U.S. GOVERNMENT PRINTING OFFICE

41–801 CC WASHINGTON : 1997

OSHA’S CONTEMPLATED SAFETY AND HEALTH

PROGRAM STANDARD

HEARING

BEFORE THE

COMMITTEE ON SMALL BUSINESS

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

WASHINGTON, DC, June 26, 1997

Printed for the use of the Committee on Small Business

Serial No. 105–15

(
(II)

COMMITTEE ON SMALL BUSINESS

JAMES M. TALENT, MISSOURI, Chairman

LARRY COMBEST, Texas

JOEL HEFLEY, Colorado

DONALD A. MANZULLO, Illinois

ROSCOE G. BARTLETT, Maryland

LINDA SMITH, Washington

FRANK A. LOBIONDO, New Jersey

SUE W. KELLY, New York

MARK E. SOUDER, Indiana

STEVEN J. CHABOT, Ohio

JIM RYUN, Kansas

VINCE SNOWBARGER, Kansas

MICHAEL PAPPAS, New Jersey

PHIL ENGLISH, Pennsylvania

DAVID M. McINTOSH, Indiana

JO ANN EMERSON, Missouri

RICK HILL, Montana

JOHN SUNUNU, New Hampshire

JOHN J. LAFALCE, New York

NORMAN SISISKY, Virginia

FLOYD H. FLAKE, New York

GLENN POSHARD, Illinois

NYDIA M. VELA ́ ZQUEZ, New York

JOHN ELIAS BALDACCI, Maine

JESSE JACKSON, JR., Illinois

JUANITA MILLENDER-McDONALD,

California

ROBERT A. WEYGAND, Rhode Island

DANNY K. DAVIS, Illinois

ALLEN BOYD, JR., Florida

CAROLYN McCARTHY, New York

BILL PASCRELL, JR., New Jersey

VIRGIL GOODE, JR., Virginia

RUBEN HINOJOSA, Texas

MARION BERRY, Arkansas

MARY MCKENZIE, Staff Director

JEANNE M. ROSLANOWICK, Minority Staff Director
(III)

C O N T E N T S

Page

Hearing held on June 26, 1997 ............................................................................... 1

WITNESSES

THURSDAY, JUNE 26, 1997

APPENDIX

Bailey, Melissa, Esq., McDermott, Will and Emery ............................................. 7

Church, Earlyn, Vice President, Superior Technical Ceramics Corporation ...... 15

Gekker, Katherine, President, The Huffman Press, Inc. ..................................... 13

Landon, Brian, Proprietor and Operator, Landon’s Car Wash and Laundry,

Landon’s Paint and Touchup .............................................................................. 9

Rainwater, Gary, D.D.S. ......................................................................................... 11

Watchman, Greg, Acting Assistant Secretary for Occupational Safety and

Health, U.S. Department of Labor ..................................................................... 4

Opening statements:

Talent, Hon. James .......................................................................................... 45

McIntosh, Hon. David ...................................................................................... 47

Davis, Hon. Danny K. ...................................................................................... 49

Jackson, Hon. Jessie L., Jr. ............................................................................. 51

Pascrell, Hon. Bill, Jr. ...................................................................................... 52

Poshard, Hon. Glenn ........................................................................................ 53

Prepared statements:

Bailey, Melissa .................................................................................................. 55

Church, Earlyn ................................................................................................. 66

Gekker, Katherine ............................................................................................ 74

Landon, Brian ................................................................................................... 77

Rainwater, Gary ............................................................................................... 83

Watchman, Greg ............................................................................................... 89

Additional material:

OSHA’s Working Draft of a Proposed Safety and Health Program Standard .................................................................................................................. 97

Safety and Health Programs of The Occupational Safety and Health

Administration .............................................................................................. 113

Statement of American Farm Bureau Federation ......................................... 117

Letter to Chairman Talent from Society for Human Resource Management ............................................................................................................... 123

OSHA Compliance Checklist for the Dental Office ....................................... 131

Statement of the Associated General Contractors of America ...................... 147

Letter to Assistant Secretary Joseph A. Dear ................................................ 156

AGC Guide for a Basic Company Safety Program ......................................... 160

Response from Dr. Rainwater ......................................................................... 201

Letter to Chairman from U.S. Department of Labor .................................... 202

OSHA’s Worker Protection Program Success Stories .................................... 203

Small VPP Facilities in New York .................................................................. 207
(1)

OSHA’S CONTEMPLATED SAFETY AND

HEALTH PROGRAM STANDARD

Thursday, June 26, 1997

HOUSE OF REPRESENTATIVES,

COMMITTEE ON SMALL BUSINESS,

Washington, DC.

The Committee met, pursuant to notice, at 10:05 a.m., in room

2359, Rayburn House Office Building, Hon. Jim Talent [Chairman

of the Committee] presiding.

Chairman TALENT. I am going to go ahead and convene the hearing, since the two really important people are present.

Mr. LAFALCE. You and your counsel?

Chairman TALENT. Yes, and by that we mean the Majority and

Minority counsel, they are here. They are what is important.

Today’s hearing is about a proposed OSHA standard requiring

federally dictated health and safety programs. We will be looking

specifically at the working draft of that proposal. Judging by the

working draft, the proposed standard would place heavy new burdens of a procedural recordkeeping nature on every small business

in the country, including those which have no record of safety problems and which are otherwise in compliance with OSHA’s substantive standards.

Moreover, this new burden would be different in kind from

OSHA’s typical standards in two ways: First, OSHA typically regulates safety, not management. OSHA usually requires that employers maintain safe conditions in the workplace, but doesn’t regulate

how they run the business, provided that they achieve the safe conditions.

For example, my brother is a tavern owner in St. Louis, a fact

of which I am very proud. There very well may be regulations requiring that he store beer kegs at a safe pressure level, but to this

point OSHA hasn’t told him what management technique he must

use in getting the kegs to that level.

Second, OSHA typically requires the elimination of hazards

which can be objectively identified. This new regulation would require that small employers maintain safety programs, the elements

of which are almost totally subjective in nature. Under the working

draft, for example, small-business people must systematically manage safety with programs that are appropriate; must provide supervisor training commensurate with their responsibility; must allow

each employee meaningful participation in the program through

ongoing and effective communication and so on.
2

When I read the working draft, I wasn’t certain whether I was

reading a proposed law or a draft script for the Oprah Winfrey

Show.

The working draft offers no definition of what these terms mean,

nor could it, because the terms are conceptual and relative, rather

than objective in nature. Unless the working draft is fundamentally

modified during the process of rulemaking, it will result in a standard with which no employer in the country can comply, because it

will not be a standard at all, but a series of vague, if well-intended,

admonitions carrying the penalties, but not the clarity, of real law.

I hope the Agency doesn’t respond to these concerns by promising

to be flexible in enforcing this new standard and assuring us its inspectors will be adaptable in applying its vague language to small

employers. Far from being a virtue of the new rule, the vesting of

arbitrary power in the Agency and its inspectors, the power to

make and redefine the law while enforcing it, is a serious vice. The

American people are entitled to know what the law requires them

to do before the law is enforced against them. They should not have

to depend for their rights on the good faith, the good will or the

good mood of any government official on any given day.

I have many other concerns with the proposed draft, but will

withhold discussing them until after the witnesses have testified.

I want to defer as always now to my colleague, the distinguished

Ranking Member and former Chairman of this Committee and my

good friend from upstate New York for any comments he may wish

to make as an opening statement.

[Mr. Talent’s statement may be found in the appendix.]

[The information may be found in the appendix.]

Mr. LAFALCE. Thank you very much, Mr. Chairman, most especially for holding this hearing about OSHA’s draft safety and

health program standard.

This is appropriately a subject of concern to our Committee because any action in this area will most definitely have an impact

on the small business community. One question for us to look into

is whether that impact will be good or otherwise, and to offer our

suggestions to help ensure that small business’ legitimate concerns

are dealt with as the process moves forward.

I am pleased to learn that OSHA has been working with the

Small Business Administration and its Office of Advocacy, as well

as countless trade associations which represent the small business

community, in developing and refining its proposed program standard. This is the way the regulatory process ought to work, and I

commend Acting Assistant Secretary Watchman and his colleagues

at OSHA for those efforts.

Mr. Chairman, the people of the United States want to know

that their workplaces are as safe as reasonably possible. Employers

and employees alike have a definite interest in preventing workplace illnesses and workplace injuries to the extent it is possible.

Doing so will mean happier, healthier workers, lower costs for our

products, lower insurance rates, a stronger economy. As always,

the devil will be in the details.

So I will take no longer today except to join you in thanking the

witnesses for coming to share their knowledge and opinions with

us on these important matters, and to thank you again, Mr. Chair-
3

man, for holding this hearing at an early enough point in the process for our efforts to make a difference as OSHA moves forward

with this program standard.

Chairman TALENT. I thank the gentleman for his comments and

for his long-standing commitment to worker safety, which I know

has been one of his priorities. Nothing would make me happier, as

I know it would make him happier, than if we found some angels

in the details as well as devils in the details.

[The information may be found in the appendix.]

Chairman TALENT. Our first witness today is the Honorable Greg

Watchman, the Acting Assistant Secretary for Occupational Safety

and Health. Before I ask Mr. Watchman to proceed, I want to

thank him for his willingness to be available both for this hearing

and also making himself available to me for personal discussions

about this and other topics. I really am very pleased at the time

he has made available to me, and I am grateful for that.

Having said that, I wanted to comment on the procedure today.

I have discussed this briefly with my friend yesterday, but I think

it is important now to air this with the Committee as a whole. The

Committee may recall that I have said on several occasions that

when we have executive branch witnesses and small business people or citizens, that I typically would want the executive branch

witnesses to testify after the citizens do, not that they are not citizens, but after the nongovernment witnesses, and there are three

reasons for that. The first two are practical. One of them is that

I know that many of the Members wanted to question the executive

branch officials, and I have been at too many hearings when once

that questioning is over, the Members who have other things to do

leave, and they are not available for the nongovernment witnesses,

some of whom have come from halfway across the country. Also, I

think it is important that the government witnesses hear the concerns that are raised and then be available to answer them. That

is a very practical concern.

Then the third reason is not practical, it is just that I feel strongly that we work for all of them, and we should be at their service

rather than the other way around. But I have rather consistently

received letters and communications from the protocol people in the

various executive branch agencies who are concerned that testifying second would somehow affect the — what is the right word —

the ‘‘majesty’’ of the offices at stake, and so they have been reluctant to do it.

Now, to Mr. Watchman’s credit, and to the credit of many of the

actual officials, they don’t seem to care personally. They would just

as soon go second, but they feel like they have to comply with the

policies of their Department.

I am going to have entered into the record without objection a

letter to that effect that we received from the Department of Labor.

Chairman TALENT. I welcome again Mr. Watchman, and thank

him for his flexibility. He will testify on the first panel, but he has

agreed to withhold answering questions until the second panel is

finished so we can question everybody at the same time. That deals

with the substantive concerns and that housekeeping matter, so I

will now ask Mr. Watchman to go ahead with his statement.
4

STATEMENT OF GREG WATCHMAN, ACTING ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR

Mr. WATCHMAN. Thank you, Mr. Chairman. Thank you for the

opportunity this morning to tell you about our progress on developing a safety and health program proposed standard. This morning

I would like to answer four questions about this rulemaking.

First, why do American workers need a safety and health program standard? Second, what is OSHA considering? Third, what is

the rulemaking process we are using to develop the standard?

Fourth, what is OSHA doing to address the needs of small employers?

The first question, why do American workers need a safety and

health program rule? We have made a lot of progress in the last

25 years in this country in reducing occupational fatality rates, but

the reality is the job is far from done. Every year tens of thousands

of workers die in safety accidents or from occupational disease, and

millions more are injured. These incidents cost our society over

$100 billion each year. The good news is that most of these incidents are preventable, but OSHA lacks the resources to get to

these workplaces to protect workers. We have only 2,000 Federal

and State inspectors across the country to protect over 100 million

workers, so we need employers and employees to play a much larger role in protecting workers through ongoing systematic approaches to safety and health.

Safety and health programs represent exactly this kind of approach. We have substantial experience with safety and health programs. Many States already require them. Most collective bargaining agreements require them, and many employers somewhere established them on their own.

Ultimately we have learned that safety and health programs

help to reduce injury and illness rates. They can save between $4

and $6 for every dollar invested in a safety and health program,

and they also in many cases have been shown to improve morale

and productivity in workplaces across this country.

Let me give you several examples of the success of these programs. In Colorado, over 500 employers established a safety and

health program under an insurance industry program. Accidents

declined by 23 percent, accident costs declined by 62 percent, and

ultimately the employers that participated in this program saved

$23 million just in the first year of the program.

Second, in Massachusetts, employers with safety and health programs in a study had their losses decline by 17 percent, while those

without a safety and health program saw their losses increase by

15 percent.

Our voluntary protection programs, which recognize excellence in

safety and health, are another piece of evidence. Participants in

these programs have comprehensive safety and health programs,

and they have injury rates that are 35 to 90 percent below their

industry averages.

Last, in Maine, we had a cooperative compliance program called

Maine 2000. By establishing comprehensive safety and health programs, employers were able to identify 14 times more hazards than

OSHA could have identified through inspections alone.
5

We have seen many examples of what happens when employers

use safety and health programs and when they do not. Boise Cascade had a program, and they were able to reduce their workers’

compensation costs from $1.3 million to just $37,000 a year. In contrast, in North Carolina, Imperial Foods had no safety program, no

means of identifying and fixing fire hazards. There was a fire

there; 25 workers died. Subsequently, North Carolina enacted its

own safety and health program requirement.

