[House Hearing, 114 Congress] [From the U.S. Government Publishing Office] PROTECTING AMERICA'S WORKERS: AN ENFORCEMENT UPDATE FROM THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION ======================================================================= HEARING before the SUBCOMMITTEE ON WORKFORCE PROTECTIONS COMMITTEE ON EDUCATION AND THE WORKFORCE U.S. House of Representatives ONE HUNDRED FOURTEENTH CONGRESS FIRST SESSION __________ HEARING HELD IN WASHINGTON, DC, OCTOBER 7, 2015 __________ Serial No. 114-30 __________ Printed for the use of the Committee on Education and the Workforce [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: www.gpo.gov/fdsys/browse/ committee.action?chamber=house&committee=education or Committee address: http://edworkforce.house.gov ______ U.S. GOVERNMENT PUBLISHING OFFICE 96-821 PDF WASHINGTON : 2016 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON EDUCATION AND THE WORKFORCE JOHN KLINE, Minnesota, Chairman Joe Wilson, South Carolina Robert C. ``Bobby'' Scott, Virginia Foxx, North Carolina Virginia Duncan Hunter, California Ranking Member David P. Roe, Tennessee Ruben Hinojosa, Texas Glenn Thompson, Pennsylvania Susan A. Davis, California Tim Walberg, Michigan Raul M. Grijalva, Arizona Matt Salmon, Arizona Joe Courtney, Connecticut Brett Guthrie, Kentucky Marcia L. Fudge, Ohio Todd Rokita, Indiana Jared Polis, Colorado Lou Barletta, Pennsylvania Gregorio Kilili Camacho Sablan, Joseph J. Heck, Nevada Northern Mariana Islands Luke Messer, Indiana Frederica S. Wilson, Florida Bradley Byrne, Alabama Suzanne Bonamici, Oregon David Brat, Virginia Mark Pocan, Wisconsin Buddy Carter, Georgia Mark Takano, California Michael D. Bishop, Michigan Hakeem S. Jeffries, New York Glenn Grothman, Wisconsin Katherine M. Clark, Massachusetts Steve Russell, Oklahoma Alma S. Adams, North Carolina Carlos Curbelo, Florida Mark DeSaulnier, California Elise Stefanik, New York Rick Allen, Georgia Juliane Sullivan, Staff Director Denise Forte, Minority Staff Director ------ SUBCOMMITTEE ON WORKFORCE PROTECTIONS TIM WALBERG, Michigan, Chairman Duncan Hunter, California Frederica S. Wilson, Florida, Glenn Thompson, Pennsylvania Ranking Member Todd Rokita, Indiana Mark Pocan, Wisconsin Dave Brat, Virginia Katherine M. Clark, Massachusetts Michael D. Bishop, Michigan Alma S. Adams, North Carolina Steve Russell, Oklahoma Mark DeSaulnier, California Elise Stefanik, New York Marcia L. Fudge, Ohio C O N T E N T S ---------- Page Hearing held on October 7, 2015.................................. 1 Statement of Members: Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections................................................ 1 Prepared statement of.................................... 4 Wilson, Hon. Frederica S., Ranking Member, Subcommittee on Workforce Protections...................................... 36 Prepared statement of.................................... 38 Statement of Witnesses: Michaels, Hon. David, PhD, MPH, Assistant Secretary, Occupational Safety and Health Administration, U.S. Department of Labor........................................ 6 Prepared statement of.................................... 9 Additional Submissions: Assistant Secretary Michael:................................. Response to questions submitted for the record........... 97 Chairman Walberg:............................................ Prepared statement of the American Petroleum Institute... 42 Questions submitted for the record....................... 94 Letter dated October 8, 2015, from State of Michigan, Department of Agriculture and Rural Development........ 51 Letter dated October 7, 2014, from the National Roofing Contractors Association................................ 53 Letter dated October 7, 2015, from the Fertilizer Institute.............................................. 56 Report ``Workplace Injuries and Illnesses Safety (WIIS) Report'' American Petroleum Institute.................. 59 Ms. Wilson:.................................................. Letter dated October 7, 2015, from Canada, Michelle, United Support Memorial for Workplace Fatalities (USMWF)--Family Members................................ 90 Letter dated October 5, 2015, from Fergen, Debi, Outreach Director USMWF--United Support Memorial for Workplace Fatalities............................................. 83 Letter dated October 7, 2015, from Mattern, Amy, United Support Memorial for Workplace Fatalities (USMWF)-- Family Members and Daughter of Deceased Worker......... 81 Letter dated October 7, 2015, from McCardle, Linda, United Support Memorial for Workplace Fatalities (USMWF)--Family Members................................ 88 Letter dated October 7, 2015, from Rodriguez, Katherine, CPA, United Support Memorial for Workplace Fatalities (USMWF)--Board Members................................. 85 Letter dated October 7, 2015, from Honomichi, Trina, United Support Memorial for Workplace Fatalities (USMWF)--Family Members................................ 91 PROTECTING AMERICA'S WORKERS: AN ENFORCEMENT UPDATE FROM THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION ---------- Wednesday, October 7, 2015 U.S. House of Representatives Committee on Education and the Workforce Subcommittee on Workforce Protections Washington, D.C. ---------- -- -------- The subcommittee met, pursuant to call, at 1:00 p.m., in Room 2261, Rayburn House Office Building. Hon. Tim Walberg (Chairman of the subcommittee) presiding. Present: Representatives Walberg, Stefanik, Wilson, and Pocan. Also Present: Representatives Kline, Hartzler, and Rogers of Alabama. Staff Present: Janelle Belland, Coalitions and Members Services Coordinator; Ed Gilroy, Director of Workforce Policy; Jessica Goodman, Legislative Assistant; Callie Harman, Legislative Assistant; Tyler Hernandez, Press Secretary; Nancy Locke, Chief Clerk; John Martin, Professional Staff Member; Geoffrey MacLeay, Professional Staff Member; Brian Newell, Communications Director; Krisann Pearce, General Counsel; Lauren Reddington, Deputy Press Secretary; Molly McLaughlin Salmi, Deputy Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Olivia Voslow, Staff Assistant; Joseph Wheeler, Professional Staff Member; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Christine Godinez, Minority Staff Assistant; Brian Kennedy, Minority General Counsel; John Mantz, Minority Labor Detailee; and Richard Miller, Minority Senior Labor Policy Advisor. Chairman Walberg. How is that for a gavel? I was mentioning to Loren that from my old Taekwondo days I did not want to bust the table in half here, but fortunately, I was not very good. A quorum being present, the subcommittee will come to order. Good afternoon, everyone. I would like to extend a special welcome to you, Dr. Michaels. We were just trying to decide how long it has been since we were in the same room together. It is right about four years, or a little less than four years, so it is good to have you back in front of us. We thank you for being with us to discuss an issue that is incredibly important to every one of us, ensuring the health and safety of American workers. And also, the security of their jobs. We all agree that men and women working hard to make a living deserve workplaces that are safe and working conditions that protect their health and well-being. In the twenty-first century workplace, employees should be able to put in a day's work without having to fear being injured on the job or having to worry whether they will be able to return home to their families at the end of the shift. That is why we continue to demand every American have strong and effective health and safety protections. We are