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OSHA’S REGULATORY AGENDA: 

CHANGING LONG–STANDING POLICIES 

OUTSIDE THE PUBLIC RULEMAKING PROCESS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, FEBRUARY 4, 2014 

Serial No. 113–43 

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

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 

(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

[Vacant] 

George Miller, California, 

Senior Democratic Member 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Juliane Sullivan, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Tom Price, Georgia 

Duncan Hunter, California 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Richard Hudson, North Carolina 

Joe Courtney, Connecticut, 

Ranking Member 

Robert E. Andrews, New Jersey 

Timothy H. Bishop, New York 

Marcia L. Fudge, Ohio 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Mark Pocan, Wisconsin 

(III) 

C O N T E N T S 

Page 

Hearing held on February 4, 2014 ......................................................................... 1 

Statement of Members: 

Courtney, Hon. Joe, ranking member, Subcommittee on Workforce Protections ................................................................................................................ 4 

Prepared statement of ............................................................................... 6 

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

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Baskin, Maury, Esq., shareholder, Littler Mendelson, P.C., on behalf 

of the National Association of Manufacturers and Associated Builders 

and Contractors, Inc. .................................................................................... 32 

Prepared statement of ............................................................................... 34 

Hammock, Bradford, shareholder, Jackson Lewis P.C., testifying on behalf of the U.S. Chamber of Commerce ....................................................... 8 

Prepared statement of ............................................................................... 10 

Rabinowitz, Randy S., attorney at law ........................................................... 25 

Prepared statement of ............................................................................... 27 

VanderWal, Scott, president, South Dakota Farm Bureau Federation ....... 22 

Prepared statement of ............................................................................... 24 

Additional Submissions: 

Mr. Courtney: 

Rylatt, Catherine A., MPA, prepared statement of ................................ 50 

Miller, Hon. George, senior Democratic member, Committee on Education 

and the Workforce: 

Michaels, Hon. David, Ph.D., MPH, Assistant Secretary, Occupational Safety and Health Administration, U.S. Department of 

Labor, prepared statement of ............................................................... 54 

(1) 

OSHA’S REGULATORY AGENDA: 

CHANGING LONG–STANDING POLICIES 

OUTSIDE THE PUBLIC RULEMAKING PROCESS 

Tuesday, February 4, 2014 

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, DC 

The subcommittee met, pursuant to call, at 10:02 a.m., in room 

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

Present: Representatives Walberg, Kline, Rokita, Hudson, 

Courtney, and Pocan. 

Staff present: Janelle Belland, Coalitions and Members Services 

Coordinator; Ed Gilroy, Director of Workforce Policy; Nancy Locke, 

Chief Clerk; James Martin, Professional Staff Member; Daniel 

Murner, Press Assistant; Brian Newell, Deputy Communications 

Director; Krisann Pearce, General Counsel; Molly McLaughlin 

Salmi, Deputy Director of Workforce Policy; Alissa Strawcutter, 

Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Alexa Turner, 

Legislative Assistant; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Jody Calemine, Minority Staff Director; Melissa 

Greenberg, Minority Staff Assistant; Julia Krahe, Minority Communications Director; Leticia Mederos, Minority Director of Labor 

Policy; Richard Miller, Minority Senior Labor Policy Advisor; 

Megan O’Reilly, Minority General Counsel; Michael Zola, Minority 

Deputy Staff Director; and Mark Zuckerman, Minority Senior Economic Advisor. 

Chairman WALBERG. A quorum being present, the committee will 

come to order. 

Good morning. I would like to welcome our guests and thank our 

witnesses for joining us this morning. 

In recent weeks there has been a great deal of discussion about 

the use of executive power. President Obama promised in his State 

of the Union address to go around Congress when necessary to advance his own agenda. The President’s remarks fits a pattern we 

are all too familiar with under this administration and goes well 

beyond the attitudes and actions of past administrations of both 

parties. 

Be it through non-recess recess appointments, waiving the work 

requirements in welfare reform, or unilaterally delaying parts of 

the health care law, time and again the administration has made 

2 

end-runs around Congress and the American people we represent 

to serve its own political interests. Today we will discuss instances 

of this executive overreach within the Occupational Safety and 

Health Administration. 

Like most federal agencies, the Administrative Procedure Act, or 

APA, governs OSHA’s regulatory process. Enacted during the Truman administration, the law requires agencies to issue a proposed 

rule, collect public feedback, and review and respond to comments 

before issuing a final rule. 

In 1948 Senator Pat McCarran, Democrat from Nevada and 

chairman of the Senate Judiciary Committee, described the APA as 

a—and I quote—‘‘bill of rights for those Americans whose affairs 

are controlled or regulated in one way or another by agencies of the 

federal government,’’ end quote. Senator McCarran also said the 

law was designed to, quote—‘‘provide due process in administrative 

procedure.’’ 

In addition to following the guidelines set forth in the APA, before moving forward with a proposed rule OSHA is also required 

to determine that a health and safety risk exists, examine the economic impact of the proposed rule, and evaluate the technical feasibility of compliance. These legal guidelines are in place to protect 

the public against excessive regulations, provide important transparency over work of federal agencies, and ensure the right policies 

are in place. 

And so it is very troubling to see the administration circumvent 

the public rulemaking process in order to significantly alter health 

and safety standards. Assistant Secretary David Michaels has 

openly expressed his frustration with the rules he must follow before imposing new regulations on workplaces. Instead, he has 

promised to find, and I quote—‘‘creative solutions,’’ end quote, to 

adopt his policy priorities, and that is precisely what the agency is 

now doing. 

For example, OSHA recently issued a letter of interpretation that 

dramatically changes policies surrounding nonemployee participation in workplace inspections. For years OSHA has prohibited nonemployees from participating in safety inspections of nonunionized 

workplaces. The only exception allows certain specialists to participate in order to conduct an effective and thorough physical inspection of the workplace. 

Now the agency is allowing virtually anyone to accompany OSHA 

inspectors, including union organizers. This raises a number of important questions. 

Who is responsible for ensuring the nonemployee receives the 

proper health and safety training? Is the employer liable for an accident involving this nonemployee? Should safety inspections provide a Trojan horse to union bosses who want to organize a workplace? 

These and other concerns have not been addressed because the 

agency has refused to solicit public feedback. 

OSHA is also denying the public the right to weigh in on its unprecedented decision to inspect family farms. Since 1978 Congress 

and the President have agreed to statutory language that prevents 

OSHA from inspecting farms with 10 or fewer employees. Yet withVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
3 

out any notice, public review, or change in the law, OSHA issued 

guidance that allows for the inspection of family farms. 

To justify its new policy, OSHA’s flawed logic suggests anything 

outside the growing of crops or raising of livestock is considered 

non-farming operations and therefore subject to inspection. It 

would surprise most farmers to learn the storage of grain, corn, or 

wheat is not a vital part of their farming operation. As Chairman 

Kline and I noted in a recent letter to Assistant Secretary Michaels, and I quote—‘‘The guidance simply does not reflect the reality of family farming or the will of Congress and should be withdrawn.’’ 

I expect we will discuss in more detail these and other examples 

of OSHA’s executive overreach during this morning’s hearing. We 

all want to ensure America’s workers are employed in safe and 

healthy workplaces, and that goes for both sides of the aisle. 

Unfortunately, rewriting the law through executive fiat and circumventing the public rulemaking process undermines this goal, 

creating confusion and uncertainty for workers and job creators. I 

strongly urge the administration to reverse course. 

With that, I now yield to my colleague, Representative Joe 

Courtney, the senior Democratic member of this subcommittee, for 

his opening remarks. 

[The statement of Chairman Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Chairman, 

Subcommittee on Workforce Protections 

Good morning. I’d like to welcome our guests and thank our witnesses for joining 

us. In recent weeks there has been a great deal of discussion about the use of executive power. President Obama promised in his State of the Union address to go 

around Congress when necessary to advance his own agenda. The president’s remarks fit a pattern we’re all too familiar with under this administration, and goes 

well beyond the attitudes and actions of past administrations of both parties. 

Be it through non-recess recess appointments, waiving the work requirements in 

welfare reform, or unilaterally delaying parts of the health care law, time and again 

the administration has made end-runs around Congress and the American people 

to serve its own political interests. Today we will discuss instances of this executive 

overreach within the Occupational Safety and Health Administration. 

Like most federal agencies, the Administrative Procedure Act or APA governs 

OSHA’s regulatory process. Enacted during the Truman administration, the law requires agencies to issue a proposed rule, collect public feedback, and review and respond to comments before issuing a final rule. 

In 1948 Senator Pat McCarran, Democrat from Nevada and chairman of the Senate Judiciary Committee, described the APA as a ‘‘bill of rights for [those] Americans whose affairs are controlled or regulated in one way or another by agencies 

of the federal government.’’ 

Senator McCarran also said the law was designed to ‘‘provide due process in administrative procedure.’’ 

In addition to following the guidelines set forth in the APA, before moving forward with a proposed rule OSHA is also required to determine that a health and 

safety risk exists, examine the economic impact of the proposed rule, and evaluate 

the technical feasibility of compliance. These legal guidelines are in place to protect 

the public against excessive regulations, provide important transparency over the 

work of federal agencies, and ensure the right policies are in place. 

It’s very troubling to see the administration circumvent the public rulemaking 

process in order to significantly alter health and safety standards. Assistant Secretary David Michaels has openly expressed his frustration with the rules he must 

follow before imposing new regulations on workplaces. Instead, he has promised to 

find ‘‘creative solutions’’ to adopt his policy priorities, and that is precisely what the 

agency is now doing. 

For example, OSHA recently issued a ‘‘letter of interpretation’’ that dramatically 

changes policies surrounding non-employee participation in workplace inspections. 

4 

For years OSHA has prohibited non-employees from participating in safety inspections of non-unionized workplaces. The only exception allows certain specialists to 

participate in order to conduct an effective and thorough physical inspection of the 

workplace. 

Now the agency is allowing virtually anyone to accompany OSHA inspectors, including union organizers. This raises a number of important questions: Who is responsible for ensuring the non-employee receives the proper health and safety training? Is the employer liable for an accident involving this non-employee? Should safety inspections provide a Trojan horse to union bosses who want to organize a workplace? These and other concerns have not been addressed because the agency has 

refused to solicit public feedback. 

OSHA is also denying the public the right to weigh in on its unprecedented decision to inspect family farms. Since 1978 Congress and the President have agreed 

to statutory language that prevents OHSA from inspecting farms with 10 or fewer 

employees. Yet without any notice, public review, or change in the law, OSHA 

issued guidance that allows for the inspection of family farms. 

To justify its new policy, OSHA’s flawed logic suggests anything outside the growing of crops or raising of livestock is considered ‘‘non-farming operations’’ and therefore subject to inspection. It would surprise most farmers to learn the storage of 

grain, corn, or wheat is not a vital part of their farming operation. As Chairman 

Kline and I noted in a recent letter to Assistant Secretary Michaels, ‘‘The guidance 

simply does not reflect the reality of family farming or the will of Congress [and] 

should be withdrawn.’’ 

I expect we will discuss in more detail these and other examples of OSHA’s executive overreach during this morning’s hearing. We all want to ensure America’s workers are employed in safe and healthy workplaces. Unfortunately, rewriting the law 

through executive fiat and circumventing the public rulemaking process undermines 

this goal, creating confusion and uncertainty for workers and job creators. I strongly 

urge the administration to reverse course. 

With that, I now yield to my colleague Representative Joe Courtney, the senior 

Democratic member of the subcommittee, for his opening remarks. 

Mr. COURTNEY. Thank you, Mr. Chairman. And I want to thank 

you for holding this morning’s hearing on the Occupational Safety 

and Health Administration, which was created over 40 years ago 

to improve workplace safety. 

Yet despite the fact that it has been around for 40 years, each 

year thousands of workplace deaths and millions of injuries impose 

needless suffering on people across the country and continue to 

take a huge toll on the American economy. We need to do far more 

to ensure that workers can come home to their families in the same 

condition that they left in the morning. 

This is the first hearing that we have held on this issue in the 

113th Congress impacting workplace health and safety protection 

since I joined this subcommittee back in January. Protecting workplace safety and health and helping federal and state agencies 

tasked with this mission can and should be a high priority for our 

committee. It is certainly worth our committee’s time to consider, 

as recent incidents have demonstrated, whether OSHA maintains 

the necessary resources and modern standards needed to provide 

the workplace protections that Americans need and deserve. 

For example, in the past year the New York Times reported that 

a large number of workers have been crippled from breathing excessive amounts of a neurotoxin solvent used in adhesives for making foam cushions. OSHA has no standard to protect these workers, 

nor do most states, though a well-respected scientific organization 

recommended exposure limits at a mere fraction of the levels to 

which workers today—every day, right here as we are sitting 

here—are now being exposed. After the story broke, OSHA was 

5 

limited to issuing nothing more than an alert bulletin, at least in 

the near term. 

Incidents like these highlight OSHA’s lack of capacity to address 

workplace safety adequately, which this committee should tackle. 

In 2012 the GAO reported that with existing requirements and resources it takes, on average, from 7 years to 19 years for OSHA 

to issue a new health or safety standard. Because of this delay, 

there have been only 16 new health standards established since the 

creation of OSHA 4 decades ago. 

For example, there is very strong scientific evidence that OSHA’s 

limits for exposure to beryllium are far too high to protect workers 

from developing chronic beryllium disease. Beryllium, which was 

first used in nuclear weapons production, is now used in products 

from electronics to golf clubs. 

To address the widespread health problems caused by beryllium 

in the 1940s, two Atomic Energy Commission scientists agreed on 

the limit on the way to a meeting in a taxi that are still in place 

today. Sometimes referred to as the ‘‘taxicab standard,’’ this standard was basically pulled out of thin air and does little to protect 

workers from contracting suffocating and eventually life-ending beryllium-induced disease. 

Some industries now have voluntarily agreed to cut the limit on 

other substances, such as styrene, to one half of the now obsolete 

taxicab standard, and the beryllium industry and the United Steelworkers Union have jointly asked OSHA to cut this exposure limit 

by 90 percent. But voluntary efforts alone are insufficient. OSHA 

needs to have the resources and the capacity to update standards 

to do more. 

As Dr. David Michaels, the OSHA administrator, recently stated, 

‘‘simply complying with OSHA’s antiquated permissible exposure 

levels will not guarantee that workers will be safe’’, but the cumbersome standard-setting process put into place by Congress, the 

courts, and OMB leaves workers with outdated and inadequate 

protections despite the best efforts of agency officials. 

Our committee needs to focus on helping OSHA address the challenges of updating outdated and outmoded health standards, which 

in many areas, such as beryllium, consensus actually exists between management and workers. In 2 days we are going to celebrate a sad milestone in the state of Connecticut. On February 7, 

2010 there was a nuclear—excuse me, a natural gas plant under 

construction and they were using basically natural gas to vent the 

pipes—something which, you know, the large manufacturers of 

this, like Siemens, had been warning people was highly dangerous 

and should not be used; they should be using oxygen or air to clean 

the pipes. 

But that day in Middletown, Connecticut they used natural gas 

to clean the pipes. There was a weld torch that was nearby. An explosion occurred and six workers lost their lives. 

The police and first responders who I talked to that day said it 

looked like basically a battle zone when they went in there to look 

at the, you know, the harm that was done to those people who were 

just there trying to build a power plant to create, again, a good 

source of clean energy for the state of Connecticut. 

6 

In the wake of that, the Chemical Safety Board, which again, 

had been putting up the warning flags about using natural gas for 

venting and purging the lines, basically told people, ‘‘We have been 

telling you about this for years,’’ but OSHA’s hands have been tied 

by, again, what GAO identified as a rulemaking process which is 

basically defunct. 

So we have got basically an agency right now that is struggling 

to try and deal with the fact that new production methods are taking place because the economy and science changes, and yet we 

have a system that is basically trapped in a set of assumptions that 

were created decades ago. And that really should be what this committee should be focused on is a smarter, more effective agency, as 

opposed to basically crippling and handcuffing the agency from 

doing the basic level of protecting people from processes and workplace standards that we know are dangerous, and both sides know 

are dangerous. 

Other workplace safety issues also merit our focus. In April 2013 

a massive ammonium nitrate explosion at Adair Grain killed 15, 

injured 160, and leveled or damaged at least 150 buildings in the 

town of West, Texas. And again, those 15 were first responders. 

Those were firemen who were rushing to the scene to try and save 

lives. 

The last time OSHA inspected that facility was in 1985 and requirements for proper storage of this explosive material was woefully out of date. There are fewer than 2,000 inspectors to monitor 

the health and safety performance at more than 8 million workplaces nationwide. 

With these resources, OSHA can inspect a facility about once 

every 131 years. Again, isn’t this an issue our committee should 

consider? 

Yet the approach of today’s hearing focuses on restraining OSHA 

rather than delivering workers the protections they need and deserve. Instead, I hope that we can determine guidance to help 

OSHA be more—to more effectively protect workers, which again, 

there is consensus out there in many industries from both management and the workers to try and come up with better standards 

that help both sides in terms of more effective and efficient production of goods and services. 

I want to thank our witnesses for their testimony and the one— 

in the case of one for his travel all the way from South Dakota to 

be with us today. I look forward to hearing from all of you and 

yield back. 

[The statement of Mr. Courtney follows:] 

Prepared Statement of Hon. Joe Courtney, Ranking Member, 

Subcommittee on Workforce Protections 

I want to thank you for holding this morning’s hearing on the Occupational Safety 

and Health Administration, which we all know as OSHA. The Occupational Safety 

and Health Act, which created OSHA, has improved workplace safety significantly 

over the past 40 years. Yet, each year thousands of workplace deaths and millions 

of injuries impose needless suffering on people across the country and continue to 

take huge toll on the American economy. We need to do far more to ensure that 

workers can come home to their families in the same condition as they left. 

This is the first hearing we have held on issues impacting workplace health and 

safety protection since I joined this subcommittee in January 2013. Protecting worker safety and health and helping the federal and state agencies tasked with this 

7 

mission can and should be a high priority for our committee. It is certainly worth 

our committee’s time to consider, as recent incidents have demonstrated, whether 

OSHA maintains the necessary resources and modern standards needed to provide 

the workplace protections that Americans need and deserve. 

For example, in the past year, The New York Times reported that a large number 

of workers have been crippled from breathing excessive amounts of a neuro-toxic 

solvent used in adhesives for making foam cushions. OSHA has no standard to protect these workers, nor do most states, though a well-respected scientific organization recommended exposure limits at a mere fraction of the levels to which workers 

are being exposed. After the story broke, OSHA was limited to issuing an ‘‘alert’’ 

bulletin, at least in the near term. 

Incidents like these highlight OSHA’s lack of capacity to address workplace safety 

adequately, which this Committee should tackle. In 2012, the Government Accountability Office reported that with existing requirements and resources it takes, on average, from seven year to 19 years for OSHA to issue a new health or safety standard. Because of this delay, there have only been 16 new health standards established since the creation of OSHA four decades ago. 

For example, there is very strong scientific evidence that OSHA’s limits for exposure to beryllium, are far too high to protect workers from developing chronic beryllium disease. Beryllium, which was first used in nuclear weapons production, is now 

used in products from electronics to golf clubs. To address the widespread health 

problems caused by Beryllium in the 1940s, two Atomic Energy Commission scientists agreed on the limit on the way to a meeting that is still in place today. 

Sometimes referred to as the ‘‘taxi cab standard,’’ this standard was basically pulled 

out of thin air, and does little to protect workers from contracting suffocating, and 

eventually life-ending, beryllium-induced disease. 

Some industries have voluntarily agreed to cut the limit on other substances, such 

as styrene, to one half of the now obsolete ‘‘taxi cab’’ standard. And the beryllium 

industry and the United Steelworkers Union have jointly asked OSHA to cut this 

exposure limit by 90 percent. But voluntary efforts alone are insufficient. OSHA 

needs to have the resources and support to do more. 

As Dr. David Michaels, the OSHA Administrator, recently stated: ‘‘simply complying with OSHA’s antiquated Permissible Exposure Levels will not guarantee that 

workers will be safe.’’ But the cumbersome standard setting process put in place by 

Congress, the courts, and OMB leaves workers with outdated and inadequate protections, despite the best efforts of agency officials. 

Our committee needs to focus on helping OSHA address the challenges of updating outmoded health standards, but instead, my colleagues on the other side of the 

aisle are trying to use this hearing and other actions to further undermine OSHA 

at the expense of workers across this country. After all, if credible scientific research 

tells us more protective health standards are needed, and it is clear that they are 

feasible but red tape stands in the way, isn’t this a problem worth addressing on 

a bipartisan basis? 

Other workplace safety issues also merit our focus. 

In April 2013, a massive ammonium nitrate explosion at Adair Grain killed 15, 

injured 160, and leveled or damaged at least 150 buildings in the town of West, 

Texas. The last time OSHA inspected that facility was in 1985, and requirements 

for proper storage of this explosive material are woefully out of date. There are 

fewer than 2,000 inspectors to monitor the health and safety performance at more 

than eight million workplaces nationwide. With these resources, OSHA can inspect 

a facility only once every 131 years, on average. Again, isn’t this an issue our committee should consider? 

Yet, the approach of today’s hearing focuses on restraining OSHA, rather than delivering workers the protections they need and deserve. Instead, I hope we can determine guidance to help OSHA more effectively protect workers. 

I want to thank our witnesses for their testimony, and in the case of one, for his 

travel all the way from South Dakota to be with us today. I look forward to hearing 

from all of you and yield back. 

