STATEMENT OF JOSEPH A. DEAR
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE
SMALL BUSINESS COMMITTEE
U.S. HOUSE OF REPRESENTATIVES

FEBRUARY 10, 1995

Chairwoman Meyers and Members of the Committee:

The Department of Labor welcomes the opportunity to discuss with the Committee the Department's experience with the Regulatory Flexibility Act of 1980 (RFA), ways to enhance the effectiveness of the RFA, and provisions of Title VI of the Job Creation and Wage Enhancement Act (H.R. 9). I will present information on regulatory flexibility efforts at the Occupational Safety and Health Administration (OSHA) as well as at other DOL agencies that are subject to the requirements of the Regulatory Flexibility Act when promulgating regulations. These agencies include the Employment Standards Administration (ESA), which is responsible for administering and enforcing minimum wage and overtime standards, and anti-discrimination and workers compensation programs; the Mine Safety and Health Administration (MSHA), which is responsible for ensuring the health and safety of our nation's miners; the Employment Training Administration (ETA) which, is responsible for employment service, job training and unemployment insurance programs; the Occupational Safety and Health Administration (OSHA), which is responsible for ensuring the safety and health of the nation's working men and women; and, the Pension and Welfare Benefits Administration, which is responsible for protecting participants in private pension and welfare benefit plans, including employer sponsored health plans.

The Department of Labor shares the Committee's concern about the special needs of small businesses in complying with federal regulations. Our activities in this regard include providing technical assistance through publications and public appearances, educational materials, and on-site guidance such as nearly 24,000 free consultation visits in 1994 alone that focused on workplace safety and health. We realize that unless employers understand and are able to implement these rules, they serve no purpose. The Department is not interested in simply promulgating rules, but in taking actions that genuinely improve the nation's workplaces and the lives of hard-working men and women who are striving to contribute to society and to support themselves and their families.

The Regulatory Flexibility Act was enacted to help alleviate the burden of federal regulations on small employers. It was designed to ensure that regulatory agencies carefully weigh the effects of proposed and final rules on small entities.

While the Department has regularly undertaken regulatory flexibility analyses, there is room for improvement in the way we deal with the concerns of the small business community. In fact, we are already making progress and during the last two years, several of OSHA's regulatory initiatives have included regulatory flexibility analyses of high quality. The Department of Labor is determined to make additional progress in analyzing rules to determine their effect on small firms and proposing alternatives to mitigate any disproportionate impacts identified.

In OSHA's 1989 revision of the final rule for occupational exposure to lead, we analyzed the impact of the rule on small firms in each of nine sectors, identified differences in technology, cost of compliance, and economic impact for these firms. We specifically identified that small non-ferrous foundries would be subject to severe economic impacts by the rule. As a result, OSHA explored the feasibility of the rule for these facilities further, and in 1990, issued a final rule granting them regulatory relief in the form of increased flexibility in the methods of compliance.

The Department of Labor's agencies comply with the RFA by: (l) describing the reasons for the regulatory action; (2) stating the objectives and legal basis for the rule; (3) estimating the number of small entities affected; (4) estimating the cost of compliance for small entities, including the cost of reporting, recordkeeping, and obtaining any professional skills needed to comply; and, (5) identifying existing federal rules that may duplicate, overlap or conflict with the rule. If this analysis demonstrated a significant economic impact on a substantial number of small entities, our agencies considered regulatory alternatives that would serve to minimize this impact on these small firms.

Several examples drawn from OSHA's experience will illustrate how several of our more recent rules have been modified to meet the unique needs of small employers. First, OSHA standard for emergency evacuation plans (29 CFR 1910.38) provides special relief for small businesses in the form of an exemption from the requirement to have a written evacuation plan for firms with ten or fewer employees. Instead, these small employers are allowed merely to tell their workers verbally how to get out in an emergency. A second example applies to OSHA's rule for small grain elevators with storage capacities of less than one million bushels (29 CFR 1910.272). These facilities are allowed to perform a daily visual inspection of grain dust accumulations instead of using physical monitoring equipment like motion detectors.

As we examine the potential impact of our rules on small firms, however, we cannot forget that a safe and healthful work environment is just as important for employees working in small firms as they are for those working in large firms. In the area of occupational safety and health, for example, workplace injuries, illnesses and deaths are not confined to certain industrial sectors or to firms of certain sizes. Fatalities occur in small workplaces as well as the larger ones. In fact, according to data collected by OSHA, businesses with fewer than ten workers account for 40 percent of all fatalities even though they make up only 15 percent of employment. Data collected by MSHA show that 25 percent of fatalities in the coal mining industry in 1994 were at small mines (where fewer than 20 persons are employed). Small mines make up only 14 percent of coal mine employment.

Thus, while small businesses often seek exemption from protective regulations, their employees unfortunately have no such exemption from workplace tragedies. Just last week, an employee of a small 20-employee wood framing contract firm in Sioux Falls, South Dakota, lost his life. The worker was installing roof decking on a project and slipped off the roof and fell over 30 feet to the ground. The firm had failed to use any fall protection measures to prevent such an accident.

A similar tragedy occurred at a 24-employee recycling firm in Sheffield, Alabama on January 19. While removing scrap for recycling, a 28-year old man was struck and killed by a piece of metal. On January 24th, another worker operating a pulpwood loader, the sole employee of a small logging firm in Lineville, Alabama, was struck by the machine's boom and crushed to death against the loader.

I believe it is important to highlight the need for strong workplace safety and health standards and additional voluntary compliance assistance programs that can help prevent such tragic accidents. OSHA balances the need to develop protective regulations with the legal requirements set forth in our statute as well as other laws like the Regulatory Flexibility Act.

