House Report 105-732 - TO AMEND THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

[House Report 105-732]
[From the U.S. Government Publishing Office]

105th Congress Report
HOUSE OF REPRESENTATIVES

2d Session 105-732
_______________________________________________________________________

TO AMEND THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

_______

September 18, 1998.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed

_______________________________________________________________________

Mr. Goodling, from the Committee on Education and the Workforce,
submitted the following

R E P O R T

together with

MINORITY VIEWS

[To accompany H.R. 2873]

[Including cost estimate of the Congressional Budget Office]

The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 2873) to amend the Occupational Safety
and Health Act of 1970, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:

SECTION 1. STANDARDS.

Section 6(b)(2) of the Occupational Safety and Health Act of 1970 (29
U.S.C 655(b)(2)) is amended by inserting after the first sentence the
following: ``The notice in the Federal Register shall include
identification of the specific industry or industries to which the
standard, to be promulgated under the rule, will apply. In promulgating
a standard, the Secretary shall ensure that the standard, as applicable
to each such industry, is based upon an assessment of the risks to
workers in such industry from the hazard which is the subject of the
standard, the range of estimates and the best estimate of the
quantifiable and nonquantifiable benefits of the standard in each such
industry, and an analysis of the costs likely to occur in each such
industry as a result of compliance with the standard. To the extent
that information is not available on the specific risks to workers in
any such industry, the Secretary may determine risks and benefits on
information from similar industries, operations, or processes.''.

Purpose

The purpose of H.R. 2873 is to amend the Occupational
Safety and Health Act (OSH Act) to provide that proposed
occupational safety and health standards identify the
industries that will be regulated by the standard, and to
require that the information regarding risks to workers and the
benefits and costs of the standard be specific to the
industries being regulated.

Legislative Action

The Subcommittee on Workforce Protections held a series of
three hearings in 1997 on the subject of the Occupational
Safety and Health Administration's (OSHA's) reinvention plans.
Those hearings were the basis of several bills introduced by
Representative Cass Ballenger on November 7, 1997, including
H.R. 2873.
The first hearing was held on June 24, 1997, to learn the
views and perspective of OSHA in its effort to ``reinvent'' the
agency. The Acting Assistant Secretary for OSHA, Greg Watchman,
testified at the hearing.
The second hearing was held on July 23, 1997, to examine
OSHA's reinvention project, hearing testimony from a variety of
individuals who have either studied or had recent experiences
with OSHA. The witnesses included Mr. Ronald D. Schaible,
Director, Global Safety, AMP Incorporated, Harrisburg,
Pennsylvania, testifying on behalf of the National Association
of Manufacturers; Ms. M. Kathleen Winters, Corporate Manager,
Environmental Health and Safety, Mack Printing Company, Easton,
Pennsylvania, testifying on behalf of Printing Industries of
America, Inc.; Dr. Gary Rainwater, President, American Dental
Association, Dallas, Texas; Mr. James J. Gonzalez, Attorney-at-
Law, Holland & Hart LLP, Denver, Colorado; Mr. Richard S.
Baldwin, Safety and Health Director, BE & K Engineering and
Construction Company, Birmingham, Alabama, testifying on behalf
of Associated Builders and Contractors; Professor John
Mendeloff, Graduate School of Public and International Affairs,
University of Pittsburgh, Pittsburgh Pennsylvania; Ms. Lee Anne
Elliott, Executive Director, Voluntary Protection Programs
Participants' Association, Falls Church, Virginia; and Mr.
Michael J. Wright, Director, Health, Safety and Environment,
United Steelworkers of America, Pittsburgh, Pennsylvania.
The third hearing was held on September 11, 1997, to hear
from individuals with a first-hand knowledge of OSHA's
reinvention program and on changes that should occur as OSHA
moves into the 21st century. The following witnesses testified:
Mr. Gerald V. Anderson, President, Anderson Construction
Company, Inc., Fort Gaines, Georgia, testifying on behalf of
the Associated General Contractors of America; Mr. James L.
Abrams, Attorney-at-Law, Denver, Colorado; Mr. Frank A. White,
Vice President, Organization Resources Counselors, Inc.,
Washington, DC; Mr. Michael C. Nichols, Vice President,
Management Development/Human Resources, SYSCO Corporation,
Houston, Texas; Mr. Norbert Plassmeyer, Vice President and
Director of Environmental Affairs, Associated Industries of
Missouri, Jefferson City, Missouri; and Nicholas A. Ashford,
Ph.D, J.D., Professor of Technology and Policy, Massachusetts
Institute of Technology, Cambridge Massachusetts.
The Subcommittee on Workforce Protections held two
legislative hearings in 1998 on several bills amending the OSH
Act, including H.R. 2873.
The first hearing on legislative proposals to amend the OSH
Act was held on March 27, 1998, and the following witnesses
testified: Ms. Claudia Brumm, Director, Risk Management, Borg
Warner Automotive, Inc., Chicago, Illinois, testifying on
behalf of the Labor Policy Association; Mr. Linwood O. Smith,
Vice President, Risk and Safety Management, T. A. Loving
Company, Goldsboro, North Carolina, testifying on behalf of the
Associated General Contractors of America; Mr. James ``Mike''
McMichael, The McMichael Company, Central, South Carolina,
testifying on behalf of the National Association of Home
Builders; Mr. Ronald W. Taylor, Attorney-at-Law, Venable,
Baetjer & Howard, Baltimore, Maryland, testifying on behalf of
the United States Chamber of Commerce; Mr. Jerry Hartman,
President, Reese Press, Inc., Baltimore, Maryland, testifying
on behalf of the Printing Industries of America, Inc.; and Ms.
Margaret M. Seminario, Director, Occupational Safety and Health
Department, American Federation of Labor-Congress of Industrial
Organizations (AFL-CIO), Washington, DC.
The second hearing on legislative proposals to amend the
OSH Act was held on April 29, 1998. The following witnesses
testified at the hearing: Mr. Charles N. Jeffress, Assistant
Secretary for Occupational Safety and Health, Occupational
Safety and Health Administration, U.S. Department of Labor,
Washington, DC; Mr. George R. Salem, Attorney-at-Law/Partner,
Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC,
testifying on behalf of the National Association of
Manufacturers; Mr. Richard E. Schwartz, Attorney-at-Law/
Partner, Crowell & Moring LLP, Washington, DC, testifying on
behalf of the American Iron & Steel Institute; Mr. John W.
Bishop, President, Gurnee Heating & Air Conditioning
Corporation, Closter, New Jersey, testifying on behalf of
Associated Builders and Contractors; Mr. David G. Sarvadi,
Attorney-at-Law, Keller and Heckman, Washington, DC; and Mr.
Thomas J. Meighen, Safety & Risk Manager and Vice President,
Stromberg Sheet Metal Works, Inc., Beltsville, Maryland,
testifying on behalf of the Mechanical Electrical Sheet Metal
Alliance.
The Subcommittee on Workforce Protections approved H.R.
2873, as amended, by a roll call vote of 6-4 on May 14, 1998,
and ordered the bill favorably reported to the Full Committee.
The Committee on Education and the Workforce approved H.R.
2873, as amended, by a roll call vote of 23-17 on June 10,
1998, and ordered the bill favorably reported to the House.

