[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]

                      ENFORCEMENT UPDATE FROM THE
                        OCCUPATIONAL SAFETY AND
                         HEALTH ADMINISTRATION



                               before the


                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives


                             FIRST SESSION

                           Serial No. 114-30

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


      Available via the World Wide Web: www.gpo.gov/fdsys/browse/
            Committee address: http://edworkforce.house.gov

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                    JOHN KLINE, Minnesota, Chairman

Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Duncan Hunter, California              Ranking Member
David P. Roe, Tennessee              Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania         Susan A. Davis, California
Tim Walberg, Michigan                Raul M. Grijalva, Arizona
Matt Salmon, Arizona                 Joe Courtney, Connecticut
Brett Guthrie, Kentucky              Marcia L. Fudge, Ohio
Todd Rokita, Indiana                 Jared Polis, Colorado
Lou Barletta, Pennsylvania           Gregorio Kilili Camacho Sablan,
Joseph J. Heck, Nevada                 Northern Mariana Islands
Luke Messer, Indiana                 Frederica S. Wilson, Florida
Bradley Byrne, Alabama               Suzanne Bonamici, Oregon
David Brat, Virginia                 Mark Pocan, Wisconsin
Buddy Carter, Georgia                Mark Takano, California
Michael D. Bishop, Michigan          Hakeem S. Jeffries, New York
Glenn Grothman, Wisconsin            Katherine M. Clark, Massachusetts
Steve Russell, Oklahoma              Alma S. Adams, North Carolina
Carlos Curbelo, Florida              Mark DeSaulnier, California
Elise Stefanik, New York
Rick Allen, Georgia

                    Juliane Sullivan, Staff Director
                 Denise Forte, Minority Staff Director


                    TIM WALBERG, Michigan, Chairman
Duncan Hunter, California            Frederica S. Wilson, Florida,
Glenn Thompson, Pennsylvania           Ranking Member
Todd Rokita, Indiana                 Mark Pocan, Wisconsin
Dave Brat, Virginia                  Katherine M. Clark, Massachusetts
Michael D. Bishop, Michigan          Alma S. Adams, North Carolina
Steve Russell, Oklahoma              Mark DeSaulnier, California
Elise Stefanik, New York             Marcia L. Fudge, Ohio

                            C O N T E N T S

Hearing held on October 7, 2015..................................     1
Statement of Members:
    Walberg, Hon. Tim, Chairman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     4
    Wilson, Hon. Frederica S., Ranking Member, Subcommittee on 
      Workforce Protections......................................    36
        Prepared statement of....................................    38
Statement of Witnesses:
    Michaels, Hon. David, PhD, MPH, Assistant Secretary, 
      Occupational Safety and Health Administration, U.S. 
      Department of Labor........................................     6
        Prepared statement of....................................     9
Additional Submissions:
    Assistant Secretary Michael:.................................
        Response to questions submitted for the record...........    97
    Chairman Walberg:............................................
        Prepared statement of the American Petroleum Institute...    42
        Questions submitted for the record.......................    94
        Letter dated October 8, 2015, from State of Michigan, 
          Department of Agriculture and Rural Development........    51
        Letter dated October 7, 2014, from the National Roofing 
          Contractors Association................................    53
        Letter dated October 7, 2015, from the Fertilizer 
          Institute..............................................    56
        Report ``Workplace Injuries and Illnesses Safety (WIIS) 
          Report'' American Petroleum Institute..................    59
    Ms. Wilson:..................................................
        Letter dated October 7, 2015, from Canada, Michelle, 
          United Support Memorial for Workplace Fatalities 
          (USMWF)--Family Members................................    90
        Letter dated October 5, 2015, from Fergen, Debi, Outreach 
          Director USMWF--United Support Memorial for Workplace 
          Fatalities.............................................    83
        Letter dated October 7, 2015, from Mattern, Amy, United 
          Support Memorial for Workplace Fatalities (USMWF)--
          Family Members and Daughter of Deceased Worker.........    81
        Letter dated October 7, 2015, from McCardle, Linda, 
          United Support Memorial for Workplace Fatalities 
          (USMWF)--Family Members................................    88
        Letter dated October 7, 2015, from Rodriguez, Katherine, 
          CPA, United Support Memorial for Workplace Fatalities 
          (USMWF)--Board Members.................................    85
        Letter dated October 7, 2015, from Honomichi, Trina, 
          United Support Memorial for Workplace Fatalities 
          (USMWF)--Family Members................................    91


                       Wednesday, October 7, 2015

                     U.S. House of Representatives

                Committee on Education and the Workforce

                 Subcommittee on Workforce Protections

                            Washington, D.C.