Question number 2: What is OSHA considering? We are considering development of a rule consistent with five new OSHA themes

following five principles with five core elements. The new OSHA

themes are to develop a rule that is consistent with common sense,

that involves stakeholders in the process, that is written in plain

language, that shifts the Agency’s focus from technical violations to

a systematic approach, and that treats responsible employers differently from less responsible employers.

The five principles we are following are to include the core elements necessary for an effective standard, to make the standard as

flexible and performance-based as possible, to focus on effectiveness

rather than documentation, to address the needs of small businesses, and to provide extensive compliance assistance.

The five core elements include management commitment, employee involvement, finding and fixing hazards, employee training,

and evaluation of the program. There is very substantial agreement within the safety and health community about these core elements.

Question 3: What is the rulemaking process we are using? We

began work in 1993. We started stakeholder meetings in October

1995. We held a second series in June 1996, and a third series last

December. We are now working on a proposed standard, and our

hope is to publish a proposed standard by the end of this calendar

year.

Obviously the proposal will only then trigger the formal rulemaking process, which itself is very thorough and allows for

lengthy hearings, comment periods and cross examination of witnesses.

Along the way we have had many, many other informal meetings. We have interacted and met with hundreds of stakeholders,

including many employers, employer representatives, worker representatives, and safety and health professionals. We have also

taken many significant steps in the working draft and in our subsequent efforts to address the concerns that employers have raised,

as well as the concerns that workers have raised.

The last question: What is OSHA doing to address small-business concerns? First we are attempting to identify those concerns

by including small employers and their representatives at our

stakeholder meetings; by holding separate meetings, which we

began in Cleveland in 1995 and intend to continue next month in

Atlanta, Philadelphia, Columbus, and Portland, Oregon; also by

conducting a regular SBREFA regulatory review panel process; and

last by working closely with SBA to address small-employer concerns.

All of these are steps we are taking prior to the issuance of a proposal, and we will have a lengthy process, as I said, after that dur-
6

ing which small employers can make their views known before a

final rule ever takes effect.

Second, in addition to identifying their concerns, we are responding to those concerns. We have deleted many requirements and

have stripped the standard down to core elements. We have based

it on flexible language and plain language. We have added long

phase-in periods and made a commitment to compliance assistance.

We have dropped a written program requirement, minimized the

documentation requirement, and exempted the smallest employers

from that requirement.

Last, we have addressed the enforcement issue up front and have

adopted a policy under which no penalty would be issued for a violation of the standard unless there was also a pattern of serious

hazards or violations.

In conclusion, Mr. Chairman, first, American workers need a

safety and health program standard. Second, OSHA is considering

a common-sense approach that has a long track record of success.

Third, OSHA has listened and will continue to listen to stakeholders regarding the development of this rule. Last, OSHA has taken

steps and will continue to address small employer concerns in the

future.

Thank you.

Chairman TALENT. I thank you. Thank you also for summarizing

your testimony, Mr. Watchman.

[Mr. Watchman’s statement may be found in the appendix.]

Chairman TALENT. We will now go to the second panel. Mr.

Watchman, you can either stay or retire for the time being and

then come on back for questions. So I ask the second panel to come

forward.

Our next witnesses, I do want to ask the witnesses, I know you

have prepared statements, which will all be admitted into the

record without objection. In the case of statements that are fairly

long, if you could summarize the high points, that would be helpful

to the Committee. Often the most fruitful parts of these hearings

are when the Members get to ask questions about the areas of concern to them. I am not trying to put a damper on anybody, but if

you could keep that in mind, that would be good.

Our first witness is Ms. Melissa Bailey, Esquire, of McDermott,

Will and Emery, of Washington, DC, who is a legal expert on

OSHA and health and safety matters. Ms. Bailey.

Mr. LAFALCE. Mr. Chairman, before we proceed, Mr. Watchman,

when the turn comes for questioning, my first question is going to

be what comments do you have to make on the most salient points

made by each of the other of the five witnesses. So I would ask you

to listen to them and jot down at least their most salient points,

and then I will ask the Chair for leniency in time in permitting you

to answer that.

Mr. WATCHMAN. Thank you for the advanced warning, Mr. LaFalce.

Chairman TALENT. I will give an advance ruling. Of course the

gentleman has unlimited time for the questions he may wish to

ask.
7

STATEMENT OF MELISSA BAILEY, ESQ., MCDERMOTT, WILL

AND EMERY

Ms. BAILEY. Thank you, Chairman Talent and Members, for inviting me to testify today about OSHA’s draft proposed safety and

health program standard. I appreciate the opportunity.

My name is Melissa Bailey, and I am an Attorney in McDermott,

Will and Emery’s OSHA practice group here in Washington. The

OSHA practice group consists of eight attorneys who spend the majority of their time representing employers of all sizes in inspections, enforcement litigation, rulemaking, and compliance counseling.

OSHA issued a draft proposed safety and health programs standard in November, 1996. The standard would apply to employers of

all sizes and would mandate that safety and health programs with

certain core elements be established in each workplace.

OSHA has set out a laudable goal in this draft proposal, to require employers to implement comprehensive safety and health

programs to prevent injuries in the workplace. The problem is that

on the day this standard is adopted, every employer will become a

lawbreaker. The reason for that is simple: The language is so

vague that OSHA inspectors will be able to interpret it any way

they want to, and no employer will ever be sure whether or not he

or she is in compliance.

OSHA adopts basically two types of standards: Specification

standards and performance standards. A standard requiring guardrails is an example of a specification standard, because OSHA tells

the employer how high and how wide the guardrail has to be for

the employer to be in compliance. A performance standard lets the

employer decide the best and most efficient way to reach a certain

safety goal. The noise standard, for example, provides that if employers get to a certain decibel level, then they are in compliance

with the standard. The employer, rather than OSHA, decides how

to get to that level.

This draft proposal is neither a performance standard nor a specification standard. OSHA calls the proposal a ‘‘performance-based’’

standard, but it lacks an objective safety goal. Rather, it just lays

out a set of very general, vague requirements. Just to give one of

many examples, the draft says the employer must conduct hazard

assessments ‘‘as often as necessary’’ and in a way ‘‘appropriate’’ to

safety and health conditions.

What inevitably happens with this kind of vague language is

that the company thinks it is ‘‘appropriately’’ assessing hazards ‘‘as

often as necessary,’’ but the compliance officer shows up and believes otherwise. A favorite professor of mine described it like this:

A performance standard becomes a specification standard in the

hands of the OSHA inspector.

When OSHA adopted the process safety management, or PSM,

standard for the chemical industry in 1992, it too was touted as a

performance-based standard. Having represented employers

throughout the nation in PSM inspections and enforcement litigation, we have discovered that once a standard leaves Washington

and lands in the hands of OSHA inspectors, the idea of a performance standard becomes a hoax.
8

The PSM standard’s requirements for operating procedures are

an excellent example of this problem. The standard requires that

operating procedures be ‘‘clear.’’ There was very little debate over

this provision during the PSM rulemaking because employers believed that they knew how to write clear operating procedures.

What employers have now discovered is that they don’t know how

to write operating procedures, it is OSHA who knows how to write

operating procedures. It is OSHA that issues citations and penalties that specify the level of detail that make the procedures

‘‘clear’’ enough for employees to understand.

OSHA is trying to sell this standard to stakeholders as harmless

because it is ‘‘performance-based’’ and flexible. What employers will

find if this standard is adopted is that compliance is a moving target.

In addition to enforcement concerns, the draft raises significant

policy issues with regard to OSHA rulemaking and the way employers are cited. OSHA issues two types of citations to employers:

Citations alleging violations of hazard-specific standards such as

the machine-guarding standard; and citations alleging that the employer has violated the general duty clause by failing to maintain

a workplace free of hazards. The general duty clause is basically

used when OSHA does not have a standard on a particular hazard.

In recent years, OSHA has used the general duty clause to cite employers for ergonomics violations since the Agency has not been

able to adopt an ergonomics rule.

The draft safety and health program standard mandates that

employers assess, prevent, and control all hazards, including hazards like ergonomics that OSHA currently has to cite using the

general duty clause. So, this draft is in essence a back-door

ergonomics standard because, rather than going to the trouble of

issuing a general duty clause citation, it will allow OSHA to cite

the employer for a violation of the safety and health program

standard and then require abatement of the ergonomics hazards.

In other words, OSHA will simply use the safety and health program standard to cite the employer for having an ineffective program that doesn’t deal with ergonomics. So, by adopting a safety

and health programs rule, OSHA is really adopting back-door

standards on ergonomics, workplace violence, and every other conceivable hazard that could be the subject of a general duty clause

citation. But rather than being forced to develop a record, talk to

experts, and negotiate with industry and labor, OSHA is able to

avoid all the controversy of actually adopting this type of standard.

I am sure I must sound like the voice of doom at this point, and

I guess to some degree I am, because this draft standard simply

cannot be fixed. Any standard broad enough to cover all of American industry and yet flexible enough to account for each workplace’s special circumstances will inevitably use the broad language

that is so problematic once it leaves Washington.

The good news, if you will, is that a safety and health program

standard is simply not necessary because it doesn’t add anything

new to what OSHA can already regulate. It does not focus on a

specific hazard, and OSHA already has the enforcement authority

to issue citations and penalties for every hazard included in the
9

safety and health program standard by using the general duty

clause and the standards it has already promulgated.

In addition, a safety and health program standard duplicates the

requirements set out in hazard-specific standards. OSHA already

has requirements in numerous hazard-specific standards like lockout/tagout, PSM, personal protective equipment, and others that

require the same type of hazard assessments this standard would.

The draft proposal says that OSHA is prepared to launch ‘‘the

most extensive outreach, education and compliance assistance campaign in the Agency’s history’’ to help small businesses develop programs. I question why the Agency needs a standard to conduct

such a campaign. Why not help small businesses without promulgating a costly, unnecessary standard?

The enforcement and rulemaking issues I have raised are the

most significant problems in the draft, but there are others that

are detailed in my written testimony that I simply didn’t have time

to mention. For example, the draft may expand OSHA’s ability to

issue criminal penalties, and it implicates important labor-management relations issues.

Thank you for giving me the opportunity to speak today.

Chairman TALENT. Thank you, Ms. Bailey.

[Ms. Bailey’s statement may be found in the appendix.]

Chairman TALENT. Our next witness is Mr. Brian Landon. He is

the proprietor and operator of Landon’s Car Wash and Laundry

and Landon’s Paint and Touchup in Canton, Pennsylvania.

You don’t launder the cars, you launder, I take it, clothes, right?

Thank you for coming here, Mr. Landon. We will hear your testimony now, sir.

STATEMENT OF BRIAN LANDON, PROPRIETOR AND OPERATOR, LANDON’S CAR WASH AND LAUNDRY, LANDON’S PAINT

AND TOUCHUP

Mr. LANDON. Mr. Chairman and Members, good morning.

As the Chairman said, I am Owner and Operator of Landon’s

Car Wash and Laundry and Landon’s Paint Touchup in Canton,

Pennsylvania. I have been a small-business owner for 22 years.

Currently I have two employees.

Mr. Chairman, I respectfully request that my written statement

be entered into the record.

Chairman TALENT. Without objection.

Mr. LANDON. It is my pleasure to offer comments on the draft

proposal of OSHA’s safety and health program standard for general

industry. Today I am speaking not only for myself, but on behalf

of the National Federation of Independent Business, of which I

have been a member for over 20 years. With two employees and

gross sales of just over $200,000, I am fairly typical of the 600,000

NFIB members.

In opening, I would like to say that I, like other NFIB members,

have a strong commitment to my employees’ safety and health.

This is a commitment that is rooted in the unique relationships

that exist in a small business, relationships that come about by

working side by side with my employees at the car wash, at the

laundry, and in the paint touchup business; working in an atmos-
10

phere where there are no strict job descriptions, and daily tasks

are often shared between myself and my employees.

I am typical of many small businesses whose employees are family and friends. In my case, one of my employees is a good friend

and my brother-in-law, and another is another close friend. It is

these personal relationships that drive my concern for safety.

My employees know that I will provide them with whatever support, be it information, supplies or equipment, that is necessary to

create a safe workplace and to protect their health. I work alongside my employees at each of the work sites, so it is both to the

advantage of myself and my employees to provide a safe workplace.

I am proud to say we have never had an injury, accident or health

hazard occur at my car wash, laundry or paint touchup business.

I am extremely concerned with the burdens and associated costs

that the requirements in the draft proposal would place on me and

my small business, requirements that include implementation of a

general health and safety standard for each work site, management

leadership, employee participation, hazard prevention and control,

training, and system evaluation. Although the recordkeeping, monitoring and application checkoff lists are not mandated by the

standard, for liability protection purposes I would need to undertake each of them. In my case, these requirements are compounded

by the fact that my car wash, laundry and paint touchup businesses encompass four different buildings.

As a small two-employee business, I cannot assign these tasks to

a management team or a manager or even one of my employees.

The full burden would fall on me. This would have a serious detrimental effect on my productivity, and it is my productivity on

which the success of my small business and my employees’ jobs depend.

As always, the cost of compliance would fall heaviest on my

small business and other small businesses like mine. As published

in the document by the Small Business Administration, regulatory

costs to small businesses are approximately 50 percent higher per

employee than larger firms, and the smaller the firm, the higher

those costs.

Although the draft suggested that there would be a phase-in for

small businesses with fewer than 10 employees, this phase-in

would only delay the inevitable and in no way offset the disproportionate costs in dollars and productivity that my small business

would incur.

The draft proposal states that the participation of my employees

will be a necessary element of any new general OSHA standard,

and that this participation should include employee activity in assessing and controlling hazards, developing safe and healthful work

practices, training and evaluating the safety and health program.