Chairman WALBERG. I thank the gentleman. And you bring up 

valid points and we really expect this hearing to be more than just 

a piling on OSHA, but rather looking for ways that we can partner 

in a better way to protect employees and employers alike and our 

economy. 

8 

The Connecticut incident is a tragic day in history and you do 

well in reminding us that. We also can remember we did have a 

field hearing on that particular event, and hopefully we will continue improving. 

Pursuant to committee rule 7(c), all members will be permitted 

to submit written statements to be included in the permanent 

hearing record. And without objection, the hearing record will remain open for 14 days to allow statements, questions for the 

record, and other extraneous material referenced during the hearing to be submitted into the official hearing record. 

It is now my pleasure to introduce our distinguished guests. 

First, Mr. Bradford Hammock is a shareholder with the law firm 

Jackson Lewis in Reston, Virginia and is testifying on behalf of the 

U.S. Chamber of Commerce. Mr. Scott VanderWal is president of 

the South Dakota Farm Bureau, a third generation farmer from 

Huron, South Dakota. 

Thank you for traveling to be here with us today in the warm 

climate of Washington, D.C. 

Ms. Randy Rabinowitz—did I get that close? Want to do my best 

on that—is an attorney from Washington, D.C., and has worked 

with a number of federal agencies. Additionally, Ms. Rabinowitz 

served as counsel to the Committee on Education and Labor from 

1991 to 1994 under another Michigander, Bill Ford. 

Mr. Maury Baskin is a shareholder with the firm Littler 

Mendelson in Washington, D.C., and is testifying on behalf of the 

National Association of Manufacturers and the Associated Builders 

and Contractors. 

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

briefly explain our lighting system. A number of you have had experience with it already, not unlike a stoplight at an intersection. 

You will have 5 minutes to present your testimony. We will try 

to keep it to that as close as possible. 

If it gets to the point where you see a yellow light you know you 

have 1 minute remaining. And when it hits red, wrap up as quickly 

and succinctly as possible. 

After you have testified, members of this committee will have an 

opportunity to ask you questions and again will be held to the 5- 

minute standard also. 

And so, having identified that, let me turn to Mr. Hammock. 

We appreciate you being here. We will recognize you for 5 minutes of testimony. 

STATEMENT OF BRADFORD HAMMOCK, SHAREHOLDER, JACKSON LEWIS, P.C., TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF COMMERCE 

Mr. HAMMOCK. Thank you, Mr. Chairman, Ranking Member 

Courtney. It is a pleasure to be here. Thanks for inviting me to talk 

on this very important issue. 

As the chairman recognized, my name is Brad Hammock, and I 

manage the workplace safety and health practice group at the law 

firm of Jackson Lewis. And today I am appearing on behalf of the 

U.S. Chamber of Commerce. 

Before coming to Jackson Lewis in 2008 I spent 10 years at the 

Department of Labor in the Office of the Solicitor’s Occupational 

9 

Safety and Health Division working on various matters on behalf 

of OSHA, including OSHA’s promulgation of the ergonomics program management standard and the employer payment for PPE 

standard. 

I also worked closely with the agency on various non-regulatory 

initiatives—guidance, documents, variances, letters of interpretation, the things that we are going to be talking about during today’s hearing. 

As a result of my experience in the Solicitor’s Office, I am very 

familiar with how far OSHA can go in issuing guidance. Today I 

want to talk about how OSHA has decided to push out new policies, and in some cases new requirements, without bothering to follow the requirements of rulemaking or involving those who would 

be affected by these changes. 

We call these actions sub-regulatory because they exist at a 

lower level in the hierarchy of activities, but they still have significant impacts. By using sub-regulatory actions, OSHA has avoided 

having to justify its actions or do any sort of impact analysis. It has 

also avoided having to take comments from those parties that 

would object. 

The following are examples where OSHA has used sub-regulatory actions that resulted, may result, or would have resulted in 

substantive changes to regulations, policies, or employer obligations. 

On October 19, 2010 OSHA published in the Federal Register a 

proposed new interpretation of the term ‘‘feasible’’ as it applies to 

administrative and engineering controls under the noise exposure 

standard. Under the new interpretation, administrative and engineering controls would have been considered economically feasible 

if, quote—‘‘implementing such controls will not threaten the employer’s ability to remain in business,’’ unquote. 

An independent economic analysis concluded that the potential 

impact of this proposal on employers would have been more than 

$1 billion. OSHA did no economic analysis, however, nor did OSHA 

submit it to OIRA for review. 

Imagine, an agency puts out a new policy with a predicted impact on employers of more than $1 billion and never substantively 

consults the White House. Fortunately, once the impact of this nonregulatory change became known to affected stakeholders and others in the administration, OSHA withdrew it. 

On February 21, 2013 OSHA issued a letter, as the chairman referred to, saying that a union representative is permitted to accompany an OSHA inspector during a walk-around inspection at a nonunion workplace. This dramatic reversal in policy opens the door 

for unions or other organizations to convert OSHA inspections from 

being focused on workplace safety to being part of these outside organizations’ broader organizing campaigns. And I will let Mr. 

Baskin discuss this letter in more detail. 

On March 12, 2012 OSHA issued a memorandum to regional administrators outlining four scenarios that would constitute violations of protections for whistleblowers. Among the scenarios is one 

where employers implement a safety incentive program that rewards employers based on maintaining a low rate of injuries or fatalities. The problem is that incentive programs are not mentioned 

10 

anywhere in the statute, regulations, or any place giving OSHA authority to impose this restriction. 

The issue of what incentive programs work in what work environments and cultures is a complicated one. If there were ever an 

example of a policy issue that would benefit from robust stakeholder participation it is this one. The appropriate way for OSHA 

to proceed on this is through a rulemaking, not through issuance 

of various policy documents. 

On December 27th of last year OSHA issued a memorandum to 

the regional administrators instructing them on how to enforce 

combustible dust requirements in the new GHS regulation. The 

problem with this is that OSHA does not have a definition for combustible dust. Indeed, they still list a rulemaking on their agenda 

where such a definition will be developed. 

To have a combustible dust hazard several conditions have to 

come together and they are all unique to the specific material in 

question. Combustible dust is a hazard that is created by how 

something is used. The GHS regulation requires upstream producers and importers to anticipate all the various circumstances 

and conditions that will be present when something is used downstream and to predict whether there will be a combustible dust 

hazard associated with these conditions. 

The net effect of OSHA’s memorandum is to codify a variety of 

concepts in a de facto regulation without subjecting them to any of 

the critical questions and processes of an actual rulemaking. 

And finally, last October OSHA posted on its Web site the annotated permissible exposure limits, or annotated PELs table, comparing OSHA’s permissible exposure limits with various other sets 

of limits. In doing so, OSHA is being openly dismissive of its own 

standards, which is not what guidance is supposed to do. Guidance 

is supposed to help employers comply with OSHA’s requirements. 

Mr. Chairman, OSHA has broad statutory authority to promulgate new standards and regulations. The rulemaking requirements 

in the OSH Act and other relevant statutes are there for good reasons. 

This OSHA, however, has aggressively pushed out new policies, 

imposing substantive changes on employers without satisfying 

these requirements. These actions undermine the credibility of the 

agency and the respect it should have, thus interfering with the 

agency’s mission of working to improve workplace safety. 

Thank you, Mr. Chairman. 

[The statement of Mr. Hammock follows:] 

Prepared Statement of Bradford Hammock, Shareholder, Jackson Lewis, 

P.C., Testifying on Behalf of the U.S. Chamber of Commerce 

Good morning, I am Brad Hammock, and I manage the Workplace Safety and 

Health Practice Group at the law firm of Jackson Lewis. Today I am appearing on 

behalf of the U.S. Chamber of Commerce. Jackson Lewis is a member of the Chamber and I participate in its Labor Relations Committee and OSHA Subcommittee. 

Introduction 

Before coming to Jackson Lewis in 2008, I spent 10 years at the Department of 

Labor in the Office of the Solicitor’s Occupational Safety and Health Division, working on various matters on behalf of OSHA. I worked specifically on OSHA’s regulatory program, including serving as Counsel for Safety Standards for the last few 

years of my tenure there. 

11 

When I originally joined the Department during the administration of President 

Clinton, I spent most of my first few years working with OSHA to promulgate its 

Ergonomics Program Management standard. During my career, I also assisted 

OSHA in finalizing major regulatory initiatives such as the Employer Payment for 

PPE standard, OSHA’s update to its electrical utilization standard, and others. 

Of course, I also worked closely with the agency on various non-regulatory initiatives during my tenure with OSHA—guidelines, variances, letters of interpretation. 

I helped produce OSHA’s ergonomics program guidelines and other compliance assistance materials. 

As a result of my experience in the Solicitor’s office I am very familiar with how 

far OSHA can go in issuing guidance. Generally speaking, ‘‘guidance’’ is anything 

short of a full regulation. Most importantly, OSHA cannot make new policy or create new obligations through guidance, and yet, in the examples I will describe, 

OSHA has repeatedly crossed that line. 

Today I want to talk about how OSHA has decided to push out new policies and 

in some cases new requirements, without bothering to follow the requirements of 

rulemaking or involving those who would be affected by these changes. 

We call these actions ‘‘subregulatory’’ because they exist at a lower level in the 

hierarchy of activities, but still have significant impacts. Subregulatory actions are 

substantive changes without transparency, input from affected parties, or accountability. They can include guidance documents like OSHA interpretations, new compliance directives, or memoranda to field staff. By using this approach, OSHA has 

avoided having to justify its actions or do any sort of impact analysis. It has also 

avoided having to take comments or any input from those parties that would object. 

The agency has also avoided having to get clearance from relevant offices in the Department of Labor or the administration that normally serve as a check on OSHA 

going too far. 

These are executive dictates which are harder to challenge than regulations. The 

difficulty in challenging them is one of the key reasons that OSHA is not supposed 

to create new policy this way; accountability is at the heart of our system of government and if an agency is allowed to implement new policy in this manner, no less 

than the rule of law will be undermined. 

The following are examples where OSHA has used subregulatory actions that resulted, may result, or would have resulted, in substantive changes to regulations, 

policies, or employer obligations. 

Examples of Subregulatory Actions 

• Proposed Interpretation of ‘‘Feasible’’ Under Noise Exposure Standard 

On October 19, 2010, OSHA published in the Federal Register a proposed new interpretation of the term ‘‘feasible’’ as it applies to administrative and engineering 

controls under the noise exposure standard. Currently, OSHA’s enforcement policy 

gives employers considerable latitude to rely on personal protective equipment (such 

as ear plugs or ear muffs) when noise protection is required rather than forcing employers to use engineering (such as sound dampening or other technology) controls, 

or administrative controls (such as use of regulated areas). 

Under the new interpretation, administrative and engineering controls would 

have been considered economically feasible if ‘‘implementing such controls will not 

threaten the employer’s ability to remain in business,’’ in other words, anything that 

would not put the business out of business would have been considered ‘‘feasible.’’ 

An independent economic analysis concluded that the potential impact of this proposal on employers would have been more than $1 billion. Because this was styled 

as only a reinterpretation, OSHA did no economic analysis. 

The Chamber objected that such a major change warranted a full rulemaking 

rather than a mere reinterpretation without any of the protections associated with 

the regulatory process. This example is the exception in that OSHA published it in 

the Federal Register, but since it was only an interpretation, there were none of the 

usual elements of a rulemaking such as analyses of how much it would cost or the 

impact on small businesses. There was also no guarantee that any comments submitted would have had an impact or that OSHA would respond to them as with a 

proposed regulation. As this was merely an interpretation and not a rulemaking, 

OSHA also never bothered to submit it to the Office of Information and Regulatory 

Affairs for review. 

Imagine—an agency puts out a new policy with the predicted impact on employers 

of more than $1 billion and never substantively consults the White House! Fortunately, once the impact of this non-regulatory change became known to affected 

stakeholders and others in the administration, OSHA was forced to withdraw it. 

12 

• Letter of Interpretation Permitting Union Representatives to Accompany an 

OSHA Inspector at Non-Union Workplaces 

On February 21, 2013, OSHA issued a letter of interpretation saying that a union 

representative is permitted to accompany an OSHA inspector during a walk-around 

inspection at a non-union workplace. The LOI was in response to a request from 

the United Steel Workers. 

This dramatic reversal opens the door for unions to convert OSHA inspections 

from being focused on workplace safety to being part of union organizing campaigns. 

The relevant regulations explicitly state that any employee representative ‘‘shall 

be’’ an employee of the employer, unless the OSHA inspectors believe ‘‘good cause 

has been shown’’ to include someone with special expertise who can aid in the inspection. In practice, OSHA has restricted these non-employee third parties to people with specific qualifications such as industrial hygienists or safety engineers. 

OSHA blew right past this narrow exception and context to say that employees can 

now designate any union representative, community activist, or any other third 

party as their representative during OSHA inspections. 

In issuing this LOI, OSHA contradicted the regulations, their own past practice, 

and other internal processes and procedures. And they did this with absolutely no 

input from outside sources except the United Steel Workers who asked for the LOI. 

I would also note that OSHA managed to issue this letter with unusual efficiency— 

the request was made in December 2012 and the letter was issued in February 

2013, barely two months later and spanning the busy holiday season. The alacrity 

with which this letter was issued raises questions in my mind as to whether it was 

fully vetted within the Department prior to issuance. In my experience working inside the Department of Labor, letters of interpretation typically took several months 

and often years to finalize. 

I am submitting, as part of my statement, a letter sent to Assistant Secretary Michaels from the Coalition for Workplace Safety raising detailed objections to this 

LOI. The letter is co-signed by 60 groups. 

• Whistleblower Memorandum Banning Employer Rate-Based Safety Incentive 

Programs 

On March 12, 2012, OSHA issued a memorandum to regional administrators outlining four scenarios that would constitute violations of protections for whistleblowers. Among the scenarios is one where employers implement a safety incentive 

program that rewards employees based on maintaining a low rate of injuries or fatalities. The problem is that incentive programs are not mentioned anywhere in the 

statute, regulations, or any place giving OSHA authority to impose this restriction. 

Despite this utter lack of authority and context, OSHA created a consequence for 

employers who maintain these programs. 

By putting this in a memorandum to the regional administrators OSHA avoided 

possible involvement from those affected by this new policy. They also avoided getting clearance from any other office in the Department of Labor or the administration. The agency decided this was justified without providing any supporting authority, analysis about impact, or indications of benefits. 

For the duration of this administration, OSHA has held the belief that employers 

are using rate-based incentive programs to suppress employees from reporting injuries. OSHA has used a number of ‘‘techniques’’ to try to prove its point, starting 

with its Recordkeeping National Emphasis Program, which also targeted incentive 

programs in the context of enforcement actions. Assistant Secretary Michaels has 

also spoken publicly on OSHA’s concerns with certain safety incentive and bonus 

programs. Rhetorically, the agency has told employers to stop focusing on ‘‘lagging 

indicators’’ such as injury rates. 

And yet, ironically OSHA is actually not encouraging employers to focus on leading indicators, but instead continuing to focus its energy on injury rates. The Department has proudly proclaimed that in corporate wide settlements with employers, they are holding management accountable for safety. This means that they are 

imposing responsibility on these employers for the number of injuries that occur in 

their workplaces—rate based incentive programs by another name. Virtually all of 

the enforcement programs issued by the agency are driven at some level by the reported injury rates of employers. OSHA never considers leading indicators in determining which employers it will inspect. And the agency takes a very narrow view 

of ‘‘success’’ of employers in addressing safety—and that success is solely based on 

lagging indicators such as injury rates. 

The issue of what incentive programs work in what work environments and cultures is a complicated one. Incentive programs work within the broader rules and 

policies of establishments and cannot be pigeon-holed as good or bad in the abstract. 

13 

If there were ever an example of a policy issue that would benefit from robust stakeholder participation, it is this one. 

If OSHA feels so strongly that rate-based incentive programs are being used to 

suppress injury reporting, the only way for OSHA to proceed is through a rulemaking where the agency cites to the authority they have to issue such a regulation, 

provides a clear and understandable definition of what they want to prohibit, provides data and supporting materials showing that these programs are a problem, 

and of course conducts the necessary feasibility, cost, benefit, and impact on small 

business analyses required by the Occupational Safety and Health Act of 1970 and 

other relevant statutes. This is bad policy, badly made. 

• Memorandum to Field Staff on Enforcing Combustible Dust Requirement 

Under GHS 

On December 27 of last year, OSHA issued a memorandum to the regional administrators instructing them on how to enforce the combustible dust requirement in 

the new Globally Harmonized System for Classification and Labeling of Chemicals 

(GHS) regulation that modified the old Hazard Communication Standard (HCS). 

The problem with this is that OSHA still does not have a definition for combustible 

dust—indeed they still list a rulemaking on their agenda where such a definition 

will be developed. Despite this obvious difficulty, OSHA inserted into the final 

version of the GHS regulatory language requiring manufacturers and shippers of 

materials that could create a combustible dust hazard to label their products and 

for users of these products to train their employees on the hazard. Not only is this 

regulatory requirement not supported by a clear definition, it was not even included 

in the proposed rule. 

As even OSHA must concede, combustible dust is not a simple hazard, which is 

why they have a specific rulemaking underway to determine how it should be defined and regulated. To have a combustible dust hazard, several conditions have to 

come together and they are all unique to the specific material in question. Combustible dust is also unlike any other hazard covered by the GHS/HCS, as it is not intrinsic to the substance. Under the GHS/HCS, chemicals and substances are classified by their intrinsic characteristics—an acid is always an acid, a corrosive is always a corrosive, something flammable like gasoline is always flammable. But combustible dust is a hazard that is created by how something is used—a block of wood 

does not present a combustible dust hazard until it is cut and creates sawdust in 

sufficient quantity, and an ignition source like a spark is present to set off an explosion. The GHS regulation requires upstream producers and shippers to anticipate 

all the various circumstances and conditions that will be present when something 

is used downstream and to predict whether there will be a combustible dust hazard 

associated with these conditions. 

To get around the fact that OSHA does not have a properly developed definition 

of combustible dust, along with other criteria necessary to enforce this provision, 

OSHA’s memorandum relies on various outside standards and protocols such as 

those from the American Society for Testing and Materials (ASTM) and the National Fire Protection Association (NFPA). OSHA also references an earlier National 

Emphasis Program that had an ‘‘operative definition.’’ But none of these have been 

properly reviewed or tested so that OSHA can rely on them or cite them for enforcement purposes. The net effect of this memorandum is to codify these various concepts in a de facto regulation without subjecting them to any of the critical questions and processes of an actual rulemaking, least of all public comment. In addition, these standards are only available by purchasing them from the groups that 

produce them. OSHA is expecting companies to go buy these standards. 

OSHA violated the requirements for issuing a standard when they included the 

combustible dust requirement in the final text without proposing it and without 

having an adequate definition or appropriate support for how this hazard is to be 

handled. And now they have compounded that error by relying on outside standards 

and protocols without providing any opportunity for comment or demonstrating that 

these have been subjected to the necessary questions of feasibility and reliability. 

Ironically, OSHA already has the necessary rulemaking underway where all of these 

issues should be handled. 

OSHA’s inclusion of combustible dust in the GHS is the subject of a legal challenge to this rule. 

The memorandum is attached as an appendix to my statement. 

• Guidance on Alternative Exposure Standards Other Than OSHA PELs 

Last October, OSHA posted on its website the Annotated Permissible Exposure 

Limits, or annotated PELs tables. OSHA’s goal is to promote the use of these lower 

14 

limits even though employers will only be held accountable for complying with 

OSHA’s official limits. 

The annotated PELs tables provide a side-by-side comparison of OSHA PELs for 

general industry to the California Division of Occupational Safety and Health PELs, 

the National Institute for Occupational Safety and Health recommended exposure 

limits, and the American Conference of Governmental Industrial Hygienist threshold limit values. OSHA is being openly dismissive of its own standards which is not 

what guidance is supposed to do; guidance is supposed to help employers comply 

with OSHA’s requirements. 

The Chamber agrees that many of OSHA’s PELs are out of date and need to be 

reexamined. We are concerned however, by the way OSHA has chosen to promote 

these alternative limits. While Assistant Secretary Michaels has said OSHA is reluctant to use the General Duty Clause to enforce these other limits, the threat still 

exists. One criterion for using the General Duty Clause is that OSHA must prove 

that a given hazard is well understood. These new tables showing the alternative 

exposure limits could be used by OSHA to satisfy its burden. 

Were OSHA to enforce these alternative standards through the General Duty 

Clause, it would be the equivalent of another de facto rulemaking where the agency 

would be codifying standards that have not been put through the rigors of rulemaking, including notice and comment and reviews of economic and technological 

feasibility. 

Once again, if OSHA believes that new health standards are necessary, they have 

a process available to them to make those happen. 

Conclusion 

OSHA has broad statutory authority to promulgate new standards and regulations. The rulemaking requirements in the OSH Act and the other relevant statutes 

are there for good reasons—to make sure the agency only implements new policies 

and obligations after it has demonstrated the need, provided adequate supporting 

data, conducted the necessary reviews for impacts and feasibility, and provided interested parties ample opportunity to submit comments and other forms of input. 

This OSHA, however, has aggressively pushed out new policies, imposing substantive changes on employers, without satisfying these requirements. For any administration this would be a troubling pattern. For an administration that came 

into office promising to be the most transparent, this is both troubling and hypocritical. These actions undermine the credibility of the agency and the respect it 

should have, thus interfering with the agency’s mission of working to improve workplace safety. 

