August 29, 1996

The Honorable Christopher S. Bond
Chairman
Committee on Small Business
United States Senate
Washington, D.C. 20510-6350

Dear Chairman Bond:

I am writing in response to the July 25 letter from members of the Senate Committee on Small Business ("the Committee"), expressing concern over the Department of Labor's intention to issue voluntary guidelines designed to prevent violence at late night retail establishments. As we understand your concerns, they are that compliance with these voluntary guidelines will be required as though they were final rules issued after notice-and-comment rulemaking, that the Occupational Safety and Health Administration ("OSHA") will demand such compliance through enforcement of the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act ("OSH Act" or "the Act"); and that implementation of these voluntary guidelines through their enforcement pursuant to the General Duty Clause is in derogation of the "spirit" of the Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act ("SBREFA"). Your letter also requested any economic analyses which may have been prepared for these draft guidelines concerning their impact on small business, as well as a list of any other guidelines OSHA is planning to issue.

At the outset, let me respectfully assure you and the Committee that such concerns are unfounded. These guidelines are advisory in nature, and set forth principles and technical information which interested employers may find useful in reducing workplace violence. Recent Bureau of Labor Statistics (BLS) and National Institute for Occupational Safety and Health (NIOSH) statistics indicate that homicide was the second leading cause of job-related death in 1995. It is the leading cause of fatalities in the workplace for women. An average of 18,000 workers are assaulted each week, resulting in millions of lost workdays and costing workers million of dollars in lost wages. OSHA has compiled risk factors for workplace violence identified by NIOSH and three states, and has set forth some useful techniques for reducing those risks. The guidelines are our recommendations based upon such findings.

The guidelines cannot and will not be enforced as though they were standards promulgated after notice-and-comment rulemaking. We hope the discussion which follows will demonstrate that there is a fundamental difference between an employer's obligation under the General Duty Clause, and the role of voluntary guidelines.

The General Duty Clause

As you know, when Congress enacted the Williams-Steiger Occupational Safety and Health Act of 1970, it intended to impose two complementary duties on an employer. The first was an employer's legal obligation to keep its workplace free from recognized hazards, likely to cause death or serious physical harm to its employees, for which a feasible means of abatement existed. (Section 5(a)(1)) This has come to be referred to as the "General Duty Clause." The second legal obligation which Congress imposed on an employer was its duty to comply with specific health and safety standards promulgated by OSHA after notice-and-comment rulemaking. Citations for violation of the General Duty Clause are issued when the four components of this provision are present, and when no specific OSHA standard has been promulgated to address the recognized hazard. These four elements are: 1) the employer failed to keep his workplace free of a "hazard"; 2) the hazard was "recognized" either by the cited employer individually or by the employer's industry generally; 3) the recognized hazard was causing or was likely to cause death or serious physical harm; and 4) there was a feasible means available that would eliminate or materially reduce the hazard. It should be noted that whether or not guidelines exist, an employer is till subject to the same legal requirements of Section 5(a)(1); an employer's duty will arise only when the four elements are present. Conversely, even in the presence of guidelines which offer a specific means of abatement for a recognized hazard found in an employer's workplace, the employer need not abate the hazard by the means suggested in the guidelines. Rather, an employer is always free to choose its own method of abatement.

The Role of Voluntary Guidelines

Voluntary guidelines, whether developed by governmental bodies such as OSHA, NIOSH, Centers for Disease Control (CDC), or private organizations such as the American National Standards Institute (ANSI), the National Fire Protection Association (NFPA), or others may be nothing more than a compilation of studies prepared by experts in a particular field. In the case of the late night retail guidelines, which are still in draft, the principles articulated therein are based largely on the laws, regulations, and guidelines of the states of Florida, Washington, and California, respectively.

OSHA intends to present these guidelines as a "best practices" guide, as a means of disseminating information, which interested employers are free, not forced, to utilize. The guidelines do not create any duties under the OSH Act. Therefore, an employer's failure to implement them does not constitute a violation of Section 5(a)(1) . For example when OSHA officially released its Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers, we followed up with a memorandum to our Regional Administrators stating that the guidelines were for "educational purpose only," and that no citations should be issued based upon them.

