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64–532 PDF 2011

INVESTIGATING OSHA’S REGULATORY AGENDA 

AND ITS IMPACT ON JOB CREATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, FEBRUARY 15, 2011 

Serial No. 112–5 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

http://www.gpoaccess.gov/congress/house/education/index.html 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

[Vacant] 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Kristi L. Noem, South Dakota 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

[Vacant] 

Lynn C. Woolsey, California, Ranking 

Donald M. Payne, New Jersey 

Dennis J. Kucinich, Ohio 

Timothy H. Bishop, New York 

Mazie K. Hirono, Hawaii 

George Miller, California 
(III) 

C O N T E N T S 

Page 

Hearing held on February 15, 2011 ....................................................................... 1 

Statement of Members: 

Hirono, Hon. Mazie K., a Representative in Congress from the State 

of Hawaii, prepared statement of ................................................................ 54 

Kucinich, Hon. Dennis J., a Representative in Congress from the State 

of Ohio, prepared statement of .................................................................... 55 

Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections ... 1 

Prepared statement of ............................................................................... 2 

Additional submissions: 

Letter, dated Feb. 22, 2011, from Tree Care Industry Association, 

Inc. [TCIA] ...................................................................................... 56 

Letter, dated Oct. 15, 2010, to Hon. Hilda L. Solis, Secretary, 

U.S. Department of Labor, from U.S. House Members ............... 57 

Letter, dated Feb. 4, 2011, to Secretary Solis, from U.S. Senators ................................................................................................. 60 

Letter, dated Aug. 5, 2008, Hon. Elaine L. Chao, former Secretary, U.S. Department of Labor, from U.S. House Members .. 62 

Letter, dated Sept. 27, 2007, to former Secretary Chao, from 

U.S. Senators .................................................................................. 64 

Woolsey, Hon. Lynn, ranking minority member, Subcommittee on Workforce Protections ............................................................................................ 3 

Prepared statement of ............................................................................... 5 

Additional submission: 

Slide with photo of Hayes Lemmerze combustible dust explosions 

and fire ............................................................................................ 66 

Statement of Witnesses: 

Holmes, Jacqueline M., Esq., of Counsel, Jones Day, testifying on behalf 

of the U.S. Chamber of Commerce .............................................................. 26 

Prepared statement of ............................................................................... 29 

Miser, Tammy, founder, United Support and Memorial for Workplace 

Fatalities ........................................................................................................ 22 

Prepared statement of ............................................................................... 23 

Sessions, Stuart L., president, Environomics, Inc. ........................................ 13 

Prepared statement of ............................................................................... 15 

Sullivan, Hon. Thomas M., Esq., of Counsel, Nelson Mullins Riley and 

Scarborough ................................................................................................... 7 

Prepared statement of ............................................................................... 9 

(1) 

INVESTIGATING OSHA’S REGULATORY 

AGENDA AND ITS IMPACT ON JOB CREATION 

Tuesday, February 15, 2011 

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, DC 

The subcommittee met, pursuant to call, at 10:03 a.m., in room 

2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding. 

Present: Representatives Walberg, Kline, Bucshon, Noem, Ross, 

Kelly, Woolsey, Payne, Kucinich, and Miller. 

Staff present: Kirk Boyle, General Counsel; Casey Buboltz, Coalitions and Member Services Coordinator; Ed Gilroy, Director of 

Workforce Policy; Ryan Kearney, Legislative Assistant; Brian Newell, Press Secretary; Molly McLaughlin Salmi, Deputy Director of 

Workforce Policy; Linda Stevens, Chief Clerk/Assistant to the General Counsel; Loren Sweatt, Professional Staff Member; Aaron 

Albright, Minority Deputy Communication Director; Tylease Alli, 

Minority Hearing Clerk; Daniel Brown, Minority Staff Assistant; 

Jody Calemine, Minority Staff Director; Brian Levin, Minority New 

Media Press Assistant; Kara Marchione, Minority Senior Education 

Policy Advisor; Richard Miller, Minority Senior Labor Policy Advisor; Megan O’Reilly, Minority General Counsel; Julie Peller, Minority Deputy Staff Director; and Michele Varnhagen, Minority Chief 

Policy Advisor and Labor Policy Director. 

Chairman WALBERG [presiding]. Well, I am told a quorum is 

present. It is time to begin, so let’s begin. 

The subcommittee will come to order. Good morning. Allow me 

to welcome my colleagues and our guests to our first hearing of the 

Subcommittee on Workforce Protections. The subcommittee oversees a number of federal policies and programs that reach into 

America’s workplaces. The decisions that we make in this subcommittee touch upon the lives of countless workers, employers, 

and their families. 

I look forward to working with my colleague, Lynn Woolsey, the 

ranking Democrat member of the subcommittee. She has a deep 

passion for these issues, and no one can question her commitment 

to worker safety. 

I know there will be times when we disagree. We have talked 

about that. But I have pledged to put forward my best efforts to 
2 

find common ground whenever possible. The cause of worker safety 

is best advanced when we work together. 

And so that is why today’s hearing will examine the regulatory 

agenda at the Occupational Safety and Health Administration. 

Since 1970, OSHA has been charged with enforcing laws that govern worker safety and health by developing rules intended to keep 

workplaces free from recognized hazards. The regulatory agenda 

speaks to the Administration’s priorities. Worker safety is a goal 

we all share. However, we have real concerns with the policies and 

process the Administration has recently proposed to reach that 

goal. 

Over the last 2 years, OSHA has not only attempted to implement several policy changes that would have profound impact on 

the workplace; it has become an Administration more focused on 

punishment than prevention. All employers who jeopardize the 

safety of workers should be held accountable to the fullest extent 

of the law. 

However, punishment is just one piece of enforcing the law. Our 

goal should be to prevent workplace accidents before they happen, 

not simply shame an employer once a tragedy has occurred on the 

job site. 

And so that is why I am concerned with the recent actions that 

suggest the Administration has shifted the balance toward punishment and taken its sights off commonsense rules that promote prevention. 

Worker safety is a priority and so, too, is promoting policies that 

will allow businesses to grow and hire new workers. Needless rules 

and onerous regulations are often roadblocks to economic growth 

and job creation, which we all want. 

The President has called on his Administration to scour the 

books in search of policies that undermine private-sector job 

growth. This subcommittee looks forward to joining that effort in 

the weeks and months ahead. 

I am particularly aware of the urgency of the task before us. My 

home state of Michigan has been hit hard by recent recession. Currently, the unemployment rate in Michigan stands at 11.7 percent, 

and even higher in some counties in my congressional district that 

I represent. We all must be partners in an effort to get the American people back to work. 

Our witnesses today will discuss the potential economic and 

worker safety impact of OSHA’s regulatory agenda. We have heard 

the mantra that good jobs are safe jobs. I agree. But let us ensure 

that bad policy does not destroy the good jobs we need to create. 

At this time, I would like to yield to Congresswoman Woolsey, 

the ranking member of the subcommittee, for her opening remarks. 

[The statement of Mr. Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Chairman, 

Subcommittee on Workforce Protections 

Good morning. Allow me to welcome my colleagues and our guests to our first 

hearing of the Subcommittee on Workforce Protections. This subcommittee oversees 

a number of federal policies and programs that reach into America’s workplaces. 

The decisions we make in this subcommittee touch upon the lives of countless workers, employers, and their families. 

I look forward to working with my colleague Lynn Woolsey, the ranking Democratic member of the subcommittee. She has a deep passion for these issues and no 
3 

one can question her commitment to worker safety. I know there will be times when 

we disagree but I pledge to put forward my best efforts to find common ground 

whenever possible. The cause of worker safety is best advanced when we work together. 

That is why today’s hearing will examine the regulatory agenda at the Occupational Safety and Health Administration. Since 1970, OSHA has been charged with 

enforcing laws that govern worker safety and health by developing rules intended 

to keep workplaces free from recognized hazards. The regulatory agenda speaks to 

the administration’s priorities. Worker safety is a goal we all share, however, we 

have real concerns with the policies and process the administration has recently 

proposed to reach that goal. 

Over the last two years, OSHA has not only attempted to implement several policy changes that would have profound impact on the workplace, it has become an 

administration more focused on punishment than prevention. All employers who 

jeopardize the safety of workers should be held accountable to the fullest extent of 

the law. 

However, punishment is just one piece of enforcing the law. Our goal should be 

to prevent workplace accidents before they happen, not simply shame an employer 

once a tragedy has occurred on the job site. That is why I am concerned with recent 

actions that suggest the administration has shifted the balance toward punishment, 

and taken its sights of commonsense rules that promote prevention. 

Worker safety is a priority, and so too is promoting policies that will allow businesses to grow and hire new workers. Needless rules and onerous regulations are 

often roadblocks to economic growth and job creation. The president has called on 

his administration to scour the books in search of policies that undermine privatesector job growth. This subcommittee looks forward to joining that effort in the 

weeks and months ahead. 

I am particularly aware of the urgency of the task before us. My home state of 

Michigan has been hit hard by the recent recession. Currently, the unemployment 

rate in Michigan stands at 11.7 percent and even higher in some counties in the 

congressional district I represent. We all must be partners in an effort to get the 

American people back to work. 

Our witnesses today will discuss the potential economic and worker safety impact 

of OSHA’s regulatory agenda. We have heard the mantra that ‘‘Good jobs are safe 

jobs.’’ I agree. But let us ensure that bad policy does not destroy the good jobs we 

need to create. At this time, I would like to yield to Congresswoman Woolsey, the 

Ranking Member of the Subcommittee, for her opening remarks. 

Ms. WOOLSEY. Thank you, Mr. Chairman. And congratulations 

on your election as chair of this subcommittee. 

Chairman WALBERG. Thank you. 

Ms. WOOLSEY. It was a very active subcommittee in the last Congress. And I look forward to actually continuing much of the work 

that we started in, moving forward in this Congress. And I am certain that we are going to have a good working relationship. 

I applaud today’s focus on OSHA’s regulatory agenda, because 

over the past 4 years, this panel has explored a number of loopholes in OSHA’s regulatory safety net. And I am hoping that under 

your leadership, Mr. Chairman, together we can fix what is needed 

and bring OSHA into the 21st century. 

But first things first. If OSHA comes under assault from the new 

majority, the fact is, the agency may not be able to carry out its 

core missions. For example, the 18 percent reduction of OSHA’s 

budget in the Republican Continuing Resolution for fiscal year 

2011 would eliminate 415 employees, bringing OSHA to its lowest 

staffing levels since 1974, likely forcing OSHA to furlough all of its 

employees for 3 months. This would mean 8,000 fewer workplace 

hazard inspections and 740 fewer whistleblower discrimination investigations this year alone. 

And the deeper one digs, the worse it appears. The Republican 

funding resolution completely zeroes out OSHA’s statistics and in-
4 

formation division. Mr. Chairman, that means no more data collection on workplace health and safety trends, which is critical for targeting hazardous work sites. This cut even shuts down OSHA’s 

website. 

The continuing resolution we are currently debating includes 

cuts to state OSHA programs, including California and Michigan, 

both of our states, which are under extreme fiscal duress at the 

moment. It cuts OSHA’s safety and health standards by 16 percent, 

blocking long-overdue rules, like the one to prevent falls at nonconstruction sites. 

In other words, Mr. Chairman, the Republican C.R. doesn’t just 

trim OSHA’s budget; it absolutely cripples the agency and needlessly jeopardizes safety standards and endangers American workers. 

So today’s hearing about how OSHA’s regulatory agenda affects 

job creation and investment is truly serious. I strongly believe it is 

the lack of regulation that has killed workers and their jobs. 

Take, for example, a deadly 2009 explosion at the ConAgra Slim 

Jim plant in Garner, North Carolina. Contractors purged the natural gas line they were connecting to a new industrial water heater, but they didn’t smell gas, and they kept venting the pipe for 2.5 

hours, until the gas found a spark. Three workers were killed; 71 

were injured in that explosion. 

Rather than rebuild the section of the plant that was destroyed, 

ConAgra is consolidating production elsewhere, closing the plant 

and putting 700 people out of work. 

Now, I want you to look at this hose.—— 

Chairman WALBERG. I will move over, if necessary. [Laughter.] 

Ms. WOOLSEY. Had there been OSHA regulations banning indoor 

gas purging, the contractors would have simply taken a piece of 

hose like this, a piece of hose like this, and connected it to the gas 

pipe and vented it outside, away from the building. So everyone 

has to agree: Had there been such a rule, there would have been 

no deaths, there would have been no injuries, and 700 people would 

still have their prized factory jobs in their same area where they 

live. 

Red tape has slowed OSHA’s efforts to prevent combustible dust 

fires and explosions, like the 2008 tragedy at Imperial Sugar and 

the Indiana dust explosion illustrated at the easel, which is to my 

right over there. That is what that looked like, that killed the 

brother of a witness who is here today. 

We know the dust explosion problem can be fixed and without 

damaging competitiveness. Following a string of grain elevator explosions, OSHA issued a grain-handling standard in 1987. Since 

that rule, there has been a dramatic decline in explosions without 

any negative economic impact on the grain-handling industry or related small businesses. 

So, Mr. Chairman, as we begin our first hearing of the 112th 

Congress, we have to challenge some of the long-held erroneous assumptions about regulations being bad for profit margins and economic growth. OSHA needs the resources to carry out its mission 

to protect its workers and to help businesses at the same time. 

So, again, I want to thank you and I want to thank the witnesses 

who are here today, especially those of you who have had to travel 
5 

1Safety Bulletin, Dangers of Purging Natural Gas into Buildings, Chemical Safety Board, September 2009. 

long distances to be with us. I look forward to your testimony. 

Thank you. 

[The statement of Ms. Woolsey follows:] 

Prepared Statement of Hon. Lynn Woolsey, Ranking Minority Member, 

Subcommittee on Workforce Protections 

Thank you Mr. Chairman, and congratulations on your election as Chair of this 

subcommittee. 

I applaud today’s focus on OSHA’s regulatory agenda, because over the past four 

years, this panel has explored a number of loopholes in OSHA’s regulatory safety 

net, and i’m hoping that under your leadership, together we can fix what is needed 

and bring OSHA into the 21st century. 

But first things first. If OSHA comes under assault from the new majority, the 

fact is, the agency may not be able to carry out its core missions. 

• For example, the 18% reduction to OSHA’s budget in the Republican continuing 

resolution for fiscal year 2011 would eliminate 415 employees, bringing OSHA to its 

lowest staffing level since 1974. 

• Likely forcing OSHA to furlough all of its employees for 3 months. This would 

mean 8,000 fewer workplace hazard inspections and 740 fewer whistleblower discrimination investigations this year. 

And the deeper one digs, the worse it gets: 

• The Republican funding resolution completely zeroes out OSHA’s statistics and 

information division. That means no more data collection on workplace health and 

safety trends, which is critical to targeting hazardous work sites. This cut even 

shuts down OSHA’s web site. 

• The continuing resolution we are currently debating includes cuts to state 

OSHA programs, including California and Michigan—both of which are under extreme fiscal duress. 

• It cuts OSHA’s safety and health standards by 16%—blocking long overdue 

rules, like the one to prevent falls at construction sites from comint to fruition. 

In other words, Mr. Chairman, the Republican CR doesn’t just trim OSHA’s budget, it absolutely cripples the agency needlessly jeopardizing safety standards and endangering American workers. 

So today’s hearing about how OSHA’s regulatory agenda affects job creation and 

investment is truly serious. 

I strongly believe it’s the lack of regulations that has killed workers and their 

jobs. 

Take, for instance, a deadly 2009 explosion at the Con Agra ‘‘Slim Jim’’ plant in 

Garner, North Carolina. Contractors purged a natural gas line they were connecting 

to a new industrial water heater. But they didn’t smell gas and kept venting the 

pipe for 21⁄2 hours—until the gas found a spark. Three workers were killed and 71 

were injured in the explosion. 

Rather than rebuild the section of the plant that was destroyed, Con Agra is consolidating production elsewhere, closing the plant and putting 700 people out of 

work. 

Had there been OSHA regulations banning in-door gas purging, the contractors 

would have simply taken a piece of hose like this, and connected it to the gas pipe, 

and vented it outside away from the building. 

Everyone agrees: had there been such a rule, there would have been no deaths 

or injuries, and 700 people would still have prized factory jobs.1

Red tape has slowed OSHA’s efforts to prevent combustible dust fires and explosions, like the 2008 tragedy at imperial sugar, and the indiana dust explosion illustrated at the easel to my right, that killed the brother of a witness here today. 

