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S. HRG. 112–725 

TIME TAKES ITS TOLL: DELAYS IN OSHA’S 

STANDARD-SETTING PROCESS AND THE 

IMPACT ON WORKER SAFETY 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

ON

EXAMINING DELAYS IN OSHA’S STANDARD-SETTING PROCESS AND THE 

IMPACT ON WORKER SAFETY 

APRIL 19, 2012 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

TOM HARKIN, Iowa, Chairman 

BARBARA A. MIKULSKI, Maryland 

JEFF BINGAMAN, New Mexico 

PATTY MURRAY, Washington 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

KAY R. HAGAN, North Carolina 

JEFF MERKLEY, Oregon 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

RICHARD BLUMENTHAL, Connecticut 

MICHAEL B. ENZI, Wyoming 

LAMAR ALEXANDER, Tennessee 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

ORRIN G. HATCH, Utah 

JOHN MCCAIN, Arizona 

PAT ROBERTS, Kansas 

LISA MURKOWSKI, Alaska 

MARK KIRK, IIllinois 

PAMELA J. SMITH, Staff Director and Chief Counsel 

LAUREN MCFERRAN, Deputy Staff Director 

FRANK MACCHIAROLA, Republican Staff Director 

(II) 
C O N T E N T S 

STATEMENTS 

THURSDAY, APRIL 19, 2012 

Page 

Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and 

Pensions, opening statement ............................................................................... 1 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, opening 

statement .............................................................................................................. 3 

Moran, Revae, Director, U.S. Government Accountability Office, Washington, 

DC .......................................................................................................................... 6 

Prepared statement .......................................................................................... 8 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia ....................... 20 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 22 

Ward, Tommy C., Jr., Member, Local 1 Michigan, International Union of 

Bricklayers and Allied Craftworkers, Woodhaven, MI ..................................... 25 

Prepared statement .......................................................................................... 26 

Silverstein, Michael, M.D., MPH, Clinical Professor of Environmental and 

Occupational Health, University of Washington School of Public Health 

and Community Medicine; Retired Director of State OSHA Program at 

Washington State Department of Labor and Industries, Seattle, WA ............ 29 

Prepared statement .......................................................................................... 31 

Rabinowitz, Randy, Director, Regulatory Policy, OMB Watch, Washington, 

DC .......................................................................................................................... 37

Prepared statement .......................................................................................... 39 

Sarvadi, David G., Partner, Keller and Heckman LLP, Washington, DC .......... 47 

Prepared statement .......................................................................................... 49 

Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut ........ 63 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

American Composite Manufacturers Association .......................................... 72 

Response to questions of Senators Harkin and Enzi by: 

Michael Silverstein, M.D., MPH .............................................................. 77 

Randy Rabinowitz ..................................................................................... 79 

Response to questions of Senator Enzi by David Sarvadi ............................. 83 

Letters: 

Coalition for Workplace Safety (CWS) ..................................................... 84 

RAND Corporation .................................................................................... 85 

Keller and Heckman LLP ......................................................................... 86 

(III) 

(1) 

TIME TAKES ITS TOLL: DELAYS IN OSHA’S 

STANDARD-SETTING PROCESS AND THE IMPACT ON WORKER SAFETY 

THURSDAY, APRIL 19, 2012 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10:05 a.m., in Room 

SD–430, Dirksen Senate Office Building, Hon. Tom Harkin, chairman of the committee, presiding. 

Present: Senators Harkin, Enzi, Murray, Isakson, Whitehouse, 

Franken, and Blumenthal. 

OPENING STATEMENT OF SENATOR HARKIN

The CHAIRMAN. The Senate Committee on Health, Education, 

Labor, and Pensions will please come to order. 

We’re here today to discuss the important issue of workplace 

safety and, specifically, why it takes so long for OSHA to issue a 

new safety standard. We are going to hear from GAO about a new 

study finding that there are alarming delays in this process. But 

before I get into what the report says, I first want to talk about 

why delays at OSHA matter. 

Statistics tell us that 12 American workers are likely to die today 

from a workplace injury. Countless more will be seriously hurt or 

contract a fatal illness or disease in their workplace. These injuries 

take a massive toll on our economy and society, dramatically increasing the costs of medical care and decreasing productivity in 

workplaces across the country. 

But these economic costs don’t begin to reflect the grief that families feel when their lives are torn apart by a tragedy on a job. No 

dollar figure can capture what a family must endure when a loved 

one goes to work in the morning and never comes home again. 

In honor of Workers’ Memorial Day, which is later this month, 

I’d like to now take a moment to acknowledge some people that are 

in attendance here today. These are the family members of victims 

of workplace tragedies and others who have been personally affected by workplace deaths and injuries. I know many of you have 

brought pictures. Others of you haven’t. 

So could I ask all of you who are here who have had a family 

member, a loved one, others who have been affected by workplace 

deaths and injuries—could you please just stand up? Let’s just see 

how many of you are here. And you all have pictures. Thank you 
2 

very much for being here. You add greatly to our hearing. Thank 

you. 

The pictures that you hold are the faces that we should remember every time we hear that safety rules are too burdensome or 

that regulations cost jobs. Safety rules save workers’ lives, and that 

should be our top priority. 

I now ask that the statements of these individuals be included 

in the record. 

[The information referred to may be found in Additional Material.] 

The CHAIRMAN. Keeping our workers safe is the responsibility of 

every employer across this country. The Occupational Safety and 

Health Administration’s job is to make sure that employers are living up to this responsibility. While there are many tools that 

OSHA can use to achieve these goals, safety standards are among 

the most important and most effective ways that OSHA can help 

save lives. 

But, unfortunately, as we will hear today, the standard-setting 

process at OSHA is broken. Even when the evidence is undeniable 

that our workers are dying from workplace hazards, OSHA still 

takes an eternity to issue a new safety rule. It took OSHA nearly 

a decade to issue a commonsense rule on crane safety. In the 

meantime, several cranes toppled and lives were ruined. OSHA’s 

silica standard has been under consideration since 1974. But 

OSHA hasn’t even published a proposed rule yet for the public to 

even comment on. 

Since the 1980s, it has taken OSHA an average of almost 8 years 

to put out a final rule. That’s 50 percent longer than the EPA, 

twice as long as the Department of Transportation, and five times 

as long as the SEC takes to issue a rule. Detailed scientific analysis is a big part of OSHA rulemaking, and, of course, that analysis 

is going to take time. But 8 years seems to be unduly long. 

The GAO report explores some of the procedural problems that 

hamstring OSHA’s efforts. It tells us how inefficient the process is. 

I know today’s witnesses will offer even more constructive criticism 

of OSHA’s rulemaking. No one wants or expects OSHA to issue 

new rules without careful consideration of the impact on health 

and the cost of compliance. But it is simply unconscionable that 

workers must suffer while an OSHA rule is mired in bureaucracy. 

Slow procedures alone cannot explain why OSHA has issued so 

few rules recently. Rules have always taken a long time to finalize. 

Yet, after putting out 47 new safety standards in the 1980s and 

1990s, OSHA has put out only 11 since then. I might note that the 

Reagan administration issued new rules at a rate four times faster 

than the current Administration. 

I suspect that the lack of new rules is at least partly the result 

of relentless external pressure from business lobbyists and antilabor groups. These groups pressure both OSHA and OMB to create delays that cost lives. 

Today, rather than hearing outrage over worker deaths, we hear 

misinformation campaigns from corporate lobbyists about OSHA 

supposedly killing jobs. We see legislative proposals that call for 

blanket prohibitions on new regulations and proposals to add even 

more red tape to the regulatory process. Some folks don’t seem to 
3 

be satisfied until it will take 80 years for OSHA to issue a regulation instead of 8. But that is unacceptable. 

The truth is that OSHA doesn’t kill jobs. It keeps jobs from killing people. OSHA’s process must be reformed to be more responsive 

to workplace safety concerns, not less. We must come up with ways 

for OSHA to do its job without intimidation or interference. 

I know GAO has some ideas on how to do this, and I think the 

witnesses from our second panel have even more ideas. So I look 

forward to today’s hearing and I hope it can be the start of a productive conversation about making workers safer. 

And with that, I will turn to Senator Enzi for his opening statement. 

OPENING STATEMENT OF SENATOR ENZI

Senator ENZI. Thank you, Mr. Chairman, and thank you for holding this hearing today. This is the first workplace safety hearing 

the HELP Committee has held since 2010, when we spent a great 

deal of time discussing mine safety because of the most tragic accident in 40 years that had just occurred at the Upper Big Branch 

Mine in West Virginia. Twenty-nine men lost their lives in that 

single accident, yet they represent just a fraction of the workplace 

deaths that occur all over the world. 

Here in the United States, statistics confirm that we are making 

significant progress. Workplace fatalities, injuries, and illnesses 

continue their historic decline. Since 2003, injuries and illnesses 

have decreased by nearly 30 percent, and fatal injuries have decreased 19 percent. 

Despite this decline, I agree with the Chairman that we can and 

must do better. I remember when my daughter was going to have 

a tonsillectomy, and the doctor explained to us that it’s 99.9 percent safe. But it occurred to me that if that one tenth was my 

daughter, it was 100 percent to me, and I recognize that to all of 

you in the audience, too. So we do have to do better. 

Workplace safety is surely one of the most important missions 

Congress has authorized for the Department of Labor. There are 

literally lives and livelihoods on the line. This hearing focuses on 

one tool: issuing new safety and health standards by regulation. 

This is a necessary tool. I’m interested in the findings of the Government Accountability Office, GAO, on this subject. 

But I would also encourage OSHA to better pursue multiple 

methods to improve safety, rather than focusing all its resources 

into new regulations and stronger enforcement. Voluntary programs involving employees and management, such as the Voluntary Protection Programs, have been shown to make workplaces 

considerably safer and save money. Yet under the current Administration, VPP has been threatened and undermined. Instead, we 

should be talking about expanding VPP to smaller employers and 

making it even more effective. 

I’m pleased that several Senators sitting on this committee have 

co-sponsored legislation introduced by Senator Landrieu and I to 

preserve VPP. I thank Senators Hagan, Isakson, Murkowski, and 

Burr for their support and look forward to opportunities to bring 

this bill up for a markup. 
4 

I’ve been to some of the ceremonies where companies are being 

awarded for their safety at these VPP sites. And I know that one 

of the reasons they’re successful is the pride that all of the employees are taking in making sure that all of them are safe. 

Workplace drug testing is another important way to reduce risk 

of injury and death in the workplace. All of the regulations and required compliance in the world are not going to work if an employer or manager disregards them because his or her judgment is 

impaired. 

The field of workers’ compensation insurance has developed a 

long record of experimentation with strategies to make workplaces 

safer and has measureable results. Every State creates its own 

workers’ comp regime. OSHA should look at the best practices out 

there and determine if there are any new ideas that can be translated to the Federal level. 

As someone who has run a workplace safety program personally, 

I am very supportive of giving employers quality information and 

flexibility to see what works best to keep their work site safe. 

Today, even the smallest employers must grapple with thousands 

of pages of regulation and burdensome recordkeeping requirements. 

But what should matter the most is the result, and that’s keeping workplaces safe. Since it was created in 1970, OSHA has been 

empowered to establish standards for workplace safety and health. 

Congress has entrusted OSHA to identify common workplace hazards which cause injuries and illness, to conduct survey and research on the cause of hazards, to discover what preventative steps 

can be taken to mitigate hazards, and to issue and enforce regulations. 

Given this broad delegation of authority, Congress also required 

that OSHA use it appropriately. A new standard must address an 

actual hazard. The preventative steps OSHA may mandate must 

actually work to reduce the risk. They must be feasible to institute 

and cost-effective. If the cost will weigh heavily on small businesses, OSHA must engage in panel discussions with actual small 

business stakeholders. 

All of these considerations are appropriate for OSHA to undertake before finalizing a new standard. And this committee should 

closely scrutinize any proposals to shortcut them. 

As the GAO report released today makes clear, the interval of 

time between when a standard is proposed and finalized can range 

from 15 months to 19 years, which is comparable to other agencies 

GAO has reviewed, such as the Food and Drug Administration. The 

finalization interval has varied throughout OSHA’s existence. In 

fact, it was much longer in the 1990s than in either the 1980s or 

the 2000s. 

GAO reports on the many factors that affect the finalization interval. Some of them are the same issues facing regulations from 

any agency, such as shifting priorities. Change in administration is 

a clear example of when priorities shift. But they also shift under 

the same leadership when different hazards capture attention. 

For example, today’s report notes that the ergonomic standard 

issued at the end of the Clinton administration was proposed and 

finalized in just 1 year. In order to accomplish that, the vast major-
5 

ity of OSHA’s standard-setting resources were focused on the 

ergonomics rule and taken off of other standards. 

While most standards use about 5 staff members, OSHA deployed 50 office staffers, 7 attorneys, and half of the agency’s economists for the development of the ergonomics rule. You don’t have 

to be a management guru to see how disruptive that would be to 

the development of other agency priorities. 

In the administration’s response to this GAO report, OSHA endorses the notion of statutory deadlines imposed by Congress to 

speed standard-setting. Deadlines imposed by Congress or the 

courts do, indeed, seem to speed up the regulatory process by about 

half. But OSHA should be cautious about wishing for such dictates. 

The entire point of creating OSHA was to allow experts to determine the most dangerous and addressable hazards, the best ways 

to mitigate them, and when it was most appropriate to do so. If 

Congress is setting the agenda instead of safety experts, American 

employees will not benefit. 

Let me cite a recent example. In 2007, legislation was passed by 

the House of Representatives to require an interim standard within 

90 days and the final standard within 2 years to restrict the use 

of a flavoring additive. The bill was not taken up in the Senate, 

and the Bush administration and OSHA did not initiate rulemaking. 

One of the co-sponsors of the bill, Congresswoman Hilda Solis, 

became the Secretary of the Department of Labor just a year later. 

Yet under 3 years of her leadership, OSHA has not finalized a 

standard for the flavoring additive. In fact, they found that a new 

regulation was not needed because manufacturers acted quickly to 

mitigate the risk. Therefore, if the legislation to dictate new standards had been enacted, OSHA would have spent valuable resources 

on a regulatory effort that was no longer necessary. 

I also hope this GAO report will not be misconstrued to justify 

limiting stakeholder involvement in OSHA’s regulatory process. 

Stakeholder review and discussion is one of the most beneficial 

parts of the rulemaking process. That’s where you work out the 

kinks of the new regulation and ensure both that it will work in 

the real world and that it accomplishes the goal in the most efficient manner. 

Many of the best examples of regulatory efforts that have failed 

because of insufficient stakeholder outreach come from OSHA 

itself. One of today’s witnesses, Mr. David Sarvadi, will testify 

about those missteps and suggest ways OSHA can be more effective in setting new standards. One of his suggestions is to involve 

stakeholders earlier in the process, not just after the risk has been 

assessed and the remedy formed. 

There’s one recent example of OSHA standard-setting which I do 

want to comment on, because I’ve had a long involvement with the 

issue, and that’s the new Hazard Communication Standard finalized last month. OSHA spent more than 6 years working to harmonize the current Hazard Communication Standard with the 

global standard. 

Recognizing that chemicals and goods routinely cross country 

lines today, it’s beneficial to all involved if the hazard labels and 

the material safety data sheets, MSDS, are uniform and easily un-
6 

derstood. This rulemaking has had a great deal of support from all 

stakeholders. 

Several years ago, Senator Murray and I introduced legislation 

intended to aid this rulemaking process by involving stakeholders 

through a commission. Last year, President Obama listed this regulation as one of his accomplishments to reduce costs imposed by 

regulations. 

With all of this support, this should have been an easy win. Instead, the rule that was finalized last month included new provisions not covered in earlier stakeholder outreach and is already 

being questioned on several fronts. Safety data sheets will have to 

include additional information not required by other countries, 

erasing some of the cost savings. 

The final rule also inserted two provisions that are sure to cause 

confusion by having it cover combustible dust, which is an undefined hazard, and unclassified hazards. In this case, shortcutting 

stakeholder involvement and other regulatory steps required by 

law have only led to a more questionable standard that may now 

be prolonged even further. 

Considering that this regulation was advertised as reducing regulatory burden and saving money, it’s even more disappointing. 

And I used to do some work in safety in the oil well servicing business and found that what works for the oil well drilling is not the 

same safety procedures as for the oil well servicing. And that’s why 

stakeholders need to be involved in the process, so that it will actually work with the kind of equipment they’re using which can often 

be different. 

I look forward to hearing the testimony and suggestions for improvement from today’s witnesses. And I thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Enzi. 

We have two panels. Our first panel is the GAO. Revae Moran 

is the Director in the Government Accountability’s Office of Education, Workforce, and Income Security Group. She directs teams 

of analysts in conducting reviews of the Department of Labor’s enforcement agencies, including the Occupational Safety and Health 

Administration. 

The GAO report has just been released this morning. We have 

a copy of it. I was able to give it a cursory review last evening. 

Without objection, your statement will be made a part of the 

record in its entirety, that is, the document itself. 

Ms. Moran, we welcome you, and if you can sum up in 5 minutes 

or so, we would appreciate that. 

Welcome to the committee. Please proceed. 

STATEMENT OF REVAE MORAN, DIRECTOR, U.S. GOVERNMENT 

ACCOUNTABILITY OFFICE (GAO), WASHINGTON, DC 

Ms. MORAN. Thank you. 

Mr. Chairman and members of the committee, I’m pleased to be 

here today to discuss the Occupational Safety and Health Administration’s, OSHA’s, standard-setting process. GAO recently reviewed 

this process and the factors that affect the length of time it takes 

OSHA to set standards. 

We reviewed standards set by OSHA from 1981 through 2010. 

We selected that year as our starting point because several laws 
7 

that affect the length of time it takes OSHA to set standards were 

passed in or after 1980, including the Regulatory Flexibility Act 

and the Paperwork Reduction Act. 

We reviewed all of the standards OSHA issued except minor ones 

such as technical amendments to existing standards. During this 

period, OSHA has issued 58 standards. The time it took OSHA to 

finalize them ranged widely from 15 months to 19 years, with an 

average time of 7 years, 9 months. Fifteen of these standards, over 

25 percent, took OSHA over 10 years to issue. 

We found that many factors affect the time it takes OSHA to finalize a standard, including the complex framework of procedural 

requirements the agency must follow; shifting priorities within the 

agency, the Congress, and presidential administrations; and the 

high standard of judicial review for OSHA’s standards. For example, an Executive order issued in 1993 requires OSHA to determine 

whether a new standard is economically significant, such as whether it will have an annual effect on the economy of $100 million or 

more. If it is, OSHA must submit a detailed cost-benefit analysis 

to the Office of Management and Budget for review, which can add 

several months to the process of setting a new standard. 

Under another new law enacted in 1996, OSHA is one of only 

three agencies required to seek and consider input from panels of 

small businesses affected by certain new standards, a process that 

can add 8 months to the time it takes OSHA to set a new standard. 

Court decisions and actions by the Congress can also significantly 

affect the timeframes, either slowing them down or speeding things 

up. 

For example, in 1981, the U.S. Supreme Court ruled that the Occupational Safety and Health Act requires OSHA to determine that 

all new standards are technologically and economically feasible. 

And other courts have held that OSHA must evaluate the feasibility of new standards on an industry by industry basis, which 

takes a lot of time. 

On the other hand, when laws or the courts specify timeframes 

for developing these standards, it can speed up the process. Such 

timeframes were specified for nine of the 58 standards we reviewed. For these standards, it took OSHA about half the time to 

issue them, 41⁄2 years on average, compared to the almost 8 years 

for standards for which timeframes were not specified. 

We also reviewed the standard-setting processes of regulatory 

agencies similar to OSHA, such as the Environmental Protection 

Agency, EPA, and the Mine Safety and Health Administration, 

MSHA. We found, however, that their processes offered little insight into the challenges OSHA faces, because their statutory 

frameworks and resources differed so markedly from OSHA’s. For 

example, one provision of the Clean Air Act gives EPA clear requirements and statutory deadlines for regulating air pollutants 

and for periodically reviewing and updating them. 

We sought the opinions of occupational safety and health experts 

and agency officials on ways to improve OSHA’s standard-setting 

process. In our report, released today, we present the pros and cons 

of each of these ideas, noting that many of them would make it 

easier for OSHA to develop new standards more quickly, but might 

not allow all stakeholder concerns to be considered. In addition, 
8 

many of these ideas would require substantive procedurally legislative changes, for example, changing the standard of judicial review, 

which would require Congress to amend the Occupational Safety 

and Health Act. 

In conclusion, it is essential that OSHA set occupational standards that protect the safety and health of workers. The administrative burdens and costs associated with such standards must be 

carefully considered. But once the need for a new standard has 

been established, it is important for OSHA to be able to move forward as quickly and efficiently as possible in order to protect workers. 

This concludes my oral statement. I would be happy to answer 

any questions you have at this time. 

[The prepared statement of Ms. Moran follows:] 

PREPARED STATEMENT OF REVAE MORAN

SUMMARY

• GAO reviewed the time it took OSHA to set all of the standards set by the 

agency from 1981 through 2010 (except minor ones such as technical amendments 

to existing standards). • We selected 1981 as the starting point because several new laws that affect the 

length of time it takes OSHA to set standards were passed in or after 1980, including the Regulatory Flexibility Act, the Paperwork Reduction Act, and the Small 

Business Regulatory Enforcement Fairness Act (SBREFA). • During this 30-year period, OSHA issued 58 standards. 

• It took OSHA from 15 months to 19 years to issue these standards—on average, 7 years, 9 months. • It took OSHA over 10 years to complete 15 of the 58 (over 25 percent). 

• Most of the standards (over 80 percent) were issued prior to 2000. 

• Many factors affect the time it takes OSHA to finalize a new standard: 

(1) the multiple procedural requirements the agency must follow; 

(2) shifting priorities within the agency, the Congress, and presidential administrations; and 

(3) the high standard of judicial review OSHA’s standards must meet (the rigorous ‘‘substantial evidence’’ standard vs. the more deferential ‘‘arbitrary and capricious’’ standard for most other agencies). 

• Court decisions and actions by the Congress can also significantly affect the 

timeframes, both slowing them down and speeding things up. For example, timeframes for 9 of the 58 standards were specified in laws or by the courts, and it took 

OSHA half the time to issue those standards. 

• We sought the opinions of agency officials and safety and health experts on how 

to streamline the process. Our report presents the pros and cons of the major policy 

options, noting that many of them would make it easier for OSHA to develop new 

standards more quickly but might curtail opportunities for full stakeholder input. 

Many of the ideas suggested would require legislative action, such as amending the 

OSH Act to change the judicial standard OSHA’s rules must meet. 

Chairman Harkin, Ranking Member Enzi, and members of the committee, thank 

you for the opportunity to discuss the challenges the Department of Labor’s (Labor) 

Occupational Safety and Health Administration (OSHA) faces in developing and 

issuing safety and health standards. Workplace safety and health standards are designed to help protect over 130 million public and private sector workers from hazards at more than 8 million worksites in the United States, and have been credited 

with helping prevent thousands of work-related deaths, injuries, and illnesses. However, questions have been raised concerning whether the agency’s approach to developing standards is overly cautious, resulting in too few standards being issued. Others counter that the process is intentionally deliberative to balance protections provided for workers with the compliance burden imposed on employers. Over the past 

30 years, various presidential Executive orders and Federal laws have added new 

procedural requirements for regulatory agencies, resulting in multiple and sometimes lengthy steps OSHA and other agencies must follow. 
9 

1GAO–12–330 (Washington, DC: Apr. 2, 2012). 

2Pub. L. No. 91–596, 84 Stat. 1590. 

3Pub. L. No. 79–404, 60 Stat. 237 (1946), codified in 1966 in scattered sections of title 5, 

United States Code. Agencies may follow additional or alternative procedures if certain exceptions apply, or when required by other statutes. 

My remarks today are based on findings from our report, which is being released 

today, entitled Workplace Safety and Health: Multiple Challenges Lengthen OSHA’s 

Standard Setting.1 For this report, we were asked to review: (1) the time taken by 

OSHA to develop and issue occupational safety and health standards and the key 

factors that affect these timeframes, (2) alternatives to the typical standard-setting 

process that are available for OSHA to address urgent hazards, (3) whether rulemaking at other regulatory agencies offers insight into OSHA’s challenges with setting standards, and (4) ideas that have been suggested by occupational safety and 

health experts for improving the process. To determine how long it takes OSHA to 

develop and issue occupational safety and health standards, we analyzed new standards and substantive updates to standards finalized between calendar years 1981 

and 2010 and identified as significant by the agency. Through semistructured interviews with current and former Labor officials and occupational safety and health 

experts representing both workers and employers, we identified the key factors affecting OSHA’s timeframes for issuing standards and ideas for improving OSHA’s 

standard-setting process. We reviewed relevant Federal laws and interviewed current OSHA staff and attorneys from Labor’s Office of the Solicitor to identify alternatives to the typical standard-setting process available for OSHA to address urgent 

hazards. To determine whether rulemaking at other regulatory agencies offers insight into OSHA’s challenges with setting standards, we conducted semistructured 

interviews with policy and program officials at the Environmental Protection Agency 

(EPA) and at the Mine Safety and Health Administration (MSHA). For more information on our scope and methodology, see the full report. This testimony is based 

on work performed between February 2011 and April 2012 in accordance with generally accepted government auditing standards. 

In summary, we found that, between 1981 and 2010, the time it took OSHA to 

develop and issue safety and health standards ranged from 15 months to 19 years 

and averaged more than 7 years. Experts and agency officials cited several factors 

that contribute to the lengthy timeframes for developing and issuing standards, including increased procedural requirements, shifting priorities, and a rigorous standard of judicial review. We also found that, in addition to using the typical standardsetting process, OSHA can address urgent hazards by issuing emergency temporary 

standards, although the agency has not used this authority since 1983 because of 

the difficulty it has faced in compiling the evidence necessary to meet the statutory 

requirements. Instead, OSHA focuses on enforcement activities—such as enforcing 

the general requirement of the Occupational Safety and Health Act of 1970 (OSH 

Act) 2 that employers provide a workplace free from recognized hazards—and educating employers and workers about urgent hazards. Experiences of other Federal 

agencies that regulate public or worker health hazards offered limited insight into 

the challenges OSHA faces in setting standards. For example, EPA officials pointed 

to certain requirements of the Clean Air Act to set and regularly review standards 

for specified air pollutants that have facilitated the agency’s standard-setting efforts. In contrast, the OSH Act does not require OSHA to periodically review its 

standards. Also, MSHA officials noted that their standard-setting process benefits 

from both the in-house knowledge of its inspectors, who inspect every mine at least 

twice yearly, and a dedicated mine safety research group within the National Institute for Occupational Safety and Health (NIOSH), a Federal research agency that 

makes recommendations on occupational safety and health. OSHA must instead rely 

on time-consuming site visits to obtain information on hazards and has not consistently coordinated with NIOSH to assess occupational hazards. Finally, experts and 

agency officials identified several ideas that could improve OSHA’s standard-setting 

process. In our report being released today, we draw upon one of these ideas and 

recommend that OSHA and NIOSH more consistently collaborate on researching occupational hazards so that OSHA can more effectively leverage NIOSH expertise in 

its standard-setting process. 

BACKGROUND

The basic process by which all Federal agencies typically develop and issue regulations is set forth in the Administrative Procedure Act (APA), 3 and is generally 
10 

4The APA defines a rule as ‘‘the whole or part of an agency statement of general or particular 

applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.’’ 5 U.S.C. § 551(4). 

For this testimony, we use the terms rule and regulation interchangeably. 5The APA also provides for formal rulemaking in certain cases. Formal rulemaking includes 

a trial-type hearing, and if challenged in court, the resulting rule will be struck down if unsupported by substantial evidence. 5 U.S.C. § 553. 6 5 U.S.C. §§ 702, 706(2)(A). 

7 A regulatory action is ‘‘significant’’ if it will (1) have an annual effect on the economy of $100 

million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal 

governments or communities (sometimes referred to as ‘‘economically significant’’); (2) create a 

serious inconsistency or otherwise interfere with an action taken or planned by another agency; 

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs 

or the rights and obligations of the recipients; or (4) raise novel legal or policy issues arising 

out of legal mandates, the President’s priorities, or the principles set forth in the Executive 

order. Executive Order No. 12866, 58 Fed. Reg. 51,735 (Sept. 30, 1993). The principles, structures, and definitions established in Executive Order 12866 were reaffirmed by Executive Order 

13563, 76 Fed. Reg. 3821 (Jan. 18, 2011). 8 Codified at 29 U.S.C. § 655(b). 

9 Codified at 29 U.S.C. § 655(a). In general, national consensus standards are voluntary safety 

and health standards that a nationally recognized standards-producing organization adopts after 

reaching substantial agreement among those who will be affected, including businesses, industries, and workers. For purposes of section 6(a) of the OSH Act, a national consensus standard 

must have met certain requirements. See the full report for more information on national consensus standards. The OSH Act defines an ‘‘established Federal standard’’ as any operative occupational safety and health standard established by any Federal agency or contained in any 

Act of Congress that was in effect on the date of enactment of the OSH Act. 29 U.S.C. § 652(10). 

Prior to the enactment of the OSH Act, other Federal laws included provisions designed to protect workers’ safety and health, such as the 1936 Walsh-Healey Act. 

known as the rulemaking process. 4 Rulemaking at most regulatory agencies follows 

the APA’s informal rulemaking process, also known as ‘‘notice and comment’’ rulemaking, which generally requires agencies to publish a notice of proposed rulemaking in the Federal Register, provide interested persons an opportunity to comment on the proposed regulation, and publish the final regulation, among other 

things.5 Under the APA, a person adversely affected by an agency’s notice and comment rulemaking is generally entitled to judicial review of that new rule, and a 

court may invalidate the regulation if it finds it to be ‘‘arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law,’’ sometimes referred 

to as the arbitrary and capricious test.6 In addition to the requirements of the APA, 

Federal agencies typically must comply with requirements imposed by certain other 

statutes and Executive orders. In accordance with various presidential Executive orders, agencies work closely with staff from the Office of Management and Budget’s 

(OMB) Office of Information and Regulatory Affairs, who review draft regulations 

and other significant regulatory actions prior to publication.7 Most of the additional 

requirements that affect OSHA standard setting were established in 1980 or later. 

The process OSHA uses to develop and issue standards is spelled out in the OSH 

Act. Section 6(b) of the act specifies the procedures OSHA must use to promulgate, 

modify, or revoke its standards.8 These procedures include publishing the proposed 

rule in the Federal Register, providing interested persons an opportunity to comment, and holding a public hearing upon request. Section 6(a) of the act directed 

the Secretary of Labor (through OSHA) to adopt any national consensus standards 

or established Federal standards as safety and health standards within 2 years of 

the date the OSH Act went into effect, without following the procedures set forth 

in section 6(b) or the APA.9 According to an OSHA publication, the vast majority 

of these standards have not changed since originally adopted, despite significant advances in technology, equipment, and machinery over the past several decades. In 

leading the agency’s standard-setting process, staff from OSHA’s Directorate of 

Standards and Guidance, in collaboration with staff from other Labor offices, explore the appropriateness and feasibility of developing standards to address workplace hazards that are not covered by existing standards. Once OSHA initiates such 

an effort, an interdisciplinary team typically composed of at least five staff focus on 

that issue. 

OSHA’S STANDARD-SETTING TIMEFRAMES VARY WIDELY AND ARE INFLUENCED BY THE

MANY PROCEDURAL REQUIREMENTS AND OTHER FACTORS

We analyzed the 58 significant health and safety standards OSHA issued between 

1981 and 2010 and found that the timeframes for developing and issuing them aver-
11 

10We included in our review standards that OSHA considered to be important or a priority, 

including but not limited to standards that met the definition of ‘‘significant’’ under Executive 

Order 12866. 11 Agency officials told us that OSHA issued a proposed standard on beryllium in 1975, but 

it was never issued as a final rule. Staff started collecting information on beryllium again in 

2000. In addition, they told us that a 2010 proposed rule on walking and working surfaces replaced an outdated proposed rule from 1990 that was never issued as a final rule because of 

other regulatory priorities. 12These analyses are necessary because the Supreme Court has held that the OSH Act requires that standards be both technologically and economically feasible. Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 513 n.31 (1981). 13See United Steelworkers v. Marshall, 647 F.2d 1189, 1301 (D.C. Cir. 1980), quoted in AFL– 

CIO v. OSHA, 965 F.2d 962, 980 (11th Cir. 1992). Assessing feasibility on an industry-by-industry basis requires that the agency research all applications of the hazard being regulated, as 

well as the expected cost for mitigating exposure to that hazard, in every industry. 14 Executive Order 12866 requires that OSHA provide an assessment of the potential overall 

costs and benefits for significant rules to OMB. For rules that are ‘‘economically significant,’’ 

the agency must also submit a more detailed cost-benefit analysis. See 58 Fed. Reg. 51,735 

(Sept. 30, 1993). 15 Under the Small Business Regulatory Enforcement Fairness Act of 1996, this panel process 

is required if OSHA determines that a potential standard would have a significant economic impact on a substantial number of small entities, such as businesses. OSHA staff must work with 

the Small Business Administration to set up the small business panels. 5 U.S.C. § 609(b),(d). 16The other two agencies that are subject to this requirement are EPA and the Consumer 

Financial Protection Bureau. 

aged about 93 months (7 years, 9 months), and ranged from 15 months to about 

19 years (see table 1).10

Table 1: Significant OSHA Safety and Health Standards Finalized between 1981 and 2010 

Decade/year 

Number of 

standards 

finalized 1

Average number 

of months from 

initiation to 

final rule 2

Average number 

of months from 

proposed rule 

to final rule 3

1980s ......................................................................................................... 24 70 30 

1990s ......................................................................................................... 23 118 50 

2000s ......................................................................................................... 10 91 36 

2010 ........................................................................................................... 1 —3 —3

Overall ........................................................................................................ 58 93 39 

Source: GAO analysis of Federal Register. 

1 For the purposes of this analysis, we considered a standard to have been finalized on the date it was published in the Federal Register as a final rule. 2 For the purposes of this analysis, we considered a standard to be initiated on the date OSHA publicly indicated initiating work on the 

standard in the Federal Register, by publishing a Request for Information or Advance Notice of Proposed Rulemaking. In cases where 

OSHA mentioned neither of these in the final rule, we used the date the standard first appeared on OSHA’s semiannual regulatory agenda. 3 Because only one standard was finalized in 2010, we did not list the average number of months. However, the overall calculations include the 2010 standard. 

During this period, OSHA staff also worked to develop standards that have not 

yet been finalized. For example, according to agency officials, OSHA staff have been 

working on developing a silica standard since 1997, a beryllium standard since 

2000, and a standard on walking and working surfaces since 2003.11 For a depiction 

of the timelines for safety and health standards issued between 1981 and 2010, see 

appendix I. 