Committee Views

Need for Legislation

Section 6 of the OSH Act authorizes the Secretary of Labor
to issue occupational safety and health standards and
establishes most of the criteria and procedures for such
standards.\1\ Since the OSH Act was enacted in 1970, OSHA has
issued approximately 75 health and safety standards.\2\ Despite
the relatively few standards issued, OSHA's standards have been
widely criticized as excessively costly and ineffective in
reducing injuries and illnesses.\3\
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\1\ 29 U.S.C. Section 655. In addition to the criteria and
procedures for promulgation of standards in section 6, the definition
of ``occupational safety and health standard'' in section 3(8) of the
OSH Act, 29 U.S.C. Section 652(8), requires that such standards be
``reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.''
\2\ ``Gauging Control Technology and Regulatory Impacts in
Occupational Safety and Health,'' pp. 6-8 (Office of Technology
Assessment, 1995). Section 6(a) of the OSH Act authorized the Secretary
of Labor to adopt ``national consensus standards'' and existing federal
standards during the first two years after enactment. OSHA enforces
these standards in addition to the 75 standards issued under section
6(b).
\3\ See, e.g., the summary of studies of the costs and benefits of
OSHA regulations in Max Lyons, ``The Economics of Workplace Safety,''
(Washington, DC: The Employment Policy Foundation, 1996) and in
Kniesner and Leeth, ``Abolishing OSHA,'' ``Regulation,'' Number 4
(1995). A more personal account of the impact of the ineffectiveness of
OSHA standards in improving safety and health was given in testimony
before the Subcommittee on Workforce Protections on June 20, 1995, by
Vitas Plioplys, Manager of Safety Services, R.R. Donnelley and Sons
Company, testifying on behalf of the Printing Industries of America,
Inc. He testified that when his company focused their safety program on
compliance with OSHA standards, accident rates and workers compensation
costs went up. ``In the beginning of 1992, we returned to our
historical focus on managing safety and not compliance. * * * With this
change in our fundamental working, the results have been a 16 percent
decrease in accident rate, a 15 percent decrease in lost time accident
rates, and workers compensation costs per claim reduction of 24
percent.'' He concluded, ``OSHA compliance is still a part of our
safety program, but it no longer drives our safety program. Safety
drives our safety program. We manage safety to prevent accidents and to
reduce costs. We comply with OSHA because we have a legal obligation.''
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In 1995, President Clinton made reform of OSHA's standards-
setting process one of his Administration's three goals for
``OSHA reinvention.'' Implying his agreement with criticisms of
past OSHA standards, President Clinton defined the
Administration's goal for standards in ``the New OSHA'' as
``worker safety rules [which] are as simple and sensible and
flexible as they can be.'' \4\
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\4\ Remarks by the President on Reinventing Worker Safety
Regulation, delivered at Stromberg Sheet Metal Works, Inc., Washington,
DC, May 16, 1995.
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Whether and to what extent OSHA has met this goal and
improved its standards-setting process was one of the questions
raised by a series of hearings conducted by the Subcommittee on
Workforce Protections in 1997. The testimony of the witnesses
showed that OSHA has made few improvements in its standards-
setting process and has given little assurance that future
occupational safety and health standards would be an
improvement over past standards, or would meet the President's
goal of rules that are ``simple and sensible and flexible.''
For example, Mr. Ronald D. Schaible, Director, Global
Safety, AMP Incorporated, Harrisburg, Pennsylvania, expressed
concern about two of OSHA's pending rulemakings, on ergonomics
and on safety and health programs. Mr. Schaible criticized such
``super regulation of the workplace'' which ``regulates every
aspect of work in an extreme manner. * * * It is not possible
for OSHA to always anticipate how a rule may affect industry.
Often laws and regulations have unintended consequences. In the
case of OSHA, compliance with a regulation may seem entirely
feasible to agency staff, but it may be that for some
industries, compliance is difficult and would incur significant
costs without improving safety and health.'' \5\
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\5\ U.S., Congress, House, Committee on Education and the
Workforce, Subcommittee on Workforce Protections, ``Hearings to Examine
the Occupational Safety and Health Administration's Reinvention
Project,'' 105th Cong., 1st sess., ser. no. 105-25. Testimony of Mr.
Ronald D. Schaible, Director, Global Safety, AMP Incorporated,
Harrisburg, Pennsylvania, July 23, 1997.
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Similarly, Ms. M. Kathleen Winters, Corporate Manager,
Environmental Health and Safety, Mack Printing Company, Easton,
Pennsylvania, described OSHA's enforcement of one particular
OSHA standard in her company's printing operations. The
standard was not written with the printing industry in mind,
and OSHA enforcement personnel had given inconsistent
interpretations with regard to its application to printing
operations. As a result, Ms. Winters' company was faced with a
competitive disadvantage which threatened to put the company
out of business. Ms. Winters concluded: ``The problem with one-
size-fits-all regulation is what works great in one industry,
may not be feasible in others.'' \6\
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\6\ Ibid. Testimony of Ms. M. Kathleen Winters, Corporate Manager,
Environmental Health and Safety, Mack Printing Company, Easton,
Pennsylvania, July 23, 1997.
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Dr. Gary Rainwater, President, American Dental Association,
Dallas, Texas, testified that from the point of view of his
association some of the changes made by OSHA's ``reinvention''
efforts had been positive: ``In any event, the truth is this:
the dental profession's relationship with OSHA today is better
than it ever has been. There is an important caveat, however.
At the moment, OSHA is developing a number of standards that
could have a major impact on dental offices.'' Dr. Rainwater
went on to express his concern that there was no assurance that
OSHA would ``regulate with a more discriminating hand'' with
regard to dentistry than had been the case in the past.\7\
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\7\ Ibid. Testimony of Dr. Gary Rainwater, President, American
Dental Association, Dallas, Texas, July 23, 1997.
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Mr. Michael C. Nichols, Vice President, Management
Development/Human Resources, SYSCO Corporation, Houston, Texas,
also addressed the issue of OSHA rulemaking in his assessment
of OSHA's reinvention: \8\
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\8\ Ibid. Testimony of Mr. Michael C. Nichols, Vice President
Management Development/Human Resources, SYSCO Corporation, Houston,
Texas, September 11, 1997.

