[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                       OSHA'S REGULATORY AGENDA: 
                    CHANGING LONG-STANDING POLICIES 
                 OUTSIDE THE PUBLIC RULEMAKING PROCESS 

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

            HEARING HELD IN WASHINGTON, DC, FEBRUARY 4, 2014

                               __________

                           Serial No. 113-43

                               __________

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

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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Tom Price, Georgia                   Ruben Hinojosa, Texas
Kenny Marchant, Texas                Carolyn McCarthy, New York
Duncan Hunter, California            John F. Tierney, Massachusetts
David P. Roe, Tennessee              Rush Holt, New Jersey
Glenn Thompson, Pennsylvania         Susan A. Davis, California
Tim Walberg, Michigan                Raul M. Grijalva, Arizona
Matt Salmon, Arizona                 Timothy H. Bishop, New York
Brett Guthrie, Kentucky              David Loebsack, Iowa
Scott DesJarlais, Tennessee          Joe Courtney, Connecticut
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Larry Bucshon, Indiana               Jared Polis, Colorado
Trey Gowdy, South Carolina           Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania             Northern Mariana Islands
Joseph J. Heck, Nevada               Frederica S. Wilson, Florida
Susan W. Brooks, Indiana             Suzanne Bonamici, Oregon
Richard Hudson, North Carolina       Mark Pocan, Wisconsin
Luke Messer, Indiana
[Vacant]

                    Juliane Sullivan, Staff Director
                 Jody Calemine, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    TIM WALBERG, Michigan, Chairman

John Kline, Minnesota                Joe Courtney, Connecticut,
Tom Price, Georgia                     Ranking Member
Duncan Hunter, California            Robert E. Andrews, New Jersey
Scott DesJarlais, Tennessee          Timothy H. Bishop, New York
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Larry Bucshon, Indiana               Gregorio Kilili Camacho Sablan,
Richard Hudson, North Carolina         Northern Mariana Islands
                                     Mark Pocan, Wisconsin



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 4, 2014.................................     1

Statement of Members:
    Courtney, Hon. Joe, ranking member, Subcommittee on Workforce 
      Protections................................................     4
        Prepared statement of....................................     6
    Walberg, Hon. Tim, Chairman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Baskin, Maury, Esq., shareholder, Littler Mendelson, P.C., on 
      behalf of the National Association of Manufacturers and 
      Associated Builders and Contractors, Inc...................    32
        Prepared statement of....................................    34
    Hammock, Bradford, shareholder, Jackson Lewis P.C., 
      testifying on behalf of the U.S. Chamber of Commerce.......     8
        Prepared statement of....................................    10
    Rabinowitz, Randy S., attorney at law........................    25
        Prepared statement of....................................    27
    VanderWal, Scott, president, South Dakota Farm Bureau 
      Federation.................................................    22
        Prepared statement of....................................    24

Additional Submissions:
    Mr. Courtney:
        Rylatt, Catherine A., MPA, prepared statement of.........    50
    Miller, Hon. George, senior Democratic member, Committee on 
      Education and the Workforce:
        Michaels, Hon. David, Ph.D., MPH, Assistant Secretary, 
          Occupational Safety and Health Administration, U.S. 
          Department of Labor, prepared statement of.............    54


                       OSHA'S REGULATORY AGENDA:
                    CHANGING LONG-STANDING POLICIES
                 OUTSIDE THE PUBLIC RULEMAKING PROCESS

                              ----------                              


                       Tuesday, February 4, 2014

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:02 a.m., in 
room 2175, Rayburn House Office Building, Hon. Tim Walberg 
[chairman of the subcommittee] presiding.
    Present: Representatives Walberg, Kline, Rokita, Hudson, 
Courtney, and Pocan.
    Staff present: Janelle Belland, Coalitions and Members 
Services Coordinator; Ed Gilroy, Director of Workforce Policy; 
Nancy Locke, Chief Clerk; James Martin, Professional Staff 
Member; Daniel Murner, Press Assistant; Brian Newell, Deputy 
Communications Director; Krisann Pearce, General Counsel; Molly 
McLaughlin Salmi, Deputy Director of Workforce Policy; Alissa 
Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; 
Alexa Turner, Legislative Assistant; Tylease Alli, Minority 
Clerk/Intern and Fellow Coordinator; Jody Calemine, Minority 
Staff Director; Melissa Greenberg, Minority Staff Assistant; 
Julia Krahe, Minority Communications Director; Leticia Mederos, 
Minority Director of Labor Policy; Richard Miller, Minority 
Senior Labor Policy Advisor; Megan O'Reilly, Minority General 
Counsel; Michael Zola, Minority Deputy Staff Director; and Mark 
Zuckerman, Minority Senior Economic Advisor.
    Chairman Walberg. A quorum being present, the committee 
will come to order.
    Good morning. I would like to welcome our guests and thank 
our witnesses for joining us this morning.
    In recent weeks there has been a great deal of discussion 
about the use of executive power. President Obama promised in 
his State of the Union address to go around Congress when 
necessary to advance his own agenda. The President's remarks 
fits a pattern we are all too familiar with under this 
administration and goes well beyond the attitudes and actions 
of past administrations of both parties.
    Be it through non-recess recess appointments, waiving the 
work requirements in welfare reform, or unilaterally delaying 
parts of the health care law, time and again the administration 
has made end-runs around Congress and the American people we 
represent to serve its own political interests. Today we will 
discuss instances of this executive overreach within the 
Occupational Safety and Health Administration.
    Like most federal agencies, the Administrative Procedure 
Act, or APA, governs OSHA's regulatory process. Enacted during 
the Truman administration, the law requires agencies to issue a 
proposed rule, collect public feedback, and review and respond 
to comments before issuing a final rule.
    In 1948 Senator Pat McCarran, Democrat from Nevada and 
chairman of the Senate Judiciary Committee, described the APA 
as a--and I quote--``bill of rights for those Americans whose 
affairs are controlled or regulated in one way or another by 
agencies of the federal government,'' end quote. Senator 
McCarran also said the law was designed to, quote--``provide 
due process in administrative procedure.''
    In addition to following the guidelines set forth in the 
APA, before moving forward with a proposed rule OSHA is also 
required to determine that a health and safety risk exists, 
examine the economic impact of the proposed rule, and evaluate 
the technical feasibility of compliance. These legal guidelines 
are in place to protect the public against excessive 
regulations, provide important transparency over work of 
federal agencies, and ensure the right policies are in place.
    And so it is very troubling to see the administration 
circumvent the public rulemaking process in order to 
significantly alter health and safety standards. Assistant 
Secretary David Michaels has openly expressed his frustration 
with the rules he must follow before imposing new regulations 
on workplaces. Instead, he has promised to find, and I quote--
``creative solutions,'' end quote, to adopt his policy 
priorities, and that is precisely what the agency is now doing.
    For example, OSHA recently issued a letter of 
interpretation that dramatically changes policies surrounding 
nonemployee participation in workplace inspections. For years 
OSHA has prohibited nonemployees from participating in safety 
inspections of nonunionized workplaces. The only exception 
allows certain specialists to participate in order to conduct 
an effective and thorough physical inspection of the workplace.
    Now the agency is allowing virtually anyone to accompany 
OSHA inspectors, including union organizers. This raises a 
number of important questions.
    Who is responsible for ensuring the nonemployee receives 
the proper health and safety training? Is the employer liable 
for an accident involving this nonemployee? Should safety 
inspections provide a Trojan horse to union bosses who want to 
organize a workplace?
    These and other concerns have not been addressed because 
the agency has refused to solicit public feedback.
    OSHA is also denying the public the right to weigh in on 
its unprecedented decision to inspect family farms. Since 1978 
Congress and the President have agreed to statutory language 
that prevents OSHA from inspecting farms with 10 or fewer 
employees. Yet without any notice, public review, or change in 
the law, OSHA issued guidance that allows for the inspection of 
family farms.
    To justify its new policy, OSHA's flawed logic suggests 
anything outside the growing of crops or raising of livestock 
is considered non-farming operations and therefore subject to 
inspection. It would surprise most farmers to learn the storage 
of grain, corn, or wheat is not a vital part of their farming 
operation. As Chairman Kline and I noted in a recent letter to 
Assistant Secretary Michaels, and I quote--``The guidance 
simply does not reflect the reality of family farming or the 
will of Congress and should be withdrawn.''
    I expect we will discuss in more detail these and other 
examples of OSHA's executive overreach during this morning's 
hearing. We all want to ensure America's workers are employed 
in safe and healthy workplaces, and that goes for both sides of 
the aisle.
    Unfortunately, rewriting the law through executive fiat and 
circumventing the public rulemaking process undermines this 
goal, creating confusion and uncertainty for workers and job 
creators. I strongly urge the administration to reverse course.
    With that, I now yield to my colleague, Representative Joe 
Courtney, the senior Democratic member of this subcommittee, 
for his opening remarks.
    [The statement of Chairman Walberg follows:]

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

    Good morning. I'd like to welcome our guests and thank our 
witnesses for joining us. In recent weeks there has been a great deal 
of discussion about the use of executive power. President Obama 
promised in his State of the Union address to go around Congress when 
necessary to advance his own agenda. The president's remarks fit a 
pattern we're all too familiar with under this administration, and goes 
well beyond the attitudes and actions of past administrations of both 
parties.
    Be it through non-recess recess appointments, waiving the work 
requirements in welfare reform, or unilaterally delaying parts of the 
health care law, time and again the administration has made end-runs 
around Congress and the American people to serve its own political 
interests. Today we will discuss instances of this executive overreach 
within the Occupational Safety and Health Administration.
    Like most federal agencies, the Administrative Procedure Act or APA 
governs OSHA's regulatory process. Enacted during the Truman 
administration, the law requires agencies to issue a proposed rule, 
collect public feedback, and review and respond to comments before 
issuing a final rule.
    In 1948 Senator Pat McCarran, Democrat from Nevada and chairman of 
the Senate Judiciary Committee, described the APA as a ``bill of rights 
for [those] Americans whose affairs are controlled or regulated in one 
way or another by agencies of the federal government.''
    Senator McCarran also said the law was designed to ``provide due 
process in administrative procedure.''
    In addition to following the guidelines set forth in the APA, 
before moving forward with a proposed rule OSHA is also required to 
determine that a health and safety risk exists, examine the economic 
impact of the proposed rule, and evaluate the technical feasibility of 
compliance. These legal guidelines are in place to protect the public 
against excessive regulations, provide important transparency over the 
work of federal agencies, and ensure the right policies are in place.
    It's very troubling to see the administration circumvent the public 
rulemaking process in order to significantly alter health and safety 
standards. Assistant Secretary David Michaels has openly expressed his 
frustration with the rules he must follow before imposing new 
regulations on workplaces. Instead, he has promised to find ``creative 
solutions'' to adopt his policy priorities, and that is precisely what 
the agency is now doing.
    For example, OSHA recently issued a ``letter of interpretation'' 
that dramatically changes policies surrounding non-employee 
participation in workplace inspections. For years OSHA has prohibited 
non-employees from participating in safety inspections of non-unionized 
workplaces. The only exception allows certain specialists to 
participate in order to conduct an effective and thorough physical 
inspection of the workplace.
    Now the agency is allowing virtually anyone to accompany OSHA 
inspectors, including union organizers. This raises a number of 
important questions: Who is responsible for ensuring the non-employee 
receives the proper health and safety training? Is the employer liable 
for an accident involving this non-employee? Should safety inspections 
provide a Trojan horse to union bosses who want to organize a 
workplace? These and other concerns have not been addressed because the 
agency has refused to solicit public feedback.
    OSHA is also denying the public the right to weigh in on its 
unprecedented decision to inspect family farms. Since 1978 Congress and 
the President have agreed to statutory language that prevents OHSA from 
inspecting farms with 10 or fewer employees. Yet without any notice, 
public review, or change in the law, OSHA issued guidance that allows 
for the inspection of family farms.
    To justify its new policy, OSHA's flawed logic suggests anything 
outside the growing of crops or raising of livestock is considered 
``non-farming operations'' and therefore subject to inspection. It 
would surprise most farmers to learn the storage of grain, corn, or 
wheat is not a vital part of their farming operation. As Chairman Kline 
and I noted in a recent letter to Assistant Secretary Michaels, ``The 
guidance simply does not reflect the reality of family farming or the 
will of Congress [and] should be withdrawn.''
    I expect we will discuss in more detail these and other examples of 
OSHA's executive overreach during this morning's hearing. We all want 
to ensure America's workers are employed in safe and healthy 
workplaces. Unfortunately, rewriting the law through executive fiat and 
circumventing the public rulemaking process undermines this goal, 
creating confusion and uncertainty for workers and job creators. I 
strongly urge the administration to reverse course.
    With that, I now yield to my colleague Representative Joe Courtney, 
the senior Democratic member of the subcommittee, for his opening 
remarks.
                                 ______
                                 
    Mr. Courtney. Thank you, Mr. Chairman. And I want to thank 
you for holding this morning's hearing on the Occupational 
Safety and Health Administration, which was created over 40 
years ago to improve workplace safety.
    Yet despite the fact that it has been around for 40 years, 
each year thousands of workplace deaths and millions of 
injuries impose needless suffering on people across the country 
and continue to take a huge toll on the American economy. We 
need to do far more to ensure that workers can come home to 
their families in the same condition that they left in the 
morning.
    This is the first hearing that we have held on this issue 
in the 113th Congress impacting workplace health and safety 
protection since I joined this subcommittee back in January. 
Protecting workplace safety and health and helping federal and 
state agencies tasked with this mission can and should be a 
high priority for our committee. It is certainly worth our 
committee's time to consider, as recent incidents have 
demonstrated, whether OSHA maintains the necessary resources 
and modern standards needed to provide the workplace 
protections that Americans need and deserve.
    For example, in the past year the New York Times reported 
that a large number of workers have been crippled from 
breathing excessive amounts of a neurotoxin solvent used in 
adhesives for making foam cushions. OSHA has no standard to 
protect these workers, nor do most states, though a well-
respected scientific organization recommended exposure limits 
at a mere fraction of the levels to which workers today--every 
day, right here as we are sitting here--are now being exposed. 
After the story broke, OSHA was limited to issuing nothing more 
than an alert bulletin, at least in the near term.
    Incidents like these highlight OSHA's lack of capacity to 
address workplace safety adequately, which this committee 
should tackle. In 2012 the GAO reported that with existing 
requirements and resources it takes, on average, from 7 years 
to 19 years for OSHA to issue a new health or safety standard. 
Because of this delay, there have been only 16 new health 
standards established since the creation of OSHA 4 decades ago.
    For example, there is very strong scientific evidence that 
OSHA's limits for exposure to beryllium are far too high to 
protect workers from developing chronic beryllium disease. 
Beryllium, which was first used in nuclear weapons production, 
is now used in products from electronics to golf clubs.
    To address the widespread health problems caused by 
beryllium in the 1940s, two Atomic Energy Commission scientists 
agreed on the limit on the way to a meeting in a taxi that are 
still in place today. Sometimes referred to as the ``taxicab 
standard,'' this standard was basically pulled out of thin air 
and does little to protect workers from contracting suffocating 
and eventually life-ending beryllium-induced disease.
    Some industries now have voluntarily agreed to cut the 
limit on other substances, such as styrene, to one half of the 
now obsolete taxicab standard, and the beryllium industry and 
the United Steelworkers Union have jointly asked OSHA to cut 
this exposure limit by 90 percent. But voluntary efforts alone 
are insufficient. OSHA needs to have the resources and the 
capacity to update standards to do more.
    As Dr. David Michaels, the OSHA administrator, recently 
stated, ``simply complying with OSHA's antiquated permissible 
exposure levels will not guarantee that workers will be safe'', 
but the cumbersome standard-setting process put into place by 
Congress, the courts, and OMB leaves workers with outdated and 
inadequate protections despite the best efforts of agency 
officials.
    Our committee needs to focus on helping OSHA address the 
challenges of updating outdated and outmoded health standards, 
which in many areas, such as beryllium, consensus actually 
exists between management and workers. In 2 days we are going 
to celebrate a sad milestone in the state of Connecticut. On 
February 7, 2010 there was a nuclear--excuse me, a natural gas 
plant under construction and they were using basically natural 
gas to vent the pipes--something which, you know, the large 
manufacturers of this, like Siemens, had been warning people 
was highly dangerous and should not be used; they should be 
using oxygen or air to clean the pipes.
    But that day in Middletown, Connecticut they used natural 
gas to clean the pipes. There was a weld torch that was nearby. 
An explosion occurred and six workers lost their lives.
    The police and first responders who I talked to that day 
said it looked like basically a battle zone when they went in 
there to look at the, you know, the harm that was done to those 
people who were just there trying to build a power plant to 
create, again, a good source of clean energy for the state of 
Connecticut.
    In the wake of that, the Chemical Safety Board, which 
again, had been putting up the warning flags about using 
natural gas for venting and purging the lines, basically told 
people, ``We have been telling you about this for years,'' but 
OSHA's hands have been tied by, again, what GAO identified as a 
rulemaking process which is basically defunct.
    So we have got basically an agency right now that is 
struggling to try and deal with the fact that new production 
methods are taking place because the economy and science 
changes, and yet we have a system that is basically trapped in 
a set of assumptions that were created decades ago. And that 
really should be what this committee should be focused on is a 
smarter, more effective agency, as opposed to basically 
crippling and handcuffing the agency from doing the basic level 
of protecting people from processes and workplace standards 
that we know are dangerous, and both sides know are dangerous.
    Other workplace safety issues also merit our focus. In 
April 2013 a massive ammonium nitrate explosion at Adair Grain 
killed 15, injured 160, and leveled or damaged at least 150 
buildings in the town of West, Texas. And again, those 15 were 
first responders. Those were firemen who were rushing to the 
scene to try and save lives.
    The last time OSHA inspected that facility was in 1985 and 
requirements for proper storage of this explosive material was 
woefully out of date. There are fewer than 2,000 inspectors to 
monitor the health and safety performance at more than 8 
million workplaces nationwide.
    With these resources, OSHA can inspect a facility about 
once every 131 years. Again, isn't this an issue our committee 
should consider?
    Yet the approach of today's hearing focuses on restraining 
OSHA rather than delivering workers the protections they need 
and deserve. Instead, I hope that we can determine guidance to 
help OSHA be more--to more effectively protect workers, which 
again, there is consensus out there in many industries from 
both management and the workers to try and come up with better 
standards that help both sides in terms of more effective and 
efficient production of goods and services.
    I want to thank our witnesses for their testimony and the 
one--in the case of one for his travel all the way from South 
Dakota to be with us today. I look forward to hearing from all 
of you and yield back.
    [The statement of Mr. Courtney follows:]

 Prepared Statement of Hon. Joe Courtney, Ranking Member, Subcommittee 
                        on Workforce Protections

