REMARKS OF JOSEPH A. DEAR,
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,
BEFORE THE US HOUSE OF REPRESENTATIVES
SUBCOMMITTEE ON REGULATION AND PAPERWORK,
AND THE COMMITTEE ON SMALL BUSINESS

JUNE 15, 1995

Thank you for this opportunity to discuss the Occupational Safety and Health Administration's revised fall protection standard (Subpart M of 29 CFR Part 1926; Part 1910), particularly as it affects the residential construction industry. Before discussing the fall protection standard, I would like to make a few general comments.

In the past few months, we all have heard a lot of troubling stories about OSHA, almost all of it negative, and almost all of it not true. These include stories that OSHA is filled with incompetent inspectors who fine businesses thousands of dollars for nitpicky violations that have little to do with worker safety. You may have heard a number of "horror stories" which have been circulated about overzealous enforcement by OSHA.

But most of these stories have little basis in fact. Nor does the impression they leave accurately reflect the successes of OSHA in preventing injuries and illnesses or the improvements the agency has made recently. Make no mistake, OSHA is changing the way it does business. As announced by President Clinton, Vice President Gore, the Secretary of Labor and myself on May 16, OSHA has begun regulatory reform initiatives to enhance safety, trim paperwork, and transform the agency. OSHA is working to carry out the President's commitment. Copies of the President's Report on "The New OSHA" were mailed to each of you in May.

The New OSHA

First, OSHA is changing its fundamental operating model from one of command and control to one that provides employers a real choice between a partnership and a traditional enforcement relationship. This change is designed to separate good actors from bad actors in the safety and health arena, and to treat them differently.

For example, OSHA plans to nationalize the successful features of its "Maine 200" program. In this program, which was instituted in 1993, the 200 Maine companies with the highest number of injuries were offered a choice: work in partnership to improve safety, or face stepped-up enforcement. All but two firms chose partnership. The firms received assistance in developing safety and health programs, and in return were given the lowest priority for inspection (in other words, inspections generally occurred only if there were formal complaints or serious accidents).

The Maine program is extremely promising. In two years, the employers self-identified more than fourteen times as many hazards as would likely have been cited by OSHA inspectors. Nearly six out of ten employers in the program have already reduced their injury and illness rates, even as inspections and fines have significantly diminished.

OSHA will expand the most successful features of this program nationwide. These successful elements include: using worksite-specific data to help identify high-hazard workplaces, offering employers a choice in how they work with OSHA, providing information to employers about effective safety and health programs, conducting efforts to find and fix hazards, ensuring management commitment and employee involvement, and modifying enforcement policies for high-performance employers.

Common Sense Regulation

Second, OSHA is changing its approach to regulations by eliminating or fixing out-of-date and confusing standards, identifying clear and sensible priorities for new rules, focusing on key building block rules, and emphasizing interaction with business and labor in the development of new rules. As part of its effort to implement common sense regulation, OSHA will rewrite many of its standards in plain language.

OSHA has already begun identifying outdated, duplicative or conflicting regulations, which can be particularly burdensome to small businesses. We held meetings with stakeholders in May and the early part of June to gather input on which OSHA regulations should be eliminated or revised.

Results, Not Red Tape

Third, OSHA is changing the way it works on a day-to-day basis, by focusing on the most serious hazards and the most dangerous workplaces and by insisting on results instead of red tape. OSHA inspectors no longer penalize employers who have not put up the required OSHA poster if the employer agrees to post it right away. OSHA inspectors have been told clearly that there are no numeric inspection goals and that their performance will be judged not by the number of citations and fines they issue, but by their success in finding and reducing hazards associated with injuries and illnesses.

Our recently implemented Focused Inspections in Construction policy allows OSHA to recognize the efforts of safety-conscious employers by conducting our inspections in a more streamlined manner, focusing on the four leading causes of construction fatalities: falls, struck-by, crushing and electrocution. As part of this policy, we will not issue penalties for "other-than-serious" infractions which are abated immediately.

I would be pleased to elaborate on these initiatives during the question and answer period.

Facts Supporting the Need to Issue a Revised Fall Protection Standard

OSHA's revised fall protection standard was issued on August 9, 1994 and went into effect on February 6 of this year. The standard was developed with the participation and involvement of interested parties from both labor and industry, and is expected to save over $200 million annually in wage and productivity losses, medical costs, administrative expenses, and other costs associated with accidents.

Falls are the leading cause of death and one of the leading causes of injuries to construction workers. According to the Census of Fatal Occupational Injuries, there were 273 fall fatalities in the construction industry in 1993, accounting for 30 percent of all construction fatalities. (In the roofing industry, two-thirds of all fatalities were caused by falls.) An OSHA study of fall fatalities that occurred between 1985-1989 found that eight percent were caused by falls of between six and ten feet.