* * * Several of OSHA's pending, significant
rulemaking initiatives--its desired safety and health
program standard, its contemplation of an indoor air
pollution rule, and of course its long-desired standard
for workplace ergonomics programs--continue to cause
enormous concerns for employers, including those in our industry. * * *
[W]e are very skeptical of such initiatives because
they are supported by inadequate science, are likely to
be vague in critical respects (raising daunting
compliance challenges), and seek to superimpose uniform
Federal government ``solutions'' to problems and safety
challenges that many employers successfully handle on
their own. * * *
Of course, a major concern that employers have with
these potential rules is how they will be applied and
enforced in the field. Many of us are enormously
troubled by the expanded authority that may be provided
by rules of very broad scope, which can be used as
something approaching a `catch-all' penalty provision
where no standard exists, and/or as a source of
additional penalty `multipliers' * * * The possibility
that such a rule might be utilized as a `super
regulation,' enforced by the same compliance officers
who do not appear to be in step with `partnership'
concepts, is a prospect that is--to say the least--
unwelcome.

Raising a similar concern with regard to OSHA's draft
proposed standard on ergonomics, Mr. Jerry Anderson, President,
Anderson Construction Company, Inc., Fort Gaines, Georgia,
testified that--\9\
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\9\ Ibid. Testimony of Mr. Gerald V. Anderson, President, Anderson
Construction Company, Inc., September 11, 1997.

Although several policies within OSHA have been
changed by the ``Reinvent'' initiative, one policy area
within OSHA remains unchanged--OSHA's regulatory
agenda. Presently, OSHA has several major rulemakings
in progress that reflect the one-size-fits-all
regulatory strategy that is common with the old way of
thinking within OSHA.
The draft ergonomics standard is the best example of
the ``one-size-fits-all'' regulatory approach of OSHA.
* * * The compliance costs of the proposed ergonomics
standard could be in the billions of dollars. The job
task analysis required by the proposed ergonomics
standard could force construction companies to `re-
engineer' every construction job, with no guarantees
that the changes will prevent repetitive motion
injuries. The result of the proposed ergonomics
standard will be higher construction costs transferred
to consumers, and fewer job opportunities for
construction workers.

The consistent message from these and other witnesses
before the Committee is that changes are needed to improve
OSHA's standards and to realize President Clinton's stated goal
``that worker safety rules are as simple and sensible and
flexible as they can be.'' To address the continued problems
and concerns with OSHA's standards-setting, the Committee on
Education and the Workforce has considered and passed two
bills, H.R. 2661, the Sound Scientific Practices Act of 1997,
and the bill which is the subject of this report, H.R. 2873.