Experts and agency officials frequently cited the increased number of procedural 

requirements established since 1980 as a factor that lengthens OSHA’s timeframes 

for developing and issuing standards. They indicated that the increased number of 

procedural requirements affects the agency’s standard-setting timeframes because of 

the complex requirements OSHA must comply with to demonstrate the need for new 

or updated standards (see fig. 1). For example, OSHA must evaluate technological 

and economic feasibility of a potential standard 12 using data gathered by visiting 

worksites in industries that will be affected, on an industry-by-industry basis.13

Agency officials told us this is an enormous undertaking because, for example, it requires visits to multiple worksites. In addition to the feasibility analyses, OSHA 

staff generally must also conduct economic analyses, including assessing the costs 

and benefits of significant standards,14 and may be required to initiate a panel process that seeks and considers input from representatives of affected small businesses.15 According to agency officials, the small business panel process takes about 

8 months of work, and OSHA is one of only three Federal agencies that is subject 

to this requirement.16
12 

17OSHA issued a final standard just 1 year after publishing the proposed rule, but, according 

to agency officials, in order to develop the rule so quickly, the vast majority of OSHA’s standardsetting resources were focused on this rulemaking effort, including nearly 50 full-time staff in 

OSHA’s standards office, half the staff economists, and 7 or 8 attorneys. The rule was invalidated by Congress 4 months after it was issued under the Congressional Review Act. Pub. L. 

No. 107–5, 115 Stat. 7 (2001). 18 29 U.S.C. § 655(f). 

Experts and agency officials also told us that changing priorities are a factor that 

affects the timeframes for developing and issuing standards, explaining that priorities may change as a result of changes within OSHA, Labor, Congress, or the presidential administration. Some agency officials and experts told us such changes often 

cause delays in the process of setting standards. For example, some experts noted 

that the agency’s intense focus on publishing an ergonomics rule in the 1990s took 

attention away from several other standards that previously had been a priority.17

The standard of judicial review that applies to OSHA standards if they are challenged in court also affects OSHA’s timeframes because it requires more robust research and analysis than the standard that applies to many other agencies’ regulations, according to some experts and agency officials. Instead of the arbitrary and 

capricious test provided for under the APA, the OSH Act directs courts to review 

OSHA’s standards using a more stringent legal standard: it provides that a standard shall be upheld if supported by ‘‘substantial evidence in the record considered 

as a whole.’’ 18 According to OSHA officials, this more stringent standard (known as 

the ‘‘substantial evidence’’ standard) requires a higher level of scrutiny by the courts 

and as a result, OSHA staff must conduct a large volume of detailed research in 

order to understand all industrial processes involved in the hazard being regulated, 

and to ensure that a given hazard control would be feasible for each process. 

According to OSHA officials and experts, two additional factors result in an extensive amount of work for the agency in developing standards: 
13 

19 Indus. Union Dep’t, AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980). Although 

the decision interpreted a provision of the OSH Act that applied only to health hazards, Labor 

officials said that there is little practical distinction between the evidence OSHA must compile 

to support health standards and the evidence it must compile for safety standards. 20 Indus. Union Dep’t, AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607, 639 (1980). 21 AFL–CIO v. OSHA, 965 F.2d 962, 986–87 (11th Cir. 1992). 22Section 6(c) of the OSH Act authorizes OSHA to issue these standards without following 

the typical standard-setting procedures if certain statutory requirements are met. 29 U.S.C. 

§ 655(c). 23 29 U.S.C. § 654(a)(1). 

• Substantial data challenges, which stem from a dearth of available scientific 

data for some hazards and having to review and evaluate scientific studies, among 

other sources. In addition, according to agency officials, certain court decisions interpreting the OSH Act require rigorous support for the need for and feasibility of 

standards. 

An example of one such decision cited by agency officials is a 1980 Supreme Court 

case, which resulted in OSHA having to conduct quantitative risk assessments for 

each health standard and ensure that these assessments are supported by substantial evidence.19

• Response to adverse court decisions. Several experts with whom we spoke observed that adverse court decisions have contributed to an institutional culture in 

the agency of trying to make OSHA standards impervious to future adverse decisions. However, agency officials said that, in general, OSHA does not try to make 

a standard ‘‘bulletproof ’’ because, while OSHA tries to avoid lawsuits that might ultimately invalidate the standard, the agency is frequently sued. For example, in the 

‘‘benzene decision,’’ the Supreme Court invalidated OSHA’s revised standard for 

benzene because the agency failed to make a determination that benzene posed a 

‘‘significant risk’’ of material health impairment under workplace conditions permitted by the current standard.20 Another example is a 1992 decision in which a 

U.S. Court of Appeals struck down an OSHA health standard that would have set 

or updated the permissible exposure limit for over 400 air contaminants.21

OSHA HAS AUTHORITY TO ADDRESS URGENT HAZARDS THROUGH EMERGENCY

TEMPORARY STANDARDS, ENFORCEMENT, AND EDUCATION

OSHA has not issued any emergency temporary standards in nearly 30 years, citing, among other reasons, legal and logistical challenges.22 OSHA officials noted 

that the emergency temporary standard authority remains available, but the legal 

requirements to issue such a standard—demonstrating that workers are exposed to 

grave danger and establishing that an emergency temporary standard is necessary 

to protect workers from that grave danger—are difficult to meet. Similarly difficult 

to meet, according to officials, is the requirement that an emergency temporary 

standard must be replaced within 6 months by a permanent standard issued using 

the process specified in section 6(b) of the OSH Act. 

OSHA uses enforcement and education as alternatives to issuing emergency temporary standards to respond relatively quickly to urgent workplace hazards. OSHA 

officials consider their enforcement and education activities complementary. Its enforcement efforts to address urgent hazards, OSHA uses the general duty clause of 

the OSH Act, which requires employers to provide a workplace free from recognized 

hazards that are causing, or are likely to cause, death or serious physical harm to 

their employees. 23 Under the general duty clause, OSHA has the authority to issue 

citations to employers even in the absence of a specific standard under certain circumstances. Along with its enforcement and standard-setting activities, OSHA also 

educates employers and workers to promote voluntary protective measures against 

urgent hazards. OSHA’s education efforts include on-site consultations and publishing health and safety information on urgent hazards. For example, if its inspectors discover a particular hazard, OSHA may send letters to all employers where 

the hazard is likely to be present to inform them about the hazard and their responsibility to protect their workers. 

OTHER REGULATORY AGENCIES’ EXPERIENCES OFFER LIMITED INSIGHT

INTO OSHA’S CHALLENGES

Although the rulemaking experiences of EPA and MSHA shed some light on 

OSHA’s challenges, their statutory framework and resources differ too markedly for 

them to be models for OSHA’s standard-setting process. For example, EPA is directed to regulate certain sources of specified air pollutants and review its existing 

regulations within specific timeframes under section 112 of the Clean Air Act, which 

EPA officials told us gave the agency clear requirements and statutory deadlines for 
14 

24 42 U.S.C. § 7412. However, as GAO reported in 2006, EPA failed to meet some of its statutory deadlines under section 112 of the Clean Air Act. See GAO, Clean Air Act: EPA Should 

Improve the Management of its Air Toxics Program, GAO 06–669 (Washington, DC: June 23, 

2006). 25The ideas presented here are those most frequently mentioned in our interviews by agency 

officials and experts that are not addressed in other sections of the full report. For more information on our methodology, see the full report. 26See, for example, Jacob E. Gersen and Anne Joseph O’Connell, ‘‘Deadlines in Administrative 

Law,’’ University of Pennsylvania Law Review, vol. 156 (2007–8). 27 59 Fed. Reg. 4669, 4670–71 (Feb. 1, 1994). The Administrative Conference of the United 

States is an independent Federal agency that makes recommendations for improving Federal 

agency procedures, including the Federal rulemaking process. 28One suggested justification for judicial review of agency rulemaking is when there is genuine concern about the power agencies have in the regulatory process. Mark Seidenfeld, ‘‘Bending the Rules: Flexible Regulation and Constraints on Agency Discretion,’’ Administrative Law 

Review (spring, 1999). 

regulating hazardous air pollutants.24 MSHA benefits from a narrower scope of authority than OSHA and has more specialized expertise as a result of its more limited jurisdiction and frequent on-sight presence at mines. Officials at MSHA, OSHA, 

and Labor noted that this is very different from OSHA, which oversees a vast array 

of workplaces and types of industries and must often supplement the agency’s inside 

knowledge by conducting site visits. 

EXPERTS SUGGESTED MANY IDEAS TO IMPROVE OSHA’S STANDARD-SETTING PROCESS, INCLUDING MORE INTERAGENCY COORDINATION AND STATUTORY DEADLINES

Agency officials and occupational safety and health experts shared their understanding of the challenges facing OSHA and offered ideas for improving the agency’s 

standard-setting process.25 Some of the ideas involve substantial procedural changes 

that may be beyond the scope of OSHA’s authority and require amending existing 

laws, including the OSH Act. 

• Improve coordination with other agencies: Experts and agency officials noted 

that OSHA has not fully leveraged available expertise at other Federal agencies, especially NIOSH, in developing and issuing its standards. OSHA officials said the 

agency considers NIOSH’s input on an ad hoc basis but OSHA staff do not routinely 

work closely with NIOSH staff to analyze risks of occupational hazards. They stated 

that collaborating with NIOSH on risk assessments, and generally in a more systematic way, could reduce the time it takes to develop a standard by several 

months, thus facilitating OSHA’s standard-setting process. • Expand use of voluntary consensus standards: According to OSHA officials, 

many OSHA standards incorporate or reference outdated consensus standards, 

which could leave workers exposed to hazards that are insufficiently addressed by 

OSHA standards that are based on out-of-date technology or processes. Experts suggested that Congress pass new legislation that would allow OSHA, through a single 

rulemaking effort, to revise standards for a group of health hazards using current 

industry voluntary consensus standards, eliminating the requirement for the agency 

to follow the standard-setting provisions of section 6(b) of the OSH Act or the APA. 

One potential disadvantage of this proposal is that any abbreviation to the regulatory process could also result in standards that fail to reflect relevant stakeholder 

concerns, such as an imposition of unnecessarily burdensome requirements on employers. • Impose statutory deadlines: OSHA officials indicated that it can be difficult to 

prioritize standards due to the agency’s numerous and sometimes competing goals. 

In the past, having a statutory deadline, combined with relief from procedural requirements, resulted in OSHA issuing standards more quickly. However, some legal 

scholars have noted that curtailing the current rulemaking process required by the 

APA may result in fewer opportunities for public input and possibly decrease the 

quality of the standard.26 Also, officials from MSHA told us that, while statutory 

deadlines make its priorities clear, this is sometimes to the detriment of other issues 

that must be set aside in the meantime. • Change the standard of judicial review: Experts and agency officials suggested 

OSHA’s substantial evidence standard of judicial review be replaced with the arbitrary and capricious standard, which would be more consistent with other Federal 

regulatory agencies. The Administrative Conference of the United States has recommended that Congress amend laws that mandate use of the substantial evidence 

standard, in part because it can be unnecessarily burdensome for agencies.27 As a 

result, changing the standard of review to ‘‘arbitrary and capricious’’ could reduce 

the agency’s evidentiary burden. However, if Congress has concerns about OSHA’s 

current regulatory power, it may prefer to keep the current standard of review. 28
15 

29See GAO, Managing for Results: Enhancing Agency Use of Performance Information for 

Management DecisionMaking, GAO–05–927 (Washington, DC: Sept. 9, 2005). 

• Allow alternatives for supporting feasibility: Experts suggested that OSHA minimize on-site visits—a time-consuming requirement for analyzing the technological 

and economic feasibility of new or updated standards—by using surveys or basing 

its analyses on industry best practices. One limitation to surveying worksites is 

that, according to OSHA officials, in-person site visits are imperative for gathering 

sufficient data in support of most health standards. Basing feasibility analyses on 

industry best practices would require a statutory change, as one expert noted, and 

would still require OSHA to determine feasibility on an industry-by-industry basis. 

• Adopt a priority-setting process: Experts suggested that OSHA develop a priority-setting process for addressing hazards, and as GAO has reported, such a process could lead to improved program results.29 OSHA attempted such a process in 

the past, which allowed the agency to articulate its highest priorities for addressing 

occupational hazards. Reestablishing such a process may improve a sense of transparency among stakeholders and facilitate OSHA management’s ability to plan its 

staffing and budgetary needs. However, it may not immediately address OSHA’s 

challenges in expeditiously setting standards because such a process could take time 

and would require commitment from agency management. 

CONCLUDING REMARKS

The process for developing new and updated safety and health standards for occupational hazards is a lengthy one and can result in periods when there are insufficient protections for workers. Nevertheless, any streamlining of the current process 

must guarantee sufficient stakeholder input to ensure that the quality of standards 

does not suffer. Additional procedural requirements established since 1980 by Congress and various Executive orders have increased opportunities for stakeholder 

input in the regulatory process and required agencies to evaluate and explain the 

need for regulations, but they have also resulted in a more protracted rulemaking 

process for OSHA and other regulatory agencies. Ideas for changes to the regulatory 

process must weigh the benefits of addressing hazards more quickly against a potential increase in the regulatory burden imposed on the regulated community. Most 

methods for streamlining that have been suggested by experts and agency officials 

are largely outside of OSHA’s authority because many procedural requirements are 

established by Federal statute or Executive order. However, OSHA can coordinate 

more routinely with NIOSH on risk assessments and other analyses required to support the need for standards, saving OSHA time and expense. In our report being 

released today, we recommend that OSHA and NIOSH more consistently collaborate 

on researching occupational hazards so that OSHA can more effectively leverage 

NIOSH expertise in its standard-setting process. Both agencies agreed with this recommendation. 

Mr. Chairman, this concludes my prepared statement. I would be pleased to respond to any questions you or other members of the committee may have. 

(GAO Contact and Staff Acknowledgments: For questions about this testimony, 

please contact me at (202) 512–7215 or moranr@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page 

of this statement. Individuals who made key contributions to this statement include, 

Gretta L. Goodwin, assistant director; Susan Aschoff; Tim Bober; Anna Bonelli; 

Sarah Cornetto; Jessica Gray; and Sara Pelton.) 

APPENDIX I: TIMELINES OF SIGNIFICANT OSHA SAFETY AND HEALTH STANDARDS

The following two figures (fig. 2 and fig. 3) depict a timeline for each of the 58 

significant safety and health standards OSHA issued between 1981 and 2010. 
16 
17 

The CHAIRMAN. Thank you very much, Ms. Moran. We’ll now 

start a series of 5-minute questions. 

In looking through this document last evening, it occurred to me 

that other agencies move more quickly on rulemaking, even ones 

that also have to have a lot of scientific analysis and stakeholder 

input. Can you describe for me in general terms how OSHA’s rulemaking process compares to the process at other Federal agencies, 

and why does OSHA take so much longer than these others? 

Ms. MORAN. I’m afraid that this isn’t a very satisfying answer. 

But in some cases, we were not able to tell exactly why it takes 

OSHA so long. There are certain factors, such as the Small Business Enforcement Act, the SBREFA, as it’s called, that—OSHA is 

one of only three agencies, including EPA and the Consumer Financial Protection Bureau, that have to meet the requirements and 

pull together small business panels, a process that can take 8 

months, add 8 months to the process. 

But that doesn’t explain the entire timeframe. And a lot of times, 

I think it’s because of the shift in priorities within the agency. It 

will start work on a new standard or, you know, updating an existing standard, and then put it aside, work on other things, and 

come back to it, and that’s not documented anywhere. 

So it was difficult for us to determine exactly what happened, for 

example, on the scaffold standard. Why it would take 19 years to 

set a scaffold standard doesn’t necessarily make sense. 
18 

The CHAIRMAN. But, again, can you speak just a little bit—other 

agencies have rulemaking processes that require similar kinds of 

inputs as OSHA—scientific inputs, stakeholder inputs—but their 

timeframes are much less. But maybe you can’t speak to that. I 

don’t know. 

Ms. MORAN. We did look a little bit at, for example, the EPA. But 

in that case, under the Clean Air Act, there were statutory deadlines set. For MSHA, it deals with one industry for the most part. 

There are some ancillary ones like trucking that’s involved in mining. 

But for the most part, MSHA can set standards more quickly because it’s dealing with one industry, and it has inspectors that go 

into the mines at least twice a year and for underground coal 

mines four times a year. So they have a lot of close knowledge of 

what the hazards are that miners face. 

The CHAIRMAN. One option in your report deals with the standard of review that courts use to consider OSHA rules. OSHA must 

demonstrate to a court that there was substantial evidence to support its conclusions, whereas most Federal agencies only have to 

show that the decision was not arbitrary and capricious. 

Can you explain in practical terms what this means, and how 

significant of a burden is this for OSHA? 

Ms. MORAN. I do believe it is a significant factor in the timeframe that it takes OSHA to set standards, the substantial evidence standard that they must meet. When the courts go to review 

the standards that OSHA sets, most other agencies—and that’s a 

very good point that you’re making, that they only have to show 

that the standards that they set were not arbitrary and capricious, 

that the agency was not being arbitrary and capricious in setting 

a new standard. 

For OSHA, they have to show substantial evidence that a material impairment would occur to a worker, and that is a much higher standard for them to meet. So they spend a lot of time gathering 

evidence, scientific evidence, to support the need for a new standard. And I do believe that adds a substantial time burden to the 

agency. 

The CHAIRMAN. As part of the regulatory process, OSHA clears 

regulations through the Office of Management and Budget. My understanding is that OMB is supposed to respond to OSHA within 

120 days. OSHA submitted a proposed rule governing silica exposure to OMB in February 2011. OMB has still not responded to the 

proposed rule, 14 months later. 

What role does OMB play, generally, in the time it takes for 

OSHA to issue a regulation, and, particularly, with respect to the 

silica rule? 

Ms. MORAN. We have heard that the silica standard has been 

with OMB since February 2011. We asked them about that, and 

they said they could not comment on their review of a proposed 

rule. It is, however, one of the only instances that we heard people 

complain about. We did not hear substantial complaints about the 

time it takes OSHA to review other standards that we reviewed. 

The CHAIRMAN. That it takes OMB. 

Ms. MORAN. Right. We did not hear a lot of complaints about 

OIRA’s review, the office within OMB that reviews the standards. 
19 

The CHAIRMAN. I’ll have more about that for other witnesses, 

also. But thank you very much, Ms. Moran. 

Senator Enzi. 

Senator ENZI. Thank you, Mr. Chairman. 

Some of the people that you consulted for your report mentioned 

that more frequent use of negotiated rulemaking could help OSHA. 

Why isn’t that used more often? Do you believe that would speed 

up the process or could speed up the process? 

Ms. MORAN. Well, we know that negotiated rulemaking has been 

used for a number of different rules. When we spoke with the 

OSHA staff, they said that it, unfortunately, doesn’t really buy 

them a lot of time. For example, the cranes and derrick standard 

committee was established and work was started in 2003. They 

completed the work in 1 year and pulled together the small business panels that were required under SBREFA—completed their 

work in 2006 and issued a 276-page report on that work. But it 

still took OSHA until 2011 to finalize the rule. 

So even despite negotiated rulemaking, it didn’t speed up the 

process substantially. And that’s the case with other standards, 

such as 1,3-Butadiene in 1985–95. They used negotiated rulemaking, but it took them 12 years. 

Senator ENZI. You mentioned that the previous example even included the small business review and that only took 6 months, but 

then it took them 3 years to write the rule after they got that done? 

Ms. MORAN. I believe it took a couple of years for the small business panels, that process. But that was completed in 2006, and 

then the final rule was not published until 2011. 

Senator ENZI. So they had all their information for 5 years before 

they put out the rule. 

Ms. MORAN. Yes. 

Senator ENZI. Thank you. An OSHA official in your report said 

that they do not attempt to make any standard bulletproof. I’m a 

little curious as to what that means. Congress and the courts have 

worked to ensure that agencies take the necessary steps to establish a thorough record of the rulemaking process, whether it’s holding a small business roundtable, conducting economic or technical 

feasibility analyses or conducting risk assessments, or OMB review. 

All of these steps, while time-consuming, are integral to making 

a proposed rule that would actually work and be enforceable. 

Would you agree? 

Ms. MORAN. Yes, I would. But the comment that the OSHA staff 

made was that they still know that they’re going to be sued, no 

matter how much work that they do on a rule. And that’s where 

the bulletproof comment came from, that they realize that at some 

point, they have to move forward. 

Senator ENZI. I think that’s a normal result on a lot of regulation. As you mentioned in the report, OSHA was able to complete 

its ergonomic standard in just over 1 year, due to an influx of more 

than 50 staffers who worked on the rule. Despite the rule being invalidated by Congress a short time after it was finalized, this example shows that the agency can use the necessary resources available on a priority standard. 
20 

Did you find that this happens in other OSHA rulemakings? And 

if not, why not? 

Ms. MORAN. It does happen sometimes, but we didn’t find an example where they put that level of resources to bear on one standard that was being worked on. And I will mention that even though 

the final part of putting together the ergonomic standard took only 

a year, they had been working on it for some time and collecting 

information from the stakeholder community. 

Senator ENZI. Thank you. And your report concludes that any 

streamlining of the current process must guarantee sufficient 

stakeholder input to ensure the quality of standards does not suffer. Over the last few years, OSHA has taken a number of actions 

that can be described as sub regulatory. Essentially, the intent 

seems to be to achieve its standard of enforcement change without 

having to go through the regulatory process. 

In many cases, these have been misguided precisely because they 

did not benefit from the step or the regulatory process such as 

stakeholder outreach, feasibility and cost-effective assessments. 

Given your years of experience reviewing the Federal regulatory 

process, how important is the stakeholder input? 

Ms. MORAN. I think it’s essential. I’m not sure that it should take 

over 10 years to issue some of these standards. But it is important 

in order for them to hold up to court challenges for the stakeholder 

input to be considered throughout the entire process. 

Senator ENZI. Now, you did find—going back to my previous 

question—the shifting priorities within OSHA was a major factor 

in the length of time that it took to finalize new standards. It’s obvious this occurs when the administrations change, but it also occurred within one administration. 

It’s not necessarily a bad thing when a priority shifts. We want 

the government to be able to respond to new developments and 

concerns of the people. But when significant resources are taken 

from other important priorities, it may not serve the agency well 

in the long run. 

Did you find any example of that in your review? 

Ms. MORAN. Well, the ergonomic standard was the one that we 

talk about in the report, where they had taken so many resources 

to work on that standard that they had to put other standards, potential ones, aside at that time. That was the biggest one. 

Senator ENZI. Thank you for your answers. 

My time has expired, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Enzi. 

Senator Isakson. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Thank you, Mr. Chairman. 

And thank you for your testimony today. In your prepared statement, you note that OSHA has authority to address urgent hazards 

through emergency and temporary standards under the general 

duty clause. Is that not correct? 

Ms. MORAN. Yes, it is. 

Senator ISAKSON. So even though it may take a substantial period of time to have enough evidence to determine that a rule 

should be made, OSHA has the ability in the absence of that evi-
21 

dence to issue a temporary standard because of—in the interest of 

the health, safety, and welfare of workers in most cases. Is that not 

true? 

Ms. MORAN. It is. OSHA has to prove that there is a grave danger and that an emergency temporary standard is needed to address that grave danger within a 6-month period. So that is the requirement, and it’s very difficult for them to meet. They have not 

issued an emergency temporary standard since 1983. 

Senator ISAKSON. Under the general duty clause, they haven’t? 

Ms. MORAN. Not under the general duty clause. But an emergency temporary standard—they have not issued one since 1983. 

Senator ISAKSON. Well, we had a hearing on MSHA—Mr. Chairman, you’ll remember—a couple of years ago. And people were suggesting they ought to have injunctive rights to go to court, and they 

had them, but they never exercised them. So some of the things 

we’re talking about are agency-specific in terms of their initiative, 

not necessarily because of the requirements we place on them. Is 

that not true? 

Ms. MORAN. I think that is true, yes. 

Senator ISAKSON. And there’s a second agency that we have a lot 

of say-so over, and that’s the FDA, the Food and Drug Administration. We’re hopefully going to be doing a reauthorization of PDUFA 

and getting some expansion of industry input and industry fees to 

accelerate the time period it takes to take a drug from its discovery 

to actually being able to be prescribed. 

But it’s very important that we have substantial evidence that 

that’s a safe drug. That’s why it takes a long time to approve a lot 

of things through the FDA. If we remove substantial evidence, as 

the Chairman was asking earlier, are we not putting ourselves at 

risk of OSHA being arbitrary in its rulemaking? 

Ms. MORAN. That’s really a policy decision. What I can say is 

that substantial evidence—that standard is a higher standard than 

other agencies to which they’re held, the arbitrary and capricious 

standards. So it’s really something that does make OSHA take 

longer in proving that it has substantial evidence of a material impairment to a worker to go through their standard-setting process. 

So it does take time. 

Senator ISAKSON. And one of those agencies you’re referring to is 

EPA. Is that not correct? 

Ms. MORAN. Yes, it is. 

Senator ISAKSON. I have one other comment about the small 

business—the requirements for the small business panels and the 

fact that it took, I think you said, about 8 months to meet that 

standard. Is that right? 

Ms. MORAN. That’s what OSHA’s officials told us, yes. 

Senator ISAKSON. That’s 8 months. In a 19-year rulemaking procedure, 8 months is a small amount of that time. So I want to point 

out that I ran a small business, and the biggest thing I worried 

about was my workers’ comp premiums and losing a worker or having an accident that caused productivity to go down. 

So it’s very important for those small businesses to have input 

as the rule is made, because many times, they can come up with 

a better standard than the Occupational Safety and Health Admin-
22 

istration might come up with, because they’re doing it on a daily 

basis. 

The second comment I would make—we’ve had three instances 

in Georgia that have involved health, safety, and welfare of the 

public. The Peanut Corporation of America in Camilla, where salmonella got released—and that was—it turned out to be a criminal 

act by an individual who had actually tested and found evidence 

of salmonella but hid it from OSHA inspectors and from health and 

safety inspectors that came in. 

But many of the other accidents we’ve had—I know the Sago 

Mine accident—Chairman Enzi, at the time, went with me and 

Senator Kennedy and Senator Rockefeller. Everybody was rushing 

to judgment. But we finally found out after about 18 months that 

a lightning strike that hit a buried ground wire removed from the 

mine had actually caused the explosion. 

We had to wait to get the substantial evidence to make the determination of the right thing to do in terms of improving the MSHA 

law. Much of the improvements that we made came from suggestions by the mine owners themselves. So I would caution anybody 

for thinking that we ought to remove or lessen the input or the 

standard of small business in terms of their input into regulatory 

rulemaking, because many times they can offer suggestions that 

are far better than what a neophyte may offer otherwise. 

I just wanted to make that point, Mr. Chairman, and I appreciate the time. 

The CHAIRMAN. I hope the Senator doesn’t think that I was in 

any way implying that the standard should be changed to lessen 

the input of small businesses. That’s not—I never said that, and I 

never intended to say that or imply that. 

Senator ISAKSON. And I didn’t mean to imply that. But I was just 

noting the comment to make the statement that I made. But I 

didn’t mean to imply that, if I did. 

The CHAIRMAN. I’m just saying that I agree with Senator Enzi. 

Stakeholder input is vitally important in this. The question is why 

does it take so long after the stakeholder input. After they do that, 

then they sit on it for years and years after that. That was sort 

of what I was trying to get at, and maybe Senator Enzi, too. I don’t 

know. You were asking that, too. 

Senator Franken. 

STATEMENT OF SENATOR FRANKEN

Senator FRANKEN. Ms. Moran, thank you for testifying today and 

for your work on this report. I’m sorry I wasn’t here for your testimony, but I read it last night. 

In advance of Workers’ Memorial Day in a couple of weeks, this 

hearing is highlighting some vital issues, issues affecting lives of 

working men and working women across this country. The Occupational Safety and Health Act was passed with the intent to guarantee, ‘‘every working man and woman in the Nation safe and 

healthful working conditions.’’ 

Today, we’re going to be examining the question: Is the current 

system enabling OSHA to fulfill its mission? And I think the answer is it’s not good enough. There were 4,340 workplace deaths in 
23 

2010. That is 4,340 too many. I’d like to recognize all the families 

that are here with pictures of their loved ones. 

This is America. This is 2012. I believe that we can do better, 

and today we should be serious about trying to figure out how to 

do that. 

Ms. Moran, despite the length of your report, GAO only identifies 

one recommendation to improve OSHA’s standard-setting. How did 

GAO arrive at this recommendation, and what is GAO’s response 

to some suggestions raised in our next panel? Did you read the testimony of the next panel? 

Ms. MORAN. I did. 

Senator FRANKEN. OK. What is GAO’s response to suggestions 

like—and I’ll run through four of them—legislation allowing OSHA 

to easily adopt industry voluntary consensus standards; legislation 

directing OSHA to work on regulating certain hazards; using surveys instead of onsite studies to determine rule feasibility; or, 

eliminating or reducing OMB economic analyses since OSHA already conducts its own analyses? 

Ms. MORAN. I’ll start with the last one. The reason we did not 

recommend that last issue is because we did not hear that that was 

a substantial problem in terms of the amount of time that it takes 

OSHA to issue regulations. As I mentioned, other than OMB’s review of the silica standard that has been there for 14 months, they 

generally, as far as we were told from OSHA, by OSHA, do maintain the 90 days that it takes—that they’re required to review 

them and with a 30-day possibility of an extension. 

But, generally, they do adhere to the 90-day period, which certainly isn’t the bulk of the time that it takes. Some of the other 

recommendations that have been made just really are things like 

voluntary consensus standards that OSHA is required now to consider. So they do do that. 

However, the standards that are proposed by consensus setting 

organizations, such as the American National Standards Institute, 

ANSI, and the National Fire Protection Association, are not required to be based on the same information on which OSHA standards are based. They’re not quite as scientifically based. They’re 

not based on the same economic and technological feasibility that 

OSHA is required to meet. So it would take a legislative change to 

require that. 

Senator FRANKEN. Right. 

Ms. MORAN. But that’s really a policy consideration. We didn’t 

see that that would necessarily—— 

Senator FRANKEN. So if we changed that legislatively, it could 

make sense, because Senator Isakson was talking about the input 

of the industry, and if the industry has some common-sense voluntary standards that they’ve adopted, consensus standards that 

would be an improvement, it’s possible that OSHA adopting those 

could further the process along in a more expeditious manner. Is 

that right? 

Ms. MORAN. It’s possible. It also might not allow all the exact 

same stakeholder input that’s being considered in the current process. 

I also wanted to comment on one of the other recommendations 

that one of the witnesses has proposed, and that’s using data from 
24 

EPA and their Integrated Risk Information System, IRIS. GAO reported on that system in another report from one of our other units 

in 2008, and we found serious problems with the data in that system, that it was at risk of becoming obsolete, and we pointed to a 

lot of problems with the quality of the data. So that was why we 

wouldn’t have recommended something like that. 

Senator FRANKEN. What about legislation directing OSHA to 

work on regulating certain hazards, in particular? 

Ms. MORAN. I think that certainly could speed up the time. On 

the nine standards for which timeframes were either mandated in 

the law or by the courts, it took OSHA about half the time to issue 

those. And so it really can speed up the process. 

Senator FRANKEN. OK. And what about using surveys instead of 

onsite studies to determine rule feasibility? 

Ms. MORAN. I think that could speed it up slightly. It’s not something that we found was a major problem. It does take more time 

because they have to go to OMB to get—under the Paperwork Reduction Act—those surveys approved. But they do use surveys now. 

It’s just not the only piece of evidence that they use. 

Senator FRANKEN. OK. Thank you. We have another panel of 

witnesses, and I might ask them the same questions. 

Ms. MORAN. Sure. 

Senator FRANKEN. Thank you very much for your service, Ms. 

Moran. 

Ms. MORAN. Thank you. 

The CHAIRMAN. Thank you, Senator Franken. 

Thank you very much, Ms. Moran, for your work and for your 

service to our country. We appreciate it very much. 

Ms. MORAN. You’re very welcome. 

Senator ENZI. Good report and good presentation. Thank you. 

The CHAIRMAN. Very good. Thank you. 

Now, we’ll move to our second panel. At the table, we have Mr. 

Tom Ward, a member of the Bricklayers Union Local 1 near Detroit, MI. After many years in the bricklayer trade, he became involved in safety training for his fellow workers. Mr. Ward has had 

firsthand experience of the impact of silica dust in the workplace. 

We have Dr. Michael Silverstein, recently retired as director of 

the State OSHA Program at Washington State Department of 

Labor and Industries; formerly a Policy Director at Federal OSHA. 

Dr. Silverstein is also a Professor of Occupational Health and has 

40 years of experience in the field. 

Next, we have Randy Rabinowitz, the Director of Regulatory Policy at OMB Watch, an organization that monitors Federal safety 

regulations. She previously served as co-chair of the American Bar 

Association’s Committee on Occupational Safety Law and as an adjunct professor teaching safety and health law. Before beginning 

her work at OMB Watch, she represented labor unions in OSHA 

proceedings. 

And Mr. David Sarvadi, an attorney at the law firm of Keller and 

Heckman, who specializes in occupational safety and health law. 

Mr. Sarvadi also has over 30 years of experience as a certified industrial hygienist. He has participated in OSHA rulemaking on behalf of companies and trade associations on numerous occasions. 
25 

We thank you all for being here to testify today. We’ll just go 

from left to right as I introduced you. Each of your statements will 

be made a part of the record in their entirety. I would ask each 

of you to sum up in about 5 minutes. We’ll go through the panel, 

and then we’ll open up for general discussion. 

Mr. Ward, welcome and please proceed. 

STATEMENT OF TOMMY C. WARD, Jr., MEMBER, LOCAL 1 

MICHIGAN, INTERNATIONAL UNION OF BRICKLAYERS AND 

ALLIED CRAFTWORKERS, WOODHAVEN, MI 

Mr. WARD. Thank you, Chairman Harkin, for the opportunity to 

testify before you today, Ranking Member Enzi and the other distinguished Senators. My name is Tom Ward, and I’m a member of 

the International Union of Bricklayers and Allied Craftworkers 

Local 1 Michigan, and it is an honor to be here today. Thank you. 

What I’m about to share with you is deeply personal. But the 

reason I agreed to speak with you today is much more important 

than just my story. It’s a chance to speak on behalf of every American worker in the country. 

I was just 13 years old when my dad passed of silicosis. He did 

sandblasting work for about 6 years in his twenties. And I remember going to work with him one day, and I was amazed. A rusty 

old truck frame came in, and, man, it looked brand new at the end 

of the day. And I see that same look in my son’s eyes every time 

he sees me fix something around the house or build something or 

look at a building that I had something to do with. 

