[Congressional Record Volume 163, Number 36 (Wednesday, March 1, 2017)]
[House]
[Pages H1421-H1430]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DISAPPROVING THE RULE SUBMITTED BY THE DEPARTMENT OF LABOR RELATING TO
``CLARIFICATION OF EMPLOYER'S CONTINUING OBLIGATION TO MAKE AND
MAINTAIN AN ACCURATE RECORD OF EACH RECORDABLE INJURY AND ILLNESS''
Mr. BYRNE. Mr. Speaker, pursuant to House Resolution 150, I call up
the joint resolution (H.J. Res. 83) disapproving the rule submitted by
the Department of Labor relating to ``Clarification of Employer's
Continuing Obligation to Make and Maintain an Accurate Record of Each
Recordable Injury and Illness'', and ask for its immediate
consideration in the House.
The Clerk read the title of the joint resolution.
The SPEAKER pro tempore. Pursuant to House Resolution 150, the joint
resolution is considered read.
The text of the joint resolution is as follows:
H.J. Res. 83
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That Congress
disapproves the rule submitted by the Department of Labor
relating to ``Clarification of Employer's Continuing
Obligation to Make and Maintain an Accurate Record of Each
Recordable Injury and Illness'' (published at 81 Fed. Reg.
91792 (December 19, 2016)), and such rule shall have no force
or effect.
The SPEAKER pro tempore. The gentleman from Alabama (Mr. Byrne) and
the gentleman from Virginia (Mr. Scott) each will control 30 minutes.
The Chair recognizes the gentleman from Alabama.
General Leave
Mr. BYRNE. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
include extraneous materials on H.J. Res. 83.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Alabama?
There was no objection.
Mr. BYRNE. Mr. Speaker, I rise today in strong support of H.J. Res.
83, and I yield myself such time as I may consume.
Mr. Speaker, America's workers deserve responsible, commonsense,
regulatory policies to ensure safe and healthy working conditions. Let
me say that again. America's workers deserve responsible, commonsense
regulatory policies to ensure safe and healthy working conditions.
They deserve a Federal Government that holds bad actors accountable,
and a government that takes proactive steps to help employers improve
safety protections and prevent injuries and illnesses before they
occur. Just as importantly, they deserve to know that Federal agencies
are following the law.
For years, Republicans have called on OSHA to reject a top-down
approach to worker protections and, instead, collaborate with employers
to identify gaps in safety and address the unique challenges facing
workplaces.
Unfortunately, under the Obama administration, our concerns usually
fell on deaf ears. In fact, one of the administration's parting gifts
to workers and small businesses was a regulatory scheme that reflects
not only a backwards, punitive approach to workplace safety, but one
that is completely unlawful.
Here's why. Under the Occupational Safety and Health Act, employers
have long been required to record injuries and illnesses and retain
those records for 5 years. The law explicitly provides a 6-month window
under which OSHA can issue citations to employers who fail to maintain
proper records; 6 months. It is written in the law. This approach helps
ensure workplace hazards are addressed in a timely manner.
However, in 2006, OSHA took action against Volks Constructors for
recordkeeping errors that occurred well beyond what the law allows,
well beyond 6 months. The errors were from nearly 5 years earlier. That
is why a Federal appeals court unanimously rejected OSHA's overreach.
The opinion for the Court stated: ``We do not believe Congress
expressly established a statute of limitations only to implicitly
encourage the Secretary to ignore it.'' Even President Obama's Supreme
Court nominee, Judge Garland, agreed OSHA's action was ``not
reasonable.''
What came next was an outright power grab. OSHA decided to take its
unlawful action one step further. This time it would not only ignore
the law, but rewrite it. The agency finalized the ``Volks'' rule,
unilaterally extending the statute of limitations from 6 months to 5
years. OSHA undertook for itself the power that only this Congress has
to write laws.
The agency created significant regulatory confusion for small
businesses. Many would likely face unwarranted litigation because of
unlawful regulatory policies. Of course, further judicial scrutiny also
means hardworking taxpayers will foot the bill when OSHA is forced to
defend its lawless power grab once again.
Simply put, OSHA had no authority to do this. We have a Constitution
that grants Congress, not Federal agencies, the power to write the law.
But that is not the only reason we are here today. We are also here
because this rule does nothing to improve workplace safety.
Maintaining injury and illness records is vitally important and can
help enhance worker protections. But that is not the goal of this rule.
This rule only serves to punish employers. As we have said repeatedly,
OSHA should, instead, collaborate with employers to help them
understand their legal responsibilities and ensure safe measures are in
place to prevent workplace hazards in the future.
Fortunately, Congress has the authority to reject this failed
approach to workplace safety and block an abuse of executive power that
began under the Obama administration.
I urge my colleagues to support this resolution, and I hope we can
all work together to encourage a more proactive approach that prevents
injuries and illnesses from happening in the first place.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in opposition to H.J. Res. 83, the Congressional
Review Act resolution of disapproval that will undermine workplace
safety and health. It does so by overturning a clarifying rule issued
by OSHA on December 9, 2016, to ensure accurate occupational injury and
illness reporting.
Now, first of all, it is strange that we are reversing a rule through
the Congressional Review Act that creates no new compliance or
reporting obligation, imposes no new costs. It simply gives OSHA the
tools to enforce an employer's continuing obligation to record injuries
and illnesses.
Spurred by the court of appeals decision, which blocked OSHA from
citing continuing violations outside the 6-month statute of
limitations, OSHA updated its recordkeeping rule. This new rule makes
it clear that employers have a continuing obligation to record serious
injuries and illnesses on an OSHA Log if they failed to comply with the
requirement to record the injury at the time the injury or illness
occurred.
Since the enactment of OSHA in 1970, accurate data on workplace
injuries and illnesses has been recognized as an
[[Page H1422]]
important tool for protecting worker safety and health.
Since 1972, employers in higher hazard industries have been required
to record the occurrence of each serious occupational injury or illness
within 7 days on a ``Log of Work-Related Injuries and Illnesses.''
{time} 1530
An annual summary of this law must be posted for 3 months starting in
February of each year in a conspicuous place where employees' frequent
records must be kept for 5 years.
While most employers faithfully comply with OSHA's rules, there are a
number of well-documented incentives for employers to underreport
workplace injuries. These incentives include lower workers'
compensation rates, more favorable treatment in public contracting, and
a lower chance of having a future OSHA inspection.
Underreporting means that workplace hazards are masked, making it
less likely that employers or employees become aware of patterns that
would indicate the need to take corrective actions to prevent future
injuries. If injuries and illnesses are not on the log, OSHA may
overlook hazards at a worksite during an inspection and consequently
leaving workers exposed to correctable dangers.
Mr. Speaker, because of underfunding, OSHA only has sufficient
resources to inspect a workplace once every 140 years on average. So
the likelihood that they might show up in the next 6 months is
obviously remote. To be effective, OSHA must have reliable injury and
illness data to target its scarce resources towards work sites where
employees are facing the greatest dangers. Understated injury rates may
mean that OSHA will bypass work sites that need to be inspected.
Without reliable recordable injury rates, private contractors and
public sector officials will not be able to make sufficiently informed
decisions when assessing the safety records of prospective contractors
and subcontractors.
Mr. Speaker, OSHA's practice for the last 40 years and the decisions
of the bipartisan and independent OSHA Review Commission have upheld
the principle that every day an employer fails to record an injury was
a continuing violation for the purpose of calculating time limits under
OSHA's statute of limitations. That is not totally open-ended but
limited to the 5-year requirement that employers are required to
maintain these injury records.
In spite of this 40-year precedent, a 2012 D.C. Court of Appeals
decision known as Volks Constructors upended the 40-year precedent when
it held that OSHA did not have the authority to issue a citation for an
occurrence of a violation that extended beyond the 6-month statute of
limitations as set forth in OSHA. The court noted that OSHA's previous
regulation provided for no specific articulated continuing obligation
to record injuries beyond 7 days.
There was a concurrent opinion in the Volks decision which made it
clear that a regulation, which expressly provides for an employer's
continuing obligation, would be lawful.
Now, when you talk about what the court decided and what Mr. Garland
wrote, that was on the previous regulation, not on this one.
Informed by the guidance of the court, OSHA has issued a new rule
which does make it clear that an employer's duty to maintain an
accurate record of workplace injuries and illnesses is, in fact, an
ongoing obligation.
So let's be clear, eliminating this rule means that employers who
want to underreport injuries will face no sanctions if the injuries go
back more than 6 months. Rolling back this rule essentially creates a
vast safe harbor for noncompliance and creates the perverse incentive
for underreporting.
The premise behind the resolution today is that it is unlawful. If
that is the case, Congress should repeal the regulation. But no court
has reviewed this new rule, only the predecessor. There has been no
appeal of the new rule that has been lodged since the new rule was
issued in December.