here today to take a closer look at these rules and the enforcement process to make sure they are working well for both employees and employers. Providing for the health and safety of American workers is an important responsibility, but it is important to be responsible in carrying it out. Otherwise, we will end up with inadequate protections and unnecessary regulatory burdens that stifle productivity and job creation, while doing little to keep workers safe. That is why this Committee has long urged Dr. Michaels, his colleagues at the Occupational Safety and Health Administration, and others to engage in responsible safety enforcement. By identifying gaps in safety and working with employers and other key stakeholders to develop positive solutions, we can ensure that federal policies are effective and workers are safe, and these are both goals that I believe stretch across party lines. President Obama promised, and I quote, ``an unprecedented level of openness in government,'' and vowed to establish a system of transparency, public participation, and collaboration. That has not always been the case, and changing enforcement policies in one area in which we have seen a lack of transparency, public participation, and collaboration. In fact, on several occasions, the administration has used what it calls ``enforcement guidance'' to alter significant rules without public input. This one-sided approach is not the kind of responsible rulemaking and enforcement American workers deserve. When actions of the administration or other policymakers are in conflict with the best interest of the American people, it is our responsibility to speak out. So that is what we did with OSHA. We spoke out when they altered longstanding policies outside the public rulemaking process. We spoke out when they failed to conduct proper oversight of their own enforcement activities. We spoke out when they spent significant time and responses pursuing unsound and unnecessary regulatory schemes. OSHA, on several occasions, has listened to some of our concerns and we appreciate that. Not all of our concerns, but enough to say that we have made progress in a number of areas. As a result of our oversight, OSHA is pursuing a responsible approach to protecting the men and women employed on family farms. More small businesses are able to participate in an important safety and health program, and employees in the telecommunications industry have more clarity and certainty. Workers are safer because we spoke up, the agency listened, and steps were taken to promote smart, responsible, regulatory policies. However, while we have made gains, there is still work to be done. This brings us back to the reason we are here today. Standing up for workers and ensuring safe workplaces remain leading priorities for this Committee. We have seen what we can accomplish when we work together to improve the health and safety of American workers, and this hearing is an important part of these efforts. I look forward to hearing from Dr. Michaels on his agency's regulatory enforcement actions, and I welcome the opportunity to discuss ways in which we can better protect hardworking men and women and provide greater clarity to job creators. [The statement of Chairman Walberg follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Walberg. With that, I will now--I would recognize the Ranking Member Wilson for opening remarks but I believe we have altered that. When she arrives, we will have the opportunity for her to make those then. But we appreciate you sitting in for the seat here. Pursuant to Committee Rule 7, all subcommittee members will be permitted to submit written statements to be included in the permanent hearing record, and without objection, the hearing record will remain open for 14 days to allow the statements, questions for the record, and other extraneous material referenced during the hearing to be submitted in the official hearing record. At this point, let me also recognize our colleague, Representative Hartzler, who does not sit on this subcommittee. She wishes she did, but has a great interest in this issue relative to OSHA and the regulatory standards. And so without objection, I would ask my colleagues to allow her to be seated and participate with the members of the Committee. Hearing none, welcome. It is now my pleasure to introduce today's witness. Dr. David Michaels is the assistant secretary of the Occupational Safety and Health Administration at the U.S. Department of Labor here in Washington, D.C. Before coming to OSHA in December 2009--that is an extensive record as we talked about, of still being here for this long. That is impressive. Dr. Michaels was professor of Environmental and Occupational Health at the George Washington University, School of Public Health and Health Services, directing the department's project on Scientific Knowledge and Public Policy. Dr. Michaels, since you last appeared before us, we have now a policy where we swear in our witnesses, so I will ask you at this time to stand and raise your right hand. [Witness sworn.] Chairman Walberg. Let the record reflect Dr. Michaels answered in the affirmative as we expected. We thank you for that. You may take your seat. Before I recognize you to provide your testimony, let me briefly remind you of our lighting system. You know, the lighting system. And while we have five minutes allotted as my Chairman of the full Committee says so often, I am averse to holding you to that. We are glad to have you here. Now, if you start to get to 15 minutes or so then we might gavel you down then, but we want to hear what you have to say and appreciate you being here. I recognize you for your testimony. TESTIMONY OF THE HONORABLE DAVID MICHAELS, PHD, MPH, ASSISTANT SECRETARY, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. Dr. Michaels. Thank you so much. Good afternoon. Chairman Walberg, Representative Pocan, Representative Hartzler. Thank you for inviting me here today. I am honored to testify about the work we at OSHA are doing to improve the safety and health of American workers. Over the past 44 years since OSHA was created, we have made dramatic strides in reducing work-related injuries, illnesses, and deaths, but there is still much work to be done. In the almost four years since I last appeared before this subcommittee, we have accomplished a great deal. Today, I would like to highlight some of the progress we have made and the challenges that still remain. First, after extensive outreach, public comment, and review, OSHA has finalized important and lifesaving standards. These include measures to protect those working in shipyards, construction, and around electrical hazards. We also finalized a rule expanding injury and illness reporting requirements, and we have made significant progress towards updating our decades- old silica standard. Last year, at a DuPont Chemical plant in Texas, four workers were killed by a highly toxic chemical release. This came in the wake of the tragic explosion at the West Fertilizer Company that killed 15 people. Unfortunately, disasters like this are far too common. Since 2009, at least 28 significant chemical plant incidents have occurred resulting in over 79 worker deaths. To help prevent more tragedies, President Obama issued Executive Order 13650, instructing OSHA, the Environmental Protection Agency, the Department of Homeland Security, and other agencies to work together closely to improve chemical facility safety and security. Together, we undertook a comprehensive review of these programs, engaging in extensive stakeholder outreach to solicit feedback and identify best practices. As