BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

OF THE

COMMITTEE ON EDUCATION AND

THE WORKFORCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, APRIL 5, 2000

Printed for the use of the Committee on Education

and the Workforce

OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

OPENING STATEMENT OF RANKING MEMBER TIM ROEMER, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

STATEMENT OF DR. EDWARD MONTGOMERY, ACTING DEPUTY SECRETARY, UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D.C. *

STATEMENT OF ARTHUR G. SAPPER, ESQ., OSHA PRACTICE GROUP, McDERMOTT, WILL & EMERY, WASHINGTON, D.C. *

STATEMENT OF WILLIS J. GOLDSMITH, ESQ., PARTNER, JONES, DAY, REAVIS & POGUE, WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF CONGRESS, WASHINGTON, D.C. *

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

APPENDIX B - WRITTEN STATEMENT OF DR. EDWARD MONTGOMERY, ACTING DEPUTY SECRETARY, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. *

APPENDIX C - WRITTEN STATEMENT OF ARTHUR G. SAPPER, ESQ., OSHA PRACTICE GROUP, MC DERMOTT, WILL & EMERY, WASHINGTON, D.C. *

APPENDIX D - WRITTEN STATEMENT OF WILLIS J. GOLDSMITH, PARTNER, JONES, DAY, REAVIS & POGUE, WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF COMMERCE *

Table of Indexes *

 

The Subcommittee met, pursuant to call, at 10:00 a.m., in Room 2175, Rayburn House Office Building, Hon. Pete Hoekstra, Chairman of the Subcommittee, presiding.

Present: Representatives Hoekstra, Norwood, Schaffer, Roemer and Scott.

Staff Present: Faith Cristol, Professional Staff Member; Stephen Settle, Professional Staff Member; Jonathan DeWitte, Staff Assistant; Rob Green, Workforce Policy Coordinator; Peter Gunas, Workforce Policy Counsel; Dan Lara, Press Secretary; Patrick Lyden, Professional Staff Member; Michael Reynard, Media Assistant; Deborah Samantar, Office Manager; Brian Compagnone, Minority Staff Assistant; Michele Varnhagen, Minority Labor Counsel/Coordinator; Peter Rutledge, Minority Senior Legislative Associate; and Maria Cuprill, Minority Legislative Associate.

Chairman Hoekstra. Good morning. A quorum being present, the Subcommittee on Oversight and Investigations of the Committee on Education and the Workforce will come to order.

The Subcommittee is meeting today to hear testimony in exercise of its capacity to conduct oversight inquiries. Under rule 12(b) of our Committee rules, any oral opening statements at this hearing are limited to the Chairman and the Ranking Member. This allows us to focus on the hearing and get to the witnesses as soon as possible. Without objection, all Members' statements will be inserted in the hearing record. Without objection, thank you.

Also without objection, I ask that all documents referenced in the hearing be incorporated into the hearing record as well. Thank you; without objection so ordered.

I also ask unanimous consent that the record of this hearing be held open for 10 days for the submission of additional statements, information, or testimony relevant to this hearing. Without objection, let me get to my opening statement.

The Subcommittee is assembled to conduct the third in a series of hearings during the 106th Congress that explore public policies that address innovations and demographic shifts in our Nation's workplaces. At issue is how these policies impact the American worker and this Nation's free market economy.

We have had hearings similar to this before. Many of the findings were incorporated in the American Worker at a Crossroads Project. The issues that we want to reference today really deal with some of the rulemaking and the process that goes on within the Department of Labor.

We agree that the private sector innovation is a driving force behind the current robust American economy. Innovation oftentimes involves dynamic change in the work force policymaking that affects the way America works. Accordingly, companies that incorporate novel technologies into the work force will find unprecedented labor and employment questions. At issue is how our government can resolve these questions in the best interests of the workers and the economy.

Today we are examining one particular example of this policy resolution, an example that illustrates the uncertainty surrounding executive decision making in a vacuum. That was a policy shift that occurred at the U.S. Department of Labor between November 1999 and January 4 of 2000. I think there is much to learn by analyzing this example with those representing the Agency responsible for making the policy and with those representing the businesses that feel the harsh effects of this policy.

I think that we know what the policy wasn't. Today it is not our intent to belabor that policy. We are appreciative of the effort that has been made by a number of different people to take a look at that policy and hopefully move forward in a constructive way and resolve the issues that came from it. Mr. Roemer and I have been working together on that issue. We have included the business community, we have included the labor organizations, and we have also had, I think, a constructive dialogue with the Department of Labor. So we are appreciative of that kind of support, and hopefully based on that, we can continue to move forward. So again, thank you to Mr. Roemer and the Labor Department for the constructive dialogue that we have been able to have on that policy.

I think where we go from there is taking a look at how in the future we deal with those kinds of policy issues and those types of things. Our intent today is to get a better understanding of how the Labor Department sorts through those different kinds of issues, the kind of impact that it may have on the business community and on the economy and those types of things, and really have a constructive dialogue on the process that will enable us to move forward and enable everyone to understand that issue or that process in a more complete fashion. If there is a need for any clarification or need for modification, we can continue to do that in a constructive way.

With that I will yield to Mr. Roemer for his opening statement.

Mr. Roemer. I appreciate it, Mr. Chairman. I ask unanimous consent to revise and extend.

Chairman Hoekstra. Without objection, so ordered.

I look forward today to the witnesses testifying on rulemaking as it relates to telecommuting and the possibility, that I think Mr. Hoekstra and I have put an end to, of home inspections.

We had Mr. Jeffress up here a few months ago, and he gave us assurances with the instruction that OSHA was going forward, and that we would not have any further confusion on this issue. As a Democrat with a Democratic administration, I was as disappointed in initially finding out that there was a letter promulgated on this issue that may have led to confusion about whether or not the Department of Labor was, in fact, going to inspect people's homes. After dialogue with OSHA at a hearing, we have clarification, and we have assurances that will not take place.

I want to be clear with my constituents and with people back home in Indiana that Americans have a right to a certain level of privacy. That kind of promulgation of an instruction would have violated privacy. So I think we have worked through this.

I want to compliment OSHA and the Department of Labor on their response to our concern, and their enhanced sensitivity to this issue. I want to say, too, that we are very confident that OSHA understands this issue and our concerns.

We are not completely convinced that future Administrations are going to abide by what this Administration has agreed to, so Mr. Hoekstra and I have introduced legislation, H.R. 4080, the Home Office Worker Protection Act. We have worked very closely with the Department of Labor and OSHA, and we will continue to work with them on technical clarifications, if needed, to home in on what we all want to accomplish, and that is this safety issue and also the privacy issue. We see telecommuting and commuters, and home offices growing in scope and in number. We do not want to quash that with inspections in home offices. We think that we are on the right track and hope this will be a short hearing specifically on those concerns.

I do want to say to Secretary Jeffress, that I am encouraged by many of the things that have happened in OSHA lately. It is becoming an organization more focused on providing consultative assistance to businesses that are seeking safety advice, more emphasis on proactive rather than reactive fines or quotas on fines to our companies. Inspections have been abolished, while cooperative programs have gained wide support, and OSHA is quickly becoming more of a partner with business rather than an opponent of business. We want to see that continue.

Again, I would like to thank Mr. Hoekstra for working with me on this bipartisan piece of legislation. We look forward to Dr. Montgomery talking more about how he has worked together with us on this legislation, and again I hope we can keep the focus on what was published in the Washington Post today, and what we have told our colleagues this hearing is about, and that is about OSHA. They made a mistake; they are going to clarify it. We have bipartisan legislation to promulgate a rule, and we hope to go forward with that quickly in a bipartisan way.

With that, thank you, Mr. Chairman.

Chairman Hoekstra. Thank you.

Let me introduce the witnesses that we have with us today. We have Dr. Edward Montgomery, who is currently the Acting Deputy Secretary of the United States Department of Labor, the second highest-ranking official in the Department. He is responsible for the day-to-day oversight of all operations within the Agency and acts as the eyes and ears of the Secretary. Dr. Montgomery is an old friend of this Subcommittee, having testified previously in his role as Chief Economist of the Department of Labor. Welcome back. Good to see you.

Accompanying Dr. Montgomery to the witness table is Ms. Sally Paxton, who currently serves as the Deputy Solicitor of the Department of Labor. For those who may not be familiar with the Department of Labor structure, the solicitors are the Secretary of Labor's attorneys and bear primary responsibility for advising the Secretary on matters of administrative procedure. Thank you. Thank you for being here. Welcome.

Our third witness is Mr. Arthur Sapper. He is an attorney with the firm of McDermott, Will & Emery in the Washington, D.C. office. Mr. Sapper is following-up on his January 28, 2000 appearance before the Subcommittee when he first raised significant questions about the process at the Department of Labor. Welcome back to you, Mr. Sapper.

