden and saving money, it's even more 
disappointing. And I used to do some work in safety in the oil 
well servicing business and found that what works for the oil 
well drilling is not the same safety procedures as for the oil 
well servicing. And that's why stakeholders need to be involved 
in the process, so that it will actually work with the kind of 
equipment they're using which can often be different.
    I look forward to hearing the testimony and suggestions for 
improvement from today's witnesses. And I thank you, Mr. 
Chairman.
    The Chairman. Thank you, Senator Enzi.
    We have two panels. Our first panel is the GAO. Revae Moran 
is the Director in the Government Accountability's Office of 
Education, Workforce, and Income Security Group. She directs 
teams of analysts in conducting reviews of the Department of 
Labor's enforcement agencies, including the Occupational Safety 
and Health Administration.
    The GAO report has just been released this morning. We have 
a copy of it. I was able to give it a cursory review last 
evening.
    Without objection, your statement will be made a part of 
the record in its entirety, that is, the document itself.
    Ms. Moran, we welcome you, and if you can sum up in 5 
minutes or so, we would appreciate that.
    Welcome to the committee. Please proceed.

      STATEMENT OF REVAE MORAN, DIRECTOR, U.S. GOVERNMENT 
          ACCOUNTABILITY OFFICE (GAO), WASHINGTON, DC

    Ms. Moran. Thank you.
    Mr. Chairman and members of the committee, I'm pleased to 
be here today to discuss the Occupational Safety and Health 
Administration's, OSHA's, standard-setting process. GAO 
recently reviewed this process and the factors that affect the 
length of time it takes OSHA to set standards.
    We reviewed standards set by OSHA from 1981 through 2010. 
We selected that year as our starting point because several 
laws that affect the length of time it takes OSHA to set 
standards were passed in or after 1980, including the 
Regulatory Flexibility Act and the Paperwork Reduction Act.
    We reviewed all of the standards OSHA issued except minor 
ones such as technical amendments to existing standards. During 
this period, OSHA has issued 58 standards. The time it took 
OSHA to finalize them ranged widely from 15 months to 19 years, 
with an average time of 7 years, 9 months. Fifteen of these 
standards, over 25 percent, took OSHA over 10 years to issue.
    We found that many factors affect the time it takes OSHA to 
finalize a standard, including the complex framework of 
procedural requirements the agency must follow; shifting 
priorities within the agency, the Congress, and presidential 
administrations; and the high standard of judicial review for 
OSHA's standards. For example, an Executive order issued in 
1993 requires OSHA to determine whether a new standard is 
economically significant, such as whether it will have an 
annual effect on the economy of $100 million or more. If it is, 
OSHA must submit a detailed cost-benefit analysis to the Office 
of Management and Budget for review, which can add several 
months to the process of setting a new standard.
    Under another new law enacted in 1996, OSHA is one of only 
three agencies required to seek and consider input from panels 
of small businesses affected by certain new standards, a 
process that can add 8 months to the time it takes OSHA to set 
a new standard. Court decisions and actions by the Congress can 
also significantly affect the timeframes, either slowing them 
down or speeding things up.
    For example, in 1981, the U.S. Supreme Court ruled that the 
Occupational Safety and Health Act requires OSHA to determine 
that all new standards are technologically and economically 
feasible. And other courts have held that OSHA must evaluate 
the feasibility of new standards on an industry by industry 
basis, which takes a lot of time.
    On the other hand, when laws or the courts specify 
timeframes for developing these standards, it can speed up the 
process. Such timeframes were specified for nine of the 58 
standards we reviewed. For these standards, it took OSHA about 
half the time to issue them, 4\1/2\ years on average, compared 
to the almost 8 years for standards for which timeframes were 
not specified.
    We also reviewed the standard-setting processes of 
regulatory agencies similar to OSHA, such as the Environmental 
Protection Agency, EPA, and the Mine Safety and Health 
Administration, MSHA. We found, however, that their processes 
offered little insight into the challenges OSHA faces, because 
their statutory frameworks and resources differed so markedly 
from OSHA's. For example, one provision of the Clean Air Act 
gives EPA clear requirements and statutory deadlines for 
regulating air pollutants and for periodically reviewing and 
updating them.
    We sought the opinions of occupational safety and health 
experts and agency officials on ways to improve OSHA's 
standard-setting process. In our report, released today, we 
present the pros and cons of each of these ideas, noting that 
many of them would make it easier for OSHA to develop new 
standards more quickly, but might not allow all stakeholder 
concerns to be considered. In addition, many of these ideas 
would require substantive procedurally legislative changes, for 
example, changing the standard of judicial review, which would 
require Congress to amend the Occupational Safety and Health 
Act.
    In conclusion, it is essential that OSHA set occupational 
standards that protect the safety and health of workers. The 
administrative burdens and costs associated with such standards 
must be carefully considered. But once the need for a new 
standard has been established, it is important for OSHA to be 
able to move forward as quickly and efficiently as possible in 
order to protect workers.
    This concludes my oral statement. I would be happy to 
answer any questions you have at this time.
    [The prepared statement of Ms. Moran follows:]
                   Prepared Statement of Revae Moran
                                summary
     GAO reviewed the time it took OSHA to set all of the 
standards set by the agency from 1981 through 2010 (except minor ones 
such as technical amendments to existing standards).
     We selected 1981 as the starting point because several new 
laws that affect the length of time it takes OSHA to set standards were 
passed in or after 1980, including the Regulatory Flexibility Act, the 
Paperwork Reduction Act, and the Small Business Regulatory Enforcement 
Fairness Act (SBREFA).
     During this 30-year period, OSHA issued 58 standards.

          It took OSHA from 15 months to 19 years to issue 
        these standards--on average, 7 years, 9 months.
          It took OSHA over 10 years to complete 15 of the 58 
        (over 25 percent).
          Most of the standards (over 80 percent) were issued 
        prior to 2000.

     Many factors affect the time it takes OSHA to finalize a 
new standard:

      (1) the multiple procedural requirements the agency must follow;
      (2) shifting priorities within the agency, the Congress, and 
presidential administrations; and
      (3) the high standard of judicial review OSHA's standards must 
meet (the rigorous ``substantial evidence'' standard vs. the more 
deferential ``arbitrary and capricious'' standard for most other 
agencies).

     Court decisions and actions by the Congress can also 
significantly affect the timeframes, both slowing them down and 
speeding things up. For example, timeframes for 9 of the 58 standards 
were specified in laws or by the courts, and it took OSHA half the time 
to issue those standards.
     We sought the opinions of agency officials and safety and 
health experts on how to streamline the process. Our report presents 
the pros and cons of the major policy options, noting that many of them 
would make it easier for OSHA to develop new standards more quickly but 
might curtail opportunities for full stakeholder input. Many of the 
ideas suggested would require legislative action, such as amending the 
OSH Act to change the judicial standard OSHA's rules must meet.
                                 ______
                                 
    Chairman Harkin, Ranking Member Enzi, and members of the committee, 
thank you for the opportunity to discuss the challenges the Department 
of Labor's (Labor) Occupational Safety and Health Administration (OSHA) 
faces in developing and issuing safety and health standards. Workplace 
safety and health standards are designed to help protect over 130 
million public and private sector workers from hazards at more than 8 
million worksites in the United States, and have been credited with 
helping prevent thousands of work-related deaths, injuries, and 
illnesses. However, questions have been raised concerning whether the 
agency's approach to developing standards is overly cautious, resulting 
in too few standards being issued. Others counter that the process is 
intentionally deliberative to balance protections provided for workers 
with the compliance burden imposed on employers. Over the past 30 
years, various presidential Executive orders and Federal laws have 
added new procedural requirements for regulatory agencies, resulting in 
multiple and sometimes lengthy steps OSHA and other agencies must 
follow.
    My remarks today are based on findings from our report, which is 
being released today, entitled Workplace Safety and Health: Multiple 
Challenges Lengthen OSHA's Standard Setting.\1\ For this report, we 
were asked to review: (1) the time taken by OSHA to develop and issue 
occupational safety and health standards and the key factors that 
affect these timeframes, (2) alternatives to the typical standard-
setting process that are available for OSHA to address urgent hazards, 
(3) whether rulemaking at other regulatory agencies offers insight into 
OSHA's challenges with setting standards, and (4) ideas that have been 
suggested by occupational safety and health experts for improving the 
process. To determine how long it takes OSHA to develop and issue 
occupational safety and health standards, we analyzed new standards and 
substantive updates to standards finalized between calendar years 1981 
and 2010 and identified as significant by the agency. Through 
semistructured interviews with current and former Labor officials and 
occupational safety and health experts representing both workers and 
employers, we identified the key factors affecting OSHA's timeframes 
for issuing standards and ideas for improving OSHA's standard-setting 
process. We reviewed relevant Federal laws and interviewed current OSHA 
staff and attorneys from Labor's Office of the Solicitor to identify 
alternatives to the typical standard-setting process available for OSHA 
to address urgent hazards. To determine whether rulemaking at other 
regulatory agencies offers insight into OSHA's challenges with setting 
standards, we conducted semistructured interviews with policy and 
program officials at the Environmental Protection Agency (EPA) and at 
the Mine Safety and Health Administration (MSHA). For more information 
on our scope and methodology, see the full report. This testimony is 
based on work performed between February 2011 and April 2012 in 
accordance with generally accepted government auditing standards.
---------------------------------------------------------------------------
    \1\ GAO-12-330 (Washington, DC: Apr. 2, 2012).
---------------------------------------------------------------------------
    In summary, we found that, between 1981 and 2010, the time it took 
OSHA to develop and issue safety and health standards ranged from 15 
months to 19 years and averaged more than 7 years. Experts and agency 
officials cited several factors that contribute to the lengthy 
timeframes for developing and issuing standards, including increased 
procedural requirements, shifting priorities, and a rigorous standard 
of judicial review. We also found that, in addition to using the 
typical standard-setting process, OSHA can address urgent hazards by 
issuing emergency temporary standards, although the agency has not used 
this authority since 1983 because of the difficulty it has faced in 
compiling the evidence necessary to meet the statutory requirements. 
Instead, OSHA focuses on enforcement activities--such as enforcing the 
general requirement of the Occupational Safety and Health Act of 1970 
(OSH Act) \2\ that employers provide a workplace free from recognized 
hazards--and educating employers and workers about urgent hazards. 
Experiences of other Federal agencies that regulate public or worker 
health hazards offered limited insight into the challenges OSHA faces 
in setting standards. For example, EPA officials pointed to certain 
requirements of the Clean Air Act to set and regularly review standards 
for specified air pollutants that have facilitated the agency's 
standard-setting efforts. In contrast, the OSH Act does not require 
OSHA to periodically review its standards. Also, MSHA officials noted 
that their standard-setting process benefits from both the in-house 
knowledge of its inspectors, who inspect every mine at least twice 
yearly, and a dedicated mine safety research group within the National 
Institute for Occupational Safety and Health (NIOSH), a Federal 
research agency that makes recommendations on occupational safety and 
health. OSHA must instead rely on time-consuming site visits to obtain 
information on hazards and has not consistently coordinated with NIOSH 
to assess occupational hazards. Finally, experts and agency officials 
identified several ideas that could improve OSHA's standard-setting 
process. In our report being released today, we draw upon one of these 
ideas and recommend that OSHA and NIOSH more consistently collaborate 
on researching occupational hazards so that OSHA can more effectively 
leverage NIOSH expertise in its standard-setting process.
---------------------------------------------------------------------------
    \2\ Pub. L. No. 91-596, 84 Stat. 1590.
---------------------------------------------------------------------------
                               background
    The basic process by which all Federal agencies typically develop 
and issue regulations is set forth in the Administrative Procedure Act 
(APA), \3\ and is generally known as the rulemaking process. \4\ 
Rulemaking at most regulatory agencies follows the APA's informal 
rulemaking process, also known as ``notice and comment'' rulemaking, 
which generally requires agencies to publish a notice of proposed 
rulemaking in the Federal Register, provide interested persons an 
opportunity to comment on the proposed regulation, and publish the 
final regulation, among other things.\5\ Under the APA, a person 
adversely affected by an agency's notice and comment rulemaking is 
generally entitled to judicial review of that new rule, and a court may 
invalidate the regulation if it finds it to be ``arbitrary, capricious, 
an abuse of discretion, or otherwise not in accordance with law,'' 
sometimes referred to as the arbitrary and capricious test.\6\ In 
addition to the requirements of the APA, Federal agencies typically 
must comply with requirements imposed by certain other statutes and 
Executive orders. In accordance with various presidential Executive 
orders, agencies work closely with staff from the Office of Management 
and Budget's (OMB) Office of Information and Regulatory Affairs, who 
review draft regulations and other significant regulatory actions prior 
to publication.\7\ Most of the additional requirements that affect OSHA 
standard setting were established in 1980 or later.
---------------------------------------------------------------------------
    \3\ Pub. L. No. 79-404, 60 Stat. 237 (1946), codified in 1966 in 
scattered sections of title 5, United States Code. Agencies may follow 
additional or alternative procedures if certain exceptions apply, or 
when required by other statutes.
    \4\ The APA defines a rule as ``the whole or part of an agency 
statement of general or particular applicability and future effect 
designed to implement, interpret, or prescribe law or policy or 
describing the organization, procedure, or practice requirements of an 
agency.'' 5 U.S.C. Sec. 551(4). For this testimony, we use the terms 
rule and regulation interchangeably.
    \5\ The APA also provides for formal rulemaking in certain cases. 
Formal rulemaking includes a trial-type hearing, and if challenged in 
court, the resulting rule will be struck down if unsupported by 
substantial evidence. 5 U.S.C. Sec. 553.
    \6\ 5 U.S.C. Sec. Sec. 702, 706(2)(A).
    \7\ A regulatory action is ``significant'' if it will (1) have an 
annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities 
(sometimes referred to as ``economically significant''); (2) create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of the recipients; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive order. Executive Order No. 
12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993). The principles, 
structures, and definitions established in Executive Order 12866 were 
reaffirmed by Executive Order 13563, 76 Fed. Reg. 3821 (Jan. 18, 2011).
---------------------------------------------------------------------------
    The process OSHA uses to develop and issue standards is spelled out 
in the OSH Act. Section 6(b) of the act specifies the procedures OSHA 
must use to promulgate, modify, or revoke its standards.\8\ These 
procedures include publishing the proposed rule in the Federal 
Register, providing interested persons an opportunity to comment, and 
holding a public hearing upon request. Section 6(a) of the act directed 
the Secretary of Labor (through OSHA) to adopt any national consensus 
standards or established Federal standards as safety and health 
standards within 2 years of the date the OSH Act went into effect, 
without following the procedures set forth in section 6(b) or the 
APA.\9\ According to an OSHA publication, the vast majority of these 
standards have not changed since originally adopted, despite 
significant advances in technology, equipment, and machinery over the 
past several decades. In leading the agency's standard-setting process, 
staff from OSHA's Directorate of Standards and Guidance, in 
collaboration with staff from other Labor offices, explore the 
appropriateness and feasibility of developing standards to address 
workplace hazards that are not covered by existing standards. Once OSHA 
initiates such an effort, an interdisciplinary team typically composed 
of at least five staff focus on that issue.
---------------------------------------------------------------------------
    \8\ Codified at 29 U.S.C. Sec. 655(b).
    \9\ Codified at 29 U.S.C. Sec. 655(a). In general, national 
consensus standards are voluntary safety and health standards that a 
nationally recognized standards-producing organization adopts after 
reaching substantial agreement among those who will be affected, 
including businesses, industries, and workers. For purposes of section 
6(a) of the OSH Act, a national consensus standard must have met 
certain requirements. See the full report for more information on 
national consensus standards. The OSH Act defines an ``established 
Federal standard'' as any operative occupational safety and health 
standard established by any Federal agency or contained in any Act of 
Congress that was in effect on the date of enactment of the OSH Act. 29 
U.S.C. Sec. 652(10). Prior to the enactment of the OSH Act, other 
Federal laws included provisions designed to protect workers' safety 
and health, such as the 1936 Walsh-Healey Act.
---------------------------------------------------------------------------
 osha's standard-setting timeframes vary widely and are influenced by 
           the many procedural requirements and other factors
    We analyzed the 58 significant health and safety standards OSHA 
issued between 1981 and 2010 and found that the timeframes for 
developing and issuing them averaged about 93 months (7 years, 9 
months), and ranged from 15 months to about 19 years (see table 1).\10\
---------------------------------------------------------------------------
    \10\ We included in our review standards that OSHA considered to be 
important or a priority, including but not limited to standards that 
met the definition of ``significant'' under Executive Order 12866.

              Table 1: Significant OSHA Safety and Health Standards Finalized between 1981 and 2010
----------------------------------------------------------------------------------------------------------------
                                                                                                  Average number
                                                                     Number of    Average number  of months from
                           Decade/year                               standards    of months from   proposed rule
                                                                   finalized \1\   initiation to   to final rule
                                                                                  final rule \2\        \3\
----------------------------------------------------------------------------------------------------------------
1980s...........................................................              24              70              30
1990s...........................................................              23             118              50
2000s...........................................................              10              91              36
2010............................................................               1           --\3\           --\3\
Overall.........................................................              58              93              39
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of Federal Register.
\1\ For the purposes of this analysis, we considered a standard to have been finalized on the date it was
  published in the Federal Register as a final rule.
\2\ For the purposes of this analysis, we considered a standard to be initiated on the date OSHA publicly
  indicated initiating work on the standard in the Federal Register, by publishing a Request for Information or
  Advance Notice of Proposed Rulemaking. In cases where OSHA mentioned neither of these in the final rule, we
  used the date the standard first appeared on OSHA's semiannual regulatory agenda.
\3\ Because only one standard was finalized in 2010, we did not list the average number of months. However, the
  overall calculations include the 2010 standard.

    During this period, OSHA staff also worked to develop standards 
that have not yet been finalized. For example, according to agency 
officials, OSHA staff have been working on developing a silica standard 
since 1997, a beryllium standard since 2000, and a standard on walking 
and working surfaces since 2003.\11\ For a depiction of the timelines 
for safety and health standards issued between 1981 and 2010, see 
appendix I.
---------------------------------------------------------------------------
    \11\ Agency officials told us that OSHA issued a proposed standard 
on beryllium in 1975, but it was never issued as a final rule. Staff 
started collecting information on beryllium again in 2000. In addition, 
they told us that a 2010 proposed rule on walking and working surfaces 
replaced an outdated proposed rule from 1990 that was never issued as a 
final rule because of other regulatory priorities.
---------------------------------------------------------------------------
    Experts and agency officials frequently cited the increased number 
of procedural requirements established since 1980 as a factor that 
lengthens OSHA's timeframes for developing and issuing standards. They 
indicated that the increased number of procedural requirements affects 
the agency's standard-setting timeframes because of the complex 
requirements OSHA must comply with to demonstrate the need for new or 
updated standards (see fig. 1). For example, OSHA must evaluate 
technological and economic feasibility of a potential standard \12\ 
using data gathered by visiting worksites in industries that will be 
affected, on an industry-by-industry basis.\13\ Agency officials told 
us this is an enormous undertaking because, for example, it requires 
visits to multiple worksites. In addition to the feasibility analyses, 
OSHA staff generally must also conduct economic analyses, including 
assessing the costs and benefits of significant standards,\14\ and may 
be required to initiate a panel process that seeks and considers input 
from representatives of affected small businesses.\15\ According to 
agency officials, the small business panel process takes about 8 months 
of work, and OSHA is one of only three Federal agencies that is subject 
to this requirement.\16\
---------------------------------------------------------------------------
    \12\ These analyses are necessary because the Supreme Court has 
held that the OSH Act requires that standards be both technologically 
and economically feasible. Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 
490, 513 n.31 (1981).
    \13\ See United Steelworkers v. Marshall, 647 F.2d 1189, 1301 (D.C. 
Cir. 1980), quoted in AFL-CIO v. OSHA, 965 F.2d 962, 980 (11th Cir. 
1992). Assessing feasibility on an industry-by-industry basis requires 
that the agency research all applications of the hazard being 
regulated, as well as the expected cost for mitigating exposure to that 
hazard, in every industry.
    \14\ Executive Order 12866 requires that OSHA provide an assessment 
of the potential overall costs and benefits for significant rules to 
OMB. For rules that are ``economically significant,'' the agency must 
also submit a more detailed cost-benefit analysis. See 58 Fed. Reg. 
51,735 (Sept. 30, 1993).
    \15\ Under the Small Business Regulatory Enforcement Fairness Act 
of 1996, this panel process is required if OSHA determines that a 
potential standard would have a significant economic impact on a 
substantial number of small entities, such as businesses. OSHA staff 
must work with the Small Business Administration to set up the small 
business panels. 5 U.S.C. Sec. 609(b),(d).
    \16\ The other two agencies that are subject to this requirement 
are EPA and the Consumer Financial Protection Bureau.


    Experts and agency officials also told us that changing priorities 
are a factor that affects the timeframes for developing and issuing 
standards, explaining that priorities may change as a result of changes 
within OSHA, Labor, Congress, or the presidential administration. Some 
agency officials and experts told us such changes often cause delays in 
the process of setting standards. For example, some experts noted that 
the agency's intense focus on publishing an ergonomics rule in the 
1990s took attention away from several other standards that previously 
had been a priority.\17\
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    \17\ OSHA issued a final standard just 1 year after publishing the 
proposed rule, but, according to agency officials, in order to develop 
the rule so quickly, the vast majority of OSHA's standard-setting 
resources were focused on this rulemaking effort, including nearly 50 
full-time staff in OSHA's standards office, half the staff economists, 
and 7 or 8 attorneys. The rule was invalidated by Congress 4 months 
after it was issued under the Congressional Review Act. Pub. L. No. 
107-5, 115 Stat. 7 (2001).
---------------------------------------------------------------------------
    The standard of judicial review that applies to OSHA standards if 
they are challenged in court also affects OSHA's timeframes because it 
requires more robust research and analysis than the standard that 
applies to many other agencies' regulations, according to some experts 
and agency officials. Instead of the arbitrary and capricious test 
provided for under the APA, the OSH Act directs courts to review OSHA's 
standards using a more stringent legal standard: it provides that a 
standard shall be upheld if supported by ``substantial evidence in the 
record considered as a whole.'' \18\ According to OSHA officials, this 
more stringent standard (known as the ``substantial evidence'' 
standard) requires a higher level of scrutiny by the courts and as a 
result, OSHA staff must conduct a large volume of detailed research in 
order to understand all industrial processes involved in the hazard 
being regulated, and to ensure that a given hazard control would be 
feasible for each process.
---------------------------------------------------------------------------
    \18\ 29 U.S.C. Sec. 655(f).
---------------------------------------------------------------------------
    According to OSHA officials and experts, two additional factors 
result in an extensive amount of work for the agency in developing 
standards:

     Substantial data challenges, which stem from a dearth of 
available scientific data for some hazards and having to review and 
evaluate scientific studies, among other sources. In addition, 
according to agency officials, certain court decisions interpreting the 
OSH Act require rigorous support for the need for and feasibility of 
standards.
    An example of one such decision cited by agency officials is a 1980 
Supreme Court case, which resulted in OSHA having to conduct 
quantitative risk assessments for each health standard and ensure that 
these assessments are supported by substantial evidence.\19\
---------------------------------------------------------------------------
    \19\ Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 
607, 639 (1980). Although the decision interpreted a provision of the 
OSH Act that applied only to health hazards, Labor officials said that 
there is little practical distinction between the evidence OSHA must 
compile to support health standards and the evidence it must compile 
for safety standards.
---------------------------------------------------------------------------
     Response to adverse court decisions. Several experts with 
whom we spoke observed that adverse court decisions have contributed to 
an institutional culture in the agency of trying to make OSHA standards 
impervious to future adverse decisions. However, agency officials said 
that, in general, OSHA does not try to make a standard ``bulletproof '' 
because, while OSHA tries to avoid lawsuits that might ultimately 
invalidate the standard, the agency is frequently sued. For example, in 
the ``benzene decision,'' the Supreme Court invalidated OSHA's revised 
standard for benzene because the agency failed to make a determination 
that benzene posed a ``significant risk'' of material health impairment 
under workplace conditions permitted by the current standard.\20\ 
Another example is a 1992 decision in which a U.S. Court of Appeals 
struck down an OSHA health standard that would have set or updated the 
permissible exposure limit for over 400 air contaminants.\21\
---------------------------------------------------------------------------
    \20\ Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 
607, 639 (1980).
    \21\ AFL-CIO v. OSHA, 965 F.2d 962, 986-87 (11th Cir. 1992).
---------------------------------------------------------------------------
    osha has authority to address urgent hazards through emergency 
            temporary standards, enforcement, and education
    OSHA has not issued any emergency temporary standards in nearly 30 
years, citing, among other reasons, legal and logistical 
challenges.\22\ OSHA officials noted that the emergency temporary 
standard authority remains available, but the legal requirements to 
issue such a standard--demonstrating that workers are exposed to grave 
danger and establishing that an emergency temporary standard is 
necessary to protect workers from that grave danger--are difficult to 
meet. Similarly difficult to meet, according to officials, is the 
requirement that an emergency temporary standard must be replaced 
within 6 months by a permanent standard issued using the process 
specified in section 6(b) of the OSH Act.
---------------------------------------------------------------------------
    \22\ Section 6(c) of the OSH Act authorizes OSHA to issue these 
standards without following the typical standard-setting procedures if 
certain statutory requirements are met. 29 U.S.C. Sec. 655(c).
---------------------------------------------------------------------------
    OSHA uses enforcement and education as alternatives to issuing 
emergency temporary standards to respond relatively quickly to urgent 
workplace hazards. OSHA officials consider their enforcement and 
education activities complementary. Its enforcement efforts to address 
urgent hazards, OSHA uses the general duty clause of the OSH Act, which 
requires employers to provide a workplace free from recognized hazards 
that are causing, or are likely to cause, death or serious physical 
harm to their employees. \23\ Under the general duty clause, OSHA has 
the authority to issue citations to employers even in the absence of a 
specific standard under certain circumstances. Along with its 
enforcement and standard-setting activities, OSHA also educates 
employers and workers to promote voluntary protective measures against 
urgent hazards. OSHA's education efforts include on-site consultations 
and publishing health and safety information on urgent hazards. For 
example, if its inspectors discover a particular hazard, OSHA may send 
letters to all employers where the hazard is likely to be present to 
inform them about the hazard and their responsibility to protect their 
workers.
---------------------------------------------------------------------------
    \23\ 29 U.S.C. Sec. 654(a)(1).
---------------------------------------------------------------------------
     other regulatory agencies' experiences offer limited insight 
                         into osha's challenges
    Although the rulemaking experiences of EPA and MSHA shed some light 
on OSHA's challenges, their statutory framework and resources differ 
too markedly for them to be models for OSHA's standard-setting process. 
For example, EPA is directed to regulate certain sources of specified 
air pollutants and review its existing regulations within specific 
timeframes under section 112 of the Clean Air Act, which EPA officials 
told us gave the agency clear requirements and statutory deadlines for 
regulating hazardous air pollutants.\24\ MSHA benefits from a narrower 
scope of authority than OSHA and has more specialized expertise as a 
result of its more limited jurisdiction and frequent on-sight presence 
at mines. Officials at MSHA, OSHA, and Labor noted that this is very 
different from OSHA, which oversees a vast array of workplaces and 
types of industries and must often supplement the agency's inside 
knowledge by conducting site visits.
---------------------------------------------------------------------------
    \24\ 42 U.S.C. Sec. 7412. However, as GAO reported in 2006, EPA 
failed to meet some of its statutory deadlines under section 112 of the 
Clean Air Act. See GAO, Clean Air Act: EPA Should Improve the 
Management of its Air Toxics Program, GAO 06-669 (Washington, DC: June 
23, 2006).
---------------------------------------------------------------------------
    experts suggested many ideas to improve osha's standard-setting 
    process, including more interagency coordination and statutory 
                               deadlines
    Agency officials and occupational safety and health experts shared 
their understanding of the challenges facing OSHA and offered ideas for 
improving the agency's standard-setting process.\25\ Some of the ideas 
involve substantial procedural changes that may be beyond the scope of 
OSHA's authority and require amending existing laws, including the OSH 
Act.
---------------------------------------------------------------------------
    \25\ The ideas presented here are those most frequently mentioned 
in our interviews by agency officials and experts that are not 
addressed in other sections of the full report. For more information on 
our methodology, see the full report.

     Improve coordination with other agencies: Experts and 
agency officials noted that OSHA has not fully leveraged available 
expertise at other Federal agencies, especially NIOSH, in developing 
and issuing its standards. OSHA officials said the agency considers 
NIOSH's input on an ad hoc basis but OSHA staff do not routinely work 
closely with NIOSH staff to analyze risks of occupational hazards. They 
stated that collaborating with NIOSH on risk assessments, and generally 
in a more systematic way, could reduce the time it takes to develop a 
standard by several months, thus facilitating OSHA's standard-setting 
process.
     Expand use of voluntary consensus standards: According to 
OSHA officials, many OSHA standards incorporate or reference outdated 
consensus standards, which could leave workers exposed to hazards that 
are insufficiently addressed by OSHA standards that are based on out-
of-date technology or processes. Experts suggested that Congress pass 
new legislation that would allow OSHA, through a single rulemaking 
effort, to revise standards for a group of health hazards using current 
industry voluntary consensus standards, eliminating the requirement for 
the agency to follow the standard-setting provisions of section 6(b) of 
the OSH Act or the APA. One potential disadvantage of this proposal is 
that any abbreviation to the regulatory process could also result in 
standards that fail to reflect relevant stakeholder concerns, such as 
an imposition of unnecessarily burdensome requirements on employers.
     Impose statutory deadlines: OSHA officials indicated that 
it can be difficult to prioritize standards due to the agency's 
numerous and sometimes competing goals. In the past, having a statutory 
deadline, combined with relief from procedural requirements, resulted 
in OSHA issuing standards more quickly. However, some legal scholars 
have noted that curtailing the current rulemaking process required by 
the APA may result in fewer opportunities for public input and possibly 
decrease the quality of the standard.\26\ Also, officials from MSHA 
told us that, while statutory deadlines make its priorities clear, this 
is sometimes to the detriment of other issues that must be set aside in 
the meantime.
---------------------------------------------------------------------------
    \26\ See, for example, Jacob E. Gersen and Anne Joseph O'Connell, 
``Deadlines in Administrative Law,'' University of Pennsylvania Law 
Review, vol. 156 (2007-8).
---------------------------------------------------------------------------
     Change the standard of judicial review: Experts and agency 
officials suggested OSHA's substantial evidence standard of judicial 
review be replaced with the arbitrary and capricious standard, which 
would be more consistent with other Federal regulatory agencies. The 
Administrative Conference of the United States has recommended that 
Congress amend laws that mandate use of the substantial evidence 
standard, in part because it can be unnecessarily burdensome for 
agencies.\27\ As a result, changing the standard of review to 
``arbitrary and capricious'' could reduce the agency's evidentiary 
burden. However, if Congress has concerns about OSHA's current 
regulatory power, it may prefer to keep the current standard of review. 
\28\
---------------------------------------------------------------------------
    \27\ 59 Fed. Reg. 4669, 4670-71 (Feb. 1, 1994). The Administrative 
Conference of the United States is an independent Federal agency that 
makes recommendations for improving Federal agency procedures, 
including the Federal rulemaking process.
    \28\ One suggested justification for judicial review of agency 
rulemaking is when there is genuine concern about the power agencies 
have in the regulatory process. Mark Seidenfeld, ``Bending the Rules: 
Flexible Regulation and Constraints on Agency Discretion,'' 
Administrative Law Review (spring, 1999).
---------------------------------------------------------------------------
     Allow alternatives for supporting feasibility: Experts 
suggested that OSHA minimize on-site visits--a time-consuming 
requirement for analyzing the technological and economic feasibility of 
new or updated standards--by using surveys or basing its analyses on 
industry best practices. One limitation to surveying worksites is that, 
according to OSHA officials, in-person site visits are imperative for 
gathering sufficient data in support of most health standards. Basing 
feasibility analyses on industry best practices would require a 
statutory change, as one expert noted, and would still require OSHA to 
determine feasibility on an industry-by-industry basis.
     Adopt a priority-setting process: Experts suggested that 
OSHA develop a priority-setting process for addressing hazards, and as 
GAO has reported, such a process could lead to improved program 
results.\29\ OSHA attempted such a process in the past, which allowed 
the agency to articulate its highest priorities for addressing 
occupational hazards. Reestablishing such a process may improve a sense 
of transparency among stakeholders and facilitate OSHA management's 
ability to plan its staffing and budgetary needs. However, it may not 
immediately address OSHA's challenges in expeditiously setting 
standards because such a process could take time and would require 
commitment from agency management.
---------------------------------------------------------------------------
    \29\ See GAO, Managing for Results: Enhancing Agency Use of 
Performance Information for Management DecisionMaking, GAO-05-927 
(Washington, DC: Sept. 9, 2005).
---------------------------------------------------------------------------
                           concluding remarks
    The process for developing new and updated safety and health 
standards for occupational hazards is a lengthy one and can result in 
periods when there are insufficient protections for workers. 
Nevertheless, any streamlining of the current process must guarantee 
sufficient stakeholder input to ensure that the quality of standards 
does not suffer. Additional procedural requirements established since 
1980 by Congress and various Executive orders have increased 
opportunities for stakeholder input in the regulatory process and 
required agencies to evaluate and explain the need for regulations, but 
they have also resulted in a more protracted rulemaking process for 
OSHA and other regulatory agencies. Ideas for changes to the regulatory 
process must weigh the benefits of addressing hazards more quickly 
against a potential increase in the regulatory burden imposed on the 
regulated community. Most methods for streamlining that have been 
suggested by experts and agency officials are largely outside of OSHA's 
authority because many procedural requirements are established by 
Federal statute or Executive order. However, OSHA can coordinate more 
routinely with NIOSH on risk assessments and other analyses required to 
support the need for standards, saving OSHA time and expense. In our 
report being released today, we recommend that OSHA and NIOSH more 
consistently collaborate on researching occupational hazards so that 
OSHA can more effectively leverage NIOSH expertise in its standard-
setting process. Both agencies agreed with this recommendation.
    Mr. Chairman, this concludes my prepared statement. I would be 
pleased to respond to any questions you or other members of the 
committee may have.