The proper course of action is to have the courts decide the legal
question since arguably they are in the best position to interpret the
laws and evaluate the precedents. This especially makes sense since one
of the concurring opinions in the Volks case identified abundant legal
precedent for tolling the statute of limitations when there are
continuing violations in other laws that are nearly identical to the
reporting requirements in OSHA. These include the Consumer Credit
Reporting Act and the Sex Offender Registration and Notification Act.
On the other hand, if the purpose of passing this resolution is just
to eliminate the possibility of OSHA's clarifying rule could ever be
found lawful, then it is obvious that H.J. Res. 83 is an ideological
attack without any regard for consequences to worker safety.
On the other hand, if there is a bona fide view that OSHA lacks the
adequate legal basis for the rule, then the constructive solution would
be to amend OSHA and provide for the clarifying statutory authority. We
should not be repealing the rule because we know what happens when this
deterrent is eliminated. After OSHA lost its authority to enforce the
violations outside the 6-month window under the Volks decision, there
was a 75 percent reduction in the number of citations issued for
underreporting, and that is according to OSHA data.
So, Mr. Speaker, there has been no hearing held on this final rule or
this resolution. There has been no assessment of the consequences of
underreporting of injuries which will occur if this resolution is
adopted, and there has been no evaluation of any alternative way to
ensure accountability for employers who flout the law. There has just
been a headlong rush to push this resolution to the floor just a few
days after its filing.
So given the complete lack of deliberation regarding this new rule,
this Congressional Review Act resolution is premature, at best, but it
will definitely have regrettable consequences to the health and safety
of the people that we are charged to protect.
Mr. Speaker, I urge a ``no'' vote.
I reserve the balance of my time.
Mr. BYRNE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to read very briefly a quote from the
court's decision: ``We find this statute to be clear and the agency's
interpretation unreasonable in any event''--in any event.
There is no way to rewrite this regulation to comply with the law
that is clear. There is no way for the agency's interpretation to
become reasonable. It is unreasonable according to the court in any
event.
My friend from Virginia talked about the fact that OSHA just updated
the regulation to impose a continuing obligation. OSHA does not have
that authority. Only this Congress has that authority. No agency can
unilaterally decide to change a statutory provision that the court has
said is clear. He said this applies to only a few categories of
employers. It applies to nearly every category of employers that has 10
employees or more. So you could have an employer with 50 employees, and
they are subject to this regulation. This applies to virtually any
employer.
OSHA has 6 months to enforce this law--6 months--from any violation.
Now, why 6 months? Because it is important to investigate these things
quickly and determine whether there has been a violation because things
get lost and people leave their employment. Congress made the decision
for 6 months because that was a period of time in which OSHA could
perform its duties reasonably, and we could get justice the way it
ought to be done.
We can amend OSHA, but we have not chosen to do so. Until this
Congress chooses to change OSHA, the agency has to comply with the
clear wording of the statute as it has been passed by this Congress.
The agency does not have the right to do this. It would be a waste of
taxpayer money and time to force an employer to go challenge this in
court when we already know what the result is going to be. It is not up
to the committee or to the Congress to go back and review an agency
interpretation we know, as a matter of law, is wrong.
So this is a responsible act to take, and I would suggest to the
agency and to my fellow Members of Congress that if we want to
reconsider a statute of limitations we do it on this floor and not in
that agency.
Mr. Speaker, I yield such time as she may consume to the gentlewoman
from
[[Page H1423]]
North Carolina (Ms. Foxx) who is the chairwoman of our committee.
Ms. FOXX. Mr. Speaker, I want to thank my colleague from Alabama for
his able testimony in regard to this resolution.
I rise today in support of this resolution because it will reverse an
unlawful power grab and restore responsible worker health and safety
policies.
Article I of the Constitution is clear. It is the Members of this
body--the legislative branch--who write the law. Why? Because we are
closest to the people and, therefore, more responsive to the needs and
demands of those we serve.
It is the responsibility of the executive branch to enforce the
laws--not write them. Unfortunately, the previous administration failed
to abide by this founding principle. President Obama boasted about his
days teaching constitutional law, yet his administration tried time and
time again to rewrite the law unilaterally through executive fiat.
The Volks rule is just one example of this unprecedented overreach.
Under Occupational Safety and Health Act regulations, employers are
required to record injuries and illnesses and retain those records for
5 years. This information has long been used by safety inspectors and
employers to identify gaps in safety and enhance protections for
workers.
To ensure hazards are addressed in a timely manner, the law
explicitly provides a 6-month window under which an employer can be
cited for failing to keep proper records--6 months. But never one to
let the law stand in the way of its partisan agenda, the Obama
administration decided to unfairly target a Louisiana construction
company for recordkeeping errors from nearly 5 years earlier.
That's right, 5 years. Not even remotely close to what the law passed
by Congress permits. The consequences of this unlawful power grab were
predictable. Employers large and small faced significant regulatory
confusion and legal uncertainty. Fortunately, a Federal appeals court
unanimously struck down this power grab as my colleague from Alabama
has cited. Even President Obama's nominee for the Supreme Court, Judge
Merrick Garland, referred to OSHA's action as unreasonable.
How did the Obama administration respond to this judicial rebuke? It
completely ignored the court's ruling. The agency doubled down on its
abuse of power and tried to rewrite the law extending the threat of
penalty from 6 months to 5 years.
Again, it is Congress that writes laws, not government agencies. That
is precisely why we must support this resolution. By supporting H.J.
Res. 83, we will provide more certainty for small businesses and uphold
the rule of law. Just as importantly, we must demand a better approach
to worker health and safety. To be clear, this rule does nothing--I
repeat nothing--to improve the health and safety of America's workers.
Instead of shaming employers, OSHA should collaborate with employers
and develop a proactive approach that will keep workers safe. That is
exactly what Republicans have demanded for years, and we will continue
to demand so in the years ahead no matter which party has the
Presidency.
As my colleague from Alabama has said, this is exactly the
appropriate way to block this unlawful rule, not only because the
agency has no authority to do what it did, but because it is why we
have the CRA.
Mr. Speaker, I urge my colleagues to block an unlawful rule by voting
in favor of H.J. Res. 83. I wish to thank the chairman of the Workforce
Protections Subcommittee, Representative Byrne, for his leadership on
this important issue.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, prior to yielding, I just want to make a comment that
the court struck down the previous rule, not the rule which is the
subject of this resolution. The previous rule did not have a specific
citation about a continuing obligation. This rule does. The excerpts
from the Garland concurring decision says:
None of this is to say, as the petitioner suggests in its
opening brief, that a statute of limitations like OSHA's
statute of limitations can never admit to a continuing
violation for a failure to act. To the contrary, where a
regulation or statute imposes a continuing obligation to act,
a party can continue to violate it until that obligation is
satisfied.
This regulation specifically cites the obligation as a continuing
obligation.
Mr. Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms.
Jackson Lee).
{time} 1545
Ms. JACKSON LEE. Let me thank the gentleman for his very astute
argument and his leadership on the committee.
I am going to narrow my argument to, I think, very realistic
questions about whether or not we are procedurally in the context of
overruling the OSHA decision out of the Federal courts or whether or
not this is really a question of do we want to protect the rights of
American workers and protect them from the years of injuries that
preceded the establishment of OSHA. I want to fall on the side of the
American worker.
Let me be very clear what we are talking about today. The ruling that
we are speaking about went against 40 years of precedence in reporting
workplace safety violations. Since 1972, every administration has
maintained that the 5-year retention period for recording work-related
injuries, illnesses, or death is standard practice. This DOL rule was
simply put in place to codify and create some consistency that will
benefit both employers and employees.
Thank you, President Obama, who recognized that it is not the Member
of Congress who may slip on a rug in their privileged manner of coming
to this august body and voting, but it is, in fact, the workers who
come every day and pick up your garbage, the sanitation workers, the
same workers that Dr. King went to Memphis to stand up for and the
individuals who, because of their work, are susceptible to injuries
more often than not.
Individuals who work in construction, who help build our houses and
hospitals and tall skyscrapers, what excuse can we give for not
maintaining the standards of keeping and reporting those injuries for a
period of 5 years and the retention of such? Or those who work, for
example, in the area of railroads, railroad beds and railroad sites--
hard labor. Or those who work at our ports--hard labor.
So I rise to oppose disapproving the rule submitted by the Department
of Labor regarding OSHA, and I do so for the men and women who do the
heavy lifting.
I include in the Record a letter from AFSCME, which represents
municipal and county workers across America, establishing why we should
vote ``no'' on this.
American Federation of State, County and Municipal
Employees, AFL-CIO,
Washington, DC, February 28, 2017.
House of Representatives,
Washington, DC.
Dear Representative: On behalf of the 1.6 million members
of the American Federation of State, County and Municipal
Employees (AFSCME), I'm writing to urge you to oppose H.J.
Res. 83, which would abolish an Occupational Safety and
Health Administration (OSHA) rule that clarifies an
employer's responsibility to maintain accurate records of
serious work-related injuries and illnesses.