My dad eventually moved on to a better job with better pay, benefits for the family, and he was a proud member of the Teamsters 

Union. A few years into his new job, he started becoming short of 

breath, and the doctors couldn’t figure it out for quite a while. The 

official diagnosis of silicosis came when he was 34. It took 5 years 

to kill him, and he died at the age of 39. 

It was a slow and very painful process for our family to watch. 

As painful as it was, the hardest day for me is the last day he 

worked. He came in, closed the door, fell to the ground and started 

crying. He said, ‘‘I just can’t do it anymore.’’ 

I started my apprenticeship in 1991 after working as a laborer 

for a few years. I had no idea that I was going into a trade that 

had the same hazard. I was exposed to the same hazard that killed 

my father, and I didn’t know. I didn’t have the training at the time. 

Training back then—it was just 20 years after the OSHA Act, so 

it wasn’t a big deal at the time. 

It was only after several years ago, when I became involved in 

training myself, that I learned all the hazards, the details of the 

hazard, what it’s about. What is silicosis? I was in a train-thetrainer course at our international training center, and the presenter showed us the video called Stop Silicosis. I don’t know if 

anyone in here has seen it. 

But what was shocking for me is that the video was produced in 

1938. Almost 70 years ago, we knew exactly what it was. Thousands of people were dying every year due to silicosis, and there 

are simple control hazards to fix it. In some cases, most cases, it’s 

as simple as adding water to whatever you’re drilling or grinding. 

And it’s on Youtube if you want to take a minute to look at it. 
26 

The workers in that video refer to their jack hammers as widowmakers. I’m here to tell you, we have our own modern day widowmakers on construction sites. Masonry saws, concrete saws, and 

grinders, when they’re used dry, are our widowmakers. They just 

came around in the late 1970s, 1980s. So to set a timeline up for 

you, my generation of guys are going to come down with it next, 

in my opinion. 

The control measures are simple as water or hooking up a vacuum. Manufacturers of this equipment have been on board for a couple of decades almost. Most saws and grinders come with control 

measures, and we’re supposed to use engineer controls. It’s real 

simple. 

Every year, about 4,000 or 5,000 people die on the job. And in 

our OSHA classes, we have to spend 6 hours on the Focus Four, 

the four leading causes of death on the job, and only two on health 

hazards, hazards that kill 50,000 people every year. It’s amazing 

to me that we can’t get this done. 

In my opinion, the problem is it’s not the contractor’s problem. 

It’s your family’s problem when you’re trying to enjoy retirement. 

It’ll get you a few years later. Since my dad died, there’s been no 

change in the silica standard, and I wonder to myself if I’m going 

to—if my family is going to watch me suffer the same fate. 

We must get this done now. There’s no telling how many workers 

have contracted silicosis in the 14 years it’s been in the process. 

The video I mentioned earlier states at the end that these workers 

will not have died in vain if we use what we have gained to help 

prevent workers from contracting this disease. 

The standard is complicated. But I’m here to tell you it really 

isn’t. If you look at the standard, it says that we are allowed to be 

exposed to 0.1 milligrams per meter cubed. This is 1 gram. If you 

divide it in a thousand pieces, it would take 0.1—that’s how much 

we’re allowed to be exposed to in an 8-hour period. It doesn’t take 

an industrial hygienist or a rocket scientist to figure out that if 

you’re standing, dry cutting in a plume of dust, you are well over 

the limit. 

In conclusion, I just want to say again that I am honored to be 

here today and to be, hopefully, a small part of ensuring that my 

father and all that have perished on the job or from diseases from 

the job did not die in vain. 

Thank you. 

[The prepared statement of Mr. Ward follows:] 

PREPARED STATEMENT OF TOMMY C. WARD, JR. 

SUMMARY

When I was 13 years old, my father died of silicosis. In his late twenties, he 

worked as a sandblaster, and was exposed to silica dust on the job. A few years 

later, he started getting short of breath. He was officially diagnosed with silicosis 

at age 34. My dad was 39 years old when he died in February 1982. 

I joined the International Union of Bricklayers and Allied Craftworkers (BAC) in 

1991 after working as a laborer for a few years. I had no idea when I started working as a laborer and later as a bricklayer that I could be exposing myself to silica 

dust. To this day, I wonder if I will develop silicosis myself and if my children will 

have to watch me suffer the same fate as my father. 

After 14 years on the wall, I became involved in training; part of my job is to provide safety training to apprentices and journeyworkers. I’m concerned that the men 

and women I’m training are being exposed to the same hazard that killed my dad 
27 

all these years later. I’m concerned that the same weak OSHA silica standard that 

was adopted in 1972 remains on the books today, allowing workers to be exposed 

to harmful, even deadly, levels of silica dust. OSHA has been working on a new 

stronger silica standard for more than 14 years—since 1997. But there have been 

all kinds of delays in issuing this rule. Currently the draft of a new proposed rule 

is at OMB for review, where it has been for more than a year. 

We can fix this problem. Young men and women don’t have to die from exposure 

to silica. There are simple and cost-effective solutions to prevent exposure to silica 

dust on the job. 

It’s as simple as water; as simple as outlawing dry cutting on construction sites. 

Most, if not all, of the tools that when used may disperse silica dust come with 

water hook-ups or have other attachments that prevent dust from becoming airborne. Without a stronger standard in place including dust control provisions, however, there is nothing to compel employers to provide these simple and relatively 

inexpensive tools. Good contractors get it and do the right thing; they put in place 

controls and good programs, but they’re having problems competing with contractors 

who won’t, contractors who see their workers as disposable, and who know OSHA 

can’t do a thing to make them protect their workers? 

We must act together now so our children and grandchildren are not victims. We 

cannot let another generation pass us by without taking action. 

Thank you Chairman Harkin for the opportunity to testify before you, Ranking 

Member Enzi, and the other distinguished Senators on the Committee on Health, 

Education, Labor, and Pensions this morning. My name is Tom Ward, and I am a 

member of the International Union of Bricklayers and Allied Craftworkers, Local 1 

Michigan. It is an honor to have this opportunity to testify before you on the delays 

in OSHA’s Standard-Setting Process and the Impact on Worker Safety. This topic 

is particularly important to me and my family. 

When I was 13 years old, my father died of silicosis. In his twenties, he worked 

as a sandblaster for 5 to 6 years. There’s not a whole lot I remember clearly about 

my childhood; but I do remember going to work with my dad a couple times. I remember old rusty truck frames coming in to be blasted and primed, the effort he 

put into the job, his work ethic; and I remember being amazed that it was my dad 

that made them look new at the end of the day. 

After he left his job sandblasting, my dad took a job where he was represented 

by the Teamsters’ Union—he had good pay and benefits that my family relied on. 

A few years into his new job, he started getting short of breath. I remember my 

mom telling me the doctors suspected lung infections. We got the official diagnosis— 

silicosis—when he was 34 years old. The hardest memory to live with is the last 

day he worked—he came in the door, fell to the floor and started crying. He said 

‘‘I can’t do it anymore.’’ 

My dad was 39 years old when he died in February 1982. It took 5 years for silicosis to kill him. It was a slow and very painful process for me, my sisters and for 

my mother to witness. In the end, his disease suffocated him. 

My dad’s death had profound impacts on me. He was a very hands-on guy—he 

would fix the car himself, and make repairs to the house. It’s a trait that I inherited 

from him, and that led me into the trades myself. I’m not sure if I inherited his 

tremendous work ethic or if it was the result from watching him work until he 

dropped, I still live with the image every day even though it’s been 30 years already. 

In 1991, I joined the International Union of Bricklayers and Allied Craftworkers 

(BAC) after working as a laborer for a few years. Coming into the trade was easy 

for me because I loved working with my hands. I got a great job, and turned it into 

a great career. I had no idea when I started working as a laborer and later as a 

bricklayer that I could be exposing myself to silica dust. To this day, I wonder if 

I will develop silicosis myself. 

At the time I started in the trades, there wasn’t a lot of training being done about 

respiratory protection or silica. A lot of the guys I worked with were completely unaware of the seriousness of silica exposure, and the contractors out there weren’t 

consistent about providing protective equipment because the standard was completely lacking; the rules were lax and there was no enforcement. The same standard exists today. 

Once I became aware of the silica hazards in the trade I had chosen—and given 

my father’s experience—I did what I could to protect myself including research on 

the standard. It was very confusing for an apprentice, paper masks were the only 

option on the job. After 14 years in the trade I became involved in training, this 

is when I first received training on the hazard. When the presenter showed us a 

video called ‘‘Stop Silicosis’’ my heart sunk as I wondered if my children ages 7 and 
28 

5 at the time would watch me suffer the same fate as my father. What may be 

shocking to you about the video is that it was produced in 1938 by Secretary 

Frances Perkins’ Department of Labor. In the video, they refer to jackhammers as 

‘‘widow makers.’’ A digital copy is available on Youtube, its 11 minutes that shows 

simple, very inexpensive control measures to eliminate the hazard. 

As bricklayers, we have our own widow makers—masonry saws and grinders. Before the 1970s, most of our cuts were made by hand with a hammer and chisel. In 

the late seventies, though, diamond-bladed saws were increasingly prevalent on 

jobsites, and later gas-cutoff saws started appearing. In the early eighties, more and 

more saws were used because the newer, more complicated buildings required more 

and more cuts to the masonry materials. These saws all come with a water hookup or an available vacuum attachment, but they rarely get used even though they 

are a cheap and effective way of reducing exposure to airborne silica dust. 

Part of my job instructing apprentices and journeyworkers is to provide safety 

training to them. I’m concerned about the men and women I’m training; that they’re 

being exposed to the same hazard my dad was all these years later. 

In my own classes, I try to give our apprentices and journeymen and women a 

good understanding of respiratory dangers and how to use protective equipment. In 

addition to sharing my personal story, I tell them that according to NIOSH, over 

50,000 men and women die each year from diseases contracted at work including 

silicosis. We are required to spend 6 hours teaching the Focus 4 in our OSHA 30- 

hour course—falls, electrocution, caught-in or between and struck by—the leading 

causes of death on the job. These Focus 4 hazards kill 4,000 to 5,000 workers each 

year. We are only required to teach 2 hours on health hazards—hazards that kill 

10 times that every year. In my opinion we have forgotten about the very real 

threat of inhaling dust on the job; about the workers who slowly suffer for years 

and then die from an illness like my dad did and like 50,000 others do each year. 

Training apprentices and journeymen and women helps them understand the risks 

they face from silica, and they understand how to protect themselves. 

It’s not easy for workers to apply this knowledge on the jobsite; those who speak 

up may not be called back for the next project. Although there are good contractors 

out there who are aware of the dust hazards, construction workers are typically employed by many contractors in a given year and not all of them provide such equipment, or even require the use of the equipment when it is provided. Without 

strengthened standards and enforcement efforts, there is nothing compelling employers to keep their employees safe from silica and other dust. 

For my entire career—no, longer— since my dad died—there has been no change 

in the OSHA silica exposure limits or changes to strengthen the silica standard. 

OSHA has been working on a new stronger silica standard for more than 14 years— 

since 1997. But there have been all kinds of delays in issuing this rule. Currently 

the draft proposed rule is at OMB for review, where it has been for more than a 

year. 

I’m concerned that in the entire careers of the young men and women I’m training 

today there will be no change in the silica standard and to make stronger the requirements for dust control. For some it may already be too late. It is in our power 

to fix the problem. Young men and women don’t have to die from exposure to silica. 

Secretary Perkins gave us the solutions some 74 years ago; they are easy and relatively inexpensive—especially when compared to the years of health care costs for 

the thousands of men and women that have died from disease related to silica exposure on the job. We must get this done now. 

The 1938 video I mentioned earlier addressing the dangers of silica exposure ends 

with the line ‘‘these workers will not have died in vain.’’ Thousands of workers have 

died in vain since that video was produced. It’s impossible to believe that in almost 

80 years we have done little to reduce the dangers to our working men and women 

from silica. After years of hard work, no one should lose everything then end his 

or her life struggling to draw a breath because of minute dust inhaled on the job. 

I am honored to have an opportunity to ensure that my father and all that have 

perished from diseases contracted at work will not have died in vain. 

The CHAIRMAN. Thank you, Mr. Ward, for a very poignant presentation. I appreciate it very much. 

Dr. Silverstein, please proceed. 
29 

STATEMENT OF MICHAEL SILVERSTEIN, M.D., MPH, CLINICAL 

PROFESSOR OF ENVIRONMENTAL AND OCCUPATIONAL 

HEALTH, UNIVERSITY OF WASHINGTON SCHOOL OF PUBLIC 

HEALTH AND COMMUNITY MEDICINE; RETIRED DIRECTOR 

OF STATE OSHA PROGRAM AT WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, SEATTLE, WA 

Dr. SILVERSTEIN. Thank you. Chairman Harkin, Ranking Member Enzi, I appreciate the opportunity to speak to you today. And 

I’d like to summarize my testimony in five points. 

First of all, nearly 40 years after the OSHA Act was signed, the 

national toll of preventable workplace illness, injury, and death remains appallingly high. A recent study found 5,600 fatal injuries, 

53,000 fatal illnesses, and 9 million other workplace injuries and 

illnesses every year for an annual cost of $250 billion. 

Second, OSHA’s rules have kept workers from being killed, but 

roadblocks have interfered with forward progress. OSHA had a 

good start in the 1970s with rules for asbestos, arsenic, lead, cotton 

dust, and there’s strong evidence that these have been effective in 

protecting workers with no evidence of reduced competitiveness, 

productivity, or profits. 

Simply put, OSHA regulations have saved lives without killing 

jobs. However, myths about rules have overshadowed this reality, 

and procedural and political roadblocks have brought OSHA rulemaking to a virtual halt. If there is a crisis, it’s not over-regulation, 

but unregulated hazards. For example, the U.S. Chemical Safety 

Board reported on the dangers from combustible dust in 2006 after 

reviewing nearly 300 serious fires and explosions that had killed 

119 workers. The Board recommended new OSHA rules. 

Just 2 years later, a huge explosion of combustible sugar dust at 

the Imperial Sugar Refinery in Georgia killed 14 workers. And 3 

years after that, five more workers were killed in iron dust explosions in Texas. Now, 6 years since the Board warning, without a 

new OSHA standard, it is a national embarrassment that workers 

continue to be blown up in combustible dust explosions. 

My third point is that lost time means lost lives. It takes OSHA 

almost 8 years, as you’ve heard, on average, to adopt a safety and 

health rule and, in many cases, much longer. Exposure to silica 

dust causes crippling lung disease and lung cancer. OSHA started 

toward rulemaking in 1974. After 37 years of bureaucratic delay, 

draft documents were finally submitted for OMB review. 

And now, as you pointed out, Mr. Chairman, more than a year 

later, the proposal remains handcuffed within OMB. Now, assuming a very best case scenario, it will take another 3 years after the 

proposal emerges from OMB for a new silica rule to be adopted, 41 

years after the process started. And by this time, more than 2,000 

lives could have been saved. 

Fourth point, when problems are found, we need to find solutions, and here are some suggestions. First, OSHA and the National Institute of Occupational Safety and Health, or NIOSH, 

should be required to establish a shared priority list for rulemaking. OSHA should work with NIOSH on a new national survey 

of workplaces to get detailed information on worker exposures and 

control measures for hazards that are on the priority list. 
30 

OMB should acknowledge that OSHA’s public hearing process is 

especially robust. All issues of concern to OMB are discussed and 

debated on the record—economic impacts, potential alternatives, 

technological and economic feasibility. The OMB review only slows 

things down without adding substantial value. OMB should limit 

itself to cursory review of this, or simply exempt OSHA from the 

review requirements of Executive Order 12866. 

Congress should direct OSHA to update more than 400 chemical 

exposure limits that haven’t been changed for more than 40 years. 

It should allow an expedited process for OSHA to adopt modern 

consensus standards that have widespread support in reputable national or international organizations. 

Congress should also be more willing to step in when the rulemaking process fails in a timely way to protect workers from 

known hazards. And I would point out that this approach has, in 

fact, worked well on several occasions at the Federal level and 

more recently has worked quite well in two specific examples in the 

State of Washington. 

In one of these, the Washington State Legislature directed the 

State OSHA program to develop rules to protect healthcare workers from exposure to chemotherapy and other hazardous drugs, 

drugs that are helpful to patients but can actually kill workers. 

The second was a requirement for employers who have violated 

safety and health regulations to correct the hazards right away, 

even if they’ve appealed the citation. And that rule also provides 

due process for employers to seek a stay and to be granted a stay 

if, in fact, one is appropriate. In both these cases, the State completed the process in about 6 months. 

Also, improved standard-setting is necessary but it’s not sufficient. Public employees in 31 States and territories are completely 

excluded from OSHA protections. Now, while public employees in 

the other 27 States and territories may experience long delays before a standard is passed, they at least enjoy protections when the 

rules are adopted. The rest have remained out in the regulatory 

cold for 38 years, and this is a gap that Congress can and should 

fix. 

Finally, my fifth point is that a bad situation can, in fact, become 

worse. Several proposals now before Congress will slow OSHA 

standard-setting even further, and we simply need to be moving in 

the other direction. You know, most OSHA rules that were adopted 

before 1981, before the GAO timeframe, were completed quickly. 

The rules for asbestos, arsenic, cotton dust, and lead were all 

adopted within just a few years. And there’s no evidence at all that 

those rules were any more burdensome or costly, any less protective or effective, or any less supported by scientific evidence than 

subsequent rules that have taken many, many years longer. 

We have created barriers based on false alarms. And the need 

now is to lower them so that worker protection can proceed again 

without delay. And it’s no exaggeration to say that lives are at 

stake. 

That concludes my comments, and I’ll be happy to respond to 

questions later. Thank you. 

[The prepared statement of Dr. Silverstein follows:] 
31 

1Leigh, JP. (2011) Economic Burden of Occupational Injury and Illness in the United States. 

Milbank Quarterly, 89(4):728–72. 2Office of Technology Assessment, Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health: An Appraisal of OSHA’s Analytical Approach. Washington, DC, 

OTA, 1995. 

PREPARED STATEMENT OF MICHAEL SILVERSTEIN, M.D., MPH 

SUMMARY

I am a physician certified in occupational medicine with nearly 40 years of experience in workplace safety and health. I recently retired from the Washington State 

Department of Labor and Industries where I directed the State OSHA Program for 

10 years. My previous positions include Director of Policy for Federal OSHA, Washington State Health Officer, and assistant director for Occupational Safety and 

Health for the United Automobile Workers. 

1. Nearly 40 years after the OSHAct was signed the national toll of preventable workplace injury, illness and death remains appallingly high. The 

most recent published study has documented 5,600 fatal workplace injuries, 53,000 

fatal illnesses and more than 9 million non-fatal injuries and illnesses every year 

for total estimated annual costs of $250 billion. 

2. OSHA’s rules have kept workers from being killed, but roadblocks have 

interfered with forward progress. There is strong evidence that OSHA rules 

have been effective in protecting workers with no evidence of interference with competitiveness, productivity or profits. However, myths about rulemaking have overshadowed this reality. As a result, procedural and political roadblocks have brought 

OSHA rulemaking to a virtual halt. 

3. Lost time means lost lives. OSHA started rulemaking on silica dust in 1974. 

OSHA estimates that 60 worker deaths a year would have been prevented with a 

new rule. We’ve already lost the opportunity to prevent more than 2,000 deaths 

from silica exposure. 

4. When problems are found, we need to find solutions. OSHA and NIOSH 

should be required to establish a shared priority list for rulemaking. OMB should 

acknowledge that OSHA’s public hearing process is especially robust and should 

limit itself to cursory reviews or exempt OSHA from OIRA review. Congress should 

direct OSHA to update its 400 obsolete chemical exposure limits. Congress should 

extend the protections of OSHA rules to all public employees. 

5. A bad situation could become worse. Several proposals on regulatory process currently before Congress will cause harm by slowing down OSHA’s standard 

setting process even further. 

Chairman Harkin and Ranking Member Enzi, my name is Dr. Michael Silverstein 

and I appreciate the opportunity to testify before you today. 

1. Nearly 40 years after the OSHAct was signed the national toll of preventable workplace injury, illness and death remains appallingly high. The 

most recent published study of workplace injuries and illnesses by Dr. Paul Leigh 

has documented 5,600 fatal injuries, 53,000 fatal illnesses and more than 9 million 

non-fatal injuries and illnesses every year for total estimated annual costs of $250 

billion.1 The human impact and national cost for these predictable and preventable 

losses is unacceptably huge. 

2. OSHA’s rules have kept workers from being killed, but roadblocks have 

interfered with forward progress. Congress intended rulemaking to be one of 

the principle vehicles for OSHA to ensure that workers return home safe and 

healthy every day. OSHA had a good start with rules protecting workers from asbestos, vinyl chloride, coke oven emissions, arsenic, lead, cotton dust and hazards 

associated with power transmission and generation, scaffolding, and mechanical 

power presses. There is strong evidence that these and other OSHA rules have been 

effective in protecting workers for reasonable costs with no evidence of interference 

with competitiveness, productivity or profits.2 Simply put, OSHA regulations have 

saved lives without killing jobs. However, in recent years myths about rulemaking 

have overshadowed this reality. As a result, procedural and political roadblocks 

have brought OSHA rulemaking to a virtual halt. 

If there is a crisis it is not over-regulation, but persistently deadly unregulated 

hazards such as silica, workplace violence and combustible dust. For example, the 

U.S. Chemical Safety Board (CSB) issued a report on the dangers from combustible 

dust in 2006 after reviewing nearly 300 serious fires and explosions that killed 119 
32 

3Phenolic resin dust explosion, CTA Acoustics plant, Corbin, TN. 

4Polyethylene dust explosion, West Pharmaceutical Services, Kinston, NC. 

5 U.S. Chemical Safety and Hazard Investigation Board. November 2006. Combustible Dust 

Hazard Study. Washington, DC. Report # 2006–H–1. 

workers, including a 2003 plastic dust 3 explosion in Tennessee that killed seven 

workers and a 2003 plastic dust 4 explosion in North Carolina that killed six workers. The CSB recommended that OSHA conduct rulemaking to prevent these deadly 

explosions. 5 Just 2 years later, while OSHA was struggling with the bureaucratic 

obstacles to rulemaking, a huge explosion of combustible sugar dust at the Imperial 

Sugar refinery near Savannah, GA killed 14 workers. And 3 years after that five 

workers were killed in a series of iron dust explosions in Gallatin, TX. Now, nearly 

6 years since the CSB warning, it is a national embarrassment that workers continue to be blown up. 

3. Lost time means lost lives. Between 1981 and 2010 it has taken OSHA an 

average of 7 years 9 months to adopt a workplace safety and health standard. Over 

25 percent of the rules completed during these years took more than 10 years with 

several being delayed for nearly 20 years. And there have been even longer delays 

for some that have yet to be completed. 

For example, workplace exposure to silica dust (the basic ingredient in common 

sand) has long been known to cause crippling lung disease and lung cancer. OSHA 

started the rulemaking process for a new silica standard in 1974 after the National 

Institute for Occupational Safety and Health (NIOSH) reported that the old standard left workers at high risk. A draft was finally presented for review, 29 years 

later, to a small business panel as required by the Small Business Regulatory Fairness Enforcement Act (SBREFA). After 8 more years rulemaking documents were 

submitted for OMB review under Executive Order 12866. Today after yet another 

year the silica proposal remains handcuffed within OMB. Assuming a best-case scenario after this hearing, it will still take another 3 years for a new silica rule to 

be adopted—41 years after the process started! OSHA has estimated that 60 worker 

deaths a year would be prevented by reducing the standard to the levels recommended in 1974. By 2015 we will have lost the opportunity to prevent nearly 

2,500 deaths. 

4. When problems are found, we need to find solutions. The GAO report on 

OSHA standard setting correctly identifies many of the reasons OSHA rulemaking 

has slowed down, but the report falls far short on recommendations for improvement. A practical, effective action agenda should include at least the following: 

• OSHA and NIOSH should be required to work together to establish a shared 

priority list for rulemaking. This should be done with substantial stakeholder input, 

similar to the priority process OSHA began in the mid-1990s but later abandoned. • OSHA should work more closely with NIOSH and EPA on risk assessments and 

feasibility analyses that are required for rulemaking. This should include a new national survey of workplaces to get detailed information on worker exposures and 

control measures for hazards on the priority list. • OMB should acknowledge that OSHA’s public hearing process is especially robust, going well beyond the requirements of the Administrative Procedure Act. An 

independent administrative law judge presides. Witnesses present information, 

analysis and opinions and are challenged through cross-examination. All issues of 

concern to OMB are discussed and debated on the record—including the need for 

regulatory action, economic impacts, potential alternatives, and technological and 

economic feasibility. OSHA then makes decisions based on the evidence and testimony. If challenged it must be able to prove in court that its actions are ‘‘supported 

by substantial evidence in the record considered as a whole.’’ Given this openly deliberative process the OMB review only slows down the rulemaking without adding 

substantial value. OMB should limit itself to very cursory reviews or simply exempt 

OSHA from the review requirements of Executive Order 12866. • OSHA’s rules for more than 400 dangerous chemicals have not been updated 

for almost 40 years. Congress should direct OSHA to update these obsolete permissible exposure limits (PELs) using an expedited process to adopt contemporary consensus standards that have received widespread support by reputable national or 

international organizations. • Congress should be more willing to step in when the normal rulemaking process 

fails in a timely way to protect workers from dangers. This approach has worked 

well recently in Washington State where two safety and health rules were required 

by statute. In one of these the Legislature directed the State OSHA program to develop rules to protect health care workers from exposure to chemotherapy and other 

hazardous medicines. The rules had to be consistent with but could not exceed provisions in existing NIOSH Guidelines. The second rule requires employers who are 
33 

6 National Institute for Occupational Safety and Health. 1974. Criteria for a Recommended 

Standard: Occupational Exposure to Crystalline Silica. Washington, DC. DHHS (NIOSH) Publication No. 75–120. 

cited for violating safety and health regulations to correct the hazards promptly 

even if they have appealed the citation unless they seek and are granted a stay. 

In both cases the State OSHA program was able to complete the process in a 12- 

month period. 

• Improving standard setting is necessary but not sufficient. Public employees in 

31 States and territories are completely exempted from the protections of the 

OSHAct. While public employees in the other 27 States and territories may experience long delays, they at least enjoy protections once rules have been adopted. The 

rest have remained out in the regulatory cold for 38 years. This is a gap that Congress can and should close. 

5. A bad situation could become worse. Several proposals on regulatory process currently before Congress will predictably slow OSHA’s standard setting process 

even further. For example, the Regulatory Accountability Act will require cost-benefit analysis for all conceivable alternative approaches to a proposed new rule, a requirement that will grind a slow process to a virtual halt. We need to be moving 

in the other direction. Most OSHA rules adopted before 1981 were completed with 

greater speed than is now routine. The rules for asbestos, coke oven emissions, arsenic, cotton dust, and lead were all adopted within 1 to 4 years. There is simply 

no evidence that any of these was less protective, more burdensome, more costly, 

less effective or less supported by scientific evidence than subsequent rules subject 

to the current procedures. We created barriers based on false alarms and the need 

now is to lower them so that worker protection can proceed again without delay. 

It is no exaggeration to say that lives are at stake. 

RULEMAKING IN SLOW MOTION: THE GAO REPORT ON OSHA STANDARD SETTING

DOCUMENTS A BROKEN BUREAUCRATIC PROCESS

It is disturbing but not surprising that GAO’s central finding in its report on 

OSHA standard setting is that between 1981 and 2010 it has taken OSHA an average of 7 years 9 months to adopt a workplace safety and health standard. More 

troubling is that over 25 percent of 58 rules completed during these years took more 

than 10 years with several being delayed for nearly 20 years. 

And still more distressing is that there have been even longer delays for some important rules that didn’t make it into the GAO report at all because they have yet 

to be completed. Most notably, workplace exposure to silica dust (the basic ingredient in common sand) has been known since ancient times to cause chronic, life 

threatening scarring of the lung. OSHA’s standard for airborne silica was adopted 

in 1972, grandfathered in from an older consensus standard. Just 2 years later 

NIOSH issued a formal statement declaring OSHA’s rule to be inadequate and recommending that it be strengthened.6 OSHA agreed and started rulemaking in 1974 

by issuing an Advance Notice of Proposed Rulemaking but now 38 years later OSHA 

has still not been able to publish a proposed rule and schedule public hearings. 

During this long period the need for a stronger rule has become more compelling. 

The International Agency for Research on Cancer (IARC) and the National Toxicology Program (NTP) have both listed silica as a known human carcinogen. The 

Bush administration designated silica as a high priority in its Fall 2002 regulatory 

agenda. A draft proposal was reviewed in 2003 by a small business panel under the 

Small Business Regulatory Fairness Enforcement Act (SBREFA). In February 2011 

another draft and a peer reviewed risk assessment were submitted for OMB review 

under Executive Order 12866. After 4 months of OMB silence Senators Harkin and 

Murray and Representatives Miller and Woolsey wrote to OMB Director Jacob Lew 

expressing frustration with OMB’s ‘‘paralysis by analysis’’ and urging that the proposal move forward for full public review. After 6 more months I wrote a letter, in 

my capacity as Chair of NACOSH, to the Secretaries of Labor and HHS expressing 

distress at the extraordinary delay and urging them to enhance their efforts to get 

OMB to finish its review. 

Now, as this hearing proceeds, 4 additional months have gone by and the silica 

proposal still sits handcuffed within OMB. Let’s presume a best case scenario following this hearing—the OMB handcuffs are removed, the proposal is immediately 

published by OSHA, and the rulemaking then continues without further exceptional 

delay. Given the average time of 3 years and 3 months from the publication of a 

proposed rule to final adoption, a new silica rule would not be completed until July 

2015—41 years after the process started! 
34 

7 ‘‘Lockout/Tagout (LOTO)’’ refers to specific practices and procedures to safeguard employees 

from the unexpected energization or startup of machinery and equipment, or the release of hazardous energy during service or maintenance activities. According to OSHA compliance with the 

lockout/tagout standard (29 CFR 1910.147) prevents an estimated 120 fatalities and 50,000 injuries each year. 8Foley M, Fan ZJ, Rauser E, Silverstein B. 2011. The Impact of DOSH Enforcement and Consultation Visits on Workers’ Compensation Claims Rates and Costs, 1999–2008. SHARP Technical Report Number: 70–5–2011. http://www.lni.wa.gov/Safety/Research/Files/OccHealth/ 

DoshEnforce19992008.pdf. 

This study evaluated changes in the kinds of injuries most closely related to the rules that 

were being enforced. For example, falls and amputations were included because they are related 

to fall protection and machine guarding rules. But cumulative musculoskeletal disorders like 

tendinitis were not covered because there is no ergonomics rule that covers the risks that cause 

these injuries. 

REGULATORY INERTIA HAS DEADLY CONSEQUENCES

This record of regulatory stupor is troubling because of ample evidence that lost 

time means lost lives. OSHA’s preliminary risk estimate was that 60 worker deaths 

a year would be prevented by reducing the silica exposure limit to the level recommended by NIOSH in 1974. Forty-one years of delay means a lost opportunity 

to have prevented 2,461 deaths. 

Similarly, a significant number of lives and injuries could have been prevented 

by more timely adoption of OSHA’s cranes and derricks rule that was published in 

2010. This began in 2003 with a negotiated rulemaking process. During the 6 years 

before the process began there were 512 crane-related fatalities. Unanimous agreement among the stakeholders on a new rule was reached in 2004, but extra procedural steps delayed adoption until 2010. During the 6-year delay after agreement 

had been reached there were nearly 500 more crane deaths. During this period the 

State of California adopted its own rules for certification of crane operators and 

crane fatalities dropped from 10 during the 3 years before the California rule to 2 

during the 3 years after the rule. 

OSHA RULES, ONCE ADOPTED, PREVENT INJURIES AND SAVE LIVES

Additional studies have shown that once adopted and enforced, OSHA rules effectively prevent injuries, illnesses and deaths. 

OSHA adopted its Lockout/Tagout rule 7 in 1989 after 12.7 years of rulemaking. 

Prior to the rule adoption OSHA determined that approximately 144 fatalities per 

year were due to unexpected activation of machinery. In 2000 OSHA conducted a 

look-back review of the first 7 years of the rule pursuant to the Regulatory Flexibility Act and Section 5 of Executive Order 12866. The review found that the rule 

resulted in a 20 percent to 55 percent reduction in fatalities, or the prevention of 

29 to 79 fatalities per year. If the rulemaking had taken half the actual time of 12.7 

years this would have meant saving this many fatalities in each of 6.35 years, or 

184 to 502 fewer fatalities. 

Other OSHA rules have been equally effective. Between 1978 when the OSHA cotton dust rule was adopted and 2000 when OSHA evaluated its impact the rate of 

byssinosis (or ‘‘white lung’’ disease) among textile workers dropped from 12 percent 

to less than 1 percent. Similar reductions in injury, illness and death have followed 

adoption of OSHA rules for confined space entry, grain elevator safety, lead exposure, and bloodborne pathogen protection. 

Additional evidence comes from the SHARP research unit within the Washington 

State Department of Labor and Industries, which for 20 years has been studying 

the effectiveness of workplace safety regulations. For example, after the State OSHA 

program adopted a new fall protection rule for the construction industry SHARP examined injury rates before and after construction companies were inspected for compliance with the new rule. When companies were cited for failure to comply and 

were required to come into compliance there were subsequent decreases in fall related injuries greater than in comparable companies that had no inspection. 

Washington’s SHARP program has also recently completed a 10-year analysis of 

worker compensation claims in the year following safety and health inspections. 

When companies were cited for failure to comply with safety and health rules and 

were required to come into compliance, there was a significant drop in serious injuries over the next year. This drop was 20 percent greater than in comparable workplaces that were not inspected.8

THE GAO FINDINGS WARRANT MORE ROBUST RECOMMENDATIONS

The evidence clearly indicates that finding ways to speed the rulemaking process 

even modestly would have significant positive impact on employers, employees and 
35 

9See OSHA Web site at https://www.osha.gov/pls/oshaweb/owadisp.showldocument?pl 

table=NEWSlRELEASES&plid=1151. 10Successful efforts include rules for process safety management, personal protective equipment, and respiratory protection. An unsuccessful effort was rulemaking to update all the permissible exposure limits, which was rejected by the 11th Circuit Court of Appeals. 

communities. The strength of the GAO study is in the detail and analytic depth 

with which it identified multiple causes of regulatory delay and many options for 

speeding the process. It was surprising to find that it offered only a single recommendation and disappointing that this recommendation did no more than ask 

two agencies to work closely together, something that has been required by the 

OSHAct since 1971. 

