Congressional Record, Volume 150 Issue 70 (Tuesday, May 18, 2004)

[Congressional Record Volume 150, Number 70 (Tuesday, May 18, 2004)]
[House]
[Pages H3124-H3130]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

OCCUPATIONAL SAFETY AND HEALTH INDEPENDENT REVIEW OF OSHA CITATIONS ACT
OF 2004

Mr. BOEHNER. Mr. Speaker, pursuant to House Resolution 645, I call up
the bill (H.R. 2730) to amend the Occupational Safety and Health Act of
1970 to provide for an independent review of citations issued by the
Occupational Safety and Health Administration, and ask for its
immediate consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 645, the bill
is considered read for amendment.
The text of H.R. 2730 is as follows:

H.R. 2730

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Occupational Safety and
Health Independent Review of OSHA Citations Act of 2003''.

SEC. 2. INDEPENDENT REVIEW.

Section 11(a) of the Occupational Safety and Health Act of
1970 (29 U.S.C. 660) is amended by adding the following at
the end thereof: ``The conclusions of the Commission with
respect to all questions of law shall be given deference if
reasonable.''.

The SPEAKER pro tempore: Pursuant to House Resolution 645, the
amendment printed in the bill, modified by the amendment printed in
part B of House Report 108-497, is adopted.
The text of H.R. 2730, as amended, as modified, is as follows:

H.R. 2730

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Occupational Safety and
Health Independent Review of OSHA Citations Act of 2004''.

SEC. 2. INDEPENDENT REVIEW.

The SPEAKER pro tempore. The gentleman from Ohio (Mr. Boehner) and
the gentleman from New York (Mr. Owens) each will control 30 minutes.
The Chair recognizes the gentleman from Ohio (Mr. Boehner).

General Leave

Mr. BOEHNER. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous material on H.R. 2730.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Ohio?
There was no objection.
Mr. BOEHNER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the third bill that we will debate today in this series
of four is another narrowly craft bill that addresses a specific
problem that we found in the OSHA law. The Occupational Safety and
Health Independent Review of OSHA Citations Act restores independent
review of OSHA citations by clarifying that the Occupational Safety and
Health Review Commission is an independent judicial entity given
deference by courts that review OSHA issues.
In 1970 when they created OSHA, Congress also created this commission
to independently review all OSHA citations. The commission was intended
to hold OSHA in check and ensure that it did not abuse its authority.
Congress passed the OSHA law only after being assured that judicial
review would be conducted by ``an autonomous independent commission
which, without regard to the Secretary, can find for or against him on
the basis of individual complaint.''
Congress even separated the commission in the Department of Labor. It
was truly meant to be independent. The bill before us restores the
original system of checks and balances intended by Congress when it
enacted the OSHA law and ensures that the commission, in other words,
the court, and not OSHA or, in other words, the prosecutor, would be
the party who interprets the law and provides an independent review of
OSHA citations.
Now, let me put this in simpler terms for everybody. If you are
stopped by a police officer and you are issued a citation for speeding,
would you want the same officer who gave you the ticket to be your
judge and jury and decide whether you are guilty or not? Well, of
course you would not. And, unfortunately, for small businesses today
the law is ambiguous and vague.
Since 1970 the separation of power between OSHA and the review
commission has become increasingly clouded because of legal
interpretations mostly argued by OSHA in an effort to expand its own
authority. Congress intended there to be a truly independent review of
the disputes between OSHA and employers; and when this dispute centers
on OSHA's interpretations of its authority, Congress intended the
independent review commission, not the prosecuting agency, OSHA, to be
the final arbiter.
H.R. 2730 restores this commonsense system of checks and balances.
Employers are facing enough competition in the workplace. They are
facing high taxes, rising health care costs, burdensome government
regulations. All of these bills that we have brought to the floor today
are intended to help small businesses that are the engine of economic
growth in America be all that they can be and to survive in this very
difficult economic climate. I would encourage my colleagues today to
support this measure.
It is another commonsense bill that would help increase the amount of
worker safety and health safety that we see in the workplace each day.
Mr. Speaker, I include the following letters for the Record:

House of Representatives,

Committee on the Judiciary,

Washington, DC, May 17, 2004.
Hon. John Boehner,
Chairman, Committee on Education and the Workforce, House of
Representatives, Washington, DC.
Dear Chairman Boehner: On May 13, 2004, the Committee on
the Judiciary received a sequential referral of H.R. 2730,
the ``Occupational Safety and Health Independent Review of
OSHA Citations Act of 2003'' through May 17, 2004. In
recognition of the desire to expedite floor consideration of
H.R. 2730, the Committee on the Judiciary hereby waives
further consideration of the bill with the following
understanding.
I believe the bill as introduced might have been read to
change the standard of appeals court review of Occupational
Health and Safety Review Commission decisions, a matter that
would fall with the Rule X jurisdiction of the Committee on
the Judiciary. I understand, however, that the intent of the
drafters was simply to make the policy choice that courts
should, in exercising normal agency deference under
established precedent, defer to the Commission rather than
the Occupational Safety and Health Administration itself--not
to change the standard of review. I understand that you are
willing, during floor consideration of H.R. 2730, to add the
following language to the bill: Insert after ``all questions
of law'' the following: ``that are subject to agency
deference under governing court precedent'' and that you will
offer an amendment to do so. With that understanding, I will
not seek to extend the sequential referral of the bill for a
further period of time.
The Committee on the Judiciary takes this action with the
understanding that the Committee's jurisdiction over these
provisions is in no way diminished or altered. I would
appreciate your including this letter and your response in
the Congressional Record during its consideration on the
House floor.
Sincerely,
F. James Sensenbrenner, Jr.,
Chairman.
____