15 

APPENDIX


86487-2.eps

June 12, 2013 

The Honomble David Michaels, PhD, MPH 

Assistant SecretaI)' 

Occupational SaJety and Health Administmtion 

United States Department of Labor 

200 Constitution Avenue, NW, Room S23 15 

Washington, DC 20210 

By electronic transmission 

RE: Letter of Interpretation Endorsing Union Representatives on Walk-Around 

InSIJcctions at Non-U nion Workplaces 

Dear Dr. Michaels: 

OSHA's Februal)' 21 , 2013 letter of interpretation addressed to Mr. Steve Sallman of the 

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service 

Workers International Union (LOI) that explicitly endorses union representatives and other nonemployee third parties accompiUlying OSHA inspectors on walk -around inspections at non-union 

workplaces is vel)' alanning. It has quickly become a matter of high concern among members of 

the Coalition for Workplace SaJety, their employers, and attorneys representing employers on 

OSHA issues. Similarly, the LOI is also genemting significant anxiety among companies, and 

the attorneys representing them, who are concerned about being targeted by unions in either the 

organizing or contract negotiating contexts. In addition to being inconsistent with the statute and 

regulations, tltis letter of interpretation is bad policy implemented tllfough a non-transparent 

closed process. 

The ovenvhelming consensus is tlmt tltis wiU underntine the saJety focus of these 

inspections and turn them into opportunities for unions or other parties with agendas contml)' to 

the employer to enhance campaigns against the employer, gain entl)' to the employer's premises 

to develop more information for the campaign, or even glean proprietal)' information. It will 

place OSHA in the middle of organizing drives or labor contract negotiations and will put the 

Compliance SaJety and Healtll Officer (CSHO) in an untenable position: either helshe rejects tile 

employee's request to have a union representative on the walk-around, contral)' to tltis letter of 

interpretation, or helshe pennits it, wltich would make OSHA appear to be taking sides in an 

organizing campaign contrary to the Field Operations Manual. 

The CWS is comprised of associations and employers who believe in improving workplace safety 

through cooperation, assistance, transparency. clarity, and accountability. 

Marc Freedman mfreedman@uschamber.comIJosh Ulman josh@ulmanpolicy.com 

Sean Thurman thurman@abc.ora / Amanda Wood 8wDod@nam.ora 

W\tVW. workingforsafetv.com 
16 


86487-3.eps

Other complications of tllis policy are making sure the union representative, commmlity 

orgallizer, or third party has adequate workplace safety protection, does not present a risk to the 

safety or security of the facility, and does not have access to confidential business information. 

Many workplaces have explicit policies preventing anyone not specifically authorized from 

entering tlle workplace. Is the employer expected to provide PPE for a non-employee to 

accompany a CSHO on a walk-around inspection? How is the employer to know whether this 

individual has adequate knowledge of the potential hazards that may be present? Who is 

responsible if the tllird party non-employee is injured? Who is responsible for conducting 

background screening of the tllird party for security risk, criminal background, and otller factors, 

especially in facilities that are subject to Department of Homeland Security regulation? Since 

tllere will be no workers' compensation coverage for the non-employee tllird party, can the 

employer require the tllird party to sign a waiver holding the employer harmless for any injury or 

other consequence of being in the workplace? 

While the statute and regulations permit employees to designate a representative to 

accompany the OSHA inspector, they do so in the context of the representatives being included 

"for the purpose of aiding such inspection." (29 U.S.c. 657 (e)). OSHA's letter would pennit 

union representatives, or other tllird parties, to accompany OSHA inspectors on walk-around 

inspections at any wOlkplace, including those without a union, for reasons far beyond tltis 

context, indeed without any relationsltip to tllis context. 

OSHA's regulations are clear that the employee representative must also be an employee 

of the company: "The representative(s) authorized by employees shall be an employee(s) of the 

emplover." (29 CFR 1903.8(c), emphasis added). The only circumstances underwllich a nonemployee would be included in the inspection process would be "if in the judgment of the 

CSHO, good cause has been shown why accompaniment by a tllird party who is not an employee 

of the employer (such as an industrial hygienist or a safetv engineer) is reasonablv necessarY to 

the conduct of an effective and thorough phvsical inspection of the workplace, such third party 

may accompany the Compliance Safety and Health Officer during the inspection. " (29 CFR 

1903.8 (c), emphasis added). In the more than 40 years since 29 CFR 1903.8 was issued', during 

wltich time OSHA has conducted approximately 30,000 - 40,000 inspections per year, the 

agency has consistently followed a practice of bringing in (neutral) tltird parties to participate in 

inspections only when that tltird party had special expertise tllat was beyond what the CSHO 

possessed and was "necessary to the conduct of an effective and tllOrough physical inspection of 

the workplace." These tltird parties were selected by OSHA, not the employees, to be part of the 

inspection. 

The lelter of interpretation ignores the explicit requirement indicated by "shall be an 

employee,,2 and focuses on the narrow circumstances in which non-employees have been used 

by OSHA, However, the letter expands tllOse circumstances well beyond the context of 

I See, 36 Fed. Reg. 17850, September 4, 1971. 

2 The letter of interpretation dismisses this by noting that "the regulation acknowledges that most 

employee representatives will be employees oflhe employer being inspected." "Most employee representati ves will 

be employees" is not at all consistent with the regulatory mandate that employee repre sentative s "shall be 

employee(s) of the employer." The LO! language suggests that whether employee representatives arc also 

employees of the employer is a matter of chance ruther than a requirement. 
17 


86487-4.eps

providing for someone who can aid the inspection, and puts tlle selection in the hands of the 

employee rather than OSHA, wltile also dimimslting the CSHO's ability to control who is 

involved in the inspection, tllereby substantively altering tlle meamngof29 CFR 1903.8(c): 

Therefore, a person affiliated with a umon without a collective bargaimng agreement or 

witll a commnrllty representative can act on behalf of employees as a walkaround 

representative so long as the individual has been authorized by the employees to serve as 

their representative .. 

The Secretary's regnlations, 29 C.F.R. § 1903.8, qualify the walkaround right somewhat, 

but only in order to allow OSHA to manage its inspections effectively. 

(Letterto Steve Sallman, February 21 , 2013, page 2, emphasis added.) 

Finally, the Field Operations Manual gives CSHOs explicit instructions to avoid creating 

the impression that OSHA is taking sides in any labor dispute during unprogrammed inspections 

such as those occurring because of an accident, fatality or complaint: "During the inspection, 

CSHOs will make everv effort to ensure that their actions are not intemreted as supporting eiU,er 

partv to the labor dispute." (Field Operations Manual, Chap. 3, (lV)(H)(2)(c), emphasis added). 

Allowing umon representatives to accompany a CSHO during an inspection triggered by a 

complaint, such as what happens during orgamzing campaigns and during contract negotiations, 

would be absolutely contrary to tltis instruction. 

The fact tlmt tltis significant change in policy was done through a letter of interpretation 

and not a rulemaking, although it substantively changes the regnlation, means that affected 

parties had no opportumty to provide input, and OSHA had no obligation to present any data or 

evidence demonstrating the need for tltis cl1llllge. Using tltis approach to circumvent the 

protections of the ruiemaking process undennines tltis adlnimstration's claims of transparency 

and openness in its policy setting. 

We understand the letter of interpretation was not reviewed by the Secretary's office, 

wltich also raises questions about whether any office outside of OSHA Imd an opportumty to 

review titis and to consider the problems it will create and the overt bias it exposes. [n addition, 

this letter was issued (but not made public) barely two months after the request was submitted. 

For OSHA to respond so quickly raises questions about whether the agency knew in advance the 

request was being subntitted. 

Accordingly, rather than inappropriately attempting to amend by interpretation a final 

rule to create new rights that are inconsistent with the emphasis on workplace safety that should 

characterize OSHA inspections, and the way the rule has been interpreted and implemented by 

OSHA in tlle well over a ntillion inspections it has conducted over tlle past 42 years, the lelter 

should be withdrawn. If OSHA believes this approach is worth pursuing, the only way for the 

agency to proceed is to engage in a full ruiemaking process to modify 29 CFR 1903.8(c). To 

discuss tins further please contact any of tlle names listed on the first page of this letter. 
18 


86487-5.eps

American Bakers Association 

American Beverage Association 

American Chemistry Council 

Sincerely, 

American Composites Manufacturers Association 

American Council of Engineering Companies 

American Feed Industry Association 

American Foundry Society 

American Petroleum Institute 

American Trucking Associations 

Associated Builders and Contractors 

Associated General Contractors 

Associated Wire Rope Fabricators 

Califomia Cotton Ginners Association 

California Cotton Growers Association 

Can Manufacturers Institute 

Com Refiners Association 

Flexible Packaging Association 

Food Marketing Institute 

Forging Industry Association 

Heating, Air-Conditioning & Refrigeration Distributors International 

Hilex Poly 

Independent Electrical Contractors 

Industrial Fasteners Institute 

Industrial Minerals Association - North America 

Institute of Makers of Explosives 

International Foodservice Distributors Association 

International Franchise Association 

International Liquid Tenninals Association (ILTA) 

LeadingAge 

Motor & Equipment Manufacturers Association 

National Association for Surface Finishing 

National Association of Chemical Distributors 

National Association of Home Builders 

National Association of Manufacturers 

National Association of Wholesaler-Distributors 

National Chicken Council 

National Council of Chain Restaurants 

National Grain and Feed Association 

National Oilseed Processors Association 

National Retail Federation 

National Roofing Contractors Association 

National Stone, Sand & Gravel Association 

National Systems Contractors Association 

National Tooling and Machining Association 
19 


86487-6.eps

National Turkey Federation 

National Utility Contractors Association 

NFIB 

Non-Ferrous Founders' Society 

North American Die Casting Association 

Precision Machined Products Association 

Precision Metalforming Association 

Retail Industry Leaders Association 

Texas Cotton Ginners Association 

Textile Rental Services Association 

U.S. Chamber of COImnerce 

U.S. Poultry & Egg Association 

Western Agricultural Processors Association 

CC: Dominic Mancini, Acting Adlninistrator, Office of Infonnation and Regulatol}' Affairs 

Rep. John Kline, Chainnan, House Conunittee on Education and the Workforce 

Rep. Tim Walberg, Chainnan, Subcommittee on Workforce Protections, House 

COImnittee on Education and the Workforce 

Sen. Lamar Alexander, Ranking Member, Senate Committee on Health, Education, 

Labor and Pensions 

Sen. Johnny Isakson, Ranking Member, Subcommittee on Employment and Workplace 

Safety, Senate Committee on Health, Education, Labor and Pensions 
20 


86487-7.eps

A to Z Index I En espaool l ContilCt Us II'AQs I About OSHA 

OSHA ~~~tte< IIRSSFeeds t! FnntThis f'o,ge DDTe'IS<.e 

Occupational Safety & Health Administration We can Help 

Home Workers Regulations Enforcement Data & Statistics Trai ~ Publications Newsroom 

• Standard Interaetations" Table of Contents 

• Standard Number: 

December 27, 2013 

ME~RANOUM TO REGIONAL ADMINISTRATORS 

THROUGH Dorothy Dougherty 

Acting Deputy Assistant Secretary 

FROM Thomas Galassi, Diredor 

Directorate of Enforcement Programs 

SUBJECT" C!.:Issification of Combustible Dusts under the Revi:;ed Hazard Communic(ltion Standard 

This memorandum provides guidance for compliance safety and health offo::ers (CSHOs) to use in determining whether manufacturers 

or importers have properly classified their prod uctsl for combustible dust hazards under the revised Hazard Communication Standard 

(HCS). This guidance shall be used w hen inSj)eCting manufacturers and importers, usually from referrals concerning inadequate or 

inappropriate labels or SDSs are conducted, not inSj)eCtions of downstream users. Until OSHA addresses these issues through 

rulemaking, CSHOs shall use this document to determine if manuf(lcturers (lnd importers (from now on "c!.:lssifier" ) (Ire in compliance 

with tI1e obl igations of 1910.1200(d) for combustible dust. CSHOs may direct any questions that arise in applying t his guidance to the 

Directorate of Enforcement Programs or the Salt Lake Technical Center (SLTC). 

Background 

On March 26, 2012, OSHA amended t he HCS to align with the Globally Hannonized System for the Classifo::ation and Label ling of 

Chemicals (GHS). However, the GHS does not contain a classification for combustible dust hazards, and to maintain coverage of this 

hazard under the HCS, OSHA amended the standard's definition of "hazardous chemical" to include "combustible dU~." Noting 

ongoing efforts at the United Nations (UN) and in the Agency's own combustible dust rulemaking, OSHA did not adopt a definition of 

the tenn combustible dust in the final rule. Rather, as an interim measure, OSHA stated that it had already provided guidance on 

combustible dust, including the Combustible Dust National Emphasis Program (NEP), which "includes an opera~ve defi nition." 77 FR 

17705. OSHA a lso noted that a number of volu ntary consensus stimdards exist, "particuiarty those of the NFPA," which provide further 

guidance.ld. 

Compliance Guidance 

Under the HCS, classifrers are required to "evaluate chemicals produced in their workpiaces or imported by them to classify the 

chemicals in accordance w ith this section." 29 CFR 1910.1200(dXI). Any such classification must "identify and consider the full range of 

avaiiable scientific literature and other evidence concerning the potential hazards." 1910.1200(dX2). HowINer, there "i& no 

requirement to test the chemical to determine how to classify its hazards." Id. The classifrer must conwer not only t he 

hazards of the chemic(ll in the form it is shipped, but also consider the h~zards that arise under normal conditions of use and 

foreseeable emergencies. When performing inspections of ciassifiers, CSHOs must ensure that the requirement to consider normal 

conditions of use and foreseeable emergencies is followed by tI1e classifier. 

The combustible dust NEP defines combustible dust as a solid combustible material, composed of distinct pieces or particles, that 

"presents a fire or defl<rgration hazard when suspended in air or some other oxidizing medium over a range of concentrations, 

regardle1;s of particle size or sh(lpe." A numlter ofwluntiuy standards prepared by the Nation(ll Fire Protection ASSClCiation (NFPA), FMGlobal, and ASTM International suggest various tests, data, and criteria that may be used to determine whether a material presents a 

combustible dust hazard. 

fJ.s noted above, classifiers must consider any hazards posed by the prod uct in nonnal conditions of use and foreseeable emergencies, 

and must co ~der the fu ll range of avai!.:lble information about those haZilrds. For combustible dusts, often the best information is 

actual experience w ith the product. If the classifier knows that its product has been inwlved in a deflagration or dust explosion event, 

the classifier should ciassify the product as a combustible dust unless t he classifier can show that t he conditions surrounding the INent 

are not expected in nonnal conditions of use or foreseeable emergencies. In the absence of information on a defiagration or dust 

e>:+>losion INent, classifiers may use one or more of the following approaches in determin ing whether SlJch hazards exist, depending on 

the infonnation that is available 

I. Laboratory Testing. 

All of tI1e voluntary standards recognize that reliable test data for a material, based on scientifo::a lly validated tests, is strong 

INidence for determining w hether a material presents a combustible dust hazard and should be used for classification if 

available. Reliable screening tests, such as that described in ASTM E12261, showin g a po~tjve nonnalized rate of pressure rise 

(Kst), and tests for Class II dusts may be used to determine whether a material presents a combustible dust hazard, and 

classifiC<ltion should be based on such data ifit is avai!.:lble. Many voluntary standards recognize the ASTM E1226 and E151Si 

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86487-8.eps

methods as reliable means to establish a combustible dust hazard. When performing inspections of classifiers CSHOs must 

obtain and evaluate any appropriate and available test results for the product to ensure the classification accurately reflects the 

hazards of the chemical. 

OSHA's combustible dust NEP describes its own test method for determining the Kst, and the NEP treats a dust as presenting the 

hazard when the Kst is greater than zero. In add ition, the NEP describes OSHA's method for determining whether a dust is a 

Class II dust for purposes of the electrical standard, which is also an indication th at a dust presents a combustible dust hazard. 

If laboratory data (e.g., company-generated data or regulatory body test results for the product) are available and the classifier 

chooses not to classify based on this data, the CSHO must ensure that classifier can adequately explain why this data was not 

used in the classification. 

2. Published Test Results. 

NFPA 512 , 5g.§. ,484Z , and 49g§. publish lists of test results for various materials. Though the NFPA documents caution care in 

the use of these results because the extent of explosibility can vary even for different dusts of the same solid material, they 

nonetheless can "aid in the determination of the potential for a dust hazard to be present in [an] enclosure." NFPA 51, A.5.2.1 

(2013). 

As a part of a poster about combustible dust hazards, OSHA has published a list of combustible materials based on the 

information provided in the NFPA standards (https:I/WWvV.osha.qov/Publications/combustibledustposter.pdO. In addition, there 

are public databases of dust explosibility characteristics that may be consulted, such as the "Gestis-Dust-EX" database 

maintained by the Institute for Occupational Safety and Health of the German Social Accident Insurance 

(http://www.dquv.de/ifa/enlgestis/expl/index.jsp). 

In the absence of any test data for a particular product, the classifier may rely on published test data for the classification of 

dusts if the data is for a material that is substantia lly similar to the product under review. Where the classifier has not classified 

its product as presenting a combustible dust hazard and the CSHO finds positive published data for a materia l that appears 

similar, the CSHO must ensure that the classifier has an adequate explanation for discounting the data. 

3. Dust Particle Size. 

For many years, NR'A 65~ defined combustible dust as a "finely divided solid material 420 microns or smaller in diameter 

(material passing a U.s. No. 40 Standard Sieve) that presents a fire or explosion hazard when dispersed and ignited in air." 

OSHA used this definition in earl ier combustible dust guidance, such as its 2005 safety and health information bulletin, and uses 

a similar criterion in defining "fugitive grain dust" in its Grain Handling Facilities Standard (see 29 CFR 191O.272(c». Some NFPA 

standards still use a size criterion in defining combustible dust, such as NFPA 51 (2013) and NR'A 704 (2012)12 . 

Other NFPA standards, however, have changed their combustible dust definition to remove the size criterion, but discuss size in 

their explanatory notes. I n general the notes concerning particle size state that dusts of combustible material with a particle size 

of less than 420 microns can be presumed to be combustible dusts. However, certain particles, such as fibers, flakes, and 

agglomerations of smaller particles, may not pass a No. 40 sieve but still have a surface-area-to-volume ratio sufficient to pose a 

deflagration hazard. In the most recent revisions, the explanatory notes in many of the NFPA standards have moved from a 420 

to 500 micron size threshold . See NR'A 484 (2013), NR'A 554 (2013), NFPA 664il (2012) and FM Global Data Sheet 7-76 

(2013# . 

Where there is no test data, or if the testing is inconclusive, classification may be based on particle size, if particle size 

information is available. I f the material will burn and contains a sufficient concentration of particles 420 microns or smaller to 

create a fire or deflagration hazard, it should be classified as a combustible dust. A classifier may, if desired, instead use the 500 

micron particle size (U.s. Sieve No. 35) threshold contained in more recent NFPA standards. Care must be used with this 

approach where the particles are fibers or flakes, or where agglomerations of smaller particles may be held together by static 

charges or by other means that would prevent the dust from passing through respective sieves No. 40 and 35, but would still 

presen t a fire or deflagration hazard. 

Summary 

In summary, when conducting inspections of classifiers, CSHOs should determine how classifiers have handled the available evidence 

about a product's explosibility. Where there is evidence that the product has actually been involved in a deflagration or dust explosion 

event, it should be classified as a combustible dust. Sim ilarly, where results of accepted tests on the product are available, the dust 

should be classified in accordance with those results. Finally, in the absence of actual events or test data on the product, the classifier 

may either rely on the published test data on similar materials or use the available information about particle size to determine the 

combustible dust hazard of the product. 

This guidance is not intended to be exclusive, and classifiers may have other reliable methods to establish whether their product does 

or does not present a combustible dust hazard in normal conditions of use and foreseeable emergencies. CSHOs should consider such 

claims carefully, and in such cases consultation with the Directorate of Enforcement Programs and/or the SL TC is strongly encouraged. 

1 The Hazard Communication Standard's classification requirements apply to "chemicals," 29 CFR 1910.1200(d)(l), which is defined as 

"any substance or mixture of substances," 1910.1200(c). The word "product" in this memorandum is intended to be understood as a 

synonym of "chemical" as defined in the standard. 

2 Wh ile the GHS requires dust explosion hazards to be noted on the safety data sheet, it does not include a chapter or classification 

criteria for combustible dusts. 

3 ASTM E1226: Standard Test Method for Explosibility of Dust Clouds. 

4 ASTM E1515: Standard Test Method for Minimum Explosible Concentration of Combustible Dusts. 
22 

Chairman WALBERG. I thank the gentleman. 

Now I recognize Mr. VanderWal for your 5 minutes of testimony. 

STATEMENT OF SCOTT VANDERWAL, PRESIDENT, 

SOUTH DAKOTA FARM BUREAU 

Mr. VANDERWAL. Mr. Chairman, members of the committee, 

thank you very much for the invitation, and I appreciate the opportunity to provide testimony on a matter of great importance this 

morning to family farms—small family farms. 

My name is Scott VanderWal. I am a third-generation corn and 

soybean farmer at Volga, South Dakota. Our state office is here, 

Mr. Chairman, so that is where you got that information. 

We also operate a beef, cattle feedlot where most of our corn is 

fed to the cattle. We ourselves have storage facilities for corn and 

soybeans for later feeding and later sale. 

I am pleased to offer this testimony on my own behalf this morning as well as that of the American Farm Bureau, where I sit on 

the board of directors. 