    (GAO Contact and Staff Acknowledgments: For questions about this 
testimony, please contact me at (202) 512-7215 or [email protected]. 
Contact points for our Offices of Congressional Relations and Public 
Affairs may be found on the last page of this statement. Individuals 
who made key contributions to this statement include, Gretta L. 
Goodwin, assistant director; Susan Aschoff; Tim Bober; Anna Bonelli; 
Sarah Cornetto; Jessica Gray; and Sara Pelton.)
 appendix i: timelines of significant osha safety and health standards
    The following two figures (fig. 2 and fig. 3) depict a timeline for 
each of the 58 significant safety and health standards OSHA issued 
between 1981 and 2010.





    The Chairman. Thank you very much, Ms. Moran. We'll now 
start a series of 5-minute questions.
    In looking through this document last evening, it occurred 
to me that other agencies move more quickly on rulemaking, even 
ones that also have to have a lot of scientific analysis and 
stakeholder input. Can you describe for me in general terms how 
OSHA's rulemaking process compares to the process at other 
Federal agencies, and why does OSHA take so much longer than 
these others?
    Ms. Moran. I'm afraid that this isn't a very satisfying 
answer. But in some cases, we were not able to tell exactly why 
it takes OSHA so long. There are certain factors, such as the 
Small Business Enforcement Act, the SBREFA, as it's called, 
that--OSHA is one of only three agencies, including EPA and the 
Consumer Financial Protection Bureau, that have to meet the 
requirements and pull together small business panels, a process 
that can take 8 months, add 8 months to the process.
    But that doesn't explain the entire timeframe. And a lot of 
times, I think it's because of the shift in priorities within 
the agency. It will start work on a new standard or, you know, 
updating an existing standard, and then put it aside, work on 
other things, and come back to it, and that's not documented 
anywhere.
    So it was difficult for us to determine exactly what 
happened, for example, on the scaffold standard. Why it would 
take 19 years to set a scaffold standard doesn't necessarily 
make sense.
    The Chairman. But, again, can you speak just a little bit--
other agencies have rulemaking processes that require similar 
kinds of inputs as OSHA--scientific inputs, stakeholder 
inputs--but their timeframes are much less. But maybe you can't 
speak to that. I don't know.
    Ms. Moran. We did look a little bit at, for example, the 
EPA. But in that case, under the Clean Air Act, there were 
statutory deadlines set. For MSHA, it deals with one industry 
for the most part. There are some ancillary ones like trucking 
that's involved in mining.
    But for the most part, MSHA can set standards more quickly 
because it's dealing with one industry, and it has inspectors 
that go into the mines at least twice a year and for 
underground coal mines four times a year. So they have a lot of 
close knowledge of what the hazards are that miners face.
    The Chairman. One option in your report deals with the 
standard of review that courts use to consider OSHA rules. OSHA 
must demonstrate to a court that there was substantial evidence 
to support its conclusions, whereas most Federal agencies only 
have to show that the decision was not arbitrary and 
capricious.
    Can you explain in practical terms what this means, and how 
significant of a burden is this for OSHA?
    Ms. Moran. I do believe it is a significant factor in the 
timeframe that it takes OSHA to set standards, the substantial 
evidence standard that they must meet. When the courts go to 
review the standards that OSHA sets, most other agencies--and 
that's a very good point that you're making, that they only 
have to show that the standards that they set were not 
arbitrary and capricious, that the agency was not being 
arbitrary and capricious in setting a new standard.
    For OSHA, they have to show substantial evidence that a 
material impairment would occur to a worker, and that is a much 
higher standard for them to meet. So they spend a lot of time 
gathering evidence, scientific evidence, to support the need 
for a new standard. And I do believe that adds a substantial 
time burden to the agency.
    The Chairman. As part of the regulatory process, OSHA 
clears regulations through the Office of Management and Budget. 
My understanding is that OMB is supposed to respond to OSHA 
within 120 days. OSHA submitted a proposed rule governing 
silica exposure to OMB in February 2011. OMB has still not 
responded to the proposed rule, 14 months later.
    What role does OMB play, generally, in the time it takes 
for OSHA to issue a regulation, and, particularly, with respect 
to the silica rule?
    Ms. Moran. We have heard that the silica standard has been 
with OMB since February 2011. We asked them about that, and 
they said they could not comment on their review of a proposed 
rule. It is, however, one of the only instances that we heard 
people complain about. We did not hear substantial complaints 
about the time it takes OSHA to review other standards that we 
reviewed.
    The Chairman. That it takes OMB.
    Ms. Moran. Right. We did not hear a lot of complaints about 
OIRA's review, the office within OMB that reviews the 
standards.
    The Chairman. I'll have more about that for other 
witnesses, also. But thank you very much, Ms. Moran.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    Some of the people that you consulted for your report 
mentioned that more frequent use of negotiated rulemaking could 
help OSHA. Why isn't that used more often? Do you believe that 
would speed up the process or could speed up the process?
    Ms. Moran. Well, we know that negotiated rulemaking has 
been used for a number of different rules. When we spoke with 
the OSHA staff, they said that it, unfortunately, doesn't 
really buy them a lot of time. For example, the cranes and 
derrick standard committee was established and work was started 
in 2003. They completed the work in 1 year and pulled together 
the small business panels that were required under SBREFA--
completed their work in 2006 and issued a 276-page report on 
that work. But it still took OSHA until 2011 to finalize the 
rule.
    So even despite negotiated rulemaking, it didn't speed up 
the process substantially. And that's the case with other 
standards, such as 1,3-Butadiene in 1985-95. They used 
negotiated rulemaking, but it took them 12 years.
    Senator Enzi. You mentioned that the previous example even 
included the small business review and that only took 6 months, 
but then it took them 3 years to write the rule after they got 
that done?
    Ms. Moran. I believe it took a couple of years for the 
small business panels, that process. But that was completed in 
2006, and then the final rule was not published until 2011.
    Senator Enzi. So they had all their information for 5 years 
before they put out the rule.
    Ms. Moran. Yes.
    Senator Enzi. Thank you. An OSHA official in your report 
said that they do not attempt to make any standard bulletproof. 
I'm a little curious as to what that means. Congress and the 
courts have worked to ensure that agencies take the necessary 
steps to establish a thorough record of the rulemaking process, 
whether it's holding a small business roundtable, conducting 
economic or technical feasibility analyses or conducting risk 
assessments, or OMB review.
    All of these steps, while time-consuming, are integral to 
making a proposed rule that would actually work and be 
enforceable. Would you agree?
    Ms. Moran. Yes, I would. But the comment that the OSHA 
staff made was that they still know that they're going to be 
sued, no matter how much work that they do on a rule. And 
that's where the bulletproof comment came from, that they 
realize that at some point, they have to move forward.
    Senator Enzi. I think that's a normal result on a lot of 
regulation. As you mentioned in the report, OSHA was able to 
complete its ergonomic standard in just over 1 year, due to an 
influx of more than 50 staffers who worked on the rule. Despite 
the rule being invalidated by Congress a short time after it 
was finalized, this example shows that the agency can use the 
necessary resources available on a priority standard.
    Did you find that this happens in other OSHA rulemakings? 
And if not, why not?
    Ms. Moran. It does happen sometimes, but we didn't find an 
example where they put that level of resources to bear on one 
standard that was being worked on. And I will mention that even 
though the final part of putting together the ergonomic 
standard took only a year, they had been working on it for some 
time and collecting information from the stakeholder community.
    Senator Enzi. Thank you. And your report concludes that any 
streamlining of the current process must guarantee sufficient 
stakeholder input to ensure the quality of standards does not 
suffer. Over the last few years, OSHA has taken a number of 
actions that can be described as sub regulatory. Essentially, 
the intent seems to be to achieve its standard of enforcement 
change without having to go through the regulatory process.
    In many cases, these have been misguided precisely because 
they did not benefit from the step or the regulatory process 
such as stakeholder outreach, feasibility and cost-effective 
assessments. Given your years of experience reviewing the 
Federal regulatory process, how important is the stakeholder 
input?
    Ms. Moran. I think it's essential. I'm not sure that it 
should take over 10 years to issue some of these standards. But 
it is important in order for them to hold up to court 
challenges for the stakeholder input to be considered 
throughout the entire process.
    Senator Enzi. Now, you did find--going back to my previous 
question--the shifting priorities within OSHA was a major 
factor in the length of time that it took to finalize new 
standards. It's obvious this occurs when the administrations 
change, but it also occurred within one administration.
    It's not necessarily a bad thing when a priority shifts. We 
want the government to be able to respond to new developments 
and concerns of the people. But when significant resources are 
taken from other important priorities, it may not serve the 
agency well in the long run.
    Did you find any example of that in your review?
    Ms. Moran. Well, the ergonomic standard was the one that we 
talk about in the report, where they had taken so many 
resources to work on that standard that they had to put other 
standards, potential ones, aside at that time. That was the 
biggest one.
    Senator Enzi. Thank you for your answers.
    My time has expired, Mr. Chairman.
    The Chairman. Thank you, Senator Enzi.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Thank you, Mr. Chairman.
    And thank you for your testimony today. In your prepared 
statement, you note that OSHA has authority to address urgent 
hazards through emergency and temporary standards under the 
general duty clause. Is that not correct?
    Ms. Moran. Yes, it is.
    Senator Isakson. So even though it may take a substantial 
period of time to have enough evidence to determine that a rule 
should be made, OSHA has the ability in the absence of that 
evidence to issue a temporary standard because of--in the 
interest of the health, safety, and welfare of workers in most 
cases. Is that not true?
    Ms. Moran. It is. OSHA has to prove that there is a grave 
danger and that an emergency temporary standard is needed to 
address that grave danger within a 6-month period. So that is 
the requirement, and it's very difficult for them to meet. They 
have not issued an emergency temporary standard since 1983.
    Senator Isakson. Under the general duty clause, they 
haven't?
    Ms. Moran. Not under the general duty clause. But an 
emergency temporary standard--they have not issued one since 
1983.
    Senator Isakson. Well, we had a hearing on MSHA--Mr. 
Chairman, you'll remember--a couple of years ago. And people 
were suggesting they ought to have injunctive rights to go to 
court, and they had them, but they never exercised them. So 
some of the things we're talking about are agency-specific in 
terms of their initiative, not necessarily because of the 
requirements we place on them. Is that not true?
    Ms. Moran. I think that is true, yes.
    Senator Isakson. And there's a second agency that we have a 
lot of say-so over, and that's the FDA, the Food and Drug 
Administration. We're hopefully going to be doing a 
reauthorization of PDUFA and getting some expansion of industry 
input and industry fees to accelerate the time period it takes 
to take a drug from its discovery to actually being able to be 
prescribed.
    But it's very important that we have substantial evidence 
that that's a safe drug. That's why it takes a long time to 
approve a lot of things through the FDA. If we remove 
substantial evidence, as the Chairman was asking earlier, are 
we not putting ourselves at risk of OSHA being arbitrary in its 
rulemaking?
    Ms. Moran. That's really a policy decision. What I can say 
is that substantial evidence--that standard is a higher 
standard than other agencies to which they're held, the 
arbitrary and capricious standards. So it's really something 
that does make OSHA take longer in proving that it has 
substantial evidence of a material impairment to a worker to go 
through their standard-setting process. So it does take time.
    Senator Isakson. And one of those agencies you're referring 
to is EPA. Is that not correct?
    Ms. Moran. Yes, it is.
    Senator Isakson. I have one other comment about the small 
business--the requirements for the small business panels and 
the fact that it took, I think you said, about 8 months to meet 
that standard. Is that right?
    Ms. Moran. That's what OSHA's officials told us, yes.
    Senator Isakson. That's 8 months. In a 19-year rulemaking 
procedure, 8 months is a small amount of that time. So I want 
to point out that I ran a small business, and the biggest thing 
I worried about was my workers' comp premiums and losing a 
worker or having an accident that caused productivity to go 
down.
    So it's very important for those small businesses to have 
input as the rule is made, because many times, they can come up 
with a better standard than the Occupational Safety and Health 
Administration might come up with, because they're doing it on 
a daily basis.
    The second comment I would make--we've had three instances 
in Georgia that have involved health, safety, and welfare of 
the public. The Peanut Corporation of America in Camilla, where 
salmonella got released--and that was--it turned out to be a 
criminal act by an individual who had actually tested and found 
evidence of salmonella but hid it from OSHA inspectors and from 
health and safety inspectors that came in.
    But many of the other accidents we've had--I know the Sago 
Mine accident--Chairman Enzi, at the time, went with me and 
Senator Kennedy and Senator Rockefeller. Everybody was rushing 
to judgment. But we finally found out after about 18 months 
that a lightning strike that hit a buried ground wire removed 
from the mine had actually caused the explosion.
    We had to wait to get the substantial evidence to make the 
determination of the right thing to do in terms of improving 
the MSHA law. Much of the improvements that we made came from 
suggestions by the mine owners themselves. So I would caution 
anybody for thinking that we ought to remove or lessen the 
input or the standard of small business in terms of their input 
into regulatory rulemaking, because many times they can offer 
suggestions that are far better than what a neophyte may offer 
otherwise.
    I just wanted to make that point, Mr. Chairman, and I 
appreciate the time.
    The Chairman. I hope the Senator doesn't think that I was 
in any way implying that the standard should be changed to 
lessen the input of small businesses. That's not--I never said 
that, and I never intended to say that or imply that.
    Senator Isakson. And I didn't mean to imply that. But I was 
just noting the comment to make the statement that I made. But 
I didn't mean to imply that, if I did.
    The Chairman. I'm just saying that I agree with Senator 
Enzi. Stakeholder input is vitally important in this. The 
question is why does it take so long after the stakeholder 
input. After they do that, then they sit on it for years and 
years after that. That was sort of what I was trying to get at, 
and maybe Senator Enzi, too. I don't know. You were asking 
that, too.
    Senator Franken.

                      Statement of Senator Franken

    Senator Franken. Ms. Moran, thank you for testifying today 
and for your work on this report. I'm sorry I wasn't here for 
your testimony, but I read it last night.
    In advance of Workers' Memorial Day in a couple of weeks, 
this hearing is highlighting some vital issues, issues 
affecting lives of working men and working women across this 
country. The Occupational Safety and Health Act was passed with 
the intent to guarantee, ``every working man and woman in the 
Nation safe and healthful working conditions.''
    Today, we're going to be examining the question: Is the 
current system enabling OSHA to fulfill its mission? And I 
think the answer is it's not good enough. There were 4,340 
workplace deaths in 2010. That is 4,340 too many. I'd like to 
recognize all the families that are here with pictures of their 
loved ones.
    This is America. This is 2012. I believe that we can do 
better, and today we should be serious about trying to figure 
out how to do that.
    Ms. Moran, despite the length of your report, GAO only 
identifies one recommendation to improve OSHA's standard-
setting. How did GAO arrive at this recommendation, and what is 
GAO's response to some suggestions raised in our next panel? 
Did you read the testimony of the next panel?
    Ms. Moran. I did.
    Senator Franken. OK. What is GAO's response to suggestions 
like--and I'll run through four of them--legislation allowing 
OSHA to easily adopt industry voluntary consensus standards; 
legislation directing OSHA to work on regulating certain 
hazards; using surveys instead of onsite studies to determine 
rule feasibility; or, eliminating or reducing OMB economic 
analyses since OSHA already conducts its own analyses?
    Ms. Moran. I'll start with the last one. The reason we did 
not recommend that last issue is because we did not hear that 
that was a substantial problem in terms of the amount of time 
that it takes OSHA to issue regulations. As I mentioned, other 
than OMB's review of the silica standard that has been there 
for 14 months, they generally, as far as we were told from 
OSHA, by OSHA, do maintain the 90 days that it takes--that 
they're required to review them and with a 30-day possibility 
of an extension.
    But, generally, they do adhere to the 90-day period, which 
certainly isn't the bulk of the time that it takes. Some of the 
other recommendations that have been made just really are 
things like voluntary consensus standards that OSHA is required 
now to consider. So they do do that.
    However, the standards that are proposed by consensus 
setting organizations, such as the American National Standards 
Institute, ANSI, and the National Fire Protection Association, 
are not required to be based on the same information on which 
OSHA standards are based. They're not quite as scientifically 
based. They're not based on the same economic and technological 
feasibility that OSHA is required to meet. So it would take a 
legislative change to require that.
    Senator Franken. Right.
    Ms. Moran. But that's really a policy consideration. We 
didn't see that that would necessarily----
    Senator Franken. So if we changed that legislatively, it 
could make sense, because Senator Isakson was talking about the 
input of the industry, and if the industry has some common-
sense voluntary standards that they've adopted, consensus 
standards that would be an improvement, it's possible that OSHA 
adopting those could further the process along in a more 
expeditious manner. Is that right?
    Ms. Moran. It's possible. It also might not allow all the 
exact same stakeholder input that's being considered in the 
current process.
    I also wanted to comment on one of the other 
recommendations that one of the witnesses has proposed, and 
that's using data from EPA and their Integrated Risk 
Information System, IRIS. GAO reported on that system in 
another report from one of our other units in 2008, and we 
found serious problems with the data in that system, that it 
was at risk of becoming obsolete, and we pointed to a lot of 
problems with the quality of the data. So that was why we 
wouldn't have recommended something like that.
    Senator Franken. What about legislation directing OSHA to 
work on regulating certain hazards, in particular?
    Ms. Moran. I think that certainly could speed up the time. 
On the nine standards for which timeframes were either mandated 
in the law or by the courts, it took OSHA about half the time 
to issue those. And so it really can speed up the process.
    Senator Franken. OK. And what about using surveys instead 
of onsite studies to determine rule feasibility?
    Ms. Moran. I think that could speed it up slightly. It's 
not something that we found was a major problem. It does take 
more time because they have to go to OMB to get--under the 
Paperwork Reduction Act--those surveys approved. But they do 
use surveys now. It's just not the only piece of evidence that 
they use.
    Senator Franken. OK. Thank you. We have another panel of 
witnesses, and I might ask them the same questions.
    Ms. Moran. Sure.
    Senator Franken. Thank you very much for your service, Ms. 
Moran.
    Ms. Moran. Thank you.
    The Chairman. Thank you, Senator Franken.
    Thank you very much, Ms. Moran, for your work and for your 
service to our country. We appreciate it very much.
    Ms. Moran. You're very welcome.
    Senator Enzi. Good report and good presentation. Thank you.
    The Chairman. Very good. Thank you.
    Now, we'll move to our second panel. At the table, we have 
Mr. Tom Ward, a member of the Bricklayers Union Local 1 near 
Detroit, MI. After many years in the bricklayer trade, he 
became involved in safety training for his fellow workers. Mr. 
Ward has had firsthand experience of the impact of silica dust 
in the workplace.
    We have Dr. Michael Silverstein, recently retired as 
director of the State OSHA Program at Washington State 
Department of Labor and Industries; formerly a Policy Director 
at Federal OSHA. Dr. Silverstein is also a Professor of 
Occupational Health and has 40 years of experience in the 
field.
    Next, we have Randy Rabinowitz, the Director of Regulatory 
Policy at OMB Watch, an organization that monitors Federal 
safety regulations. She previously served as co-chair of the 
American Bar Association's Committee on Occupational Safety Law 
and as an adjunct professor teaching safety and health law. 
Before beginning her work at OMB Watch, she represented labor 
unions in OSHA proceedings.
    And Mr. David Sarvadi, an attorney at the law firm of 
Keller and Heckman, who specializes in occupational safety and 
health law. Mr. Sarvadi also has over 30 years of experience as 
a certified industrial hygienist. He has participated in OSHA 
rulemaking on behalf of companies and trade associations on 
numerous occasions.
    We thank you all for being here to testify today. We'll 
just go from left to right as I introduced you. Each of your 
statements will be made a part of the record in their entirety. 
I would ask each of you to sum up in about 5 minutes. We'll go 
through the panel, and then we'll open up for general 
discussion.
    Mr. Ward, welcome and please proceed.

  STATEMENT OF TOMMY C. WARD, Jr., MEMBER, LOCAL 1 MICHIGAN, 
  INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, 
                         WOODHAVEN, MI

    Mr. Ward. Thank you, Chairman Harkin, for the opportunity 
to testify before you today, Ranking Member Enzi and the other 
distinguished Senators. My name is Tom Ward, and I'm a member 
of the International Union of Bricklayers and Allied 
Craftworkers Local 1 Michigan, and it is an honor to be here 
today. Thank you.
    What I'm about to share with you is deeply personal. But 
the reason I agreed to speak with you today is much more 
important than just my story. It's a chance to speak on behalf 
of every American worker in the country.
    I was just 13 years old when my dad passed of silicosis. He 
did sandblasting work for about 6 years in his twenties. And I 
remember going to work with him one day, and I was amazed. A 
rusty old truck frame came in, and, man, it looked brand new at 
the end of the day. And I see that same look in my son's eyes 
every time he sees me fix something around the house or build 
something or look at a building that I had something to do 
with.
    My dad eventually moved on to a better job with better pay, 
benefits for the family, and he was a proud member of the 
Teamsters Union. A few years into his new job, he started 
becoming short of breath, and the doctors couldn't figure it 
out for quite a while. The official diagnosis of silicosis came 
when he was 34. It took 5 years to kill him, and he died at the 
age of 39.
    It was a slow and very painful process for our family to 
watch. As painful as it was, the hardest day for me is the last 
day he worked. He came in, closed the door, fell to the ground 
and started crying. He said, ``I just can't do it anymore.''
    I started my apprenticeship in 1991 after working as a 
laborer for a few years. I had no idea that I was going into a 
trade that had the same hazard. I was exposed to the same 
hazard that killed my father, and I didn't know. I didn't have 
the training at the time. Training back then--it was just 20 
years after the OSHA Act, so it wasn't a big deal at the time.
    It was only after several years ago, when I became involved 
in training myself, that I learned all the hazards, the details 
of the hazard, what it's about. What is silicosis? I was in a 
train-the-trainer course at our international training center, 
and the presenter showed us the video called Stop Silicosis. I 
don't know if anyone in here has seen it.
    But what was shocking for me is that the video was produced 
in 1938. Almost 70 years ago, we knew exactly what it was. 
Thousands of people were dying every year due to silicosis, and 
there are simple control hazards to fix it. In some cases, most 
cases, it's as simple as adding water to whatever you're 
drilling or grinding. And it's on Youtube if you want to take a 
minute to look at it.
    The workers in that video refer to their jack hammers as 
widow-makers. I'm here to tell you, we have our own modern day 
widow-makers on construction sites. Masonry saws, concrete 
saws, and grinders, when they're used dry, are our widowmakers. 
They just came around in the late 1970s, 1980s. So to set a 
timeline up for you, my generation of guys are going to come 
down with it next, in my opinion.
    The control measures are simple as water or hooking up a 
vacuum. Manufacturers of this equipment have been on board for 
a couple of decades almost. Most saws and grinders come with 
control measures, and we're supposed to use engineer controls. 
It's real simple.
    Every year, about 4,000 or 5,000 people die on the job. And 
in our OSHA classes, we have to spend 6 hours on the Focus 
Four, the four leading causes of death on the job, and only two 
on health hazards, hazards that kill 50,000 people every year. 
It's amazing to me that we can't get this done.
    In my opinion, the problem is it's not the contractor's 
problem. It's your family's problem when you're trying to enjoy 
retirement. It'll get you a few years later. Since my dad died, 
there's been no change in the silica standard, and I wonder to 
myself if I'm going to--if my family is going to watch me 
suffer the same fate.
    We must get this done now. There's no telling how many 
workers have contracted silicosis in the 14 years it's been in 
the process. The video I mentioned earlier states at the end 
that these workers will not have died in vain if we use what we 
have gained to help prevent workers from contracting this 
disease.
    The standard is complicated. But I'm here to tell you it 
really isn't. If you look at the standard, it says that we are 
allowed to be exposed to 0.1 milligrams per meter cubed. This 
is 1 gram. If you divide it in a thousand pieces, it would take 
0.1--that's how much we're allowed to be exposed to in an 8-
hour period. It doesn't take an industrial hygienist or a 
rocket scientist to figure out that if you're standing, dry 
cutting in a plume of dust, you are well over the limit.
    In conclusion, I just want to say again that I am honored 
to be here today and to be, hopefully, a small part of ensuring 
that my father and all that have perished on the job or from 
diseases from the job did not die in vain.
    Thank you.
    [The prepared statement of Mr. Ward follows:]
                Prepared Statement of Tommy C. Ward, Jr.
                                summary
    When I was 13 years old, my father died of silicosis. In his late 
twenties, he worked as a sandblaster, and was exposed to silica dust on 
the job. A few years later, he started getting short of breath. He was 
officially diagnosed with silicosis at age 34. My dad was 39 years old 
when he died in February 1982.
    I joined the International Union of Bricklayers and Allied 
Craftworkers (BAC) in 1991 after working as a laborer for a few years. 
I had no idea when I started working as a laborer and later as a 
bricklayer that I could be exposing myself to silica dust. To this day, 
I wonder if I will develop silicosis myself and if my children will 
have to watch me suffer the same fate as my father.
    After 14 years on the wall, I became involved in training; part of 
my job is to provide safety training to apprentices and journeyworkers. 
I'm concerned that the men and women I'm training are being exposed to 
the same hazard that killed my dad all these years later. I'm concerned 
that the same weak OSHA silica standard that was adopted in 1972 
remains on the books today, allowing workers to be exposed to harmful, 
even deadly, levels of silica dust. OSHA has been working on a new 
stronger silica standard for more than 14 years--since 1997. But there 
have been all kinds of delays in issuing this rule. Currently the draft 
of a new proposed rule is at OMB for review, where it has been for more 
than a year.
    We can fix this problem. Young men and women don't have to die from 
exposure to silica. There are simple and cost-effective solutions to 
prevent exposure to silica dust on the job.
    It's as simple as water; as simple as outlawing dry cutting on 
construction sites. Most, if not all, of the tools that when used may 
disperse silica dust come with water hook-ups or have other attachments 
that prevent dust from becoming airborne. Without a stronger standard 
in place including dust control provisions, however, there is nothing 
to compel employers to provide these simple and relatively inexpensive 
tools. Good contractors get it and do the right thing; they put in 
place controls and good programs, but they're having problems competing 
with contractors who won't, contractors who see their workers as 
disposable, and who know OSHA can't do a thing to make them protect 
their workers?
    We must act together now so our children and grandchildren are not 
victims. We cannot let another generation pass us by without taking 
action.
                                 ______
                                 
    Thank you Chairman Harkin for the opportunity to testify before 
you, Ranking Member Enzi, and the other distinguished Senators on the 
Committee on Health, Education, Labor, and Pensions this morning. My 
name is Tom Ward, and I am a member of the International Union of 
Bricklayers and Allied Craftworkers, Local 1 Michigan. It is an honor 
to have this opportunity to testify before you on the delays in OSHA's 
Standard-Setting Process and the Impact on Worker Safety. This topic is 
particularly important to me and my family.
    When I was 13 years old, my father died of silicosis. In his 
twenties, he worked as a sandblaster for 5 to 6 years. There's not a 
whole lot I remember clearly about my childhood; but I do remember 
going to work with my dad a couple times. I remember old rusty truck 
frames coming in to be blasted and primed, the effort he put into the 
job, his work ethic; and I remember being amazed that it was my dad 
that made them look new at the end of the day.
    After he left his job sandblasting, my dad took a job where he was 
represented by the Teamsters' Union--he had good pay and benefits that 
my family relied on. A few years into his new job, he started getting 
short of breath. I remember my mom telling me the doctors suspected 
lung infections. We got the official diagnosis--silicosis--when he was 
34 years old. The hardest memory to live with is the last day he 
worked--he came in the door, fell to the floor and started crying. He 
said ``I can't do it anymore.''
    My dad was 39 years old when he died in February 1982. It took 5 
years for silicosis to kill him. It was a slow and very painful process 
for me, my sisters and for my mother to witness. In the end, his 
disease suffocated him.
    My dad's death had profound impacts on me. He was a very hands-on 
guy--he would fix the car himself, and make repairs to the house. It's 
a trait that I inherited from him, and that led me into the trades 
myself. I'm not sure if I inherited his tremendous work ethic or if it 
was the result from watching him work until he dropped, I still live 
with the image every day even though it's been 30 years already.
    In 1991, I joined the International Union of Bricklayers and Allied 
Craftworkers (BAC) after working as a laborer for a few years. Coming 
into the trade was easy for me because I loved working with my hands. I 
got a great job, and turned it into a great career. I had no idea when 
I started working as a laborer and later as a bricklayer that I could 
be exposing myself to silica dust. To this day, I wonder if I will 
develop silicosis myself.
    At the time I started in the trades, there wasn't a lot of training 
being done about respiratory protection or silica. A lot of the guys I 
worked with were completely unaware of the seriousness of silica 
exposure, and the contractors out there weren't consistent about 
providing protective equipment because the standard was completely 
lacking; the rules were lax and there was no enforcement. The same 
standard exists today.
    Once I became aware of the silica hazards in the trade I had 
chosen--and given my father's experience--I did what I could to protect 
myself including research on the standard. It was very confusing for an 
apprentice, paper masks were the only option on the job. After 14 years 
in the trade I became involved in training, this is when I first 
received training on the hazard. When the presenter showed us a video 
called ``Stop Silicosis'' my heart sunk as I wondered if my children 
ages 7 and 5 at the time would watch me suffer the same fate as my 
father. What may be shocking to you about the video is that it was 
produced in 1938 by Secretary Frances Perkins' Department of Labor. In 
the video, they refer to jackhammers as ``widow makers.'' A digital 
copy is available on Youtube, its 11 minutes that shows simple, very 
inexpensive control measures to eliminate the hazard.
    As bricklayers, we have our own widow makers--masonry saws and 
grinders. Before the 1970s, most of our cuts were made by hand with a 
hammer and chisel. In the late seventies, though, diamond-bladed saws 
were increasingly prevalent on jobsites, and later gas-cutoff saws 
started appearing. In the early eighties, more and more saws were used 
because the newer, more complicated buildings required more and more 
cuts to the masonry materials. These saws all come with a water hook-up 
or an available vacuum attachment, but they rarely get used even though 
they are a cheap and effective way of reducing exposure to airborne 
silica dust.
    Part of my job instructing apprentices and journeyworkers is to 
provide safety training to them. I'm concerned about the men and women 
I'm training; that they're being exposed to the same hazard my dad was 
all these years later.
    In my own classes, I try to give our apprentices and journeymen and 
women a good understanding of respiratory dangers and how to use 
protective equipment. In addition to sharing my personal story, I tell 
them that according to NIOSH, over 50,000 men and women die each year 
from diseases contracted at work including silicosis. We are required 
to spend 6 hours teaching the Focus 4 in our OSHA 30-hour course--
falls, electrocution, caught-in or between and struck by--the leading 
causes of death on the job. These Focus 4 hazards kill 4,000 to 5,000 
workers each year. We are only required to teach 2 hours on health 
hazards--hazards that kill 10 times that every year. In my opinion we 
have forgotten about the very real threat of inhaling dust on the job; 
about the workers who slowly suffer for years and then die from an 
illness like my dad did and like 50,000 others do each year. Training 
apprentices and journeymen and women helps them understand the risks 
they face from silica, and they understand how to protect themselves.
    It's not easy for workers to apply this knowledge on the jobsite; 
those who speak up may not be called back for the next project. 
Although there are good contractors out there who are aware of the dust 
hazards, construction workers are typically employed by many 
contractors in a given year and not all of them provide such equipment, 
or even require the use of the equipment when it is provided. Without 
strengthened standards and enforcement efforts, there is nothing 
compelling employers to keep their employees safe from silica and other 
dust.
    For my entire career--no, longer-- since my dad died--there has 
been no change in the OSHA silica exposure limits or changes to 
strengthen the silica standard. OSHA has been working on a new stronger 
silica standard for more than 14 years--since 1997. But there have been 
all kinds of delays in issuing this rule. Currently the draft proposed 
rule is at OMB for review, where it has been for more than a year.
    I'm concerned that in the entire careers of the young men and women 
I'm training today there will be no change in the silica standard and 
to make stronger the requirements for dust control. For some it may 
already be too late. It is in our power to fix the problem. Young men 
and women don't have to die from exposure to silica. Secretary Perkins 
gave us the solutions some 74 years ago; they are easy and relatively 
inexpensive--especially when compared to the years of health care costs 
for the thousands of men and women that have died from disease related 
to silica exposure on the job. We must get this done now.
    The 1938 video I mentioned earlier addressing the dangers of silica 
exposure ends with the line ``these workers will not have died in 
vain.'' Thousands of workers have died in vain since that video was 
produced. It's impossible to believe that in almost 80 years we have 
done little to reduce the dangers to our working men and women from 
silica. After years of hard work, no one should lose everything then 
end his or her life struggling to draw a breath because of minute dust 
inhaled on the job.
    I am honored to have an opportunity to ensure that my father and 
all that have perished from diseases contracted at work will not have 
died in vain.