a result of these and other efforts, OSHA has taken steps to better protect workers at these facilities. First and foremost, we are working to modernize our process safety management standard that sets requirements for the management of highly hazardous substances. Towards this, OSHA issued a request for information on possible improvements. In addition, we issued memoranda explaining how we will apply the standard to certain chemicals, and clarifying the definition of retail facilities. We also memorialized our interpretation of the term, ``Recognized and Generally Accepted Good Engineering Practices,'' or RAGAGEP. At OSHA, we recognize that most employers want to do the right thing, and we are committed to ensuring they have the tools and the information they need. This is why we have made compliance assistance a priority, and we work diligently to provide training, educational materials, and consultation services to employers and workers. The cornerstone of this effort is our onsite consultation program for small and medium-sized businesses. Last year, over 26,000 employers took advantage of this free service, and through our VPP and SHARP programs, we recognize employers who have developed outstanding injury and illness prevention programs. Our enforcement programs specifically target the most dangerous workplaces and the most recalcitrant employers. Last year, Sarah Jones, a 27-year-old camera assistant was killed by an oncoming train during the filming of the movie, Midnight Rider. The filmmakers had been denied authorization to film on live railroad tracks but decided to do so anyway. Sarah Jones paid the ultimate price for that decision. We issued a fine of almost $75,000, sending a message to all employers that willful disregard for workers' safety is unacceptable. OSHA is also charged with enforcing the whistleblower provisions in 22 statutes that protect the safety, health, and well-being of the American public. If a worker who is covered by these laws is punished for raising a concern about toxic chemicals fouling our drinking water, the safety of passengers on railroads, accounting fraud, or a food manufacturer's contaminated products, OSHA is charged with protecting that worker. Over the last few years, OSHA has significantly strengthened this program. To begin with, we established the whistleblower protection program as a separate directorate and increased staffing. We developed an online complaint form, enhanced training, and streamlined procedures. We have reduced our backlog, improved enforcement, and enhanced the consistency of our investigations. As the structure of employment relationships in this country undergoes dramatic change, workers are put at increased risk. OSHA has long addressed situations where more than one employer has a role in preventing injury and illness. When these employers fail to fulfill their responsibilities, the results can be tragic. Take the case of Day Davis, a 21-year-old recent Job Corps graduate. He was hired by a staffing agency and sent to work at a Bacardi Bottling plant in Jacksonville, Florida. It was his first day at a paid job ever. And Day Davis's first day at work was his last day on earth. He was crushed to death just hours after he arrived because neither the temp agency nor the host employer provided him adequate training. Day Davis's death and the shared responsibility of host and temporary employer for workers' safety demonstrates why we must continue working to address the realities of the twenty-first century workplace. But we cannot fully address these challenges alone; we need your help. The OSH Act has not been updated in more than 44 years. There are areas where legislative improvements could help prevent needless injuries and deaths. These include increasing civil and criminal penalties to provide a real disincentive for employers, protecting the 10 million public sector employees who currently do not have the right to a safe workplace, and updating the whistleblower provisions of the OSH Act to more closely align with modern statutes that protect whistleblowers. So thank you again for the opportunity to testify today. I would be very pleased to answer any questions you may have. [The statement of Dr. Michaels follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Walberg. Thank you, Dr. Michaels, for your testimony, and I think as I listened, and I am sure my colleagues as well, we appreciate the fact of the task that you have. And when we hear the illustrations as well, that is where I think we link arms, join hands together in saying let us enforce, let us make sure we enforce and come alongside and make sure that our employers are following the regulations and the laws that are in place. I guess it is a question today in a big way is what we have relative to the plans moving forward. So I recognize myself for five minutes of questioning. In a recent Senate hearing, a Department of Labor official suggested the guidance documents did not change the underlying PSM standard, insisting these are simply clarifications. Fundamentally, these documents had changed the type of entities and drastically expanded, at least as I read them, the number of entities that are covered by the regulation. Let me ask you how OSHA can justify this as just simply a clarification? Dr. Michaels. Thank you for that question, Chairman Walberg. We are actually talking about I suspect three documents, and they are all quite different, so it is a little complex to answer that question about all three. But the basis of this is understanding that after the explosion at the West Fertilizer Plant, President Obama issued a directive, the executive order, telling us to look at these issues and make sure workers are protected. And we have done a number of things, and part of that are three memoranda that all follow the law very carefully but essentially tell either OSHA or tell employers how they should make sure workers are protected. The first of these, and probably the one that there is the most discussion about is around the retail exemption. Chairman Walberg. Correct. Dr. Michaels. And that is probably the one that is most---- Chairman Walberg. That was the largest. That was a drastic change. Dr. Michaels. Well, when you go back and look at the process safety measurement standard, it is clear to us the standard was being misinterpreted. Essentially, what the standard said was that retailers who are really identified as, for example, gas stations, entities that sell small amounts and keep small amounts of a material onsite should be exempt, but when we went back and looked at how that was being interpreted in one of our policies, we thought the way we were doing this was clearly wrong. West, for example, had 50,000 pounds of anhydrous ammonia onsite and they sold large quantities of it. Other facilities with 10,000 pounds onsite are not exempted from process safety management. In fact, there have been terrible events that have occurred at far lower quantities than those onsite at West. So we went back following the law very carefully and getting tremendous public input. You know, President Obama talked about this two years ago. We have held countless public meetings and meetings with stakeholders talking about what the meaning of that ``retail'' exemption is and how to fix it. And so it was no surprise when we put out this memorandum changing this interpretation. Chairman Walberg. To 3,800 businesses that were exempt beforehand, it was no small change for them. So I would suggest that that is the challenge that I see, that that small change in how we defined retail and the exemption that came with that had a fairly