Finally, we would note that these draft guidelines, which are still a work in progress, were a collaborative effort which involved professionals form the Department of Labor, the states, industry groups, organized labor, and a victims' rights group. Meetings with these representatives were held to collect information on the issue and obtain comments on the drafts; the guidelines were posted on the Internet to ensure the widest distribution possible, so that even those who did not attend these meetings could make their views known. At the end of this period, in response to requests for extensions of time from industry groups, the sixty (60) day comment period was extended for an additional ninety (90) days, through September 30. We would respectfully submit that this process was fully consistent with the New OSHA, and that current draft exemplifies the spirit of cooperation and consultation between government, labor, industry and the employees we are duty-bound to protect.

As we hope the foregoing discussion has illustrated, these guidelines are not intended to have the force and effect of rules which can only be promulgated after notice-and-comment, nor can they be enforced through Section 5(a)(1). We will endeavor to make this point even clearer in the final version of the guidelines. Consequently, we do not believe the guidelines fall within the spirit or letter of the definition of "rule" in the Regulatory Flexibility Act, which would require an analysis of the economic impact on small business. Therefore, the agency did not conduct any studies of the economic consequences of the guidelines.

We appreciate this opportunity to provide the Committee with information on these draft guidelines. At the present time, we are not working on any other guidelines. We would be pleased to continue this discussion with you or Committee staff if you have any further questions.

Thank you for your interest in occupational safety and health.

Sincerely,



Joseph A. Dear
Assistant Secretary




July 25, 1996

Mr. Joseph A. Dear
Assistant Secretary
Occupational Safety and Health Administration
Department of Labor
Room S-2315
200 Constitution Avenue
Washington, D.C. 20210

Dear Mr. Dear:

We are writing to express our concerns about your proposal to issue guidelines for workplace violence prevention programs at night retail establishments. After reviewing some comments form small businesses on the April 5 draft guidelines, it appears that the guidelines may have a significant economic impact on a substantial number of small business.

The Committee recently held an oversight hearing on the Small Business Regulatory Enforcement Fairness Act (SBREFA). An attorney who specializes in health and safety issues explained to us that guidelines often can act as the functional equivalent of regulations from the perspective of small business owner. While the draft claims that the workplace violence guidelines are not as new standard or regulation and that "failure to implement these guidelines is not in itself a violation of the General Duty Clause," these statements are true only in the narrowest sense. Because of OSHA's pattern of citing employers for general duty clause violations when they fail to follow OSHA guidance documents, these guidelines clearly impose obligations akin to regulations and create or affect rights and obligations of people outside of the agency.

This practice of using guidelines to achieve specific compliance activities does not reflect the cooperative and consultative approach to regulating small businesses described by the President and Vice President at last year's White House Conference on Small Business. Changing agency culture to embrace this new approach also is at the heart of SBREFA. Federal agencies that adopt a narrow, legalistic view of the intent of SBREFA and the underlying Regulatory Flexibility Act, and that implement the requirements of these Acts only with respect to formal rulemakings conducted pursuant to section 553 of title 5 U.S.C, clearly will be acting contrary to the wishes of the small business delegates to the White House Conference and contrary to the spirit of the general regulatory reinvention effort.

The Regulatory Flexibility Act and SBREFA both contain provisions requiring scrutiny of the economic impact of rules on small businesses. We are requesting and analyses you have conducted on the economic impact of the proposed workplace violence guidelines on small businesses. We also request that you deliver a list of any other guidelines OSHA is planning to propose and an explanation of how the economic effects of these guidelines on small businesses will be taken into account. Please forward these documents to the Committee by August 15.

Sincerely,



Larry Pressler
Conrad R. Burns
Paul Coverdell
John Warner
William H. First
Robert F. Bennett
Dirk Kempthorne
Kay Bailey Hutchison
Olympia J. Snowe