    I want to thank you for holding this morning's hearing on the 
Occupational Safety and Health Administration, which we all know as 
OSHA. The Occupational Safety and Health Act, which created OSHA, has 
improved workplace safety significantly over the past 40 years. Yet, 
each year thousands of workplace deaths and millions of injuries impose 
needless suffering on people across the country and continue to take 
huge toll on the American economy. We need to do far more to ensure 
that workers can come home to their families in the same condition as 
they left.
    This is the first hearing we have held on issues impacting 
workplace health and safety protection since I joined this subcommittee 
in January 2013. Protecting worker safety and health and helping the 
federal and state agencies tasked with this mission can and should be a 
high priority for our committee. It is certainly worth our committee's 
time to consider, as recent incidents have demonstrated, whether OSHA 
maintains the necessary resources and modern standards needed to 
provide the workplace protections that Americans need and deserve.
    For example, in the past year, The New York Times reported that a 
large number of workers have been crippled from breathing excessive 
amounts of a neuro-toxic solvent used in adhesives for making foam 
cushions. OSHA has no standard to protect these workers, nor do most 
states, though a well-respected scientific organization recommended 
exposure limits at a mere fraction of the levels to which workers are 
being exposed. After the story broke, OSHA was limited to issuing an 
``alert'' bulletin, at least in the near term.
    Incidents like these highlight OSHA's lack of capacity to address 
workplace safety adequately, which this Committee should tackle. In 
2012, the Government Accountability Office reported that with existing 
requirements and resources it takes, on average, from seven year to 19 
years for OSHA to issue a new health or safety standard. Because of 
this delay, there have only been 16 new health standards established 
since the creation of OSHA four decades ago.
    For example, there is very strong scientific evidence that OSHA's 
limits for exposure to beryllium, are far too high to protect workers 
from developing chronic beryllium disease. Beryllium, which was first 
used in nuclear weapons production, is now used in products from 
electronics to golf clubs. To address the widespread health problems 
caused by Beryllium in the 1940s, two Atomic Energy Commission 
scientists agreed on the limit on the way to a meeting that is still in 
place today. Sometimes referred to as the ``taxi cab standard,'' this 
standard was basically pulled out of thin air, and does little to 
protect workers from contracting suffocating, and eventually life-
ending, beryllium-induced disease.
    Some industries have voluntarily agreed to cut the limit on other 
substances, such as styrene, to one half of the now obsolete ``taxi 
cab'' standard. And the beryllium industry and the United Steelworkers 
Union have jointly asked OSHA to cut this exposure limit by 90 percent. 
But voluntary efforts alone are insufficient. OSHA needs to have the 
resources and support to do more.
    As Dr. David Michaels, the OSHA Administrator, recently stated: 
``simply complying with OSHA's antiquated Permissible Exposure Levels 
will not guarantee that workers will be safe.'' But the cumbersome 
standard setting process put in place by Congress, the courts, and OMB 
leaves workers with outdated and inadequate protections, despite the 
best efforts of agency officials.
    Our committee needs to focus on helping OSHA address the challenges 
of updating outmoded health standards, but instead, my colleagues on 
the other side of the aisle are trying to use this hearing and other 
actions to further undermine OSHA at the expense of workers across this 
country. After all, if credible scientific research tells us more 
protective health standards are needed, and it is clear that they are 
feasible but red tape stands in the way, isn't this a problem worth 
addressing on a bipartisan basis?
    Other workplace safety issues also merit our focus.
    In April 2013, a massive ammonium nitrate explosion at Adair Grain 
killed 15, injured 160, and leveled or damaged at least 150 buildings 
in the town of West, Texas. The last time OSHA inspected that facility 
was in 1985, and requirements for proper storage of this explosive 
material are woefully out of date. There are fewer than 2,000 
inspectors to monitor the health and safety performance at more than 
eight million workplaces nationwide. With these resources, OSHA can 
inspect a facility only once every 131 years, on average. Again, isn't 
this an issue our committee should consider?
    Yet, the approach of today's hearing focuses on restraining OSHA, 
rather than delivering workers the protections they need and deserve. 
Instead, I hope we can determine guidance to help OSHA more effectively 
protect workers.
    I want to thank our witnesses for their testimony, and in the case 
of one, for his travel all the way from South Dakota to be with us 
today. I look forward to hearing from all of you and yield back.
                                 ______
                                 
    Chairman Walberg. I thank the gentleman. And you bring up 
valid points and we really expect this hearing to be more than 
just a piling on OSHA, but rather looking for ways that we can 
partner in a better way to protect employees and employers 
alike and our economy.
    The Connecticut incident is a tragic day in history and you 
do well in reminding us that. We also can remember we did have 
a field hearing on that particular event, and hopefully we will 
continue improving.
    Pursuant to committee rule 7(c), all members will be 
permitted to submit written statements to be included in the 
permanent hearing record. And without objection, the hearing 
record will remain open for 14 days to allow statements, 
questions for the record, and other extraneous material 
referenced during the hearing to be submitted into the official 
hearing record.
    It is now my pleasure to introduce our distinguished 
guests.
    First, Mr. Bradford Hammock is a shareholder with the law 
firm Jackson Lewis in Reston, Virginia and is testifying on 
behalf of the U.S. Chamber of Commerce. Mr. Scott VanderWal is 
president of the South Dakota Farm Bureau, a third generation 
farmer from Huron, South Dakota.
    Thank you for traveling to be here with us today in the 
warm climate of Washington, D.C.
    Ms. Randy Rabinowitz--did I get that close? Want to do my 
best on that--is an attorney from Washington, D.C., and has 
worked with a number of federal agencies. Additionally, Ms. 
Rabinowitz served as counsel to the Committee on Education and 
Labor from 1991 to 1994 under another Michigander, Bill Ford.
    Mr. Maury Baskin is a shareholder with the firm Littler 
Mendelson in Washington, D.C., and is testifying on behalf of 
the National Association of Manufacturers and the Associated 
Builders and Contractors.
    Before I recognize each of you to provide your testimony, 
let me briefly explain our lighting system. A number of you 
have had experience with it already, not unlike a stoplight at 
an intersection.
    You will have 5 minutes to present your testimony. We will 
try to keep it to that as close as possible.
    If it gets to the point where you see a yellow light you 
know you have 1 minute remaining. And when it hits red, wrap up 
as quickly and succinctly as possible.
    After you have testified, members of this committee will 
have an opportunity to ask you questions and again will be held 
to the 5-minute standard also.
    And so, having identified that, let me turn to Mr. Hammock.
    We appreciate you being here. We will recognize you for 5 
minutes of testimony.

  STATEMENT OF BRADFORD HAMMOCK, SHAREHOLDER, JACKSON LEWIS, 
   P.C., TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF COMMERCE

    Mr. Hammock. Thank you, Mr. Chairman, Ranking Member 
Courtney. It is a pleasure to be here. Thanks for inviting me 
to talk on this very important issue.
    As the chairman recognized, my name is Brad Hammock, and I 
manage the workplace safety and health practice group at the 
law firm of Jackson Lewis. And today I am appearing on behalf 
of the U.S. Chamber of Commerce.
    Before coming to Jackson Lewis in 2008 I spent 10 years at 
the Department of Labor in the Office of the Solicitor's 
Occupational Safety and Health Division working on various 
matters on behalf of OSHA, including OSHA's promulgation of the 
ergonomics program management standard and the employer payment 
for PPE standard.
    I also worked closely with the agency on various non-
regulatory initiatives--guidance, documents, variances, letters 
of interpretation, the things that we are going to be talking 
about during today's hearing.
    As a result of my experience in the Solicitor's Office, I 
am very familiar with how far OSHA can go in issuing guidance. 
Today I want to talk about how OSHA has decided to push out new 
policies, and in some cases new requirements, without bothering 
to follow the requirements of rulemaking or involving those who 
would be affected by these changes.
    We call these actions sub-regulatory because they exist at 
a lower level in the hierarchy of activities, but they still 
have significant impacts. By using sub-regulatory actions, OSHA 
has avoided having to justify its actions or do any sort of 
impact analysis. It has also avoided having to take comments 
from those parties that would object.
    The following are examples where OSHA has used sub-
regulatory actions that resulted, may result, or would have 
resulted in substantive changes to regulations, policies, or 
employer obligations.
    On October 19, 2010 OSHA published in the Federal Register 
a proposed new interpretation of the term ``feasible'' as it 
applies to administrative and engineering controls under the 
noise exposure standard. Under the new interpretation, 
administrative and engineering controls would have been 
considered economically feasible if, quote--``implementing such 
controls will not threaten the employer's ability to remain in 
business,'' unquote.
    An independent economic analysis concluded that the 
potential impact of this proposal on employers would have been 
more than $1 billion. OSHA did no economic analysis, however, 
nor did OSHA submit it to OIRA for review.
    Imagine, an agency puts out a new policy with a predicted 
impact on employers of more than $1 billion and never 
substantively consults the White House. Fortunately, once the 
impact of this non-regulatory change became known to affected 
stakeholders and others in the administration, OSHA withdrew 
it.
    On February 21, 2013 OSHA issued a letter, as the chairman 
referred to, saying that a union representative is permitted to 
accompany an OSHA inspector during a walk-around inspection at 
a nonunion workplace. This dramatic reversal in policy opens 
the door for unions or other organizations to convert OSHA 
inspections from being focused on workplace safety to being 
part of these outside organizations' broader organizing 
campaigns. And I will let Mr. Baskin discuss this letter in 
more detail.
    On March 12, 2012 OSHA issued a memorandum to regional 
administrators outlining four scenarios that would constitute 
violations of protections for whistleblowers. Among the 
scenarios is one where employers implement a safety incentive 
program that rewards employers based on maintaining a low rate 
of injuries or fatalities. The problem is that incentive 
programs are not mentioned anywhere in the statute, 
regulations, or any place giving OSHA authority to impose this 
restriction.
    The issue of what incentive programs work in what work 
environments and cultures is a complicated one. If there were 
ever an example of a policy issue that would benefit from 
robust stakeholder participation it is this one. The 
appropriate way for OSHA to proceed on this is through a 
rulemaking, not through issuance of various policy documents.
    On December 27th of last year OSHA issued a memorandum to 
the regional administrators instructing them on how to enforce 
combustible dust requirements in the new GHS regulation. The 
problem with this is that OSHA does not have a definition for 
combustible dust. Indeed, they still list a rulemaking on their 
agenda where such a definition will be developed.
    To have a combustible dust hazard several conditions have 
to come together and they are all unique to the specific 
material in question. Combustible dust is a hazard that is 
created by how something is used. The GHS regulation requires 
upstream producers and importers to anticipate all the various 
circumstances and conditions that will be present when 
something is used downstream and to predict whether there will 
be a combustible dust hazard associated with these conditions.
    The net effect of OSHA's memorandum is to codify a variety 
of concepts in a de facto regulation without subjecting them to 
any of the critical questions and processes of an actual 
rulemaking.
    And finally, last October OSHA posted on its Web site the 
annotated permissible exposure limits, or annotated PELs table, 
comparing OSHA's permissible exposure limits with various other 
sets of limits. In doing so, OSHA is being openly dismissive of 
its own standards, which is not what guidance is supposed to 
do. Guidance is supposed to help employers comply with OSHA's 
requirements.
    Mr. Chairman, OSHA has broad statutory authority to 
promulgate new standards and regulations. The rulemaking 
requirements in the OSH Act and other relevant statutes are 
there for good reasons.
    This OSHA, however, has aggressively pushed out new 
policies, imposing substantive changes on employers without 
satisfying these requirements. These actions undermine the 
credibility of the agency and the respect it should have, thus 
interfering with the agency's mission of working to improve 
workplace safety.
    Thank you, Mr. Chairman.
    [The statement of Mr. Hammock follows:]

  Prepared Statement of Bradford Hammock, Shareholder, Jackson Lewis, 
       P.C., Testifying on Behalf of the U.S. Chamber of Commerce

    Good morning, I am Brad Hammock, and I manage the Workplace Safety 
and Health Practice Group at the law firm of Jackson Lewis. Today I am 
appearing on behalf of the U.S. Chamber of Commerce. Jackson Lewis is a 
member of the Chamber and I participate in its Labor Relations 
Committee and OSHA Subcommittee.
Introduction
    Before coming to Jackson Lewis in 2008, I spent 10 years at the 
Department of Labor in the Office of the Solicitor's Occupational 
Safety and Health Division, working on various matters on behalf of 
OSHA. I worked specifically on OSHA's regulatory program, including 
serving as Counsel for Safety Standards for the last few years of my 
tenure there.
    When I originally joined the Department during the administration 
of President Clinton, I spent most of my first few years working with 
OSHA to promulgate its Ergonomics Program Management standard. During 
my career, I also assisted OSHA in finalizing major regulatory 
initiatives such as the Employer Payment for PPE standard, OSHA's 
update to its electrical utilization standard, and others.
    Of course, I also worked closely with the agency on various non-
regulatory initiatives during my tenure with OSHA--guidelines, 
variances, letters of interpretation. I helped produce OSHA's 
ergonomics program guidelines and other compliance assistance 
materials.
    As a result of my experience in the Solicitor's office I am very 
familiar with how far OSHA can go in issuing guidance. Generally 
speaking, ``guidance'' is anything short of a full regulation. Most 
importantly, OSHA cannot make new policy or create new obligations 
through guidance, and yet, in the examples I will describe, OSHA has 
repeatedly crossed that line.
    Today I want to talk about how OSHA has decided to push out new 
policies and in some cases new requirements, without bothering to 
follow the requirements of rulemaking or involving those who would be 
affected by these changes.
    We call these actions ``subregulatory'' because they exist at a 
lower level in the hierarchy of activities, but still have significant 
impacts. Subregulatory actions are substantive changes without 
transparency, input from affected parties, or accountability. They can 
include guidance documents like OSHA interpretations, new compliance 
directives, or memoranda to field staff. By using this approach, OSHA 
has avoided having to justify its actions or do any sort of impact 
analysis. It has also avoided having to take comments or any input from 
those parties that would object. The agency has also avoided having to 
get clearance from relevant offices in the Department of Labor or the 
administration that normally serve as a check on OSHA going too far.
    These are executive dictates which are harder to challenge than 
regulations. The difficulty in challenging them is one of the key 
reasons that OSHA is not supposed to create new policy this way; 
accountability is at the heart of our system of government and if an 
agency is allowed to implement new policy in this manner, no less than 
the rule of law will be undermined.
    The following are examples where OSHA has used subregulatory 
actions that resulted, may result, or would have resulted, in 
substantive changes to regulations, policies, or employer obligations.
Examples of Subregulatory Actions
             Proposed Interpretation of ``Feasible'' Under 
                    Noise Exposure Standard
    On October 19, 2010, OSHA published in the Federal Register a 
proposed new interpretation of the term ``feasible'' as it applies to 
administrative and engineering controls under the noise exposure 
standard. Currently, OSHA's enforcement policy gives employers 
considerable latitude to rely on personal protective equipment (such as 
ear plugs or ear muffs) when noise protection is required rather than 
forcing employers to use engineering (such as sound dampening or other 
technology) controls, or administrative controls (such as use of 
regulated areas).
    Under the new interpretation, administrative and engineering 
controls would have been considered economically feasible if 
``implementing such controls will not threaten the employer's ability 
to remain in business,'' in other words, anything that would not put 
the business out of business would have been considered ``feasible.'' 
An independent economic analysis concluded that the potential impact of 
this proposal on employers would have been more than $1 billion. 
Because this was styled as only a reinterpretation, OSHA did no 
economic analysis.
    The Chamber objected that such a major change warranted a full 
rulemaking rather than a mere reinterpretation without any of the 
protections associated with the regulatory process. This example is the 
exception in that OSHA published it in the Federal Register, but since 
it was only an interpretation, there were none of the usual elements of 
a rulemaking such as analyses of how much it would cost or the impact 
on small businesses. There was also no guarantee that any comments 
submitted would have had an impact or that OSHA would respond to them 
as with a proposed regulation. As this was merely an interpretation and 
not a rulemaking, OSHA also never bothered to submit it to the Office 
of Information and Regulatory Affairs for review.
    Imagine--an agency puts out a new policy with the predicted impact 
on employers of more than $1 billion and never substantively consults 
the White House! Fortunately, once the impact of this non-regulatory 
change became known to affected stakeholders and others in the 
administration, OSHA was forced to withdraw it.
             Letter of Interpretation Permitting Union 
                    Representatives to Accompany an OSHA Inspector at 
                    Non-Union Workplaces
    On February 21, 2013, OSHA issued a letter of interpretation saying 
that a union representative is permitted to accompany an OSHA inspector 
during a walk-around inspection at a non-union workplace. The LOI was 
in response to a request from the United Steel Workers.
    This dramatic reversal opens the door for unions to convert OSHA 
inspections from being focused on workplace safety to being part of 
union organizing campaigns.
    The relevant regulations explicitly state that any employee 
representative ``shall be'' an employee of the employer, unless the 
OSHA inspectors believe ``good cause has been shown'' to include 
someone with special expertise who can aid in the inspection. In 
practice, OSHA has restricted these non-employee third parties to 
people with specific qualifications such as industrial hygienists or 
safety engineers. OSHA blew right past this narrow exception and 
context to say that employees can now designate any union 
representative, community activist, or any other third party as their 
representative during OSHA inspections.
    In issuing this LOI, OSHA contradicted the regulations, their own 
past practice, and other internal processes and procedures. And they 
did this with absolutely no input from outside sources except the 
United Steel Workers who asked for the LOI. I would also note that OSHA 
managed to issue this letter with unusual efficiency--the request was 
made in December 2012 and the letter was issued in February 2013, 
barely two months later and spanning the busy holiday season. The 
alacrity with which this letter was issued raises questions in my mind 
as to whether it was fully vetted within the Department prior to 
issuance. In my experience working inside the Department of Labor, 
letters of interpretation typically took several months and often years 
to finalize.
    I am submitting, as part of my statement, a letter sent to 
Assistant Secretary Michaels from the Coalition for Workplace Safety 
raising detailed objections to this LOI. The letter is co-signed by 60 
groups.
             Whistleblower Memorandum Banning Employer Rate-
                    Based Safety Incentive Programs
    On March 12, 2012, OSHA issued a memorandum to regional 
administrators outlining four scenarios that would constitute 
violations of protections for whistleblowers. Among the scenarios is 
one where employers implement a safety incentive program that rewards 
employees based on maintaining a low rate of injuries or fatalities. 
The problem is that incentive programs are not mentioned anywhere in 
the statute, regulations, or any place giving OSHA authority to impose 
this restriction. Despite this utter lack of authority and context, 
OSHA created a consequence for employers who maintain these programs.
    By putting this in a memorandum to the regional administrators OSHA 
avoided possible involvement from those affected by this new policy. 
They also avoided getting clearance from any other office in the 
Department of Labor or the administration. The agency decided this was 
justified without providing any supporting authority, analysis about 
impact, or indications of benefits.
    For the duration of this administration, OSHA has held the belief 
that employers are using rate-based incentive programs to suppress 
employees from reporting injuries. OSHA has used a number of 
``techniques'' to try to prove its point, starting with its 
Recordkeeping National Emphasis Program, which also targeted incentive 
programs in the context of enforcement actions. Assistant Secretary 
Michaels has also spoken publicly on OSHA's concerns with certain 
safety incentive and bonus programs. Rhetorically, the agency has told 
employers to stop focusing on ``lagging indicators'' such as injury 
rates.
    And yet, ironically OSHA is actually not encouraging employers to 
focus on leading indicators, but instead continuing to focus its energy 
on injury rates. The Department has proudly proclaimed that in 
corporate wide settlements with employers, they are holding management 
accountable for safety. This means that they are imposing 
responsibility on these employers for the number of injuries that occur 
in their workplaces--rate based incentive programs by another name. 
Virtually all of the enforcement programs issued by the agency are 
driven at some level by the reported injury rates of employers. OSHA 
never considers leading indicators in determining which employers it 
will inspect. And the agency takes a very narrow view of ``success'' of 
employers in addressing safety--and that success is solely based on 
lagging indicators such as injury rates.
    The issue of what incentive programs work in what work environments 
and cultures is a complicated one. Incentive programs work within the 
broader rules and policies of establishments and cannot be pigeon-holed 
as good or bad in the abstract. If there were ever an example of a 
policy issue that would benefit from robust stakeholder participation, 
it is this one.
    If OSHA feels so strongly that rate-based incentive programs are 
being used to suppress injury reporting, the only way for OSHA to 
proceed is through a rulemaking where the agency cites to the authority 
they have to issue such a regulation, provides a clear and 
understandable definition of what they want to prohibit, provides data 
and supporting materials showing that these programs are a problem, and 
of course conducts the necessary feasibility, cost, benefit, and impact 
on small business analyses required by the Occupational Safety and 
Health Act of 1970 and other relevant statutes. This is bad policy, 
badly made.
             Memorandum to Field Staff on Enforcing Combustible 
                    Dust Requirement Under GHS
    On December 27 of last year, OSHA issued a memorandum to the 
regional administrators instructing them on how to enforce the 
combustible dust requirement in the new Globally Harmonized System for 
Classification and Labeling of Chemicals (GHS) regulation that modified 
the old Hazard Communication Standard (HCS). The problem with this is 
that OSHA still does not have a definition for combustible dust--indeed 
they still list a rulemaking on their agenda where such a definition 
will be developed. Despite this obvious difficulty, OSHA inserted into 
the final version of the GHS regulatory language requiring 
manufacturers and shippers of materials that could create a combustible 
dust hazard to label their products and for users of these products to 
train their employees on the hazard. Not only is this regulatory 
requirement not supported by a clear definition, it was not even 
included in the proposed rule.
    As even OSHA must concede, combustible dust is not a simple hazard, 
which is why they have a specific rulemaking underway to determine how 
it should be defined and regulated. To have a combustible dust hazard, 
several conditions have to come together and they are all unique to the 
specific material in question. Combustible dust is also unlike any 
other hazard covered by the GHS/HCS, as it is not intrinsic to the 
substance. Under the GHS/HCS, chemicals and substances are classified 
by their intrinsic characteristics--an acid is always an acid, a 
corrosive is always a corrosive, something flammable like gasoline is 
always flammable. But combustible dust is a hazard that is created by 
how something is used--a block of wood does not present a combustible 
dust hazard until it is cut and creates sawdust in sufficient quantity, 
and an ignition source like a spark is present to set off an explosion. 
The GHS regulation requires upstream producers and shippers to 
anticipate all the various circumstances and conditions that will be 
present when something is used downstream and to predict whether there 
will be a combustible dust hazard associated with these conditions.
    To get around the fact that OSHA does not have a properly developed 
definition of combustible dust, along with other criteria necessary to 
enforce this provision, OSHA's memorandum relies on various outside 
standards and protocols such as those from the American Society for 
Testing and Materials (ASTM) and the National Fire Protection 
Association (NFPA). OSHA also references an earlier National Emphasis 
Program that had an ``operative definition.'' But none of these have 
been properly reviewed or tested so that OSHA can rely on them or cite 
them for enforcement purposes. The net effect of this memorandum is to 
codify these various concepts in a de facto regulation without 
subjecting them to any of the critical questions and processes of an 
actual rulemaking, least of all public comment. In addition, these 
standards are only available by purchasing them from the groups that 
produce them. OSHA is expecting companies to go buy these standards.
    OSHA violated the requirements for issuing a standard when they 
included the combustible dust requirement in the final text without 
proposing it and without having an adequate definition or appropriate 
support for how this hazard is to be handled. And now they have 
compounded that error by relying on outside standards and protocols 
without providing any opportunity for comment or demonstrating that 
these have been subjected to the necessary questions of feasibility and 
reliability. Ironically, OSHA already has the necessary rulemaking 
underway where all of these issues should be handled.
    OSHA's inclusion of combustible dust in the GHS is the subject of a 
legal challenge to this rule.
    The memorandum is attached as an appendix to my statement.
             Guidance on Alternative Exposure Standards Other 
                    Than OSHA PELs
    Last October, OSHA posted on its website the Annotated Permissible 
Exposure Limits, or annotated PELs tables. OSHA's goal is to promote 
the use of these lower limits even though employers will only be held 
accountable for complying with OSHA's official limits.
    The annotated PELs tables provide a side-by-side comparison of OSHA 
PELs for general industry to the California Division of Occupational 
Safety and Health PELs, the National Institute for Occupational Safety 
and Health recommended exposure limits, and the American Conference of 
Governmental Industrial Hygienist threshold limit values. OSHA is being 
openly dismissive of its own standards which is not what guidance is 
supposed to do; guidance is supposed to help employers comply with 
OSHA's requirements.
    The Chamber agrees that many of OSHA's PELs are out of date and 
need to be reexamined. We are concerned however, by the way OSHA has 
chosen to promote these alternative limits. While Assistant Secretary 
Michaels has said OSHA is reluctant to use the General Duty Clause to 
enforce these other limits, the threat still exists. One criterion for 
using the General Duty Clause is that OSHA must prove that a given 
hazard is well understood. These new tables showing the alternative 
exposure limits could be used by OSHA to satisfy its burden.
    Were OSHA to enforce these alternative standards through the 
General Duty Clause, it would be the equivalent of another de facto 
rulemaking where the agency would be codifying standards that have not 
been put through the rigors of rulemaking, including notice and comment 
and reviews of economic and technological feasibility.
    Once again, if OSHA believes that new health standards are 
necessary, they have a process available to them to make those happen.
Conclusion
    OSHA has broad statutory authority to promulgate new standards and 
regulations. The rulemaking requirements in the OSH Act and the other 
relevant statutes are there for good reasons--to make sure the agency 
only implements new policies and obligations after it has demonstrated 
the need, provided adequate supporting data, conducted the necessary 
reviews for impacts and feasibility, and provided interested parties 
ample opportunity to submit comments and other forms of input.
    This OSHA, however, has aggressively pushed out new policies, 
imposing substantive changes on employers, without satisfying these 
requirements. For any administration this would be a troubling pattern. 
For an administration that came into office promising to be the most 
transparent, this is both troubling and hypocritical. These actions 
undermine the credibility of the agency and the respect it should have, 
thus interfering with the agency's mission of working to improve 
workplace safety.
                                appendix