    The Chairman. Thank you, Mr. Ward, for a very poignant 
presentation. I appreciate it very much.
    Dr. Silverstein, please proceed.

STATEMENT OF MICHAEL SILVERSTEIN, M.D., MPH, CLINICAL PROFESSOR 
    OF ENVIRONMENTAL AND OCCUPATIONAL HEALTH, UNIVERSITY OF 
  WASHINGTON SCHOOL OF PUBLIC HEALTH AND COMMUNITY MEDICINE; 
  RETIRED DIRECTOR OF STATE OSHA PROGRAM AT WASHINGTON STATE 
        DEPARTMENT OF LABOR AND INDUSTRIES, SEATTLE, WA

    Dr. Silverstein. Thank you. Chairman Harkin, Ranking Member 
Enzi, I appreciate the opportunity to speak to you today. And 
I'd like to summarize my testimony in five points.
    First of all, nearly 40 years after the OSHA Act was 
signed, the national toll of preventable workplace illness, 
injury, and death remains appallingly high. A recent study 
found 5,600 fatal injuries, 53,000 fatal illnesses, and 9 
million other workplace injuries and illnesses every year for 
an annual cost of $250 billion.
    Second, OSHA's rules have kept workers from being killed, 
but roadblocks have interfered with forward progress. OSHA had 
a good start in the 1970s with rules for asbestos, arsenic, 
lead, cotton dust, and there's strong evidence that these have 
been effective in protecting workers with no evidence of 
reduced competitiveness, productivity, or profits.
    Simply put, OSHA regulations have saved lives without 
killing jobs. However, myths about rules have overshadowed this 
reality, and procedural and political roadblocks have brought 
OSHA rulemaking to a virtual halt. If there is a crisis, it's 
not over-regulation, but unregulated hazards. For example, the 
U.S. Chemical Safety Board reported on the dangers from 
combustible dust in 2006 after reviewing nearly 300 serious 
fires and explosions that had killed 119 workers. The Board 
recommended new OSHA rules.
    Just 2 years later, a huge explosion of combustible sugar 
dust at the Imperial Sugar Refinery in Georgia killed 14 
workers. And 3 years after that, five more workers were killed 
in iron dust explosions in Texas. Now, 6 years since the Board 
warning, without a new OSHA standard, it is a national 
embarrassment that workers continue to be blown up in 
combustible dust explosions.
    My third point is that lost time means lost lives. It takes 
OSHA almost 8 years, as you've heard, on average, to adopt a 
safety and health rule and, in many cases, much longer. 
Exposure to silica dust causes crippling lung disease and lung 
cancer. OSHA started toward rulemaking in 1974. After 37 years 
of bureaucratic delay, draft documents were finally submitted 
for OMB review.
    And now, as you pointed out, Mr. Chairman, more than a year 
later, the proposal remains handcuffed within OMB. Now, 
assuming a very best case scenario, it will take another 3 
years after the proposal emerges from OMB for a new silica rule 
to be adopted, 41 years after the process started. And by this 
time, more than 2,000 lives could have been saved.
    Fourth point, when problems are found, we need to find 
solutions, and here are some suggestions. First, OSHA and the 
National Institute of Occupational Safety and Health, or NIOSH, 
should be required to establish a shared priority list for 
rulemaking. OSHA should work with NIOSH on a new national 
survey of workplaces to get detailed information on worker 
exposures and control measures for hazards that are on the 
priority list.
    OMB should acknowledge that OSHA's public hearing process 
is especially robust. All issues of concern to OMB are 
discussed and debated on the record--economic impacts, 
potential alternatives, technological and economic feasibility. 
The OMB review only slows things down without adding 
substantial value. OMB should limit itself to cursory review of 
this, or simply exempt OSHA from the review requirements of 
Executive Order 12866.
    Congress should direct OSHA to update more than 400 
chemical exposure limits that haven't been changed for more 
than 40 years. It should allow an expedited process for OSHA to 
adopt modern consensus standards that have widespread support 
in reputable national or international organizations.
    Congress should also be more willing to step in when the 
rulemaking process fails in a timely way to protect workers 
from known hazards. And I would point out that this approach 
has, in fact, worked well on several occasions at the Federal 
level and more recently has worked quite well in two specific 
examples in the State of Washington.
    In one of these, the Washington State Legislature directed 
the State OSHA program to develop rules to protect healthcare 
workers from exposure to chemotherapy and other hazardous 
drugs, drugs that are helpful to patients but can actually kill 
workers. The second was a requirement for employers who have 
violated safety and health regulations to correct the hazards 
right away, even if they've appealed the citation. And that 
rule also provides due process for employers to seek a stay and 
to be granted a stay if, in fact, one is appropriate. In both 
these cases, the State completed the process in about 6 months.
    Also, improved standard-setting is necessary but it's not 
sufficient. Public employees in 31 States and territories are 
completely excluded from OSHA protections. Now, while public 
employees in the other 27 States and territories may experience 
long delays before a standard is passed, they at least enjoy 
protections when the rules are adopted. The rest have remained 
out in the regulatory cold for 38 years, and this is a gap that 
Congress can and should fix.
    Finally, my fifth point is that a bad situation can, in 
fact, become worse. Several proposals now before Congress will 
slow OSHA standard-setting even further, and we simply need to 
be moving in the other direction. You know, most OSHA rules 
that were adopted before 1981, before the GAO timeframe, were 
completed quickly.
    The rules for asbestos, arsenic, cotton dust, and lead were 
all adopted within just a few years. And there's no evidence at 
all that those rules were any more burdensome or costly, any 
less protective or effective, or any less supported by 
scientific evidence than subsequent rules that have taken many, 
many years longer.
    We have created barriers based on false alarms. And the 
need now is to lower them so that worker protection can proceed 
again without delay. And it's no exaggeration to say that lives 
are at stake.
    That concludes my comments, and I'll be happy to respond to 
questions later. Thank you.
    [The prepared statement of Dr. Silverstein follows:]
          Prepared Statement of Michael Silverstein, M.D., MPH
                                summary
    I am a physician certified in occupational medicine with nearly 40 
years of experience in workplace safety and health. I recently retired 
from the Washington State Department of Labor and Industries where I 
directed the State OSHA Program for 10 years. My previous positions 
include Director of Policy for Federal OSHA, Washington State Health 
Officer, and assistant director for Occupational Safety and Health for 
the United Automobile Workers.
    1. Nearly 40 years after the OSHAct was signed the national toll of 
preventable workplace injury, illness and death remains appallingly 
high. The most recent published study has documented 5,600 fatal 
workplace injuries, 53,000 fatal illnesses and more than 9 million non-
fatal injuries and illnesses every year for total estimated annual 
costs of $250 billion.
    2. OSHA's rules have kept workers from being killed, but roadblocks 
have interfered with forward progress. There is strong evidence that 
OSHA rules have been effective in protecting workers with no evidence 
of interference with competitiveness, productivity or profits. However, 
myths about rulemaking have overshadowed this reality. As a result, 
procedural and political roadblocks have brought OSHA rulemaking to a 
virtual halt.
    3. Lost time means lost lives. OSHA started rulemaking on silica 
dust in 1974. OSHA estimates that 60 worker deaths a year would have 
been prevented with a new rule. We've already lost the opportunity to 
prevent more than 2,000 deaths from silica exposure.
    4. When problems are found, we need to find solutions. OSHA and 
NIOSH should be required to establish a shared priority list for 
rulemaking. OMB should acknowledge that OSHA's public hearing process 
is especially robust and should limit itself to cursory reviews or 
exempt OSHA from OIRA review. Congress should direct OSHA to update its 
400 obsolete chemical exposure limits. Congress should extend the 
protections of OSHA rules to all public employees.
    5. A bad situation could become worse. Several proposals on 
regulatory process currently before Congress will cause harm by slowing 
down OSHA's standard setting process even further.
                                 ______
                                 
    Chairman Harkin and Ranking Member Enzi, my name is Dr. Michael 
Silverstein and I appreciate the opportunity to testify before you 
today.
    1. Nearly 40 years after the OSHAct was signed the national toll of 
preventable workplace injury, illness and death remains appallingly 
high. The most recent published study of workplace injuries and 
illnesses by Dr. Paul Leigh has documented 5,600 fatal injuries, 53,000 
fatal illnesses and more than 9 million non-fatal injuries and 
illnesses every year for total estimated annual costs of $250 
billion.\1\ The human impact and national cost for these predictable 
and preventable losses is unacceptably huge.
---------------------------------------------------------------------------
    \1\ Leigh, JP. (2011) Economic Burden of Occupational Injury and 
Illness in the United States. Milbank Quarterly, 89(4):728-72.
---------------------------------------------------------------------------
    2. OSHA's rules have kept workers from being killed, but roadblocks 
have interfered with forward progress. Congress intended rulemaking to 
be one of the principle vehicles for OSHA to ensure that workers return 
home safe and healthy every day. OSHA had a good start with rules 
protecting workers from asbestos, vinyl chloride, coke oven emissions, 
arsenic, lead, cotton dust and hazards associated with power 
transmission and generation, scaffolding, and mechanical power presses. 
There is strong evidence that these and other OSHA rules have been 
effective in protecting workers for reasonable costs with no evidence 
of interference with competitiveness, productivity or profits.\2\ 
Simply put, OSHA regulations have saved lives without killing jobs. 
However, in recent years myths about rulemaking have overshadowed this 
reality. As a result, procedural and political roadblocks have brought 
OSHA rulemaking to a virtual halt.
---------------------------------------------------------------------------
    \2\ Office of Technology Assessment, Gauging Control Technology and 
Regulatory Impacts in Occupational Safety and Health: An Appraisal of 
OSHA's Analytical Approach. Washington, DC, OTA, 1995.
---------------------------------------------------------------------------
    If there is a crisis it is not over-regulation, but persistently 
deadly unregulated hazards such as silica, workplace violence and 
combustible dust. For example, the U.S. Chemical Safety Board (CSB) 
issued a report on the dangers from combustible dust in 2006 after 
reviewing nearly 300 serious fires and explosions that killed 119 
workers, including a 2003 plastic dust \3\ explosion in Tennessee that 
killed seven workers and a 2003 plastic dust \4\ explosion in North 
Carolina that killed six workers. The CSB recommended that OSHA conduct 
rulemaking to prevent these deadly explosions. \5\ Just 2 years later, 
while OSHA was struggling with the bureaucratic obstacles to 
rulemaking, a huge explosion of combustible sugar dust at the Imperial 
Sugar refinery near Savannah, GA killed 14 workers. And 3 years after 
that five workers were killed in a series of iron dust explosions in 
Gallatin, TX. Now, nearly 6 years since the CSB warning, it is a 
national embarrassment that workers continue to be blown up.
---------------------------------------------------------------------------
    \3\ Phenolic resin dust explosion, CTA Acoustics plant, Corbin, TN.
    \4\ Polyethylene dust explosion, West Pharmaceutical Services, 
Kinston, NC.
    \5\ U.S. Chemical Safety and Hazard Investigation Board. November 
2006. Combustible Dust Hazard Study. Washington, DC. Report # 2006-H-1.
---------------------------------------------------------------------------
    3. Lost time means lost lives. Between 1981 and 2010 it has taken 
OSHA an average of 7 years 9 months to adopt a workplace safety and 
health standard. Over 25 percent of the rules completed during these 
years took more than 10 years with several being delayed for nearly 20 
years. And there have been even longer delays for some that have yet to 
be completed.
    For example, workplace exposure to silica dust (the basic 
ingredient in common sand) has long been known to cause crippling lung 
disease and lung cancer. OSHA started the rulemaking process for a new 
silica standard in 1974 after the National Institute for Occupational 
Safety and Health (NIOSH) reported that the old standard left workers 
at high risk. A draft was finally presented for review, 29 years later, 
to a small business panel as required by the Small Business Regulatory 
Fairness Enforcement Act (SBREFA). After 8 more years rulemaking 
documents were submitted for OMB review under Executive Order 12866. 
Today after yet another year the silica proposal remains handcuffed 
within OMB. Assuming a best-case scenario after this hearing, it will 
still take another 3 years for a new silica rule to be adopted--41 
years after the process started! OSHA has estimated that 60 worker 
deaths a year would be prevented by reducing the standard to the levels 
recommended in 1974. By 2015 we will have lost the opportunity to 
prevent nearly 2,500 deaths.
    4. When problems are found, we need to find solutions. The GAO 
report on OSHA standard setting correctly identifies many of the 
reasons OSHA rulemaking has slowed down, but the report falls far short 
on recommendations for improvement. A practical, effective action 
agenda should include at least the following:

     OSHA and NIOSH should be required to work together to 
establish a shared priority list for rulemaking. This should be done 
with substantial stakeholder input, similar to the priority process 
OSHA began in the mid-1990s but later abandoned.
     OSHA should work more closely with NIOSH and EPA on risk 
assessments and feasibility analyses that are required for rulemaking. 
This should include a new national survey of workplaces to get detailed 
information on worker exposures and control measures for hazards on the 
priority list.
     OMB should acknowledge that OSHA's public hearing process 
is especially robust, going well beyond the requirements of the 
Administrative Procedure Act. An independent administrative law judge 
presides. Witnesses present information, analysis and opinions and are 
challenged through cross-examination. All issues of concern to OMB are 
discussed and debated on the record--including the need for regulatory 
action, economic impacts, potential alternatives, and technological and 
economic feasibility. OSHA then makes decisions based on the evidence 
and testimony. If challenged it must be able to prove in court that its 
actions are ``supported by substantial evidence in the record 
considered as a whole.'' Given this openly deliberative process the OMB 
review only slows down the rulemaking without adding substantial value. 
OMB should limit itself to very cursory reviews or simply exempt OSHA 
from the review requirements of Executive Order 12866.
     OSHA's rules for more than 400 dangerous chemicals have 
not been updated for almost 40 years. Congress should direct OSHA to 
update these obsolete permissible exposure limits (PELs) using an 
expedited process to adopt contemporary consensus standards that have 
received widespread support by reputable national or international 
organizations.
     Congress should be more willing to step in when the normal 
rulemaking process fails in a timely way to protect workers from 
dangers. This approach has worked well recently in Washington State 
where two safety and health rules were required by statute. In one of 
these the Legislature directed the State OSHA program to develop rules 
to protect health care workers from exposure to chemotherapy and other 
hazardous medicines. The rules had to be consistent with but could not 
exceed provisions in existing NIOSH Guidelines. The second rule 
requires employers who are cited for violating safety and health 
regulations to correct the hazards promptly even if they have appealed 
the citation unless they seek and are granted a stay. In both cases the 
State OSHA program was able to complete the process in a 12-month 
period.
     Improving standard setting is necessary but not 
sufficient. Public employees in 31 States and territories are 
completely exempted from the protections of the OSHAct. While public 
employees in the other 27 States and territories may experience long 
delays, they at least enjoy protections once rules have been adopted. 
The rest have remained out in the regulatory cold for 38 years. This is 
a gap that Congress can and should close.

    5. A bad situation could become worse. Several proposals on 
regulatory process currently before Congress will predictably slow 
OSHA's standard setting process even further. For example, the 
Regulatory Accountability Act will require cost-benefit analysis for 
all conceivable alternative approaches to a proposed new rule, a 
requirement that will grind a slow process to a virtual halt. We need 
to be moving in the other direction. Most OSHA rules adopted before 
1981 were completed with greater speed than is now routine. The rules 
for asbestos, coke oven emissions, arsenic, cotton dust, and lead were 
all adopted within 1 to 4 years. There is simply no evidence that any 
of these was less protective, more burdensome, more costly, less 
effective or less supported by scientific evidence than subsequent 
rules subject to the current procedures. We created barriers based on 
false alarms and the need now is to lower them so that worker 
protection can proceed again without delay. It is no exaggeration to 
say that lives are at stake.
  rulemaking in slow motion: the gao report on osha standard setting 
                documents a broken bureaucratic process
    It is disturbing but not surprising that GAO's central finding in 
its report on OSHA standard setting is that between 1981 and 2010 it 
has taken OSHA an average of 7 years 9 months to adopt a workplace 
safety and health standard. More troubling is that over 25 percent of 
58 rules completed during these years took more than 10 years with 
several being delayed for nearly 20 years.
    And still more distressing is that there have been even longer 
delays for some important rules that didn't make it into the GAO report 
at all because they have yet to be completed. Most notably, workplace 
exposure to silica dust (the basic ingredient in common sand) has been 
known since ancient times to cause chronic, life threatening scarring 
of the lung. OSHA's standard for airborne silica was adopted in 1972, 
grandfathered in from an older consensus standard. Just 2 years later 
NIOSH issued a formal statement declaring OSHA's rule to be inadequate 
and recommending that it be strengthened.\6\ OSHA agreed and started 
rulemaking in 1974 by issuing an Advance Notice of Proposed Rulemaking 
but now 38 years later OSHA has still not been able to publish a 
proposed rule and schedule public hearings.
---------------------------------------------------------------------------
    \6\ National Institute for Occupational Safety and Health. 1974. 
Criteria for a Recommended Standard: Occupational Exposure to 
Crystalline Silica. Washington, DC. DHHS (NIOSH) Publication No. 75-
120.
---------------------------------------------------------------------------
    During this long period the need for a stronger rule has become 
more compelling. The International Agency for Research on Cancer (IARC) 
and the National Toxicology Program (NTP) have both listed silica as a 
known human carcinogen. The Bush administration designated silica as a 
high priority in its Fall 2002 regulatory agenda. A draft proposal was 
reviewed in 2003 by a small business panel under the Small Business 
Regulatory Fairness Enforcement Act (SBREFA). In February 2011 another 
draft and a peer reviewed risk assessment were submitted for OMB review 
under Executive Order 12866. After 4 months of OMB silence Senators 
Harkin and Murray and Representatives Miller and Woolsey wrote to OMB 
Director Jacob Lew expressing frustration with OMB's ``paralysis by 
analysis'' and urging that the proposal move forward for full public 
review. After 6 more months I wrote a letter, in my capacity as Chair 
of NACOSH, to the Secretaries of Labor and HHS expressing distress at 
the extraordinary delay and urging them to enhance their efforts to get 
OMB to finish its review.
    Now, as this hearing proceeds, 4 additional months have gone by and 
the silica proposal still sits handcuffed within OMB. Let's presume a 
best case scenario following this hearing--the OMB handcuffs are 
removed, the proposal is immediately published by OSHA, and the 
rulemaking then continues without further exceptional delay. Given the 
average time of 3 years and 3 months from the publication of a proposed 
rule to final adoption, a new silica rule would not be completed until 
July 2015--41 years after the process started!
               regulatory inertia has deadly consequences
    This record of regulatory stupor is troubling because of ample 
evidence that lost time means lost lives. OSHA's preliminary risk 
estimate was that 60 worker deaths a year would be prevented by 
reducing the silica exposure limit to the level recommended by NIOSH in 
1974. Forty-one years of delay means a lost opportunity to have 
prevented 2,461 deaths.
    Similarly, a significant number of lives and injuries could have 
been prevented by more timely adoption of OSHA's cranes and derricks 
rule that was published in 2010. This began in 2003 with a negotiated 
rulemaking process. During the 6 years before the process began there 
were 512 crane-related fatalities. Unanimous agreement among the 
stakeholders on a new rule was reached in 2004, but extra procedural 
steps delayed adoption until 2010. During the 6-year delay after 
agreement had been reached there were nearly 500 more crane deaths. 
During this period the State of California adopted its own rules for 
certification of crane operators and crane fatalities dropped from 10 
during the 3 years before the California rule to 2 during the 3 years 
after the rule.
       osha rules, once adopted, prevent injuries and save lives
    Additional studies have shown that once adopted and enforced, OSHA 
rules effectively prevent injuries, illnesses and deaths.
    OSHA adopted its Lockout/Tagout rule \7\ in 1989 after 12.7 years 
of rulemaking. Prior to the rule adoption OSHA determined that 
approximately 144 fatalities per year were due to unexpected activation 
of machinery. In 2000 OSHA conducted a look-back review of the first 7 
years of the rule pursuant to the Regulatory Flexibility Act and 
Section 5 of Executive Order 12866. The review found that the rule 
resulted in a 20 percent to 55 percent reduction in fatalities, or the 
prevention of 29 to 79 fatalities per year. If the rulemaking had taken 
half the actual time of 12.7 years this would have meant saving this 
many fatalities in each of 6.35 years, or 184 to 502 fewer fatalities.
---------------------------------------------------------------------------
    \7\ ``Lockout/Tagout (LOTO)'' refers to specific practices and 
procedures to safeguard employees from the unexpected energization or 
startup of machinery and equipment, or the release of hazardous energy 
during service or maintenance activities. According to OSHA compliance 
with the lockout/tagout standard (29 CFR 1910.147) prevents an 
estimated 120 fatalities and 50,000 injuries each year.
---------------------------------------------------------------------------
    Other OSHA rules have been equally effective. Between 1978 when the 
OSHA cotton dust rule was adopted and 2000 when OSHA evaluated its 
impact the rate of byssinosis (or ``white lung'' disease) among textile 
workers dropped from 12 percent to less than 1 percent. Similar 
reductions in injury, illness and death have followed adoption of OSHA 
rules for confined space entry, grain elevator safety, lead exposure, 
and bloodborne pathogen protection.
    Additional evidence comes from the SHARP research unit within the 
Washington State Department of Labor and Industries, which for 20 years 
has been studying the effectiveness of workplace safety regulations. 
For example, after the State OSHA program adopted a new fall protection 
rule for the construction industry SHARP examined injury rates before 
and after construction companies were inspected for compliance with the 
new rule. When companies were cited for failure to comply and were 
required to come into compliance there were subsequent decreases in 
fall related injuries greater than in comparable companies that had no 
inspection.
    Washington's SHARP program has also recently completed a 10-year 
analysis of worker compensation claims in the year following safety and 
health inspections. When companies were cited for failure to comply 
with safety and health rules and were required to come into compliance, 
there was a significant drop in serious injuries over the next year. 
This drop was 20 percent greater than in comparable workplaces that 
were not inspected.\8\
---------------------------------------------------------------------------
    \8\ Foley M, Fan ZJ, Rauser E, Silverstein B. 2011. The Impact of 
DOSH Enforcement and Consultation Visits on Workers' Compensation 
Claims Rates and Costs, 1999-2008. SHARP Technical Report Number: 70-5-
2011. http://www.lni.wa.gov/Safety/Research/Files/OccHealth/
DoshEnforce19992008.pdf.
    This study evaluated changes in the kinds of injuries most closely 
related to the rules that were being enforced. For example, falls and 
amputations were included because they are related to fall protection 
and machine guarding rules. But cumulative musculoskeletal disorders 
like tendinitis were not covered because there is no ergonomics rule 
that covers the risks that cause these injuries.
---------------------------------------------------------------------------
          the gao findings warrant more robust recommendations
    The evidence clearly indicates that finding ways to speed the 
rulemaking process even modestly would have significant positive impact 
on employers, employees and communities. The strength of the GAO study 
is in the detail and analytic depth with which it identified multiple 
causes of regulatory delay and many options for speeding the process. 
It was surprising to find that it offered only a single recommendation 
and disappointing that this recommendation did no more than ask two 
agencies to work closely together, something that has been required by 
the OSHAct since 1971.
    The findings in the report warrant a much more specific and 
substantive set of recommendations such as the following:

    First, OSHA and NIOSH Should Improve Collaboration on Rulemaking:

     OSHA and NIOSH should work together to establish a shared 
priority list for rulemaking. This should be done with substantial 
stakeholder input, similar to the priority process OSHA began in the 
mid-1990s but later abandoned.\9\ It should also be modeled on NIOSH's 
successful process for establishing its National Occupational Research 
Agenda (NORA).
---------------------------------------------------------------------------
    \9\ See OSHA Web site at https://www.osha.gov/pls/oshaweb/
owadisp.show_document?p_
table=NEWS_RELEASES&p_id=1151.
---------------------------------------------------------------------------
     The OSHAct directs NIOSH to develop scientific criteria 
for OSHA rules and to publish such criteria annually. In its early 
years NIOSH developed a substantial number of detailed criteria 
documents with recommendations for new OSHA rules, but OSHA rarely 
acted on these recommendations and NIOSH stopped producing them. NIOSH 
should work with OSHA to develop new criteria documents that will 
provide the kind of details on exposures, risks, technological and 
economic feasibility that OSHA needs to support new rules.
     From 1981-83 NIOSH conducted an on-site survey of 
establishments in general industry to provide national estimates of 
potential exposures to chemical, physical and biological agents 
(National Occupational Exposure Survey or NOES). The survey also 
provided data on management's health and safety practices and policies. 
The NOES, and its predecessor National Occupational Hazard Survey 
(NOHS) from 1972-75, represented the most comprehensive source of data 
on the number of U.S. workers potentially exposed to specific hazards 
and the distribution of these hazards by industry and occupation. OSHA 
and NIOSH should work together on a new national survey that is 
specifically designed to provide information on worker exposures and 
feasible control measures for hazards on the regulatory priority list.

Second, OSHA Should Take Additional Actions:

     OSHA should work more closely with the Environmental 
Protection Agency on rulemaking. OSHA and EPA have similar requirements 
to base rulemaking on scientific assessments that estimate the nature 
and level of risks from exposure to environmental chemicals. EPA's 
Integrated Risk Information System (IRIS) contains information on human 
health effects for more than 540 chemical substances. This information 
could potentially be very useful to OSHA. OSHA and EPA have written 
agreements on cooperation for enforcement activities but not 
rulemaking. They need to adopt formal arrangements to work together on 
risk assessments for rulemaking in a way that is mutually supportive 
and avoids redundancies.
     As noted in the GAO report OSHA's principle method for 
evaluating the feasibility of compliance with proposed new rules is 
extensive on-site evaluations. These are extremely lengthy, labor 
intensive and costly, but it is not clear that they yield information 
substantially superior to that which can be derived from well-designed 
surveys. In Washington State scientifically designed stratified, random 
sample surveys of businesses are routinely used to support safety and 
health rulemaking. These have been found to meet the statutory 
requirements for assessment of small business impact, cost-benefit 
analysis, and technological feasibility determinations. By relying more 
heavily on survey data OSHA could proceed more quickly while still 
meeting the ``best available evidence'' test in the OSHAct. Since, 
according to OSHA, it currently takes at least 1 year for survey 
approval by OMB, as required under the Paperwork Reduction Act, this 
approach will only be fully effective if OMB would agree to expedite 
review for these rulemaking surveys or if Congress were to grant a 
Paperwork Reduction exemption to OSHA for these surveys.
     With a few notable exceptions \10\ OSHA has adopted rules 
for one safety or health hazard at a time. This is like seasoning your 
food one grain of salt at a time. Even if each individual rulemaking 
could be completed more quickly than the current average of 7 years, 
the sheer volume of hazards would render this approach futile. OSHA 
could use its limited rulemaking resources more efficiently by 
concentrating on some rules with broad, general impact. OSHA's current 
regulatory priority of rulemaking for Injury and Illness Prevention 
Programs is an example of this approach and deserves support. Other 
examples would be general rules for exposure assessment, medical 
surveillance and training.
---------------------------------------------------------------------------
    \10\ Successful efforts include rules for process safety 
management, personal protective equipment, and respiratory protection. 
An unsuccessful effort was rulemaking to update all the permissible 
exposure limits, which was rejected by the 11th Circuit Court of 
Appeals.

---------------------------------------------------------------------------
    Third, OMB Should Allow OSHA Proposed Rules to Move Forward:

     One of the steps in rulemaking that has repeatedly 
resulted in long delays is the review of proposed OSHA rules by the OMB 
Office of Information and Regulatory Affairs (OIRA) as required by 
Executive Order 12866. This review covers the need for regulatory 
action, an assessment of potential costs and benefits, the anticipated 
effect on functioning of the economy and private markets, and an 
assessment of possible alternatives to the planned regulation. However, 
the OSHA public hearing process is especially robust, going well beyond 
the requirements of the Administrative Procedure Act and providing an 
open forum in which all issues of concern to OMB are discussed and 
debated on the record. An administrative law judge presides, agency 
officials participate, witnesses deliver testimony and are subject to 
extensive cross-examination, data and documents are introduced and 
discussed, and a formal record is kept. OSHA then makes decisions based 
on the evidence and testimony. If challenged it must be able to prove 
in court that its actions are ``supported by substantial evidence in 
the record considered as a whole.'' Given this openly deliberative 
process the OMB review only slows down the rulemaking without adding 
substantial value. OSHA's process should be considered sufficient to 
warrant relatively cursory review, if not outright exemption, by OIRA.

    Fourth, Congress Should Provide More Direction For Worker 
Protection:

     OSHA attempted to update the PELs for more than 400 
chemicals in a single rulemaking in 1989. The 11th Circuit Court of 
Appeals vacated OSHA's new rule 1992, finding that OSHA failed to 
analyze and provide evidence of significant risk, economic and 
technological feasibility for each of the individual chemicals. This 
decision has proven administratively insurmountable. As a result almost 
all of these PELs remain significantly obsolete and are widely judged 
to be insufficiently protective. Congress should direct OSHA to update 
these PELs by using an expedited process to adopt contemporary 
consensus standards that have received widespread support by reputable 
national or international organizations.
     As noted in the GAO report when statutes or court orders 
require OSHA to undertake rulemaking, the average time to adoption is 4 
years, 7 months or about half as long as other OSHA rules. Congress 
should be more willing to step in when the normal rulemaking process 
fails to act in a timely way to protect workers from significant 
dangers. Congress, for example, should direct OSHA to act where another 
Federal agency, within its own statutory mandate, has recommended that 
OSHA's rules be improved and where OSHA has refused. This would apply, 
for example, to standing recommendations from the U.S. Chemical Safety 
Board regarding the hazards of combustible dust. Congress has done this 
before with good results, including statutory requirements for OSHA to 
strengthen its bloodborne pathogen standard, adopt rules to protect 
workers engaged in hazardous waste operations, and adopt a lead 
standard for the construction industry. In two other recent cases 
important safety and health rules were adopted in Washington State 
following statutory direction. In the first, the 2011 Legislature 
directed the State OSHA program to develop rules protecting health care 
workers from exposure to chemotherapy and other hazardous medications, 
specifying that the rules would be consistent with but would not exceed 
provisions in the 2004 NIOSH Guidelines (as updated in 2010). Also in 
2011 the Washington Legislature ordered rulemaking to require employers 
who have been cited for violation of safety and health regulations to 
correct the hazards promptly even if they have appealed the citation 
unless they seek and are granted a stay until the appeals process is 
completed. In both cases, the Washington Department of Labor and 
Industries was able to complete the process in a 12-month period, 
including informal stakeholder meetings, publication of proposed rules 
and formal public hearings.
     Congress should give flexibility to OSHA to complete 
rulemaking in a more timely fashion without sacrificing quality by 
providing an option for the agency to adopt rules that are technology 
based, with affected industries shouldering the burden of proof to 
demonstrate infeasibility.
                            closing remarks
    In conclusion, successive waves of legislation, executive action 
and case law have created barriers to safety and health rulemaking 
resulting in significant delay with consequences that are demonstrably 
harmful and, in many cases, deadly. While GAO is to be commended for a 
reasonably thorough description of these problems, the report has 
failed to articulate meaningful solutions. Also, by limiting its 
assessment to the years since 1981 the report also has failed to 
identify two important problems that become apparent when assessing the 
full history of OSHA since its establishment in 1971.

     Most of the OSHA rules adopted before 1981 were completed 
with much greater speed than has now become routine. The rules for 
asbestos, vinyl chloride, coke oven emissions, DBCP, inorganic arsenic, 
cotton dust, acrylonitrile, lead, commercial diving, fire protection, 
roof guarding, and electrical systems were all adopted within 1 to 4 
years of initiation. There is simply no evidence that any of these 
rules was less protective, more burdensome, more costly, less effective 
or less supported by scientific evidence than subsequent rules 
experiencing the added procedural steps documented by GAO. This 
historical perspective suggests that we created barriers based on false 
alarms and that there is nothing to be lost by lowering them in the 
interest of worker protection.
     Perhaps the most glaring and indefensible example of 
regulatory delay is a feature of the OSHAct that is more basic than its 
particular provisions on rulemaking. Public employees in 31 States and 
territories are completely exempted from the protections of the OSHAct. 
While public employees in the other 27 States and territories may 
experience long delays, they at least enjoy protections once rules have 
been adopted. The rest have remained out in the regulatory cold for 38 
years--a much more extreme failure than anything reported by GAO. This 
is a gap that Congress can and should close.

    The Chairman. Thank you very much.
    Ms. Rabinowitz, please proceed.

