STATEMENT OF JOSEPH A. DEAR
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE
HOUSE JUDICIARY SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

JUNE 27, 1996

Mr. Chairman and Members of the Subcommittee:

Thank you for this opportunity to discuss the Occupational Safety and Health Administration's (OSHA) efforts to improve its standard-setting process by the use of negotiated rulemaking. Before I get into the specifics of OSHA's negotiated rulemaking experience, I would like to take a few minutes to detail the agency's recent efforts to "reinvent" itself as the "New OSHA."

NEW OSHA

President Clinton's 1995 "New OSHA" initiative emphasizes cooperative partnerships with employers and workers; common sense, plain language protective standards; and a new agency culture focusing on the reduction of injury and illness rates rather than the numbers of inspections, citations and penalties. Although the implementation of many of these new programs was slowed during the past year due to OSHA's funding situation, President Clinton's initiative has already improved OSHA's ability to protect America's working men and women, earned numerous awards, and won praise from both employers and workers.

Over the years, OSHA has been charged with being too confrontational with employers and refusing to differentiate between safe and unsafe employers. In response to this concern, OSHA has developed a "cooperative partnership" approach which uses penalty reductions and other incentives for employers who make a good faith effort to protect workers. At the same time, the agency has maintained its traditional enforcement program, to ensure that serious violators face serious consequences.

OSHA's Maine 200 program serves as an example of this new partnership approach. Under this program, OSHA identified the 200 employers in Maine with the highest number of injuries and offered them a chance to work in partnership with the agency. Participating employers eliminated hazards at these sites at a rate 14 times greater than would have been expected under the old OSHA. According to initial data received by OSHA's Augusta, Maine, Area Office, over half of these employers have achieved measurable reductions in workplace injuries and illnesses. The creativity and success of the Maine 200 program was acknowledged by the receipt of a 1995 Ford Foundation Innovations in American Government Award. Other states are now developing their own Maine 200-like programs.

Another incentive-based activity is OSHA's "focused inspection" program in the construction industry. In this program, if the employer has an effective safety and health program, OSHA will not conduct a full-scale inspection. Instead, OSHA inspects for only the most hazardous working conditions at a worksite: fall hazards; electrical hazards; "struck by" hazards; and "caught in between" hazards. This has the added benefit of enabling OSHA inspectors to pursue other safety and health issues.

Consistent with the Negotiated Rulemaking Act's (NRA) goals, OSHA has recently taken numerous steps to improve its dialogue with (and among) the regulated community. Previously, OSHA had heard criticism that it had not listened closely enough to employers, workers and safety and health professionals in the standard-setting process, and that as a result, its regulations were too complicated and hard to understand. In response, the agency now consults with stakeholders both early and often in the development of protective standards to ensure that new rules make sense. One successful instance of stakeholder input involves OSHA's development of voluntary guidelines related to the growing problem of workplace violence. These voluntary guidelines, which went into effect last Spring, cover workers in the health care and social services industry, an industry which (according to BLS statistics) has a dramatically higher incidence of workplace violence than general private industry. With the close involvement of industry and workers, OSHA has also developed a draft set of similar voluntary guidelines to help curb violence in the night retail industry. Likewise, the agency's standard to protect workers from butadiene exposures will be based on an agreement between workers and employers in the synthetic rubber industry. A final example of OSHA's expanded efforts to increase stakeholder participation can be found in our attempt to simplify recordkeeping requirements and improve the quality of data collected. We accomplished this by holding meetings where a broad spectrum of business and organized labor shared their viewpoints on how worker safety and health could be improved through more efficient data collection.

OSHA is also responding to criticism that the agency was too concerned with paperwork violations. In response, the agency has taken steps to reduce or eliminate penalties for technical paperwork violations. For example, in 1990, OSHA issued 5,059 citations for failing to put up an OSHA poster, assessing an average fine of $400 for each violation. Through the first six months of FY 1996, OSHA issued just four poster violations, all for willful or repeat violations. As a consequence of these and other changes, citations for the most common paperwork violations have declined by 71% over the past six years.