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    Chairman Walberg. I thank the gentleman.
    Now I recognize Mr. VanderWal for your 5 minutes of 
testimony.

            STATEMENT OF SCOTT VANDERWAL, PRESIDENT,
                    SOUTH DAKOTA FARM BUREAU

    Mr. VanderWal. Mr. Chairman, members of the committee, 
thank you very much for the invitation, and I appreciate the 
opportunity to provide testimony on a matter of great 
importance this morning to family farms--small family farms.
    My name is Scott VanderWal. I am a third-generation corn 
and soybean farmer at Volga, South Dakota. Our state office is 
here, Mr. Chairman, so that is where you got that information.
    We also operate a beef, cattle feedlot where most of our 
corn is fed to the cattle. We ourselves have storage facilities 
for corn and soybeans for later feeding and later sale.
    I am pleased to offer this testimony on my own behalf this 
morning as well as that of the American Farm Bureau, where I 
sit on the board of directors.
    Throughout history Congress has worked to preserve and 
protect the unique nature of the ag sector and family farming 
operations. They have done this in a number of instances, but 
one in particular has been consistently assuring that OSHA does 
not spend time, energy, and public resources investigating 
routine activities on small family farms.
    Specifically, since 1976 in every appropriations bill 
Congress has exempted small farming operations that did not 
maintain a temporary labor camp and that employ 10 or fewer 
employees from OSHA enforcement regulations.
    Despite this clear direction from Congress, OSHA has 
drafted investigator guidance, conducted investigations, and 
penalized farming operations in complete disregard for a law 
that has been on the books for nearly 4 decades.
    In a June 2011 memo OSHA declares that post-harvest 
activities, including drying and fumigating grain, are subject 
to all OSHA requirements. OSHA goes further to say that small 
farm employers mistakenly assume that the appropriations rider 
applies regardless of the type of operations performed on the 
farm.
    Farm Bureau agrees that there is a mistake here, but it is 
not with the small farm employers. Instead, OSHA mistakenly 
assumes what is integral to a farming operation and has thereby 
circumvented clear congressional direction.
    OSHA appears to take the position that any activity that 
takes place after a kernel is severed from a stalk is subject 
to OSHA regulation and enforcement. To anyone familiar with 
agriculture, this is simply an illogical position. Post-harvest 
activities, like drying, are necessary to prepare crops for 
sale and are fundamental in any farming operation.
    The purpose in planting, cultivating, and harvesting the 
crop is to sell the crop. Farmers are not merchandisers, 
dealers, or grain warehousers. Drying and storage facilities 
are part of our marketing programs.
    If we were to sell all of our grain at harvest when prices 
are generally at the low for the year we would be missing out 
on profit opportunities. That is not good stewardship. To be 
totally honest with you, I simply cannot wrap my mind around 
the concept that grain bins are not a vital part of a farm 
operation.
    Now, it is important to note that OSHA's jurisdiction is 
over the safety of employees. That has to be job number one. 
OSHA's authority only stems from the number of employees a farm 
has and whether there is a labor camp on the farm. The amount 
of grain stored is unrelated to the authority over small 
farming operations.
    Congressional intent is clear, and Congress has again 
reiterated the small farm exemption in the fiscal year 2013 
Appropriations Act report. The report reinforces the small farm 
exemption and suggests that OSHA should work with USDA before 
moving forward with any attempts to redefine and regulate post-
harvest activities.
    Additionally, both the Senate and the House, including 
members of this subcommittee, sent letters to OSHA directing 
the agency to stop enforcement under the 2011 memo. We are 
grateful that Congress included the report language and sent 
these letters, and to any persons in here who were involved in 
that, we certainly appreciate that and want to thank you.
    We also encourage OSHA to meet and discuss potential safety 
alternatives with Farm Bureau and the industry at large.
    Farm Bureau remains committed to grain bin and farm safety 
in general. We work every day to ensure that everyone who is 
working on our farms is trained and safe, and in most of these 
cases they are family members, so obviously family farmers are 
going to make sure that their children are trained and safe.
    In South Dakota Farm Bureau our women's leadership team had 
a scale-model grain bin built, and it is about this high off 
the floor, and they cut it in half and put Plexiglas on one 
side so they can fill it with corn and then they put little 
plastic figures to represent people in there, and as the grain 
flows out of the bin it shows how those plastic figures are 
pulled down into the grain and suffocated. And it is quite an 
eye-opening experience when you actually see it.
    Had OSHA reached out to Farm Bureau and others in the 
industry we would have been eager to work with them to develop 
additional safety training programs if necessary to prevent 
injury. However, rather than working cooperatively with 
industry, OSHA apparently reached the conclusion that it was 
preferable to penalize small farmers through enforcement.
    Circumventing a clear legislative directive is not an 
acceptable solution. We remain committed to working with OSHA, 
USDA, and the industry as a whole in doing the utmost to ensure 
worker safety on all farms.
    At the same time, we urge Congress to take action that 
prevents this type of regulatory overreach. Safety is priority 
number one, but this is not the way to achieve it.
    Thank you for the opportunity to testify today, and I would 
be glad to take any questions.
    [The statement of Mr. VanderWal follows:]

           Prepared Statement of Scott VanderWal, President,
                  South Dakota Farm Bureau Federation

    Mr. Chairman and members of the committee, thank you for this 
opportunity to provide testimony to the subcommittee on a matter of 
great importance to small family farms. My name is Scott VanderWal. I 
am a third-generation corn and soybean farmer in Volga, South Dakota. I 
am pleased to offer this testimony on my own behalf, as well as that of 
the American Farm Bureau Federation (AFBF), where I sit on the board of 
Directors. We appreciate the subcommittee's interest in overreaching 
enforcement activity of the Department of Labor (DOL) Occupational 
Safety and Health Administration (OSHA) against agricultural producers. 
From increased delays in the H-2A visa program and the withdrawn 
overreaching child labor proposal, agriculture has seen an increase in 
the amount of DOL investigation in recent years. We believe many of 
these investigations are in areas where agency authority is limited, if 
not entirely restricted, by Congress.
    Congress has historically worked to preserve and protect the unique 
nature of the agricultural sector and family farming operations. They 
have done this in a number of instances, but one in particular has been 
in consistently assuring that OSHA does not spend time, energy and 
public resources investigating routine activities on small family 
farms. Specifically, in the 1976 Labor-HHS Appropriations bill--and in 
every appropriations bill thereafter--Congress has exempted small 
farming operations from OSHA enforcement actions that do not maintain a 
temporary labor camp and that employ 10 or fewer employees. Despite 
this clear direction from Congress, OSHA has drafted investigator 
guidance, conducted investigations and penalized farming operations in 
complete disregard of a law that has been on the books for nearly four 
decades.
    A June 2011 Memorandum by OSHA Director of Enforcement Programs 
declares that all activities under SIC 072--including drying and 
fumigating grain--are subject to all OSHA requirements. OSHA goes 
further to say: ``Many of these small farm employers mistakenly assume 
that the Appropriations Rider precludes OSHA from conducting 
enforcement activities regardless of the type of operations performed 
on the farm.'' Farm Bureau agrees that there is a mistake here, but it 
does not lie with small farm employers. Instead, OSHA ``mistakenly 
assumes'' what is integral to a farming operation and has thereby 
circumvented clear congressional direction.
    OSHA appears to take the position that any activity that takes 
place after a kernel is severed from the stalk would be considered 
post-harvest activities, such as storing and drying grain for market, 
and thus placing those activities under OSHA regulation. This is an 
illogical position. Post-harvest activities are necessary to prepare 
crops for sale and are fundamental in any farming operation. Merely 
possessing storage capacity for grain and utilizing that storage 
capacity does not create a separate and distinct operation from the 
farming operation itself. The purpose in planting, cultivating and 
harvesting the crop is to sell the crop. Practically speaking, it is 
necessary to store and prepare the grain for sale. Most farming 
operations, if not all, have to store--even if for short periods of 
time--the commodity in order to get it to market. Thus, if the 
operation has fewer than 10 employees and does not have a labor camp it 
is covered by the small farm operation exemption designated by 
Congress.
    Congressional intent is clear that this language was adopted to 
protect small farms and should be interpreted broadly to protect farms 
with fewer than 10 employees and no labor camp. In fact, Congress feels 
so strongly that the fiscal year 2013 Appropriations Act report 
contains language that reinforces the small farm exemption and suggests 
that OSHA should work with USDA before moving forward with any attempts 
to redefine and regulate post-harvest activities in relation to the 
exemption. We hope that this language will forestall any further 
enforcement actions by OSHA and encourage that office to re-evaluate 
its interpretation of farming operations as they relate to post-harvest 
activity.
    Farm Bureau understands OSHA's concern with grain bin safety. In 
fact, Farm Bureau remains committed to grain bin and farm safety 
generally. Throughout the country, state and county Farm Bureaus have 
safety training programs, including grain bin safety. We work to ensure 
everyone who is working on our farms is trained and safe. Prior to 
instituting the June 2011 memo, had OSHA reached out to Farm Bureau and 
others in the industry, we would have been eager to work with them to 
develop additional safety training programs if necessary to prevent 
injury. This preventative action would have better served OSHA's 
mission and the shared goal of farm safety.
    However, rather than working cooperatively with industry, OSHA 
apparently reached the conclusion that it was preferable to penalize 
small farmers through enforcement. Utilizing the 2011 memo, a Nebraska 
farming operation, with one non-family employee, was fined 
approximately $130,000 for allegedly not following OSHA regulations 
related to storage of grain grown and harvested by the farmer. An Ohio 
farmer had a strikingly similar situation, but was relieved when fines 
were withdrawn after Congress began to raise awareness of the agency's 
overreach. Unfortunately, the Nebraska farmer is now tied up in 
litigation. The fact is that both of these farms fall under the farmer 
exception and these enforcement actions never should have taken place. 
It is clear that OSHA is ignoring congressional intent and the agency 
should withdraw the 2011 memo entirely.
    Regulation, guidance and enforcement that circumvent a clear 
legislative directive are not an acceptable solution. We remain 
committed to working with OSHA, USDA and the industry as a whole in 
doing the utmost to ensure worker safety on all farms. At the same 
time, we urge Congress to take action that prevents this type of 
regulatory overreach.
    I appreciate this opportunity to testify and I will be pleased to 
answer any questions the members of the committee might have.
                                 ______
                                 
    Chairman Walberg. Thank you.
    Ms. Rabinowitz, we now recognize you for your 5 minutes of 
testimony.

         STATEMENT OF RANDY RABINOWITZ, ATTORNEY AT LAW

    Ms. Rabinowitz. Thank you, Mr. Chairman and members of the 
subcommittee, for the opportunity to testify here today.
    My name is Randy Rabinowitz. I appear here this morning as 
an expert on occupational safety and health law and not on 
behalf of any client.
    Passage of the OSH Act in 1970 has improved workplace 
safety and health significantly over the past 40 years. 
Unfortunately, too many workers still die on the job or are 
made ill by work. OSHA's rulemaking process is now saddled by 
so many procedural requirements that the agency is incapable of 
issuing standards to protect workers in a timely manner.
    These facts leave me dismayed that the focus of this 
hearing is on placing even more procedural burdens on OSHA.
    Business can already hold OSHA accountable for policy 
guidance it thinks goes too far by contesting OSHA citations. 
Employees have no similar right to challenge OSHA's actions 
when it fails to enforce the law.
    The premise of this hearing, that OSHA has changed 
longstanding policies and that it may do so only after notice 
and comment rulemaking, has no basis either in law or in fact. 
The policies being complained about today impose no new legal 
burdens. There is no legal requirement for notice and comment 
rulemaking.
    The issuance of each policy is consistent with the 
requirements of the Administrative Procedure Act and the OSH 
Act, and I suggest if it wasn't, the witnesses we have spoken 
to would be in court challenging it.
    Employers routinely request interpretations clarifying OSHA 
regulations. OSHA issues about 100 such interpretations each 
year. Business would be hurt far more than labor if OSHA were 
not permitted to issue these types of clarifications without 
notice and comment.
    I would like to discuss several of the specific policies 
mentioned in the Chamber's testimony.
    With regard to the general duty clause, most observers 
agree that OSHA toxic exposure limits are woefully out of date. 
OSHA recently published a Web tool listing exposure limits 
recommended by NIOSH and ACGIH or required by Cal/OSHA.
    This tool makes already public information more easily 
accessible to employers and employees. It encourages but does 
not require reductions in toxic exposures. OSHA should be 
complimented for this effort.
    Instead, business criticizes the agency, suggesting that 
OSHA is somehow trying to expand the reach of the general duty 
clause by publishing this tool. There is no legal basis for 
this claim.
    Ever since 1987, the rule in a case called UAW v. General 
Dynamics has allowed OSHA to cite the general duty clause when 
an employer has actual knowledge that an OSHA standard leaves 
its employees at risk. This rule has been included in OSHA's 
field operations manual since 1994.
    The rule in General Dynamics is a narrow one and OSHA 
relies on it sparingly. OSHA cannot rely on either NIOSH, 
ACGIH, or California exposure limits standing alone without 
other evidence of actual employer knowledge of a hazard to 
prove a general duty clause violation.
    Posting the NIOSH, ACGIH, and Cal/OSHA limits on its Web 
site does not change OSHA's burden under the general duty 
clause. In my opinion, the tool has no legal effect on an 
employer's obligation to protect workers from recognized 
hazards.
    With respect to walk-around rights, business claims that 
OSHA's walk-around regulations bar nonemployees from serving as 
a walk-around representative and that this has been OSHA's 
consistent practice. But OSHA has never said anything of the 
sort. Its consistent policy has been to permit nonemployee 
representatives in limited circumstances.
    For example, in organized workplaces the union always 
selects the walk-around rep. The union does not have to select 
an industrial hygienist or an engineer to be its walk-around 
rep; it can suggest--it can select a business agent.
    In nonunion workplaces OSHA's Field Operations Manual 
instructs its inspectors to determine whether somebody is a 
bona fide representative of employees. If the inspector can 
find a bona fide representative of employees--and in nonunion 
workplaces often they cannot--the inspector has the discretion 
to permit that person to be a walk-around representative, 
unless the inspector concludes that that person might be 
disruptive to the inspection. But it is up to the inspector to 
make that choice.
    The recent letter that OSHA published just continues its 
longstanding policy that allows nonemployees who will make a 
positive contribution to a thorough and effective inspection to 
accompany OSHA as an employee walk-around representative.
    Unlike in 1970, when the world was divided into union and 
nonunion workplaces, today a mix of nontraditional advocacy 
groups may represent the interests of workers who do not belong 
to unions. Usually these groups are not organizing for 
collective bargaining purposes. If employees choose these 
groups to represent them, OSHA often honors that choice. It is 
an employee's statutory right to select their own 
representative.
    OSHA inspectors can refuse to allow the individual to serve 
as the employee representative if it would not further the 
inspection. MSHA follows a similar policy without any problems.
    I had some notes on farms, but I see my time is expiring so 
I will wrap up.
    Congress should not interfere with Congress' longstanding 
practice of issuing interpretive letters and policy statements 
that conform to the requirements of the Administrative 
Procedure Act and the Occupational Safety and Health Act. The 
interpretive letters and policy documents benefit business more 
often than they benefit labor. They are a necessary and useful 
administrative tool.
    This committee should strive to identify more effective 
ways that OSHA can meet its statutory responsibility to protect 
workers. Increasing the procedural burdens OSHA must bear to do 
its job will not improve worker safety and health.
    Thank you very much.
    [The statement of Ms. Rabinowitz follows:]