We know the dust explosion problem can be fixed * * * and without damaging 

competitiveness. Following a string of grain elevator explosions, OSHA issued a 

grain handling standard in 1987. Since that rule, there has been a dramatic decline 

in explosions without any negative economic impact on the grain handling industry 

or related small businesses. 

Mr. Chairman, as we begin our first hearing of the 112th Congress, we must challenge some of these long-held, erroneous assumptions about regulations being bad 

for profit margins and economic growth. OSHA needs the resources to carry out its 

mission, protect workers, and help businesses at the same time. 
6 

I want to thank our witnesses for being here today, especially those who had to 

travel a long distance to be with us, and I look forward to their testimony. Thank 

you. 

Chairman WALBERG. I thank the gentlelady. And I think we are 

both committed to making sure that these hearings do deal with 

subjects of great interest, concern, and close to your heart, as well 

as the rest of the committee. 

Pursuant to Committee Rule 7(c), all members will be permitted 

to submit written statements to be included in the permanent 

hearing record. And without objection, the hearing record will remain open for 14 days to allow such statements and other extraneous material reference during the hearing to be submitted for official hearing record. 

It is now my pleasure to introduce our distinguished panel of witnesses, the first being the Honorable Thomas Sullivan, works in 

the law firm of Nelson, Mullins, Riley & Scarborough, where he 

represents clients on a number of regulatory and rulemaking matters, while also serving as the head of the Small Business Coalition 

for Regulatory Relief. Prior to joining Nelson Mullins, Mr. Sullivan 

served as the chief counsel for advocacy in the Small Business Administration from 2002 to 2008. Mr. Sullivan earned his JD from 

Suffolk University Law School and a bachelor of arts in English 

from Boston College. 

We welcome you. 

Mr. Stuart Sessions is president of Environomics. Mr. Sessions 

was formally an analyst and manager with the Office of Management and Budget and Environmental Protection Agency. Mr. Sessions holds a master’s of public policy from the Kennedy School of 

Government at Harvard University and a bachelor of arts and economics from Amherst College. Mr. Sessions is testifying today on 

behalf of the Coalition for Workplace Safety. 

Thank you, and we welcome you. 

Ms. Tammy Miser is an advocate for worker safety and founder 

of United Support and Memorial for Workplace Fatalities, an organization that serves as an advocacy group for individuals affected 

by workplace-related injury or death, and to add to that, has experienced the impact in her own life. 

We welcome you and thank you for being here. 

And then, finally, Ms. Jacqueline Holmes works in the law firm 

of Jones Day, where she focused her practice on litigation involving 

federal and state regulatory agencies. Ms. Holmes earned a JD 

from Loyola Law School in Los Angeles, California, and a bachelor 

in science from the California Institute of Technology. Ms. Holmes 

is testifying today on behalf of the U.S. Chamber of Commerce. 

And we welcome you. Thank you. 

Before I recognize each of you to provide your testimony, let me 

briefly explain our lighting system. You will each have 5 minutes 

to present your testimony. When you begin, the light in front of you 

will turn green. When 1 minute is left, the light will turn yellow. 

And when your time is expired, the light will turn red, and it 

doesn’t get any redder than that. 

I promise I won’t gavel you down mid-sentence. I probably won’t 

gavel you down, either. But we will make it clear that your time 
7 

is expired. But I would ask you that you try to wrap up your testimony when your time has expired. 

After everyone has testified, members will each have 5 minutes 

to ask questions of the panel. I won’t make the same promise to 

members that I won’t gavel them down when their time is expired, 

but I am sure that we can work on that. 

With that, let me now turn to our distinguished panel, and let’s 

begin with Mr. Sullivan. 

STATEMENT OF HON. THOMAS M. SULLIVAN, ESQ., OF 

COUNSEL, NELSON MULLINS RILEY AND SCARBOROUGH 

Mr. SULLIVAN. Thank you, Mr. Chairman, members of the committee. I am pleased to present this testimony on how OSHA considers the impact on small entities when developing regulatory proposals. 

The testimony this morning is not being presented on behalf of 

any specific clients at my law firm. Rather, my advice today is 

drawn from my 2 decades of work on small business regulatory 

issues. I would like to briefly summarize my statement, so I ask 

that the full written statement be entered into the record. 

Thank you. 

Chairman WALBERG. So ordered. 

Mr. SULLIVAN. The Regulatory Flexibility Act requires agencies 

to satisfy certain procedural requirements when they plan new regulations, including identifying the small entities to be affected, analyzing and understanding the economic impacts that will be imposed, and considering alternative ways to achieve the regulatory 

goal, while reducing the economic burden on those entities. 

The Reg Flex Act was amended in 1996 by the Small Business 

Regulatory Enforcement Fairness Act—yes, there is an acronym. 

That acronym is SBREFA, and SBREFA requires OSHA, EPA, and 

the newly created Consumer Financial Protection Bureau to convene small-business review panels. I refer to those panels as 

SBREFA panels. Whatever their planned rules are likely to have 

a significant economic impact on a substantial number of small entities. 

The panel prepares a report containing constructive recommendations for the agency planning the rule, and that report is 

published with the proposed rule. 

So why are there small-business protections in the rulemaking 

system? Well, there are three basic reasons. One-size-fits-all federal mandates don’t work when applied to small business. Small 

businesses face higher costs per employee to comply with the federal regulations. And small businesses are critically important to 

the American economy. 

First, prevention of one-size-fits-all federal mandates. Many 

times, federal rules that may work for large corporations simply 

don’t work for small firms. The Regulatory Flexibility Act is supposed to force federal regulators to think about how a small operation would actually comply with a rule and tweak the proposal to 

make sure that it works for the small business, in addition to the 

large corporation. 

Disproportionate impact that federal rules have on small business. Research published last year pegs the total cost of complying 
8 

with federal rules at over $1.75 trillion. That burden amounts to 

a cost of $15,580 per household, which is more than 1.5 times what 

households pay for medical care. Most alarming is the fact that in 

the 4 years studied, the cost of complying with federal rules rose 

faster than the cost of per household of providing medical care. 

Implementation of the Regulatory Flexibility Act at OSHA. In 

three recent regulatory actions, OSHA appears to be ignoring both 

the spirit and the legal requirements of the Reg Flex Act. First, 

OSHA’s MSD reporting rule. 

In January last year, OSHA proposed that businesses record 

work-related MSDs in a new column on their OSHA 300 Log. 

OSHA estimated that the proposed rule would require employers 

to spend roughly 5 minutes to become familiar with the new rule 

and 1 minute to record the MSD injury or illness. 

This burden estimate is what OSHA used to justify its decision 

not to move forward with a SBREFA panel. Small businesses felt 

that OSHA’s cost estimate reflected a misunderstanding of how 

small employers work and the pressure that employers feel writing 

down a number on a form that is required by the federal government. 

The purpose of SBREFA is for OSHA to better understand the 

impacts its regulations will have and how its cost estimates play 

out in the real world. OSHA missed that opportunity by deciding 

to bypass the SBREFA panel process. 

The second rule that I can talk about is the proposed changes to 

the on-site consultation procedures rule. Last September, OSHA 

proposed changes to the program. And the on-site consultation program is a shining example of how OSHA can evolve from ‘‘gotcha’’ 

to ‘‘help ya.’’ 

When OSHA decided to propose changes, it did not convene a 

SBREFA panel. OSHA, therefore, missed an opportunity to learn 

directly from small businesses about how changes would affect 

their participation in the program. 

And, finally, OSHA’s noise rule. In October, OSHA proposed to 

change the requirements for employers to control noise exposures. 

OSHA’s proposal last year was to reverse the preference for personal protective equipment and require engineering controls without consideration of cost unless it would threaten a company’s 

‘‘ability to remain in business.’’ 

OSHA circumvented the SBREFA panel requirement by declaring its proposal was just revising an interpretation and therefore 

was not a rule subject to normal rulemaking procedures, including 

the SBREFA panel requirement. That type of rationale is unfortunate, because it ignored the value of SBREFA panels. 

OSHA’s policy apparatus suffers—and I will sum up here—when 

the agency treats the SBREFA process as a legal barrier. The purpose of the Reg Flex Act and the SBREFA amendments is for 

OSHA to benefit from small-business input, so the agency can fulfill its mission to ensure safe workplaces without unduly burdening 

small employers. Constructive input by small firms provides OSHA 

with valuable insight that allows for the agency to draft proposals 

that will work on Main Street, and OSHA benefits when it embraces the SBREFA process as a constructive dialogue. 

Thank you. 
9 

[The statement of Mr. Sullivan follows:] 

Prepared Statement of Hon. Thomas M. Sullivan, Esq., of Counsel, Nelson 

Mullins Riley and Scarborough 

Mr. Chairman and Members of the Committee, I am pleased to present this testimony on how the Occupational Safety and Health Administration (OSHA) considers 

the impact on small entities when developing regulatory proposals. My name is Tom 

Sullivan. I am an attorney with the law firm of Nelson Mullins Riley & Scarborough, LLP and I run the Small Business Coalition for Regulatory Relief.1 This 

testimony is not being presented on behalf of any specific clients. Rather, my advice 

to the Committee today is drawn from my two decades of work on small business 

regulatory issues. 

My first job in Washington was with the U.S. Environmental Protection Agency 

(EPA). I served under both Administrator Bill Reilly and Administrator Carol 

Browner. After learning about regulatory policy development from within government, I joined the Washington office of the National Federation of Independent 

Business (NFIB). In February 2002, I was unanimously confirmed to head the Office 

of Advocacy at the U.S. Small Business Administration (SBA).2 The Office of Advocacy is responsible for overseeing the Regulatory Flexibility Act.3 I served as Chief 

Counsel for Advocacy until October 2008. 

OSHA must consider the impact on small entities prior to issuing a new regulation 

The Regulatory Flexibility Act requires federal agencies to satisfy certain procedural requirements when they plan new regulations, including: (1) identifying the 

small entities that will be affected, (2) analyzing and understanding the economic 

impacts that will be imposed on those entities, and (3) considering alternative ways 

to achieve their regulatory goal while reducing the economic burden on those entities.4 The Regulatory Flexibility Act was amended in 1996 by the Small Business 

Regulatory Enforcement Fairness Act (SBREFA).5 SBREFA requires OSHA, EPA, 

and the Consumer Financial Protection Bureau (CFPB) to convene small business 

review panels (I refer to the panels as ‘‘SBREFA panels ’’) whenever their planned 

rules are likely to have a significant economic impact on a substantial number of 

small entities. SBREFA panels include representatives from SBA’s Office of Advocacy, the Office of Management and Budget’s Office on Information and Regulatory 

Affairs (OIRA) and the agency proposing the rule. The panel prepares a report containing constructive recommendations for the agency planning the rule and that report is published with the proposed rule. 

The need for small business protections in the federal rulemaking system 

There are three basic reasons for the Regulatory Flexibility Act. 

• one-size-fits-all federal mandates do not work when applied to small business; 

and 

• small businesses face higher costs per employee to comply with federal regulation; and 

• small businesses are critically important to the American economy. 

Prevention of one-size-fits-all federal mandates 

Many times federal regulations that may work for large corporations simply do 

not work for small firms. I remember working with Brian Landon on the ergonomics 

regulation when it was being developed in the late 1990’s. Brian owned and operated a carwash in Canton, Pennsylvania. Parts of the ergonomics regulation distinguished between the employees who worked on equipment and employees who were 

in charge of paperwork and accounting. As is the case in many small businesses, 

Brian did all the jobs. And, his most trusted employees also performed multiple 

tasks, some clerical and some operational. The ergonomics regulation spelled out duties for equipment maintenance employees that were very different from those responsibilities for employees in charge of paperwork. Brian continually asked OSHA 

for help to figure out which classification would apply to him—and never really got 

an answer. Sometimes we forget that our country has millions of small enterprises 

that are at various stages of automation. For instance, when there is a new labeling 

requirement, a tendency is to naively think that compliance with a regulation mandating changes to labels can be accomplished with little effort through a computer 

program. The Regulatory Flexibility Act is supposed to force federal regulators to 

think about how a small operation would actually comply, realizing that it may not 

be as simple as entering information into a computer. 
10 

The disproportionate impact federal regulations have on small business 

Research published in September by Nicole Crain and W. Mark Crain of Lafayette 

College updates three previous studies on the impact of federal regulations on small 

business.6 The report is entitled, ‘‘The Impact of Regulatory Costs on Small Firms,’’ 

and it provides a look at the regulatory burden in 2008. The total cost of complying 

with federal regulations was over $1.75 trillion. The burden amounts to a cost of 

$15,586 per household which is more than 11⁄2 times what households pay for medical care. Most alarming, is the fact that in the four years studied, the cost of complying with federal regulations rose faster than the per-household cost of medical 

care. 

The Crain study found that small businesses shoulder costs that are 36% more 

than their larger business competitors. Firms with fewer than 20 employees pay 

$10,585 per employee per year and firms with 500 or more employees pay $7,755 

per employee to comply with federal regulations. The cost difference is most severe 

when looking at compliance with environmental regulations, with the smallest firms 

paying 4 times the amount per employee than the largest businesses. 

The research provides data for a common sense reality in a small business owner’s world. Small businesses generally do not have vice presidents for safety and 

health to figure out OSHA rules. They do not have accounting departments to navigate changes to the tax code. Even if small businesses hire accountants to prepare 

their taxes, the owners take hours sweating the details because it is their signature 

on the IRS forms. Nor do small firms usually employ occupational health experts 

and safety engineers to keep up with OSHA rules and the more than 22,000 national consensus standards that exist in the United States. The task of figuring out 

volumes of federal requirements often falls on the small business owners themselves, taking more time for them than it would for regulatory experts. Since time 

is money—it costs the small businesses more. 

The intention of the Regulatory Flexibility Act and, in particular the SBREFA 

panel process, is to bring small entities directly into an advisory role with agencies 

so that final regulations reflect an accurate understanding of how compliance can 

cost small firms more. 

The importance of small business to the U.S. economy 

Recent figures show there are more than 27.3 million small businesses in the 

United States.7 They represent over 99% of the employer firms in the United States, 

employ half of the private sector employees, and produce 13 times more patents per 

employee than large research & development firms.8 Of particular importance is the 

job-creation aspect of entrepreneurship. Small firms accounted for 65% of the 15 

million net new jobs created between 1993 and 2009. Data show that since the 

1970’s small businesses hire two out of every three jobs and the Ewing Marion 

Kauffman Foundation likes to point out that in the last 30 years, literally all net 

job creation in the United States took place in firms less than five years old.9

History of the Regulatory Flexibility Act 

One of the top five recommendations from the 1980 White House Conference on 

Small Business was for a law requiring regulatory impact analysis and a regular 

review of regulations. That recommendation became reality when President Jimmy 

Carter signed the Regulatory Flexibility Act into law on September 19, 1980. The 

Regulatory Flexibility Act directed all agencies that use notice and comment rulemaking to publicly disclose the impact of their regulatory actions on small entities 

and to consider less burdensome alternatives if a proposal was likely to impose a 

significant impact. The law authorized SBA’s Chief Counsel for Advocacy to appear 

as amicus curiae in Regulatory Flexibility Act challenges to rulemakings and it required SBA’s Office of Advocacy to report annually on agencies’ compliance with the 

Regulatory Flexibility Act. 

In 1996, Congress considered changes to the Regulatory Flexibility Act. Again, 

there was a White House Conference—and that conference’s top recommendation 

was to strengthen the Regulatory Flexibility Act by directing small business participation in rulemakings and to allow for judicial review of agency compliance. President Clinton signed SBREFA in March of 1996.10 Those amendments to the Regulatory Flexibility Act established formal procedures for the EPA and for OSHA to 

receive input from small entities prior to the agencies proposing rules.11

In August of 2002, President Bush signed Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking.12 The Executive Order directed 

SBA’s Office of Advocacy to train regulatory agencies on how to comply with the 

RFA and further instructed agencies to consider the Office of Advocacy’s comments 

on proposed rules. The Small Business Jobs Act signed five months ago codified the 
11 

Executive Order’s requirements for agencies to respond to the Office of Advocacy’s 

comments in final rules.13

There was one recent additional amendment to the Regulatory Flexibility Act. An 

amendment authored by Senators Olympia Snowe and Mark Pryor was adopted as 

part of the Dodd-Frank financial regulatory reform law. That amendment requires 

the newly created Consumer Financial Protection Bureau (CFPB) to undergo a 

SBREFA panel process when issuing rules, the same requirement that has applied 

to EPA and OSHA since 1996.14

What is required by the Regulatory Flexibility Act 

The basic spirit of the RFA is for government agencies to analyze the effects of 

their regulatory actions on small entities and for those agencies to consider alternatives that would allow agencies to achieve their regulatory objectives without unduly burdening small entities. 