The findings in the report warrant a much more specific and substantive set of 

recommendations such as the following: 

First, OSHA and NIOSH Should Improve Collaboration on Rulemaking: 

• OSHA and NIOSH should work together to establish a shared priority list for 

rulemaking. This should be done with substantial stakeholder input, similar to the 

priority process OSHA began in the mid-1990s but later abandoned.9 It should also 

be modeled on NIOSH’s successful process for establishing its National Occupational 

Research Agenda (NORA). • The OSHAct directs NIOSH to develop scientific criteria for OSHA rules and 

to publish such criteria annually. In its early years NIOSH developed a substantial 

number of detailed criteria documents with recommendations for new OSHA rules, 

but OSHA rarely acted on these recommendations and NIOSH stopped producing 

them. NIOSH should work with OSHA to develop new criteria documents that will 

provide the kind of details on exposures, risks, technological and economic feasibility 

that OSHA needs to support new rules. 

• From 1981–83 NIOSH conducted an on-site survey of establishments in general 

industry to provide national estimates of potential exposures to chemical, physical 

and biological agents (National Occupational Exposure Survey or NOES). The survey also provided data on management’s health and safety practices and policies. 

The NOES, and its predecessor National Occupational Hazard Survey (NOHS) from 

1972–75, represented the most comprehensive source of data on the number of U.S. 

workers potentially exposed to specific hazards and the distribution of these hazards 

by industry and occupation. OSHA and NIOSH should work together on a new national survey that is specifically designed to provide information on worker exposures and feasible control measures for hazards on the regulatory priority list. 

Second, OSHA Should Take Additional Actions: 

• OSHA should work more closely with the Environmental Protection Agency on 

rulemaking. OSHA and EPA have similar requirements to base rulemaking on scientific assessments that estimate the nature and level of risks from exposure to environmental chemicals. EPA’s Integrated Risk Information System (IRIS) contains 

information on human health effects for more than 540 chemical substances. This 

information could potentially be very useful to OSHA. OSHA and EPA have written 

agreements on cooperation for enforcement activities but not rulemaking. They need 

to adopt formal arrangements to work together on risk assessments for rulemaking 

in a way that is mutually supportive and avoids redundancies. 

• As noted in the GAO report OSHA’s principle method for evaluating the feasibility of compliance with proposed new rules is extensive on-site evaluations. These 

are extremely lengthy, labor intensive and costly, but it is not clear that they yield 

information substantially superior to that which can be derived from well-designed 

surveys. In Washington State scientifically designed stratified, random sample surveys of businesses are routinely used to support safety and health rulemaking. 

These have been found to meet the statutory requirements for assessment of small 

business impact, cost-benefit analysis, and technological feasibility determinations. 

By relying more heavily on survey data OSHA could proceed more quickly while still 

meeting the ‘‘best available evidence’’ test in the OSHAct. Since, according to OSHA, 

it currently takes at least 1 year for survey approval by OMB, as required under 

the Paperwork Reduction Act, this approach will only be fully effective if OMB 

would agree to expedite review for these rulemaking surveys or if Congress were 

to grant a Paperwork Reduction exemption to OSHA for these surveys. 

• With a few notable exceptions 10 OSHA has adopted rules for one safety or 

health hazard at a time. This is like seasoning your food one grain of salt at a time. 

Even if each individual rulemaking could be completed more quickly than the current average of 7 years, the sheer volume of hazards would render this approach 

futile. OSHA could use its limited rulemaking resources more efficiently by concen-
36 

trating on some rules with broad, general impact. OSHA’s current regulatory priority of rulemaking for Injury and Illness Prevention Programs is an example of this 

approach and deserves support. Other examples would be general rules for exposure 

assessment, medical surveillance and training. 

Third, OMB Should Allow OSHA Proposed Rules to Move Forward: 

• One of the steps in rulemaking that has repeatedly resulted in long delays is 

the review of proposed OSHA rules by the OMB Office of Information and Regulatory Affairs (OIRA) as required by Executive Order 12866. This review covers the 

need for regulatory action, an assessment of potential costs and benefits, the anticipated effect on functioning of the economy and private markets, and an assessment 

of possible alternatives to the planned regulation. However, the OSHA public hearing process is especially robust, going well beyond the requirements of the Administrative Procedure Act and providing an open forum in which all issues of concern 

to OMB are discussed and debated on the record. An administrative law judge presides, agency officials participate, witnesses deliver testimony and are subject to extensive cross-examination, data and documents are introduced and discussed, and 

a formal record is kept. OSHA then makes decisions based on the evidence and testimony. If challenged it must be able to prove in court that its actions are ‘‘supported by substantial evidence in the record considered as a whole.’’ Given this 

openly deliberative process the OMB review only slows down the rulemaking without adding substantial value. OSHA’s process should be considered sufficient to warrant relatively cursory review, if not outright exemption, by OIRA. 

Fourth, Congress Should Provide More Direction For Worker Protection: 

• OSHA attempted to update the PELs for more than 400 chemicals in a single 

rulemaking in 1989. The 11th Circuit Court of Appeals vacated OSHA’s new rule 

1992, finding that OSHA failed to analyze and provide evidence of significant risk, 

economic and technological feasibility for each of the individual chemicals. This decision has proven administratively insurmountable. As a result almost all of these 

PELs remain significantly obsolete and are widely judged to be insufficiently protective. Congress should direct OSHA to update these PELs by using an expedited 

process to adopt contemporary consensus standards that have received widespread 

support by reputable national or international organizations. 

• As noted in the GAO report when statutes or court orders require OSHA to undertake rulemaking, the average time to adoption is 4 years, 7 months or about half 

as long as other OSHA rules. Congress should be more willing to step in when the 

normal rulemaking process fails to act in a timely way to protect workers from significant dangers. Congress, for example, should direct OSHA to act where another 

Federal agency, within its own statutory mandate, has recommended that OSHA’s 

rules be improved and where OSHA has refused. This would apply, for example, to 

standing recommendations from the U.S. Chemical Safety Board regarding the hazards of combustible dust. Congress has done this before with good results, including 

statutory requirements for OSHA to strengthen its bloodborne pathogen standard, 

adopt rules to protect workers engaged in hazardous waste operations, and adopt 

a lead standard for the construction industry. In two other recent cases important 

safety and health rules were adopted in Washington State following statutory direction. In the first, the 2011 Legislature directed the State OSHA program to develop 

rules protecting health care workers from exposure to chemotherapy and other hazardous medications, specifying that the rules would be consistent with but would 

not exceed provisions in the 2004 NIOSH Guidelines (as updated in 2010). Also in 

2011 the Washington Legislature ordered rulemaking to require employers who 

have been cited for violation of safety and health regulations to correct the hazards 

promptly even if they have appealed the citation unless they seek and are granted 

a stay until the appeals process is completed. In both cases, the Washington Department of Labor and Industries was able to complete the process in a 12-month period, including informal stakeholder meetings, publication of proposed rules and formal public hearings. 

• Congress should give flexibility to OSHA to complete rulemaking in a more 

timely fashion without sacrificing quality by providing an option for the agency to 

adopt rules that are technology based, with affected industries shouldering the burden of proof to demonstrate infeasibility. 

CLOSING REMARKS

In conclusion, successive waves of legislation, executive action and case law have 

created barriers to safety and health rulemaking resulting in significant delay with 

consequences that are demonstrably harmful and, in many cases, deadly. While 

GAO is to be commended for a reasonably thorough description of these problems, 
37 

the report has failed to articulate meaningful solutions. Also, by limiting its assessment to the years since 1981 the report also has failed to identify two important 

problems that become apparent when assessing the full history of OSHA since its 

establishment in 1971. 

• Most of the OSHA rules adopted before 1981 were completed with much greater 

speed than has now become routine. The rules for asbestos, vinyl chloride, coke oven 

emissions, DBCP, inorganic arsenic, cotton dust, acrylonitrile, lead, commercial diving, fire protection, roof guarding, and electrical systems were all adopted within 1 

to 4 years of initiation. There is simply no evidence that any of these rules was less 

protective, more burdensome, more costly, less effective or less supported by scientific evidence than subsequent rules experiencing the added procedural steps documented by GAO. This historical perspective suggests that we created barriers 

based on false alarms and that there is nothing to be lost by lowering them in the 

interest of worker protection. 

• Perhaps the most glaring and indefensible example of regulatory delay is a feature of the OSHAct that is more basic than its particular provisions on rulemaking. 

Public employees in 31 States and territories are completely exempted from the protections of the OSHAct. While public employees in the other 27 States and territories may experience long delays, they at least enjoy protections once rules have 

been adopted. The rest have remained out in the regulatory cold for 38 years—a 

much more extreme failure than anything reported by GAO. This is a gap that Congress can and should close. 

The CHAIRMAN. Thank you very much. 

Ms. Rabinowitz, please proceed. 

STATEMENT OF RANDY S. RABINOWITZ, DIRECTOR, 

REGULATORY POLICY, OMB WATCH, WASHINGTON, DC 

Ms. RABINOWITZ. Mr. Chairman, members of the committee, 

thank you very much for the opportunity to testify today on delays 

in OSHA rulemaking. My name is Randy Rabinowitz, Director of 

Regulatory Policy at OMB Watch, an independent, nonpartisan organization that promotes open, accountable government and health 

and safety standards that protect people and the environment. 

Congress passed the Occupational Safety and Health Act to ensure that every working man and woman in the Nation had safe 

and healthful working conditions. Under the act, OSHA cannot 

issue rules unless it has thoroughly researched the impact of its 

rules, shown that the rule would reduce a significant risk in the 

workplace, would reduce that risk at a reasonable and affordable 

cost, relying on technology already in use or in development. 

OSHA may do so only after an open and transparent rulemaking 

process in which workers, unions, scientists, small and large businesses, and others regularly participate. If OSHA’s analysis is 

weak on any of these points, courts will strike down its standard. 

In the years since its creation, OSHA’s ability to protect workers 

from harm has been undermined by Kafka-esque demands for additional reviews of proposed and final rules mandated by new statutes and Executive orders. Many of these additional analytic requirements overlap with, duplicate, and/or conflict with the requirements of the OSHA Act and serve no apparent purpose other 

than to delay and burden the rulemaking process. 

As new analytic requirements have been imposed on OSHA, the 

time needed to complete a rule has increased. GAO has calculated 

that, on average, it takes almost 8 years to promulgate a standard. 

But before all these new added reviews were required, it took 

OSHA just a few months to a few years. 

As we’ve heard, rules for asbestos, lead, vinyl chloride, and arsenic and others were developed far more quickly than would be 
38 

possible today. And each of these standards has made a huge difference in the health of workers at costs which studies show were 

substantially below what was estimated at the time the rule was 

established. 

Today it takes OSHA almost a decade to set a standard. Much 

of this delay is caused by the cumulative impact of the various regulatory analyses OSHA is required to complete. These requirements have crippled OSHA’s ability to protect workers in a timely 

fashion. 

We need to update workplace health and safety standards, not 

to bury them. To do so, Congress should limit OMB’s ability to 

interfere in rulemaking. It should make certain that OMB does not 

impose a cost-benefit test on OSHA standards when the U.S. Supreme Court has ruled that such a test is improper. In our view, 

cost-benefit analysis simply cannot properly value what it means to 

workers of avoiding disabling injuries and what it means to their 

families to avoid having a loved one killed too soon. 

Congress should require that OMB review, if any, be based on 

the same rulemaking record that OSHA must rely on, and OMB 

should be required to explain the reasons for any changes it makes 

to a rule. OMB should no longer be able to develop a secret record 

in private, closed-door meetings held mostly with industry opponents of regulation. 

Pending regulatory reform proposals would move in the wrong 

direction. Four separate regulatory reform proposals are pending in 

the Senate. They are the Regulatory Accountability Act, the Regulations from the Executive in Need of Scrutiny Act, the Regulatory 

Flexibility Improvements Act, and the Regulatory Time-Out Act. 

None of the pending regulatory reform proposals would fix the 

OSHA standard-setting process. Each would further delay or shut 

down the process. Passage of these bills would hurt workers and 

make them less safe. They should be rejected. 

Finally, I think it’s worth noting that if you look at the testimony 

here this morning, there are several things about which there is 

wide acceptance and which Congress could do that would improve 

the standard-setting process. And some of the suggestions I’m 

about to mention are drawn from the testimony of my colleague, 

Mr. Sarvadi, with whom I rarely agree on these matters. 

It is unfortunate that GAO’s recommendations on improving the 

standard-setting process are so limited. So I think that OSHA 

should pick a few hazards, devote resources to reducing worker exposures, and see these priorities through without shifting gears so 

often. 

OSHA should rely more extensively on comprehensive scientific 

evaluations by EPA or NIOSH. Once one agency of government 

thoroughly evaluates the hazards of a substance, other agencies 

should not have to repeat that analysis. And I would note that one 

of the reasons MSHA has been able to move more quickly than 

OSHA, in addition to knowing the mining industry inside out, is 

that they often follow other agencies and rely on their scientific 

evaluation so they don’t have to redo the whole scientific analysis. 

OSHA should have better mechanisms to get data voluntarily 

from business about the impacts of its rules. Right now, OSHA 

must wait months for OMB to approve requests for surveys under 
39 

the Paperwork Reduction Act. And Mr. Sarvadi suggests that 

OSHA should consult with business more frequently and earlier in 

the process. One thing that would help improve such a dialog is if 

industry was willing to share with OSHA concrete data that it 

needs for the rulemaking process. 

OSHA spends, in my mind, too much time quantifying risks. This 

is one of the real downsides of OMB’s approach. OSHA should 

make sure that a hazard it seeks to regulate poses a real risk large 

enough to warrant government action, but it doesn’t really matter 

whether asbestos causes 1,200 mesotheliomas a year or 1,500. The 

important point is we know asbestos causes cancer, and we know 

that worker exposure to asbestos should be reduced or eliminated. 

And, finally, OSHA should be able to update outdated rules 

where contemporary consensus exists. That would include industry 

consensus standards, negotiating rulemakings, or some kind of private dialog between labor and industry where they come up with 

an agreement. We should be able to get a proposal out in the public 

for further debate more quickly than has been the case in the past. 

I think all of these things would improve OSHA rulemaking and 

make the workplace more safe for the people who work there every 

day. 

Thank you. 

[The prepared statement of Ms. Rabinowitz follows:] 

PREPARED STATEMENT OF RANDY S. RABINOWITZ

SUMMARY

Congress passed the Occupational Safety and Health Act of 1970 (OSH Act) to ensure ‘‘every working man and woman in the Nation safe and healthful working conditions.’’ Under the OSH Act, OSHA cannot issue a rule unless the impact of its 

proposal has been thoroughly researched and shown to address significant risks in 

the workplace at a reasonable and affordable cost. And, it may do so only after an 

open and transparent rulemaking process which encourages participation by a broad 

group of stakeholders. 

In the years since its creation, OSHA’s charge to protect workers from harm has 

been undermined by Kafka-esque demands for additional reviews of proposed and 

final rules mandated by new statutes and Executive orders. Many of these additional analytic requirements overlap with, duplicate, and/or conflict with the requirements of the OSH Act and serve no apparent purpose other than to delay and 

burden the rulemaking process. 

As new analytic requirements have been imposed on OSHA, the time needed to 

complete a rule has increased. GAO has calculated that, on average, it now takes 

almost 8 years to promulgate an OSHA standard. Cumulatively, these requirements 

have crippled OSHA’s ability to set new safety and health standards in a timely and 

responsive fashion. 

We need to update workplace health and safety standards, not bury them. To do 

so, Congress should limit OMB’s ability to interfere in rulemaking. It should make 

certain that OMB does not impose a cost-benefit test on OSHA standards, when the 

Supreme Court has ruled that such a test is improper. Cost-benefit analysis simply 

cannot properly value some of the most important benefits of worker protections. 

Congress should require that OMB review, if any, be based on the rulemaking 

record and OMB should be required to explain the reasons for any changes it makes 

to a rule. Secret meetings by OMB with industry opponents of regulation should 

stop. 

The process for issuing workplace health and safety standards is broken and 

needs to be fixed. We need to update workplace health and safety standards, not 

bury them. Pending regulatory reform proposals would move in the wrong direction. 

Four separate regulatory reform proposals are pending in the Senate: the Regulatory Accountability Act (S. 1606), the Regulations from the Executive in Need of 

Scrutiny (REINS) Act (S. 299), the Regulatory Flexibility Improvements Act 

(S. 1938), and the Regulatory Time-Out Act (S. 1538). None of the pending regu-
40 

1 29 U.S.C. § 651(b). 

latory reform proposals would fix the OSHA standard setting process. Rather, each 

of these proposals is designed to further delay or shut down the regulatory process. 

Passage of these bills would hurt workers and make them less safe. 

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

testify on delays in standard setting at the Occupational Safety and Health Administration (OSHA). My name is Randy Rabinowitz, director of Regulatory Policy at 

OMB Watch, an independent, nonpartisan organization that promotes open, accountable government and health and safety standards that protect people and the 

environment. OMB Watch has monitored the Office of Management and Budget’s 

(OMB) Office of Information and Regulatory Affairs (OIRA), OSHA, and their interactions for more than 25 years. We co-chair the Coalition for Sensible (CSS), an alliance of more than 75 consumer, small business, labor, scientific, research, good government, faith, community, health, and environmental organizations joined in the 

belief that our system of regulatory safeguards is essential to maintaining our quality of life and building a sustainable economy that works for all. Time constraints 

prevented the coalition from reviewing my testimony in advance, and today I speak 

only on behalf of OMB Watch. 

I am a nationally recognized expert on OSHA standard setting. I have served as 

co-chair of the American Bar Association’s (ABA) OSH Law Committee; as the editor-in-chief of the ABA’s 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, and I have 

worked for or advised Congress, OSHA, and other Federal and State health and 

safety agencies on regulatory issues. 

OSHA’S MISSION HAS BEEN UNDERMINED BY TOO MUCH REGULATORY ANALYSIS

Congress passed the Occupational Safety and Health Act of 1970 (OSH Act) to ensure ‘‘every working man and woman in the Nation safe and healthful working conditions.’’ 1 OSHA protects workers by setting workplace standards and enforcing 

those standards through inspections. Every year, millions of workers are protected 

from the hazards posed by grain elevator explosions, dangerous equipment, toxic 

chemicals and materials, and dozens of other workplace hazards because of OSHA’s 

work. 

Unfortunately, OSHA’s rulemaking process is now so burdened by requirements 

for regulatory analysis that the agency is incapable of issuing timely standards to 

protect workers. New workplace hazards and new scientific evidence about the 

health effects of exposure to a variety of toxic chemicals should result in the prompt 

issuance of new OSHA standards, but OSHA is finding it more difficult to respond 

to these threats to workers because the agency is now required to complete an ever 

increasing array of onerous, duplicative, and unreasonable regulatory analyses. 

These analyses require staff time and agency resources that would be better spent 

identifying new threats to workers’ health and enforcing existing safety standards. 

Protecting worker safety is the clear and overriding goal of the OSH Act. The primacy of this objective has been upheld by the U.S. Supreme Court. In 1981, the 

Court ruled that worker safety, not cost-benefit analysis, should determine whether 

or not a workplace safety standard is warranted. Yet OIRA insists that OSHA conduct time-consuming, expensive, and duplicative studies of the ‘‘costs to industry’’ 

beyond those required by the OSH Act before issuing rules to protect the health of 

American workers. These studies allow OIRA to judge OSHA standards against a 

cost-benefit test the Supreme Court has held is improper. This needs to stop. Congress needs to explicitly limit OIRA’s review powers. 

THE PROCESSES REQUIRED TO ISSUE RULES UNDER THE OSH ACT ARE THOROUGH

AND BALANCED

Under the OSH Act, before OSHA can issue a new rule or standard, it must: 

(1) comprehensively evaluate the nature and extent of the health and safety 

risks to workers; 

(2) determine whether those benefits are significant; 

(3) ensure that the necessary technology exists to comply with its rules; and 

(4) assess the economic impact of those rules on (a) industry profits, (b) consumer prices, and (c) intra-industry competition. 
41 

2Significant regulatory actions under Executive Order 12866 are those: (1) with an annual 

effect on the economy of $100 million or more; (2) inconsistent with a rule or action taken by 

another agency; (3) which would alter budgetary impact of government program or recipients 

of such; or (4) raise novel legal or policy issues. OIRA views all OSHA standards as ‘‘significant.’’ 

In short, OSHA cannot issue a rule unless the impact of its proposal has been 

thoroughly researched and shown to address significant risks in the workplace at 

a reasonable and affordable cost. 

Moreover, the OSHA rulemaking process permits members of the public greater 

opportunities to participate than other regulatory agencies that only operate under 

the Administrative Procedure Act (APA). 

After this careful process, if the health and safety standard is challenged in 

court—and most OSHA standards are challenged—OSHA’s analyses will be scrutinized more carefully by the courts than rules issued by other agencies. If a court 

rules that OSHA got the analysis wrong, the courts can stop the standard from 

going into effect. Thus, the bar for getting a rule implemented is higher at OSHA 

than for most other Federal regulatory agencies because the OSH Act and OSHA’s 

internal processes require it. 

In the early days of its existence, it took OSHA from 6 months to 2 years to develop major rules—even controversial ones that addressed asbestos and vinyl chloride hazards. The preambles for both of those standards were 5 to 10 pages, and 

the courts ruled OSHA’s analysis was adequate. What is more, these standards have 

been effective in protecting workers from harm. Now, with the extra-statutory analyses that have been added to this process, it can take over a decade to upgrade or 

issue a new health and safety standard. 

ANALYTIC REQUIREMENTS ADDED IN THE PAST 40 YEARS SLOW HEALTH AND SAFETY

PROTECTIONS UNNECESSARILY, DUPLICATE EFFORT, AND WASTE PUBLIC RESOURCES

In the years since its creation, OSHA’s charge to protect workers from harm has 

been undermined by Kafka-esque demands for additional reviews of existing rules 

mandated by new statutes and Executive orders. Many of these additional analytic 

requirements overlap with, duplicate, and/or conflict with the requirements of the 

OSH Act and serve no apparent purpose other than to delay and burden the rulemaking process. 

As new analytic requirements have been imposed on OSHA, the time needed to 

complete a rule has increased. GAO has calculated that, on average, it now takes 

almost 8 years to promulgate an OSHA standard. Cumulatively, these requirements 

have crippled OSHA’s ability to set new safety and health standards in a timely and 

responsive fashion. 

PROCESS REFORMS THAT SLOW HEALTH AND SAFETY STANDARDS

In 1980, the Paperwork Reduction Act (PRA) created a new office in the Office 

of Management and Budget (OMB), the Office of Information and Regulatory Affairs 

(OIRA), and tasked it with serving as a central clearinghouse for all government 

forms. The PRA was supposed to reduce the burden of government paperwork on 

citizens and non-governmental entities. Ironically, centralization and review by 

OIRA generated new paperwork and delays for government agencies as they waited 

for the office to review and approve their requests to collect the information necessary to support new standards. 

Shortly after OIRA’s creation, President Ronald Reagan issued an Executive order 

requiring rulemaking agencies to submit every regulation to OIRA for review and 

approval, and the office was tasked with determining whether the benefits of each 

rule outweighed its costs. Congress has never given OIRA this authority. Since the 

1980s, the process has slowed so much that several significant OSHA health standards were issued after courts or Congress ordered the agency to move forward. (For 

example, it took 6 years and a lawsuit before OSHA issued a formaldehyde standard.) 

In 1993, in Executive Order 12866, President Bill Clinton established the current 

regulatory review process, which encourages the use of cost-benefit analysis, risk assessment, and performance-based standards, and gives OIRA authority to coordinate 

rulemaking among agencies and ensure they align with the President’s priorities. 

Agencies must submit drafts of proposed and final ‘‘significant’’ 2 rules to OIRA. 

Under the presidency of George W. Bush, OIRA interfered even more aggressively 

with agency rulemaking activities. With Executive Order 13272, OIRA imposed rigorous guidelines for cost-benefit analyses, including peer review (adding more time 

to the process) and began commenting on agency drafts before they had even been 
42 

3 United Steelworkers of America v. Marshall, 647 F.2d 1189, 1266 (D.C. Cir. 1980). 4 Id. at 1265. 5 Id. 

6 Industrial Union Dep’t. v. American Petroleum Inst., 448 U.S. 607, 655 (1980); Nat’l Maritime 

Safety Ass’n. v. OSHA, 649 F.3d 743 (D.C. Cir. 2011). 7 United Steelworkers of America v. Marshall, 647 F.2d at 1266. 8 Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. at 656. 

submitted for review. The Obama administration has continued this regime of regulatory review. 

In addition to the requirements for regulatory analysis imposed by Executive 

Order 12866, between 1976 and 1984, Congress passed a series of laws designed to 

ensure regulations did not unduly burden small businesses. These laws added yet 

another set of analytic requirements to rulemaking. An Office of Advocacy was established within the Small Business Administration (SBA) in 1977 and was tasked 

with monitoring the impact of regulations on small business. Eventually, the Regulatory Flexibility Act (RFA) required all agencies to include an assessment of small 

business impacts as a key part of the rulemaking process and to use a ‘‘less burdensome alternative’’ if the rule would have significant impact on or affect a substantial 

number of small enterprises. By 1980, the law required agencies to solicit the views 

of small entities and the Office of Advocacy and to publish an initial and/or final 

analysis of the impact in the Federal Register or certify that the proposed rule would 

have no impact on small businesses. RFA requirements meant an agency would 

have to not only assess the benefits and costs of a new rule on the overall economy 

and regulated industries, but also assess its impact on small businesses. The burdens of analysis were growing, increasing the time and resources needed to propose 

new health and safety standards. 

THE OSH ACT REQUIRES AN EVALUATION OF THE BENEFITS AND COSTS OF PROPOSED

RULES

The original OSH Act requires OSHA to thoroughly examine the costs of the rules 

it imposes. Section 6(b)(5) of the OSH Act requires OSHA to determine, before it 

issues a final rule, that a standard is feasible, both technologically and economically. 

Before it can decide whether a standard is feasible, OSHA must make a ‘‘reasonable 

assessment of the likely range of costs and the likely effects of those costs’’ on each 

affected industry.3

OSHA standards protect hundreds of thousands of workers, in multiple industries, from harm. Obviously, the more workers and industries affected by a safety 

standard (for example, a sprinkler system for fire prevention), the higher the aggregate costs of a rule. Recognizing this, the courts have ruled that OSHA should ‘‘examine those [aggregate] costs in relation to the financial health of the industry and 

the likely effect of such costs on the unit consumer prices.’’ 4 To ensure that it does 

not place an undue burden on small business, OSHA must make sure that its standard does not ‘‘threaten[ ] the competitive stability of an industry,’’ increase inter- or 

intra-industry competition, or create ‘‘undue concentration.’’ 5

OIRA COST-BENEFIT ANALYSIS AND RISK ASSESSMENT REQUIREMENTS CONTRADICT THE

OSH ACT AND THE SUPREME COURT’S INTERPRETATION OF THE LAW

In addition to assessing the economic impact of its standard, OSHA must also 

complete a detailed scientific analysis of the nature and extent of the hazards posed 

to workers. When it can do so, OSHA quantifies this risk, but it is not required to 

do so by law.6 Sometimes the science is not yet conclusive about the health effects 

on workers; in such cases, the courts have ruled that ‘‘OSHA cannot let workers suffer while it awaits the Godot of scientific certainty.’’ 7 Instead, OSHA’s scientific 

judgments must be supported ‘‘by a body of reputable thought.’’ 8 In fact, after rigorous testing through the rulemaking process, OSHA’s scientific determinations 

have been overwhelmingly upheld by the courts. 

Significantly, the Supreme Court has weighed in on the use of cost-benefit analysis in OSHA standard setting. It held: 

Congress itself defined the basic relationship between costs and benefits, by 

placing the benefit of worker health above all other considerations save those 

making attainment of this benefit unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance 

than that struck by Congress would be inconsistent with the command set forth 

in section 6(b)(5). 
43 

9 American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 (1981) (emphasis added). 

Thus cost-benefit analysis is not required by the statute because feasibility analysis is. 9

OIRA’s demand that an OSHA rule meet a cost-benefit test is incompatible with 

the OSH Act. OIRA should be prohibited from evaluating and rejecting OSHA 

standards on the basis of a cost-benefit test. Any analysis by OIRA that uses a different standard than the one described above is improper. We believe that cost-benefit analyses simply cannot properly value some of the most important benefits of 

worker protections. Without adequate measures of benefits, and with the insistence 

on measuring aggregate and cumulative costs, cost-benefit analysis becomes a tool 

for blocking worker protections. Delaying worker protections by using an inherently 

flawed methodology is unjustifiable. 

OIRA should not be permitted to second guess OSHA’s scientific judgments or to 

demand scientific certainty before OSHA moves to protect workers. OIRA analysts 

are not qualified to assess the complex toxicological, epidemiological, and quantitative judgments OSHA makes when it evaluates workplace risks. 

THE OSHA RULEMAKING PROCESS IS OPEN AND PARTICIPATORY; OIRA REVIEWS ARE

SECRETIVE AND SUBJECT TO UNDUE INFLUENCE BY REGULATED ENTITIES

OSHA rulemaking provides greater opportunity for comment and participation 

than is required by most agencies that operate under the Administrative Procedure 

Act. The procedures mandated by the OSH Act, commonly referred to as ‘‘hybrid 

rulemaking’’ procedures, ensure that OSHA’s scientific, technical, and economic 

analyses are fully vetted. By contrast, OIRA reviews rules away from public scrutiny, in closed rooms with representatives of regulated industries. These industries 

typically argue against new rules. 

OSHA usually begins the rulemaking process by publishing a request for information and/or advanced notice of proposed rulemaking—in other words, public input 

is sought early in the rule development process. For major rules, numerous stakeholder meetings are held in various locations around the country. If an OSHA 

standard will impact small business, OSHA is one of two agencies that must establish a special panel to get early input from small entities, as required by the Small 

Business Regulatory Enforcement Fairness Act (SBREFA). Once a proposed rule is 

issued, interested parties can submit written comments and evidence. 

If any party requests a hearing during rulemaking—and a hearing is almost always requested—OSHA must hold one. An administrative law judge presides at the 

hearing. During the public hearing, interested parties may present testimony and 

any participant can cross-examine all witnesses. OSHA hearings are often held in 

several locations across the country and can go on for several weeks. Workers, public health officials, scientists, small business owners, union representatives, and 

business groups actively participate in these hearings. At the end of the hearing, 

OSHA provides the public with an opportunity to file post-hearing comments and 

post-hearing arguments. 

All of the evidence on which OSHA’s proposed rule is based, pre- and post-hearing 

comments, and hearing transcripts are included in a public docket. OSHA must base 

its final decision on information in this public rulemaking record. OSHA’s explanation for its final rule must be supported by substantial evidence in the record. 

By contrast, the OIRA review process is neither transparent nor open. Most meetings on proposed rules at OIRA are with industry opponents of regulation, not injured workers. Unlike the broad participation in OSHA rulemaking, only a select 

few get to meet with OIRA. While OIRA is supposed to make the list of individuals 

who attend such meetings public, it does not disclose what is discussed. While 

OSHA must base its regulatory decisions on the evidence it gathers and explain its 

regulatory choices, OIRA is not required to do so. Typically, neither OIRA nor the 

regulatory agencies disclose the changes in agency rules demanded by OIRA. 

We believe the narrow, secretive OIRA review process undermines the public participation guarantees in the OSH Act. If OIRA is going to have a regulatory review 

role—and we believe that role should be substantially more limited than it currently 

is—it should be limited to reviewing OSHA’s record and ensuring that the agency 

has reasonably carried out its statutory duties. OIRA should also have to publish 

the rule changes it demands with a written justification for why it is asking for 

those changes. 
44 

10OMB Watch, ‘‘Worker Safety Rule Under Review at OIRA for Over a Year: A Tale of Rulemaking Delay,’’ Feb. 22, 2012, available at http://www.ombwatch.org/node/11984. 11 U.S. Gen. Accounting Office, Regulatory Burden: Measurement Challenges and Concerns 

Raised by Selected Companies, GAO–GDD/97–2, Nov. 1996. 12 U.S. Office of Technology Assessment, Gauging Control Technology and Regulatory Impacts 

in Occupational Safety and Health: An Appraisal of OSHA’s Analytical Approach, OTA–ENV– 

635, Sept. 1995. 13 Isaac Shapiro & John Irons, Regulation, Employment and the Economy: Fears of Job Loss 

are Overblown, Economic Policy Institute (2011). 

OIRA DELAYS SHOULD NOT BE ALLOWED TO BURY WORKER PROTECTIONS

Executive Order 12866 mandates that OIRA complete its review of any proposed 

rule within 90 days (with a possible extension of another 30 days). OIRA staff have 

not been adhering to these deadlines. 

The proposed rule limiting the amount of silica allowed in factories and other 

worksites is an example of the human costs of delay. In the decades this rule has 

been under consideration, thousands of workers have died and thousands of others 

have contracted a debilitating lung disease. According to Centers for Disease Control statistics, as many as 1.7 million workers are exposed to dangerous levels of 

silica in the workplace each year and researchers estimate that 3,600 to 7,300 of 

them develop silicosis. Approximately 200 workers die of silicosis each year.10 Their 

illnesses were preventable. 

In 2003, OSHA completed a preliminary regulatory impact analysis of a draft proposed rule on silica and convened small business review panels. But, under the 

Bush administration few worker protections moved forward and the silica proposal 

was scrapped. Early in the Obama administration, OSHA revived its effort to reduce 

worker exposure to silica. It revised its regulatory impact analysis and sought peer 

review of its risk assessment. It drafted a proposed rule and sent it to OIRA for 

review in February 2011. OIRA is still reviewing a proposed rule, 14 months later 

(as of today, 430 days, or 310 days past the deadline). OIRA has offered no explanation for this delay. By delaying publication of this proposal, OIRA has made it 

impossible to proceed to public hearings. Regulatory review should not become a 

graveyard for burying rules. 

THE BENEFITS OF HEALTH AND SAFETY STANDARDS

Given the enormous investment of agency resources required to issue a standard, 

OSHA does not initiate the process without strong evidence of health risks or dangerous conditions that need to be rectified. Too often in the heated business rhetoric 

of today, this basic fact is lost: workplace health and safety regulations save 

the lives, lungs, limbs, and health of American workers. 

Unfortunately, while the costs of lost wages, health care, and worker compensation due to exposure to workplace threats can be estimated, it is difficult to put a 

dollar value on the hardship and suffering of a family when a father dies on the 

job or a mother develops a chronic disease. Because of this, the benefits of health 

and safety regulations tend to be underestimated. 