       Prepared Statement of Randy S. Rabinowitz, Attorney at Law

    Mr. Chairman and Members of the Committee: Thank you for the 
opportunity to testify on ``OSHA's Regulatory Agenda: Changing Long-
Standing Policies Outside the Public Rulemaking Process.'' My name is 
Randy Rabinowitz. I appear here this morning as an expert on 
Occupational Safety and Health law and not on behalf of any client. I 
have practiced OSHA law, representing the interests of workers, for 
several decades. I have served as co-chair of the ABA's OSH Law 
Committee; as the Editor-in-Chief of the American Bar Association's 
(ABA) 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, served as counsel to this Committee, and have worked for or 
advised OSHA and state health and safety agencies on regulatory issues. 
Shortly, I expect to be named the founding Co-Director of a new public 
interest organization called the Occupational Safety and Health Law 
Project. I have also served as Director of Regulatory Policy for the 
Center for Effective Government formerly OMB Watch.
    Passage of the Occupational Safety & Health Act in 1970 has 
improved workplace safety and health significantly over the past 40 
years. Unfortunately, too many workers still die on the job or are made 
ill by work. Federal and state OSHA programs have approximately 2000 
inspectors to monitor the health and safety performance of more than 7-
8 million workplaces. With these resources, federal OSHA can only 
inspect each workplace once every 131 years.
    OSHA's rulemaking process is now saddled by so many procedural 
requirements that OSHA is incapable of issuing standards to protect 
workers in a timely manner. Requiring OSHA to also conduct notice and 
comment rulemaking for every policy statement or enforcement directive 
would make an already slow process grind to a halt. Contrary to 
industry rhetoric, the problem is not that OSHA regulates too much, but 
that it regulates too few health and safety hazards. Between 1981-2010, 
OSHA issued 58 health and safety standards, only 16 of which regulate 
health hazards, according to GAO.\1\ It took OSHA an average of more 
than 7 years to complete each rulemaking. These facts leave me dismayed 
that the focus of this hearing is on placing even more procedural 
burdens on OSHA before it can issue either letters of interpretation or 
policy guidance. Such a requirement would do nothing to protect workers 
and would make an already slow regulatory process even slower.
OSHA Policies Meet the Requirements of the Administrative Procedure Act
    The premise of this hearing--that OSHA has changed long standing 
policies and that it may do so only after notice and comment rulemaking 
-has no basis in law. OSHA routinely issues interpretations of its 
regulations. In addition, it often issues policy statements to alert 
its inspectors and others about enforcement policies. Many are 
requested and applauded by business. None are the subject of 
rulemaking. If rulemaking were required for every interpretation, OSHA 
would lose the ability to clarify its rules.
    My testimony this morning addresses three OSHA policies that 
members of the business community claim OSHA has recently changed. They 
include:
     A web ``tool'' published by OSHA listing exposure limits 
recommended by the National Institute for Occupational Safety and 
Health (NIOSH), the American Conference of Government Industrial 
Hygienists (ACGIH) or the California OSH Program;
     A letter responding to Steve Sallman of the Steelworkers 
(the ``Sallman letter'') dated February 21, 2013 reaffirming OSHA's 
policy that an employee walk-around representative need not be an 
employee of the employer whose facility is being inspected;
     A memo to OSHA's field staff from Thomas Galassi dated 
June 28, 2011 entitled ``OSHA's Authority to Perform Enforcement 
Activities at Small Farms with Grain Storage Structures Involved in 
Postharvest Crop Activities.''
    These policies either represent long-standing interpretations by 
OSHA of statutory language, clarify ambiguous regulatory provisions, or 
announce how OSHA will exercise its enforcement discretion. The 
policies impose no new legal burdens. There is no legal requirement for 
notice and comment rulemaking. The issuance of each policy is 
consistent with the requirements of the Administrative Procedure Act 
(APA). Any employer who believes otherwise can challenge the policies 
before the Occupational Review Commission or the courts.
    The APA exempts ``interpretive rules'' and ``general statements of 
policy'' from the requirement for notice and comment rulemaking. ``An 
interpretive rule interprets or clarifies the nature of the duties 
previously established by the OSH Act or by an OSHA rule.'' \2\ The 
interpretation is not binding and litigants may challenge it. OSHA's 
interpretive rule is likely to be upheld if ``OSHA is describing with 
greater clarity or precision a duty that the OSH Act or an OSHA rule 
has already established.'' \3\ A policy statement, does not interpret 
existing duties. Instead, OSHA uses policy statements to ``alert 
employers and employees (or others) prospectively of its future plans 
regarding some new duty that it would like to see established.'' \4\ 
The duty only becomes binding if the Occupational Safety and Health 
Review Commission affirms OSHA's citations. In both cases, notice and 
comment rulemaking is not required. Indeed, the D.C. Circuit recently 
reaffirmed that OSHA may revise its interpretation of the OSH Act 
without notice and comment rulemaking in a case challenging OSHA's 
Hazard Communication standard.\5\
    In limited instances, when an agency changes a long-standing, 
definitive interpretation, notice and comment may be required.\6\ But, 
even this rule would allow OSHA to publish one interpretation without 
notice and comment. ``Any second interpretative rule that significantly 
changes the first interpretation would be invalid if the first 
interpretation is definitive.'' \7\ In none of the instances discussed 
at this hearing has OSHA tried to replace one definitive interpretation 
with another, so the rule in Alaska Hunters requiring notice and 
comment for a second interpretation would not apply.
    Usually, ``[t]here is general agreement that the public interest is 
served by prompt dissemination of agency interpretations and policy 
statements. Moreover, such statements often are indispensable to agency 
administration because they guide the staff in its day-to-day tasks and 
structure the exercise of agency discretion.'' \8\
    OSHA issues more than 100 interpretations each year. Most are 
requested by, and benefit, business. If, as a result of this hearing, 
OSHA must employ procedures beyond those already required by the APA 
and the OSH Act before adopting an interpretation, this informal 
process of clarifying OSHA rules would grind to a halt.
Reliance on the General Duty Clause To Protect Workers From Toxic 
        Exposures
    OSHA permissible exposure limits (PELs) for toxic substances are 
widely recognized by both labor and industry to be woefully out of 
date. Hundreds were adopted in the early 1970s based on consensus 
standards first published in the 1960s or earlier. OSHA's efforts to 
update these exposure limits have been stymied for decades. Fewer 
workers would get sick or die if OSHA could snap its fingers, adopt a 
new ``interpretation,'' and rely on the general duty clause to mandate 
reductions in toxic exposures. It cannot. There is simply no legal 
basis for industry's concern that OSHA is trying to expand the reach of 
the general duty clause by posting public information about recommended 
exposure limits on its website.
    OSHA's interpretation of the general duty clause has not changed in 
more than 20 years. After a UAW member died in 1983 while cleaning the 
inside of a tank with Freon, OSHA cited General Dynamics for a 
violation of the general duty clause. General Dynamics objected, 
claiming that it could not be cited under the general duty clause when 
it was in compliance with OSHA's Freon standard.
    The D.C. Circuit rejected this claim. The court held that ``if an 
employer knows that a specific standard will not protect his workers 
against a particular hazard, his duty under section 5(a)(1) will not be 
discharged no matter how faithfully he observes that standard. `` UAW 
v. General Dynamics, 815 F.2d 1570 (D.C. Cir. 1987). OSHA changed its 
Field Operations Manual in 1994 to instruct its staff to cite a general 
duty clause violation under the circumstances described in the General 
Dynamics case. This has been OSHA's consistent policy for more than 20 
years.
    The rule announced in General Dynamics is a narrow one. OSHA has 
relied on it only sparingly. It permits OSHA to cite an employer for a 
violation of the general duty clause, even though the employer has 
complied with an OSHA exposure limit, when the employer has actual 
knowledge that OSHA's standard does not protect employees from hazards 
in the workplace. OSHA's burden to demonstrate a violation of the 
general duty clause remains high under this standard. It must show that 
an employer knew either that ``a particular safety standard is 
inadequate to protect his workers against the specific hazard it is 
intended to address, or that the conditions in his place of employment 
are such that the safety standard will not adequately deal with the 
hazards to which is employees are exposed.'' \9\
    Against this background, business representatives complain that a 
new ``tool'' published on OSHA's website somehow expands the general 
duty clause. This concern has no legal basis. The ``tool'' about which 
business complains compiles, in one place, chemical exposure limits 
recommended by the National Institute for Occupational Safety and 
Health and the American Conference of Government Industrial Hygienists 
and adopted by the California OSHA program. These exposure limits, some 
of which are recommended, but not required, are already public 
information. OSHA has a statutory responsibility to advise employers 
and employees about effective methods of preventing occupational 
injuries and illnesses.\10\ It has done so in an easy to understand, 
readily accessible format. The information included in the ``tool'' 
will help workers and others bargain for better working conditions and 
help employers understand the wide range of recommended exposures to 
toxins. The ``tool'' in many instances illustrates how out-of-date 
OSHA's exposure limits are. OSHA should be applauded for this effort.
    The ``tool'' does not in any way expand or limit the circumstances 
under which an employer can be cited for a violation of the general 
duty clause. OSHA cannot meet its burden of showing that employees are 
exposed to a recognized hazard solely by pointing to a recommended 
exposure limit--whether or not that limit is on OSHA's website--without 
some other evidence of employer or industry awareness of the hazard. I 
know of no instance where OSHA has tried to do so. The ``tool'' has no 
legal effect on an employers' obligation to protect workers from 
recognized hazards.
Employee Representatives Who May Accompany OSHA Inspectors
    Section 8(e) of the OSH Act provides that a ``representative of the 
employer and a representative authorized by his employees'' shall have 
a right to accompany OSHA during a workplace inspection. OSHA's 
regulations provide that the employee representative shall be an 
employee of the employer but also authorize others to serve as an 
employee representative if, in the opinion of the OSHA inspector, that 
individual is ``reasonably necessary to the conduct of an effective and 
thorough physical inspection.'' \11\s
    This regulation has always been understood to permit non-employee 
representatives to accompany an inspector and to act on behalf of 
employees for other purposes. OSHA's Field Operations Manual (FOM) has 
two sections addressing who may represent employees during a walk 
around inspection. In facilities with a certified bargaining 
representative (and it does not matter whether the union has a 
collective bargaining agreement or not) the union selects the employee 
walk--around representative. Sometimes the union selects an employee as 
the walk-around representative. Other times, the union designates a 
member of the international union's staff as the walk-around 
representative. Sometimes, the union representative is an industrial 
hygienist or safety engineer; other times the union representative is a 
business agent. The important point here is that the employees' 
representative is selected by the employees--not by the employer. That 
is the employees' statutory right.
    OSHA's long-standing practice in non-union facilities has been to 
determine whether the employees have selected someone to represent 
their interests in an OSHA inspection.
    Often, the employees have not done so. But, if they have, OSHA 
honors that choice. The FOM recognizes that when there is no union, 
employees may nevertheless have selected somebody to represent their 
interests. In facilities where there is a safety committee--and many 
states require such committees -a member of the safety committee may 
serve as the employees' walk-around representative. But, the FOM also 
recognizes that employees may have ``chosen or agreed to an employee 
representative for OSHA inspection purposes'' in some other manner. 
Only when no employee walk-around representative can be identified by 
OSHA using either of these methods, is an OSHA inspector instructed to 
proceed without an employee walk-around representative and interview a 
``reasonable number of employees.''
    OSHA's policy on who may represent employees during an inspection 
is similar to its policy on who may file a complaint on an employee's 
behalf. OSHA's Field Operations Manual has authorized non-employee 
representatives to file formal complaints seeking an inspection. The 
FOM defines the term ``representative of employees'' as either: (1) an 
authorized representative of the employee bargaining representative; 
(2) an attorney representing an employee; and (3) [any] other person 
acting in a bona fide representative capacity including, but not 
limited to, members of the clergy, social workers, spouses and other 
family members, and government officials or nonprofit group and 
organizations.
    The ``Sallman letter'' simply clarifies this long-standing policy. 
It makes clear that individual who is authorized to represent employees 
and who ``will make a positive contribution to a thorough and effective 
inspection'' may serve as a walk-around representative. `` In 1970, 
when OSHA's inspection regulations were first published, employer -
employee relations were much different than they are today. Then, a 
workplace either was unionized or it was not. There were few other 
options. Today, a mix of non-traditional advocacy groups may represent 
the interest of workers who do not belong to unions. More often than 
not, these groups are not seeking to become the workers collective 
bargaining representative, at least as that term is understood under 
the National Labor Relations Act. Non-employee representatives can 
often help OSHA understand the complex employment relationships between 
staffing agencies, subcontractors and employers. They can help OSHA 
identify past accidents and common safety hazards. And, they can help 
workers who do not speak English effectively or who are wary of 
government inspectors to communicate their concerns to OSHA. OSHA 
should be complimented on recognizing that the structure of the economy 
and the forms of workers representation have changed over the years, 
even though the importance of a worker's right to participate in an 
OSHA inspection has not. Unions are no longer the only voice that 
speaks on behalf of workers.
    A recent example, one that occurred prior to OSHA's letter to Mr. 
Sallman, illustrates the point. During a 2011 inspection of the Exel/
Hershey warehouse in Hershey, PA, the National Guestworkers' Alliance 
(NGA) served as the walk-around representative for employees. The 
employees represented by NGA were young foreign exchange students 
participating in a summer work program and subject to abusive working 
conditions. NGA aided OSHA in identifying many instances of unrecorded 
injuries among temporary workers at the facility and other safety and 
health violations. The foreign students could not have effectively 
identied health and safety hazards to OSHA without NGA's help.
    Even under the ``Sallman'' letter the right of employees to select 
a non-employee as their walk-around representative is narrow. First, 
the person who serves as a walk around representative must have been 
selected by employees to serve in that role. Second, the representative 
must aid in the conduct of the inspection. OSHA inspectors can refuse 
to allow an individual to serve as an employee representative when, in 
the OSHA inspector's opinion, it would not further the inspection. And, 
an employer who believes that a non-employee has been improperly 
selected as the walk-around representative can refuse voluntarily to 
permit the inspection and insist that OSHA obtain a warrant before 
proceeding.
    OSHA's long-standing policy permitting non-employees to serve as an 
employee representative during a walk-around inspection when doing so 
will aid OSHA in identifying health and safety hazards is consistent 
with the OSH Act, its legislative history and the few court cases to 
look at this issue. Senator Harrison Williams (D-NJ), the Senate 
sponsor of the OSH Act, made clear that ``the opportunity to have the 
working man himself and a representative of other working men accompany 
inspectors is manifestly wise and fair.'' The Mine Safety and Health 
Administration has for years allowed non-employee representatives of 
miners to accompany its inspectors, even in non-union mines. Courts 
have approved this policy.\12\ The Seventh Circuit has recognized the 
right of a union representative to accompany an OSHA inspector even 
when the union's members were on strike and had been temporarily 
replaced by other workers.\13\ In a related context, the First Circuit 
recognized that a union organizer who was not an employee of the 
employer could serve as the representative of employees before OSHRC, 
holding that ``any outside union activity [by the organizer] is 
absolutely irrelevant to his ability to represent the employees.'' \14\ 
Nothing in the legislative history of the OSH Act or any court 
decisions suggests that statutory right of employees to accompany OSHA 
during a workplace inspection is confined to unions certified as the 
employees' bargaining representative under the National Labor Relations 
Act.
OSHA Inspections of Farming Operations
    Too many employees die in grain handling facilities. When grain 
dust becomes airborne, it often explodes killing workers inside. When 
employees walk on moving grain in an attempt to clear grain built up on 
a bin, they may get buried in it. Too often those killed or injured are 
teenagers working at their first job. These injuries occur at grain 
facilities owned by agribusinesses and by those owned by small farmers. 
After a series of deadly explosions, and more than 10 years of public 
debate, in 1987, OSHA adopted a standard regulating grain handling 
facilities.\15\ An analysis shows the grain standard has been 
remarkably effective in reducing explosions and deaths in the 
industry.\16\
    Unfortunately, in 2010 there were a series of fatalities at grain 
handling facilities. For example, two workers--one 19 and the other 
14--were engulfed in corn at an Illinois grain bin owned by Haasbach, 
LLC. The tragedy occurred when one worker fell into the bin and four 
went in to rescue him.
    OSHA responded to this and other incidents with an outreach, 
compliance assistance, and education program. It sent a letter to all 
grain handling facilities urging them to comply with the standard.\17\ 
One part of its effort was a local emphasis program focusing on 
enforcement. The program has been effective. In 2010, there were 57 
entrapments and 31 fatalities at grain facilities. In 2012, there were 
only 19 entrapments and 8 fatalities. While that is still too many 
fatalities, it represents a 74% reduction in fatalities. OSHA's ability 
to further reduce fatalities from entrapments in grain handling 
facilities is limited because, historically, 70% of entrapments occur 
on farms exempt from OSHA's grain handling standard.\18\
    OSHA selects workplaces for inspection by relying on the SIC or 
NAIC code for that workplace. Beginning in FY 1977, when OSHA's annual 
appropriations first included a rider prohibiting the agency from 
enforcing any standard ``which is applicable to any person who is 
engaged in a farming operation and employs 10 or fewer employees,'' 
OSHA has instructed its staff not to inspect certain farming operations 
with 10 or fewer employees. It identifies the farming operations 
exempted from inspection according to the businesses' self-reported SIC 
or NAIC code; certain codes fall under the rider and others do not. 
Since 1977, OSHA has implemented the rider in the exact same way and 
exempted the same SIC codes from inspection. The memo that has been 
characterized as a policy change merely reiterates to the field, in 
advance of beginning the emphasis program, which facilities OSHA can 
inspect and which it is prohibited from inspecting under the rider.
    OSHA has indicated a willingness to clear up any confusion among 
farmers created by the memo.
    OSHA does not schedule small facilities within the SIC codes 
covered by the rider for inspections. But, SIC code designations do not 
always accurately describe the operations at a facility and the size of 
the facility's workforce may vary. If OSHA arrives at a small facility 
with farming operations either because it had inaccurate information, 
because it receives a complaint about conditions at that facility, or 
because a death or serious injury occurred, its' inspector should leave 
upon learning that the facility is covered by the rider. OSHA depends 
on farmers to provide the information needed to make that 
determination. In some cases, OSHA has left without inspecting the 
facility even though a fatality had occurred. If a facility is covered 
by the rider, and OSHA nevertheless insists on an inspection, the owner 
has a legal right to refuse OSHA entry and insist that OSHA get a 
warrant to conduct the inspection. To obtain that warrant, OSHA would 
have to convince a federal magistrate that the facility was not covered 
by the rider. If an inspection occurs, and OSHA issues citations, an 
employer can request an informal conference with OSHA to present 
evidence that the citations were issued improperly. OSHA often 
withdraws the citations under such circumstances. Finally, citations 
will be vacated by OSHRC if an employer demonstrates that OSHA was not 
authorized to inspect and cite its facility. In such a case, OSHA can 
be ordered to pay the small farmer's attorney fees under the Equal 
Access to Justice Act. Farmers thus have several opportunities to 
ensure that OSHA does not inadvertently inspect or cite facilities 
covered by the rider.
    The memo reflects OSHA's consistent, 20 year old interpretation of 
the rider. Until recently, OSHA has gotten no complaints about how it 
has implemented the rider. Nothing has changed. OSHA issues and revises 
inspection instructions to its staff regularly. OSHA does not conduct 
public rulemaking on enforcement directives. Public rulemaking is not 
required. Here, OSHA is implementing an appropriations rider renewed 
annually by Congress. If Congress disagrees with OSHA' s interpretation 
of the rider, Congress can make its intention clear. If OSHA made a 
factual error in citing a farm it should not have inspected--and that 
question is currently being litigated--those employers have adequate 
legal redress if they were cited improperly.
Conclusion
    Congress should not interfere with OSHA's long-standing practice of 
issuing interpretive letters and policy statements that conform to the 
requirements of the APA. The interpretive letters and policy documents 
benefit business more often than they benefit labor. They are a 
necessary and useful administrative tool. The process OSHA follows 
conforms to the requirements of the APA. Any business who believes 
otherwise has the right to challenge OSHA's policies if they are 
applied to it. This Committee should strive to identify more effective 
ways that OSHA can meet its statutory responsibility to protect 
workers. Increasing the procedural burdens OSHA must meet to do its job 
will not improve worker safety and health.
    Thank you for the opportunity to testify.
                                endnotes
    \1\ http://www.gao.gov/products/GAO-12-330
    \2\ Dale and Schudtz, OCCUPATIONAL SAFETY & HEALTH LAW 3rd Edition 
(BNA 2014) at 603.
    \3\ Id.
    \4\ Id. At 606.
    \5\ American Tort Reform Ass'n v. OSHA, No. 12-1229 (D.C. Cir Dec. 
27, 2013).
    \6\ Alaska Hunters Ass'n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999).
    \7\ OCCUPATIONAL SAFETY & HEALTH LAW 3rd Edition at 605.
    \8\ Lubbers, A GUIDE TO FEDERAL AGENCY RULEMAKING (ABA 2006) at 74.
    \9\ 815 F.2d at 1577.
    \10\ 29 U.S.C. Sec. 670.
    \11\ 29 C.F.R. Sec. 1903.8
    \12\ See 30 U.S.C. Sec. 813(f); Thunder Basin Coal Co. v. FMSHRC, 
56 F.3d 1275, 1277 (10th Cir. 1995).
    \13\ In re: Establishment Inspection of Caterpillar, 55 F.3d 334 
(7th Cir. 1995).
    \14\ In re: Perry, 859 F.2d 1043 (1st Cir. 1988).
    \15\ 29 C.F.R. Sec. 1910.272
    \16\ https://www.osha.gov/dea/lookback/
grainhandlingfinalreport.html
    \17\ https://www.osha.gov/asst-sec/Grain--letter.html
    \18\ http://extension.entm.purdue.edu/grainlab/content/pdf/
2012GrainEntrapments.pdf
                                 ______
                                 