The RFA covers all agencies that issue rules subject to the Administrative Procedure Act (APA). The RFA requires agencies to publish an initial regulatory flexibility analysis (IRFA) unless the promulgating agency certifies that the rule will not 

have a significant impact on a substantial number of small entities.15 The IRFA is 

supposed to be a transparent small business impact analysis that includes discussion of alternatives that can accomplish the stated objectives of the rule while minimizing impact on small entities. In the case of EPA, OSHA, and the CFPB, a 

SBREFA panel aids the agency’s analysis and discussion of alternatives. This transparent analysis and exchange of information with small entities is published with 

the agency’s proposed rule, educating stakeholders who participate in the notice and 

comment process. 

The availability of an IRFA allows for a more informed notice and comment process that can guide an agency’s formulation of its final rule. Under the RFA, an agency’s final rule must contain a final regulatory flexibility analysis (FRFA) if it published an IRFA with its proposal. The FRFA is basically a public response to issues 

raised in the IRFA. 

Implementation of the Regulatory Flexibility Act at OSHA 

Under the Regulatory Flexibility Act, an agency either certifies that a proposed 

rule has no significant economic impact on a substantial number of small entities 

or the agency prepares an IRFA on the proposal. When OSHA decides to prepare 

an IRFA, the agency convenes a SBREFA panel to obtain pre-proposal input from 

small entities. In three recent regulatory actions, OSHA appears to be ignoring both 

the spirit and the legal requirements of the Regulatory Flexibility Act. Even if 

OSHA is able to certify that a regulation will not have sufficient impact to warrant 

a SBREFA panel, the agency always has the option to voluntarily use the SBREFA 

panel process to gain insight from the small business community. 

1. Proposed Occupational Injury and Illness Recording and Reporting Requirements Rule (MSD Reporting Rule):16

In January of last year, OSHA proposed that businesses record work-related musculoskeletal disorders (MSDs) in a new column on their OSHA 300 Log. When 

OSHA proposed the rule, it certified under the Regulatory Flexibility Act that the 

rule, if promulgated, would not have a significant economic impact on a substantial 

number of small entities.17 OSHA estimated that the proposed rule would require 

employers to spend roughly 5 minutes to become familiar with the new rule and one 

minute pre MSD injury or illness to record the MSD in the new column on the 

OSHA 300 Log. This burden estimate is what OSHA used to justify its decision to 

move forward with the rule without a SBREFA panel. 

Small businesses strongly disagreed with OSHA on its estimate of how much the 

rule would cost. Recording an MSD in a column is not as simple as just transcribing 

a number. Under the rule, employers would be required to diagnose whether the injury or illness is a MSD and whether it is work-related. Keep in mind that after 

several years of study and research, experts are unable to reach consensus over the 

definition of an MSD, yet small business owners would be expected to make a diagnosis of the injury or illness and determine whether it is work related—in less than 

5 minutes. That burden estimate reflected a clear misunderstanding of how small 

employers work and the pressure of legal liability employers feel when writing down 

a number on a form required by the federal government. 

The purpose of SBREFA panels is for OSHA to better understand the impacts its 

regulations will have and how its cost estimates play out in the real small business 

world. OSHA missed that opportunity by deciding to bypass the SBREFA panel 

process. 

2. Proposed changes to On-Site Consultation Procedures rule:18
12 

Last September, OSHA proposed changes to the criteria under which participants 

in the agency’s On-site Consultation program could be subject to enforcement action 

by OSHA inspectors. The On-site Consultation program is a shining example of how 

OSHA can evolve from ‘‘gotcha’’ to ‘‘help ya.’’ Under the program, small businesses 

can request a free consultation with a state-certified consultant. The consultant 

identifies hazards and provides advice on how to address them. 

Part of the program’s success is derived from the understanding that information 

uncovered by the voluntary inspection is not shared with OSHA enforcement if the 

identified hazards are corrected. OSHA’s proposal last September threatened to 

break down the barrier between the On-site Consultation program and OSHA’s enforcement program. I doubt OSHA wanted to push small firms out of its On-Site 

Consultation program, but the agency lacked an appreciation for how the changes 

would impact small business’s willingness to participate. OSHA did not convene a 

SBREFA panel prior to proposing the changes to its consultation agreements program despite the On-site Consultation program’s focus on small business. OSHA, 

therefore, missed an opportunity to learn directly from small businesses about how 

changes would affect their participation in the program. Through a SBREFA panel, 

OSHA would have heard how the agency could achieve its goal, without scaring 

away small businesses from a program that has improved workplace safety in thousands of small businesses. 

3. Proposed Interpretation of OSHA’s Provisions for Feasible Administrative or 

Engineering Controls of Occupational Noise:19

In October, OSHA proposed to change the requirements for employers to control 

noise exposures. Currently, OSHA requires engineering and administrative controls 

to prevent hearing loss if personal protective equipment (PPE) such as earplugs is 

ineffective in reducing workplace noise to acceptable levels or if such controls can 

be implemented for less cost than PPE. OSHA’s proposal last year was to reverse 

the preference for PPE and require engineering controls without consideration of 

cost unless it would threaten a company’s ‘‘ability to remain in business.’’ 20

OSHA circumvented the SBREFA panel requirement by declaring its proposal 

was just revising an interpretation and, therefore, was not a new rulemaking subject to normal rulemaking procedures, including the SBREFA panel requirement. 

That type of rationale was unfortunate because it ignored the value of SBREFA 

panels. A SBREFA panel could have informed OSHA that PPE has proven effective 

in reducing harmful exposure to noise in the workplace and that driving employers 

away from the preference for PPE could actually increase danger. Also, a SBREFA 

panel could have informed OSHA about the cost considerations of engineering controls. Maybe OSHA wanted to see what engineering controls were ‘‘feasible’’ for 

small manufacturers. The way to find out was to convene a SBREFA panel, not to 

declare that ‘‘feasible’’ is anything short of causing a business to close its doors and 

go out of business. 

Conclusion 

In the examples of OSHA’s proposed MSD reporting rule and OSHA’s proposed 

changes to its On-site Consultation program, SBA’s Office of Advocacy wrote to the 

agency and shared the concerns voiced by the small business community.21 In both 

letters, the Office of Advocacy publicly criticized the failure by OSHA to incorporate 

flexibility for small business in their proposals. Even though OSHA recently pulled 

back its plans to go ahead with the noise rule and the MSD reporting rule, the Committee is justified in its concern that OSHA is moving forward with regulatory policy that will impact the small business community in a way that ignores their input. 

OSHA’s policy apparatus suffers when the agency treats the SBREFA process as a 

legal barrier. The purpose of the Regulatory Flexibility Act and the SBREFA 

amendments is for OSHA to benefit from small business input so the agency can 

fulfill its mission to ensure safe workplaces without unduly burdening small employers. Constructive input by small firms provides OSHA with valuable insight that allows for the agency to draft proposals that will work on Main Street. OSHA benefits 

when it embraces the SBREFA process as a constructive dialogue. 

ENDNOTES

1See http://www.SBCRR.com. 2See http://www.sba.gov/advocacy. 3 Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164 (1980), amended by the Small 

Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, 110 Stat. 857 

(1996) (codified as amended at 5 U.S.C. §§ 601-612), also amended by § 1100 G of the DoddFrank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 2112 

(July 21, 2010). 4Keith W. Holman, The Regulatory Flexibility Act at 25: Is the Law Achieving Its Goal?, 33 

Fordham Urban Law Journal 1119 (2006). 
13 

5Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, 110 Stat. 

857 (1996). 6 Nicole V. Crain and W. Mark Crain, The Impact of Regulatory Costs on Small Firms, written 

for the Office of Advocacy, U.S. Small Business Administration (September 2010), available at 

http://www.sba.gov/advocacy/853/2016. 7Office of Advocacy, U.S. Small Business Administration, Frequently Asked Questions (January 2011), available at http://www.sba.gov/advocacy/7495. 8 Id. 

9 John Haltiwanger, Business Dynamics Statistics Briefing: Jobs Created from Business 

Startups in the United States, Ewing Marion Kauffman Foundation (January 2009), available 

at: http://www.kauffman.org/research-and-policy/bds-jobs-created.aspx. 

10Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, 110 

Stat. 857 (1996). 11See, 5 U.S.C. §609. 12 Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 

Fed. Reg. 53461 (August 16, 2002). 13Small Business Jobs Act of 2010, Pub. L. No. 111-240, §1601 (September 27, 2010). 14Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, §1100G 

(July 21, 2010). 15See, 5 U.S.C. §605(b). 16 75 Fed. Reg. 4728 (January 29, 2010). 17 75 Fed. 4736. 18 75 Fed. Reg. 54064 (September 3, 2010). 19 75 Fed. Reg. 64216 (October 19, 2010). 20 75 Fed. Reg. at 64217. 21Susan M. Walthall, Acting Chief Counsel for Advocacy, letter to OSHA Assistant Secretary 

David Michaels, (March 30, 2010). Available at: http://www.sba.gov/content/letter-dated033010-department-labor-occupational-safety-and-health-administration. Winslow Sargeant, 

Chief Counsel for Advocacy, letter to OSHA Assistant Secretary David Michaels, (November 2, 

2010). Available at: http://www.sba.gov/content/letter-dated-110210-department-labor-occupational-safety-and-health-administration. 

Chairman WALBERG. Thank you, Mr. Sullivan. 

Moving on to Mr. Sessions? 

STATEMENT OF STUART SESSIONS, PRESIDENT, ENVIRONOMICS, INC., TESTIFYING ON BEHALF OF THE COALITION 

FOR WORKPLACE SAFETY 

Mr. SESSIONS. Good morning, Mr. Chairman and members of the 

Subcommittee on Workforce Protections. Thank you for inviting me 

here to testify specifically on OSHA’s recent proposal regarding the 

noise exposure standard and the potential impact of this proposal 

on job creation. This is one of OSHA’s three actions that Tom Sullivan just referred to. 

I am here on behalf of the Coalition for Workplace Safety. The 

coalition has retained me to analyze the potential cost and economic impacts if OSHA were to finalize this proposed new reinterpretation of the term ‘‘feasible’’ as it applies to the noise standard. 

I want to share with the subcommittee today some initial results 

from two recent analyses of this new reinterpretation by OSHA 

that have been conducted by the coalition and its members. The 

two analyses are, number one, a series of case studies. 

I have been working with a number—about a dozen different 

companies to evaluate what the impact of OSHA’s proposal would 

be on their operations. How much would it cost each of these companies? How much would the new interpretation revise what they 

need to do in terms of meeting the noise standard? And what 

would these compliance costs mean to these businesses in terms of 

their competitive position and in terms of jobs? 

The second piece of research is a large survey that has been done 

by the National Association of Manufacturers, in which they asked 

their manufacturing members what the impact of OSHA’s proposal 

would be on their operations and on their competitive position. And 
14 

NAM obtained more than 315 lengthy responses to this questionnaire on the impact of the OSHA proposal. 

I have combined data from these two sources, my case studies 

and the NAM survey, along with other data to attempt to estimate 

what the overall impact on the national economy would be if 

OSHA’s proposal were finalized, the impact in particular in terms 

of costs and in terms of jobs. 

I draw four conclusions from these analyses, and I would like to 

share these conclusions with the subcommittee. First, the proposed 

OSHA noise reinterpretation would affect a large number and very 

broad range of American businesses and their employees. Most 

companies involved in manufacturing, most involved in construction, and many involved in transportation have employees exposed 

to noise levels at which the OSHA reinterpretation would apply. 

In addition, there are many other businesses that do various 

other activities, including lawn care, tree service, automobile repair, warehousing, anything involving maintenance and repair of 

large, noisy equipment that would also be affected by OSHA’s proposal. In total, I estimate that somewhere between 2 million and 

7 million workers would be affected by OSHA’s proposal, and their 

employers would similarly be affected. 

Second conclusion: The costs for American business to comply 

with OSHA’s proposed new policy would be very high. OSHA estimated long ago that the average highly exposed worker who is exposed to a level of noise at which this proposal would have an impact, OSHA estimated that the average cost per engineering controls—engineering controls alone to protect that worker would average about $4,000 per worker per year. 

The NAM survey provides more recent information than OSHA’s 

old estimate on the cost per worker. And the NAM survey estimates costs for engineering controls alone as a protective approach 

of somewhere between $2,000 and $10,000 per year per highly exposed worker. 

Under the current policy, employers are allowed to protect workers via a combination of engineering controls, administrative controls, and hearing protection—earmuffs, earplugs, and the like— 

and typically earmuffs and earplugs are far less expensive than engineering controls. 

So OSHA’s policy essentially requires employees to spend on the 

order of this $2,000 to $10,000 per employee, rather than the much 

lesser sums that they can spend to protect employees via hearing 

protection alone. 

If we put these costs of $2,000 to $10,000 per worker per year 

together with the number of exposed workers, the total cost for 

OSHA’s proposal, as I estimate it, is somewhere between $1 billion 

and $27 billion per year. This amount, if it were to be a cost of a 

regulation, would trigger the requirements for Executive Order 

12866 and economic analysis of significant regulations, and it 

would trigger the SBREFA requirements that Mr. Sullivan referred 

to for small-business panels, et cetera. OSHA essentially sidestepped these procedural safeguards by issuing this as an administrative interpretation rather than a regulation. 

Conclusion number three: OSHA’s proposed new interpretation 

and these costs would have a substantial negative impact on U.S. 
15 

jobs and competitiveness. We have done a little bit of work to run 

the estimated compliance costs through a national model that predicts the macroeconomic impacts of compliance costs. Actually, we 

haven’t run them through the model; we have analogized from a 

recent run of the model on it, a different, similar regulation. 

And we estimate that the impact on the nation’s employment, if 

OSHA’s proposal were to be finalized, would be a loss of somewhere 

between 10,000 and 220,000 jobs. 

Final conclusion number four. All of this would be for relatively 

little benefit in terms of improved hearing protection for workers. 

Two points. 

One, currently the number of reportable work-related hearing 

losses for highly exposed workers is very low. The current system 

of—the current regulation and OSHA’s previous interpretation of 

the noise standard are working, less than 0.6—— 

Chairman WALBERG. I would ask you to wrap up. 

Mr. SESSIONS. Fifteen seconds. Less than 0.6 percent of workers 

are currently—have evidence of a work-related hearing loss. Under 

the current system, that is less than the number of—the percentage of the general population that has such hearing losses. 

So there isn’t a problem in the first place that the regulation 

would be addressing. And, secondly, the regulation would have 

minimal impacts in reducing—or the proposal would have minimal 

impacts in reducing this already low rate of hearing loss. 

Thank you, sir. 

[The statement of Mr. Sessions follows:] 

Prepared Statement of Stuart L. Sessions, President, Environomics, Inc. 

Good morning, Mr. Chairman and Members of the Subcommittee on Workforce 

Protections. Thank you for inviting me today to testify on OSHA’s recent proposal 

regarding the noise exposure standard and the potential impact of the proposal on 

job creation. 

I am Stuart Sessions, President of the consulting firm Environomics, Inc. I am 

here today representing the Coalition for Workplace Safety (CWS). The Coalition for 

Workplace Safety is a group of associations and employers who seek to cost-effectively improve workplace safety. The Coalition has retained me to analyze the potential costs and economic impacts if OSHA were to finalize their proposed new interpretation of the term ‘‘feasible’’ as it applies to the Agency’s standards for occupational exposure to noise. 

As an economist, I have worked for more than 30 years in analyzing how a wide 

variety of environmental, health and safety regulations and administrative actions 

may affect the U.S. economy. Roughly half of my work in analyzing the economic 

impact of environmental, health and safety requirements has been as a Federal government employee or contractor, and about half has been as a consultant to private 

industry. 

OSHA proposed its reinterpretation of the noise standard as a policy interpretation and not specifically as a regulation. Nevertheless, this proposed action is typical 

of how a new government requirement, whether achieved by formal regulation or 

simply as a declaration of policy by the agency that enforces the regulations, can 

affect the U.S. economy and jobs. 

I want to share with the Subcommittee today some initial results from two recent 

analyses of OSHA’s proposed noise reinterpretation by CWS and its members. These 

analyses have not yet been completed, and they may well not be completed, since 

OSHA has withdrawn its proposed new interpretation. These analyses, however, 

focus directly on the Subcommittee’s concern about how OSHA’s requirements may 

affect job creation I expect that our preliminary findings from these analyses will 

be of interest and I have no expectation that the thrust of these analyses will 

change in a material way. The two analyses are: 

1. Case studies. I have been working with about a dozen different companies on 

case studies of what the OSHA proposal would mean to their operations. The case 

studies examine how each of these employers complies with the OSHA noise stand-
16 

ard now, what they would have to do differently if the proposed interpretation were 

finalized, and how much compliance with the new interpretation would cost them. 