Explanation of Legislation

H.R. 2873, as passed by the Committee on Education and the
Workforce, adds two provisions to section 6(b)(2) of the OSH
Act. First, the bill requires that when OSHA issues a notice of
proposed rulemaking for a standard, as provided in section
6(b)(2) of the OSH Act, it must include in the proposed rule
specific identification of the industry or industries to which
the standard will apply. Second, H.R. 2873 requires that the
assessment of risks to worker health and safety and the
analysis of benefits and costs of the standard--the technical
economic and scientific data which is the basis of the
standard--relate specifically to the industries being
regulated.
The first requirement of H.R. 2873, that proposed standards
identify the specific industries to which the standard will
apply, in effect ``codifies'' the procedure adopted by OSHA in
its recent proposed rule on tuberculosis. (62 F.R. 54160-54308)
The proposed standard on occupational exposure to tuberculosis
specifies that the standard would apply to ten ``industries''
or workplace settings: hospitals, long-term care facilities for
the elderly, correctional facilities, hospices, shelters for
the homeless, drug abuse treatment facilities, facilities
conducting high-hazard procedures (as defined in the standard),
certain laboratories and emergency medical services, home
health care, and home-based hospice care.
OSHA's action in limiting the scope of the proposed
tuberculosis standard by specifying the workplace settings to
which the standard would apply is in contrast to the procedure
used in the preceding standard written primarily for
occupational exposures in health care settings, the standard on
bloodborne pathogens. (29 C.F.R. Section 1910.1030) OSHA's
failure in the case of the bloodborne pathogens standard to
identify the scope of the standard during the rulemaking led to
a great deal of confusion after the standard was issued as to
whether individuals in various non-health care settings were
covered by the requirements of the standard.\10\
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\10\ The standard appeared to cover any employee who could
``reasonably anticipate'' contact with skin, eye, mucous membrane, or
blood. After the standard was issued and the standard's broad scope
became evident, OSHA was forced to more carefully define the scope of
the standard through a series of ``compliance directives.'' See, Bor
and Artz, eds., ``Occupational Safety and Health Law, 1997 Cumulative
Supplement'' (BNA Books, 1997), pp. 476-477. Nonetheless, the standard
remains a primary example of a ``one-size-fits-all'' government
regulation that made little sense in many of the workplaces to which it
applied. For example, on February 16, 1995, the Subcommittee on
Oversight and Investigations conducted a hearing on ``The Need for
Regulatory Reform: The Case of OSHA and NIOSH.'' Dr. Connie Verhagen,
testifying on behalf of the American Dental Association, stated, ``The
OSHA bloodborne pathogen standard was established to protect workers
from exposure to bloodborne pathogens but with hospitals primarily in
mind. Consequently, some portions of the standard are unnecessary and
costly for dental offices. Based on the Dental Association's study,
this standard costs each dental practice an average of $23,700
annually. This amount is 27 times greater than the OSHA cost estimates.
* * * Dentists in general are very willing to comply with reasonable
regulations, but we are a science-based profession. We want to be sure
that what we are told to do is necessary and effective. We also want to
be shown that the benefit justifies the additional costs.''
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Specifically identifying the intended scope of a proposed
standard benefits both OSHA and the affected industries.
Identifying the scope of the standard should help OSHA to limit
the issues involved in the standard and focus its attention on
those issues in the rulemakingprocess.\11\ On the other hand,
industries deserve fair notice that they will be covered by a proposed
OSHA standard--notice which they do not now always receive. For
example, during hearings on H.R. 2873, Mr. Richard E. Schwartz
described the lack of notice to the steel industry in the case of an
asbestos standard: \12\
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\11\ In subsequent proceedings on OSHA's tuberculosis standard,
considerable attention and focus has been given to whether a standard
written primarily for hospitals and similar health care settings is
appropriate to homeless shelters. It is less likely that such a focus
on the particular circumstances of homeless shelters would occur if
OSHA were attempting to write a standard that applied to all employers.
\12\ U.S., Congress, House, Committee on Education and the
Workforce, Subcommittee on Workforce Protections, ``Review of the
Occupational Safety And Health Act,'' 105th Cong., 2nd sess. Testimony
of Mr. Richard E. Schwartz, Attorney-at-Law/Partner, Crowell & Moring
LLP, Washington, DC, testifying on behalf of the American Iron & Steel
Institute, April 29, 1998.

[Regarding the notice requirements of H.R. 2873,] I'd
like to relate two lessons learned by the American Iron
& Steel Institute from its experience with the asbestos
standard. First is that ignorance is not bliss. We
discovered that we were covered by the asbestos
standard only after it was promulgated. The reason was
that it was regarded as a construction industry
standard, and historically, general industries like the
steel industry are not covered by construction
standards. The notices were simply inadequate to inform
AISI's members that they would be covered, even though
they're experienced professionals who make it their
life's work to deal in these sorts of matters. As a
result of this ignorance, there were no AISI comments,
no steel industry comments on the proposed standard.
The final standard had no analysis of the risks that
asbestos might pose to the steel workers, and as a
result of that, AISI commenced litigation. That was
followed by protracted settlement discussions with OSHA
which eventually ended in agreement, but only after
both OSHA and the steel industry had expended an
immense amount of time that should not have been
required, and would not have had to happen if the
notice had been proper in the first place.
The second lesson that AISI learned from the asbestos
experience is that life is short, but the Federal
Register is long. The final rule covered almost 200
pages; the coverage of the steel industry could only be
discovered by wading through it, and finding mention of
the industry in a couple of pages of the Federal
Register. Although the AISI member companies have
experienced professionals who make it their life's work
to protect their workforces, it is a waste of their
time to have to wade through lengthy Federal Register
notices that don't apply to them.
What this bill would do is require OSHA to make it
clear up-front, exactly who the proposed or final
regulation does apply to. This will not only allow us
to know that we're covered, but at the proposal stage
will make for better regulations because affected
industries will be able to comment on what OSHA has
proposed.