OSHA's regulatory analysis conducted in support of the standard estimated that 115,000 injuries occur due to falls in construction each year, 68,000 of which would be addressed by the revised Subpart M. It also found that approximately $718 million is spent each year on workers' compensation for lost workday fall injuries. Full compliance with the revised fall protection standard is expected to save 79 lives and prevent 56,400 injuries per year.

Data from the Bureau of Labor Statistics (BLS) shows that 60 percent of all lost workday fall injuries occurred at heights under ten feet. Forty-one percent of these injuries were to construction workers. A separate BLS study on falls demonstrated that of 110 falls from roofs, half involved workers falling distances of 15 feet or less. Injuries from such falls can be very serious. The study found that over half of these workers suffered fractures to one or more parts of their bodies, over 40 percent suffered muscle sprains, strains or torn ligaments, and 9 percent suffered a concussion. Data like this led OSHA to conclude that falls of less than 16 feet (the fall distance permitted for low-slope roofing work by the fall protection standard as it was written at that time) pose a significant hazard and that workers exposed to such falls should be protected.

Preventable Tragedies

But let us move beyond the statistics. Let me tell you about some real people who were killed in falls of less than ten feet. On December 1, 1992, in Towanda, Pennsylvania, a 46 year-old roofing foreman was mopping hot tar on a roof so that another employee could apply four-by-four sheets of insulation. The foreman was situated near an unguarded edge of the roof, and was not wearing a safety belt and lanyard.

As he pushed away the hot tar kettle and turned around to retrieve a piece of insulation, his right foot stepped off the edge. He fell 7 to 10 feet, bounced off horizontal pipes and onto a concrete ramp near ground elevation. A helicopter transported him to a hospital, where he died the next day.

In California, on September 3, 1992, an inexperienced 34 year-old roofing contractor assigned to do ground work brought a hammer to a co-worker on a bare plywood roof. On the roof, his "street-type" shoes slipped out from under him. He slid down the roof and fell 9 feet to the pavement. He suffered a severe concussion and hematoma and died three days later.

On August 1, 1990, in Kaneohe, Hawaii, a 56 year-old employee climbed onto a roof where a re-roofing job was in progress. The employee managed to maneuver around one unbarricaded opening near a skylight; however, he tumbled through another opening which was covered only with tarpaper. The worker fell 9 feet to his death.

All of these incidents could have been prevented with simple, cost-effective precautions such as those required by the revised fall protection standard.

Complaints about the Rule

I understand that since the fall protection standard went into effect, some have expressed concern that the standard's requirements are too onerous. The principal criticisms concern the infeasibility of conventional fall protection methods in certain situations and the possibility of creating a greater hazard when using certain fall protection methods.

In drafting the revised standard, OSHA made every effort to account for these issues, and to allow employers sufficient flexibility to deal with them. For example, the agency recognized that the certain sectors of the construction industry face unique challenges. Thus, we specifically stated in the rule that for precast, leading-edge and residential construction work, employers may use alternate methods of fall protection when the use of conventional methods would be infeasible or would create a greater hazard. All the employer has to do is develop and implement a fall protection plan that explains the particulars of the situation and the alternative measures being used. The employer would maintain the plan at the worksite and make it available to the compliance officer in the event of an OSHA inspection.

OSHA has met many times with the National Roofing Contractors Association (NRCA) to discuss contractors' concerns about greater hazards and feasibility, and NRCA has agreed to develop a draft fall protection plan to meet the needs of its industry. OSHA expects to receive the draft plan this month. If the agency finds that the plan would facilitate compliance, it may be published in the Federal Register as a non-mandatory appendix to the standard.

Another issue that has come to our attention is the concern of many small contractors that they will be placed at a competitive disadvantage against other contractors who are not complying with the rule and who may escape OSHA enforcement. What some contractors may not realize is that OSHA does not have jurisdiction over sole proprietorships or other companies where no employer-employee relationship exists. Unfortunately, this may mean that there is not a level playing field between these different types of companies in the residential construction industry, so the concern is understandable. It is not, however, a valid reason to deny needed fall protection to millions of workers.

History of the Rulemaking

OSHA developed the revised fall protection standard, as it does all of its standards, through a rulemaking process that includes and involves the regulated community. OSHA is fully committed to this process, which is characterized by the following elements:

* Creation of numerous opportunities for those who will be affected by a standard to express their views, provide information or statistics to back up their assertions, and learn OSHA's intentions. These opportunities take many forms, from public hearings, stakeholder meetings, and public comment periods, to electronic means such as the Internet.

* Willingness to listen to the comments received and take them into account, making changes to the proposal based on input from the regulated community. OSHA always responds to comments submitted to the rulemaking docket in its published final rule, either indicating how the comment changed the proposal or explaining why the agency has failed to adopt a suggested change.

* Careful analysis to assure that affected employers and workers will find that the standard, as promulgated, is both reasonable and necessary.

