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PRA must be put in place to protect workers before a catastrophe occurs. The bill on the other hand, would send a message that employers can allow life threatening conditions to persist until and even after they are discovered by OSHA. To allow any additional time for a catastrophe to occur, whether it be 1 hour, 24 hours, or 6 months later, would seriously jeopardize employee safety and health, and undermine OSHA's statutory mission.
In another instance, two employees died from asphyxiation in a confined space while cleaning a tank. Failure to follow written procedures required in OSHA's confined space standard was a significant factor in their death. OSHA's confined space standard requires employers to monitor and record the level of contaminants in the atmosphere before employees enter work areas which may be deficient in oxygen or contain contaminants. Records of such monitoring is considered a collection of information under the PRA. If employers do not perform such monitoring, employees face the risk of being asphyxiated or overcome by radiation or toxic fumes. If this monitoring is to protect workers effectively, employers must monitor routinely whenever there is a possible danger, not just when OSHA can prove that a particular employee in a particular confined space is in imminent danger of death or injury.
The new OSHA uses a variety of tools to protect workers, including enforcement, partnership, compliance assistance, standards development, special emphasis programs at the national, regional, and local level, and other appropriate tools. This balance of approaches helped earn OSHA good reviews in the Small Business Administration ombudsman's recent report to Congress. According to that report, OSHA has positively influenced small businesses perception of their regulatory enforcement efforts. The importance that OSHA places on working with businesses to improve safety and health led us to hire a small business liaison. Consistent with the intent of SBPRA, OSHA's liaison already works directly with small businesses, assisting them with every aspect of OSHA's program.
In conclusion, although OSHA agrees that legislation like SBPRA could be beneficial, we have serious concerns about the safety and health impact of the penalty-related provisions in section 2 of the bill. We urge the subcommittee to consider these concerns and modify the bill to guarantee that America's workers are protected.
[The prepared statement of Ms. Sheketoff follows:)
TESTIMONY OF EMILY SHEKETOFF DEPUTY ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
US DEPARTMENT OF LABOR Before the SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL
RESOURCES AND REGULATORY AFFAIRS on H.R. 3310, the Small Business Paperwork Reduction Act Amendments of 1998
Mr. Chairman, members of the subcommittee, thank you for this opportunity to testify
before you today about H.R.3310, the Small Business Paperwork Reduction Act Amendments of
OSHA joins in the subcommittee's desire to reduce unnecessary paperwork. Today, the
New OSHA concentrates more on preventing illnesses and injuries, and less on simply enforcing
rules. As part of that effort, OSHA has significantly reduced its focus on mechanical paperwork
violations. For example, in the past, OSHA cited many employers who failed to display a
required safety poster in their workplaces. Today, if employers fail to display the poster, our
compliance officers give them one.
OSHA reduced its paperwork citations by 75 percent from 1992 through 1997. As a
percentage of all OSHA violations, paperwork citations have fallen from 29 to 10 percent.
OSHA is continuing to focus on real improvements in the health and safety of working people,
rather than on the number of inspections, citations or penalties. However, it is critically
important for any legislation Congress enacts on this subject to distinguish between traditional
"paperwork” requirements and the information collection requirements in standards that directly
impact worker safety and health.
Small Business Paperwork Reduction Act Amendments
SBPRA amends the Paperwork Reduction Act of 1995 (PRA) to require that federal
agencies: (1) publish annually a list of Federal paperwork requirements applicable to small
businesses; (2) waive any civil penalties for first time violations of paperwork requirements by
small businesses; (3) establish one point of contact for small business; and (4) establish an inter
agency task force to study and identify actions to streamline reporting requirements for small
business. While OSHA applauds the intent of this proposal, we are extremely concerned that
waiving penalties for some so-called “paperwork” violations could cost some workers their
health or their lives.
SBPRA uses the “collection of information” definition from the PRA. Consequently, it
affects standards that most people would not view as mere paperwork. I will use my testimony to
illustrate these issues to the subcommittee.
Suspension of Penalties
SBPRA prohibits agencies from imposing fines for first-time violations by a small
business for information collection requirements, where the violations have not caused actual
serious harm to the public health or safety, as long as the small business corrects the deficiency
within six months. The bill provides an exception where the violation could imminently and
substantially endanger public health or safety.
OSHA understands the desire to treat businesses that make good faith efforts at
compliance differently from those that do not. In fact, OSHA's current policies already make
such a distinction. OSHA already provides significant penalty reductions based on employer
size, good faith and history of violations, with the smallest employers eligible for the largest
reductions. Our penalty reduction system is required both by the Occupational Safety and Health
Act and the Small Business Regulatory Enforcement Faimess Act (SBREFA) and follows the
President's directive of April 1995. As part of that system, where paperwork violations do not
materially affect workplace health or safety, OSHA has directed its field compliance officers not
to issue citations. Consequently, the proposal in SBPRA is duplicative and unnecessary.
Moreover, eliminating the potential for any penalties for first time violations removes the
incentive for employers to voluntarily comply without intervention. This is particularly
important where requirements have a true health and safety impact. The bill attempts to guard
against risks to safety and health by allowing employers 24 hours to correct violations that have
an imminent and substantial danger to public health or safety. In such instances, the bill allows
the agency to impose the fine immediately if it informs Congress. While we acknowledge the
authors' desire to protect against safety and health risks, the bill fails to protect workers from
very real dangers. Therefore, we strongly oppose this provision of SBPRA.
The bill should not hinder in any way an agency's ability to act immediately to eliminate
an imminent or potential danger to the health or safety of workers and the public. Furthermore,
the definition of "public health or safety" within SBPRA is not clear, as the bill provides no
context to determine what “public health or safety” means. We suggest that the language of
Section 2(b)(iX(1)(B) be amended to allow the agency to impose penalties not only when it
believes the violation has “caused actual serious harm to the public health and safety" but also
when the violation appears likely to cause serious harm.
As drafted, section 2(b)(i)(1)(B) could place workers at risk of serious accident or injury.
Many important "collection of information" requirements exist that significantly and directly
protect workers from serious injury and illness. However, those requirements might not reach
the bill's imminent and substantial danger threshold. For example, OSHA's worker right-to
know program in its Hazard Communication Standard requires a certain amount of paperwork to
ensure that the program is effective. If a worker is unaware that a hazardous chemical substance
is present in the workplace, he or she may be at serious risk of illness or death. At the same time,
this risk, while serious, may not be so great as to constitute "an imminent and substantial danger
to the public health or safety." Enforcement of OSHA standards concerning written
lockout/tagout programs, analysis of hazard processes at chemical plants, hearing conservation
and toxic exposure monitoring records, all of which have a direct and significant impact on
employee safety and health, would also be rendered ineffectual in most instances by this section
There are countless examples of workers being killed or injured when employers failed to
adhere to basic information sharing requirements. In one instance, an explosion ripped through a
Phillips 66 Company complex in Houston, Texas, killing 23 people, in part because a small
subcontractor failed to obtain the necessary permits to ensure that proper safety precautions were
observed during maintenance operations. After this tragic incident, Congress directed OSHA to
require all businesses using large quantities of potentially volatile chemicals to implement
written procedures minimizing the potential for catastrophic explosions, fires or other events
which can seriously harm workers and people living nearby. Under the resulting Process Safety
Management standard, written process hazard analyses and procedures, covered as paperwork
under the PRA, must be put in place to protect workers before a catastrophe occurs. The bill, on