Similarly, in 1994, OSHA issued a revised safety standard
for logging operations. (29 C.F.R. Section 1910.266) There was
no mention in the proposed or final rule of application of the
standard to industries outside of logging. Nonetheless, more
than three years after the standard was issued, in March 1998,
OSHA announced that the logging standard also applied to tree
care work, despite the fact that arborists did not have notice
that they would be covered when the standard was proposed and
did not participate in the rulemaking process. H.R. 2873 would
prohibit such unfair and arbitrary actions by OSHA.\13\
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\13\ The tree care industry protested OSHA's March 1998
announcement, and in the face of threatened legal action, OSHA has
indicated that it may rescind its decision to apply the logging
standard to the tree care industry.
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H.R. 2873 requires that a proposed standard include
identification of the specific industry or industries to which
the standard will apply. The bill does not further define the
term ``industry.'' In some cases, OSHA may best notify the
affected industries by listing the most specific Standard
Industrial Classification (SIC) numbers of the industries
affected. In other cases, fair notice may be better given by
identifying types of workplaces which may be more specific than
SIC numbers, such as OSHA did in the proposed tuberculosis
standard. In each case the purpose of this requirement is to
ensure that OSHA identifies the scope of the standard when the
standard is proposed so that both OSHA and the affected
industries have fair notice of the rulemaking and full
opportunity to see that the differing circumstances and
concerns of different industries and workplaces are adequately
addressed in the rulemaking process.
As described above, in addition to requiring OSHA to
identify which industry or industries will be covered by the
proposed rule, H.R. 2873 also requires that OSHA's risk
assessment and estimates of costs and benefits used to justify
the standard be related to the industry or industries which
will be regulated.
Generally the federal courts already require OSHA to do the
type of ``industry-specific'' analysis that H.R. 2873 requires.
H.R. 2873 ``codifies'' this requirement, applies it uniformly
and consistently to OSHA standards, and ensures that OSHA will
conduct such industry-specific analysis in the rulemaking
process, rather than waiting for a reviewing court to remand
the case before conducting industry-specific analysis.
In testimony on H.R. 2873, Assistant Secretary for
Occupational Safety and Health Charles N. Jeffress acknowledged
that ``cost estimates and feasibility analyses are commonly
conducted at the industry level,'' and therefore H.R. 2873 does
not involve a change in what OSHA is required to do with regard
to economic data.\14\ Indeed, OSHA has consistently been
ordered to consider economic and feasibility information on an
industry-specific basis when standards have been challenged in
federal court on the basis of OSHA's failure to do so.\15\
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\14\ Workforce Protections Subcommittee hearing of April 29, 1998;
testimony of Assistant Secretary Charles N. Jeffress, Occupational
Safety and Health Administration, U.S. Department of Labor, Washington,
DC.
\15\ See, for example, Color Pigments Manufacturers Ass'n., Inc. v.
OSHA, 16 F.3d 1157 (11th Cir. 1994) (challenging OSHA's cadmium
standard); AFL-CIO v. OSHA, 965 F. 2d 962 (11th Cir. 1992) (challenging
OSHA's permissible exposure limits for 428 chemical substances);
Building & Construction Trades Dept., AFL-CIO v. Brock, 838 F. 2d 1258
(DC Cir. 1988) (challenging OSHA's asbestos standard); United
Steelworkers of America, AFL-CIO v. Marshall, 647 F.2d 1189 (DC Cir.
1981) (challenging OSHA's lead standard).
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Mr. Jeffress did, however, disagree with the requirement in
H.R. 2873 that OSHA also provide industry-specific information
on risks to workers. He, along with other opponents of H.R.
2873, argued that it would put an impossible burden on OSHA
because the agency often does not have sufficient information
on workers in each industry to conduct a full risk assessment
of the health risk to workers in that industry from the hazard
which is the subject of the regulation.\16\
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\16\ Workforce Protections Subcommittee hearing of April 29, 1998;
testimony of Assistant Secretary Charles N. Jeffress, Occupational
Safety and Health Administration, U.S. Department of Labor, Washington,
DC.
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In response to the Assistant Secretary's concern, H.R. 2873
was amended during markup by the Subcommittee on Workforce
Protections to clarify that it does not require a full risk
assessment of employees in each industry to which the standard
applies. During the Subcommittee markup the following sentence
was added to the bill as introduced: ``To the extent that
information is not available on the specific risks to workers
in any such industry, the Secretary may determine risks and
benefits on information from similar industries, operations, or
processes.'' Thus if risk information specific to workers in an
industry which OSHA seeks to regulate is not available to OSHA,
OSHA may meet its burden of providing ``industry-specific''
analysis of risk by showing in the rulemaking why it believes
that those risks are comparable to another group of workers for
whom information is available.
By requiring OSHA to provide this industry-specific
information on the level of risk to workers, H.R. 2873
clarifies an issue on which court decisions have been split,
and on which the courts seem generally reluctant to specify a
result in the absence of clear legislative language. In Color
Pigments Manufacturers Association v. OSHA, 16 F.3d 1157 (11th
Cir. 1994), the Court of Appeals, without specifically
addressing whether there is a general requirement for industry-
specific risk assessment, found OSHA's cadmium standard
deficient with regard to the dry color formulator industry
because OSHA had not assessed the risks specific to workers in
that industry: ``OSHA first determined the existing airborne
levels of cadmium in the industry. However, the method OSHA
employed in doing so was inadequate. Rather than analyzing
exposure levels in the dry color formulator industry, OSHA
analyzed such exposures generically. * * * In this case, the
method of determining these initial levels was unreliable and
insufficient, since the workers and plants to which the dry
color formulator industry was analogized were not shown to be
sufficiently similar to justify such a comparison.'' Color
Pigments Manufacturers, at 1162-1163.
On the other hand, in American Dental Association v.
Martin, 984 F.2d 823 (7th Cir. 1993), the Seventh Circuit Court
of Appeals, ruling on a challenge to OSHA's bloodborne
pathogens standard, agreed that OSHA ``cannot impose onerous
requirements on an industry that does not pose substantial
hazards to the safety and health of its workers merely because
the industry is part of some larger sector or grouping and the
agency has decided to regulate at wholesale.'' at 827. But in
that case the Seventh Circuit ruled that OSHA could effectively
meet its burden for ``industry-specific'' assessment of risk by
stating that the risks in any industry are similar to those in
other industries--``OSHA was required neither to quantify the
risk to workers' health nor to establish the existence of
significant risk to a scientific certainty''--and the burden
was on each individual industry or sector to show that the
risks to workers in that industry were different. at 827.
In International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, UAW v. OSHA, 938
F.2d 1310 (DC Cir. 1991), the Court of Appeals considered an
appeal of OSHA's ``lockout/tagout'' standard dealing with how
and when electrical equipment must be disabled during
maintenance and servicing. Among other issues before the court
was OSHA's failure to disaggregate risk information. at 1322.