Committee on Education and the Workforce, House of
Representatives,
Washington, DC, May 17, 2004.
Hon. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary, Rayburn HOB,
Washington, DC.
Dear Chairman Sensenbrenner: Thank you for your letter
regarding our mutual understanding of the intent and purpose
of H.R. 2730, the Occupational Safety and Health Independent
Review of OSHA Citations Act of 2004 and process for
considering this bill. I agree that our intent was simply to
make the policy choice that courts should, in exercising
normal agency deference under established precedent, defer to
the Commission rather than the Occupational Safety and Health
Administration itself--not to change the standard of review.
Had the language of the reported bill been clear on this
point, the Committee on the Judiciary would have had no
jurisdictional interest in the bill. I have submitted an
amendment to the Committee on Rules that would make the
change as outlined in your letter to me, which clarifies the
bill and which I have requested be made part of the rule.
With this understanding, I agree that these actions in no
way diminish or alter the jurisdictional interest of the
Committee on the Judiciary. I will include our exchange of
letters in the Congressional Record during the bill's
consideration on the House floor.
Sincerely,
John A. Boehner,
Chairman.

[[Page H3125]]

____
House of Representatives,

Committee on the Judiciary,

Washington, DC, May 13, 2004.
Hon. J. Dennis Hastert,
Speaker, House of Representatives,
Washington, DC.
Dear Mr. Speaker: I am writing to request a sequential
referral of H.R. 2730, the ``Occupational Safety and Health
Independent Review of OSHA Citations Act of 2003.''
H.R. 2730 contains matters that fall within the Committee
on the Judiciary's Rule X jurisdiction. The bill amends the
judicial review provisions of the Occupational Safety and
Health Act. The amendment as currently drafted would require
the federal courts of appeals to defer to the decisions of
the Occupational Safety and Health Review Commission on all
questions of law if those decisions are reasonable. This is
an explicit direction to the courts as to how to review cases
and would change the standard of review for questions of law
that are not subject to normal agency deference under
governing court precedents. In short, these provisions fall
within the judicial and administrative procedure jurisdiction
of the Committee on the Judiciary under rule X(1)(k)(1)&(2)
(``The judiciary and judicial proceedings, civil and
criminal'', ``Administrative practice and procedure'').
Because of this Committee's strong jurisdictional interest
in this legislation, I respectfully request that you
sequentially refer this legislation to the Committee on the
Judiciary. Thank you for your attention to this matter.
Sincerely,
F. James Sensenbrenner, Jr.,
Chairman.

Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
I rise in opposition to H.R. 2730. This bill does no more than any of
the others before us today to address any critical safety and health
needs of American workers.
H.R. 2730 gives the Occupational Safety Review Commission policy-
making authority by permitting courts to give deference to the
commission with respect to interpretations of OSHA standards. In this
way H.R. 2730 weakens the fundamental powers of the Secretary of Labor.
Those of us on this side of the aisle maintain that the Secretary of
Labor is best able to regulate and enforce safety standards.
We asked the question, and never got any answer, as to whether the
current administration supports H.R. 2730 given its stated purpose.
Having stated this clear reason for my opposition to the bill, which I
urge my colleagues to follow, I would like to turn my attention once
more to another urgent safety concern. This pertains to the highly
disproportionate death rate of Latino workers in this country.
As I referenced in my opening statement, a recent series of articles
by the Associated Press documented the toll this rising death rate is
taking in the Latino community. I would like to relate several
egregious cases of Latino worker deaths and put a human face on this
alarming social problem.
Case number one, Miguel Victor Canales. Miguel Canales was killed 4
years ago while securing shingles to the roof of a new luxury home
being built in Arlington, Virginia. Miguel fell off the roof because
another employee had failed to install a safety brace. Miguel's stepson
was a coworker who witnessed the fatal accident. Miguel's death so
traumatized the stepson that he was unable to speak for the following 6
months.
The employer, Octavio Estevez, was an unlicensed subcontractor
without workers compensation insurance. Octavio Estevez had routinely
failed to pay his employees their rightfully earned wages. After his
death, Estevez refused to pay Miguel's prior earned wages to the
surviving family members. The employer relies on day laborers and
refuses to provide them with any safety equipment or training.
The second case is Joel Bajorques. Joel was a 21-year-old from
Guatemala who was killed when he fell off a roofing job in Rockville,
Maryland, into a vat of hot tar.

