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

SEPTEMBER 25, 1996

Chairwoman Meyers and members of the Subcommittee:

Thank you for the opportunity to speak today about OSHA's initiatives to reduce the regulatory burdens on small business employers while assisting them in protecting their employees. When I testified before this Committee in July 1995 OSHA had just begun to implement the President's regulatory reform initiatives. I would like to bring you up to date on our progress in creating the New OSHA and describe how the New OSHA has implemented the recommendations of the White House Conference on Small Business.

The New OSHA

In May 1995 President Clinton announced the New OSHA, and the agency began doing business in a way that is different than ever before. OSHA now emphasizes cooperative partnerships with employers and workers; common sense regulations written in plain language; and a new agency culture focusing on the reduction of injuries and illnesses rather than the number of inspections and penalties. Our new approach is improving the agency's ability to protect America's workers. It has won numerous awards and has been praised by members of this Congress.

The old OSHA was too confrontational with employers, often failing to distinguish between responsible employers and those who neglected their workforce. The New OSHA rewards responsible employers with cooperative programs, penalty reductions and other incentives. Serious violators of the law, however, receive serious penalties. You may have read of the deplorable working and living conditions at Decoster Egg Farms in Turner, Maine--one of the largest egg producers in the country. Workers toiled 10 to 15 hours a day picking up dead chickens and handling manure potentially infected with the Salmonella virus, with no equipment to protect them. OSHA inspected the workplace and proposed a fine of $3.6 million for violations found there.

On the other hand, firms which choose partnership work together with the agency to identify and eliminate workplace hazards. Under OSHA's Cooperative Compliance Programs OSHA is working in partnership with employers in twenty states to encourage and assist them in removing such hazards. Traditional OSHA enforcement is reserved for those employers who do not cooperate in protecting their workforce.

In the past, many employers believed that OSHA did not listen to them when the agency began working on a regulation that would affect their business. As a result, the rules turned out to be complicated and difficult to understand, particularly for small business employers. The New OSHA consults with those affected by its standards at the earliest opportunity to ensure that new rules make sense. As required by the Small Business Regulatory Enforcement Fairness Act (SBREFA) we involve small business employers whenever a rule would have a significant economic effect upon small businesses.

For instance, OSHA is developing a regulation that would limit worker exposure to tuberculosis. Before we even issue a Notice of Proposed Rulemaking, the first formal step in the process, we are consulting with almost a dozen small business employers, who are reviewing a draft of the proposal and providing comments and information to the agency. OSHA also consulted with small business owners in resolving an issue over regulations concerning exposure to asbestos. The industry was satisfied with the results of our discussions and as a result will work with us in protecting employees from asbestos dangers. An official with the National Roofing Contractors Association said that, "with the cooperation of OSHA we were able to negotiate a reasonable and workable solution."

The Old OSHA seemed more interested in penalizing employers than in reducing injuries and illness. In fact, some small business employers believe that OSHA is directly funded by the penalty funds it collects. In past years inspectors were even evaluated on the numbers of inspections, citations and fines which they issued. The New OSHA has eliminated this kind of performance measure. Now, agency inspectors will be rated on their ability to help employers and employees bring about real improvements in workplace conditions. We are more interested in the number of hazards abated than the amount of penalties collected.

White House Small Business Conference

In 1995 a White House Conference on Small Business issued sixty recommendations for government agencies to follow in dealing with small businesses. Three of the recommendations dealt specifically with OSHA. I would like to describe for you our response to each of these recommendations.

The Conference recommended that agencies periodically review all regulations, simplifying the rules and reducing paperwork wherever possible. Consistent with a directive issued by President Clinton, OSHA responded by conducting a page-by-page review of existing rules to identify those which were outdated, duplicative, and conflicting. We then took a number of actions. First, we eliminated 645 pages of duplicative regulations that affected the construction and shipyard industries. Then, last March OSHA removed 275 more pages of our rules by combining a number of regulations dealing with cancer-causing chemicals and eliminating regulatory text that discussed certain testing procedures and specifications. Two weeks ago we became more "user-friendly" by proposing to re-write our standard on exit requirements in simple, easy-to-understand language. Instead of laboriously detailed requirements for "means of egress," the rule will simply say employers must ensure that exit routes support the maximum load necessary.