And then, the case studies proceed to analyzing the impacts of these compliance 

costs: what would these compliance costs mean to these businesses and their competitive position, and what would the costs mean in terms of jobs? Would some of 

the current employees of these companies lose their jobs because the companies become less competitive and lose business, or might the noise compliance measures 

open new opportunities for these businesses and perhaps result in increasing numbers of jobs in the future? 

2. NAM survey. The National Association of Manufacturers (NAM) has conducted 

a large survey of its member companies with regard to the companies’ hearing protection programs for their employees and the potential impact of the OSHA noise 

proposal. NAM asked a broad set of questions of the companies, including similar 

questions as in my case studies about the costs and economic consequences of 

OSHA’s proposed new interpretation. NAM has obtained more than 315 responses 

to their survey from manufacturing companies. 

In addition to reporting today on some of the results from my case studies and 

the NAM survey, I have combined data from these and other sources and have estimated the overall potential impact on the national economy of OSHA’s noise reinterpretation in terms of costs and in terms of jobs. While I readily admit that my estimates are rough and uncertain, they contrast with the complete absence of any economic analysis conducted by, or at least made public by, OSHA. 

I draw four conclusions from this set of analyses—from the combination of my 

case studies, the NAM survey, and the national aggregate analysis: 

1. The proposed OSHA noise interpretation would affect a large number and very 

broad range of American businesses and their employees. 

2. The costs for American businesses to comply with OSHA’s proposed new policy 

would be very high. 

3. OSHA’s proposed new interpretation would have substantial negative impacts 

on U.S. jobs and competitiveness. 

4. All this would be for relatively little benefit in terms of improved hearing protection for workers. 

Before I explain these conclusions in more detail, I would like to summarize what 

OSHA’s proposed noise reinterpretation would have required. 

OSHA has long had a standard that prescribes 90 decibels as the maximum average noise level to which a worker may be exposed over an 8-hour work shift. OSHA 

has for several decades maintained the policy that an employer can comply with this 

90 decibel standard through whatever combination of three noise-limiting approaches that the employer finds is cost-effective. The three noise-limiting approaches include what are known as: 1) Engineering controls; 2) Administrative controls; and 3) Personal protective equipment. ‘‘Engineering controls’’ include measures to reduce noise by engineered means such as mufflers on noisy equipment, 

sound-deadening enclosures for noisy equipment, redesigning or changing equipment or processes so as to make them less noisy, and so forth. ‘‘Administrative controls’’ include measures such as rotating a worker’s tasks so as to limit the fraction 

of his work shift that the worker spends performing activities with high noise levels. 

‘‘Personal protective equipment’’, or PPE, includes such things as ear plugs or ear 

muffs that reduce the amount of noise exposure the individual worker receives despite whatever level of ambient noise surrounds the worker. In general, reducing a 

worker’s noise level is substantially less costly through use of personal protective 

equipment than through engineering controls or administrative controls. 

OSHA’s noise standard does not treat these three means of reducing a worker’s 

noise exposure equivalently. The standard requires an employer to limit exposure 

to 90 decibels first by implementing all feasible engineering and administrative controls. Only then, after all feasible engineering and administrative controls have been 

implemented, can an employer add personal protective equipment in order to get 

below the 90 decibel limit. The key in how OSHA has sensibly implemented for 

many years this preference for engineering and administrative controls lies in how 

OSHA has interpreted the term ‘‘feasible’’ as a limitation on the engineering and 

administrative controls that will be required. OSHA has long interpreted the word 

‘‘feasible’’ as meaning ‘‘cost-effective relative to PPE’’. Those engineering and administrative controls that are defined as feasible and required to be implemented first 

consist only of those that are cost-effective relative to PPE. Or, said in a different 

way, if PPE is effective in limiting workers’ noise exposure to less than 90 decibels 

and is less costly than engineering and administrative controls, the employer can 

choose to implement PPE rather than more costly engineering and administrative 

controls. 
17 

In the fall of last year, though, OSHA proposed to reinterpret the term ‘‘feasible’’ 

as it applies in the noise standard. OSHA proposed to reinterpret ‘‘feasible’’ to mean 

‘‘capable of being done’’ instead of meaning ‘‘cost-effective’’. Under OSHA’s proposed 

new interpretation, then, in seeking to limit noise exposures to below 90 decibels, 

an employer would need to implement all possible engineering and administrative 

controls without regard to cost unless the employer can show that the engineering 

and administrative controls would threaten the employer’s ability to remain in business. Under the proposed new interpretation, the limit on required engineering and 

administrative controls would change from only those that are cost-effective to all 

such controls that are available short of putting the employer out of business. 

Obviously OSHA’s proposed new interpretation of the term ‘‘feasible’’ would greatly increase the required use of engineering and administrative controls relative to 

PPE in reducing noise exposures. I and the Coalition for Workplace Safety have 

been working to estimate the costs and economic impacts that would result from 

OSHA’s proposed new policy. I would like to summarize the four conclusions that 

I have drawn from our analyses thus far. 

1. The proposed OSHA noise interpretation would affect a large number and very 

broad range of American businesses and their employees. 

There are a wide variety of tools, machines, vehicles and processes that can generate noise exceeding 90 decibels: saws, hammers, punches, presses, sanders, burners, boilers, blowers, crushers, generators, compressors, aircraft, trucks, busses, locomotives, boats, compressed air, combustion, abrasive blasting, welding and many, 

many more. Workers operating or maintaining these items, or performing other 

tasks in the vicinity of these items, can be exposed to noise that may exceed an average of 90 decibels across an 8-hour work shift. 

I have reviewed various data sources in order to develop a rough estimate for the 

number of employees that are exposed above 90 decibels and that therefore could 

be affected by OSHA’s proposed reinterpretation. I have organized these estimates 

by industry: • Manufacturing. In regulatory impact analyses that OSHA developed in the late 

1970s/early 1980s to support potential changes to the noise standard, the Agency 

estimated that 19.4% of all production employees in manufacturing industries (SIC 

codes 20 through 37, plus SIC 49, utilities) work in settings with average ambient 

noise exceeding 90 decibels. This estimate is rather old, but is apparently the most 

recent comprehensive estimate that OSHA has developed. Noise exposures in manufacturing have likely been reduced since OSHA’s estimate. I will assume in my calculations that the fraction of manufacturing production workers now exposed above 

90 decibels is somewhere between the roughly 20% that OSHA estimated 30 years 

ago and 2%, a level one-tenth as high. • Construction (SIC 15-17). A large recent noise survey for residential construction trades found for virtually every job category that at least 10% of full-shift samples exceeded 90 decibels (roofer, framing carpenter, finish carpenter, excavator, 

drywall installer, brick mason and helpers, landscaper, miscellaneous trades). Exposures among commercial construction workers are higher than among residential 

workers, while exposures among heavy/public works construction workers are likely 

also to be higher. Any particular construction worker’s noise exposure can vary significantly from shift to shift as a function of how much of the shift he spends using 

or near a noisy tool. A brick mason, for example, may spend a large share of one 

shift using a noisy brick saw, but may not use the saw at all on the next shift. The 

result is that the fraction of construction workers who are occasionally exposed 

above 90 decibels for a shift substantially exceeds the fraction of all full-shift samples that exceed 90 decibels. I will assume that somewhere between 20% and 50% 

of all construction workers are occasionally exposed above 90 decibels, in contrast 

to the roughly 10% or so of all construction worker samples that exceed 90 decibels. 

• Transportation (SIC 40-49). Workers around concentrations of transportation 

vehicles, particularly aircraft, can be exposed to noise levels exceeding 90 decibels. 

I will assume that the fraction of non-office transportation workers exposed above 

90 decibels is similar to that for manufacturing production workers; somewhere between 2% and 20%. 

• Other industries. There are many additional industries where workers can often 

be exposed at average levels exceeding 90 decibels, such as lawn care, tree service, 

automobile repair, maintenance and repair of large, noisy equipment, and 

warehousing. These other industries likely account for many fewer highly exposed 

workers than manufacturing, construction and transportation. I have not sought to 

estimate the likely much smaller numbers of highly exposed workers in additional 

industries. 

Combining recent employment figures for manufacturing, construction and transportation with estimates of the percentages of each industry’s workers that are ex-
18 

posed to average noise levels exceeding 90 decibels, I estimate that there are some 

2 to 7 million workers currently exposed at such levels. These workers and their 

employers would be directly affected by OSHA’s proposed new interpretation. 

I have provided a table at the end of this testimony that shows these estimates 

and summarizes how I proceed further to calculate the costs and job impacts of 

OSHA’s proposed policy. 

2. The costs for American businesses to comply with OSHA’s proposed new policy 

would be very high. 

OSHA has not estimated what the costs would be for the additional engineering 

and administrative controls that would be necessitated by the policy. The most recent nationwide cost estimates that OSHA has developed involving additional noise 

controls can be found in the regulatory impact analyses in the late 1970’s/early 

1980’s that I referred to earlier. At that time, OSHA estimated the costs for additional technologically feasible engineering and administrative controls sufficient to 

reduce ambient noise to 90 decibels or less as the equivalent of $4,037 per affected 

employee per year in 2010 dollars. Said another way, OSHA estimated for each employee exposed to ambient noise levels exceeding 90 decibels that the cost of engineering and administrative controls to reduce these levels to 90 decibels or below 

would average $4,037 per year. This cost estimate is OSHA’s most recent, but it is 

still roughly 30 years old. 

A much more current estimate for the costs of the engineering and administrative 

controls necessitated by OSHA’s proposed reinterpretation can be developed from 

the NAM survey results and my case studies. Across these two data sources, 45 

companies or facilities have estimated both the number of their employees exposed 

to average ambient noise levels exceeding 90 decibels and the costs of available engineering and administrative controls to reduce these exposures. The resulting estimates for the cost of the proposed OSHA policy per affected employee span a very 

wide range, all the way from less than $1 per employee per year to more than 

$200,000 per employee per year. The median estimate from the case studies and 

NAM’s survey is $2,950 per affected employee per year, while the average across 

the 45 companies or facilities is $18,137 per employee per year. I believe that this 

average figure is skewed by several very high estimates of cost per employee that 

represent situations where costly controls would reduce noise exposures for very few 

workers, and that these controls might not actually be implemented in practice. I 

will assume that the controls more likely to be implemented in practice might average somewhere between about $3,000 and about $10,000 per employee per year. 

This range brackets the figure that OSHA derived previously of about $4,000 per 

affected employee per year. 

These represent my estimated costs per affected worker of OSHA’s proposed new 

policy for manufacturing industries specifically. (Both OSHA’s estimate and the 

NAM survey that provided most of my cost data addressed manufacturers only.) 

I would expect that the cost per affected worker for transportation industries 

would be roughly similar to these estimated costs for manufacturing industries. I 

thus will assume an identical range of between $3,000 and $10,000 per affected employee per year. 

For construction industries, I believe that these costs for engineering and administrative controls would be much lower than for manufacturing, perhaps only onetenth as much. Most of the engineering controls for construction involve changes to 

small equipment—less noisy saws, compressors, jackhammers, etc., in contrast to 

manufacturing where the noise-reducing measures would often involve changes to 

large machines, entire process lines or significant portions of a shop floor. For my 

very rough total national cost estimate for OSHA’s proposed policy, I estimate the 

cost per affected worker in construction industries at one-tenth that for manufacturing, and thus roughly $300 to $1,000 per worker per year. 

To develop an estimate for the total national cost of OSHA’s proposed policy, we 

can multiply each of these figures on the cost per affected employee by the estimates 

I discussed earlier for the number of employees in different industries that are exposed to ambient workplace noise exceeding 90 decibels. In total, we get a national 

cost estimate for OSHA’s proposed noise reinterpretation that is somewhere in the 

range from $1.2 billion dollars per year to $27 billion dollars per year. The total national cost is nearer the higher end of this range if we assume OSHA’s figure to 

the effect that nearly 20% of manufacturing production workers are in work settings 

with ambient noise levels exceeding 90 decibels, while the figure is near the lower 

end of this range if we assume conservatively that only one-tenth as many workers 

are exposed to high noise levels as OSHA estimated. 

An annual cost of somewhere between $1.2 and $27 billion is quite large relative 

to most other new requirements that the Federal government imposes on private 

industry. Only a few Federal regulations, typically fewer than five per year over the 
19 

several decades that OMB has been keeping records, impose a burden of this magnitude on the economy. This figure reflects all Federal regulations for all purposes— 

environmental protection, homeland security, transportation safety, consumer protection, etc., as well as occupational health and safety. OSHA’s proposed new policy 

on noise would be among the most expensive new requirements that the Federal 

government considers each year. 

This is a very large cost for a policy that OSHA proposed to adopt by simply declaring it, without meeting the due process sorts of requirements that would apply 

if the policy reinterpretation were instead to be a regulation. If OSHA’s reinterpretation were to have been proposed as a regulation, as many would say it should 

have been, at a cost of more than a billion dollars per year this initiative would have 

been subject to the following important requirements: • Executive Order 12866. The Executive Order requires any agency proposing a regulation that would cost more than $100 million to prepare a regulatory impact 

analysis (RIA). In the RIA, OSHA would need to: 1) Provide a clear and thorough 

explanation of the need for the proposed action; 2) Explicitly estimate the benefits 

and costs and economic impacts of the proposal; and 3) Fairly consider alternatives 

to the proposal. • The Small Business Regulatory and Enforcement Fairness Act (SBREFA). 

OSHA’s proposal would undoubtedly have a significant impact on a substantial 

number of small businesses. As such, pursuant to the requirements of SBREFA, 

OSHA would need to: 1) Analyze the impact of the proposed policy on small businesses specifically; 2) Convene a panel of small business representatives that would 

provide the Agency with advice on how potentially to reduce the impact of the proposal on small businesses; and 3) Consider a range of alternatives that would reduce 

the economic burden on small businesses. 

By attempting to issue the noise standard interpretation as a policy declaration 

instead of a regulation, OSHA avoided all these procedural safeguards. OSHA avoided the need for analyzing costs and benefits and considering alternatives under Executive Order 12866. Indeed, the Office of Information and Regulatory Affairs was 

not even informed of this proposal. OSHA avoided the need to examine impacts on 

small businesses and the need to consider alternatives that might reduce these impacts. In my view, avoiding these requirements for analysis, disclosure and transparency makes for poor public policy. 

3. OSHA’s proposed new interpretation would have substantial negative impacts 

on U.S. jobs and competitiveness. 

The companies responding to the NAM survey and those involved in the case 

studies have offered a variety of comments on what OSHA’s proposed new interpretation would mean for their businesses. I will quote some responses to the question 

of whether OSHA’s proposal would affect the company’s competitive position: • Foreign imports (even from Canada) are coming in at lower delivered cost. 

Labor content is already more than 25% of each sales dollar. More labor inefficiency 

[from administrative controls] will push us far higher. 

• I would shut down. 

• Most of our facilities agreed that given the estimated costs required to comply, 

they would in many cases either contract the work to outside suppliers (who would 

have to meet the same requirements) or consider moving the work out of the U.S. 

• Cost increases would significantly increase cost for two processes where there 

is already significant and growing competition from China. 

• Added costs with no commensurate increase in efficiency or output make us 

even less competitive than we are against the Chinese who have no such requirements to hamper them. 

• The changes would have to be paid for. With already slim margins it would almost certainly require an increase in our product cost. It is already difficult to compete with foreign competitors on a cost basis. We can’t and won’t produce product 

for free or at a negative margin. 

• Negative impact. We would have to invest precious assets in equipment that actually negatively affects productivity. 

• We would shift more of our production overseas. 

• We would attempt to fully automate the noisy process so it would not need an 

operator who would be exposed to the noise. 

• As we continue to spend money on new and existing compliance requirements 

the cost to do business goes up each year. It gets tougher to stay competitive especially with the overseas markets because you can’t pass these costs on to the customers. 

• It would cost us a lot of unnecessary money. We are a small company and it 

would be a hit to our bottom line for sure, but our competitors would have the same 

issues so we’d all lose money together at least. 
20 

• There is no return on that investment. We don’t see hearing loss now, so why 

invest any money in it? • Our competition would be investing their money into projects that make them 

lower cost producers. • Significant distraction from what we need to do to stay competitive in a 

globalized manufacturing economy. • Implementing all feasible engineering and administrative controls would be a 

very expensive exercise that would have significant safety and financial consequences. 