Our last panelist is Willis Goldsmith, who appears today on behalf of the United States Chamber of Commerce. Mr. Goldsmith is an attorney in the Washington, D.C., office of Jones, Day, Reavis & Pogue. Between Mr. Goldsmith and Mr. Sapper, I believe we have two of the most capable legal minds to discuss the operations of the Department of Labor. Welcome to you, Mr. Goldsmith.

I think with that we shall begin. Dr. Montgomery.

Dr. Montgomery. Mr. Chairman, Members of the Subcommittee, I am pleased to appear before this Subcommittee in response to your invitation to address the procedures that the Department of Labor uses in formulating its policies.

As you know, the Congress has given the Department a wide range of responsibilities. In addition to the agencies charged with enhancing the skills and competitiveness of America's workers, the Department has among its components four major enforcement agencies: the Employment and Standards Administration, which includes the Wage and Hour Division, the Office of Federal Contract Compliance Programs, and the Office of Labor Management Standards; the Occupational Safety and Health Administration; the Mine Safety and Health Administration; and the Pension and Welfare Benefits Administration. These DOL agencies administer a wide range of laws related to workers in the workplace, including safety and health in the workplace, the security of employee pension plans, minimum wage and overtime guarantees, family and medical leave, and equal employment opportunity, to just name a few.

In administering these laws the Department has a number of tools at its disposal, which include enforcement, compliance assistance and raising public awareness. Our front-line and national office staff responds to letters from workers and employers asking for assistance in understanding the requirements of the law. Our compliance officers investigate complaints of discrimination or unsafe working conditions. Our attorneys review draft rules for compliance with various rulemaking requirements and for legal soundness. Our Congressional affairs staff provides answers to questions asked by Members of Congress on behalf of their constituents.

The Department's approach to the execution and the administration of the laws we enforce is not haphazard. It is a product of agency and departmental management plans. These strategic management systems are designed to ensure that we make the right decisions to carry out our duties and responsibilities to American working families. Though no management system can change the fact that organizations run by humans will be fallible, a system can aim to minimize the number of mistakes and help ensure when mistakes are made, they are quickly caught and corrected.

Because the laws we carry out are so varied, so, too, are the tools we use to carry out our missions, policies and responsibilities. These tools include regulations, standards and other formal policy pronouncements, targeted programs and grants to help particular populations in need, enforcement actions, and compliance assistance to provide the public with the guidance as to their rights and responsibilities, including responses to individual requests for assistance.

Most employers believe in treating the workers fairly and want to comply with the law, but employers and workers inevitably have questions about the applications of these laws and regulations to the realities of their individual workplaces. They expect the Department to provide guidance and assistance. Congress as well has made it clear that agencies should be providing compliance assistance. SBREFA, the Small Business Regulatory Enforcement Fairness Act, specifically requires us to provide compliance assistance to small firms. Thus compliance assistance is one of the most important tools that the Department has to fulfill its responsibilities to faithfully execute the laws enacted by Congress. In fact, the issuance of compliance assistance materials is a long-standing and well-established practice followed by successive administrations.

Providing such information and guidance to the public covers a wide range of possibilities from answering simple questions, such as what is the current minimum wage, to complex and legal and technical applications of the law, such as what are the rules for pension funds and investing in derivatives. Each agency has developed its practices and procedures for responding to requests for assistance based on the volume and nature of the public inquiries it receives. While many inquiries are received on the telephone or by letter, agencies communicate with their customers in a whole variety of different ways.

We are aware of the new challenges confronting us as we respond to an increasing number of public inquiries. For instance, the Wage and Hour Division alone gets 5 million phone calls a year from the public. First, the Congress and the President directed us to restructure the Department to build a high-performance work organization with more power for front-line workers. Since this approach also requires us to place even greater reliance upon the judgment and discretion of front-line workers, we are continually exploring ways to improve the process so they are consistently producing high-quality advice.

Our second new challenge and opportunity is the Internet. While the Internet offers a new and exciting way to provide compliance assistance, it also presents a significant challenge. For the Department the Internet has proven to be a tool for providing information to American workers and business 24 hours a day, 7 days a week anywhere in the country. In fact, our Web sites receive over 150 million hits a year. That doesn't even include the America's Job Bank, which receives about 2.3 billion hits a year. Our use of the Internet, we believe, results in better understanding by employers and workers of the requirements of the law, and ultimately better protection for American workers and their families. On the other hand, however, fast communication and ready dissemination of materials through the Internet also means it is imperative that these materials be accurate and produced in a manner consistent with the Department's policies.

Our range of responsibilities and the increased need by the public for information and assistance requires us to have both agency-specific and department wide management systems to help ensure proper execution and administration of our laws. Each of DOL's agencies has its own management system befitting its particular mission and specific organic structure. Given the variation of the mission, a one-size-fits-all model would be inappropriate, but there are certain criteria, I believe, that guide the information and review of policy in all of our management systems: Is the policy new or a significant expansion of existing policy? Will the policy be generally applicable or affect more than an individual? And does the policy have the force and effect of law? As a general matter the Agency provides the highest levels of review to decisions and policies, which are new or sensitive, have widespread applicability, and have the force and effect of law.

The Department's agencies work hard to ensure that all documents generated undergo appropriate review and clearance prior to the release. As part of our process for ensuring agencies bring issues of significance to the attention of the Secretary or my attention before policies are made, we have a number of means to communicate. For example, the Secretary convenes weekly executive staff meetings attended by agency heads. As the Acting Deputy Secretary, I hold daily senior staff meetings with all agencies represented as well as biweekly meetings of the Management Review Council, which oversees the Department's integrated strategic and performance planning process. I also meet regularly with agency heads to discuss any significant issues pending before them.

In addition, we have a number of complementary department wide management systems in place to ensure that our methods and tools, especially public communications, receive the appropriate review within the Department. Clearance processes, both formal and informal, are in place to make sure that all policymaking documents are reviewed at the appropriate levels for soundness and consistency with overall Department policy.

Like all large organizations, human beings staff the Department, and we are fallible. Nevertheless, when we learn from our mistakes, we move quickly to correct them. As OSHA Assistant Secretary Jeffress recently discussed with this Subcommittee, our internal clearance mechanism for reviewing the OSHA November home work letter failed. It failed to raise it to the appropriate level of review.

Once we realized the unintended consequences of this action, however, we moved expeditiously to rectify our error. The Secretary withdrew the letter within 24 hours, and at your last hearing Assistant Secretary Jeffress committed to issuing a directive within 30 days to clarify our existing practice on not inspecting home offices. We did so after consultation and sharing it with Members of the Committee. We feel this was a most effective way to rectify this.

We are also pleased to continue to work with you, Mr. Chairman, and Mr. Roemer and other Members of the Committee on the legislation that you are crafting, which would put this issue further to rest.

I do not believe that the answer to this problem that we incurred with home offices is to stop giving employers and workers the information that they need, nor is the answer to stop disseminating the information over the Internet. In my view, that would be bad government, not good government. We can, however, examine our existing systems both to prevent future errors as well as to improve current efforts to provide timely and accurate information. The answer, I believe, will come from our ongoing efforts throughout the Department to make our good management systems better.

Accordingly, earlier this year the Secretary instructed our executive staff to increase their awareness of documents produced by their agencies and make sure they give the proper attention to decision making throughout their agency. She then initiated an in-depth review of our compliance assistance programs. Although this review is not yet completed, our preliminary results indicate that we need to focus on at least three issues: clear written procedures, including written criteria for clearing materials; methods to ensure consistent communications of these procedures to all staff; and high-quality, regularly scheduled training so that those who serve the public can provide the best possible assistance to the public. The Secretary and I are confident these goals can be attained.

OSHA, for example, has already taken a number of steps to improve its compliance assistance process and to ensure consistent policy communication. Assistant Secretary Jeffress is modifying OSHA's internal management directives to ensure that letters of interpretation that expand significantly upon new interpretations or previous interpretations or that raise new policy issues are referred to the Assistant Secretary for review. All appropriate staff is in the process of receiving training on this new directive.

As to the rest of the Department, we are working to ensure that we strengthen the management systems that are in place so that new and sensitive issues are raised to the appropriate level of review within the agency or within the Department.

In conclusion, compliance materials are an integral part of our mission of administrating and enforcing the laws passed by Congress. I am confident that we can continue to provide high-quality compliance assistance and first-rate customer service while ensuring the information we provide is accurate and appropriate. That is our goal, and the Secretary and I will maintain our efforts to make sure that we meet it. We look forward to continuing partnership with Congress on this issue and other issues that are so important to American workers and their families.

