[Congressional Record Volume 144, Number 151 (Wednesday, October 21, 1998)]
[Extensions of Remarks]
[Pages E2303-E2304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   OSHA REFORM IN THE 105TH CONGRESS

                                 ______
                                 

                          HON. CASS BALLENGER

                           of north carolina

                    in the house of representatives

                      Wednesday, October 21, 1998

  Mr. BALLENGER. Mr. Speaker, over the past three years, Republicans in 
Congress have worked to reform the Occupational Safety and Health 
Administration (OSHA). For too long OSHA has been marked by burdensome 
and over-reaching regulations and unfair enforcement. It has employers 
as foes rather than as partners in improving worker safety and health. 
Not only has OSHA's approach made it one of the most disliked agencies 
in the whole federal government, but also study after study has shown 
that OSHA's approach has been generally ineffective in improving safety 
and health in the workplace.
  I am pleased to report that we have been able to make some progress 
in reforming OSHA, though much more needs to be done. Three bills 
amending the Occupational Safety and Health Act were signed into law 
during the 105th Congress. What makes this more remarkable is that in 
the 28 years since OSHA came into existence, there has been only one 
other change made to the law, and that was the penalty increase enacted 
as part of a tax and revenue increase bill by the Democrat Congress in 
1990.
  The first change we made requires OSHA to provide consultative 
services to small businesses. A small business that requests a 
consultation and then corrects the violations would not receive any 
citations or fines, and would not be inspected for at least one year, 
unless there was a serious accident or a complaint was made to OSHA. 
These consultations would be provided through state agencies, not by 
OSHA directly. My own company has participated in the consultation 
program run by North Carolina OSHA, and I am pleased that we were able 
to authorize consultation services as the first ``program'' amendment 
to OSHA. With increased funding and availability, this consultation 
program--in which the government works with employers and their 
employees to improve safety and health in the workplace--can be an 
excellent model for further changes in OSHA.
  The second change we enacted this year addresses a fundamental 
problem with OSHA enforcement. During most of the years of OSHA, under 
Democrat Congresses, OSHA was measured in terms of enforcement: how 
many citations were issued? How many and how large were the penalties 
against employers? Individual inspectors and their supervisors were 
evaluated by the same criteria; raises and promotions were based on how 
many citations and penalties they issued. So

[[Page E2304]]

it is no surprise that inspectors focused more on finding nitpicky and 
paperwork violations to cite than the overall safety and health 
conditions of the workplace. The change enacted into law this year 
prohibits that practice. OSHA may not use enforcement measures, such as 
penalties and citations, to evaluate the performance of their 
compliance officers or their supervisors. The goal of OSHA should be 
safe and healthy jobs, not achieving a certain level of citations and 
fines.
  The third change enacted this year was a bill sponsored by Senator 
Enzi to apply to OSH Act, including enforcement and penalties, to the 
U.S. Postal Service. The Postal Service has, in terms of the OSH Act, 
been considered a federal agency, even though it is now largely 
independent and directly competes with private companies. Furthermore, 
worker health and safety has been a continuing concern at the Postal 
Service. Putting the Postal Service under OSHA enforcement helps to 
``level the playing field'' as it competes with private companies.

