제  목 : Proposals to amend the Occupational Safety and Health Act of 1970.
  일  자 : 1998년 08월
  제공처 : Internet

    Proposals to amend the Occupational Safety and Health Act of 1970.
    ===================================================================

  Mr. Chairman and Members of the Subcommittee:

  Thank you for inviting me to testify about several proposals to amend the
  Occupational Safety and Health Act of 1970. I appreciate the opportunity to
  express the views of the Occupational Safety and Health Administration on
  H.R. 2869, 2661, 2871, 2873, 2879 and 3519. Mr. Chairman, although we have
  known each other for many years and I previously testified before you as
  head of North Carolina OSHA, this is my first appearance before your
  subcommittee since my confirmation as OSHA's Assistant Secretary. I have
  appreciated your overtures to me and your willingness to discuss OSHA's
  concerns about various OSHA reform proposals. I was glad to return those
  overtures and to join you in supporting the passage of two earlier bills,
  H.R. 2864 and 2877.

  OSHA's core mission is to ensure a safe and healthy workplace for every
  working man and woman in the Nation. We are making progress; the Bureau of
  Labor Statistics announced last December that the rate of worker injuries
  and illnesses was at 7.4 per 100 workers, the lowest point in the history
  of the BLS occupational injury and illness survey. But more must be done to
  protect our Nation's workers. Workers still suffer over 6,000 fatalities
  per year from safety hazards and 50-60,000 fatalities from occupational
  disease. At the same time, we seek methods that avoid placing unnecessary
  burdens on employers. Through reinvention, OSHA is developing new
  strategies that leverage the agency's limited resources and, in many cases,
  re-shape how OSHA interacts with employers and workers to promote safe and
  healthy work environments.

  The New OSHA

  OSHA is changing the way it does business. It has been three years since
  President Clinton announced the "New OSHA" initiative. Since then, we have
  developed a broad range of partnership programs that promote cooperative
  efforts between employers, workers and government. We are making
  enforcement programs smarter and fairer by spending more time at the most
  hazardous workplaces and less time at safer ones. We are treating
  responsible employers differently than neglectful ones. OSHA is simplifying
  standards by rewriting them in plain language, using performance-based
  approaches wherever possible. We're focusing less on individual, technical
  violations, and more on systematic approaches that allow workers and
  employers to find and fix hazards on an ongoing basis. And finally, we're
  measuring results, where possible, not by numbers of citations or
  penalties, but by real improvements in the lives of working people, such as
  reduced injury and illness rates.

  I would like to express my appreciation to you, Mr. Chairman, and to the
  rest of the Committee for your cooperative spirit during my short tenure
  with OSHA. I was pleased that we could reach compromises on H.R. 2864 and
  2877, OSHA reform bills that you recently passed in the House. However,
  while I appreciate your interest in working together on OSHA-related
  legislation, we do not share common ground on the proposals on the
  subcommittee's agenda today. In OSHA's view, the bills to be discussed
  today are either unnecessary or would undermine OSHA's ability to protect
  workers.

  H.R. 2869 -- Excluding Employer Audits from Discovery

  H.R. 2869 would create an evidentiary privilege for employer self-audit
  documents. This extremely broad privilege would vastly complicate OSHA
  enforcement. It would force the agency to arrive at conclusions about
  workplace hazards and accidents without critical information. In many
  cases, particularly in fatality and catastrophe investigations, self-audit
  records and reports are the most reliable, and often the only means of
  establishing the facts. Under such circumstances, OSHA needs the ability to
  gather all the information it can to explain why these accidents happened
  and to help prevent them from happening again.

  The fact that the bill contains an exception for "safety and health
  assessments prescribed under section 6(b)(7)" of the OSH Act does little to
  ameliorate the bill's harmful effects on enforcement of OSHA requirements.
  That section of the Act specifically addresses only a limited class of
  requirements dealing with medical surveillance and exposure monitoring, so
  the bill would leave the vast majority of workplace health and safety
  assessments required by OSHA rules off-limits to scrutiny by OSHA, the
  Review Commission and the courts. Furthermore, many of OSHA's audit
  requirements are expressed in general, performance-oriented terms, making
  it difficult if not impossible to discern the line between mandatory and
  voluntary audit activity. Finally, OSHA is required to demonstrate employer
  knowledge of a cited hazard, and is required, in proposing penalties, to
  ascertain the extent of an employer's good faith, inquiries which cannot
  fairly be resolved without access to the very records which document
  knowledge and good faith.