{time} 1430

This took place on a commercial project undertaken by a roofing
company. Joel died from severe third degree burns over his entire body.
As unbelievable as it may seem, Joel's death was ruled to be the result
of natural causes.
Joel's surviving parents and siblings in Guatemala had depended upon
his wages to help support the entire family. Since Joel's death in
2002, another worker at the same company has been killed in the exact
same way.
Case number three: Juan Vasquez, a Guatemalan worker, was killed
using a jackhammer during his first day on the job. He was working at a
private home in Bethesda, Maryland, when a brick wall collapsed on him.
He had not been given even a hard hat. His employer refused to cover
any of the funeral expenses or to provide any compensation to his
surviving wife and two young sons. As a result, Juan's family had to
borrow more than $6,000 to pay for shipping the body home and burial
expenses.
Case number four: Urbano Ramirez was a Mexican farm worker killed by
heatstroke while harvesting cucumbers in North Carolina. The exact
circumstances of his death are as follows. Urbano felt faint and was
told by a foreman to go sit under a tree. Neither he nor any of the
other workers had been provided with water. When the foreman had the
workers change fields that day, Urbano was left behind and forgotten.
His body was not found until 10 days later. Failure to provide workers
with water violates an OSHA standard. In the end, the grower was only
fined $1,800 for this OSHA violation that caused the death of Urbano
Ramirez.
Let me also review how OSHA is faring in addressing the skyrocketing
rate of Latino worker deaths. To date, OSHA has limited its efforts to
creating a Spanish language Web page and distributing Spanish language
pamphlets to Mexican consulates. Yet very few vulnerable immigrant
workers are likely to be reached in this manner. OSHA's Hispanic Task
Force is mainly comprised of regional administration with no prior
knowledge of issues confronting Latino workers. In fact, for the past 3
years, the Bush administration's budget has zero-funded the only OSHA
program, called Susan Harwood Grants, to provide union and community-
based outreach on safety issues to immigrant workers. Members on this
side of the aisle successfully opposed these cuts.
Clearly, OSHA needs to step up to the plate on this issue and take
serious, concerted steps to address the crisis posed by Latino worker
deaths.
Mr. Speaker, I reserve the balance of my time.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
It is probably appropriate to remind everyone that we are on the
third of four bills, H.R. 2730. It is about the independence review of
OSHA's citations. That really is what we are discussing this hour.
Mr. Speaker, it gives me great pleasure to yield 5 minutes to the
gentleman from Indiana (Mr. Pence), my friend.
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Speaker, I rise today with great enthusiasm for the
work of my friend and colleague, the gentleman from Georgia (Mr.
Norwood), in not only the legislation before us this hour, H.R. 2730,
but also the companion legislation, which I truly believe will develop,
in sum total, better cooperation between OSHA and employers.
I also believe that these reforms and the predictability that they
will encourage will improve workplace safety as they enhance business
competitiveness and, at the end of the day, more jobs.
In east central Indiana, small business America has one thing on
their mind, and that is looking after employees, but doing that in such
a way that we can create jobs and opportunities for Hoosiers. This
legislation authored by the gentleman from Georgia (Mr. Norwood) and
passed by the Committee on Education and the Workforce, companion to
the other three bills, will be about that.
First, a word on the Occupational Safety and Health Independent
Review of OSHA Citations Act; I know it is a long name, but a simple
concept. Mr. Speaker, by simply reasserting the proper role of the
courts and the proper role of the independent review panel, what we
will do today on the floor of the Congress is, we will affirm that the
original intent expressed in the act is renewed and encouraged, and
this, in and of itself, will result in greater predictability for
businesses, small and large.
Beyond that, I come to the floor today with a great passion for this

[[Page H3126]]