Uncontrolled energy unquestionably poses greater
risks in some industries than in others. Even among the
manufacturing industries that OSHA classifies as `high
impact' for purposes of the lockout regulation, a
report by OSHA's consultants shows a nearly 20-fold
difference between the high and low injury rates. And
the observed injury rate was zero in many of the `low
impact' and `negligible impact' industries covered by
the lockout regulation.
OSHA nowhere explains its logic. Just because paper
mill equipment (which was already subject to a lockout
requirement) poses a significant hazard does not mean
that sewing machines do. While we have recognized
OSHA's need to avoid `miniscule industry subcategories'
for administrative convenience, (citing case) there are
no obvious barriers to disaggregation here. In fact,
OSHA has in past years promulgated a wide variety of
industry- and equipment-specific lockout standards. As
we have insisted that OSHA explain its refusal to
disaggregate at the behest of unions claiming that
reliance on overbroad categories denied them adequate
protection, we similarly remand for it to explain how
its aggregated approach here conforms to its
interpretation of the Act.

The main issue on remand of the lockout/tagout standard was
whether the standards-setting authority, as a whole, granted to
the Secretary of Labor under the OSH Act, was an
unconstitutional delegation of legislative authority. In
``Lockout/Tagout II'' (International Union, United Automobile,
Aerospace, & Agricultural Workers of America, UAW v. OSHA, 37
F.3d 665 (DC Cir, 1994), the court of appeals decided that OSHA
had met the burden of showing that the statute as construed by
OSHA is constitutional. On the secondary question of whether
OSHA was required to ``disaggregate'' risk data, as the court
of appeals suggested was required in its initial decision,
after the remand the court instead took a position closer the
Seventh Circuit's position in American Dental Association v.
Martin, 984 F.2d 823, suggesting that the burden is on the
party challenging a standard to justify such a requirement.
International Union, at 675.
The variety of outcomes in these cases demonstrates the
need to clarify OSHA's obligations with regard to industry-
specific risk assessment. Under H.R. 2873, OSHA must justify
the application of a standard to each industry to which the
standard would apply; the burden does not shift to a party
challenging a standard to justify specific consideration of the
risks to the workers in each industry. This is consistent with
OSHA's obligation to demonstrate that a hazard constitutes a
``significant risk'' to workers before it may regulate that
hazard.\17\ The Department of Labor apparently reads the
current state of the law as allowing it to assume ``significant
risk'' exists, rather than requiring it to demonstrate
significant risk exists, whenever it claims that a hazard
affecting workers in one industry also may affect workers in an
entirely different industry.\18\ Not only is this a misreading
of the current law, but also, as one witness before the
Committee pointed out, the Department's position means that the
easiest way for OSHA to conclude ``that there is significant
risk in all sectors [is] by avoiding looking at them in
detail.'' \19\
---------------------------------------------------------------------------
\17\ Industrial Union Department, AFL-CIO v. American Petroleum
Institute, 448 U.S. 607 (1980).
\18\ Letter from Secretary of Labor Alexis Herman to the Honorable
William F. Goodling, Chairman, Committee on Education and the
Workforce, June 10, 1998.
\19\ Workforce Protections Subcommittee hearing of April 29, 1998;
testimony of Mr. David G. Sarvadi, Attorney-at-Law, Keller and Heckman,
Washington, DC.
---------------------------------------------------------------------------
As described above, H.R. 2873 does not require that a
complete risk assessment be conducted for every industry, nor
for every minor change in a regulation.\20\ It does, however,
require that, at a minimum, OSHA consider the specific risks to
workers in each industry to which a new standard applies,
either by conducting a risk assessment based on data from that
industry or by showing that the risks are comparable to those
of workers in another industry for which detailed information
is available. Such industry-specific analysis is essential to
ensuring that standards are ``sensible'' in the workplaces to
which they apply.
---------------------------------------------------------------------------
\20\ Secretary of Labor Alexis Herman makes this claim in her
letter of June 10, 1998, to Chairman Goodling. H.R. 2873 does not apply
to ``minor changes in a regulation.'' It does require that if a
standard is applied to new industries, that the industry be given
notice and opportunity to comment, and that OSHA demonstrate, rather
than assume, risks to workers in that industry and the benefits of the
standard in reducing that risk.
---------------------------------------------------------------------------

Summary

H.R. 2873 requires the Secretary of Labor to publish in a
proposed rule for an occupational safety and health standard
the list of industries to which the standard will apply. The
bill also requires that information on risk to workers and on
the costs and benefits of the standard which provide the
scientific and economic basis for the standard contain
information and analysis specific to the industries being
regulated.