                              ----------                              --

    The subcommittee met, pursuant to call, at 1:00 p.m., in 
Room 2261, Rayburn House Office Building. Hon. Tim Walberg 
(Chairman of the subcommittee) presiding.
    Present: Representatives Walberg, Stefanik, Wilson, and 
    Also Present: Representatives Kline, Hartzler, and Rogers 
of Alabama.
    Staff Present: Janelle Belland, Coalitions and Members 
Services Coordinator; Ed Gilroy, Director of Workforce Policy; 
Jessica Goodman, Legislative Assistant; Callie Harman, 
Legislative Assistant; Tyler Hernandez, Press Secretary; Nancy 
Locke, Chief Clerk; John Martin, Professional Staff Member; 
Geoffrey MacLeay, Professional Staff Member; Brian Newell, 
Communications Director; Krisann Pearce, General Counsel; 
Lauren Reddington, Deputy Press Secretary; Molly McLaughlin 
Salmi, Deputy Director of Workforce Policy; Alissa Strawcutter, 
Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Olivia 
Voslow, Staff Assistant; Joseph Wheeler, Professional Staff 
Member; Tylease Alli, Minority Clerk/Intern and Fellow 
Coordinator; Christine Godinez, Minority Staff Assistant; Brian 
Kennedy, Minority General Counsel; John Mantz, Minority Labor 
Detailee; and Richard Miller, Minority Senior Labor Policy 
    Chairman Walberg. How is that for a gavel? I was mentioning 
to Loren that from my old Taekwondo days I did not want to bust 
the table in half here, but fortunately, I was not very good.
    A quorum being present, the subcommittee will come to 
    Good afternoon, everyone. I would like to extend a special 
welcome to you, Dr. Michaels. We were just trying to decide how 
long it has been since we were in the same room together. It is 
right about four years, or a little less than four years, so it 
is good to have you back in front of us. We thank you for being 
with us to discuss an issue that is incredibly important to 
every one of us, ensuring the health and safety of American 
workers. And also, the security of their jobs.
    We all agree that men and women working hard to make a 
living deserve workplaces that are safe and working conditions 
that protect their health and well-being. In the twenty-first 
century workplace, employees should be able to put in a day's 
work without having to fear being injured on the job or having 
to worry whether they will be able to return home to their 
families at the end of the shift. That is why we continue to 
demand every American have strong and effective health and 
safety protections.
    We are here today to take a closer look at these rules and 
the enforcement process to make sure they are working well for 
both employees and employers. Providing for the health and 
safety of American workers is an important responsibility, but 
it is important to be responsible in carrying it out. 
Otherwise, we will end up with inadequate protections and 
unnecessary regulatory burdens that stifle productivity and job 
creation, while doing little to keep workers safe.
    That is why this Committee has long urged Dr. Michaels, his 
colleagues at the Occupational Safety and Health 
Administration, and others to engage in responsible safety 
enforcement. By identifying gaps in safety and working with 
employers and other key stakeholders to develop positive 
solutions, we can ensure that federal policies are effective 
and workers are safe, and these are both goals that I believe 
stretch across party lines.
    President Obama promised, and I quote, ``an unprecedented 
level of openness in government,'' and vowed to establish a 
system of transparency, public participation, and 
collaboration. That has not always been the case, and changing 
enforcement policies in one area in which we have seen a lack 
of transparency, public participation, and collaboration. In 
fact, on several occasions, the administration has used what it 
calls ``enforcement guidance'' to alter significant rules 
without public input. This one-sided approach is not the kind 
of responsible rulemaking and enforcement American workers 
    When actions of the administration or other policymakers 
are in conflict with the best interest of the American people, 
it is our responsibility to speak out. So that is what we did 
with OSHA. We spoke out when they altered longstanding policies 
outside the public rulemaking process. We spoke out when they 
failed to conduct proper oversight of their own enforcement 
activities. We spoke out when they spent significant time and 
responses pursuing unsound and unnecessary regulatory schemes. 
OSHA, on several occasions, has listened to some of our 
concerns and we appreciate that. Not all of our concerns, but 
enough to say that we have made progress in a number of areas.
    As a result of our oversight, OSHA is pursuing a 
responsible approach to protecting the men and women employed 
on family farms. More small businesses are able to participate 
in an important safety and health program, and employees in the 
telecommunications industry have more clarity and certainty. 
Workers are safer because we spoke up, the agency listened, and 
steps were taken to promote smart, responsible, regulatory 
    However, while we have made gains, there is still work to 
be done. This brings us back to the reason we are here today. 
Standing up for workers and ensuring safe workplaces remain 
leading priorities for this Committee. We have seen what we can 
accomplish when we work together to improve the health and 
safety of American workers, and this hearing is an important 
part of these efforts.
    I look forward to hearing from Dr. Michaels on his agency's 
regulatory enforcement actions, and I welcome the opportunity 
to discuss ways in which we can better protect hardworking men 
and women and provide greater clarity to job creators.
    [The statement of Chairman Walberg follows:]
    Chairman Walberg. With that, I will now--I would recognize 
the Ranking Member Wilson for opening remarks but I believe we 
have altered that. When she arrives, we will have the 
opportunity for her to make those then. But we appreciate you 
sitting in for the seat here.
    Pursuant to Committee Rule 7, all subcommittee 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 the statements, 
questions for the record, and other extraneous material 
referenced during the hearing to be submitted in the official 
hearing record.
    At this point, let me also recognize our colleague, 
Representative Hartzler, who does not sit on this subcommittee. 
She wishes she did, but has a great interest in this issue 
relative to OSHA and the regulatory standards. And so without 
objection, I would ask my colleagues to allow her to be seated 
and participate with the members of the Committee.
    Hearing none, welcome.
    It is now my pleasure to introduce today's witness. Dr. 
David Michaels is the assistant secretary of the Occupational 
Safety and Health Administration at the U.S. Department of 
Labor here in Washington, D.C. Before coming to OSHA in 
December 2009--that is an extensive record as we talked about, 
of still being here for this long. That is impressive. Dr. 
Michaels was professor of Environmental and Occupational Health 
at the George Washington University, School of Public Health 
and Health Services, directing the department's project on 
Scientific Knowledge and Public Policy.
    Dr. Michaels, since you last appeared before us, we have 
now a policy where we swear in our witnesses, so I will ask you 
at this time to stand and raise your right hand.
    [Witness sworn.]
    Chairman Walberg. Let the record reflect Dr. Michaels 
answered in the affirmative as we expected. We thank you for 
that. You may take your seat.
    Before I recognize you to provide your testimony, let me 
briefly remind you of our lighting system. You know, the 
lighting system. And while we have five minutes allotted as my 
Chairman of the full Committee says so often, I am averse to 
holding you to that. We are glad to have you here. Now, if you 
start to get to 15 minutes or so then we might gavel you down 
then, but we want to hear what you have to say and appreciate 
you being here. I recognize you for your testimony.