The great majority of the responses forecast an important negative impact on the 

responding company’s competitiveness. 

In answer to another question on whether OSHA’s proposed new approach would 

cause the company to reduce its number of employees in the U.S., 70% of the respondents said ‘‘yes’’ and 30% said ‘‘no’’. 

In my view, the best way to quantitatively estimate the ultimate economic impact 

from a broad new requirement such as OSHA’s noise reinterpretation is to use a 

national economic forecasting and policy simulation model. The estimated industryby-industry compliance costs from the new requirement are loaded into the model, 

and the model then predicts the particular industries that will be winners and losers and the overall impacts on GNP, employment and other economic variables of 

interest. We have not yet run such a model to estimate the impacts that would 

ensue from OSHA’s proposed noise reinterpretation, but I believe that we can reasonably extrapolate from the recent results when such a model was run for a comparable potential new requirement. 

The REMI Policy Insight Model is one of the most respected national economic 

forecasting models that is used to estimate the aggregate economic impacts from significant new spending initiatives, whether the initiatives involve private industry 

compliance spending such as may be required by a regulation, or investment spending such as might be associated with a governmental stimulus program. The REMI 

model was recently run to estimate the impact of EPA’s proposed national regulation to tighten the air quality standard for ozone. EPA’s potential requirement regarding ozone and OSHA’s potential requirement regarding noise are qualitatively 

similar: both affect primarily the manufacturing and transportation industries, both 

will have broad national impact, and both have costs estimated to exceed a billion 

dollars per year. The recent REMI run for EPA’s proposed ozone standard found 

that a net of about 8 U.S. jobs would be lost for every million dollars per year in 

compliance costs. Applying this factor to the compliance costs that we estimate for 

the proposed OSHA noise reinterpretation, we project a net loss of somewhere between about 10,000 and 220,000 U.S. jobs if OSHA’s noise proposal were to be finalized. 

4. All this would be for relatively little benefit in terms of improved hearing protection for workers 

I would like to make two points here: 

• First, it does not appear that work-related hearing loss is a frequent problem 

now, under OSHA’s existing and long-standing noise regulation and enforcement 

policies. 

• Second, it seems unlikely that OSHA’s proposed policy shift would significantly 

reduce the already low rate of work-related hearing loss. 

The current rate of work-related hearing loss is low 

OSHA’s noise standard requires an employer to operate a hearing conservation 

program if any employees are exposed to an average noise level exceeding 85 decibels. A hearing conservation program must include monitoring of ambient noise levels and employee noise exposures, provision of hearing protectors, annual 

audiometric testing of employees, specific follow-up activities if the annual audiogram shows indication of hearing loss, and more. The employer must provide hearing protection devices to all employees exposed above 85 decibels, and must both 

provide and require the use of hearing protection devices for all employees exposed 

above 90 decibels. And, as I discussed previously, the employer must also implement 

all feasible engineering and administrative controls to reduce exposures exceeding 

90 decibels. 

Among the companies responding to NAM’s survey, more than 90% have employee 

exposures exceeding 85 decibels and operate a hearing conservation program as they 

are required to do under the noise standard. I want to emphasize these two important characteristics of the vast majority of the companies that have responded to 

the NAM survey. These companies: a) Have relatively high noise exposures (employees exposed over 85 decibels); and b) Take measures to protect their employees by 

operating the hearing conservation programs that OSHA requires. These companies 
21 

provide an ideal test for how well OSHA’s longstanding approaches are performing 

in protecting workers’ hearing. These companies have the relatively high noise levels that OSHA is concerned about, and they have been implementing the programs 

that OSHA mandates. What is the result in terms of hearing loss among the exposed workers at these companies? 

The answer from the NAM survey is that these companies show very low rates 

of worker hearing loss. For the year 2010, 132 companies provided information on 

both the number of their employees exposed above 85 decibels and the number of 

employees that showed evidence of work-related hearing loss (a ‘‘Standard Threshold Shift’’ or STS). The percentage of these relatively highly exposed workers that 

had a recordable STS was only 0.59% (184 with STS out of 31,074 employees exposed above 85 decibels among the 132 companies that responded). This incidence 

of STS is very low. 

This already low rate of work-related hearing loss is unlikely to decline much further 

with OSHA’s proposed policy shift 

Most companies in my case studies (and additional companies in the NAM survey) 

reported that the feasible engineering and administrative controls they would implement under the proposed OSHA policy shift would not be sufficient to reduce current exposures exceeding 90 decibels to below 90 decibels. PPE would continue to 

be required for these employees, despite the additional engineering and administrative controls. Under current OSHA requirements and policy the rate of work-related 

hearing loss among highly exposed workers is low and depends substantially on the 

efficacy of PPE—this situation would change little if OSHA changed its policy as 

proposed. 

Summary of Conclusions 

1. The proposed OSHA noise interpretation would affect a large number and very 

broad range of American businesses and their employees. 

2. The costs for American businesses to comply with OSHA’s proposed new policy 

would be very high. 

3. OSHA’s proposed new interpretation would have substantial negative impacts 

on U.S. jobs and competitiveness. 

4. All this would be for relatively little benefit in terms of improved hearing protection for workers. 

Thank you for the opportunity to participate in this hearing. 

ESTIMATED COST/YR OF OSHA’S PROPOSED NEW INTERPRETATION OF 

FEASIBILITY FOR NOISE STANDARD 

Sector 

Current or 

typical # of 

workers 

Percent in 

‘‘line,’’ nonoffice jobs 

Percent of ‘‘line’’ workers needing controls 

because of ambient exposures >90 dBA 

Cost/yr of engr/ 

admin controls per 

worker exposed >90 

dBA 

Estimated total cost 

for OSHA policy (in 

$billions/yr) 

Estimated jobs impact of 

OSHA policy 

High 

estimate 

Low 

estimate 

High 

estimate 

Low 

estimate 

High 

estimate 

Low 

estimate 

High 

estimate 

Low 

estimate 

Manfacturing 14,000,000 60% 19% 2% $10,000 $3,000 $16 $0.5 ¥130,368 ¥3,911 

Construction ... 10,000,000 90% 50% 20% $1,000 $200 $5 $0.4 ¥36,000 ¥2,880 

Transportation 6,500,000 50% 19% 2% $10,000 $3,000 $6 $0.2 ¥50,440 ¥1,513 

Total .......... .................... ................... 6,760,100 2,026,010 .............. .............. $27 $1 ¥216,808 ¥8,304 

Chairman WALBERG. Thank you, Mr. Sessions. I apologize for not 

catching the red light sooner. Since this is my first chairman duties, I am more used to listening and enjoying what I am hearing 

or reacting to what I am hearing. But that won’t continue long, and 

the next two witnesses I certainly will give some latitude, but my— 

you know, I am from a red state, so it looks just normal. But we 

will try to keep the time here. Thank you. 

Moving on to Ms. Miser? 
22 

STATEMENT OF TAMMY MISER, EXECUTIVE DIRECTOR, 

UNITED SUPPORT AND MEMORIAL FOR WORKPLACE FATALITIES 

Ms. MISER. Chairman Walberg and members of the subcommittee, thank you very much for asking me to be here today. 

My name is Tammy Miser, and I have traveled from Lexington, 

Kentucky, to give you a very personal story of why OSHA regulations are needed. 

In 2003, my brother Shawn Boone, was 33 years old, and he was 

killed in an aluminum dust explosion. The company, Hayes 

Lemmerz, they produced aluminum wheels. They had had fires on 

a regular basis, and protocol was that they let the fires burn down 

and then they go back in and re-light the chip melt furnace. And 

they were also instructed not to call the fire department, because 

it was costing them too much money to do this. 

So that is what they did. And my brother went back in to collect 

his tools in the furnace room, and there was an explosion. This explosion caused aluminum dust to rain down from the rafters and 

the equipment, and there was a second, more intense explosion. 

This explosion actually left my brother blind with third-degree 

burns over most of his—at least 90 percent of his body, is what 

they were saying. Shawn was still conscious. He was still aware of 

what was going on. And some say that in between his cries for help 

he was joking about a fishing trip. It was just the kind of guy he 

was. He was a really wonderful guy. 

So when we were able to actually—he had no clue what condition 

his body was in, because he couldn’t see. And we think that that 

is probably why he was able to get through it and he was conscious 

in knowing what was going on. 

But when we finally were able to see him, his face was splitting, 

he was swollen, his body was raw, and they refused to bandage his 

body. And I had been with him for a lifetime. He was my brother. 

And I could only recognize him by a few freckles on his face and— 

and this is the hardest thing that a family can face, truly. 

And many can’t take this. And in 2007, my youngest brother 

drove halfway across the United States with a few photos of Shawn 

and the phone records of the night he was killed tucked in his 

Bible. He proceeded to shoot himself in the head. And I can’t say 

that this incident alone caused my brother to take his life, but I 

know that he was not able to handle it, and that was what was 

on his mind. 

The argument that the regulations kill jobs, and I just really feel 

that it is just nonsense. There have only been two OSHA regulations in the past 10 years, crane and derricks and chromium. Both 

only affect a fraction of the U.S. businesses. As I talk to families 

around the country, I don’t see this huge avalanche of regulations. 

It is more like a drought. 

Rules that protect construction workers from dying in confined 

spaces has been on the regulatory agenda for 15 years. This little 

guy here, Steven Lillicrap, he was only 21 years old when he was 

pulled in to the cables of 100-ton crane. OSHA had been working 

on revising outdated crane standards for 10 years. 

But this rule came too late for Steven. It was finally issued in 

July and is expected to prevent 22 deaths and 175 injuries and mil-
23 

lions of dollars in property damage per year. The benefits far outweigh the costs of this rule. 

The U.S. Chemical Safety Board warned OSHA in 2006 about 

combustible dust handlers. And it is not well known—but in 2002, 

the year before my brother was killed, they had also let OSHA 

know that this was an issue. So if just the National Fire Protection 

Association consensus standards were mandatory, my brother 

would still be here, and others would still be here today. 

In 2008, the Imperial Sugar refinery dust explosion killed 14 

workers and injured 36. And some of these were severely injured, 

severe burns. And the means to prevent this was well-known. Some 

companies choose to gamble with workers’ lives because there are 

no OSHA standards. 

When preventable disasters strike in the workplace, they not 

only take a huge toll on the injured and their families, but workers 

can lose their jobs and communities suffer. In 2009, the Sunoco refinery in Pennsylvania, the company decided not to rebuild after 

their explosion. Fifty workers were laid off. That same year, 

ConAgra’s Slim Jim plant exploded. Three workers were killed, and 

71 were injured. Before the disaster, 700 people were employed 

there. Now the place is closing. 

A contractor working for ConAgra using a dangerous blowout 

procedure that purged natural gas in the indoor work environment 

is what had caused this. It was well known, that if OSHA had prevented—if OSHA could have prevented this with governing and 

rulemaking, this would have never happened. 

There is no price tag that can be put on seeing your husband 

walk your daughter down the aisle or seeing your baby born. I have 

talked to family members that have had children and their husbands are gone. Their babies are never going to know their father. 

It is nothing like seeing your child graduate from college or holding 

your grandbaby. 

I respectfully ask this subcommittee to not just look on one side 

of the ledger of the costs, but remember the benefits of the OSHA 

rules for workers, responsible employers, and families and communities. 

Thank you. 

[The statement of Ms. Miser follows:] 

Prepared Statement of Tammy Miser, United Support and Memorial for 

Workplace Fatalities 

CHAIRMAN WAHLBERG, RANKING MEMBER WOOLSEY AND MEMBERS OF THE SUB- COMMITTEE: My name is Tammy Miser. I am the founder of United Support and Memorial for Workplace Fatalities (USMWF). Our not-for-profit organization offers 

support, guidance, resources, and advocacy to empower family members who have 

lost a loved one from work-related injuries or illnesses. We work with other organizations, government agencies, and businesses as a catalyst for positive change to ensure safe and healthy working conditions for all. 

My brother Shawn Boone worked at the Hayes Lemmerz plant in Huntington, Indiana where they made aluminum wheels. The plant had a history of fires, but 

workers were told not to call the fire department. My brother and a couple coworkers went in to relight a chip melt furnace. They decided to stick around a few minutes to make sure everything was ok and then went back to gather tools. Shawn’s 

back was toward the furnace when the first explosion occurred. Someone said that 

Shawn got up and started walking toward the doors when there was a second and 

more intense blast. The heat from that blast was hot enough to melt copper piping. 

Shawn did not die instantly. He laid on floor smoldering while the aluminum dust 

continued to burn through his flesh and muscle tissue. The breaths that he took 
24 

1 U.S. Chemical Safety and Hazard Investigation Board. Investigation Report Aluminum Dust 

Explosion, Hayes Lemmerz International, Huntington, Indiana, October 29, 2003. Report No. 

2004-04-I-IN, September 2005. 

burned his internal organs and the blast took his eyesight. Shawn was still conscious and asking for help when the ambulance took him. 

Hayes Lemmerz never bothered to call any of my family members to let us know 

that there was an explosion, or that Shawn was injured. The only call we received 

was from a friend of my husband, Mark, who told them that Shawn was in route 

to a Ft. Wayne burn unit. (Mark also worked at the plant.) When Mark asked the 

hospital staff where Shawn was, we found that no one even bothered to identify 

him. We were told that there was a ‘‘white, unidentified male’’ admitted to the unit. 

When Mark tried to describe Shawn, the nurse stopped him to say that there was 

an unidentified male with no body hair and no physical markings to identify. So my 

Shawn was ultimately identified only by his body weight and type. 

We drove five hours to Indiana wondering if it really was Shawn, hoping and 

praying that it wasn’t. This still brings about guilt because I would not wish this 

feeling on anyone. We arrived only to be told that Shawn was being kept alive for 

us. The onsite pastor stopped us and told us to prepare ourselves, adding he had 

not seen anything like this since the war. The doctors refused to treat Shawn, saying even if they took his limbs, his internal organs were burned beyond repair. This 

was apparent by the black sludge they were pumping from his body. 

I went into the burn unit to see my brother. Maybe someone who didn’t know 

Shawn wouldn’t recognize him, but he was still my brother. You can’t spend a lifetime with someone and not know who they are. Shawn’s face had been cleaned up 

and it was very swollen and splitting, but he was still my Bub. My family immediately started talking about taking Shawn off of life support. If we did all agree, 

I would be ultimately giving up on Shawn. I would have taken his last breath, even 

if there was no hope and we weren’t to blame. I still had to make that decision. 

To watch them stop the machines and watch my little brother die before my eyes. 

But we did take him off and we did stay to see his last breath. The two things 

I remember most are Shawn’s last words, ‘‘I’m in a world of hurt.’’ And his last 

breath. 

This has been the hardest thing my family has had to deal with until 2007. My 

youngest brother drove half way across the United States with a few photo’s and 

phone records of the night Shawn was killed that he had tucked into his bible. 

Tommy then proceeded to shoot himself in the head. I can’t say that Shawn’s death 

alone caused my brother to take his own life, but I know for a fact he couldn’t deal 

with it and that was what was on his mind. 

The U.S. Chemical Safety and Hazard Investigation Board (CSB) said the explosion that killed Shawn probably originated in a dust collector that was not adequately vented or cleaned. The dust collector was also too close to the aluminum 

scrap processing area. Hayes Lemmerz management allowed dust to accumulate on 

overhead beams and structures which caused a second, more massive explosion. The 

CSB concluded that had the company adhered to the National Fire Protection Association’s standard for combustible metal dust, the explosion would have been minimized or prevented altogether.1

During my own struggle for information about the OSHA investigative process, 

it became clear that family member victims of workplace fatalities needed a place 

to get information and support. That’s how USMWF was formed. We are a virtual 

community of individuals with the shared experience of losing a loved one from a 

work-related injury or disease. Thousands of family members across the U.S. suffer 

profoundly because of our nation’s inadequate regulatory system and its failure to 

protect workers’ fundamental right to a safe and healthy worksite. 

The buzz is that OSHA regulations are bad for business and kill jobs. This is nonsense. There have only been 2 new OSHA regulations in the last 10 years: crane 

and derricks, and hexavalent chromium. Both only affect a fraction of U.S. businesses. As I talked to families from around the country who have lost loved ones 

from workplace hazards, I don’t see an avalanche of new OSHA regulations. It’s 

more like a drought. For example, a rule to protect construction workers from dying 

in confined spaces has been on OSHA’s regulatory agenda for 15 years. 