STATEMENT OF RANDY S. RABINOWITZ, DIRECTOR, REGULATORY POLICY, 
                   OMB WATCH, WASHINGTON, DC

    Ms. Rabinowitz. Mr. Chairman, members of the committee, 
thank you very much for the opportunity to testify today on 
delays in OSHA rulemaking. My name is Randy Rabinowitz, 
Director of Regulatory Policy at OMB Watch, an independent, 
nonpartisan organization that promotes open, accountable 
government and health and safety standards that protect people 
and the environment.
    Congress passed the Occupational Safety and Health Act to 
ensure that every working man and woman in the Nation had safe 
and healthful working conditions. Under the act, OSHA cannot 
issue rules unless it has thoroughly researched the impact of 
its rules, shown that the rule would reduce a significant risk 
in the workplace, would reduce that risk at a reasonable and 
affordable cost, relying on technology already in use or in 
development.
    OSHA may do so only after an open and transparent 
rulemaking process in which workers, unions, scientists, small 
and large businesses, and others regularly participate. If 
OSHA's analysis is weak on any of these points, courts will 
strike down its standard.
    In the years since its creation, OSHA's ability to protect 
workers from harm has been undermined by Kafka-esque demands 
for additional reviews of proposed and final rules mandated by 
new statutes and Executive orders. Many of these additional 
analytic requirements overlap with, duplicate, and/or conflict 
with the requirements of the OSHA Act and serve no apparent 
purpose other than to delay and burden the rulemaking process.
    As new analytic requirements have been imposed on OSHA, the 
time needed to complete a rule has increased. GAO has 
calculated that, on average, it takes almost 8 years to 
promulgate a standard. But before all these new added reviews 
were required, it took OSHA just a few months to a few years.
    As we've heard, rules for asbestos, lead, vinyl chloride, 
and arsenic and others were developed far more quickly than 
would be possible today. And each of these standards has made a 
huge difference in the health of workers at costs which studies 
show were substantially below what was estimated at the time 
the rule was established.
    Today it takes OSHA almost a decade to set a standard. Much 
of this delay is caused by the cumulative impact of the various 
regulatory analyses OSHA is required to complete. These 
requirements have crippled OSHA's ability to protect workers in 
a timely fashion.
    We need to update workplace health and safety standards, 
not to bury them. To do so, Congress should limit OMB's ability 
to interfere in rulemaking. It should make certain that OMB 
does not impose a cost-benefit test on OSHA standards when the 
U.S. Supreme Court has ruled that such a test is improper. In 
our view, cost-benefit analysis simply cannot properly value 
what it means to workers of avoiding disabling injuries and 
what it means to their families to avoid having a loved one 
killed too soon.
    Congress should require that OMB review, if any, be based 
on the same rulemaking record that OSHA must rely on, and OMB 
should be required to explain the reasons for any changes it 
makes to a rule. OMB should no longer be able to develop a 
secret record in private, closed-door meetings held mostly with 
industry opponents of regulation.
    Pending regulatory reform proposals would move in the wrong 
direction. Four separate regulatory reform proposals are 
pending in the Senate. They are the Regulatory Accountability 
Act, the Regulations from the Executive in Need of Scrutiny 
Act, the Regulatory Flexibility Improvements Act, and the 
Regulatory Time-Out Act.
    None of the pending regulatory reform proposals would fix 
the OSHA standard-setting process. Each would further delay or 
shut down the process. Passage of these bills would hurt 
workers and make them less safe. They should be rejected.
    Finally, I think it's worth noting that if you look at the 
testimony here this morning, there are several things about 
which there is wide acceptance and which Congress could do that 
would improve the standard-setting process. And some of the 
suggestions I'm about to mention are drawn from the testimony 
of my colleague, Mr. Sarvadi, with whom I rarely agree on these 
matters.
    It is unfortunate that GAO's recommendations on improving 
the standard-setting process are so limited. So I think that 
OSHA should pick a few hazards, devote resources to reducing 
worker exposures, and see these priorities through without 
shifting gears so often.
    OSHA should rely more extensively on comprehensive 
scientific evaluations by EPA or NIOSH. Once one agency of 
government thoroughly evaluates the hazards of a substance, 
other agencies should not have to repeat that analysis. And I 
would note that one of the reasons MSHA has been able to move 
more quickly than OSHA, in addition to knowing the mining 
industry inside out, is that they often follow other agencies 
and rely on their scientific evaluation so they don't have to 
redo the whole scientific analysis.
    OSHA should have better mechanisms to get data voluntarily 
from business about the impacts of its rules. Right now, OSHA 
must wait months for OMB to approve requests for surveys under 
the Paperwork Reduction Act. And Mr. Sarvadi suggests that OSHA 
should consult with business more frequently and earlier in the 
process. One thing that would help improve such a dialog is if 
industry was willing to share with OSHA concrete data that it 
needs for the rulemaking process.
    OSHA spends, in my mind, too much time quantifying risks. 
This is one of the real downsides of OMB's approach. OSHA 
should make sure that a hazard it seeks to regulate poses a 
real risk large enough to warrant government action, but it 
doesn't really matter whether asbestos causes 1,200 
mesotheliomas a year or 1,500. The important point is we know 
asbestos causes cancer, and we know that worker exposure to 
asbestos should be reduced or eliminated.
    And, finally, OSHA should be able to update outdated rules 
where contemporary consensus exists. That would include 
industry consensus standards, negotiating rulemakings, or some 
kind of private dialog between labor and industry where they 
come up with an agreement. We should be able to get a proposal 
out in the public for further debate more quickly than has been 
the case in the past.
    I think all of these things would improve OSHA rulemaking 
and make the workplace more safe for the people who work there 
every day.
    Thank you.
    [The prepared statement of Ms. Rabinowitz follows:]
               Prepared Statement of Randy S. Rabinowitz
                                Summary
    Congress passed the Occupational Safety and Health Act of 1970 (OSH 
Act) to ensure ``every working man and woman in the Nation safe and 
healthful working conditions.'' Under the OSH Act, OSHA cannot issue a 
rule unless the impact of its proposal has been thoroughly researched 
and shown to address significant risks in the workplace at a reasonable 
and affordable cost. And, it may do so only after an open and 
transparent rulemaking process which encourages participation by a 
broad group of stakeholders.
    In the years since its creation, OSHA's charge to protect workers 
from harm has been undermined by Kafka-esque demands for additional 
reviews of proposed and final rules mandated by new statutes and 
Executive orders. Many of these additional analytic requirements 
overlap with, duplicate, and/or conflict with the requirements of the 
OSH Act and serve no apparent purpose other than to delay and burden 
the rulemaking process.
    As new analytic requirements have been imposed on OSHA, the time 
needed to complete a rule has increased. GAO has calculated that, on 
average, it now takes almost 8 years to promulgate an OSHA standard. 
Cumulatively, these requirements have crippled OSHA's ability to set 
new safety and health standards in a timely and responsive fashion.
    We need to update workplace health and safety standards, not bury 
them. To do so, Congress should limit OMB's ability to interfere in 
rulemaking. It should make certain that OMB does not impose a cost-
benefit test on OSHA standards, when the Supreme Court has ruled that 
such a test is improper. Cost-benefit analysis simply cannot properly 
value some of the most important benefits of worker protections. 
Congress should require that OMB review, if any, be based on the 
rulemaking record and OMB should be required to explain the reasons for 
any changes it makes to a rule. Secret meetings by OMB with industry 
opponents of regulation should stop.
    The process for issuing workplace health and safety standards is 
broken and needs to be fixed. We need to update workplace health and 
safety standards, not bury them. Pending regulatory reform proposals 
would move in the wrong direction. Four separate regulatory reform 
proposals are pending in the Senate: the Regulatory Accountability Act 
(S. 1606), the Regulations from the Executive in Need of Scrutiny 
(REINS) Act (S. 299), the Regulatory Flexibility Improvements Act (S. 
1938), and the Regulatory Time-Out Act (S. 1538). None of the pending 
regulatory reform proposals would fix the OSHA standard setting 
process. Rather, each of these proposals is designed to further delay 
or shut down the regulatory process. Passage of these bills would hurt 
workers and make them less safe.
                                 ______
                                 
    Mr. Chairman and members of the committee, thank you for the 
opportunity to testify on delays in standard setting at the 
Occupational Safety and Health Administration (OSHA). My name is Randy 
Rabinowitz, director of Regulatory Policy at OMB Watch, an independent, 
nonpartisan organization that promotes open, accountable government and 
health and safety standards that protect people and the environment. 
OMB Watch has monitored the Office of Management and Budget's (OMB) 
Office of Information and Regulatory Affairs (OIRA), OSHA, and their 
interactions for more than 25 years. We co-chair the Coalition for 
Sensible (CSS), an alliance of more than 75 consumer, small business, 
labor, scientific, research, good government, faith, community, health, 
and environmental organizations joined in the belief that our system of 
regulatory safeguards is essential to maintaining our quality of life 
and building a sustainable economy that works for all. Time constraints 
prevented the coalition from reviewing my testimony in advance, and 
today I speak only on behalf of OMB Watch.
    I am a nationally recognized expert on OSHA standard setting. I 
have served as co-chair of the American Bar Association's (ABA) OSH Law 
Committee; as the editor-in-chief of the ABA's treatise on OSHA Law and 
author of the section on standard-setting; and as an adjunct professor 
teaching OSHA law. I have been lead counsel for labor unions on close 
to a dozen challenges to OSHA rules, and I have worked for or advised 
Congress, OSHA, and other Federal and State health and safety agencies 
on regulatory issues.
   osha's mission has been undermined by too much regulatory analysis
    Congress passed the Occupational Safety and Health Act of 1970 (OSH 
Act) to ensure ``every working man and woman in the Nation safe and 
healthful working conditions.'' \1\ OSHA protects workers by setting 
workplace standards and enforcing those standards through inspections. 
Every year, millions of workers are protected from the hazards posed by 
grain elevator explosions, dangerous equipment, toxic chemicals and 
materials, and dozens of other workplace hazards because of OSHA's 
work.
---------------------------------------------------------------------------
    \1\ 29 U.S.C. Sec. 651(b).
---------------------------------------------------------------------------
    Unfortunately, OSHA's rulemaking process is now so burdened by 
requirements for regulatory analysis that the agency is incapable of 
issuing timely standards to protect workers. New workplace hazards and 
new scientific evidence about the health effects of exposure to a 
variety of toxic chemicals should result in the prompt issuance of new 
OSHA standards, but OSHA is finding it more difficult to respond to 
these threats to workers because the agency is now required to complete 
an ever increasing array of onerous, duplicative, and unreasonable 
regulatory analyses. These analyses require staff time and agency 
resources that would be better spent identifying new threats to 
workers' health and enforcing existing safety standards.
    Protecting worker safety is the clear and overriding goal of the 
OSH Act. The primacy of this objective has been upheld by the U.S. 
Supreme Court. In 1981, the Court ruled that worker safety, not cost-
benefit analysis, should determine whether or not a workplace safety 
standard is warranted. Yet OIRA insists that OSHA conduct time-
consuming, expensive, and duplicative studies of the ``costs to 
industry'' beyond those required by the OSH Act before issuing rules to 
protect the health of American workers. These studies allow OIRA to 
judge OSHA standards against a cost-benefit test the Supreme Court has 
held is improper. This needs to stop. Congress needs to explicitly 
limit OIRA's review powers.
 the processes required to issue rules under the osh act are thorough 
                              and balanced
    Under the OSH Act, before OSHA can issue a new rule or standard, it 
must:

      (1) comprehensively evaluate the nature and extent of the health 
and safety risks to workers;
      (2) determine whether those benefits are significant;
      (3) ensure that the necessary technology exists to comply with 
its rules; and
      (4) assess the economic impact of those rules on (a) industry 
profits, (b) consumer prices, and (c) intra-industry competition.
    In short, OSHA cannot issue a rule unless the impact of its 
proposal has been thoroughly researched and shown to address 
significant risks in the workplace at a reasonable and affordable cost.
    Moreover, the OSHA rulemaking process permits members of the public 
greater opportunities to participate than other regulatory agencies 
that only operate under the Administrative Procedure Act (APA).
    After this careful process, if the health and safety standard is 
challenged in court--and most OSHA standards are challenged--OSHA's 
analyses will be scrutinized more carefully by the courts than rules 
issued by other agencies. If a court rules that OSHA got the analysis 
wrong, the courts can stop the standard from going into effect. Thus, 
the bar for getting a rule implemented is higher at OSHA than for most 
other Federal regulatory agencies because the OSH Act and OSHA's 
internal processes require it.
    In the early days of its existence, it took OSHA from 6 months to 2 
years to develop major rules--even controversial ones that addressed 
asbestos and vinyl chloride hazards. The preambles for both of those 
standards were 5 to 10 pages, and the courts ruled OSHA's analysis was 
adequate. What is more, these standards have been effective in 
protecting workers from harm. Now, with the extra-statutory analyses 
that have been added to this process, it can take over a decade to 
upgrade or issue a new health and safety standard.
analytic requirements added in the past 40 years slow health and safety 
protections unnecessarily, duplicate effort, and waste public resources
    In the years since its creation, OSHA's charge to protect workers 
from harm has been undermined by Kafka-esque demands for additional 
reviews of existing rules mandated by new statutes and Executive 
orders. Many of these additional analytic requirements overlap with, 
duplicate, and/or conflict with the requirements of the OSH Act and 
serve no apparent purpose other than to delay and burden the rulemaking 
process.
    As new analytic requirements have been imposed on OSHA, the time 
needed to complete a rule has increased. GAO has calculated that, on 
average, it now takes almost 8 years to promulgate an OSHA standard. 
Cumulatively, these requirements have crippled OSHA's ability to set 
new safety and health standards in a timely and responsive fashion.
         process reforms that slow health and safety standards
    In 1980, the Paperwork Reduction Act (PRA) created a new office in 
the Office of Management and Budget (OMB), the Office of Information 
and Regulatory Affairs (OIRA), and tasked it with serving as a central 
clearinghouse for all government forms. The PRA was supposed to reduce 
the burden of government paperwork on citizens and non-governmental 
entities. Ironically, centralization and review by OIRA generated new 
paperwork and delays for government agencies as they waited for the 
office to review and approve their requests to collect the information 
necessary to support new standards.
    Shortly after OIRA's creation, President Ronald Reagan issued an 
Executive order requiring rulemaking agencies to submit every 
regulation to OIRA for review and approval, and the office was tasked 
with determining whether the benefits of each rule outweighed its 
costs. Congress has never given OIRA this authority. Since the 1980s, 
the process has slowed so much that several significant OSHA health 
standards were issued after courts or Congress ordered the agency to 
move forward. (For example, it took 6 years and a lawsuit before OSHA 
issued a formaldehyde standard.)
    In 1993, in Executive Order 12866, President Bill Clinton 
established the current regulatory review process, which encourages the 
use of cost-benefit analysis, risk assessment, and performance-based 
standards, and gives OIRA authority to coordinate rulemaking among 
agencies and ensure they align with the President's priorities. 
Agencies must submit drafts of proposed and final ``significant'' \2\ 
rules to OIRA.
---------------------------------------------------------------------------
    \2\ Significant regulatory actions under Executive Order 12866 are 
those: (1) with an annual effect on the economy of $100 million or 
more; (2) inconsistent with a rule or action taken by another agency; 
(3) which would alter budgetary impact of government program or 
recipients of such; or (4) raise novel legal or policy issues. OIRA 
views all OSHA standards as ``significant.''
---------------------------------------------------------------------------
    Under the presidency of George W. Bush, OIRA interfered even more 
aggressively with agency rulemaking activities. With Executive Order 
13272, OIRA imposed rigorous guidelines for cost-benefit analyses, 
including peer review (adding more time to the process) and began 
commenting on agency drafts before they had even been submitted for 
review. The Obama administration has continued this regime of 
regulatory review.
    In addition to the requirements for regulatory analysis imposed by 
Executive Order 12866, between 1976 and 1984, Congress passed a series 
of laws designed to ensure regulations did not unduly burden small 
businesses. These laws added yet another set of analytic requirements 
to rulemaking. An Office of Advocacy was established within the Small 
Business Administration (SBA) in 1977 and was tasked with monitoring 
the impact of regulations on small business. Eventually, the Regulatory 
Flexibility Act (RFA) required all agencies to include an assessment of 
small business impacts as a key part of the rulemaking process and to 
use a ``less burdensome alternative'' if the rule would have 
significant impact on or affect a substantial number of small 
enterprises. By 1980, the law required agencies to solicit the views of 
small entities and the Office of Advocacy and to publish an initial 
and/or final analysis of the impact in the Federal Register or certify 
that the proposed rule would have no impact on small businesses. RFA 
requirements meant an agency would have to not only assess the benefits 
and costs of a new rule on the overall economy and regulated 
industries, but also assess its impact on small businesses. The burdens 
of analysis were growing, increasing the time and resources needed to 
propose new health and safety standards.
    the osh act requires an evaluation of the benefits and costs of 
                             proposed rules
    The original OSH Act requires OSHA to thoroughly examine the costs 
of the rules it imposes. Section 6(b)(5) of the OSH Act requires OSHA 
to determine, before it issues a final rule, that a standard is 
feasible, both technologically and economically. Before it can decide 
whether a standard is feasible, OSHA must make a ``reasonable 
assessment of the likely range of costs and the likely effects of those 
costs'' on each affected industry.\3\
---------------------------------------------------------------------------
    \3\ United Steelworkers of America v. Marshall, 647 F.2d 1189, 1266 
(D.C. Cir. 1980).
---------------------------------------------------------------------------
    OSHA standards protect hundreds of thousands of workers, in 
multiple industries, from harm. Obviously, the more workers and 
industries affected by a safety standard (for example, a sprinkler 
system for fire prevention), the higher the aggregate costs of a rule. 
Recognizing this, the courts have ruled that OSHA should ``examine 
those [aggregate] costs in relation to the financial health of the 
industry and the likely effect of such costs on the unit consumer 
prices.'' \4\ To ensure that it does not place an undue burden on small 
business, OSHA must make sure that its standard does not ``threaten[ ] 
the competitive stability of an industry,'' increase inter- or intra-
industry competition, or create ``undue concentration.'' \5\
---------------------------------------------------------------------------
    \4\ Id. at 1265.
    \5\ Id.
---------------------------------------------------------------------------
oira cost-benefit analysis and risk assessment requirements contradict 
     the osh act and the supreme court's interpretation of the law
    In addition to assessing the economic impact of its standard, OSHA 
must also complete a detailed scientific analysis of the nature and 
extent of the hazards posed to workers. When it can do so, OSHA 
quantifies this risk, but it is not required to do so by law.\6\ 
Sometimes the science is not yet conclusive about the health effects on 
workers; in such cases, the courts have ruled that ``OSHA cannot let 
workers suffer while it awaits the Godot of scientific certainty.'' \7\ 
Instead, OSHA's scientific judgments must be supported ``by a body of 
reputable thought.'' \8\ In fact, after rigorous testing through the 
rulemaking process, OSHA's scientific determinations have been 
overwhelmingly upheld by the courts.
---------------------------------------------------------------------------
    \6\ Industrial Union Dep't. v. American Petroleum Inst., 448 U.S. 
607, 655 (1980); Nat'l Maritime Safety Ass'n. v. OSHA, 649 F.3d 743 
(D.C. Cir. 2011).
    \7\ United Steelworkers of America v. Marshall, 647 F.2d at 1266.
    \8\ Industrial Union Dep't v. American Petroleum Inst., 448 U.S. at 
656.
---------------------------------------------------------------------------
    Significantly, the Supreme Court has weighed in on the use of cost-
benefit analysis in OSHA standard setting. It held:

          Congress itself defined the basic relationship between costs 
        and benefits, by placing the benefit of worker health above all 
        other considerations save those making attainment of this 
        benefit unachievable. Any standard based on a balancing of 
        costs and benefits by the Secretary that strikes a different 
        balance than that struck by Congress would be inconsistent with 
        the command set forth in section 6(b)(5).

          Thus cost-benefit analysis is not required by the statute 
        because feasibility analysis is. \9\
---------------------------------------------------------------------------
    \9\ American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 
(1981) (emphasis added).

    OIRA's demand that an OSHA rule meet a cost-benefit test is 
incompatible with the OSH Act. OIRA should be prohibited from 
evaluating and rejecting OSHA standards on the basis of a cost-benefit 
test. Any analysis by OIRA that uses a different standard than the one 
described above is improper. We believe that cost-benefit analyses 
simply cannot properly value some of the most important benefits of 
worker protections. Without adequate measures of benefits, and with the 
insistence on measuring aggregate and cumulative costs, cost-benefit 
analysis becomes a tool for blocking worker protections. Delaying 
worker protections by using an inherently flawed methodology is 
unjustifiable.
    OIRA should not be permitted to second guess OSHA's scientific 
judgments or to demand scientific certainty before OSHA moves to 
protect workers. OIRA analysts are not qualified to assess the complex 
toxicological, epidemiological, and quantitative judgments OSHA makes 
when it evaluates workplace risks.
the osha rulemaking process is open and participatory; oira reviews are 
     secretive and subject to undue influence by regulated entities
    OSHA rulemaking provides greater opportunity for comment and 
participation than is required by most agencies that operate under the 
Administrative Procedure Act. The procedures mandated by the OSH Act, 
commonly referred to as ``hybrid rulemaking'' procedures, ensure that 
OSHA's scientific, technical, and economic analyses are fully vetted. 
By contrast, OIRA reviews rules away from public scrutiny, in closed 
rooms with representatives of regulated industries. These industries 
typically argue against new rules.
    OSHA usually begins the rulemaking process by publishing a request 
for information and/or advanced notice of proposed rulemaking--in other 
words, public input is sought early in the rule development process. 
For major rules, numerous stakeholder meetings are held in various 
locations around the country. If an OSHA standard will impact small 
business, OSHA is one of two agencies that must establish a special 
panel to get early input from small entities, as required by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA). Once a proposed 
rule is issued, interested parties can submit written comments and 
evidence.
    If any party requests a hearing during rulemaking--and a hearing is 
almost always requested--OSHA must hold one. An administrative law 
judge presides at the hearing. During the public hearing, interested 
parties may present testimony and any participant can cross-examine all 
witnesses. OSHA hearings are often held in several locations across the 
country and can go on for several weeks. Workers, public health 
officials, scientists, small business owners, union representatives, 
and business groups actively participate in these hearings. At the end 
of the hearing, OSHA provides the public with an opportunity to file 
post-hearing comments and post-hearing arguments.
    All of the evidence on which OSHA's proposed rule is based, pre- 
and post-hearing comments, and hearing transcripts are included in a 
public docket. OSHA must base its final decision on information in this 
public rulemaking record. OSHA's explanation for its final rule must be 
supported by substantial evidence in the record.
    By contrast, the OIRA review process is neither transparent nor 
open. Most meetings on proposed rules at OIRA are with industry 
opponents of regulation, not injured workers. Unlike the broad 
participation in OSHA rulemaking, only a select few get to meet with 
OIRA. While OIRA is supposed to make the list of individuals who attend 
such meetings public, it does not disclose what is discussed. While 
OSHA must base its regulatory decisions on the evidence it gathers and 
explain its regulatory choices, OIRA is not required to do so. 
Typically, neither OIRA nor the regulatory agencies disclose the 
changes in agency rules demanded by OIRA.
    We believe the narrow, secretive OIRA review process undermines the 
public participation guarantees in the OSH Act. If OIRA is going to 
have a regulatory review role--and we believe that role should be 
substantially more limited than it currently is--it should be limited 
to reviewing OSHA's record and ensuring that the agency has reasonably 
carried out its statutory duties. OIRA should also have to publish the 
rule changes it demands with a written justification for why it is 
asking for those changes.
      oira delays should not be allowed to bury worker protections
    Executive Order 12866 mandates that OIRA complete its review of any 
proposed rule within 90 days (with a possible extension of another 30 
days). OIRA staff have not been adhering to these deadlines.
    The proposed rule limiting the amount of silica allowed in 
factories and other worksites is an example of the human costs of 
delay. In the decades this rule has been under consideration, thousands 
of workers have died and thousands of others have contracted a 
debilitating lung disease. According to Centers for Disease Control 
statistics, as many as 1.7 million workers are exposed to dangerous 
levels of silica in the workplace each year and researchers estimate 
that 3,600 to 7,300 of them develop silicosis. Approximately 200 
workers die of silicosis each year.\10\ Their illnesses were 
preventable.
---------------------------------------------------------------------------
    \10\ OMB Watch, ``Worker Safety Rule Under Review at OIRA for Over 
a Year: A Tale of Rulemaking Delay,'' Feb. 22, 2012, available at 
http://www.ombwatch.org/node/11984.
---------------------------------------------------------------------------
    In 2003, OSHA completed a preliminary regulatory impact analysis of 
a draft proposed rule on silica and convened small business review 
panels. But, under the Bush administration few worker protections moved 
forward and the silica proposal was scrapped. Early in the Obama 
administration, OSHA revived its effort to reduce worker exposure to 
silica. It revised its regulatory impact analysis and sought peer 
review of its risk assessment. It drafted a proposed rule and sent it 
to OIRA for review in February 2011. OIRA is still reviewing a proposed 
rule, 14 months later (as of today, 430 days, or 310 days past the 
deadline). OIRA has offered no explanation for this delay. By delaying 
publication of this proposal, OIRA has made it impossible to proceed to 
public hearings. Regulatory review should not become a graveyard for 
burying rules.
              the benefits of health and safety standards
    Given the enormous investment of agency resources required to issue 
a standard, OSHA does not initiate the process without strong evidence 
of health risks or dangerous conditions that need to be rectified. Too 
often in the heated business rhetoric of today, this basic fact is 
lost: workplace health and safety regulations save the lives, lungs, 
limbs, and health of American workers.
    Unfortunately, while the costs of lost wages, health care, and 
worker compensation due to exposure to workplace threats can be 
estimated, it is difficult to put a dollar value on the hardship and 
suffering of a family when a father dies on the job or a mother 
develops a chronic disease. Because of this, the benefits of health and 
safety regulations tend to be underestimated.
    Meanwhile, independent analyses of the economic impact of various 
standards demonstrate that industry estimates of the costs of complying 
with new health and safety rules are often exaggerated. The costs of 
compliance rarely turn out to be as high as industry claims. In fact, 
the General Accounting Office (now the Government Accountability 
Office) conducted a retrospective review of the costs of Federal 
regulations on 15 representative companies. It concluded that industry 
representatives have no reliable method of estimating the incremental 
cost of regulation, and Federal agencies have no reliable method of 
verifying industry's cost estimates.\11\
---------------------------------------------------------------------------
    \11\ U.S. Gen. Accounting Office, Regulatory Burden: Measurement 
Challenges and Concerns Raised by Selected Companies, GAO-GDD/97-2, 
Nov. 1996.
---------------------------------------------------------------------------
    Costs of compliance studies also fail to take into account the 
positive role that new standards can play in encouraging innovation and 
the use of new technologies by firms and industries. A 1995 review of 
major OSHA rules by the now defunct Office of Technology Assessment 
found that OSHA almost always overestimated the costs of rules because 
advances in technology were not factored into the analysis: ``the 
actual compliance response that was observed included advanced or 
innovative control measures that had not been emphasized in the 
rulemaking analyses, and the actual cost burden proved to be 
considerably less than what OSHA estimated.'' \12\ By way of example, 
OSHA's cotton dust and vinyl chloride standards were not only less 
costly than predicted, but led to technological innovations that made 
the covered industries more productive.
---------------------------------------------------------------------------
    \12\  U.S. Office of Technology Assessment, Gauging Control 
Technology and Regulatory Impacts in Occupational Safety and Health: An 
Appraisal of OSHA's Analytical Approach, OTA-ENV-635, Sept. 1995.
---------------------------------------------------------------------------
    A comprehensive review of the relationship between industry 
regulations and job growth within those industries conducted by the 
Economic Policy Institute found that most regulations result in modest 
job growth.\13\ Even researchers at the Mercatus Center, a conservative 
regulatory policy center, acknowledged in written comments to House 
Oversight and Government Reform Committee Chair Darrell Issa, and in 
testimony to that committee, that there is little evidence that at a 
macro level, regulations have caused massive job loss in the United 
States.\14\ There is no evidence that occupational safety and health 
regulations issued by OSHA have cost America jobs.
---------------------------------------------------------------------------
    \13\ Isaac Shapiro & John Irons, Regulation, Employment and the 
Economy: Fears of Job Loss are Overblown, Economic Policy Institute 
(2011).
    \14\ Letter from Richard Williams, Ph.D., Dir. of Policy Research, 
Mercatus Ctr, to Darrell Issa, Chairman, H. Comm. on Oversight & Gov't 
Reform (Jan. 5, 2011) (on file with author); Testimony of Jerry Ellig, 
Regulatory Analysis: Understanding Regulation's Effects, before the H. 
Comm. on Oversight & Gov't Reform (Feb. 10, 2011).
---------------------------------------------------------------------------
  pending regulatory reform ``solutions'' would exacerbate delays and 
                undue influence by regulated industries
    Unfortunately, recent regulatory reform proposals would do nothing 
to ensure workers are protected from hazards; instead, they would slow 
or stop the rulemaking process. Four separate regulatory reform 
proposals are pending in the Senate: the Regulatory Accountability Act 
(S. 1606), the Regulations from the Executive in Need of Scrutiny 
(REINS) Act (S. 299), the Regulatory Flexibility Improvements Act (S. 
1938), and the Regulatory Time-Out Act (S. 1538). These bills, and 
others like them, would change the regulatory process in different ways 
but would have the same ultimate result: more delay, fewer standards to 
protect workers, and more illness and injury among exposed workers.
Regulatory Accountability Act (S. 1606)
    The Regulatory Accountability Act (RAA) is a breathtakingly broad 
bill that would fundamentally rewrite the Administrative Procedure Act 
(APA). Currently, there are more than 110 separate procedural 
requirements in the rulemaking process \15\; the RAA would add more 
than 60 new procedural and analytical steps. Commentators have 
estimated that the RAA would add at least 21 to 39 months to the 
rulemaking process for the most important rules, meaning that the 
average OSHA rulemaking would take more than 12 years to complete--
potentially spanning four different presidential administrations.\16\
---------------------------------------------------------------------------
    \15\  See Mark Seidenfeld, A Table of Requirements for Federal 
Administrative Rulemaking, 27 Fla. St. L. Rev. 533 (2000), available at 
http://www.law.fsu.edu/journal/lawreview/downloads/272/Seid.pdf.
    \16\ Testimony of Sidney A. Shapiro, University Distinguished Chair 
of Law, Wake Forest School of Law, at Hearing on H.R. 3010, The 
Regulatory Accountability Act of 2011, before the H. Comm. on the 
Judiciary, 112th Cong. 4 (Oct. 25, 2011) at 6.
---------------------------------------------------------------------------
    OSHA rulemaking already includes a process that gives participants 
many opportunities to present their views and to challenge those with 
opposing views. It does so in an open process. The RAA would supplant 
these proven procedures with a more adversarial process. It would 
mandate cost-benefit analysis, overturning the Supreme Court's ruling 
in the Cotton Dust case. It would require that OSHA always use the 
lowest cost rule, leaving workers with less protection, probably 
nothing more than a dust mask to protect themselves from known 
carcinogens. Further, it authorizes the courts to disrupt the 
rulemaking process before it has been completed. Each of these changes 
would complicate rather than simplify rulemaking, and delay worker 
protections.
Regulations From the Executive in Need of Scrutiny (S. 299)
    The Regulations from the Executive in Need of Scrutiny, or REINS 
Act, would reinsert Congress into the rulemaking process by requiring 
that both houses of Congress approve each major rule, with no 
alterations, within a 70-day window. If either chamber fails to approve 
the rule, it will not take effect and cannot be reconsidered until the 
next congressional session. Given the polarized character of Congress 
today, this law is a recipe for a freeze on new rules.
    Such an affirmative approval requirement would turn the current 
process upside down. Congress already has substantial power to 
influence agency rulemaking: through its oversight power; through the 
appropriations process; and under the Congressional Review Act of 1996. 
There is no reason to require an affirmative vote of Congress before a 
rule takes effect.
    The REINS Act would waste agency resources. For example, it took 
OSHA more than 10 years to publish a standard regulating the operation 
of cranes and derricks at construction sites, even though both industry 
and unions agreed a standard was needed. If the REINS Act became law, 
inaction by Congress would block the rule from going into effect, 
wasting the significant resources OSHA had invested in developing the 
rule.
Regulatory Flexibility Improvements Act (S. 1938)
    The Regulatory Flexibility Improvements Act would expand range of 
rules covered by the Regulatory Flexibility Act to include those that 
have a reasonably foreseeable indirect effect on small businesses; 
establish more onerous requirements for the initial and final 
regulatory flexibility analyses, including an estimate of cumulative 
impacts on small businesses; allow the Chief Counsel for Advocacy of 
the Small Business Administration to issue rules to govern Federal 
agencies' rulemaking procedures; and establish a more onerous 
requirement for the notice that Federal agencies must give the Small 
Business Administration prior to publishing a proposed rule.
    OSHA is already required to analyze the impacts of its standards on 
small business, consult with small business owners and the SBA about 
those impacts, and make changes to its rules where appropriate to 
minimize those impacts. Additional analysis of small business impact 
duplicates the requirements in existing law. Workers in small 
businesses face the same hazards as those in larger business. This bill 
would do little to protect workers in small businesses or to help their 
employers reduce such hazards. Moreover, it concentrates enormous power 
in the hands of one appointed official in the Office of Advocacy, while 
the OSHA hearing process gathers information from a host of small 
business owners from all over the country.
Regulatory Time-Out Act (S. 1538)
    The Regulatory Time-Out Act, which would prohibit agencies from 
issuing most significant regulations for a year, is one of several 
bills which would prohibit new rules. These laws would simply keep 
Federal agencies from carrying out their legally defined missions of 
protecting the health and safety of the American people.
    When Congress passed the OSH Act in 1970, it promised workers that 
OSHA would protect them from workplace hazards. Too many chemicals and 
other hazards remain unregulated. The Environmental Protection Agency 
has listed more than 62,000 chemicals in its Toxic Substance Control 
Act Chemical Substance Inventory, but OSHA regulates worker exposures 
to only 400 of them.\17\ Too many of OSHA's existing standards are 
based on outdated science. They need to be upgraded to reflect current 
scientific and medical research. The current rulemaking process makes 
this impossible.
---------------------------------------------------------------------------
    \17\ Occupational Safety and Health Administration, ``Hazardous and 
Toxic Substances,'' http://www.osha.gov/SLTC/hazardoustoxicsubstances/
index.html (last visited Apr. 16, 2012).
---------------------------------------------------------------------------
       streamlining improvements in health and safety protections
    The process for issuing workplace health and safety standards is 
broken and needs to be fixed. We need to update workplace health and 
safety standards, not bury them. None of the pending regulatory reform 
proposals would fix the OSHA standard setting process. Rather, each of 
these proposals are designed to further delay or shut down the 
regulatory process. Passage of these bills would hurt workers and make 
them less safe.
    Instead of following this low road, Congress should streamline the 
rulemaking process so that standards can move forward in a reasonable 
amount of time, after thoughtful scrutiny of the need for new 
protections and their costs, without unnecessary and duplicative 
reviews and analysis. Congress should limit the role of OIRA and non-
technical experts in standard setting. Only with such reforms will 
workers gain the protections Congress promised them when it passed the 
OSH Act more than 40 years ago.
                                 ______
                                 
      Appendix A: Table of Relevant Statutes and Executive Orders

Administrative Procedure Act (5 U.S.C. Sec. 551 et seq.)