  Contrary to the belief of many businesses, disclosure of self audit
  documents generally benefits good faith employers. OSHA provides penalty
  reductions where employers who receive citations have acted in good faith
  to try and correct deficiencies identified in an audit. For example, in a
  hypothetical small muffler shop the owner keeps his mufflers in a storage
  loft, but the loft does not have a railing. While conducting a self audit,
  the employer discovers that the loft poses a serious fall hazard to his
  employees. As a result, he moves the mufflers as far away from the ledge as
  possible and puts cones along the ledge. When an OSHA compliance officer
  comes to inspect this muffler shop, he immediately spots the fall hazard.
  Under ordinary circumstances, failure to install a guardrail would result
  in a $5,000 fine. In this case, however, the employer would receive a
  credit worth $3,875. This is because, through the self-audit documents, the
  employer can show that he acted in good faith and that he did do something
  to try to reduce the likelihood of injury to his employees. If this small
  business has no history of serious violations, the $5,000 penalty would
  ultimately be reduced to $75.

  The proposed evidentiary privilege would protect only bad actors --
  employers who have identified hazards, have failed to make good faith
  efforts to correct them, and wish to hide the evidence.

  H.R. 2661 and H.R. 2871 -- Additional Scientific and Economic Peer
  Review

  H.R. 2661 and 2871 would both require the Secretary to create an advisory
  panel to review scientific and economic data every time OSHA proposes a new
  standard. H.R. 2871 provides an exception where the standard has been
  promulgated through negotiated rulemaking. This additional committee is
  unnecessary, duplicative and would create serious delays in our rulemaking
  process -- a process that many already criticize as taking too long.

  Today, comprehensive OSHA rules can take as many as eight years to publish.
  In the meantime, workers are exposed to hazards every day. During that
  time, OSHA has a variety of obligations: engage in notice and comment
  rulemaking; conduct economic and risk analyses; assess impact on small
  businesses and, depending upon that impact, convene a small business panel
  under the Small Business Regulatory Enforcement Fairness Act; survey
  industries; and do extensive review of research on selected topics. When
  OSHA issues a proposal, the agency also engages in a rigorous public
  hearing process. On standards where peer review of a part of the supporting
  material is appropriate, a peer review has been done. For example, the risk
  assessment for tuberculosis was peer reviewed. Once the proposed standard
  is published in the Federal Register, any interested party can comment upon
  the standard itself as well as the underlying scientific and economic data.

  OSHA's public hearings allow for the fullest, most thorough discourse on
  every subject relevant to a rule. They provide the greatest possible public
  access to the process -- scientists, economists, safety and health
  professionals, representatives of potentially affected industries and any
  other interested parties may and do participate. At public hearings,
  interested parties can submit testimony and evidence, cross examine OSHA
  experts and engage in debate with other participants. For example, OSHA
  just completed nine days of hearings last week on the agency's proposed
  standard on occupational exposure to Tuberculosis. Scientists and
  economists always present new data and test each other's theories through
  questioning and comment, a process from which OSHA has gained valuable
  information. The entire discussion is conducted in full public view, and
  enables participants to challenge one another's positions. Public hearings
  are often held around the country to make it easier for interested parties
  to attend. I invite members of this committee to come attend one of our
  hearings and observe this critical process in action.

  A new committee, like the ones proposed in H.R. 2661 and 2871, would
  provide selected persons an additional closed-door opportunity to influence
  rulemaking after the public process is complete. This would give the
  committee members an unfair advantage. In addition, the closed nature of
  the committee proceedings would prevent the public from a full and fair
  discussion on their rationale and decisions. The bill's failure to require
  disclosure from this committee makes its already unnecessary contribution
  suspect as well.

  The President, consistent with Executive Order 12838 and the National
  Performance Review, has asked Congress to show restraint in the creation of
  new statutory committees. In the interest of promulgating rules that will
  best protect workers, this is an appropriate time to exercise that
  restraint.

  H.R. 2873 -- Risk Assessment and Cost-Benefit Analyses for Every
  Industry

  H.R. 2873 would require OSHA to conduct an individual risk assessment and
  cost-benefit analysis for each industry affected by a proposed standard.
  The Supreme Court has determined that under the OSH Act OSHA cannot base
  its health standards on cost-benefit analyses and is required by law to
  reduce significant risk to the extent feasible. However, OSHA agrees that
  comprehensive and accurate risk assessments and economic analyses are
  valuable informational tools, and devotes considerable effort to making
  these documents clear and methodologically sound. For each rule, the Agency
  already conducts detailed risk assessments, develops extensive
  significance-of-risk analyses, demonstrates technological and economic
  feasibility (including an assessment of costs), evaluates benefits, and
  assesses impacts (including small business impacts, as required by the
  Regulatory Flexibility Act). Cost estimates and feasibility analyses are
  commonly conducted at the industry level, because data on the technological
  and financial status of each industry that reflect real conditions in that
  industry are usually publicly available. However, it is rarely the case
  that industry-specific data on risk are available; even where such data are
  available, they generally cannot be used to produce statistically
  meaningful results. Because industry-specific risk data are rarely
  available, it is not possible to develop industry-specific benefits
  analyses.