Meanwhile, independent analyses of the economic impact of various standards 

demonstrate that industry estimates of the costs of complying with new health and 

safety rules are often exaggerated. The costs of compliance rarely turn out to be as 

high as industry claims. In fact, the General Accounting Office (now the Government Accountability Office) conducted a retrospective review of the costs of Federal 

regulations on 15 representative companies. It concluded that industry representatives have no reliable method of estimating the incremental cost of regulation, and 

Federal agencies have no reliable method of verifying industry’s cost estimates.11

Costs of compliance studies also fail to take into account the positive role that 

new standards can play in encouraging innovation and the use of new technologies 

by firms and industries. A 1995 review of major OSHA rules by the now defunct 

Office of Technology Assessment found that OSHA almost always overestimated the 

costs of rules because advances in technology were not factored into the analysis: 

‘‘the actual compliance response that was observed included advanced or innovative 

control measures that had not been emphasized in the rulemaking analyses, and the 

actual cost burden proved to be considerably less than what OSHA estimated.’’ 12

By way of example, OSHA’s cotton dust and vinyl chloride standards were not only 

less costly than predicted, but led to technological innovations that made the covered industries more productive. 

A comprehensive review of the relationship between industry regulations and job 

growth within those industries conducted by the Economic Policy Institute found 

that most regulations result in modest job growth.13 Even researchers at the 
45 

14Letter from Richard Williams, Ph.D., Dir. of Policy Research, Mercatus Ctr, to Darrell Issa, 

Chairman, H. Comm. on Oversight & Gov’t Reform (Jan. 5, 2011) (on file with author); Testimony of Jerry Ellig, Regulatory Analysis: Understanding Regulation’s Effects, before the H. 

Comm. on Oversight & Gov’t Reform (Feb. 10, 2011). 15 See Mark Seidenfeld, A Table of Requirements for Federal Administrative Rulemaking, 27 

Fla. St. L. Rev. 533 (2000), available at http://www.law.fsu.edu/journal/lawreview/downloads/ 

272/Seid.pdf. 16Testimony of Sidney A. Shapiro, University Distinguished Chair of Law, Wake Forest 

School of Law, at Hearing on H.R. 3010, The Regulatory Accountability Act of 2011, before the 

H. Comm. on the Judiciary, 112th Cong. 4 (Oct. 25, 2011) at 6. 

Mercatus Center, a conservative regulatory policy center, acknowledged in written 

comments to House Oversight and Government Reform Committee Chair Darrell 

Issa, and in testimony to that committee, that there is little evidence that at a 

macro level, regulations have caused massive job loss in the United States.14 There 

is no evidence that occupational safety and health regulations issued by OSHA have 

cost America jobs. 

PENDING REGULATORY REFORM ‘‘SOLUTIONS’’ WOULD EXACERBATE DELAYS AND UNDUE

INFLUENCE BY REGULATED INDUSTRIES

Unfortunately, recent regulatory reform proposals would do nothing to ensure 

workers are protected from hazards; instead, they would slow or stop the rulemaking process. Four separate regulatory reform proposals are pending in the Senate: the Regulatory Accountability Act (S. 1606), the Regulations from the Executive 

in Need of Scrutiny (REINS) Act (S. 299), the Regulatory Flexibility Improvements 

Act (S. 1938), and the Regulatory Time-Out Act (S. 1538). These bills, and others like 

them, would change the regulatory process in different ways but would have the 

same ultimate result: more delay, fewer standards to protect workers, and more illness and injury among exposed workers. 

Regulatory Accountability Act (S. 1606) 

The Regulatory Accountability Act (RAA) is a breathtakingly broad bill that would 

fundamentally rewrite the Administrative Procedure Act (APA). Currently, there are 

more than 110 separate procedural requirements in the rulemaking process 15; the 

RAA would add more than 60 new procedural and analytical steps. Commentators 

have estimated that the RAA would add at least 21 to 39 months to the rulemaking 

process for the most important rules, meaning that the average OSHA rulemaking would take more than 12 years to complete—potentially spanning four 

different presidential administrations.16

OSHA rulemaking already includes a process that gives participants many opportunities to present their views and to challenge those with opposing views. It does 

so in an open process. The RAA would supplant these proven procedures with a 

more adversarial process. It would mandate cost-benefit analysis, overturning the 

Supreme Court’s ruling in the Cotton Dust case. It would require that OSHA always 

use the lowest cost rule, leaving workers with less protection, probably nothing more 

than a dust mask to protect themselves from known carcinogens. Further, it authorizes the courts to disrupt the rulemaking process before it has been completed. Each 

of these changes would complicate rather than simplify rulemaking, and delay worker protections. 

Regulations From the Executive in Need of Scrutiny (S. 299) 

The Regulations from the Executive in Need of Scrutiny, or REINS Act, would reinsert Congress into the rulemaking process by requiring that both houses of Congress approve each major rule, with no alterations, within a 70-day window. If either chamber fails to approve the rule, it will not take effect and cannot be reconsidered until the next congressional session. Given the polarized character of Congress 

today, this law is a recipe for a freeze on new rules. 

Such an affirmative approval requirement would turn the current process upside 

down. Congress already has substantial power to influence agency rulemaking: 

through its oversight power; through the appropriations process; and under the Congressional Review Act of 1996. There is no reason to require an affirmative vote of 

Congress before a rule takes effect. 

The REINS Act would waste agency resources. For example, it took OSHA more 

than 10 years to publish a standard regulating the operation of cranes and derricks 

at construction sites, even though both industry and unions agreed a standard was 

needed. If the REINS Act became law, inaction by Congress would block the rule 

from going into effect, wasting the significant resources OSHA had invested in developing the rule. 
46 

17Occupational Safety and Health Administration, ‘‘Hazardous and Toxic Substances,’’ http:// 

www.osha.gov/SLTC/hazardoustoxicsubstances/index.html (last visited Apr. 16, 2012). 

Regulatory Flexibility Improvements Act (S. 1938) 

The Regulatory Flexibility Improvements Act would expand range of rules covered 

by the Regulatory Flexibility Act to include those that have a reasonably foreseeable 

indirect effect on small businesses; establish more onerous requirements for the initial and final regulatory flexibility analyses, including an estimate of cumulative impacts on small businesses; allow the Chief Counsel for Advocacy of the Small Business Administration to issue rules to govern Federal agencies’ rulemaking procedures; and establish a more onerous requirement for the notice that Federal agencies must give the Small Business Administration prior to publishing a proposed 

rule. 

OSHA is already required to analyze the impacts of its standards on small business, consult with small business owners and the SBA about those impacts, and 

make changes to its rules where appropriate to minimize those impacts. Additional 

analysis of small business impact duplicates the requirements in existing law. 

Workers in small businesses face the same hazards as those in larger business. This 

bill would do little to protect workers in small businesses or to help their employers 

reduce such hazards. Moreover, it concentrates enormous power in the hands of one 

appointed official in the Office of Advocacy, while the OSHA hearing process gathers 

information from a host of small business owners from all over the country. 

Regulatory Time-Out Act (S. 1538) 

The Regulatory Time-Out Act, which would prohibit agencies from issuing most 

significant regulations for a year, is one of several bills which would prohibit new 

rules. These laws would simply keep Federal agencies from carrying out their legally defined missions of protecting the health and safety of the American people. 

When Congress passed the OSH Act in 1970, it promised workers that OSHA 

would protect them from workplace hazards. Too many chemicals and other hazards 

remain unregulated. The Environmental Protection Agency has listed more than 

62,000 chemicals in its Toxic Substance Control Act Chemical Substance Inventory, 

but OSHA regulates worker exposures to only 400 of them.17 Too many of OSHA’s 

existing standards are based on outdated science. They need to be upgraded to reflect current scientific and medical research. The current rulemaking process makes 

this impossible. 

STREAMLINING IMPROVEMENTS IN HEALTH AND SAFETY PROTECTIONS

The process for issuing workplace health and safety standards is broken and 

needs to be fixed. We need to update workplace health and safety standards, not 

bury them. None of the pending regulatory reform proposals would fix the OSHA 

standard setting process. Rather, each of these proposals are designed to further 

delay or shut down the regulatory process. Passage of these bills would hurt workers and make them less safe. 

Instead of following this low road, Congress should streamline the rulemaking 

process so that standards can move forward in a reasonable amount of time, after 

thoughtful scrutiny of the need for new protections and their costs, without unnecessary and duplicative reviews and analysis. Congress should limit the role of OIRA 

and non-technical experts in standard setting. Only with such reforms will workers 

gain the protections Congress promised them when it passed the OSH Act more 

than 40 years ago. 

Appendix A: Table of Relevant Statutes and Executive Orders 

Administrative Procedure Act (5 U.S.C. § 551 et seq.) 

Passed in 1946 

• The Administrative Procedure Act is the bedrock of the regulatory process. It 

offers baseline procedures for both ‘‘formal’’ (on the record) and ‘‘informal’’ (noticeand-comment) rulemaking. 

Paperwork Reduction Act (44 U.S.C. §§ 3501–3520) 

Passed in 1980, significantly amended in 1986 and 1995 

• The Paperwork Reduction Act requires that OSHA, and other agencies, obtain 

approval from the Office of Information and Regulatory Affairs (OIRA) for any survey or ‘‘collection of information’’ designed to help the agency determine the eco-
47 

nomic impact or practical implication of proposed rules. (OIRA was created by the 

Paperwork Reduction Act.) 

Regulatory Flexibility Act (5 U.S.C. §§ 601–612) 

Passed in 1980 

• The Regulatory Flexibility Act requires OSHA, and other agencies, to specifically analyze the effect of its regulations on small entities. OSHA must publish the 

reason it is considering regulating, a description of the small entities which will be 

affected, a description of the proposed rule’s compliance requirements, and a list of 

alternative actions. 

Executive Order 12291 

Signed in 1981 

• President Reagan’s Executive order was the first to require rulemaking agencies to submit all regulations to the then-newly created OIRA. OIRA was tasked 

with reviewing and approving rules to ensure they met a cost-benefit test. (This Executive order has been supplanted by later Executive orders on regulatory review.) 

Executive Order 12866 

Signed in 1993 

• President Clinton’s Executive order restricted OIRA to reviewing only ‘‘economically significant’’ (those with a $100 million economic impact) regulatory actions, as well as those which created conflict with another agency’s rules; altered 

the budgetary impact of entitlements, grants, user fees, or loan programs; or raised 

novel legal or policy issues. This decreased the number of rules OIRA reviewed each 

year from between 2,000 and 3,000 to between 500 and 700. Executive Order 12866 

set deadlines for OIRA reviews and established standards for agency and OIRA 

transparency. 

Unfunded Mandates Reform Act (2 U.S.C. §§ 1532–1538) 

Passed in 1995 

• The Unfunded Mandates Reform Act requires OSHA, and other agencies, to 

analyze and minimize the costs a proposed regulation would impose on private parties and State and local governments. OSHA, and others, must also identify alternative actions and justify the reasons for selecting its preferred rule. 

Small Business Regulatory Enforcement Fairness Act (110 Stat. 857, 5 

U.S.C. § 601 note) 

Passed in 1996 

• The Small Business Regulatory Enforcement Fairness Act (SBREFA) permits 

judicial review of OSHA’s, and certain other agencies’, compliance with the Regulatory Flexibility Act. In addition, OSHA must now convene an ‘‘advocacy review 

panel’’ of representatives of small entities before it can publish a regulatory flexibility act analysis. SBREFA also requires OSHA, and certain other agencies, to assist small entities with understanding and complying with new and existing regulations, and requires that the agency waive some fines for noncompliant small entities. 

The CHAIRMAN. Thank you, Ms. Rabinowitz. 

And now Mr. Sarvadi. Thank you very much. Please proceed. 

STATEMENT OF DAVID G. SARVADI, PARTNER, KELLER AND 

HECKMAN LLP, WASHINGTON, DC 

Mr. SARVADI. Thank you, Mr. Chairman, for the invitation, and 

Ranking Member Enzi for the offer to participate. I’m here representing the Chamber of Commerce, which is the lead organization in the Coalition for Workplace Safety. You have my background and my written statement. 

I want to just mention one experience that I had early on in my 

career. I was asked in the late 1970s to work with a small company 

that was manufacturing materials that were used to make dental 

molds. And the experience there was that they had a young person 

working in the facility who came down with acute silicosis, which 

is a very devastating disease that occurs very, very rapidly within 
48 

months of the initial exposure, and it comes from extraordinarily 

high exposure levels. 

And the point I wanted to make about this is that the people who 

were working in that facility, including the management, didn’t 

know about the effects of the material and were interested and demanded ways to correct the problem so they wouldn’t be faced with 

it in the future. And so they hired me to come in as an industrial 

hygienist and look at their facility and help them make the improvements. 

I would suggest that in the current situation with regard to 

standard-setting that our problem is more about making sure that 

the agency sets priorities and sticks to its list. My experience over 

the last 35 years in dealing with OSHA regulations—and my experience goes back to the lead standard, the vinyl chloride standard, 

and the early benzene standard in the 1970s—in submitting the 

data that Ms. Rabinowitz is requesting, we did submit the data, 

and the industry routinely submits data to help OSHA make those 

assessments. 

The problem with the current system is they don’t do that until 

after they issue what’s called the risk assessment, the draft risk assessment. And that’s the first time people really get a chance to sit 

down and talk about what data OSHA is relying on and how the 

data demonstrate either a significant risk or a risk for a particular 

industry. 

And I would strongly recommend—and I’ve been pushing for this 

for a long time to, unfortunately, deaf ears—to have this process 

opened up to the public. OSHA needs to talk to people before they 

sit down and start writing the rule. They need to spend time with 

us, get the industry experts, the people that deal with these things 

day in and day out, to understand the vagaries of the application 

of the principles of safety that they have to face every day. 

The second major point I want to make—and particularly in regard to silicosis—is OSHA has all the tools right now to eliminate 

the problem. The general duty clause requires that OSHA show 

that there’s a hazard. I don’t think anybody would disagree that excess exposure to silica dust is a hazard. They have to show that 

there are feasible means of abatement—and we heard Mr. Ward 

describe techniques that can be used to eliminate exposure to the 

dust—and OSHA has to then demonstrate that it’s recognized in 

the industry. 

I don’t think there’s anybody in the construction industry that 

doesn’t know that silica can be a significant problem and that it 

can be dealt with. So with that information in hand, OSHA is fully 

empowered, using the general duty clause, to take enforcement action against any employer who is not doing those things. 

And I know that in the Coalition for Workplace Safety and in the 

companies that I represent, they want OSHA to take that kind of 

step and that kind of action because it creates a level playing field. 

The companies that advance safety and health and have comprehensive programs want regulations that clearly define what 

should be done, that create an opportunity for everybody to compete on a level playing field, and to make sure that the regulations 

that are adopted make sense in the real world. 
49 

I want to make one other point about the discussions with OMB. 

Ms. Rabinowitz suggested that these meetings are conducted in private. To my knowledge, they are conducted in a public way, that 

is, there is a public announcement about them. The summaries 

from the meetings, the information that’s provided, can be made 

available to the public. 

But it’s an important function, because OMB does have the responsibility to make sure that OSHA’s single-minded focus on 

workplace safety doesn’t overrule important but competing interests. It’s sort of a reality check for the agency, and it’s an important function. 

The only way the agency can do that, that is, OIRA can do that 

is if they take into account not only what OSHA is saying, but if 

they hear from people who have to deal with these things on a dayto-day basis. I’ve been in these meetings. The last meeting I was 

involved in—there were eight OSHA staff members there who 

heard what we had to say. I think it’s an important function that 

OIRA produces or makes—an important function they create in 

order to make sure that the regulations make sense and that they 

fit within an overall regulatory agenda. 

Nevertheless, it’s clear that OSHA has a job of establishing 

standards that have a high degree of protection for employees and 

that require employers to provide a safe workplace. And the last 

point I’d want to make about that is that employers are the ones 

and employees are the ones who have to implement these standards. OSHA can write them, but if we don’t have people who voluntarily and enthusiastically implement those standards, they won’t 

be nearly as effective. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Sarvadi follows:] 

PREPARED STATEMENT OF DAVID G. SARVADI, ESQ. 

The U.S. Chamber of Commerce is the world’s largest business federation, representing the interests of more than 3 million businesses of all sizes, sectors, and 

regions, as well as State and local chambers and industry associations. More than 

96 percent of the Chamber’s members are small businesses with 100 or fewer employees, 70 percent of which have 10 or fewer employees. Yet, virtually all of the 

Nation’s largest companies are also active members. We are particularly cognizant 

of the problems of smaller businesses, as well as issues facing the business community at large. 

Besides representing a cross-section of the American business community in terms 

of number of employees, the Chamber represents a wide management spectrum by 

type of business and location. Each major classification of American business—manufacturing, retailing, services, construction, wholesaling, and finance—is represented. Also, the Chamber has substantial membership in all 50 States. 

The Chamber’s international reach is substantial as well. It believes that global 

interdependence provides an opportunity, not a threat. In addition to the U.S. 

Chamber of Commerce’s 115 American Chambers of Commerce abroad, an increasing number of members are engaged in the export and import of both goods and 

services and have ongoing investment activities. The Chamber favors strengthened 

international competitiveness and opposes artificial U.S. and foreign barriers to 

international business. 

Positions on national issues are developed by a cross-section of Chamber members 

serving on committees, subcommittees, and task forces. More than 1,000 business 

people participate in this process. 

Chairman Harkin, Ranking Member Enzi, and members of the committee, thank 

you for the opportunity to testify today. My name is David Sarvadi. As an attorney, 

I assist employers in creating and administering occupational safety and health pro-
50 

grams, complying with Occupational Safety and Health Administration regulations 

and standards, and in resolving disputes with OSHA as to the interpretation and 

application of those rules and standards in enforcement cases. Prior to practicing 

law, I managed safety and health programs in several companies, including a Fortune 500 company early in my career, and in a small construction company later. 

I am testifying today on behalf of the U.S. Chamber of Commerce and participate 

on its Labor Relations Committee and the OSHA Subcommittee. 

I believe I was asked to testify today, because in addition to my experience in the 

field generally, I have been deeply involved in OSHA standards development since 

1974. In the course of that time I have participated in OSHA’s rulemakings on more 

than two dozen standards. On behalf of the companies I worked for and the trade 

associations to which they belonged, I wrote comments or participated in the development for such standards as the original lead standard, the vinyl chloride and benzene standards, and the 1983 Hazard Communication Standard (HCS) as well as 

its 1994 Amendment. In the benzene and HCS cases, the comments prepared by the 

trade association resulted in the adoption of a practical provision in the final rule. 

I also had a significant role in shaping the employer community’s response to the 

ergonomics standard as it was being developed during the Clinton administration. 

Prior to practicing law, I was an industrial hygienist in private industry and in 

consulting. I was certified in the practice from 1978 until 2010. Much of what I did 

in that practice is similar to what I do today. 

I have practiced in the area of workplace safety and health law for more than 20 

years at Keller and Heckman LLP. As part of my practice, I taught week-long seminars on all of OSHA’s general industry standards all around the country, covering 

essentially the same material included in OSHA’s 30-hour training course. Over the 

years, I estimate that more than 1,000 people participated in those classes. The 

attendees have been mostly the people who had to translate OSHA standards into 

actions, practices, and procedures in their companies, ranging in size from employers with fewer than 10 employees to those with hundreds of thousands of employees. 

THE REQUIREMENTS GOVERNING OSHA’S STANDARD SETTING PROCESS WERE

ESTABLISHED BY CONGRESS AND REFLECT IMPORTANT PUBLIC POLICY OBJECTIVES

Federal Government rulemaking and standard setting has long reflected a tension 

between having uniform standards to curb undesirable behavior and retaining the 

freedom and flexibility associated with limited government intrusion into business 

decisions. This tension drove the compromise that underlies the passage of the Administrative Procedure Act in 1947 that created a series of procedural checks in response to the largest perceived problem: unlimited administrative discretion. According to the Attorney General’s Manual on the Administrative Procedure Act 

(1947), the purposes of the APA are (1) to require agencies to keep the public 

informed of their organization, procedures and rules; (2) to provide for public participation in the rulemaking process; (3) to establish uniform standards for the conduct 

of formal rulemaking and adjudication; and (4) to define the scope of judicial review. 

An important part of the public participation process is to help educate the government about the subject matter and to help craft regulations that achieve public policy goals while limiting impediments to commerce. 

OSHA’s standard setting process, as defined in its statute, is intended to achieve 

each of those aims but with additional requirements that reflect the impact of 

OSHA’s standards which can take significant time to complete. We are here today 

to examine whether this has negative workplace safety ramifications and whether 

OSHA’s rulemaking process should and can be improved. 

To establish a safety standard, OSHA must establish, based on the evidence in 

the official rulemaking record, that current conditions pose a significant risk of material harm to workers, that the proposed rule would significantly reduce that risk, 

that the proposed rule is technically and economically feasible for each industrial 

sector and activity regulated by the rule and, at least in theory, that the proposed 

rule provides the most cost-effective approach for addressing that hazard. We believe those are the appropriate criteria for an OSHA safety standard. For health 

standards dealing solely with toxic materials or harmful physical agents, the OSH 

Act takes a more conservative approach. An OSHA health standard must, to the extent feasible and within reasonable bounds, reduce workplace exposures to a level 

below that which presents a significant risk of material impairment of health or 

functional capacity to employees. 

As the U.S. Supreme Court recognized in the Benzene case, it is not practical, 

much less feasible to achieve zero risk in any aspect of life. The scope of the OSH 

Act standards must necessarily be limited to addressing significant risks of material 

harm. There is no justification for expending resources on a rulemaking or compli-
51 

ance efforts in connection with a rule that does not offer a meaningful improvement 

in workplace safety. 

Furthermore, in requiring OSHA to demonstrate that a rule was technically and 

economically feasible, Congress properly determined that an agency should not have 

the authority to effectively regulate an entire industrial sector or activity out of existence. As interpreted by the courts, OSHA’s obligation is to demonstrate either 

that it has satisfied these criteria for each industrial segment or activity that would 

be covered by the standard, or that there is no material difference between the sectors or activities for purposes of applying the rule. Even so, Congress determined 

that the protections provided by the APA and the OSH Act were inadequate to provide small business with a meaningful opportunity to participate in OSHA 

rulemakings and, for that reason, adopted the Small Business Regulatory Enforcement and Fairness Act which requires OSHA to conduct small business review panels when a proposed regulation is estimated to have a significant economic impact 

on a substantial number of small entities. 

The GAO report which is at the heart of this hearing was requested based on an 

underlying premise that OSHA has not been able to issue enough regulations to protect America’s workers. And yet, we see that workplace fatality, injury, and illness 

rates have been declining steadily during the entire history of OSHA, even the recent period which is the focus of the report and is characterized as one with few 

new standards. 

The Chamber recognizes the need for well developed, science and data driven 

safety standards. Such standards can be useful to employers in providing information and clarity about hazards and the proper approaches to controlling them. However, standards should not be issued merely for the sake of putting more rules on 

the books, where the hazards they seek to control are not well understood or the 

controls are unproven, or to establish new ways to control the workplace and issue 

more citations against employers. 

A guiding principle to bear in mind is that improving standard setting does not 

require OSHA to take short cuts. The steps required in the standard setting process 

are vital to achieving important public policy objectives. These steps must not be 

curtailed as to do so would make OSHA’s standards less effective and more impractical by reducing valuable information from the public. Rather, the process must be 

streamlined so that OSHA can accomplish each step in the standard setting process 

more efficiently. 

RECOMMENDATIONS

We believe that OSHA can improve its performance in setting standards. While 

the task is not easy, there are several things OSHA can do to affirmatively improve 

the process. 

• Ensure That OSHA Standards Writers Have Practical, Hands-On Experience 

With The Hazards To Be Addressed and Involve Interested Parties More Substantially In The Standard Development Process Earlier. 

We all recognize that funding constraints limit OSHA’s ability to develop information on its own. The process that is contemplated by OSHA standard setting provides an opportunity for the agency to educate itself fully on the matter about which 

it proposes to regulate. One way to do this is to maintain a continuous dialogue 

among trade associations, who are often involved as standards setting organizations, 

other professional associations, and members of industry. The Chamber has always 

been open to a productive dialogue about occupational safety and health issues. It 

has been at the forefront of debates over numerous standards, reflecting our members’ concerns about the practical problems they face in managing safety and health 

programs and improving workplace safety practices. The Chamber now co-chairs, 

the Coalition for Workplace Safety, that has been active in representing a broad 

array of employer concerns on OSHA regulatory and legislative matters. 

Too often there is a perception that OSHA is determined to pursue a new standard regardless of how it will impact employers or whether it is justified. When employers raise concerns, these are dismissed as not being consistent with protecting 

employees, instead of constructive input into the process. In reality, both OSHA and 

the employers who are subject to its regulations are interested in improving workplace safety. OSHA would do well to view comments in this light and take these 

comments seriously rather than just looking for ways to dispose of them. 

OSHA has previously recognized the need for its compliance personnel to be 

knowledgeable about the industrial operations they are inspecting and the application of OSHA standards to those operations. We believe the same considerations are 

even more significant when one person or a small group of people are writing a 
52 

standard that will apply to 60 million workers at 5 to 8 million worksites across 

the United States. 

One way to foster a more cooperative relationship would be for OSHA staff to participate in the professional societies and associations where people who actually 

have to implement OSHA’s directives meet to discuss common problems. In all my 

years in the Washington area, I saw fewer than five OSHA headquarters professionals at local industrial hygiene or professional safety meetings. The result is a 

professional isolation that prevents the staff from learning about the practical problems, and more importantly the successes of the regulatory program. 

To facilitate that, I believe OSHA staff, including specifically those who are 

tasked with writing standards, should be expected as a matter of professional development to participate in such groups. The government should fund that participation, as it is critical to effective public policy implementation. 

Similarly, OSHA should not be conducting any part of the standards development 

process in secret. The procedure now is for the agency to issue requests for information and advance notices of rulemaking to collect information when the agency 

thinks there is a need for these extra steps. Then it works with contractors to develop the standard, risk assessments, and economic and technical feasibility analyses behind closed doors. The first time the public sees the results of these efforts 

is after the decisions have begun to set in concrete, generally at the panels conducted under the Small Business Regulatory Enforcement and Fairness Act 

(SBREFA) if OSHA decides it must conduct such a review and does not have a 

colorable argument for avoiding it. Even though this is before a regulation gets proposed, that is far too late. And too often, OSHA finds a reason to not conduct these 

reviews which means the first time anyone can see what they have in mind is the 

publication of the actual proposed rule and the supporting materials. Again, if 

OSHA regarded employer input as part of helping it develop a sound path forward, 

rather than objections to be overcome, the pre-proposal period could benefit OSHA’s 

ultimate approach. OSHA should be encouraged, even required to have regular and 

frequent contact, both formally and informally, with interested parties. OSHA 

should request the meetings and not wait until interested parties do. And the peer 

review panels should conduct all their business in the open, similar to the process 

that EPA follows with reviews of their preliminary risk assessments. 

Failure to open up the process and to get OSHA staff engaged on an individual 

level can produce anachronistic results and employer resentment of OSHA as the 

industry is subjected to standards with little relevance to the ‘‘real world.’’ 

• Do Not Make ‘‘Perfect’’ The Enemy Of The ‘‘Good.’’ 

In my view, OSHA has not been willing to do a good job, and come back later 

should it decide more needs to be done or after experience has shown the need for 

refinements. For that reason, standard development at OSHA takes decades. Often, 

the final standard is delayed because OSHA does not want to be accused—unfairly 

in my view—of overlooking something. But these programs and processes depend on 

people and people are imperfect. OSHA needs to be able to leave out the issues that 

take more time to resolve. Admitting more information is needed is not a failure, 

but waiting until all possible questions have been resolved can be a failure if it impedes moving forward with something that would be more practical and largely beneficial. 

An excellent example of this problem is OSHA’s confined spaces standard that 

was introduced in 1975. The final rule was issued in 1993—18 years later. Most of 

the provisions of that standard were in common practice in many industries and by 

many employers. OSHA excluded the construction industry from the scope of that 

rule, was sued by organized labor for that approach and agreed to quickly proceed 

with a rule for construction. That rule is pending and may be issued this year. Part 

of the reason it took so long to complete the general industry rule was OSHA’s excessive preoccupation with the fine details of an entry. Almost 20 years later, the 

central problems remain the same—the failure to recognize a space to be a hazardous confined space, the failure to understand the potential hazards of the space, 

and the human tendency to rapidly respond when someone has collapsed in a space 

under the assumption that the person had a heart attack or fainted rather than recognizing the person was overcome by a hazardous atmosphere that will have the 

same effect on the rescuer. 

Part of the reason it took so long to complete was in the details: when does an 

‘‘entry’’ occur, for example. Most people in the industries that had such spaces knew 

when those procedures were required. Similarly, the Lockout/Tagout Standard took 

12 years (1977–89). There are many other examples. 

A more recent example is the revisions to the Hazard Communication Standard 

(HCS) to align it with the Globally Harmonized System of Classification and Label-
53 

ing of Chemicals (GHS). Initially contemplated in 2002, OSHA finally issued an Advance Notice of Proposed Rulemaking regarding GHS on September 12, 2006. On 

September 30, 2009, 3 years later, a proposed rule was issued. OSHA then held public hearings for 6 months and the record was closed on June 1, 2010. 

Unfortunately, the proposed rule went beyond the concept that had been envisioned and supported by both political parties and employers. It included two provisions that were controversial and likely made the rule harder to finalize: unclassified hazards (now call Hazards Not Otherwise Classified) and coverage of combustible dust. Combustible dust is a complicated, multi-factorial hazard which has not 

been previously regulated by OSHA’s HCS. As there is no OSHA developed definition for combustible dust, OSHA was unable to provide a definition of combustible 

dust thereby leaving the regulation unclear and unexplained. OSHA’s need to shoehorn combustible dust into the HCS regulation likely delayed the promulgation of 

the HCS regulation unnecessarily by almost 2 years, and more importantly, has created employer anxiety and uncertainty. I believe that some in OSHA management 

saw the GHS proposal as a shortcut way to incorporate a combustible dust standard. Unfortunately, the complex issues of how to define when the hazard exists and 

what should be done to mitigate a hazard that has varying degrees of severity— 

requiring less activity when risks are low—have now been left to the enforcement 

process. That is a recipe for litigation. 

• Increase Reliance On Established Science, And Real World Observations, Rather 

Than Seeking Out That Information Which Confirms The Agency’s Preconceived Hypothesis. 

My experience has been that OSHA tends to rely on information that supports 

a preconceived idea, seeking that which will bolster its position on a given topic. 

In many of the risk assessments, OSHA credits studies that support its conclusions, 

while discounting studies that do not. The hexavalent chromium standard is an example. The discussion of the risk assessment contains long, technical commentary 

and summaries of studies, but in the end, OSHA could only conclude that even at 

the lowest level of proposed exposure limits, some risk remained. We all balance 

risks and rewards in our lives, and know from long experience that low probability 

risks deserve less attention and mitigation than those of more immediate concern. 

OSHA pays lip service to the Supreme Court’s decision in the Benzene case about 

only regulating when it can show significant risk, but in reality the risk assessment 

OSHA uses, like many agencies, imposes assumptions that magnify the risk. That 

leads to conclusions such as in the chromium standard, where even at levels of exposure that are difficult to measure, employers are still required to mitigate the risk. 

Another example is the silica standard. Industry made it clear that it was willing 

to accept a reasonable comprehensive silica standard based on the existing permissible exposure limit (PEL), 20 years ago. Instead, based on highly conservative modeling, OSHA insisted that it needed to reduce the PEL. In 2003 OSHA conducted 

a SBREFA review of its draft silica standard. At that time, industry pointed out 

that, based on NIOSH data, the incidence of silicosis had decreased dramatically, 

that the cost of compliance with the proposed rule would be billions of dollars per 

year and that it was impractical to treat a material that made up 12 percent of the 

earth’s crust, covered the beaches from Maine to Florida, was naturally found in soil 

and in virtually all building materials under the same scheme governing asbestos. 

The SBREFA panel—including representatives of OSHA, OMB and SBA—recommended that OSHA go back to the drawing board on that initiative. Based on 

the status of the rule at OMB, it appears that OSHA largely ignored that panel report. 

Assuming that the only acceptable level of risk is zero risk at zero exposure forces 

OSHA to lower and lower acceptable exposure levels, which in turn increases costs 

not only financially but in the additional time and management attention that restrictive rules require. This also makes finalizing such regulations increasingly difficult as justifying such increased compliance costs creates additional political difficulties. With silica, it cannot be that the only acceptable risk level is zero. Silica 

is ubiquitous, and we are exposed to it throughout our entire existence at some 

level. If OSHA accepts what some propose, every construction site in the country 

will become a regulated area, and many non-construction manufacturing facilities 

will as well. Lung cancer is the signal risk most would seek to reduce with the 

standard. Yet, we attribute the bulk of U.S. lung cancer experience to tobacco, leaving little room for the conclusion that exposure to crystalline silica is causing large 

numbers of cases of lung cancer to occur. Indeed, incidences of silica related lung 

disease have been declining steadily. 

Too many in the occupational health field are blinded by the passion they bring 

to the work, and push OSHA to ignore inconsistent observations like this and pur-
54 

sue unrealistic targets. The remedy is a culture change at OSHA, an acceptance to 

do what is achievable and widely supported rather than push the envelope beyond 

practicality. 

• Take Into Account Advice Provided By OMB. 

OSHA tends to act as an advocate for the employee representatives, and to develop standards from that perspective. However, it can often lose sight of the fact 

that there are competing interests at play and that a proposed standard may have 

unforeseen effects when viewed from only one perspective. OSHA can become so entrenched in its position that the employer community, on whom the obligation and 

burden of compliance will fall, often feels that it has no voice before the agency. For 

that reason, many employers seek to share their views with the Office of Management and Budget’s Office of Information and Regulatory Affairs when OSHA’s final 

rules, and even some proposed rules, are reviewed under various Executive Orders 

and statutes. OIRA’s role is to assess the overall burden of a new standard and ensure regulatory consistency between different Federal agencies and adherence with 

rulemaking requirements like the Regulatory Flexibility Act. OIRA can be of assistance to OSHA in pointing out competing interests of other agencies and emphasizing the importance of industry views. 

OIRA can sometimes soften the hard edge of OSHA’s standards, and keep OSHA 

from adopting standards that impose unnecessary requirements when simpler or 

equally effective means will do. OSHA also sometimes glosses over economic and 

technical feasibility requirements, leaving the employer community no place to go 

to be heard. If OSHA were really listening, employers would not have to seek assistance from OIRA. 

An example of the lack of rigor in OSHA’s economic assessments is the recently 

adopted GHS revisions to the HCS. OSHA’s estimates of the time to train employees 

on the standard were woefully inadequate. They estimated that employers were already training people on a periodic basis on HCS issues, and that the incremental 

time spent training on the GHS standards would be 60 minutes for most employees 

and 30 minutes for employees with minimal contact with hazardous chemicals. In 

my experience, the training will take longer, because the classification scheme will 

make some chemicals seem more hazardous. Many more chemicals will bear a skull 

and crossbones; some chemicals not previously deemed hazardous will now be treated as hazardous. A natural reaction to that change will be questions up and down 

the chain of distribution as to whether anything has changed. The answer is the 

classification changed, but the chemical did not, which will lead to discussions of 

what the classifications mean and how they compare to prior classifications. 

