TESTIMONY OF EDWIN G. FOULKE, JR.
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH

BEFORE THE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES

June 14, 2006

Mr. Chairman, Members of the Subcommittee:

Thank you for the opportunity to appear before you today. I enjoyed meeting with you last month, Mr. Chairman, and welcome this further opportunity to continue a dialog exploring ways to improve the process by which the Occupational Safety and Health Administration (OSHA) considers the use of standards set by outside organizations when promulgating guidance or rules. In particular, I would like to discuss OSHA's method for determining which information is required to be included in its material safety data sheets (MSDSs), and your interest in making the development of safety and health recommendations more transparent.

I am aware that you have had a long-term interest in this issue and I appreciate the work you are doing. I want you to know that I share your goals of providing parties affected by standards and regulations the opportunity for meaningful input, avoiding conflicts of interest by those writing the rules, and ensuring the quality of information that OSHA requires manufacturers and employers to disseminate. Before addressing the legislation you recently introduced, the Workplace Safety and Health Transparency Act (H.R. 5554), I want to outline the already transparent rulemaking process that OSHA currently employs. You may rest assured that we are interested in finding ways to incorporate that same transparency into the process for determining what information must be included in MSDSs and ensuring that the process allows for diverse views to be considered.

OSHA has a transparent rulemaking process that seeks diverse views through a variety of means.

OSHA shares your interest in encouraging wide public participation from all interested parties in its rulemaking process. OSHA seeks meaningful input through a variety of means, including written and electronic comments, public hearings--when requested--that allow participants the opportunity to present information and question other participants on the record, and an open public rulemaking record. Any final regulation or standard that OSHA issues at the conclusion of these processes has to be based on substantial evidence in the record. Additionally, the Agency publishes final regulations in the Federal Register with an explanation of its requirements.

OSHA also offers small business a unique opportunity to provide meaningful input through Small Business Regulatory Review Panels, as mandated by Congress. OSHA regularly convenes these Panels for its major rulemakings, which allow affected small businesses to offer input and make recommendations on regulatory alternatives early in the rulemaking process. The Panels conclude with a report on the suggestions offered by the small-entity representatives, which is submitted to the official rulemaking record on which regulations must be based.

OSHA is also beginning a peer review of the risk assessment and health effects analyses developed for the silica rulemaking in accordance with the requirements of OMB's Information Quality Bulletin for Peer Review. The peer review process will provide the public with an additional comment opportunity, including a public meeting, before a proposed rule is published. OSHA seeks input through a variety of means and sources to produce the most effective standards, from both a health and safety and feasibility perspective.

I would also like to point out the great strides OSHA has taken to implement a public-friendly rulemaking docket system, so that the public can access important information from the Web and also submit their own comments 24 hours a day. In addition to the resources on the Web, OSHA also provides docket office staff to aid the public in their search of the docket system.

OSHA relies upon numerous sources of data to promulgate the most effective standards and guidance possible.

After 35 years of serving the public, OSHA recognizes the unquestioned importance of data, research, and all forms of information to support its congressionally mandated mission "to assure safe and healthful working conditions for working men and women." OSHA seeks data, used in its broadest meaning, from all sources, including governmental organizations, academic institutions, associations, employers, and individuals. Accurate information serves as the foundation for the development and issuance of effective occupational safety and health standards and guidance materials. In addition, when promulgating health standards, OSHA is required under the OSH Act to consider the best and latest available scientific data.

Since my arrival at the Agency a little over two months ago, Mr. Chairman, I have come to understand that one source of safety and health information is of particular interest to you¿the American Conference of Government Industrial Hygienists' (ACGIH) Threshold Limit Values (TLVs). I believe you are particularly interested in the way that TLVs are used in OSHA's Hazard Communication Standard (HCS).

OSHA's Hazard Communication Standard and its use of ACGIH's TLVs.

As you know, OSHA's Hazard Communication Standard (29 C.F.R. Sec. 1910.1200) sets forth a comprehensive system for the evaluation of chemical hazards and the transmission of information about those hazards to employers and employees. Its intent is two-fold: to give employers, in one document, the information they need to provide appropriate protections to their employees; and to provide workers with information about the identities and hazards of the chemicals in their workplaces. The provisions referring to the TLVs govern hazard determination and material safety data sheets (MSDSs).