The new OSHA rule creates NO new compliance or reporting
obligations and imposes no new costs on employers.
The 1970 law creating OSHA explicitly directed the agency
to ``prescribe regulations requiring employers to maintain
accurate records of and to make periodic reports on, work-
related deaths, injuries and illnesses other than minor
injuries . . . .'' Since the first recordkeeping regulations
issued in 1972, OSHA has required employers to record
workplace injuries on an ``OSHA log'' within seven days of
the injury and to maintain the records of the log and annual
summary of the log for five years. Every Republican and
Democratic administration since 1972 has interpreted this
employer obligation to make and maintain accurate records to
be ongoing from the date of the injury or illness until the
five-year retention period expires. OSHA issued this
clarifying regulation in December 2016 in response to a court
decision that dramatically limited OSHA's enforcement of
injury recordkeeping regulation to a six-month period. OSHA's
clarifying rule simply restores the standard to one employers
have known and complied with for 45 years.
H.J. Res. 83 would strip OSHA of its enforcement authority
and harm workplace safety.
Passage of this Congressional Review Act Resolution of
Disapproval would enable employers who deliberately and
recklessly break the law to avoid any penalties for
systemically failing to report or underreporting
[[Page H1424]]
injuries over many years. They would be able to cover up or
mask longstanding workplace hazards that need correcting.
OSHA has limited resources and, on average, can inspect a
workplace once every 140 years. OSHA relies upon reliable
injury and illness data to prioritize its resources to those
workplaces that present the greatest hazards to workers. H.J.
Res. 83 would remove OSHA's enforcement ability to protect
workers from the most dangerous and significant hazards.
Workplace injuries are real. Last year, a GAO report found
workplace violence is a serious concern for the approximately
15 million health care workers in the United States, but the
full extent of injuries that are the result of workplace
violence is unknown because of underreporting. Accurate
reporting would help OSHA, employers, workers and their
representatives respond more effectively to this prevalent
workplace hazard. H.J. Res. 83 would jeopardize the progress
that could be made on workplace violence and other workplace
injuries by blocking this basic reporting and recordkeeping
rule or a similar rule in the future.
We oppose H.R. Res. 83 and urge you to stand with workers
by rejecting this resolution.
Sincerely,
Scott Frey,
Director of Federal Government Affairs.
Ms. JACKSON LEE. H.J. Res. 83 is wrong. It is wrong because it goes
against the hardworking people.
I also include in the Record, Mr. Speaker, a letter from the
International Brotherhood of Teamsters disapproving of H.J. Res. 83.
International Brotherhood
of Teamsters,
Washington, DC, February 27, 2017.
House of Representatives,
Washington, DC.
Dear Representative: On behalf of the 1.4 million members
of the International Brotherhood of Teamsters, I urge you to
oppose H.J. Res. 83, disapproving the rule submitted by the
Department of Labor relating to ``Clarification of Employer's
Continuing Obligation to Make and Maintain an Accurate Record
of Each Recordable Injury and Illness.'' Disapproving this
rule would undermine safety in some of the nation's most
dangerous industries, many of which employ Teamsters.
The rule does not impose new costs on employers and simply
reaffirms OSHA's ability to enforce injury and illness
recordkeeping. This rule became necessary when a 2012 court
decision overturned policy that had been in place for 40
years by limiting enforcement of OSHA's injury recordkeeping
regulations to a six month period. OSHA publishes the data
that it collects from employers on worksite injury and
illness which is then utilized by employers, unions, and
workers to identify and fix workplace hazards. With limited
resources, OSHA also utilizes the data to target its
enforcement and compliance activities to the most dangerous
workplaces thus making it essential that OSHA have accurate
information. With under-reporting of injury and illness data
already a major issue, it makes no sense to effectively strip
OSHA of its ability to enforce reporting requirements as this
ultimately impacts workplace safety. Congress should be
working to improve work place safety not undermine it, and
voting for H.J. Res 83 will ultimately harm working men and
women.
I urge you to oppose H.J. Res. 83 to protect OSHA's ability
to enforce accurate injury and illness reporting and to
ensure workers have a safe and healthy workplace.
Sincerely,
James P. Hoffa,
General President.
Ms. JACKSON LEE. Mr. Speaker, I stand with the workers.
Mr. Speaker, I rise in strong opposition to H.J. Res. 83, a
resolution ``Disapproving Department of Labor Rule Relating to
Clarification of Employer's Continuing Obligation to Make And Maintain
an Accurate Record of Each Recordable Injury And Illness.''
I oppose this bill because it will harm workers who depend on the
Occupation Health and Safety Administration to ensure that their
workplaces are safe. H.J. Res. 83 will undermine workplace health and
safety and make it impossible for OSHA to ensure that injury and
illness records are complete and accurate.
Accurate records are needed to ensure OSHA focuses its limited
resources on the nation's most dangerous workplaces, instead of wasting
time in workplaces with low risk.
The Department of Labor rule at issue here does not create any new
obligations.
OSHA has enforced injury recordkeeping requirements by reviewing the
last five years of an employer's records throughout its entire history,
under every administration.
In 2012, a court decision limited enforcement of OSHA's injury
recordkeeping regulations to a six month period--a dramatic departure
from the last OSHA's 40 year policy and practice.
The 2016 rule simply allows OSHA to continue this practice.
Mr. Speaker, complete and accurate information on work-related
injuries and illnesses is important.
The Occupational Safety and Health Act of 1970 directs the Secretary
of Labor to ``prescribe regulations requiring employers to maintain
accurate records of, and make periodic reports on, work-related deaths,
injuries and illnesses other than minor injuries.''
Since the early 1970's, OSHA has required construction employers to
keep these records.
The records are used by employers, workers, and unions at the
workplace to identify hazardous conditions, and take corrective action
to prevent future injuries and exposures.
Both positive and negative injury trends are tracked on a national
scale, allowing limited prevention resources to be targeted
effectively.
Most importantly, OSHA relies on the records to target its
enforcement and compliance assistance activities to dangerous
workplaces.
No employer, union, or individual could possibly want OSHA inspecting
safe workplaces rather than hazardous ones, but without accurate
information, this will happen.
Disapproval of the new rule puts construction workers lives in
danger.
Without the new rule, it will be impossible for OSHA to effectively
enforce recordkeeping requirements and assure that injury and illness
records are complete and accurate.
Underreporting of injuries and illnesses is already a huge problem,
and without enforcement, this will get much worse.
It will undermine safety and health and put workers in danger.
I strongly oppose H.J. Res. 83 and urge all Members to vote against
this ill-conceived and unwise legislation.
Mr. BYRNE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the gentleman from Virginia referred to continuing
violations. There is no provision in this law for continuing
violations.
Looking again at the court's decision. They said this: the statute of
limitation provides that ``no citation may be issued . . . after the
expiration of six months following the occurrence of any violation.''
They go on to say this: ``Like the Supreme Court, we think the word
`occurrence' clearly refers to a discrete antecedent event--something
that `happened' or `came to pass' `in the past.' ''
By any common definition, there was no occurrence; i.e., no discrete
action, event, or incident, no coming about, and no process of
happening within the requisite 6 months. You can't take that wording
and slip into it a continuing violation requirement unless you change
the statute. The agency can't change the statute.
The court, in its decision on the Volks rule, also looked at
something very important, and that is: Why do we require this agency to
do its work in a good period of time?
It says: ``Nothing in this statute suggests Congress sought to endow
this bureaucracy with the power to hold a discrete record-making
violation over employers for years, and then cite the employer long
after the opportunity to actually improve the workplace has passed.''
In other words, we gave the agency 6 months to do its job, and it
should do its job.
Now, other people have looked at this, people who are experts in
workplace safety. I refer you, Mr. Speaker, to a letter that was
written on October 27, 2015, by the American Society of Safety
Engineers, which I include in the Record.
American Society of
Safety Engineers,
Park Ridge, IL, October 27, 2015.
Re ASSE Comments on OSHA Notice of Proposed Rule
Clarification of Employer's Continuing Obligation to Make
and Maintain an Accurate Record of Each Recordable Injury
and Illness [Docket No: OSHA-2015-0006].
Hon. David Michaels,
Assistant Secretary, Occupational Safety and Health
Administration, OSHA Docket Office, U.S. Department of
Labor, Washington, DC.
Dear Assistant Secretary Michaels: As you well know, the
more than 37,000 member safety, health and environmental
(SH&E) professionals of the American Society of Safety
Engineers (ASSE) intimately know the details of collecting
workplace injury and illness data, recording that data for
employers, and the careful work needed to report that data to
the Occupational Safety and Health Administration (OSHA).
Perhaps more than any stakeholders, our members understand
the value of this data in managing workplace safety and
health risks as well as its appropriate use by OSHA in
developing better means to focus the agency's resources on
the most difficult risks facing American workers. Our members
use injury and illness data to help them protect workers.