Another example of OSHA’s inadequate economic analysis, and OIRA’s involvement, was the ill-fated MSD column proposal under the OSHA recordkeeping standard. OSHA estimated it would take 15 minutes to train supervisors on how the 

change would be implemented. In a meeting with OMB, I explained that this was 

unrealistic, because as part of its proposal, OSHA was abandoning an interpretation 

that allowed an employer to let an employee avoid activity that could aggravate 

muscular fatigue or minor discomfort without triggering a recordable case under the 

rules regarding transfer or change of jobs. The result would be that the number of 

incidences an employer would have to review to determine recordability would explode. I estimated it would take a retail store operator at least an hour of training 

of the store manager and assistant managers, who would be responsible for making 

these decisions. For an employer with 1,500 stores, the time involved would cost an 

estimate $400,000 or more. There are 7 million workplaces in the U.S., and assuredly, not all would have such a cost associated with it. But it would not be the 

minimalist and dismissive cost OSHA predicted. In January 2011, OSHA withdrew 

this regulation from review by OIRA claiming that it needed more input from small 

businesses. We think problems like this explain the difficulty OSHA had finalizing 

this regulation and why it is now on the long-term action list. 

• Accept The Results Of Negotiated Rulemaking. 

OSHA has tried negotiated rulemaking, but the results have been mixed at best. 

Negotiated rulemaking is a process by which a proposed rule is developed by a committee comprised of members who represent the interests that will be significantly 

affected by the rule. The goal of the negotiated rulemaking process is to develop a 

proposed rule that represents a consensus of all the interests. When parties agree, 

absent a major legal impediment, OSHA should not question their judgment. 

One example of OSHA’s insistence on imposing its judgment over the people who 

work in the industry is the Cranes and Derricks standard promulgated in 2010. In 

1971 OSHA issued the original C&D standard based largely on industry consensus 

standards. In the intervening decades those industry standards were updated leading, ultimately, to a request by the industry that OSHA update its standard. In re-
55 

sponse, OSHA’s Advisory Committee for Construction Safety and Health established 

a workgroup to recommend changes to the C&D standard. The workgroup developed 

recommendations on some issues and, in particular, recommended that OSHA use 

a negotiated rulemaking process as the mechanism to update the C&D standard. 

In 2002 OSHA announced plans to use negotiated rulemaking to update the C&D 

standard, and organized a committee, including representatives from the agency, 

from industry, and from other interested parties. The rules of the committee provided that no consensus could be achieved if OSHA dissented. As acknowledged by 

OSHA, the members had vast and varied experience in cranes and derricks in construction, which gave them a wealth of knowledge in the causes of accidents and 

other safety issues involving such equipment. The members used this knowledge to 

identify issues that required particular attention and to devise regulatory language 

that would address the causes of such accidents. 

At its final meeting in 2004 the committee reached consensus agreement on all 

issues. OSHA then proceeded to issue a proposed rule modifying the C&D standard. 

However, OSHA identified several problems in the committee’s report such as provisions that appeared inconsistent with the committee’s purpose, or that were worded 

in a manner that required clarification, causing OSHA’s proposal to deviate from 

the committee’s report. The standard finally was issued on August 9, 2010. Whether 

the extra time was worth the effort is a matter of debate. 

A similar situation arose in regard to steel erection standards. After 6 years of 

trying to revise the standards applicable to steel erection, OSHA established the 

Steel Erection Negotiated Rulemaking Advisory Committee in May 1994. Members 

of the committee included representatives from labor, industry, public interest and 

government agencies. OSHA served as a member of the committee, representing the 

Agency’s interests. 

Eighteen months of negotiations followed. Detailed reports were prepared and the 

committee met 11 times to debate the reports, hear submissions from interested 

parties, and negotiate to find common ground on regulatory issues. In December 

1995 the committee put forth a proposed revision of the regulation. OSHA then 

drafted a preamble and Preliminary Economic Analysis for the proposed rule, but 

it was not until August 1998 that OSHA issued a notice of proposed rulemaking. 

In response, OSHA received 367 submissions. In response to the Notice of Hearing 

contained in the NPRM, OSHA received 55 responses. Following the December 1998 

hearing a post-hearing comment period was established. Participants were allowed 

to submit additional data and information, briefs, arguments and summations. In 

December 1999 OSHA presented the committee with the Agency’s draft final rule, 

seeking comments and feedback. On January 18, 2001 a final regulation was published. 

Currently, OSHA has the opportunity to move quickly on changes to the beryllium 

standard. Having first issued a Request for Information regarding beryllium in 

2002, the process stalled in 2010. OSHA has classified a beryllium standard as a 

‘‘long-term’’ action unlikely to be addressed soon. In February of this year, the leading U.S. supplier of beryllium, Materion Brush Inc., teamed up with the United 

Steelworkers and two other unions that represent beryllium workers and proposed 

a standard to OSHA that would sharply limit airborne beryllium exposure in the 

workplace. The standard would cut the occupational exposure limit for beryllium by 

90 percent and require feasible engineering controls in any operation which generates any beryllium dust or fume, even those which meet the exposure limit. The 

proposal details new Permissible Exposure Limits, engineering controls, personal 

protective equipment, monitoring and assessment, hygiene, housekeeping and medical surveillance and training requirements. Because the proposal contains readyto-use language approved both by industry and by labor, OSHA could expedite the 

rulemaking procedure by simply proposing it. Given that the members of the industry think the proposed standard’s provisions are appropriate, technical and economic 

feasibility should not be an issue, and the key parties have agreed that it mitigates 

an unreasonable risk in that industry. What else does OSHA need? 

• Recognize That OSHA Standards Are More Effective The More People Volunteer 

To Adopt Them. 

To no one’s surprise, OSHA’s Voluntary Protection Programs (VPP) achieve more 

success in terms of reducing injuries, illnesses, fatalities, and costs, than do its mandated standards. Implemented in 1982, the VPP was designed to encourage collegial 

relationships between labor, management, unions, and government with the goal, 

ultimately, of improving safety and health in the workplace. By engaging in OSHA’s 

challenging application process, employers see a decrease in their lost workday injuries, injury and illness rates, and workers’ compensation costs. 
56 

1 Appalachian Power Company v. Environmental Protection Agency, 208 F.3d 1015, 1020 (D.C. 

Cir. 2000). 

For example, the Washington State SHARP program recently issued a report in 

which they found that employers that participated in the voluntary consultation 

program had better outcomes compared to employers who were inspected by California OSHA inspectors. Some people think we should ignore this because this 

group is self-selected. I think the right answer is to get more people to self-select. 

We all know intuitively that it is easier to get people to do something if they see 

the benefit and it makes sense to them. Getting people to volunteer to adopt programs and policies that go beyond OSHA’s standards offers the opportunity to increase the benefits of safety and health programs at much lower cost. In addition, 

we all also know that when we are forced to do something, we are less enthusiastic 

and less effective. That is why the VPP program should not be a model for a mandatory standard as we will not see the benefit of the forced adoption of the programs. 

Instead we could invest more in the VPP program to encourage more employers to 

join, and thereby multiply the effect of the money spent. 

OSHA should refrain from the following: 

• Stop Spending Time On Pet Projects And Take Into Account The Evidence Presented. 

OSHA’s tendency is to act even when it has no evidence of a corresponding improvement in safety. Such is the case with OSHA’s fall protection standard. The fall 

protection standard was promulgated in 1994 and has undergone no substantive 

changes since then. If the standard was substantially effective in improving workplace safety and health, we should expect to see that reflected in the Bureau of 

Labor Statistics Census of Fatal Occupational Injuries. Unfortunately, that is not 

the case. Rather, workplace fatalities from falls over the past 18 years have remained more or less constant. In 1994, approximately 600 deaths resulted from 

falls, while preliminary numbers for 2010, the most recent year for which data is 

available, show 635 fatal falls. The numbers increased during the building boom between 1997 and 2007, so the absolute numbers may be misleading. We did not have 

the numbers of employees in the affected industry to calculate rates, but what is 

important is that the impact of OSHA’s emphasis on fall protection may not have 

had the intended effect. Could it be that OSHA is focused on the wrong causal relationship—the lack of personal fall protection or guardrails is not the cause of the 

deaths? It seems a good question to ask and to answer before imposing another enforcement policy. 

• Refrain From Regulating Through Interpretations. 

Perhaps as a way to get around the rulemaking process, OSHA tends to try to 

make changes in its rules via ‘‘re-interpretations’’ and enforcement rather than following the statutorily required rulemaking procedures. Agencies are making 

changes to existing rules, which have significant economic consequences and impose 

significant compliance costs without giving the public adequate notice, or informing 

them of the unintended consequences of the changes. OSHA should make a diligent 

effort to get away from the paradigm described in the following excerpt from the 

a frequently quoted 2000 opinion issued by the D.C. Circuit 1 because, as long as 

OSHA continues down that path, industry will be understandably reluctant to support the agency’s rulemaking efforts: 

The phenomenon we see in this case is familiar. Congress passes a broadly 

worded statute. The agency follows with regulations containing broad language, 

open-ended phrases, ambiguous standards and the like. Then as years pass, the 

agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more 

detail regarding what its regulations demand of regulated entities. Law is 

made, without notice and comment, without public participation, and without 

publication in the Federal Register or the Code of Federal Regulations. With the 

advent of the Internet, the agency does not need these official publications to 

ensure widespread circulation; it can inform those affected simply by posting its 

new guidance or memoranda or policy statement on its web site. An agency operating in this way gains a large advantage. ‘‘It can issue or amend its real 

rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.’’ Richard J. 

Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L.REV. 59, 
57 

85 (1995). [footnote omitted] The agency may also think there is another advantage—immunizing its lawmaking from judicial review. 

A clear example of this approach was the unilateral ‘‘re-interpretation’’ of the 

term ‘‘feasibility’’ under the OSHA noise standard that OSHA announced and then 

was forced to withdraw in response to the strong adverse reaction from the Congress and the business community. As with many occupational hazards, there are 

many ways to protect employees from noise. Based on dogma, OSHA has a longstated preference for engineering controls, as opposed to personal protective equipment. Since 1983, OSHA has interpreted its regulation to require employers to install engineering controls when noise levels are extraordinarily high, and to allow 

use of a hearing conservation program using periodic testing of employees hearing 

and ear muffs and plugs below a certain level. While there have been proponents 

of changing this policy for many years, the scientific data on whether such programs 

work and what makes them successful has been missing; meanwhile, technology has 

changed. We now have noise-cancelling ear muffs, and better ear plugs. We have 

the capability to test the effectiveness of each individual’s hearing protection to 

make sure that the reduction in noise levels is sufficient based on current knowledge. And we surely have the techniques to determine if the use of such programs 

over the last nearly 30 years has been effective. All we have to do is look. 

Yet OSHA did not take any of this into account when it announced that feasibility 

under the noise standard would now mean only if implementing an engineering or 

administrative control would put the employer out of business would it be considered infeasible. This would have required that employers spend excessive amounts 

of money on engineering and administrative controls without regard to whether they 

were sufficiently effective to eliminate the need for ear muffs and plugs and all the 

other aspects of hearing conservation programs. OSHA would have required employers, who already have hearing protection programs in place, all over the country to 

spend resources without considering whether the people whom OSHA claims it is 

protecting would receive any benefit. One estimate put the figure at over $1 billion 

for one large company meaning that the overall cost for all employers that would 

be covered would have been astronomical. OSHA did absolutely no analysis to determine the impact or whether spending these amounts would produce better outcomes. Since this was a mere interpretation, the agency was not required to satisfy 

any of the normal feasibility or economic analyses that are part of rulemaking. 

Thankfully, this created such an outcry from many sources that OSHA was forced 

to withdraw the proposed reinterpretation. 

Similarly OSHA has been using enforcement to advance positions that should otherwise be done through rulemaking. Just last month, a memo went out to the regional administrators instructing them on what constitutes violations of OSHA’s 

protections for whistleblowers. Among the scenarios was one that now means an 

employer with a safety incentive program, such as rewarding employees for remaining injury free for a period of time, will be considered in violation of the whistleblower protections. Nowhere does OSHA say that such programs are not allowed, 

but under the guise of a memo to the field, OSHA has now implemented a policy 

with enforcement consequences for any employer who uses an incentive program. 

CONCLUSION

Despite these criticisms of how OSHA operates, employers and the agency are 

seeking the same goal: safer workplaces. OSHA standards clearly have benefits and 

can help employers understand hazards and appropriate approaches to mitigating 

them. However, more standards is not always the answer to safer workplaces, and 

unless standards are done with proper adherence to key procedural steps and sensitivity to concerns from those who will have to implement them, there can be significant unintended consequences. To the extent that OSHA believes it needs to expedite its rulemaking process, the solution is not fewer steps but using more of the 

available expertise and interest in particular safety issues. 

Thank you for your time today and I look forward to responding to your questions. 

The CHAIRMAN. Thank you very much, Mr. Sarvadi. 

Thank you all, and we’ll begin a round of 5-minute questions 

here. 

I must admit that I was not fully aware of all of the problems 

with OMB and OIRA and how they were operating. And I think 

this aspect of it, at least from what I heard from three of you here, 

should be an area that maybe we ought to really look at and see 

if there’s some way of streamlining that—the ability of OMB. 
58 

Now, Ms. Rabinowitz, I think you stated that you thought that 

maybe Congress needs to legislatively—or do something to limit 

how long or what OIRA can do. 

I think, Mr. Sarvadi, you suggested that they—correct me if I’m 

wrong—be more open, get more people in, and act expeditiously, 

something like that. That’s my own language. 

Mr. SARVADI. Yes. I’m suggesting that OSHA should get more 

people in earlier and act more expeditiously. OMB’s review typically is 90 days at most, and it really doesn’t add to the length of 

time it takes to get these standards through. 

The CHAIRMAN. Well, now we’re hearing about OMB holding 

things up for years. We’ve got one now that says the silica thing 

has been there since—it’s been there for 14 months now—at least 

from what I’ve heard. 

Dr. Silverstein, do you have any response to that? I mean, it 

seems to me OIRA and OMB is kind of doing again what OSHA 

already did in the first place, so you’re duplicating it. I don’t know. 

Am I wrong on that? 

Ms. RABINOWITZ. I think there are three things that it would be 

very worthwhile for Congress to consider. OMB discloses who it 

meets with, but these are oral meetings. It does not disclose what 

is discussed at those meetings on the public record so that people 

have an opportunity to rebut it. And that would be very helpful 

and make the process more transparent. 

Second, the agency sends a rule to OMB. OMB may insist on certain changes during its review process, and then the rule is published in the Federal Register. There is no disclosure of what that 

give and take between the two is, what changes were made at the 

behest of OMB, and what the nature of those changes were. Disclosure of the changes that OMB insists on would be very helpful. 

And I think equally as important, the way this process, this rulemaking process, works is it’s open to everybody, and you build a 

record, and the agency is supposed to act on the basis of that 

record. An OMB review allows a secret record to be created after 

the fact, and the process is only open to some, not to everybody. 

For example, while Mr. Sarvadi has been to lots of meetings at 

OMB, I’ve worked on almost a dozen OSHA standards, and neither 

I nor my clients have ever been invited to any. So it creates a lopsided record that’s imbalanced. And I think that undermines the 

process we have at the agency. 

The CHAIRMAN. Mr. Sarvadi, you suggested opening up OSHA’s 

internal processes to greater public participation. OK. I’m all for 

that. Ms. Rabinowitz, however, says that the process at OIRA— 

OMB is a closed thing. Would you advocate that both of them be 

opened? 

Mr. SARVADI. I think they are, Mr. Harkin. In fact, I suspect the 

reason Ms. Rabinowitz hasn’t been to OMB is because she hasn’t 

asked to go. Every time that I know of that we’ve asked to have 

a meeting about a particular topic, they’ve been willing to talk to 

us. 

My point about opening up the OSHA process so—it’s a little bit 

different than just simply opening the process. Part of the problem 

is the people on the staff at OSHA who get involved in these things 

have a very narrow and parochial view of the world. And they don’t 
59 

have enough information and they don’t have enough real-world experience to be able to integrate all of the information that they get 

in an effective way. And that’s my personal opinion. It’s something 

that I’ve observed for the last 35 years. 

Part of the reason is these people are not engaged professionally. 

In my written comments, I talked about having the OSHA staff 

who do these kinds of things, that are supposed to be professional 

safety and industrial hygiene staff, participate in the professional 

societies where they can get to know people and hear about the 

kinds of real-world problems that they face. That would help a lot. 

And the trade associations that are around would be available to 

help the agency talk to the people in the industry. 

The CHAIRMAN. I don’t know about the specificity of OMB’s 

OSHA dealings. But I will tell you that this chairman has had 

dealings with OMB in the past—under both Democratic and Republican administrations, I might add—in which people came in to 

visit with OMB officials, and the only way I found out who they 

were is I asked for the log of who was invited. 

What they discussed I could never find out. There was no record 

kept, none whatsoever. And none of my staff or no one was ever 

invited to sit in on these meetings, either. So OMB—I’ve got a little 

thing there about OMB being this super secret kind of organization 

down there that’s getting involved in stuff. 

But I’m running out of time. I have run out of time. I’ll follow 

that up later. 

Senator Enzi. 

Senator ENZI. Thank you, Mr. Chairman. I’ll follow up for you. 

Ms. Rabinowitz, you’re advocating for a substantial limitation on 

the Office of Information and Regulatory Affairs. But the OIRA activity that you object to is prescribed by the Administration, not by 

Congress. Are you in discussions with the Administration on your 

suggestions? Is the President considering limiting the regulatory 

review or making the record more open? If not, why not? 

Ms. RABINOWITZ. I’m, personally, not involved, but the organization with which I work and which I joined very recently has had 

discussions over the years with the Administration on various Executive orders. I do not believe there are any ongoing discussions 

with the current Administration about changing the process. 

Senator ENZI. So before we do a law, maybe we need to talk to 

the Administration and see if they’ll just do it administratively. 

They’re doing everything else administratively. 

A question for Mr. Sarvadi, OSHA had used national consensus 

standards as permitted under the OSH Act to create a uniform 

standard across certain industries. Other witnesses today have advocated adopting more consensus standards wholesale. These 

standards are developed by national groups such as the American 

Society of Safety Engineers. But not all groups have an open and 

scientifically reliable process for creating those standards. Therefore, some of these consensus standards groups don’t actually capture the consensus of the field. 

Do you have concerns about OSHA adopting national consensus 

standards? And how can we determine which national consensus 

standards are appropriate and based on professionals? 
60 

Mr. SARVADI. Yes, I think I can help with that. There’s a definition of a national consensus standard in the statute. OSHA would 

have to determine that a particular standard was adopted in accordance with those criteria. And if it did, I think the issues that 

OSHA has to address when it adopts a rule, that is, significant 

risk, feasibility in both economical and technical, would be largely 

dealt with because of the fact that the people involved represent all 

of the people who have an interest in a topic. 

So, for example, an American National Standards Committee 

that has a proper process in place to develop a standard will have 

representatives from academia, from government, from labor, from 

industry, and from consultants and insurance companies as well. 

And I think it’s possible to use consensus standards. I think it 

could be done more quickly if they did. 

But I do have concerns about certain consensus standards where 

the situation has been overtaken by people who have a parochial 

or a financial interest in having the standards drafted in a certain 

way and then push those standards. I think we’ve seen that in 

some cases, perhaps not as much in the safety area, but in other 

areas where there are consensus standards. So OSHA does need to 

look to those, and they could, I think, expedite the process. But 

they need to make sure that they are true consensus standards. 

Senator ENZI. Thank you. Another question for you: The stakeholders have described the recent OSHA final rule on hazard communication standards as a missed opportunity, do you agree? 

Mr. SARVADI. I think it was in the sense that it could have been 

done a lot more quickly. And the problem with keeping or adding 

combustible dust to the mix, I think, was an example of what happens when OSHA latches onto a—I’ll call it a pet project. 

I don’t want to minimize the importance of dealing with combustible dust. But it got latched onto and added to the process very 

late, and it didn’t resolve some of the very significant and important questions that have to be resolved now through the enforcement process, which is when do we have a situation where the 

combustible dust practices and procedures are required. 

So I think it was a missed opportunity in that sense. But in the 

end, it’s an important change in the standard. And, by the way, the 

standard does require that employers inform their employees about 

the chemical hazards that they’re exposed to. And I know folks in 

the masonry industry now know that bricks contain silica dust, because bricks are hazardous chemicals that require a material safety data sheet that have crystal and silica identified on the data 

sheet. 

Senator ENZI. Another question for you in a little different line 

here, recently, OSHA issued an enforcement memo concerning employers’ use of safety and health incentive programs, the incentive 

programs. As you discuss in your testimony, this is a situation 

where OSHA is seeking to change its rules outside of the rulemaking procedure. 

Do you think that employer incentive programs can contribute to 

a safe workplace? Is this memo an appropriate use of OSHA’s authority? As evidenced by this enforcement memo, OSHA seems to 

believe that their own statistics are not legitimate, and there is an 

under-reporting of injuries. While the memo lists several isolated 
61 

anecdotes, what’s the real basis, if any, for OSHA’s belief that 

there is endemic under-reporting of injuries? 

Mr. SARVADI. I’m not sure why that idea has persisted over the 

last 25 years. I’m aware of at least three separate instances where 

OSHA has actually gone out to look at injury and illness reporting 

in the workplace. They’ve actually gone out to employers, looked at 

the records that are available, talked to the employees, and gathered information on reporting. And to my knowledge, there has 

been no suggestion that the widespread under-reporting that is 

claimed has actually occurred. 

Even if we’re talking about a 10, 15 or 20 percent under-reporting, I think it’s undeniable that the trends in workplace safety 

demonstrate continued improvement over the last 30 years. So 

even if we are looking at numbers that don’t reflect the total reality, we are looking at trend lines and rates that show that we are 

on a track that can be improved. 

In regard to the specific incentive programs you’re talking about, 

I think what OSHA is worried about is situations where employees 

are discouraged from reporting their injuries and illnesses because 

they are afraid of their group or their company work site suffering 

from not having the benefit of whatever the incentive program is. 

Incentive programs are helpful. Getting people to voluntarily follow 

the rules is always better than trying to force people to do it, and 

so there is a place for them. 

But I would not disagree that we need to be careful that we don’t 

use incentive programs improperly. That’s why a rulemaking on 

that would be more important, because then we would have an opportunity to find out what works and what doesn’t. 

Senator ENZI. Thank you. I’ve run over, but I may have to leave 

before the next round of questions are available. I do have questions for all of the witnesses. And you’ve been great on your testimony. I’ve read your testimony. It’s very helpful, but it did bring 

up some other questions. So I hope if I don’t get a chance to ask 

them that you’ll respond in writing for me. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Senator Franken. 

Senator FRANKEN. First of all, Mr. Ward, I’m sorry I wasn’t here 

for your testimony, but I was very touched by reading it. 

Mr. WARD. Thank you. 

Senator FRANKEN. I have a question for you and maybe for Dr. 

Silverstein. I’ve been to training facilities at various locations, for 

laborers, for carpenters, and one of the things they do emphasize 

is safety. I remember being at a carpenter training facility and 

talking—and the guys they were training had been nonunion before. And what they were doing now is they were working at a 

union site several days a week, and they get training 1 day or 2 

days a week. 

So I asked these guys what the difference was between working 

on a union site and a nonunion site. One of the things they said 

was the union site was safer, that when someone got hurt at a nonunion site, basically, no one cared. No one did anything. No one 

stopped. But at the union site, they made sure that you got care, 

that you got what you needed. 
62 

My question is—I know that you’re doing training. 

Mr. WARD. Yes, sir. 

Senator FRANKEN. And I’m wondering—are you working at a 

union shop? 

Mr. WARD. Yes, sir, with the Bricklayers. 

Senator FRANKEN. Yes. 

And this is for Dr. Silverstein. Do union shops tend to be safer 

than nonunion? And that can be for Mr. Ward as well. 

Mr. WARD. Well, I’ve never worked for the other side. But I can 

tell you from what I see driving around town, in my city, the answer is without a doubt, without a doubt. The contractors—we 

have a lot of good ones. They are involved. The training we provide 

gives them an edge. And I don’t have the numbers for you, but I 

could tell you my experience and what I’ve seen—absolutely. 

Senator FRANKEN. Dr. Silverstein. 

Dr. SILVERSTEIN. I would agree with that. And in my experience—and that’s experience working for an international union, the 

Auto Workers, for a number of years, as well as my experience as 

an agency executive at both the Federal and State levels—I think 

that there is a difference in attention to safety at union represented sites—— 

Senator FRANKEN. But that’s anecdotal and not borne out by statistics. 

Dr. SILVERSTEIN. There have been a limited number of scientific 

studies that have tried to look at this in a very rigorous way. But 

to the extent that they have—and I think that Dr. David Wild has 

looked at this issue in the past and has published studies that indicate that union participation does enhance safety performance. 

Senator FRANKEN. I’m getting a nod from a woman in the audience, but we can’t call you, I don’t think. I’m not the chairman. 

Well, Dr. Silverstein, or anyone else who’d like to respond, we 

hear a lot about the cost of regulation all the time. They stifle the 

economy. They stifle growth. And I think we all agree that unnecessary regulation can do that. But not all regulations are created 

equal. The standards issued by OSHA do save lives. 

Would you mind sharing with the committee the most compelling 

cases you’ve encountered in terms of data on OSHA standards saving lives? 

Dr. SILVERSTEIN. I think there are a number, and there are a 

couple of examples in my full written testimony. But one involves 

the impact of OSHA’s lockout/tagout standard, which was adopted, 

and then 7 years after—and this is a standard that was intended 

to protect workers from the danger of equipment being energized 

while maintenance or other work is being done on them. 

OSHA did a look-back survey, as required under SBREFA, I believe, after 7 years and found that in the 7 years after the lockout/ 

tagout standard was adopted, there was a 20 to 55 percent reduction in lockout/tagout deaths. That’s one example. 

In the State of Washington, the Department of Labor and Industries has done a number of well-designed studies looking at the impact of enforcement of OSHA standards on worker compensation 

cases. And what the department has found—and I’ll give you just 

two examples. 
63 

One is that following the adoption of the Washington State Fall 

Protection Standard a number of years ago, when inspectors went 

in, did an inspection, found that the standard was being violated, 

they issued an order for corrections to be made. And so the standard was then—the company then came in compliance—that as the 

company came into compliance, that injuries from falls declined 

significantly. 

In a similar way, the Department of Labor and Industries recently completed a 10-year review looking at what happens to 

worker compensation cases in the year after a State OSHA inspection took place. And while it is true that in all workplaces, even 

without inspections, there’s a slow decline in worker compensation 

cases, in the instances where an OSHA inspection was done, violations were found, citations were issued, and the hazards were corrected, there was a 20 percent greater decline in the injuries than 

in other comparable workplaces. So there’s a wide body of information. That’s just some. 

Ms. RABINOWITZ. If I could add, in the 1970s, OSHA issued a 

standard for cotton dust exposure. And at the time, it was very 

controversial. Industry said it was going to put the textile industry 

out of business. OSHA went forward with the standard. The case 

went to the U.S. Supreme Court, which upheld the standard. 

There’s been a dramatic decrease in the incidence of byssinosis 

among textile workers, and the investment in plant and equipment 

that was spurred by the need to comply with the standard increased productivity in the industry dramatically and allowed them 

to stay competitive for a while with international textile manufacturers in a way that they would not have been able to in the absence of that investment in plant and equipment. 

Senator FRANKEN. Thank you. 

And thank you, Mr. Chairman. 

The CHAIRMAN. Senator Blumenthal. 

STATEMENT OF SENATOR BLUMENTHAL

Senator BLUMENTHAL. Thank you, Mr. Chairman. 

I want to thank all of you for being here today. And I want to 

say in recognition of the people here who have come with photographs that I am reminded of the tragedy that Connecticut encountered literally 25 years ago almost to the day at L’Ambiance Plaza. 

As a matter of fact, I’m going to be at a ceremony this coming Monday marking that 25th anniversary when 28 construction workers 

lost their lives as a result of a construction practice known as lift 

slab that was under review by OSHA. 

In fact, it had been under review for some 5 years and was eventually found to be unsafe. And yet 28 people lost their lives on that 

day, April 23, 1987, as tons of steel and concrete from an unfinished building came crashing down on them. And it is a tragedy 

that we have recalled every anniversary since, this one being the 

25th anniversary. 

So as you have testified, Dr. Silverstein, and others have recognized very eloquently, these delays have real-life consequences. 

They have consequences not just in money and unnecessary medical costs. They have real-life consequences in lives lost—men and 

women not coming home from work after leaving their families 
64 

that morning, as these 28 individuals did that day 25 years ago, 

and not coming home to their families as the result of an accident 

and, really, a tragedy that could have been avoided. 

Accident probably is the wrong word, because it was, in essence, 

preventable. And it could have been prevented if there had been 

prompt or even reasonable review within a period of time that everyone would agree is one that should be met. 

I have read the GAO report, and I would simply ask, Dr. Silverstein, whether you think that this report adequately sets forth 

measures that we can take to address this problem. 

Dr. SILVERSTEIN. Senator Blumenthal, I think that the GAO report did a pretty good job of identifying some of the reasons that 

OSHA standard-setting takes too long. I think it fell short with recommendations. We’ve presented a number of recommendations 

here that I think are worthy of consideration. It’s unfortunate the 

GAO didn’t make those in its own report. But I think that the report itself supports quite strongly some of the recommendations 

that we have made. 

Senator BLUMENTHAL. So the report essentially identifies the 

problems and the reasons and thereby supports going farther than 

the recommendations it has made. 

Dr. SILVERSTEIN. You know, even within the body of the report, 

a number of the recommendations that we’ve made explicitly here 

are noted, but they don’t appear in the recommendation section. So 

the idea that Congress could direct OSHA to adopt a rule in a more 

expedited way than currently takes place is something that’s in the 

GAO report as a possibility. It just wasn’t listed as a recommendation, and I believe it should have been. 

Senator BLUMENTHAL. Thank you. 

I’ll invite comments from any of the other witnesses if they have 

any. 

Yes, sir. 

Mr. SARVADI. I’d make the comment that I really think the problem with OSHA rulemaking is that they just don’t stick to their 

priorities. And what the statutory recommendations that we’re 

talking about here do is establish that priority. If OSHA wanted to 

get a rule done on silica, it could have done it in 1979 or 1978 without having to go through all of the exercise that we’ve gone through 

since then. 

The reason it didn’t happen is because I don’t think they understood the significance and the importance of having established the 

rule. That doesn’t, I don’t think, change the problem that we have 

in front of us, which is to say the agency simply gets bogged down 

in its own processes. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. 

The CHAIRMAN. Well, again, if the agency gets bogged down in 

its own processes, Dr. Silverstein, what are your recommendations? 

Dr. SILVERSTEIN. Well, I think that some of the points that Mr. 

Sarvadi is making are quite appropriate. I agree that stakeholders 

should be brought into discussions as early as possible, and often 

OSHA does that. So I think the rap on that is a bit unfair. 

But I want to go back for a second to the discussion you were 

having about OMB. The real open process in which all the parties 

are brought to the table, have an opportunity to put their concerns 
65 

out publicly and have them discussed, debated, worked over—the 

open process is the public hearing process, OSHA’s public hearings. 

The CHAIRMAN. Right. 

Dr. SILVERSTEIN. Those are incredible events which are open to 

anybody. There’s an administrative law judge. They’re on the 

record. Witnesses are able to come forward and present their views, 

present data, present either support or opposition, and then the 

witnesses are subject to cross-examination by anybody else who’s 

in the room who is on the witness list. They’re incredibly robust, 

interactive experiences. That’s the public process that works. 

Certainly, there are problems internally to OSHA with setting 

priorities. I agree with that. But the real problem is that it takes 

so long to get to the public hearing process. There are innumerable 

procedural delays, including the OMB delays, the SBREFA delays, 

and others, that really keep the process from getting to the point 

where it really matters—open public debate and discussion on the 

record. 

The CHAIRMAN. But it doesn’t—let me ask—that takes place before it goes to OMB, doesn’t it? 

Dr. SILVERSTEIN. No, it doesn’t. It can’t happen until it comes out 

of OMB. 

The CHAIRMAN. So the silica rule, that’s tied up in OMB right 

now. 

Dr. SILVERSTEIN. Yes. It has not had a public hearing, and it 

won’t until it comes out of OMB. 

Ms. RABINOWITZ. OMB gets to look at the rules before a proposed 

rule is published in the Federal Register for comment. And then 

after the hearing process and the comment period, OMB gets to 

look at the rule a second time. When a final rule is drafted, it’s 

sent to OMB before it’s published in the Federal Register. So they 

look at it in the beginning and at the end. 

The CHAIRMAN. Mr. Sarvadi. 

Mr. SARVADI. Mr. Chairman, if I could add to this, the problem 

we’re talking about right now is the time it has taken to get to this 

stage is the time period—I think in the GAO report they suggested 

they started in 1994. This is the time when OSHA has been doing 

all of its work internally and through contractors to gather information. And this is the time period where I’m suggesting we can 

shorten the time it takes to get to the rule. 

We are going to have the opportunity to go through the robust 

process that Dr. Silverstein described only after OMB releases the 

proposed rule for discussion. I’m suggesting we need to have that 

discussion before it gets to OMB. 

The CHAIRMAN. Well, OK. This is open for discussion. Why can’t 

we have it before it goes to OMB? 

Dr. SILVERSTEIN. Because the only truly open process that is on 

the record and is meaningful that OSHA has to base its record on 

and defend in court is the record of the public hearing. I agree that 

informal discussions with stakeholders that represent all views 

should take place very early on. But then having done that—we 

need to do that quickly, get past it, get to the public hearing process where it really counts. 

The CHAIRMAN. Could you have a public hearing on a proposed 

rule—I don’t know. Maybe you can’t. 
66 

Dr. SILVERSTEIN. Well, OSHA does have public meetings. And 

often OSHA will conduct a public meeting of some kind very early 

on in the process. It could do more of that, and it could do it quickly. 

The CHAIRMAN. But this open process—as I understand it, the 

meetings that OSHA has prior to that are open, on the record. 

They aren’t? 

Dr. SILVERSTEIN. No. 

The CHAIRMAN. No? 

Dr. SILVERSTEIN. Not the way that public hearings conducted 

under the requirements of the Administrative Procedure Act are. 