significant impact. Financially, it can have a tremendously negative impact up to costing the business the opportunity to move and grow. I think that is the concern about the clarification process that goes on. And I think that is where best practices, bringing the stakeholders in for an extended period of time to look at this if this is going to be treated basically as a rule is important. How many lawsuits are pending related to the PSM guidance documents? Dr. Michaels. I cannot tell you how many lawsuits. I know there are several lawsuits. I do not know the number. But I believe that there are three documents, and there have been lawsuits associated with each one. I do not know if they are separate lawsuits or the same lawsuits, but there are several lawsuits. Chairman Walberg. How many comments did you receive regarding December 2013 request for information regarding the retail exemption? Dr. Michaels. Well, you know, we raised the issues of the retail exemption in numerous public meetings. We held a dozen public meetings around the country and then two more, and so we had a huge number of meetings. I cannot tell you though. I would be happy to get back to you with how many written comments we got from the request for information, but we had countless meetings with our stakeholders. We formed a new alliance with the Fertilizer Institute, the Agricultural Retail Association, the firefighters, to discuss these issues, so we have had a huge amount of input. And I can give you more detail later on. Chairman Walberg. I would be interested to know how many were in favor of these changes, especially looking at the example of West and the destruction that went on outside of the loss of life that was tremendous. Still with that, I would be interested to know the numbers that were in favor of any changes that went on as well. Yesterday, OSHA released an update of the Field Operations Manual. Does it contain any new multi-employer citation policy? Dr. Michaels. What are you referring to? Chairman Walberg. Field Operations Manual. Dr. Michaels. That update simply memorializes many of the directives that we put out. There was nothing new in that. What that does is that puts in one place lots of documents and memos we had sent out to the field that we put on the web. Chairman Walberg. But you are going to issue a new instruction manual then subsequent to this? Dr. Michaels. Well, the Field Operations Manual is actually a guide for our staff on what to do. You know, how do they operate in the field? And so there is nothing new in there. It is their instruction manual. Chairman Walberg. My time is expired, and so now I recognize Mr. Pocan for your five minutes. Mr. Pocan. Sure. Thank you, Mr. Chairman. And thank you, Mr. Michaels, for being here. Let me ask you a general question about budget and then let us come back to the OSH Act updates, a couple of them that you mentioned. If I understand it, you have sufficient resources right now to inspect each jobsite once every 140 years on average. Dr. Michaels. That is about right. Mr. Pocan. And I believe the appropriations bill that was passed this year by the House cut that by about 15 percent, 32 million, and it is about 7 percent less than last year's budget's--last year's levels. How is this going to impact you? Briefly, what is the impact? Dr. Michaels. Well, the concern I have, of course, is how that impacts the safety and health of workers across the United States. We would certainly do significantly less enforcement, and we know that enforcement has an impact. You know, there is a study done by business school professors from Harvard and Berkeley that was published in Science Magazine a couple years ago that showed that our random inspections, every single one of them, reduces injuries at the workplace we visit by 24 percent and saves the employer money. And so the fewer inspections we do, the more injuries are going to occur and the more costs are going to go up. And so we know that this is going to have a bad impact on workers. Mr. Pocan. Thank you. On the OSH Act updates, one of the things you mentioned were the civil and criminal penalties. And again, painfully low. If I understand it right, you are the only agency in the Department of Labor who is prevented from automatically adjusting the maximum penalties for inflation. If I remember right, according to the ``Death on the Job'' report, in 2014, there was a penalty for a fatality case that was $5,050. Could you just talk a little bit about the needs to adjust those? Dr. Michaels. No, that is sadly not uncommon. We do not issue penalties because there is a fatality, but because we see a violation. And the maximum penalty for a serious violation is $7,000, and we always discount it for small employers and for history and good faith. And so even when there are significant events where workers are killed and we have multiple violations, the fine is very low. I mean, an example, a few years ago we had a terrible incident at an oil refinery half owned by Shell and half owned by Saudi Aramco. You know, these are big companies. A worker named Jeff Davis was essentially virtually dissolved in an acid spill. His body, you could barely find it, and eight other workers were hurt. The total penalty against this multinational company was $175,000, which is pretty low. In comparison, EPA followed us in because crab and fish were killed by this acid spill. Their penalty was $10 million. The value of human life seemed so low in that case. Mr. Pocan. Sure. Thank you. Also, you mentioned public sector employees. Eight to 10 million public sector employees not protected. Can you talk a little bit about that? Dr. Michaels. Yes. The way the OSHA law is written is if a state has federal jurisdiction as Wisconsin has or Missouri has or Florida has, the state and local workers have no coverage. Fortunately, public sector workers in Michigan do have coverage because there is a state OSHA plan, but in the other states, unless the state decides to have an OSHA plan themselves, those workers have no coverage. So we are pleased that Maine, for example, just signed on, and Illinois and New York and New Jersey and Connecticut have them, but most of the states where we have jurisdiction, those public sector workers do not have the right to a safe workplace. When one of them is killed, there is no investigation. Nothing happens. Mr. Pocan. And some large employers, if they have operations in multiple states at some of the facilities in one of those 29 federal OSHA states and at some of the 21 state OSHA state plans, when considering whether a violation is repeated, does OSHA have the authority to consider the history of an employer's violations from a state plan? Dr. Michaels. We cannot. And that is a big issue for companies which are in multiple places. We think it is very important to look at the history, and if an employer violates the law in one part of the country, they should not be allowed to violate without major penalty somewhere else, but that is unfortunately the way the law is written. Mr. Pocan. I see the yellow light but the time is--oh, I see I have a minute left. Okay. So let me go to really quickly on OSHA updating new safety and health standards. I know this says 10 to 20 years in order to do that. Can you just address that issue? Dr. Michaels. The requirements for OSHA to issue a new standard are very complicated. We put a tremendous amount of work into our standards. We have extensive public input. In fact, for our silica standard, we took public input for a year. But because of the requirements for a complicated standard, it easily could take 10 years. The GAO estimated