Finally, OSHA has eliminated performance measures based on inspections, fines and citations. We are now developing a new performance system tied to real improvements in safety and health. In addition, OSHA is redesigning each of its field offices to expand the use of proactive, cooperative approaches as an enforcement tool, and to improve efficiency and customer service. For example, in order to speed up the informal complaint process, OSHA now uses telephone and facsimile methods to investigate informal complaints instead of drafting a letter, mailing it, and awaiting a response. This new process has improved worker protections by substantially reducing the time from complaint to abatement of hazards: from 32.5 days to just 8.5 days in Atlanta; from 35 days to just 11 in Columbus; and from 39 days to just 9 in Wichita.

NEGOTIATED RULEMAKING

This Subcommittee is contemplating whether to reauthorize the Negotiated Rulemaking Act. Based upon OSHA's experience with the negotiated rulemaking process, I strongly urge that you do so.

Congress passed the NRA in 1990 because it felt that the affected parties were discouraged from meeting and communicating with each other and that the existing rulemaking system encouraged antagonistic positions. Many times, this adversarial relationship resulted in time-consuming, expensive litigation. The NRA requires parties to meet face-to-face to develop a rule which, if possible, reflects the needs and concerns of all constituencies. Not only are the ramifications associated with litigation reduced by the negotiated rulemaking process, but a tremendous amount of education occurs for all parties. At the same time, Congress recognized that negotiated rulemaking was not a panacea. Each potential candidate must be reviewed to determine if it is suitable for negotiated rulemaking. The NRA sets out seven specific factors which must be considered in the determination process. They are useful for predicting whether to plan an effort that will require the expenditure of considerable time and effort.

Even before the passage of the NRA, OSHA successfully experimented with formal negotiated rulemaking. In 1985 the agency, following a declaration by EPA, determined that exposure to Methylenedianiline (MDA) presented a significant risk to humans and concluded that the risk could be reduced through feasible abatement requirements. MDA is a chemical used in producing polyurethane foams and elastomers. It is used extensively in the aerospace and electronics industries.

Instead of following the normal rulemaking procedures, OSHA established a Negotiated Rulemaking Advisory Committee under Section 7(b) of the Occupational Safety and Health Act (OSH Act) to develop consensus recommendations for an MDA standard. The membership of the committee consisted of a broad spectrum of affected parties. Industry was represented by, among others, the National Electrical Manufacturers Association, the Chemical Manufacturers Association and the Suppliers of Advanced Composite Materials Association. The International Association of Machinists and Aerospace Workers, the United Steel Workers of America and the United Brotherhood of Carpenters and Joiners of America represented organized labor. The National Institute for Occupational Safety and Health (NIOSH) and the Department of Energy are examples of governmental representatives on the committee. The committee met seven times, achieved consensus, and presented recommendations to OSHA for MDA standards for general industry and construction. The Committee consensus was published in the Federal Register in July, 1987, less than three months after consensus was reached. When the proposed rulemaking was published, minimal public comments were received and the public hearing was extremely short compared to traditional OSHA health standard hearings. The final MDA standard was never challenged in court. I attribute these remarkable facts to the active participation of all affected parties in the development of the rule. The participants also realized that they had been given the rare opportunity to fashion a regulation to meet their particular needs. They took their charge seriously and worked long and hard to complete a rule which benefited workers and made sense.

STEEL ERECTION

A more recent example of OSHA experience in negotiated rulemaking involves the development of protections for workers engaged in steel erection, through the Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC). Although it employs only 5% of the work force, construction accounts for some 20% of the occupational fatalities occurring annually. Approximately one-third result from falls from high places. Among construction workers, those erecting steel structures are most at risk.

SENRAC's perseverance led to a major success. SENRAC's membership consisted of, among others, the Ironworkers International; the Associated General Contractors of America; the Associated Builders and Contractors; the National Erectors Association; the United Steelworkers of America; and NIOSH. In addition, all parties having a substantial interest in this rulemaking had the opportunity to participate at Committee meetings and workgroup meetings.