  In addition to these three amendments to the OSH Act, I am pleased 
that the omnibus appropriations bill authorizes and funds a 
comprehensive and independent study of ergonomics, to be conducted by 
the National Academy of Sciences (NAS). In past years, Congress has 
explicitly prohibited OSHA from promulgating an ergonomics standard. 
This year's appropriation bill does not include such a prohibition. 
However, OSHA is required by its statute to base an ergonomics standard 
on ``the best available evidence,'' and the purpose of the NAS study is 
to assess and report on what the best evidence is with regard to the 
nature, causes, and prevention of so-called ergonomics injuries. It 
would therefore, in my view, be inconsistent with the statute for OSHA 
to promulgate an ergonomics standard before the NAS study is completed.
  We also made progress on several other items, but we were unable to 
enact those changes into law this year. I am disappointed that we were 
unable to enact legislation to help small businesses handle the 
paperwork burden imposed by OSHA's Hazard Communication Standard. This 
was bipartisan legislation in both the House and the Senate. It simply 
made clear that employers could comply with the OSHA Hazard 
Communication Standard's requirement for Material Safety Data Sheets on 
hazardous substances through the use of electronic means, rather than 
paper copies. It also provided that certain basic information on the 
substance be attached and written in terms understandable to non-
chemistry majors. The bill passed the House on voice vote, but 
opposition to the bill from the Department of Labor prevented this bill 
from being considered in the Senate in the final days of the session. 
This is most unfortunate, as it would have benefited both small 
business and workers.
  I am also disappointed that we were unable to make more progress in 
reforming OSHA's standards-setting process. Charles Jeffress, the 
current Assistant Secretary for OSHA, has complained that OSHA's 
standards-setting process is broken and needs to be fixed. He is not 
the first Assistant Secretary to acknowledge that, and I agree that 
there are serious problems with the current standards-setting process. 
The Committee on Education and the Workforce attempted to address that 
problem this year with two bills that would have required OSHA to use 
outside, independent experts to ``peer review'' the technical 
scientific and economic data used as the basis for standards, and to 
write standards that are specific to identified industries and 
operations. Together these reforms would make OSHA's standards more 
credible and more efficient in protecting health and safety without 
imposing undue costs. Ironically, Mr. Jeffress' own Department of Labor 
opposed both of these common sense reforms. Rep. Wicker also worked 
very hard to include a provision in the appropriations bill, similar to 
the bill that passed our Committee, that would have required OSHA to 
conduct peer review of the technical scientific and economic data and 
assumptions used as the basis for standards. As my colleagues know, 
credible scientific enterprise includes peer review. Study after study 
and report after report--all have urged federal agencies, including 
OSHA, to use peer review. The blame for the state of OSHA's standards-
setting process falls squarely on the Department of Labor, which has 
consistently opposed even the mildest and most common sense reforms in 
that process.
  There are other issues that still need to be addressed as well. OSHA 
does little to encourage voluntary workplace efforts by employers and 
employees to improve safety and health, and some of OSHA's policies 
actually discourage those efforts. During this Congress, I proposed 
changes that would have limited OSHA's access of an employer's own 
safety and health audits and assessments. OSHA's use of those for 
enforcement discourages companies' voluntary, thorough, and honest 
evaluations. I also proposed that we improve the legal protections for 
employees who raise health and safety concerns, to ensure that they 
have a fair and adequate means of redress if they are discriminated 
against for raising these concerns. Unfortunately the Clinton 
Administration was unwilling to go along with these changes to improve 
the legal protections for employers and employees who make efforts to 
improve safety and health in the workplace. Opposition from the Clinton 
Administration also continues to stalemate efforts to allow greater 
employer-employee cooperation on safety and health and other issues in 
their workplaces. My colleague, and Chairman of the Small Business 
Committee, Representative Jim Talent, together with Senator Mike Enzi, 
have proposed a forward-looking plan to allow companies to self-certify 
OSHA compliance, encouraging the pro-active use of private experts 
instead of waiting for a relatively rare OSHA inspection. All of these 
are issues and proposals which we should continue to work on next 
Congress.
  In response to our efforts, OSHA has also made administrative changes 
which have helped to focus more of its resources on serious health and 
safety concerns. I applaud those changes. Other changes, however, such 
as the misnamed ``cooperative compliance program,'' have shown how 
difficult it is to change OSHA's traditional ``command and control'' 
approach. The slow pace and inconsistent direction of OSHA's own 
``reinvention'' changes points to the needs for continued legislative 
reform as well as continued oversight to ensure that OSHA effectively 
promotes the goal of safe and healthful jobs for our nation's workers.

                          ____________________