Ms. RABINOWITZ. It varies. OSHA has pre-proposal stakeholder 

meetings. Sometimes they hire a court reporter and have transcripts of these meetings, and everyone is invited. Sometimes 

they’ll meet with some business groups and then some labor 

groups. And the process is not regulated by any procedural statute, 

and it varies depending on the circumstances. And I don’t think 

there is any way that you can generalize. 

They do go out and speak to more people than I think Mr. 

Sarvadi has acknowledged, but there’s not a consistent pattern. 

Sometimes they do it more frequently and more openly, and sometimes they do it less frequently and less openly. 

The CHAIRMAN. Are you suggesting that maybe we need more 

legislative guidance? 

Ms. RABINOWITZ. My suggestion would be that more analytic procedures would just bog down the process. 

The CHAIRMAN. That’s what I’m wondering about this suggestion 

that was made by GAO and, I think, others that somehow OSHA 

now get together with NIOSH and work together from the beginning. Aren’t we adding another layer in there? 

Dr. SILVERSTEIN. OSHA has worked closely with NIOSH for 

about 40 years. 

The CHAIRMAN. Well, then—— 

Dr. SILVERSTEIN. And the suggestion that they try harder, I 

think—you can always try harder and do better, but that’s not the 

delay. That’s not the source of the problem. 

The CHAIRMAN. They’re already working with NIOSH. 

Dr. SILVERSTEIN. Oh, yes. 

The CHAIRMAN. I wonder why GAO was suggesting that. That’s 

the only suggestion they made. 

Dr. SILVERSTEIN. Right. 

The CHAIRMAN. OK. Try me one more time. Dr. Silverstein, if 

you had a magic wand, if you were the dictator, and you could do 

one or two things that would speed up this process while at the 

same time making sure that there was adequate public input, 

stakeholder representation, time for public comments on the 

record, what would you do to speed up the process while protecting 

these other elements? 

Dr. SILVERSTEIN. You’re endowing me with extraordinary powers 

here. 

The CHAIRMAN. That’s right. I’m asking how you—— 

Dr. SILVERSTEIN. Under those circumstances, I would direct 

OSHA to engage in an expedited rulemaking to bring up to date 

the more than 400 chemicals for which the permissible exposure 
67 

limits are maybe 50 years out of date. And, second, I would direct 

OSHA to adopt a general rule that would require safety and health 

programs, injury and illness prevention programs in each workplace. 

Ms. RABINOWITZ. I would say mandatory deadlines. Whatever the 

priorities are, when Congress has enacted deadlines and forced 

OSHA to go forward, they’ve actually had a pretty good record of 

meeting those deadlines, and they’ve been able to do it with the 

same public participation. So if silica is Congress’ priority, if updating the permissible exposure limits is Congress’ priority, they 

should require the agency—consolidate those procedures into a certain amount—a period. 

And I think if we shorten the period between the end of the comment period and the time it acts—sort of what I like to call the 

hand-wringing process, where they—you know, should we do this, 

should we do that—if we could just force them to decide on the 

record, then we could move on to the next priority. 

The CHAIRMAN. Mr. Sarvadi. 

Mr. SARVADI. I think the last point that Ms. Rabinowitz just 

made is really important. There’s a lot of hand-wringing that goes 

on over there. I’m not sure I agree with Dr. Silverstein that OSHA 

has worked that closely with NIOSH. They do have different orientations in the two agencies. 

And, actually, my personal opinion, which, again, no one has listened to for about 30 years, is that NIOSH needs to be out of CDC. 

It’s not a really good place for it. It’s a poor stepchild over there. 

Be that as it may, to try to fix the rulemaking, it’s really about 

getting managers within the agency to stick to the deadlines that 

they set. They simply don’t do it. They simply won’t come to a conclusion. 

The CHAIRMAN. But that’s an administration problem. It seems 

to me that comes under the administration. 

Senator Enzi. 

Senator ENZI. Thank you, Mr. Chairman. 

Dr. Silverstein, in my view, OSHA’s Voluntary Protection Program that I talked about in my opening statement is an effective 

tool in terms of improving the workplace safety conditions and reducing injuries. Do you believe that the VPP sites are generally 

safer than the non-VPP sites? And do you support continuation of 

VPP or not? 

Dr. SILVERSTEIN. Well, Senator Enzi, sure, they’re safer, because 

that’s the requirement for them to be able to be given the VPP 

star. They are recognition programs. The program is intended to 

identify and to recognize those employers who are doing the very 

best job. They’ve been mischaracterized, I think, as programs 

which cause workplaces to become safe. In fact, they recognize 

those that are already safe, and, in that sense, I do support them. 

During the 10 years that I was director of the State OSHA Program, I was very proud to be able to go out to workplaces where 

we awarded the VPP star and to talk with the companies and the 

unions or the workers on the nonunion sites about the great things 

they were doing. 

Senator ENZI. Well, they have some requirements for hiring safety people as well as doing the incentive programs, don’t they? 
68 

Dr. SILVERSTEIN. It’s a high bar. Now, with regard to incentive 

programs, we could have a longer discussion about that. But we 

certainly—I don’t think it’s appropriate to award a VPP star to a 

site that encourages in any way workers not to report injuries and 

illnesses. 

Senator ENZI. No. That wasn’t the incentive I was referring to. 

You referred to VPP as an incentive program where they get their 

star and they can be proud of it. 

Dr. SILVERSTEIN. Yes. 

Senator ENZI. It’s more than that. They actually have to do something in order to get that star. 

Dr. SILVERSTEIN. Companies generally have worked very hard 

over a number of years to get to the point where they can be recognized. 

Senator ENZI. Thank you. 

Mr. Ward, I want to express my sympathy for the loss of your 

father and your health conditions. I appreciate the comments that 

you made. I do believe that we can attribute the progress in improving workplace safety both to employees and employers, and 

that needs to be a constant working relationship if we’re going to 

have a safer workplace for everyone. 

That’s why the OSH Act prohibits the penalization of employees 

for reporting safety violations and making complaints—the whistleblowing provisions. But some recent cases have raised a question 

that, apparently, a labor union can fine a member for doing that 

same kind of reporting on safety violations. 

What do you think? Should a labor union be able to fine employees for reporting hazardous conduct that endangers everyone on 

the work site? 

Mr. WARD. I’ve never heard of that. 

Senator ENZI. Well, there are some cases that have happened 

that way. 

Mr. WARD. I’ve never heard of that or experienced any of that. 

If I may—— 

Senator ENZI. Sure. 

Mr. WARD [continuing]. Take a swing with that magic wand for 

just a second, in my opinion, if you want to speed it up, have everyone involved take a look at the simple, cost-effective control measures that we’ve known about for 70 years. It literally is adding 

water to what you’re cutting, and you eliminate the hazard for gaspowered equipment. For the electrical powered equipment, they 

have vac systems which are readily available. Industry—the manufacturers have already—it’s already out there. It doesn’t have to be 

re-invented. It’s just that simple. 

If you really look at how much you’re allowed to be exposed to 

and how simple the controls are, everyone would be on board, I’m 

almost certain. It really is way more simple than it appears. 

Senator ENZI. That’s why we want both the employees and the 

employers involved in the process. And I appreciate your comments. 

Mr. WARD. Thank you. 

Senator ENZI. Dr. Silverstein, in your testimony, you mentioned 

a shared priority for rulemaking between OSHA and NIOSH, and 

we touched on that just a few moments ago as a possible solution. 
69 

Specifically, you mentioned how a similar process was started in 

the 1990s but ultimately was abandoned. Could you discuss some 

of the reasons why the formal priority process didn’t work and 

what could have been done differently today? 

Dr. SILVERSTEIN. I don’t know that it didn’t work. 

Senator ENZI. Oh. 

Dr. SILVERSTEIN. I indicated in my testimony that it wasn’t followed through on, and I don’t have a full explanation of that. The 

priority planning process was something that I worked on during 

the 2 years that I was Director of Policy for Federal OSHA, and 

after I left, it diminished in its importance and was not followed 

through with. I think there were other competing demands that 

took over. 

One of the challenges for the agency is figuring out how to respond from innumerable demands that are coming from the outside 

continually. And this is where I would agree with Mr. Sarvadi that 

the agencies respond to input and pressure from the outside. And 

it’s really important that that input be balanced, that the agency 

is hearing from all sides. 

This is one of the reasons why union participation has been so 

important. Where unions have been involved, the discussions are 

really full and complete. Where they’re not, OSHA gets a one-sided 

set of demands. 

Senator ENZI. Thank you, and we’ll follow up a little more on 

why that process was abandoned. And, again, I have additional 

questions, but I will submit them in writing, because I have to 

leave. 

The CHAIRMAN. Thank you, Senator Enzi. 

Actually, you answered the question to him that I was going to 

ask you, Mr. Ward, because I haven’t had a chance to ask you any 

questions about having the magic wand. 

But I will close on this. For all the people who are sitting here 

with pictures of their loved ones that they have lost, I just said to 

my staff they’re probably wondering what are they talking about 

up there and all this stuff. Sometimes experts—and I’ll get into the 

fine tuning of all of this which we have to do—rules and stuff. 

But my question to you is—you said things are simple. People 

out there working know what’s safe. But they lose their lives. They 

get severe injuries. But if they know what to do, then why are 

rules—why do you need rules? If they know what to do to be safe, 

why do you need rules? Why even have rules if they know what 

to do? Why don’t the employers just do it? 

Mr. WARD. Well, although we do have many good employers, you 

know, the owner of the company isn’t out there running the project. 

So the foremen, you know, who keep their job by making the boss 

money are the ones that set the tone. They really do set the tone 

for safety. And right now, with the economy and the few jobs available and so many looking for work, there isn’t anybody that I know 

that would speak up on the job about workplace hazards. 

In fact, when we do our OSHA training, now we have to spend 

2 hours on introduction to OSHA, where we explain to them their 

rights in detail. We make them fill out a—well, not make them— 

we have them fill out a complaint, an official OSHA complaint. It’s 
70 

probably the toughest piece to get through in 2 hours because of 

all the chuckles and sarcasms that comes back from the crowd. 

They’re like—there’s no way they’re going to say anything about 

the job, because construction is unique. It really is. It’s simple. If 

somebody wants to get rid of somebody, if they’re complaining 

about something, or for whatever reason, they’ll just lay him off. 

The job slows down, or they’ll say the job slows down, and they just 

lay them off and just don’t call them back. It’s unlike any other industry that I’m aware of. 

The CHAIRMAN. And if I’m not mistaken, one of the top three industries by fatalities is construction. 

Mr. WARD. It is. 

The CHAIRMAN. Transportation, utilities and agriculture being 

the other two. I just wonder if it hasn’t a lot to do with just—you 

know, human nature wants to cut corners. Don’t we all want to cut 

corners? We all try to get through that yellow light, you know? 

Mr. WARD. In some cases, I’m sure. In a lot of cases, masons 

are—they’ve been around for a while, you know. Some of the companies have been around for 60, 70 years, way before OSHA was 

around. And in some cases, they just don’t know. 

The CHAIRMAN. And in some cases, we do know, like the PELs, 

the permissible exposure limits, on these chemicals and stuff—been 

around for a long time. I don’t know why we can’t finally definitively put out a rule on that. It’s just mind-boggling on that. 

Well, any other input that any of you want to put on the record 

right now before I close the hearing? 

Did you, Dr. Silverstein? 

Dr. SILVERSTEIN. Yes. I’m sorry that Senator Enzi left, because 

some memory is coming back to me, some history with regard to 

OSHA’s standards priority process. And so I would just add this 

from my recollection. 

This was all happening in the period from 1993 to 1995. As you’ll 

remember, Congress changed significantly in 1994, and the standards came under intense scrutiny and criticism. The regulatory 

process was under intense criticism after OSHA had begun to develop its priority list. And so it became almost impossible to move 

forward with any priorities. 

The debate became kind of trivialized in some ways. OSHA had 

adopted or was trying to adopt its blood-borne pathogen standard, 

which resulted in protection of healthcare workers from needle 

sticks and protection from HIV and AIDS. But the debate became 

a debate about whether or not OSHA had killed the tooth fairy. 

That dominated the public airwaves for weeks and months at a 

time, and under those circumstances, it became very difficult to 

stick to OSHA’s priority list. 

The CHAIRMAN. Well, my recollection is that during the 1970s, 

1980s, 1990s, every once in a while, that story would pop up about 

how ridiculous OSHA was. I remember out my way, a farmer 

would put a toilet in the middle of the field that said, ‘‘Thanks, 

OSHA,’’ that they had to put toilets in their fields and stuff, which 

was not really true. But, nonetheless, it evoked a lot of pictures 

and a lot of inflammatory types of comments and stuff. 

But there was always something that someone would pick out 

that they thought was a ridiculous rule or—I don’t remember the 
71 

tooth fairy issue, but I do remember others. And then that always 

seemed to then just keep us from really promoting OSHA and promoting this kind of rulemaking, much to the detriment of all the 

people whose pictures we see out here today. 

Well, I thank you all very much. I think this has been a good 

session. 

Mr. Ward, thank you. 

Dr. Silverstein, Ms. Rabinowitz, Mr. Sarvadi, thank you very, 

very much for your testimony and input. 

The record will remain open for 10 days for other submissions. 

With that, the committee will stand adjourned. 

And, again, I want to thank all of the people who came here 

today. I just want you to know your presence has not gone unnoticed. We’ve noticed it, and, believe me, it has an impact on what 

this committee does. And this committee is going to move ahead on 

some OSHA things, I can assure you. 

Thank you. 

[Additional material follows.] 
72 

1 3033 Wilson Blvd., Suite 420, Arlington VA 22201. Contact: John Schweitzer, (703) 525– 

0511. 

ADDITIONAL MATERIAL 

PREPARED STATEMENT OF THE AMERICAN COMPOSITE

MANUFACTURERS ASSOCIATION 1

Chairman Harkin and Ranking Member Enzi, we appreciate the opportunity to 

submit this statement into the record of this important hearing on OSHA rulemaking. 

The American Composites Manufacturers Association is the national trade group 

for the composites industry. Our members companies use combinations of styrene 

polyester thermoset plastic resin, glass and other materials to make underground 

gasoline storage tanks and pollution control equipment, wind turbine blades, modular tub/shower units and bathroom vanities, ballistic panels and armor for military 

vehicles, fiberglass recreational boats, automotive, truck and motorhome components, window lineal and ladder rail, bridge decks and concrete reinforcing bars, 

playground equipment, components for commercial and military aircraft, signs and 

building fascia, and thousands of other composites products, as well as the suppliers 

of raw material to this industry. Our industry is comprised of some 3,000 small- and 

medium-sized companies, many family-owned, employing over 250,000 Americans, 

with facilities in almost every congressional district. 

The title of this hearing suggests a concern that OSHA’s standard-setting process 

takes too long, and that the delay in issuing a standard results in additional injuries, illnesses and deaths that would have been avoided had the rule been issued 

sooner. With respect to the first premise, we agree that OSHA sometimes takes significantly longer than should be necessary to develop and issue a final rule. We respectfully disagree with those who suggest the delays are due to excessive legal requirements governing OSHA’s standard-setting process. We believe those requirements are essential to protect employers, jobs, our economy and our quality of life 

from unreasonably burdensome and unnecessary regulatory mandates. 

The premise that the delay in issuing rules results in a readily quantifiable harm 

to employees that would have been avoided by earlier adoption of the rule may be 

emotionally appealing, but, for many reasons, is overly simplistic. The idea that 

Congress should reduce or eliminate fundamental legal protections that interfere 

with more rapid agency action suggests an ends justify the means approach to the 

issue. Rather than taking away what are recognized as fundamental legal protections for the regulated community, OSHA, with help from NIOSH, needs to streamline the existing rulemaking process so that it is more efficient and makes more effective use of available resources. 

The primary objectives of our statement are to assist the Congress and OSHA in 

identifying factors that lead to unreasonable delays and inefficiencies in the OSHA 

rulemaking process, and measures that would help to streamline the process. However, before proceeding to address those issues, we believe it is important to provide 

the Congress with an additional perspective on the complexity of assessing the potential impacts of a delay in issuing an OSHA standard. 

THE POTENTIAL IMPACTS OF A DELAY IN ISSUING AN OSHA STANDARD

Despite assertions that OSHA has been unable to issue the standards needed to 

protect America’s workers from workplace hazards, BLS statistics demonstrate that 

workplace fatality, injury, and illness rates have been declining steadily during the 

entire period of OSHA’s existence. That includes the more recent period that is the 

focus of the GAO report presented to Congress today and is characterized as one 

with few new standards. Furthermore, statistics have consistently demonstrated 

that, on average, people are more likely to be injured at home than at work. 

Efforts to convert OSHA’s numerical guestimates of the benefits of a rule—in 

terms of injuries, illnesses or deaths that supposedly would be prevented—in a 

quantification of the harm that resulted from the absence of the rule are clearly 

misplaced. As part of the required showing that a proposed rule would result in a 

significant improvement in workplace safety, OSHA guestimates the annualized 

number of injuries, illnesses and/or deaths that would be prevented by adoption of 

the rule, and the courts defer to those estimates. However, there is no statistical 

validity to those numbers and it would be highly inappropriate to assert that those 

guestimated annualized benefits would be ‘‘lost’’ on a day-for-day basis for each day 

of ‘‘delay’’, even if one assumes a static situation. 
73 

2 Appalachian Power Company v. Environmental Protection Agency, 208 F.3d 1015,1020 (D.C. 

Cir. 2000). 

However, the period covered by the development of an OSHA standard is not a 

static situation. During that period, OSHA typically identifies and communicates its 

concerns about the safety of a practice or condition through various means, including OSHA guidance documents, initiation of an OSHA rulemaking and OSHA enforcement actions. When that occurs, employers will respond in a variety of ways 

to address the practice or condition of concern. They do not ignore the issue until 

OSHA adopts final rule. This point is clearly demonstrated by the extensive, ongoing activities at workplaces across the country to address the hazards of combustible 

dust. Employers have been active participants in a massive combustible dust education and outreach effort by OSHA, NFPA and many other organizations. Employers have adopted new engineering measures for new facilities and engaged in massive retrofits of equipment to control ignition sources and reduce dust accumulations. As a general rule, OSHA does not attempt to measure or take these material 

changes in the field into account during the course of a rulemaking because the 

agency understandably prefers to prepare its feasibility and cost analyses based on 

a snapshot or fixed point in time rather than attempting to model a dynamic situation. 

If OSHA was permitted to take shortcuts to rush a rule through the process, we 

can reasonably expect it to lead to the adoption of an overly burdensome and possibly unnecessary rule. That rule would divert limited employer resources away 

from other safety and environmental needs, and quite possibly drive businesses and 

jobs overseas. 

Finally, if OSHA determines that there is a hazard that needs to be addressed 

on an interim basis while a new rule is being developed, or an existing rule is being 

amended, OSHA may turn to enforcement measures based on application of the 

General Duty Clause as well as other existing standards. OSHA has made extensive 

use of the General Duty Clause and existing OSHA standards to address the hazards of combustible dust. 

Extended delays in OSHA rulemakings can and have also imposed significant additional costs on employers. As the period of time over which OSHA develops a rule 

increases, so does the probability that personnel with expertise and institutional 

knowledge in the area of a particular rulemaking will no longer be available. This 

is true for both OSHA and an employer’s in house personnel. For example, in the 

case of OSHA’s Lockout/Tagout Standard, the project officer (lead technical person) 

for that rulemaking, in what is now the Directorate of Standards and Guidance, retired from the agency right after OSHA published the notice of proposed rulemaking. We believe that untimely change in OSHA personnel had a severe adverse 

impact on the utility of the final rule, and that OSHA, employers and employees 

continue to live with and work through the fundamental shortcomings of that rule 

with great frustration and mixed results. 

THE CRITICAL ROLE OF OMB IN THE OSHA RULEMAKING PROCESS

OMB intervention in the OSHA rulemaking process remains crucial to protect the 

employer community from unanticipated and unnecessary regulatory mandates that 

would likely survive a court challenge. It is also important to note that the severe 

implementation problems posed by the Lockout/Tagout Standard probably would 

have been insurmountable if OMB had not intervened during its review of the final 

rule. That intervention resulted in the addition of a critical provision—commonly referred to as the ‘‘minor servicing exemption’’—before the final rule was published 

in the Federal Register. 

Some have asserted that the OSHA rulemaking process is more robust than the 

minimal protections found in the Administrative Procedures Act and, therefore, the 

interests of the regulated community are already adequately protected without OMB 

oversight. That view overlooks several fundamental considerations, the most significant of which is the principle under which the courts defer to an agency’s interpretation of its ambiguous rule, even if the agency intentionally adopted the rule with 

ambiguous language to provide it with the freedom to effectively amend the rule 

without notice and comment rulemaking and to immunize its actions from judicial 

review. 

This unfortunate and inappropriate practice is not unique to OSHA and was explicitly recognized by the U.S. Court of Appeals for the D.C. Circuit: 2

The phenomenon we see in this case is familiar. Congress passes a broadly 

worded statute. The agency follows with regulations containing broad language, 

open-ended phrases, ambiguous standards and the like. Then as years pass, the 
74 

agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more 

detail regarding what its regulations demand of regulated entities. Law is 

made, without notice and comment, without public participation, and without 

publication in the Federal Register or the Code of Federal Regulations. With the 

advent of the Internet, the agency does not need these official publications to 

ensure widespread circulation; it can inform those affected simply by posting its 

new guidance or memoranda or policy statement on its web site. An agency operating in this way gains a large advantage. ‘‘It can issue or amend its real 

rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.’’ Richard J. 

Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L.REV. 59, 

85 (1995). [footnote omitted] The agency may also think there is another advantage-immunizing its lawmaking from judicial review. 

What the D.C. Circuit understandably declined to say was that this unfortunate 

practice is the logical outgrowth of decisions by the U.S. Supreme Court holding 

that the courts should defer to an agency’s reasonable interpretations of its ambiguous rules. OSHA must make a diligent effort to separate itself from this paradigm 

because, as long as OSHA continues to employ that strategy, the regulated community will be understandably reluctant to support the agency’s rulemaking efforts. 

Furthermore, the process and procedural rules followed in the informal OSHA 

rulemaking are hardly what one would describe as robust. It appears that anyone, 

other than a minor, who takes the time to file a minimal notice of intent to appear 

may testify at an informal OSHA rulemaking hearing. On the other hand, an employer that did not recognize its interest in the matter in time to file a notice of 

intent to appear at the hearing is precluded not only from offering testimony or 

cross-examining a witness at the hearing, but, under the applicable OSHA rules, is 

arbitrarily precluded from filing post-hearing comments or post-hearing briefs in the 

proceeding. 

At the hearing, witnesses are permitted to testify as to any matters relevant to 

the proceeding. There is no Daubert gatekeeping function to screen out the testimony of a witness who relies on hearsay anecdotes and lacks the expertise that 

would be required to testify on the subject in a trial court. The amount of time allowed for both direct testimony and cross-examination is limited. Witnesses are not 

placed under oath and are not subject to any sanctions if they evade or decline to 

answer the questions posed to them on cross-examination. 

The official OSHA witnesses testify on the first panel on the first day of the hearings and do not make themselves available for further questioning on the record. 

During that initial OSHA panel testimony, when a question is posed to the OSHA 

witnesses as to how a particular provision will be interpreted by compliance personnel, the OSHA witnesses rarely if ever provide a substantive response. The typical response is along the lines of ‘‘we are still considering that question and would 

appreciate your input on it.’’ There would never be adequate time during the time 

allotted for the OSHA panel at the informal hearing to go through a comprehensive 

discussion and evaluation of the economic impact and technical and economic feasibility issues raised by the proposal. 

When a non-OSHA witness testifies, counsel for OSHA insists on conducting the 

final cross-examination of the witness after cross-examination of the witness by all 

other participants has been completed. That allows OSHA to conduct cross-examination of the witness after hearing all of the other cross examination while precluding 

any other participant from re-crossing the witness to address statements made by 

the witness during the DOL/OSHA cross-examination of the witness. In short, for 

the reasons noted above, and others, it is clear that the regulated community will 

continue to rely on OMB to provide the necessary executive branch oversight and 

relief from inappropriate agency actions. 

RECOMMENDATIONS

We believe that OSHA can substantially improve the efficiency and effectiveness 

of the standards-setting process and urge the agency to carefully consider the following suggestions: 

1. NIOSH Should, Consistent with its Statutory Mandate, Support OSHA 

Rulemaking by Providing OSHA With Both a Balanced Risk Assessment 

and Practical Research on What is Technically and Economically Feasible 

to Enable OSHA to Formulate and Adopt Necessary and Appropriate Occupational Safety and Health Standards in an Efficient Manner. 
75 

Through the OSH Act, ‘‘Congress charged NIOSH with recommending occupational safety and health standards.’’ That means Congress charged NIOSH with recommending ‘‘occupational safety and health standards’’ as that term is used in the 

OSH Act and interpreted by the decisions of the U.S. Supreme Court. The term cannot mean one thing for NIOSH and another for OSHA. For both NIOSH and OSHA, 

this term refers to mandatory control measures that are technically, analytically 

and economically feasible, whether the measure is a standalone PEL, or a PEL in 

a comprehensive substance-specific standard that includes a PEL, an action level 

and the traditional ancillary requirements. 

The process of developing a health standard would be far more cost-effective if 

NIOSH did what it acknowledges was expected of it under the OSH Act—if NIOSH 

recommendations were based on an integrated technical and economic feasibility 

analysis rather than the more theoretical technical feasibility analysis found in its 

traditional criteria documents. Research is not limited to reviewing toxicological 

studies and performing risk assessments. It also includes researching whether recommended control measures are technically and economically feasible. 

For example, in the recently issued draft criteria document on diacetyl, NIOSH 

stated that engineering controls, such as general ventilation or dust collection, are 

feasible, without considering EPA requirements or combustible dust issues. 

In its initial criteria document for hexavalent chromium, NIOSH recommended an 

airborne exposure limit (1 ug/m3, 8-hour TWA) that OSHA found to be technically 

infeasible—impossible for some sectors and requiring an unacceptably high use of 

respiratory protection for others (52 percent of affected employees). In its 2005 posthearing comments in the OSHA chromium rulemaking (Item 9 on pp. 9–10), NIOSH 

did acknowledge the concern that a PEL of 1 ug/m3 would result in excessive use 

of respirators. However, that was very late in the process. Meanwhile, because 

NIOSH made a recommendation based on aspirations rather than a sound feasibility analysis, the business community lived with years of uncertainty that, as a 

practical matter, should have come to an end only in 2009 when the PEL of 5 ug/ 

m3 and AL of 2.5 ug/m3 were upheld by the U.S. Court of Appeals Third Circuit. 

However, in 2008, for reasons that remain unclear, our understanding is that 

NIOSH issued a draft criteria document with a REL of 0.2 ug/m3 based on the same 

risk assessment OSHA had relied on in setting a PEL of 5 ug/m3. We believe 

NIOSH needs to collect and analyze all of the data needed to ensure its recommendations have real world application and are not academic risk assessment exercises that create unrealistic expectations, and needlessly expose the business community and the jobs they create to these kinds of uncertainties. 

What is needed from NIOSH is an integrated technical and economic feasibility 

analysis based on the best available data. Under the current OSHA rulemaking 

process, OSHA, either directly or through a contractor, takes years to collect and 

analyze the minimum amount of data it believes is necessary to support a proposed 

rule. Industry then has only the relatively short time allowed by the rulemaking to 

organize and collect additional data. Agencies cannot expect industry to be continuously collecting and updating data from the time a NIOSH criteria document is 

issued. For example, the NIOSH criteria document on hexavalent chromium was 

issued in 1975 and the NPRM was issued in October of 2004. 

Rather than continuing the current inefficient division of labor, NIOSH could facilitate and manage the operation of stakeholder groups working to prepare prerulemaking documents. The pre-rulemaking process and documents generated from 

it would provide OSHA a head start in promulgating a standard by: 

• Summarizing and incorporating stakeholder-provided data on hazards, exposures, risk assessment and the technical and economic feasibility of various compliance options (rather than theoretical control measures) into its recommendations; 

• summarizing relevant NIOSH-sponsored research or analysis, conducted to fill 

in data gaps on hazards and exposures, identify and characterize compliance options 

(rather than theoretical control measures), and/or evaluate their technical and economic feasibility; 

• identifying points of agreement among stakeholders; and 

• identify points of disagreement that will need to be resolved by OSHA during 

formal rulemaking. 

Pre-rulemaking documents could serve as a resource for employers during the 

time it takes OSHA to promulgate final rules. 

In short, we believe, at a minimum, NIOSH must address technical feasibility in 

a meaningful way that advances the cooperative development of occupational safety 

and health standards rather than suggesting theoretical approaches that create 

false expectations as to what is feasible. We also believe it is critical for NIOSH, 

in cooperation with OSHA and all stakeholders, to effectively address economic fea-
76 

3Dr. Michael Silverstein, in his statement for the hearing, makes the following recommendation: 

The OSH Act directs NIOSH to develop scientific criteria for OSHA rules and to publish such 

criteria annually. In its early years NIOSH developed a substantial number of detailed criteria 

documents with recommendations for new OSHA rules, but OSHA rarely acted on these recommendations and NIOSH stopped producing them. NIOSH should work with OSHA to develop 

new criteria documents that will provide the kind of details on exposures, risks, technological 

and economic feasibility that OSHA needs to support new rules. 

ACMA shares this view. One of the primary reasons OSHA rarely acted on the NIOSH criteria documents is that the documents did not include the ‘‘kind of details on exposures, risks, 

technological and economic feasibility that OSHA needs to support new rules.’’ 

sibility. The examination of technical feasibility independent of economic feasibility 

tends to become an academic exercise that generates impractical if not misleading 

conclusions.3

2. Ensure That OSHA Standards Writers Have Practical, Hands-on Experience With the Hazards to be Addressed and the Industries. 

OSHA has previously recognized the need for its compliance personnel to be 

knowledgeable about the industrial operations they are inspecting and the application of OSHA standards to those operations. We believe the same considerations are 

even more significant when one person or a mall group of OSHA professionals are 

developing a standard that will apply to as many as 60 million workers at 5 to 8 

million worksites across the United States. 

OSHA standards writers (developers) currently place too much reliance on surveys and site visits by its outside contractors. The OSHA standards writers need 

to go on more site visits and educate themselves to the point where they can understand and appreciate how the proposed rule would be implemented, the impact it 

would have on affected operations, whether it is feasible and practical, whether it 

would achieve the desired results, and whether it would provide the most cost-effective approach for controlling the hazard (‘‘the Critical Assessments’’). Every standards writer should have field experience as a compliance officer. If a standards writer does not have that field experience, the standards writer should be required to 

accompany one or more compliance officers on an appropriate number and type of 

inspections until the person develops sufficient knowledge to perform the Critical 

Assessments. 

The rulemaking process contemplated by the OSH Act and the APA provides 

OSHA with an opportunity to educate itself fully on the matter it proposes to regulate and to obtain the best reasonably obtainable information needed to fully address the applicable legal criteria. Instead, it appears that OSHA typically settles 

for the minimally required ‘‘best available information’’ that it believes would be 

adequate to satisfy its legal obligations. We recognize that OSHA does not have unlimited funds to conduct studies, research and surveys. On the other hand, OSHA 

can be penny-wise and pound-foolish in limiting the number and scope of employer 

surveys and site visits (subject to OMB approval under the Paperwork Reduction 

Act) to the point where OSHA does not obtain the information needed to understand 

the adverse impacts of the proposed rule and proceed with an alternative and far 

more cost-effective approach. 

3. Ensure Effective Involvement and Coordination Between the OSHA 

Standards Writers and the Directorate of Enforcement Programs. 

Unfortunately, the Directorate of Standards and Guidance (DSG) develops and 

promulgates a standard with very limited and clearly inadequate involvement of the 

Directorate of Enforcement Programs (DEP) in developing the rule. DSG then turns 

the completed standard over to the DEP, and DEP develops a compliance directive 

for its inspectors to clarify, fill in the gaps and more fully complete the rulemaking. 

If that was not the case, there would be far less need for substantive interpretations 

of the new rule in subsequent filed directives and letters of interpretation. One or 

more professionals from DEP should be assigned to the project team for every 

OSHA rulemaking and, during the informal hearing, should be prepared to answer 

substantive questions on how the agency intended to interpret the provisions of the 

rule at the time they were drafted and whether there is any change in the agency’s 

thinking. 

DSG can and should more effectively utilize the knowledge and experience of 

OSHA compliance officers in assessing the practicality, feasibility and expected impact of a draft proposed rule. OSHA conducts approximately 40,000 inspections per 

year and should establish a protocol that would allow OSHA to take advantage of 

the opportunity to have its field personnel gather information and perform appropriate surveys and research during those inspections with the understanding that 

this aspect of the visit would be treated as a consultation visit. The employer would 
77 

4 Appalachian Power Company v. Environmental Protection Agency, 208 F.3d 1015,1020 (D.C. 

Cir. 2000). 

be required to abate any serious violations identified by OSHA during this consultation visit, but would not be subject to any enforcement action unless it failed to 

abate the violation within a reasonable time. 

4. Ensure Effective Involvement and Coordination Between the Directorate of Standards and Guidance and the Directorate of Construction. 

We recognize that there are major distinctions between most General Industry activities and most Construction activities and support the decision to maintain a separate Directorate of Construction. That being said, we believe the Directorate of 

Standards and Guidance (DSG) and the Directorate of Construction should have either joint or concurrent rulemakings whenever there is a hazard addressed by both 

directorates. Otherwise, there will be many situations (1) where it is unclear whether the General Industry or Construction rule applies, or (2) where both the General 

Industry and Construction rule will apply at the same time, depending on the specific task or employer involved, and they will have different requirements. In many 

cases, the hazards presented by construction work are identical to the hazards presented by General Industry maintenance work and the affected parties (i.e., employers, employees, and OSHA) are left to make an often arbitrary decision as to which 

rules apply. The pending OSHA rulemakings on fall protection in General Industry 

and confined spaces in construction illustrate these concerns. We congratulate 

OSHA for holding the concurrent pending rulemakings on electric power generation 

in General Industry and Construction in an effort to avoid these concerns. 

5. OSHA Should Make a Diligent Effort to Separate Itself from the Rulemaking Paradigm Described in Appalachian Power Company.4

Rather than ducking the hard issues and intentionally drafting an ambiguous rule 

with the expectation that the courts will later defer to the agency’s interpretation 

of that ambiguous rule, OSHA should have the courage to either explicitly resolve 

those issues or acknowledge that they are not addressed by the rule. 

RESPONSE TO QUESTIONS OF SENATOR HARKIN AND SENATOR ENZI BY MICHAEL

SILVERSTEIN, M.D., MPH 

DEAR SENATORS: Below are my responses to questions sent after the April 19, 

2012 hearing entitled: ‘‘Time Takes its Toll: Delays in OSHA’s Standard-Setting 

Process and the Impact On Worker Safety.’’ 