I have four different buildings where my small businesses are located. Oftentimes my employees must travel from one site to the

next to complete their duties. With only two employees and four

work sites, my employees will be so busy completing their assignments under the general industry standard that they will not have

time to do their jobs. Again, this employee participation would have

a negative impact on the productivity of my employees without necessarily adding to safety in the workplace in any form.
11

So, because the draft safety and health standard does not allow

for the unique nature of the smallest employers like myself, and

because the burdens and costs would fall heaviest on the smallest

of small businesses such as mine without significantly increasing

workplace safety, I strongly urge the Agency to provide a very

meaningful small-business exemption.

Mr. Chairman, thank you again for the invitation to appear before your Committee, and I will be happy to take any questions you

might have.

Chairman TALENT. Thank you, Mr. Landon.

[Mr. Landon’s statement may be found in the appendix.]

Chairman TALENT. Our next witness is Dr. Gary Rainwater of

Dallas, Texas.

Dr. Rainwater.

STATEMENT OF GARY RAINWATER, D.D.S.

Dr. RAINWATER. Thank you very much. I assume that the written

testimony will be entered into the record.

Chairman TALENT. Without objection.

Dr. RAINWATER. At least when I talk to you, something intelligent will come out of my testimony. I would just like to have a

conversation with you. I would like to tell you who I am. I am Gary

Rainwater. I am a Dentist. I am in full-time private practice of

dentistry in Dallas, Texas, except for this year, and I am there only

maybe a day or two because I am also President of the American

Dental Association, and as such I represent 144,000 licensed practicing dentists across this country.

In November, I went to Washington, and I had a meeting with

Greg Watchman and Joe Dear. This is when I first learned about

this proposed safety and health standard.

I went there for a different reason, a very unusual reason, a reason that I would never have thought I would have gone there 5

years before. I went there to compliment OSHA for being reasonable, for listening to us, for being receptive, for doing some common-sense things. They have introduced the phone and fax method

of dealing with complaints in dental offices. It makes sense; pick

up the phone and ask if there is a problem, and can we solve it

before we send an inspector out. It has worked very well. It is a

good thing they are doing, and I applaud them for it.

Chairman TALENT. Dr. Rainwater, I am sure Mr. Watchman

would want to make sure everybody in the room heard that, right?

You went to see him and Mr. Dear to compliment OSHA on its responsiveness and its common sense.

Dr. RAINWATER. Yes. Five years before I would have never have

thought I would be in that position. But we did do that. That

doesn’t mean that I agree with everything that OSHA does and

that I agree with a lot of these regulations, but I do applaud them

for changing, trying to be rational, and trying to be sensible, and

they have done a good job to that effect, at least for our profession.

Mr. LAFALCE. Did you take Congressman Charlie Norwood, another dentist, with you?

Dr. RAINWATER. No, Charlie was not there.

This is when I first learned about this proposed standard. I said

to Joe Dear and to Craig that, wait just a minute. Now, as I read
12

this, you are going to come out with this, and it is already covered

under our blood-borne pathogens standard, it is already covered on

our hazard communication standard. We have sat down with you

and come up with this OSHA compliance checklist for a dental office, and you can go through this and you can come up with every

possible hazard that you can in dentistry, and we have a checklist

that we go through with our members. So we already have two

standards that cover this, and everything else involved is intrinsic

to the practice of modern dentistry.

We sit down with our employees and have regular meetings, how

to treat patients better, to deal with new materials and new techniques, and to discuss those things regularly as to how in that dental office we can make it safer.

The typical dental office in the United States of America today

has a solo practitioner in the office. Over 80 percent are solo practitioners. They have typically three or four employees. The average

dental office is about 1,000 square feet. All offices, I believe, under

96 or 97 percent don’t take my figures entirely, but somewhere

along 96, 97, or 98 percent are under 4,000 square feet. The thing

about it is that we all work along beside each other. I do the same

things my employees do. I may do them on a different level, but

I am exposed day in, day out to the same workplace hazards that

my employees are. So that means that I am as conscious about

safety in our workplace as my employees.

In my office I have three employees. I have got a secretary, I

have got a hygienist, I have got a chairside. They have been with

me 27 years. They are like a family. I work in 1,500 square feet.

If I called together a committee of my office staff and said, we are

going to form a committee and it is going to be ‘‘find and fix,’’ they

are going to laugh at me. Find and fix what? Are you talking about

the light bulb burned out over there? When I get enough time in

my busy duties, I will replace the light bulb. In a small office like

mine, that is something we do day in and day out, when we pass

in the hall. That is something we do in the meetings we regularly

hold. This is not something that is going to really be received very

well.

On a national level, dentistry is saying with the five core elements of this, we are already complying with this. We are already

going beyond it. We are looking for emerging hazards; not only the

hazards there, but the ones out there. We are dealing with the nitrous oxide situation and have been since 1979, to make the equipment safe and to be sure it is properly maintained. We are also

dealing with the ergonomic issue. We are engaged in research and

have reported it. Do we need more research to see is there a real

problem out there? Does good science tell us that there is a problem with ergonomics in the dental office?

So, you say if you are doing all this, why are you protesting

about it? It is one more layer of regulation. It is one more one size

fits all. This regulation might apply to a Fortune 500 company, it

might apply to a manufacturing company, it might apply to a warehouse, but it does not apply to a modern dental office. It creates

more problems for us in dentistry than it solves.

We worry about the enforcement of it, and I don’t care what you

say, we are scared to death of the enforcement. Is this double jeop-
13

ardy? If we violate the blood-borne pathogen, we also violate this.

Are we fined twice?

We agonize over the recordkeeping. Don’t tell me we don’t need

to keep records on this. We have dealt with OSHA for many years,

and we know we need to document everything that we do.

We are concerned because this is vague. We don’t know what to

read into it. When it goes out to my members, it may make sense

in here to somebody, but when it goes out there, it is not going to

make good sense to them.

It is going to be one more regulation. Where do you get to the

point that everybody throws up their hands and says, there are so

many regulations out there now, there is no way that we can possibly deal with all of them, and just give up and say, I will take

my chances? When do you get to that point? You may be getting

to it now.

So, to summarize this, it is unnecessary for the regulation of dentistry because it is already covered under other things, and it is

part of the intrinsic practice of dentistry. If we are going to talk

about common sense here, common sense then dictates dental offices should be exempt, because dental offices already have an effective alternative in place.

Thank you.

Chairman TALENT. Thank you, Dr. Rainwater.

[Dr. Rainwater’s statement may be found in the appendix.]

Chairman TALENT. Now Ms. Katherine Gekker, the President of

the Huffman Press Company of Alexandria, Virginia. Thank you

for being here.

STATEMENT OF KATHERINE GEKKER, PRESIDENT, THE

HUFFMAN PRESS, INC.

Ms. GEKKER. I wanted to thank you, Chairman Talent and Members, for giving me the opportunity to speak to you about the

OSHA proposed safety and health program standard.

My name is Katherine Gekker, and I am the owner of the

Huffman Press, located in Alexandria, Virginia. I am also here representing the Printing Industries of America.

I have been in business since 1974. My company specializes in

high-quality printing for graphic artists, corporations and museums. Currently I have nine full-time employees and one to two

part-time employees, depending upon our workload. Our gross

sales are roughly $1.2 million annually.

Safety within the Huffman Press is a priority for me because I

am trying to build the healthiest company that I can. If I do not

provide a healthy work environment, my employees, our customers,

and our suppliers and I myself suffer.

We participate currently in industry safety programs and buy the

many workbooks and guides made available to us about plant safety and training. It is a constant struggle to keep up, and while we

do our best, I will admit readily I am not able to read everything

that I should or even all of the safety and training materials that

we buy.

My business is typical of many in the printing industry. In fact,

the average printer has 11 employees. Because of our small size,

changing government regulations place a significant burden on my
14

company as well as on most other small companies. We do not have

the resources to hire an expert on safety, nor do we have the time

most days to fully keep up with new rules, training requirements,

or other regulations. In fact, most days we barely keep up with the

demands of our customers, suppliers and tax and payroll laws.

My plant manager and I are constantly scrambling to make sure

we are conscientious with respect to safety and health. A number

of years ago when my business was doing a little bit better than

it is right now, we used an insurance carrier that would send out

an inspector on an annual basis to conduct an audit of our safety

and health program. She would issue a report outlining what they

believed to be violations and even trained our employees in safe

work practices. I cannot tell you how much I appreciated this information and service. Having come close to losing my own finger in

one of our machines, I personally value knowing I am doing everything I can to provide a safe workplace. Unfortunately, we have

had to switch to a less expensive insurance carrier recently, and

they do not offer that service.

We have also benefited from the city of Alexandria program in

which the fire department inspects us annually for fire and chemical safety. Again, I welcome their inspections because I know that

they will tell me what I need to do to create a healthier work environment, and that they will give me the time to correct what needs

to be corrected without penalizing me.

I have also invited the Virginia Department of Safety to inspect

our premises and to advise us on audio levels and chemical levels

in order to learn if we were within safe parameters. This voluntary

inspection was also done without fear of penalty.

While my business has never been cited by OSHA, I do not relish

the thought of a surprise inspection. I have heard inspectors never

leave without expensive citations, regardless of a business’s good

intent. I and other business owners would jump, however, at the

chance to get information about how to make our plants safer. It

would be particularly valuable if we could do this without being

punished for wanting to learn.

I believe that all employees should play an active role in promoting safe practices in the workplace. However, OSHA’s proposed

safety and health program standard does not appear to do anything

that would help me make my plant safer. The proposed standard

is very vague and leaves a lot up to the individual inspector and

individual business owner. If it were enacted, I may think I am

doing everything I can to develop the best safety program for my

plant by asking my employees for meaningful participation and by

conducting periodic self-inspection, but an OSHA inspector may see

it altogether differently. Effectively, this is a closed-loop system in

which no real communication takes place.

The proposal also fails to solve the problem of lack of safety education and consultation for employers. We need more specific information about safety. Without providing extensive training, consultative services and direct guidelines, this proposal will do little to

prevent accidents. It offers a one-size-fits-all safety program that

simply does not provide what employers desire most, industry-specific information.
15

Mistakes and accidents occur everywhere. Historically, the majority of the accidents that have occurred in my plant were caused

by carelessness, and they would not have been prevented by the

kind of safety and health program OSHA is proposing.

In closing, I would like to stress that I and most business owners

I know see a strong need for OSHA. Most of us want to do, and

will do, the right thing. We simply need help. I am leery of a new

standard that requires more paperwork from employers. This proposal reminds me of what it is like to deal with the IRS. Tax laws

can be interpreted many different ways, they are confusing, take

a lot of time, and they are expensive. Interpretations differ with

whomever you speak with. I am afraid that the same will be true

with OSHA’s proposal.

I believe OSHA can have a real impact on safety by permitting

people like me to seek expertise without fear. It would also help if

OSHA undertook a voluntary compliance program that used

warnings in lieu of citations. This type of approach would do a lot

more for preventing accidents than the proposed safety and health

program standard.

Thank you for your time. I will be happy to answer any questions.

Chairman TALENT. Thank you. I should have mentioned that you

received a major educator of the year award this year. Congratulations to you for that.

[Ms. Gekker’s statement may be found in the appendix.]

Chairman TALENT. Our final witness is Ms. Earlyn Church, who

is the Vice President of the Superior Technical Ceramics Corporation of St. Albans, Vermont.

You have come a long way, Ms. Church. I thank you for being

here. We will hear your testimony now.

STATEMENT OF EARLYN CHURCH, VICE PRESIDENT,

SUPERIOR TECHNICAL CERAMICS CORPORATION

Ms. CHURCH. Thank you, Chairman Talent. Good morning to the

panel and to the Committee. I appreciate this opportunity to testify

before you on OSHA’s proposed safety and health program standard.

My name is Earlyn Church, and I am Owner and Officer of Superior Technical Ceramics Corporation of St. Albans, Vermont. STC

manufactures high-tech ceramic components for the welding, aerospace and electronic industries. We are labor-intensive with 100

highly skilled employees. STC is 100 years old.

I am also on the Board of Directors of the National Association

of Manufacturers. Further, I am President of Excalibur Laboratories, which employs 12 people.

I am testifying today on behalf of the NAM’s more than 14,000

members, 10,000 of which are classified as small manufacturers.

Through them we represent 18 million people who make things in

America.

We appreciate the attention the Small Business Committee

Members and staff are paying to OSHA’s initiatives and proposed

standards. Our safety program consists of written manuals, an employee handbook, a training program for all new hires with some

use of videos, and continuous education of all employees. An em-
16

ployee safety committee meets monthly. They report to management, who then makes appropriate corrections.

We oppose OSHA’s safety and health program standard, not because employers who ignore worker safety would be punished

under the proposed standard, but rather because employers, such

as STC, who have taken every reasonable step to assure compliance with the standard, could also be severely punished. Good companies with excellent safety and health programs could face punishment in terms of increased costs, criminal prosecution, arbitrary

enforcement by OSHA, breaches of confidentiality, and mandated

safety committees that by their structure violate employer-employee relations as prescribed under the National Labor Relations

Act.

STC is fortunate that we have someone to oversee our human resources. This same person, however, in addition to maintaining all

records required for OSHA, EEOC, ADA, and FMLA, administers

all documentation and training for our workers’ comp program, our

hazardous waste program, community right to know, and she herself trains constantly. We felt the need to hire such a full-time person approximately 10 years ago because of rising regulations. To

comply with the proposed standard, we would have to hire more

staff.

