OPENING STATEMENT OF THE HONORABLE CASS BALLENGER, CHAIRMAN, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

OPENING STATEMENT OF THE HONORABLE MAJOR R. OWENS, RANKING MINORITY MEMBER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

STATEMENT OF FRANK A. WHITE, VICE PRESIDENT, ORGANIZATION RESOURCES COUNSELORS, INC. (ORC), WASHINGTON, D.C. *

STATEMENT OF EAMONN MCGEADY, PRESIDENT, MARTIN G. IMBACH, INC., BALTIMORE, MARYLAND *

STATEMENT OF WILLIAM R. STEINMETZ, RISK AND SAFETY CONSULTANT, LAKEVILLE, INDIANA (ON BEHALF OF THE NATIONAL ROOFING CONTRACTORS ASSOCIATION) *

STATEMENT OF ERIC FRUMIN, DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH, UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES (UNITE), NEW YORK, NEW YORK *

STATEMENT OF EUGENE SCALIA, PARTNER, GIBSON, DUNN & CRUTCHER, LLP, WASHINGTON, D.C. *

APPENDIX A - WRITTEN OPENING STATEMENT OF THE HONORABLE CASS BALLENGER, CHAIRMAN, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

APPENDIX B - WRITTEN OPENING STATEMENT OF MAJOR R. OWENS, RANKING MINORITY MEMBER OF THE SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

APPENDIX C - STATEMENT OF FRANK A. WHITE, VICE PRESIDENT, ORGANIZATION RESOURCES COUNSELORS, INC. (ORC), WASHINGTON, D.C. *

APPENDIX D - STATEMENT OF EAMONN MCGEADY, PRESIDENT, MARTIN G. IMBACH, INC., BALTIMORE, MARYLAND *

APPENDIX E - STATEMENT OF WILLIAM R. STEINMETZ, RISK AND SAFETY CONSULTANT, LAKEVILLE, INDIANA (ON BEHALF OF THE NATIONAL ROOFING CONTRACTORS ASSOCIATION) *

OSHA'S RECORDKEEPING STANDARD:

SHAREHOLDER VIEWS OF THE 1996 PROPOSAL

The Committee met, pursuant to call, at 10:35 a.m. in Room 2175, Rayburn House Office Building, Honorable Cass Ballenger presiding.

Present: Representatives Ballenger, Barrett, Hoekstra, Woolsey, Owens.

Staff Present: Robert Borden, Professional Staff Member; Victoria Lipnic, Professional Staff Member; Molly M. Salmi, Professional Staff Member; Heather Oellermann, Staff Assistant; Rob Green, Workforce Policy Coordinator; Peter Gunas, Workforce Policy Counsel; Dan Lara, Press Secretary; Michael Reynard, Media Assistant; Deborah Samantar, Office Manager.

Chairman Ballenger. A quorum being present, the Subcommittee on Workforce Protections will come to order.

The Committee is meeting today to hear testimony on OSHA's recordkeeping standards, stakeholders' view of the 1996 proposal. Under Rule 12[b] of the Committee rules, any oral opening statements at the hearing are limited to the Chairman and the ranking minority member. This will allow us to hear from our witnesses sooner and help members keep their schedules. Therefore, if other members have statements, they can be included in the hearing record. Without objection, all member statements and other material referenced during the hearing will be inserted in the record.

The Subcommittee today meets to hear testimony about OSHA's 1996 proposed changes to the recordkeeping regulations. The recordkeeping regulations have the simple purpose of telling employers who must keep records of job-related injuries and what sort of injuries must be recorded and how and where to keep these records. Records of job-related injuries help employers and the nation as a whole to understand job-related injuries and as a result, help employers prevent injuries.

Although their purpose is simple, in reality the regulations are complex. There are literally hundreds of pages of OSHA guidance and interpretations. I expect the Subcommittee will have many questions today, and it is my hope that we can begin to answer two basic questions today.

First, do the proposed changes address what many agree are the needed improvements to the regulation? Most would agree that the current recordkeeping regulations are too complex and too burdensome. However, replacing current regulations with an equally complex and burdensome regulation benefits no one.