This concludes my remarks.

Chairman Hoekstra. Thank you very much.. Mr. Sapper.

Mr. Sapper. Thank you, Mr. Chairman, and Members of the Committee. I am Art Sapper, a partner in the OSHA Practice Group of the law firm of McDermott, Will & Emery here in Washington. When I was last privileged to appear before the Committee, I spoke about how judicial deference to OSHA encourages it to make policy through the back door, without the discipline of rulemaking, and I attributed the reason for the debacle about home office to the fact that the courts are deferring to OSHA on these matters.

Today you just heard from Dr. Montgomery that the Department aspires to make sure that sensitive policy issues are considered at the highest level of OSHA. I would respectfully observe to the Committee that this is precisely the problem, that sensitive policy issues should not be decided through interpretation letters, no matter how high they are considered within OSHA. The underlying reason why OSHA does this is that there is excessive judicial deference to OSHA, deference that Congress never intended.

The Chairman has asked that I present the Committee with further examples of how judicial deference to OSHA has created this problem, and so I shall, but before I do so, Mr. Chairman, I would just like to briefly review exactly what I mean by judicial deference to OSHA.

In a case called CF&I Steel, the Supreme Court held that courts must uphold OSHA's legal interpretations if they are merely reasonable. They don't have to be correct. So the court is required to uphold OSHA even if the court thinks that OSHA's interpretation is wrong or that the employer is right.

If you take a look at the slide on the screen that basically captures the way that OSHA standards are interpreted today. You will see that if the standard is ambiguous and OSHA's interpretation is reasonable, OSHA wins. The words that you will not see on that slide are "correct" or "right." OSHA doesn't have to be right. You also will not see the phrase "most reasonable." And, in fact, if you go to the next slide, you will see an excerpt from a brief that OSHA filed that says that OSHA's view is controlling even if it is one of several reasonable interpretations, and even if there are more reasonable interpretations.

Translating that into English, let's go to the next one, this is what it means in English. If the court believes that OSHA's interpretation is wrong, OSHA wins; that the employer's interpretation is better, OSHA still wins; that the employer's interpretation is right, OSHA wins again; but what the employer has to show is that OSHA's view is unreasonable. That is extraordinarily difficult, Mr. Chairman.

So the question is when do employers win? When the employer manages to somehow prove, which is extraordinarily difficult, that OSHA is not just wrong, but clearly wrong. Why is that difficult? Because many OSHA standards are so badly written that you really can't tell what the drafters meant, and sometimes OSHA is deliberately ambiguous, and in fact, there is a problem. If you will go to the next slide, the problem is that the judicial deference, as the third bullet point there points out, encourages OSHA to write ambiguities into its standards. Why? Because the more ambiguous the standard, the more judicial deference OSHA gets.

So OSHA lately has been drafting its standards with ambiguities built in. For example, a proposed ergonomic standard five times uses the word "reasonable." There is hardly a more ambiguous word than that. But there is more, because by using OSHA interpretation letters, the agency can evade congressional oversight, can evade oversight by the Office of Management and Budget, and can avoid the necessity to prove that it is actually imposing feasible requirements on employers.

Congress has in the OSH Act required that before OSHA can adopt a requirement, that it should require that the requirement is feasible. If OSHA can expand the standard through the back door of merely issuing an interpretation letter, no matter how high a level it goes, they can evade that requirement. They don't have to prove anything, they can just pronounce.

I would like to give the Committee some examples of exactly what I mean. This, Mr. Chairman, is what is factually known as the blue book. You see OSHA has a regulation out there that tells employers they have to record injuries and illnesses on the log. So the question arises if an injury is severe enough to warrant reporting on the log, and there is something in here that says if you use a certain kind of bandage in lieu of sutures, then you do have to record it. That is what the blue book says. The Review Commission has put out a decision. This is the agency that Congress enacted to be a check on OSHA that has put out a decision that says the blue book must be followed. OSHA has put out a letter that says, "we don't care."

This is the letter to a Mr. Larry Cray, which the staff has and can distribute copies of. Here is what it says. It says that you have to record these injuries, quote, "despite the review commission language you cited." In other words, OSHA has become so emboldened, and so arrogant, that it is telling employers in interpretation letters, we don't care what our own blue book says, we are changing our interpretation. We don't care what the Review Commission says, we don't agree with their interpretation. You do it our way.

This is just one example. I was doing some research last night in my office, and I tripped across another one, Mr. Chairman. I will not go into details, but this time it is on lock-out/tag-out. This involves a case that OSHA lost before the Review Commission and the court of appeals, and they still tell employers in interpretation letters they are not going to follow it.

There is another case I would like to bring to the Committee's attention. That is the American Cyanamid case. This was decided around 7 years ago. The issue is if you have a label on a chemical container and it says, "Do not inhale," is that a good enough label? OSHA says no. It has to say, "Causes lung damage." It has to identify the organ that is going to be harmed. It is called target organ labeling.

There is one big problem with OSHA's position. If you read the standard, it is not there. You don't see any such requirement. Instead what OSHA was pointing to is an obscure statement in an appendix to the standard that was ambiguous. The Review Commission said OSHA is wrong, it doesn't require that. The Sixth Circuit said we don't care. OSHA's view is reasonable, and so millions of product labels had to be reprinted, tens of thousands had to be rewritten not because OSHA in rulemaking made a policy decision that this is the way it should be, but because later on after the standard was adopted, an internal debate was resolved within OSHA to that effect. In fact, I have a brief from OSHA that repeatedly hammers home we are reasonable, not we are right.

There is a case that was recently decided by the 10th Circuit called Universal Construction. This case was about a very troubling issue under the Occupational Safety and Health Administration, whether a general contractor is necessarily liable for violations created by a subcontractor. Now, if you look at the Occupational Safety and Health Administration's words, you can't see any such liability. You cannot tell that Congress meant to impose liability there. If you look at the legislative history, as the Court of Appeals said, the legislative history on this is, quote, nonexistent. So if you were an employer in this situation, you would think that you would win, right, because there is nothing in the statute and nothing in the legislative history for the court to say you are guilty with. The employer was found guilty because OSHA's interpretation was, as a policy matter found, reasonable.

I would also like to call the Committee's attention to OSHA's present position on the lock-out/tag-out standard. That is essentially a standard that says if you are servicing a machine, you have to shut it off and lock the off switch in the off position so it can't restart. Question: Do you have to train your employees in how to lock out? Yes. Do you have to train your employees to lock out each and every machine they might ever be called upon to lock out; the so-called machine-specific training? Read the standard. There is no requirement for it that clearly appears in the text of the words. In fact, the text seems to be against it. There is nothing in the preamble that says there is such a duty, and it is extraordinarily expensive, extraordinarily.

Take a typical manufacturing plant; there are hundreds of machines. What are you going to do, train each one of your maintenance employees on how to lock each and every one of them, assuming he would remember years later when he finally gets around to doing it?

Well, try and prove OSHA's interpretation is unreasonable. We recently had a very large industrial client tell us that he would rather not litigate the issue, he would just accede to OSHA and absorb the cost. That is what happens every day, Mr. Chairman.

As I also pointed out at the last hearing on this issue, there is absolutely no doubt that Congress never intended this. The legislative history of the statute is crystal clear, that the drafter of the compromise that saved the Act told Congress cases would be decided, quote, without regard to OSHA's view. Nevertheless, the Supreme Court held the opposite. Why? Because this legislative history unfortunately was never brought to the Court's attention. And so we have this mess.

It is time to cure this problem now, and as I have suggested, the way to do it is to no longer say that OSHA gets the benefit of the interpretive doubt. That is supposed to go to the employer. If a standard is ambiguous, the ambiguity should be resolved in favor of the employer that OSHA is prosecuting. If that is the rule, then you will not have major policy issues resolved through the back door without rulemaking, and that is the forum that Congress intended these questions to be resolved in.

Though I have the greatest respect for Dr. Montgomery, he is only a public official. And the Congress has decided that major policy issues should be decided with the participation of the public and through the discipline of rulemaking.

I thank the Committee for its time.

Chairman Hoekstra. Thank you. Mr. Goldsmith.

Mr. Goldsmith. Thank you, Mr. Chairman, and Members of the Subcommittee. I very much appreciate the opportunity to appear before you this morning and the privilege indeed of appearing before you on behalf of the U.S. Chamber of Commerce. My name is Willis Goldsmith. As the record reflects, I have had over 25 years of advising employers and litigating cases under the Occupational Safety and Health Act. I am partner in the Washington, D.C., firm of Jones, Day, Reavis & Pogue.