I stress the size of STC to show that a 100-employee company

extremely stressed to meet existing regulations. Tiny Excalibur is

not exempt. You, as a Member of the House Small Business Committee, must be as confused as I as to what small business exemptions are.

STC uses computer systems with adequate software for the cur- rently required data. Such packages cost us in excess of $1,000 per

year. This system is reaching capacity. Upgrading our hardware or

purchasing a new software program and hiring consultants to comply with these new requirements would be enormously expensive.

It would not increase the safety and health of our employees. We

would rather spend that money on training or making modifications to our facility.

STC is wary, given OSHA’s past record, of the vague language

of the proposed standard. It must be vague in order to cover all industries. Because it is vague, it allows OSHA broad latitude in enforcement under the general duty clause, which allows OSHA to

cite employers for hazards not covered by specific standards.

The general duty clause was most recently used to cite the employer in Pepperidge Farm, decided by the Occupational Safety and

Health Review Commission in April 1997. OSHA’s proposed safety

and health program standard would require employers to ‘‘provide

for the systematic control of hazards.’’

Right now we are being asked to anticipate feelings of discomfort

in the workplace. Already STC is employing workers’ comp managed care to help with the whole range of reported repetitive motion injuries. Without speaking at length on the dreaded E word,

ergonomics, we are having a very hard time distinguishing between

the pain from a weekend or a second job and pain related to factors

in our workplace. If the injuries are cumulative, where did the accumulation begin? Is work the sole factor, or play, or home or the

second job?
17

While we never get up in the morning and set out to kill or maim

our work force, as suggested repeatedly at OSHA at the stakeholders meetings I attended, we are often faced with situations where

a worker violates company policy and is injured. Sometimes there

are hazards impossible to identify or foresee. We do conduct a

monthly walk-through with our safety committee, but in a job shop,

the workplace is different every day.

OSHA’s proposed standard seems more a deliberate attempt to

prove the hazards of going to work, yet the No. 1 cause of workrelated deaths in the statistics is vehicular accidents, which do not

take place at work sites under the supervision of employers. The

No. 2 cause is violence in the workplace. Are these work risks or

life risks?

As to confidentiality, employees’ rights would be violated by the

revelation of names, addresses and medical information not now

available to other employees or outside sources other than required

by law. Under this proposed standard, other employees and their

legal or union representatives have access to employee records, personnel, medical and otherwise.

BLS stats show that the workplace today is safer than at any

other time since the information was tracked. STC’s workers’ comp

experience modification has decreased 15 percent over the past 4

years due to company initiatives separate from any OSHA requirements. We are being proactive in increasing health and safety in

our place because it is a good business practice. Why hamper and

discourage these initiatives and those of other good companies with

onerous paperwork requirements, increased costs to the employer

for staffing, computer needs and consulting?

We appreciate this opportunity and look forward to answering

questions.

Chairman TALENT. Thank you. I am sorry the mikes went out.

I hope that is not the case with all the others.

[Ms. Church’s statement may be found in the appendix.]

Chairman TALENT. We now have one combined panel here. I appreciate the number of Members who have come, and in view of the

Members waiting to ask questions, I will defer my questions. I am

going to, after Mr. LaFalce has his opportunity, I am going to recognize Members in the order in which they have appeared, and

those who were here when the hearing began will be recognized

first, according to seniority. We will go after Mr. LaFalce to Mr.

Snowbarger and then Mr. Pascrell and so on.

Now I will recognize my good friend Mr. LaFalce.

Mr. LAFALCE. I thank the Chair. I am just going to have a few

brief questions for Dr. Rainwater, and then I will go to my question

for Assistant Secretary Watchman.

First, congratulations on being president of the American Dental

Association. This is unrelated to this hearing, but I was very surprised when we were debating health care at all that the dental association didn’t try to take a much more aggressive role in trying

to ensure that dental services would be covered in whatever coverage might be enacted into law. It just seemed to me at that time,

circa 1993, they weren’t as aggressive as they were passive. That

is the first point. I appreciate your comments on that.
18

Second, it is my — I am taking the advantage of the fact that

I have the president of the dental association — it seems to me

that insurance coverage for dental work is absolutely atrocious;

that there is necessary dental work that must be done, and it is

almost never covered. Whether is it is a root canal or a crown or

what have you, these are necessary items, and when there is coverage, that the coverage is so minimal.

For example, with respect to Federal employees, I don’t think

there has been an increase in coverage for dental work for Federal

employees in over a dozen years, and they utilize a very low base

cost. Whatever it is they call usual and customary, it is extremely

low. What is the dental association doing about this? This might

have nothing to do with OSHA, but I am interested.

Dr. RAINWATER. What are we doing about it?

Chairman TALENT. I am sure my friend doesn’t expect Mr.

Watchman to respond to that.

Mr. HEFLEY. Mr. Watchman, he also has a wisdom tooth fairy.

Dr. RAINWATER. Are you talking in 1993 we were not aggressive?

We certainly were not aggressive in 1993 when the Health Care

Reform Act came forward. We saw all kinds of problems with it.

I think that you saw the wisdom of our ways, as you deliberated

and didn’t enact that at that time. We have great concern about

government programs that involve dentistry, because we need to be

sure in those programs and very often they are not adequately

funded. So it is one thing to put them in there. But if you don’t

put the money in there to back them up, it doesn’t work.

Mr. LAFALCE. Let’s talk about the insurance coverage.

Dr. RAINWATER. See, that is our problem. We have a hard time

explaining dental insurance to the public, because it is not dental

insurance. It is simply prepayment of dental care. There is no great

accident that is going to occur out there usually to give one person

more dental problems than another one. They have different problems. So it is very difficult to insure it, because if you open insurance all the way, the people who have the major problems and the

expensive problems sign up.

You are right, dental insurance has not increased probably since

I have been in practice. It covers approximately 40 to 45 percent

of the dental bill; 55 percent is still paid out of the patient’s pocket.

That is stimulus for the patient participation and is probably the

reason we have held down dental costs across this nation. We still

have freedom of choice of the patient for dentistry. They are able

to choose the dentistry that they are to receive.

It needs to cover more, but to cover more, somebody has to pay

for it. What you are finding now is that you are seeing in managed

care areas in which they are promising more, but the dollars are

not there to pay for it. So therefore, when you get into it, that is

not to say managed care is all bad, but if you don’t fund it, and

if the money is not there to cover it, when you get into that plan,

you find you have no benefits, you find that it covers little, and you

find very often that you might be better off just paying for it out

of your own pocket.

So it is a matter of economics. If you are going to have dental

insurance, you have got to put the money into it. The employer has

to put the money into it in order to get good care.
19

Mr. LAFALCE. All right. That is off the subject. I just personally

think that the insurance coverage for dental care is either atrocious

or nonexistent.

Dr. RAINWATER. I agree with you.

Mr. LAFALCE. I don’t think the American Dental Association has

done very much at all about it.

Let me go on to Mr. Watchman. Mr. Watchman, what comments

do you have about the most important points made by the other

members of the panel?

Mr. WATCHMAN. Thank you for the opportunity to respond, Mr.

LaFalce.

Let me just say briefly overall, I am very grateful that the small

employer/owners, small-business owners here this morning have

chosen to make their views known and participate in our process

of developing a rule. We are taking steps to address many of the

concerns that they have raised this morning, and I would welcome

an opportunity to work with all of you toward the development of

a rule that does take into account the concerns that you have

raised.

That being said, I have a number of specific concerns and clarifications I would like to make with regard to some of the testimony. First, I think it is important to clarify in response to Ms.

Church’s accusation. She claimed that OSHA repeatedly said during our stakeholder meetings that employers get up in the morning

and set out to kill or maim their work force. Maybe some of us recognize that as rhetoric, but I just want to make clear that such a

statement was never made a single time, let alone repeatedly, at

any stakeholder meeting. I am frankly disappointed in Ms. Church

that she would make such an accusation in this forum. She was an

active and useful participant in that dialog, and we have tried hard

to respond to her concerns.

Let me talk a little bit about Ms. Bailey’s concerns. She made

some very negative predictions about the standard. I think really

there is no need to speculate here. As I said, many States already

have safety and health program requirements that apply to hundreds of thousands of employers in this country. I have not heard

in 2 years of working on our proposal a single employer come forward to show any of the requirements imposed by those statutes

and regulations are burdensome. In fact, in 1992, the General Accounting Office did a study of safety and health programs. They

looked at Oregon and Washington, both of which have comprehensive safety and health program requirements, and they found that

small employers as well as large employers did not have problems

implementing those requirements.

Let me correct also several particular claims that she made.

First, the notion that the performance-based standard is a hoax.

Let me make clear, sir, and to the Members of the Committee at

large, OSHA used to develop and issue very specific standards

which detailed every last thing an employer needed to do to address a particular hazard. The employer community for years has

pushed us to develop performance-based standards that would set

a goal of regulating employee exposures to a hazard, but let the

employer determine the best way, given the circumstances at that

workplace, to get to that goal.
20

That is the desire of the stakeholders in this instance as well.

Through our meetings, the vast majority of stakeholders have

asked us to draft a standard that is flexible and performancebased. That being said, it is not an easy thing to do. I recognize

that some of the wording we have used in that working draft needs

some more definition and clarification. But we are taking steps to

do that.

First, we are revising the standard and will do so further before

we issue a proposal. Second, we have agreed to work with stakeholders to prepare a compliance directive that will instruct our inspectors about how to enforce this standard. Third, we have agreed

that we would not impose a penalty for violation of the standard

unless there was a pattern of hazards or violations at that workplace. Fourth, we have agreed to produce a vast range of compliance assistance materials like programs and checklists and videos.

Last, we have agreed that many of these materials should serve as

safe harbors. If employers have complied and followed them, they

will be in compliance with the standard.

Another issue regards the supposed effort of OSHA to circumvent

our statutory requirements under the OSHA Act, SBREFA and the

Reg Flex Act. Let me be clear, we are complying with all of those

laws and fully intend to comply with them in the development of

this rule. In fact, we are working closely with SBA to go beyond

our SBREFA obligations and hold many more meetings with stakeholders, and particularly small businesses around the country.

Ms. Bailey also suggested that the standard goes beyond recognized hazards. Let me make clear that our standard specifically

says on pages 4 and again on page 5 that it does not go beyond

recognized hazards, it only governs hazards that are covered by our

standards currently or covered currently by our general duty

clause. In fact, Ms. Bailey admits that subsequently in her testimony on page 6.

Let me now address several comments made by the other witnesses. Mr. Landon, it sounds like, has a terrific safety approach

at your workplace. We have done some preliminary time estimates

for what would be involved for a small workplace like Mr. Landon’s

to comply with the safety and health program requirement. We estimate that it would take about 20 hours initially to startup the

program, and that after that it would take about 10 hours a year

to keep the program running. That would be at a workplace with

maybe 10 or fewer employees with relatively few risks.

We are in the process of planning our meetings in July with

small employers around the country to evaluate whether those time

estimates are accurate and get input from small employers about

whether it would take more or less time to maintain a safety and

health program.

With regard to Dr. Rainwater, I want to thank you for your compliments. Those may be the only compliments we get today. I do

want to also applaud the dental community for already doing much

of what the standard would require, as Dr. Rainwater has indicated. Let me make clear, though, there is no requirement in the

working draft or any other OSHA plans for a safety and health

committee. We do say specifically in the proposal, or in the working
21

draft, rather, that informal approaches would be expected and

would be acceptable at small workplaces.

I also want to make clear that employers could not be fined twice

for a single violation by the development of a safety and health program rule. On page 13 of our working draft, we specifically make

clear that there would be no piggyback violations.

I think Ms. Gekker recognized the importance of finding hazards

and the importance of training workers with regard to hazards in

their workplace, and those really are the core fundamental parts

of this program.

She also stated that she has heard that inspectors never leave

workplaces without issuing citations and penalties, and I want to

clarify that, in fact, about 1 out of every 3 inspections that we conduct, we find no violations, or we find violations but do not issue

any penalties.

Last, she indicated a desire for consultation. I just want to let

you know that we, in fact, offer free consultation through 50 State

Programs around the country that are 90 percent funded through

Federal OSHA, and those inspections and visits from consultants

can occur free of charge without citations and penalties.

Those are my overall comments for some of the particular concerns that were raised, but I would be happy to answer further

questions as well.

Mr. LAFALCE. Thank you very much.

Chairman TALENT. Before I go to Mr. Snowbarger, where does it

say you will not piggyback? I was looking for that. I don’t have my

pages numbered.

Mr. WATCHMAN. This is late in the draft.

Chairman TALENT. Outreach, Compliance?

Mr. WATCHMAN. Subheading (i), Outreach, Compliance; (i)(3)(i), a

violation of another OSHA standard or the general duty clause will

continue to be cited as such and does not in itself constitute a violation of this standard.

What we are really contemplating in terms of enforcement, first,

as I said, we would not issue any penalty unless there was a pattern of hazards or violations; second, we would be looking for systematic failures rather than individual technical violations. This is

part of really, I think, the new OSHA’s shift in emphasis away

from individual technical violations and more toward a systematic

approach.

Chairman TALENT. In fairness, does not in itself constitute a violation of the standard, but in connection with something else, it

could be evidence of a violation of the standard, couldn’t it?

Mr. WATCHMAN. Certainly if we found a broad range of hazards

at a workplace, that would suggest the employer was not making

sufficient efforts to find and fix those hazards.

Chairman TALENT. It doesn’t say a broad range.

Mr. WATCHMAN. The particular issue about a piggyback violation

is that a single violation of a standard would entail two rather

than one violation.