Briefly, the Standard requires chemical manufacturers and importers to evaluate the scientific evidence relating to the hazards of each chemical they manufacture or import. If sufficient scientific evidence exists to establish that the chemical is a hazard under the Standard, the manufacturer or importer must, among other things, prepare an MSDS containing information about the chemical and its hazards, and provide the MSDS to employers who purchase the chemical. Employers use the MSDSs in designing their own hazard communications programs to ensure that employees receive information about the chemical hazards to which they are exposed, as well as in developing ways to protect their employees from such hazards. The Hazard Communication Standard, however, does not establish exposures limits, nor are any limits enforced by the Agency as a result of the standard.

A chemical is a health hazard by definition under the Hazard Communication Standard if there is "statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees." The Standard, as currently written, states that the existence of an OSHA Permissible Exposure Limit (PEL) or an ACGIH TLV for a chemical establishes that the chemical is "hazardous." A determination that a chemical is hazardous triggers the other provisions of the Standard, including labels, MSDSs, and provision of information to employees. In addition, an MSDS must list any TLV, as well as any OSHA PEL "and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the [MSDS]." Nothing in the regulation requires employers to comply with the exposure levels noted in the MSDS. OSHA believes it more efficient to have the preparer of the MSDS provide complete information about the chemical and precautionary measures than to have to independently research and seek out disparate sources of information to determine how to manage exposures appropriately.

In response to several issues raised in your past letters, I assure you that OSHA does not enforce TLVs developed by ACGIH under the General Duty Clause of the OSH Act or under any individual standard that provides generally worded safety and health mandates. In January 2003, the Agency issued a memorandum clarifying that occupational exposure recommendations such as ACGIH's TLVs are not to be treated as OSHA-mandated Permissible Exposure Limits for enforcement purposes. TLVs and other non-mandatory exposure recommendations are not to be enforced, in and of themselves, by government action. We are reviewing options to take further steps in this regard including the possibility of reissuing the 2003 memorandum.

OSHA is working to address congressional concerns.

I acknowledge your concerns regarding the use of ACGIH TLVs in the Hazard Communication Standard and have asked my staff to examine options to address the issues you have raised, in addition to ways to increase the effectiveness and utility of the Standard. For instance, we are examining whether it is appropriate to accord any specific organizations, such as ACGIH, a preeminent position in the hazard determination provisions of the Standard. We are also evaluating ways to ensure that information that is required to be included in MSDSs is developed through a transparent process that allows for the consideration of diverse views and ensures the quality of the information produced. Mr. Chairman, I assure you that on this issue and other issues, I favor a transparent process that is based on sound science. Additionally, I fully intend to work with you as we address this issue.

OSHA's comments on H.R. 5554

OSHA supports your efforts to seek diverse views on the information utilized in the rulemaking process, including those of other appropriate federal agencies, as expressed in Subparts 2 and 3 of the newly proposed Section 6A(a) included in Section 2(a) of H.R. 5554. The bill, however, could have the result of prohibiting OSHA from using many important sources of information¿including standards, findings, reports, papers, treaties and recommendations, issued by industry, trade, or employee representative groups, and academic institutions--when drafting rules and issuing voluntary guidance documents. Specifically, section 2(a) of the proposed bill would prohibit the Secretary of Labor from promulgating "any finding, guideline, standard, limit, rule, or regulation based on a determination reached by any organization," unless the Secretary finds that the organization that issued the determination is a national consensus organization. In developing guidelines and rules, however, OSHA regularly relies on determinations made by a variety of organizations, including industry and labor organizations, private professional associations, academic institutions, and scientific research groups.

In addition, as I previously mentioned, under the OSH Act, OSHA is required to consider the best and latest available scientific data when promulgating health standards. Limiting OSHA's consideration of information to only consensus group material would inhibit the agency's consideration of meaningful and relevant information from stakeholders, experts, and informed parties that contributes to informed rulemaking. Scientific studies, manufacturers' guidelines, and trade association best practices are all important sources of information for OSHA¿information we use to improve employee safety and health. Critically important and useful information would be unusable to OSHA if the bill was passed in its present form.