Before we are through, OSHA will eliminate more than 1000 pages of regulations and will simplify hundreds more. New rules put out by this administration will be written in straight-forward, common sense language and will be accompanied by compliance assistance materials. Consistent with SBREFA, these materials will include a special focus on small business.

While recommending that government reduce regulations, the small business conference also requested that there be a single source for all government regulatory information. The Administration has made available on the Internet the U.S. Business Advisor, which is a one-stop point of contact for information about government rules and regulations. It contains links to OSHA's outreach and information sites. In addition, OSHA has a Home Page on the Internet, which is being expanded and revised. In this interactive environment, employers can receive copies of OSHA's standards and compliance assistance materials. They may also ask questions about our rules and receive information on the best work practices to safeguard their employees. The Home Page should be particularly helpful to small business employers who were hesitant to call OSHA's local offices for assistance in the past because they feared that doing so could result in inspections and fines.

OSHA also offers assistance on individual regulations. We have made available the Asbestos Advisor, an interactive compliance assistance tool that can be installed on a personal computer. It can interview the user about the type of buildings and work sites as well as the kinds of tasks which workers perform there. The Asbestos Advisor then provides guidance on how OSHA's asbestos standard applies to the building and the work done there. Those who have used this tool find it very helpful. The Building Owners and Managers Association has described Asbestos Advisor as:

* Logically formatted and easy to use. The idea of compliance software is a new one for the government--and BOMA is pleased to be part of this venture. It opens the door for greater cooperation between government and the private sector, and takes advantage of personal computers which nearly everyone can now use.

The second recommendation affecting OSHA was that the federal Government change the way in which it enforces regulations. OSHA has been a leader in doing just that. For instance in 1993 OSHA initiated the Maine 200 Program in which 200 employers with the most workers' compensation claims were given a choice--either cooperate with OSHA in removing hazards or face traditional OSHA enforcement. The program was a success as all but two employers chose to be partners. Participating employers eliminated worksite hazards at a rate 14 times greater than was possible under the old OSHA. OSHA was able to concentrate its enforcement resources on those who refused to cooperate. They received inspections.

The Maine 200 program won a Ford Foundation Award for Innovations in American Government. As I mentioned, the concept of cooperative programs has been expanded to nineteen other states.

Forming partnerships with industry allows OSHA to leverage its resources and reach more workplaces than could be done through our own enforcement efforts. The Voluntary Protection Program consists of companies which have gone beyond OSHA's requirements in protecting their workforce and involving their employees in that effort. Most of the participants are larger companies. Some of these larger firms, however, are using their expertise to mentor and assist smaller companies in making workplace improvements. For example, Exxon's facility in Linden, New Jersey is working with two small business employers in that area so that they can meet the same standard for worker protection achieved by Exxon.

Another enforcement innovation is OSHA's "Quick Fix" program through which employers can receive a 15 percent penalty reduction if they take corrective actions on the same day in which the problem is identified by OSHA's inspector. The policy does not apply to violations resulting in a fatality or serious injury. It demonstrates that we are more concerned with protecting workers than collecting fines.

OSHA uses focused inspections in the construction industry to employ resources at the most hazardous construction worksites and avoid employers who are already doing a good job of protecting their workforce. If the contractor has a safety and health program that meets OSHA's requirements, the inspector concentrates on the four leading construction dangers--falls, electrocutions, crushing injuries, and being struck by material or equipment. A focused inspection concentrates on these hazards, which cause 90 percent of all deaths in construction, instead of the myriad OSHA regulations that a general inspection would encompass. In Fiscal Year 1995 OSHA conducted 1, 375 focused inspections, which represented ten percent of all inspections in the construction industry that year.

The nursing home industry is one the of the fastest growing sectors of our economy and incudes many small businesses. Unfortunately, nursing home workers face the third highest rate of occupational injuries and illnesses, according to the Bureau of Labor Statistics. To assist the owners in protecting their workforce from back injuries, workplace violence, exposure to bloodborne diseases, and other hazards, OSHA is offering free, comprehensive safety and health seminars, designed for nursing home employers in seven states which have large numbers of these facilities. We have learned that enforcement alone does not solve all workplace safety and health problems. Innovative efforts such as the nursing industry assistance program are a new way of addressing these problems.