They expect no less of an effective OSHA.
That being said, ASSE cannot support the requirement that
employers have a duty to record an injury or illness
continues for the full duration of the rccord-retention-and-
access period--five years after the end of the
[[Page H1425]]
calendar year in which the injury or illness became
recordable--that OSHA proposes in its July 29, 2015 Notice of
Proposed Rulemaking (NPR) Clarification of Employer's
Continuing Obligation to Make and Maintain an Accurate Record
of Each Recordable Injury and Illness [Docket No: OSHA-2015-
0006]. ASSE respectfully opposes the adoption of a Final Rule
as proposed in this rulemaking for the reasons that follow.
nature of violations
ASSE members do not look at the issues raised in this
rulemaking with the same viewpoint of the occupational safety
and health bar that, no doubt, will provide substantive legal
arguments against the case OSHA makes for addressing the
Volks II decision through this rulemaking. Rather, our
members' view is a practical one that comes from years of
experience on the job as the professionals charged with
meeting OSHA's recordkeeping requirements.
Our members know the inadvertent mistakes they themselves
can make in recordkeeping and reporting. They also know what
they typically find when they are hired by a company to help
improve workplace safety and health. As they assess the
workplace's risks and past safety performance to help them
develop safety and health management plans, the reporting
mistakes our members typically find are not very often the
worst cases that, unfortunately, seem to be creating this
rulemaking. The errors in reporting they see are, by far,
minor, isolated, and, if continuing, it is only in the sense
that a typo can be repeated day after day.
They also see mistakes that come from a widespread lack of
understanding of OSHA's detailed reporting requirements. When
seasoned safety and health professionals consistently use
ASSE's educational conferences, our social media, and
opportunities to meet with OSHA staff through the ASSE-OSHA
Alliance to get the best and latest information about OSHA
recordkeeping requirements, we know that, even for them, the
task of meeting those requirements can be too often
confusing. Given that the vast majority of employers report
to OSHA without the help of a safety and health professional,
it is not difficult to see that the significant increase in
records retention that OSHA is attempting to require of
employers here will not succeed in a significant impact on
safety and health among American workers.
unintended consequences
No reporting error is excusable. But a company's errors to
which OSHA is determined to have access to for a period that
can be up to six years through this rulemaking will not very
often correlate to the risks facing workers, especially the
risks a safety and health professional is trying to address
for the company in the present. The statements OSHA makes
about the value of data collected through current injury and
illness recordkeeping are merely conclusory and are counter
to our members' experience.
Measured against our members' belief that the additional
data will provide little help to them or OSHA, they are
particularly concerned that this rulemaking can only succeed
in driving more employers towards greater expectations that
safety and health professionals will focus energy and
resources on collecting and reporting the lagging indicators
that OSHA requires, taking them away from risk assessment and
management tasks and their efforts to move their employers
towards performance measurements based on leading indicators
that we know can better measure a company's safety and health
performance.
Many of our members, especially those who work in or for
mid-sized and small companies, face a difficult uphill climb
in selling their employers risk management and moving from
lagging to leading indicates. We know OSHA values these
approaches also. But when OSHA uses its limited resources to
focus on measures that do not reflect cutting-edge safety
principles and push our members' efforts backwards, OSHA is
making their job more difficult. Our members value OSHA but
want an OSHA that works with them to advance the best ideas
for advancing workplace safety and health. Requiring this
data to be available for OSHA's use for nearly six years does
not meet our members' hope for an effective OSHA.
direct burden
ASSE is also concerned that the OSHA's estimates of the
direct burden this rulemaking will place on employers are
inadequate. The economic analysis states that there will not
be a new cost burden. This was based on a 2001 analysis that
it takes 0.38 hour to record an injury or illness, with a
total cost per case of $17.75. From an informal survey of
involved ASSE members, a more realistic estimate is that an
hour is needed for each case over the five-year period,
taking into account the variety of tasks involved, including
determining if there was medical treatment beyond first aid,
verifying lost and restricted day counts, and adjusting for
changes in the status of a case. An updated economic analysis
is needed, which we urge OSHA to conduct before a Final Rule
is proposed.
a measure of the problem
Related to our members' concern over the rulemaking's
direct burdens on employers is OSHA's failure to discuss in
the NPR why OSHA faces such difficulty in obtaining adequate
data from employers. No doubt, employers are responsible for
meeting OSHA's reporting requirements. Our members suspect
that OSHA's reporting rules and. deadlines are not effective
and cost employers unnecessarily.
Before requiring more extensive reporting, it would be
helpful both to OSHA and the safety and health community to
know more about why employers do not report. How many
employers blatantly disregard the requirements and how many
are simply making errors? What do employers and their workers
not understand about the requirements? What training or level
of expertise would help fill the gaps in reporting that OSHA
believes exist? We urge OSHA to examine these issues as an.
extension of its economic analysis. With more knowledge,
there may be better ways to address recordkeeping that can
support better employer reporting.
conclusion
As we say above, our members want a strong and effective
OSHA, But their view of an effective OSHA is an OSHA that can
embrace the best our members already understand about how to
achieve safe and healthy workplaces. An OSHA injury and
illness prevention plan standard that is truly risk-based
would help make OSHA more effective. Greater reliance on
control banding to achieve better protection limits, as we
have recently suggested to OSHA, would. Establishing
professional competencies to define ``competent person'' in
OSHA standards would. Finding a better way to update
consensus standards in OSHA's standards would. Rethinking
OSHA's reporting requirements to help move employers towards
leading indicators and more advanced ways to measure safety
performance certainly would. The areas where OSHA and our
members agree on making OSHA more effective are many. Adding
lengthier reporting burdens that will do little to help OSHA,
employers or occupational safety and health professionals
better manage workplace safety and hcalth will not.
As always, ASSE is more than willing to discuss these
concerns further. Thank you for listening to our members'
views.
Sincerely,
Michael Belcher, CSP,
President.
Mr. BYRNE. What it says is that this regulation does nothing to
enhance workplace safety. That is from the American Society of Safety
Engineers.
Also opposing this regulation is the Coalition for Workplace Safety.
I include in the Record a letter from them dated February 17 of this
year.
Coalition for Workplace Safety,
February 17, 2017.
Hon. Paul Ryan
Speaker, House of Representatives,
Washington, DC.
Hon. Kevin McCarthy,
Majority Leader, House of Representatives,
Washington, DC.
Hon. Steve Scalise,
Majority Whip, House of Representatives,
Washington, DC.
Hon. Virginia Foxx
Chairwoman, Committee on Education & the Workforce,
Washington, DC.
Hon. Bradley Byrne,
Chairman, Subcommittee on Workforce Protections, Washington,
DC.
Dear Speaker Ryan, Majority Leader McCarthy, Majority Whip
Scalise, Chairwoman Foxx, and Chairman Byrne: The undersigned
groups strongly urge you to introduce and move a
Congressional Review Act (CRA) joint resolution of
disapproval to invalidate the Obama Administration's OSHA
regulation overturning the decision in Volks regarding the
statute of limitations for recordkeeping violations.
At its core, the Volks Rule is an extreme abuse of
authority by a federal agency that will subject millions of
American businesses to citations for paperwork violations,
while doing nothing to improve worker health and safety.
Finalized on December 19, 2016, the rule attempts to extend
to five years the explicit six month statute of limitations
on recordkeeping violations in the Occupational Safety and
Health (OSH) Act of 1970. This regulation simultaneously
represents one of the most egregious end runs around
Congress' power to write the laws and a clear challenge to
the judicial branch's authority to prevent an agency from
exceeding its authority to interpret the law.
In 2012, citing the unambiguous language in the OSH Act,
the U.S. Court of Appeals for the District of Columbia held
that OSHA could not sustain citations against an employer for
alleged recordkeeping violations that occurred more than six
months before the issuance of the citation because, as the
employer asserted, they were outside the six month statute of
limitations set forth in the OSH Act. The court was
unequivocal in its rebuke of OSHA. Judge Janice Rogers Brown
expressed particular concern on the issue of the agency's
overstepping its authority: ``we were rightly troubled by the
notion of being asked by an agency to expand that agency's
enforcement authority when Congress had evidently not seen
fit to do so.'' Judge Merrick Garland, in his concurrence,
plainly rejected OSHA's rationale for issuing the fines,
``the Secretary's contention--that the regulations that Volks
was cited for violating support a `continuing violation'
theory--is not reasonable.'' The Volks decision has since
been endorsed by the Fifth Circuit in the Delek decision,
issued in December 2016, where the court found ``its
reasoning persuasive.''
[[Page H1426]]
In response to the Court of Appeals ruling, OSHA
promulgated this regulation specifically to negate the Volks
case ruling and extend liability for paperwork violations
beyond the six month window permitted under the Act. OSHA
issued the final rule in the waning days of President Obama's
Administration with an effective date of January 19, 2017.