eight years and that is an underestimate. So it takes us a long time to make those changes. So most of our standards are really dramatically out of date and workers are paying the price. Mr. Pocan. Thank you. And I yield back because I have 10 seconds. Chairman Walberg. I thank the gentleman. And now I recognize the Chairman of the Full Education and the Workforce Committee, Mr. Kline. Mr. Kline. Thank you, Mr. Chairman. Thank you, Dr. Michaels, for being here and for your testimony. I know that Chairman Walberg has a working list of issues he would like to address, so I yield my time to him. Chairman Walberg. Thank you, Mr. Chairman. I accept that yield. I do have a number of questions, and I know right now we are on borrowed time, and I appreciate the borrowed time we are on. Dr. Michaels. I will speak quickly. Chairman Walberg. Representative Pocan, in your response to his question, brought up a question that I would like to address with you. OSHA is looking at the California, Oregon, and Washington State plans with respect to roofing and residential construction projects. BLS data suggests states governed by the federal OSHA plan with similar sizes have a higher incident rate than these three states--California, Oregon, and Washington. Why does OSHA think the federal standard requirement is more protective than these three states? Dr. Michaels. That is a great question. There are lots of reasons for a fatality rate or even a fall rate. Compliance with a standard is really in some ways the key thing, and there are lots of areas where California, Washington, and Oregon have lower injury rates and lower fatality rates than the rest of the country. The standard is just a piece of that. When we look though at fatalities that have occurred that have been in violation of a standard, we see lots of them and we know they could have been prevented if our standard had been stronger. And that is why we actually changed the enforcement policy for residential construction a few years ago because people were dying because they were not following the new standard because we were not enforcing it. So we can see that our standard will have an effect in those places where it is applied. And I have no doubt that any state that strengthens their standard, they will actually reduce fatalities and falls as well. Chairman Walberg. What criteria are you using to determine if the state plans are at least as effective as the federal rules? Dr. Michaels. That is certainly something that we have been working on. In fact, we are probably the first administration ever to develop metrics to say this is how to measure a state plan in comparison with the federal government. The law has been around for 44 years, but for the first 40, OSHA never said, ``Do we have a rigorous way to actually measure the concept at least as effective?'' So we have implemented that a year ago. We now are collecting data from the state plans, and I think we are doing very well. Chairman Walberg. So it is still in progress? Dr. Michaels. Yes. Chairman Walberg. Blacklisting. Last year the administration issued the Fair Pay and Safe Workplaces Executive Order, otherwise known as the Blacklisting Executive Order--I think that is an industry term--in an attempt to ensure labor law compliance by federal contractors. Earlier this year, OSHA issued a memorandum directing compliance safety and health officers to collect additional data during inspections regarding employers' federal contractor status. The question I would like to ask you, do you think knowledge of an employer's contract work is relevant to an OSHA inspection? Dr. Michaels. Well, you know, we have learned a lot in the last year since that has come out and I think we have had a very successful experience. Our interest is not ``blacklisting'' or barring an employer from federal contracts; we want to use any leverage we can to make sure workers are protected. And I have heard from some of our area offices in states where they do a lot of defense contracting, defense contractors have said, ``Well, you know, we are a little concerned about this. Tell us what we need to do to make sure we do not get on this list.'' And we are happy to work with them. Our aim is not to bar any employer from being a federal contractor but to work with them saying, ``Look, we would like you to continue to be a federal contractor. Let us make sure you are in compliance with our law.'' Chairman Walberg. Well, it is one thing for the contractor or the contractor wanna-be but I think the concern is it is so easy for them to get caught up without even knowing the question to ask and all of a sudden being on a list that could impact contract negotiations or even getting the contract. Dr. Michaels. My understanding is that comments have been received and they are still working out what the procedures are, but we are very much committed to setting up a system where we can work with employers to make sure that they are in compliance rather than being debarred. And that is our commitment. That is what we want to do. Chairman Walberg. Let me ask you. Do the three guidance documents carry the force of law? This probably gets to the nub of our concern. Dr. Michaels. Yeah. Standards carry the force of law, but the way we interpret them and enforce them comes from those documents and other sorts of documents. So we will use those documents in issuing citations, for example, because it tells our inspectors what to do. Chairman Walberg. But does it tell our employers fully what to do and what is expected, especially since they are guidance documents as opposed to rules or laws themselves? Dr. Michaels. Rules always need interpretation. We issue, we get requests from employers on a weekly basis to interpret our rules. In fact, we issue probably 100 letters of interpretation a year when an employer says, ``Well, what does this really mean? Or what is the definition of this?'' Essentially, this tells employers, ``Yes, this is the definition.'' So it tells, for example, that employers who thought that they were exempt under the retail exemption now are not exempt and therefore, you know, they always should have been following the law; we just would not enforce it. Now, actually, they know we could make an inspection. Chairman Walberg. Okay. Well, my time is expired for the second time. And now I recognize the new member of our Committee, the gentlelady from Missouri, Mrs. Hartzler. Mrs. Hartzler. Thank you, Mr. Chairman. I appreciate you letting me sit in here today and participate in this very important hearing. And I certainly appreciate Dr. Michaels' leadership you provide to keeping our workers safe across the country. But as you do the enforcement, I think it needs to be coupled with common sense. And I was just wondering your opinion about some citations that I have heard about. So do you think that a company should be fined thousands of dollars because the emergency eyewash station, the water was too cold? Dr. Michaels. You know, I would have to look at the specifics. Obviously, that does seem questionable, but there are lots of issues in any one inspection, and the facts drive that decision. And so we would have to--I would be happy to look at that. Mrs. Hartzler. How about being fined thousands of dollars because you did not have a yellow line painted 10 feet from the edge of a flat roof? Dr. Michaels. Again, the same thing. But, you know, we have rules about protecting workers up on roofs, and we have too many fatalities, so we expect employers to follow that. If that were the only reason they got fined, we would have to look at it very carefully. Mrs. Hartzler. Or how about an