    Dr. Michaels. Thank you so much. Good afternoon. Chairman 
Walberg, Representative Pocan, Representative Hartzler. Thank 
you for inviting me here today. I am honored to testify about 
the work we at OSHA are doing to improve the safety and health 
of American workers.
    Over the past 44 years since OSHA was created, we have made 
dramatic strides in reducing work-related injuries, illnesses, 
and deaths, but there is still much work to be done. In the 
almost four years since I last appeared before this 
subcommittee, we have accomplished a great deal. Today, I would 
like to highlight some of the progress we have made and the 
challenges that still remain.
    First, after extensive outreach, public comment, and 
review, OSHA has finalized important and lifesaving standards. 
These include measures to protect those working in shipyards, 
construction, and around electrical hazards. We also finalized 
a rule expanding injury and illness reporting requirements, and 
we have made significant progress towards updating our decades-
old silica standard.
    Last year, at a DuPont Chemical plant in Texas, four 
workers were killed by a highly toxic chemical release. This 
came in the wake of the tragic explosion at the West Fertilizer 
Company that killed 15 people. Unfortunately, disasters like 
this are far too common. Since 2009, at least 28 significant 
chemical plant incidents have occurred resulting in over 79 
worker deaths.
    To help prevent more tragedies, President Obama issued 
Executive Order 13650, instructing OSHA, the Environmental 
Protection Agency, the Department of Homeland Security, and 
other agencies to work together closely to improve chemical 
facility safety and security. Together, we undertook a 
comprehensive review of these programs, engaging in extensive 
stakeholder outreach to solicit feedback and identify best 
    As a result of these and other efforts, OSHA has taken 
steps to better protect workers at these facilities. First and 
foremost, we are working to modernize our process safety 
management standard that sets requirements for the management 
of highly hazardous substances. Towards this, OSHA issued a 
request for information on possible improvements. In addition, 
we issued memoranda explaining how we will apply the standard 
to certain chemicals, and clarifying the definition of retail 
facilities. We also memorialized our interpretation of the 
term, ``Recognized and Generally Accepted Good Engineering 
Practices,'' or RAGAGEP.
    At OSHA, we recognize that most employers want to do the 
right thing, and we are committed to ensuring they have the 
tools and the information they need. This is why we have made 
compliance assistance a priority, and we work diligently to 
provide training, educational materials, and consultation 
services to employers and workers.
    The cornerstone of this effort is our onsite consultation 
program for small and medium-sized businesses. Last year, over 
26,000 employers took advantage of this free service, and 
through our VPP and SHARP programs, we recognize employers who 
have developed outstanding injury and illness prevention 
    Our enforcement programs specifically target the most 
dangerous workplaces and the most recalcitrant employers. Last 
year, Sarah Jones, a 27-year-old camera assistant was killed by 
an oncoming train during the filming of the movie, Midnight 
Rider. The filmmakers had been denied authorization to film on 
live railroad tracks but decided to do so anyway. Sarah Jones 
paid the ultimate price for that decision. We issued a fine of 
almost $75,000, sending a message to all employers that willful 
disregard for workers' safety is unacceptable.
    OSHA is also charged with enforcing the whistleblower 
provisions in 22 statutes that protect the safety, health, and 
well-being of the American public. If a worker who is covered 
by these laws is punished for raising a concern about toxic 
chemicals fouling our drinking water, the safety of passengers 
on railroads, accounting fraud, or a food manufacturer's 
contaminated products, OSHA is charged with protecting that 
    Over the last few years, OSHA has significantly 
strengthened this program. To begin with, we established the 
whistleblower protection program as a separate directorate and 
increased staffing. We developed an online complaint form, 
enhanced training, and streamlined procedures. We have reduced 
our backlog, improved enforcement, and enhanced the consistency 
of our investigations.
    As the structure of employment relationships in this 
country undergoes dramatic change, workers are put at increased 
risk. OSHA has long addressed situations where more than one 
employer has a role in preventing injury and illness. When 
these employers fail to fulfill their responsibilities, the 
results can be tragic.
    Take the case of Day Davis, a 21-year-old recent Job Corps 
graduate. He was hired by a staffing agency and sent to work at 
a Bacardi Bottling plant in Jacksonville, Florida. It was his 
first day at a paid job ever. And Day Davis's first day at work 
was his last day on earth. He was crushed to death just hours 
after he arrived because neither the temp agency nor the host 
employer provided him adequate training. Day Davis's death and 
the shared responsibility of host and temporary employer for 
workers' safety demonstrates why we must continue working to 
address the realities of the twenty-first century workplace.
    But we cannot fully address these challenges alone; we need 
your help. The OSH Act has not been updated in more than 44 
years. There are areas where legislative improvements could 
help prevent needless injuries and deaths. These include 
increasing civil and criminal penalties to provide a real 
disincentive for employers, protecting the 10 million public 
sector employees who currently do not have the right to a safe 
workplace, and updating the whistleblower provisions of the OSH 
Act to more closely align with modern statutes that protect 
    So thank you again for the opportunity to testify today. I 
would be very pleased to answer any questions you may have.
    [The statement of Dr. Michaels follows:]
    Chairman Walberg. Thank you, Dr. Michaels, for your 
testimony, and I think as I listened, and I am sure my 
colleagues as well, we appreciate the fact of the task that you 
have. And when we hear the illustrations as well, that is where 
I think we link arms, join hands together in saying let us 
enforce, let us make sure we enforce and come alongside and 
make sure that our employers are following the regulations and 
the laws that are in place. I guess it is a question today in a 
big way is what we have relative to the plans moving forward. 
So I recognize myself for five minutes of questioning.
    In a recent Senate hearing, a Department of Labor official 
suggested the guidance documents did not change the underlying 
PSM standard, insisting these are simply clarifications. 
Fundamentally, these documents had changed the type of entities 
and drastically expanded, at least as I read them, the number 
of entities that are covered by the regulation. Let me ask you 
how OSHA can justify this as just simply a clarification?
    Dr. Michaels. Thank you for that question, Chairman 
Walberg. We are actually talking about I suspect three 
documents, and they are all quite different, so it is a little 
complex to answer that question about all three. But the basis 
of this is understanding that after the explosion at the West 
Fertilizer Plant, President Obama issued a directive, the 
executive order, telling us to look at these issues and make 
sure workers are protected. And we have done a number of 
things, and part of that are three memoranda that all follow 
the law very carefully but essentially tell either OSHA or tell 
employers how they should make sure workers are protected.
    The first of these, and probably the one that there is the 
most discussion about is around the retail exemption.
    Chairman Walberg. Correct.
    Dr. Michaels. And that is probably the one that is most----