issue. During the 107th Congress, Mr. Speaker, I served as the chairman
of the Committee on Small Business Subcommittee on Regulatory Reform
and Oversight; and in hearing after hearing that I chaired I heard of
the extraordinary burden that regulatory red tape places on small
businesses across America.
A couple of statistics that are informative: For every dollar of
direct budget spending devoted to regulatory activity, according to the
Office of Management and Budget, the private sector spends $45 in
compliance, and these regulatory burdens are, of course, most harmful
for small businesses.
According to the Small Business Administration, firms employing fewer
than 20 employees had a regulatory burden in the year 2000 of $6,975
per employee which is nearly 60 percent higher than the $4,400
estimated for firms of more than 500 employees. Considering that the
U.S. Census Bureau says that small businesses have accounted for 60 to
80 percent of net new jobs in the United States economy over the past
decade, this should obviously be a subject of enormous urgency in this
Congress, and I commend my colleague for bringing these measures
forward to address it.
There has been talk today about an erosion of safety in the
workplace. The truth is, though, that under the present administration,
according to the U.S. Bureau of Labor Statistics, there has actually
been a 1 percent reduction in workplace injuries between 1999 and 2002,
and even more happy news, worker fatalities have been reduced by over
500 annually during the present administration.
This administration and this Congress and this majority are committed
to workplace safety, to renewing that pact between American business
and the American worker and common-sense regulation in Washington, DC,
but as H.R. 2730 proposes to do today, along with the companion
legislation, we must do that in a way that is consistent with a free
market economy, that understands the proper role of the courts and the
Congress and of regulatory agencies, as H.R. 2730 confirms.
So this bill is about reaffirming the original intent of Congress,
which well we should do. It is about improving worker safety and
reducing Federal red tape; but at the end of the day, Mr. Speaker, it
is about jobs, and let us make no mistake about that.
As my friend and colleague, the gentleman from Georgia (Mr. Norwood),
has said on several occasions in the last several days in various
venues on Capitol Hill, maybe you are not for this legislation, maybe
you do not have small businesses in your district. Well, we do in
eastern Indiana, and cutting Federal regulatory red tape is as urgent a
business of this Congress as cutting the onerous burden of taxes on
small business owners for revitalizing that small-town, small-business
economy that makes my district great and makes America great.
I thank the Speaker and I thank the gentleman for yielding the time.
Mr. OWENS. Mr. Speaker, I yield 5 minutes to the gentleman from New
Jersey (Mr. Payne).
Mr. PAYNE. Mr. Speaker, I certainly rise in opposition to H.R. 2730.
My good friend, the gentleman from Ohio (Mr. Boehner), talked about
the fact that he would not want a policeman who wrote the ticket to be
the jury also, and therefore, it is better to take this out of the
hands of the policeman writing the ticket and put it in the hands of
the commissioner.
However, I might just tell the gentleman from Ohio (Mr. Boehner), I
am glad that he does not have much contact, nor do I, with law
enforcement, but the only difference is the policeman does not set the
speed limit. The policeman does not create the offense. He simply
writes the tickets. So, just a small point. I think he had an
interesting example, but I do not think it was too legitimate.
But he is a good friend of mine. I will get a chance to talk to him
about that analogy of the policeman writing the ticket and being the
judge at the same time; therefore, saying it should be in the hands of
another commission, not the Secretary.
I rise in opposition to H.R. 2730, a bill that would give the
Occupational Safety and Review Commission policy-making authority by
allowing courts to give deference to the commission regarding the
interpretation of the Occupational Safety and Health Commission
standards.
This change would undermine the Department's enforcement function by
encouraging challenges to the Secretary's rules and interpretations if
it is given to another body. Then it would be open season; every time
the Secretary makes a determination, there would be a challenge to it,
then put it to the other body which, once again, this commission would
be a stalling tactic, simply once again making it more bureaucratic.
It makes government, to me, more cumbersome, not making it lean and
mean and effective, as this legislation calls this particular bill, the
Efficiency Act. But anyway, this does not make it more efficient in my
estimation.
Mr. Speaker, I believe that the Secretary is in a much better
position to interpret regulations than the commission. Beyond the
obvious fact that the Secretary issued the regulations in the first
instance, as noted by the court, it is the Secretary who has broader
contact and, consequently, greater expertise with both the regulated
community and with the impact of regulations on the community.
Further, viewing the commission's authority as being similar to those
of a court fully achieves the purpose of protecting the regulated
community from biased interpretation of the Secretary's authority.
Finally, contending that the commission should have both adjudicatory
and rule-making authority, as the majority does, creates unnecessary
and unwanted confusion by leaving two agencies responsible for
determining policy. For all of these reasons, we conclude that the
court's view of the act is more reasoned and more sensible than these
changes.
I think that we are adding, in my opinion, more confusion by trying
to come up with rulings, and so it is not consistent with the OSHA
act's legislative history and does not reflect sensible policy. I
cannot understand why it is being offered, and for that reason, I
respectfully urge my colleagues to vote against this legislation.
Mr. NORWOOD. Mr. Speaker, I yield myself whatever time I may consume.
Mr. Speaker, H.R. 2730 squarely focuses on the needs to reestablish
Congress' intent and the needs to have an effective system of checks
and balances on agencies like OSHA when they are given so much latitude
to interpret the scope of their own authority.
Mr. Speaker, Congress gave OSHA an unprecedented level of authority
to enter the workplace in 1970, and it knew that with this
unprecedented level of authority ran the possibilities of abuse, and
there are more than a few occasions of that over the last 35 years. As
with all matters under American law, there is a fine line between
implementing needed protections and overintrusiveness by a government
agency. That is very important stuff.
With this in mind, Congress devised a system of checks simply to keep
OSHA within the boundaries of the playing field established by
Congress. Let me provide a good example.
Many of my colleagues will recall the front page of the Washington
Post on January 4, 2000. The headline in the upper right-hand corner of
the Post read, ``OSHA Covers At-Home Workers.'' I use this example not
to rub salt in old wounds left over from the Clinton administration,
but simply to say that OSHA has a rather checkered past, shall I say,
when it comes to interpreting the limits of its authority under the OSH
act.
Left to its own devices, OSHA has a history of crossing the line and
going out of bounds. I am not making that up. There are examples after
examples. While OSHA may think they break the rules for the right
reasons, others see these attempts to expand the agency's reach as an
intrusive, unauthorized government act.
Funny, but the legislative history behind the OSH act seems to
suggest that Congress envisioned these power grabs.