Section-By-Section Analysis

Section 1. Standards

This section amends section 6(b)(2) of the Occupational
Safety and Health Act of 1970 (29 U.S.C. Section 655(b)(2)) and
requires the agency to identify the specific industries that it
intends to regulate when it proposes a standard. This section
also requires industry-specific analysis of risk, benefits, and
costs.

Explanation of Amendments

The Amendment in the Nature of a Substitute is explained in
the body of this report.

Application of Law To The Legislative Branch

Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. This bill amends the Occupational Safety and Health Act
(OSH Act) to provide that proposed occupational safety and
health standards identify the industries that will be regulated
by the standard, and to require that the information regarding
risks to workers and the benefits and costs of the standard, on
which the standard is based, be specific to the industries
being regulated. The bill does not prevent legislative branch
employees from receiving the benefits of this legislation.

Constitutional Authority Statement

The Occupational Safety and Health Act and the amendments
thereto made by this bill are within Congress's authority under
Article I, section 8, clause 3 of the Constitution.

Unfunded Mandate Statement

Section 423 of the Congressional Budget and Impoundment
Control Act requires a statement of whether the provisions of
the reported bill include unfunded mandates. This bill amends
the Occupational Safety and Health Act (OSH Act) to provide
that proposed occupational safety and health standards identify
the industries that will be regulated by the standard, and to
require that the information regarding risks to workers and the
benefits and costs of the standard, on which the standard is
based, be specific to the industries being regulated. As such,
the bill does not contain any unfunded mandates.

Statement of Oversight Findings and Recommendations of the Committee

In compliance with clause 2(l)(3)(A) of rule XI and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.

Statement of Oversight Findings of the Committee on Government Reform
and Oversight

With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of H.R. 2873.

Committee Estimate

Clause 7 of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 2873. However, clause 7(d) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act.

Budget Authority and Congressional Budget Office Cost Estimate

With respect to the requirements of clause 2(l)(3)(B) of
rule XI of the House of Representatives and section 308(a) of
the Congressional Budget Act of 1974 and with respect to
requirements of 2(l)(3)(C) of rule XI of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 2873 from the Director of the Congressional Budget
Act:

U.S. Congress,
Congressional Budget Office,
Washington, DC, July 14, 1998.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2873, a bill to
amend the Occupational Safety and Health Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Cyndi
Dudzinski.
Sincerely,
June E. O'Neill, Director.
Enclosure.

H.R. 2873--A bill to amend the Occupational Safety and Health Act

Summary: H.R. 2873 would require the Secretary of Labor
when promulgating, modifying, or revoking an occupational
safety and health standard to identify the industries affected.
The Secretary would have to ensure that the standard as applied
to each industry is based upon an industry-specific assessment
of the risks, benefits, and costs. If information on a
particular industry affected is not available, the Secretary
would be able to use information from a similar industry to
assess the effects of the standard.
The Occupational Health and Safety Administration (OSHA),
administers such standards. H.R. 2873 would require OSHA to do
more extensive analysis when setting or amending standards than
it does under current law. If appropriations are made in the
full amount of the additional resources required to fulfill the
requirements of this legislation, CBO estimates that H.R. 2873
would result in additional discretionary spending of $2 million
over the 1999-2003 period.
H.R. 2873 would not affect direct spending or receipts;
therefore pay-as-you-go procedures would not apply. The
legislation also does not contain any intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would not have a significant effect on the
budgets of state, local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2873 is shown in the following table.
The costs of this legislation fall within budget function 550
(health).

[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1998 1999 2000 2001 2002 2003
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRATION
Spending Under Current Law:
Budget authority \1\............................ 336 348 360 372 384 396
Estimated outlays............................... 335 347 358 370 382 394
Proposed Changes:
Authorization level............................. 0 (\2\) (\2\) (\2\) 1 1
Estimated outlays............................... 0 (\2\) (\2\) (\2\) (\2\) 1
Spending Under H.R. 2873
Authorization level\1\.......................... 336 348 360 372 385 397
Estimated outlays............................... 335 347 358 370 382 395
----------------------------------------------------------------------------------------------------------------
\1\ The 1998 level is the amount appropriated for that year.
\2\ Less than $0.5 million.

Basis of estimate: Under current law when OSHA makes a
rule, it conducts risk assessment, feasibility studies, and
benefit evaluations on a level it deems necessary. Benefit
analysis is done on an aggregate basis and cost analysis is
done on an industrial sector level. The bill would require
significant additional benefit analysis and, depending on the
detail in which industries would be defined, would require more
detailed cost analysis as well.
Assuming that OSHA already performs cost analysis in
sufficient detail and using information from OSHA, CBO
estimates that additional benefit analysis for each standard
would require $70,000 in additional contract costs and about
one-quarter of one employee's time. OSHA promulgates or
modifies about 5 standards per year. In total, CBO estimates
that H.R. 2873 would increase OSHA's costs by about $0.4
million in fiscal year 1999. If appropriations are made in the
full amount of these additional costs, discretionary federal
spending would increase by $2 million over the 1999-2003
period. Cost could increase as much as $1 million in fiscal
year 1999 if ``industry'' is defined in more detail that the
industrial sector level. The estimate assumes that
appropriations would be made by the start of each fiscal year
and that outlays would follow the historical spending patterns
for OSHA.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: H.R. 2873
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and would not have
a significant effect on the budgets of state, local, or tribal
governments.
Estimate prepared by: Federal Costs: Cyndi Dudzinski.
Impact on State, Local, and Tribal Governments: Marc Nicole.
Impact on the Private Sector: Kathryn Rarick.
Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.