I will not go over the written testimony that I have provided to the Committee. I think and hope that it is quite clear there as to the basis for the Chamber's objection to the way in which the current rulemaking with respect to the proposed ergonomics rule is being conducted. I do, however, want to make a few points that I think highlight the problems that the Chamber has with respect to this rulemaking and with respect in particular to the procedural rules that are in place.

I will not in my comments address the substance of the ergonomics proposed rule. I think that is a matter for another day.

There are a few things that I think are abundantly clear, clear beyond any question, in the statute and in the regulations that govern how OSHA is to conduct rulemaking. The Act does have very specific rules for how rulemaking is supposed to be run. The purpose of rulemaking under the Occupational Safety and Health Act is without question designed to provide public input into the rulemaking process. And we believe, and I think the Act and the cases are clear, that public input, of course, means meaningful public input.

The regulations that were promulgated many years ago to implement the rulemaking procedures under the act underscore this point. For example, these regulations provide that the providing officer "shall" provide an opportunity for cross-examination on crucial issues. It says "cross examination"; it doesn't say "question." It refers to crucial issues. We believe that based on what has transpired so far in connection with the proposed rule on ergonomics, that there has been a deliberate attempt by the Agency to circumvent the statutory and regulatory requirement that there be meaningful public input into this process.

Let me just give the Committee a few examples based on the first 6-1/2 days of hearing here. The first presenters in support of the standard were members of an OSHA panel. There were nine people who comprised that panel. Despite our requests that the identity of the people who would testify on behalf of OSHA in support of the proposed rule be made known to the public, that request was denied, and the first we knew about who was going to testify from the Agency in support of the standard was at 9:30 in the morning on March 13. That was the time and date that the hearing opened.

We next were presented with 29 expert witnesses. There was no meaningful opportunity whatsoever to prepare for the cross-examination or even, to use a loser term, the questioning of these witnesses. Their identities were made known before the hearing, but only a few days before the hearing. These are people who have written extensively on the subject matter of ergonomics. These are people who have testified in other proceedings. These are people who have contributed in meaningful ways to the drafting of this standard, and yet no one was given any opportunity to see a written statement prepared by them in advance, significantly enough in advance to prepare for the hearing, and certainly not enough time to prepare any kind of meaningful examination. I have cross-examined many witnesses in many contexts, and the key to any cross-examination is, of course, preparing. Nobody was given that opportunity.

Then in that same 6-1/2-day period, there were 8 to 10 witnesses from the National Institutes for Occupational Safety and Health, NIOSH. The same rules applied. No timely notice of who was going to testify, no real opportunity to in any way prepare for the examination of these witnesses.

I must underscore the fact that the hearings themselves began only 11 days after the comment period closed. That is 11 calendar days, 7 business days after the comment period closed. So for those people who were working on their comments that were to be submitted on March 2, they really had no time at all to get ready for this hearing.

Of course, the scheduling of these witnesses was left entirely to the Agency's discretion. There was absolutely nothing that required these witnesses, in many ways the most important witnesses who would testify in the proceeding, to come first. There was no reason they had to testify in Washington. They could have come last. They could have testified in Portland, and people would have had some opportunity to prepare for the examination of these witnesses. However, the Agency chose to put them on first, and, in sum, to put on 46 to 48 witnesses in 6-1/2 days, beginning 11 days after the close of the comment period.

This was not an accident. It couldn't have been an accident. The Assistant Secretary scheduled this hearing, and he scheduled it to be run in this way. The bottom line from the Chamber's perspective and that of any fair-minded person trying to get to the bottom of the very difficult issues raised in this proposed rule, is the way the hearing is being conducted, is really a sham. This is a word that I don't use lightly. This is not designed to give the public a meaningful opportunity to have input into this proposed rule. This is simply a vehicle to get the process over so that the proposed rule as published will come out unchanged virtually, and I think probably that's a certainty when the final regulation is put out.

Now, we understand and agree that the Agency has great leeway in terms of how it structures a rulemaking proceeding. However, we also believe that there is a procedural level below which the Agency simply cannot sink. It seems clear to us that the way this rulemaking is being conducted now cannot possibly square with any reasonable interpretation of the statute's mandate for meaningful, important public input into the promulgation of the standard.

In closing, I would just like to address two points that were noted in our comments, but I have additional information regarding them that I would like to bring to the Committee's attention. The first is that our comments note that at least as of March 30, and indeed as of yesterday morning, we had had significant difficulties in obtaining any information concerning the availability of the transcript of these proceedings. Indeed we were told on March 30 that the Department of Labor was declining to identify the court reporter. It turns out that yesterday afternoon we got a call from the Department of Labor identifying to us for the first time who the court reporter was.

The second point that I would like to address is that we did make a point that the fact that hearings were not being held in the Southern United States was inexcusable and inexplicable. It was brought to my attention yesterday that Secretary Herman has written a letter to the Committee explaining, as I read it, that the reason it was unnecessary to schedule hearings in the South is because of the vast number of stakeholders and best practices meetings that were held at various points and various locations during the last several years.

I just want to make one very important point about that, and that is that the statute says absolutely nothing about stakeholder meetings. It says absolutely nothing about best practices meetings. I think it is clear beyond any question that stakeholder meetings and best practices meetings are absolutely no substitute for the statutorily mandated rulemaking process. That is especially the case here when one takes into account the way in which these stakeholder meetings were scheduled, the way in which people were invited to participate in them, and, more importantly, the fact that these stakeholder meetings were really not designed to get at the crucial issues raised by this ergonomic standard. They were really designed to get people's ideas about how the proposed and then draft standards could be tweaked in order to be promulgated as final.

Thank you very much for your time. I would be happy to answer any questions that you may have.

Chairman Hoekstra. Thank you very much.

Mr. Roemer. Mr. Chairman, the name of the hearing is called "rulemaking at the U.S. Department of Labor, OSHA's employee work-at-home policy," and we have expanded that somewhat by Mr. Goldsmith and Mr. Sapper. I wonder, not taking out of my time, if you would give Dr. Montgomery and Ms. Paxton the opportunity to respond to some of the procedural things that were brought up by the witnesses.

Mr. Norwood. I object, Mr. Chairman. We are going to hear from Ms. Paxton right now. This is a small hearing.

Chairman Hoekstra. Actually, we are not going to hear from Ms. Paxton. If Mr. Norwood objects, I will go to Mr. Norwood for questions, and when it is my turn for questioning, I will be more than willing to give Dr. Montgomery 5 minutes to respond to Mr. Goldsmith and Mr. Sapper. Is that all right?

Mr. Roemer. That is fine with me. I would just ask my good friend from Georgia, with only three Members here and not a lot of Members running to the microphones to get time, why we can't have the Administration witnesses just simply respond, probably in 3 or 4 minutes, to some of the accusations made?

Mr. Norwood. I would say to my good friend Mr. Roemer, we are going to be here all morning if you want to. If you want to give Dr. Montgomery your time, do it.

Mr. Roemer. That is precisely what I am trying not do. I thought he would give me the congressional courtesy of letting our witnesses speak a couple of minutes. I am happy to trust the Chairman's gavel on my turn, and we will let Mr. Norwood proceed, as anxious as he is, with his questions.

Chairman Hoekstra. We will proceed with Mr. Norwood, but I am more than willing to give Dr. Montgomery and Ms. Paxton some time to respond to those discussions, because I think we are here to find out how the rulemaking process works or where it may need to be improved and those types of things. To do that we are going to need a full hearing from the Department of Labor on some of the things that Mr. Sapper and Mr. Goldsmith have talked about.

We will begin with Mr. Norwood.

Mr. Norwood. Thank you, Mr. Chairman.

Dr. Montgomery, could you give me a quick answer so I could begin my questions. How many OSHA employees are there in Washington, just a round number? I don't need an exact number.

Dr. Montgomery. Approximately 800.

Mr. Norwood. I would like to state to you, Mr. Chairman, that I am not really fearful of Qaddafi or Hussein or communism or Russia or Korea. My greatest concern in the world is unelected bureaucrats in Washington, D.C., who write Federal law through the rulemaking process. I don't believe there is anybody I know that would deny that, and I am not zeroing in just on OSHA or the Labor Department. The problem is widespread in Washington, and the rulemaking process, through my life experiences, simply doesn’t work. They are unfair. There is a goal set, and then we design the rules to get to that goal, and that is why we are here today.

Richard Fairfax, an employee of OSHA, the Director of Compliance Programs, writes a letter on his own, and we spend thousands of man-hours and thousands of dollars trying to correct the silliest things. I actually hoped you guys would try to do that. Politically I can't think of anything on Earth that could be better than people having inspectors in their homes, but Mr. Jeffress very cleverly and very quickly corrected that, and I congratulate him for that.