{time} 1445

You have to be rather proud of the Congress in 1970. And let me call
my colleagues' attention to the visual I will now point to as proof.
This visual clearly indicates how the systems of checks that Congress
placed on OSHA was intended to work. What you see is lifted directly
from the Congressional Record of November 17,

[[Page H3127]]

1970. That was the very day that a compromise was struck that removed
the threat of a Presidential veto, and it calmed the resistance that
had prevented the passage of the OSH Act for years. As Senator Javitz
noted at the time, the future of the OSH Act depended on the
establishment of OSHRC. Without this system of checks being put in
place, the OSH Act might not have passed in 1970, perhaps not at all.
That compromise, without question, structured an independent judicial
review agency which, and I quote, ``without regard to the Secretary of
Labor can find for or against him on the basis of individual
complaints.'' I submit that what Senator Javitz said on the floor of
the Senate November 17, 1970, has a direct and clear application to
H.R. 2730. That is, under the OSH Act, Congress intended there to be a
truly independent review of the disputes between OSHA and employers,
and when this dispute centered on OSHA's interpretation of its
authority, that OSHRC and not the prosecuting agency, OSHA, was to be
the final arbiter.
The review commission is the court. The Labor Department is the
prosecutor and the small business owner, generally, is the defendant.
And that is quite simply all H.R. 2730 does. In one sentence, this
legislation restores the systems of checks and balances that Congress
truly did intend 34 years ago. This measure could not be crafted more
narrowly to serve a more direct purpose.
Now, my colleagues may not agree with what Congress said in 1970, but
the fact remains they did say it. It is only common sense to have an
entity that can review unfettered interpretations; and it happens every
day, like OSHA's jurisdiction over individual homes. That is why OSHRC
was created and why Congress broke with the administrative tradition in
1970.
I want to refer back to the chairman's analogy, because, I say to the
gentleman from New Jersey (Mr. Payne), I happen to like it. A police
officer writing a citation for a speeding violation does not and should
not get the chance to serve as an impartial judge or jury. He simply
has a biased opinion on the matter. OSHA should not have that right
either.
I urge my colleagues to vote ``yes'' on passage of H.R. 2730 because
it restores congressional intent as it reinstitutes a system of checks
and balances and just may prevent the kinds of interpretations that
have drastically, drastically expanded OSHA's reach into the workplace
in the past.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield 3 minutes to the gentlewoman from
California (Ms. Woolsey).
Ms. WOOLSEY. Mr. Speaker, I rise in opposition to H.R. 2730 because
instead of working to strengthen OSHA, my Republican colleagues have
again presented us with another piece of legislation aimed at weakening
it.
For the record, Mr. Speaker, before being elected to the House of
Representatives, I spent 20 years as a human resources professional,
and I was also a small business owner. I can speak with authority when
I say that workers do a better job for their employer if they are
protected and if their health and safety is of concern to that
employer.
When there is an accident resulting in injury and/or death, workers
and their families, I can tell you absolutely, want any resolution to
be handled fairly and efficiently and with their best interests in
mind. They need to trust in the review. They need to trust in the final
decision that results. And the Secretary of Labor is, obviously, the
best final authority on how OSHA law is interpreted.
This bill, H.R. 2730, works to undermine the Secretary's authority,
giving the commission too much latitude in how law is interpreted. The
Secretary of Labor needs an unbiased group of peers to turn to for
appeals. And if the commission's authority on the interpretation of the
law trumps the Secretary of Labor, what legal basis would the Secretary
have to appeal a decision with which he or she disagrees?
The commission's role is to fact find and review the case with the
Secretary of Labor as the enforcer. If the commission becomes both the
fact finder and the enforcer, the employee cannot be assured protection
from bias, bias which undermines the entire appeals process. It is
unnecessary, and it is not in the best interest of the employer or the
employee.
If the administration were truly interested in helping workers, Mr.
Speaker, it would not be focusing on these unnecessary changes in the
law, but instead it would be granting workers what they really need.
They need an increased minimum wage, they need to know they are
protected, their health and their safety at their workplace, and they
know that increased penalties for employers that ignore safety
regulations would help in that direction.
Mr. Speaker, I urge my colleagues to join me in supporting real
worker reforms and voting against H.R. 2730.
Mr. OWENS. Mr. Speaker, may I inquire as to the number of minutes
remaining for this debate.
The SPEAKER pro tempore (Mr. Rehberg). The gentleman from New York
(Mr. Owens) has 18 minutes remaining, and the gentleman from Ohio (Mr.
Boehner) has 15\1/2\ minutes remaining.
Mr. OWENS. Mr. Speaker, I yield 5 minutes to the gentleman from New
Jersey (Mr. Holt).
(Mr. HOLT asked and was given permission to revise and extend his
remarks.)
Mr. HOLT. Mr. Speaker, I thank my friend from New York for yielding
me this time; and I rise in opposition to H.R. 2730 and also in
opposition to H.R. 2728, in opposition to H.R. 2729, and in opposition
to H.R. 2731, which we will be considering shortly.
Mr. Speaker, H.R. 2730 would grant deference to the commission, not
OSHA, in interpreting questions of law. Now, this, as in this
collection of the other three bills, only serves to weaken the
protection of workers. OSHA really is a proud chapter in American
history, and we are pleased that a prominent New Jerseyan, Senator
Harrison Williams, had a large role in writing this. There are millions
of Americans who have their limbs, their eyesight, even their lives
because of OSHA; and they do not even know who they are. This
protection is critically important, and we need to keep it strong.
This cluster of bills today, in every instance, weakens the
protection for workers. One of the pieces of legislation would grant
the employer more time to contest, contest the findings. It does not
restore the balance, as the gentleman speaking in support of this bill
earlier said. No, it tips the balance. It tips the balance against the
worker. It puts workers and the enforcers who protect them at a
disadvantage. It would allow the employer more time but would not allow
any new advantages for the enforcer or the worker.
H.R. 2729 would create a larger, slower, more cumbersome commission,
again reducing the protection to workers. And 2731, the Occupational
Safety and Health Small Employer Access to Justice Act, would encourage
employers to contest and simply delay. So all four of these reduce
protections that are critically important.
H.R. 2730 would divide the power to make and enforce standards from
the authority to interpret them; and it would result in two different
actors, the Secretary and the commission, being responsible for
implementing the act's policy objectives. That is inefficient and
undesirable, and it may substantially alter the manner in which the OSH
Act is enforced by calling into question the authority and the ability
of the Secretary to bring OSHA cases before the courts of appeal. If
the commission's interpretations are to be given deference, then on
what basis may the Secretary appeal a decision with which the Secretary
disagrees?
Mr. Speaker, this bill presents more questions than it answers, and
it creates conflicts that will only weaken worker protections. I ask my
colleagues to oppose this bill and the other three bills in this
family. In this globalized economy, and with the threat of outsourcing
and cheap labor overseas, it is a mystery to me why the other side
would want to risk reducing American workers' rights, wages, and
working conditions.
I rise in opposition to H.R. 2730, the Occupational Safety and Health
Independent Review of OSHA Citations Act. This bill specifies that the
conclusions of the Occupational Safety and Health Review Commission
``with respect to all questions of law shall be given deference if
reasonable.'' The bill requires reviewing courts to grant deference to
the Commission, not OSHA, in interpreting questions of law, as long as
the commission's interpretation is reasonable.