Question 1. What quantifiable costs are passed on to society when a worker gets 

hurt? 

Answer 1. In addition to worker compensation costs (medical bills, vocational rehabilitation, partial wage replacement, legal costs, pensions, and program administration) the quantifiable costs include the following: medical and disability costs 

above those covered by worker compensation; lifetime loss of earnings related to loss 

of function, skills and seniority; recruitment, training, wage and benefit costs for replacement workers; reduced productivity, product quality and profits; medical and 

wage loss costs for unreported work-related injuries and illnesses. Estimates for the 

ratio of indirect to direct costs range from 1:1 to more than 6:1. The most recent 

study (Leigh, see below) estimates total annual costs of $250 billion with $183 billion of this due to indirect costs such as those listed above, or an indirect to direct 

cost ratio of 2.7:1. The two best sources for more detailed information about these 

costs are: 

• Cost-Benefit Analysis of the Ergonomics Standard, Washington State Department of Labor and Industries, May 2000. Available at http://www.lni.wa.gov/Safety/Topics/Ergonomics/History/Documents/cba.asp. 

• Leigh, JP. Economic Burden of Occupational Injury and Illness in the United 

States. Milbank Quarterly, 89(4):728–772. 2011. 

Question 2. Why are States sometimes able to act more efficiently than Federal 

OSHA? 

Answer 2. There are at least three reasons. First, a few States address workplace 

safety and health as a constitutional right. Where this is the case there is a more 

forceful argument for equity for all workers. For example, this provided an effective 

argument for extending basic safety and health protections to agricultural workers 

in Washington State, something OSHA has been unable to accomplish. Second, the 

relationships among agency regulators, legislators and major stakeholders in the 

business and labor communities are generally better at the State than the Federal 
78 

1 Shapiro I. & Irons J. 2011. Regulation, Employment and the Economy: Fears of Job Loss 

are Overblown, Economic Policy Institute, Washington, DC. 2Levine D., Toffel M., Johnson M. Randomized government safety inspections reduce worker 

injuries with no detectable job loss. Science. 336, 907–11. 2012. 

level. While this is by no means always true there have been numerous examples 

where the State parties have been able to work through their differences to reach 

mutually agreeable decisions in a timely way. Third, under the OSHAct there is a 

requirement that State programs extend all their protections to public employees 

who are excluded in States where OSHA retains jurisdiction. 

Question 3. Do you agree that Federal OSHA is still vitally important even though 

there are effective State agencies out there? 

Answer 3. Yes, for two reasons. First, Federal jurisdiction is the only way to insure that workers in all States who are exposed to similar risks receive equal protection under the law. While not perfect, the current requirement that OSHA determine whether State regulations and enforcement are ‘‘at least as effective as’’ 

OSHA’s provides authority for the Federal Government to hold all States to a common minimum. However, at the present time workers in some States get better protection than workers in others because their State program has acted where OSHA 

has been silent. Equal protection would require that when one State takes the lead 

OSHA steps in to expand protections nationwide. Second, while a few States have 

resources adequate for independent rulemaking at the State level most States find 

this impossible to do and rely on OSHA for rulemaking that can be simply copied 

at the State level. 

Question 4. Is there any data on the number of injuries, illnesses, and fatalities 

that could be prevented with a more expeditious standard setting process? 

Answer 4. I am unaware of any recent studies that have estimated this in a comprehensive manner. However, each time OSHA has developed a proposed rule it has 

estimated the numbers of injuries and illnesses that would be prevented and in 

some cases OSHA has done look-back studies to demonstrate actual prevention 

numbers. My full written testimony provides examples for silica and lockout/tagout 

and I will not repeat these here. The greatest opportunity for more injury reduction 

is in the area of work-related musculoskeletal disorders (WMSDs) that make up 30 

to 40 percent of all reportable workplace injuries and illnesses and nearly 50 percent of worker compensation costs. The cost-benefit analysis for the Washington 

State ergonomics rule (that was eventually repeated in a voter initiative) estimated 

that the rule would have prevented 40 percent of WMSD injuries and 50 percent 

of WMSD costs. 

Question 5. How can injury and illness prevention programs improve OSHA’s responsiveness to workplace hazards? 

Answer 5. OSHA’s current regulatory paradigm is very inefficient, being limited 

to a small number of hazard specific rules supplemented by the ‘‘general duty 

clause’’ which in principle covers all other recognized hazards. However OSHA must 

justify each general duty citation with affirmative evidence that the hazard is ‘‘recognized’’ and that there is a feasible means of control. This essentially requires a 

fresh regulatory analysis for every general duty citation, a burden on the agency 

that renders this tool unworkable except in the most extreme circumstances. If, on 

the other hand, there was an OSHA rule requiring each employer to identify hazards and establish an injury and illness prevention program to address these hazards, the burden of proof would lie with the employer to justify why it was not implementing its own program. 

Question 6. Is there, in fact, any solid evidence that responsible safety and health 

regulation costs jobs? 

Answer 6. I am not aware of any such evidence. To the contrary a recent review 

for the Economic Policy Institute found a moderate association between regulation 

and job creation.1 Moreover, an important new study in the prestigious journal 

Science found that the enforcement of OSHA regulations not only resulted in reduced worker injuries but also did so with ‘‘no evidence that these improvements 

came at the expense of employment, sales, credit ratings, or firm survival.’’ 2

Question 7. What action do you recommend to Congress to improve the OSHA 

standard setting process? 

Answer 7. Require that OSHA periodically update its rules to bring them in line 

with generally accepted consensus standards such as the ACGIH threshold limit 

values, with reduced requirements for significant risk and feasibility analysis. Di-
79 

rect OSHA to adopt specific rules within a set time limit, such as rules for combustible dust, safe patient handling, silica and injury/illness prevention programs. Establish the presumption that NIOSH recommended exposure limits will become 

OSHA requirements unless OSHA has a defensible reason for not doing so. Extend 

applicability for all OSHA rules to all public employees. 

Question 8. What are the most important things that OSHA can do to expedite 

standard setting in the absence of legislative changes? 

Answer 8. Establish a short regulatory priority list, engage NIOSH’s assistance, 

and then adhere to a fixed timetable for completion. This may not be possible without the cooperation of OMB. 

Question 9. Are there any new Executive orders or modifications of existing Executive orders that you believe would improve OSHA’s rulemaking process? 

Answer 9. Exempt OSHA from the requirements of Executive Order 12866, based 

on the adequacy and robustness of the existing OSHA rulemaking process. 

Question 10. Should Congress require that OSHA periodically update Permissible 

Exposure Limits? 

Answer 10. Yes, see #7 above. 

Question 11. How should OSHA use national consensus standards to update exposure limits? 

Answer 11. See #7 above. 

Question 12. Should OSHA have the ability to update standards en masse or must 

they do so one at a time? 

Answer 12. See #7 above. 

Question 13. Should Congress set a deadline for OSHA to issue a new silica standard? Are there any other hazards in which Congress should intervene and mandate 

OSHA action? 

Answer 13. Yes, see #7 above. 

RESPONSE TO QUESTIONS OF SENATOR HARKIN AND SENATOR ENZI

BY RANDY RABINOWITZ

OMB WATCH, 

WASHINGTON, DC 20009, 

May 25, 2012. 

Hon. TOM HARKIN, Chairman, 

Health, Education, Labor, and Pensions Committee, 

U.S. Senate, 

Washington, DC 20515. 

DEAR SENATOR HARKIN: My responses to questions sent to me after the April 19, 

2012 hearing entitled: ‘‘Time Takes its Toll: Delays in OSHA’s Standard-Setting 

Process and the Impact On Worker Safety’’ are included with this letter. I have 

grouped my responses to questions from Senator Harkin separate from my responses to questions from Senator Enzi. 

If you have any further questions, please feel free to contact me. 

Very truly yours, 

RANDY RABINOWITZ, 

Director of Regulatory Policy. 

SENATOR HARKIN

Question 1. Success of earlier OSHA standards. 

Answer 1. Dr. Silverstein’s testimony describes the health benefits of several early 

OSHA health and safety standards, from those reducing lead exposure to those 

mandating lockout/tagout of energized equipment. In a 1995 study, ‘‘Gauging Control Technology and Regulatory Impacts in Occupational Safety and Health,’’ the 

now-defunct Congressional Office of Technology Assessment conducted retrospective 

case studies for eight past OSHA rulemakings—five involving health standards and 

three involving safety standards. The cost estimates for OSHA’s 1974 vinyl chloride 

standard considered during rulemaking exceeded $1 billion, but a survey of the polyvinyl chloride production industry conducted after the standard went into effect concluded that the actual compliance costs were in the $228–$278 million range. 

OSHA’s final cost estimate for its 1978 cotton dust standard projected annual com-
80 

1See Mark Seidenfeld, A Table of Requirements for Federal Administrative Rulemaking, 27 

Fla. St. L. Rev. 533 (2000), available at http://www.law.fsu.edu/journal/lawreview/downloads/ 

272/Seid.pdf. 

pliance costs of $283 million, but OTA concluded that actual costs amounted to only 

about $82.8 million per year because as a result of the standard the textile industry 

modernized and productivity at its plants improved. OSHA estimated in the early 

1980s that its occupational lead exposure standard would cost the industry $125 

million, but actual costs as assessed retrospectively by OTA amounted to only 

around $20 million. Similarly, OSHA estimated in 1987 that its formaldehyde 

standard would impose $11.4 million in costs on the industry, but actual costs were 

only $6.0 million, in part because the industry moved rapidly to substitute low-formaldehyde resins. In each of these instances, OSHA achieved significant health benefits at a fraction of the predicted cost. 

Question 2. Public input into OSHA rulemaking. 

Answer 2. OSHA rulemaking affords stakeholders, and particularly business, 

many opportunities to voice their support or opposition to any standard the agency 

is considering. Informally, OSHA often consults with interested parties in deciding 

whether a hazard should be the subject of regulation and sometimes holds public 

meetings or Web chats to get input from interested parties. For construction regulations, OSHA is required to consult with the Advisory Committee on Construction 

Safety and Health. Often, OSHA will publish a Request for Information or Advanced 

Notice of Proposed Rulemaking to obtain stakeholder input on regulatory issues before moving forward with a proposal. When OSHA prepares an assessment of a hazard’s risks, OMB requires that it seek peer review of its scientific assessment. For 

significant regulations, OSHA must convene a small business review panel and respond to its concerns before publishing a proposed rule. And, OSHA must seek 

OIRA review of any proposed rule under Executive Order 12866. OIRA logs make 

clear that the review process presents an opportunity—more often for opponents of 

rules than supporters—to urge OIRA to insist on changes. Most of these procedures, 

with the exception of SBREFA panels and review by the Construction Advisory 

Committee are not mandated by statute. 

Once OSHA publishes a proposed rule, the OSH Act requires that it provide at 

least 30 days for public comment, although in practice OSHA always allows more 

time for comment. If any party asks for a public hearing during the comment period, 

the OSH Act requires that OSHA hold one. OSHA regulations provide that during 

the hearing, an ALJ presides and any party may present testimony or question witnesses. By practice, OSHA provides a period for post-hearing comment and a separate period for post-hearing arguments. After the rulemaking record closes, but before a final rule is published, OSHA must again seek review of its rule by OIRA 

under Executive Order 12866. OIRA review usually offers industry, but not labor, 

yet another opportunity to comment on the rule. 

OSHA’s final rule must be accompanied by a statement of reasons for the rule. 

The statement of reasons, or preamble, must demonstrate that OSHA’s standard addresses a significant risk of material impairment in the workplace, the standard 

would reduce or eliminate that significant risk, and is both technologically and economically feasible for industry to implement. OSHA must respond to all significant 

comments and objections to its rule. Any party may seek judicial review of an OSHA 

standard. Courts will vacate a standard if OSHA has not adequately explained its 

rationale or demonstrated that substantial evidence in the rulemaking record supports its conclusions. 

Question 3. Regulatory reform proposals would further delay OSHA rulemaking. 

Answer 3. Unfortunately, recent regulatory reform proposals would make the 

OSHA standard-setting process more burdensome. Four separate regulatory reform 

proposals are pending in the Senate: the Regulatory Accountability Act (S. 1606), the 

Regulations from the Executive in Need of Scrutiny (REINS) Act (S. 299), the Regulatory Flexibility Improvements Act (S. 1938), and the Regulatory Time-Out Act 

(S. 1538). These bills, and others like them, would change the regulatory process in 

different ways but would have the same ultimate result: more delay, fewer standards to protect workers, and more illness and injury among exposed workers. 

Regulatory Accountability Act (S. 1606) 

The Regulatory Accountability Act (RAA) is a breathtakingly broad bill that would 

fundamentally rewrite the Administrative Procedure Act (APA). Currently, there are 

more than 110 separate procedural requirements in the rulemaking process 1; the 

RAA would add more than 60 new procedural and analytical steps. Commentators 
81 

2Testimony of Sidney A. Shapiro, University Distinguished Chair of Law, Wake Forest School 

of Law, at Hearing on H.R. 3010, The Regulatory Accountability Act of 2011, before the H. 

Comm. on the Judiciary, 112th Cong. 4 (Oct. 25, 2011) at 6. 

have estimated that the RAA would add at least 21 to 39 months to the rulemaking 

process for the most important rules, meaning that the average OSHA rulemaking would take more than 12 years to complete—potentially spanning four 

different presidential administrations.2

OSHA rulemaking already includes a process that gives participants many opportunities to present their views and to challenge those with opposing views. It does 

so in an open process. The RAA would supplant these proven procedures with a 

more adversarial process. It would mandate cost-benefit analysis, overturning the 

Supreme Court’s ruling in the Cotton Dust case. It would require that OSHA always 

use the lowest cost rule, leaving workers with less protection, probably nothing more 

than a dust mask to protect themselves from known carcinogens. Further, it authorizes the courts to disrupt the rulemaking process before it has been completed. Each 

of these changes would complicate rather than simplify rulemaking, and delay worker protections. 

Regulations From the Executive in Need of Scrutiny (S. 299) 

The Regulations from the Executive in Need of Scrutiny, or REINS Act, would reinsert Congress into the rulemaking process by requiring that both houses of Congress approve each major rule, with no alterations, within a 70-day window. If either chamber fails to approve the rule, it will not take effect and cannot be reconsidered until the next congressional session. Given the polarized character of Congress 

today, this law is a recipe for a freeze on new rules. 

Such an affirmative approval requirement would turn the current process upside 

down. Congress already has substantial power to influence agency rulemaking: 

through its oversight power; through the appropriations process; and under the Congressional Review Act of 1996. There is no reason to require an affirmative vote of 

Congress before a rule takes effect. 

The REINS Act would waste agency resources. For example, it took OSHA more 

than 10 years to publish a standard regulating the operation of cranes and derricks 

at construction sites, even though both industry and unions agreed a standard was 

needed. If the REINS Act became law, inaction by Congress would block the rule 

from going into effect, wasting the significant resources OSHA had invested in developing the rule. 

Regulatory Flexibility Improvements Act (S. 1938) 

The Regulatory Flexibility Improvements Act would expand a range of rules covered by the Regulatory Flexibility Act to include those that have a reasonably foreseeable indirect effect on small businesses; establish more onerous requirements for 

the initial and final regulatory flexibility analyses, including an estimate of cumulative impacts on small businesses; allow the Chief Counsel for Advocacy of the 

Small Business Administration to issue rules to govern Federal agencies’ rulemaking procedures; and establish a more onerous requirement for the notice that 

Federal agencies must give the Small Business Administration prior to publishing 

a proposed rule. 

OSHA is already required to analyze the impacts of its standards on small business, consult with small business owners and the SBA about those impacts, and 

make changes to its rules where appropriate to minimize those impacts. Additional 

analysis of small business impact duplicates the requirements in existing law. 

Workers in small businesses face the same hazards as those in larger business. This 

bill would do little to protect workers in small businesses or to help their employers 

reduce such hazards. Moreover, it concentrates enormous power in the hands of one 

appointed official in the Office of Advocacy, while the OSHA hearing process gathers 

information from a host of small business owners from all over the country. 

Regulatory Time-Out Act (S. 1538) 

The Regulatory Time-Out Act, which would prohibit agencies from issuing most 

significant regulations for a year, is one of several bills which would prohibit new 

rules. These laws would simply keep Federal agencies from carrying out their legally defined missions of protecting the health and safety of the American people. 

When Congress passed the OSH Act in 1970, it promised workers that OSHA 

would protect them from workplace hazards. Too many chemicals and other hazards 

remain unregulated. The Environmental Protection Agency has listed more than 

62,000 chemicals in its Toxic Substance Control Act Chemical Substance Inventory, 
82 

3Occupational Safety and Health Administration, ‘‘Hazardous and Toxic Substances,’’ http:// 

www.osha.gov/SLTC/hazardoustoxicsubstances/index.html (last visited Apr. 16, 2012). 4 Isaac Shapiro & John Irons, Regulation, Employment and the Economy: Fears of Job Loss 

are Overblown, Economic Policy Institute (2011). 5Letter from Richard Williams, Ph.D., Dir. of Policy Research, Mercatus Ctr, to Darrell Issa, 

Chairman, H. Comm. on Oversight & Gov’t Reform (Jan. 5, 2011) (on file with author); Testimony of Jerry Ellig, Regulatory Analysis: Understanding Regulation’s Effects, before the H. 

Comm. on Oversight & Gov’t Reform (Feb. 10, 2011). 

but OSHA regulates worker exposures to only 400 of them.3 Too many of OSHA’s 

existing standards are based on outdated science. They need to be upgraded to reflect current scientific and medical research. The current rulemaking process makes 

this impossible. 

Question 4. No evidence shows OSHA standards reduces employment. 

Answer 4. A comprehensive review of the relationship between industry regulations and job growth within those industries conducted by the Economic Policy Institute found that most regulations result in modest job growth.4 Even researchers at 

the Mercatus Center, a conservative regulatory policy center, acknowledged in written comments to House Oversight and Government Reform Committee Chair Darrell Issa, and in testimony to that committee, that there is little evidence that at 

a macro level, regulations have caused massive job loss in the United States.5 There 

is no evidence that occupational safety and health regulations issued by OSHA have 

cost America jobs. 

Question 5. Recommendations for change. 

Answer 5. I agree with the recommendations made by Dr. Silverstein. 

SENATOR ENZI

Question 1. Prior consulting work. 

Answer 1. Below is a list of the State and Federal agencies for whom I have 

worked as a consultant during the past 10 years. This list is based on my recollection of projects and dates because I no longer have supporting documentation to 

verify the dates for these projects. None of the consulting work involved OSHA 

standards discussed at the hearing on April 19, 2012. 

• 2000–2002—Consultant to Washington State Department of Labor & Industries 

• 2005–2006—Consultant to the Secretariat on Labor Cooperation 

• 2006—Consultant to Washington State Department of Ecology 

• 2009–2010—Consultant to Ruth Ruttenberg & Associates which had a contract 

with Michigan Department of Energy, Labor, and Economic Growth 

• 2010—Consultant to Project Enhancement Corp. which had a contract with 

OSHA 

• 2010–2012—Consultant to URS which has a contract with HHS 

Question 2. Requests for OIRA meetings. 

Answer 2. I began my employment as Director of Regulatory Policy at OMB 

Watch on March 16, 2012. In that capacity, I have not requested a meeting with 

OIRA. 

Question 3. Setting OSHA priorities. 

Answer 3. It is true that when OSHA’s leadership decides to prioritize a hazard 

specific rulemaking, the process moves more quickly than would usually be the case. 

As I said during the hearing, I believe the standard-setting process would be improved by requiring OSHA to set a series of rulemaking priorities and to see those 

priority rulemakings through to a conclusion. Shifting regulatory priorities is one 

of many causes of delay in OSHA rulemaking. 

The ergonomics example does not suggest, however, that setting regulatory priorities more effectively will eliminate delay. In the case of ergonomics, OSHA was able 

to move from proposed rule to final rule in just over 1 year because it had invested 

substantial efforts into preparing for rulemaking long before the proposed rule was 

published. In reality, the rulemaking effort had begun before 1995. Requirements 

for regulatory analysis imposed by Executive Order 12866, the Regulatory Flexibility Act, and the Small Business Regulatory Enforcement Fairness Act mean that 

it is, as a practical matter, impossible to complete a hazard specific OSHA rulemaking in 1 year. Further, by shifting, as you describe it, ‘‘50 staffers from other 

projects,’’ OSHA was unable to move other standard-setting projects forward while 

debating ergonomics. 
83 

RESPONSE TO QUESTIONS OF SENATOR ENZI BY DAVID SARVADI

Question 1. I am impressed by your long career in workplace safety, including 

working as a certified industrial hygienist safety consultant to many companies and 

now teaching OSHA compliance seminars. During your career have you had the opportunity to observe both unionized and non-unionized worksites? Have you noted 

any difference in safety observance between the two? 

Answer 1. Overall, my experience is that the level of compliance with safety requirements is independent of whether the workers at a site are represented by a 

union. I have seen both excellent and poor safety-related practices in both environments. Unfortunately, the presence of a union sometimes leads to what I view as 

misuse of the workplace safety process. I’ve had both management and union safety 

representatives in my classes complain about the use of the grievance process to 

shield union members from discipline for safety infractions, and the use of safety 

rules to slow down production and harass employers with OSHA complaints during 

periods of labor disputes. Indeed, one critical piece of information to know in an 

OSHA inspection is whether there is an ongoing labor dispute. 

On the other hand, I have seen less stringent adherence to safety practices in 

some non-union environments. In both cases, these seem to be the exception rather 

than the rule, and I view with skepticism published papers and comments suggesting that having a union results in greater compliance or necessarily a safer 

workplace. Of the papers I have reviewed, the authors do not take into account all 

of the variables that play into safety performance or compliance, and they typically 

overstate the role of having a union. 

Question 2. You mention in your testimony, and the rest of the panelists seem 

to agree, that involving stakeholders earlier in the rulemaking process is going to 

be beneficial for the standard setting process. You suggest that this sort of input 

needs to be done long before a proposed rule is drafted, because once the Notice of 

Proposed Rulemaking (NPRM) is released that new standard is largely going to reflect that. When do you think is the appropriate time for OSHA and other Federal 

agencies to begin speaking with stakeholders? 

Answer 2. I think it should be done informally from the earliest possible moment, 

and should continue up to the time that the proposal is formally published as a Notice of Proposed Rulemaking (NPRM). 

I also think that every rule with a meaningful economic impact or compliance burden should go through the SBREFA process and, while limiting the official panel 

participation to SERs, OSHA should make public all documents provided to the 

panel, accept comments from all interested parties, and make those comments part 

of the official record. The ex parte rules really don’t go into effect until the proposal 

is published, and an open door policy as well as a policy of reaching out to different 

affected groups up to the point where the ex parte rules become effective (when the 

NPRM is published) should be the norm. With organized labor representing only 

about 7 percent of the private sector workforce, I think OSHA should be making 

a more concerted effort to reach employees who are not in organized workplaces. 

Most importantly, OSHA should not conduct the peer review of the draft risk assessment or the economic and technical feasibility documents in secret. By comparison, EPA puts its preliminary drafts out for public input, and holds public meetings 

with its peer review panels, at which interested parties are encouraged to submit 

data and make presentations, with open discussion between the scientists on the 

panels and the interested parties. EPA does conduct some sessions in private, but 

much, perhaps most, of the review is done in public. OSHA (under John Henshaw) 

initially announced its intention to proceed in that fashion with respect to crystalline silica, but reversed course without any explanation. OSHA’s practice of not 

releasing the risk assessment and other critical documents until it issues the NPRM 

undermines the legitimacy of the rulemaking process and runs counter to commitments made by the administration to have an open and transparent rulemaking 

process that provides an adequate opportunity for public comment. 

I mentioned in my testimony that OSHA could engage in a more effective way 

with the interested parties through the trade associations and professional societies 

that bring those interested parties together on a regular basis. Frequent discussions 

in groups of 10–15 people facilitates the kind of information transfer and understanding that I think would smooth the process. It shouldn’t always be a meeting 

with all interests represented. Having only one interest group represented in the 

room will often make for a more candid and flexible discussion, as it is not always 

possible to concede a position with one’s opponents in the room. OSHA would do 

well to consider how arbitration and negotiated settlements through intermediaries 

can facilitate reaching agreement, in contrast to the more common process of having 
84 

all parties present at all meetings. If OSHA meets with one side of an issue and 

feels it needs the views of the other side, it can always arrange a similar meeting 

to get that input. 

In addition, the current conflict of interest rules often prevent the very people who 

have the most knowledge and experience with a particular subject from informing 

OSHA and other agencies on that subject during the time period when it would be 

most effective—simply because they are employed by employers who would be affected by a new or revised rule. This is short-sighted. Having such people participate in the entire conversation will assure that all relevant information is considered on a timely basis. Delaying their participation until after the risk assessments 

and other analyses are completed and made public places them in the enormously 

unfair position of having to overcome the bias that the people involved in making 

the decisions have in defending their work. Moreover, everyone involved in the process will know of the participant’s relationship to the company and financial interest 

in the issue, and his or her opinion and comments will be judged in that light. The 

alternative is to disregard an important and often critical source of information, experience, and often, judgment. 

Finally, the others on the panel mentioned closer cooperation with NIOSH. That 

would help if NIOSH did its analysis on the same basis as OSHA is required to do 

so. Currently, it is our understanding that NIOSH does not take into account economic or technical feasibility in its Recommended Exposure Limits (REL). That 

means, in my view, that the RELs are not very helpful when OSHA is required to 

do so. NIOSH has technical expertise in its Engineering Branch, among other 

branches, and is tasked with reviewing and developing technological advances in 

workplace hazard control. Shouldn’t NIOSH’s experts take practicality into account 

as well? 

Question 3. Can you in general terms, describe the process in obtaining a meeting 

with the Office of Information and Regulatory Affairs (OIRA)? 

Answer 3. These meetings are held by OIRA in connection with its pre-publication 

review of proposed or final rules under the Executive Order 12866. Once a rule is 

under review by OIRA (either proposed or final), Administrator Cass Sunstein has 

said that any meeting request will be granted. The process involves contacting the 

person at OIRA who is responsible for the topic in question and requesting that a 

meeting be scheduled. For these meetings, OSHA (or the relevant agency) is invited, 

and at the ones I have attended, they have been well represented. Since meeting 

requesters do not know the substance of what has been submitted for review, the 

format is usually to go over information previously provided, with the opportunity 

to emphasize and clarify in response to questions the positions and information 

being provided. Indeed, at one meeting, we discussed OSHA’s economic impact analysis, and I was able to demonstrate that even a cursory assessment by someone 

with real world experience would come up with a practical calculation that was far 

different from OSHA’s assessment. Cass Sunstein has said that he welcomes the 

input from those affected by regulations during these meetings so that his office has 

a clear understanding of the rule they are reviewing. 

COALITION FOR WORKPLACE SAFETY (CWS), 

APRIL 19, 2012. 

Hon. TOM HARKIN, Chairman, 

Hon. MICHAEL B. ENZI, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

SD–428 Dirksen Senate Office Building, 

U.S. Senate, 

Washington, DC 20510. 

DEAR CHAIRMAN HARKIN AND RANKING MEMBER ENZI: The Coalition for Workplace Safety (CWS), a broad coalition comprised of associations and employers dedicated to improving workplace safety through cooperation, respectfully submits this 

letter in response to today’s hearing titled, ‘‘Time Takes Its Toll: Delays in OSHA’s 

Standard-Setting Process and the Impact on Worker Safety.’’ 

The Occupational Safety and Health Administration (OSHA) has been criticized 

as unable to proceed quickly enough to implement its regulatory priorities due to 

the various requirements it must satisfy to issue new standards. The premise underlying this criticism is that this inability to issue more standards has somehow 

meant employees are less safe. Yet, during this period when OSHA has issued few 

new standards, workplace fatalities, injuries and illnesses have declined steadily to 

their lowest recorded levels. 
85 

We believe these criticisms are misguided. These critics fail to understand that 

the steps in OSHA’s rulemaking process exist for a reason. Congress recognized that 

without first examining feasibility, economic impact, and small business impact, 

among other factors, OSHA would risk pushing out poorly designed and badly supported standards and that consequently such standards would not provide appropriate guidance to employers to assist them in protecting their employees from the 

designated hazards. 

Employers and OSHA agree that workers need adequate safety and health protections on the job. CWS believes this can be best achieved by making agency standards as practical, science and data driven, cost-effective and performance-oriented 

as possible. We understand and value the importance of common sense policymaking based on sound scientific evidence, with meaningful attention paid to economic analyses and practical input from stakeholders. In addition, proper consideration must be given to potential conflict with other requirements outside OSHA’s 

purview, such as environmental or transportation regulations. 

Our members are committed to providing safe workplaces and striving to improve 

safety in their workplaces. Ultimately, everyone benefits when agencies work with 

the industries they regulate to identify and achieve mutual goals. CWS stands ready 

to work with OSHA and Congress to pursue policies that will help improve workplace safety. 

Sincerely, 

American Bakers Association; American Composites Manufacturers Association; 

American Feed Industry Association; American Foundry Society; American Hotel & 

Lodging Association; American Iron and Steel Institute; Associated General Contractors; Associated Builders and Contractors; Associated Wire Rope Fabricators; 

Brick Industry Association; Corn Refiners Association; Food Marketing Institute; 

Forging Industry Association; Heating, Air-Conditioning & Refrigeration Distributors International; Independent Electrical Contractors; Industrial Fasteners Institute; Industrial Minerals Association—North America; IPC—Association Connecting 

Electronics Industries; Leading Age; Motor & Equipment Manufacturers Association; National Association for Surface Finishing; National Association of Chemical 

Distributors; National Association of Convenience Stores; National Association of 

Home Builders; National Association of Manufacturers; National Association of 

Wholesaler-Distributors; National Cotton Council; National Cotton Ginners Association; National Council of Textile Organizations; National Federation of Independent 

Business; National Grain and Feed Association National Marine Manufacturers Association; National Oilseed Processors Association; National Roofing Contractors Association; Non-Ferrous Founders’ Society; North American Die Casting Association; 

Printing Industries of America; Retail Industry Leaders Association; Shipbuilders 

Council of America; Textile Rental Service Association; Tree Care Industry Association; U.S. Chamber of Commerce. 

RAND CORPORATION, 

ARLINGTON, VA, 

April 27, 2012. 

Hon. TOM HARKIN, Chairman, 

Hon. MICHAEL B. ENZI, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

428 Senate Dirksen Office Building, 

Washington, DC 20510. 

DEAR CHAIRMAN HARKIN AND RANKING MEMBER ENZI: I am writing today to correct a statement made at the Committee on Health, Education, Labor, and Pensions 

recent April 19 hearing, Time Takes Its Toll: Delays in OSHA’s Standard-Setting 

Process and the Impact on Worker Safety. 

David Sarvadi, Partner at Keller and Heckman LLP in Washington, DC, was a 

witness in the hearing’s second panel on behalf of the U.S. Chamber of Commerce. 

He also submitted written testimony on behalf of the U.S. Chamber of Commerce. 

In this written testimony, he refers to research that he attributes to the RAND Corporation regarding the greater effectiveness of consultations over inspections in preventing injuries. RAND has not conducted research on this topic and thus is not a 

source for this conclusion. 

I believe he is mistaking this for research done by the Washington State Department of Labor and Industries’ research organization, Safety and Health Assessment 

and Research for Prevention (SHARP). Consultations certainly have an important 

role to play, but as someone who is extremely familiar with studies in this area, 

I can state that Mr. Sarvadi’s interpretation of the data is not valid. Because em-
86 

1The presentation was distributed at the Midwinter meeting of the Occupational Safety & 

Health Law Committee, part of the American Bar Association’s Labor and Employment Section, 

in Sarasota, FL, in March 2012. 

ployers ask for consultations, those who get them are, on average, more motivated 

to improve and would have done so to some degree even without the consultation. 

We currently have no way of disentangling the effect of the consultation. 

The RAND Center for Health and Safety in the workplace has done a number of 

studies on ways to help improve worker health and safety and reduce the economic 

costs of workplace accidents and illnesses. The Center provides rigorous, objective 

analysis and a neutral venue in which to convene stakeholders from government, 

industry, and labor. I am happy to discuss any of this research further and as always, please do not hesitate to contact me with any questions or concerns. 

With regards, 

JOHN MENDELOFF, 

Director, RAND Center for Health 

and Safety in the Workplace (CHSW). 

KELLER AND HECKMAN LLP, 

WASHINGTON, DC 20001, 

May 3, 2012. 

Hon. TOM HARKIN, Chairman, 

Hon. MICHAEL B. ENZI, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

Re: Rand Corporation Letter on Voluntary Programs 

DEAR SENATOR HARKIN AND SENATOR ENZI: Thank you for the opportunity to provide supplemental information for the record of the April 19 hearing. I was provided 

a copy of a letter from John Mendelhof, director of Rand Corporation’s Center for 

Health and Safety in the Workplace, who wrote to you regarding a reference I made 

in my testimony to a study I mistakenly attributed to them. He is correct that the 

data on which I relied was from a report from the Washington State SHARP program. I have attached a PDF of the presentation that was the basis for my statement that employers who participate in the voluntary consultation have lower injury and illness rates than employers who are subject to enforcement by the State 

OSHA program.1

Several of the comparisons in the presentation show statistically significant decreases in compensable claims for employers participating in voluntary programs 

than those subject to enforcement, compared to employers who have neither, and 

to a larger extent than those who are inspected. Moreover, it is well-established that 

participants in the Federal Voluntary Protection Program (VPP) have far lower 

rates of injury and illness reported compared to general industry. 

Mr. Mendelhof ’s categorical statement that my interpretation is ‘‘not valid’’ misinterprets the inference I took from the data. I believe my statement was that employers who voluntarily adopt strong compliance efforts produce far more effective 

programs. While it is true they are self-selected, the conclusion relevant to the policy issue that should be drawn is that there should be more effort and more incentives to get people into voluntary programs. We will get far more bang for the buck 

by creating real incentives to sign up than anything we do on the enforcement side. 

Clearly, such evidence supports the expansion of the VPP and other incentive programs for employers to induce them to voluntarily seek assistance and to adopt programs that go beyond the minimum. In other words, we need to get more people 

to ‘‘self-select’’ into such programs! 

Moreover, my experience with the current enforcement attitude is that it is making people resent OSHA again, because the Agency is viewed as an adversary and 

not as a resource. We need a debate on how to get to the next level in our national 

occupational safety and health programs. I believe the model we are now using has 

reached the point of rapidly diminishing returns, and that stronger incentives for 

voluntary programs would be more productive in the long run. 

Thank you for the opportunity to respond and to participate in this important discussion. I look forward to seeing the results of your efforts. 

Respectfully submitted, 

DAVID G. SARVADI. 
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[Whereupon, at 12:03 p.m., the hearing was adjourned.] 

Æ