Steven Lillicrap was only 21 years old in February 2009 when he was fatally 

pulled into the cables of a 100-ton crane. OSHA had been working to revise its outdated crane safety standard for 10 years, but the new rule came too late for Steven. 

It was finally issued last July and is expected to prevent 22 deaths, 175 injuries, 

and millions of dollars in property damage per year. The benefits far outweigh the 

$154 million cost. When you look at the few standards that OSHA has issued over 
25 

2Logue T. Sunoco to lay off 40-50, close ethylene complex. Daily (Delaware) Times. July 7, 

2009. 3 U.S. Chemical Safety and Hazard Investigation Board. Urgent Recommendations on Gas 

Purging. August 2010. 4 Nagem S, Wolf AM. Slim Jim plant’s demise to put 450 out of work. NewsObserver.com. 

March 4, 2010. 

its 40 year history, the benefits always exceed the costs. And those are only the benefits you can quantify. 

The CSB warned OSHA in 2006 about combustible dust hazards. Had the National Fire Protection Association (NFPA) standard been implemented, as a mandatory regulation instead of a voluntary consensus code, my brother Shawn and many 

others would still be here today. In 2008 the Imperial Sugar refinery explosion 

killed 14 workers and 36 were burned. The means to prevent these deadly explosions is well known. And preventing dust explosions has been done before, such as 

in grain handling facilities. Prior to OSHA’s 1978 safety standard, there were about 

20 explosions per year in grain elevators. Today, there are only about six. Yet some 

companies choose to gamble with workers’ lives because there is no OSHA standard 

and failing to act gives them a competitive advantage over more responsible companies. 

When preventable disasters strike in the workplace, they not only take a huge toll 

on the injured and their families, but workers can lose their jobs and the community 

suffers. 

Some disasters occur because employers fail to comply with safety regulations. 

After the 2009 explosion at the Sunoco refinery in Pennsylvania, the company decided not to rebuild its ethylene unit. Fifty workers were laid off.2 Had there been 

better compliance with OSHA’s process safety management requirements, it would 

never have happened. 

Some disasters occur because of inadequate regulations. In 2009, Con Agra’s Slim 

Jim plant exploded, 3 workers were killed and 71 were injured. A contractor was 

using a procedure that purged natural gas into the indoor work environment, instead of purging the gas out of doors and using an explosivity detection meter. This 

disaster could have been prevented if OSHA had regulations requiring natural gas 

to be purged out of doors. The CSB found that OSHA doesn’t have specific rules 

for natural gas purging, nor are there voluntary codes.3 Because there is no OSHA 

regulation, there have been too many explosions of this nature in commercial and 

industrial facilities. 

The lack of regulations not only killed 3 workers at the ConAgra plant, it also 

killed jobs. Before the disaster 700 people worked at the factory. Now the factory 

is closing. Rather than rebuild the damaged portion of the plant, the company is 

consolidating production elsewhere.4

The T-2 gasoline additive factory near Jacksonville, Florida had a runaway reaction in December 2007 involving highly reactive sodium metal. The explosion killed 

4 and injured 32, including 28 at surrounding businesses. Pieces of the building 

were found a mile away. An investigation by the CSB found that the reactions could 

have been prevented if OSHA’s process safety management standard covered reactive hazards. Sadly, the owner of the T-2 factory was among those killed by the explosion. Three adjacent businesses had to relocate from the industrial area, and a 

fourth business—a trucking company—was put out of business due to the damage. 

There’s no price tag that can be put on seeing your husband walk your daughter 

down her wedding aisle, or seeing your son graduate from college, or holding a 

grandchild. The economic disruption to a family who loses a breadwinner is never 

offset by workers’ compensation benefits. Workplace safety regulations and evenhanded enforcement help level the playing field for employers who do the right 

thing versus those who take the low road. 

A one-sided look at the costs of OSHA rules, but excluding the benefits, does a 

disservice to workers, responsible employers, families and communities. 

Chairman WALBERG. Thank you, Ms. Miser. And thank you for 

your courage. And thank you for sharing this with us. I think it 

certainly punctuates the purpose of this subcommittee and the importance that we have as we carefully look at all the surrounding 

issues. Thank you. 

Ms. Holmes, thank you for being here. 
26 

STATEMENT OF JACQUELINE M. HOLMES, ESQ., OF COUNSEL, 

JONES DAY, TESTIFYING ON BEHALF OF THE U.S. CHAMBER 

OF COMMERCE 

Ms. HOLMES. Thank you, Chairman Walberg, Ranking Member 

Woolsey, and members of the subcommittee. I appreciate you inviting me to testify today. 

Before I summarize my own testimony, I would like to say that 

I was very touched, as I am sure we all were, by Ms. Miser’s statement. And I, too, appreciate her being here. It is always a tragedy 

when someone loses their life in the workplace. 

And I refer in my statement, as I believe you did, as well, Chairman Walberg, in your opening statement, to the shared goal of 

worker safety that is shared by businesses and workers, and it 

really is a shared goal. The question, really, that we want to look 

at is, what is the best way to achieve that goal in the most costeffective way? 

By way of background, for purposes of my own testimony, I am 

an attorney with the Washington, D.C., office of Jones Day, where 

I have practiced in the OSHA area since 1994. I am pleased to be 

here today on behalf of the United States Chamber of Commerce, 

which represents the interests of over 3 million businesses of all 

sizes and in all sectors; 96 percent of the chamber’s members are 

small businesses who employ 100 or fewer employees. 

It may seem surprising to some members of the subcommittee 

that we are here—that many of us are here testifying today about 

proposals that OSHA has withdrawn, such as, for example, the 

noise standard reinterpretation. But we believe it is important to 

do so, because these proposals reflect a troubling pattern of efforts 

by the agency to impose substantial burdens on American business 

without regard to the cost of those efforts or their efficacy in improving worker health and safety or, indeed, in the case of the 

noise standard, whether there is a problem that requires solving in 

the first place. This is contrary to OSHA’s own interpretation of its 

statutory mandates. 

Understanding that OSHA regulations can be very costly, the 

courts and—itself impose very substantial burdens on OSHA when 

it chooses to regulate. OSHA must first identify a problem that creates a significant risk of harm in the workplace. It must, second, 

establish that its proposal will substantially reduce that risk. It 

must, third, show that its proposal is economically and technologically feasible. And it must, fourth, show that it selected the 

most cost-effective means of achieving the health and safety objective that the standard sets. The act, of course, does not require a 

formal cost-benefit analysis, but that does not mean that costs can 

be ignored. 

I would like to focus briefly on the last requirement that I mentioned, which is the requirement of cost-effectiveness, in other 

words, that OSHA select the most cost-effective means to achieve 

its regulatory goals. This is echoed by President Obama’s recent executive order, which suggests that agencies should use the least 

burdensome means to achieve its regulatory ends. Those two concepts are really quite similar. 

OSHA has embraced this interpretation of the act. It did so in 

the early 1990s to assure the federal courts that the OSH ACT did 
27 

not represent an unconstitutional delegation of authority to the 

agency. 

But OSHA completely ignored this requirement for purposes of 

its reinterpretation of the noise standard. Instead, it charged ahead 

with its reinterpretation without any effort to consider whether 

what it was proposing was the most cost-effective means of achieving its objectives. And given the information that Mr. Sessions has 

presented to the subcommittee a few moments ago, it seems quite 

clear that the methods that OSHA selected are not the most costeffective. 

The problem with OSHA’s reinterpretation of the noise standard, 

however, runs even deeper than its failure to select the most costeffective alternative. Indeed, its failure to study the cost is only the 

beginning. 

In proposing its reinterpretation, OSHA also made no effort 

whatsoever even to identify that there was a problem that required 

solving. To be sure, it pointed to hearing loss generally as a workplace health and safety issue, which we would all agree that it is, 

but it failed to examine the scope of the problem or whether current efforts are reducing it. Had it done so, it would have seen occupational hearing loss cases have consistently declined since they 

have been separately reported on employer injury and on the logs. 

You can see on the charts that are up on the screen that we have 

a declining trend since 2003 when OSHA mandated that employers 

separately report these types of injuries and illnesses. 

These results suggest employers are doing quite well in reducing 

occupational exposure to noise. Noise, like some other—noise like 

other—some other exposures occurs both in the workplace and out 

of the workplace. And over the same period, noise exposures have— 

outside the workplace have exploded, the advent of iPods, 

Bluetooth headsets. People are constantly wired for sound. And the 

fact that we still are seeing a decrease in occupational exposure 

suggests that employers are doing a pretty good job. 

Thus, the data suggests employers are really working—and employer efforts are working to reduce hearing loss cases. ‘‘If it ain’t 

broke, don’t fix it’’ is not an enforceable maxim of administrative 

law, but it is not a bad place to start. 

So here we are. OSHA hasn’t demonstrated any obvious problem 

that requires solving, gave no examination whatsoever to the costs 

of this proposal. On top of that, the agency made the proposal at 

a time of substantial unemployment. 

It is, in effect, telling American industry that it has to expend 

resources retrofitting its factories rather than hire new employees 

and increase production. And because OSHA didn’t propose to 

change the exposure levels that are acceptable under the noise 

standard, but simply to require engineering controls rather than 

personal protective equipment in the first instance, it was doing so 

to achieve exactly the same noise exposure levels as are currently 

achieved through less expensive means. 

Even if OSHA came up with a legal basis to support its actions— 

and it hasn’t done so yet—that doesn’t mean it should take these 

actions now without any consideration for how it may impact the 

U.S. economy. 
28 

While we appreciate that OSHA has withdrawn this proposal 

and committed to a number of steps, such as increased outreach, 

a lack of outreach was not the problem with the proposal. The 

problem is the lack of common sense and an overabundance of arrogance. There is no evidence that OSHA even believed it necessary to assess seriously whether there was a problem that required fixing, to study the cost, or to consult with the business 

community before making this change, and these failures led them 

to propose something that was bad policy, plain and simple. 

If the law allows OSHA to take such steps—and I am skeptical 

that it does—that law should be changed. And if this is how the 

agency intends to use the agency that it has, it should not be given 

any more. 

Thank you very much. 

[The statement of Ms. Holmes follows:] 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 

Chairman WALBERG. Thank you, Ms. Holmes. Appreciate the testimony of the witnesses and look forward to further statements and 

developing the concepts during the course of the questioning. 

And those questions will have 5-minute time span. And I will be 

much more attentive to that now, since we are starting fresh at 

this point, and so let me begin. 

Mr. Sullivan, in your testimony, you discussed OSHA’s on-site 

consultation program and the changes the agency proposed that 

could compromise this proactive safety program run by OSHA. Can 

you explain how the changes OSHA proposed would be detrimental 

to small businesses? 

Mr. SULLIVAN. Thank you, Mr. Chairman. I am happy to. 
42 

It is actually very simple. And my impression of the changes is 

mostly gained from my work when I was at the National Federation of Independent Business. The success of OSHA’s on-site consultation program largely is due to the understanding by the smallbusiness community that violations and problems that are found 

will not be shared with the enforcement side of the shop, especially 

if those problems are solved. 

And, I mean, isn’t that the reason that we are here and talking 

about this, is that we want solutions to these problems to fix the 

different problems? And that barrier between the on-site consultation and enforcement encouraged small businesses to come in and 

say, ‘‘You know, I am not sure if we have it quite right. Can you 

help me?’’ 

And the proposed changes break down that barrier between the 

on-site consultation program and the enforcement program. OSHA 

wants to share—now share information between those two programs. And in my experience working with small businesses, that 

will have an absolutely awful effect on the program, because small 

businesses will no longer want to participate in a program where 

they may be subject to enforcement without having the chance to 

fix the problem. 

Chairman WALBERG. Thank you. 

Mr. Sessions, the noise proposal takes issue with the way economists undertake cost-benefit analysis. One of your conclusions suggests that, had this proposal gone forward, there would have 

been—and I quote—‘‘relatively little benefit’’ in terms of improved 

hearing protection for workers. 

Can you explain how you reached your cost-benefit analysis conclusion? 

Mr. SESSIONS. There are two halves to that conversation. The 

first half is essentially the point that Ms. Holmes was talking 

about, also, which is that the problem is—the problem of work-related hearing loss is relatively well managed and further declining. 

The rate of reported work-related hearing loss incidents is very low 

and declining. 

So the problem in the first place isn’t all that large. The particular approach OSHA proposed for further reducing that low level 

of hearing loss will not significantly further reduce it. Under current policy, employers use hearing protection for a very large share 

of the hearing—personal hearing protection devices for a very large 

share of the protection that workers get. And under OSHA’s proposal, the engineering controls that would be required would still 

not typically reduce noise levels sufficiently to eliminate the need 

for hearing protection. 

So currently, hearing protectors are a large share of the protection. And even after OSHA’s proposal, they would continue to be 

a large share of the protection. So the problem isn’t all that large 

in the first place. And the reduction that would be achieved by 

OSHA’s proposal is not particularly substantial. 

Chairman WALBERG. Okay. Going on from that, several of your 

answers, Mr. Sessions, you received in your survey of manufacturers would give anyone cause for concern. The idea that a proposal 

would cause manufacturers to shut down or move, work offshore as 
43 

a result of the proposed reinterpretation would further exacerbate 

the problems in the economy. 

Are there other proposals that you can point to that would have 

a similar negative impact? And please be brief. 

Mr. SESSIONS. I think that the jury is out on that. OSHA has additional proposals in the works. One is certainly that I am following is the proposal to reduce the worker exposure level to crystalline silica. But we don’t know what the specific reduced—tighter 

standard is that OSHA is going to propose. 

And particularly importantly for this and other standards that 

OSHA has in the works, assuming that OSHA is treating them as 

regulations, OSHA will accompany the proposed regulation with a 

full study of, how big is the problem in the first place? What are 

the costs? What are the benefits? And what are the economic impacts? 

And it is essentially those requirements for analysis, for transparency, for disclosure, for estimating the impacts on the economy 

that give the regulator community and the public the chance to 

make a reasoned decision on OSHA’s regulation and—— 

Chairman WALBERG. Thank you, Mr. Sessions. I am going to 

have to break it there to hold myself to the 5-minute time limit. 

I will turn it to the ranking member, Ms. Woolsey? 

Ms. WOOLSEY. And, Mr. Chairman, I would like to step aside for 

the ranking member of the full committee. 

Oh, we thought you had to leave. Oh, well, thank you. 

Tammy, thank you for your testimony. It is nice to have you here 

again. You are a brave woman. 

I want everybody else to realize—that following three combustible dust accidents in 2003, which killed 14 workers—one of them 

was Tammy’s brother—the U.S. Chemical Safety Board investigated. They found that in the 25 years between 1980 and 2005, 

there had been 281 combustible dust explosions and fires, resulting 

in 119 fatalities and 718 injuries. 

So in 2006, they urged OSHA to issue a comprehensive standard. 

Yet the recommendation gathered dust until the Obama Administration put it on their regulatory agenda in 2009. 

OSHA faces another 4 to 5 years of rulemaking before this can 

become a standard. At best, it will have a rule 13 years after 

Tammy’s brother was killed. How is this system working for new 

worker protection rules? And how does it keep employees out of 

danger, large employers, small employers? 

See, as far as I am concerned, if you are an employee, you need 

to be kept safe. It doesn’t matter if you work for a large or small— 

and, actually, large employers have fewer accidents than the small 

employers do. 

So, Tammy, do you want to respond to—do you have any idea— 

do any of you have any idea what should be done to speed the process along, other than not having a process? 

Ms. MISER. Well, as of right now, they do have—National Fire 

Protection Association has an actual standard. And that would actually cover a lot of the issues that they are having, because of 

right now, I mean, we know it is an issue. 

And some—I firmly believe that there are some issues that are 

more urgent, and this would be one of them. I mean, people are 
44 

dying. There are explosions. People are losing their businesses. In 

the House, there is a bill for combustible dust. And if that was to 

be applied now, at least that would be taken care of. And that 

would be a start. 

Because I think a lot of it is, is there is just—there was just so 

must buzz and so much going on about what needed to be done and 

what couldn’t be done. And you have seen where people have kind 

of dropped off, because at first I thought there was going to be a 

regulation. Well, now there is not. 

And I am not saying every company is that way. I had a small 

business. I had two small businesses. Some people really try, but 

there are other companies that try to cut corners, and this is one 

of them. 

Mr. SULLIVAN. Congresswoman, you had asked if any of us had 

suggestions on how to speed the process. I do. And it has to do with 

OSHA’s recent MSD rulemaking. 

You know, it is great that OSHA decided to withdraw the rule 

and say, we would like to talk more with small businesses before 

we actually move forward. That is great. But 16 months ago, if 

they had done what the law requires, and that was to have a 

small-business panel made up of small businesses, then they would 

be much longer down the process. 