Although the regulation was issued in December, it was not
submitted to Congress until January 4, meaning that the
window for CRA consideration is for a regulation that has
just been issued, and is therefore shorter than if it was
being considered under the ``reset'' provisions of the CRA.
We urge you to help put a stop to OSHA's abuse of its
authority and support swift passage of a joint resolution of
disapproval for this burdensome, unlawful rule. Because the
final rule directly contradicts both clear statutory language
and two U.S. Courts of Appeals rulings, it must not be
allowed to stand.
Thank you for your consideration of this request and for
your continued efforts to rein in agency overreach and reduce
the regulatory burden on America's job creators.
Sincerely,
Air Conditioning Contractors of America; American Bakers
Association; American Coke and Coal Chemicals Institute;
American Composites Manufacturers Association; American Farm
Bureau Federation; American Feed Industry Association;
American Foundry Society; American Fuel and Petrochemical
Manufacturers; American Health Care Association; American
Iron and Steel Institute; American Road and Transportation
Builders Association; American Society of Concrete
Contractors; American Subcontractors Association, Inc.;
American Supply Association; American Trucking
Associations.
Asphalt Roofing Manufacturers Association; Associated
Builders and Contractors; Associated General Contractors;
Associated Wire Rope Fabricators; Copper & Brass Fabricators
Council, Inc.; Corn Refiners Association; Distribution
Contractors Association; Flexible Packaging Association;
Global Cold Chain Alliance; Independent Electrical
Contractors; Industrial Minerals Association--North America;
Institute of Makers of Explosives; International Dairy Foods
Association; International Foodservice Distributors
Association; International Franchise Association.
International Warehouse Logistics Association; IPC-
Association Connecting Electronics Industries; Leading
Builders of America; Mason Contractors Association of
America; Mechanical Contractors Association of America; Mike
Ray; Motor & Equipment Manufacturers Association; National
Association for Surface Finishing; National Association of
Home Builders; National Association of Manufacturers;
National Association of Professional Employer Organizations;
National Association of the Remodeling Industry; National
Association of Wholesaler-Distributors; National Automobile
Dealers Association; National Center for Assisted Living;
National Chicken Council.
National Cotton Ginners' Association; National Demolition
Association; National Electrical Contractors Association;
National Federation of Independent Business; National Grain
and Feed Association; National Lumber and Building Material
Dealers Association; National Oilseed Processors Association;
National Restaurant Association; National Retail Federation;
National Roofing Contractors Association; National School
Transportation Association; National Tooling and Machining
Association; National Turkey Federation; National Utility
Contractors Association; Non-Ferrous Founders' Society; North
American Die Casting Association; North American Meat
Institute.
Plastics Industry Association (PLASTICS); Power and
Communication Contractors Association; Precision Machined
Products Association; Precision Metalforming Association;
Printing Industries of America; Retail Industry Leaders
Association; Sheet Metal and Air Conditioning Contractors
National Association; Shipbuilders Council of America;
Southeastern Cotton Ginners Association, Inc.; Texas Cotton
Ginners' Association; The Association of Union Constructors
(TAUC); Thomas W. Lawrence, Jr.--Safety and Compliance
Management; Tile Roofing Institute; Tree Care Industry
Association; TRSA--The Linen, Uniform and Facility Services
Association; U.S. Chamber of Commerce; U.S. Poultry & Egg
Association.
Mr. BYRNE. To the point, there is nothing in this statute that allows
for continuing violations, and there is nothing in this regulation that
provides for workplace safety. This is a power grab by an agency in
violation of its authorizing statute and by a clear decision of this
circuit court of appeals.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may
consume before I yield to the gentleman from Florida.
The law requires the keeping the records for 5 years. If there are
bogus records, you ought to have an obligation to keep them correct.
That has been the interpretation for 40 years, up until this decision.
We need the money to do their job. If they do their job, if we
provide them with some funding, they can show up more than once every
140-some years.
We keep talking about a court decision that affected another
resolution, not this one.
Mr. Speaker, I yield 1 minute to the gentleman from Florida (Mr.
Soto).
Mr. SOTO. Mr. Speaker, this is a simple issue: Do we want to make
workplaces safer? Do we want to keep workers from getting hurt on the
job? Of course, we do.
In order to protect workers, we need good data on where injuries are
happening so we can work with employers to stop them.
Sometimes the other side says commonsense protections like this are
too expensive or they kill jobs or they stifle innovation. None of
those is even remotely true here.
The protections this resolution would take away cost nothing.
Responsible employers are already keeping these records. That is why
the coalition opposing this resolution includes workers rights
advocates and a whole lot of other folks like public health
practitioners. These are not political people. These are just people
who work every day to help Americans lead safe, healthy lives.
This is not about President Obama or power grabs. It is about
protecting the American worker.
The 6-month period is a setup which will lead to less enforcement.
Rather than eliminating the rule, let's codify it and use the
information we collect to continue to evolve our laws to protect
workers.
I urge my colleagues to vote ``no.''
Mr. BYRNE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would remind the gentleman that the experts on this,
the American Society of Safety Engineers, have said that this
regulation does not enhance workplace safety. So if we are about
workplace safety, this regulation isn't it. Let's talk about something
that will help with workplace safety, not something that is a lawless
power grab by a Federal agency.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield 2 minutes to the
gentleman from California (Mr. Takano), a hardworking member of the
Committee on Education and the Workforce.
Mr. TAKANO. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I rise today in opposition to rolling back workplace
safety protections for American workers. This use of the Congressional
Review Act would endanger employees and throw away four decades of
precedent for the sole purpose of protecting companies that repeatedly
violate safety standards.
The Occupational Safety and Health Administration, commonly known as
OSHA, is among the best tools we have to ensure that companies adhere
to basic safety standards. Because the agency's budget is so small
compared to its critical task, OSHA relies on accurate data to focus on
the companies that pose the greatest danger to employees.
The previous administration sought to clarify and codify the
responsibility companies have to maintain an honest record of their
employees' injuries and illnesses. This resolution would undermine
OSHA's ability to target serial offenders by removing companies'
obligation to keep reliable data about safety issues in the workplace.
If passed into law, the resolution would essentially grant amnesty to
companies with years of workplace safety violations, while sending a
clear message to employers that the Federal Government is no longer
committed to worker safety.
Mr. Speaker, I have asked the question many times since the President
took office, and I will ask it again today: How does this give power
back to the people? How does undermining workplace safety regulations
support middle class Americans? How does protecting companies that
repeatedly violate safety standards improve the life of workers? The
answer is that it doesn't.
I call on my colleagues to stand with working Americans who deserve a
safe workplace and vote ``no'' on this resolution.
Mr. Speaker, I include in the Record a letter from the UAW opposing
the repeal of this rule and also a letter from National Nurses United
in opposition to H.J. Res. 83.
[[Page H1427]]
UAW,
February 28, 2017.
Dear Representatives: On behalf of the more than one
million active and retired members of the International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, we strongly urge you to
oppose H.J. Res 83. This misguided resolution undermines
workplace health and safety standards in the most dangerous
industries. The proposed legislation will make it much harder
for the Occupation Safety and Health Administration (OSHA) to
ensure the safety and health of America's workers.
Since the early 1970s, OSHA has required employers to
maintain a safety record for five years and make reports to
the Department of Labor (DOL). These records are used by
workers and employers to identify hazards, fix them, and most
importantly, keep accidents from happening in the future. DOL
utilizes these records to publish statistics on workplace
injury and illness rates and OSHA relies on them to allocate
scarce resources.
OSHA issued the recordkeeping rule to clarify an employer's
responsibility to maintain a safe workplace. The rule does
not impose any new costs or obligations on employers and only
covers larger businesses with the most high risk occupations.
Accurate injury and illness records are critically
important for workers and their families. Having the
necessary tools to collect complete and accurate data on
work-related injuries and illnesses is a key component in
reducing, mitigating, and eliminating hazards and deaths in
the workplace.
Historically, OSHA has assessed and enforced injury
recordkeeping requirements under every administration. In
turn, workers in America have enjoyed a much safer work
environment. We must not take away or reduce OSHA's role in
improving health and safety conditions for workers and we
must ensure the accuracy of the reporting requirements.
Tremendous gains have been made in workplace hazard
reporting. We cannot go backwards.
The UAW members have a long and storied history of securing
workplace protections for all of America's workers. This bill
undermines those gains and more than 40 years of solid
science and practice.
We urge you to resoundingly reject H.J. Res 83 and vote No
when it comes to the floor.
Sincerely,
Josh Nassar,
Legislative Director.
____
National Nurses United,
February 27, 2017.
Re Letter in Opposition to H.J. Res. 83, Congressional Review
Act Resolution to Block OSHA Injury and Illness
Recordkeeping Clarification Rule.
Hon. Virginia Foxx,
Chair, Committee on Education and the Workforce, House of
Representatives, Washington, DC.