Throughout history Congress has worked to preserve and protect 

the unique nature of the ag sector and family farming operations. 

They have done this in a number of instances, but one in particular 

has been consistently assuring that OSHA does not spend time, energy, and public resources investigating routine activities on small 

family farms. 

Specifically, since 1976 in every appropriations bill Congress has 

exempted small farming operations that did not maintain a temporary labor camp and that employ 10 or fewer employees from 

OSHA enforcement regulations. 

Despite this clear direction from Congress, OSHA has drafted investigator guidance, conducted investigations, and penalized farming operations in complete disregard for a law that has been on the 

books for nearly 4 decades. 

In a June 2011 memo OSHA declares that post-harvest activities, 

including drying and fumigating grain, are subject to all OSHA requirements. OSHA goes further to say that small farm employers 


86487-9.eps
23 

mistakenly assume that the appropriations rider applies regardless 

of the type of operations performed on the farm. 

Farm Bureau agrees that there is a mistake here, but it is not 

with the small farm employers. Instead, OSHA mistakenly assumes what is integral to a farming operation and has thereby circumvented clear congressional direction. 

OSHA appears to take the position that any activity that takes 

place after a kernel is severed from a stalk is subject to OSHA regulation and enforcement. To anyone familiar with agriculture, this 

is simply an illogical position. Post-harvest activities, like drying, 

are necessary to prepare crops for sale and are fundamental in any 

farming operation. 

The purpose in planting, cultivating, and harvesting the crop is 

to sell the crop. Farmers are not merchandisers, dealers, or grain 

warehousers. Drying and storage facilities are part of our marketing programs. 

If we were to sell all of our grain at harvest when prices are generally at the low for the year we would be missing out on profit 

opportunities. That is not good stewardship. To be totally honest 

with you, I simply cannot wrap my mind around the concept that 

grain bins are not a vital part of a farm operation. 

Now, it is important to note that OSHA’s jurisdiction is over the 

safety of employees. That has to be job number one. OSHA’s authority only stems from the number of employees a farm has and 

whether there is a labor camp on the farm. The amount of grain 

stored is unrelated to the authority over small farming operations. 

Congressional intent is clear, and Congress has again reiterated 

the small farm exemption in the fiscal year 2013 Appropriations 

Act report. The report reinforces the small farm exemption and 

suggests that OSHA should work with USDA before moving forward with any attempts to redefine and regulate post-harvest activities. 

Additionally, both the Senate and the House, including members 

of this subcommittee, sent letters to OSHA directing the agency to 

stop enforcement under the 2011 memo. We are grateful that Congress included the report language and sent these letters, and to 

any persons in here who were involved in that, we certainly appreciate that and want to thank you. 

We also encourage OSHA to meet and discuss potential safety alternatives with Farm Bureau and the industry at large. 

Farm Bureau remains committed to grain bin and farm safety in 

general. We work every day to ensure that everyone who is working on our farms is trained and safe, and in most of these cases 

they are family members, so obviously family farmers are going to 

make sure that their children are trained and safe. 

In South Dakota Farm Bureau our women’s leadership team had 

a scale-model grain bin built, and it is about this high off the floor, 

and they cut it in half and put Plexiglas on one side so they can 

fill it with corn and then they put little plastic figures to represent 

people in there, and as the grain flows out of the bin it shows how 

those plastic figures are pulled down into the grain and suffocated. 

And it is quite an eye-opening experience when you actually see it. 

Had OSHA reached out to Farm Bureau and others in the industry we would have been eager to work with them to develop addiVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
24 

tional safety training programs if necessary to prevent injury. However, rather than working cooperatively with industry, OSHA apparently reached the conclusion that it was preferable to penalize 

small farmers through enforcement. 

Circumventing a clear legislative directive is not an acceptable 

solution. We remain committed to working with OSHA, USDA, and 

the industry as a whole in doing the utmost to ensure worker safety on all farms. 

At the same time, we urge Congress to take action that prevents 

this type of regulatory overreach. Safety is priority number one, 

but this is not the way to achieve it. 

Thank you for the opportunity to testify today, and I would be 

glad to take any questions. 

[The statement of Mr. VanderWal follows:] 

Prepared Statement of Scott VanderWal, President, 

South Dakota Farm Bureau Federation 

Mr. Chairman and members of the committee, thank you for this opportunity to 

provide testimony to the subcommittee on a matter of great importance to small 

family farms. My name is Scott VanderWal. I am a third-generation corn and soybean farmer in Volga, South Dakota. I am pleased to offer this testimony on my 

own behalf, as well as that of the American Farm Bureau Federation (AFBF), where 

I sit on the board of Directors. We appreciate the subcommittee’s interest in overreaching enforcement activity of the Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) against agricultural producers. From increased delays in the H-2A visa program and the withdrawn overreaching child 

labor proposal, agriculture has seen an increase in the amount of DOL investigation 

in recent years. We believe many of these investigations are in areas where agency 

authority is limited, if not entirely restricted, by Congress. 

Congress has historically worked to preserve and protect the unique nature of the 

agricultural sector and family farming operations. They have done this in a number 

of instances, but one in particular has been in consistently assuring that OSHA does 

not spend time, energy and public resources investigating routine activities on small 

family farms. Specifically, in the 1976 Labor-HHS Appropriations bill—and in every 

appropriations bill thereafter—Congress has exempted small farming operations 

from OSHA enforcement actions that do not maintain a temporary labor camp and 

that employ 10 or fewer employees. Despite this clear direction from Congress, 

OSHA has drafted investigator guidance, conducted investigations and penalized 

farming operations in complete disregard of a law that has been on the books for 

nearly four decades. 

A June 2011 Memorandum by OSHA Director of Enforcement Programs declares 

that all activities under SIC 072—including drying and fumigating grain—are subject to all OSHA requirements. OSHA goes further to say: ‘‘Many of these small 

farm employers mistakenly assume that the Appropriations Rider precludes OSHA 

from conducting enforcement activities regardless of the type of operations performed on the farm.’’ Farm Bureau agrees that there is a mistake here, but it does 

not lie with small farm employers. Instead, OSHA ‘‘mistakenly assumes’’ what is integral to a farming operation and has thereby circumvented clear congressional direction. 

OSHA appears to take the position that any activity that takes place after a kernel is severed from the stalk would be considered post-harvest activities, such as 

storing and drying grain for market, and thus placing those activities under OSHA 

regulation. This is an illogical position. Post-harvest activities are necessary to prepare crops for sale and are fundamental in any farming operation. Merely possessing storage capacity for grain and utilizing that storage capacity does not create 

a separate and distinct operation from the farming operation itself. The purpose in 

planting, cultivating and harvesting the crop is to sell the crop. Practically speaking, 

it is necessary to store and prepare the grain for sale. Most farming operations, if 

not all, have to store—even if for short periods of time—the commodity in order to 

get it to market. Thus, if the operation has fewer than 10 employees and does not 

have a labor camp it is covered by the small farm operation exemption designated 

by Congress. 

Congressional intent is clear that this language was adopted to protect small 

farms and should be interpreted broadly to protect farms with fewer than 10 emVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
25 

ployees and no labor camp. In fact, Congress feels so strongly that the fiscal year 

2013 Appropriations Act report contains language that reinforces the small farm exemption and suggests that OSHA should work with USDA before moving forward 

with any attempts to redefine and regulate post-harvest activities in relation to the 

exemption. We hope that this language will forestall any further enforcement actions by OSHA and encourage that office to re-evaluate its interpretation of farming 

operations as they relate to post-harvest activity. 

Farm Bureau understands OSHA’s concern with grain bin safety. In fact, Farm 

Bureau remains committed to grain bin and farm safety generally. Throughout the 

country, state and county Farm Bureaus have safety training programs, including 

grain bin safety. We work to ensure everyone who is working on our farms is 

trained and safe. Prior to instituting the June 2011 memo, had OSHA reached out 

to Farm Bureau and others in the industry, we would have been eager to work with 

them to develop additional safety training programs if necessary to prevent injury. 

This preventative action would have better served OSHA’s mission and the shared 

goal of farm safety. 

However, rather than working cooperatively with industry, OSHA apparently 

reached the conclusion that it was preferable to penalize small farmers through enforcement. Utilizing the 2011 memo, a Nebraska farming operation, with one nonfamily employee, was fined approximately $130,000 for allegedly not following 

OSHA regulations related to storage of grain grown and harvested by the farmer. 

An Ohio farmer had a strikingly similar situation, but was relieved when fines were 

withdrawn after Congress began to raise awareness of the agency’s overreach. Unfortunately, the Nebraska farmer is now tied up in litigation. The fact is that both 

of these farms fall under the farmer exception and these enforcement actions never 

should have taken place. It is clear that OSHA is ignoring congressional intent and 

the agency should withdraw the 2011 memo entirely. 

Regulation, guidance and enforcement that circumvent a clear legislative directive 

are not an acceptable solution. We remain committed to working with OSHA, USDA 

and the industry as a whole in doing the utmost to ensure worker safety on all 

farms. At the same time, we urge Congress to take action that prevents this type 

of regulatory overreach. 

I appreciate this opportunity to testify and I will be pleased to answer any questions the members of the committee might have. 

Chairman WALBERG. Thank you. 

Ms. Rabinowitz, we now recognize you for your 5 minutes of testimony. 

STATEMENT OF RANDY RABINOWITZ, ATTORNEY AT LAW 

Ms. RABINOWITZ. Thank you, Mr. Chairman and members of the 

subcommittee, for the opportunity to testify here today. 

My name is Randy Rabinowitz. I appear here this morning as an 

expert on occupational safety and health law and not on behalf of 

any client. 

Passage of the OSH Act in 1970 has improved workplace safety 

and health significantly over the past 40 years. Unfortunately, too 

many workers still die on the job or are made ill by work. OSHA’s 

rulemaking process is now saddled by so many procedural requirements that the agency is incapable of issuing standards to protect 

workers in a timely manner. 

These facts leave me dismayed that the focus of this hearing is 

on placing even more procedural burdens on OSHA. 

Business can already hold OSHA accountable for policy guidance 

it thinks goes too far by contesting OSHA citations. Employees 

have no similar right to challenge OSHA’s actions when it fails to 

enforce the law. 

The premise of this hearing, that OSHA has changed longstanding policies and that it may do so only after notice and comment rulemaking, has no basis either in law or in fact. The policies 

26 

being complained about today impose no new legal burdens. There 

is no legal requirement for notice and comment rulemaking. 

The issuance of each policy is consistent with the requirements 

of the Administrative Procedure Act and the OSH Act, and I suggest if it wasn’t, the witnesses we have spoken to would be in court 

challenging it. 

Employers routinely request interpretations clarifying OSHA regulations. OSHA issues about 100 such interpretations each year. 

Business would be hurt far more than labor if OSHA were not permitted to issue these types of clarifications without notice and comment. 

I would like to discuss several of the specific policies mentioned 

in the Chamber’s testimony. 

With regard to the general duty clause, most observers agree 

that OSHA toxic exposure limits are woefully out of date. OSHA 

recently published a Web tool listing exposure limits recommended 

by NIOSH and ACGIH or required by Cal/OSHA. 

This tool makes already public information more easily accessible 

to employers and employees. It encourages but does not require reductions in toxic exposures. OSHA should be complimented for this 

effort. 

Instead, business criticizes the agency, suggesting that OSHA is 

somehow trying to expand the reach of the general duty clause by 

publishing this tool. There is no legal basis for this claim. 

Ever since 1987, the rule in a case called UAW v. General Dynamics has allowed OSHA to cite the general duty clause when an 

employer has actual knowledge that an OSHA standard leaves its 

employees at risk. This rule has been included in OSHA’s field operations manual since 1994. 

The rule in General Dynamics is a narrow one and OSHA relies 

on it sparingly. OSHA cannot rely on either NIOSH, ACGIH, or 

California exposure limits standing alone without other evidence of 

actual employer knowledge of a hazard to prove a general duty 

clause violation. 

Posting the NIOSH, ACGIH, and Cal/OSHA limits on its Web 

site does not change OSHA’s burden under the general duty clause. 

In my opinion, the tool has no legal effect on an employer’s obligation to protect workers from recognized hazards. 

With respect to walk-around rights, business claims that OSHA’s 

walk-around regulations bar nonemployees from serving as a walkaround representative and that this has been OSHA’s consistent 

practice. But OSHA has never said anything of the sort. Its consistent policy has been to permit nonemployee representatives in 

limited circumstances. 

For example, in organized workplaces the union always selects 

the walk-around rep. The union does not have to select an industrial hygienist or an engineer to be its walk-around rep; it can suggest—it can select a business agent. 

In nonunion workplaces OSHA’s Field Operations Manual instructs its inspectors to determine whether somebody is a bona fide 

representative of employees. If the inspector can find a bona fide 

representative of employees—and in nonunion workplaces often 

they cannot—the inspector has the discretion to permit that person 

to be a walk-around representative, unless the inspector concludes 

27 

that that person might be disruptive to the inspection. But it is up 

to the inspector to make that choice. 

The recent letter that OSHA published just continues its longstanding policy that allows nonemployees who will make a positive 

contribution to a thorough and effective inspection to accompany 

OSHA as an employee walk-around representative. 

Unlike in 1970, when the world was divided into union and nonunion workplaces, today a mix of nontraditional advocacy groups 

may represent the interests of workers who do not belong to 

unions. Usually these groups are not organizing for collective bargaining purposes. If employees choose these groups to represent 

them, OSHA often honors that choice. It is an employee’s statutory 

right to select their own representative. 

OSHA inspectors can refuse to allow the individual to serve as 

the employee representative if it would not further the inspection. 

MSHA follows a similar policy without any problems. 

I had some notes on farms, but I see my time is expiring so I 

will wrap up. 

Congress should not interfere with Congress’ longstanding practice of issuing interpretive letters and policy statements that conform to the requirements of the Administrative Procedure Act and 

the Occupational Safety and Health Act. The interpretive letters 

and policy documents benefit business more often than they benefit 

labor. They are a necessary and useful administrative tool. 

This committee should strive to identify more effective ways that 

OSHA can meet its statutory responsibility to protect workers. Increasing the procedural burdens OSHA must bear to do its job will 

not improve worker safety and health. 

Thank you very much. 

[The statement of Ms. Rabinowitz follows:] 

Prepared Statement of Randy S. Rabinowitz, Attorney at Law 

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE: Thank you for the opportunity 

to testify on ‘‘OSHA’s Regulatory Agenda: Changing Long-Standing Policies Outside 

the Public Rulemaking Process.’’ My name is Randy Rabinowitz. I appear here this 

morning as an expert on Occupational Safety and Health law and not on behalf of 

any client. I have practiced OSHA law, representing the interests of workers, for 

several decades. I have served as co-chair of the ABA’s OSH Law Committee; as the 

Editor-in-Chief of the American Bar Association’s (ABA) treatise on OSHA Law and 

author of the section on standard-setting; and as an adjunct professor teaching 

OSHA law. I have been lead counsel for labor unions on close to a dozen challenges 

to OSHA rules, served as counsel to this Committee, and have worked for or advised 

OSHA and state health and safety agencies on regulatory issues. Shortly, I expect 

to be named the founding Co-Director of a new public interest organization called 

the Occupational Safety and Health Law Project. I have also served as Director of 

Regulatory Policy for the Center for Effective Government formerly OMB Watch. 

Passage of the Occupational Safety & Health Act in 1970 has improved workplace 

safety and health significantly over the past 40 years. Unfortunately, too many 

workers still die on the job or are made ill by work. Federal and state OSHA programs have approximately 2000 inspectors to monitor the health and safety performance of more than 7-8 million workplaces. With these resources, federal OSHA 

can only inspect each workplace once every 131 years. 

OSHA’s rulemaking process is now saddled by so many procedural requirements 

that OSHA is incapable of issuing standards to protect workers in a timely manner. 

Requiring OSHA to also conduct notice and comment rulemaking for every policy 

statement or enforcement directive would make an already slow process grind to a 

halt. Contrary to industry rhetoric, the problem is not that OSHA regulates too 

much, but that it regulates too few health and safety hazards. Between 1981-2010, 

OSHA issued 58 health and safety standards, only 16 of which regulate health hazards, according to GAO.1 It took OSHA an average of more than 7 years to complete 

28 

each rulemaking. These facts leave me dismayed that the focus of this hearing is 

on placing even more procedural burdens on OSHA before it can issue either letters 

of interpretation or policy guidance. Such a requirement would do nothing to protect 

workers and would make an already slow regulatory process even slower. 

OSHA Policies Meet the Requirements of the Administrative Procedure Act 

The premise of this hearing—that OSHA has changed long standing policies and 

that it may do so only after notice and comment rulemaking -has no basis in law. 

OSHA routinely issues interpretations of its regulations. In addition, it often issues 

policy statements to alert its inspectors and others about enforcement policies. Many 

are requested and applauded by business. None are the subject of rulemaking. If 

rulemaking were required for every interpretation, OSHA would lose the ability to 

clarify its rules. 

My testimony this morning addresses three OSHA policies that members of the 

business community claim OSHA has recently changed. They include: 

• A web ‘‘tool’’ published by OSHA listing exposure limits recommended by the 

National Institute for Occupational Safety and Health (NIOSH), the American Conference of Government Industrial Hygienists (ACGIH) or the California OSH Program; 

• A letter responding to Steve Sallman of the Steelworkers (the ‘‘Sallman letter’’) 

dated February 21, 2013 reaffirming OSHA’s policy that an employee walk-around 

representative need not be an employee of the employer whose facility is being inspected; 

• A memo to OSHA’s field staff from Thomas Galassi dated June 28, 2011 entitled ‘‘OSHA’s Authority to Perform Enforcement Activities at Small Farms with 

Grain Storage Structures Involved in Postharvest Crop Activities.’’ 

These policies either represent long-standing interpretations by OSHA of statutory language, clarify ambiguous regulatory provisions, or announce how OSHA will 

exercise its enforcement discretion. The policies impose no new legal burdens. There 

is no legal requirement for notice and comment rulemaking. The issuance of each 

policy is consistent with the requirements of the Administrative Procedure Act 

(APA). Any employer who believes otherwise can challenge the policies before the 

Occupational Review Commission or the courts. 

The APA exempts ‘‘interpretive rules’’ and ‘‘general statements of policy’’ from the 

requirement for notice and comment rulemaking. ‘‘An interpretive rule interprets or 

clarifies the nature of the duties previously established by the OSH Act or by an 

OSHA rule.’’ 2 The interpretation is not binding and litigants may challenge it. 

OSHA’s interpretive rule is likely to be upheld if ‘‘OSHA is describing with greater 

clarity or precision a duty that the OSH Act or an OSHA rule has already established.’’ 3 A policy statement, does not interpret existing duties. Instead, OSHA uses 

policy statements to ‘‘alert employers and employees (or others) prospectively of its 

future plans regarding some new duty that it would like to see established.’’ 4 The 

duty only becomes binding if the Occupational Safety and Health Review Commission affirms OSHA’s citations. In both cases, notice and comment rulemaking is not 

required. Indeed, the D.C. Circuit recently reaffirmed that OSHA may revise its interpretation of the OSH Act without notice and comment rulemaking in a case challenging OSHA’s Hazard Communication standard.5

In limited instances, when an agency changes a long-standing, definitive interpretation, notice and comment may be required.6 But, even this rule would allow OSHA 

to publish one interpretation without notice and comment. ‘‘Any second interpretative rule that significantly changes the first interpretation would be invalid if the 

first interpretation is definitive.’’ 7 In none of the instances discussed at this hearing 

has OSHA tried to replace one definitive interpretation with another, so the rule 

in Alaska Hunters requiring notice and comment for a second interpretation would 

not apply. 

Usually, ‘‘[t]here is general agreement that the public interest is served by prompt 

dissemination of agency interpretations and policy statements. Moreover, such statements often are indispensable to agency administration because they guide the staff 

in its day-to-day tasks and structure the exercise of agency discretion.’’ 8

OSHA issues more than 100 interpretations each year. Most are requested by, 

and benefit, business. If, as a result of this hearing, OSHA must employ procedures 

beyond those already required by the APA and the OSH Act before adopting an interpretation, this informal process of clarifying OSHA rules would grind to a halt. 

Reliance on the General Duty Clause To Protect Workers From Toxic Exposures 

OSHA permissible exposure limits (PELs) for toxic substances are widely recognized by both labor and industry to be woefully out of date. Hundreds were adopted 

in the early 1970s based on consensus standards first published in the 1960s or earVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
29 

lier. OSHA’s efforts to update these exposure limits have been stymied for decades. 

Fewer workers would get sick or die if OSHA could snap its fingers, adopt a new 

‘‘interpretation,’’ and rely on the general duty clause to mandate reductions in toxic 

exposures. It cannot. There is simply no legal basis for industry’s concern that 

OSHA is trying to expand the reach of the general duty clause by posting public 

information about recommended exposure limits on its website. 

OSHA’s interpretation of the general duty clause has not changed in more than 

20 years. After a UAW member died in 1983 while cleaning the inside of a tank 

with Freon, OSHA cited General Dynamics for a violation of the general duty 

clause. General Dynamics objected, claiming that it could not be cited under the 

general duty clause when it was in compliance with OSHA’s Freon standard. 

The D.C. Circuit rejected this claim. The court held that ‘‘if an employer knows 

that a specific standard will not protect his workers against a particular hazard, his 

duty under section 5(a)(1) will not be discharged no matter how faithfully he observes that standard. ‘‘ UAW v. General Dynamics, 815 F.2d 1570 (D.C. Cir. 1987). 