[[Page H3128]]

H.R. 2730 fundamentally weakens the powers of the Secretary of Labor.
In 1991, the Supreme Court held unanimously in Martin v. OSHRC that the
Secretary, not the Commission, should be given deference with regard to
interpreting regulations because interpreting the regulation is a
necessary adjunct of the Secretary's rulemaking and enforcement powers.
The Secretary of Labor is best able to regulate and enforce safety
standards. As the promulgator of any given standard, the Secretary is
better positioned to reconstruct the purpose of the standard. As
enforcer, the Secretary comes in contact with a much greater number of
regulatory problems than the Commission and is more likely to develop
expertise in assessing the effect of a particular regulatory
interpretation.
Dividing the power to make and enforce standards from the authority
to interpret them results in two different actors, the Secretary and
the Commission, being responsible for implementing the Act's policy
objectives--an inefficient and undesirable result.
The commission is akin to a judicial body, not a regulatory one.
Because of the OSH Act's unusual split enforcement structure, the
Commission's adjudicatory authority is more aptly compared to that
exercised by a court in an agency-review context, than to a unitary
agency interpreting the regulations that it had promulgated. Conferring
authoritative fact-finding and review powers in the Commission (and
ultimately the courts), a body that is wholly independent of the
administrative enforcer, ensures employers are protected from
prosecutorial bias. H.R. 2730, by granting administrative powers to the
Commission, confuses its role.
Finally, H.R. 2730 may substantially alter the manner in which the
OSH Act is enforced by calling into question the authority and ability
of the Secretary to bring OSHA cases before the courts of appeal. If
the Commission's interpretations are to be given deference, then on
what basis may the Secretary appeal a decision with which the Secretary
disagrees?
Mr. Speaker, this bill present more questions than it answers and
creates conflicts that will only weaken worker protections. I ask my
colleagues to oppose this bill. In the globalized economy, with the
threat of outsourcing and cheap overseas labor, it is a mystery to me
why the Republicans want to risk reducing American workers' rights,
wages, and working conditions.
Mr. BOEHNER. Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield 5 minutes to the gentleman from New
Jersey (Mr. Andrews).
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. Mr. Speaker, I thank my friend from New York for
yielding me this time and for his leadership in pointing out the flaws
in these bills that are on the floor today. It is a thankless and
sometimes tedious job, but the gentleman from New York (Mr. Owens) does
it exceedingly well, and we thank him for his hard work.
I rise in opposition to this bill, Mr. Speaker, because I believe it
does result in a structure that the Administrative Procedures Act has
set in place that works. And although OSHA is not a perfect agency, it
is a functional agency that has done much to protect many, as my
friend, the gentleman from New Jersey (Mr. Holt), just talked about.
The Administrative Procedures Act sets up a balance where when this
Congress creates a law and delegates to an administrator in the
executive branch the responsibility of enforcing that law, the courts
give that administrator significant deference in studying what the law
means and how it should be enforced. That is a principle that should
apply, and I believe does apply, to OSHA. This bill would create an
exception to that principle that I believe is nothing more than a fifth
wheel.
The bill purports to set up two centers of decision-making within the
Department of Labor, one is the Secretary of Labor herself, and the
other is the commission that oversees OSHA. It falsely and artificially
divides responsibility for understanding and interpreting OSHA
standards on the one hand and then enforcing them on the other hand.
This just does not make any sense to me.
When Congress legislates in an area of policy importance, whether it
is transportation or health or the environment, we frequently create an
executive branch person to oversee the enforcement of that law. We then
vest that executive branch person with the responsibility of learning
about that substantive area and writing the rules that govern that
substantive area. The Administrative Procedures Act requires that the
courts give significant deference to the decisions made by that
executive branch officer.
This works with the EPA, it works in the financial services industry,
it works with respect to transportation, and I believe it works in the
field of worker safety.