Hon. Robert Scott,
Ranking Member, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Chairwoman Foxx and Ranking Member Scott: On behalf of
over 150,000 members across the country and as the largest
organization representing registered nurses in the United
States, National Nurses United (NNU) urges you to oppose H.J.
Res. 83, which would block the Occupational Safety and Health
Administration's (OSHA) final rule clarifying employers'
continuing obligations to record workplace injuries and
illnesses. By revoking OSHA's authority to enforce
recordkeeping requirements, this Congressional Review Act
(CRA) resolution denudes the agency of the tools necessary to
identify and target patterns of workplace hazards. These
recordkeeping requirements are fundamental to OSHA's ability
to protect workers from job-related health and safety
hazards. But H.J. Res. 83 would leave OSHA with no functional
mechanism to protect workers from longstanding workplace
hazards--health and safety dangers on the job would go
undisclosed and uncorrected. Congress must oppose this GRA
resolution lest it place the health and safety of workers in
serious jeopardy.
The published final rule, known as the ``Volks Rule,'' is a
common-sense measure meant to align OSHA regulations with its
40-year-long practice of enforcing employer injury and
illness recordkeeping requirements as continuing violations
under of the Occupational Safety and Health Act of 1970 (OSH
Act). Under the OSH Act, Congress authorized OSHA to
promulgate rules requiring employers to maintain accurate
records of workplace injuries and illnesses. Since 1972,
under multiple Republican and Democratic Administrations,
OSHA has required most employers to make and maintain records
of workplace injuries and illnesses for five years from the
date of the injury or illness. Each OSHA Administration has
determined that the five-year record maintenance requirements
were continuing obligations of employers and that OSHA
citations could be issued if a violation were identified any
time within that five-year period. But a 2012 decision by the
D.C. Circuit Court of Appeals in Volks Constructors v.
Secretary of Labor held that OSHA could not issue a
recordkeeping citation beyond a six-month period despite the
long-standing five-year recordkeeping requirements. There was
a gap in OSHA regulations, and the Volks Rule would fix it,
making agency recordkeeping rules consistent with its
decades-long enforcement practices.
To fulfill its statutory duties to protect America's
workforce from workplace safety and health hazards, OSHA
depends on its ability to enforce injury and illness
recordkeeping requirements. For OSHA to identify workplace
hazards and to develop effective means to correct those
hazards, complete and accurate information about what, where,
when, and how injuries and illnesses occur in the workplace
is vital. OSHA uses this information to develop injury
prevention plans and to efficiently direct OSHA's scarce
resources to worksites that pose the most serious hazards for
workers. Reliable workplace injury data is also fundamental
to the development and maintenance of effective occupational
health and safety standards. Moreover, federal, state, and
local officials also need reliable injury and illness data
during procurement processes, ensuring that taxpayer dollars
to contractors and subcontractors are going to fair and safe
workplaces.
The elimination of OSHA's ability to enforce rules on
workplace safety records allows--and even incentivizes--
employers to obscure ongoing workplace hazards. It would be
nearly impossible for OSHA to identify a recordkeeping
violation and conduct a comprehensive investigation within
six months of the injury or illness, instead of the full
five-year recordkeeping period. Chronic underreporting--left
unchecked if the Volks Rule was halted--erodes OSHA
inspectors' ability to enforce the country's occupational
health and safety laws and allows patterns of serious health
and safety violations to persist. The CRA resolution would
gravely weaken workplace health and safety protections,
exposing workers to serious harm while on the job.
Because workers deserve the full and effective enforcement
of the panoply of our worker protection laws, NNU urges you
to oppose H.J. Res. 83.
Sincerely,
Bonnie Castillo, RN,
Director of Health and Safety.
Mr. BYRNE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I appreciate the comments of the gentleman from
California. He said that, if we pass this resolution, we will be
granting amnesty to bad actors. We are not granting amnesty to bad
actors. They will have no amnesty if OSHA does its job in a timely
fashion. Five years is not timely under anybody's commonsense
definition. They need to do their job within the 6 months that we have
allowed for them to do it, and they have the tools to do their job
within 6 months.
So there is no amnesty being granted here. We are expecting a Federal
agency that has a lot of money and has a lot of power to simply do its
job within 6 months, and they come forward and try to make a new
statute of limitations because they don't do their job within 6 months.
I say to this body, I would say to people outside this body, it is
time for OSHA to get its job done in the time allotted by the United
States Congress and not come running out with some unilateral change in
the statute which they have no power to do because, for some reason,
they don't think they can do it.
Mr. Speaker, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, there are 2,000 inspectors at OSHA. There are 8 million
work sites. We can't expect them to visit every 6 months when the
funding only allows them to visit each workplace once every 140-some
years. You would have to show up at each place every 6 months to catch
these violations within that timeframe.
Mr. Speaker, for 40 years, the obligation to record these injuries
has been considered a continuing obligation. If the purpose is to
overrule the regulation because it is inconsistent with the statute,
then we should fix the statute. But this resolution just gives relief
to those who fail to record injuries and illnesses in violation of
their legal obligation to do so.
As Americans discover the plan to repeal this OSHA rule through a
resolution of disapproval, there are a lot of professional
organizations, in addition to the ones that have already been
introduced, that have been alarmed by this resolution.
The American Public Health Association has written:
Injury and illness records are invaluable for employers,
workers and OSHA to monitor the cause and trends of illnesses
and injuries. Such data is essential for determining
appropriate interventions to prevent other workers from
experiencing the same harm. . . . For decades, the public
health community and government agencies have identified a
widespread undercount of work-related injuries and illnesses.
This includes investigations by the GAO, the Bureau of Labor
Statistics and academic researchers. H.J. Res. 83
[[Page H1428]]
will have dire consequences for injury prevention and
undermine 40 years of occupational injury surveillance in the
United States.
The AFL-CIO has written:
In the absence of enforcement, there is no question that
the underreporting of injuries, already a widespread problem,
will get much worse, undermining safety and health and
putting workers in danger.
{time} 1600
A group of 66 professional workplace safety groups wrote:
The OSHA clarifying rule on maintaining accurate records
imposes no new costs to business, but is critical to assuring
that workplace fatalities and injuries are prevented.
Mr. Speaker, I include these letters in the Record.
AFL-CIO
Legislative Alert,
February 27, 2017.
Dear Representative: The AFL-CIO urges you to oppose H.J.
Res 83, a Congressional Review Act Resolution of Disapproval
that would repeal an Occupational Safety and Health
Administration (OSHA) rule that clarifies an employer's
responsibility to maintain accurate records of serious work-
related injuries and illnesses. This resolution will make it
impossible for OSHA to ensure that injury and illness records
are complete and accurate and undermine workplace health and
safety.
The rule, issued in December 2016, is in response to a
court decision that limited enforcement of OSHA's injury
recordkeeping regulations to a six month period--a dramatic
departure from OSHA's 40 year policy and practice. The six
month restriction makes it impossible for OSHA to enforce the
Act's injury recordkeeping requirements, since OSHA does not
have the resources to conduct regular inspections of even the
most hazardous workplaces. Indeed, currently federal OSHA is
only able to inspect workplaces on average, only once every
140 years. The new rule creates no new obligations on
employers. It simply makes clear that employers have a
responsibility to maintain accurate injury and illness
records for 5 years and during this time can be held
accountable for violations if records are not complete and
accurate.
The collection of complete and accurate information on
work-related injuries and illnesses is a cornerstone of the
Occupational Safety and Health Act of 1970. The Act directs
the Secretary of Labor to ``prescribe regulations requiring
employers to maintain accurate records of, and make periodic
reports on, work-related deaths, injuries and illnesses other
than minor injuries.'' Since the early 1970's, OSHA has
required employers in the more hazardous industries to keep
these records and make reports to the Department of Labor.
These records form the basis of the Bureau of Labor
Statistics' (BLS) work-related injury and illness statistics
which are used to identify high-risk industries and
occupations and emerging problems and to track progress. OSHA
relies on the records to target its enforcement and
compliance assistance activities to dangerous workplaces. And
the records are used by employers, workers and unions at the
workplace to identify hazardous conditions and take
corrective action to prevent future injuries and exposures.
To ensure the accuracy of this critical information,
throughout its entire history, under every administration,
OSHA enforced injury recordkeeping requirements by reviewing
the last five years of an employer's records. This
comprehensive assessment allowed the agency to identify
widespread underreporting by some employers, which was
masking serious injuries and hazards. OSHA was able to take
strong enforcement action which brought about changes in
injury recordkeeping practices, but also led to significant
safety and health improvements to address hazards and prevent
future injuries.
Without the new rule, it will be impossible for OSHA to
effectively enforce recordkeeping requirements and assure
that injury and illness records are complete and accurate. In
the absence of enforcement, there is no question that the
underreporting of injuries, already a widespread problem,
will get much worse, undermining safety and health and
putting workers in danger.
The AFL-CIO asks you to stand up for the safety and health
of American workers and to reject H.J. Res. 83.