  H.R. 2879 -- Limiting Liability at Multi-Employer Worksites

  H.R. 2879 would limit the liability of certain employers, particularly
  general contractors in the construction industry, at multi-employer
  worksites. This bill would prohibit OSHA from citing an employer for a
  violation if the employer has no employees exposed to the hazard and has
  neither created the hazard nor assumed responsibility for ensuring that the
  other employers at the worksite comply. This would create an incentive for
  general contractors to give up their authority to ensure that
  subcontractors comply with safety standards. If we encourage the employers
  in the best position to enhance workplace safety to reduce their authority,
  workers will pay the price.

  First, let me clear up some misunderstandings about liability under the OSH
  Act. The OSH Act holds all employers responsible for hazards under their
  control regardless of whose employees are exposed. Some employers have
  misconstrued our policy as limiting the liability of the subcontractor by
  holding the general contractor liable instead. This is not the case. We do
  hold the subcontractor liable. Where a general contractor has failed to
  exercise due diligence in meeting its responsibility, we then hold the
  general contractor liable as well. That way, we can ensure that both the
  subcontractor and the general contractor have the incentive to coordinate
  their efforts in keeping the workers on the site safe.

  OSHA's multi-employer worksite policy reflects court decisions that
  involved very serious accidents; workers were getting killed because
  general contractors and subcontractors failed to coordinate their
  responsibilities for ensuring worker safety and health. The tragedy that
  occurred at L'Ambiance Plaza in Connecticut is a prime example of the
  origins of our rule. In that case, 28 workers were killed when a high rise
  under construction collapsed through the error of one subcontractor.
  Workers from several subcontractors were killed.

  Where one subcontractor creates a hazard for the employees of another
  subcontractor, only the general contractor may be in the best position to
  get the problem corrected. Just as general contractors have the ultimate
  supervisory power of all other aspects of the work, the best way to protect
  all of the workers at a particular site is for the general contractor to
  have overall responsibility for coordinating efforts for worker safety and
  health as well.

  Under the case law, the liability of general contractors is not absolute,
  but depends on the circumstances of the case. Further limiting the
  liability of the general contractor would be a step backward. None of us
  wants to revisit the tragedies of the past. In our experience, this has
  proven the most effective method in reducing injuries and fatalities at
  multi-employer worksites. The bottom line is that we need all of the
  contractors to work together to make multi-employer worksites safe. In
  order to ensure the safety and health of the employees of both the general
  contractor and the subcontractors we cannot limit the responsibility of
  either.

  H.R. 3519 -- Standard and Electronic MSDS's

  H.R. 3519 proposes to amend the OSH Act to require electronic access to
  Material Safety Data Sheets (MSDS's). The bill would also require OSHA to
  modify its Hazard Communication Standard (29 CFR 1910.1200) to require a
  standard format for MSDS's. These proposals are well intentioned, and OSHA
  is working along parallel lines. However, we believe that legislation is
  unnecessary and unwise at this time.

  OSHA supports allowing employers to provide their workers with electronic
  access to MSDS's. In fact, OSHA has allowed such electronic access for some
  time. However, there has been confusion in some quarters about OSHA's
  policy regarding electronic access. Consequently, OSHA issued a new
  compliance directive clarifying the agency's policy at approximately the
  same time this bill was introduced. Since the bill and the modified
  compliance directive presumably were being drafted simultaneously, it is
  entirely possible that the bill's authors were unaware of the impending
  clarification. OSHA believes that the clarification should address the
  authors' concerns. In the event the subcommittee feels that additional
  action by OSHA is necessary to get the word out, we are prepared to work
  with you to increase awareness.

  The standardization of MSDS's is appealing. In fact, OSHA is participating
  in international discussions on how MSDS's might be standardized. However,
  standardization is premature. It is also more difficult than it sounds.