I want to associate my feelings with Mr. Sapper particularly. I think you were precisely and exactly right on. I am not saying that necessarily as a Congressman, just as a citizen of this country, and my life experiences tell me that you were explaining it very well.

I am very happy that our Chairman and Mr. Roemer have a bill what did you call it, Home Protection Act? I think that is precisely the thing to do, but here is the problem. Our Oversight Committee has five employees. OSHA has 800 employees. There is no way we can write a bill every time Mr. Fairfax dreams something up.

So my question is, Mr. Sapper, is that sort of covering over the problem? What is the basic task that we in Congress have to do to straighten out this rulemaking, actually lawmaking, process that is done by the Federal agencies? What would you suggest we do so that this type of thing can't consistently occur? Because we just can't combat them one at a time.

Mr. Sapper. The first thing the Congress should do is remove the incentive that the courts have given to OSHA to avoid rulemaking, and remove the incentive that the courts have given to OSHA to enact vague rules. That is remove the presumption that favors OSHA if there is an ambiguity. Instead of OSHA getting the benefit of the interpretive doubt, give it to the employer who is being prosecuted.

If the Congress were writing the OSH Act today, I don't think there is any doubt that that would be the rule of construction that the Congress would write into the law. That was essentially what Congress did, in fact, intend, and OSHA has never denied that. And that is what Congress should now make clear. If you do that, you solve a great many of the problems.

Again, though I have the greatest amount of respect for Dr. Montgomery, he should not be resolving policy interpretation letters no matter how high up they go. If they are major policy issues, they should be ventilated and decided through the discipline of rulemaking. I would reverse the benefit of the doubt that goes to OSHA, give it to the employer. That would cure a lot of problems.

Mr. Norwood. Is there an alternative to just giving it to the employer? I can hear the other side now with that. They are going to immediately presume that the employer is always going to try to have an unsafe workplace. Is there somewhere in between? I know we can't spell out every word in the legislation, but how do we get this to a fair point where we can actually change the law so there is not so much room for interpretation by either side?

Mr. Sapper. Well, to eliminate the room for interpretation, I would again respectfully urge the Congress to eliminate the incentive that OSHA now has to create the ambiguity that requires interpretation. If there is no ambiguity, there is nothing to interpret. So I would urge the Congress to eliminate that incentive.

There is an alternative, not a very good one, and that is to simply say that no one will get any deference in the courts. That is to say, just interpret. The trouble with that is that would put interpretations into the hands of the courts, and they would be as much at sea in making these policy decisions as OSHA is; in fact, even more so.

That is not a very satisfactory alternative. The best alternative is simply to say if you have a policy issue, resolve it in rulemaking. I don't think that is an extreme proposal at all. I think that is the way that Congress intended in 1970.

Mr. Norwood. I see the red light, Mr. Chairman.

Chairman Hoekstra. We are experiencing some technical difficulties, but the red light does mean that your time is up. It was 5 minutes and now our clock has stopped at 5 minutes and 40 seconds and holding.

Dr. Montgomery, I am sure that you have got some things that you would like to say. I will yield my time as much as you think is necessary.

Dr. Montgomery. Thank you, Mr. Chairman.

As a nonlawyer I always hesitate to engage in detailed legal discussions with my esteemed colleagues here, who are clearly very experienced, but there are a couple of points I would like to make about the testimony that was offered by Mr. Sapper and Mr. Goldsmith.

First, the question of whether OSHA has an incentive to issue vague rules and statements. Our objective under the OSH Act and the objective of OSHA are to make sure that American workers and American families are safe on the job, and that they can go to work and come home uninjured, and they don't die on the job. Given the size of OSHA, given the millions of workplaces and hundreds of millions of workers out there, we need to rely on employers and workers primarily to provide for the safe provision of laws and safe provisions of workplaces in compliance with the laws. To have a statute that is vague would prevent that goal.

We need voluntary compliance assistance as the primary mechanism for adhering to the law. If we make that law deliberately vague, how in the world would the employers have any idea how to make the world safe? That would be defeating the very objective that we are trying to achieve.

The courts have also have acknowledged the reasonableness interpretation, but they have added to that reasonableness interpretation that the interpretation that OSHA puts forward has to be consistent with the legislative history, has to be consistent with the previous policy statements, and so it has to have some grounding. It is not purely a toss-up of the coin in terms of the reasonable deference.

As Mr. Sapper pointed out, the reason that the courts have taken that position is a reflection of the fact that Congress has empowered the agencies. This is the agency that every day is administering these laws and getting experience in these laws. So it defers to their experience as to what the laws and regulations meant.

I think on those scopes we don't have an incentive for vagueness, and there is a longstanding tradition of why the deference does go to the agencies, but that deference isn't absolute at all.

As for the questions about the ergonomics proceeding, again, I think it is important to remember that we have had a long series of dialogue on the ergonomics rule that has taken both formal and informal tones. Yes, we have had stakeholder meetings and dialogue. We have been talking about the ergonomics rule for 8 years. Since we put out the ANPRM, advanced notice of proposed rulemaking, in 1992, we had numerous stakeholder meetings during that time period. Then we put out a draft of the rule over a year ago in February of this year to brief a panel where people had months to comment and look at that draft of the rule as part of that process. Then as part of the hearing process we had 100 days of pre-hearing comments. Rather than a single hearing as we often do, we had three hearings around the country furthering this procession. We had 9 weeks of public hearings. We left the record open 6 to 9 months after the public hearings were over for people to put evidence into the record; weeks, not months. I will get my terms right.

So I believe there was ample opportunity for people to get input into the record, to have a chance to cross-examine and to question witnesses. And again, the structure that we have settled on here is a reflection of the fact that these are supposed to be hearings much like congressional hearings, not cross-examinations, not trials. As much as Congress allows people to have their views known, they put limits on time. The question is are people getting their chance to input, and in many cases have people had multiple opportunities to cross-examine or question witnesses?

I think we are running a process. We are allowing for lots of public input, and we are allowing for public input from people in the Northeast. We are allowing input for people from the South. We find that about one in five of the people that indicate they want to testify have southern addresses. So it is not clear to me that the people in the South have not had an opportunity to participate in the process adequately. Thank you.

Chairman Hoekstra. Thank you.

I will yield to Mr. Roemer.

Mr. Roemer. Mr. Sapper, just a quick question or two to you with respect to your testimony. You criticize the CF&I Steel Corporation case. What administration took that case?

Mr. Sapper. I believe it was the administration of President Bush.

Mr. Roemer. So what Labor Department was responsible for arguing that case?

Mr. Sapper. A Republican Labor Department, sir.

Mr. Roemer. That was Lynn Martin, I believe, at the time?

Mr. Sapper. Yes, it was, sir.

Mr. Roemer. Do you remember the Supreme Court decision?

Mr. Sapper. Yes, sir.

Mr. Roemer. Was it unanimous?

Mr. Sapper. Yes, nine to nothing.

Mr. Roemer. So Rehnquist and many of the other Nixon and Reagan and Bush appointees even agreed?

Mr. Sapper. Absolutely. They all agreed. If I may speak to that for just a moment, given what they had before them, I wasn't surprised. In other words, if you take the briefs that they had, it was perfectly reasonable for them to come out the way they did. The problem was the Supreme Court was not told about this very crucial piece of legislative history. They never discussed it. Had the employers brought that to them, you would have seen a very different Supreme Court decision because it speaks directly to the issue. OSHA has never denied that.

Mr. Roemer. Mr. Sapper, with all due respect, you are an attorney, and I am not, and you probably make a lot more than I do, I am sure. I don't know that I want to get into the merits of a legal discussion with you, but to argue that nine Justices of the Supreme Court didn't have the proper information or briefs in front of them. It was a nine to nothing decision. The Bush administration took it through Lynn Martin. It is kind of like Mr. Goldsmith arguing that we need to change the whole format of how we have these public comments. It is like saying to us in this hearing that Mr. Goldsmith should have the opportunity to cross-examine us in this process. That is not how the process is set up.

Mr. Sapper. I am not sure I quite take your point, sir, but let me point out this. There is a culture within the Department of Labor that is a big flywheel. It has not changed that much from administration to administration. They are always pushing, more or less depending upon who is President at the time, to expand the Agency's powers.

This case didn't surprise me in the slightest that it was brought by a Republican Labor Department. That is not a surprise. Again, I am not saying the Supreme Court decision was wrong. I am saying the Supreme Court was simply not given the full history.

Mr. Roemer. So do you think, then, that with regard to the courts giving deference to decisions, whether it be the SEC or the Department of Justice, is it just OSHA to whom the courts should not give deference?