Ms. WOOLSEY. Mr. Sullivan, you have already told us that. I 

mean, let’s go to something beyond what should have happened. 

What can happen, is what I want to know. What can be done now? 

Mr. SULLIVAN. OSHA can listen to small businesses at the front 

end of the process, not 16 months later when it says, okay, we will 

start over again. I think that that would speed the process, Congresswoman. 

Ms. WOOLSEY. Ms. Holmes, I appreciate that you acknowledge 

that these standards have been withdrawn, and we are sort of 

beating a dead horse here, the three of you talking about something that has already been stopped. I mean, we are not going to 

do it that way. 

A mistake? Possibly. But let’s go forward. Where can we go forward? And what is our next best step so that everybody benefits? 

Ms. HOLMES. Well, I think—first of all, I think that there is a 

reason we are talking about things that have been withdrawn, and 

that is because they reflect a fundamentally troubling allocation of 

resources. The notion that OSHA spent resources on the noise reinterpretation when there is—without even looking to see whether 

there was an issue—— 

Ms. WOOLSEY. Well, then that was back then. Would you agree 

that employees of small businesses have the same right to a safe 

workplace as a large business? 

Ms. HOLMES. I certainly agree that worker safety is something 

that should be of concern to all businesses—— 

Ms. WOOLSEY. Thank you. 

Ms. HOLMES [continuing]. Of all sizes. And I believe that it is of 

concern to all businesses of all sizes. 

Chairman WALBERG. Thank you for your response. The time has 

expired. 

We will move on now to the gentlelady from South Dakota, Ms. 

Noem. 
45 

Ms. NOEM. Thank you, Mr. Chairman. 

Well, I would like to follow up on that discussion with Mr. Sullivan in a little bit more of a proactive approach then, since that 

is where the discussion is going. So does the Small Business Administration ever partner with other agencies, such as OSHA, on 

regulations in order to better understand the implications or impact of regulations or proposals before they are issued? 

Mr. SULLIVAN. Yes. Congresswoman, SBA’s Office of Advocacy 

does just that. A pre-proposal in a dialogue between agencies that 

is not a public dialogue—it is a helpful, constructive dialogue—the 

SBA’s Office of Advocacy works with agencies, EPA, OSHA, the 

new Consumer Financial Protection Bureau, in fact, all agencies, to 

try to make sure that what an agency’s going forward with actually 

makes sense when it comes to a Main Street small business. 

When an agency actually takes the advice of SBA’s Office of Advocacy, it is a much smoother process. And I think that Congresswoman Woolsey is right. Looking forward, about how you get the 

process down is where we should be devoting our attention. And if 

these agencies actually do listen to SBA’s Office of Advocacy, it 

would be a much smoother regulatory process. 

Ms. NOEM. So in your opinion, do you feel that these agencies 

look favorably about that process and they are willing to cooperate 

as it goes forward? 

Mr. SULLIVAN. No, I don’t view agencies looking at the process 

as a constructive dialogue, although there is some hope. Professor 

Elizabeth Warren, who is in charge of staffing up this new Consumer Financial Protection Bureau, actually has traveled with Senator Snowe up to Maine and said, you know, Senator, even if I 

wasn’t required to consult with small businesses, I would do it, because it makes sense, the type of analysis that should be public 

makes sense, and she is committed to doing that moving forward 

with an entirely new regulatory agency. 

So if other agencies adopted that approach, I think we would 

have a much smoother process. 

Ms. NOEM. Okay. I have one more follow-up question for Ms. 

Holmes, if that is possible, real quick. OSHA has several proposals 

pending that the agency suggested would not be significant regulations and the fact these proposals should have been certified as significant. 

So what do you believe would be the outcome, will be on your clients and on their businesses? 

Ms. HOLMES. You know, I think that OSHA does, as you suggested, create a number of proposals that they prefer to characterize as insignificant, because that allows them to—they believe, 

I think—short-cut a lot of the processes. But as Mr. Sullivan has 

pointed out, that really creates a great deal of trouble at the back 

side. 

If we could have, you know, an honest assessment of what a regulation purports to do, what it is going to require, and how much 

it is going to cost at the front end, that would, I think, reduce challenges at the back end and would allow those regulations to be put 

in place, you know, more quickly and more effectively, and that 

they would be more effective for everyone. 
46 

Businesses certainly have a lot to say about what works and 

what doesn’t and what is cost-effective and what isn’t, in terms of 

regulation, and I think that is an area that OSHA would do well 

to consult about at the front end. 

Ms. NOEM. Okay. Thank you. 

Thank you, Mr. Chairman. 

Chairman WALBERG. Thank you. We will move on to the gentleman from New Jersey, Mr. Payne? 

Mr. PAYNE. Thank you very much. 

Let me—Mr. Sullivan, Ms. Holmes, there has been a—you know, 

the dead horse has been beaten. But isn’t it sort of the American 

way to try to use technology, try to use our advance that we have 

over other nations, by and large, at least in the past, to try to deal 

with the problem? I mean, it seems like you are saying it is so absurd that there might be some notion on a part of OSHA to use 

some technological way to try to improve the problem. 

I can’t understand—and maybe it was—the cost was prohibitive 

and they decided to withdraw it. But what is so wrong about trying 

to use technology? That is what we are all about, isn’t it? 

Mr. SULLIVAN. Congressman, there is nothing wrong with using 

technology. What I have been trying to impress upon the committee is the need to force a dialogue between the small-business 

community who may be using that technology and OSHA, in order 

to come up with a solution. 

I will give as an example the SBREFA panel that was convened 

for the hexavalent chrome rule. And at one point, OSHA was thinking of requiring a venting operation over the chrome plating operation. So, basically, you would have chrome plating and a flow of 

air directly above the plating to prevent the fumes from reaching 

the workers. 

Well, because of this small-business panel process, a small manufacturer who met with OSHA explained, if you require that, then 

you put me out of compliance with Environmental Protection Agency rules. And because of that dialogue, they actually worked towards a successful solution. 

So it is bringing in the realities of the workplace, sometimes, 

many times involving advanced technologies that helps OSHA 

come up with a better rulemaking. 

Mr. PAYNE. Okay, let me ask. There has been an affirmative, I 

think, Ms. Holmes and you, too, Mr. Sullivan, that there has been 

a reduction in the complaints about hearing. You know, that 

doesn’t necessarily mean that the problem isn’t as bad as it was. 

I think when you find employees and when you find an unemployment rate of 10 percent, many times employees will forego 

their own safety, as for reporting noise violations, in order to keep 

a job. I mean, in other words, what I am saying is that because 

you say statistically you have empirical data that says that there 

is less of a problem today does not necessarily mean that the problem isn’t as great. 

And I will tell you, I worked in a place where there was—I was 

personnel director where there was noise. It is very difficult to keep 

compliance. Hard hats will wear hard hats, because they are out 

in the public and people can see them, if the hat is on or not. How-
47 

ever, in a place where you have over 85 decibels is where you need 

to have ear protection. 

It is very difficult to keep those earplugs on, because, one, they 

are uncomfortable; two, they are hot when it is in the summertime. 

Workers really don’t like to use them. So you have to really stay 

on top of them. So I am just simply saying that, because they are 

less reported numbers don’t necessarily mean that the problem 

isn’t as great as it was. 

Let me just ask you, Ms. Miser, there has been a request in the 

new C.R. that the Republicans put forth to cut 15 percent from the 

OSHA in one area and another really slashes. What do you think 

this is going to do, the impact on occupational safety, when you 

don’t have inspectors, et cetera? 

Ms. MISER. Well, of course, I am not an expert. But it does concern me, because as of right now, it is going to take 100 years to— 

if they were to inspect every single employer. And the fellow over 

here was saying, you know, there can’t be any communication 

there. If they do want to get the information, they won’t even be 

able to get it because of that. 

And then on top of that, my real concern is the fact that this may 

affect the state plans. I mean, I don’t know. I don’t know what the 

budget is. Kentucky does a pretty good job. They really do. And if 

their budget is cut, they aren’t going to be able to do that. And they 

are the only plans that cover government employees, these state 

plans. 

And if—I mean, it is a shame. I think every government employee should be—everybody should have the same rights to health 

and safety in the workplace. But they don’t. And I am just really 

afraid that it is going to cut that back and harm the state plans, 

who are really doing a good job out there. 

Mr. PAYNE. Thank you very much. 

Chairman WALBERG. The time has ended. We will move on to the 

gentleman from Florida, Mr. Ross? 

Mr. ROSS. Thank you, Mr. Chairman. 

I want to take a little different tact here. I know we are talking 

about the regulatory impact of OSHA, but I have a concern—and 

I want to talk about specifically—and to you, Mr. Sullivan, with regard to the muscular skeletal disorders. And the reason I want to 

do that is because it appears to me that trying to define repetitive 

trauma and putting the burden on the employer would result in 

the creation of new causes of action for which an employer could 

be sued. 

For example, ADA. Now that they are made aware of a particular incident or condition that the employee may have, does reasonable accommodation now have to be made? Is there an onus on 

the employer now to investigate that? Is there an onus on the employer now to investigate a causal relationship? 

For example, just because a repetitive trauma condition may 

occur either as a result of a bad knee or carpal tunnel or something, would that then require the employer to invest in a medical 

diagnosis of his condition and take a patient history to determine 

whether such a condition could be causally related to the job requirements or to something else, just maybe even degenerative 

changes? 
48 

And also, when you look at retaliatory terminations, causes of actions for retaliatory terminations—in other words, as an employee, 

I have been let go for cause, but I don’t believe so. I believe it is 

because I have put on my Log 300 now that I have, you know, a 

constant pain in my back and, therefore, they are letting me go because they don’t want to have to invest further. 

So I would appreciate your opinion with regard to the MSDs and 

the likelihood of a new cause of action may ensue. 

Mr. SULLIVAN. Well, Congressman, the thought process you just 

went through is similar to the thought process a small-business 

owner would go through when they are looking at whether or not 

to put an injury or illness onto a log. And to say that that calculation in your mind, even without any type of diagnostics, would take 

under 5 minutes really gets at a disagreement between small businesses and OSHA over their proposal. 

I would actually elevate your concerns even higher, because 

when you talk about the diagnosis of an injury, you are actually 

putting the employer potentially in the place of a doctor to make 

a diagnosis. And so they have to really go through two things. One 

is to determine whether or not it is an MSD, which sometimes requires a doctor, and it wouldn’t be fair to be put that—— 

Mr. ROSS. It would require a doctor. I mean—— 

Mr. SULLIVAN [continuing]. Onus on an employer. The other is 

whether or not it is work-related. And you get into some really 

sticky situations not only to see if it was part of a weekend touch 

football game, but, really, whether or not that is any of the employer’s business. And so navigating all those sensitivities under the 

cloud of potential legal liability is a very real concern to small businesses on this proposal. 

Mr. ROSS. And, for example, if they left employment and later 

filed suit for a work-related accident under the workers’ compensation rules for carpal tunnel, but they fail to disclose it on their Log 

30, then couldn’t the employer not be availed to an affirmative defense of a misrepresentation of a physical condition? 

Mr. SULLIVAN. All very good concerns that are echoed by the 

small-business community. 

Mr. ROSS. Mr. Sessions, you commented about the noise protection ruling. And more importantly, you indicated that it was done 

by way of an administrative interpretation, rather than by regulation. Is that something that is normally delivered or promulgated 

by OSHA, with disregard to the regulatory process? 

Mr. SESSIONS. It has been a grey area, both for OSHA and other 

regulatory agencies, sort of, what is done by regulation and what 

is done by administrative interpretation, by guidance documents, 

or by other means that aren’t subjected to—— 

Mr. ROSS. Or by regulatory fiat, as I would say. 

Mr. SESSIONS. You know, there are procedural safeguards if an 

agency is going to do something by formal regulation. SBREFA applies, the executive order for analysis applies, but they don’t apply 

if the agency somehow takes the action under a different guise. 

And that has been a very difficult issue for a number of years 

across all regulatory agencies. 

Mr. ROSS. Thank you. 
49 

Ms. Holmes, just real quickly, because I am running out of time 

here, I think the greatest balance that we could afford is to make 

sure that the regulatory environment is as stringent and necessary 

as possible to maintain a good business environment and also to 

protect against the incidents which occurred that cost Ms. Miser 

her brother. 

But I—my concern at this point—and I address this to you for 

your members and dealing with the chamber—have not we lost 

sight in this regulatory process of the foundation upon which we 

rely, and that is logic and reason? 

Ms. HOLMES. You know, I think we have in many respects, Congressman, because we have, you know, an agency that, again, I 

said and I meant, what we—what OSHA did in connection with the 

noise standard is really unbridled arrogance. They did not feel the 

need to look to see whether there was a problem, whether what 

they were proposing would fix the problem, or how much it would 

cost. 

We simply can’t have that. And they did, in fact, by regulatory 

fiat, as you suggested, rather than going through a rulemaking 

process where there would have been—— 

Mr. ROSS. Thank you. I believe my time is up. Thank you. 

Ms. HOLMES. And now I will be quiet. 

Chairman WALBERG. Thank you. 

We will move on to the gentleman from Indiana, Mr. Bucshon? 

Mr. BUCSHON. Thank you, Mr. Chairman. And thanks to the 

panel. 

Just to give you a little background on me, I am a physician, cardiovascular surgeon. I see a lot of patients with their lung problems that have a history of workplace exposure, so I understand 

that concept. And also, my father was a United Mine Worker and 

a coalminer underground for many years, so I have also seen 

that—it from that side. 

And my question is from a budgetary standpoint. And would— 

and anyone on the panel can address this. I mean, in 2008, would 

anyone say that OSHA was having difficulty with what they were 

trying to do based on their budget in 2008? 

Ms. Holmes? 

Ms. HOLMES. From my perspective, Congressman, I don’t think 

they were. I think it is a matter of setting regulatory priorities, as 

well as, to the extent possible, deferring resources to compliance. 

The vast, vast, vast majority of employers want very much to do 

the right thing by their employees. It does not serve any business 

to lose employees or have employees become injured on the job. It 

is—in addition to the human factor, which is very important, it is 

extraordinarily costly. Workers compensation costs are very high. 

It is good business to work safely. 

And in businesses of—the vast, vast majority—and certainly everyone I have had the privilege to represent in my 16 years—has 

taken that tack, that they want to do the right thing. And I think 

OSHA has the resources to—I think it is a matter of smart use of 

resources, candidly. 

Mr. BUCSHON. Okay. Thank you. 

I yield back. 
50 

Chairman WALBERG. He will be right here. I am looking forward 

to calling on the gentleman who was my chairman the last time I 

served here before coming back this term, and now the ranking 

member of the full committee, Mr. Miller? 

Mr. MILLER. Thank you very much, Mr. Chairman. My apologies. 

I am unfortunately having to duck in and out. 

Let me just, if I might, see if I can get some clarification. Mr. 

Sullivan, in your testimony, you are not arguing that the Regulatory Flexibility Act at OSHA is not working? You don’t like the 

way it is being handled in this particular case? 

Mr. SULLIVAN. I believe that the attitude of trying to avoid 

SBREFA instead of embracing it is cause for concern. 

Mr. MILLER. See, that—you are talking about—but it has been 

in one iteration since the 1980s. You are not arguing that the underlying law is somehow not working? I mean—— 

Mr. SULLIVAN. I believe that there is an attitudinal problem—— 

Mr. MILLER. I understand that. I understand that. 

Mr. SULLIVAN. There is—— 

Mr. MILLER. I am asking about the generic law. Apparently you 

were happy with it 2 years ago. 

Mr. SULLIVAN. Actually, I testified last week on measures that 

should be adopted to—— 

Mr. MILLER. That is different. I understand that. 

Mr. SULLIVAN [continuing]. Improve the law, so—— 

Mr. MILLER. So what is your testimony? 

Mr. SULLIVAN. My testimony is before the committee—— 

Mr. MILLER. You don’t like the way this Administration of OSHA 

is administering the law? 

Mr. SULLIVAN. I have been critical of OSHA’s implementation of 

the Regulatory Flexibility Act past this Administration, when I was 

working—— 

Mr. MILLER. Okay, that is—I am trying to figure this out. 

Mr. SULLIVAN. Okay. Well, I believe that OSHA has been able to 

do a better job and continues to be able to do a better job in complying with the Regulatory Flexibility Act. 

Mr. MILLER. Mr. Sullivan, in this discussion of the cost of regulation—now, you have obviously chosen to and it is right in your testimony, just to talk about the cost. Are you suggesting there are 

no benefits of OSHA regulations? There have been no benefits 

throughout the various administrations of OSHA here? 

