[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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

           *       *       *       *       *       *       *


                                
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