extension cord that is in the wrong place? Dr. Michaels. Well, if the extension cord is frayed and someone could be tripping over it, we would have to--again, it is fact specific but I understand your concerns. Mrs. Hartzler. Yeah, my concerns are, I was wondering, you said you had a field manual. So how much discretion is given to OSHA employees when enforcing the regulations. If they find something are they able to say, ``Hey, why do you not unplug it and move it?'' Do they have that authority? Are they supposed to just slap them with a fine of 6,000 bucks right there? Dr. Michaels. No. The discretion actually is with the area director. The inspector is supposed to report what they see, and then the employer is supposed to meet with the area director and talk about what are the implications of this? Have they in good faith tried to eliminate the problems? Things like that. And the area director has a great deal of discretion around the fines. Mrs. Hartzler. So they have the discretion to totally eliminate it? Dr. Michaels. No. Here is the reason. If we had a policy where we said the first time we see a problem there is no fine, then everybody would say, ``Okay, we will not do anything until after we are caught once.'' We cannot allow that. But we think we have a tremendous amount of discretion. The other thing we tell small employers is, ``Look, we have a free consultation service. Once you get into that service, you are exempt from inspections while you are using that service,'' and that is what we want employers to do. Mrs. Hartzler. And I do commend you for that service, but I think it does not make sense to go ahead and fine--in my case, I mean, the stories that I have heard, it is almost like extortion. Small businesses are told, ``Okay, you are going to be fined for a nonserious violation.'' That is what we are talking about, $6,000. ``But if you agree not to appeal it, if you pay today, it is only $2,000.'' How is that different from extortion? Dr. Michaels. Well, you cannot be fined $6,000 for a nonserious violation. We have a very clear step system of penalties and the maximum penalty for a nonserious violation for the first time is quite a bit lower than that. Mrs. Hartzler. Well, still, thousands of dollars. If you are a family-owned business, that can have huge implications. I guess another question, you talked about your whistleblowers. How many inspections are a result of the employee who has been fired? Do you keep track of that? Dr. Michaels. I do not think we do. We keep track of health and safety inspections that come from complaints, and then we have a separate database when a worker has alleged that they have been retaliated against. And we have to match the two, you know, if we get both sets of complaints. But I do not know the answer to that. Mrs. Hartzler. I would encourage you to keep track of that because while there may be certainly legitimate cases, and we want to protect the worker in those cases, but then other times, would you concede that sometimes maybe retaliation does occur? Somebody got fired because of incompetence and something else and then they are going to get back at them. We will call OSHA and boy, they will come in and get them. Dr. Michaels. When we investigate allegations of retaliation, we often find that the retaliation that is being alleged did not occur and the retaliation or the firing occurred for other reasons. We do an independent investigation of those, and that is a common finding. On the other hand, we also find that workers have complained about safety and health reasons and then they are fired. And so we have to take the allegation very seriously, but I think we do a good job parsing that out. Mrs. Hartzler. Sure. Well, I just disagree with you, I guess, saying that you think that just doing away with a fine for something that is nonserious, that the company would not, you know, respond. I think you would have served your purpose in raising an awareness of a danger, but if it is something that could be fixed easily, the government should work with businesses, especially family-owned businesses instead of treating them like criminals and coming in with a clipboard and ``we gotcha'' type mentality. So I think OSHA and all government, we work for the people, and OSHA should have that attitude when they confront the businesses. Dr. Michaels. And we do. You know, we have a category of de minimis violations, ones where we issue no fine. But if someone could be hurt, we feel that there is some penalty that should be associated. It could be less than $100, but there has to be something associated with that. But again, we stress for these family-owned firms, we can help you for free. Let us do that before we send an inspector and before a worker gets hurt. Mrs. Hartzler. Sure. Thank you, Mr. Chairman. I yield back. Chairman Walberg. I thank the gentlelady. I now recognize the gentlelady from New York, Ms. Stefanik. Ms. Stefanik. Thank you. And I yield my time to Mr. Walberg. Chairman Walberg. I love this chairmanship. Great members. Thank you. The injury and illness hospitalization regulation went into effect as I understand it January 1, 2015. When does the agency expect the online reporting component of the injury and illness regulation to be available to employers? Dr. Michaels. I wish I could say. We are having some IT issues and it will not be available in the next few weeks I do not believe, but we are working hard on getting up there. Chairman Walberg. As long as the IT issues are not emails. Dr. Michaels. That is correct. They are not. Chairman Walberg. Okay. Well, we hope they come out as soon as possible. I know industry is waiting. Where in the final rule does OSHA explain how the agency would respond to the increased reports submitted under the injury and illness regulations? Dr. Michaels. Well, we do not explain in the final rule but I have explained it publicly many times and I would be happy to tell you what my approach to this is, which I think is one which most employers will welcome. What I tell our staff, our inspectors, is that if you get a report of a worker being injured, of a hospitalization or an amputation, you do not have to inspect. Obviously, fatalities, we absolutely have to inspect, and certain really serious injuries we do as well. But there is an opportunity cost. If we inspect this one workplace, then we cannot inspect the other workplace because we can only do the same number of inspections. So what we would like to do is use these notifications as teachable moments where if we can work with the employer on the telephone and get them into the consultation system and get them to respond to us and do an incident investigation where they understand the root causes of the injury and solve the problem themselves. We do not have to go out there, and therefore, there is no inspection and there is no fine. Right now, we are inspecting less than 40 percent of the reports, and I would like to drive that down even further because we think this can have an impact on workplaces without us actually ever going out to visit them. And that is particularly important in those places where our inspectors have to travel great distances to get to the workplaces. So I think we are making some progress. We have gotten reports where we have not inspected, but employers have reported to us that they have set up whole new systems as a result of this and we are pleased. Chairman Walberg. Did the August 2014 Injury and Illness Regulatory Proposal undergo OMB review? Dr. Michaels. It will. Chairman Walberg. It has not yet? Dr. Michaels. Which one is this called? Chairman Walberg. This is the Injury and