    Chairman Walberg. That was the largest. That was a drastic 
    Dr. Michaels. Well, when you go back and look at the 
process safety measurement standard, it is clear to us the 
standard was being misinterpreted. Essentially, what the 
standard said was that retailers who are really identified as, 
for example, gas stations, entities that sell small amounts and 
keep small amounts of a material onsite should be exempt, but 
when we went back and looked at how that was being interpreted 
in one of our policies, we thought the way we were doing this 
was clearly wrong. West, for example, had 50,000 pounds of 
anhydrous ammonia onsite and they sold large quantities of it. 
Other facilities with 10,000 pounds onsite are not exempted 
from process safety management. In fact, there have been 
terrible events that have occurred at far lower quantities than 
those onsite at West.
    So we went back following the law very carefully and 
getting tremendous public input. You know, President Obama 
talked about this two years ago. We have held countless public 
meetings and meetings with stakeholders talking about what the 
meaning of that ``retail'' exemption is and how to fix it. And 
so it was no surprise when we put out this memorandum changing 
this interpretation.
    Chairman Walberg. To 3,800 businesses that were exempt 
beforehand, it was no small change for them. So I would suggest 
that that is the challenge that I see, that that small change 
in how we defined retail and the exemption that came with that 
had a fairly significant impact. Financially, it can have a 
tremendously negative impact up to costing the business the 
opportunity to move and grow. I think that is the concern about 
the clarification process that goes on. And I think that is 
where best practices, bringing the stakeholders in for an 
extended period of time to look at this if this is going to be 
treated basically as a rule is important.
    How many lawsuits are pending related to the PSM guidance 
    Dr. Michaels. I cannot tell you how many lawsuits. I know 
there are several lawsuits. I do not know the number. But I 
believe that there are three documents, and there have been 
lawsuits associated with each one. I do not know if they are 
separate lawsuits or the same lawsuits, but there are several 
    Chairman Walberg. How many comments did you receive 
regarding December 2013 request for information regarding the 
retail exemption?
    Dr. Michaels. Well, you know, we raised the issues of the 
retail exemption in numerous public meetings. We held a dozen 
public meetings around the country and then two more, and so we 
had a huge number of meetings. I cannot tell you though. I 
would be happy to get back to you with how many written 
comments we got from the request for information, but we had 
countless meetings with our stakeholders. We formed a new 
alliance with the Fertilizer Institute, the Agricultural Retail 
Association, the firefighters, to discuss these issues, so we 
have had a huge amount of input. And I can give you more detail 
later on.
    Chairman Walberg. I would be interested to know how many 
were in favor of these changes, especially looking at the 
example of West and the destruction that went on outside of the 
loss of life that was tremendous. Still with that, I would be 
interested to know the numbers that were in favor of any 
changes that went on as well.
    Yesterday, OSHA released an update of the Field Operations 
Manual. Does it contain any new multi-employer citation policy?
    Dr. Michaels. What are you referring to?
    Chairman Walberg. Field Operations Manual.
    Dr. Michaels. That update simply memorializes many of the 
directives that we put out. There was nothing new in that. What 
that does is that puts in one place lots of documents and memos 
we had sent out to the field that we put on the web.
    Chairman Walberg. But you are going to issue a new 
instruction manual then subsequent to this?
    Dr. Michaels. Well, the Field Operations Manual is actually 
a guide for our staff on what to do. You know, how do they 
operate in the field? And so there is nothing new in there. It 
is their instruction manual.
    Chairman Walberg. My time is expired, and so now I 
recognize Mr. Pocan for your five minutes.
    Mr. Pocan. Sure. Thank you, Mr. Chairman. And thank you, 
Mr. Michaels, for being here.
    Let me ask you a general question about budget and then let 
us come back to the OSH Act updates, a couple of them that you 
mentioned. If I understand it, you have sufficient resources 
right now to inspect each jobsite once every 140 years on 
    Dr. Michaels. That is about right.
    Mr. Pocan. And I believe the appropriations bill that was 
passed this year by the House cut that by about 15 percent, 32 
million, and it is about 7 percent less than last year's 
budget's--last year's levels. How is this going to impact you? 
Briefly, what is the impact?
    Dr. Michaels. Well, the concern I have, of course, is how 
that impacts the safety and health of workers across the United 
States. We would certainly do significantly less enforcement, 
and we know that enforcement has an impact. You know, there is 
a study done by business school professors from Harvard and 
Berkeley that was published in Science Magazine a couple years 
ago that showed that our random inspections, every single one 
of them, reduces injuries at the workplace we visit by 24 
percent and saves the employer money. And so the fewer 
inspections we do, the more injuries are going to occur and the 
more costs are going to go up. And so we know that this is 
going to have a bad impact on workers.
    Mr. Pocan. Thank you.
    On the OSH Act updates, one of the things you mentioned 
were the civil and criminal penalties. And again, painfully 
low. If I understand it right, you are the only agency in the 
Department of Labor who is prevented from automatically 
adjusting the maximum penalties for inflation. If I remember 
right, according to the ``Death on the Job'' report, in 2014, 
there was a penalty for a fatality case that was $5,050. Could 
you just talk a little bit about the needs to adjust those?
    Dr. Michaels. No, that is sadly not uncommon. We do not 
issue penalties because there is a fatality, but because we see 
a violation. And the maximum penalty for a serious violation is 
$7,000, and we always discount it for small employers and for 
history and good faith. And so even when there are significant 
events where workers are killed and we have multiple 
violations, the fine is very low. I mean, an example, a few 
years ago we had a terrible incident at an oil refinery half 
owned by Shell and half owned by Saudi Aramco. You know, these 
are big companies. A worker named Jeff Davis was essentially 
virtually dissolved in an acid spill. His body, you could 
barely find it, and eight other workers were hurt. The total 
penalty against this multinational company was $175,000, which 
is pretty low. In comparison, EPA followed us in because crab 
and fish were killed by this acid spill. Their penalty was $10 
million. The value of human life seemed so low in that case.
    Mr. Pocan. Sure. Thank you.
    Also, you mentioned public sector employees. Eight to 10 
million public sector employees not protected. Can you talk a 
little bit about that?
    Dr. Michaels. Yes. The way the OSHA law is written is if a 
state has federal jurisdiction as Wisconsin has or Missouri has 
or Florida has, the state and local workers have no coverage. 
Fortunately, public sector workers in Michigan do have coverage 
because there is a state OSHA plan, but in the other states, 
unless the state decides to have an OSHA plan themselves, those 
workers have no coverage. So we are pleased that Maine, for 
example, just signed on, and Illinois and New York and New 
Jersey and Connecticut have them, but most of the states where 
we have jurisdiction, those public sector workers do not have 
the right to a safe workplace. When one of them is killed, 
there is no investigation. Nothing happens.
    Mr. Pocan. And some large employers, if they have 