Roll Call Vote

MINORITY VIEWS

We strongly oppose H.R. 2873 as reported by the Committee.
H.R. 2873 effectively prohibits the Occupational Safety and
Health Administration (OSHA) from issuing broad standards to
protect workers. H.R. 2873 requires OSHA to perform separate
and individual risk assessments and economic feasibility
studies on every industry affected by a proposed standard
before OSHA may promulgate the standard. This legislation
renders it virtually impossible for OSHA to issue an indoor air
quality standard, an asbestos standard, or a safety and health
program standard that affects large numbers of workers across
many industries. To simply name every industry that might be
affected by a safety and health program standard is an
exceedingly difficult proposition. To then conduct a separate
risk assessment and economic feasibility study for each of the
affected industries would be practically impossible.
The requirements that H.R. 2873 would impose on OSHA are
not only impractical, they are also illogical. The same amount
of methylene chloride is likely to cause cancer regardless of
the industry in which the employee works. There is no
reasonable basis for requiring OSHA to do a separate risk
assessment for every industry in which workers are exposed to
methylene chloride. Yet, H.R. 2873 requires OSHA to perform
separate analyses.
OSHA is already generally required to conduct industry
specific economic feasibility analyses and the failure to do so
may serve as a basis for setting aside the standard. The
recently issued methylene chloride standard, for example,
included extensive economic feasibility studies of all
industries using methylene chloride. However, the current
requirement is subject to reasonable interpretation. For
example, if OSHA changed the ladder standard, it is unlikely
that OSHA would perform or that a court would require OSHA to
perform, a separate economic feasibility study for every
industry using ladders. H.R. 2873, however, imposes such a
requirement.
Industry specific data on costs and risks is often not
readily available. In Subcommittee an amendment was adopted
that seeks to account for this by providing that the Secretary
of Labor must determine risks and benefits for similar
industries where information regarding a specific industry is
not available. Is the Secretary to have sole discretion as to
whether information is available and what constitutes a similar
industry, operation, or process? If not, then we are inviting
endless litigation over such matters. The bill is silent on
this important point.
Many contend that the existing process by which standards
are developed is already seriously flawed. It took between 12
and 16 years for OSHA to issue standards on respiratory
protection, methylene chloride and 1,3-butadiene. In the
meantime, workers continued to suffer injuries and illnesses.
H.R. 2873 will only serve to slow the process further.
More than 6,000 workers are killed every year in workplace
accidents. Between 50,000 and 70,000 workers die every year as
a result of occupational illnesses. There are 350,000 new cases
of occupational illness a year. Workplace injuries and
illnesses cost businesses in excess of $65 billion a year in
direct costs. Indirect costs impose more than $100 billion in
additional costs on businesses. The costs of occupational
injuries and illnesses to the economy exceed those of HIV-AIDS
and are comparable to the costs imposed by heart disease and
cancer.
If we are serious about improving the health and safety of
American workers, we should be seeking methods to improve the
efficiency with which occupational safety and health standards
are regulated. H.R. 2873 would instead bring that process to a
grinding halt. H.R. 2873 is bad legislation that promotes
government inefficiency and waste. More seriously, it
jeopardizes the health and welfare of workers and their
families.

William L. Clay.
Dale E. Kildee.
Major R. Owens.
Patsy T. Mink.
Lynn Woolsey.
Carolyn McCarthy.
Ron Kind.
Harold E. Ford, Jr.
George Miller.
Matthew G. Martinez.
Donald M. Payne.
Robert E. Andrews.
Bobby Scott.
Carlos Romero-Barcelo.
Ruben Hinojosa.
John F. Tierney.
Loretta Sanchez.
Dennis J. Kucinich.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):

SECTION 6 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

occupational safety and health standards

Sec. 6. (a) * * *
(b) The Secretary may by rule promulgate, modify, or revoke
any occupational safety or health standard in the following
manner:
(1) * * *
(2) The Secretary shall publish a proposed rule
promulgating, modifying, or revoking an occupational
safety or health standard in the Federal Register and
shall afford interested persons a period of thirty days
after publication to submit written data or comments.
The notice in the Federal Register shall include
identification of the specific industry or industries
to which the standard, to be promulgated under the
rule, will apply. In promulgating a standard, the
Secretary shall ensure that the standard, as applicable
to each such industry, is based upon an assessment of
the risks to workers in such industry from the hazard
which is the subject of the standard, the range of
estimates and the best estimate of the quantifiable and
non-quantifiable benefits of the standard in each such
industry, and an analysis of the costs likely to occur
in each such industry as a result of compliance with
the standard. To the extent that information is not
available on the specific risks to workers in any such
industry, the Secretary may determine risks and
benefits on information from similar industries,
operations, or processes. Where an advisory committee
is appointed and the Secretary determines that a rule
should be issued, he shall publish the proposed rule
within sixty days after the submission of the advisory
committee's recommendations or the expiration of the
period prescribed by the Secretary for such submission.

* * * * * * *