Chairman TALENT. I think the concern is how this thing is going

to work in practice, and if you can say, well, here is a violation of

the standard, and now looking at your program, I think in view of

the fact that you have a violation of this standard, I don’t think
22

your training in this area was appropriate or adequate, it is a violation plus something, you see? I think that is probably the concern

you are getting at.

I wasn’t going to ask questions until the others have, so I will

thank you, Mr. LaFalce.

Mr. Snowbarger will be next.

Mr. SNOWBARGER. Thank you, Mr. Chairman.

My question is to Mr. Watchman. First, just a general question.

I would be interested to know what OSHA perceives is its role,

what is your purpose, why are you there?

Mr. WATCHMAN. Our statutory mission is to protect worker safety and health in workplaces across the country.

Mr. SNOWBARGER. I am going to make two or three observations

that do not come from this panel this morning, they come directly

from my district. They are confirmed by things I have heard on the

panel this morning.

First observation is a presumption on the part of OSHA that

OSHA knows best, that employers and employees are not concerned about — employers aren’t concerned about their employees’

safety, that employees aren’t concerned about their own safety, and

that somebody in Washington knows better how to handle those

workplace risks than either employers or employees.

The second observation, followed by a third one, is that OSHA

is there in more of a punitive role than in an assistance role. The

term used back in my district is that the attitude of OSHA is to

come in and be able to leave saying ‘‘gotcha.’’ Followed by the third

observation, that I have had companies in my district that are so

convinced that OSHA is in a ‘‘gotcha’’ mode, they create visible violations so inspectors can go away feeling like they have accomplished their mission. Those companies in essence figure out how

much they can afford to spend on the fine, create the violation, and

know that inspectors, once they have found the easy one, will walk

away.

I am going to suggest those observations lead me to the conclusion that OSHA is not performing its statutory duty in actually

changing workplace safety.

So my question is what are your observations about those observations, I guess?

Mr. WATCHMAN. I guess I would make a couple of points. First,

I think it probably was a fair accusation some years ago that in

many issues OSHA did presume it knew best. We have made a lot

of effort over the last several years to listen to stakeholders, and

we recognize, and I think the administration recognizes, that government doesn’t always know best, and that we need to listen to

the regulated community, to workers and to business owners, about

the real world problems in workplaces around this country.

But I will tell you, this is not a concept that we dreamed up. This

is a concept that thousands of employers are using around this

country, successfully, to reduce their injury and illness rates, but

also to save large amounts of money, so it really does improve the

bottom line.

Mr. SNOWBARGER. You are making my point, that employers and

employees have an interest in doing this. I don’t understand what

you mean by stakeholder, but it seems to me that the employer has
23

a much greater interest in employee safety than OSHA will ever

have, because it is in their economic interest.

Mr. WATCHMAN. I would agree that it is in the economic interest

of employers. The reality is, many, many employers don’t have

safety and health programs or any systematic approach to protect

workers, and we do have millions of workers that are injured on

the job every year. As I said, many of these incidents can be prevented through a systematic approach.

Mr. SNOWBARGER. Thank you, Mr. Chairman.

Chairman TALENT. I thank the gentleman.

A thought just struck me, Mr. Watchman. Would this apply to

the Congress? I guess it would, wouldn’t it?

Mr. WATCHMAN. The Congress is covered by occupational safety

and health regulations, but has a separate enforcement office of its

own, as you know. So that office would have to consider the standard and how it would apply to Congress.

Chairman TALENT. Because I don’t have a systematic safety program in my office, and maybe I should. I don’t know.

Mr. Pascrell will be next.

Mr. PASCRELL. Mr. Chairman, thank you. I strongly support

OSHA’s plan to conduct field hearings in order to get input from

small businesses. I think this is a critical, critical step forward and

a very positive way. Whether you have the resources to do it to the

department you are talking about is another question.

My first question to you is, what about those resources that you

mentioned in the beginning? Where have you come from in the last

5 years in terms of number of inspectors out in the field to work

with businesses, particularly small businesses, as we have been

talking about today? Are we going in the right direction or the

wrong direction?

Mr. WATCHMAN. Well, our staff has actually declined significantly in the last 10 or 15 years, but we have recently added some

staff to OSHA, and many of the staff people we have added are

folks that are going to help with a lot of compliance assistance activities.

In addition to our enforcement program, which is required by our

statute, we have a broad range of consultation programs, compliance assistance programs and activities designed to help employers

in a broad range of ways.

Mr. PASCRELL. Your approach, OSHA’s approach, seems to be

running on a parallel basis with what we have talked about in

other areas, compliance with Superfund, changes in Superfund,

changes in environmental standards.

Are we moving in the direction of abatement rather than prosecution, rather than citations? Is this what you are communicating

to us this morning?

Mr. WATCHMAN. Yes, sir. In fact, the Agency for many years used

to judge performance based on the numbers of inspections and citations and penalties. We dropped those performance measurements

in 1994, and we are now judging inspector performance based on

customer service, prompt abatement of hazards, promotion of voluntary and cooperative efforts, and targeting of the most dangerous

hazards.
24

Mr. PASCRELL. I frankly do not see anything negative in terms

of fallout here. On page 4 when you talk about the draft-proposed

safety and health program standards, the purpose of the standard,

the standard requires employers to set up a program for managing

workplace safety and health in order to reduce the incidence of occupational deaths, injuries and illnesses.

It would seem to me that the reason why we do this is to anticipate — going back to a comment that Ms. Church talked about, I

don’t find that to be foolish. I find that to be very sound and logical, to be able to anticipate those problems in order to avoid them.

Is this what we are talking about in this standard?

Mr. WATCHMAN. Yes. One of the goals of the OSHA act is the

prevention of illness and injuries and fatalities before they occur.

That is basically the principal goal of a systematic approach.

Mr. PASCRELL. Having said that, do you think there is an algebraic relationship between the ability — because we have set this

up in certain States, according to State law, do you think that

there is a real concrete relationship between our ability to establish

those standards, those prestandards in certain States and a reduction of insurance rates or number of comp cases that are involved?

Do you have the data to present to us about that?

Mr. WATCHMAN. In my opening statement, I cited some of the

studies that have made those kinds of conclusions, that have demonstrated not only that safety and health programs or systematic

approaches can reduce injuries and illnesses, but they do have a

significant positive impact on the bottom line in terms of reducing

Workers’ Comp costs, as well as employee turnover and training

costs and other costs related to accidents.

Mr. PASCRELL. Would you provide the committee with that information?

Mr. WATCHMAN. Certainly.

[The information may be found in the appendix.]

Mr. PASCRELL. I have a final question to Ms. Gekker.

In some States in the Union, many insurance companies give

premium reductions to firms which have effective safety and health

programs, like the one that is being proposed, I believe, by OSHA

now. Do you think this is a good idea, and how do you relate it to

your own experiences if that is the case?

Ms. GEKKER. I have never been able to participate in one. Despite having, I think, a fairly good health and safety program in

effect, we have never gotten a reduced rate because of having that

program. I think it is a good idea——

Mr. PASCRELL. Do you think you should have?

Ms. GEKKER. I am afraid the effectiveness of our program has

been lacking. We are in a business where there are many injuries,

and I think we have rarely gone more than 2 or 3 years without

one.

Mr. PASCRELL. Isn’t this the point, then? We wanted to set up

standards that are reasonable and are going to help the business

and protect the workers and those people who operate the business,

but if there is no concurrent reduction in insurance costs — as I

have found, by the way; I don’t know if you found that or if Mr.

Watchman has found that, although he says he is going to give us

information to the contrary — it would seem to me that if we could
25

show that relationship, that this would be an encouragement, this

would help precipitate the kinds of programs that at least OSHA

talks about in its presentation, in its draft presentation. I think it

would help us in reducing costs and reducing paperwork.

This Committee acted upon the reduction of paperwork 3 months

ago, which I think is critical. So we know how much money is

spent on providing paperwork in a lot of Federal laws, many of

which are incidental and do not help us provide for a healthier or

safer workplace.

So we want to get to a point where it is safe for everybody, and

we want to get to a point where it reduces, specifically, insurance

rates, and that is not happening. The insurance companies are

making fools of you guys and those of us on this side of the table,

because this should be there. We should insist upon this, because

this is trying to deal proactively with a problem; or else we ought

to put these guys out of business. I don’t think we want to do that

yet.

Thank you, Mr. Chairman.

Chairman TALENT. I thank the gentleman for his comments and

his questions.

Mr. Hill is next.

Mr. HILL. Thank you, Mr. Chairman.

Mr. Watchman, I am going to give you a compliment, although

it is going to be a qualified compliment; but at least you are going

to get compliment, and it may surprise you to get one from this

side of the table. I agree with you that the idea of setting performance standards instead of specific standards and micromanaging

the workplace is successful in creating safe workplaces. In fact, I

have worked substantially to try to build safety groups; and in the

instances where we put safety groups together, we have seen phenomenal success in terms of reducing the cost of Workers’ Compensation and reducing the rate of injury.

The problem I see with regard to what you are suggesting here

is that this new standard is going to be added to the existing

standards, rather than a replacement for the existing standards

and the existing mechanisms. The first suggestion I would make to

you is, you make this optional, that you allow employers to have

the option of choosing whether they want to have a performancebased standard or a specific standard mechanism for complying

with OSHA standards.

In that regard, I would also suggest to you that you work to certify existing safety group programs, whether they exist on a State

basis or whether they exist on an industry basis, where performance standards are already being implemented and certify those, so

you don’t have to reinvent the wheel.

There are a lot of efforts going on out there in the marketplace

to encourage employers to create what we refer to in Montana as

a ‘‘culture of safety’’ in the workplace. One of the things I think,

from the testimony, that you have heard is that part of the problem

here is that there is distrust in the culture of your organization,

and that is that people see your organization as an organization

that is simply trying to police the workplace, rather than trying to

create a safe workplace. You have done that by trying to micromanage hazards rather than trying to create an environment in which
26

employers work with their employees to try to find ways to manage

those hazards in a constructive fashion.

The first thing I would suggest to you is that you try to fashion

this as an optional alternative program to the existing methods

that you are using with the workplace.

With that, I am really going to ask my question of Ms. Bailey.

If, in fact, this was an alternative that was offered to employers,

as opposed to added on as a new set of standards, do you think

that your view of this would change?

Ms. BAILEY. I think it would. This is something that came out

of the stakeholder meeting that I attended with Mr. Watchman. At

the end of the meeting, I think the general consensus was, this can

be a very valuable resource tool, especially for small businesses

who may not have much experience in this area, and they can use

this type of document to develop a program.

But to make this a mandatory standard that everyone has to

comply with just doesn’t make any sense. It is duplicative. The enforcement programs would just be enormous.

There is one general comment I wanted to make on some of Mr.

Watchman’s comments. All of these statements about what goes on

here in Washington in terms of the new OSHA culture and the new

way they are going to enforce things, those things are all wonderful, and I applaud him for trying to make those changes. What

really counts is what happens out in the field, because where the

rubber meets the road is when we are talking about enforcement.

That is when the compliance officer comes and knocks on your

door. So I think that is really the important thing that we need to

be talking about here.

Yes, I think making this an optional standard was an excellent

idea. I think it can really be an important tool, for small businesses

in particular.

Mr. HILL. I appreciate that comment. Mr. Watchman, one of the

other concerns raised — in trying to implement safety culture in

Montana, we ran into this problem, and I think it was raised by

more than one witness in testimony in regard to the National

Labor Relations Act — and that is, are you creating a bargaining

unit when you establish a safety committee within the organization?

Is it the Administration’s position that it would support legislation that clarified that, so that in the creation of safety groups to

comply with the enforcement requirements here, that there would

be a safe harbor for employers so they would not be subject to the

conflicts and problems associated with the application of the National Labor Relations Act?

Mr. WATCHMAN. As you probably know, the administration has

not supported the legislation known as the TEAM act that has

been considered in this Congress and the previous Congress.

Mr. HILL. I am talking here specifically about the issue with regard to safety groups. Let’s take everything else off the table.

With regard to the creation of safety committees within the employment situation, is it now the administration’s position that we

could exempt those from the National Labor Relations Act?

Mr. WATCHMAN. I think you would have to be careful about exempting every safety committee, because there may be some that
27

in fact do involve substantial employer interference or domination

in a way that may infringe on worker rights under the NLRA.

What we have tried to do in drafting the working draft and progressing beyond that point in the last few months is to require employee involvement as a general core element, but allow employers

to determine what kind of employee participation they want to

have at their particular work site. You would imagine that in a

workplace of 10 people, it is going to be a lot more informal than

at a plant that has a couple of thousand people.

Mr. HILL. You certainly understand the concerns that small employers have, particularly with regard to the potential that that

could be interpreted as a bargaining unit that could subject them

to rules and regulations and laws they are not now subject to.

Mr. WATCHMAN. It is not so much they would be considered a

bargaining unit as they might be considered a labor organization

for purposes of 882 of the NLRA. We are working with the NLRB

in the development of this rule to make sure we address the issue

in a way that it doesn’t put employers in a position where they

have to violate one statute to comply with another.

Mr. HILL. Would it be our expectation to see some directive from

the National Labor Relations Board to clarify this issue to make

sure employers are going to be protected if you go forward with

these rules?

Mr. WATCHMAN. I couldn’t speak for the NLRB, but I would say

we are having conversations with them to make sure that we resolve this issue in a way that small employers can understand as

we go forward.

Mr. HILL. Thank you, Mr. Chairman.

Chairman TALENT. I appreciate the gentleman’s questions.

We are going to have to break now. We have at least one vote

and maybe two, so I can’t say that we will definitely reconvene in

15 minutes or anything like that. But it will be shortly. I ask the

witnesses to stay, and I ask the members to return if they can.