operations in multiple states at some of the facilities in one 
of those 29 federal OSHA states and at some of the 21 state 
OSHA state plans, when considering whether a violation is 
repeated, does OSHA have the authority to consider the history 
of an employer's violations from a state plan?
    Dr. Michaels. We cannot. And that is a big issue for 
companies which are in multiple places. We think it is very 
important to look at the history, and if an employer violates 
the law in one part of the country, they should not be allowed 
to violate without major penalty somewhere else, but that is 
unfortunately the way the law is written.
    Mr. Pocan. I see the yellow light but the time is--oh, I 
see I have a minute left. Okay. So let me go to really quickly 
on OSHA updating new safety and health standards. I know this 
says 10 to 20 years in order to do that. Can you just address 
that issue?
    Dr. Michaels. The requirements for OSHA to issue a new 
standard are very complicated. We put a tremendous amount of 
work into our standards. We have extensive public input. In 
fact, for our silica standard, we took public input for a year. 
But because of the requirements for a complicated standard, it 
easily could take 10 years. The GAO estimated eight years and 
that is an underestimate. So it takes us a long time to make 
those changes. So most of our standards are really dramatically 
out of date and workers are paying the price.
    Mr. Pocan. Thank you. And I yield back because I have 10 
    Chairman Walberg. I thank the gentleman. And now I 
recognize the Chairman of the Full Education and the Workforce 
Committee, Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman. Thank you, Dr. 
Michaels, for being here and for your testimony. I know that 
Chairman Walberg has a working list of issues he would like to 
address, so I yield my time to him.
    Chairman Walberg. Thank you, Mr. Chairman. I accept that 
yield. I do have a number of questions, and I know right now we 
are on borrowed time, and I appreciate the borrowed time we are 
    Dr. Michaels. I will speak quickly.
    Chairman Walberg. Representative Pocan, in your response to 
his question, brought up a question that I would like to 
address with you. OSHA is looking at the California, Oregon, 
and Washington State plans with respect to roofing and 
residential construction projects. BLS data suggests states 
governed by the federal OSHA plan with similar sizes have a 
higher incident rate than these three states--California, 
Oregon, and Washington. Why does OSHA think the federal 
standard requirement is more protective than these three 
    Dr. Michaels. That is a great question. There are lots of 
reasons for a fatality rate or even a fall rate. Compliance 
with a standard is really in some ways the key thing, and there 
are lots of areas where California, Washington, and Oregon have 
lower injury rates and lower fatality rates than the rest of 
the country. The standard is just a piece of that. When we look 
though at fatalities that have occurred that have been in 
violation of a standard, we see lots of them and we know they 
could have been prevented if our standard had been stronger. 
And that is why we actually changed the enforcement policy for 
residential construction a few years ago because people were 
dying because they were not following the new standard because 
we were not enforcing it. So we can see that our standard will 
have an effect in those places where it is applied. And I have 
no doubt that any state that strengthens their standard, they 
will actually reduce fatalities and falls as well.
    Chairman Walberg. What criteria are you using to determine 
if the state plans are at least as effective as the federal 
    Dr. Michaels. That is certainly something that we have been 
working on. In fact, we are probably the first administration 
ever to develop metrics to say this is how to measure a state 
plan in comparison with the federal government. The law has 
been around for 44 years, but for the first 40, OSHA never 
said, ``Do we have a rigorous way to actually measure the 
concept at least as effective?'' So we have implemented that a 
year ago. We now are collecting data from the state plans, and 
I think we are doing very well.
    Chairman Walberg. So it is still in progress?
    Dr. Michaels. Yes.
    Chairman Walberg. Blacklisting. Last year the 
administration issued the Fair Pay and Safe Workplaces 
Executive Order, otherwise known as the Blacklisting Executive 
Order--I think that is an industry term--in an attempt to 
ensure labor law compliance by federal contractors. Earlier 
this year, OSHA issued a memorandum directing compliance safety 
and health officers to collect additional data during 
inspections regarding employers' federal contractor status. The 
question I would like to ask you, do you think knowledge of an 
employer's contract work is relevant to an OSHA inspection?
    Dr. Michaels. Well, you know, we have learned a lot in the 
last year since that has come out and I think we have had a 
very successful experience. Our interest is not 
``blacklisting'' or barring an employer from federal contracts; 
we want to use any leverage we can to make sure workers are 
protected. And I have heard from some of our area offices in 
states where they do a lot of defense contracting, defense 
contractors have said, ``Well, you know, we are a little 
concerned about this. Tell us what we need to do to make sure 
we do not get on this list.'' And we are happy to work with 
them. Our aim is not to bar any employer from being a federal 
contractor but to work with them saying, ``Look, we would like 
you to continue to be a federal contractor. Let us make sure 
you are in compliance with our law.''
    Chairman Walberg. Well, it is one thing for the contractor 
or the contractor wanna-be but I think the concern is it is so 
easy for them to get caught up without even knowing the 
question to ask and all of a sudden being on a list that could 
impact contract negotiations or even getting the contract.
    Dr. Michaels. My understanding is that comments have been 
received and they are still working out what the procedures 
are, but we are very much committed to setting up a system 
where we can work with employers to make sure that they are in 
compliance rather than being debarred. And that is our 
commitment. That is what we want to do.
    Chairman Walberg. Let me ask you. Do the three guidance 
documents carry the force of law? This probably gets to the nub 
of our concern.
    Dr. Michaels. Yeah. Standards carry the force of law, but 
the way we interpret them and enforce them comes from those 
documents and other sorts of documents. So we will use those 
documents in issuing citations, for example, because it tells 
our inspectors what to do.
    Chairman Walberg. But does it tell our employers fully what 
to do and what is expected, especially since they are guidance 
documents as opposed to rules or laws themselves?
    Dr. Michaels. Rules always need interpretation. We issue, 
we get requests from employers on a weekly basis to interpret 
our rules. In fact, we issue probably 100 letters of 
interpretation a year when an employer says, ``Well, what does 
this really mean? Or what is the definition of this?'' 
Essentially, this tells employers, ``Yes, this is the 
definition.'' So it tells, for example, that employers who 
thought that they were exempt under the retail exemption now 
are not exempt and therefore, you know, they always should have 
been following the law; we just would not enforce it. Now, 
actually, they know we could make an inspection.
    Chairman Walberg. Okay. Well, my time is expired for the 
second time. And now I recognize the new member of our 
Committee, the gentlelady from Missouri, Mrs. Hartzler.
    Mrs. Hartzler. Thank you, Mr. Chairman. I appreciate you 
letting me sit in here today and participate in this very 
important hearing. And I certainly appreciate Dr. Michaels' 
leadership you provide to keeping our workers safe across the 
    But as you do the enforcement, I think it needs to be 