    Passed in 1946

       The Administrative Procedure Act is the bedrock of the 
regulatory process. It offers baseline procedures for both ``formal'' 
(on the record) and ``informal'' (notice-and-comment) rulemaking.

Paperwork Reduction Act (44 U.S.C. Sec. Sec. 3501-3520)

    Passed in 1980, significantly amended in 1986 and 1995

       The Paperwork Reduction Act requires that OSHA, and 
other agencies, obtain approval from the Office of Information and 
Regulatory Affairs (OIRA) for any survey or ``collection of 
information'' designed to help the agency determine the economic impact 
or practical implication of proposed rules. (OIRA was created by the 
Paperwork Reduction Act.)

Regulatory Flexibility Act (5 U.S.C. Sec. Sec. 601-612)

    Passed in 1980

       The Regulatory Flexibility Act requires OSHA, and other 
agencies, to specifically analyze the effect of its regulations on 
small entities. OSHA must publish the reason it is considering 
regulating, a description of the small entities which will be affected, 
a description of the proposed rule's compliance requirements, and a 
list of alternative actions.

Executive Order 12291

    Signed in 1981

       President Reagan's Executive order was the first to 
require rulemaking agencies to submit all regulations to the then-newly 
created OIRA. OIRA was tasked with reviewing and approving rules to 
ensure they met a cost-benefit test. (This Executive order has been 
supplanted by later Executive orders on regulatory review.)

Executive Order 12866

    Signed in 1993

       President Clinton's Executive order restricted OIRA to 
reviewing only ``economically significant'' (those with a $100 million 
economic impact) regulatory actions, as well as those which created 
conflict with another agency's rules; altered the budgetary impact of 
entitlements, grants, user fees, or loan programs; or raised novel 
legal or policy issues. This decreased the number of rules OIRA 
reviewed each year from between 2,000 and 3,000 to between 500 and 700. 
Executive Order 12866 set deadlines for OIRA reviews and established 
standards for agency and OIRA transparency.

Unfunded Mandates Reform Act (2 U.S.C. Sec. Sec. 1532-1538)

    Passed in 1995

       The Unfunded Mandates Reform Act requires OSHA, and 
other agencies, to analyze and minimize the costs a proposed regulation 
would impose on private parties and State and local governments. OSHA, 
and others, must also identify alternative actions and justify the 
reasons for selecting its preferred rule.

Small Business Regulatory Enforcement Fairness Act (110 Stat. 857, 5 
                    U.S.C. Sec. 601 note)

    Passed in 1996

       The Small Business Regulatory Enforcement Fairness Act 
(SBREFA) permits judicial review of OSHA's, and certain other 
agencies', compliance with the Regulatory Flexibility Act. In addition, 
OSHA must now convene an ``advocacy review panel'' of representatives 
of small entities before it can publish a regulatory flexibility act 
analysis. SBREFA also requires OSHA, and certain other agencies, to 
assist small entities with understanding and complying with new and 
existing regulations, and requires that the agency waive some fines for 
noncompliant small entities.

    The Chairman. Thank you, Ms. Rabinowitz.
    And now Mr. Sarvadi. Thank you very much. Please proceed.

STATEMENT OF DAVID G. SARVADI, PARTNER, KELLER AND HECKMAN LLP, 
                         WASHINGTON, DC

    Mr. Sarvadi. Thank you, Mr. Chairman, for the invitation, 
and Ranking Member Enzi for the offer to participate. I'm here 
representing the Chamber of Commerce, which is the lead 
organization in the Coalition for Workplace Safety. You have my 
background and my written statement.
    I want to just mention one experience that I had early on 
in my career. I was asked in the late 1970s to work with a 
small company that was manufacturing materials that were used 
to make dental molds. And the experience there was that they 
had a young person working in the facility who came down with 
acute silicosis, which is a very devastating disease that 
occurs very, very rapidly within months of the initial 
exposure, and it comes from extraordinarily high exposure 
levels.
    And the point I wanted to make about this is that the 
people who were working in that facility, including the 
management, didn't know about the effects of the material and 
were interested and demanded ways to correct the problem so 
they wouldn't be faced with it in the future. And so they hired 
me to come in as an industrial hygienist and look at their 
facility and help them make the improvements.
    I would suggest that in the current situation with regard 
to standard-setting that our problem is more about making sure 
that the agency sets priorities and sticks to its list. My 
experience over the last 35 years in dealing with OSHA 
regulations--and my experience goes back to the lead standard, 
the vinyl chloride standard, and the early benzene standard in 
the 1970s--in submitting the data that Ms. Rabinowitz is 
requesting, we did submit the data, and the industry routinely 
submits data to help OSHA make those assessments.
    The problem with the current system is they don't do that 
until after they issue what's called the risk assessment, the 
draft risk assessment. And that's the first time people really 
get a chance to sit down and talk about what data OSHA is 
relying on and how the data demonstrate either a significant 
risk or a risk for a particular industry.
    And I would strongly recommend--and I've been pushing for 
this for a long time to, unfortunately, deaf ears--to have this 
process opened up to the public. OSHA needs to talk to people 
before they sit down and start writing the rule. They need to 
spend time with us, get the industry experts, the people that 
deal with these things day in and day out, to understand the 
vagaries of the application of the principles of safety that 
they have to face every day.
    The second major point I want to make--and particularly in 
regard to silicosis--is OSHA has all the tools right now to 
eliminate the problem. The general duty clause requires that 
OSHA show that there's a hazard. I don't think anybody would 
disagree that excess exposure to silica dust is a hazard. They 
have to show that there are feasible means of abatement--and we 
heard Mr. Ward describe techniques that can be used to 
eliminate exposure to the dust--and OSHA has to then 
demonstrate that it's recognized in the industry.
    I don't think there's anybody in the construction industry 
that doesn't know that silica can be a significant problem and 
that it can be dealt with. So with that information in hand, 
OSHA is fully empowered, using the general duty clause, to take 
enforcement action against any employer who is not doing those 
things.
    And I know that in the Coalition for Workplace Safety and 
in the companies that I represent, they want OSHA to take that 
kind of step and that kind of action because it creates a level 
playing field. The companies that advance safety and health and 
have comprehensive programs want regulations that clearly 
define what should be done, that create an opportunity for 
everybody to compete on a level playing field, and to make sure 
that the regulations that are adopted make sense in the real 
world.
    I want to make one other point about the discussions with 
OMB. Ms. Rabinowitz suggested that these meetings are conducted 
in private. To my knowledge, they are conducted in a public 
way, that is, there is a public announcement about them. The 
summaries from the meetings, the information that's provided, 
can be made available to the public.
    But it's an important function, because OMB does have the 
responsibility to make sure that OSHA's single-minded focus on 
workplace safety doesn't overrule important but competing 
interests. It's sort of a reality check for the agency, and 
it's an important function.
    The only way the agency can do that, that is, OIRA can do 
that is if they take into account not only what OSHA is saying, 
but if they hear from people who have to deal with these things 
on a day-to-day basis. I've been in these meetings. The last 
meeting I was involved in--there were eight OSHA staff members 
there who heard what we had to say. I think it's an important 
function that OIRA produces or makes--an important function 
they create in order to make sure that the regulations make 
sense and that they fit within an overall regulatory agenda.
    Nevertheless, it's clear that OSHA has a job of 
establishing standards that have a high degree of protection 
for employees and that require employers to provide a safe 
workplace. And the last point I'd want to make about that is 
that employers are the ones and employees are the ones who have 
to implement these standards. OSHA can write them, but if we 
don't have people who voluntarily and enthusiastically 
implement those standards, they won't be nearly as effective.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Sarvadi follows:]
              Prepared Statement of David G. Sarvadi, Esq.
    The U.S. Chamber of Commerce is the world's largest business 
federation, representing the interests of more than 3 million 
businesses of all sizes, sectors, and regions, as well as State and 
local chambers and industry associations. More than 96 percent of the 
Chamber's members are small businesses with 100 or fewer employees, 70 
percent of which have 10 or fewer employees. Yet, virtually all of the 
Nation's largest companies are also active members. We are particularly 
cognizant of the problems of smaller businesses, as well as issues 
facing the business community at large.
    Besides representing a cross-section of the American business 
community in terms of number of employees, the Chamber represents a 
wide management spectrum by type of business and location. Each major 
classification of American business--manufacturing, retailing, 
services, construction, wholesaling, and finance--is represented. Also, 
the Chamber has substantial membership in all 50 States.
    The Chamber's international reach is substantial as well. It 
believes that global interdependence provides an opportunity, not a 
threat. In addition to the U.S. Chamber of Commerce's 115 American 
Chambers of Commerce abroad, an increasing number of members are 
engaged in the export and import of both goods and services and have 
ongoing investment activities. The Chamber favors strengthened 
international competitiveness and opposes artificial U.S. and foreign 
barriers to international business.
    Positions on national issues are developed by a cross-section of 
Chamber members serving on committees, subcommittees, and task forces. 
More than 1,000 business people participate in this process.
                                 ______
                                 
    Chairman Harkin, Ranking Member Enzi, and members of the committee, 
thank you for the opportunity to testify today. My name is David 
Sarvadi. As an attorney, I assist employers in creating and 
administering occupational safety and health programs, complying with 
Occupational Safety and Health Administration regulations and 
standards, and in resolving disputes with OSHA as to the interpretation 
and application of those rules and standards in enforcement cases. 
Prior to practicing law, I managed safety and health programs in 
several companies, including a Fortune 500 company early in my career, 
and in a small construction company later. I am testifying today on 
behalf of the U.S. Chamber of Commerce and participate on its Labor 
Relations Committee and the OSHA Subcommittee.
    I believe I was asked to testify today, because in addition to my 
experience in the field generally, I have been deeply involved in OSHA 
standards development since 1974. In the course of that time I have 
participated in OSHA's rulemakings on more than two dozen standards. On 
behalf of the companies I worked for and the trade associations to 
which they belonged, I wrote comments or participated in the 
development for such standards as the original lead standard, the vinyl 
chloride and benzene standards, and the 1983 Hazard Communication 
Standard (HCS) as well as its 1994 Amendment. In the benzene and HCS 
cases, the comments prepared by the trade association resulted in the 
adoption of a practical provision in the final rule. I also had a 
significant role in shaping the employer community's response to the 
ergonomics standard as it was being developed during the Clinton 
administration.
    Prior to practicing law, I was an industrial hygienist in private 
industry and in consulting. I was certified in the practice from 1978 
until 2010. Much of what I did in that practice is similar to what I do 
today.
    I have practiced in the area of workplace safety and health law for 
more than 20 years at Keller and Heckman LLP. As part of my practice, I 
taught week-long seminars on all of OSHA's general industry standards 
all around the country, covering essentially the same material included 
in OSHA's 30-hour training course. Over the years, I estimate that more 
than 1,000 people participated in those classes. The attendees have 
been mostly the people who had to translate OSHA standards into 
actions, practices, and procedures in their companies, ranging in size 
from employers with fewer than 10 employees to those with hundreds of 
thousands of employees.
    the requirements governing osha's standard setting process were 
 established by congress and reflect important public policy objectives
    Federal Government rulemaking and standard setting has long 
reflected a tension between having uniform standards to curb 
undesirable behavior and retaining the freedom and flexibility 
associated with limited government intrusion into business decisions. 
This tension drove the compromise that underlies the passage of the 
Administrative Procedure Act in 1947 that created a series of 
procedural checks in response to the largest perceived problem: 
unlimited administrative discretion. According to the Attorney 
General's Manual on the Administrative Procedure Act (1947), the 
purposes of the APA are (1) to require agencies to keep the public 
informed of their organization, procedures and rules; (2) to provide 
for public participation in the rulemaking process; (3) to establish 
uniform standards for the conduct of formal rulemaking and 
adjudication; and (4) to define the scope of judicial review. An 
important part of the public participation process is to help educate 
the government about the subject matter and to help craft regulations 
that achieve public policy goals while limiting impediments to 
commerce.
    OSHA's standard setting process, as defined in its statute, is 
intended to achieve each of those aims but with additional requirements 
that reflect the impact of OSHA's standards which can take significant 
time to complete. We are here today to examine whether this has 
negative workplace safety ramifications and whether OSHA's rulemaking 
process should and can be improved.
    To establish a safety standard, OSHA must establish, based on the 
evidence in the official rulemaking record, that current conditions 
pose a significant risk of material harm to workers, that the proposed 
rule would significantly reduce that risk, that the proposed rule is 
technically and economically feasible for each industrial sector and 
activity regulated by the rule and, at least in theory, that the 
proposed rule provides the most cost-effective approach for addressing 
that hazard. We believe those are the appropriate criteria for an OSHA 
safety standard. For health standards dealing solely with toxic 
materials or harmful physical agents, the OSH Act takes a more 
conservative approach. An OSHA health standard must, to the extent 
feasible and within reasonable bounds, reduce workplace exposures to a 
level below that which presents a significant risk of material 
impairment of health or functional capacity to employees.
    As the U.S. Supreme Court recognized in the Benzene case, it is not 
practical, much less feasible to achieve zero risk in any aspect of 
life. The scope of the OSH Act standards must necessarily be limited to 
addressing significant risks of material harm. There is no 
justification for expending resources on a rulemaking or compliance 
efforts in connection with a rule that does not offer a meaningful 
improvement in workplace safety.
    Furthermore, in requiring OSHA to demonstrate that a rule was 
technically and economically feasible, Congress properly determined 
that an agency should not have the authority to effectively regulate an 
entire industrial sector or activity out of existence. As interpreted 
by the courts, OSHA's obligation is to demonstrate either that it has 
satisfied these criteria for each industrial segment or activity that 
would be covered by the standard, or that there is no material 
difference between the sectors or activities for purposes of applying 
the rule. Even so, Congress determined that the protections provided by 
the APA and the OSH Act were inadequate to provide small business with 
a meaningful opportunity to participate in OSHA rulemakings and, for 
that reason, adopted the Small Business Regulatory Enforcement and 
Fairness Act which requires OSHA to conduct small business review 
panels when a proposed regulation is estimated to have a significant 
economic impact on a substantial number of small entities.
    The GAO report which is at the heart of this hearing was requested 
based on an underlying premise that OSHA has not been able to issue 
enough regulations to protect America's workers. And yet, we see that 
workplace fatality, injury, and illness rates have been declining 
steadily during the entire history of OSHA, even the recent period 
which is the focus of the report and is characterized as one with few 
new standards.
    The Chamber recognizes the need for well developed, science and 
data driven safety standards. Such standards can be useful to employers 
in providing information and clarity about hazards and the proper 
approaches to controlling them. However, standards should not be issued 
merely for the sake of putting more rules on the books, where the 
hazards they seek to control are not well understood or the controls 
are unproven, or to establish new ways to control the workplace and 
issue more citations against employers.
    A guiding principle to bear in mind is that improving standard 
setting does not require OSHA to take short cuts. The steps required in 
the standard setting process are vital to achieving important public 
policy objectives. These steps must not be curtailed as to do so would 
make OSHA's standards less effective and more impractical by reducing 
valuable information from the public. Rather, the process must be 
streamlined so that OSHA can accomplish each step in the standard 
setting process more efficiently.
                            recommendations
    We believe that OSHA can improve its performance in setting 
standards. While the task is not easy, there are several things OSHA 
can do to affirmatively improve the process.

     Ensure That OSHA Standards Writers Have Practical, Hands-
On Experience With The Hazards To Be Addressed and Involve Interested 
Parties More Substantially In The Standard Development Process Earlier.

    We all recognize that funding constraints limit OSHA's ability to 
develop information on its own. The process that is contemplated by 
OSHA standard setting provides an opportunity for the agency to educate 
itself fully on the matter about which it proposes to regulate. One way 
to do this is to maintain a continuous dialogue among trade 
associations, who are often involved as standards setting 
organizations, other professional associations, and members of 
industry. The Chamber has always been open to a productive dialogue 
about occupational safety and health issues. It has been at the 
forefront of debates over numerous standards, reflecting our members' 
concerns about the practical problems they face in managing safety and 
health programs and improving workplace safety practices. The Chamber 
now co-chairs, the Coalition for Workplace Safety, that has been active 
in representing a broad array of employer concerns on OSHA regulatory 
and legislative matters.
    Too often there is a perception that OSHA is determined to pursue a 
new standard regardless of how it will impact employers or whether it 
is justified. When employers raise concerns, these are dismissed as not 
being consistent with protecting employees, instead of constructive 
input into the process. In reality, both OSHA and the employers who are 
subject to its regulations are interested in improving workplace 
safety. OSHA would do well to view comments in this light and take 
these comments seriously rather than just looking for ways to dispose 
of them.
    OSHA has previously recognized the need for its compliance 
personnel to be knowledgeable about the industrial operations they are 
inspecting and the application of OSHA standards to those operations. 
We believe the same considerations are even more significant when one 
person or a small group of people are writing a standard that will 
apply to 60 million workers at 5 to 8 million worksites across the 
United States.
    One way to foster a more cooperative relationship would be for OSHA 
staff to participate in the professional societies and associations 
where people who actually have to implement OSHA's directives meet to 
discuss common problems. In all my years in the Washington area, I saw 
fewer than five OSHA headquarters professionals at local industrial 
hygiene or professional safety meetings. The result is a professional 
isolation that prevents the staff from learning about the practical 
problems, and more importantly the successes of the regulatory program.
    To facilitate that, I believe OSHA staff, including specifically 
those who are tasked with writing standards, should be expected as a 
matter of professional development to participate in such groups. The 
government should fund that participation, as it is critical to 
effective public policy implementation.
    Similarly, OSHA should not be conducting any part of the standards 
development process in secret. The procedure now is for the agency to 
issue requests for information and advance notices of rulemaking to 
collect information when the agency thinks there is a need for these 
extra steps. Then it works with contractors to develop the standard, 
risk assessments, and economic and technical feasibility analyses 
behind closed doors. The first time the public sees the results of 
these efforts is after the decisions have begun to set in concrete, 
generally at the panels conducted under the Small Business Regulatory 
Enforcement and Fairness Act (SBREFA) if OSHA decides it must conduct 
such a review and does not have a colorable argument for avoiding it. 
Even though this is before a regulation gets proposed, that is far too 
late. And too often, OSHA finds a reason to not conduct these reviews 
which means the first time anyone can see what they have in mind is the 
publication of the actual proposed rule and the supporting materials. 
Again, if OSHA regarded employer input as part of helping it develop a 
sound path forward, rather than objections to be overcome, the pre-
proposal period could benefit OSHA's ultimate approach. OSHA should be 
encouraged, even required to have regular and frequent contact, both 
formally and informally, with interested parties. OSHA should request 
the meetings and not wait until interested parties do. And the peer 
review panels should conduct all their business in the open, similar to 
the process that EPA follows with reviews of their preliminary risk 
assessments.
    Failure to open up the process and to get OSHA staff engaged on an 
individual level can produce anachronistic results and employer 
resentment of OSHA as the industry is subjected to standards with 
little relevance to the ``real world.''

     Do Not Make ``Perfect'' The Enemy Of The ``Good.''

    In my view, OSHA has not been willing to do a good job, and come 
back later should it decide more needs to be done or after experience 
has shown the need for refinements. For that reason, standard 
development at OSHA takes decades. Often, the final standard is delayed 
because OSHA does not want to be accused--unfairly in my view--of 
overlooking something. But these programs and processes depend on 
people and people are imperfect. OSHA needs to be able to leave out the 
issues that take more time to resolve. Admitting more information is 
needed is not a failure, but waiting until all possible questions have 
been resolved can be a failure if it impedes moving forward with 
something that would be more practical and largely beneficial.
    An excellent example of this problem is OSHA's confined spaces 
standard that was introduced in 1975. The final rule was issued in 
1993--18 years later. Most of the provisions of that standard were in 
common practice in many industries and by many employers. OSHA excluded 
the construction industry from the scope of that rule, was sued by 
organized labor for that approach and agreed to quickly proceed with a 
rule for construction. That rule is pending and may be issued this 
year. Part of the reason it took so long to complete the general 
industry rule was OSHA's excessive preoccupation with the fine details 
of an entry. Almost 20 years later, the central problems remain the 
same--the failure to recognize a space to be a hazardous confined 
space, the failure to understand the potential hazards of the space, 
and the human tendency to rapidly respond when someone has collapsed in 
a space under the assumption that the person had a heart attack or 
fainted rather than recognizing the person was overcome by a hazardous 
atmosphere that will have the same effect on the rescuer.
    Part of the reason it took so long to complete was in the details: 
when does an ``entry'' occur, for example. Most people in the 
industries that had such spaces knew when those procedures were 
required. Similarly, the Lockout/Tagout Standard took 12 years (1977-
89). There are many other examples.
    A more recent example is the revisions to the Hazard Communication 
Standard (HCS) to align it with the Globally Harmonized System of 
Classification and Labeling of Chemicals (GHS). Initially contemplated 
in 2002, OSHA finally issued an Advance Notice of Proposed Rulemaking 
regarding GHS on September 12, 2006. On September 30, 2009, 3 years 
later, a proposed rule was issued. OSHA then held public hearings for 6 
months and the record was closed on June 1, 2010.
    Unfortunately, the proposed rule went beyond the concept that had 
been envisioned and supported by both political parties and employers. 
It included two provisions that were controversial and likely made the 
rule harder to finalize: unclassified hazards (now call Hazards Not 
Otherwise Classified) and coverage of combustible dust. Combustible 
dust is a complicated, multi-factorial hazard which has not been 
previously regulated by OSHA's HCS. As there is no OSHA developed 
definition for combustible dust, OSHA was unable to provide a 
definition of combustible dust thereby leaving the regulation unclear 
and unexplained. OSHA's need to shoehorn combustible dust into the HCS 
regulation likely delayed the promulgation of the HCS regulation 
unnecessarily by almost 2 years, and more importantly, has created 
employer anxiety and uncertainty. I believe that some in OSHA 
management saw the GHS proposal as a shortcut way to incorporate a 
combustible dust standard. Unfortunately, the complex issues of how to 
define when the hazard exists and what should be done to mitigate a 
hazard that has varying degrees of severity--requiring less activity 
when risks are low--have now been left to the enforcement process. That 
is a recipe for litigation.

     Increase Reliance On Established Science, And Real World 
Observations, Rather Than Seeking Out That Information Which Confirms 
The Agency's Preconceived Hypothesis.

    My experience has been that OSHA tends to rely on information that 
supports a preconceived idea, seeking that which will bolster its 
position on a given topic. In many of the risk assessments, OSHA 
credits studies that support its conclusions, while discounting studies 
that do not. The hexavalent chromium standard is an example. The 
discussion of the risk assessment contains long, technical commentary 
and summaries of studies, but in the end, OSHA could only conclude that 
even at the lowest level of proposed exposure limits, some risk 
remained. We all balance risks and rewards in our lives, and know from 
long experience that low probability risks deserve less attention and 
mitigation than those of more immediate concern. OSHA pays lip service 
to the Supreme Court's decision in the Benzene case about only 
regulating when it can show significant risk, but in reality the risk 
assessment OSHA uses, like many agencies, imposes assumptions that 
magnify the risk. That leads to conclusions such as in the chromium 
standard, where even at levels of exposure that are difficult to 
measure, employers are still required to mitigate the risk.
    Another example is the silica standard. Industry made it clear that 
it was willing to accept a reasonable comprehensive silica standard 
based on the existing permissible exposure limit (PEL), 20 years ago. 
Instead, based on highly conservative modeling, OSHA insisted that it 
needed to reduce the PEL. In 2003 OSHA conducted a SBREFA review of its 
draft silica standard. At that time, industry pointed out that, based 
on NIOSH data, the incidence of silicosis had decreased dramatically, 
that the cost of compliance with the proposed rule would be billions of 
dollars per year and that it was impractical to treat a material that 
made up 12 percent of the earth's crust, covered the beaches from Maine 
to Florida, was naturally found in soil and in virtually all building 
materials under the same scheme governing asbestos. The SBREFA panel--
including representatives of OSHA, OMB and SBA--recommended that OSHA 
go back to the drawing board on that initiative. Based on the status of 
the rule at OMB, it appears that OSHA largely ignored that panel 
report.
    Assuming that the only acceptable level of risk is zero risk at 
zero exposure forces OSHA to lower and lower acceptable exposure 
levels, which in turn increases costs not only financially but in the 
additional time and management attention that restrictive rules 
require. This also makes finalizing such regulations increasingly 
difficult as justifying such increased compliance costs creates 
additional political difficulties. With silica, it cannot be that the 
only acceptable risk level is zero. Silica is ubiquitous, and we are 
exposed to it throughout our entire existence at some level. If OSHA 
accepts what some propose, every construction site in the country will 
become a regulated area, and many non-construction manufacturing 
facilities will as well. Lung cancer is the signal risk most would seek 
to reduce with the standard. Yet, we attribute the bulk of U.S. lung 
cancer experience to tobacco, leaving little room for the conclusion 
that exposure to crystalline silica is causing large numbers of cases 
of lung cancer to occur. Indeed, incidences of silica related lung 
disease have been declining steadily.
    Too many in the occupational health field are blinded by the 
passion they bring to the work, and push OSHA to ignore inconsistent 
observations like this and pursue unrealistic targets. The remedy is a 
culture change at OSHA, an acceptance to do what is achievable and 
widely supported rather than push the envelope beyond practicality.

     Take Into Account Advice Provided By OMB.

    OSHA tends to act as an advocate for the employee representatives, 
and to develop standards from that perspective. However, it can often 
lose sight of the fact that there are competing interests at play and 
that a proposed standard may have unforeseen effects when viewed from 
only one perspective. OSHA can become so entrenched in its position 
that the employer community, on whom the obligation and burden of 
compliance will fall, often feels that it has no voice before the 
agency. For that reason, many employers seek to share their views with 
the Office of Management and Budget's Office of Information and 
Regulatory Affairs when OSHA's final rules, and even some proposed 
rules, are reviewed under various Executive Orders and statutes. OIRA's 
role is to assess the overall burden of a new standard and ensure 
regulatory consistency between different Federal agencies and adherence 
with rulemaking requirements like the Regulatory Flexibility Act. OIRA 
can be of assistance to OSHA in pointing out competing interests of 
other agencies and emphasizing the importance of industry views.
    OIRA can sometimes soften the hard edge of OSHA's standards, and 
keep OSHA from adopting standards that impose unnecessary requirements 
when simpler or equally effective means will do. OSHA also sometimes 
glosses over economic and technical feasibility requirements, leaving 
the employer community no place to go to be heard. If OSHA were really 
listening, employers would not have to seek assistance from OIRA.
    An example of the lack of rigor in OSHA's economic assessments is 
the recently adopted GHS revisions to the HCS. OSHA's estimates of the 
time to train employees on the standard were woefully inadequate. They 
estimated that employers were already training people on a periodic 
basis on HCS issues, and that the incremental time spent training on 
the GHS standards would be 60 minutes for most employees and 30 minutes 
for employees with minimal contact with hazardous chemicals. In my 
experience, the training will take longer, because the classification 
scheme will make some chemicals seem more hazardous. Many more 
chemicals will bear a skull and crossbones; some chemicals not 
previously deemed hazardous will now be treated as hazardous. A natural 
reaction to that change will be questions up and down the chain of 
distribution as to whether anything has changed. The answer is the 
classification changed, but the chemical did not, which will lead to 
discussions of what the classifications mean and how they compare to 
prior classifications.
    Another example of OSHA's inadequate economic analysis, and OIRA's 
involvement, was the ill-fated MSD column proposal under the OSHA 
recordkeeping standard. OSHA estimated it would take 15 minutes to 
train supervisors on how the change would be implemented. In a meeting 
with OMB, I explained that this was unrealistic, because as part of its 
proposal, OSHA was abandoning an interpretation that allowed an 
employer to let an employee avoid activity that could aggravate 
muscular fatigue or minor discomfort without triggering a recordable 
case under the rules regarding transfer or change of jobs. The result 
would be that the number of incidences an employer would have to review 
to determine recordability would explode. I estimated it would take a 
retail store operator at least an hour of training of the store manager 
and assistant managers, who would be responsible for making these 
decisions. For an employer with 1,500 stores, the time involved would 
cost an estimate $400,000 or more. There are 7 million workplaces in 
the U.S., and assuredly, not all would have such a cost associated with 
it. But it would not be the minimalist and dismissive cost OSHA 
predicted. In January 2011, OSHA withdrew this regulation from review 
by OIRA claiming that it needed more input from small businesses. We 
think problems like this explain the difficulty OSHA had finalizing 
this regulation and why it is now on the long-term action list.

     Accept The Results Of Negotiated Rulemaking.

    OSHA has tried negotiated rulemaking, but the results have been 
mixed at best. Negotiated rulemaking is a process by which a proposed 
rule is developed by a committee comprised of members who represent the 
interests that will be significantly affected by the rule. The goal of 
the negotiated rulemaking process is to develop a proposed rule that 
represents a consensus of all the interests. When parties agree, absent 
a major legal impediment, OSHA should not question their judgment.
    One example of OSHA's insistence on imposing its judgment over the 
people who work in the industry is the Cranes and Derricks standard 
promulgated in 2010. In 1971 OSHA issued the original C&D standard 
based largely on industry consensus standards. In the intervening 
decades those industry standards were updated leading, ultimately, to a 
request by the industry that OSHA update its standard. In response, 
OSHA's Advisory Committee for Construction Safety and Health 
established a workgroup to recommend changes to the C&D standard. The 
workgroup developed recommendations on some issues and, in particular, 
recommended that OSHA use a negotiated rulemaking process as the 
mechanism to update the C&D standard.
    In 2002 OSHA announced plans to use negotiated rulemaking to update 
the C&D standard, and organized a committee, including representatives 
from the agency, from industry, and from other interested parties. The 
rules of the committee provided that no consensus could be achieved if 
OSHA dissented. As acknowledged by OSHA, the members had vast and 
varied experience in cranes and derricks in construction, which gave 
them a wealth of knowledge in the causes of accidents and other safety 
issues involving such equipment. The members used this knowledge to 
identify issues that required particular attention and to devise 
regulatory language that would address the causes of such accidents.
    At its final meeting in 2004 the committee reached consensus 
agreement on all issues. OSHA then proceeded to issue a proposed rule 
modifying the C&D standard. However, OSHA identified several problems 
in the committee's report such as provisions that appeared inconsistent 
with the committee's purpose, or that were worded in a manner that 
required clarification, causing OSHA's proposal to deviate from the 
committee's report. The standard finally was issued on August 9, 2010. 
Whether the extra time was worth the effort is a matter of debate.
    A similar situation arose in regard to steel erection standards. 
After 6 years of trying to revise the standards applicable to steel 
erection, OSHA established the Steel Erection Negotiated Rulemaking 
Advisory Committee in May 1994. Members of the committee included 
representatives from labor, industry, public interest and government 
agencies. OSHA served as a member of the committee, representing the 
Agency's interests.
    Eighteen months of negotiations followed. Detailed reports were 
prepared and the committee met 11 times to debate the reports, hear 
submissions from interested parties, and negotiate to find common 
ground on regulatory issues. In December 1995 the committee put forth a 
proposed revision of the regulation. OSHA then drafted a preamble and 
Preliminary Economic Analysis for the proposed rule, but it was not 
until August 1998 that OSHA issued a notice of proposed rulemaking. In 
response, OSHA received 367 submissions. In response to the Notice of 
Hearing contained in the NPRM, OSHA received 55 responses. Following 
the December 1998 hearing a post-hearing comment period was 
established. Participants were allowed to submit additional data and 
information, briefs, arguments and summations. In December 1999 OSHA 
presented the committee with the Agency's draft final rule, seeking 
comments and feedback. On January 18, 2001 a final regulation was 
published.
    Currently, OSHA has the opportunity to move quickly on changes to 
the beryllium standard. Having first issued a Request for Information 
regarding beryllium in 2002, the process stalled in 2010. OSHA has 
classified a beryllium standard as a ``long-term'' action unlikely to 
be addressed soon. In February of this year, the leading U.S. supplier 
of beryllium, Materion Brush Inc., teamed up with the United 
Steelworkers and two other unions that represent beryllium workers and 
proposed a standard to OSHA that would sharply limit airborne beryllium 
exposure in the workplace. The standard would cut the occupational 
exposure limit for beryllium by 90 percent and require feasible 
engineering controls in any operation which generates any beryllium 
dust or fume, even those which meet the exposure limit. The proposal 
details new Permissible Exposure Limits, engineering controls, personal 
protective equipment, monitoring and assessment, hygiene, housekeeping 
and medical surveillance and training requirements. Because the 
proposal contains ready-to-use language approved both by industry and 
by labor, OSHA could expedite the rulemaking procedure by simply 
proposing it. Given that the members of the industry think the proposed 
standard's provisions are appropriate, technical and economic 
feasibility should not be an issue, and the key parties have agreed 
that it mitigates an unreasonable risk in that industry. What else does 
OSHA need?