{time} 1500

This bill upsets that balance by directing the courts to give
deference in two areas. One area is the Secretary of Labor when it
comes to writing the rules, but the other is to the commission when it
comes to interpreting the rules.
Putting aside for a minute the confusion over what writing the rules
means versus what interpreting the rules means and how the court would
have to sort that out, I believe what we will be passing today, should
this bill pass, will be a breeder of litigation that would call every
standard and every regulation of OSHA into question, very often for the
purpose of prolonging the period of time before the regulation is
enforced.
The Administrative Procedures Act is, frankly, a work of legal genius
in this country. It properly balances the scales among the Congress,
the executive branch, and the courts. By creating a fourth scale to be
balanced by saying that there are two administrative agencies within
the Department of Labor that must be taken into account, I believe we
create a disruption.
This is more than just a theoretical problem. The ultimate result of
this bill would be to delay and dilute worker safety standards from
being enforced, to delay them because there would be one more
litigation hurdle that would have to be jumped over before the law
could be enforced, and dilute them because it, frankly, is the nature
of things that the longer a process takes, the more compromise there
is. Compromise is sometimes a good thing, but when we are compromising
an important value like worker safety, it is not a good thing.
I would urge Members to oppose this bill because it defers and
dilutes worker safety standards that the workers of this country so
strongly need.
I thank the gentleman from New York (Mr. Owens) for his leadership in
fighting against these bills.
Mr. BOEHNER. Mr. Speaker, I yield 2 minutes to the gentleman from
South Carolina (Mr. Wilson), a member of the Committee on Education and
the Workforce.
Mr. WILSON of South Carolina. Mr. Speaker, it is an honor for me to
be here today to speak on behalf of H.R. 2730, the Occupational Safety
and Health Independent Review of OSHA Citations Act. I congratulate the
gentleman from Ohio (Mr. Boehner) who has taken a lead in assisting in
regard to education issues and also worker safety. I also thank the
gentleman from Georgia (Mr. Norwood), who is chairman of the
Subcommittee on Workforce Protections.
Indeed, the particular initiatives and reforms that we are
considering today are ones that I think would lead greatly to improving
worker safety. The way it would yield for greater worker safety is it
would encourage voluntary compliance and proactive activity by small
businesses with OSHA.
In the congressional district that I represent, I am grateful that we
have large employers such as Blue Cross/Blue Shield, such as the
Michelin Tire factory company. We have three different plants in the
district I represent. But the real basis of our economy, in working
with the Chambers of Commerce and the National Federation of
Independent Businesses is the small businesses, and that is who would
be helped by the reforms we will be voting on today. These are
businesses with 100 employees or less.
In the district that I represent, 99 percent of the businesses have
100 employees or less, and 85 percent of the persons who have
employment in jobs are working for these small businesses. That is why
it would be so helpful to pass these bills which provide for promotion
of workplace safety, and in particular, this specific bill restores the
original system of checks and balances intended by Congress when it was
enacted as the OSHA law, that it ensure that the commission, which in
effect is the court, and not OSHA, which is the

[[Page H3129]]