    Chairman Walberg. Thank you.
    Mr. Baskin, recognize you for your 5 minutes of testimony.

  STATEMENT OF MAURY BASKIN, SHAREHOLDER, LITTLER MENDELSON, 
   P.C., TESTIFYING ON BEHALF OF THE NATIONAL ASSOCIATION OF 
   MANUFACTURERS AND THE ASSOCIATED BUILDERS AND CONTRACTORS

    Mr. Baskin. Thank you, Chairman Walberg and Ranking Member 
Courtney and members of the committee. Thanks for the 
opportunity to testify today.
    My name is Maury Baskin. I am a shareholder in the 
Washington, D.C., office of Littler Mendelson.
    Today I am testifying on behalf of two business 
organizations who are also strong advocates of workplace 
safety--the National Association of Manufacturers, which is the 
nation's largest manufacturing association; and Associated 
Builders and Contractors, representing thousands of merit-shop 
construction contractors around the country.
    I am here to talk solely about OSHA's 2013 letter of 
interpretation allowing union agents into nonunion workplaces. 
Contrary to what you just heard from Ms. Rabinowitz, OSHA's 
2013 letter constituted a significant change in longstanding 
agency policy.
    This was the first time that OSHA declared that nonunion 
employers could be compelled to allow outside union agents or 
community representatives to accompany OSHA inspectors onto the 
employer's premises without any showing that the union or 
community organizer represented a majority of the employer's 
employees.
    According to the letter, any number of employees in a 
nonunion workplace, no matter how few, can now designate an 
outside union or community organization as their representative 
for safety inspection purposes even though a majority of the 
workers have failed to authorize the union as their 
representative for any purpose. Neither the OSHA Act, the 
regulations, nor the field manual make any provision for a 
walk-around union representative in a nonunion workplace.
    And that is not just me talking; that is a direct quote 
from OSHA itself in the letter that it issued in 2003, which 
the new letter has now withdrawn while saying it is not a 
change in policy. The Administrative Procedure Act clearly says 
that an agency seeking to change one of its rules must first 
provide the public with notice and opportunity to comment on 
the change.
    The judicial standard is that when an agency has given its 
regulation a definitive interpretation and later significantly 
revises that interpretation the agency has, in effect, amended 
its rule. So this is not about whether OSHA can issue letters. 
It is the change that they made from longstanding policy, and 
this is something that it cannot accomplish under the APA 
without notice and comment.
    Reviewing OSHA's response to this committee's letter and 
listening to Ms. Rabinowitz's testimony just now, I did not see 
or hear one instance in which OSHA has forced an employer to 
allow a union agent into a nonunion facility before last year's 
letter in the 40 years of the act. Not one.
    And there are 30,000 to 40,000 inspections per year, so we 
are talking over a million inspections, not one instance. So 
how can they say this is not a change of policy? It was clear 
until last year that OSHA gave its inspection regulation a 
definitive interpretation limiting union access under these 
circumstances, and they have changed it without notice and 
comment.
    It is also bad policy for several reasons. First, it 
undermines the rule of law for OSHA to ignore the 
Administrative Procedure Act and it is supposed to be an agency 
enforcing the law.
    Second, allowing the union agents from the outside and 
community organizers access to the nonunion employers' private 
property--by doing that OSHA is injecting itself into labor 
management disputes. It is casting doubt on its status as a 
neutral enforcer of the law.
    The union agents we are talking about, they are engaged--
and the community representatives, too--are engaged in 
organizing activity and they often have a biased agenda. They 
want to find problems. They range from environmental disputes 
to wage claims--frankly, any problem that they can exploit for 
their own ends. They are not there to--very often, they are not 
there to improve worker safety.
    There has been a lot written about these so-called 
community organizations and their close collaboration with the 
unions. Many call them union front organizations. And so to 
pretend that they are some sort of independent entities, well, 
it is wrong according to a lot of literature on this subject.
    Unlike the situation where a union does represent a 
majority of the workers, as was alluded to, and they have a 
collective bargaining relationship, outside union agents and 
organizers have no duty to represent the interests of the 
nonunion employees in that workplace, nor do they have any 
special expertise on the nonunion workplace. In the incidents 
that have come to our attention since this letter has come out, 
there has been no claim that the union agent had any special 
expertise except as an organizer.
    And there are other issues dealing with third-party 
liability and safety training and trade secret exposure. We 
don't have time.
    But the NLRB has struck a careful balance between labor, 
management, and employee rights. OSHA's new letter runs 
roughshod over the rights of employers but it also ignores the 
rights of the majority of the employees in that workplace who 
did not ask for this so-called representative to come marching 
in with the government's arm around their backs.
    So for each of these reasons and the others mentioned in my 
written testimony, Congress should call upon OSHA to withdraw 
the 2013 letter, return to the previous longstanding policy.
    Thank you for the opportunity to testify today.
    [The statement of Mr. Baskin follows:]

     Prepared Statement of Maury Baskin, Esq. Shareholder, Littler 
 Mendelson, PC, on Behalf of the National Association of Manufacturers 
             and Associated Builders and Contractors, Inc.

    Chairman Walberg, Ranking Member Courtney, and members of the U.S. 
House Committee on Education and the Workforce, thank you for the 
opportunity to testify before you at today's hearing.
    My name is Maury Baskin and I am a Shareholder in the Washington, 
D.C. office of Littler Mendelson, P.C. Today, I am testifying on behalf 
of The National Association of Manufacturers (The NAM) and Associated 
Builders and Contractors (ABC). We appreciate the opportunity to 
testify before the Committee today on the issue of the Occupational 
Safety and Health Administration (OSHA)'s Letter of Interpretation 
allowing union agents and community organizers for the first time to 
accompany safety inspectors into non-union facilities, issued on 
February 21, 2013.
    The NAM is the largest manufacturing association in the United 
States, representing small and large manufacturers in every industrial 
sector and in all 50 states. Manufacturing employs nearly 12 million 
men and women, contributes more than $1.8 trillion to the U.S. economy 
annually, provides the largest economic impact of any major sector, and 
accounts for two-thirds of private sector research and development. The 
NAM is the powerful voice of the manufacturing community and the 
leading advocate for a policy agenda that helps manufacturers compete 
in the global economy and creates jobs across the United States.
    Associated Builders and Contractors (ABC) is a national 
construction industry trade association representing 22,000 chapter 
members. Founded on the merit shop philosophy, ABC and its 70 chapters 
help members develop people, win work and deliver that work safely, 
ethically, profitably and for the betterment of the communities in 
which ABC and its members work.
How OSHA's New Letter of Interpretation (LOI) Changed the Rules
    On February 21, 2013, without any prior public notice, OSHA for the 
first time issued a Letter of Interpretation (LOI) declaring that non-
union employers may be compelled to allow outside union agents and/or 
community representatives to accompany OSHA inspectors onto the 
employers' premises, without any showing that the union or community 
organizer represents a majority of the employer's employees. According 
to the letter, an unspecified (non-majority) number of employees in the 
non-union workplace may designate an outside union or community 
organization as their representative for safety inspection purposes, 
even though a majority of the workers have failed to authorize the 
union as their representative for any purpose. The LOI was issued by 
Richard Fairfax, then Deputy Assistant Secretary of OSHA and addressed 
to Steve Sallman, Health and Safety Specialist with the United 
Steelworkers Union. The new LOI was not publicly released until April 
5, 2013.
    The LOI contradicts the plain language of OSHA's governing statute 
(``the OSH Act'') and the National Labor Relations Act (the ``NLRA''). 
Section 8 of the OSH Act provides:
    Subject to regulations issued by the Secretary, a representative of 
the employer and a representative authorized by his employees shall be 
given an opportunity to accompany the Secretary or his authorized 
representative during the physical inspection of any workplace. * * *
    Section 9 of the NLRA makes clear that only a union that has been 
chosen by a majority of employees in an appropriate bargaining unit can 
claim to be an ``authorized representative.'' OSHA's published 
regulation implementing the OSH Act, 29 C.F.R. 1903.8(c), states:
    The representative authorized by employees shall be an employee of 
the employer. However if in the judgment of the Compliance Safety and 
Health Officer, good cause has been shown why accompaniment by a third 
party who is not an employee of the employer (such as an industrial 
hygienist or a safety engineer) is reasonably necessary to the conduct 
of an effective and thorough physical inspection of the workplace, such 
third party may accompany the Compliance Safety and Health Officer 
during the inspection.
    The OSHA Review Commission's regulation, 29 C.F.R. 2200.1(g), 
defines an ``authorized employee representative'' to mean, ``a labor 
organization that has a collective bargaining relationship with the 
cited employer and that represents affected employees.'' The Commission 
has limited such status to unions recognized through the NLRB 
process.\1\
---------------------------------------------------------------------------
    \1\ These OSHA regulations are quite different from the regulation 
promulgated by MSHA, reflecting differences between mining and other 
industries. MSHA's regulation, published after notice and comment, 
defined representatives of miners to include ``any person or 
organization which represents two or more miners.'' No similar 
definition appears in any OSHA regulation.
---------------------------------------------------------------------------
    Consistent with these regulations, OSHA's Field Operations Manual 
(FOM) and its predecessor the Field Inspection Reference Manual (FIRM) 
have long titled the section on inspection accompaniment: ``Employees 
represented by a certified or authorized bargaining agent.'' Another 
section of the FOM addresses what an OSHA inspector should do where 
there is ``No Certified or Recognized Bargaining Agent.'' The FOM 
directs OSHA inspectors to determine if other employees of the employer 
would suitably represent the interests of co-workers in the walk-
around. If selection of an employee is impractical, inspectors are 
directed to conduct interviews with a reasonable number of employees 
during the walk-around.
    OSHA has for decades consistently interpreted the law, the 
regulations and the Field Operations Manual to allow a safety inspector 
to be accompanied by a labor union only where such a union has been 
certified or recognized as representing the employees of the employer 
under procedures established by the National Labor Relations Board 
(NLRB)--until the LOI issued last year.
    The new LOI states for the first time that an unspecified number of 
employees in a ``non-union workplace'' (a workplace where no union has 
been certified or recognized as the representative of a majority of 
employees), may nevertheless designate an outside union, or even a 
``community organization'' whose focus is anything but the safety or 
health of a workplace, as their representative for safety inspection 
purposes. The new LOI contradicts the foregoing law and regulations and 
past OSHA guidance.
    By issuing the new LOI, OSHA reversed its long-standing 
interpretation of the Act, without providing any prior opportunity for 
the public to comment on the new policy, OSHA has left manufacturers 
and employers as a whole with no administrative remedy and has opened 
up employers to harassment from outside organizations. This is neither 
the intent of an OSHA inspection, nor is it appropriate under the 
previous interpretations of the regulations and the law. As a result of 
the new LOI, the possibilities for disruption in the workplace by any 
group who may have a gripe with an employer are limitless.
    The NAM and ABC believe OSHA's new LOI constitutes a significant 
and potentially unlawful change in agency policy that does nothing to 
promote workplace safety and has a substantial negative impact on the 
rights of employers and their employees.
The New OSHA LOI Violates The Administrative Procedure Act
    As explained above, OSHA chose to issue the LOI without any advance 
public notice or opportunity for comment. By acting in this unilateral 
way, OSHA changed substantive, longstanding policy without any 
opportunity for employers to challenge the LOI within OSHA itself, 
either through rulemaking or at the OSHA Review Commission. Most 
importantly, by failing to go through the required notice and comment 
procedure, OSHA violated the Administrative Procedure Act (APA).
    The APA clearly states that an agency seeking to change one of its 
rules must first provide the public with notice and opportunity to 
comment upon it. The only relevant exceptions to this notice and 
comment requirement arise when an agency acts through an 
``interpretive'' (as opposed to legislative) rule, or a statement of 
general policy that is not deemed to be a rule at all.
    The D.C. Circuit has struck down many other agency changes that 
were held out as merely interpretive. The judicial standard is that 
when an agency has given its regulation a definitive interpretation, 
and later significantly revises that interpretation, the agency has, in 
effect, amended its rule, something it may not accomplish [under the 
APA] without notice and comment.
    It is clear that OSHA gave its inspection regulation a definitive 
interpretation limiting union access to those facilities where the 
union has been authorized by a majority of employees. It is equally 
clear that the new LOI significantly revised that interpretation and 
that the agency has in effect substantially changed its published rule. 
For each of these reasons, we believe that if and when a court is asked 
to review OSHA's LOI, it will find that OSHA has violated the APA.
The New OSHA LOI Is Bad Policy
    This is bad policy for several reasons. First, it undermines the 
rule of law, which is improper for any government agency charged with 
enforcing the law. Second, by allowing outside union agents and 
community organizers access to non-union employers' private property, 
OSHA is injecting itself into labor management disputes and casting 
doubt on its status as a neutral enforcer of the law.
    In our experience, union agents and community representatives who 
are engaged in organizing activity frequently use the OSHA complaint 
process as a weapon against employers, particularly in so-called 
corporate campaigns. The outside union agents have a biased agenda, 
which is to find problems in the employer's workplace that can be 
exploited, not to improve worker safety. OSHA should not take sides in 
promoting union organizing agendas to the detriment of management.
    Unlike the situation where a union does represent a majority of the 
workers and has a collective bargaining relationship, outside union 
agents and community organizers have no duty to represent the interests 
of non-union employees nor do they have any special expertise in the 
non-union workplace. In the incidents that have come to our attention 
where the new LOI has been applied, there was certainly no claim that 
the union agent had any special expertise except as an organizer. This 
is a totally improper reason for allowing outside agents to accompany 
OSHA safety inspectors.
    In addition, the NLRB processes of authorizing majority 
representation by unions have been developed over the past 80 years for 
good reasons, in order to strike the right balance between labor, 
management and employee rights. OSHA's new LOI runs roughshod over the 
rights of employers and also ignores the rights of the majority of 
employees who have not authorized any union to represent them.
    Likewise, by allowing a non-majority community organization to 
participate in a walk-around, the new LOI could distract the OSHA 
inspector from his primary purpose--workplace safety. Many community 
organizations, like the union organizers with whom they often 
collaborate, have their own biased agendas that are not focused on 
safety or health. These outside agendas include environmental disputes, 
wage claims, and many other causes.
    Involvement of such organizations in a safety inspection could lead 
to significant disruption of the workplace for reasons having nothing 
to do OSHA's inspection objectives.
    Employers who are confronted with an OSHA inspector accompanied by 
an outside union agent or community organization are faced with a 
Hobson's choice. If they object to allowing the third party agent into 
their facility, they may rightly fear retaliation by the OSHA 
inspector. If they allow the third party outsider into the workplace, 
then they are giving up their private property rights and allowing 
someone into their premises who does not have the company's best 
interests at heart and who may actually want to do harm to the company. 
The company may also be exposing trade secrets, and at a minimum the 
employer's privacy rights are being infringed. Finally, there are some 
unsettled liability issues connected with allowing a third party into a 
private workspace, if there is in fact a safety hazard on the premises.
Conclusion
    For each of the reasons set forth above, Congress should take 
appropriate action to require OSHA to withdraw the LOI and return to 
the previous longstanding policy. Regardless of any additional 
Congressional action, OSHA should voluntarily withdraw the LOI in order 
to avoid needless infringement on the rights of employers and the 
majority of their workers who have NOT chosen the outside third party 
as their authorized representative. Thank you for the opportunity to 
testify today, and I look forward to your questions.
                                 ______
                                 