  MSDS's have a variety of users, with varying backgrounds and needs. While
  workers have access to them and have a right to know the information they
  contain, MSDS's are also used by physicians, nurses, industrial hygienists,
  safety engineers, toxicologists, firefighters, emergency responders, and
  others. Because MSDS's serve such a broad function, the American National
  Standards Institute (ANSI) developed a consensus standard that recognizes
  the diversity of the MSDS audience by requiring certain information that is
  of most use to workers to be placed in the beginning of the document, and
  stated in simple language. ANSI developed this "order of information" after
  extensive discussions with experts revealed that there is no real consensus
  on how an MSDS should be presented.

  There is an ongoing and extensive international effort to harmonize hazard
  communication requirements for hazard classification, labeling, and
  material safety data sheets. OSHA has participated in this effort for many
  years. The ANSI "order of information" may be part of a globally harmonized
  system by the year 2000. Therefore, OSHA believes the wisest course is to
  wait until that system is complete before taking additional action on the
  issue. It is far better to standardize consistent with an internationally
  accepted approach, both from a worker protection standpoint and trade
  perspective. If Congress were to mandate a change at this point, U.S.
  manufacturers would be required to change most of their MSDS's in the short
  term, and then again in a few years. This would be costly for business and
  would have questionable benefit for workers.

  Protecting Workers Better

  Mr. Chairman, there are a variety of ways to strengthen the protection
  provided to workers under the OSH Act. We would, for example, support
  legislation that strengthens the whistleblower protections of the OSH Act.
  It is fundamental that workers must feel free to inform their employer or
  the government when dangerous working conditions threaten their life or
  safety. There is a good deal of evidence, however, that many employees do
  not feel free to complain about unsafe conditions and that too many
  employers feel they can retaliate against whistleblowers with impunity. The
  provisions in place today in section 11(c) of the Act are too weak and too
  cumbersome to discourage employer retaliation or to provide an effective
  remedy for the victims of retaliation. A recent report of the Inspector
  General of the Department of Labor found that "whistleblowers" frequently
  face retaliation for exposing unsafe or unhealthy working conditions. A
  nurse at Skyline Terrace Nursing Home, for example, complained about the
  home's lack of gloves, which are required to protect employees from
  bloodborne pathogens. Four days after an inspection, she was fired in
  retaliation for the complaint. Another company, Hahner, Foreman ＆ Harness,
  Inc., fired an employee for refusing to go up in a gondola three or four
  stories above the ground. The gondola had been malfunctioning and the
  employee believed it to be unsafe. When the employee refused to risk his
  safety, his superintendent instructed him that if he did not go back up
  into the malfunctioning gondola, somebody else would. He was fired for his
  refusal. If you wish to strengthen the safety and health protection
  available to workers, I suggest this as a place to begin.

  In North Carolina in 1993, the state legislature took several steps that
  greatly strengthened whistleblower protections after the Hamlet fire
  revealed the flaws in our State Plan. The changes included a longer statute
  of limitations, a private right of action and a provision for treble
  damages. I believe these changes have played an important part in the
  progress North Carolina has made in reducing injury, illness and fatality
  rates over the last five years.

  In addition, in states that do not operate an OSHA-approved State plan, the
  OSH Act does not effectively protect federal, state and local employees
  (maintenance workers, construction workers, firefighters, etc.).
  Consequently, with the exception of the 23 states that actively provide
  public sector coverage under State OSHA programs, OSHA has little ability
  to require positive change on the part of public employers. As a
  consequence, this limited authority hinders OSHA's success in reducing
  illness, injuries and fatalities on the job.

  There are numerous examples of on-the-job tragedies that occurred primarily
  because safety and health protections do not apply to public employees.
  These tragedies could have been prevented by compliance with OSHA rules. In
  addition, studies have shown that the overall cost of providing OSH Act
  coverage for these employees is small, especially compared with the amount
  of money which would be saved by reducing the cost of worker injuries.

  A third option for deterring action that places workers at risk is
  increasing the criminal penalty for an employer whose willful conduct
  causes the death of an employee. We would urge that these violations not be
  classified as misdemeanors, but felonies, which carry with them the
  possibility of incarceration for periods in excess of one year. The current
  classification for willful workplace safety and health violations that lead
  to an employee's death are woefully inadequate to address the harm caused.
  Classifying such crimes as felonies would more justly reflect the severity
  of the offense.

  Conclusion

  In conclusion, the bills before us today would not contribute to the
  improvement of worker safety and health. Prohibiting OSHA from gathering
  necessary information, adding redundant and burdensome layers to our
  rulemaking process and limiting employer liability is not the way to
  protect the working men and women of this country. Again, let me reiterate
  my appreciation for this opportunity to testify before you today. I look
  forward to continuing our dialogue in our effort to improve OSHA's
  contribution to the safety and health of American workers.