We will reconvene in a few minutes.

[Recess.]

Chairman TALENT. All right, I will reconvene the hearing without waiting for my good friend, Mr. LaFalce, who has other obligations and told me he would not be able to return today.

Next in line to be recognized is Mr. Davis.

Mr. DAVIS. Thank you very much, Mr. Chairman. First, I ask

permission to submit a written statement for the record.

Chairman TALENT. Without objection.

Mr. DAVIS. Thank you very much. I have got just a couple of

questions.

Mr. Watchman, both Dr. Rainwater and Ms. Gekker indicated

some fears that there might be surprise investigations, there might

be penalties, or there might be unexpected activity on the part of

OSHA in a sense. Although you have answered this question in

part once, I just want to reiterate as certain, when there is an investigation and a need for compliance, whether any intervening actions are required before any real penalties are levied?

Mr. WATCHMAN. Well, we do conduct inspections, and in many

cases, we do not give advance warnings of inspections to employers.

Our statute is designed to achieve a preventive and deterrent effect
28

from our enforcement program, and we want employers to act

proactively before we ever get to their workplace, particularly given

the fact that we don’t get to many workplaces in the course of a

given year. It is important for employers to have an approach to

protecting workers before we ever arrive.

That being said, we have developed a new targeting and enforcement system called the ‘‘cooperative compliance programs,’’ under

which we will send out letters to the highest hazard workplaces

around the country, letting them know that they are on our inspection list, so they will have an opportunity to find and fix hazards

before we arrive.

With regard to this particular standard that we are working on,

that is the subject of this hearing today, we are currently considering an enforcement policy under which we would not assess a penalty for a good-faith employer that is in violation of the standard.

We would only assess a penalty if there were a pattern of hazards

or a pattern of serious violations.

Mr. DAVIS. So actually one would not have a great deal to fear,

other than the fear of not wanting to comply even after it has been

indicated that there is a need to do so?

Mr. WATCHMAN. I think there is concern over the way we have

drafted the standard as a performance-based standard. I recognize

that when you use performance-based language, it does raise subtleties and ambiguities, and these are issues that we are aware of

and we are attempting to clarify further through modifications to

the working draft, but also through working with stakeholders,

meaning employers and workers and safety and health professions

in the making of a compliance directive that will tell our inspectors

how the standards will be enforced, so all the ambiguities can be

resolved and clarified in that document as well.

We will also be providing extensive compliance assistance to employers in many forms before the standard ever takes effect.

Mr. DAVIS. Both you and Dr. Rainwater suggested that dentists

were partially or pretty much in compliance with this rule already.

How much distance is there between where the dentists are and

where perhaps the rule is trying to get them?

Mr. WATCHMAN. I think probably in the case of dental offices, as

well as in many other industries, most of the employers are acting

in good faith to protect their workers. But we typically find in most

industries, there are a few bad actors that are not taking adequate

steps to protect their workers, and that is really why we need a

standard, to set minimum threshold performance for a systematic

approach to protect workers.

Mr. DAVIS. You would not view this as any additional burden on

those dentists, for example, who were already in compliance and

carrying out what would become the mandate?

Mr. WATCHMAN. That is correct. In fact, this would serve as a

very useful tool to make compliance with other regulations much

easier in a systematic way.

Mr. DAVIS. I have one question that I would like one of the members of the industry, to answer.

I understand that there are States like Oregon and Washington

which already have programs that are pretty much like the one we

are talking about, and my question is, have you heard of any ad-
29

verse effects on businesses in those States as a result of the program?

Ms. CHURCH. Mr. Davis, may I reply? Vermont is one of those

States. There are 25 States which have control over the OSHA

regs, not using Federal inspectors. The Vermont plan is a suggested use of the safety program. However, they hand out literature that was written by Federal OSHA and suggest that we

come into compliance with it because ultimately it will be law.

That is a pretty loose statement, but as you go through it and

try to meet it, it is not easy to dot all the I’s and cross the T’s.

Then you have to look at the fact that I call them preemptive

States, although that is not quite the correct legal term. The States

that run their own safety and health programs — Vermont Occupational Safety and Health, VOSHA is the name, tries to be stricter;

they always try to go one step further than any Federal regulation.

So on top of this we are always going to look forward to then what

is going to be applied at home.

Remember, when you get down to a very small statistical base,

like in a State that has 600,000 people all together, the Federal

numbers do not work. It just is not a good analysis.

Thank you.

Mr. DAVIS. You are saying there is some fear that in some States

where there is an effort to go beyond Federal requirements and

regulations that there might be more harsh treatment of the businesses than what you would find in other areas?

Ms. CHURCH. That is true. When we read the kind of books that

have been handed out to us, we sit down and say, do they really

want a book of plans in place? Do they want us to walk through?

How often? Who do they want to carry this out? Who have we got

to carry it out?

It is all suggested, but it is very loose, so we do the best we can

and use it as advantageously as we can, but we don’t want something imposed upon us.

Mr. DAVIS. Thank you very much.

If Mr. Watchman could respond to that question, Mr. Chairman,

that would conclude my questioning.

Mr. WATCHMAN. The State plans that exist around the country,

in about half of the States currently, do have an opportunity to

adopt standards that are either consistent with and identical to

Federal standards, or to go beyond those standards and provide a

greater level of worker protection. That is why in fact in a number

of States there exist today safety and health program requirements

despite the fact that there is no Federal requirement at this time.

I would suggest, though, to Ms. Church that in the preparation

of this rule, we will allow a compliance assistance period of several

years before any provision of it becomes effective. During that time,

we want to engage in a very broad and comprehensive effort to disseminate the kind of materials that will go beyond the regulatory

text in very simple and plain language terms, through model programs or checklists or interactive software, to let employers know

in all industries the kinds of things they should be looking for in

their particular industries, to help them set up and implement and

maintain a comprehensive safety and health program.

Mr. DAVIS. Thank you very much.
30

Thank you, Mr. Chairman.

Chairman TALENT. I thank the gentleman.

I recognize the gentlewoman from New York, Mrs. Kelly.

Mrs. KELLY. Thank you, Mr. Chairman. I appreciate the panel

being here. I am sorry I wasn’t able to hear all of your testimony.

It has been a busy morning for a lot of us.

I was interested in what Mr. Watchman said just a minute ago

about the implementation of this and what you actually desire to

do with this in terms of implementing this with businesses. You

said there would be no fines unless a pattern of violations were

found.

I would like to know what you mean by ‘‘a pattern’’? Is that

clearly defined?

Mr. WATCHMAN. Yes. On page 16 of the working draft we have

defined it to mean a failure to control a number of serious hazards

of the same or similar type, or serious hazards resulting from the

same or similar deficiencies in the program.

Mrs. KELLY. But that is exactly my problem, ‘‘a number.’’ Is there

a number? Who decides that number?

Mr. WATCHMAN. That is one of the issues that we would need to

clarify.

Mrs. KELLY. Exactly.

Mr. WATCHMAN. From a compliance directive to our inspectors.

As I said, we have expressly announced our intent to work closely

with employers and workers in the development of that.

Mrs. KELLY. That is exactly the kind of thing where, if you get

a vindictive inspector, you could put a company out of business. I

am concerned about that.

Another thing: I think that you use a lot of statistics in the testimony and in the draft. In particular, I am thinking about the claim

that injuries cost U.S. businesses over $110 billion a year. Every

$1 that employers spend on safety and health programs will save

them $4 to $6 in Workers’ Compensation expenses, reduced employee turnover and so on.

I am not doubting the accuracy of the figures, but I would like

to know how you arrived at them.

Mr. WATCHMAN. The first figure is from the National Safety

Council. They put out a book, I think called Accident Facts, something like that, every year, which tries to estimate the total number of injuries and fatalities around the country from a variety of

causes, including work-related injuries.

Mrs. KELLY. These are not hard-core reports, but estimates?

Mr. WATCHMAN. I am not sure exactly of the methodology. I

think they are fairly confident about their estimates, but they are

estimates, I believe. They estimate $110 billion a year just for injuries. That doesn’t count all of the costs incurred as a result of fatalities, as well as occupational illnesses.

Mrs. KELLY. How many fatalities are there a year?

Mr. WATCHMAN. There are 6,000- or 7,000 reported to the Bureau of Labor Statistics, and then there are others that are not

within their jurisdiction of reporting.

Mrs. KELLY. I am wondering about whether or not you have done

anything with regard to rough estimates on what this draft will be

in terms of costs to the businesses to implement this standard.
31

This may have been addressed before I got here, but if not, I would

like you to answer the question.

Mr. WATCHMAN. Sure. First, we don’t have a formal proposal yet,

so we have not estimated the cost of the proposal yet. But that

being said, we have looked at a lot of evidence that suggests that

employers can save money by implementing these programs.

Mrs. KELLY. How so?

Mr. WATCHMAN. Because I noted in my testimony and there are

a host of other examples in which employers have implemented

programs, reduced their Workers’ Comp costs significantly and reduced employee turnover and training costs as well. We do believe

that the aggregate benefits will outweigh the costs, as well as believing, for individual employers, the benefits will outweigh the

costs.

Just to cite one example of that, in Missouri — in your State, Mr.

Chairman — our voluntary protection program, which recognizes

excellence in safety and health; we have 13 VPP sites in Missouri.

Eight of those are medium and small employers. Those companies

have injury rates that are 53 percent below the national average.

These are companies that have implemented a comprehensive safety and health program.

With those reductions come reductions in Workers’ Comp costs

and other related costs.

Mrs. KELLY. I understand you basically to be saying, if you can get it to cost businesses $25 billion a year to implement with this

safety and health program, there will be no more costs to the U.S.

businesses for injury. Is that sort of what you are saying?

Mr. WATCHMAN. First of all, I would not agree with the $25 billion estimate for a standard, because we don’t have a formal proposal yet. But our estimate is that this will be a significant rule

that may involve costs of over $100 billion, but it will apply to tens

of millions of workers at millions of work sites around the country,

and is likely to produce benefits that far exceed the costs.

Mrs. KELLY. I have one last question and that is, of the core elements of the draft standard, you state that employers should regularly evaluate the effectiveness of the safety programs.

I want to know what you define as ‘‘regularly.’’

Mr. WATCHMAN. In the working draft, we talk about the frequency issue on page 11. We say that an employer must evaluate

the program as often as necessary to ensure that it is effective, and

then set a specific guidance saying, in any event, after the deadline

for complete guidance with the standard, the employer must evaluate the program at least once in the next 12 months and at least

once in the succeeding 24 months.

Mrs. KELLY. Are you going to evaluate your own regulations as

regularly as you expect the businesses to do that?

Mr. WATCHMAN. We have started to review regulations. We have

a variety of projects under way, yes, to review our own regulations.

Mrs. KELLY. This particular one you will also review every 12

months?

Mr. WATCHMAN. We with not review it every 12 months, because

we have a fair number of regulations, but we do review regulations

on a regular basis.

Mrs. KELLY. No, that is not what I am asking.
32

I am asking: You are expecting an employer to take this program

and review what they have put in place once every year, if I understand you correctly. I am asking you, if you are going to do the

same, to make sure that this program is continuing to be valuable.

Mr. WATCHMAN. We would certainly monitor the implementation

of the standard, and in practice for the standards we have already

issued, we either have in many cases reopened the rule to clarify

issues that have come up in the implementation or to correct problems that have come up.

In other cases, we issue compliance directives to the field that

are published, that indicate how certain issues that have come up

should be resolved, so we either can come back and reopen the rule

or issue compliance directives.

Mrs. KELLY. Would you be willing to write into the rule that you

will review it every 12 months?

Mr. WATCHMAN. It really is a review that goes on on an ongoing

basis as people raise questions with us.

Mrs. KELLY. You are waiting for people to come from outside to

raise the questions. You are not raising them yourselves. You are

not monitoring themselves them yourselves. That is my concern.

Mr. WATCHMAN. Concerns are raised by outside stakeholders,

employers and workers, as well as OSHA staff out there trying to

enforce our standards.

We have experts in each of our standards at the national office,

and those folks basically are working full-time in the implementation of our standards. So it is not something we would come into

and review after a year or once a year; it is a continual process of

review.

Mrs. KELLY. So there is no total review ever?

Mr. WATCHMAN. That is what I was talking about in the first

part, that at some point then we come back and do a comprehensive review of each standard and determine whether it is still warranted.

Mrs. KELLY. I am trying to find out at what point.

Mr. WATCHMAN. I couldn’t say at this point how quickly we

would do one. We have a couple of projects going on currently for

standards review, but it is something that we do periodically.

Mrs. KELLY. Thank you very much.

Chairman TALENT. I thank the gentlelady and want to thank all

the witnesses for their patience, and particularly for being willing

to wait through that vote that we had. I don’t think we are going

to have a vote for a while, so we should be handle to wrap this up

pretty quickly.

I do have a number of questions, and I want to encourage — I

may direct them at a particular person. I would encourage those

who have comments to make them even if I haven’t directed it to

you in particular.

Mr. Watchman, let me just followup. I was going to ask about a

regulatory flexible analysis, and Mrs. Kelly was getting into that

anyway. Are you planning to do a regular flex analysis with the

rule?

Mr. WATCHMAN. Yes.
33

Chairman TALENT. So although it is a preliminary stage, you do

think the rule is going to have a significant impact on a substantial

number of small businesses?

Mr. WATCHMAN. We haven’t made that determination yet, but we

think we should do a regulatory flexibility analysis.

Chairman TALENT. How are you going to define small businesses

for the purpose of your regular flex analysis?

Mr. WATCHMAN. We anticipate using the SBA definition of ‘‘small

entities’’ for purposes of our regulatory flexibility analysis.