coupled with common sense. And I was just wondering your 
opinion about some citations that I have heard about. So do you 
think that a company should be fined thousands of dollars 
because the emergency eyewash station, the water was too cold?
    Dr. Michaels. You know, I would have to look at the 
specifics. Obviously, that does seem questionable, but there 
are lots of issues in any one inspection, and the facts drive 
that decision. And so we would have to--I would be happy to 
look at that.
    Mrs. Hartzler. How about being fined thousands of dollars 
because you did not have a yellow line painted 10 feet from the 
edge of a flat roof?
    Dr. Michaels. Again, the same thing. But, you know, we have 
rules about protecting workers up on roofs, and we have too 
many fatalities, so we expect employers to follow that. If that 
were the only reason they got fined, we would have to look at 
it very carefully.
    Mrs. Hartzler. Or how about an extension cord that is in 
the wrong place?
    Dr. Michaels. Well, if the extension cord is frayed and 
someone could be tripping over it, we would have to--again, it 
is fact specific but I understand your concerns.
    Mrs. Hartzler. Yeah, my concerns are, I was wondering, you 
said you had a field manual. So how much discretion is given to 
OSHA employees when enforcing the regulations. If they find 
something are they able to say, ``Hey, why do you not unplug it 
and move it?'' Do they have that authority? Are they supposed 
to just slap them with a fine of 6,000 bucks right there?
    Dr. Michaels. No. The discretion actually is with the area 
director. The inspector is supposed to report what they see, 
and then the employer is supposed to meet with the area 
director and talk about what are the implications of this? Have 
they in good faith tried to eliminate the problems? Things like 
that. And the area director has a great deal of discretion 
around the fines.
    Mrs. Hartzler. So they have the discretion to totally 
eliminate it?
    Dr. Michaels. No. Here is the reason. If we had a policy 
where we said the first time we see a problem there is no fine, 
then everybody would say, ``Okay, we will not do anything until 
after we are caught once.'' We cannot allow that. But we think 
we have a tremendous amount of discretion.
    The other thing we tell small employers is, ``Look, we have 
a free consultation service. Once you get into that service, 
you are exempt from inspections while you are using that 
service,'' and that is what we want employers to do.
    Mrs. Hartzler. And I do commend you for that service, but I 
think it does not make sense to go ahead and fine--in my case, 
I mean, the stories that I have heard, it is almost like 
extortion. Small businesses are told, ``Okay, you are going to 
be fined for a nonserious violation.'' That is what we are 
talking about, $6,000. ``But if you agree not to appeal it, if 
you pay today, it is only $2,000.'' How is that different from 
    Dr. Michaels. Well, you cannot be fined $6,000 for a 
nonserious violation. We have a very clear step system of 
penalties and the maximum penalty for a nonserious violation 
for the first time is quite a bit lower than that.
    Mrs. Hartzler. Well, still, thousands of dollars. If you 
are a family-owned business, that can have huge implications.
    I guess another question, you talked about your 
whistleblowers. How many inspections are a result of the 
employee who has been fired? Do you keep track of that?
    Dr. Michaels. I do not think we do. We keep track of health 
and safety inspections that come from complaints, and then we 
have a separate database when a worker has alleged that they 
have been retaliated against. And we have to match the two, you 
know, if we get both sets of complaints. But I do not know the 
answer to that.
    Mrs. Hartzler. I would encourage you to keep track of that 
because while there may be certainly legitimate cases, and we 
want to protect the worker in those cases, but then other 
times, would you concede that sometimes maybe retaliation does 
occur? Somebody got fired because of incompetence and something 
else and then they are going to get back at them. We will call 
OSHA and boy, they will come in and get them.
    Dr. Michaels. When we investigate allegations of 
retaliation, we often find that the retaliation that is being 
alleged did not occur and the retaliation or the firing 
occurred for other reasons. We do an independent investigation 
of those, and that is a common finding. On the other hand, we 
also find that workers have complained about safety and health 
reasons and then they are fired. And so we have to take the 
allegation very seriously, but I think we do a good job parsing 
that out.
    Mrs. Hartzler. Sure. Well, I just disagree with you, I 
guess, saying that you think that just doing away with a fine 
for something that is nonserious, that the company would not, 
you know, respond. I think you would have served your purpose 
in raising an awareness of a danger, but if it is something 
that could be fixed easily, the government should work with 
businesses, especially family-owned businesses instead of 
treating them like criminals and coming in with a clipboard and 
``we gotcha'' type mentality. So I think OSHA and all 
government, we work for the people, and OSHA should have that 
attitude when they confront the businesses.
    Dr. Michaels. And we do. You know, we have a category of de 
minimis violations, ones where we issue no fine. But if someone 
could be hurt, we feel that there is some penalty that should 
be associated. It could be less than $100, but there has to be 
something associated with that. But again, we stress for these 
family-owned firms, we can help you for free. Let us do that 
before we send an inspector and before a worker gets hurt.
    Mrs. Hartzler. Sure. Thank you, Mr. Chairman. I yield back.
    Chairman Walberg. I thank the gentlelady.
    I now recognize the gentlelady from New York, Ms. Stefanik.
    Ms. Stefanik. Thank you. And I yield my time to Mr. 
    Chairman Walberg. I love this chairmanship. Great members. 
Thank you.
    The injury and illness hospitalization regulation went into 
effect as I understand it January 1, 2015. When does the agency 
expect the online reporting component of the injury and illness 
regulation to be available to employers?
    Dr. Michaels. I wish I could say. We are having some IT 
issues and it will not be available in the next few weeks I do 
not believe, but we are working hard on getting up there.
    Chairman Walberg. As long as the IT issues are not emails.
    Dr. Michaels. That is correct. They are not.
    Chairman Walberg. Okay. Well, we hope they come out as soon 
as possible. I know industry is waiting.
    Where in the final rule does OSHA explain how the agency 
would respond to the increased reports submitted under the 
injury and illness regulations?
    Dr. Michaels. Well, we do not explain in the final rule but 
I have explained it publicly many times and I would be happy to 
tell you what my approach to this is, which I think is one 
which most employers will welcome. What I tell our staff, our 
inspectors, is that if you get a report of a worker being 
injured, of a hospitalization or an amputation, you do not have 
to inspect. Obviously, fatalities, we absolutely have to 
inspect, and certain really serious injuries we do as well. But 
there is an opportunity cost. If we inspect this one workplace, 
then we cannot inspect the other workplace because we can only 
do the same number of inspections. So what we would like to do 
is use these notifications as teachable moments where if we can 
work with the employer on the telephone and get them into the 
consultation system and get them to respond to us and do an 
incident investigation where they understand the root causes of 
the injury and solve the problem themselves. We do not have to 
go out there, and therefore, there is no inspection and there 
is no fine. Right now, we are inspecting less than 40 percent 
of the reports, and I would like to drive that down even 