    Chairman Walberg. Thank you.
    And I thank each of the witnesses for your testimony as 
well as the full written testimony that we have for our 
records.
    And now I turn to my colleagues. Appreciate the attention 
to this meeting today.
    And I will recognize the chairman of Education and 
Workforce Committee, Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman. I appreciate the 
courtesy of recognizing me--doesn't get you anything. You 
understand that. But I do appreciate the courtesy.
    I want to thank the witnesses for being here today.
    And once again, as is so often the case, there is some 
difference of opinion that we have heard, and I expect we are 
going to explore that some. I just have a couple of questions, 
because it seems like we have got a lot of information, 
guidance that is coming from OSHA, and I am not sure how that 
word is getting out.
    So let me start with the man who has traveled the furthest, 
I suppose, from South Dakota.
    How did farmers in general, how did you specifically, learn 
about OSHA's issuance of its 2011 guidance relating to the 
post-harvest activities?
    Mr. VanderWal. Thank you, sir. I appreciate that question.
    First of all, I believe it started in--there were a couple 
cases, one in Nebraska, one in Ohio, where OSHA showed up and 
looked at the operation--I am not sure what you would call it, 
walk-around, whatever it would be--and identified what they 
perceived as violations of the regulations. In our view, it was 
in violation of congressional intent because they were both 
farms that were under--had 10 employees or fewer and they were 
small family farm operations.
    So when those--I am not familiar exactly with the case in 
Nebraska, but I believe it is in litigation so I shouldn't say 
too much more about it. But they contacted their attorney right 
away when they were threatened with fines and things--and the 
regulatory things that OSHA does.
    Mr. Kline. So in this case, the farmers learned about this 
when the OSHA inspector showed up. They had no other indication 
that this was going to happen. Is that what I am hearing from 
you?
    Mr. VanderWal. I can't say for sure whether they just 
showed up out of the blue or if they sent a letter ahead of 
time.
    Mr. Kline. And so then you learned about it--you are on the 
Farm Bureau board and active in the South Dakota part--you 
learned about it after these instances had occurred in 
Nebraska?
    Mr. VanderWal. That is correct.
    Mr. Kline. Okay.
    Mr. Hammock, in OSHA's letters of interpretation they 
contain language stating the letters, quote--``do not create 
new or additional requirements but rather explain these, 
OSHA's, requirements,'' close quote. In your opinion--you have 
already testified to this, we are just trying to hammer it down 
here--have OSHA's most recent actions clarified policies or 
overturned existing policies?
    Mr. Hammock. Thank you. In my view they have overturned 
previous policies or set out new policies that are really not 
tied directly to underlying requirements or statutory 
provisions, in a sense, going beyond what they say in a 
standard disclaimer in those letters of interpretation.
    And I would like to say, if I could, one thing in response 
to your previous question, and that is oftentimes these things 
will just appear on OSHA's Web site, and unless you are a 
businessman out there who spends every day and gets on OSHA's 
Web site and looks at the letters of interpretation, you are 
not going to really know what OSHA is saying or what things are 
coming out there that are going beyond the disclaimer on the 
letters of interpretation. It is a very challenging thing for 
people who have got a lot of stuff to do during the day rather 
than just sit around and look at OSHA's Web site.
    Mr. Kline. Thank you.
    Sorry. I was trying to think how much time I spend sitting 
around looking at OSHA's Web site or anybody else's site. Not 
very much.
    I don't know how much time I have got left here, but only a 
couple of minutes so I want to go into this combustible dust 
issue, which you got at, and it--I am very confused by it 
because it seems to me that without a definition I don't know 
how somebody is supposed to comply or determine what the limits 
are or if they even have the equipment to determine what the--
can you take the minute or so we have got left here and talk 
about this global harmonization standard and what that impact 
is when you don't have a definition?
    Mr. Hammock. Yes, absolutely. And obviously the GHS 
standard and the hazard communication standard generally is one 
of OSHA's most far-reaching regulations. I mean, the reality is 
it deals with notifying folks of the hazards of chemicals. And 
so it has wide applicability.
    But the key to the working of the GHS or the HCS is 
understanding what the substances are that you are producing 
and whether they are a hazard and in what types of environments 
they are a hazard. And if you don't know some of that basic 
information, if you don't know the downstream use of your 
products, it is almost impossible for you to actually comply 
with that underlying requirement.
    So if you are a manufacturer out there now you are trying 
to think, ``Is this soybean that I am producing, is this going 
to be combustible down the road?'' The reality is it is very, 
very difficult for folks to get their heads around that given 
the lack of a definition.
    Mr. Kline. Okay.
    I see my time is expired, Mr. Chairman. Thank you.
    Chairman Walberg. Thank the gentleman.
    Now I----
    Ms. Rabinowitz. Excuse me. May I just add an additional 
comment?
    Chairman Walberg. You will probably have your opportunity 
at some point I would guess, but we need to move on.
    And so I will recognize my friend from Connecticut, Ranking 
Member Joe Courtney.
    Mr. Courtney. Thank you, Mr. Chairman. Ms. Rabinowitz, 
again, I just want to first of all thank you for at least 
laying out there that employer inquiries are a large part of 
OSHA's day-to-day business of communication in terms of 
interpretation and clarification. And I would just say maybe 
people don't read the Web site every day, but Connecticut 
homebuilders have regularly meetings with NIOSH representatives 
to get updates not because they want to sort of, you know, 
avoid the law; they actually want to learn about new products, 
substances to make sure that their workforce is safe.
    So the notion that somehow, you know, what OSHA is doing in 
terms of getting information out there through the Web site is 
somehow, you know, an act of, you know adversarial government 
heavy-handedness, I--that is not my experience talking to 
employers and people who are out there dealing every day with, 
again, you know, the world changes in terms of stuff that you 
buy for building things and producing things.
    So, you know, again, I guess I would just want to go back 
to a point you made in your testimony, Ms. Rabinowitz, that 
merely posting information, I mean, that doesn't trigger 
liability by itself. I mean, is that--and I just wonder if you, 
again, you could just sort of reiterate what the standard is 
for enforcement against an employer, and just merely posting 
information doesn't satisfy any kind of burden.
    Ms. Rabinowitz. In order to be able to cite an employer 
under the general duty clause where there is an established 
permissible exposure limit, OSHA has to show that the employer 
had actual knowledge that the existing standard was causing the 
workers harm. In the General Dynamics case that I cited, 
several employees at a Chrysler tank manufacturing plant had 
passed out based on exposure to Freon and the UAW had 
complained to Chrysler repeatedly and they had done nothing 
to--the Freon exposures were within OSHA's permissible exposure 
limit and Chrysler had done nothing to protect the workers.
    Another gentleman named Harvey Lee went into a tank to 
clean it out using Freon. He passed out and died. He was about 
the fourth or fifth person who had been exposed to these 
exposures.
    OSHA cited the employer under the general duty clause. The 
employer argued that OSHA was trying to unfairly expand the 
scope of the general duty clause without amending the 
standards--the same criticism that Mr. Hammock has leveled. 
A.nd the D.C. Circuit rejected that employer argument and said 
that the statute, as it was written by Congress in 1970, 
imposes an independent duty on employers to protect workers 
from recognized hazards when they have actual knowledge that an 
employee is in harm's way even after they have complied with 
the standard.
    It is a very narrow court decision. It has been on the 
books for 25 years. There is nothing new about it. Posting 
these exposure limits on the Web site does not provide evidence 
of actual employer knowledge that people are in harm's way.
    Mr. Courtney. Thank you.
    And as far as the inspection issue, which Mr. Baskin 
testified regarding, again, the actual OSHA law, I mean the 
statute, provided for employee participation in inspections, 
whether it is, you know, injuries or fatalities or complaints 
about what is going on at a workplace. And again, it--there was 
nothing in it that limited who those representatives would be; 
it would just--it basically gave--it is like a ``may'' 
language, in terms of who can accompany on behalf of employees. 
Isn't that correct?
    Ms. Rabinowitz. It is correct. Not only that, but if you 
look at the NLRA, there--if Congress wanted to limit the walk-
around right only to certified bargaining representatives, that 
is a well-known term in labor law and it could have done so. 
Congress did not say ``certified bargaining representative,'' 
it said ``authorized employee representative.''
    And Mr. Baskin himself cites the fact that the Occupational 
Safety and Health Review Commission also is allowed to have 
authorized employee representatives participate, and at one 
point a number of years ago a union organizer tried to exercise 
that right and, taking the same position that Mr. Baskin took, 
the Review Commission refused to let this organizer participate 
because he didn't represent a majority of employees. That case 
went to the First Circuit Court of Appeals and the First 
Circuit Court of Appeals held that authorized employee 
representative could be anybody who had been authorized by a 
group of workers; it did not have to be a certified bargaining 
representative.
    Mr. Courtney. And just again, most of these inspections, I 
mean, it is not like you can get inside there and start 
leafleting, you know, people or, you know, getting captive 
audiences for organizing. I mean, the fact of the matter is 
these are very focused visits in terms of what the inspection 
is trying to achieve, which is to find out whether or not, 
again, there was some violation of law. Isn't that correct? I 
mean, it is not like an opportunity to go out there and be Joe 
Hill.
    Ms. Rabinowitz. If an employee tried to leaflet--a walk-
around rep tried to leaflet during an OSHA inspection the OSHA 
inspector would be justified in excluding that person. And I 
imagine that an employer would ask the OSHA inspector to 
exclude that person.
    The employee rep is there to aid the inspection, and it is 
the OSHA inspector's discretion as to whether that rep is being 
helpful. And if they are not being helpful or they are being 
disruptive the OSHA Field Operations Manual instructs the OSHA 
inspectors not to have them continue in that capacity. So I 
think it is a host of horribles that hasn't come to pass that 
is being imagined and may not be real.
    Mr. Baskin. Mr. Chairman----
    Chairman Walberg. Gentleman's time is expired, and I am 
sure we will have opportunities for further comment, but we 
need to move on in the process.
    And so I recognize my friend from Indiana, Mr. Rokita.
    Mr. Rokita. I thank the chair.
    Good morning, everybody. Appreciate your testimony. I 
wanted to start with Mr. Hammock.
    These letters of interpretation, that is what you are 
talking about being put on the Website, do they have the weight 
of law, right, at the time they go on the Web site, or is there 
a formal publication process that must be gone through first?
    Mr. Hammock. There is not a formal publication process, as 
you would think, in terms of a rule that needs to be published 
in the Federal Register. They are made publicly available 
usually a few months after they are sent to the requester. So 
the information is out there for a period of time before they 
turn up on OSHA's Web site.
    You know, with respect to whether they have the force and 
effect of law, OSHA's position is that, as was discussed 
earlier, is that they don't, but the reality is some of these 
letters of interpretation do go quite far in setting out 
employer obligations. And I have certainly been involved in 
cases where a compliance officer has showed up on a site and 
handed a letter of interpretation to an employer and said, 
``Are you familiar with this new position that OSHA has 
taken,'' and it has gone from there.
    Mr. Rokita. Yes, but I thought the testimony and maybe it 
was an amalgamation of everyone's testimony--show that the 
trend is different. For example, in the past letters of 
interpretation were intended to be clarifications of existing 
policies, and that wouldn't require any specialized legal 
notice; but now, if I understand Mr. Baskin's testimony 
correctly, these quote-unquote letters of interpretation 
suggest more than a simple clarification, and that is what you 
are describing right?
    So now----
    Mr. Hammock. Correct.
    Mr. Rokita [continuing]. We do have a different situation 
that could have the force and effect of law, yet we are giving 
notice by Web site and maybe soon by Facebook. You know, who 
knows?
    And that is where we have some problems not only for 
industry and businesses but for the agency itself. You worked 
at the agency correctly, right, correct?
    Mr. Hammock. That is correct, yes.
    Mr. Rokita. Ms. Rabinowitz's testimony laments the length 
of time--on average, 7 years--that it takes for OSHA to 
promulgate a regulation. Are the requirements OSHA must follow 
in place for specific reasons and that is the reason it is 
taking this long, or what is the situation?
    Mr. Hammock. Yes. There are some procedural requirements 
that OSHA needs to follow to promulgate rules, and those are 
for good reason to get input from a number of stakeholders as 
early in the process as possible. Those requirements in and of 
themselves are there for good reason but they don't cause an 
undue delay, in my experience--there are a number of reasons 
why OSHA may take a long period of time, and I have been a part 
of some of those experiences when I was with OSHA. But they are 
really outside of those regulatory procedural things that OSHA 
has to do, which, as I said, are really to provide additional 
input from the agency, which can be real value added for the 
policymakers there.
    Mr. Rokita. Thank you.
    And turning my attention to Mr. Baskin, Ms. Rabinowitz's 
testimony highlights that employers can refuse OSHA access to a 
job site and require the agency to seek a warrant, and we have 
been touching on that. You, however, note that employers might 
be reluctant to do this because it could engender animosity 
with the inspector--not hard to imagine.
    At issue, though, is that OSHA would be seeking a warrant 
to allow participation by a third party who is not a designated 
representative of the secretary. Do you believe OSHA will be 
successful in obtaining a warrant that allows a third party to 
accompany an inspector?
    Mr. Baskin. Well, I am always reluctant to predict what 
judges will do, but the law seems pretty clear in this 
situation. Because of the violation of the Administrative 
Procedure Act, if it is contested OSHA should not be 
successful.
    And I would add to the problems that employers face, first 
is lack of knowledge of what is going on. Chairman Kline asked 
about the Web site. This letter that we have been talking about 
on the union access was issued in February; it was not even 
posted--it was not made public anywhere until April. Months 
went by while there was nothing on any Web site for anyone to 
turn to.
    And now, even after it has been published, there has been 
extreme difficulty in making the employers aware of what is 
going on because they are not all sitting by their computers 
watching the OSHA Web site; they are actually engaged in 
business, trying to do what businesspeople do and succeed and 
survive in this economy. And so they are taken totally by 
surprise when this happens.
    Then if they have the wherewithal and are willing to stand 
up to the OSHA investigators they have got to call a lawyer--
not something they are all fond of doing. That lawyer has to be 
familiar with this issue. It is a fairly narrow thing so not 
many lawyers are. OSHA has the ability to go in to get the 
warrant ex parte unless the employer and the lawyer make 
special efforts to show up and contest it with the judge.
    So these are all reasons why this is just not the way to do 
business. This is why you have an Administrative Procedure Act 
and this is why they should not be making these kind of changes 
without going through the public notice and comment.
    Mr. Rokita. My time is expired.
    Chairman Walberg. Gentleman's time is expired. I thank the 
gentleman.
    And now I recognize gentleman from Wisconsin, Mr. Pocan.
    Mr. Pocan. Thank you, Mr. Chairman.
    Well, you know, listening to the hearing kind of makes me 
think of the bigger, broader issue maybe that we should be 
discussing, which is just the fact that we have got an agency 
that is in many ways handcuffed from doing much of what has to 
happen. And, you know, I have been a small business owner for 
26 years in a specialty printing business, so in my industry we 
have volatile organic components and other things that, you 
know, we have had to deal with and understand how that works.
    While I agree with Mr. Hammock that I don't check the OSHA 
Web site on a regular basis--and no one really does--I also, 
though, do know that I have to deal with things like volatile 
organic compounds and some of the chemicals I use in my 
industry so I have switched to soy base, promoting the farming 
industry, because I found that to be a much cleaner 
alternative. But I know my industry area.
    But when I don't have updated standards it is really 
difficult to then exactly know where you are going. Part of the 
problem is it is Congress and the courts that have somewhat 
handcuffed OSHA from getting done what it wants to.
    Mr. Baskin, just one quick comment: I think when you said 
some of the outside people who come in have no expertise in 
nonunion workplace, to me it doesn't matter if it is a union 
workplace or a nonunion workplace--if someone is an expert in 
some of these areas they are an expert in some of these areas. 
I think we are just coming at it from different approaches. You 
are looking at it from a union person coming in--union versus 
nonunion; I am looking at it as someone who has expertise so 
that there is that certainty for both the employer and the 
employees that you have got safety.
    You know, I think the issue that really comes out of this 
to me is the fact that there is only about 2,000 inspectors for 
8 million workplaces. I think they could expect one--on 
average, one every 131 years, if I understand right by the math 
and how it works, with regulations that largely haven't changed 
since the decade I was born in the 1960s and some going back to 
the 1940s.
    So I guess the first question I have would be for Ms. 
Rabinowitz. I mean, specifically when you look at the standards 
that need to be changed to update the 400-plus standards, you 
know, under the current rules we have on rulemaking how long 
would that take, and what tools does OSHA need, really, to get 
that done so that employers and employees alike can move in a 
direction we would much rather move but right now are 
handcuffed by.
    Ms. Rabinowitz. OSHA has approximately 400 out-of-date 
exposure limits that were adopted in 1970--between 1970 and 
1972 based on science from the 1940s or 1950s or 1960s. The 
courts have ruled that OSHA has to do those one by one. And 
based on the GAO study, which suggested the average amount of 
time would be about 7 years--I am not that good with math, but 
you can multiply out, it would be decades and decades and 
decades.
    And they have really thrown their hands up. They can't 