OSHA changed its Field Operations Manual in 1994 to instruct its staff to cite a 

general duty clause violation under the circumstances described in the General Dynamics case. This has been OSHA’s consistent policy for more than 20 years. 

The rule announced in General Dynamics is a narrow one. OSHA has relied on 

it only sparingly. It permits OSHA to cite an employer for a violation of the general 

duty clause, even though the employer has complied with an OSHA exposure limit, 

when the employer has actual knowledge that OSHA’s standard does not protect 

employees from hazards in the workplace. OSHA’s burden to demonstrate a violation of the general duty clause remains high under this standard. It must show that 

an employer knew either that ‘‘a particular safety standard is inadequate to protect 

his workers against the specific hazard it is intended to address, or that the conditions in his place of employment are such that the safety standard will not adequately deal with the hazards to which is employees are exposed.’’ 9

Against this background, business representatives complain that a new ‘‘tool’’ published on OSHA’s website somehow expands the general duty clause. This concern 

has no legal basis. The ‘‘tool’’ about which business complains compiles, in one place, 

chemical exposure limits recommended by the National Institute for Occupational 

Safety and Health and the American Conference of Government Industrial Hygienists and adopted by the California OSHA program. These exposure limits, some of 

which are recommended, but not required, are already public information. OSHA 

has a statutory responsibility to advise employers and employees about effective 

methods of preventing occupational injuries and illnesses.10 It has done so in an 

easy to understand, readily accessible format. The information included in the ‘‘tool’’ 

will help workers and others bargain for better working conditions and help employers understand the wide range of recommended exposures to toxins. The ‘‘tool’’ in 

many instances illustrates how out-of-date OSHA’s exposure limits are. OSHA 

should be applauded for this effort. 

The ‘‘tool’’ does not in any way expand or limit the circumstances under which 

an employer can be cited for a violation of the general duty clause. OSHA cannot 

meet its burden of showing that employees are exposed to a recognized hazard solely 

by pointing to a recommended exposure limit—whether or not that limit is on 

OSHA’s website—without some other evidence of employer or industry awareness 

of the hazard. I know of no instance where OSHA has tried to do so. The ‘‘tool’’ has 

no legal effect on an employers’ obligation to protect workers from recognized hazards. 

Employee Representatives Who May Accompany OSHA Inspectors 

Section 8(e) of the OSH Act provides that a ‘‘representative of the employer and 

a representative authorized by his employees’’ shall have a right to accompany 

OSHA during a workplace inspection. OSHA’s regulations provide that the employee 

representative shall be an employee of the employer but also authorize others to 

serve as an employee representative if, in the opinion of the OSHA inspector, that 

individual is ‘‘reasonably necessary to the conduct of an effective and thorough physical inspection.’’ 11s 

This regulation has always been understood to permit non-employee representatives to accompany an inspector and to act on behalf of employees for other purposes. OSHA’s Field Operations Manual (FOM) has two sections addressing who 

may represent employees during a walk around inspection. In facilities with a certified bargaining representative (and it does not matter whether the union has a 

collective bargaining agreement or not) the union selects the employee walk— 

around representative. Sometimes the union selects an employee as the walkaround representative. Other times, the union designates a member of the international union’s staff as the walk-around representative. Sometimes, the union repVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
30 

resentative is an industrial hygienist or safety engineer; other times the union representative is a business agent. The important point here is that the employees’ representative is selected by the employees—not by the employer. That is the employees’ statutory right. 

OSHA’s long-standing practice in non-union facilities has been to determine 

whether the employees have selected someone to represent their interests in an 

OSHA inspection. 

Often, the employees have not done so. But, if they have, OSHA honors that 

choice. The FOM recognizes that when there is no union, employees may nevertheless have selected somebody to represent their interests. In facilities where there is 

a safety committee—and many states require such committees -a member of the 

safety committee may serve as the employees’ walk-around representative. But, the 

FOM also recognizes that employees may have ‘‘chosen or agreed to an employee 

representative for OSHA inspection purposes’’ in some other manner. Only when no 

employee walk-around representative can be identified by OSHA using either of 

these methods, is an OSHA inspector instructed to proceed without an employee 

walk-around representative and interview a ‘‘reasonable number of employees.’’ 

OSHA’s policy on who may represent employees during an inspection is similar 

to its policy on who may file a complaint on an employee’s behalf. OSHA’s Field Operations Manual has authorized non-employee representatives to file formal complaints seeking an inspection. The FOM defines the term ‘‘representative of employees’’ as either: (1) an authorized representative of the employee bargaining representative; (2) an attorney representing an employee; and (3) [any] other person 

acting in a bona fide representative capacity including, but not limited to, members 

of the clergy, social workers, spouses and other family members, and government 

officials or nonprofit group and organizations. 

The ‘‘Sallman letter’’ simply clarifies this long-standing policy. It makes clear that 

individual who is authorized to represent employees and who ‘‘will make a positive 

contribution to a thorough and effective inspection’’ may serve as a walk-around representative. ‘‘ In 1970, when OSHA’s inspection regulations were first published, 

employer -employee relations were much different than they are today. Then, a 

workplace either was unionized or it was not. There were few other options. Today, 

a mix of non-traditional advocacy groups may represent the interest of workers who 

do not belong to unions. More often than not, these groups are not seeking to become the workers collective bargaining representative, at least as that term is understood under the National Labor Relations Act. Non-employee representatives can 

often help OSHA understand the complex employment relationships between staffing agencies, subcontractors and employers. They can help OSHA identify past accidents and common safety hazards. And, they can help workers who do not speak 

English effectively or who are wary of government inspectors to communicate their 

concerns to OSHA. OSHA should be complimented on recognizing that the structure 

of the economy and the forms of workers representation have changed over the 

years, even though the importance of a worker’s right to participate in an OSHA 

inspection has not. Unions are no longer the only voice that speaks on behalf of 

workers. 

A recent example, one that occurred prior to OSHA’s letter to Mr. Sallman, illustrates the point. During a 2011 inspection of the Exel/Hershey warehouse in Hershey, PA, the National Guestworkers’ Alliance (NGA) served as the walk-around 

representative for employees. The employees represented by NGA were young foreign exchange students participating in a summer work program and subject to abusive working conditions. NGA aided OSHA in identifying many instances of unrecorded injuries among temporary workers at the facility and other safety and health 

violations. The foreign students could not have effectively identied health and safety 

hazards to OSHA without NGA’s help. 

Even under the ‘‘Sallman’’ letter the right of employees to select a non-employee 

as their walk-around representative is narrow. First, the person who serves as a 

walk around representative must have been selected by employees to serve in that 

role. Second, the representative must aid in the conduct of the inspection. OSHA 

inspectors can refuse to allow an individual to serve as an employee representative 

when, in the OSHA inspector’s opinion, it would not further the inspection. And, an 

employer who believes that a non-employee has been improperly selected as the 

walk-around representative can refuse voluntarily to permit the inspection and insist that OSHA obtain a warrant before proceeding. 

OSHA’s long-standing policy permitting non-employees to serve as an employee 

representative during a walk-around inspection when doing so will aid OSHA in 

identifying health and safety hazards is consistent with the OSH Act, its legislative 

history and the few court cases to look at this issue. Senator Harrison Williams (DNJ), the Senate sponsor of the OSH Act, made clear that ‘‘the opportunity to have 

31 

the working man himself and a representative of other working men accompany inspectors is manifestly wise and fair.’’ The Mine Safety and Health Administration 

has for years allowed non-employee representatives of miners to accompany its inspectors, even in non-union mines. Courts have approved this policy.12 The Seventh 

Circuit has recognized the right of a union representative to accompany an OSHA 

inspector even when the union’s members were on strike and had been temporarily 

replaced by other workers.13 In a related context, the First Circuit recognized that 

a union organizer who was not an employee of the employer could serve as the representative of employees before OSHRC, holding that ‘‘any outside union activity [by 

the organizer] is absolutely irrelevant to his ability to represent the employees.’’ 14

Nothing in the legislative history of the OSH Act or any court decisions suggests 

that statutory right of employees to accompany OSHA during a workplace inspection is confined to unions certified as the employees’ bargaining representative 

under the National Labor Relations Act. 

OSHA Inspections of Farming Operations 

Too many employees die in grain handling facilities. When grain dust becomes 

airborne, it often explodes killing workers inside. When employees walk on moving 

grain in an attempt to clear grain built up on a bin, they may get buried in it. Too 

often those killed or injured are teenagers working at their first job. These injuries 

occur at grain facilities owned by agribusinesses and by those owned by small farmers. After a series of deadly explosions, and more than 10 years of public debate, 

in 1987, OSHA adopted a standard regulating grain handling facilities.15 An analysis shows the grain standard has been remarkably effective in reducing explosions 

and deaths in the industry.16

Unfortunately, in 2010 there were a series of fatalities at grain handling facilities. 

For example, two workers—one 19 and the other 14—were engulfed in corn at an 

Illinois grain bin owned by Haasbach, LLC. The tragedy occurred when one worker 

fell into the bin and four went in to rescue him. 

OSHA responded to this and other incidents with an outreach, compliance assistance, and education program. It sent a letter to all grain handling facilities urging 

them to comply with the standard.17 One part of its effort was a local emphasis program focusing on enforcement. The program has been effective. In 2010, there were 

57 entrapments and 31 fatalities at grain facilities. In 2012, there were only 19 entrapments and 8 fatalities. While that is still too many fatalities, it represents a 

74% reduction in fatalities. OSHA’s ability to further reduce fatalities from entrapments in grain handling facilities is limited because, historically, 70% of entrapments occur on farms exempt from OSHA’s grain handling standard.18

OSHA selects workplaces for inspection by relying on the SIC or NAIC code for 

that workplace. Beginning in FY 1977, when OSHA’s annual appropriations first included a rider prohibiting the agency from enforcing any standard ‘‘which is applicable to any person who is engaged in a farming operation and employs 10 or fewer 

employees,’’ OSHA has instructed its staff not to inspect certain farming operations 

with 10 or fewer employees. It identifies the farming operations exempted from inspection according to the businesses’ self-reported SIC or NAIC code; certain codes 

fall under the rider and others do not. Since 1977, OSHA has implemented the rider 

in the exact same way and exempted the same SIC codes from inspection. The 

memo that has been characterized as a policy change merely reiterates to the field, 

in advance of beginning the emphasis program, which facilities OSHA can inspect 

and which it is prohibited from inspecting under the rider. 

OSHA has indicated a willingness to clear up any confusion among farmers created by the memo. 

OSHA does not schedule small facilities within the SIC codes covered by the rider 

for inspections. But, SIC code designations do not always accurately describe the operations at a facility and the size of the facility’s workforce may vary. If OSHA arrives at a small facility with farming operations either because it had inaccurate 

information, because it receives a complaint about conditions at that facility, or because a death or serious injury occurred, its’ inspector should leave upon learning 

that the facility is covered by the rider. OSHA depends on farmers to provide the 

information needed to make that determination. In some cases, OSHA has left without inspecting the facility even though a fatality had occurred. If a facility is covered 

by the rider, and OSHA nevertheless insists on an inspection, the owner has a legal 

right to refuse OSHA entry and insist that OSHA get a warrant to conduct the inspection. To obtain that warrant, OSHA would have to convince a federal magistrate 

that the facility was not covered by the rider. If an inspection occurs, and OSHA 

issues citations, an employer can request an informal conference with OSHA to 

present evidence that the citations were issued improperly. OSHA often withdraws 

the citations under such circumstances. Finally, citations will be vacated by OSHRC 

32 

if an employer demonstrates that OSHA was not authorized to inspect and cite its 

facility. In such a case, OSHA can be ordered to pay the small farmer’s attorney 

fees under the Equal Access to Justice Act. Farmers thus have several opportunities 

to ensure that OSHA does not inadvertently inspect or cite facilities covered by the 

rider. 

The memo reflects OSHA’s consistent, 20 year old interpretation of the rider. 

Until recently, OSHA has gotten no complaints about how it has implemented the 

rider. Nothing has changed. OSHA issues and revises inspection instructions to its 

staff regularly. OSHA does not conduct public rulemaking on enforcement directives. 

Public rulemaking is not required. Here, OSHA is implementing an appropriations 

rider renewed annually by Congress. If Congress disagrees with OSHA’ s interpretation of the rider, Congress can make its intention clear. If OSHA made a factual 

error in citing a farm it should not have inspected—and that question is currently 

being litigated—those employers have adequate legal redress if they were cited improperly. 

Conclusion 

Congress should not interfere with OSHA’s long-standing practice of issuing interpretive letters and policy statements that conform to the requirements of the APA. 

The interpretive letters and policy documents benefit business more often than they 

benefit labor. They are a necessary and useful administrative tool. The process 

OSHA follows conforms to the requirements of the APA. Any business who believes 

otherwise has the right to challenge OSHA’s policies if they are applied to it. This 

Committee should strive to identify more effective ways that OSHA can meet its 

statutory responsibility to protect workers. Increasing the procedural burdens OSHA 

must meet to do its job will not improve worker safety and health. 

Thank you for the opportunity to testify. 

ENDNOTES

1http://www.gao.gov/products/GAO-12-330 

2Dale and Schudtz, OCCUPATIONAL SAFETY & HEALTH LAW 3rd Edition (BNA 2014) at 

603. 3 Id. 

4 Id. At 606. 

5 American Tort Reform Ass’n v. OSHA, No. 12-1229 (D.C. Cir Dec. 27, 2013). 

6 Alaska Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C. Cir. 1999). 

7OCCUPATIONAL SAFETY & HEALTH LAW 3rd Edition at 605. 

8Lubbers, A GUIDE TO FEDERAL AGENCY RULEMAKING (ABA 2006) at 74. 

9 815 F.2d at 1577. 

10 29 U.S.C. §670. 11 29 C.F.R. §1903.8 12See 30 U.S.C. §813(f); Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 

1995). 13 In re: Establishment Inspection of Caterpillar, 55 F.3d 334 (7th Cir. 1995). 14 In re: Perry, 859 F.2d 1043 (1st Cir. 1988). 15 29 C.F.R. §1910.272 16https://www.osha.gov/dea/lookback/grainhandlingfinalreport.html 17https://www.osha.gov/asst-sec/Grain—letter.html 18http://extension.entm.purdue.edu/grainlab/content/pdf/2012GrainEntrapments.pdf 

Chairman WALBERG. Thank you. 

Mr. Baskin, recognize you for your 5 minutes of testimony. 

STATEMENT OF MAURY BASKIN, SHAREHOLDER, LITTLER 

MENDELSON, P.C., TESTIFYING ON BEHALF OF THE NATIONAL ASSOCIATION OF MANUFACTURERS AND THE ASSOCIATED BUILDERS AND CONTRACTORS 

Mr. BASKIN. Thank you, Chairman Walberg and Ranking Member Courtney and members of the committee. Thanks for the opportunity to testify today. 

My name is Maury Baskin. I am a shareholder in the Washington, D.C., office of Littler Mendelson. 

Today I am testifying on behalf of two business organizations 

who are also strong advocates of workplace safety—the National 

Association of Manufacturers, which is the nation’s largest manuVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
33 

facturing association; and Associated Builders and Contractors, 

representing thousands of merit-shop construction contractors 

around the country. 

I am here to talk solely about OSHA’s 2013 letter of interpretation allowing union agents into nonunion workplaces. Contrary to 

what you just heard from Ms. Rabinowitz, OSHA’s 2013 letter constituted a significant change in longstanding agency policy. 

This was the first time that OSHA declared that nonunion employers could be compelled to allow outside union agents or community representatives to accompany OSHA inspectors onto the employer’s premises without any showing that the union or community organizer represented a majority of the employer’s employees. 

According to the letter, any number of employees in a nonunion 

workplace, no matter how few, can now designate an outside union 

or community organization as their representative for safety inspection purposes even though a majority of the workers have 

failed to authorize the union as their representative for any purpose. Neither the OSHA Act, the regulations, nor the field manual 

make any provision for a walk-around union representative in a 

nonunion workplace. 

And that is not just me talking; that is a direct quote from OSHA 

itself in the letter that it issued in 2003, which the new letter has 

now withdrawn while saying it is not a change in policy. The Administrative Procedure Act clearly says that an agency seeking to 

change one of its rules must first provide the public with notice 

and opportunity to comment on the change. 

The judicial standard is that when an agency has given its regulation a definitive interpretation and later significantly revises that 

interpretation the agency has, in effect, amended its rule. So this 

is not about whether OSHA can issue letters. It is the change that 

they made from longstanding policy, and this is something that it 

cannot accomplish under the APA without notice and comment. 

Reviewing OSHA’s response to this committee’s letter and listening to Ms. Rabinowitz’s testimony just now, I did not see or hear 

one instance in which OSHA has forced an employer to allow a 

union agent into a nonunion facility before last year’s letter in the 

40 years of the act. Not one. 

And there are 30,000 to 40,000 inspections per year, so we are 

talking over a million inspections, not one instance. So how can 

they say this is not a change of policy? It was clear until last year 

that OSHA gave its inspection regulation a definitive interpretation limiting union access under these circumstances, and they 

have changed it without notice and comment. 

It is also bad policy for several reasons. First, it undermines the 

rule of law for OSHA to ignore the Administrative Procedure Act 

and it is supposed to be an agency enforcing the law. 

Second, allowing the union agents from the outside and community organizers access to the nonunion employers’ private property—by doing that OSHA is injecting itself into labor management 

disputes. It is casting doubt on its status as a neutral enforcer of 

the law. 

The union agents we are talking about, they are engaged—and 

the community representatives, too—are engaged in organizing activity and they often have a biased agenda. They want to find probVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
34 

lems. They range from environmental disputes to wage claims— 

frankly, any problem that they can exploit for their own ends. They 

are not there to—very often, they are not there to improve worker 

safety. 

There has been a lot written about these so-called community organizations and their close collaboration with the unions. Many call 

them union front organizations. And so to pretend that they are 

some sort of independent entities, well, it is wrong according to a 

lot of literature on this subject. 

Unlike the situation where a union does represent a majority of 

the workers, as was alluded to, and they have a collective bargaining relationship, outside union agents and organizers have no 

duty to represent the interests of the nonunion employees in that 

workplace, nor do they have any special expertise on the nonunion 

workplace. In the incidents that have come to our attention since 

this letter has come out, there has been no claim that the union 

agent had any special expertise except as an organizer. 

And there are other issues dealing with third-party liability and 

safety training and trade secret exposure. We don’t have time. 

But the NLRB has struck a careful balance between labor, management, and employee rights. OSHA’s new letter runs roughshod 

over the rights of employers but it also ignores the rights of the 

majority of the employees in that workplace who did not ask for 

this so-called representative to come marching in with the government’s arm around their backs. 

So for each of these reasons and the others mentioned in my 

written testimony, Congress should call upon OSHA to withdraw 

the 2013 letter, return to the previous longstanding policy. 

Thank you for the opportunity to testify today. 

[The statement of Mr. Baskin follows:] 

Prepared Statement of Maury Baskin, Esq. Shareholder, Littler Mendelson, 

PC, on Behalf of the National Association of Manufacturers and Associated Builders and Contractors, Inc. 

Chairman Walberg, Ranking Member Courtney, and members of the U.S. House 

Committee on Education and the Workforce, thank you for the opportunity to testify 

before you at today’s hearing. 

My name is Maury Baskin and I am a Shareholder in the Washington, D.C. office 

of Littler Mendelson, P.C. Today, I am testifying on behalf of The National Association of Manufacturers (The NAM) and Associated Builders and Contractors (ABC). 

We appreciate the opportunity to testify before the Committee today on the issue 

of the Occupational Safety and Health Administration (OSHA)’s Letter of Interpretation allowing union agents and community organizers for the first time to accompany safety inspectors into non-union facilities, issued on February 21, 2013. 

The NAM is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 

states. Manufacturing employs nearly 12 million men and women, contributes more 

than $1.8 trillion to the U.S. economy annually, provides the largest economic impact of any major sector, and accounts for two-thirds of private sector research and 

development. The NAM is the powerful voice of the manufacturing community and 

the leading advocate for a policy agenda that helps manufacturers compete in the 

global economy and creates jobs across the United States. 

Associated Builders and Contractors (ABC) is a national construction industry 

trade association representing 22,000 chapter members. Founded on the merit shop 

philosophy, ABC and its 70 chapters help members develop people, win work and 

deliver that work safely, ethically, profitably and for the betterment of the communities in which ABC and its members work. 

35 

1These OSHA regulations are quite different from the regulation promulgated by MSHA, reflecting differences between mining and other industries. MSHA’s regulation, published after notice and comment, defined representatives of miners to include ‘‘any person or organization 

which represents two or more miners.’’ No similar definition appears in any OSHA regulation. 

How OSHA’s New Letter of Interpretation (LOI) Changed the Rules 

On February 21, 2013, without any prior public notice, OSHA for the first time 

issued a Letter of Interpretation (LOI) declaring that non-union employers may be 

compelled to allow outside union agents and/or community representatives to accompany OSHA inspectors onto the employers’ premises, without any showing that the 

union or community organizer represents a majority of the employer’s employees. 

According to the letter, an unspecified (non-majority) number of employees in the 

non-union workplace may designate an outside union or community organization as 

their representative for safety inspection purposes, even though a majority of the 

workers have failed to authorize the union as their representative for any purpose. 

The LOI was issued by Richard Fairfax, then Deputy Assistant Secretary of OSHA 

and addressed to Steve Sallman, Health and Safety Specialist with the United 

Steelworkers Union. The new LOI was not publicly released until April 5, 2013. 