     Recognize That OSHA Standards Are More Effective The More 
People Volunteer To Adopt Them.

    To no one's surprise, OSHA's Voluntary Protection Programs (VPP) 
achieve more success in terms of reducing injuries, illnesses, 
fatalities, and costs, than do its mandated standards. Implemented in 
1982, the VPP was designed to encourage collegial relationships between 
labor, management, unions, and government with the goal, ultimately, of 
improving safety and health in the workplace. By engaging in OSHA's 
challenging application process, employers see a decrease in their lost 
workday injuries, injury and illness rates, and workers' compensation 
costs.
    For example, the Washington State SHARP program recently issued a 
report in which they found that employers that participated in the 
voluntary consultation program had better outcomes compared to 
employers who were inspected by California OSHA inspectors. Some people 
think we should ignore this because this group is self-selected. I 
think the right answer is to get more people to self-select.
    We all know intuitively that it is easier to get people to do 
something if they see the benefit and it makes sense to them. Getting 
people to volunteer to adopt programs and policies that go beyond 
OSHA's standards offers the opportunity to increase the benefits of 
safety and health programs at much lower cost. In addition, we all also 
know that when we are forced to do something, we are less enthusiastic 
and less effective. That is why the VPP program should not be a model 
for a mandatory standard as we will not see the benefit of the forced 
adoption of the programs. Instead we could invest more in the VPP 
program to encourage more employers to join, and thereby multiply the 
effect of the money spent.
    OSHA should refrain from the following:

     Stop Spending Time On Pet Projects And Take Into Account 
The Evidence Presented.

    OSHA's tendency is to act even when it has no evidence of a 
corresponding improvement in safety. Such is the case with OSHA's fall 
protection standard. The fall protection standard was promulgated in 
1994 and has undergone no substantive changes since then. If the 
standard was substantially effective in improving workplace safety and 
health, we should expect to see that reflected in the Bureau of Labor 
Statistics Census of Fatal Occupational Injuries. Unfortunately, that 
is not the case. Rather, workplace fatalities from falls over the past 
18 years have remained more or less constant. In 1994, approximately 
600 deaths resulted from falls, while preliminary numbers for 2010, the 
most recent year for which data is available, show 635 fatal falls. The 
numbers increased during the building boom between 1997 and 2007, so 
the absolute numbers may be misleading. We did not have the numbers of 
employees in the affected industry to calculate rates, but what is 
important is that the impact of OSHA's emphasis on fall protection may 
not have had the intended effect. Could it be that OSHA is focused on 
the wrong causal relationship--the lack of personal fall protection or 
guardrails is not the cause of the deaths? It seems a good question to 
ask and to answer before imposing another enforcement policy.

     Refrain From Regulating Through Interpretations.

    Perhaps as a way to get around the rulemaking process, OSHA tends 
to try to make changes in its rules via ``re-interpretations'' and 
enforcement rather than following the statutorily required rulemaking 
procedures. Agencies are making changes to existing rules, which have 
significant economic consequences and impose significant compliance 
costs without giving the public adequate notice, or informing them of 
the unintended consequences of the changes. OSHA should make a diligent 
effort to get away from the paradigm described in the following excerpt 
from the a frequently quoted 2000 opinion issued by the D.C. Circuit 
\1\ because, as long as OSHA continues down that path, industry will be 
understandably reluctant to support the agency's rulemaking efforts:
---------------------------------------------------------------------------
    \1\ Appalachian Power Company v. Environmental Protection Agency, 
208 F.3d 1015, 1020 (D.C. Cir. 2000).

          The phenomenon we see in this case is familiar. Congress 
        passes a broadly worded statute. The agency follows with 
        regulations containing broad language, open-ended phrases, 
        ambiguous standards and the like. Then as years pass, the 
        agency issues circulars or guidance or memoranda, explaining, 
        interpreting, defining and often expanding the commands in the 
        regulations. One guidance document may yield another and then 
        another and so on. Several words in a regulation may spawn 
        hundreds of pages of text as the agency offers more and more 
        detail regarding what its regulations demand of regulated 
        entities. Law is made, without notice and comment, without 
        public participation, and without publication in the Federal 
        Register or the Code of Federal Regulations. With the advent of 
        the Internet, the agency does not need these official 
        publications to ensure widespread circulation; it can inform 
        those affected simply by posting its new guidance or memoranda 
        or policy statement on its web site. An agency operating in 
        this way gains a large advantage. ``It can issue or amend its 
        real rules, i.e., its interpretative rules and policy 
        statements, quickly and inexpensively without following any 
        statutorily prescribed procedures.'' Richard J. Pierce, Jr., 
        Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L.REV. 59, 
        85 (1995). [footnote omitted] The agency may also think there 
        is another advantage--immunizing its lawmaking from judicial 
---------------------------------------------------------------------------
        review.

    A clear example of this approach was the unilateral ``re-
interpretation'' of the term ``feasibility'' under the OSHA noise 
standard that OSHA announced and then was forced to withdraw in 
response to the strong adverse reaction from the Congress and the 
business community. As with many occupational hazards, there are many 
ways to protect employees from noise. Based on dogma, OSHA has a long-
stated preference for engineering controls, as opposed to personal 
protective equipment. Since 1983, OSHA has interpreted its regulation 
to require employers to install engineering controls when noise levels 
are extraordinarily high, and to allow use of a hearing conservation 
program using periodic testing of employees hearing and ear muffs and 
plugs below a certain level. While there have been proponents of 
changing this policy for many years, the scientific data on whether 
such programs work and what makes them successful has been missing; 
meanwhile, technology has changed. We now have noise-cancelling ear 
muffs, and better ear plugs. We have the capability to test the 
effectiveness of each individual's hearing protection to make sure that 
the reduction in noise levels is sufficient based on current knowledge. 
And we surely have the techniques to determine if the use of such 
programs over the last nearly 30 years has been effective. All we have 
to do is look.
    Yet OSHA did not take any of this into account when it announced 
that feasibility under the noise standard would now mean only if 
implementing an engineering or administrative control would put the 
employer out of business would it be considered infeasible. This would 
have required that employers spend excessive amounts of money on 
engineering and administrative controls without regard to whether they 
were sufficiently effective to eliminate the need for ear muffs and 
plugs and all the other aspects of hearing conservation programs. OSHA 
would have required employers, who already have hearing protection 
programs in place, all over the country to spend resources without 
considering whether the people whom OSHA claims it is protecting would 
receive any benefit. One estimate put the figure at over $1 billion for 
one large company meaning that the overall cost for all employers that 
would be covered would have been astronomical. OSHA did absolutely no 
analysis to determine the impact or whether spending these amounts 
would produce better outcomes. Since this was a mere interpretation, 
the agency was not required to satisfy any of the normal feasibility or 
economic analyses that are part of rulemaking. Thankfully, this created 
such an outcry from many sources that OSHA was forced to withdraw the 
proposed reinterpretation.
    Similarly OSHA has been using enforcement to advance positions that 
should otherwise be done through rulemaking. Just last month, a memo 
went out to the regional administrators instructing them on what 
constitutes violations of OSHA's protections for whistleblowers. Among 
the scenarios was one that now means an employer with a safety 
incentive program, such as rewarding employees for remaining injury 
free for a period of time, will be considered in violation of the 
whistleblower protections. Nowhere does OSHA say that such programs are 
not allowed, but under the guise of a memo to the field, OSHA has now 
implemented a policy with enforcement consequences for any employer who 
uses an incentive program.
                               conclusion
    Despite these criticisms of how OSHA operates, employers and the 
agency are seeking the same goal: safer workplaces. OSHA standards 
clearly have benefits and can help employers understand hazards and 
appropriate approaches to mitigating them. However, more standards is 
not always the answer to safer workplaces, and unless standards are 
done with proper adherence to key procedural steps and sensitivity to 
concerns from those who will have to implement them, there can be 
significant unintended consequences. To the extent that OSHA believes 
it needs to expedite its rulemaking process, the solution is not fewer 
steps but using more of the available expertise and interest in 
particular safety issues.
    Thank you for your time today and I look forward to responding to 
your questions.

    The Chairman. Thank you very much, Mr. Sarvadi.
    Thank you all, and we'll begin a round of 5-minute 
questions here.
    I must admit that I was not fully aware of all of the 
problems with OMB and OIRA and how they were operating. And I 
think this aspect of it, at least from what I heard from three 
of you here, should be an area that maybe we ought to really 
look at and see if there's some way of streamlining that--the 
ability of OMB.
    Now, Ms. Rabinowitz, I think you stated that you thought 
that maybe Congress needs to legislatively--or do something to 
limit how long or what OIRA can do.
    I think, Mr. Sarvadi, you suggested that they--correct me 
if I'm wrong--be more open, get more people in, and act 
expeditiously, something like that. That's my own language.
    Mr. Sarvadi. Yes. I'm suggesting that OSHA should get more 
people in earlier and act more expeditiously. OMB's review 
typically is 90 days at most, and it really doesn't add to the 
length of time it takes to get these standards through.
    The Chairman. Well, now we're hearing about OMB holding 
things up for years. We've got one now that says the silica 
thing has been there since--it's been there for 14 months now--
at least from what I've heard.
    Dr. Silverstein, do you have any response to that? I mean, 
it seems to me OIRA and OMB is kind of doing again what OSHA 
already did in the first place, so you're duplicating it. I 
don't know. Am I wrong on that?
    Ms. Rabinowitz. I think there are three things that it 
would be very worthwhile for Congress to consider. OMB 
discloses who it meets with, but these are oral meetings. It 
does not disclose what is discussed at those meetings on the 
public record so that people have an opportunity to rebut it. 
And that would be very helpful and make the process more 
transparent.
    Second, the agency sends a rule to OMB. OMB may insist on 
certain changes during its review process, and then the rule is 
published in the Federal Register. There is no disclosure of 
what that give and take between the two is, what changes were 
made at the behest of OMB, and what the nature of those changes 
were. Disclosure of the changes that OMB insists on would be 
very helpful.
    And I think equally as important, the way this process, 
this rulemaking process, works is it's open to everybody, and 
you build a record, and the agency is supposed to act on the 
basis of that record. An OMB review allows a secret record to 
be created after the fact, and the process is only open to 
some, not to everybody.
    For example, while Mr. Sarvadi has been to lots of meetings 
at OMB, I've worked on almost a dozen OSHA standards, and 
neither I nor my clients have ever been invited to any. So it 
creates a lopsided record that's imbalanced. And I think that 
undermines the process we have at the agency.
    The Chairman. Mr. Sarvadi, you suggested opening up OSHA's 
internal processes to greater public participation. OK. I'm all 
for that. Ms. Rabinowitz, however, says that the process at 
OIRA--OMB is a closed thing. Would you advocate that both of 
them be opened?
    Mr. Sarvadi. I think they are, Mr. Harkin. In fact, I 
suspect the reason Ms. Rabinowitz hasn't been to OMB is because 
she hasn't asked to go. Every time that I know of that we've 
asked to have a meeting about a particular topic, they've been 
willing to talk to us.
    My point about opening up the OSHA process so--it's a 
little bit different than just simply opening the process. Part 
of the problem is the people on the staff at OSHA who get 
involved in these things have a very narrow and parochial view 
of the world. And they don't have enough information and they 
don't have enough real-world experience to be able to integrate 
all of the information that they get in an effective way. And 
that's my personal opinion. It's something that I've observed 
for the last 35 years.
    Part of the reason is these people are not engaged 
professionally. In my written comments, I talked about having 
the OSHA staff who do these kinds of things, that are supposed 
to be professional safety and industrial hygiene staff, 
participate in the professional societies where they can get to 
know people and hear about the kinds of real-world problems 
that they face. That would help a lot. And the trade 
associations that are around would be available to help the 
agency talk to the people in the industry.
    The Chairman. I don't know about the specificity of OMB's 
OSHA dealings. But I will tell you that this chairman has had 
dealings with OMB in the past--under both Democratic and 
Republican administrations, I might add--in which people came 
in to visit with OMB officials, and the only way I found out 
who they were is I asked for the log of who was invited.
    What they discussed I could never find out. There was no 
record kept, none whatsoever. And none of my staff or no one 
was ever invited to sit in on these meetings, either. So OMB--
I've got a little thing there about OMB being this super secret 
kind of organization down there that's getting involved in 
stuff.
    But I'm running out of time. I have run out of time. I'll 
follow that up later.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman. I'll follow up for 
you.
    Ms. Rabinowitz, you're advocating for a substantial 
limitation on the Office of Information and Regulatory Affairs. 
But the OIRA activity that you object to is prescribed by the 
Administration, not by Congress. Are you in discussions with 
the Administration on your suggestions? Is the President 
considering limiting the regulatory review or making the record 
more open? If not, why not?
    Ms. Rabinowitz. I'm, personally, not involved, but the 
organization with which I work and which I joined very recently 
has had discussions over the years with the Administration on 
various Executive orders. I do not believe there are any 
ongoing discussions with the current Administration about 
changing the process.
    Senator Enzi. So before we do a law, maybe we need to talk 
to the Administration and see if they'll just do it 
administratively. They're doing everything else 
administratively.
    A question for Mr. Sarvadi, OSHA had used national 
consensus standards as permitted under the OSH Act to create a 
uniform standard across certain industries. Other witnesses 
today have advocated adopting more consensus standards 
wholesale. These standards are developed by national groups 
such as the American Society of Safety Engineers. But not all 
groups have an open and scientifically reliable process for 
creating those standards. Therefore, some of these consensus 
standards groups don't actually capture the consensus of the 
field.
    Do you have concerns about OSHA adopting national consensus 
standards? And how can we determine which national consensus 
standards are appropriate and based on professionals?
    Mr. Sarvadi. Yes, I think I can help with that. There's a 
definition of a national consensus standard in the statute. 
OSHA would have to determine that a particular standard was 
adopted in accordance with those criteria. And if it did, I 
think the issues that OSHA has to address when it adopts a 
rule, that is, significant risk, feasibility in both economical 
and technical, would be largely dealt with because of the fact 
that the people involved represent all of the people who have 
an interest in a topic.
    So, for example, an American National Standards Committee 
that has a proper process in place to develop a standard will 
have representatives from academia, from government, from 
labor, from industry, and from consultants and insurance 
companies as well. And I think it's possible to use consensus 
standards. I think it could be done more quickly if they did.
    But I do have concerns about certain consensus standards 
where the situation has been overtaken by people who have a 
parochial or a financial interest in having the standards 
drafted in a certain way and then push those standards. I think 
we've seen that in some cases, perhaps not as much in the 
safety area, but in other areas where there are consensus 
standards. So OSHA does need to look to those, and they could, 
I think, expedite the process. But they need to make sure that 
they are true consensus standards.
    Senator Enzi. Thank you. Another question for you: The 
stakeholders have described the recent OSHA final rule on 
hazard communication standards as a missed opportunity, do you 
agree?
    Mr. Sarvadi. I think it was in the sense that it could have 
been done a lot more quickly. And the problem with keeping or 
adding combustible dust to the mix, I think, was an example of 
what happens when OSHA latches onto a--I'll call it a pet 
project.
    I don't want to minimize the importance of dealing with 
combustible dust. But it got latched onto and added to the 
process very late, and it didn't resolve some of the very 
significant and important questions that have to be resolved 
now through the enforcement process, which is when do we have a 
situation where the combustible dust practices and procedures 
are required.
    So I think it was a missed opportunity in that sense. But 
in the end, it's an important change in the standard. And, by 
the way, the standard does require that employers inform their 
employees about the chemical hazards that they're exposed to. 
And I know folks in the masonry industry now know that bricks 
contain silica dust, because bricks are hazardous chemicals 
that require a material safety data sheet that have crystal and 
silica identified on the data sheet.
    Senator Enzi. Another question for you in a little 
different line here, recently, OSHA issued an enforcement memo 
concerning employers' use of safety and health incentive 
programs, the incentive programs. As you discuss in your 
testimony, this is a situation where OSHA is seeking to change 
its rules outside of the rulemaking procedure.
    Do you think that employer incentive programs can 
contribute to a safe workplace? Is this memo an appropriate use 
of OSHA's authority? As evidenced by this enforcement memo, 
OSHA seems to believe that their own statistics are not 
legitimate, and there is an under-reporting of injuries. While 
the memo lists several isolated anecdotes, what's the real 
basis, if any, for OSHA's belief that there is endemic under-
reporting of injuries?
    Mr. Sarvadi. I'm not sure why that idea has persisted over 
the last 25 years. I'm aware of at least three separate 
instances where OSHA has actually gone out to look at injury 
and illness reporting in the workplace. They've actually gone 
out to employers, looked at the records that are available, 
talked to the employees, and gathered information on reporting. 
And to my knowledge, there has been no suggestion that the 
widespread under-reporting that is claimed has actually 
occurred.
    Even if we're talking about a 10, 15 or 20 percent under-
reporting, I think it's undeniable that the trends in workplace 
safety demonstrate continued improvement over the last 30 
years. So even if we are looking at numbers that don't reflect 
the total reality, we are looking at trend lines and rates that 
show that we are on a track that can be improved.
    In regard to the specific incentive programs you're talking 
about, I think what OSHA is worried about is situations where 
employees are discouraged from reporting their injuries and 
illnesses because they are afraid of their group or their 
company work site suffering from not having the benefit of 
whatever the incentive program is. Incentive programs are 
helpful. Getting people to voluntarily follow the rules is 
always better than trying to force people to do it, and so 
there is a place for them.
    But I would not disagree that we need to be careful that we 
don't use incentive programs improperly. That's why a 
rulemaking on that would be more important, because then we 
would have an opportunity to find out what works and what 
doesn't.
    Senator Enzi. Thank you. I've run over, but I may have to 
leave before the next round of questions are available. I do 
have questions for all of the witnesses. And you've been great 
on your testimony. I've read your testimony. It's very helpful, 
but it did bring up some other questions. So I hope if I don't 
get a chance to ask them that you'll respond in writing for me.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Franken.
    Senator Franken. First of all, Mr. Ward, I'm sorry I wasn't 
here for your testimony, but I was very touched by reading it.
    Mr. Ward. Thank you.
    Senator Franken. I have a question for you and maybe for 
Dr. Silverstein. I've been to training facilities at various 
locations, for laborers, for carpenters, and one of the things 
they do emphasize is safety. I remember being at a carpenter 
training facility and talking--and the guys they were training 
had been nonunion before. And what they were doing now is they 
were working at a union site several days a week, and they get 
training 1 day or 2 days a week.
    So I asked these guys what the difference was between 
working on a union site and a nonunion site. One of the things 
they said was the union site was safer, that when someone got 
hurt at a nonunion site, basically, no one cared. No one did 
anything. No one stopped. But at the union site, they made sure 
that you got care, that you got what you needed.
    My question is--I know that you're doing training.
    Mr. Ward. Yes, sir.
    Senator Franken. And I'm wondering--are you working at a 
union shop?
    Mr. Ward. Yes, sir, with the Bricklayers.
    Senator Franken. Yes.
    And this is for Dr. Silverstein. Do union shops tend to be 
safer than nonunion? And that can be for Mr. Ward as well.
    Mr. Ward. Well, I've never worked for the other side. But I 
can tell you from what I see driving around town, in my city, 
the answer is without a doubt, without a doubt. The 
contractors--we have a lot of good ones. They are involved. The 
training we provide gives them an edge. And I don't have the 
numbers for you, but I could tell you my experience and what 
I've seen--absolutely.
    Senator Franken. Dr. Silverstein.
    Dr. Silverstein. I would agree with that. And in my 
experience--and that's experience working for an international 
union, the Auto Workers, for a number of years, as well as my 
experience as an agency executive at both the Federal and State 
levels--I think that there is a difference in attention to 
safety at union represented sites----
    Senator Franken. But that's anecdotal and not borne out by 
statistics.
    Dr. Silverstein. There have been a limited number of 
scientific studies that have tried to look at this in a very 
rigorous way. But to the extent that they have--and I think 
that Dr. David Wild has looked at this issue in the past and 
has published studies that indicate that union participation 
does enhance safety performance.
    Senator Franken. I'm getting a nod from a woman in the 
audience, but we can't call you, I don't think. I'm not the 
chairman.
    Well, Dr. Silverstein, or anyone else who'd like to 
respond, we hear a lot about the cost of regulation all the 
time. They stifle the economy. They stifle growth. And I think 
we all agree that unnecessary regulation can do that. But not 
all regulations are created equal. The standards issued by OSHA 
do save lives.
    Would you mind sharing with the committee the most 
compelling cases you've encountered in terms of data on OSHA 
standards saving lives?
    Dr. Silverstein. I think there are a number, and there are 
a couple of examples in my full written testimony. But one 
involves the impact of OSHA's lockout/tagout standard, which 
was adopted, and then 7 years after--and this is a standard 
that was intended to protect workers from the danger of 
equipment being energized while maintenance or other work is 
being done on them.
    OSHA did a look-back survey, as required under SBREFA, I 
believe, after 7 years and found that in the 7 years after the 
lockout/tagout standard was adopted, there was a 20 to 55 
percent reduction in lockout/tagout deaths. That's one example.
    In the State of Washington, the Department of Labor and 
Industries has done a number of well-designed studies looking 
at the impact of enforcement of OSHA standards on worker 
compensation cases. And what the department has found--and I'll 
give you just two examples.
    One is that following the adoption of the Washington State 
Fall Protection Standard a number of years ago, when inspectors 
went in, did an inspection, found that the standard was being 
violated, they issued an order for corrections to be made. And 
so the standard was then--the company then came in compliance--
that as the company came into compliance, that injuries from 
falls declined significantly.
    In a similar way, the Department of Labor and Industries 
recently completed a 10-year review looking at what happens to 
worker compensation cases in the year after a State OSHA 
inspection took place. And while it is true that in all 
workplaces, even without inspections, there's a slow decline in 
worker compensation cases, in the instances where an OSHA 
inspection was done, violations were found, citations were 
issued, and the hazards were corrected, there was a 20 percent 
greater decline in the injuries than in other comparable 
workplaces. So there's a wide body of information. That's just 
some.
    Ms. Rabinowitz. If I could add, in the 1970s, OSHA issued a 
standard for cotton dust exposure. And at the time, it was very 
controversial. Industry said it was going to put the textile 
industry out of business. OSHA went forward with the standard. 
The case went to the U.S. Supreme Court, which upheld the 
standard.
    There's been a dramatic decrease in the incidence of 
byssinosis among textile workers, and the investment in plant 
and equipment that was spurred by the need to comply with the 
standard increased productivity in the industry dramatically 
and allowed them to stay competitive for a while with 
international textile manufacturers in a way that they would 
not have been able to in the absence of that investment in 
plant and equipment.
    Senator Franken. Thank you.
    And thank you, Mr. Chairman.
    The Chairman. Senator Blumenthal.

                    Statement of Senator Blumenthal

    Senator Blumenthal. Thank you, Mr. Chairman.
    I want to thank all of you for being here today. And I want 
to say in recognition of the people here who have come with 
photographs that I am reminded of the tragedy that Connecticut 
encountered literally 25 years ago almost to the day at 
L'Ambiance Plaza. As a matter of fact, I'm going to be at a 
ceremony this coming Monday marking that 25th anniversary when 
28 construction workers lost their lives as a result of a 
construction practice known as lift slab that was under review 
by OSHA.
    In fact, it had been under review for some 5 years and was 
eventually found to be unsafe. And yet 28 people lost their 
lives on that day, April 23, 1987, as tons of steel and 
concrete from an unfinished building came crashing down on 
them. And it is a tragedy that we have recalled every 
anniversary since, this one being the 25th anniversary.
    So as you have testified, Dr. Silverstein, and others have 
recognized very eloquently, these delays have real-life 
consequences. They have consequences not just in money and 
unnecessary medical costs. They have real-life consequences in 
lives lost--men and women not coming home from work after 
leaving their families that morning, as these 28 individuals 
did that day 25 years ago, and not coming home to their 
families as the result of an accident and, really, a tragedy 
that could have been avoided.
    Accident probably is the wrong word, because it was, in 
essence, preventable. And it could have been prevented if there 
had been prompt or even reasonable review within a period of 
time that everyone would agree is one that should be met.
    I have read the GAO report, and I would simply ask, Dr. 
Silverstein, whether you think that this report adequately sets 
forth measures that we can take to address this problem.
    Dr. Silverstein. Senator Blumenthal, I think that the GAO 
report did a pretty good job of identifying some of the reasons 
that OSHA standard-setting takes too long. I think it fell 
short with recommendations. We've presented a number of 
recommendations here that I think are worthy of consideration. 
It's unfortunate the GAO didn't make those in its own report. 
But I think that the report itself supports quite strongly some 
of the recommendations that we have made.
    Senator Blumenthal. So the report essentially identifies 
the problems and the reasons and thereby supports going farther 
than the recommendations it has made.
    Dr. Silverstein. You know, even within the body of the 
report, a number of the recommendations that we've made 
explicitly here are noted, but they don't appear in the 
recommendation section. So the idea that Congress could direct 
OSHA to adopt a rule in a more expedited way than currently 
takes place is something that's in the GAO report as a 
possibility. It just wasn't listed as a recommendation, and I 
believe it should have been.
    Senator Blumenthal. Thank you.
    I'll invite comments from any of the other witnesses if 
they have any.
    Yes, sir.
    Mr. Sarvadi. I'd make the comment that I really think the 
problem with OSHA rulemaking is that they just don't stick to 
their priorities. And what the statutory recommendations that 
we're talking about here do is establish that priority. If OSHA 
wanted to get a rule done on silica, it could have done it in 
1979 or 1978 without having to go through all of the exercise 
that we've gone through since then.
    The reason it didn't happen is because I don't think they 
understood the significance and the importance of having 
established the rule. That doesn't, I don't think, change the 
problem that we have in front of us, which is to say the agency 
simply gets bogged down in its own processes.
    Senator Blumenthal. Thank you, Mr. Chairman.
    The Chairman. Well, again, if the agency gets bogged down 
in its own processes, Dr. Silverstein, what are your 
recommendations?
    Dr. Silverstein. Well, I think that some of the points that 
Mr. Sarvadi is making are quite appropriate. I agree that 
stakeholders should be brought into discussions as early as 
possible, and often OSHA does that. So I think the rap on that 
is a bit unfair.
    But I want to go back for a second to the discussion you 
were having about OMB. The real open process in which all the 
parties are brought to the table, have an opportunity to put 
their concerns out publicly and have them discussed, debated, 
worked over--the open process is the public hearing process, 
OSHA's public hearings.
    The Chairman. Right.
    Dr. Silverstein. Those are incredible events which are open 
to anybody. There's an administrative law judge. They're on the 
record. Witnesses are able to come forward and present their 
views, present data, present either support or opposition, and 
then the witnesses are subject to cross-examination by anybody 
else who's in the room who is on the witness list. They're 
incredibly robust, interactive experiences. That's the public 
process that works.
    Certainly, there are problems internally to OSHA with 
setting priorities. I agree with that. But the real problem is 
that it takes so long to get to the public hearing process. 
There are innumerable procedural delays, including the OMB 
delays, the SBREFA delays, and others, that really keep the 
process from getting to the point where it really matters--open 
public debate and discussion on the record.
    The Chairman. But it doesn't--let me ask--that takes place 
before it goes to OMB, doesn't it?
    Dr. Silverstein. No, it doesn't. It can't happen until it 
comes out of OMB.
    The Chairman. So the silica rule, that's tied up in OMB 
right now.
    Dr. Silverstein. Yes. It has not had a public hearing, and 
it won't until it comes out of OMB.
    Ms. Rabinowitz. OMB gets to look at the rules before a 
proposed rule is published in the Federal Register for comment. 
And then after the hearing process and the comment period, OMB 
gets to look at the rule a second time. When a final rule is 
drafted, it's sent to OMB before it's published in the Federal 
Register. So they look at it in the beginning and at the end.
    The Chairman. Mr. Sarvadi.
    Mr. Sarvadi. Mr. Chairman, if I could add to this, the 
problem we're talking about right now is the time it has taken 
to get to this stage is the time period--I think in the GAO 
report they suggested they started in 1994. This is the time 
when OSHA has been doing all of its work internally and through 
contractors to gather information. And this is the time period 
where I'm suggesting we can shorten the time it takes to get to 
the rule.
    We are going to have the opportunity to go through the 
robust process that Dr. Silverstein described only after OMB 
releases the proposed rule for discussion. I'm suggesting we 
need to have that discussion before it gets to OMB.
    The Chairman. Well, OK. This is open for discussion. Why 
can't we have it before it goes to OMB?
    Dr. Silverstein. Because the only truly open process that 
is on the record and is meaningful that OSHA has to base its 
record on and defend in court is the record of the public 
hearing. I agree that informal discussions with stakeholders 
that represent all views should take place very early on. But 
then having done that--we need to do that quickly, get past it, 
get to the public hearing process where it really counts.
    The Chairman. Could you have a public hearing on a proposed 
rule--I don't know. Maybe you can't.
    Dr. Silverstein. Well, OSHA does have public meetings. And 
often OSHA will conduct a public meeting of some kind very 
early on in the process. It could do more of that, and it could 
do it quickly.
    The Chairman. But this open process--as I understand it, 
the meetings that OSHA has prior to that are open, on the 
record. They aren't?
    Dr. Silverstein. No.
    The Chairman. No?
    Dr. Silverstein. Not the way that public hearings conducted 
under the requirements of the Administrative Procedure Act are.
    Ms. Rabinowitz. It varies. OSHA has pre-proposal 
stakeholder meetings. Sometimes they hire a court reporter and 
have transcripts of these meetings, and everyone is invited. 
Sometimes they'll meet with some business groups and then some 
labor groups. And the process is not regulated by any 
procedural statute, and it varies depending on the 
circumstances. And I don't think there is any way that you can 
generalize.
    They do go out and speak to more people than I think Mr. 
Sarvadi has acknowledged, but there's not a consistent pattern. 
Sometimes they do it more frequently and more openly, and 
sometimes they do it less frequently and less openly.
    The Chairman. Are you suggesting that maybe we need more 
legislative guidance?
    Ms. Rabinowitz. My suggestion would be that more analytic 
procedures would just bog down the process.
    The Chairman. That's what I'm wondering about this 
suggestion that was made by GAO and, I think, others that 
somehow OSHA now get together with NIOSH and work together from 
the beginning. Aren't we adding another layer in there?
    Dr. Silverstein. OSHA has worked closely with NIOSH for 
about 40 years.
    The Chairman. Well, then----
    Dr. Silverstein. And the suggestion that they try harder, I 
think--you can always try harder and do better, but that's not 
the delay. That's not the source of the problem.
    The Chairman. They're already working with NIOSH.
    Dr. Silverstein. Oh, yes.
    The Chairman. I wonder why GAO was suggesting that. That's 
the only suggestion they made.
    Dr. Silverstein. Right.
    The Chairman. OK. Try me one more time. Dr. Silverstein, if 
you had a magic wand, if you were the dictator, and you could 
do one or two things that would speed up this process while at 
the same time making sure that there was adequate public input, 
stakeholder representation, time for public comments on the 
record, what would you do to speed up the process while 
protecting these other elements?
    Dr. Silverstein. You're endowing me with extraordinary 
powers here.
    The Chairman. That's right. I'm asking how you----
    Dr. Silverstein. Under those circumstances, I would direct 
OSHA to engage in an expedited rulemaking to bring up to date 
the more than 400 chemicals for which the permissible exposure 
limits are maybe 50 years out of date. And, second, I would 
direct OSHA to adopt a general rule that would require safety 
and health programs, injury and illness prevention programs in 
each workplace.
    Ms. Rabinowitz. I would say mandatory deadlines. Whatever 
the priorities are, when Congress has enacted deadlines and 
forced OSHA to go forward, they've actually had a pretty good 
record of meeting those deadlines, and they've been able to do 
it with the same public participation. So if silica is 
Congress' priority, if updating the permissible exposure limits 
is Congress' priority, they should require the agency--
consolidate those procedures into a certain amount--a period.
    And I think if we shorten the period between the end of the 
comment period and the time it acts--sort of what I like to 
call the hand-wringing process, where they--you know, should we 
do this, should we do that--if we could just force them to 
decide on the record, then we could move on to the next 
priority.
    The Chairman. Mr. Sarvadi.
    Mr. Sarvadi. I think the last point that Ms. Rabinowitz 
just made is really important. There's a lot of hand-wringing 
that goes on over there. I'm not sure I agree with Dr. 
Silverstein that OSHA has worked that closely with NIOSH. They 
do have different orientations in the two agencies.
    And, actually, my personal opinion, which, again, no one 
has listened to for about 30 years, is that NIOSH needs to be 
out of CDC. It's not a really good place for it. It's a poor 
stepchild over there.
    Be that as it may, to try to fix the rulemaking, it's 
really about getting managers within the agency to stick to the 
deadlines that they set. They simply don't do it. They simply 
won't come to a conclusion.
    The Chairman. But that's an administration problem. It 
seems to me that comes under the administration.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    Dr. Silverstein, in my view, OSHA's Voluntary Protection 
Program that I talked about in my opening statement is an 
effective tool in terms of improving the workplace safety 
conditions and reducing injuries. Do you believe that the VPP 
sites are generally safer than the non-VPP sites? And do you 
support continuation of VPP or not?
    Dr. Silverstein. Well, Senator Enzi, sure, they're safer, 
because that's the requirement for them to be able to be given 
the VPP star. They are recognition programs. The program is 
intended to identify and to recognize those employers who are 
doing the very best job. They've been mischaracterized, I 
think, as programs which cause workplaces to become safe. In 
fact, they recognize those that are already safe, and, in that 
sense, I do support them.
    During the 10 years that I was director of the State OSHA 
Program, I was very proud to be able to go out to workplaces 
where we awarded the VPP star and to talk with the companies 
and the unions or the workers on the nonunion sites about the 
great things they were doing.
    Senator Enzi. Well, they have some requirements for hiring 
safety people as well as doing the incentive programs, don't 
they?
    Dr. Silverstein. It's a high bar. Now, with regard to 
incentive programs, we could have a longer discussion about 
that. But we certainly--I don't think it's appropriate to award 
a VPP star to a site that encourages in any way workers not to 
report injuries and illnesses.
    Senator Enzi. No. That wasn't the incentive I was referring 
to. You referred to VPP as an incentive program where they get 
their star and they can be proud of it.
    Dr. Silverstein. Yes.
    Senator Enzi. It's more than that. They actually have to do 
something in order to get that star.
    Dr. Silverstein. Companies generally have worked very hard 
over a number of years to get to the point where they can be 
recognized.
    Senator Enzi. Thank you.
    Mr. Ward, I want to express my sympathy for the loss of 
your father and your health conditions. I appreciate the 
comments that you made. I do believe that we can attribute the 
progress in improving workplace safety both to employees and 
employers, and that needs to be a constant working relationship 
if we're going to have a safer workplace for everyone.
    That's why the OSH Act prohibits the penalization of 
employees for reporting safety violations and making 
complaints--the whistle-blowing provisions. But some recent 
cases have raised a question that, apparently, a labor union 
can fine a member for doing that same kind of reporting on 
safety violations.
    What do you think? Should a labor union be able to fine 
employees for reporting hazardous conduct that endangers 
everyone on the work site?
    Mr. Ward. I've never heard of that.
    Senator Enzi. Well, there are some cases that have happened 
that way.
    Mr. Ward. I've never heard of that or experienced any of 
that. If I may----
    Senator Enzi. Sure.
    Mr. Ward [continuing]. Take a swing with that magic wand 
for just a second, in my opinion, if you want to speed it up, 
have everyone involved take a look at the simple, cost-
effective control measures that we've known about for 70 years. 
It literally is adding water to what you're cutting, and you 
eliminate the hazard for gas-powered equipment. For the 
electrical powered equipment, they have vac systems which are 
readily available. Industry--the manufacturers have already--
it's already out there. It doesn't have to be re-invented. It's 
just that simple.
    If you really look at how much you're allowed to be exposed 
to and how simple the controls are, everyone would be on board, 
I'm almost certain. It really is way more simple than it 
appears.
    Senator Enzi. That's why we want both the employees and the 
employers involved in the process. And I appreciate your 
comments.
    Mr. Ward. Thank you.
    Senator Enzi. Dr. Silverstein, in your testimony, you 
mentioned a shared priority for rulemaking between OSHA and 
NIOSH, and we touched on that just a few moments ago as a 
possible solution. Specifically, you mentioned how a similar 
process was started in the 1990s but ultimately was abandoned. 
Could you discuss some of the reasons why the formal priority 
process didn't work and what could have been done differently 
today?
    Dr. Silverstein. I don't know that it didn't work.
    Senator Enzi. Oh.
    Dr. Silverstein. I indicated in my testimony that it wasn't 
followed through on, and I don't have a full explanation of 
that. The priority planning process was something that I worked 
on during the 2 years that I was Director of Policy for Federal 
OSHA, and after I left, it diminished in its importance and was 
not followed through with. I think there were other competing 
demands that took over.
    One of the challenges for the agency is figuring out how to 
respond from innumerable demands that are coming from the 
outside continually. And this is where I would agree with Mr. 
Sarvadi that the agencies respond to input and pressure from 
the outside. And it's really important that that input be 
balanced, that the agency is hearing from all sides.
    This is one of the reasons why union participation has been 
so important. Where unions have been involved, the discussions 
are really full and complete. Where they're not, OSHA gets a 
one-sided set of demands.
    Senator Enzi. Thank you, and we'll follow up a little more 
on why that process was abandoned. And, again, I have 
additional questions, but I will submit them in writing, 
because I have to leave.
    The Chairman. Thank you, Senator Enzi.
    Actually, you answered the question to him that I was going 
to ask you, Mr. Ward, because I haven't had a chance to ask you 
any questions about having the magic wand.
    But I will close on this. For all the people who are 
sitting here with pictures of their loved ones that they have 
lost, I just said to my staff they're probably wondering what 
are they talking about up there and all this stuff. Sometimes 
experts--and I'll get into the fine tuning of all of this which 
we have to do--rules and stuff.
    But my question to you is--you said things are simple. 
People out there working know what's safe. But they lose their 
lives. They get severe injuries. But if they know what to do, 
then why are rules--why do you need rules? If they know what to 
do to be safe, why do you need rules? Why even have rules if 
they know what to do? Why don't the employers just do it?
    Mr. Ward. Well, although we do have many good employers, 
you know, the owner of the company isn't out there running the 
project. So the foremen, you know, who keep their job by making 
the boss money are the ones that set the tone. They really do 
set the tone for safety. And right now, with the economy and 
the few jobs available and so many looking for work, there 
isn't anybody that I know that would speak up on the job about 
workplace hazards.
    In fact, when we do our OSHA training, now we have to spend 
2 hours on introduction to OSHA, where we explain to them their 
rights in detail. We make them fill out a--well, not make 
them--we have them fill out a complaint, an official OSHA 
complaint. It's probably the toughest piece to get through in 2 
hours because of all the chuckles and sarcasms that comes back 
from the crowd.
    They're like--there's no way they're going to say anything 
about the job, because construction is unique. It really is. 
It's simple. If somebody wants to get rid of somebody, if 
they're complaining about something, or for whatever reason, 
they'll just lay him off. The job slows down, or they'll say 
the job slows down, and they just lay them off and just don't 
call them back. It's unlike any other industry that I'm aware 
of.
    The Chairman. And if I'm not mistaken, one of the top three 
industries by fatalities is construction.
    Mr. Ward. It is.
    The Chairman. Transportation, utilities and agriculture 
being the other two. I just wonder if it hasn't a lot to do 
with just--you know, human nature wants to cut corners. Don't 
we all want to cut corners? We all try to get through that 
yellow light, you know?
    Mr. Ward. In some cases, I'm sure. In a lot of cases, 
masons are--they've been around for a while, you know. Some of 
the companies have been around for 60, 70 years, way before 
OSHA was around. And in some cases, they just don't know.
    The Chairman. And in some cases, we do know, like the PELs, 
the permissible exposure limits, on these chemicals and stuff--
been around for a long time. I don't know why we can't finally 
definitively put out a rule on that. It's just mind-boggling on 
that.
    Well, any other input that any of you want to put on the 
record right now before I close the hearing?
    Did you, Dr. Silverstein?
    Dr. Silverstein. Yes. I'm sorry that Senator Enzi left, 
because some memory is coming back to me, some history with 
regard to OSHA's standards priority process. And so I would 
just add this from my recollection.
    This was all happening in the period from 1993 to 1995. As 
you'll remember, Congress changed significantly in 1994, and 
the standards came under intense scrutiny and criticism. The 
regulatory process was under intense criticism after OSHA had 
begun to develop its priority list. And so it became almost 
impossible to move forward with any priorities.
    The debate became kind of trivialized in some ways. OSHA 
had adopted or was trying to adopt its blood-borne pathogen 
standard, which resulted in protection of healthcare workers 
from needle sticks and protection from HIV and AIDS. But the 
debate became a debate about whether or not OSHA had killed the 
tooth fairy. That dominated the public airwaves for weeks and 
months at a time, and under those circumstances, it became very 
difficult to stick to OSHA's priority list.
    The Chairman. Well, my recollection is that during the 
1970s, 1980s, 1990s, every once in a while, that story would 
pop up about how ridiculous OSHA was. I remember out my way, a 
farmer would put a toilet in the middle of the field that said, 
``Thanks, OSHA,'' that they had to put toilets in their fields 
and stuff, which was not really true. But, nonetheless, it 
evoked a lot of pictures and a lot of inflammatory types of 
comments and stuff.
    But there was always something that someone would pick out 
that they thought was a ridiculous rule or--I don't remember 
the tooth fairy issue, but I do remember others. And then that 
always seemed to then just keep us from really promoting OSHA 
and promoting this kind of rulemaking, much to the detriment of 
all the people whose pictures we see out here today.
    Well, I thank you all very much. I think this has been a 
good session.
    Mr. Ward, thank you.
    Dr. Silverstein, Ms. Rabinowitz, Mr. Sarvadi, thank you 
very, very much for your testimony and input.
    The record will remain open for 10 days for other 
submissions. With that, the committee will stand adjourned.
    And, again, I want to thank all of the people who came here 
today. I just want you to know your presence has not gone 
unnoticed. We've noticed it, and, believe me, it has an impact 
on what this committee does. And this committee is going to 
move ahead on some OSHA things, I can assure you.
    Thank you.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