further because we think this can have an impact on workplaces 
without us actually ever going out to visit them. And that is 
particularly important in those places where our inspectors 
have to travel great distances to get to the workplaces. So I 
think we are making some progress. We have gotten reports where 
we have not inspected, but employers have reported to us that 
they have set up whole new systems as a result of this and we 
are pleased.
    Chairman Walberg. Did the August 2014 Injury and Illness 
Regulatory Proposal undergo OMB review?
    Dr. Michaels. It will.
    Chairman Walberg. It has not yet?
    Dr. Michaels. Which one is this called?
    Chairman Walberg. This is the Injury and Illness Regulatory 
Proposal, August 2014.
    Dr. Michaels. I think the one you are referring to----
    Chairman Walberg. For under 250 employees.
    Dr. Michaels. Yeah. That one will undergo OMB review.
    Chairman Walberg. But it has not yet?
    Dr. Michaels. It has just been sent to OMB. We expect it 
will undergo it in the near future.
    Chairman Walberg. Okay. Let me move over to online 
training. Coming off of this desire to have workplaces with you 
on that and reduce the need for inspection if they submit to 
doing the right thing. OSHA's online outreach training program 
is the most broadly utilized online workplace safety training 
in the country. Since 2001, these courses have been provided by 
OSHA authorized entities. In 2008, OSHA established rigorous 
guidelines for the ongoing approval and regulation of these 
programs. The question is how is it that continued use of the 
2008 guidelines is not the most practical way forward?
    Dr. Michaels. I think what you are referring to is our move 
towards a new system where we select the providers. The reason 
for that is we had some significant quality issues with some of 
the providers, and under our old system----
    Chairman Walberg. You said quality issues?
    Dr. Michaels. Yes. We would get complaints from people who 
had signed up. The systems were not working. The quality of the 
online teaching really was not very good. And overseeing that 
quality was important because people would get a card that said 
they were an OSHA certified 10-hour or 30-hour participant. And 
so we have moved toward a system where we really can have 
better quality control, and we have gone through some real 
bumps on the road, and so we have to----
    Chairman Walberg. Talk to us a little bit more about that. 
With these failed procurements that you have had--I think we 
would call it that.
    Dr. Michaels. Yes.
    Chairman Walberg. How are you going to address that?
    Dr. Michaels. Well, I believe, and I am not as up on this 
as others in the agency are, you know, essentially, most 
recently there has been a court decision that said that our 
description of what we wanted was fine except we had said that 
we would have access, essentially free access, copyright access 
to the materials developed by these contractors, by the people 
providing this online service. Everything else we asked for was 
fine. That, though, requires us to re-offer, to send out the 
offering again to get bids again. The rest does not have to 
change, but in the next procurement here, because it was a 
failed procurement, the next one has to say that we would not 
have the ability to essentially have free access and use to the 
educational materials developed by the contractor.
    So we will re-offer it, and then we will then go through 
the same process where applicants have to submit applications, 
and we will choose the applicants to fit each category and move 
    Chairman Walberg. Okay. Well, I wish you well on that 
because, again, it is a popular approach when it works.
    My time is expired.
    While we await the Ranking Member--I am glad she has 
arrived and everything is okay. I would like to recognize 
Representative Mike Rogers, who is not a subcommittee member 
but has some great interest in OSHA.
    Mr. Rogers, do you have any questions you would like--or 
comments you would like to make?
    Mr. Rogers. I would be happy to if I got a chance.
    Chairman Walberg. We recognize you.
    Mr. Rogers. Well, thank you.
    One of my concerns has been when OSHA comes in and does a 
plant inspection, just a regular annual or semi-annual plant 
inspection, there have been no accidents or injuries, and 
during an inspection they find that some machine or part of the 
plant is out of compliance with your rules or regulations for 
safety. They are told to bring it back into compliance and you 
will come back in to inspect it and confirm that has happened. 
But then, my experience, the company is not told exactly what 
they have to do to come back into compliance. My plants have 
told me that they are told, ``Get a consultant. That is not my 
job to tell you how to fix it. I can just tell you, you are out 
of compliance.'' They then hire a consultant, bring them in, 
fix the problem, call OSHA to come back in to verify that it 
has been corrected. OSHA says, ``It has been corrected. Here is 
your $50,000 fine.'' Why in the world would you not tell 
somebody what they have to do to come back into compliance? And 
then if nobody has been injured, they fix it within a 
reasonable amount of time, why would you fine them? And that 
has happened in two different companies in my district.
    Dr. Michaels. This in some ways is the same question that 
Representative Hartzler asked. There are a couple different 
issues. First, one thing I discussed earlier, what we really 
would like small employers to do is to bring in a free 
consultant, which we will help them get. We fund the free 
consultants, but they are separate from OSHA and they are 
independent. When an employer asks for a free consultant, we do 
not inspect during that period, and they will make sure that 
they are in compliance. We tend not to tell, or we do not tell 
employers exactly what they must do to fix it because we 
actually hear from employers all the time, ``Just, you know, do 
not be prescriptive. Your standards are there. Let us figure 
out how to get there.'' And, you know, there are some standards 
which are very clear what they have to--if a lockout tag, they 
have to have the lock. It has to be tagged out. It is all 
pretty straightforward. But there are other ones that say you 
have to have a system to address the problem, and they could 
come up with that system in ways that will address the problem. 
We have guidance that will say, ``If you do these things it 
will be effective.'' But we like to give employers a lot of 
    What we do not do though is give them back the money or say 
there is no fine because if we say the first time there is a 
problem and you only fix it after we found it, what is the 
incentive for employers to abate hazards before we get there? 
And that is really the issue. If every employer thought, 
``Well, I am not going to get fined until OSHA gets here the 
second time,'' who is going to fix things?
    Mr. Rogers. How are they going to know they are out of 
compliance? There is one particular plant that just stands out 
as egregious. The machine that OSHA came in and found to be out 
of compliance they had had for 30 years. Nobody had ever been 
injured on it. They did not know it was out of compliance. They 
had to paint a stripe on the floor and that brought them back 
into compliance. A yellow stripe that came out three feet, and 
they got a $50,000 fine. A $50,000 fine is obscene.
    Dr. Michaels. A $50,000 fine for no yellow line?
    Mr. Rogers. Correct.
    Dr. Michaels. Again, I would be surprised. I mean, 
    Mr. Rogers. I was surprised, too. That is why I am here.
    Dr. Michaels. I would love to see--if you do not mind 
sharing that with me, we will take a look at it.
    Mr. Rogers. I would be happy to. I just find that obscene. 
And it is different if somebody had been injured and you would 
be right with that logic, but if somebody is not injured and 
you just find it during an inspection, give them a reasonable 
amount of time to fix it. If they fix it, free pass. I just do 