Mr. Sapper. That is a separate issue. I can say this. Congress specifically determined that for an agency of this sort, this intrusive, this ubiquitous, this Agency should not be given deference. That is absolutely clear from the legislative history. This Committee does not have to decide how the balance should be struck with other agencies. Certainly for OSHA, as intrusive and ubiquitous as it is, Congress decided, and quite reasonably, not to give it deference. Congress decides these things and should on an agency-by-agency basis.

Mr. Roemer. Okay. I guess with that I would skip back over to Dr. Montgomery here for a second and ask him a question or two.

Dr. Montgomery, again, I want to reiterate my appreciation for the cooperation that you guys have shown working with Mr. Hoekstra and I on bipartisan legislation. But my question is somewhat different. With regard to the OSHA Act, specifically how would you characterize the Department's enforcement efforts? Are we succeeding in reducing injuries? Are we also in that effort reducing injuries? How helpful has compliance assistance been to that process of reducing injuries?

Dr. Montgomery. Thank you, Mr. Roemer. I think the record is crystal clear about the success that OSHA has had since its creation, particularly in the last 3 or 4 years, in reducing illnesses and injuries. They are at record lows since 1972, when approximately 11 workers per 100 were injured on the job. We have cut that rate to around 6-1/2 percent.

There have been dramatic improvements in the safety and health that workers can expect and receive on the job at their workplaces. I think that is directly related to the dedication of the OSHA employees and the fact that they are using a more effective set of tools to improve compliance, and to achieve compliance. That involves not only enforcement actions, but also implies greater reliance on compliance assistance. We are trying to avoid the "got you" mentality that may have dominated in the past and recognize that most employers and most workers want to have safe workplaces and work with them.

Compliance assistance has become an increasingly important tool in achieving the objectives that we have, and we do more and more of it each year. This is something that the Congress has asked us to do more of. Compliance assistance is something that the OSH Act requires us to do. Compliance assistance is something that SBREFA requires or asks us to do. This is something that the administration has supported in terms of expanding compliance. So we want to continue on in that vein.

Mr. Roemer. Thank you.

Last question, Mr. Chairman, for Mr. Goldsmith. You claim that OSHA is guilty of, quote, "procedural infirmities," unquote. But if OSHA has violated these rules and laws, won't the courts strike that down?

Mr. Goldsmith. Well, we certainly hope so. If these proceedings continue along these lines, those are the arguments that we will certainly make, because we believe that any court of appeals reviewing this proposed rule, if it becomes a final rule promulgated in a way that this rulemaking process is going, will look with great disfavor on the Agency's conduct. But that doesn't seem to me to be any way to run a railroad. If the Agency is put on notice that the procedures that it is following in a rulemaking are from the beginning fatally flawed, why go through this process when it is possible to simply change the rules and allow the public to have meaningful input?

That is exactly what the statute and the regulations require, and that is what makes cross-examination in the context of rulemaking very different, for example, than cross examining, with all due respect, the Committee. The fact is there is a statute that mandates meaningful public input. The Department in promulgating regulation said that meaningful public input requires cross-examination on crucial issues.

So yes, I think a court will turn it around. But why should we have to go through that? Why should we have to go through another 9 weeks, another week here, another several weeks in Chicago, with some weeks in Portland, and then take the time to write post hearing comments when we think, and we think a court will think, that the whole process is flawed.

Mr. Roemer. Thank you, Mr. Chairman.

Chairman Hoekstra. Mr. Norwood.

Mr. Norwood. Dr. Montgomery, I just want to go on record to say that I don't agree with you that most of the rules are intentionally vague.

So, Mr. Goldsmith, how can you clear this ambiguity up for your clients, that goes on when OSHA really doesn't even give you the opportunity to cross-examine their experts and their officials in different hearings? In our hearings we have a fairly good dialogue back and forth, and I don't understand how you can get to the clarifying point when you can't talk to them.

Mr. Goldsmith. I think you are exactly right, Congressman Norwood. In fact, it is not possible to explain to your clients how this proposed rule, if it becomes a final rule, would operate. I think the best evidence of that is the fact that in the rulemaking itself, the Agency has gone to great lengths to say absolutely nothing about the three cases that have been tried to completion and that the Agency has very badly lost all three of them.

I had the fortune or misfortune of trying one of those cases. And in that case, the Dayton Tire case, a division of Bridgestone-Firestone, the government took 33-1/2 trial days to try to explain what it was asking the employer to do and what abatements it was asking the employer to implement. We put on one witness for 1-1/2 days, and the administrative law judge found that after OSHA's 33-1/2 days and 50 witnesses trying to explain what ergonomics was in the context of the 72-acre passenger tire facility, that they hadn't established that there was a hazard, and the case was dismissed in its entirety and never appealed.

So if OSHA can't explain to an administrative law judge with 50 witnesses in 33-1/2 days what is at issue, I certainly can't explain to a client who will ask what does it mean when a regulation says I should be wary of repetitive motion? I don't really know the answer to that question. Repetitive motion may seem very different to you than it is to me; the same with all of the other ergonomic risk factors that are under this proposed rule. I don't mean to get into the substance of the proposed rules, but that is an important question.

The answer to it is nobody knows how to advise people as to what this rule will mean. If you can't cross examine people to get to the heart of it to find out from OSHA's own experts what these terms mean and how these terms will be implemented and enforced in the context of a rulemaking proceeding, then the rulemaking proceeding is, I am sorry to say, a complete waste of time.

Mr. Norwood. Dr. Montgomery, how many opinion letters did OSHA put out in 1999? People calling, writing, saying, I don't understand this rule, I don't understand this statute, what does it mean? How many times did you folks have to answer that kind of thing?

Dr. Montgomery. I believe over 1,000, sir.

Mr. Norwood. Closer to 2,000 maybe? Nineteen hundred, I believe is the number. One would ask oneself if everything is so up and up and so clear either in statute or rule, why are these people writing and asking, what does this mean? That is making the assumption that most of us in small business can't hire Mr. Goldsmith or Mr. Sapper to try to find out what the rule actually means. Wouldn't you agree that is a large number of people writing in trying to understand the rule?

Dr. Montgomery. Well, I think it is important to put that in the context of the fact that there are several million employers in the United States in existence now, and each one of them has a slightly different operating system and context. So one would expect that employers would be reaching out for help to see how their particular circumstance, which may be changing over time, interacts with a particular statute or rule. So in the context of millions of employers in existence, 1,900 of them seeking advice may seem small. But again, employers reach out to us through the e-laws and other ways that we have for providing compliance assistance, and the public is entitled to have assistance and help from the Agency.

Mr. Norwood. Well, I can understand some of that. In 1992 or 1993, I would imagine 1,900 dentists wrote you and wanted to know why we had to label Windex. We never could figure out why we had to put a label on it to tell our employees not to drink Windex, but nevertheless we did for fear you would come by and fine us.

Mr. Sapper, you want to make a comment on this question?

Mr. Sapper. Yes, I would. There are many employers who would rather not put a question to OSHA on their letterheads.

Mr. Norwood. Why is that?

Mr. Sapper. They are afraid it might excite interest in them, sir. I mean, if they ask, do I have to do something, and they get an unfavorable answer, yes, you do, they are afraid. It is an understandable fear that they might get visited.

Mr. Norwood. I thought that only occurred just before you were going into collective bargaining.

Mr. Sapper. Not only, though, I agree with you, it frequently does.

Mr. Norwood. It seems pretty frequent, doesn't it?

Mr. Sapper. Yes. That is exactly the case. So a lot of employers hire attorneys to write these letters of request for interpretations for them. That is expensive. That takes time, and frequently the attorney's advice is, and I can say that personally, you are not going to get an answer that you are going to be able to use.

If it is a truly ambiguous standard, the Agency's answer is frequently ambiguous. If you take a look at a lot of these interpretation letters, it is extremely hard after reading them to figure out what OSHA is saying. So it is frequently not worth the money to pay an attorney to ask.

Mr. Norwood. Dr. Montgomery, all of us want a healthy and safe workplace. That is really not what this discussion is about. The discussion is all about a process of getting there. That is really why so many people get upset. I think I do understand, for example, ergonomics and repetitive motion. But the question always comes down to, if my dental hygienist happens to be a needle pointer and comes down with repetitive motion syndrome; one doesn't know what caused that. You are not going to know anytime soon if that person, in fact, has carpal tunnel syndrome. You just can't figure it out. Until the medical community can understand repetitive motion and be able to identify it, then you guys are not going to understand it either.

Then you write your standards, and that is what gets us all upset, because I know what you want to do, and we all want to, too. But you just can't solve some problems, and that is an area that you can't fix, if you ever get through with these standards, which I haven't seen and don't trust. Simply because of blood-borne pathogen standards I know about from years past, it is going to require some legislative work to get some of this fixed.