The LOI contradicts the plain language of OSHA’s governing statute (‘‘the OSH 

Act’’) and the National Labor Relations Act (the ‘‘NLRA’’). Section 8 of the OSH Act 

provides: 

Subject to regulations issued by the Secretary, a representative of the employer 

and a representative authorized by his employees shall be given an opportunity to 

accompany the Secretary or his authorized representative during the physical inspection of any workplace. * * * 

Section 9 of the NLRA makes clear that only a union that has been chosen by 

a majority of employees in an appropriate bargaining unit can claim to be an ‘‘authorized representative.’’ OSHA’s published regulation implementing the OSH Act, 

29 C.F.R. 1903.8(c), states: 

The representative authorized by employees shall be an employee of the employer. 

However if in the judgment of the Compliance Safety and Health Officer, good cause 

has been shown why accompaniment by a third party who is not an employee of 

the employer (such as an industrial hygienist or a safety engineer) is reasonably 

necessary to the conduct of an effective and thorough physical inspection of the 

workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection. 

The OSHA Review Commission’s regulation, 29 C.F.R. 2200.1(g), defines an ‘‘authorized employee representative’’ to mean, ‘‘a labor organization that has a collective bargaining relationship with the cited employer and that represents affected 

employees.’’ The Commission has limited such status to unions recognized through 

the NLRB process.1

Consistent with these regulations, OSHA’s Field Operations Manual (FOM) and 

its predecessor the Field Inspection Reference Manual (FIRM) have long titled the 

section on inspection accompaniment: ‘‘Employees represented by a certified or authorized bargaining agent.’’ Another section of the FOM addresses what an OSHA 

inspector should do where there is ‘‘No Certified or Recognized Bargaining Agent.’’ 

The FOM directs OSHA inspectors to determine if other employees of the employer 

would suitably represent the interests of co-workers in the walk-around. If selection 

of an employee is impractical, inspectors are directed to conduct interviews with a 

reasonable number of employees during the walk-around. 

OSHA has for decades consistently interpreted the law, the regulations and the 

Field Operations Manual to allow a safety inspector to be accompanied by a labor 

union only where such a union has been certified or recognized as representing the 

employees of the employer under procedures established by the National Labor Relations Board (NLRB)—until the LOI issued last year. 

The new LOI states for the first time that an unspecified number of employees 

in a ‘‘non-union workplace’’ (a workplace where no union has been certified or recognized as the representative of a majority of employees), may nevertheless designate 

an outside union, or even a ‘‘community organization’’ whose focus is anything but 

the safety or health of a workplace, as their representative for safety inspection purposes. The new LOI contradicts the foregoing law and regulations and past OSHA 

guidance. 

By issuing the new LOI, OSHA reversed its long-standing interpretation of the 

Act, without providing any prior opportunity for the public to comment on the new 

policy, OSHA has left manufacturers and employers as a whole with no administrative remedy and has opened up employers to harassment from outside organizations. This is neither the intent of an OSHA inspection, nor is it appropriate under 

the previous interpretations of the regulations and the law. As a result of the new 

36 

LOI, the possibilities for disruption in the workplace by any group who may have 

a gripe with an employer are limitless. 

The NAM and ABC believe OSHA’s new LOI constitutes a significant and potentially unlawful change in agency policy that does nothing to promote workplace safety and has a substantial negative impact on the rights of employers and their employees. 

The New OSHA LOI Violates The Administrative Procedure Act 

As explained above, OSHA chose to issue the LOI without any advance public notice or opportunity for comment. By acting in this unilateral way, OSHA changed 

substantive, longstanding policy without any opportunity for employers to challenge 

the LOI within OSHA itself, either through rulemaking or at the OSHA Review 

Commission. Most importantly, by failing to go through the required notice and 

comment procedure, OSHA violated the Administrative Procedure Act (APA). 

The APA clearly states that an agency seeking to change one of its rules must 

first provide the public with notice and opportunity to comment upon it. The only 

relevant exceptions to this notice and comment requirement arise when an agency 

acts through an ‘‘interpretive’’ (as opposed to legislative) rule, or a statement of general policy that is not deemed to be a rule at all. 

The D.C. Circuit has struck down many other agency changes that were held out 

as merely interpretive. The judicial standard is that when an agency has given its 

regulation a definitive interpretation, and later significantly revises that interpretation, the agency has, in effect, amended its rule, something it may not accomplish 

[under the APA] without notice and comment. 

It is clear that OSHA gave its inspection regulation a definitive interpretation 

limiting union access to those facilities where the union has been authorized by a 

majority of employees. It is equally clear that the new LOI significantly revised that 

interpretation and that the agency has in effect substantially changed its published 

rule. For each of these reasons, we believe that if and when a court is asked to review OSHA’s LOI, it will find that OSHA has violated the APA. 

The New OSHA LOI Is Bad Policy 

This is bad policy for several reasons. First, it undermines the rule of law, which 

is improper for any government agency charged with enforcing the law. Second, by 

allowing outside union agents and community organizers access to non-union employers’ private property, OSHA is injecting itself into labor management disputes 

and casting doubt on its status as a neutral enforcer of the law. 

In our experience, union agents and community representatives who are engaged 

in organizing activity frequently use the OSHA complaint process as a weapon 

against employers, particularly in so-called corporate campaigns. The outside union 

agents have a biased agenda, which is to find problems in the employer’s workplace 

that can be exploited, not to improve worker safety. OSHA should not take sides 

in promoting union organizing agendas to the detriment of management. 

Unlike the situation where a union does represent a majority of the workers and 

has a collective bargaining relationship, outside union agents and community organizers have no duty to represent the interests of non-union employees nor do they 

have any special expertise in the non-union workplace. In the incidents that have 

come to our attention where the new LOI has been applied, there was certainly no 

claim that the union agent had any special expertise except as an organizer. This 

is a totally improper reason for allowing outside agents to accompany OSHA safety 

inspectors. 

In addition, the NLRB processes of authorizing majority representation by unions 

have been developed over the past 80 years for good reasons, in order to strike the 

right balance between labor, management and employee rights. OSHA’s new LOI 

runs roughshod over the rights of employers and also ignores the rights of the majority of employees who have not authorized any union to represent them. 

Likewise, by allowing a non-majority community organization to participate in a 

walk-around, the new LOI could distract the OSHA inspector from his primary purpose—workplace safety. Many community organizations, like the union organizers 

with whom they often collaborate, have their own biased agendas that are not focused on safety or health. These outside agendas include environmental disputes, 

wage claims, and many other causes. 

Involvement of such organizations in a safety inspection could lead to significant 

disruption of the workplace for reasons having nothing to do OSHA’s inspection objectives. 

Employers who are confronted with an OSHA inspector accompanied by an outside union agent or community organization are faced with a Hobson’s choice. If 

they object to allowing the third party agent into their facility, they may rightly fear 

37 

retaliation by the OSHA inspector. If they allow the third party outsider into the 

workplace, then they are giving up their private property rights and allowing someone into their premises who does not have the company’s best interests at heart and 

who may actually want to do harm to the company. The company may also be exposing trade secrets, and at a minimum the employer’s privacy rights are being infringed. Finally, there are some unsettled liability issues connected with allowing 

a third party into a private workspace, if there is in fact a safety hazard on the 

premises. 

Conclusion 

For each of the reasons set forth above, Congress should take appropriate action 

to require OSHA to withdraw the LOI and return to the previous longstanding policy. Regardless of any additional Congressional action, OSHA should voluntarily 

withdraw the LOI in order to avoid needless infringement on the rights of employers 

and the majority of their workers who have NOT chosen the outside third party as 

their authorized representative. Thank you for the opportunity to testify today, and 

I look forward to your questions. 

Chairman WALBERG. Thank you. 

And I thank each of the witnesses for your testimony as well as 

the full written testimony that we have for our records. 

And now I turn to my colleagues. Appreciate the attention to this 

meeting today. 

And I will recognize the chairman of Education and Workforce 

Committee, Mr. Kline. 

Mr. KLINE. Thank you, Mr. Chairman. I appreciate the courtesy 

of recognizing me—doesn’t get you anything. You understand that. 

But I do appreciate the courtesy. 

I want to thank the witnesses for being here today. 

And once again, as is so often the case, there is some difference 

of opinion that we have heard, and I expect we are going to explore 

that some. I just have a couple of questions, because it seems like 

we have got a lot of information, guidance that is coming from 

OSHA, and I am not sure how that word is getting out. 

So let me start with the man who has traveled the furthest, I 

suppose, from South Dakota. 

How did farmers in general, how did you specifically, learn about 

OSHA’s issuance of its 2011 guidance relating to the post-harvest 

activities? 

Mr. VANDERWAL. Thank you, sir. I appreciate that question. 

First of all, I believe it started in—there were a couple cases, one 

in Nebraska, one in Ohio, where OSHA showed up and looked at 

the operation—I am not sure what you would call it, walk-around, 

whatever it would be—and identified what they perceived as violations of the regulations. In our view, it was in violation of congressional intent because they were both farms that were under—had 

10 employees or fewer and they were small family farm operations. 

So when those—I am not familiar exactly with the case in Nebraska, but I believe it is in litigation so I shouldn’t say too much 

more about it. But they contacted their attorney right away when 

they were threatened with fines and things—and the regulatory 

things that OSHA does. 

Mr. KLINE. So in this case, the farmers learned about this when 

the OSHA inspector showed up. They had no other indication that 

this was going to happen. Is that what I am hearing from you? 

Mr. VANDERWAL. I can’t say for sure whether they just showed 

up out of the blue or if they sent a letter ahead of time. 

38 

Mr. KLINE. And so then you learned about it—you are on the 

Farm Bureau board and active in the South Dakota part—you 

learned about it after these instances had occurred in Nebraska? 

Mr. VANDERWAL. That is correct. 

Mr. KLINE. Okay. 

Mr. Hammock, in OSHA’s letters of interpretation they contain 

language stating the letters, quote—‘‘do not create new or additional requirements but rather explain these, OSHA’s, requirements,’’ close quote. In your opinion—you have already testified to 

this, we are just trying to hammer it down here—have OSHA’s 

most recent actions clarified policies or overturned existing policies? 

Mr. HAMMOCK. Thank you. In my view they have overturned previous policies or set out new policies that are really not tied directly to underlying requirements or statutory provisions, in a 

sense, going beyond what they say in a standard disclaimer in 

those letters of interpretation. 

And I would like to say, if I could, one thing in response to your 

previous question, and that is oftentimes these things will just appear on OSHA’s Web site, and unless you are a businessman out 

there who spends every day and gets on OSHA’s Web site and 

looks at the letters of interpretation, you are not going to really 

know what OSHA is saying or what things are coming out there 

that are going beyond the disclaimer on the letters of interpretation. It is a very challenging thing for people who have got a lot 

of stuff to do during the day rather than just sit around and look 

at OSHA’s Web site. 

Mr. KLINE. Thank you. 

Sorry. I was trying to think how much time I spend sitting 

around looking at OSHA’s Web site or anybody else’s site. Not very 

much. 

I don’t know how much time I have got left here, but only a couple of minutes so I want to go into this combustible dust issue, 

which you got at, and it—I am very confused by it because it seems 

to me that without a definition I don’t know how somebody is supposed to comply or determine what the limits are or if they even 

have the equipment to determine what the—can you take the 

minute or so we have got left here and talk about this global harmonization standard and what that impact is when you don’t have 

a definition? 

Mr. HAMMOCK. Yes, absolutely. And obviously the GHS standard 

and the hazard communication standard generally is one of 

OSHA’s most far-reaching regulations. I mean, the reality is it 

deals with notifying folks of the hazards of chemicals. And so it has 

wide applicability. 

But the key to the working of the GHS or the HCS is understanding what the substances are that you are producing and 

whether they are a hazard and in what types of environments they 

are a hazard. And if you don’t know some of that basic information, 

if you don’t know the downstream use of your products, it is almost 

impossible for you to actually comply with that underlying requirement. 

So if you are a manufacturer out there now you are trying to 

think, ‘‘Is this soybean that I am producing, is this going to be comVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6602 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
39 

bustible down the road?’’ The reality is it is very, very difficult for 

folks to get their heads around that given the lack of a definition. 

Mr. KLINE. Okay. 

I see my time is expired, Mr. Chairman. Thank you. 

Chairman WALBERG. Thank the gentleman. 

Now I—— 

Ms. RABINOWITZ. Excuse me. May I just add an additional comment? 

Chairman WALBERG. You will probably have your opportunity at 

some point I would guess, but we need to move on. 

And so I will recognize my friend from Connecticut, Ranking 

Member Joe Courtney. 

Mr. COURTNEY. Thank you, Mr. Chairman. Ms. Rabinowitz, 

again, I just want to first of all thank you for at least laying out 

there that employer inquiries are a large part of OSHA’s day-to-day 

business of communication in terms of interpretation and clarification. And I would just say maybe people don’t read the Web site 

every day, but Connecticut homebuilders have regularly meetings 

with NIOSH representatives to get updates not because they want 

to sort of, you know, avoid the law; they actually want to learn 

about new products, substances to make sure that their workforce 

is safe. 

So the notion that somehow, you know, what OSHA is doing in 

terms of getting information out there through the Web site is 

somehow, you know, an act of, you know adversarial government 

heavy-handedness, I—that is not my experience talking to employers and people who are out there dealing every day with, again, 

you know, the world changes in terms of stuff that you buy for 

building things and producing things. 

So, you know, again, I guess I would just want to go back to a 

point you made in your testimony, Ms. Rabinowitz, that merely 

posting information, I mean, that doesn’t trigger liability by itself. 

I mean, is that—and I just wonder if you, again, you could just sort 

of reiterate what the standard is for enforcement against an employer, and just merely posting information doesn’t satisfy any kind 

of burden. 

Ms. RABINOWITZ. In order to be able to cite an employer under 

the general duty clause where there is an established permissible 

exposure limit, OSHA has to show that the employer had actual 

knowledge that the existing standard was causing the workers 

harm. In the General Dynamics case that I cited, several employees 

at a Chrysler tank manufacturing plant had passed out based on 

exposure to Freon and the UAW had complained to Chrysler repeatedly and they had done nothing to—the Freon exposures were 

within OSHA’s permissible exposure limit and Chrysler had done 

nothing to protect the workers. 

Another gentleman named Harvey Lee went into a tank to clean 

it out using Freon. He passed out and died. He was about the 

fourth or fifth person who had been exposed to these exposures. 

OSHA cited the employer under the general duty clause. The employer argued that OSHA was trying to unfairly expand the scope 

of the general duty clause without amending the standards—the 

same criticism that Mr. Hammock has leveled. A.nd the D.C. Circuit rejected that employer argument and said that the statute, as 

40 

it was written by Congress in 1970, imposes an independent duty 

on employers to protect workers from recognized hazards when 

they have actual knowledge that an employee is in harm’s way 

even after they have complied with the standard. 

It is a very narrow court decision. It has been on the books for 

25 years. There is nothing new about it. Posting these exposure 

limits on the Web site does not provide evidence of actual employer 

knowledge that people are in harm’s way. 

Mr. COURTNEY. Thank you. 

And as far as the inspection issue, which Mr. Baskin testified regarding, again, the actual OSHA law, I mean the statute, provided 

for employee participation in inspections, whether it is, you know, 

injuries or fatalities or complaints about what is going on at a 

workplace. And again, it—there was nothing in it that limited who 

those representatives would be; it would just—it basically gave— 

it is like a ‘‘may’’ language, in terms of who can accompany on behalf of employees. Isn’t that correct? 

Ms. RABINOWITZ. It is correct. Not only that, but if you look at 

the NLRA, there—if Congress wanted to limit the walk-around 

right only to certified bargaining representatives, that is a wellknown term in labor law and it could have done so. Congress did 

not say ‘‘certified bargaining representative,’’ it said ‘‘authorized 

employee representative.’’ 

And Mr. Baskin himself cites the fact that the Occupational Safety and Health Review Commission also is allowed to have authorized employee representatives participate, and at one point a number of years ago a union organizer tried to exercise that right and, 

taking the same position that Mr. Baskin took, the Review Commission refused to let this organizer participate because he didn’t 

represent a majority of employees. That case went to the First Circuit Court of Appeals and the First Circuit Court of Appeals held 

that authorized employee representative could be anybody who had 

been authorized by a group of workers; it did not have to be a certified bargaining representative. 

Mr. COURTNEY. And just again, most of these inspections, I 

mean, it is not like you can get inside there and start leafleting, 

you know, people or, you know, getting captive audiences for organizing. I mean, the fact of the matter is these are very focused visits in terms of what the inspection is trying to achieve, which is 

to find out whether or not, again, there was some violation of law. 

Isn’t that correct? I mean, it is not like an opportunity to go out 

there and be Joe Hill. 

Ms. RABINOWITZ. If an employee tried to leaflet—a walk-around 

rep tried to leaflet during an OSHA inspection the OSHA inspector 

would be justified in excluding that person. And I imagine that an 

employer would ask the OSHA inspector to exclude that person. 

The employee rep is there to aid the inspection, and it is the 

OSHA inspector’s discretion as to whether that rep is being helpful. 

And if they are not being helpful or they are being disruptive the 

OSHA Field Operations Manual instructs the OSHA inspectors not 

to have them continue in that capacity. So I think it is a host of 

horribles that hasn’t come to pass that is being imagined and may 

not be real. 

Mr. BASKIN. Mr. Chairman—— 

41 

Chairman WALBERG. Gentleman’s time is expired, and I am sure 

we will have opportunities for further comment, but we need to 

move on in the process. 

And so I recognize my friend from Indiana, Mr. Rokita. 

Mr. ROKITA. I thank the chair. 

Good morning, everybody. Appreciate your testimony. I wanted 

to start with Mr. Hammock. 

These letters of interpretation, that is what you are talking 

about being put on the Website, do they have the weight of law, 

right, at the time they go on the Web site, or is there a formal publication process that must be gone through first? 

Mr. HAMMOCK. There is not a formal publication process, as you 

would think, in terms of a rule that needs to be published in the 

Federal Register. They are made publicly available usually a few 

months after they are sent to the requester. So the information is 

out there for a period of time before they turn up on OSHA’s Web 

site. 

You know, with respect to whether they have the force and effect 

of law, OSHA’s position is that, as was discussed earlier, is that 

they don’t, but the reality is some of these letters of interpretation 

do go quite far in setting out employer obligations. And I have certainly been involved in cases where a compliance officer has 

showed up on a site and handed a letter of interpretation to an employer and said, ‘‘Are you familiar with this new position that 

OSHA has taken,’’ and it has gone from there. 

Mr. ROKITA. Yes, but I thought the testimony and maybe it was 

an amalgamation of everyone’s testimony—show that the trend is 

different. For example, in the past letters of interpretation were intended to be clarifications of existing policies, and that wouldn’t require any specialized legal notice; but now, if I understand Mr. 

Baskin’s testimony correctly, these quote-unquote letters of interpretation suggest more than a simple clarification, and that is what 

you are describing right? 

So now—— 

Mr. HAMMOCK. Correct. 

Mr. ROKITA [continuing]. We do have a different situation that 

could have the force and effect of law, yet we are giving notice by 

Web site and maybe soon by Facebook. You know, who knows? 

And that is where we have some problems not only for industry 

and businesses but for the agency itself. You worked at the agency 

correctly, right, correct? 

Mr. HAMMOCK. That is correct, yes. 

Mr. ROKITA. Ms. Rabinowitz’s testimony laments the length of 

time—on average, 7 years—that it takes for OSHA to promulgate 

a regulation. Are the requirements OSHA must follow in place for 

specific reasons and that is the reason it is taking this long, or 

what is the situation? 

Mr. HAMMOCK. Yes. There are some procedural requirements 

that OSHA needs to follow to promulgate rules, and those are for 

good reason to get input from a number of stakeholders as early 

in the process as possible. Those requirements in and of themselves 

are there for good reason but they don’t cause an undue delay, in 

my experience—there are a number of reasons why OSHA may 

take a long period of time, and I have been a part of some of those 

42 

experiences when I was with OSHA. But they are really outside of 

those regulatory procedural things that OSHA has to do, which, as 

I said, are really to provide additional input from the agency, 

which can be real value added for the policymakers there. 

Mr. ROKITA. Thank you. 

And turning my attention to Mr. Baskin, Ms. Rabinowitz’s testimony highlights that employers can refuse OSHA access to a job 

site and require the agency to seek a warrant, and we have been 

touching on that. You, however, note that employers might be reluctant to do this because it could engender animosity with the inspector—not hard to imagine. 

At issue, though, is that OSHA would be seeking a warrant to 

allow participation by a third party who is not a designated representative of the secretary. Do you believe OSHA will be successful in obtaining a warrant that allows a third party to accompany 

an inspector? 

Mr. BASKIN. Well, I am always reluctant to predict what judges 

will do, but the law seems pretty clear in this situation. Because 

of the violation of the Administrative Procedure Act, if it is contested OSHA should not be successful. 

And I would add to the problems that employers face, first is lack 

of knowledge of what is going on. Chairman Kline asked about the 

Web site. This letter that we have been talking about on the union 

access was issued in February; it was not even posted—it was not 

made public anywhere until April. Months went by while there was 

nothing on any Web site for anyone to turn to. 

And now, even after it has been published, there has been extreme difficulty in making the employers aware of what is going on 

because they are not all sitting by their computers watching the 

OSHA Web site; they are actually engaged in business, trying to 

do what businesspeople do and succeed and survive in this economy. And so they are taken totally by surprise when this happens. 