Sincerely,
William Samuel,
Director, Government Affairs Department.
____
American Public
Health Association,
Washington, DC, February 27, 2017.
Hon. Virginia Foxx,
Chair, Committee on Education and the Workforce, Washington,
DC.
Hon. Robert C. Scott,
Ranking Member, Committee on Education and the Workforce,
Washington, DC.
Dear Chairwoman Foxx and Ranking Member Scott: On behalf of
the American Public Health Association, a diverse community
of public health professionals who champion the health of all
people and communities, I write to oppose H.J. Res. 83, a
resolution that would use the Congressional Review Act to
void an important Department of Labor policy which clarifies
an employer's obligation to make and maintain accurate
records of work-related injuries and illnesses. The
Occupational Safety and Health Administration issued this
regulation in December 2016 in response to an opinion issued
by the U.S. Court of Appeals for the D.C. Circuit.
Public health professionals understand the critical
importance of accurate information to help identify hazards
in order to develop and implement better health and safety
protections. One important source of that information is the
records some employers are required to keep on work-related
injuries and illnesses. These records are invaluable for
employers, workers and OSHA to monitor the cause and trends
of injuries and illnesses. Such data is essential for
determining appropriate interventions to prevent other
workers from experiencing the same harm.
The regulation clarified for employers their ongoing
obligation to maintain an accurate and complete record of
workplace injuries and illnesses. It reiterated a long-
standing policy that an employer's duty to record an injury
on an OSHA log does not expire. It explained to employers
that keeping a record of an injury is an ongoing requirement
even if an employer failed to record the injury or illness at
the time it occurred. OSHA requires employers to keep and
maintain accurate records of injuries until the five-year
records retention period expires.
For decades, the public health community and government
agencies have identified a widespread undercount of work-
related injuries and illnesses. This includes investigations
by the Government Accountability Office, the Bureau of Labor
Statistics and academic researchers. H.J. Res. 83 will have
dire consequences for injury prevention and undermine 40
years of occupational injury surveillance in the U.S.
We urge you to stand up for workers and workplace safety
and oppose this resolution.
Sincerely,
Georges C. Benjamin, MD.,
Executive Director.
____
February 28, 2017.
Hon. Paul Ryan,
Speaker of the House,
Washington, DC.
Hon. Nancy Pelosi,
Minority Leader,
Washington, DC.
Hon. Virginia Foxx,
Chair, Committee on Education and the Workforce, Washington,
DC.
Hon. Robert Scott,
Ranking Member, Committee on Education and the Workforce,
Washington, DC.
Dear Speaker Ryan, Minority Leader Pelosi, Chairman Foxx,
and Ranking Member Scott: We the undersigned organizations
write in strong opposition to H.J. Res 83, a Congressional
Review Act Resolution of Disapproval that would repeal an
Occupational Safety and Health Administration (OSHA) rule
that clarifies an employer's responsibility to maintain
accurate records of serious work related injuries and
illnesses. This resolution will undermine workplace health
and safety in the most dangerous industries.
This OSHA clarifying rule does not impose any new costs nor
any new obligations to covered employers, nor does it affect
small businesses. It simply clarifies OSHA's authority to
hold employers accountable for their longstanding obligation
to maintain accurate injury records, a requirement that has
been in effect since the Nixon Administration. Further, the
rule only covers larger employers in the most dangerous
industries.
For over 40 years, only larger employers in high hazard
industries have been required to maintain records of serious
work related injuries and illnesses. OSHA regulations, issued
in the 1970's, require employers to maintain records for five
years. Since then, the Department's longstanding position has
been that an employer had an ongoing duty to assure that
those records were accurate. The Department of Labor uses
these records as the basis for published statistics on
workplace injury and illness rates and OSHA uses them to
allocate scarce agency resources for compliance assistance
and enforcement. Employers use these records as a guide to
identify and fix job dangers that injure and maim workers.
This rule is needed because in 2012, a court decision
overturned 40 years of recordkeeping precedent and made it
impossible for OSHA to enforce against recordkeeping
violations in dangerous industries that are more than six
months old. One of the three judges indicated that OSHA could
enforce for continuing violations of its recordkeeping rule
if the agency clarified its regulation. The rule that is the
subject of H.J. Res 83 remedies the problem and clarifies
that OSHA may enforce for continuing violations for the
failure to record serious work related injuries and
illnesses.
Accurate injury and illness records are vitally important
to the protection of workers. They are the most important
tool that employers and government use to identify and
eliminate job hazards that kill over 4,800 workers a year and
seriously injure almost 3 million more. OSHA can only inspect
every workplace under its jurisdiction once every 140 years.
If employers have no obligation to maintain accurate records
during the five year retention period, worker health and
safety will be seriously jeopardized.
We are organizations that strongly support ensuring safer
workplaces and protecting workers from serious workplace
hazards. We ask you to stand with American workers and
[[Page H1429]]
oppose H.J. Res 83. The OSHA clarifying rule on maintaining
accurate records imposes no new costs to business, but is
critical to assuring that workplace fatalities and injuries
are prevented.
Sincerely,
9to5, National Association of Working Women; American
Federation of Government Employees; American Federation of
Labor--Congress of Industrial Organizations (AFL-CIO);
American Federation of Teachers (AFT); Asbestos Disease
Awareness Organization; Blue Green Alliance; Connecticut
Council on Occupational Safety and Health; Communication
Workers of America; Council of State and Territorial
Epidemiologists; District 1199C Training & Upgrading Fund;
Earthjustice; Economic Policy Institute Policy Center; Fair
World Project; Family Values @ Work; Farmworker Justice.
Fe y Justicia Worker Center; Food & Water Watch; Futures
Without Violence; Health Professional and Allied Employees
AFT/AFL-CIO; Institute for Science and Human Values, Inc.;
Interfaith Worker Justice; International Brotherhood of
Teamsters; International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America, UAW; Jobs with
Justice; Kentucky Equal Justice Center; Knox Area Workers'
Memorial Day Committee of Knoxville, Tennessee; Labor &
Employment Committee of the National Lawyers Guild; Labor
Project for Working Families.
Legal Aid at Work; Los Angeles Alliance for a New Economy
(LAANE); Massachusetts Law Reform Institute; NAACP; National
Center for Law and Economic Justice; National Employment
Lawyers Association; National Employment Law Project;
National Guestworker Alliance; National LGBTQ Task Force
Action Fund; National Organization for Women; National
Partnership for Women and Families; Natural Resources Defense
Council.
Nebraska Appleseed Center for Law in the Public Interest;
New Labor; New Rules for Global Finance; Occupational Health
Clinical Centers; Oxfam; Policy Matters Ohio; Progressive
Congress Action Fund; Public Citizen; Resisting Injustice and
Standing for Equality (RISE); Restaurant Opportunities
Centers United; Rhode Island Center for Justice; Santa Clara
County Wage Theft Coalition; Sargent Shriver National Center
on Poverty Law.
SafeWork Washington; Service Employees International Union
(SEIU); Southern Poverty Law Center (SPLC); Union of
Concerned Scientists; United Food and Commercial Workers
International Union (UFCW); UNITE HERE International Union;
United Support and Memorial for Workplace Fatalities (USMWF);
Washington State Labor Council, AFL-CIO; Western North
Carolina Workers' Center; Workers' Center of Central New
York; Workplace Fairness; Worksafe; WNYCOSH--Western New York
Council on Occupational Safety and Health.
Mr. SCOTT of Virginia. Mr. Speaker, I ask for a ``no'' vote.
I yield back the balance of my time.
Mr. BYRNE. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, I include in the Record a letter dated February 28,
2017, from the Associated General Contractors of America; a letter
dated February 28, 2017, from Associated Builders and Contractors; a
letter dated February 27, 2017, from the National Association of Home
Builders; and a letter dated February 28, 2017, from the United States
Chamber of Commerce.
The Associated General
Contractors of America,
Arlington, VA, February 28, 2017.
Re AGC Key Vote--Support Joint Resolution Disapproving of
``Volks Rule.''
Hon. Paul Ryan,
House of Representatives,
Washington, DC.
Dear Speaker Ryan: On behalf of the Associated General
Contractors of America (AGC) and its 26,000 commercial
construction company members, I strongly urge you to support
the Congressional Review Act (CRA) joint resolution of
disapproval to stop the Occupational Safety and Health
Administration's (OSHA) expansion of the statute of
limitations for recordkeeping violations in the ``Volks
Rule.'' AGC will score this vote as a key vote for the
education of its members on its congressional candidate
scorecards.
This resolution repeals a rule that was issued by OSHA as a
challenge to the judicial branch and congressional authority.