Mr. Chairman, I am sorry, I will yield back.

Chairman Hoekstra. I thank the gentleman. Don't worry; if we have a hearing on ergonomics, which we may or may not do, we will do it on the standards and perhaps on the process as well.

Have you read Newt's book, Lessons Learned?

Mr. Roemer. How many in the audience have read this book?

Chairman Hoekstra. Who knows? I did. I read it twice, and it was really good. I’m going on vacation. I will probably read it again.

But you put in your document, "Lessons Learned", and in your opening statement you put in and highlighted the number of customer contacts that you have at the Department on an annual basis. I can sympathize with the number of customer contacts. I also appreciate the comments, and I am not sure exactly what your words were today or Mr. Jeffress's words were last month, but the OSHA home office standard was a mistake. I think your words were that it flew "under the radar screen". When it came out, you recognized that a mistake had been made and that you corrected it, and you are working with Mr. Roemer and myself to fix that.

Can you tell me a little bit about what the lessons learned processes were in the rulemaking and their complexity? I think one of the things that we have asked for and we have been a little bit disappointed in getting from the Labor Department are clear procedures. For example when you get a call on an issue, and it is clearly a decision that the information is available for, and somebody at the regional office can respond immediately, because that is the objective that you want to have for a safe workplace; one that meets the law as being able to respond quickly because the information is available. Then for example another procedure that says, okay, this one is a little more complicated, we need to kick this one back over to people in D.C. and have some more people take a look at it. It goes through a certain level in the Agency. Finally, there is a third call, but this is a home office procedure and we will stay away from this one. It is immediately recognized. This is something that has happened because of a significant change in the work force, and none of our rules and regulations in place ever contemplated this kind of a thing.

We need to have an in-depth process. We need to go through rulemaking or some process like that.

Is that part of what is going to come out of the lessons learned from the home office interpretation? Are there going to be clear procedures and rules that steer a decision maybe more accurately from one place to another?

Dr. Montgomery. Absolutely. While the agencies already have management systems in place, which are designed to identify the new as opposed to the routine, as you correctly pointed out, many of the letters are fairly standard and routine. What the staff are instructed to do is look and see if there is a previous letter or answer that fits this particular factual situation that they can use to send an answer back to the customer. That is sort of a first threshold question.

Let me stand back from the mike.

Chairman Hoekstra. I think it is coming from back here somewhere. I don't know where.

Dr. Montgomery. So what the staff are instructed to do in answering a letter is to look and see if there is a previous letter. That would tell if a new issue was being raised. If a preexisting letter that fits the situation can’t be found, the first warning bell is supposed to go off and this suggests a different level of review is supposed to go forward. OSHA, as compliance directives and instructions to the staff have been rewritten, is always supposed to look for this new threshold.

But sometimes when people are making judgments, they discover that this is not new, and something close can be found. So then the test that we want people to perform to get an answer are either giving back an expansion on or a significant change to what the previous answer is. There again, what we are asking the staff to determine is if it fits the criterion, it should also be passed up the line. We want to set some specific written criteria.

Again, there are already written criteria, but we are reviewing those written criteria. Are they detailed enough? Do they give specific guidance about what needs to be passed up the chain to the respective Assistant Secretary's office for reviewing? If it is a significant issue, does it need to come to the attention of the Secretary or Deputy Secretary as well? We have a written set of procedures on that.

Again, written procedures are only as good as the training that goes behind them. What you need to do is make sure everybody knows about the manual, and that it is not gathering dust somewhere on a desk or if they got training when they joined the Agency years ago that they are aware of the procedures now. What we are trying to institute is a system of regular training and regular communication to make sure that the staff, when they have questions or things are ambiguous, that they raise them up to the next level of management for review and inspection. And so this training, I think, is also a critical point in the new management system.

Chairman Hoekstra. Mr. Sapper.

Mr. Sapper. Yes. I have a fundamental problem with that. Dr. Montgomery said that there are procedures for bringing interpretations that expand significantly upon previous interpretations to the appropriately higher level within the Department. I did not hear him say that if you have an interpretation that expands significantly on the previous interpretation, that it should go through rulemaking. That is the forum that Congress intended that these kinds of significant decisions go through. It should not be going through the back door, no matter how high, at the Department of Labor. If it is truly something that expands on the previous interpretation, why is it not going through rulemaking? If it is truly a policy decision, that is where it belongs.

Chairman Hoekstra. I am assuming that, and maybe we will see something later in writing this spring or summer, one of the branches in the decision tree will require us to go through rulemaking. So at that point in time, you could come back and we could have a dialogue as to how the Labor Department has made those decisions, and whether we agree on the criteria for moving into rulemaking.

Yes?

Dr. Montgomery. Absolutely, Mr. Chairman. We already have as part of our decision tree a procedure to determine if this requires a formal standard of rulemaking as opposed to fitting within an exact existing interpretation.

Chairman Hoekstra. I have to ask one more question. Mr. Goldsmith, you talked about stakeholders and public dialogue and a couple of other forms of input. In theory, expanding or allowing for stakeholders and public dialogue and those types of things as an additional means of gathering public input is something that I would guess the Chamber would not be opposed to. However, you might be opposed to how it is being implemented in this Labor Department. Is that accurate?

Mr. Goldsmith. That is generally accurate, Mr. Chairman. I think it is important to point out that the Chamber doesn't object to the Department of Labor having meetings of one sort or another around the country to get people's ideas about how proposed regulations ought to be drafted or anything like that. The problem is rulemaking, or as Dr. Montgomery said, dialogues are really the substitute or called the substitute for rulemaking. Rulemaking is rulemaking under the statute. A best practices meeting, a stakeholder meeting, a dialogue, none of that matters as far as the statute is concerned.

Unfortunately as lawyers, we are restrained by what the statute says. Certainly to the extent that the Department is going to rely on stakeholders meetings and best practices meetings as substitutes for rulemaking, which we think is plain unlawful, the stakeholders meetings and the best practices meetings and the dialogues and so on would have to have much more structure than the ones that were held in connection with the draft rule on the ergonomics issue. In fact, a draft rule also doesn't have any place in the statute. You promulgate a rule. You don't circulate drafts and have discussions about it and see what people think. That is just not what the statute requires or permits.

Chairman Hoekstra. It is kind of interesting to listen to the dialogue as to how you go through it. In many cases it is not a whole lot different than what we go through on the Subcommittee. Sometimes Mr. Roemer and I have dialogue. Sometimes we go through a process regarding who is going to be here and who is not. Some days, because I have the gavel and he doesn't, he walks in and asks what in the world are these people doing talking about these things? But there is not a whole lot he can do about it. We keep that to a minimum, and I think the same thing happens at the Labor Department.

So part of it is the interpretation as to how the Labor Department, an agency, will have some discretion. Your recourse at the end of that process is to take it to the courts if you don't think the process has worked out the way it was intended to by statute. Mr. Roemer's recourse here is to nail me if I get to the floor with a piece of legislation and say, you didn't do your job, and we will kick your butt when you get to the floor. There is some latitude within and some discretion used by those that run the Labor Department and those that run a Committee. And so what we need to do is make sure that the process does end up being as fair as possible, recognizing that you have to give some discretion. The question is how much and is it within the framework of the statute?

Mr. Goldsmith. We don't disagree, that there is latitude. And the courts agree that the Department of Labor has latitude. But as I noted in my earlier comments, there has to be a level below which you can't sink. We believe that this rulemaking process that is ongoing now has sunk beneath that level, whatever it is.

Chairman Hoekstra. There are times Mr. Roemer feels that I have sunk below that level as well. I will let you highlight and let Mr. Roemer highlight when that occurs.

I yield to Mr. Roemer.

Mr. Roemer. Thank you, Mr. Chairman. Let me just ask a quick question of Mr. Goldsmith and then see if Dr. Montgomery or Ms. Paxton wants to have anything else to say on my time.

Mr. Goldsmith, in your testimony you complained that OSHA is only allowing about 130 days for public comment and only allowing about 9 weeks for hearings. By my count that is over 6 months for input. That is way more than the OSH Act itself asked for. Isn't that correct?

Mr. Goldsmith. The OSH Act requires a minimum of 30 days. It doesn't set a maximum. So there is no limit to how much time OSHA can give for these hearings. In fact, they have given more in other rulemakings.

The issue is not just time, with all due respect. The issue is what happens during that time period. The issue is how examination and cross-examination of witnesses is permitted to be conducted. The issue is whether or not at the end of the day all of the participants, including unions and business people who are represented by trade associations and themselves, have really had a fair shot at getting to the heart of the issue. And that fair shot ought to really be directed at the substance of the issue, in this case the science and the other issues, not procedural skirmishing about whether I have had enough time.