Then if they have the wherewithal and are willing to stand up 

to the OSHA investigators they have got to call a lawyer—not 

something they are all fond of doing. That lawyer has to be familiar with this issue. It is a fairly narrow thing so not many lawyers 

are. OSHA has the ability to go in to get the warrant ex parte unless the employer and the lawyer make special efforts to show up 

and contest it with the judge. 

So these are all reasons why this is just not the way to do business. This is why you have an Administrative Procedure Act and 

this is why they should not be making these kind of changes without going through the public notice and comment. 

Mr. ROKITA. My time is expired. 

Chairman WALBERG. Gentleman’s time is expired. I thank the 

gentleman. 

And now I recognize gentleman from Wisconsin, Mr. Pocan. 

Mr. POCAN. Thank you, Mr. Chairman. 

Well, you know, listening to the hearing kind of makes me think 

of the bigger, broader issue maybe that we should be discussing, 

which is just the fact that we have got an agency that is in many 

ways handcuffed from doing much of what has to happen. And, you 

know, I have been a small business owner for 26 years in a specialty printing business, so in my industry we have volatile organic 

43 

components and other things that, you know, we have had to deal 

with and understand how that works. 

While I agree with Mr. Hammock that I don’t check the OSHA 

Web site on a regular basis—and no one really does—I also, 

though, do know that I have to deal with things like volatile organic compounds and some of the chemicals I use in my industry 

so I have switched to soy base, promoting the farming industry, because I found that to be a much cleaner alternative. But I know 

my industry area. 

But when I don’t have updated standards it is really difficult to 

then exactly know where you are going. Part of the problem is it 

is Congress and the courts that have somewhat handcuffed OSHA 

from getting done what it wants to. 

Mr. Baskin, just one quick comment: I think when you said some 

of the outside people who come in have no expertise in nonunion 

workplace, to me it doesn’t matter if it is a union workplace or a 

nonunion workplace—if someone is an expert in some of these 

areas they are an expert in some of these areas. I think we are just 

coming at it from different approaches. You are looking at it from 

a union person coming in—union versus nonunion; I am looking at 

it as someone who has expertise so that there is that certainty for 

both the employer and the employees that you have got safety. 

You know, I think the issue that really comes out of this to me 

is the fact that there is only about 2,000 inspectors for 8 million 

workplaces. I think they could expect one—on average, one every 

131 years, if I understand right by the math and how it works, 

with regulations that largely haven’t changed since the decade I 

was born in the 1960s and some going back to the 1940s. 

So I guess the first question I have would be for Ms. Rabinowitz. 

I mean, specifically when you look at the standards that need to 

be changed to update the 400-plus standards, you know, under the 

current rules we have on rulemaking how long would that take, 

and what tools does OSHA need, really, to get that done so that 

employers and employees alike can move in a direction we would 

much rather move but right now are handcuffed by. 

Ms. RABINOWITZ. OSHA has approximately 400 out-of-date exposure limits that were adopted in 1970—between 1970 and 1972 

based on science from the 1940s or 1950s or 1960s. The courts have 

ruled that OSHA has to do those one by one. And based on the 

GAO study, which suggested the average amount of time would be 

about 7 years—I am not that good with math, but you can multiply 

out, it would be decades and decades and decades. 

And they have really thrown their hands up. They can’t figure 

out a way to do this. They don’t have the resources and so they 

have almost stopped trying. 

There have been proposals in the past, two of which—one of 

which was reported out of this committee in what I believe was the 

102nd and 103rd Congress to create a system of periodically updating these basic exposure limits, let’s say every 5 or 10 years, so 

that they corresponded with the recommended limits by other organizations. That went nowhere. 

EPA has a similar process where they update Clean Air Act 

standards on a periodic basis. I am not as familiar with those proposals. 

44 

But there have been a series of proposals. I think there have 

been a series of working groups with business and labor trying to 

figure out a way to fix this problem. It would probably require action by Congress because the statute has currently been interpreted to require OSHA to go one by one. 

Mr. POCAN. And let me just ask one other slightly different question on, you know, it has been implied that somehow something 

has changed recently with how OSHA operates. You know, the letters of interpretation have been used consistently as a core agency 

function, as I understand it regardless of party in charge. Is 

that—— 

Ms. RABINOWITZ. Regardless of party in charge. I would like to 

just cite two examples. 

Mr. Hammock cited this globally harmonized hazard communication system and was critical of a interpretation that OSHA issued 

that defined combustible dust, but the American Petroleum Institute and the American Chemistry Council have sought interpretations from OSHA without notice and comment to clarify how the 

rule would apply to them, and they are both seeking those interpretations and potentially willing to withdraw from litigation if 

they get them. 

There won’t be any notice and comment on the ones they are 

asking for, either. It is the way OSHA does business when it has 

to go into the specifics. 

And with respect to the memo that the gentleman from the Farm 

Bureau has talked about, I went and looked at the definition in the 

2011 memo of where OSHA can inspect. It is verbatim the same 

as the definition of where OSHA can inspect in the 1998 directive. 

And so OSHA, as I understand it, has not changed what it views 

is covered by the farming rider—the small farm rider—and what 

isn’t. 

Whether there has been a factual error that this facility in Nebraska was inspected when it shouldn’t have been, I don’t know the 

answer to that question. I understand it is currently in litigation. 

But when I did some research for this hearing, the statement that 

OSHA uses, and it defines who is covered and who is not covered 

by SIC code, the exact same SIC codes have been listed for more 

than 15 years, so there hasn’t been, in my mind, any change. 

Mr. POCAN. Thank you. 

Chairman WALBERG. Thank you. The gentleman’s time is expired. 

I now recognize my colleague and friend from North Carolina, 

Mr. Hudson. 

Mr. HUDSON. Thank you, Mr. Chairman. 

And thank all of our witnesses for being here today. 

Mr. Hammock, I have talked to business owners every day who 

are overwhelmed by the magnitude of the federal government, how 

present it is while they try to run their business day to day. With 

the new health care law, confusing tax code, anemic economy, there 

is no doubt that we—there is no reason that we should force our 

businesses to comply with impossibly excessive regulation. 

I don’t see how companies can comply with the regulations in the 

face of such enormous cost. The American Foundry Society has said 

that the new silica regulation will cost their industry $2 billion anVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6602 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
45 

nually if implemented. The feasibility to comply with these regulations also concerns me greatly when as much as 40 percent of the 

OSHA-collected silica samples exceed the current standards in the 

construction industry. We need to make sure the industry is not 

burdened with unnecessary regulations that are impossible to comply with. 

Is it true that your testimony that when OSHA undertakes 

changes to existing guidance documents stakeholders are not provided any notice, any advance communication or notification of 

these changes. Is that correct? 

Mr. HAMMOCK. Yes, that is correct. And, you know, as we talked 

about also, just the difficulty for folks really knowing what is out 

there without having, you know, called their OSHA lawyer every 

once in a while to find out when is the last time you, you know, 

read something on OSHA’s Web site. 

Mr. HUDSON. Thank you. Now, there is considerable evidence 

that many of the commercial labs can’t accurately and consistently 

measure silica samples and the proposed PEL, or permissible exposure limit, which is 50 percent of the current limit, let alone the 

proposed action level, which is half of the proposed PEL, or 25 percent of the current limit. OSHA seems to acknowledge this problem 

by providing commercial labs 2 years in which to improve the quality of their silica analysis, yet would still hold employers accountable for complying during that same 2-year period. 

How can OSHA demand compliance for employers who depend 

on the labs for accurate silica analysis when the agency apparently 

believes that many labs aren’t completely up to that standard anyway? 

Mr. HAMMOCK. Yes, and you bring up a very good point with respect to OSHA’s current proposed rule related to crystalline silicone. One of the major issues that has been raised in the course 

of that rule is the extent to which samples can be read at those 

types of levels, and it is of significant concern to folks that have 

silica exposures in their work environments. 

Mr. HUDSON. Well, don’t you think OSHA should give employees 

the same 2-year catch-up it gave the labs? 

Mr. HAMMOCK. Yes. And one thing that I will emphasize, in this 

situation that is something that stakeholders should comment to 

the agency on. OSHA has sought comment on that issue, and I 

think it is important for everyone, employers and employees, to 

comment on those very issues during the rulemaking. 

Mr. HUDSON. I agree. 

Well, OSHA estimates that the average very small business 

owner will spend about $1,100 on compliance with the proposed 

standard each year, yet the cost of hiring someone just to sample 

and analyze a set of silica examples of the two to four sets that 

could be required annually could exceed $1,000—for example, 

$2,000 to $4,000 a year. 

Medical surveillance costs can run $150 per employee every 3 

years, so an employer with 20 employees on medical surveillance 

could pay $1,000 a year just in medical costs. Engineering controls 

and respirants could cost many thousands of dollars. How did 

OSHA derive their value and how does OSHA square the reality 

46 

of expected costs with these estimates that seem to be way off to 

me? 

Mr. HAMMOCK. Yes, they have a methodology—OSHA does— 

that, you know, essentially they find unit costs for various types of 

things that would be required and then they multiply that in sort 

of a crude analysis of it by number of exposed employees or number 

of establishments affected, and that is how they reach those numbers. And I think a lot of folks have raised concerns that those 

numbers are under what they really should be, and I expect that 

OSHA will get a robust record to look at as they go forward with 

that rulemaking as to whether those costs are accurate. 

Mr. HUDSON. Thank you. 

Switching gears quickly—I have got about a minute left—Mr. 

VanderWal, your testimony discusses OSHA’s attempt to redefine 

certain aspects of farming post-harvest, therefore not covered under 

the longstanding appropriations language. Do you believe the activities described are integral to farming operations? 

Mr. VANDERWAL. Thank you. Yes, I do. 

The storage and conditioning of grain is an absolute integral part 

of a farming operation because we spend all the time planting, 

doing the crop protection chemicals, harvesting, doing all the 

things that it takes to produce a great crop, and the ultimate goal, 

like I said, is to sell it. Well, what you have to do is you have to 

dry the corn first if it doesn’t dry down properly in the field; you 

have to finish it all the way to 15 percent. 

And then the prices at harvest are typically lower than the rest 

of the year so we store it for anywhere from 1 to 6 or 8 months 

to try to get a better price. That is part of the farming operation; 

it is not a sideline. 

Mr. HUDSON. Thank you. 

And, Mr. Chairman, my time is expired. 

Chairman WALBERG. Thank the gentleman. His time has expired. 

I recognize myself now for cleanup, 5 minutes of questioning. 

Mr. Baskin, the walk-around letter of interpretation appears to 

create a conflict between the National Labor Relations Act and the 

Occupational Safety and Health Act. What could be the impact of 

this conflict on employers and how should they navigate this apparent conflict? 

Mr. BASKIN. Well, there really is no way for them—for employers 

to navigate it because they are just simply being told that their 

rights under the National Labor Relations Act—their rights of private property, protect those—to protect their property against outsiders—are lost. The statement was made earlier that, well, if they 

start leafleting or start disrupting the employer or the safety inspector can step in, but the damage is done when they cross the 

threshold. This is supposed to be private property. The inspector 

has the right to come in; these outside union organizers who do not 

represent the employers in the workplace do not have that right. 

This is not something where the employer can go file charges or 

do anything. 

Chairman WALBERG. This goes beyond leafleting. 

Mr. BASKIN. Absolutely. It is a protected employer right and it 

is the right of the majority of the employees in that workplace to 

47 

designate who their representatives are going to be. The statement 

was made earlier that there is nothing in the act or in the regulation that makes reference to that, but the act says that it is supposed to be a representative authorized by the employees who is 

doing the walk-around. The regulation says it is a representative 

authorized by employees, shall be an employee of the employer. 

And from that we first went to certain people like safety engineers and hygienists, and now, after a million inspections over 40 

years—a million inspections with no outside union agent allowed 

into a nonunion workplace—suddenly in 2013 OSHA declared, ‘‘Absolutely, let them in.’’ That is wrong without going through the notice and comment. It is unquestionably a change in their longstanding policy. 

Chairman WALBERG. So let me follow that to a question, does the 

walk-around letter of interpretation serve the best interest of the 

majority of employees in the workplace? 

Mr. BASKIN. Well, absolutely not. They haven’t asked for these 

outsiders to come in. They have as much at stake as anyone in that 

workplace who made the—had the concern about the inspection in 

the first place. They are the ones who are working there, and if 

they want a representative there are procedures in place for them 

to properly designate such a representative. 

Chairman WALBERG. And they are the ones most concerned with 

the safety of their own workplace. 

Mr. BASKIN. I would think so. 

Chairman WALBERG. Thank you, Mr. Baskin. 

Mr. VanderWal, with respect to grain bins, are you aware of any 

efforts by OSHA to engage the Farm Bureau or individual family 

farmers in order to gather information related to best practices in 

this area? 

Mr. VANDERWAL. I am not aware of any such effort. 

Chairman WALBERG. No efforts undertaken? 

Mr. VANDERWAL. As far as being part of the Farm Bureau, I 

don’t believe we have been contacted by OSHA to do a cooperative 

program of any kind. 

Chairman WALBERG. A large and respected entity in the agriculture community with best interests and best practices that they 

share regularly with their membership and generally with agriculture. 

You note two situations where OSHA issued citations to family 

farmers in your testimony. In one instance the citations were withdrawn after a reporter made an inquiry about the agency’s citations. Have you heard of other farmers in similar situations that 

have gone unreported? 

Mr. VANDERWAL. We haven’t at this point. As you say, there can 

be cases where people have had those situations arise and haven’t 

said anything. Some may just pay it and try to make it go away. 

But this is a situation where we believe it is a camel’s nose 

under the tent and if we let it get started, and say we get 4 years 

down the road and it starts happening more, then if we start complaining people would say, well, why didn’t you say something 3 or 

4 years ago when this started? We just want to stick up for ourselves and head it off at the pass. 

48 

Chairman WALBERG. Mr. Hammock, OSHA created a chemical 

exposure toolkit with sources other than OSHA’s own regulations 

for exposure limits, as I understand it. OSHA press rollout of the 

toolkit was critical of the agency’s inability to update its own permissible exposure limits. 

Is it appropriate for an agency to undermine its own standards 

through guidance? And then secondly, do you believe the toolkit 

creates certainty and confidence for the regulated community? 

Mr. HAMMOCK. Thank you. I will answer the second question 

first, if I may. 

I think it does create a lot of uncertainty and confusion out 

there, and, you know, for the small business person or even the 

larger business person, as to what they need to drive their certain 

operations to comply with. I think it does create quite a bit of uncertainty. 

And then to your first question, absolutely. Look, it is dismissive 

of their own permissible exposure limits. I mean, I don’t think 

there is any dispute, and the Chamber would agree that the PELs 

that are on the books need to be reexamined and reevaluated. But 

this action is highly dismissive of the existing limits and I do think 

will create a lot of uncertainty for employers out there. 

Chairman WALBERG. Well, I thank the gentleman. 

And I thank the whole witness panel for your time and attention 

to this issue. This is a start of discussion and a continued discussion that ought to go on, and so I thank you for participating with 

us today. 

I would like to recognize the ranking member, Mr. Courtney, for 

any closing comments that he would like to make. 

Mr. COURTNEY. Thank you, Mr. Chairman, again for your, you 

know, wonderful conduct in terms of this hearing and making sure 

all members have a chance to ask questions and all witnesses have 

a chance to answer them. 

I want to just sort of do a little bit of housekeeping before doing 

the final closeout, which is, again, that the opening statement by 

my friend and colleague sort of began with the catechism of folks 

on the other side that this administration is somehow, you know, 

overreaching in terms of its use of executive power. Again, the 

Brookings Institute did an analysis of the Obama administration, 

the Bush II administration, and the Clinton administration in 

terms of the issuance of executive orders. 

On average, over the terms of these Presidents, President Obama 

has issued 33 executive orders, President Bush 35, and President 

Clinton 45. So again, I just want to, you know, at least try to point 

out that the narrative, which again, we are hearing and we are 

going to continue to hear, when you exactly—when you examine it 

through the facts of actual actions by this executive branch, it in 

fact is more modest than the preceding two administrations. 

Secondly, you know, Mr. Baskin, your comment that the law requires that only employees be participating in the walk-around, 

again, I would just read to you the 1973 regulation from OSHA, 

which states that ‘‘the representatives authorized by employees 

shall be an employee of the employer,’’ period, but it doesn’t stop 

there. It states, ‘‘However, if in the judgment of the Compliance 

Safety and Health Officer, good cause has been shown why accomVerDate Nov 24 2008 16:41 Mar 04, 2014 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6602 G:\DOCS\113TH\WP\113-43\86487.TXT DICK
49 

paniment by a third party who is not an employee of the employer 

(such as an industrial hygienist or a safety engineer)’’—and that is 

just examples—‘‘is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third 

party may accompany the Compliance Safety and Health Officer 

during the inspection.’’ 

Again, Ms. Rabinowitz cited court cases that have shown that 

even in nonunion workforces or places where there is a strike and 

replacement workers are present, union representatives, again, and 

in the opinion of the compliance officer makes sense to be the person representing the employees during inspections, that is perfectly 

legal, and these cases go back long before this administration. 

And lastly, it may be true that the South Dakota Farm Bureau 

has not participated with OSHA, and that is unfortunate and I 

hope that that would change, because I think that as in my state, 

you know, in fact, there is collaboration of employer groups with 

OSHA to try and, again, get best practices out there in an informational, consensus-building, non-confrontational, non-adversarial setting. 

However, I would point out that after the settlement that OSHA 

had in South Dakota with the Wheat Growers, where again, it was 

a $1.6 million fine assessed, they cut it in half because the Wheat 

Growers agreed to basically coordinate training exercises with local 

fire departments and five rescue tubes were installed, which saved 

the life, by the way, of a worker who was engulfed. And again, that 

is an example of collaboration which has actually happened in 

South Dakota in this very terrible, you know, difficult area of work, 

which again, I know you care about and I know you want to be 

part of the solution to those situations. 

And there I just would begin by saying that as we review 

OSHA’s efforts to protect workers we should remember the voices 

of workers’ families whose loved ones died in preventable accidents. 

Catherine Rylatt sent us a statement about her nephew, Alex 

Pacas, age 19, who suffocated from walking the corn on his second 

day of work at the Haasbach grain storage facility in Illinois back 

in 2010. 

She wrote: On July 28, 2010 in Mt. Carroll, Illinois around 7 

a.m. my nephew Alex, age 19, reported to his second day of work 

with his best friend, Will Piper, then age 20, and coworkers Wyatt 

Whitebread, age 14, and Chris Lawton, age 15. The four young 

men were sent to bin number 9 to knock down corn that had built 

up on the interior walls and shovel grain towards the open sump, 

situated over the operating unloading conveyer below. 

A 911 call was received at 9:56 a.m. that said people were 

trapped in a grain bin. Word spread quickly through the small 

community and soon family, friends, and townspeople gathered at 

the site in the scorching July heat. 

The families did not know when they arrived the most horrific 

of events had already taken place. Shortly before 10 a.m. Wyatt, 

the 14-year-old, became caught in moving grain. Terrified, he 

screamed for help as he started sinking. 

When a rescue attempt by three other boys was futile, Chris escaped to get help. Alex and Will continued pulling on Wyatt, determined to save him. Wyatt was almost freed from the flowing corn 

50 

when the surface shifted, trapping Will and Alex. Now helpless, 

they witnessed Wyatt, still screaming, sink beneath them and become completely covered. 

One shudders to think what the last thoughts of this frightened 

child—he was a baby in my book—were as he became entombed 

alone in the darkness before his life was snuffed out by millions of 

corn kernels. Wyatt was dead before the 911 call was even made. 

Holding each other’s hands, Will and Alex clung to hopes of rescue as the grain flowed higher around them. Alex strained to keep 

his face free while Will franticly kept brushing grain away. Will 

was in a desperate frenzy, attempting to keep Alex alive even when 

Alex’s hand stopped squeezing his beneath the dried kernels. 

These tragedies are completely preventable. In this case, the employer had purchased harnesses which could have prevented the 

disaster, but never provided the necessary training or equipment. 

Mr. Chairman, I respectfully request that the statement of Catherine Rylatt be included in the hearing record. 

[The information follows:] 

Prepared Statement of Catherine A. Rylatt, MPA 

My name is Catherine A. Rylatt. I am the maternal aunt of Alex Pacas, a grain 

bin fatality victim. I am respectfully writing on behalf of my family. 

On July 28, 2010 in Mt. Carroll, Illinois around 7:00 AM my nephew Alex, age 

19, reported to his second day of work with best friend Will Piper (then age 20) and 

co-workers Wyatt Whitebread, age 14, and Chris Lawton age 15. The four young 

men were sent to Bin # 9 to knock down cornthat had built up on the interior walls 

and shovel grain toward the open sumps situated over the operating unloading conveyor below. 

A 911 call received at 9:56 AM said people were trapped in a grain bin. Word 

spread quickly through the small community and soon family, friends, and townspeople gathered at the site in the scorching July heat. They were told rescuers were 

in contact with one of the 3 boys trapped. The area filled rapidly with an assortment 

of vehicles as over 200 rescuers arrived from other locations. Farmers and truckers 

lined the highway for miles to haul off grain emptied from the bin. 

The families did not know when they arrived, the most horrific of events had already taken place. Shortly before 10 AM, Wyatt became caught in moving grain. 

Terrified, he screamed for help as he started sinking. When a rescue attempt by the 

3 other boys was futile, Chris escaped to get help. Alex and Will continued pulling 

on Wyatt, determined to save him. Wyatt was almost freed from the flowing corn 

when the surface shifted, trapping Will and Alex. Now helpless they witnessed 

Wyatt, still screaming, sink beneath them and become completely covered. One 

shudders to think what the last thoughts of this frightened child were as he became 

entombed alone in the darkness before his life was snuffed out by millions of corn 

kernels. Wyatt was dead before the 911 call was made. 