Chairman TALENT. Very good. You are not going to have to consult with them about changing it. That was a concern I had about

the draft, because in terms of your compliance, you are going to

have different attitudes in compliance toward employers with nine

or fewer employees than you would with nine or more.

Where did you get the nine, anyway?

Mr. WATCHMAN. The 10 or fewer, 9 or fewer, is a frequently used

cutoff point for our standards. It is also, I think, used in the appropriations rider that the Congress enacts every year.

Chairman TALENT. Why 9? I agree, but why 9? You see, some of

us have a sense like, you have a dart board with numbers up there

and you threw a dart up there and hit 9. You don’t know why nine,

as opposed to 10?

Mr. WATCHMAN. I don’t know what the historical cause was.

Chairman TALENT. There is no apparent justification for 9 as opposed to 10. Can you see any?

Mr. WATCHMAN. It may be a reflection of how the statistical data

is reported by other agencies.

Chairman TALENT. It may not be; it may be something else. I notice you have more time to comply if you have nine or fewer, but

that is nine employees on any day in the preceding 9 months. Now,

that would cover a whole lot of people who normally don’t have

nine employees.

Again, I don’t want to focus on my family, but my brother has

a couple of people who wait tables and work in his tavern, but if

he has a private party on a given night, he may hire a few extra

people to wait the tables. So, bang, he has the nine. Would it cover

part-time as well as full-time?

Mr. WATCHMAN. I think it does take into account part-time employees in the calculation.

Chairman TALENT. You are getting very, very broad coverage

there. We are not certain, are we? It doesn’t say part-time or fulltime, does it?

Mr. WATCHMAN. That is the kind of provision we would expand

upon in the compliance directive and in the preamble to the regulation.

Chairman TALENT. Would you anticipate, by the way, because

you already referred in response to other questions to a number of

aspects of this that you are going to have to clarify; I am going to

go over some others that I think — and I will see what you respond, but I think you are going to have to clarify.

Are you going to clarify those in the proposed rule?

Mr. WATCHMAN. I am not sure of all of the issues you are referring to, so maybe we should take them one by one.
34

Chairman TALENT. Is the proposed rule going to be in substantially greater detail than this working draft?

Mr. WATCHMAN. We have some conflicting goals. We want to

issue a standard that is as short as possible so people can deal with

it. We certainly recognize small employers don’t have a lot of extra

time on their hands, and if we are going to have a proposal like

this that we want them to implement, we should make it as short

as possible.

But that being said, I think we can accomplish the goal of providing sufficient information through a variety of compliance guides

and models and checklists.

Chairman TALENT. See, here is something I want to get into. Ms.

Bailey referred to this before.

My opening statement, when I talked a little bit about the nature of law, OK, I don’t want to turn this into the Judiciary Committee, but when you say we are going to put it in compliance

guides, compliance guides are not subject to the safeguards and the

APA, the Administrative Procedures Act and the other kinds of

rulemaking, are they?

Mr. WATCHMAN. Right.

Chairman TALENT. We don’t know what is going to be in the

compliance guides. But then it is too late for us to comment, to give

you any input, right?

Mr. WATCHMAN. Well, certainly the issues you have raised are issues we would be considering during the rulemaking——

Chairman TALENT. OK.

Mr. WATCHMAN [continuing]. Clearly. But in terms of trying to

provide assistance to employers, we would clarify some things in

the compliance guides.

Chairman TALENT. You are going to do a compliance guide for

small employers under SBREFA?

Mr. WATCHMAN. Yes. In fact what we would like to do is target

them at some particular sectors or industry groups so we can provide more specific assistance.

Chairman TALENT. Let me get into a couple of the areas where

I am deeply concerned.

I said in my opening statement that this working draft is not

really, in my judgment, a law. It is sort of, you are urging people

to go out and be safe, is the way I regard it. The problem with that

is, when you have substantial legal penalties in connection with it,

you are just not telling people what they need to do.

Let’s get into the employee participation. I think you could take

this with any one of these core elements. You define ‘‘meaningful

participation’’ as ongoing, effective communication between the employer and the employees, so I presume — are they going to have

to have official meetings, safety meetings?

Mr. WATCHMAN. Not necessarily. That would be one way of having ongoing, effective communication.

Chairman TALENT. But in some circumstances, probably yes; in

some circumstances, probably no. Is that what you are telling me?

Mr. WATCHMAN. We want to allow employers as much flexibility

as we can to determine what kind of participation is appropriate

for their workplace. In a workplace like Mr. Landon’s, with only a

few employees, there really would not be a need for formal meet-
35

ings necessarily, but perhaps one-on-one conversations, an understanding if employees encounter a hazard, they are free to raise it

with Mr. Landon and he will respond to their concerns.

Chairman TALENT. You said ‘‘flexibility,’’ which I think is the key

word. Believe it or not, even in my own mind, I am not convinced

you should not go forward with this in some form or another. I

think it is important you keep a distinction in your mind between

a rule that allows flexibility for the employer and a rule that allows

arbitrariness on the part of the inspector.

You see, if you say in the rule, employers can at their discretion

have formal meetings or not, or employers with under 10 employees or something can, that is flexibility. But if you just say, well,

have as many meetings as necessary, then what you have done is

you have taken the job of making laws and you have given that to

the inspectors to do, haven’t you?

Mr. WATCHMAN. Again, that is where the compliance directive

comes into play, and we would want to work closely with stakeholders in the development of that. I think you are raising a concern that our stakeholders have raised with us in many meetings,

which is, we are comfortable with a lot of what you are doing in

this working draft, but the real question is, how are you going to

enforce it?

Typically, we draft a compliance directive on our own and put it

out there for the inspectors to follow. That clarifies a lot of issues.

This time around we want to work with stakeholders to allay their

concerns about the kind of discretion that our inspectors will have

in the enforcement of this standard, and we hope to do that at the

proposal stage long before it ever becomes a final rule, years before.

Chairman TALENT. I will let you know right now, my judgment

is that taking all these issues which should be part of the law or

the regulation and putting them in the compliance directive isn’t

good enough.

The compliance directive, for example, is not clearly covered by

the regular flex amendment. It would not necessarily subject to judicial review. You can’t get around your responsibilities by putting

them in a compliance directive; they need to be part of the rule,

which is the way Congress has instructed the Agency to legislate

when it legislates. Do you see what I am getting at?

Compliance directives on minor points are one thing, but on

major points — and there is major point after major point here:

Employee involvement in such areas as assessing and controlling

hazards. Again, do you have to have meetings with the employees?

Do there have to be surveys? Can you form teams? Evaluating the

effectiveness of the safety and health program, do you have to hire

consultants?

I think what you probably are going to answer — do you want

to answer that?

Mr. WATCHMAN. I would just say, any of those could be acceptable means of meeting the employee participation requirement, but

none of them would be specifically required.

Chairman TALENT. When you say, any would be acceptable, so if

the employer says, I have had meetings, and the inspector says,

OK, under the law I cannot cite you now, is that what you are saying?
36

Mr. WATCHMAN. Yes, if in fact the inspector talks to workers and

they say, we had meetings, we talked about safety and health issues.

Chairman TALENT. Sure, assuming the factual statement is correct, assuming he could make sure what is being represented is

correct, sure. A way for employees to promptly report job-related

injuries, would that mean they would have to have written forms?

Mr. WATCHMAN. We do already have a written form requirement

for recording injuries, and I think that is really an important aspect of our program, that employers can be made aware of the injuries that are occurring.

Chairman TALENT. ‘‘Promptly.’’ What does that mean? See, you

don’t know. You are the head of the Agency and now you have people out there trying to figure out what to do.

By the way, I have to tell you, Mr. Watchman, because of something Mr. Landon said, when I was reading through this thing, the

management leadership section, sub 3, when you say small employers may choose to carry out the responsibilities listed above instead

of delegating them, that really is very quaint, because I have to tell

you, most small employers are not going to have any choice but to

carry them out themselves. You need to keep that in mind.

You referred to the States. I have been going through — I am

not as expert as you are in all — in what all the States have. It

seems to me most of the stated planks I looked at are narrower,

and rather substantially so, in terms of whether they apply to or

what they impose upon employers, than what you are proposing.

Oregon, for example, exempts employers with 10 or fewer, unless

there is something about their industry or their own particular

records to suggest that they may need a health and safety program.

Are you still considering whether you might just exempt very

small employers or maybe subject them, conditional to some showing that they have themselves a poor safety record or are part of

an industry that is high risk? Is that still something you are considering?

Mr. WATCHMAN. We are considering the general coverage issues

for the standard, yes. Our stakeholders agreed, I think fairly universally, that they felt that all workplaces should be covered and

that employees at small workplaces should have the same protections as employees at large workplaces.

But they felt very strongly we should treat smaller workplaces

differently and expect different things from smaller employers. I

would agree with that recommendation.

Chairman TALENT. I will give Mr. Watchman a break. Would

anybody like to comment on that?

Dr. RAINWATER. I would like to comment. Did you say there is

a possibility that you are going to exempt some employers? Did I

hear that? I heard that.

Mr. WATCHMAN. We have not conclusively resolved these issues.

We are still looking at these issues, but again, I am reporting what

the stakeholders — employers and workers — expressed to us in

our stakeholder meetings.

There also are some serious problems with the data that would

make exemptions difficult to apply without exempting some work-
37

places where workers really are in need of protection. So we are

looking at these issues. Again, we have not resolved conclusively

the direction we want to go.

Obviously, we have looked at a lot of these different State laws

as well.

Chairman TALENT. I would urge you to consider that very strongly. One of the concerns I have about regulations in general is that

in order to get more control of a relatively small fraction of people

who have a problem, something applies to everybody; and it seems

to me we should not confine ourselves to those two universes.

Either we make everybody carry large costs that many people

don’t need to carry — I think you will agree, as Ms. Church said,

and Ms. Gekker, many employers are doing all they can; and your

suggestions are not going to help them as much. Why can’t we tailor a rule for those who need the help or are the bad actor, make

people who have bad histories or are in lines of business that are

particularly hazardous — frankly, if you wanted to have a safety

and health program requirement for businesses where they make

explosives, I don’t think I would be having this hearing?

Is that something you can consider doing? Maybe tailoring it on

the background of the business?

Mr. WATCHMAN. There is a certain logic obviously in trying to

target a standard at the highest-hazard workplaces. The reality is,

we still have significant injury rates around this country, that the

average rate for the country is about 7.8 workers out of 100 that

will be injured in the course of a year. But even in the safest industries, one out of 50 workers will be injured in the course of a year,

and that is a very significant level. Over the course of 10 years, 10

of those 50 workers will be injured.

I think there is a lot we can do to reduce these injuries and illnesses, even in the low-risk industries; and safety and health programs have proven to be a very successful way of reducing injury

and illnesses and saving money for the employers.

So, yes, there is some logic there, and we are looking at that

issue. But I think there is also a counterargument that makes

sense, to try to extend the same protections to all workers, but to

try to reduce the impact and burden on small employers of complying with the standard.

Chairman TALENT. Ms. Bailey, I wanted to followup with something you talked about, back-door rulemaking, which I think is a

real danger of this working draft. Let me say what I understand

you to be saying, and you tell me whether this is correct.

Let’s suppose that OSHA has been considering or working on a

rule — in particular you mentioned ergonomics; it could be one of

a number of them — and for one reason or another has not promulgated that rule, or perhaps Congress said, do not promulgate that

rule, or do not promulgate it now or in this form. But this rule goes

forward.

So now the employer has the responsibility to have a health and

safety program covering not just the specific standards of OSHA,

but also comprehending hazards that would be hazards only under

the general duty clause.

Ms. BAILEY. That is correct.
38

Chairman TALENT. So let’s go back to my example in my opening

statement about the beer keg that, let’s say, weighs more than 25

pounds — and I don’t know how much they weigh; I have never

approached them from that standpoint, picking them up. The hose,

I could tell you how much they weigh, that you put in there. So

the inspector comes into the workplace.

Now, as far as his working draft is written, is it your belief, as

it is my belief, that there is nothing at all to keep that inspector

from saying, there is a hazard over here, under the general duty

clause with this beer keg? You have not listed it as a hazard or not

corrected the hazard, and in fact that incorporates the ergonomic

rule into the safety and health program.

Is there anything you could see to keep him from doing that?

Ms. BAILEY. No, there is not. As long as the lifting of a keg that

size is a recognized hazard in that industry and would be covered

by the general duty clause, then there is no basis — they can’t

form the basis for a citation saying, you do not have an effective

safety and health program. That is preventive control in regard to

that hazard.

Chairman TALENT. Mr. Watchman can speak for himself, and I

will give him a chance to comment, but perhaps he can say, then

you can litigate it.

Let’s get reality into the open here. What is the first stage at

which an employer gets an impartial adjudication of an OSHA citation? The ALJ?

Ms. BAILEY. Yes.

Chairman TALENT. What is the nature of the proceeding before

an ALJ?

Ms. BAILEY. It is very much like a trial. There is no jury, but the

ALJ is essentially the judge, and both sides present their arguments. It is a full-blown trial.

Chairman TALENT. You examine and cross-examine witnesses?

Ms. BAILEY. Yes.

Chairman TALENT. You file written pleadings?

Ms. BAILEY. Yes, all those things.

Chairman TALENT. Briefs?

Ms. BAILEY. Yes.

Chairman TALENT. So if the employer wants to have much

chance, he has to have representation.

Ms. BAILEY. Being a lawyer, I would say yes.

Chairman TALENT. I am a lawyer, too, and I used to be in the

field of labor law. So how much would a reasonably — not a complex, but an average trial before an ALJ cost an employer?