             Prepared Statement of The American Composite 
                     Manufacturers Association \1\
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    \1\ 3033 Wilson Blvd., Suite 420, Arlington VA 22201. Contact: John 
Schweitzer, (703) 525-0511.
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    Chairman Harkin and Ranking Member Enzi, we appreciate the 
opportunity to submit this statement into the record of this important 
hearing on OSHA rulemaking.
    The American Composites Manufacturers Association is the national 
trade group for the composites industry. Our members companies use 
combinations of styrene polyester thermoset plastic resin, glass and 
other materials to make underground gasoline storage tanks and 
pollution control equipment, wind turbine blades, modular tub/shower 
units and bathroom vanities, ballistic panels and armor for military 
vehicles, fiberglass recreational boats, automotive, truck and 
motorhome components, window lineal and ladder rail, bridge decks and 
concrete reinforcing bars, playground equipment, components for 
commercial and military aircraft, signs and building fascia, and 
thousands of other composites products, as well as the suppliers of raw 
material to this industry. Our industry is comprised of some 3,000 
small- and medium-sized companies, many family-owned, employing over 
250,000 Americans, with facilities in almost every congressional 
district.
    The title of this hearing suggests a concern that OSHA's standard-
setting process takes too long, and that the delay in issuing a 
standard results in additional injuries, illnesses and deaths that 
would have been avoided had the rule been issued sooner. With respect 
to the first premise, we agree that OSHA sometimes takes significantly 
longer than should be necessary to develop and issue a final rule. We 
respectfully disagree with those who suggest the delays are due to 
excessive legal requirements governing OSHA's standard-setting process. 
We believe those requirements are essential to protect employers, jobs, 
our economy and our quality of life from unreasonably burdensome and 
unnecessary regulatory mandates.
    The premise that the delay in issuing rules results in a readily 
quantifiable harm to employees that would have been avoided by earlier 
adoption of the rule may be emotionally appealing, but, for many 
reasons, is overly simplistic. The idea that Congress should reduce or 
eliminate fundamental legal protections that interfere with more rapid 
agency action suggests an ends justify the means approach to the issue. 
Rather than taking away what are recognized as fundamental legal 
protections for the regulated community, OSHA, with help from NIOSH, 
needs to streamline the existing rulemaking process so that it is more 
efficient and makes more effective use of available resources.
    The primary objectives of our statement are to assist the Congress 
and OSHA in identifying factors that lead to unreasonable delays and 
inefficiencies in the OSHA rulemaking process, and measures that would 
help to streamline the process. However, before proceeding to address 
those issues, we believe it is important to provide the Congress with 
an additional perspective on the complexity of assessing the potential 
impacts of a delay in issuing an OSHA standard.
      the potential impacts of a delay in issuing an osha standard
    Despite assertions that OSHA has been unable to issue the standards 
needed to protect America's workers from workplace hazards, BLS 
statistics demonstrate that workplace fatality, injury, and illness 
rates have been declining steadily during the entire period of OSHA's 
existence. That includes the more recent period that is the focus of 
the GAO report presented to Congress today and is characterized as one 
with few new standards. Furthermore, statistics have consistently 
demonstrated that, on average, people are more likely to be injured at 
home than at work.
    Efforts to convert OSHA's numerical guestimates of the benefits of 
a rule--in terms of injuries, illnesses or deaths that supposedly would 
be prevented--in a quantification of the harm that resulted from the 
absence of the rule are clearly misplaced. As part of the required 
showing that a proposed rule would result in a significant improvement 
in workplace safety, OSHA guestimates the annualized number of 
injuries, illnesses and/or deaths that would be prevented by adoption 
of the rule, and the courts defer to those estimates. However, there is 
no statistical validity to those numbers and it would be highly 
inappropriate to assert that those guestimated annualized benefits 
would be ``lost'' on a day-for-day basis for each day of ``delay'', 
even if one assumes a static situation.
    However, the period covered by the development of an OSHA standard 
is not a static situation. During that period, OSHA typically 
identifies and communicates its concerns about the safety of a practice 
or condition through various means, including OSHA guidance documents, 
initiation of an OSHA rulemaking and OSHA enforcement actions. When 
that occurs, employers will respond in a variety of ways to address the 
practice or condition of concern. They do not ignore the issue until 
OSHA adopts final rule. This point is clearly demonstrated by the 
extensive, ongoing activities at workplaces across the country to 
address the hazards of combustible dust. Employers have been active 
participants in a massive combustible dust education and outreach 
effort by OSHA, NFPA and many other organizations. Employers have 
adopted new engineering measures for new facilities and engaged in 
massive retrofits of equipment to control ignition sources and reduce 
dust accumulations. As a general rule, OSHA does not attempt to measure 
or take these material changes in the field into account during the 
course of a rulemaking because the agency understandably prefers to 
prepare its feasibility and cost analyses based on a snapshot or fixed 
point in time rather than attempting to model a dynamic situation.
    If OSHA was permitted to take shortcuts to rush a rule through the 
process, we can reasonably expect it to lead to the adoption of an 
overly burdensome and possibly unnecessary rule. That rule would divert 
limited employer resources away from other safety and environmental 
needs, and quite possibly drive businesses and jobs overseas.
    Finally, if OSHA determines that there is a hazard that needs to be 
addressed on an interim basis while a new rule is being developed, or 
an existing rule is being amended, OSHA may turn to enforcement 
measures based on application of the General Duty Clause as well as 
other existing standards. OSHA has made extensive use of the General 
Duty Clause and existing OSHA standards to address the hazards of 
combustible dust.
    Extended delays in OSHA rulemakings can and have also imposed 
significant additional costs on employers. As the period of time over 
which OSHA develops a rule increases, so does the probability that 
personnel with expertise and institutional knowledge in the area of a 
particular rulemaking will no longer be available. This is true for 
both OSHA and an employer's in house personnel. For example, in the 
case of OSHA's Lockout/Tagout Standard, the project officer (lead 
technical person) for that rulemaking, in what is now the Directorate 
of Standards and Guidance, retired from the agency right after OSHA 
published the notice of proposed rulemaking. We believe that untimely 
change in OSHA personnel had a severe adverse impact on the utility of 
the final rule, and that OSHA, employers and employees continue to live 
with and work through the fundamental shortcomings of that rule with 
great frustration and mixed results.
        the critical role of omb in the osha rulemaking process
    OMB intervention in the OSHA rulemaking process remains crucial to 
protect the employer community from unanticipated and unnecessary 
regulatory mandates that would likely survive a court challenge. It is 
also important to note that the severe implementation problems posed by 
the Lockout/Tagout Standard probably would have been insurmountable if 
OMB had not intervened during its review of the final rule. That 
intervention resulted in the addition of a critical provision--commonly 
referred to as the ``minor servicing exemption''--before the final rule 
was published in the Federal Register.
    Some have asserted that the OSHA rulemaking process is more robust 
than the minimal protections found in the Administrative Procedures Act 
and, therefore, the interests of the regulated community are already 
adequately protected without OMB oversight. That view overlooks several 
fundamental considerations, the most significant of which is the 
principle under which the courts defer to an agency's interpretation of 
its ambiguous rule, even if the agency intentionally adopted the rule 
with ambiguous language to provide it with the freedom to effectively 
amend the rule without notice and comment rulemaking and to immunize 
its actions from judicial review.
    This unfortunate and inappropriate practice is not unique to OSHA 
and was explicitly recognized by the U.S. Court of Appeals for the D.C. 
Circuit: \2\
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    \2\ Appalachian Power Company v. Environmental Protection Agency, 
208 F.3d 1015,1020 (D.C. Cir. 2000).

          The phenomenon we see in this case is familiar. Congress 
        passes a broadly worded statute. The agency follows with 
        regulations containing broad language, open-ended phrases, 
        ambiguous standards and the like. Then as years pass, the 
        agency issues circulars or guidance or memoranda, explaining, 
        interpreting, defining and often expanding the commands in the 
        regulations. One guidance document may yield another and then 
        another and so on. Several words in a regulation may spawn 
        hundreds of pages of text as the agency offers more and more 
        detail regarding what its regulations demand of regulated 
        entities. Law is made, without notice and comment, without 
        public participation, and without publication in the Federal 
        Register or the Code of Federal Regulations. With the advent of 
        the Internet, the agency does not need these official 
        publications to ensure widespread circulation; it can inform 
        those affected simply by posting its new guidance or memoranda 
        or policy statement on its web site. An agency operating in 
        this way gains a large advantage. ``It can issue or amend its 
        real rules, i.e., its interpretative rules and policy 
        statements, quickly and inexpensively without following any 
        statutorily prescribed procedures.'' Richard J. Pierce, Jr., 
        Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L.REV. 59, 
        85 (1995). [footnote omitted] The agency may also think there 
        is another advantage-immunizing its lawmaking from judicial 
---------------------------------------------------------------------------
        review.

    What the D.C. Circuit understandably declined to say was that this 
unfortunate practice is the logical outgrowth of decisions by the U.S. 
Supreme Court holding that the courts should defer to an agency's 
reasonable interpretations of its ambiguous rules. OSHA must make a 
diligent effort to separate itself from this paradigm because, as long 
as OSHA continues to employ that strategy, the regulated community will 
be understandably reluctant to support the agency's rulemaking efforts.
    Furthermore, the process and procedural rules followed in the 
informal OSHA rulemaking are hardly what one would describe as robust. 
It appears that anyone, other than a minor, who takes the time to file 
a minimal notice of intent to appear may testify at an informal OSHA 
rulemaking hearing. On the other hand, an employer that did not 
recognize its interest in the matter in time to file a notice of intent 
to appear at the hearing is precluded not only from offering testimony 
or cross-examining a witness at the hearing, but, under the applicable 
OSHA rules, is arbitrarily precluded from filing post-hearing comments 
or post-hearing briefs in the proceeding.
    At the hearing, witnesses are permitted to testify as to any 
matters relevant to the proceeding. There is no Daubert gatekeeping 
function to screen out the testimony of a witness who relies on hearsay 
anecdotes and lacks the expertise that would be required to testify on 
the subject in a trial court. The amount of time allowed for both 
direct testimony and cross-examination is limited. Witnesses are not 
placed under oath and are not subject to any sanctions if they evade or 
decline to answer the questions posed to them on cross-examination.
    The official OSHA witnesses testify on the first panel on the first 
day of the hearings and do not make themselves available for further 
questioning on the record. During that initial OSHA panel testimony, 
when a question is posed to the OSHA witnesses as to how a particular 
provision will be interpreted by compliance personnel, the OSHA 
witnesses rarely if ever provide a substantive response. The typical 
response is along the lines of ``we are still considering that question 
and would appreciate your input on it.'' There would never be adequate 
time during the time allotted for the OSHA panel at the informal 
hearing to go through a comprehensive discussion and evaluation of the 
economic impact and technical and economic feasibility issues raised by 
the proposal.
    When a non-OSHA witness testifies, counsel for OSHA insists on 
conducting the final cross-examination of the witness after cross-
examination of the witness by all other participants has been 
completed. That allows OSHA to conduct cross-examination of the witness 
after hearing all of the other cross examination while precluding any 
other participant from re-crossing the witness to address statements 
made by the witness during the DOL/OSHA cross-examination of the 
witness. In short, for the reasons noted above, and others, it is clear 
that the regulated community will continue to rely on OMB to provide 
the necessary executive branch oversight and relief from inappropriate 
agency actions.
                            recommendations
    We believe that OSHA can substantially improve the efficiency and 
effectiveness of the standards-setting process and urge the agency to 
carefully consider the following suggestions:

    1. NIOSH Should, Consistent with its Statutory Mandate, Support 
OSHA Rulemaking by Providing OSHA With Both a Balanced Risk Assessment 
and Practical Research on What is Technically and Economically Feasible 
to Enable OSHA to Formulate and Adopt Necessary and Appropriate 
Occupational Safety and Health Standards in an Efficient Manner.
    Through the OSH Act, ``Congress charged NIOSH with recommending 
occupational safety and health standards.'' That means Congress charged 
NIOSH with recommending ``occupational safety and health standards'' as 
that term is used in the OSH Act and interpreted by the decisions of 
the U.S. Supreme Court. The term cannot mean one thing for NIOSH and 
another for OSHA. For both NIOSH and OSHA, this term refers to 
mandatory control measures that are technically, analytically and 
economically feasible, whether the measure is a standalone PEL, or a 
PEL in a comprehensive substance-specific standard that includes a PEL, 
an action level and the traditional ancillary requirements.
    The process of developing a health standard would be far more cost-
effective if NIOSH did what it acknowledges was expected of it under 
the OSH Act--if NIOSH recommendations were based on an integrated 
technical and economic feasibility analysis rather than the more 
theoretical technical feasibility analysis found in its traditional 
criteria documents. Research is not limited to reviewing toxicological 
studies and performing risk assessments. It also includes researching 
whether recommended control measures are technically and economically 
feasible.
    For example, in the recently issued draft criteria document on 
diacetyl, NIOSH stated that engineering controls, such as general 
ventilation or dust collection, are feasible, without considering EPA 
requirements or combustible dust issues.
    In its initial criteria document for hexavalent chromium, NIOSH 
recommended an airborne exposure limit (1 ug/m3, 8-hour TWA) that OSHA 
found to be technically infeasible--impossible for some sectors and 
requiring an unacceptably high use of respiratory protection for others 
(52 percent of affected employees). In its 2005 post-hearing comments 
in the OSHA chromium rulemaking (Item 9 on pp. 9-10), NIOSH did 
acknowledge the concern that a PEL of 1 ug/m3 would result in excessive 
use of respirators. However, that was very late in the process. 
Meanwhile, because NIOSH made a recommendation based on aspirations 
rather than a sound feasibility analysis, the business community lived 
with years of uncertainty that, as a practical matter, should have come 
to an end only in 2009 when the PEL of 5 ug/m3 and AL of 2.5 ug/m3 were 
upheld by the U.S. Court of Appeals Third Circuit. However, in 2008, 
for reasons that remain unclear, our understanding is that NIOSH issued 
a draft criteria document with a REL of 0.2 ug/m3 based on the same 
risk assessment OSHA had relied on in setting a PEL of 5 ug/m3. We 
believe NIOSH needs to collect and analyze all of the data needed to 
ensure its recommendations have real world application and are not 
academic risk assessment exercises that create unrealistic 
expectations, and needlessly expose the business community and the jobs 
they create to these kinds of uncertainties.
    What is needed from NIOSH is an integrated technical and economic 
feasibility analysis based on the best available data. Under the 
current OSHA rulemaking process, OSHA, either directly or through a 
contractor, takes years to collect and analyze the minimum amount of 
data it believes is necessary to support a proposed rule. Industry then 
has only the relatively short time allowed by the rulemaking to 
organize and collect additional data. Agencies cannot expect industry 
to be continuously collecting and updating data from the time a NIOSH 
criteria document is issued. For example, the NIOSH criteria document 
on hexavalent chromium was issued in 1975 and the NPRM was issued in 
October of 2004.
    Rather than continuing the current inefficient division of labor, 
NIOSH could facilitate and manage the operation of stakeholder groups 
working to prepare pre-rulemaking documents. The pre-rulemaking process 
and documents generated from it would provide OSHA a head start in 
promulgating a standard by:

     Summarizing and incorporating stakeholder-provided data on 
hazards, exposures, risk assessment and the technical and economic 
feasibility of various compliance options (rather than theoretical 
control measures) into its recommendations;
     summarizing relevant NIOSH-sponsored research or analysis, 
conducted to fill in data gaps on hazards and exposures, identify and 
characterize compliance options (rather than theoretical control 
measures), and/or evaluate their technical and economic feasibility;
     identifying points of agreement among stakeholders; and
     identify points of disagreement that will need to be 
resolved by OSHA during formal rulemaking.

    Pre-rulemaking documents could serve as a resource for employers 
during the time it takes OSHA to promulgate final rules.
    In short, we believe, at a minimum, NIOSH must address technical 
feasibility in a meaningful way that advances the cooperative 
development of occupational safety and health standards rather than 
suggesting theoretical approaches that create false expectations as to 
what is feasible. We also believe it is critical for NIOSH, in 
cooperation with OSHA and all stakeholders, to effectively address 
economic feasibility. The examination of technical feasibility 
independent of economic feasibility tends to become an academic 
exercise that generates impractical if not misleading conclusions.\3\
---------------------------------------------------------------------------
    \3\ Dr. Michael Silverstein, in his statement for the hearing, 
makes the following recommendation:

    The OSH Act directs NIOSH to develop scientific criteria for OSHA 
rules and to publish such criteria annually. In its early years NIOSH 
developed a substantial number of detailed criteria documents with 
recommendations for new OSHA rules, but OSHA rarely acted on these 
recommendations and NIOSH stopped producing them. NIOSH should work 
with OSHA to develop new criteria documents that will provide the kind 
of details on exposures, risks, technological and economic feasibility 
that OSHA needs to support new rules.

    ACMA shares this view. One of the primary reasons OSHA rarely acted 
on the NIOSH criteria documents is that the documents did not include 
the ``kind of details on exposures, risks, technological and economic 
feasibility that OSHA needs to support new rules.''
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    2. Ensure That OSHA Standards Writers Have Practical, Hands-on 
Experience With the Hazards to be Addressed and the Industries.
    OSHA has previously recognized the need for its compliance 
personnel to be knowledgeable about the industrial operations they are 
inspecting and the application of OSHA standards to those operations. 
We believe the same considerations are even more significant when one 
person or a mall group of OSHA professionals are developing a standard 
that will apply to as many as 60 million workers at 5 to 8 million 
worksites across the United States.
    OSHA standards writers (developers) currently place too much 
reliance on surveys and site visits by its outside contractors. The 
OSHA standards writers need to go on more site visits and educate 
themselves to the point where they can understand and appreciate how 
the proposed rule would be implemented, the impact it would have on 
affected operations, whether it is feasible and practical, whether it 
would achieve the desired results, and whether it would provide the 
most cost-effective approach for controlling the hazard (``the Critical 
Assessments''). Every standards writer should have field experience as 
a compliance officer. If a standards writer does not have that field 
experience, the standards writer should be required to accompany one or 
more compliance officers on an appropriate number and type of 
inspections until the person develops sufficient knowledge to perform 
the Critical Assessments.
    The rulemaking process contemplated by the OSH Act and the APA 
provides OSHA with an opportunity to educate itself fully on the matter 
it proposes to regulate and to obtain the best reasonably obtainable 
information needed to fully address the applicable legal criteria. 
Instead, it appears that OSHA typically settles for the minimally 
required ``best available information'' that it believes would be 
adequate to satisfy its legal obligations. We recognize that OSHA does 
not have unlimited funds to conduct studies, research and surveys. On 
the other hand, OSHA can be penny-wise and pound-foolish in limiting 
the number and scope of employer surveys and site visits (subject to 
OMB approval under the Paperwork Reduction Act) to the point where OSHA 
does not obtain the information needed to understand the adverse 
impacts of the proposed rule and proceed with an alternative and far 
more cost-effective approach.
    3. Ensure Effective Involvement and Coordination Between the OSHA 
Standards Writers and the Directorate of Enforcement Programs.
    Unfortunately, the Directorate of Standards and Guidance (DSG) 
develops and promulgates a standard with very limited and clearly 
inadequate involvement of the Directorate of Enforcement Programs (DEP) 
in developing the rule. DSG then turns the completed standard over to 
the DEP, and DEP develops a compliance directive for its inspectors to 
clarify, fill in the gaps and more fully complete the rulemaking. If 
that was not the case, there would be far less need for substantive 
interpretations of the new rule in subsequent filed directives and 
letters of interpretation. One or more professionals from DEP should be 
assigned to the project team for every OSHA rulemaking and, during the 
informal hearing, should be prepared to answer substantive questions on 
how the agency intended to interpret the provisions of the rule at the 
time they were drafted and whether there is any change in the agency's 
thinking.
    DSG can and should more effectively utilize the knowledge and 
experience of OSHA compliance officers in assessing the practicality, 
feasibility and expected impact of a draft proposed rule. OSHA conducts 
approximately 40,000 inspections per year and should establish a 
protocol that would allow OSHA to take advantage of the opportunity to 
have its field personnel gather information and perform appropriate 
surveys and research during those inspections with the understanding 
that this aspect of the visit would be treated as a consultation visit. 
The employer would be required to abate any serious violations 
identified by OSHA during this consultation visit, but would not be 
subject to any enforcement action unless it failed to abate the 
violation within a reasonable time.
    4. Ensure Effective Involvement and Coordination Between the 
Directorate of Standards and Guidance and the Directorate of 
Construction.
    We recognize that there are major distinctions between most General 
Industry activities and most Construction activities and support the 
decision to maintain a separate Directorate of Construction. That being 
said, we believe the Directorate of Standards and Guidance (DSG) and 
the Directorate of Construction should have either joint or concurrent 
rulemakings whenever there is a hazard addressed by both directorates. 
Otherwise, there will be many situations (1) where it is unclear 
whether the General Industry or Construction rule applies, or (2) where 
both the General Industry and Construction rule will apply at the same 
time, depending on the specific task or employer involved, and they 
will have different requirements. In many cases, the hazards presented 
by construction work are identical to the hazards presented by General 
Industry maintenance work and the affected parties (i.e., employers, 
employees, and OSHA) are left to make an often arbitrary decision as to 
which rules apply. The pending OSHA rulemakings on fall protection in 
General Industry and confined spaces in construction illustrate these 
concerns. We congratulate OSHA for holding the concurrent pending 
rulemakings on electric power generation in General Industry and 
Construction in an effort to avoid these concerns.
    5. OSHA Should Make a Diligent Effort to Separate Itself from the 
Rulemaking Paradigm Described in Appalachian Power Company.\4\
---------------------------------------------------------------------------
    \4\ Appalachian Power Company v. Environmental Protection Agency, 
208 F.3d 1015,1020 (D.C. Cir. 2000).
---------------------------------------------------------------------------
    Rather than ducking the hard issues and intentionally drafting an 
ambiguous rule with the expectation that the courts will later defer to 
the agency's interpretation of that ambiguous rule, OSHA should have 
the courage to either explicitly resolve those issues or acknowledge 
that they are not addressed by the rule.
  Response to Questions of Senator Harkin and Senator Enzi by Michael 
                         Silverstein, M.D., MPH
    Dear Senators: Below are my responses to questions sent after the 
April 19, 2012 hearing entitled: ``Time Takes its Toll: Delays in 
OSHA's Standard-Setting Process and the Impact On Worker Safety.''
                                 ______
                                 
    Question 1. What quantifiable costs are passed on to society when a 
worker gets hurt?
    Answer 1. In addition to worker compensation costs (medical bills, 
vocational rehabilitation, partial wage replacement, legal costs, 
pensions, and program administration) the quantifiable costs include 
the following: medical and disability costs above those covered by 
worker compensation; lifetime loss of earnings related to loss of 
function, skills and seniority; recruitment, training, wage and benefit 
costs for replacement workers; reduced productivity, product quality 
and profits; medical and wage loss costs for unreported work-related 
injuries and illnesses. Estimates for the ratio of indirect to direct 
costs range from 1:1 to more than 6:1. The most recent study (Leigh, 
see below) estimates total annual costs of $250 billion with $183 
billion of this due to indirect costs such as those listed above, or an 
indirect to direct cost ratio of 2.7:1. The two best sources for more 
detailed information about these costs are:

     Cost-Benefit Analysis of the Ergonomics Standard, 
Washington State Department of Labor and Industries, May 2000. 
Available at http://www.lni.wa.gov/Safety/Topics/Ergonomics/History/
Documents/cba.asp.
     Leigh, JP. Economic Burden of Occupational Injury and 
Illness in the United States. Milbank Quarterly, 89(4):728-772. 2011.

    Question 2. Why are States sometimes able to act more efficiently 
than Federal OSHA?
    Answer 2. There are at least three reasons. First, a few States 
address workplace safety and health as a constitutional right. Where 
this is the case there is a more forceful argument for equity for all 
workers. For example, this provided an effective argument for extending 
basic safety and health protections to agricultural workers in 
Washington State, something OSHA has been unable to accomplish. Second, 
the relationships among agency regulators, legislators and major 
stakeholders in the business and labor communities are generally better 
at the State than the Federal level. While this is by no means always 
true there have been numerous examples where the State parties have 
been able to work through their differences to reach mutually agreeable 
decisions in a timely way. Third, under the OSHAct there is a 
requirement that State programs extend all their protections to public 
employees who are excluded in States where OSHA retains jurisdiction.