SENRAC began its negotiations in June 1994, and reached consensus on the text of a proposed rule in December 1995. The process included eleven meetings to hammer out long-standing differences that, until negotiated rulemaking, could not be resolved. Following the successful negotiations, one SENRAC member is quoted as saying "[T]he core of the industry, organized labor and organized contractors, were in total lock-step the whole way." Stakeholders like Black & Veatch, an engineering and construction firm, called it a "dynamic process that produced a standard that will be very useable, easy to understand, and will save lives...the result was a product that the government didn't develop and shove down industry's throat." The International Association of Bridge, Structural & Ornamental Iron Workers (AFL-CIO), stated "This is a major success that permitted those who must abide by a government regulation to help write it. Because it was done this way, it will expedite swift voluntary compliance by the industry."

I would also like to take a moment to point out that, early on, SENRAC determined that the special needs and concerns of the small business community would not get swept aside in the negotiations. The flexibility of negotiated rulemaking allowed the Committee to consider the needs of all elements of the industry. The Committee crafted several provisions with special consideration given to small erectors. As an example, a separate section was developed for small builders who erect pre-engineered metal structures exclusively, so as to promote compliance. These are only a few examples of how the group took into consideration the requirements of all elements of the industry.

OSHA staff are presently preparing a Notice of Proposed Rulemaking (NPRM) based on the SENRAC consensus text. We hope to publish the NPRM by the end of this calendar year.

FIRE PROTECTION IN SHIPYARDS

As another indication of the agency's commitment to the process, OSHA, just this month, published a "Notice of Intent to Form Negotiated Rulemaking Advisory Committee to Develop a Proposed Rule on Fire Protection in Shipyard Employment" in the Federal Register. This committee will be established under the aegis of the Federal Advisory Committee Act (FACA) and the NRA. As we stated in the preamble to this notice, "[t]he most important reason for using Neg/Reg is that the shipyard stakeholders from all sectors strongly support consensual rulemaking efforts like negotiated regulation. OSHA believes this process will be less adversarial than regular rulemaking and will result in a proposal that will effectively protect employees."

The committee will include about 15 members representing such significantly affected interests as shipyard owners; contractors; labor organizations representing employees who perform fire protection work; fire fighters, including both in-yard/plant and municipal; government entities, particularly the Navy and the Coast Guard; professional associations; and manufacturers and suppliers of fire protection equipment. The agency will also seek public comment on whether additional interests should be included. The agency hopes to have a draft NPRM ready by the summer of 1997.

CONCLUSION

OSHA is pursuing the use of negotiated rulemaking because this Administration, the Department of Labor, and OSHA are committed to cutting the red tape and bureaucratic process which can lead to confrontation rather than consensus. Past experience has taught us that negotiated rulemaking is advantageous only when all major interests in a particular rulemaking are represented, and when the issues addressed are finite and manageable within the available time. If not, there is almost a guarantee that the final rule will end up in litigation. The legal process can take many months to run its course. Already tight resources, which could be used for other purposes, are spent on litigation costs. Workers continue to be injured during the interim. By working together, as partners in the process, there is a much higher compliance rate than through traditional rulemaking methods. This is because industry is aware of each step of the process and can keep its membership informed, so they know what needs to be done to meet the requirements.

Another benefit from having the parties together in one room, hashing out a compromise, is that they can come to appreciate each other's position and respect the sincerity of each party's beliefs. What tends to happen during successful negotiated rulemaking process is that the confrontational/adversarial wall is broken down. The group then begins to create from a common purpose. I believe that the lessons that each party takes away from a successful process are priceless. Not only do they create bridges over seemingly impassable chasms but they help both the regulated party and the regulator to appreciate different views.

Not all rules are suitable for negotiated rulemaking. However, if a determination is made that public interest is better served by using the method, then an agency head should not be reluctant to use the process. I believe one member of the SENRAC put the whole process in perspective when he said: "Everybody was on the same side" --- the side of worker safety. NRA is good public policy because it makes common sense. I ask that you act expeditiously to reauthorize the legislation.