Holding each other’s hands, Will and Alex clung to hopes of rescue as the grain 

flowed higher around them. Alex strained to keep his face free while Will frantically 

kept brushing grain away. Alex realized he was going to die. He sought God’s forgiveness for his sins and begged Will to pray the Lord’s Prayer with him. Frightened, hands still clasped together and covered by corn, the two prayed. Will in desperate frenzy attempting to keep Alex alive even when Alex’s hand stopped squeezing his beneath the dried kernels. Rescuers arrived and surrounded Will with a 

grain tube, enclosing him with Alex’s body. In and out of consciousness, Will braced 

himself against the body of his best friend to keep himself above the surface until 

he was finally freed at 3:15 PM and air lifted to a trauma center. The three mothers, watching the helicopter leave, remained hopeful. 

Around 3:30 PM, officials met individually with the families. My sister, Annette 

Pacas, was informed Alex, her eldest child and brother to 6 siblings, mischievous 

and energetic since birth, dreaming of becoming a robotics engineer and designing 

prosthetics, would not return home again. His body was recovered at 10:15 PM. Seeing him, my sister spit on her dusty blouse and began wiping the dust from her 

child’s face. 

Dr. and Mrs. Whitebread’s son, Wyatt, was recovered at 10:30 PM. Their youngest 

child, a beautiful, exuberant, full-of life, contagiously smiling 14 year old would 

51 

1 Capacity of off-farm commercial grain storage in the United States totaled 10.4 billion bushels on December 1, 2013 up from 8.5 billion bushels in 2003. By contrast, United States onfarm storage capacity totaled 13.0 billion bushels in 2013 up from 11.0 billion bushels December 

1, 2003. USDA, National Agricultural Statistics Services, Grain Stock reports. 

never again make them laugh. They had talked to the manager and had been assured Wyatt would not be inside a bin with grain. 

On this fateful day, Haasbach, LLC, the owners of Bin #9, called their attorney 

first; they never called OSHA. The father of one of the Haasbach partners alerted 

the media—then called OSHA. OSHA arrived on the scene in the late afternoon and 

began an investigation. During the days that followed OSHA investigators discovered safety harnesses, still in original wrappings, hanging in a shed—the purchase 

resulting from an insurance risk report. The boys never knew the harnesses were 

there. 

With recently publicized cases of engulfment in the background—one involving 

the death of 17 year old Cody Rigsby in Colorado—the Mt. Carroll incident took on 

even greater significance. OSHA issued an advisory letter to the grain industry on 

August 4, 2010 reminding them of the hazards of bin entry and the standards to 

follow. Yet within 3 weeks another Illinois man was fatally engulfed. More engulfments continued, prompting OSHA to resend the warning letter to over 10,000 registered grain operations on February 1, 2011. 

OSHA issued 25 citations, including 12 willful violations, and proposed fines of 

$550,000. Haasbach argued throughout the investigation and appeal process OSHA 

had no jurisdiction. They claimed theirs was a small farming operation exempt 

under the appropriations rider from OSHA enforcement. However, this facility was 

not physically connected to a farm. On December 6, 2011, Haasbach settled the proposed fines for $200,000 with OSHA, along with $68,125 in civil monetary penalties 

assessed by the Department of Labor’s Wage and Hour Division for violaitons of 

child labor laws. 

While blames OSHA for its greater scrutiny and farmers rally against anything 

perceived as a regulation, people continue to die and be injured in farm and commercial grain storage facilities. In case after case after case, whether it is on a farm 

or at a commercial elevator, the reasons people are killed and injured are repeated 

over and over. The prevention methods, around for 30 some years, are not just 

OSHA regulations, but also ‘‘Best Practices’’ put forth by a variety of agricultural 

sources including the USDA and the farm bureau associations. 

In the 31⁄2 years since the death of my nephew, I have seen a concerted effort by 

OSHA and others to try and address hazards associated with grain handling and 

storage at commercial facilities and on farms through a combination of enforcement, 

outreach, and training/education efforts for both their staff and the grain & farm 

industry. They all understand and respect the vital role the farmers and grain industry play in our nation. Their work produces food, feed for livestock, fuel, plastics, 

medicine, and so much more. Yet, as the demand for these products increases so 

will the yield and the need for storage—safe storage. 

The efforts OSHA has taken alongside others were not born out of a political desire to over extend their authority as many have suggested. Instead, we are seeing 

something we don’t often experience with our government—HUMANENESS. The 

deaths of Wyatt and Alex, coming so closely on the heels of Cody Rigsby, deeply 

touched many people. These were followed by Tommy Osier’s death, Memorial Day 

2011 (Michigan). Tommy had just turned 18 when he was engulfed in a silo on a 

farm. August 2011 Oklahoma teenagers, Tyler Zander and Bryce Gannon, each lost 

a leg when they got caught in an unguarded auger while working in a grain bin. 

An area OSHA and this Committee can address is how far ‘‘farms’’ can stretch 

the definitions and intent of the appropriations rider—like Haasbach attempted. 

The boundaries that once separated farms and farm storage from commercial operations have become increasingly blurred. Farms incorporate to achieve tax breaks, 

obtain grain storage and/or merchandising licenses, enter into contractual relationships with commercial facilities and with each other. Yet, when convenient, they 

want to be treated as though they are simply small family farms. Farms are building more bins, and bigger bins, with on-site storage rivaling the local commercial 

elevator.1 The business has changed and yet our definition of ‘‘small farm’’ has remained the same for nearly 40 years. 

When taken out of context, the assertions of farms being inspected and Congressional letters asserting OSHA is circumventing the law have sparked a needless debate—A debate that needs to end now. Making the issue of safety in grain operations a political, partisan, volleyball; casting OSHA as a power hungry villain, and 

perpetuating exaggerated claims is NOT helpful or conducive to finding a solution. 

52 

It would serve the citizens of this country better if energies (and monies) were 

spent working together to craft a creative and meaningful solution to worker safety—whether on a ‘‘small farm’’ or a commercial grain facility. 

We need a solution that takes into account the changing role of farms; the 

changes and growth in production, processing, storage, movement, and transportation of grain; and the changing relationships between farms and ‘‘commercial’’ entities. We need a solution based on protecting workers’ lives no matter where he/ 

she is employed. We need a solution that transcends our normal politics and is not 

dictated by partisanship and money. We need a solution that recognizes whether the 

worker is a farmer’s son, a young man trying to earn money for college, a 20 year 

veteran at a commercial grain facility, his (or her) life is equally IMPORTANT and 

should be PROTECTED—especially when we know what the hazards are and we 

know how to prevent them. 

Chairman WALBERG. Without objection, and hearing none, it will 

be included. 

Mr. COURTNEY. As we conclude this hearing, Mr. Chairman, I 

hope that we keep in mind the important role that OSHA fills in 

improving accountability and preventing future tragedies. After a 

grain entrapment in South Dakota, which I mentioned earlier, the 

Wheat Growers were assessed $1.6 million in fines but cut them 

in half as part of a settlement which required the employer to purchase five Liberty Rescue Tubes and to coordinate training exercises with local fire departments. 

As a result of this training and equipment, firefighters were able 

to save the life of a worker who was engulfed in a gulf bin at the 

Watertown Co-op. 

I want to thank you again for holding this hearing, Mr. Chairman, and I want to thank all of our witnesses for being here today. 

I yield back the balance of my time. 

Chairman WALBERG. I thank the gentleman, and I thank you for 

the reminder of a reality of the issue we are dealing with, that sad 

illustration of people trapped in that type of accident. And it is certainly all the desire of the communities represented here today at 

the witness table, in the room, and certainly at the dais here on 

both sides of the aisle that those accidents be prevented. 

But I think there is the challenge that we wrestle with today 

that as we want to prevent them and take precautions in the future and work in a regulatory relationship—regulators, employers, 

industry personnel, employees, and members of Congress—that it 

be done in a partnership fashion. 

We certainly appreciate the fact that this is to be a year of action 

and moving forward in positive ways for our country. But we also 


86487-1.eps
53 

want to make sure that as the President uses executive order and 

other approaches to dealing with concerns that he has and this administration has, and rightfully, that other administrations have 

used as well, that we certainly don’t overstep the bounds of the responsibility that Congress has. 

I must admit, as I listened to the State of the Union address last 

week, when this statement was made that the President was willing and was going to move forward, if Congress wouldn’t act, he 

would, and to see the response of a good number of my colleagues 

who stood to applaud the President stepping in an area that was 

our authority, our responsibility under the Constitution—to wrestle 

with the concerns of both our employee constituents and our employer constituents, to wrestle with issues of safety and security, 

but wrestle with issues as well of moving this country forward and 

remaining the leader in the world for production and employment 

and provision, in certain cases, as we are talking about today, provision of food sources for the entire world and not just our nation— 

that we proceed with due process but with caution, as well. 

There are reasons why we are in a situation we are in, and having that continuing creative tension between the bureaucracy and 

between the elected representatives of the people to make sure that 

all best interests are served with liberty still assured. 

I remember a recent trip to Uganda, and going on a peace and 

reconciliation effort, non-congressional, up to the north of Uganda, 

where we had the atrocities with Kony and the Lord’s Liberation 

Army and the child soldiers and all of that, and to see that area 

of Uganda attempting to make a rebound and reconciliation but 

also in its agricultural economy, and something coming from the 

agriculture community of the Seventh District of Michigan, that I 

am privileged to represent, I wouldn’t even contemplate that one 

of the reasons why the farmers in that area weren’t able to benefit 

from all of their labor done by the sweat of their brow in just sustenance-type farming was because they didn’t understand the concept 

or have the ability to store their grain. And so I saw a community 

there working together to produce and build a granary. 

Now, I am sure that we could help them in making sure that 

they have harnesses and all of the rest available to them. At this 

point it wasn’t going to be a tall granary, but it was going to be 

a granary nonetheless so that they could save and store their crops 

until the appropriate time to sell it, which would provide resources 

for their families way beyond what they were able to at this 

present time and ultimately produce an economy that was sustainable beyond just eating what they took from the fields that day. 

Now, that is what I see here, and I would say that we must proceed cautiously when we move into regulation that we highlight 

today in a specific way related to our farmers, our family farm. We 

want our kids to be safe on the farm. 

My son works at a granary, works at a major granary in Southeast Michigan, and uses the harnesses that are available and lives 

under OSHA requirements because it is an actual elevator operation. I know that the farmers in my area have concerns and try 

to address that to the best of their ability. 

And so this is an issue that I am concerned that we address and 

we as members of Congress take the position that we will push 

54 

back when necessary and support when necessary bureaucratic 

regulation that goes on, but it must make sense. 

And so that also goes in the walk-around issues, to make sure 

that our employees are truly represented and that we don’t have 

people on site that have one interest in mind potentially, because 

we can’t determine for certain what they are thinking if they come 

on with the potential of organizing. That hasn’t been the process 

in the past and I think it is appropriate that we consider that 

today. 

One other point I will mention to make it clear, that in relationship to organizing issues, it is in direct contravention of OSHA’s 

field operations manual—let me make it clear—that the interpretive guide for OSHA inspectors states this, and it has stated this: 

Under no circumstances are inspectors, CSHOs, to become involved 

in an onsite dispute involving labor management issues or interpretation of collective bargaining agreements. 

This is the wording, the language presently in place: During an 

inspection the CSHOS, inspectors, will make every effort to ensure 

that their actions are not interpreted as supporting either party to 

the labor dispute. This is a concern and another reason for the 

hearing that we have had today. 

And I appreciate the witness testimony from both sides of the 

spectrum. I appreciate the attention of the subcommittee members 

and the staff in putting this together. 

And we will continue looking at it aggressively, pushing back, 

asking questions of OSHA related to this as we move forward, but 

again, all with the effort to make sure that safety and security goes 

along with success and opportunity in the workplace for both employer and employee. 

There being no further business to come before the subcommittee 

today, the subcommittee stands adjourned. 

[Additional submission of Hon. George Miller, senior Democratic 

member, Committee on Education and the Workforce, follows:] 

Prepared Statement of Hon. David Michaels, Ph.D., MPH, Assistant Secretary, Occupational Safety and Health Administration, U.S. Department 

of Labor 

Thank you for this opportunity to submit a statement for the record of the February 4, 2014, hearing entitled, ‘‘OSHA’s Regulatory Agenda: Changing Long-Standing Policies Outside the Public Rulemaking Process.’’ I hope this statement provides 

additional information and context with respect to some of the issues raised during 

the hearing, particularly in regard to safety concerns with certain OSHA incentive 

programs, the permissible use of walk-around representatives during OSHA inspections, OSHA’s online posting of annotations related to permissible exposure limits, 

and OSHA’s policies concerning small farms and outreach to the agricultural industry. 

At the outset, let me note that OSHA has a robust rulemaking process that allows 

for and encourages extensive stakeholder involvement through public comment periods and public hearings during rulemaking. While the Occupational Safety and 

Health Act of 1970 (OSH Act) is clear when rulemaking procedures are required, 

the OSH Act also encourages OSHA to ‘‘develop innovative methods, techniques, 

and approaches for dealing with occupational safety and health problems.’’ OSHA 

values an open and transparent process that provides all interested stakeholders 

with the opportunity to be informed about and meaningfully participate in DOL’s 

rulemaking efforts. The OSH Act, section 21(c)(2), also directs OSHA to consult with 

and advise employers and employees, and organizations representing employers and 

employees as to effective means of preventing occupational injuries and illnesses. 

OSHA’s significant public outreach and education efforts were established over 40 

years ago to carry out this function. 

55 

1 29 U.S.C. § 657(e). 

2 29 C.F.R. §§ 1903.8(a)-(d). 

3 Id. 

4 29 C.F.R. § 1903.8(c). 

Incentive Programs 

Effective safety programs rely on accurate injury reporting. We know that most 

employers want to comply with the law and accurately report their employees’ injuries. Unfortunately, some employers, particularly in high-hazard industries, have 

implemented programs that, inadvertently or by design, discourage injury reporting. 

Depending on the environment, workers may fear retaliation from their employer, 

such as being disciplined or fired if they report an injury; or may be pressured by 

co-workers not to report an injury in order not to jeopardize a group reward. If accurate injury records are not compiled because workers believe they will be fired or 

lose a benefit for reporting an injury, or supervisors fear they will lose their bonuses 

or even their jobs if workers report injuries, real safety cannot be achieved. 

On March 12, 2012, OSHA issued a memo, ‘‘Employer Safety Incentive and Disincentive Policies and Practices,’’ to address problems with these policies. This 

memo states that, since section 11(c) prohibits an employer from discriminating 

against an employee because the employee reports an injury or illness, ‘‘[i]ncentive 

programs that discourage employees from reporting their injuries’’ may violate the 

OSH Act’s antidiscrimination language if they result in employees being disciplined 

or otherwise treated less favorably than they would have been otherwise. And, only 

‘‘if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries,’’ would there be a possible violation of OSHA’s recordkeeping standard. The memo does not say that the mere existence of any incentive policy violates 

the law, only that the consequences of some policies may result in noncompliance 

if such policies deter employees from reporting injuries. 

Walk-around Representatives 

Section 8(e) of the OSH Act provides that, ‘‘[s]ubject to regulations issued by the 

Secretary, a representative of the employer and a representative authorized by his 

employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace * * * for the 

purpose of aiding such inspection.’’1 These representatives are sometimes referred 

to as ‘‘walk-around representatives.’’ OSHA’s regulations implementing section 8(e) 

have always permitted non-employee third-party representatives designated by 

workers at the worksite to accompany OSHA inspectors on walk-around inspections—something that is fully consistent with the language and intent of this provision. Under OSHA’s regulations, a Compliance Safety and Health Officer (CSHO) 

has significant discretion with regard to who may participate in inspections.2 In particular, the CSHO may permit third parties to be walk-around representatives if the 

CSHO finds that the third party would make a positive contribution to a thorough 

and effective inspection.3 Although the regulations state the general rule that walkaround representatives ‘‘shall be’’ employees of the employer, the regulations explicitly allow walk-around participation by a non-employee representative when, in the 

judgment of the CSHO, such a representative is ‘‘reasonably necessary to the conduct of an effective and thorough physical inspection.’’ 4

Allowing non-employee third-party representatives to accompany OSHA inspectors on walk-around inspections is, therefore, not a new OSHA policy. The OSH Act 

itself states that ‘‘a representative authorized by [the] employees’’ may accompany 

the inspector. OSHA has interpreted this language to mean that, subject to some 

limitations, it is up to the employees to choose a representative who will accompany 

the CSHO during a workplace inspection. 

Annotated Permissible Exposure Limits (PELs) Website 

There is broad consensus within the Nation’s health and safety community that 

many of OSHA’s PELs are based on half century-old science, and provide inadequate protection for today’s workers. In fact, even the testimony presented on behalf of the U.S. Chamber of Commerce at this hearing agreed that many of OSHA’s 

PELs are out of date and a number of stakeholders have urged OSHA to update 

these standards. The OSH Act mandates OSHA to ‘‘provide for the establishment 

and supervision of programs for the education and training of employers and employees in the recognition, avoidance, and prevention of unsafe or unhealthful working conditions in employments covered by this Act.’’ Where there is scientific consensus that many of OSHA’s PELs do not provide for safe or healthful working conditions, the OSH Act allows OSHA to state that fact, and, where necessary, to provide guidance and information to workers and employers on how to provide effective 

56 

protection. The information posted on OSHA’s website regarding PELs is designed 

to fulfill this obligation. 

Small Farms Policy and Agricultural Outreach 

Fatalities can occur in grain storage facilities when workers become buried by 

grain as they walk on moving grain or attempt to clear grain built up on the inside 

of a grain bin. Moving grain acts like quick sand, entrapping and suffocating the 

worker. Since 1987, OSHA has had a standard that establishes common sense, effective, and safe practices that grain handling facilities must follow to prevent workers 

from becoming entrapped. In 2010, there was a dramatic increase in the number 

of workers entrapped and suffocated in grain storage structures while performing 

grain handling operations. During the same year, researchers affiliated with the Agricultural Safety and Health Program at Purdue University documented a series of 

cases in which a total of 57 workers were entrapped by grain. Thirty one of those 

workers lost their lives, the highest number of annual fatalities on record since 

1964. 

As a result of these tragedies, OSHA has focused its resources on preventing grain 

entrapment fatalities through industry outreach, education, technical assistance, 

and targeted enforcement. In 2011, OSHA sent a letter to approximately 13,000 

grain facilities, describing safety measures and detailing how to comply with 

OSHA’s standard. Since OSHA launched its prevention initiative, the number of 

documented annual grain entrapments for 2012 compared to 2010 decreased by 67 

percent (from 57 in 2010 to 19 in 2012) and the number of workers killed in these 

entrapments decreased by 74 percent (from 31 in 2010 to eight in 2012). 

OSHA is also well aware of the appropriations rider that prevents it from inspecting the vast majority of small family farms, and the agency strives to ensure full 

compliance with the small farming operations exemption. OSHA, in consultation 

with the U.S. Department of Agriculture, is currently working on revised guidance 

to clarify that rider for its field staff. In the interim, to ensure consistent and appropriate enforcement of OSHA standards, OSHA has instructed its Field Offices, in 

cases of uncertainty, to request clarification from the National Office when determining if farming operations are exempt. 

Over the past several years, OSHA, at both the regional and national level, has 

engaged in extensive outreach to the agriculture community, including state Farm 

Bureaus. These efforts have included meetings, conferences, presentations, posters, 

brochures, websites, fact sheets, and Public Service Announcements to educate farm 

owners and employees about the hazards involved in grain handling and appropriate safety precautions. For instance, OSHA’s Area Office in Aurora, Illinois, has 

worked closely with the Illinois Farm Bureau in its capacity as a member of the 

Grain Handling Safety Coalition (GHSC). The GHSC is a broad-based, diverse consortium of associations, agencies, and individuals with an interest in ensuring safe 

grain handling operations. In collaboration with this group, OSHA’s Area Office has 

developed training modules and safety alerts, and has participated in multiple outreach sessions and conferences. In Wisconsin, OSHA has participated in multiple 

training and outreach sessions with the Wisconsin Farm Bureau since 2010. In addition, in November 2012, OSHA formed an alliance with the Wisconsin Agri-Business Association (WABA). WABA represents more than 320 members engaged in agricultural business across Wisconsin. This Alliance focuses on the hazards addressed 

by OSHA’s Grain Handling Local Emphasis Program (LEP): engulfment, falls, auger 

entanglement, struck by hazards, combustible dust, and electrocution. As part of the 

Alliance, OSHA and WABA representatives meet quarterly to discuss projects to 

educate and inform employers on grain handling and other workplace safety topics. 

The Alliance participants held a series of webinars in 2012 on various topics, including confined space entry, fall hazards, engulfment hazards, combustible dust, electrical issues, sweep auger entanglement, and lockout. More than 60 sites participated in these webinars, which received excellent reviews. Future activities with 

this alliance, and the many more OSHA has throughout the country will continue. 

Finally, valuable information on grain handling can be found here: http:// 

www.osha.gov/SLTC/grainhandling/index.html. 

Thank you for this opportunity to submit this statement for the record. I look forward to continuing to work with this committee and welcome future opportunities 

to discuss how we can better protect workers. 

[Whereupon, at 11:30 a.m., the subcommittee was adjourned.] 

Æ