For example, suppose a study about a safety or health issue was conducted by a group of researchers at a university, such as the University of Georgia, and the results, which contained one or more scientific determinations, were published in a peer-reviewed journal. Even if the study's determinations were submitted to OSHA as part of a formal notice-and-comment rulemaking process, this bill would likely prohibit OSHA from relying on that information in promulgating a standard. The bill's provisions might also jeopardize the collaborative efforts of OSHA's successful cooperative programs, such as Alliances, where employers and OSHA work together to produce industry-specific guidance and compliance assistance materials.

Another Subpart of Section 2(a) of the proposed bill would add additional requirements for "rulemaking proceedings initiated by the Secretary of Labor but not finalized prior to enactment of this section." This section requires the Secretary to "investigate and identify the use of, influence of or reliance upon" findings or recommendations by organizations that do not operate on a consensus basis. Under this legislation, the Secretary would have to publish the results of the investigation in the Federal Register and not incorporate or rely on non-consensus based organization findings or recommendations produced by such an organization in publishing any final standard or official recommendation.

This section seems to raise all of the same concerns as Section 2(a), potentially prohibiting OSHA from utilizing useful information available to it, but applies those limitations to all of OSHA's ongoing rulemakings as well. To operate effectively to protect the safety and health of employees, OSHA needs to be able to consider all sources of information in the early stages of rulemaking. Since the rulemaking process is intended to attract recommendations and submissions of information from a variety of organizations, parties, and stakeholders, excluding the work of all non-consensus organizations would be inconsistent with established administrative law practices and would greatly diminish the information that OSHA is able to use. It would also curtail the Agency's ability to hear and consider as wide a variety of viewpoints as possible.

The bill's requirement to investigate the influence of and reliance on information provided to OSHA by non-consensus organizations and to publish a report in the Federal Register explaining the findings of the investigation before it can issue final rules also raises concerns for OSHA. Such an investigation would needlessly consume the Agency's precious resources and substantially delay the issuance of important rules, but would yield little information of value since OSHA is already required to explain the nature of the information that it relies on at the time the final standard is published. In most cases, the final rule must also be defended in court based on the record as a whole. With all of these checks already in place, it is not clear what purposes would be served by such a costly and time-intensive investigation.

Finally, the section that deals with the approval of State Plans could very well create tensions between federal OSHA and states wishing to adopt an occupational safety and health program. It would forbid the agency from approving any new state plans unless OSHA determines that any outside standards adopted by the plan were promulgated by a nationally recognized standards-producing organization under procedures wherein it can be determined that persons interested and affected by the rule reached substantial agreement on adoption. This provision establishes a criterion that varies from the criterion in section 18(c) of the OSH Act, which directs OSHA to approve state plans that have standards that are or will be "as least as effective as" the federal rules. New state plans could be precluded from adopting some of the same protective regulations that OSHA adopted at its inception in 1971, because some of the rules were likely based upon information produced by non-federal entities that may not have been substantially agreed upon at the time by all affected parties. Although not clear, presumably this Section would also apply to the adoption of future standards by the 26 currently approved State Plans. The provision may limit the States' ability to adopt federal standards by reference. Certainly, this provision could preclude a State Plan from adopting a more protective regulatory regime than federal law or standards ¿ something the OSH Act clearly contemplated permitting the states to do.

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Conclusion

In conclusion, I would like to reiterate that I share your views on the importance of transparency in the regulatory process. I strongly believe that the notice and comment rulemaking process OSHA utilizes is a model of openness that includes full public participation. I also share your goal of ensuring the quality of information that OSHA requires manufacturers and employers to disseminate, and pledge to work diligently to explore options to bring that same transparency to bear on the process by which OSHA determines what hazard information must be transmitted to employers and to America's workers. I appreciate the work you have done over many years on this subject and look forward to working with you in the future on this and other safety and health issues.

I will be happy to answer any questions that you may have.