[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
Available via the World Wide Web:
www.gpo.gov/fdsys/browse/
committee.action?chamber=house&committee=education
or
Committee address: http://edworkforce.house.gov
----------
U.S. GOVERNMENT PRINTING OFFICE
86-487 PDF WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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]
______
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.]