Illness Regulatory Proposal, August 2014. Dr. Michaels. I think the one you are referring to---- Chairman Walberg. For under 250 employees. Dr. Michaels. Yeah. That one will undergo OMB review. Chairman Walberg. But it has not yet? Dr. Michaels. It has just been sent to OMB. We expect it will undergo it in the near future. Chairman Walberg. Okay. Let me move over to online training. Coming off of this desire to have workplaces with you on that and reduce the need for inspection if they submit to doing the right thing. OSHA's online outreach training program is the most broadly utilized online workplace safety training in the country. Since 2001, these courses have been provided by OSHA authorized entities. In 2008, OSHA established rigorous guidelines for the ongoing approval and regulation of these programs. The question is how is it that continued use of the 2008 guidelines is not the most practical way forward? Dr. Michaels. I think what you are referring to is our move towards a new system where we select the providers. The reason for that is we had some significant quality issues with some of the providers, and under our old system---- Chairman Walberg. You said quality issues? Dr. Michaels. Yes. We would get complaints from people who had signed up. The systems were not working. The quality of the online teaching really was not very good. And overseeing that quality was important because people would get a card that said they were an OSHA certified 10-hour or 30-hour participant. And so we have moved toward a system where we really can have better quality control, and we have gone through some real bumps on the road, and so we have to---- Chairman Walberg. Talk to us a little bit more about that. With these failed procurements that you have had--I think we would call it that. Dr. Michaels. Yes. Chairman Walberg. How are you going to address that? Dr. Michaels. Well, I believe, and I am not as up on this as others in the agency are, you know, essentially, most recently there has been a court decision that said that our description of what we wanted was fine except we had said that we would have access, essentially free access, copyright access to the materials developed by these contractors, by the people providing this online service. Everything else we asked for was fine. That, though, requires us to re-offer, to send out the offering again to get bids again. The rest does not have to change, but in the next procurement here, because it was a failed procurement, the next one has to say that we would not have the ability to essentially have free access and use to the educational materials developed by the contractor. So we will re-offer it, and then we will then go through the same process where applicants have to submit applications, and we will choose the applicants to fit each category and move forward. Chairman Walberg. Okay. Well, I wish you well on that because, again, it is a popular approach when it works. My time is expired. While we await the Ranking Member--I am glad she has arrived and everything is okay. I would like to recognize Representative Mike Rogers, who is not a subcommittee member but has some great interest in OSHA. Mr. Rogers, do you have any questions you would like--or comments you would like to make? Mr. Rogers. I would be happy to if I got a chance. Chairman Walberg. We recognize you. Mr. Rogers. Well, thank you. One of my concerns has been when OSHA comes in and does a plant inspection, just a regular annual or semi-annual plant inspection, there have been no accidents or injuries, and during an inspection they find that some machine or part of the plant is out of compliance with your rules or regulations for safety. They are told to bring it back into compliance and you will come back in to inspect it and confirm that has happened. But then, my experience, the company is not told exactly what they have to do to come back into compliance. My plants have told me that they are told, ``Get a consultant. That is not my job to tell you how to fix it. I can just tell you, you are out of compliance.'' They then hire a consultant, bring them in, fix the problem, call OSHA to come back in to verify that it has been corrected. OSHA says, ``It has been corrected. Here is your $50,000 fine.'' Why in the world would you not tell somebody what they have to do to come back into compliance? And then if nobody has been injured, they fix it within a reasonable amount of time, why would you fine them? And that has happened in two different companies in my district. Dr. Michaels. This in some ways is the same question that Representative Hartzler asked. There are a couple different issues. First, one thing I discussed earlier, what we really would like small employers to do is to bring in a free consultant, which we will help them get. We fund the free consultants, but they are separate from OSHA and they are independent. When an employer asks for a free consultant, we do not inspect during that period, and they will make sure that they are in compliance. We tend not to tell, or we do not tell employers exactly what they must do to fix it because we actually hear from employers all the time, ``Just, you know, do not be prescriptive. Your standards are there. Let us figure out how to get there.'' And, you know, there are some standards which are very clear what they have to--if a lockout tag, they have to have the lock. It has to be tagged out. It is all pretty straightforward. But there are other ones that say you have to have a system to address the problem, and they could come up with that system in ways that will address the problem. We have guidance that will say, ``If you do these things it will be effective.'' But we like to give employers a lot of leeway. What we do not do though is give them back the money or say there is no fine because if we say the first time there is a problem and you only fix it after we found it, what is the incentive for employers to abate hazards before we get there? And that is really the issue. If every employer thought, ``Well, I am not going to get fined until OSHA gets here the second time,'' who is going to fix things? Mr. Rogers. How are they going to know they are out of compliance? There is one particular plant that just stands out as egregious. The machine that OSHA came in and found to be out of compliance they had had for 30 years. Nobody had ever been injured on it. They did not know it was out of compliance. They had to paint a stripe on the floor and that brought them back into compliance. A yellow stripe that came out three feet, and they got a $50,000 fine. A $50,000 fine is obscene. Dr. Michaels. A $50,000 fine for no yellow line? Mr. Rogers. Correct. Dr. Michaels. Again, I would be surprised. I mean, usually---- Mr. Rogers. I was surprised, too. That is why I am here. Dr. Michaels. I would love to see--if you do not mind sharing that with me, we will take a look at it. Mr. Rogers. I would be happy to. I just find that obscene. And it is different if somebody had been injured and you would be right with that logic, but if somebody is not injured and you just find it during an inspection, give them a reasonable amount of time to fix it. If they fix it, free pass. I just do not understand why you feel like you have got to penalize somebody for trying to do right. Dr. Michaels. Well, you know, it is interesting. We actually do not penalize employers because a worker has been hurt or killed or injured. We only penalize them for the violation. In fact, we have had fatalities where there is no citation issued because no violation occurred. On the other hand, if the violation could have led to a worker