Section 9 of the Occupational Safety and Health Act
subsection (c) says ``No citation may be issued under this
section after the expiration of six months following the
occurrence of any violation.'' That seems pretty clear and
the courts agreed. In 2012, the U.S. Court of Appeals for the
District of Columbia Circuit held in AKM LLC dba Volks
Constructors v. Secretary of Labor that section 8(c) of the
OSH Act (the section that requires accurate recordkeeping)
does not supersede 9(c) and therefore does not permit a
continuing violation for paperwork errors and that the agency
is overstepping its authority. Additionally, in 2016 the
Fifth Circuit endorsed the Volks decision in Delek Ref. Ltd.
v. Occupational Safety & Health Review Commission. When OSHA
issued its rule, it deliberately and specifically designed
the rule to counter the ruling in the Volks case. Because the
final rule directly contradicts both clear statutory language
and two U.S. Courts of Appeals rulings, it must not be
allowed to stand.
The rule is designed to be punitive. It is a regulatory
attempt to expand opportunities to cite companies for
paperwork violations. It was issued in the waning days of the
Obama Administration as an attempt to get around the existing
statute of limitations for recordkeeping violations and
expand that limitation to sixty-six months. It creates no new
recordkeeping requirements. It does not change the data
required under recordkeeping requirements. It does not exempt
smaller companies from this regulation or these
investigations. It does not create any new, safer work
practices. The rule tells OSHA inspectors and company
employees to fix typos from years ago rather than walking the
jobsite, providing safety training or otherwise preventing
tomorrow's accidents. We take worker safety very seriously
and, unfortunately, OSHA's rule would require a colossal
misallocation of resources. That is why we urge you to
support the Congressional Review Act resolution.
Thank you for your consideration of this request.
Sincerely,
Jeffrey D. Shoaf,
Senior Executive Director,
Government Affairs.
____
Associated Builders and
Contractors, Inc.,
Washington, DC, February 28, 2017.
House of Representatives,
Washington, DC.
Dear Representative: On behalf of Associated Builders and
Contractors (ABC), a national construction industry trade
association with 70 chapters representing nearly 21,000
chapter members, I am writing to express our strong support
for H.J. Res. 83, introduced by Rep. Bradley Byrne (R-Ala.),
which would block implementation of the Occupational Safety
and Health Administration's (OSHA) ``Volks'' final rule. Also
known as Clarification of an Employer's Continuing Obligation
to Make and Maintain an Accurate Record of Each Recordable
Injury and Illness, the final rule extends the time period in
which an employer may be cited by OSHA for recordkeeping
violations from six months to up to five years. ABC urges you
to vote ``yes'' on H.J. Res. 83 and will consider this a KEY
VOTE for our 115th Congressional Scorecard.
Currently, the Occupational Safety and Health (OSH) Act
clearly states the statute of limitations for recordkeeping
violations is six months. The D.C. Circuit Court of Appeals
also unanimously issued a decision holding OSHA could not
issue a citation for a recordkeeping violation beyond the
six-month statute of limitations, and it was later endorsed
by the 5th Circuit Court of Appeals in the Delek case. The
Obama administration's final rule not only contradicts the
clear statutory language of the OSH Act, but also two federal
appeals courts.
Nullifying the ``Volks'' rule does not remove an employer's
obligation to record injuries or illnesses. OSHA still has
the right to cite employers for a recordkeeping violation
under the OSH Act. ABC members understand that safety and
health practices are inherently good for business; however,
this rulemaking does nothing to improve workplace safety and
is simply a paperwork burden. OSHA's promulgation of this
rulemaking is a clear overstepping of its authority and a
contradiction of the OSH Act and U.S. Court of Appeals
decisions.
We urge you to SUPPORT H.J. Res. 83 and we thank Rep. Byrne
for introducing this important resolution and look forward to
working with Congress to restore the rule of law.
Sincerely,
Kristen Swearingen,
Vice President of Legislative &
Political Affairs.
____
National Association of Home
Builders,
Washington, DC, February 27, 2017.
Hon. Paul Ryan,
Speaker, House of Representatives,
Washington, DC.
Dear Speaker Ryan: On behalf of the more than 140,000
members of the National Association of Home Builders (NAHB),
I write in strong support of H.J. Res 83. This important
legislation will disapprove OSHA's Volks Rule, which is
nothing more than a regulatory end run around Congress and
the courts. If this rule is not disapproved, small businesses
will be subject to recordkeeping paperwork violations that do
nothing to improve worker safety. NAHB is designating support
for passage of H.J. Res 83 as a KEY VOTE.
Finalized on December 19, 2016, the rule attempts to extend
to five years the explicit six-month statute of limitations
on recordkeeping paperwork violations in the Occupational
Safety and Health (OSH) Act of 1970. Subsequent court rulings
have affirmed applicability of the six-month statute of
limitations; nonetheless, the Agency proceeded with its
rulemaking. This regulation is an egregious end run around
Congress' power to write the laws and a clear challenge to
the judicial branch's authority to prevent an agency from
exceeding its authority to interpret the law.
Given the vast overstep the Volks Rule represents, one
might expect significant gains in worker health and safety as
the result. Unfortunately, that is simply not the
[[Page H1430]]
case. The Volks regulation only changes the window during
which OSHA can issue a citation for recordkeeping paperwork
violations. Employers will have the exact same obligation to
record injuries as they always had, and OSHA will have the
exact same opportunity to issue a citation as the statute has
always permitted. The regulation is about paperwork
violations and does nothing to improve worker health and
safety.
NAHB urges you to support H.J. Res 83, and designates a
vote in support of H.J. Res 83 as a KEY VOTE.
Sincerely,
James W. Tobin III.
____
U.S. Chamber of Commerce,
Washington, DC, February 28, 2017.
Re Key Vote Alert!
To the Members of the United States Congress: The U.S.
Chamber of Commerce supports H.J. Res. 83, which would
invalidate the regulation issued by the Occupational Safety
and Health Administration (OSHA) entitled ``Clarification of
an Employer's Continuing Obligation to Make and Maintain an
Accurate Record of Each Recordable Injury and Illness,'' and
will consider including votes related to it in our 2017 How
They Voted scorecard.
The rule would have the effect of extending to five years
the statute of limitations on recordkeeping violations that
the Occupational Safety and Health Act sets at six months. It
was OSHA's attempt to negate a 2012 decision from the D.C.
Circuit Court of Appeals involving a construction company
known as Volks Constructors. The decision blocked OSHA from
sustaining citations for recordkeeping violations that
occurred beyond the six month statute of limitations
specified in the Occupational Safety and Health Act. The
court's unanimous 3-0 ruling included Judge Merrick Garland.
The court unequivocally rebuked OSHA, expressing particular
concern on the agency's overstepping its authority: ``We do
not believe Congress expressly established a statute of
limitations only to implicitly encourage the Secretary to
ignore it . . . The Act clearly renders the citations
untimely, and the Secretary's argument to the contrary relies
on an interpretation that is neither natural nor consistent
with our precedents.'' The Volks decision has since been
endorsed by the Fifth Circuit in the Delek decision, issued
in December 2016, where the court found ``its reasoning
persuasive.''
OSHA's Volks Rule will improperly subject millions of
American businesses to citations for paperwork violations,
while doing nothing to improve worker health and safety. It
simultaneously represents a usurpation of Congress' power to
write the laws and a direct rejection of the judicial
branch's authority to rein in an agency when it exceeds its
authority.
The Chamber urges you to vote in favor of H.J. Res. 83, to
invalidate OSHA's Volks regulation and restore the statute of
limitations for citations enacted by Congress.
Sincerely,
Jack Howard.
Mr. BYRNE. All of those groups I just mentioned support the repeal of
this regulation that would come about by virtue of the bill that is
before us. Why? Because we have a right to expect in this country that
these regulatory agencies that Congress sets up will do their job with
the significant sums of taxpayer money that they are provided by this
Congress, the money that comes from the people of America to do their
job in a timely fashion. And this agency comes forth and tries to act
like it doesn't have the money or the authority to investigate
violations and enforce the law within 6 months of a violation. That is
balderdash. The American people have a right to expect more from these
agencies than that.
But more to the point, the reason we are here today is really simple.
We are here today to overturn a rule that is blatantly unlawful. We are
here to put a stop to a rule that does nothing--I repeat nothing--to
improve workplace safety. We are here to put a check on the very top of
executive overreach the Congressional Review Act sought to address.
By blocking this punitive and overreaching rule, we will affirm
Congress' commitment to proactive health and safety policies that help
prevent injuries and illnesses before they occur. If we wait until the
illness or injury has occurred, we have waited too late. OSHA has
waited too late. It is time for OSHA to work with these employers, work
with these people in the workplace to make the workplace safe, not show
up 5 years after the fact when they don't have the authority and say:
now we are going to issue a violation.
Mr. Speaker, the approach that we have demanded of OSHA for years is
to proactively work in the workplace to ensure that it is safe, and we
will continue to do that under this new administration. I urge my
colleagues to overturn OSHA's unlawful power grab.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to the rule, the previous question is ordered on the joint
resolution.
The question is on the engrossment and third reading of the joint
resolution.
The joint resolution 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 joint
resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. SCOTT of Virginia. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________