I want to take a moment to discuss some of the Department's newest initiatives to improve the regulatory process. These include outreach efforts to ensure that small employers understand our rules and how to comply with them. During the last two years we have focused on promulgating rules that are clear, cost-efficient and based on sound regulatory principles. Special efforts have also been made to ensure active participation in OSHA's rulemakings by all interested stakeholders, including small employers.

Just this year, we at OSHA put together a new strategy aimed at building a set of modern workplace safety and health standards, developed through partnerships with stakeholders, which make "real sense to real people." This planning process invited stakeholders to participate, both in writing and by attending scooping meetings, to discuss hazards that OSHA should consider addressing in the future.

The Department's agencies are also committed to writing regulations in plain English and providing employers with tools that will help them understand the rules and comply with them. We know these efforts are particularly beneficial to small employers.

OSHA's 1992 standard to protect workers from exposure to cadmium, for example, prevents occupational-related kidney disease and cancer. In direct response to requests from employers and medical professionals, OSHA developed an interactive software program, in cooperation with the Cadmium Council, to help them analyze workers' lab test results. The software classifies employees based on their test results and also recommends corrective action to be taken by the employer. The software allows the user the option of creating useful supporting documents, such as the required letters to affected workers and helpful checklists. This interactive compliance assistance tool is available free of charge and has been distributed both by OSHA and by the Cadmium Council.

So far, more than 500 copies of this software have been downloaded from the Department of Labor's electronic bulletin board and many other copies have been retrieved from various Internet sites. OSHA strongly encourages users to copy and share the program. A Department of Commerce report to Congress stated that the program is "...expected to save private firms hundreds of thousands of dollars in annual compliance and administrative costs and conceivably millions in liability and litigation costs." OSHA is developing a similar tool for our asbestos standard and will coordinate this effort with the Building Owners and Managers Association and other interested trade associations.

For other rules, such as our standard for process safety management of highly hazardous chemicals, OSHA worked extensively with industry groups to prepare and participate in five major town meetings held around the country. The Chemical Manufacturers Association (CMA), Organization Resources Counselors, Inc. (ORC), American Petroleum Institute (API), Synthetic Organic Chemical Manufacturers Association (SOCMA), and National Petroleum Refiners Association (NPRA) sponsored these meetings and invited OSHA's active participation. The two-day symposiums were attended by more than 2,000 participants and provided detailed information and training about the rule and how to comply. These partnerships with industry are excellent ways for OSHA to extend its reach and provide assistance to all employers.

MSHA held a Small Mine Summit in April 1994 to bring together miners, operators, government and academia to discuss the unique health and safety problems and needs of small mining operations. The conference generated many recommendations which MSHA is actively pursuing. For example, one effort to help small coal mine operators comply with MSHA rules was the development and distribution of the small mine operator safety kit. This kit sent free of charge to all small coal mine operators includes accident prevention materials and pocket size laminated cards which remind operators of MSHA's requirements.

Looking toward the 21st century, OSHA is actively exploring ways to use computer technology to provide assistance to employers. This includes placing the text of rules on the Department's electronic bulletin board and Internet sites; expanding the information available on our CD-ROM; and developing interactive compliance tools and flowcharts. All of these efforts are aimed at making workplace safety and health information readily available to businesses of all sizes, whether they access this information from their desktop or their local library.

Writing a reasonable regulation, even one tailored to the needs and capabilities of small businesses, is not enough. OSHA has numerous programs designed to reach small employers and provide them the information and assistance they need to make their workplaces safer and more healthful. The OSHA Consultation Program offers onsite, expert assistance to small employers to help them comply with OSHA requirements and establish effective safety and health programs. The Consultation Program is OSHA-funded and operates in all fifty states. Highly skilled OSHA consultants provide, free of charge, advice to employers on how to identify and abate workplace hazards, training of employers and their employees on safety and health issues, and assistance in developing and implementing comprehensive safety and health programs. Priority is given to small firms in high-hazard businesses. In 1994, the OSHA consultation program provided assistance to more than 23,700 employers.

This year we are preparing to focus our efforts even more on employers with high injury rates or serious health problems who are willing to establish a program to reduce those injuries and health exposures. We will evaluate state projects on their impact in these areas.

Similarly, OSHA's Safety and Health Achievement Recognition Program (SHARP) is designed to provide additional incentives to small, high-hazard employers to correct all hazards and establish an effective safety and health program. Those who do so through OSHA's Consultation Program, may be rewarded for their exemplary efforts by receiving a special certificate of recognition from OSHA that also exempts them for one year from general schedule OSHA inspections. We are exploring a longer period of exemption for employers who have sustained success for more than one year. During 1994, more than 1,400 establishments were involved in this program representing a 20 percent increase from 1993.

Every year, OSHA provides grants to non-profit groups under our Targeted Training Grants Program. This program is intended to develop training programs that focus on the special needs of small employers and their workers. In FY 1994, OSHA awarded nearly $2.4 million in grants to 17 non-profit organizations. These grantees will be developing model training programs for ergonomics, logging, process safety management, and safety and health programs.

In recent years, the demand for courses at OSHA's Training Institute in Des Plaines, Illinois, has increased beyond the capabilities of the Institute. In order to extend our reach to employers and safety and health professionals, we have agreements with eight educational institutions to teach OSHA-designed courses. These colleges and universities are located around the country from Manchester, New Hampshire, to La Jolla, California. Just two months ago, we invited educational institutions in the Midwest and West to apply to join our family of training centers. These newest centers will be announced in May.

Thank you for the opportunity to discuss this important issue with the Committee. I would be happy to answer any questions you may have.