figure out a way to do this. They don't have the resources and 
so they have almost stopped trying.
    There have been proposals in the past, two of which--one of 
which was reported out of this committee in what I believe was 
the 102nd and 103rd Congress to create a system of periodically 
updating these basic exposure limits, let's say every 5 or 10 
years, so that they corresponded with the recommended limits by 
other organizations. That went nowhere.
    EPA has a similar process where they update Clean Air Act 
standards on a periodic basis. I am not as familiar with those 
proposals.
    But there have been a series of proposals. I think there 
have been a series of working groups with business and labor 
trying to figure out a way to fix this problem. It would 
probably require action by Congress because the statute has 
currently been interpreted to require OSHA to go one by one.
    Mr. Pocan. And let me just ask one other slightly different 
question on, you know, it has been implied that somehow 
something has changed recently with how OSHA operates. You 
know, the letters of interpretation have been used consistently 
as a core agency function, as I understand it regardless of 
party in charge. Is that----
    Ms. Rabinowitz. Regardless of party in charge. I would like 
to just cite two examples.
    Mr. Hammock cited this globally harmonized hazard 
communication system and was critical of a interpretation that 
OSHA issued that defined combustible dust, but the American 
Petroleum Institute and the American Chemistry Council have 
sought interpretations from OSHA without notice and comment to 
clarify how the rule would apply to them, and they are both 
seeking those interpretations and potentially willing to 
withdraw from litigation if they get them.
    There won't be any notice and comment on the ones they are 
asking for, either. It is the way OSHA does business when it 
has to go into the specifics.
    And with respect to the memo that the gentleman from the 
Farm Bureau has talked about, I went and looked at the 
definition in the 2011 memo of where OSHA can inspect. It is 
verbatim the same as the definition of where OSHA can inspect 
in the 1998 directive. And so OSHA, as I understand it, has not 
changed what it views is covered by the farming rider--the 
small farm rider--and what isn't.
    Whether there has been a factual error that this facility 
in Nebraska was inspected when it shouldn't have been, I don't 
know the answer to that question. I understand it is currently 
in litigation. But when I did some research for this hearing, 
the statement that OSHA uses, and it defines who is covered and 
who is not covered by SIC code, the exact same SIC codes have 
been listed for more than 15 years, so there hasn't been, in my 
mind, any change.
    Mr. Pocan. Thank you.
    Chairman Walberg. Thank you. The gentleman's time is 
expired.
    I now recognize my colleague and friend from North 
Carolina, Mr. Hudson.
    Mr. Hudson. Thank you, Mr. Chairman.
    And thank all of our witnesses for being here today.
    Mr. Hammock, I have talked to business owners every day who 
are overwhelmed by the magnitude of the federal government, how 
present it is while they try to run their business day to day. 
With the new health care law, confusing tax code, anemic 
economy, there is no doubt that we--there is no reason that we 
should force our businesses to comply with impossibly excessive 
regulation.
    I don't see how companies can comply with the regulations 
in the face of such enormous cost. The American Foundry Society 
has said that the new silica regulation will cost their 
industry $2 billion annually if implemented. The feasibility to 
comply with these regulations also concerns me greatly when as 
much as 40 percent of the OSHA-collected silica samples exceed 
the current standards in the construction industry. We need to 
make sure the industry is not burdened with unnecessary 
regulations that are impossible to comply with.
    Is it true that your testimony that when OSHA undertakes 
changes to existing guidance documents stakeholders are not 
provided any notice, any advance communication or notification 
of these changes. Is that correct?
    Mr. Hammock. Yes, that is correct. And, you know, as we 
talked about also, just the difficulty for folks really knowing 
what is out there without having, you know, called their OSHA 
lawyer every once in a while to find out when is the last time 
you, you know, read something on OSHA's Web site.
    Mr. Hudson. Thank you. Now, there is considerable evidence 
that many of the commercial labs can't accurately and 
consistently measure silica samples and the proposed PEL, or 
permissible exposure limit, which is 50 percent of the current 
limit, let alone the proposed action level, which is half of 
the proposed PEL, or 25 percent of the current limit. OSHA 
seems to acknowledge this problem by providing commercial labs 
2 years in which to improve the quality of their silica 
analysis, yet would still hold employers accountable for 
complying during that same 2-year period.
    How can OSHA demand compliance for employers who depend on 
the labs for accurate silica analysis when the agency 
apparently believes that many labs aren't completely up to that 
standard anyway?
    Mr. Hammock. Yes, and you bring up a very good point with 
respect to OSHA's current proposed rule related to crystalline 
silicone. One of the major issues that has been raised in the 
course of that rule is the extent to which samples can be read 
at those types of levels, and it is of significant concern to 
folks that have silica exposures in their work environments.
    Mr. Hudson. Well, don't you think OSHA should give 
employees the same 2-year catch-up it gave the labs?
    Mr. Hammock. Yes. And one thing that I will emphasize, in 
this situation that is something that stakeholders should 
comment to the agency on. OSHA has sought comment on that 
issue, and I think it is important for everyone, employers and 
employees, to comment on those very issues during the 
rulemaking.
    Mr. Hudson. I agree.
    Well, OSHA estimates that the average very small business 
owner will spend about $1,100 on compliance with the proposed 
standard each year, yet the cost of hiring someone just to 
sample and analyze a set of silica examples of the two to four 
sets that could be required annually could exceed $1,000--for 
example, $2,000 to $4,000 a year.
    Medical surveillance costs can run $150 per employee every 
3 years, so an employer with 20 employees on medical 
surveillance could pay $1,000 a year just in medical costs. 
Engineering controls and respirants could cost many thousands 
of dollars. How did OSHA derive their value and how does OSHA 
square the reality of expected costs with these estimates that 
seem to be way off to me?
    Mr. Hammock. Yes, they have a methodology--OSHA does--that, 
you know, essentially they find unit costs for various types of 
things that would be required and then they multiply that in 
sort of a crude analysis of it by number of exposed employees 
or number of establishments affected, and that is how they 
reach those numbers. And I think a lot of folks have raised 
concerns that those numbers are under what they really should 
be, and I expect that OSHA will get a robust record to look at 
as they go forward with that rulemaking as to whether those 
costs are accurate.
    Mr. Hudson. Thank you.
    Switching gears quickly--I have got about a minute left--
Mr. VanderWal, your testimony discusses OSHA's attempt to 
redefine certain aspects of farming post-harvest, therefore not 
covered under the longstanding appropriations language. Do you 
believe the activities described are integral to farming 
operations?
    Mr. VanderWal. Thank you. Yes, I do.
    The storage and conditioning of grain is an absolute 
integral part of a farming operation because we spend all the 
time planting, doing the crop protection chemicals, harvesting, 
doing all the things that it takes to produce a great crop, and 
the ultimate goal, like I said, is to sell it. Well, what you 
have to do is you have to dry the corn first if it doesn't dry 
down properly in the field; you have to finish it all the way 
to 15 percent.
    And then the prices at harvest are typically lower than the 
rest of the year so we store it for anywhere from 1 to 6 or 8 
months to try to get a better price. That is part of the 
farming operation; it is not a sideline.
    Mr. Hudson. Thank you.
    And, Mr. Chairman, my time is expired.
    Chairman Walberg. Thank the gentleman. His time has 
expired.
    I recognize myself now for cleanup, 5 minutes of 
questioning.
    Mr. Baskin, the walk-around letter of interpretation 
appears to create a conflict between the National Labor 
Relations Act and the Occupational Safety and Health Act. What 
could be the impact of this conflict on employers and how 
should they navigate this apparent conflict?
    Mr. Baskin. Well, there really is no way for them--for 
employers to navigate it because they are just simply being 
told that their rights under the National Labor Relations Act--
their rights of private property, protect those--to protect 
their property against outsiders--are lost. The statement was 
made earlier that, well, if they start leafleting or start 
disrupting the employer or the safety inspector can step in, 
but the damage is done when they cross the threshold. This is 
supposed to be private property. The inspector has the right to 
come in; these outside union organizers who do not represent 
the employers in the workplace do not have that right.
    This is not something where the employer can go file 
charges or do anything.
    Chairman Walberg. This goes beyond leafleting.
    Mr. Baskin. Absolutely. It is a protected employer right 
and it is the right of the majority of the employees in that 
workplace to designate who their representatives are going to 
be. The statement was made earlier that there is nothing in the 
act or in the regulation that makes reference to that, but the 
act says that it is supposed to be a representative authorized 
by the employees who is doing the walk-around. The regulation 
says it is a representative authorized by employees, shall be 
an employee of the employer.
    And from that we first went to certain people like safety 
engineers and hygienists, and now, after a million inspections 
over 40 years--a million inspections with no outside union 
agent allowed into a nonunion workplace--suddenly in 2013 OSHA 
declared, ``Absolutely, let them in.'' That is wrong without 
going through the notice and comment. It is unquestionably a 
change in their longstanding policy.
    Chairman Walberg. So let me follow that to a question, does 
the walk-around letter of interpretation serve the best 
interest of the majority of employees in the workplace?
    Mr. Baskin. Well, absolutely not. They haven't asked for 
these outsiders to come in. They have as much at stake as 
anyone in that workplace who made the--had the concern about 
the inspection in the first place. They are the ones who are 
working there, and if they want a representative there are 
procedures in place for them to properly designate such a 
representative.
    Chairman Walberg. And they are the ones most concerned with 
the safety of their own workplace.
    Mr. Baskin. I would think so.
    Chairman Walberg. Thank you, Mr. Baskin.
    Mr. VanderWal, with respect to grain bins, are you aware of 
any efforts by OSHA to engage the Farm Bureau or individual 
family farmers in order to gather information related to best 
practices in this area?
    Mr. VanderWal. I am not aware of any such effort.
    Chairman Walberg. No efforts undertaken?
    Mr. VanderWal. As far as being part of the Farm Bureau, I 
don't believe we have been contacted by OSHA to do a 
cooperative program of any kind.
    Chairman Walberg. A large and respected entity in the 
agriculture community with best interests and best practices 
that they share regularly with their membership and generally 
with agriculture.
    You note two situations where OSHA issued citations to 
family farmers in your testimony. In one instance the citations 
were withdrawn after a reporter made an inquiry about the 
agency's citations. Have you heard of other farmers in similar 
situations that have gone unreported?
    Mr. VanderWal. We haven't at this point. As you say, there 
can be cases where people have had those situations arise and 
haven't said anything. Some may just pay it and try to make it 
go away.
    But this is a situation where we believe it is a camel's 
nose under the tent and if we let it get started, and say we 
get 4 years down the road and it starts happening more, then if 
we start complaining people would say, well, why didn't you say 
something 3 or 4 years ago when this started? We just want to 
stick up for ourselves and head it off at the pass.
    Chairman Walberg. Mr. Hammock, OSHA created a chemical 
exposure toolkit with sources other than OSHA's own regulations 
for exposure limits, as I understand it. OSHA press rollout of 
the toolkit was critical of the agency's inability to update 
its own permissible exposure limits.
    Is it appropriate for an agency to undermine its own 
standards through guidance? And then secondly, do you believe 
the toolkit creates certainty and confidence for the regulated 
community?
    Mr. Hammock. Thank you. I will answer the second question 
first, if I may.
    I think it does create a lot of uncertainty and confusion 
out there, and, you know, for the small business person or even 
the larger business person, as to what they need to drive their 
certain operations to comply with. I think it does create quite 
a bit of uncertainty.
    And then to your first question, absolutely. Look, it is 
dismissive of their own permissible exposure limits. I mean, I 
don't think there is any dispute, and the Chamber would agree 
that the PELs that are on the books need to be reexamined and 
reevaluated. But this action is highly dismissive of the 
existing limits and I do think will create a lot of uncertainty 
for employers out there.
    Chairman Walberg. Well, I thank the gentleman.
    And I thank the whole witness panel for your time and 
attention to this issue. This is a start of discussion and a 
continued discussion that ought to go on, and so I thank you 
for participating with us today.
    I would like to recognize the ranking member, Mr. Courtney, 
for any closing comments that he would like to make.
    Mr. Courtney. Thank you, Mr. Chairman, again for your, you 
know, wonderful conduct in terms of this hearing and making 
sure all members have a chance to ask questions and all 
witnesses have a chance to answer them.
    I want to just sort of do a little bit of housekeeping 
before doing the final closeout, which is, again, that the 
opening statement by my friend and colleague sort of began with 
the catechism of folks on the other side that this 
administration is somehow, you know, overreaching in terms of 
its use of executive power. Again, the Brookings Institute did 
an analysis of the Obama administration, the Bush II 
administration, and the Clinton administration in terms of the 
issuance of executive orders.
    On average, over the terms of these Presidents, President 
Obama has issued 33 executive orders, President Bush 35, and 
President Clinton 45. So again, I just want to, you know, at 
least try to point out that the narrative, which again, we are 
hearing and we are going to continue to hear, when you 
exactly--when you examine it through the facts of actual 
actions by this executive branch, it in fact is more modest 
than the preceding two administrations.
    Secondly, you know, Mr. Baskin, your comment that the law 
requires that only employees be participating in the walk-
around, again, I would just read to you the 1973 regulation 
from OSHA, which states that ``the representatives authorized 
by employees shall be an employee of the employer,'' period, 
but it doesn't stop there. It states, ``However, if in the 
judgment of the Compliance Safety and Health Officer, good 
cause has been shown why accompaniment by a third party who is 
not an employee of the employer (such as an industrial 
hygienist or a safety engineer)''--and that is just examples--
``is reasonably necessary to the conduct of an effective and 
thorough physical inspection of the workplace, such third party 
may accompany the Compliance Safety and Health Officer during 
the inspection.''
    Again, Ms. Rabinowitz cited court cases that have shown 
that even in nonunion workforces or places where there is a 
strike and replacement workers are present, union 
representatives, again, and in the opinion of the compliance 
officer makes sense to be the person representing the employees 
during inspections, that is perfectly legal, and these cases go 
back long before this administration.
    And lastly, it may be true that the South Dakota Farm 
Bureau has not participated with OSHA, and that is unfortunate 
and I hope that that would change, because I think that as in 
my state, you know, in fact, there is collaboration of employer 
groups with OSHA to try and, again, get best practices out 
there in an informational, consensus-building, non-
confrontational, non-adversarial setting.
    However, I would point out that after the settlement that 
OSHA had in South Dakota with the Wheat Growers, where again, 
it was a $1.6 million fine assessed, they cut it in half 
because the Wheat Growers agreed to basically coordinate 
training exercises with local fire departments and five rescue 
tubes were installed, which saved the life, by the way, of a 
worker who was engulfed. And again, that is an example of 
collaboration which has actually happened in South Dakota in 
this very terrible, you know, difficult area of work, which 
again, I know you care about and I know you want to be part of 
the solution to those situations.
    And there I just would begin by saying that as we review 
OSHA's efforts to protect workers we should remember the voices 
of workers' families whose loved ones died in preventable 
accidents.
    Catherine Rylatt sent us a statement about her nephew, Alex 
Pacas, age 19, who suffocated from walking the corn on his 
second day of work at the Haasbach grain storage facility in 
Illinois back in 2010.
    She wrote: On July 28, 2010 in Mt. Carroll, Illinois around 
7 a.m. my nephew Alex, age 19, reported to his second day of 
work with his best friend, Will Piper, then age 20, and 
coworkers Wyatt Whitebread, age 14, and Chris Lawton, age 15. 
The four young men were sent to bin number 9 to knock down corn 
that had built up on the interior walls and shovel grain 
towards the open sump, situated over the operating unloading 
conveyer below.
    A 911 call was received at 9:56 a.m. that said people were 
trapped in a grain bin. Word spread quickly through the small 
community and soon family, friends, and townspeople gathered at 
the site in the scorching July heat.
    The families did not know when they arrived the most 
horrific of events had already taken place. Shortly before 10 
a.m. Wyatt, the 14-year-old, became caught in moving grain. 
Terrified, he screamed for help as he started sinking.
    When a rescue attempt by three other boys was futile, Chris 
escaped to get help. Alex and Will continued pulling on Wyatt, 
determined to save him. Wyatt was almost freed from the flowing 
corn when the surface shifted, trapping Will and Alex. Now 
helpless, they witnessed Wyatt, still screaming, sink beneath 
them and become completely covered.
    One shudders to think what the last thoughts of this 
frightened child--he was a baby in my book--were as he became 
entombed alone in the darkness before his life was snuffed out 
by millions of corn kernels. Wyatt was dead before the 911 call 
was even made.
    Holding each other's hands, Will and Alex clung to hopes of 
rescue as the grain flowed higher around them. Alex strained to 
keep his face free while Will franticly kept brushing grain 
away. Will was in a desperate frenzy, attempting to keep Alex 
alive even when Alex's hand stopped squeezing his beneath the 
dried kernels.
    These tragedies are completely preventable. In this case, 
the employer had purchased harnesses which could have prevented 
the disaster, but never provided the necessary training or 
equipment.
    Mr. Chairman, I respectfully request that the statement of 
Catherine Rylatt be included in the hearing record.
    [The information follows:]