prosecutor, would be the party to interpret the law and provide an
independent review of OSHA citations.
This could not come at a better time as the economy is improving, as
jobs are improving. With the recent tax cuts we have had, with bonus
depreciation to encourage companies to buy new equipment, we also need
to have these reforms. I urge Members to support the bill.
Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I mentioned before that I wanted to make an amendment to
any one of these four bills because they are all about OSHA, and I
thought my amendment was germane. I would like to describe what that
amendment would have been.
It is a bill now, H.R. 4270, and it would amend the OSHA Act in three
ways. First, it would strengthen sanctions for a worker's death or
deaths caused by an employer's willful violations of basic OSHA safety
standards. The current sanction is a mere misdemeanor with no more than
6 months in prison and a fine of up to $10,000. Some jurisdictions seek
stiffer penalties for failure to return a library book. My bill would
change this penalty to a felony with up to, but no more than, 10 years
in prison.
Second, my amendment would increase the penalty for illicitly warning
of an OSHA inspection, from up to 6 months imprisonment to up to 2
years.
Third, my amendment would increase the penalty for lying to or
misleading OSHA, from up to 6 months imprisonment to no more than 1
year imprisonment. In all instances, fines would be decided upon in the
same way judges decide other fines, in accordance with title 18 of the
criminal code.
This bill, H.R. 4270, and in the Senate it is S. 1272, sponsored by
Senator Corzine; this bill corrects a glaring oversight in Federal law
and policy: the inability to pursue a felony conviction of an employer
who willfully causes the death of workers. To quote a New York State
supreme court justice, a felony sentence would serve as a warning to
other employers; employers who, in pursuit of their own economic
interests, care to be cavalier about the lives of others.
When sentencing a man responsible for the collapse of an illegally
conducted scaffold that killed five immigrant workers in Manhattan,
this same supreme court justice remarked, ``The collapse of this
scaffold was not a tragic accident; rather, it was a tragic
certainty.'' She went on to say that the case had given her an
education as to how ``astonishingly ineffectual'' the Federal
Government has been in protecting the workers' lives.
This judge, Rena Uviller, emphasized that OSHA penalties for willful
safety violations that result in worker deaths merely amount to a
$10,000 fine and a misdemeanor sentence of no more than 6 months'
imprisonment upon the first conviction. The maximum penalty for a
second-time offender is a $20,000 and no more than 1 year imprisonment.
In concluding her sentencing, Judge Uviller sent a message to us on
this floor today by observing, ``Why Congress has adopted such a
spineless response to industrial malfeasance is best left to the voters
to assess.''
Why has Congress adopted such a spineless response to industrial
malfeasance, to owners, managers, bosses who willfully violate the
regulations and thus cause the death of a worker?
I think this would have been a germane amendment. I am sorry that in
the committee it was dismissed. My amendment addresses the needs of
workers. Every other one of these four bills focuses on the needs of
employers, ways in which you might frustrate the efforts, dilute the
efforts of OSHA so that employers and small business owners would
benefit greatly while workers suffer more.
I think it is very important that we note that we have failed in a
four-bill marathon of more than 4 hours to allow the minority to
address any of the interests and concerns of the working families of
America. This is a clear indication of exactly where the majority
stands with respect to working families.
They have other programs that they offered, one called HOW, H-O-W,
Hire Our Workers, which runs counter to the kinds of activities they
have conducted over the last 10 years with respect to the dilution of
the powers of OSHA and, at the same time, the dilution of the powers of
the organization process of unions.
I think it is important to note that the business of today has to be
the business of being concerned about workers. It cannot be merely the
four bills which seek to make OSHA safer for employers.
Mr. Speaker, I yield back the balance of my time.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, let me just point out, we are talking about H.R. 2730.
That is on the review commission and OSHA. That is the subject of this
hour's debate and this bill.
I once again remind Members, we are talking about working families,
ninety-two percent of the working families who own businesses who have
friends work for them. They are the working families that we are
talking about.
Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr.
Isakson).
Mr. ISAKSON. Mr. Speaker, I rise to address, in part, what was just
spoken of by the minority in terms of the amendment they would like to
have proposed and the reasons they would like to have proposed it,
because it illustrates the difference in the two sides today.
It would be wrong for any American worker who listens to this debate
to think for a minute that if anything happened to them on the work
site that they do not have immediate access to the criminal courts of
this country. They do. That is what makes the United States of America
great.
It would also be wrong, I think, to assume that this is an employer
versus employee argument. It is not. Go out today in Washington, D.C.
to any project, building any building. After you see the sign at the
front that shows who is building the building and who the contractor
is, the next sign posted will be the safety regulations the employer
and the employees are committed to.
Go into a facility in America today, go into UPS, go into Coca-Cola,
go onto a construction site, and what do you see, you see safety first.
OSHA has done what it was supposed to do, and American employers and
employees have done what they are supposed to do.
Are there mistakes? From time to time, there are. Is there a route of
grievance? There always is.
The gentleman from Georgia (Mr. Norwood) is trying to make that an
expedited process where you get a hearing fast, you get a result fast,
and the purpose of America can continue. And that is for American
business to employ employees who work for a company to make products
and services and build buildings. But let no one watching this debate
think this is about whether or not someone does not have access to our
courts if they are aggrieved. They do, and they do instantaneously.
What this debate is about is the great partnership that exists today
in America between the worker and the employer, which is what makes
this country great.
I appreciate the diligent work of the chairman of the subcommittee
and his effort today to work on behalf of working families and what
makes America great, the free enterprise system.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, frequently I watch debates and the point has been made.
Everybody has said what they have to say; it is frequently repeated
many times, but we never seem to yield back the time and get to the
vote. Mr. Speaker, I think it is time to vote.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Gillmor). All time for debate has
expired.
Pursuant to House Resolution 645, the previous question is ordered on
the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. OWEN. Mr. Speaker, on that I demand the yeas and nays.

[[Page H3130]]

The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.

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