One of OSHA's most important regulations is the Hazard Communication Standard, designed to ensure that workers are aware of the dangers from toxic substances in their work environment. The regulation requires that information on thousands of toxic substances used in American workplaces be sent from manufacturers to employers. Employers must pass the information on to employees and ensure that they receive training about dangers from chemicals in their workplace. Some small business employers have been overwhelmed by the volume of information sent by manufacturers and have needed assistance in understanding the more technical aspects of the standard. To address these problems OSHA convened a working group of the National Advisory Committee on Occupational Safety and Health to make recommendations on ways for helping small business employers understand and comply with the rule. For example, the workgroup recommended that OSHA, in partnership with industry and labor, develop a core training program and procedures for identifying hazards to assist small business employers. The workgroup further recommended that OSHA urge chemical manufacturers to include a statement on the first page of each Material Safety Data Sheet indicating whether the substance was regulated under the standard. This would reduce the amount of material that must be compiled by employers. OSHA is considering these recommendations and will decide soon if changes need to be made in the way the standard is enforced.

The New OSHA has restructured many of its local offices so that we can serve our customers better while eliminating red-tape and improving our inspection targeting system to focus on the most dangerous workplaces. We measure the performance of OSHA's staff not on the number of citations and fines they issue but on the changes in injuries and illnesses in those industries in which they concentrate their resources.

What does this mean for employers? It means that OSHA tries new ways of working with them, such as a project in Atlanta in which we teamed up with the insurance companies and others to do on-site risk assessments for employers who wanted to improve safety conditions. One of the risk assessments conducted by Georgia's on-site consultation program and the Argonaut Insurance Company helped the Horizon Steel Erectors, Inc. establish a fall protection program for steel erectors. Not only were workers protected, but the company realized a 96 percent reduction in its workers' compensation costs.

Another of the White House Conference recommendations dealt with paperwork, exemption from fines, voluntary compliance audits, and the development of construction standards.

Small business employers have been particularly concerned when OSHA cited them for paperwork violations unrelated to safety and health, such as the failure to put up a poster about OSHA. In Fiscal Year 1992 OSHA issued 3842 violations of the requirements for a poster. We have stopped these practices. When an inspector finds a workplace without the required poster, the employer is given a poster rather than a fine.

I have instructed OSHA's inspectors to stop issuing citations and penalties when there are minor violations of recordkeeping requirements such as failure to keep a log when no injuries occur at the workplace. As a result citations for the most common paperwork violations declined by 61 percent between Fiscal Year 1992 and Fiscal Year 1995.

OSHA is making several changes in its penalty policies that should be of benefit to small business employers. The OSH Act has always allowed OSHA to consider the size of the business in determining the amount of a proposed penalty, and penalties are frequently reduced for small business employers who have shown that they try to protect their employees. We are now testing a policy of increasing to as much as 80 percent the maximum allowable penalty reduction for size for employers with 1-10 employees. The agency is also testing a policy that would eliminate penalties for other-than-serious violations for employers with 250 employees or fewer if there are no willful, repeat or failure-to-abate violations found during the inspection. These changes are consistent with the New OSHA's philosophy that our ultimate goal is to eliminate workplace hazards, not to collect penalty money from employers.

I have fought hard to ensure that the Congress continues to provide adequate funding for OSHA's on-site consultation program, which has provided free safety and health advice, upon request, to small business employers for almost twenty years. The consultation service, similar to an audit of the workplace, is available throughout the nation. It is funded by Federal OSHA and administered by the states. The consultants provide assistance over the telephone or at the employer's workplace. In the past 5 years more than 100,000 small and medium-sized employers have received consultative assistance from this program.