Ms. BAILEY. Quite a bit.

Chairman TALENT. Even for somebody a little bit less qualified

than the people at McDermott, Will and Emery, it would probably

cost $25,000 or $30,000 maybe?

Ms. BAILEY. Yes, I would venture to say. Yes. If you have to go

beyond the ALJ level, up through the review commission and the

appellate court, you are talking about hundreds of thousands of

dollars.

Chairman TALENT. So the inspector says, I will tell you what, I

am going to fine you $1,500 for the beer keg thing and don’t ever

do it again. Now you can get take the $1,500, or maybe go to the
39

regional director and try and get that settled, or hire somebody like

you for $1,000, or you can litigate it for a minimum of $25,000- or

$30,000. What are the tavern owners, as a practical matter, going

to do?

Ms. BAILEY. They are going to have to spend a lot of money, it

sounds like.

Chairman TALENT. Which means, as a practical matter, that that

inspector is making the law at that workplace, isn’t he?

Ms. BAILEY. That is true to some degree.

What you also have to realize is, we are not just talking about

penalties that come with citations. Suppose you have a tavern

owner — what you have to think about also is abatement. I mean,

the real costs don’t come with the $1,500 fine. They come with the

way you have to completely revamp your business to change the

way you operate, and that is where some of the really big costs can

come in.

It is not necessarily the $1,500 fine; it is the way you have to

change the way you operate your business.

Chairman TALENT. Now, Mr. Watchman, I will give you a chance

to comment if you want. But let me just add, see, when you combine a remedial procedure, which is very expensive for the average

person — and I am not saying there is anything we can do about

that — we ought to put our heads together and try to figure it out.

But on the one hand, getting a clarification of the law before even

a semineutral adjudicator is very expensive.

Then a law, which is very vague, what the average small employer is just confronted with then is the person that comes out to

inspect is the law. I mean, it is like, well, I am not going to say

what it is like. It is what offends me, I guess, in principle, about

this kind of a process, that people don’t know what they can and

cannot do; and in order to find out, it is extremely — prohibitively

expensive. These are people who in many cases may not have any

problem with safety.

Do you have a response to that? Is there anything we can do to

try and move forward with something you are trying to do and

minimize that risk?

Mr. WATCHMAN. I think this is a very creative argument that Ms.

Bailey has raised, but I don’t think there is any merit to it. We

have made clear in the working draft and we will continue to make

clear in any proposal we come up with that, first, the standard only

applies to hazards for which the general duty clause already applies or a specific standard already applies.

If in fact the handling of the kegs represents a hazard under the

general duty clause that is likely to cause death or serious physical

harm, or is causing death or serious physical harm, if in fact it is

a recognized hazard in that industry, and if in fact there are feasible means of abating that hazard, a general duty clause violation

would be appropriate in that instance — but only if those criteria

are met.

If they are not met, it would not be appropriate. But the existence or nonexistence of a safety and health program standard

would have absolutely no impact on whether or not the handling

of kegs represented a general duty clause violation.
40

So, again, I think the argument is a creative one, but I don’t see

it as being a problem.

Chairman TALENT. In fairness, though, to Ms. Bailey, the Agency’s position on these kinds of things hasn’t always been consistent.

A few years ago it was the view of the Agency, evidently, that in

order to do what you are trying to do now, Congress had to pass

a law, wasn’t it?

Mr. WATCHMAN. No, sir.

Chairman TALENT. Wasn’t the COSHRA bill, introduced in 1992

and 1993 by Senator Kennedy and Senator Ford, designed to give

you the authority that evidently they felt they had to give you, that

you didn’t already have, to promulgate a national safety and health

standard?

Mr. WATCHMAN. It was. It was the time of a different administration.

Chairman TALENT. Not in 1993 it wasn’t.

Mr. WATCHMAN. In 1993, that is true. But that legislation was

designed to enact a number of reforms to the OSHA statute. But

I don’t believe the sponsors felt that a safety and health program

rule had to be enacted by legislation.

Our statute, in fact, gives us broad authority to set standards to

reduce injuries and illnesses in the workplace, and in fact section

8(c)(1) of our statute specifically gives us the authority to require

employers to conduct self-inspections, which is really at the heart

of this working draft.

Chairman TALENT. When I look at a side-by-side of COSHRA and

your safety and health proposal, it looks pretty similar to me. Obviously, there are a few differences.

Basically, they tried to require through the law — and they were,

by the way, unable to pass through a Congress that in both sessions was controlled by the other party — essentially what you are

trying to do here. So you see why Ms. Bailey and some of us are

concerned, because administrations change and views change and

compliance guides change, and none of that is subject even to the

safeguards in the Administrative Procedures Act, much less the

safeguards in the Constitution regarding how laws are passed here.

To this point, I don’t think you have addressed the concerns that

I think are here in trying to have such broad coverage of a law that

must inevitably be vague in what it actually says. You are trying

to cover everybody, and you recognize appropriately that, look,

some people may have meetings, some people may have surveys.

You appreciate the fact we could be here all day if I wanted to

go through all of the elements and bring out what is vague in all

of them. Wouldn’t you recognize there is a whole lot more vague

in here than what I have talked about to this point?

Mr. WATCHMAN. As I recognize in my testimony, the challenge is

to respond to employer wishes for a performance-based standard,

but also giving enough guidance that people know what we are

asking of them.

I am not sure we have gotten it exactly right. I think we do need

to do a better job of defining a lot of these terms. But I think there

is also a balance to be struck here; it is not just a question of defining the terms. Because the more specific we make the standard,
41

the more employers are going to tell us, why are you telling me to

do it that way; I do it this other way, and that works perfectly well.

Chairman TALENT. Which would suggest that if you end up giving discretion to people who can’t be attacked in the enforcement

stage, that that may be the way to go. That is true flexibility; that

isn’t arbitrariness. Give people safe harbors.

You mentioned checklists before. I know this is in the back of the

mind and is something you are thinking about. I would also suggest to you there is more than just a compromise here; there are

some very basic principles of law here.

There is an old Anglo-Saxon maxim of law that what is not prohibited is allowed. If you do not let people know with reasonable

specificity what they cannot do, then they are allowed to do it. It

is hard to regulate a vast society following that principle, but we

ought to try to do it as much as possible.

Let me see if I have any other questions. I filibustered Mr. Hill

out of his. He handed me a note. When he has been around here

longer, he will just butt in. When he has been around here a very

long time, he may ask you about his teeth.

Dr. RAINWATER. I am waiting for a reply on that.

Chairman TALENT. I had a question about effective alternatives,

because I think that is one possible safety valve here. Under ‘‘discussion,’’ I am interested in this discussion, some kind of concept

evidently, and I have not tried to codify it or to set it forth with

great specificity here, but some kind of concept that employers who

have some effective alternative are deemed to be in compliance.

That is kind of a general safe harbor. Could you elaborate on your

thinking in that regard?

Mr. WATCHMAN. Sure. We included language to this effect in response to concerns that stakeholders raised. The basic concern that

was raised initially was, we already have an effective safety and

health program in our workplace, and we are reducing injuries,

doing a lot of things, but why should we have to change it, when

it is working, to comply with the standard?

Our intent is not to force changes in effective programs, but the

way we have drafted the standard in terms of boiling it down to

the very basic core elements, they are fairly common sense. You

have to be committed at a high level of management, and not just

make it a pro forma exercise.

You have got to talk to your workers and communicate with

them. You have got to actually try to identify and address hazards

that are present at your workplace, if there are some. You have to

train workers that are exposed to serious hazards about how to

identify them and how to deal with them.

Then it makes sense to review the overall approach periodically

to just get a sense of whether it is working or not.

Nevertheless, we have considered whether we could do some alternative language that would allow for other effective approaches.

But what we have said at every single stakeholder meeting is —

to both many different individual employers that are present at

those meetings, as well as employer representatives that represent

hundreds of thousands of businesses — give us examples of the

kinds of approaches you are conceiving of that you think would not
42

meet the core elements. Not a single employer has given us an example, and we have asked repeatedly.

I would ask again today, if there are companies that feel that

they are not providing one of those basic core elements or not providing it exactly the way we envision it, either we can include an

alternative provision or we can broaden that particular core element so it allows for that type of delivery of that core element.

Chairman TALENT. Would anybody else like to comment on the

possibility of that being a saving clause for this, if you will, and if

so, what you think it would have to contain. This idea that if you

are running your own program and it is an effective program, tell

me how you think that might need to be defined, that that might

be a pretty good safe harbor; or do you think it would be ineffective? Any comments on that?

Ms. CHURCH. Chairman Talent, I have a feeling it comes down

to ‘‘I will know it when I see it.’’ I don’t think that will work.

Chairman TALENT. Any other comments?

Dr. RAINWATER. I would like to comment to Mr. Watchman.

The OSHA compliance checklist for the dental office that the

dental profession has worked with OSHA to come up with, which

includes about everything you can possibly dream of from labeling

to training to means of egress to fire prevention to exits, would

that not be a sufficient document to comply with everything in this

standard?

Mr. WATCHMAN. It sure sounds like it would. It looks pretty comprehensive and looks like it addresses the kinds of issues we would

envision being addressed in the safety and health program. So this

is the kind of material that we envision as potentially using as a

safe harbor under the standard.

Chairman TALENT. OK.

Dr. RAINWATER. May I then ask, would it be possible that either

we could get an exemption, because we are already doing that, or

get some sort of directive from OSHA saying that if you comply

with all this stuff, that is all you need to do to fulfill this? Is that

possible?

Mr. WATCHMAN. The problem with an exemption for an entire industry is that it assumes every employer is taking exactly the same

steps. As I am sure you understand, there are many employers

doing exactly the right thing, some going beyond what is required,

and then others that are not doing enough. So I think we need to

apply the standard in places where there are problems and industries where there are problems, but I think we need to make every

effort to develop these kinds of industry-specific checklists that can

be used as safe harbors.

Chairman TALENT. Let me ask you this, Secretary, because it

seems to me the core of your argument comes down to the fact

there are people out there who, either through ignorance or they

don’t care — and I do agree, the economic motive, although if humanity doesn’t move people to care about safety, which in most

cases it does, the economic motive ought to. But I agree with you,

there are some people out there who are going to companies over

that thin ice and just hope it never hurts anybody. But cannot we

apply the same thing to regulatory agencies from a different perspective?
43

Most regulators I know of are pretty conscientious people trying

to advance the interests of what they are supposed to be doing

without necessarily hurting people. But there are some out there,

either untrained or ignorant or malicious — they got up on the

wrong side of the bed this morning, so we are going to stick it to

somebody.

So suppose I said to you, Congress is going to pass a law requiring the agencies to be fair, and because we are trying to cover all

the agencies and all the circumstances in which you might be regulating people, is it impossible for us to be more specific than that?

But we are going to have the General Accounting Office — we are

going to give them several thousand people, and they can go

around whenever they want, walk into one of your regional offices

or follow an inspector or demand documents, which you will have

to provide, and they are going to implement what is fair. They will

have compliance guidelines.

Now, those will not be subject to the Administrative Procedures

Act and they could change without any notice, but we will promise

we are going to work with your stakeholders. If they decide that

you are not being fair in a particular instance, there is monetary

liability for the inspector, but they can contest it if they want before a system of ALJ’s, most of whom, by the way, will be former

GAO auditors, OK?

Now, would you say to me, Congressman, that seems kind of unfair and it might stop us in the legitimate things we are doing? Or

would you say, we have to do something because there are some

people out there who otherwise are not going to be fair?

How would you respond to that kind of setup?

I could file a bill like that. Everybody wants fairness.

Mr. WATCHMAN. In the course of our rulemaking, I don’t want to

suggest that we are going to shuffle off some of these issues into

a compliance directive that will not be considered in the course of

the rulemaking. We recognize that there are serious concerns that

people have about how we could craft a standard that could apply

in a variety of contexts. It is a tough challenge.

But the issues you have raised, and that a lot of the witnesses

have raised, are issues that we do intend to explore during the

rulemaking. Again, there are all these steps involving meetings

with small businesses, the SBREFA regulatory review panel process, interaction with SBA and OMB, and all of that takes place before we ever issue a proposal.

We are still years from issuing a final rule. During the

postproposal stage, we will have hearings and an opportunity with

written comments, and again, witnesses can cross-examine each

other to really get into the detail of these types of issues, to hammer out a standard that is fair and reflects as big a consensus as

possible among stakeholders.

So I do think we have a very fair process. I think OSHA’s processes for developing rules is one of the more thorough and public

processes that exist in the Federal Government, and we have only

added to that process through all of the preproposal activity we

have engaged in.
44

Chairman TALENT. You haven’t commented, whether you would

support that bill or not, whether the Agency would. You would

probably want to look at it a little bit more.

Mr. WATCHMAN. Probably.

Chairman TALENT. That is all I have. I want to thank the witnesses for their patience.

Mr. Watchman, I know you needed to go about 1. I want to

thank you for answering these questions and being willing to be so

responsive and to listen. I think that speaks very well for you and

your leadership. I am grateful to you for doing that.

Without objection, I will keep the record open for 5 days so that

other members can direct written followup questions that they may

have to any of the witnesses or submit other statements for the

record. Without objection, that is ordered.

[Mr. McIntosh’s statement may be found in the appendix.]

[Mr. Poshard’s statement may be found in the appendix.]

[Mr. Jackson’s statement may be found in the appendix.]

[Mr. Pascrell’s statement may be found in the appendix.]

Chairman TALENT. The hearing is adjourned. Thank you all

again.

[Whereupon, at 1 p.m., the Committee was adjourned, subject to

the call of the Chair.]
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