    Question 3. Do you agree that Federal OSHA is still vitally 
important even though there are effective State agencies out there?
    Answer 3. Yes, for two reasons. First, Federal jurisdiction is the 
only way to insure that workers in all States who are exposed to 
similar risks receive equal protection under the law. While not 
perfect, the current requirement that OSHA determine whether State 
regulations and enforcement are ``at least as effective as'' OSHA's 
provides authority for the Federal Government to hold all States to a 
common minimum. However, at the present time workers in some States get 
better protection than workers in others because their State program 
has acted where OSHA has been silent. Equal protection would require 
that when one State takes the lead OSHA steps in to expand protections 
nationwide. Second, while a few States have resources adequate for 
independent rulemaking at the State level most States find this 
impossible to do and rely on OSHA for rulemaking that can be simply 
copied at the State level.

    Question 4. Is there any data on the number of injuries, illnesses, 
and fatalities that could be prevented with a more expeditious standard 
setting process?
    Answer 4. I am unaware of any recent studies that have estimated 
this in a comprehensive manner. However, each time OSHA has developed a 
proposed rule it has estimated the numbers of injuries and illnesses 
that would be prevented and in some cases OSHA has done look-back 
studies to demonstrate actual prevention numbers. My full written 
testimony provides examples for silica and lockout/tagout and I will 
not repeat these here. The greatest opportunity for more injury 
reduction is in the area of work-related musculoskeletal disorders 
(WMSDs) that make up 30 to 40 percent of all reportable workplace 
injuries and illnesses and nearly 50 percent of worker compensation 
costs. The cost-benefit analysis for the Washington State ergonomics 
rule (that was eventually repeated in a voter initiative) estimated 
that the rule would have prevented 40 percent of WMSD injuries and 50 
percent of WMSD costs.

    Question 5. How can injury and illness prevention programs improve 
OSHA's responsiveness to workplace hazards?
    Answer 5. OSHA's current regulatory paradigm is very inefficient, 
being limited to a small number of hazard specific rules supplemented 
by the ``general duty clause'' which in principle covers all other 
recognized hazards. However OSHA must justify each general duty 
citation with affirmative evidence that the hazard is ``recognized'' 
and that there is a feasible means of control. This essentially 
requires a fresh regulatory analysis for every general duty citation, a 
burden on the agency that renders this tool unworkable except in the 
most extreme circumstances. If, on the other hand, there was an OSHA 
rule requiring each employer to identify hazards and establish an 
injury and illness prevention program to address these hazards, the 
burden of proof would lie with the employer to justify why it was not 
implementing its own program.

    Question 6. Is there, in fact, any solid evidence that responsible 
safety and health regulation costs jobs?
    Answer 6. I am not aware of any such evidence. To the contrary a 
recent review for the Economic Policy Institute found a moderate 
association between regulation and job creation.\1\ Moreover, an 
important new study in the prestigious journal Science found that the 
enforcement of OSHA regulations not only resulted in reduced worker 
injuries but also did so with ``no evidence that these improvements 
came at the expense of employment, sales, credit ratings, or firm 
survival.'' \2\
---------------------------------------------------------------------------
    \1\  Shapiro I. & Irons J. 2011. Regulation, Employment and the 
Economy: Fears of Job Loss are Overblown, Economic Policy Institute, 
Washington, DC.
    \2\ Levine D., Toffel M., Johnson M. Randomized government safety 
inspections reduce worker injuries with no detectable job loss. 
Science. 336, 907-11. 2012.

    Question 7. What action do you recommend to Congress to improve the 
OSHA standard setting process?
    Answer 7. Require that OSHA periodically update its rules to bring 
them in line with generally accepted consensus standards such as the 
ACGIH threshold limit values, with reduced requirements for significant 
risk and feasibility analysis. Direct OSHA to adopt specific rules 
within a set time limit, such as rules for combustible dust, safe 
patient handling, silica and injury/illness prevention programs. 
Establish the presumption that NIOSH recommended exposure limits will 
become OSHA requirements unless OSHA has a defensible reason for not 
doing so. Extend applicability for all OSHA rules to all public 
employees.

    Question 8. What are the most important things that OSHA can do to 
expedite standard setting in the absence of legislative changes?
    Answer 8. Establish a short regulatory priority list, engage 
NIOSH's assistance, and then adhere to a fixed timetable for 
completion. This may not be possible without the cooperation of OMB.

    Question 9. Are there any new Executive orders or modifications of 
existing Executive orders that you believe would improve OSHA's 
rulemaking process?
    Answer 9. Exempt OSHA from the requirements of Executive Order 
12866, based on the adequacy and robustness of the existing OSHA 
rulemaking process.

    Question 10. Should Congress require that OSHA periodically update 
Permissible Exposure Limits?
    Answer 10. Yes, see #7 above.

    Question 11. How should OSHA use national consensus standards to 
update exposure limits?
    Answer 11. See #7 above.

    Question 12. Should OSHA have the ability to update standards en 
masse or must they do so one at a time?
    Answer 12. See #7 above.

    Question 13. Should Congress set a deadline for OSHA to issue a new 
silica standard? Are there any other hazards in which Congress should 
intervene and mandate OSHA action?
    Answer 13. Yes, see #7 above.
       Response to Questions of Senator Harkin and Senator Enzi 
                          by Randy Rabinowitz
                                         OMB Watch,
                                      Washington, DC 20009,
                                                      May 25, 2012.
Hon. Tom Harkin, Chairman,
Health, Education, Labor, and Pensions Committee,
U.S. Senate,
Washington, DC 20515.

    Dear Senator Harkin:  My responses to questions sent to me after 
the April 19, 2012 hearing entitled: ``Time Takes its Toll: Delays in 
OSHA's Standard-Setting Process and the Impact On Worker Safety'' are 
included with this letter. I have grouped my responses to questions 
from Senator Harkin separate from my responses to questions from 
Senator Enzi.
    If you have any further questions, please feel free to contact me.
            Very truly yours,
                                          Randy Rabinowitz,
                                     Director of Regulatory Policy.
                                 ______
                                 
                             senator harkin
    Question 1. Success of earlier OSHA standards.
    Answer 1. Dr. Silverstein's testimony describes the health benefits 
of several early OSHA health and safety standards, from those reducing 
lead exposure to those mandating lockout/tagout of energized equipment. 
In a 1995 study, ``Gauging Control Technology and Regulatory Impacts in 
Occupational Safety and Health,'' the now-defunct Congressional Office 
of Technology Assessment conducted retrospective case studies for eight 
past OSHA rulemakings--five involving health standards and three 
involving safety standards. The cost estimates for OSHA's 1974 vinyl 
chloride standard considered during rulemaking exceeded $1 billion, but 
a survey of the polyvinyl chloride production industry conducted after 
the standard went into effect concluded that the actual compliance 
costs were in the $228-$278 million range. OSHA's final cost estimate 
for its 1978 cotton dust standard projected annual compliance costs of 
$283 million, but OTA concluded that actual costs amounted to only 
about $82.8 million per year because as a result of the standard the 
textile industry modernized and productivity at its plants improved. 
OSHA estimated in the early 1980s that its occupational lead exposure 
standard would cost the industry $125 million, but actual costs as 
assessed retrospectively by OTA amounted to only around $20 million. 
Similarly, OSHA estimated in 1987 that its formaldehyde standard would 
impose $11.4 million in costs on the industry, but actual costs were 
only $6.0 million, in part because the industry moved rapidly to 
substitute low-formaldehyde resins. In each of these instances, OSHA 
achieved significant health benefits at a fraction of the predicted 
cost.

    Question 2. Public input into OSHA rulemaking.
    Answer 2. OSHA rulemaking affords stakeholders, and particularly 
business, many opportunities to voice their support or opposition to 
any standard the agency is considering. Informally, OSHA often consults 
with interested parties in deciding whether a hazard should be the 
subject of regulation and sometimes holds public meetings or Web chats 
to get input from interested parties. For construction regulations, 
OSHA is required to consult with the Advisory Committee on Construction 
Safety and Health. Often, OSHA will publish a Request for Information 
or Advanced Notice of Proposed Rulemaking to obtain stakeholder input 
on regulatory issues before moving forward with a proposal. When OSHA 
prepares an assessment of a hazard's risks, OMB requires that it seek 
peer review of its scientific assessment. For significant regulations, 
OSHA must convene a small business review panel and respond to its 
concerns before publishing a proposed rule. And, OSHA must seek OIRA 
review of any proposed rule under Executive Order 12866. OIRA logs make 
clear that the review process presents an opportunity--more often for 
opponents of rules than supporters--to urge OIRA to insist on changes. 
Most of these procedures, with the exception of SBREFA panels and 
review by the Construction Advisory Committee are not mandated by 
statute.
    Once OSHA publishes a proposed rule, the OSH Act requires that it 
provide at least 30 days for public comment, although in practice OSHA 
always allows more time for comment. If any party asks for a public 
hearing during the comment period, the OSH Act requires that OSHA hold 
one. OSHA regulations provide that during the hearing, an ALJ presides 
and any party may present testimony or question witnesses. By practice, 
OSHA provides a period for post-hearing comment and a separate period 
for post-hearing arguments. After the rulemaking record closes, but 
before a final rule is published, OSHA must again seek review of its 
rule by OIRA under Executive Order 12866. OIRA review usually offers 
industry, but not labor, yet another opportunity to comment on the 
rule.
    OSHA's final rule must be accompanied by a statement of reasons for 
the rule. The statement of reasons, or preamble, must demonstrate that 
OSHA's standard addresses a significant risk of material impairment in 
the workplace, the standard would reduce or eliminate that significant 
risk, and is both technologically and economically feasible for 
industry to implement. OSHA must respond to all significant comments 
and objections to its rule. Any party may seek judicial review of an 
OSHA standard. Courts will vacate a standard if OSHA has not adequately 
explained its rationale or demonstrated that substantial evidence in 
the rulemaking record supports its conclusions.

    Question 3. Regulatory reform proposals would further delay OSHA 
rulemaking.
    Answer 3. Unfortunately, recent regulatory reform proposals would 
make the OSHA standard-setting process more burdensome. Four separate 
regulatory reform proposals are pending in the Senate: the Regulatory 
Accountability Act (S. 1606), the Regulations from the Executive in 
Need of Scrutiny (REINS) Act (S. 299), the Regulatory Flexibility 
Improvements Act (S. 1938), and the Regulatory Time-Out Act (S. 1538). 
These bills, and others like them, would change the regulatory process 
in different ways but would have the same ultimate result: more delay, 
fewer standards to protect workers, and more illness and injury among 
exposed workers.
Regulatory Accountability Act (S. 1606)
    The Regulatory Accountability Act (RAA) is a breathtakingly broad 
bill that would fundamentally rewrite the Administrative Procedure Act 
(APA). Currently, there are more than 110 separate procedural 
requirements in the rulemaking process \1\; the RAA would add more than 
60 new procedural and analytical steps. Commentators have estimated 
that the RAA would add at least 21 to 39 months to the rulemaking 
process for the most important rules, meaning that the average OSHA 
rulemaking would take more than 12 years to complete--potentially 
spanning four different presidential administrations.\2\
---------------------------------------------------------------------------
    \1\ See Mark Seidenfeld, A Table of Requirements for Federal 
Administrative Rulemaking, 27 Fla. St. L. Rev. 533 (2000), available at 
http://www.law.fsu.edu/journal/lawreview/downloads/272/Seid.pdf.
    \2\ Testimony of Sidney A. Shapiro, University Distinguished Chair 
of Law, Wake Forest School of Law, at Hearing on H.R. 3010, The 
Regulatory Accountability Act of 2011, before the H. Comm. on the 
Judiciary, 112th Cong. 4 (Oct. 25, 2011) at 6.
---------------------------------------------------------------------------
    OSHA rulemaking already includes a process that gives participants 
many opportunities to present their views and to challenge those with 
opposing views. It does so in an open process. The RAA would supplant 
these proven procedures with a more adversarial process. It would 
mandate cost-benefit analysis, overturning the Supreme Court's ruling 
in the Cotton Dust case. It would require that OSHA always use the 
lowest cost rule, leaving workers with less protection, probably 
nothing more than a dust mask to protect themselves from known 
carcinogens. Further, it authorizes the courts to disrupt the 
rulemaking process before it has been completed. Each of these changes 
would complicate rather than simplify rulemaking, and delay worker 
protections.
Regulations From the Executive in Need of Scrutiny (S. 299)
    The Regulations from the Executive in Need of Scrutiny, or REINS 
Act, would reinsert Congress into the rulemaking process by requiring 
that both houses of Congress approve each major rule, with no 
alterations, within a 70-day window. If either chamber fails to approve 
the rule, it will not take effect and cannot be reconsidered until the 
next congressional session. Given the polarized character of Congress 
today, this law is a recipe for a freeze on new rules.
    Such an affirmative approval requirement would turn the current 
process upside down. Congress already has substantial power to 
influence agency rulemaking: through its oversight power; through the 
appropriations process; and under the Congressional Review Act of 1996. 
There is no reason to require an affirmative vote of Congress before a 
rule takes effect.
    The REINS Act would waste agency resources. For example, it took 
OSHA more than 10 years to publish a standard regulating the operation 
of cranes and derricks at construction sites, even though both industry 
and unions agreed a standard was needed. If the REINS Act became law, 
inaction by Congress would block the rule from going into effect, 
wasting the significant resources OSHA had invested in developing the 
rule.
Regulatory Flexibility Improvements Act (S. 1938)
    The Regulatory Flexibility Improvements Act would expand a range of 
rules covered by the Regulatory Flexibility Act to include those that 
have a reasonably foreseeable indirect effect on small businesses; 
establish more onerous requirements for the initial and final 
regulatory flexibility analyses, including an estimate of cumulative 
impacts on small businesses; allow the Chief Counsel for Advocacy of 
the Small Business Administration to issue rules to govern Federal 
agencies' rulemaking procedures; and establish a more onerous 
requirement for the notice that Federal agencies must give the Small 
Business Administration prior to publishing a proposed rule.
    OSHA is already required to analyze the impacts of its standards on 
small business, consult with small business owners and the SBA about 
those impacts, and make changes to its rules where appropriate to 
minimize those impacts. Additional analysis of small business impact 
duplicates the requirements in existing law. Workers in small 
businesses face the same hazards as those in larger business. This bill 
would do little to protect workers in small businesses or to help their 
employers reduce such hazards. Moreover, it concentrates enormous power 
in the hands of one appointed official in the Office of Advocacy, while 
the OSHA hearing process gathers information from a host of small 
business owners from all over the country.
Regulatory Time-Out Act (S. 1538)
    The Regulatory Time-Out Act, which would prohibit agencies from 
issuing most significant regulations for a year, is one of several 
bills which would prohibit new rules. These laws would simply keep 
Federal agencies from carrying out their legally defined missions of 
protecting the health and safety of the American people.
    When Congress passed the OSH Act in 1970, it promised workers that 
OSHA would protect them from workplace hazards. Too many chemicals and 
other hazards remain unregulated. The Environmental Protection Agency 
has listed more than 62,000 chemicals in its Toxic Substance Control 
Act Chemical Substance Inventory, but OSHA regulates worker exposures 
to only 400 of them.\3\ Too many of OSHA's existing standards are based 
on outdated science. They need to be upgraded to reflect current 
scientific and medical research. The current rulemaking process makes 
this impossible.
---------------------------------------------------------------------------
    \3\ Occupational Safety and Health Administration, ``Hazardous and 
Toxic Substances,'' http://www.osha.gov/SLTC/hazardoustoxicsubstances/
index.html (last visited Apr. 16, 2012).

    Question 4. No evidence shows OSHA standards reduces employment.
    Answer 4. A comprehensive review of the relationship between 
industry regulations and job growth within those industries conducted 
by the Economic Policy Institute found that most regulations result in 
modest job growth.\4\ Even researchers at the Mercatus Center, a 
conservative regulatory policy center, acknowledged in written comments 
to House Oversight and Government Reform Committee Chair Darrell Issa, 
and in testimony to that committee, that there is little evidence that 
at a macro level, regulations have caused massive job loss in the 
United States.\5\ There is no evidence that occupational safety and 
health regulations issued by OSHA have cost America jobs.
---------------------------------------------------------------------------
    \4\ Isaac Shapiro & John Irons, Regulation, Employment and the 
Economy: Fears of Job Loss are Overblown, Economic Policy Institute 
(2011).
    \5\ Letter from Richard Williams, Ph.D., Dir. of Policy Research, 
Mercatus Ctr, to Darrell Issa, Chairman, H. Comm. on Oversight & Gov't 
Reform (Jan. 5, 2011) (on file with author); Testimony of Jerry Ellig, 
Regulatory Analysis: Understanding Regulation's Effects, before the H. 
Comm. on Oversight & Gov't Reform (Feb. 10, 2011).

    Question 5. Recommendations for change.
    Answer 5. I agree with the recommendations made by Dr. Silverstein.
                              senator enzi
    Question 1. Prior consulting work.
    Answer 1. Below is a list of the State and Federal agencies for 
whom I have worked as a consultant during the past 10 years. This list 
is based on my recollection of projects and dates because I no longer 
have supporting documentation to verify the dates for these projects. 
None of the consulting work involved OSHA standards discussed at the 
hearing on April 19, 2012.

     2000-2002--Consultant to Washington State Department of 
Labor & Industries
     2005-2006--Consultant to the Secretariat on Labor 
Cooperation
     2006--Consultant to Washington State Department of Ecology
     2009-2010--Consultant to Ruth Ruttenberg & Associates 
which had a contract with Michigan Department of Energy, Labor, and 
Economic Growth
     2010--Consultant to Project Enhancement Corp. which had a 
contract with OSHA
     2010-2012--Consultant to URS which has a contract with HHS

    Question 2. Requests for OIRA meetings.
    Answer 2. I began my employment as Director of Regulatory Policy at 
OMB Watch on March 16, 2012. In that capacity, I have not requested a 
meeting with OIRA.

    Question 3. Setting OSHA priorities.
    Answer 3. It is true that when OSHA's leadership decides to 
prioritize a hazard specific rulemaking, the process moves more quickly 
than would usually be the case. As I said during the hearing, I believe 
the standard-setting process would be improved by requiring OSHA to set 
a series of rulemaking priorities and to see those priority rulemakings 
through to a conclusion. Shifting regulatory priorities is one of many 
causes of delay in OSHA rulemaking.
    The ergonomics example does not suggest, however, that setting 
regulatory priorities more effectively will eliminate delay. In the 
case of ergonomics, OSHA was able to move from proposed rule to final 
rule in just over 1 year because it had invested substantial efforts 
into preparing for rulemaking long before the proposed rule was 
published. In reality, the rulemaking effort had begun before 1995. 
Requirements for regulatory analysis imposed by Executive Order 12866, 
the Regulatory Flexibility Act, and the Small Business Regulatory 
Enforcement Fairness Act mean that it is, as a practical matter, 
impossible to complete a hazard specific OSHA rulemaking in 1 year. 
Further, by shifting, as you describe it, ``50 staffers from other 
projects,'' OSHA was unable to move other standard-setting projects 
forward while debating ergonomics.
         Response to Questions of Senator Enzi by David Sarvadi
    Question 1. I am impressed by your long career in workplace safety, 
including working as a certified industrial hygienist safety consultant 
to many companies and now teaching OSHA compliance seminars. During 
your career have you had the opportunity to observe both unionized and 
non-unionized worksites? Have you noted any difference in safety 
observance between the two?
    Answer 1. Overall, my experience is that the level of compliance 
with safety requirements is independent of whether the workers at a 
site are represented by a union. I have seen both excellent and poor 
safety-related practices in both environments. Unfortunately, the 
presence of a union sometimes leads to what I view as misuse of the 
workplace safety process. I've had both management and union safety 
representatives in my classes complain about the use of the grievance 
process to shield union members from discipline for safety infractions, 
and the use of safety rules to slow down production and harass 
employers with OSHA complaints during periods of labor disputes. 
Indeed, one critical piece of information to know in an OSHA inspection 
is whether there is an ongoing labor dispute.
    On the other hand, I have seen less stringent adherence to safety 
practices in some non-union environments. In both cases, these seem to 
be the exception rather than the rule, and I view with skepticism 
published papers and comments suggesting that having a union results in 
greater compliance or necessarily a safer workplace. Of the papers I 
have reviewed, the authors do not take into account all of the 
variables that play into safety performance or compliance, and they 
typically overstate the role of having a union.

    Question 2. You mention in your testimony, and the rest of the 
panelists seem to agree, that involving stakeholders earlier in the 
rulemaking process is going to be beneficial for the standard setting 
process. You suggest that this sort of input needs to be done long 
before a proposed rule is drafted, because once the Notice of Proposed 
Rulemaking (NPRM) is released that new standard is largely going to 
reflect that. When do you think is the appropriate time for OSHA and 
other Federal agencies to begin speaking with stakeholders?
    Answer 2. I think it should be done informally from the earliest 
possible moment, and should continue up to the time that the proposal 
is formally published as a Notice of Proposed Rulemaking (NPRM).
    I also think that every rule with a meaningful economic impact or 
compliance burden should go through the SBREFA process and, while 
limiting the official panel participation to SERs, OSHA should make 
public all documents provided to the panel, accept comments from all 
interested parties, and make those comments part of the official 
record. The ex parte rules really don't go into effect until the 
proposal is published, and an open door policy as well as a policy of 
reaching out to different affected groups up to the point where the ex 
parte rules become effective (when the NPRM is published) should be the 
norm. With organized labor representing only about 7 percent of the 
private sector workforce, I think OSHA should be making a more 
concerted effort to reach employees who are not in organized 
workplaces.
    Most importantly, OSHA should not conduct the peer review of the 
draft risk assessment or the economic and technical feasibility 
documents in secret. By comparison, EPA puts its preliminary drafts out 
for public input, and holds public meetings with its peer review 
panels, at which interested parties are encouraged to submit data and 
make presentations, with open discussion between the scientists on the 
panels and the interested parties. EPA does conduct some sessions in 
private, but much, perhaps most, of the review is done in public. OSHA 
(under John Henshaw) initially announced its intention to proceed in 
that fashion with respect to crystalline silica, but reversed course 
without any explanation. OSHA's practice of not releasing the risk 
assessment and other critical documents until it issues the NPRM 
undermines the legitimacy of the rulemaking process and runs counter to 
commitments made by the administration to have an open and transparent 
rulemaking process that provides an adequate opportunity for public 
comment.
    I mentioned in my testimony that OSHA could engage in a more 
effective way with the interested parties through the trade 
associations and professional societies that bring those interested 
parties together on a regular basis. Frequent discussions in groups of 
10-15 people facilitates the kind of information transfer and 
understanding that I think would smooth the process. It shouldn't 
always be a meeting with all interests represented. Having only one 
interest group represented in the room will often make for a more 
candid and flexible discussion, as it is not always possible to concede 
a position with one's opponents in the room. OSHA would do well to 
consider how arbitration and negotiated settlements through 
intermediaries can facilitate reaching agreement, in contrast to the 
more common process of having all parties present at all meetings. If 
OSHA meets with one side of an issue and feels it needs the views of 
the other side, it can always arrange a similar meeting to get that 
input.
    In addition, the current conflict of interest rules often prevent 
the very people who have the most knowledge and experience with a 
particular subject from informing OSHA and other agencies on that 
subject during the time period when it would be most effective--simply 
because they are employed by employers who would be affected by a new 
or revised rule. This is short-sighted. Having such people participate 
in the entire conversation will assure that all relevant information is 
considered on a timely basis. Delaying their participation until after 
the risk assessments and other analyses are completed and made public 
places them in the enormously unfair position of having to overcome the 
bias that the people involved in making the decisions have in defending 
their work. Moreover, everyone involved in the process will know of the 
participant's relationship to the company and financial interest in the 
issue, and his or her opinion and comments will be judged in that 
light. The alternative is to disregard an important and often critical 
source of information, experience, and often, judgment.
    Finally, the others on the panel mentioned closer cooperation with 
NIOSH. That would help if NIOSH did its analysis on the same basis as 
OSHA is required to do so. Currently, it is our understanding that 
NIOSH does not take into account economic or technical feasibility in 
its Recommended Exposure Limits (REL). That means, in my view, that the 
RELs are not very helpful when OSHA is required to do so. NIOSH has 
technical expertise in its Engineering Branch, among other branches, 
and is tasked with reviewing and developing technological advances in 
workplace hazard control. Shouldn't NIOSH's experts take practicality 
into account as well?

    Question 3. Can you in general terms, describe the process in 
obtaining a meeting with the Office of Information and Regulatory 
Affairs (OIRA)?
    Answer 3. These meetings are held by OIRA in connection with its 
pre-publication review of proposed or final rules under the Executive 
Order 12866. Once a rule is under review by OIRA (either proposed or 
final), Administrator Cass Sunstein has said that any meeting request 
will be granted. The process involves contacting the person at OIRA who 
is responsible for the topic in question and requesting that a meeting 
be scheduled. For these meetings, OSHA (or the relevant agency) is 
invited, and at the ones I have attended, they have been well 
represented. Since meeting requesters do not know the substance of what 
has been submitted for review, the format is usually to go over 
information previously provided, with the opportunity to emphasize and 
clarify in response to questions the positions and information being 
provided. Indeed, at one meeting, we discussed OSHA's economic impact 
analysis, and I was able to demonstrate that even a cursory assessment 
by someone with real world experience would come up with a practical 
calculation that was far different from OSHA's assessment. Cass 
Sunstein has said that he welcomes the input from those affected by 
regulations during these meetings so that his office has a clear 
understanding of the rule they are reviewing.
                                 ______
                                 
              Coalition for Workplace Safety (CWS),
                                            April 19, 2012.
Hon. Tom Harkin, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
SD-428 Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Harkin and Ranking Member Enzi: The Coalition for 
Workplace Safety (CWS), a broad coalition comprised of associations and 
employers dedicated to improving workplace safety through cooperation, 
respectfully submits this letter in response to today's hearing titled, 
``Time Takes Its Toll: Delays in OSHA's Standard-Setting Process and 
the Impact on Worker Safety.''
    The Occupational Safety and Health Administration (OSHA) has been 
criticized as unable to proceed quickly enough to implement its 
regulatory priorities due to the various requirements it must satisfy 
to issue new standards. The premise underlying this criticism is that 
this inability to issue more standards has somehow meant employees are 
less safe. Yet, during this period when OSHA has issued few new 
standards, workplace fatalities, injuries and illnesses have declined 
steadily to their lowest recorded levels.
    We believe these criticisms are misguided. These critics fail to 
understand that the steps in OSHA's rulemaking process exist for a 
reason. Congress recognized that without first examining feasibility, 
economic impact, and small business impact, among other factors, OSHA 
would risk pushing out poorly designed and badly supported standards 
and that consequently such standards would not provide appropriate 
guidance to employers to assist them in protecting their employees from 
the designated hazards.
    Employers and OSHA agree that workers need adequate safety and 
health protections on the job. CWS believes this can be best achieved 
by making agency standards as practical, science and data driven, cost-
effective and performance-oriented as possible. We understand and value 
the importance of common sense policymaking based on sound scientific 
evidence, with meaningful attention paid to economic analyses and 
practical input from stakeholders. In addition, proper consideration 
must be given to potential conflict with other requirements outside 
OSHA's purview, such as environmental or transportation regulations.
    Our members are committed to providing safe workplaces and striving 
to improve safety in their workplaces. Ultimately, everyone benefits 
when agencies work with the industries they regulate to identify and 
achieve mutual goals. CWS stands ready to work with OSHA and Congress 
to pursue policies that will help improve workplace safety.
            Sincerely,

    American Bakers Association; American Composites Manufacturers 
Association; American Feed Industry Association; American Foundry 
Society; American Hotel & Lodging Association; American Iron and Steel 
Institute; Associated General Contractors; Associated Builders and 
Contractors; Associated Wire Rope Fabricators; Brick Industry 
Association; Corn Refiners Association; Food Marketing Institute; 
Forging Industry Association; Heating, Air-Conditioning & Refrigeration 
Distributors International; Independent Electrical Contractors; 
Industrial Fasteners Institute; Industrial Minerals Association--North 
America; IPC--Association Connecting Electronics Industries; Leading 
Age; Motor & Equipment Manufacturers Association; National Association 
for Surface Finishing; National Association of Chemical Distributors; 
National Association of Convenience Stores; National Association of 
Home Builders; National Association of Manufacturers; National 
Association of Wholesaler-Distributors; National Cotton Council; 
National Cotton Ginners Association; National Council of Textile 
Organizations; National Federation of Independent Business; National 
Grain and Feed Association National Marine Manufacturers Association; 
National Oilseed Processors Association; National Roofing Contractors 
Association; Non-Ferrous Founders' Society; North American Die Casting 
Association; Printing Industries of America; Retail Industry Leaders 
Association; Shipbuilders Council of America; Textile Rental Service 
Association; Tree Care Industry Association; U.S. Chamber of Commerce.
                                 ______
                                 
                                  RAND Corporation,
                                             Arlington, VA,
                                                    April 27, 2012.
Hon. Tom Harkin, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC 20510.

    Dear Chairman Harkin and Ranking Member Enzi: I am writing today to 
correct a statement made at the Committee on Health, Education, Labor, 
and Pensions recent April 19 hearing, Time Takes Its Toll: Delays in 
OSHA's Standard-Setting Process and the Impact on Worker Safety.
    David Sarvadi, Partner at Keller and Heckman LLP in Washington, DC, 
was a witness in the hearing's second panel on behalf of the U.S. 
Chamber of Commerce. He also submitted written testimony on behalf of 
the U.S. Chamber of Commerce. In this written testimony, he refers to 
research that he attributes to the RAND Corporation regarding the 
greater effectiveness of consultations over inspections in preventing 
injuries. RAND has not conducted research on this topic and thus is not 
a source for this conclusion.
    I believe he is mistaking this for research done by the Washington 
State Department of Labor and Industries' research organization, Safety 
and Health Assessment and Research for Prevention (SHARP). 
Consultations certainly have an important role to play, but as someone 
who is extremely familiar with studies in this area, I can state that 
Mr. Sarvadi's interpretation of the data is not valid. Because 
employers ask for consultations, those who get them are, on average, 
more motivated to improve and would have done so to some degree even 
without the consultation. We currently have no way of disentangling the 
effect of the consultation.
    The RAND Center for Health and Safety in the workplace has done a 
number of studies on ways to help improve worker health and safety and 
reduce the economic costs of workplace accidents and illnesses. The 
Center provides rigorous, objective analysis and a neutral venue in 
which to convene stakeholders from government, industry, and labor. I 
am happy to discuss any of this research further and as always, please 
do not hesitate to contact me with any questions or concerns.
            With regards,
                                            John Mendeloff,
                                  Director, RAND Center for Health 
                                and Safety in the Workplace (CHSW).
                                 ______
                                 
                            Keller and Heckman LLP,
                                      Washington, DC 20001,
                                                       May 3, 2012.
Hon. Tom Harkin, Chairman,
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.

Re: Rand Corporation Letter on Voluntary Programs

    Dear Senator Harkin and Senator Enzi: Thank you for the opportunity 
to provide supplemental information for the record of the April 19 
hearing. I was provided a copy of a letter from John Mendelhof, 
director of Rand Corporation's Center for Health and Safety in the 
Workplace, who wrote to you regarding a reference I made in my 
testimony to a study I mistakenly attributed to them. He is correct 
that the data on which I relied was from a report from the Washington 
State SHARP program. I have attached a PDF of the presentation that was 
the basis for my statement that employers who participate in the 
voluntary consultation have lower injury and illness rates than 
employers who are subject to enforcement by the State OSHA program.\1\
---------------------------------------------------------------------------
    \1\ The presentation was distributed at the Midwinter meeting of 
the Occupational Safety & Health Law Committee, part of the American 
Bar Association's Labor and Employment Section, in Sarasota, FL, in 
March 2012.
---------------------------------------------------------------------------
    Several of the comparisons in the presentation show statistically 
significant decreases in compensable claims for employers participating 
in voluntary programs than those subject to enforcement, compared to 
employers who have neither, and to a larger extent than those who are 
inspected. Moreover, it is well-established that participants in the 
Federal Voluntary Protection Program (VPP) have far lower rates of 
injury and illness reported compared to general industry.
    Mr. Mendelhof 's categorical statement that my interpretation is 
``not valid'' misinterprets the inference I took from the data. I 
believe my statement was that employers who voluntarily adopt strong 
compliance efforts produce far more effective programs. While it is 
true they are self-selected, the conclusion relevant to the policy 
issue that should be drawn is that there should be more effort and more 
incentives to get people into voluntary programs. We will get far more 
bang for the buck by creating real incentives to sign up than anything 
we do on the enforcement side. Clearly, such evidence supports the 
expansion of the VPP and other incentive programs for employers to 
induce them to voluntarily seek assistance and to adopt programs that 
go beyond the minimum. In other words, we need to get more people to 
``self-select'' into such programs!
    Moreover, my experience with the current enforcement attitude is 
that it is making people resent OSHA again, because the Agency is 
viewed as an adversary and not as a resource. We need a debate on how 
to get to the next level in our national occupational safety and health 
programs. I believe the model we are now using has reached the point of 
rapidly diminishing returns, and that stronger incentives for voluntary 
programs would be more productive in the long run.
    Thank you for the opportunity to respond and to participate in this 
important discussion. I look forward to seeing the results of your 
efforts.
            Respectfully submitted,
                                          David G. Sarvadi.



























    [Whereupon, at 12:03 p.m., the hearing was adjourned.]

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