being injured, whether or not they were injured, we feel we should issue the citation because it is a warning to that employer and to other employers that they cannot let those violations occur because maybe a worker has not been hurt by that machine, but another machine like it probably has hurt many workers, and we know that. Mr. Rogers. And if you had any information that the employer had knowledge they were out of compliance, you should fine them. But if you have no knowledge that they had any reason to believe they were out of compliance, you should not fine them. And while I am not on this Committee, I intend to do everything in my power to fix it that way before I leave Congress. Thank you. I yield back. Chairman Walberg. I thank the gentleman. And now I recognize the Ranking Member, Ms. Wilson, for her opening statement and questions. It is your floor. Ms. Wilson. One question. I think I will have time. Thank you so much, Chairman Walberg, for allowing me to make this opening statement, and I would like to welcome Dr. Michaels and thank him for testifying this morning. It has been four years since you last appeared before this Committee, so I thank you for coming back again and giving us the progress at the Occupational Safety and Health Administration. It is well known that your agency faces several obstacles to effectively enforce the rules that protect and promote worker safety. One of these major obstacles is budget constraints. OSHA only has enough inspectors to inspect each workplace in its jurisdiction once every 140 years. In my home state of Florida, OSHA has only enough inspectors to inspect each jobsite once every 256 years. I find it inexcusable that given these current conditions, a House budget bill would cut $32 million from OSHA's already sparse enforcement budget. This 14 percent cut would leave OSHA even less able to enforce standards that keep workers safe. Given its limited resources, OSHA must be able to use additional methods to monitor the health and safety conditions of our workplace. As a member of the Subcommittee on Workforce Protections, we are charged with examining the weaknesses in the OSH Act and proposing reforms to strengthen OSHA's ability to protect American workers. Firstly, we must ensure that the eight million state and local government workers in 24 states with no OSHA protections gain coverage. These workers, including the 894,000 workers in Florida, deserve OSHA protections, especially where the states are not stepping up to protect workers. The truth is, most employers are deeply committed to worker safety, but for those few employers who callously disregard the well-being of their workers, we must ensure that OSHA has the tools to act. This means raising OSHA's civil monetary policies which have not been adjusted for inflation since 1990. Penalties must serve as a strong deterrent, sending a clear message that if you do not value your workers you will surely pay. In preparing for the hearing, I was deeply saddened to hear Carlos Centeno's story. Carlos was a temporary worker at a Chicago-area factory. He was asked to clean a 500-gallon chemical tank with no safety gear other than latex gloves and rubber boots. An open hatch erupted, showering Carlos with a 185 degree solution of water and citric acid, burning over 80 percent of his body. Even though Carlos's skin was peeling, his employer refused to call 911. It took more than an hour and 40 minutes for Carlos to arrive at a burn unit. Sadly, he died three weeks later. As Carlos's son put it, the employer failed to think of him as a human being. When we hear egregious stories like this, it is shocking to know that for employers who willfully violate a health and safety requirement that causes a worker's death or fail to act to keep him from dying, the maximum criminal sanction under OSH Act is only a misdemeanor. Since 1970, there have been 390,000 workplace fatalities but only 88 prosecutions under the OSH Act. Mr. Chairman, reforms to address these and other weaknesses are included in the Protecting America's Workers Act, H.R. 2090. I would welcome the opportunity to work with you on a bipartisan basis to identify the highest priorities and begin work to strengthen and improve the OSH Act. I want to thank Dr. Michaels for being here today, and I look forward to hearing how we, as the Subcommittee on Workforce Protections, can help OSHA in its efforts to promote and protect the safe and healthy workplaces all Americans deserve. [The statement of Ms. Wilson follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Ms. Wilson. And I want to ask this one little question. What is the impact of this lack of coverage for this group of workers? What would you recommend Congress do to address this problem of incomplete coverage? I spoke about Carlos Centeno's story and how his employer refused to call 911. Does OSHA support strengthening criminal sanctions in the OSH Act? Dr. Michaels. We do. We know that the threat of criminal sanctions changes behavior, and in so many other areas we see the effectiveness of this. I mean, right now there is a big discussion in the food safety area. The owner of a company that sold contaminated peanuts that resulted in dozens of deaths and hundreds of people being made sick by the peanuts just has gotten I think 28 years in jail. And that sends a message out to other food manufacturers that they cannot get away with this. But there is no criminal penalty of any importance associated with the OSH Act. If a worker is killed and it is associated with a willful violation--in other words, the employer knew about this hazard and willfully left it there-- the maximum penalty is a misdemeanor, six months, and it is aimed at the corporation. People do not go to jail for that. I think it would make a big difference if--and we are talking about the tiny number of employers who really treat their workers this way, but we need to send them a message because these workers--that is where workers are being killed. Ms. Wilson. Thank you. I yield back. I have to vote. Chairman Walberg. I thank the gentlelady. We have votes coming, so we cannot belabor this. I want to say thank you, Dr. Michaels, for being here. Thank you for your work. I think this hearing, the value of this as we move forward and considering some of the things that are brought up today is to find a mechanism by which there can be a true partnership between business and industry and the government, specifically the regulator with OSHA. It is an important function. We hate hearing stories like that. We also hate hearing stories that were brought up by my colleague, Mr. Rogers, where maybe six months in jail would have been better than the $50,000 fine for painting a yellow strip. It just did not make sense. I think if we can promote the idea of that partnership that comes together with best practices from the industry and a working relationship from OSHA that says we are willing to listen to those and learn from those, in turn, that partnership might foster greater growth in our safety in the workplace. I do not think that any of us here at this dais want to stand in the way of the safety of the worker. And we do not want to stand in the way of the regulator that is working to the best interest, but we also want to be on the team with the employer who is not like that particular employer and is caring about their employees as well. Thanks again, and with no further questions before the Committee, it is adjourned. [Whereupon, at 1:56 p.m., the subcommittee was adjourned.] [Additional submissions by Chairman Walberg follow:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] [all]