OSHA's construction standards apply to large and small-sized contractors alike because many of the hazards faced by employees in the construction industry are present in all kinds of workplaces. But OSHA recognizes that smaller contractors may need assistance in complying with its regulations. To assist homebuilders, we have issued a directive allowing employers to provide methods of fall protection other than the conventional methods required by the standard, as long as workers receive equivalent protection. Because of concerns expressed by representatives of homebuilders OSHA is also working on a revision of its fall protection rules as they apply to residential construction. We will listen to and evaluate fall protection methods suggested by various industry groups, including the homebuilders and roofing contractors.

Small Business Relief Act of 1996

I wish to say a few words about H.R. 3234, the Small Business OSHA Relief Act of 1996. I am deeply concerned about this legislation and the impact it would have on worker safety and health. Rather than codify the New OSHA initiatives, as claimed, the bill would substantially compromise worker protection.

One of the most troubling provisions is section 2, which contains an undefined new requirement that all new OSHA standards must be "based upon"a cost benefit analysis. This provision could increase litigation among workers, employers, and OSHA. Even worse, it could be interpreted to be inconsistent with the core principle in the OSH Act that American workers should be protected from significant risks to the extent feasible. The Supreme Court has said that OSHA can (and should) produce standards that have justifiable benefits without translating the right to be free of preventable harm into a monetary formula. OSHA considers costs and benefits in developing standards, but does not affix a dollar value to life and limb. Executive Order 12866 calls for rules for which benefits justify costs, and the Department of Labor is in compliance with this because it is flexible as opposed to the strict statutory language.

H.R. 3234 would substitute a formal, strict cost-benefit analysis that treats worker deaths, injuries, and illnesses as a cost of doing business. In some cases OSHA might have greater difficulty in protecting workers against certain hazards. OSHA might also not be able to give adequate consideration to factors such as equity (should workers have to accept greater risks than the general public because they need a paycheck?) in developing regulations. If H.R. 3234 were enacted OSHA could overlook particularly vulnerable subpopulations of workers, such as women of childbearing age, or value younger workers more highly than older ones.

For example, several hundred thousand textile workers developed "brown lung"--a crippling and sometimes fatal respiratory disease--from exposure to cotton dust before OSHA issued protections in 1978. Subsequently, the percentage of workers affected dropped from 20 percent of the industry's workforce to 1%, and the problem has all but disappeared today. Yet OSHA might have had to delay these protections for years, or withdraw them altogether, if it had been required to satisfy a strict cost-benefit test.

H.R. 3234 would also impede our efforts to target the most dangerous workplaces. As I have described, the New OSHA has begun reducing or eliminating penalties for technical paperwork violations while directing our enforcement activities to the most dangerous worksites. The bill would preclude OSHA from issuing citations for non-willful, first time violations of any recordkeeping or written program requirements unless the violation resulted in the employee being exposed to a hazard. This provision would make OSHA's recordkeeping requirements largely unenforceable, since failing to record an injury or illness would not, in most cases, by itself expose workers to a hazard. Thus, H.R. 3234 would make it extremely difficult for OSHA to gather data on injuries and illness. The bill would seriously impede the agency's effort to identify the most dangerous workplaces and target them for inspections. In fact, without accurate injury and illness records from employers, how would OSHA--or even employers--know whether workers had been injured or exposed to harmful substances?

In summary, H.R. 3234 proposes reforms which come at the expense of worker protection. Although some provisions appear consistent with the Administration's reinvention efforts, the sections on cost benefit analysis and recordkeeping enforcement could impede OSHA's efforts to do a better job. If this bill became law, it could represent a retreat on worker protection rather than an advance.

The significant problems and opportunities facing OSHA stem not from the statute but from the way it is enforced. As OSHA reinvention initiatives over the past three years have shown, administrative changes, stakeholder involvement with the agency, use of common sense, and the proper use of our resources demonstrate that we can help employers achieve safety and health. We can solve OSHA's problems without changing the law in problematic ways.

The New OSHA has made partnership a cornerstone of the way we do business with employers and workers. By offering employers a choice between cooperation and enforcement, by using common sense in developing and enforcing regulations, and by focusing OSHA on results, we have changed the agency for the better. The changes we have made will be lasting changes because they make sense to those who are involved with this agency.

I appreciate the Committee's interest and support for our efforts. I would be happy to answer any questions.