not understand why you feel like you have got to penalize 
somebody for trying to do right.
    Dr. Michaels. Well, you know, it is interesting. We 
actually do not penalize employers because a worker has been 
hurt or killed or injured. We only penalize them for the 
violation. In fact, we have had fatalities where there is no 
citation issued because no violation occurred. On the other 
hand, if the violation could have led to a worker being 
injured, whether or not they were injured, we feel we should 
issue the citation because it is a warning to that employer and 
to other employers that they cannot let those violations occur 
because maybe a worker has not been hurt by that machine, but 
another machine like it probably has hurt many workers, and we 
know that.
    Mr. Rogers. And if you had any information that the 
employer had knowledge they were out of compliance, you should 
fine them. But if you have no knowledge that they had any 
reason to believe they were out of compliance, you should not 
fine them. And while I am not on this Committee, I intend to do 
everything in my power to fix it that way before I leave 
    Thank you. I yield back.
    Chairman Walberg. I thank the gentleman.
    And now I recognize the Ranking Member, Ms. Wilson, for her 
opening statement and questions. It is your floor.
    Ms. Wilson. One question. I think I will have time.
    Thank you so much, Chairman Walberg, for allowing me to 
make this opening statement, and I would like to welcome Dr. 
Michaels and thank him for testifying this morning. It has been 
four years since you last appeared before this Committee, so I 
thank you for coming back again and giving us the progress at 
the Occupational Safety and Health Administration.
    It is well known that your agency faces several obstacles 
to effectively enforce the rules that protect and promote 
worker safety. One of these major obstacles is budget 
constraints. OSHA only has enough inspectors to inspect each 
workplace in its jurisdiction once every 140 years.
    In my home state of Florida, OSHA has only enough 
inspectors to inspect each jobsite once every 256 years. I find 
it inexcusable that given these current conditions, a House 
budget bill would cut $32 million from OSHA's already sparse 
enforcement budget. This 14 percent cut would leave OSHA even 
less able to enforce standards that keep workers safe. Given 
its limited resources, OSHA must be able to use additional 
methods to monitor the health and safety conditions of our 
    As a member of the Subcommittee on Workforce Protections, 
we are charged with examining the weaknesses in the OSH Act and 
proposing reforms to strengthen OSHA's ability to protect 
American workers. Firstly, we must ensure that the eight 
million state and local government workers in 24 states with no 
OSHA protections gain coverage. These workers, including the 
894,000 workers in Florida, deserve OSHA protections, 
especially where the states are not stepping up to protect 
    The truth is, most employers are deeply committed to worker 
safety, but for those few employers who callously disregard the 
well-being of their workers, we must ensure that OSHA has the 
tools to act. This means raising OSHA's civil monetary policies 
which have not been adjusted for inflation since 1990. 
Penalties must serve as a strong deterrent, sending a clear 
message that if you do not value your workers you will surely 
    In preparing for the hearing, I was deeply saddened to hear 
Carlos Centeno's story. Carlos was a temporary worker at a 
Chicago-area factory. He was asked to clean a 500-gallon 
chemical tank with no safety gear other than latex gloves and 
rubber boots. An open hatch erupted, showering Carlos with a 
185 degree solution of water and citric acid, burning over 80 
percent of his body. Even though Carlos's skin was peeling, his 
employer refused to call 911. It took more than an hour and 40 
minutes for Carlos to arrive at a burn unit. Sadly, he died 
three weeks later. As Carlos's son put it, the employer failed 
to think of him as a human being.
    When we hear egregious stories like this, it is shocking to 
know that for employers who willfully violate a health and 
safety requirement that causes a worker's death or fail to act 
to keep him from dying, the maximum criminal sanction under OSH 
Act is only a misdemeanor. Since 1970, there have been 390,000 
workplace fatalities but only 88 prosecutions under the OSH 
    Mr. Chairman, reforms to address these and other weaknesses 
are included in the Protecting America's Workers Act, H.R. 
2090. I would welcome the opportunity to work with you on a 
bipartisan basis to identify the highest priorities and begin 
work to strengthen and improve the OSH Act.
    I want to thank Dr. Michaels for being here today, and I 
look forward to hearing how we, as the Subcommittee on 
Workforce Protections, can help OSHA in its efforts to promote 
and protect the safe and healthy workplaces all Americans 
    [The statement of Ms. Wilson follows:]
    Ms. Wilson. And I want to ask this one little question. 
What is the impact of this lack of coverage for this group of 
workers? What would you recommend Congress do to address this 
problem of incomplete coverage? I spoke about Carlos Centeno's 
story and how his employer refused to call 911. Does OSHA 
support strengthening criminal sanctions in the OSH Act?
    Dr. Michaels. We do. We know that the threat of criminal 
sanctions changes behavior, and in so many other areas we see 
the effectiveness of this. I mean, right now there is a big 
discussion in the food safety area. The owner of a company that 
sold contaminated peanuts that resulted in dozens of deaths and 
hundreds of people being made sick by the peanuts just has 
gotten I think 28 years in jail. And that sends a message out 
to other food manufacturers that they cannot get away with 
this. But there is no criminal penalty of any importance 
associated with the OSH Act. If a worker is killed and it is 
associated with a willful violation--in other words, the 
employer knew about this hazard and willfully left it there--
the maximum penalty is a misdemeanor, six months, and it is 
aimed at the corporation. People do not go to jail for that. I 
think it would make a big difference if--and we are talking 
about the tiny number of employers who really treat their 
workers this way, but we need to send them a message because 
these workers--that is where workers are being killed.
    Ms. Wilson. Thank you. I yield back. I have to vote.
    Chairman Walberg. I thank the gentlelady. We have votes 
coming, so we cannot belabor this.
    I want to say thank you, Dr. Michaels, for being here. 
Thank you for your work. I think this hearing, the value of 
this as we move forward and considering some of the things that 
are brought up today is to find a mechanism by which there can 
be a true partnership between business and industry and the 
government, specifically the regulator with OSHA. It is an 
important function. We hate hearing stories like that. We also 
hate hearing stories that were brought up by my colleague, Mr. 
Rogers, where maybe six months in jail would have been better 
than the $50,000 fine for painting a yellow strip. It just did 
not make sense. I think if we can promote the idea of that 
partnership that comes together with best practices from the 
industry and a working relationship from OSHA that says we are 
willing to listen to those and learn from those, in turn, that 
partnership might foster greater growth in our safety in the 
workplace. I do not think that any of us here at this dais want 
to stand in the way of the safety of the worker. And we do not 
want to stand in the way of the regulator that is working to 
the best interest, but we also want to be on the team with the 
employer who is not like that particular employer and is caring 
about their employees as well.
    Thanks again, and with no further questions before the 
Committee, it is adjourned.
    [Whereupon, at 1:56 p.m., the subcommittee was adjourned.]
    [Additional submissions by Chairman Walberg follow:]