Mr. SULLIVAN. I am not suggesting that there are no benefits. 

The reason I focused on cost is because, in that way, it is very clear 

that small businesses are disproportionately impacted by costs. 

And the Regulatory Flexibility Act—— 

Mr. MILLER. Small businesses—— 

Mr. SULLIVAN [continuing]. Tries to—tries—— 

Mr. MILLER. Don’t small businesses also generate a somewhat 

higher percentage of the accidents, given—to the small-business 

employee population? 

Mr. SULLIVAN. Congressman, I don’t know what the comparison 

of small-business accidents are compared to large-business. I do 

know that there is a disproportionate cost on small business when 

it comes to regulation, and the idea of the—Congressman, could I 

actually just finish my answer? 
51 

Mr. MILLER. I am running out of time. As you know, the chair 

is being—— 

Mr. SULLIVAN. I would like to just answer your question, Congressman. 

Mr. MILLER. I would like to ask you another question. 

Mr. SULLIVAN. Thank you. 

Mr. MILLER. Because it goes to the point you are about to make. 

If they generate 45 percent of the fatalities with 14 percent of the 

workforce, you might want to check in with them to see what is 

going on. 

Mr. SULLIVAN. I think OSHA wants to issue rules that work on 

Main Street small business. And in order for it to work, they have 

to consider the impact and the constructive impact by small business before moving forward with rules. 

Mr. MILLER. I would make the point that when you decide you 

are only going to talk about cost, one, the question is whether or 

not small business is a generator of fatalities that justifies their 

consideration by OSHA for rules and, two, that when you talk only 

about the cost of regulation, somewhere in the testimony there has 

to be some understanding of what the benefits are, of whether we 

can arrive at that mutually or not. 

There has to be some understanding of that, because you get 

studies all the time from various insurance companies and others 

who cover various sectors of our economy about the cost of fatalities, about the cost of the injuries, of the retraining, of the rehabilitation that go on with this. 

And so I think—I don’t get the—— 

Mr. SULLIVAN. I think we actually both want the same end point, 

and that is a smarter regulation at the end of the process. And how 

they get there—— 

Mr. MILLER [continuing]. If I only talk about the benefits of the 

regulation and suggest we start from that basis and you only talk 

about the costs and suggest that we start from that basis. 

Mr. SULLIVAN. Well, actually, I think we get to the same place 

when OSHA not only asks small business how a rule can be written better to reduce costs, but also to ask—— 

Mr. MILLER. I understand that. 

Mr. SULLIVAN [continuing]. Ask the small employer, hey, this is 

what we are looking at. Do you think it increases benefits more 

from a small-business perspective—— 

Mr. MILLER. So you do give some recognition to the fact that 

there are benefits to many of these regulations and have been, in 

terms of saving lives or reducing injuries or cost of businesses? 

Mr. SULLIVAN. Of course I do. 

Mr. MILLER. Okay. 

Mr. SULLIVAN. And I also recognize that the small businesses, in 

engaging in that dialogue with OSHA, would like to come up with 

those solutions. 

Mr. MILLER. I understand. Okay. Thank you. 

Chairman WALBERG. Thank you. 

Mr. MILLER. I yield back my time, Mr. Chairman. 

Chairman WALBERG. Appreciate that. We have the Chairman of 

the full committee here, the gentleman from Minnesota, Mr. Kline. 
52 

Mr. KLINE. Thank you, Mr. Chairman. I apologize for coming in 

late. You have probably noticed that—how this place works. It is 

a bit confusing, as Members are moving back and forth between 

competing hearings and competing commitments. 

I do want to thank all of you for being here today and for your 

testimony. And I want to give Mr. Sullivan the opportunity to pick 

up—he was trying to complete an answer to Mr. Miller’s question 

having to do with cost-benefit analysis and assessing the costs of 

regulations, which fall disproportionately on small businesses. 

And I know you were starting to finish that thought, and I would 

like to give you the opportunity to do that. 

Mr. SULLIVAN. Well, thank you, Congressman. There has been a 

great deal of attention to figures that have to do with the cost of 

regulation on small firms. And from my opinion, that actually is a 

separate conversation than what I tried to bring across in my testimony, which is that small businesses are disproportionately impacted. 

And that really gets at that federal rules just aren’t—they should 

not be encouraged to be one-size-fits-all. And if OSHA sits down 

with small business and says, ‘‘We would like to solve a problem. 

How do you, small business, propose that we try to solve this problem?’’ 

Forcing that dialogue is what makes for a better final regulation. 

And in my opinion, OSHA is not doing a good enough job in having 

that dialogue. 

Mr. KLINE. Thank you. I yield back, Mr. Chairman. 

Chairman WALBERG. Thank you, Mr. Kline. 

Now we moved to the gentleman from Ohio, Mr. Kucinich. 

Mr. KUCINICH. Thank you, Mr. Chairman. 

To Ms. Miser—and welcome to you and to all the witnesses—Ms. 

Miser, your testimony talked about the OSHA crane standard, 

which will provide a net benefit of $55 million a year, based on 

lives saves and injuries avoided, yet the Mercatus Institute, a 

think-tank funded by corporate interests, gives this rule a low score 

on its regulatory report card. 

Now, given the deaths from crane accidents, should OSHA have 

simply ignored this problem? And isn’t it the case that industry 

also wanted the standard updated? 

Ms. MISER. Well, in that particular case, all they would have 

needed is a spotter, and he would be here today. So, I mean, absolutely not, I don’t think that they should. It is a simple solution, 

and it should have, you know, been done way before that. 

And I guess, to me, what you need to do is look at standards that 

work, standards that are working now. For instance, the grain 

standard. We know for a fact that it saves lives. You know, it 

saves—I have the figures here. It says that—and this was by the 

National Grain and Feed Association. They say that explosions declined 71 percent, injuries by 90 percent, and fatalities by 95 percent. 

So, no, I don’t. I think that there are times when you have to— 

standards, and I think that they are very important. And I don’t 

think that they should be given up. I think we should keep pushing 

until we get it done. And if it takes a little work, if it takes a little 

talk, that is fine, but let’s get to it and let’s get it done. 
53 

Mr. KUCINICH. Mr. Sullivan, let’s discuss fatality rates in small 

business. The Kauffman-RAND Institute Center for the Study of 

Small Business and Regulation found that firms with 1 to 19 employees had the highest fatality rate in all sectors, except wholesale 

trade. They found that firms with more than 1,000 employees had 

the lowest fatality rates in all industries. 

The Census of Fatal Occupational Injuries, which is published by 

the Bureau of Labor Statistics, reports that 45 percent of all workplace fatalities occur at small businesses which employ between 1 

and 9 employees, even though these establishments only employ 14 

percent of the workforce. 

So, Mr. Sullivan, do you agree that that small-business establishments have on average higher fatality rates than larger establishments? And if not, is the Labor Department data in error? 

Mr. SULLIVAN. Congressman Kucinich, I don’t disagree with the 

data. I would be interested in having a subsequent conversation 

and drilling into that data. I remember when I was working at the 

Small Business Administration and hearing those statistics and 

asking, why are they so high? And I believe that the answer uniformly was because of traffic fatalities, which, you know, ironically 

are outside of the scope of OSHA. 

But I think a very serious set of statistics that point out a problem—and I will go back to kind of my—the whole purpose of my 

testimony, which is to encourage OSHA to sit down with small employers to hammer out rules that work. And when you look at 

those types of fatality rates, I think it only elevates that type of 

approach, because they do want to finalize rules that work on Main 

Street and not have to redo these regulations when fatalities go up. 

Chairman WALBERG. Time is expired. I will say thank you to 

each of the witnesses for taking the time to be here today to share 

your expertise, your experience, your data, and your heart, as well, 

on this issue. 

And there will be other opportunities that we will aggressively 

continue to look. And I agree with my ranking member that we 

want to have an aggressive hearing schedule, as well, to plum the 

depths of what is involved here. And even the fact with the grain 

standard, took 7 years to develop that, and we want to encourage 

more rapid, but we certainly want to encourage vital and useful 

standards, as well. 

Having said that, I would like to recognize Ms. Woolsey, the 

ranking member, gentlelady from California, to close with her comments. 

Ms. WOOLSEY. Thank you, Mr. Chairman. 

And it is obvious we have—both sides of this debate are interested and active in participating today. I give you a lot of credit 

for that. And my subcommittee has been really active for the last 

4 years. They want to keep on going. 

I really believe that, unless the goal is to underfund and undermine in the long run OSHA, we really can work together, because 

we have to bring OSHA into the 21st century, period, because all 

of our workers are depending on us. So thank you very much. 

Chairman WALBERG. Thank you, Ms. Woolsey. 

Again, thank you to the witnesses for sharing with us today. We 

will approach these issues differently, I am certain, as we work on 
54 

this subcommittee. And all of the issues pertinent to that mix, that 

creative tension of having jobs, which people need, and an expanded economy, which that can produce, the prosperity, the lifestyle, the happiness, and the safety in carrying out all of these 

functions in a society that works well together. 

But that is a creative tension. And at each time in our history, 

there are approaches that must be flexible in how we approach it 

in order to keep the movement forward, as opposed to stopping, 

which, as we all know, once you stop, you move backwards. 

So thank you again for participating. I thank the subcommittee 

for your involvement, as well. We will have opportunities to continue to explore. I look forward to doing that. We will certainly 

have OSHA and its representatives in front of us. We look forward 

to hearing the Secretary tomorrow in hearing, in the full committee, and then moving from that with further testimony from 

business and industry, from workers, and from the regulators 

themselves. 

So there being no further business, the subcommittee stands adjourned. 

[The statement of Ms. Hirono follows:] 

Prepared Statement of Hon. Mazie K. Hirono, a Representative in 

Congress From the State of Hawaii 

Today Republicans have called a hearing to argue that the Occupational Safety 

and Health Agency (OSHA) costs too much and burdens businesses with too much 

regulation. 

The workers in my district and I know better! 

I have heard from workers in Hawaii about how OSHA regulations and enforcement reduce injuries and save lives. 

One worker at an electric utility company told me of the hazardous conditions she 

and her team are exposed to every day: electricity, chemicals, high pressure steam 

and water lines, and high temperature fuel. OSHA’s rules and guidelines require 

regular safety trainings and updates, and ensure that workers wear safety glasses, 

steel-toed shoes, flame-retardant clothing, chemical hoods, and safety gloves. The 

goal is NO injuries. 

Despite these precautions and wearing the proper equipment, she was burned by 

sulfuric acid in an accident 15 years ago. When reviewing the work area she was 

in when the burn occurred, the company’s safety department—following OSHA 

guidelines—determined that additional engineering measures were necessary to prevent future injuries. Fortunately, no future injuries have occurred at this workplace. 

Safety guidelines and regulations can help save lives, and so can enforcement. 

In another story in Hawaii, lack of sufficient enforcement led to tragic results. In 

May 2009, an 800-foot tower collapsed at the Hawaiian Cement facility, killing 

worker Juan Navarro. Subcontractor AG Transport did not have a license, engineering survey, or evacuation plan for the demolition project. The company was fined 

a paltry $750. This accident could have been prevented, but Hawaii only had 11 

state OSHA staffers to inspect and enforce worker safety on construction projects 

across all 7 of our inhabited islands. 

In September of 2010, the U.S. Department of Labor (DOL) found that under 

former Governor Linda Lingle, Hawaii had under-funded and systematically neglected its state Occupational Safety and Health Act plan (OSHA state plan). As a 

result, Hawaii did not have enough workplace inspections or on-site consultations 

to keep workers safe. Hawaii was the only state in the nation found breaking its 

state plan obligations. 

Unfortunately, for Hawaii and the 27 states/territories with approved state plans, 

DOL is extremely limited in its authority to help state plans improve. DOL’s only 

option under current law is to completely end the state plan’s local control and step 

in with federal control. 

My Ensuring Worker Safety Act (H.R. 571) would allow federal OSHA more flexibility to collaborate with states and improve underperforming state plans, such as 

Hawaii’s. I urge my colleagues to support it. 
55 

On the U.S. House floor today, the Republican job-slashing resolution would decimate federal OSHA’s budget by $99 billion this year, requiring 3-month furloughs 

of OSHA employees, then layoffs next year. This is not the way to ensure worker 

safety. 

In reviewing today’s witness testimony, I note that those who question OSHA’s 

programs focus on OSHA’s costs without discussing the benefits. I would point out 

the following: 

• According to the latest ‘‘Death on the Job’’ report, OSHA regulations and enforcement have saved an estimated 410,000 lives in the 40 years since the Act was 

passed in 1970. 

• Liberty Mutual insurance estimated that the annual direct cost to businesses 

of work-related injuries and illnesses were $53.4 billion per year, more than $1 billion per week! 

• Since 2000, OSHA has reviewed the costs and benefits of its rules 8 times, finding its regulations to reduce accidents and injuries. For example, the review found 

that OSHA’s grain handling standards reduced explosions by 42% and reduced 

deaths by 70%; sharps injuries were reduced by 88%; and excavation fatalities were 

reduced by 40%. 

Beyond these measurable economic and safety benefits, what value do we place 

on reducing worker injury, illness, and death? OSHA protections must be upheld 

and enforced properly to keep our workers safe. 

[The statement of Mr. Kucinich follows:] 

Prepared Statement of Hon. Dennis J. Kucinich, a 

Representative in Congress From the State of Ohio 

Today’s hearing is presented as an examination of the impact of the actions of the 

Occupational Safety and Health Administration (OSHA) and the alleged negative effect on job creation. Despite having issued only 2 new health and safety standards 

in the past ten years, OSHA is being cast as a villain that has our economy in its 

clutches. OSHA is being asked to be more responsive to the needs of small business, 

while facing $99 million in cuts in the continuing resolution (CR) we are expected 

to vote on this week. 

The unemployment rate is still at record levels. The labor force participation rate 

is nearly at its lowest level in a generation. There are nearly 5 unemployed workers 

for every job opening in this country. Millions of Americans are under water on their 

homes, and so they cannot sell them and they cannot move to pursue better economic opportunities in other parts of this country. Meanwhile, American corporations are sitting on $2 trillion in cash. Much of that $2 trillion it appears is being 

spent on high-priced industry lobbyists, instead of workers. And we know that worker productivity—the output per worker per hour—has steadily increased over the 

years, especially in manufacturing and service industries, but the average worker’s 

income has not kept pace. This tells us that employers have the upper hand right 

now. So this Subcommittee should be focused on the matters under its jurisdiction: 

are the regulations designed to protect American workers being followed? Can they 

be improved? 

Instead, we have heard examples of the supposed heavy financial and paperwork 

burden that OSHA regulations impose on small businesses. It is true that American 

businesses large and small deserve clear workplace safety regulations from their 

government. But the evidence cannot be ignored that such regulations are absolutely vital to the safety of the American worker. Every year in this country, hundreds of workplace accidents continue to occur, some of which are playing out before 

our eyes in gruesome detail. But as the fires are put out or the toxic spill cleaned 

or the toll in human lives is counted, the opponents of workplace safety laws once 

again take up their call of ‘‘overly burdensome regulations.’’ 

No price tag can be put on the life of a healthy, living American. We cannot 

credibly demand that OSHA should rededicate itself to more quickly and efficiently 

serving American businesses while at the same time, extolling the virtues of the 

complex and time-consuming process OSHA undertakes before any new workplace 

safety and health standard can be established. 

Last year, the Office of Management and Budget performed a cost-benefit analysis 

of Federal regulations which showed that the benefits of regulations far outweigh 

their costs. Between 1999 and 2009, the estimated costs of regulations were between 

$43 billion and $55 billion, while the estimated economic benefits were between 

$128 billion and $616 billion. That means, during that ten year period, the cost-to- 
56 

benefit ratio of regulations was one-to-two based on OMB’s lowest estimations, and 

one-to-fourteen based on OMB’s highest estimations. 

The data from the Bureau of Labor Statistics shows that in 2008, 5,214 workers 

were killed on the job in this country—an average of 14 workers per day. If the CR 

passes with the proposed cuts to OSHA, , it will have to furlough all employees for 

the last three months of the fiscal year, and then lay off 415 of its 2335 employees. 

It will cut OSHA’s funding so drastically that it will cripple its ability to function. 

I intend to do all I can to prevent this from happening. 

[Additional submissions of Mr. Walberg follow:] 
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58 
59 
60 
61 
62 
63 
64 
65 

[Additional submission of Ms. Woolsey follows:] 
66 

[Whereupon, at 11:25 a.m., the subcommittee was adjourned.] 

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