             Prepared Statement of Catherine A. Rylatt, MPA

    My name is Catherine A. Rylatt. I am the maternal aunt of Alex 
Pacas, a grain bin fatality victim. I am respectfully writing on behalf 
of my family.
    On July 28, 2010 in Mt. Carroll, Illinois around 7:00 AM my nephew 
Alex, age 19, reported to his second day of work with best friend Will 
Piper (then age 20) and co-workers Wyatt Whitebread, age 14, and Chris 
Lawton age 15. The four young men were sent to Bin # 9 to knock down 
cornthat had built up on the interior walls and shovel grain toward the 
open sumps situated over the operating unloading conveyor below.
    A 911 call received at 9:56 AM said people were trapped in a grain 
bin. Word spread quickly through the small community and soon family, 
friends, and townspeople gathered at the site in the scorching July 
heat. They were told rescuers were in contact with one of the 3 boys 
trapped. The area filled rapidly with an assortment of vehicles as over 
200 rescuers arrived from other locations. Farmers and truckers lined 
the highway for miles to haul off grain emptied from the bin.
    The families did not know when they arrived, the most horrific of 
events had already taken place. Shortly before 10 AM, Wyatt became 
caught in moving grain. Terrified, he screamed for help as he started 
sinking. When a rescue attempt by the 3 other boys was futile, Chris 
escaped to get help. Alex and Will continued pulling on Wyatt, 
determined to save him. Wyatt was almost freed from the flowing corn 
when the surface shifted, trapping Will and Alex. Now helpless they 
witnessed Wyatt, still screaming, sink beneath them and become 
completely covered. One shudders to think what the last thoughts of 
this frightened child were as he became entombed alone in the darkness 
before his life was snuffed out by millions of corn kernels. Wyatt was 
dead before the 911 call was made.
    Holding each other's hands, Will and Alex clung to hopes of rescue 
as the grain flowed higher around them. Alex strained to keep his face 
free while Will frantically kept brushing grain away. Alex realized he 
was going to die. He sought God's forgiveness for his sins and begged 
Will to pray the Lord's Prayer with him. Frightened, hands still 
clasped together and covered by corn, the two prayed. Will in desperate 
frenzy attempting to keep Alex alive even when Alex's hand stopped 
squeezing his beneath the dried kernels. Rescuers arrived and 
surrounded Will with a grain tube, enclosing him with Alex's body. In 
and out of consciousness, Will braced himself against the body of his 
best friend to keep himself above the surface until he was finally 
freed at 3:15 PM and air lifted to a trauma center. The three mothers, 
watching the helicopter leave, remained hopeful.
    Around 3:30 PM, officials met individually with the families. My 
sister, Annette Pacas, was informed Alex, her eldest child and brother 
to 6 siblings, mischievous and energetic since birth, dreaming of 
becoming a robotics engineer and designing prosthetics, would not 
return home again. His body was recovered at 10:15 PM. Seeing him, my 
sister spit on her dusty blouse and began wiping the dust from her 
child's face.
    Dr. and Mrs. Whitebread's son, Wyatt, was recovered at 10:30 PM. 
Their youngest child, a beautiful, exuberant, full-of life, 
contagiously smiling 14 year old would never again make them laugh. 
They had talked to the manager and had been assured Wyatt would not be 
inside a bin with grain.
    On this fateful day, Haasbach, LLC, the owners of Bin #9, called 
their attorney first; they never called OSHA. The father of one of the 
Haasbach partners alerted the media--then called OSHA. OSHA arrived on 
the scene in the late afternoon and began an investigation. During the 
days that followed OSHA investigators discovered safety harnesses, 
still in original wrappings, hanging in a shed--the purchase resulting 
from an insurance risk report. The boys never knew the harnesses were 
there.
    With recently publicized cases of engulfment in the background--one 
involving the death of 17 year old Cody Rigsby in Colorado--the Mt. 
Carroll incident took on even greater significance. OSHA issued an 
advisory letter to the grain industry on August 4, 2010 reminding them 
of the hazards of bin entry and the standards to follow. Yet within 3 
weeks another Illinois man was fatally engulfed. More engulfments 
continued, prompting OSHA to resend the warning letter to over 10,000 
registered grain operations on February 1, 2011.
    OSHA issued 25 citations, including 12 willful violations, and 
proposed fines of $550,000. Haasbach argued throughout the 
investigation and appeal process OSHA had no jurisdiction. They claimed 
theirs was a small farming operation exempt under the appropriations 
rider from OSHA enforcement. However, this facility was not physically 
connected to a farm. On December 6, 2011, Haasbach settled the proposed 
fines for $200,000 with OSHA, along with $68,125 in civil monetary 
penalties assessed by the Department of Labor's Wage and Hour Division 
for violaitons of child labor laws.
    While blames OSHA for its greater scrutiny and farmers rally 
against anything perceived as a regulation, people continue to die and 
be injured in farm and commercial grain storage facilities. In case 
after case after case, whether it is on a farm or at a commercial 
elevator, the reasons people are killed and injured are repeated over 
and over. The prevention methods, around for 30 some years, are not 
just OSHA regulations, but also ``Best Practices'' put forth by a 
variety of agricultural sources including the USDA and the farm bureau 
associations.
    In the 3\1/2\ years since the death of my nephew, I have seen a 
concerted effort by OSHA and others to try and address hazards 
associated with grain handling and storage at commercial facilities and 
on farms through a combination of enforcement, outreach, and training/
education efforts for both their staff and the grain & farm industry. 
They all understand and respect the vital role the farmers and grain 
industry play in our nation. Their work produces food, feed for 
livestock, fuel, plastics, medicine, and so much more. Yet, as the 
demand for these products increases so will the yield and the need for 
storage--safe storage.
    The efforts OSHA has taken alongside others were not born out of a 
political desire to over extend their authority as many have suggested. 
Instead, we are seeing something we don't often experience with our 
government--HUMANENESS. The deaths of Wyatt and Alex, coming so closely 
on the heels of Cody Rigsby, deeply touched many people. These were 
followed by Tommy Osier's death, Memorial Day 2011 (Michigan). Tommy 
had just turned 18 when he was engulfed in a silo on a farm. August 
2011 Oklahoma teenagers, Tyler Zander and Bryce Gannon, each lost a leg 
when they got caught in an unguarded auger while working in a grain 
bin.
    An area OSHA and this Committee can address is how far ``farms'' 
can stretch the definitions and intent of the appropriations rider--
like Haasbach attempted. The boundaries that once separated farms and 
farm storage from commercial operations have become increasingly 
blurred. Farms incorporate to achieve tax breaks, obtain grain storage 
and/or merchandising licenses, enter into contractual relationships 
with commercial facilities and with each other. Yet, when convenient, 
they want to be treated as though they are simply small family farms. 
Farms are building more bins, and bigger bins, with on-site storage 
rivaling the local commercial elevator.\1\ The business has changed and 
yet our definition of ``small farm'' has remained the same for nearly 
40 years.
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    \1\ Capacity of off-farm commercial grain storage in the United 
States totaled 10.4 billion bushels on December 1, 2013 up from 8.5 
billion bushels in 2003. By contrast, United States on-farm storage 
capacity totaled 13.0 billion bushels in 2013 up from 11.0 billion 
bushels December 1, 2003. USDA, National Agricultural Statistics 
Services, Grain Stock reports.
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    When taken out of context, the assertions of farms being inspected 
and Congressional letters asserting OSHA is circumventing the law have 
sparked a needless debate--A debate that needs to end now. Making the 
issue of safety in grain operations a political, partisan, volleyball; 
casting OSHA as a power hungry villain, and perpetuating exaggerated 
claims is NOT helpful or conducive to finding a solution.
    It would serve the citizens of this country better if energies (and 
monies) were spent working together to craft a creative and meaningful 
solution to worker safety--whether on a ``small farm'' or a commercial 
grain facility.
    We need a solution that takes into account the changing role of 
farms; the changes and growth in production, processing, storage, 
movement, and transportation of grain; and the changing relationships 
between farms and ``commercial'' entities. We need a solution based on 
protecting workers' lives no matter where he/she is employed. We need a 
solution that transcends our normal politics and is not dictated by 
partisanship and money. We need a solution that recognizes whether the 
worker is a farmer's son, a young man trying to earn money for college, 
a 20 year veteran at a commercial grain facility, his (or her) life is 
equally IMPORTANT and should be PROTECTED--especially when we know what 
the hazards are and we know how to prevent them.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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    Chairman Walberg. Without objection, and hearing none, it 
will be included.
    Mr. Courtney. As we conclude this hearing, Mr. Chairman, I 
hope that we keep in mind the important role that OSHA fills in 
improving accountability and preventing future tragedies. After 
a grain entrapment in South Dakota, which I mentioned earlier, 
the Wheat Growers were assessed $1.6 million in fines but cut 
them in half as part of a settlement which required the 
employer to purchase five Liberty Rescue Tubes and to 
coordinate training exercises with local fire departments.
    As a result of this training and equipment, firefighters 
were able to save the life of a worker who was engulfed in a 
gulf bin at the Watertown Co-op.
    I want to thank you again for holding this hearing, Mr. 
Chairman, and I want to thank all of our witnesses for being 
here today.
    I yield back the balance of my time.
    Chairman Walberg. I thank the gentleman, and I thank you 
for the reminder of a reality of the issue we are dealing with, 
that sad illustration of people trapped in that type of 
accident. And it is certainly all the desire of the communities 
represented here today at the witness table, in the room, and 
certainly at the dais here on both sides of the aisle that 
those accidents be prevented.
    But I think there is the challenge that we wrestle with 
today that as we want to prevent them and take precautions in 
the future and work in a regulatory relationship--regulators, 
employers, industry personnel, employees, and members of 
Congress--that it be done in a partnership fashion.
    We certainly appreciate the fact that this is to be a year 
of action and moving forward in positive ways for our country. 
But we also want to make sure that as the President uses 
executive order and other approaches to dealing with concerns 
that he has and this administration has, and rightfully, that 
other administrations have used as well, that we certainly 
don't overstep the bounds of the responsibility that Congress 
has.
    I must admit, as I listened to the State of the Union 
address last week, when this statement was made that the 
President was willing and was going to move forward, if 
Congress wouldn't act, he would, and to see the response of a 
good number of my colleagues who stood to applaud the President 
stepping in an area that was our authority, our responsibility 
under the Constitution--to wrestle with the concerns of both 
our employee constituents and our employer constituents, to 
wrestle with issues of safety and security, but wrestle with 
issues as well of moving this country forward and remaining the 
leader in the world for production and employment and 
provision, in certain cases, as we are talking about today, 
provision of food sources for the entire world and not just our 
nation--that we proceed with due process but with caution, as 
well.
    There are reasons why we are in a situation we are in, and 
having that continuing creative tension between the bureaucracy 
and between the elected representatives of the people to make 
sure that all best interests are served with liberty still 
assured.
    I remember a recent trip to Uganda, and going on a peace 
and reconciliation effort, non-congressional, up to the north 
of Uganda, where we had the atrocities with Kony and the Lord's 
Liberation Army and the child soldiers and all of that, and to 
see that area of Uganda attempting to make a rebound and 
reconciliation but also in its agricultural economy, and 
something coming from the agriculture community of the Seventh 
District of Michigan, that I am privileged to represent, I 
wouldn't even contemplate that one of the reasons why the 
farmers in that area weren't able to benefit from all of their 
labor done by the sweat of their brow in just sustenance-type 
farming was because they didn't understand the concept or have 
the ability to store their grain. And so I saw a community 
there working together to produce and build a granary.
    Now, I am sure that we could help them in making sure that 
they have harnesses and all of the rest available to them. At 
this point it wasn't going to be a tall granary, but it was 
going to be a granary nonetheless so that they could save and 
store their crops until the appropriate time to sell it, which 
would provide resources for their families way beyond what they 
were able to at this present time and ultimately produce an 
economy that was sustainable beyond just eating what they took 
from the fields that day.
    Now, that is what I see here, and I would say that we must 
proceed cautiously when we move into regulation that we 
highlight today in a specific way related to our farmers, our 
family farm. We want our kids to be safe on the farm.
    My son works at a granary, works at a major granary in 
Southeast Michigan, and uses the harnesses that are available 
and lives under OSHA requirements because it is an actual 
elevator operation. I know that the farmers in my area have 
concerns and try to address that to the best of their ability.
    And so this is an issue that I am concerned that we address 
and we as members of Congress take the position that we will 
push back when necessary and support when necessary 
bureaucratic regulation that goes on, but it must make sense.
    And so that also goes in the walk-around issues, to make 
sure that our employees are truly represented and that we don't 
have people on site that have one interest in mind potentially, 
because we can't determine for certain what they are thinking 
if they come on with the potential of organizing. That hasn't 
been the process in the past and I think it is appropriate that 
we consider that today.
    One other point I will mention to make it clear, that in 
relationship to organizing issues, it is in direct 
contravention of OSHA's field operations manual--let me make it 
clear--that the interpretive guide for OSHA inspectors states 
this, and it has stated this: Under no circumstances are 
inspectors, CSHOs, to become involved in an onsite dispute 
involving labor management issues or interpretation of 
collective bargaining agreements.
    This is the wording, the language presently in place: 
During an inspection the CSHOS, inspectors, will make every 
effort to ensure that their actions are not interpreted as 
supporting either party to the labor dispute. This is a concern 
and another reason for the hearing that we have had today.
    And I appreciate the witness testimony from both sides of 
the spectrum. I appreciate the attention of the subcommittee 
members and the staff in putting this together.
    And we will continue looking at it aggressively, pushing 
back, asking questions of OSHA related to this as we move 
forward, but again, all with the effort to make sure that 
safety and security goes along with success and opportunity in 
the workplace for both employer and employee.
    There being no further business to come before the 
subcommittee today, the subcommittee stands adjourned.
    [Additional submission of Hon. George Miller, senior 
Democratic member, Committee on Education and the Workforce, 
follows:]

   Prepared Statement of Hon. David Michaels, Ph.D., MPH, Assistant 
    Secretary, Occupational Safety and Health Administration, U.S. 
                          Department of Labor

    Thank you for this opportunity to submit a statement for the record 
of the February 4, 2014, hearing entitled, ``OSHA's Regulatory Agenda: 
Changing Long-Standing Policies Outside the Public Rulemaking 
Process.'' I hope this statement provides additional information and 
context with respect to some of the issues raised during the hearing, 
particularly in regard to safety concerns with certain OSHA incentive 
programs, the permissible use of walk-around representatives during 
OSHA inspections, OSHA's online posting of annotations related to 
permissible exposure limits, and OSHA's policies concerning small farms 
and outreach to the agricultural industry.
    At the outset, let me note that OSHA has a robust rulemaking 
process that allows for and encourages extensive stakeholder 
involvement through public comment periods and public hearings during 
rulemaking. While the Occupational Safety and Health Act of 1970 (OSH 
Act) is clear when rulemaking procedures are required, the OSH Act also 
encourages OSHA to ``develop innovative methods, techniques, and 
approaches for dealing with occupational safety and health problems.'' 
OSHA values an open and transparent process that provides all 
interested stakeholders with the opportunity to be informed about and 
meaningfully participate in DOL's rulemaking efforts. The OSH Act, 
section 21(c)(2), also directs OSHA to consult with and advise 
employers and employees, and organizations representing employers and 
employees as to effective means of preventing occupational injuries and 
illnesses. OSHA's significant public outreach and education efforts 
were established over 40 years ago to carry out this function.
Incentive Programs
    Effective safety programs rely on accurate injury reporting. We 
know that most employers want to comply with the law and accurately 
report their employees' injuries. Unfortunately, some employers, 
particularly in high-hazard industries, have implemented programs that, 
inadvertently or by design, discourage injury reporting. Depending on 
the environment, workers may fear retaliation from their employer, such 
as being disciplined or fired if they report an injury; or may be 
pressured by co-workers not to report an injury in order not to 
jeopardize a group reward. If accurate injury records are not compiled 
because workers believe they will be fired or lose a benefit for 
reporting an injury, or supervisors fear they will lose their bonuses 
or even their jobs if workers report injuries, real safety cannot be 
achieved.
    On March 12, 2012, OSHA issued a memo, ``Employer Safety Incentive 
and Disincentive Policies and Practices,'' to address problems with 
these policies. This memo states that, since section 11(c) prohibits an 
employer from discriminating against an employee because the employee 
reports an injury or illness, ``[i]ncentive programs that discourage 
employees from reporting their injuries'' may violate the OSH Act's 
antidiscrimination language if they result in employees being 
disciplined or otherwise treated less favorably than they would have 
been otherwise. And, only ``if the incentive is great enough that its 
loss dissuades reasonable workers from reporting injuries,'' would 
there be a possible violation of OSHA's recordkeeping standard. The 
memo does not say that the mere existence of any incentive policy 
violates the law, only that the consequences of some policies may 
result in noncompliance if such policies deter employees from reporting 
injuries.
Walk-around Representatives
    Section 8(e) of the OSH Act provides that, ``[s]ubject to 
regulations issued by the Secretary, a representative of the employer 
and a representative authorized by his employees shall be given an 
opportunity to accompany the Secretary or his authorized representative 
during the physical inspection of any workplace * * * for the purpose 
of aiding such inspection.''\1\ These representatives are sometimes 
referred to as ``walk-around representatives.'' OSHA's regulations 
implementing section 8(e) have always permitted non-employee third-
party representatives designated by workers at the worksite to 
accompany OSHA inspectors on walk-around inspections--something that is 
fully consistent with the language and intent of this provision. Under 
OSHA's regulations, a Compliance Safety and Health Officer (CSHO) has 
significant discretion with regard to who may participate in 
inspections.\2\ In particular, the CSHO may permit third parties to be 
walk-around representatives if the CSHO finds that the third party 
would make a positive contribution to a thorough and effective 
inspection.\3\ Although the regulations state the general rule that 
walk-around representatives ``shall be'' employees of the employer, the 
regulations explicitly allow walk-around participation by a non-
employee representative when, in the judgment of the CSHO, such a 
representative is ``reasonably necessary to the conduct of an effective 
and thorough physical inspection.'' \4\
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    \1\ 29 U.S.C. Sec.  657(e).
    \2\ 29 C.F.R. Sec. Sec.  1903.8(a)-(d).
    \3\ Id.
    \4\ 29 C.F.R. Sec.  1903.8(c).
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    Allowing non-employee third-party representatives to accompany OSHA 
inspectors on walk-around inspections is, therefore, not a new OSHA 
policy. The OSH Act itself states that ``a representative authorized by 
[the] employees'' may accompany the inspector. OSHA has interpreted 
this language to mean that, subject to some limitations, it is up to 
the employees to choose a representative who will accompany the CSHO 
during a workplace inspection.
Annotated Permissible Exposure Limits (PELs) Website
    There is broad consensus within the Nation's health and safety 
community that many of OSHA's PELs are based on half century-old 
science, and provide inadequate protection for today's workers. In 
fact, even the testimony presented on behalf of the U.S. Chamber of 
Commerce at this hearing agreed that many of OSHA's PELs are out of 
date and a number of stakeholders have urged OSHA to update these 
standards. The OSH Act mandates OSHA to ``provide for the establishment 
and supervision of programs for the education and training of employers 
and employees in the recognition, avoidance, and prevention of unsafe 
or unhealthful working conditions in employments covered by this Act.'' 
Where there is scientific consensus that many of OSHA's PELs do not 
provide for safe or healthful working conditions, the OSH Act allows 
OSHA to state that fact, and, where necessary, to provide guidance and 
information to workers and employers on how to provide effective 
protection. The information posted on OSHA's website regarding PELs is 
designed to fulfill this obligation.
Small Farms Policy and Agricultural Outreach
    Fatalities can occur in grain storage facilities when workers 
become buried by grain as they walk on moving grain or attempt to clear 
grain built up on the inside of a grain bin. Moving grain acts like 
quick sand, entrapping and suffocating the worker. Since 1987, OSHA has 
had a standard that establishes common sense, effective, and safe 
practices that grain handling facilities must follow to prevent workers 
from becoming entrapped. In 2010, there was a dramatic increase in the 
number of workers entrapped and suffocated in grain storage structures 
while performing grain handling operations. During the same year, 
researchers affiliated with the Agricultural Safety and Health Program 
at Purdue University documented a series of cases in which a total of 
57 workers were entrapped by grain. Thirty one of those workers lost 
their lives, the highest number of annual fatalities on record since 
1964.
    As a result of these tragedies, OSHA has focused its resources on 
preventing grain entrapment fatalities through industry outreach, 
education, technical assistance, and targeted enforcement. In 2011, 
OSHA sent a letter to approximately 13,000 grain facilities, describing 
safety measures and detailing how to comply with OSHA's standard. Since 
OSHA launched its prevention initiative, the number of documented 
annual grain entrapments for 2012 compared to 2010 decreased by 67 
percent (from 57 in 2010 to 19 in 2012) and the number of workers 
killed in these entrapments decreased by 74 percent (from 31 in 2010 to 
eight in 2012).
    OSHA is also well aware of the appropriations rider that prevents 
it from inspecting the vast majority of small family farms, and the 
agency strives to ensure full compliance with the small farming 
operations exemption. OSHA, in consultation with the U.S. Department of 
Agriculture, is currently working on revised guidance to clarify that 
rider for its field staff. In the interim, to ensure consistent and 
appropriate enforcement of OSHA standards, OSHA has instructed its 
Field Offices, in cases of uncertainty, to request clarification from 
the National Office when determining if farming operations are exempt.
    Over the past several years, OSHA, at both the regional and 
national level, has engaged in extensive outreach to the agriculture 
community, including state Farm Bureaus. These efforts have included 
meetings, conferences, presentations, posters, brochures, websites, 
fact sheets, and Public Service Announcements to educate farm owners 
and employees about the hazards involved in grain handling and 
appropriate safety precautions. For instance, OSHA's Area Office in 
Aurora, Illinois, has worked closely with the Illinois Farm Bureau in 
its capacity as a member of the Grain Handling Safety Coalition (GHSC). 
The GHSC is a broad-based, diverse consortium of associations, 
agencies, and individuals with an interest in ensuring safe grain 
handling operations. In collaboration with this group, OSHA's Area 
Office has developed training modules and safety alerts, and has 
participated in multiple outreach sessions and conferences. In 
Wisconsin, OSHA has participated in multiple training and outreach 
sessions with the Wisconsin Farm Bureau since 2010. In addition, in 
November 2012, OSHA formed an alliance with the Wisconsin Agri-Business 
Association (WABA). WABA represents more than 320 members engaged in 
agricultural business across Wisconsin. This Alliance focuses on the 
hazards addressed by OSHA's Grain Handling Local Emphasis Program 
(LEP): engulfment, falls, auger entanglement, struck by hazards, 
combustible dust, and electrocution. As part of the Alliance, OSHA and 
WABA representatives meet quarterly to discuss projects to educate and 
inform employers on grain handling and other workplace safety topics. 
The Alliance participants held a series of webinars in 2012 on various 
topics, including confined space entry, fall hazards, engulfment 
hazards, combustible dust, electrical issues, sweep auger entanglement, 
and lockout. More than 60 sites participated in these webinars, which 
received excellent reviews. Future activities with this alliance, and 
the many more OSHA has throughout the country will continue. Finally, 
valuable information on grain handling can be found here: http://
www.osha.gov/SLTC/grainhandling/index.html.
    Thank you for this opportunity to submit this statement for the 
record. I look forward to continuing to work with this committee and 
welcome future opportunities to discuss how we can better protect 
workers.
                                 ______
                                 
    [Whereupon, at 11:30 a.m., the subcommittee was adjourned.]

                                 
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