But that is the position that we have been put into because if you don't have enough time to prepare to examine or cross-examine a witness, then it is a useless exercise. If you can't read what that expert witness has written, perhaps hundreds of articles covering thousands of pages, in advance of cross-examining that person because you don't know who is going to testify, then cross-examination is meaningless.

Mr. Roemer. I would say over 6 months of time, 130 days for public comment, 9 weeks for hearings, besides the bipartisan legislation that Mr. Hoekstra and I agree on today, one of the other things we could agree on is the many times in Congress that we don't get 6 months to give our input on forming legislation. There are many times when we have a bill that skirts our Subcommittee and the Full Committee and goes right to the floor. We would probably complain with some of that process as well, but again, 6 months with 130 days for public comments, 9 weeks for hearings, that is a lot of time in comparison to what we might have in a host of different legislative forums up here. We are constantly complaining around here about access and process.

I would just ask Dr. Montgomery or Ms. Paxton, do you have anything that you want to comment on at this point?

Dr. Montgomery. I think first I would say that indeed the stakeholder meetings that we had before were not deemed to be a substitute for a full and vigorous process as required by the statute on the standard. As you have pointed out, in our hearings we have allowed 130 days of comment, and 9 weeks of hearings. We have so far experienced instances where time during the day has lapsed without any further questions, and we have adjourned early because people have finished their cross-examination or examination of people early. We have thousands of people who look to be witnesses in this process.

All of that suggests to us that we are providing a forum where there is ample opportunity for the public to make their views known, and bring their input into the Department. The purpose for the stakeholder meetings is so people wouldn't be surprised. They could start the discussions, and being aware of the issues, and thousands of studies that demonstrate links between work activity and muscular skeletal diseases, there are real solutions for these types of problems, and they could talk about what those solutions are.

I think we run a very open process with ample time, and we continue to want to run an open process so people have a chance to give their views across all spectrums of the public.

Mr. Roemer. Do you agree with Mr. Goldsmith at all that the process needs to be changed, or do you believe that the time is sufficient enough maybe not for thousands of witnesses to testify, but certainly hundreds of witnesses to testify?

Dr. Montgomery. I think the time is ample to accommodate the witnesses that want to provide information. There are multiple forums for people who want to provide information to the rulemaking process. I guess I don't see any evidence that people haven't had a chance to present witnesses. Sometimes people are not presenting their witnesses for cross-examination because they don't feel that is what they want to do. But again, I think there is ample opportunity for that and for examination and cross-examination of all of the witnesses.

Mr. Roemer. I appreciate it.

Ms. Paxton, do you have anything to add to that?

Ms. Paxton. I would only add that Mr. Goldsmith is saying he wants to have a full-blown trial and have all of the rights and procedures that would accompany a full-blown trial. That is not at all what the statute contemplates or requires. It requires that the witnesses be given an opportunity to lodge their objections and to request a hearing, and the procedural requirements are not otherwise spelled out.

I think OSHA has gone out of its way to provide more procedural safeguards and opportunities for witnesses, such as opportunities for cross-examination, and opportunities to provide post hearing comments. We have done a lot to go beyond what is required by the statute, but the courts don't favor formal rulemaking, and Congress did not provide for it. I think we have done more than we are required to do.

Mr. Roemer. Thank you, Mr. Chairman. Thank you for the time.

Chairman Hoekstra. Mr. Norwood.

Mr. Norwood. Thank you, Mr. Chairman.

Let me just jump on that for a second. I don't know that I hear anybody calling for a trial, but it is not unreasonable to want to know who the witnesses are and ask them some questions.

To my friend Mr. Roemer, I would say to you that I am as frequently frustrated as you are that we don't get to see legislation far enough in advance. That happens way too often. But in view of the fact that whatever we pass is changed anyway through the rulemaking process, it is very important that at least at the rulemaking process we are very, very careful with what the outcome is.

Dr. Montgomery, at the bottom of many of the documents that the Department of Labor produced at this Subcommittee's request is a little box where initials are supposed to go to clear that document and thereby letting, I presume, the Department of Labor know who the person is in the Labor Department that allowed this document to be cleared. You would know which office and which person in your office that allowed this document to come over to the Subcommittee. I am mentioning this because we haven't noticed that on many of these documents, and I am wondering if you folks have stopped using that system.

Dr. Montgomery. We still have a formal clearance system. Again, the level of clearance and the formality of the clearance typically depend on the document that is being prepared and who it is going to prepare it, whether it represents a new issue or represents something that requires Secretarial review.

Again, with regard to documents, legislation or standards or things that require Secretarial review that rise up to the highest level, we have a very formal clearance process that would involve people from the Solicitor's Office.

Mr. Norwood. Many of the documents that we receive didn't have that on it. Am I to conclude that they weren't that important, no big deal, send them on over?

Dr. Montgomery. I think that many of the documents that you have are drafts and not the final versions. These would not have necessarily been submitted through the formal clearance process.

Mr. Norwood. One of the documents that you did send at our request was one that was a complaint in nature about the fact that it took OSHA 27 months to release the November 15, 1999, letter of interpretation known as "Employee Work at Home." Their complaint was basically that it took that amount of time to release because of the sign-offs that were necessary in the Department of Labor and the Solicitor input.

I am having a little trouble understanding how we can be told that all of this went "under the radar screen", yet some of your own employees are saying that this process was so cumbersome that it took 27 months to clear that one letter. I can understand why you didn't want to clear it, but 27 months is a long time. Something is not consistent here. Either it went under the radar screen, and so many people had to see it, that nobody got to see it, and it sort of slipped out. Or so many people had to sign off on these documents that it took 27 months. What is the deal? Did it go under the radar scene, or did it take 27 months because so many people had to see it?

Dr. Montgomery. It was regrettable that it took 27 months to fashion a response to a letter from a member of the public, but the reason for that length of time was a combination of factors. One such factor was that they had multiple conversations with the writer of the letter, Mr. Treyhan; I believe is the one you are referring to, to formalize his question, to get specifics about his question. Then regrettably in an organization, one of the people who was tasked to write the letter became ill and another person went on detail, so it got caught in the confluence of a bureaucracy.

This was a letter that did not get reviewed by the front office of OSHA, nor did the Office of the Secretary review it. It was caught inside staff-level discussions in OSHA.

Mr. Norwood. So that is why it took 27 months; somebody got sick that was supposed to respond back to a Subcommittee of Congress?

Dr. Montgomery. It should not have taken that long to formulate.

Mr. Norwood. I can understand why you would take that long to respond to a citizen. I never can get used to how long it takes the Federal agencies to respond to Congress. Of course, our job is to give you draft legislation so you can write it into rules and regulations. I guess that explains it.

Mr. Chairman, I am going to vote.

Chairman Hoekstra. Thank you.

I don't believe it took you 27 months to respond to Congress.

Dr. Montgomery. No.

Chairman Hoekstra. Is that what you were talking about, Mr. Norwood?

We thank all three of you very much for being here today. Excuse me, all four of you for being here today; our silent witness, Ms. Paxton. I think it was very worthwhile to bring this to the forefront. I think there are some issues that we are going to have to deal with in the longer term. As we have said a number of times, we are very appreciative of the Labor Department and their openness in dealing with the home office issue. We are going to get that settled.

I think in the longer term we have got to take a look at the issues that Mr. Sapper raised on "reasonableness." Somewhere along the line, we may take a look at the process for the ergonomics issue. I think there is a lot of passion on this issue both at the witness table and up here on the dais, and we may have to spend more time talking about that.

We are also very interested in, as you formulate more detailed procedures as a result of the lessons learned session that you have outlined in your testimony, either having a dialogue, a stakeholders meeting or a formal hearing with you on that.

I think that there also needs to be a document with broader public dissemination so that your customers understand how these decisions are processed within the Department of Labor. This all leads from one letter to a bigger discussion of decision-making in a very fast-changing environment.

What we all want is a Labor Department that is quick on its feet so we can maintain a competitive global advantage as new technologies and innovations become deployed, and that can recognize those changes and respond in a positive way. I think the Chamber wants that, Mr. Sapper wants that, and the Labor Department wants that. Mr. Roemer and I want that. At the same time, when you have the freedom to respond quickly, it should be done within a framework, so that we balance speed with appropriate public input. That gets to be a delicate balancing act.

It is a new economy today, and the legislative framework in which you operate is one that we need to take a look at. The Labor Department may suggest some changes. I am sure the Chamber and other experts can recommended some changes on how to improve the process. We are open and willing to participate in that process.

Mr. Roemer, do you want to add anything? Great. Thank you very much, and with that the Subcommittee will be adjourned.

Whereupon, at 11:42 a.m., the Subcommittee was adjourned.