* Availability to solve problems on a case-by-case basis after the rule takes effect and readiness to issue interpretations to clarify the rule, if that becomes necessary. OSHA's Directorate of Compliance Programs in the national office issues compliance directives to provide guidance for field officers, and provides interpretations of rules in response to letters and phone calls from the public. OSHA's field offices also respond to questions about rules on a case-by-case basis.

OSHA met all of these criteria with respect to the revised fall protection standard.

In November of 1986, OSHA issued its proposal to revise Subpart M and require some fall protection measures when the fall distance is 6 feet or more. A comment period was open until August 1987; 162 comments were received. Public hearings were held in March 1988, and the rulemaking record was closed in August 1988. The record was reopened twice: once from August 1992 through November 1992, for the purpose of considering new information on precast concrete construction, and again from March 1993 through May 1993. The second reopening of the record was for the purpose of discussing the feasibility of protecting employees engaged in residential construction from fall hazards using conventional fall protection systems, and to request information regarding alternative measures or safe work practices in the residential construction industry. Twenty-eight comments were received.

The appropriate level for the maximum fall distance was one of the significant issues during the rulemaking. Many roofing industry participants expressed the view that workers need not be protected from falling off sides and edges of low-slope roofs unless the fall distance exceeds 16 feet, the maximum allowed by the previous OSHA fall protection regulation. However, OSHA's Advisory Committee on Construction Safety and Health, which includes employer representatives, recommended that a maximum fall distance of 6 feet be set for both low-slope roofs and steep roofs. NIOSH - the Federal agency charged with conducting research on occupational safety and health - concurred with this finding. The United Union of Roofers, Waterproofers and Allied Workers (Roofers Union) also supported changing the maximum fall distance to 6 feet during the rulemaking.

However, in March 1994, the NRCA and the Roofers Union submitted a joint position paper to OSHA recommending that the provision addressing roof work on low-slope roofs not require fall protection until the worker was exposed to a fall of 10 feet or more. They did not recommend changing the 6-foot fall protection requirements for any other type of construction activity covered by the revised rule. The Agency gave serious consideration to the recommendation, but in light of the data showing that falls from heights of six to ten feet are a significant cause of deaths and serious injuries, OSHA concluded that the 6-foot fall protection requirement was necessary to provide an appropriate level of safety for workers on low-slope roofs. Therefore, the final rule places the same 6-foot requirement on low-slope roofing activities as applies to the rest of the construction industry. I would like to clearly state, however, that employer concerns were not ignored. The standard allows for employer flexibility in methods of compliance, reflecting OSHA's recognition that there will be situations where conventional methods of providing fall protection would be infeasible or would create a greater hazard for employees. The standard also contains a non-mandatory appendix (developed in cooperation with the residential construction industry) that is intended to facilitate compliance with the rule.

The rulemaking record demonstrated that employees in all construction industries covered by the new standard face significant risks related to fall hazards. Let me emphasize that there were no legal challenges to OSHA's basic findings that the requirements of the revised fall protection standard a) are reasonably necessary to protect affected employees; b) are cost effective; and c) are not going to produce significant adverse economic impacts.

Outreach to Stakeholders

OSHA has made a concerted effort to meet with representatives of the regulated community, both during the development of the revised fall protection standard and since it was issued. During the period from June 1992 to August 9, 1994, when the rule was issued, OSHA held ten meetings with representatives of the residential construction industry to hear and address their concerns about feasibility and creating greater hazards. As a result of these meetings and in response to their comments, the final rule allows greater flexibility in this industry, as I discussed earlier. Since the final rule came out, OSHA has held an additional ten meetings with the residential construction industry to explain the rule and discuss "real world" concerns. OSHA has also reviewed and commented on two National Association of Home Builders' video tapes, and written materials for NAHB's outreach efforts on fall protection. We have published a pamphlet, available from any field office or from our Publications Office, explaining the requirements of the standard and answering common questions. And these are just the efforts of the National Office. OSHA's field offices have also held hundreds of meetings, and answered hundreds of phone calls and letters from representatives of the residential construction industry concerning fall protection. OSHA has made every effort to respond to the concerns of the regulated community and to involve all interested parties in the development and implementation of this standard.

OSHA Is Willing to Address Compliance Concerns

I realize that some confusion may exist in the regulated community concerning certain aspects of the rule. The pamphlet that OSHA issued spells out very clearly which activities are covered by the rule and which are not, and should prove helpful to those who have questions.

Further, we expect that a forthcoming memorandum will offer clearer guidance to our field offices, which will, in turn, lead to greater consistency in the enforcement of this standard across the country.

Conclusion

OSHA is making positive changes in the way it operates, to protect the working men and women of this country more efficiently. The new OSHA is emphasizing common sense regulation and results instead of red tape. We believe our revised fall protection standard is a step in the right direction.

Mr. Chairman, I thank you for the opportunity to talk about the issues surrounding OSHA's revised fall protection standard. I will be pleased to respond to any questions.