When the rules for recordkeeping injuries are so complex that they may not achieve across-the-board consistency among employers in records, then we cannot rely on records to focus our resources on these industries, employers, and types of injuries most in need of attention. When the rules are too burdensome, time, manpower, and money that should be used to make work safer instead of used to fill out paper work--when the rules are used to record injuries that were not caused by work, employer resources are diverted from injuries that an employer can and wants to prevent.

Secondly, today's hearing allows us to question what OSHA may actually be doing in the final recordkeeping rule. We have an opportunity to hear from business groups large and small and from employee representatives about their concerns and about the events and circumstances over the past few years that certainly will impact the final recordkeeping rule.

Four years later, we have to wonder whether the final rule will bear any resemblance to the proposed rule. For example, as a basis for proposing these changes in 1996, OSHA cited two studies that demonstrated OSHA's concerns with underreporting of injuries and illnesses by employers. In fact, OSHA was so concerned about the underreporting that the agency conducted audits in 1996 and '97 on the accuracy of employer records. As OSHA was no doubt pleased to discover, both of their audits revealed that 90 percent of employers kept accurate records of injuries and illnesses. Without objection, I am submitting the results of these audits for the record.

Therefore, in light of OSHA's own audits, it would appear that employers do accurately keep records. And given that reporting was a primary concern of OSHA's at the time they proposed the changes, we have now to question whether at least some of the proposed changes may be trying to fix a problem that does not exist.

Another event of the past four years that impacts OSHA's recordkeeping is another OSHA rulemaking: ergonomics. While my attention today is on recordkeeping changes, I note that the ergonomics rule would change the OSHA recordkeeping

requirements from a data-gathering system to a triggering mechanism. OSHA obviously did not envision four years ago that the recordkeeping regulations would be used as a trigger in ergonomics rule three years later. Just as important, the public could not comment on the record about the unforeseeable use of recordkeeping regulations.

I hope that today the hearing will shed light on these questions and others. Although OSHA submitted written testimony before the record, I would have liked Mr. Jeffress to be here to respond to the concerns of the members of our panel. Recordkeeping regulations impact every employer in the country, and changes to it deserve careful attention by OSHA and careful oversight by this Committee, and I am well aware that employers and employee groups have put years of work into making the recordkeeping regulations better, and I am concerned that the opportunity to make these genuine, consensus improvements may be squandered. And I am also concerned that if there is a complex way to do it, OSHA will find out. They will find a way to do it if it is complex.

WRITTEN OPENING STATEMENT OF THE HONORABLE CASS BALLENGER, CHAIRMAN, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES - SEE APPENDIX A

With that, I look forward to hearing from our witnesses, and now Mr. Owens. Major?

Rep. Owens. Thank you, Mr. Chairman. Let me join you in welcoming today's witnesses. I thank them for taking the time to be here. I particularly want to thank Eric Frumin for making time in a very busy schedule on very short notice to be here today to represent the views of the workers.

Recordkeeping requirements are integral to a number of crucial, public policies. They enable the tracking of patterns of occupational illnesses and injuries. They enable OSHA to both focus its efforts where it will be able to do the most good and to assess the effectiveness of those efforts. They serve a substantial public interest of providing reliable data about the extent of occupational illness and mortality.

It should be noted that the purposes to which recordkeeping data may be put are not necessarily complimentary. For example, data sufficient to enable OSHA to distinguish the most unhealthy work sites may be wholly insufficient to provide a true picture of either the occupational health or the occupational risk faced by workers.

One of the most important goals of this recordkeeping rulemaking is to make it easier for employers to comply with the recordkeeping requirements. I fully support this goal. However, the achievement of this goal does not mean, and cannot be allowed to mean, that every employer will have reduced recordkeeping requirements in every instance. While it is very important to minimize burdens on employers, the Occupational Safety and Health Act was enacted to protect the safety and health of workers, and ultimately the recordkeeping rule must be measured by the extent to which it serves that purpose.

While I believe today's hearing is useful, it must be noted that virtually all of the major concerns that we will hear today about the proposed recordkeeping rule were raised during the notice-and-comment period on the rule. What we do not know today, and by the terms of laws that Congress has enacted, we cannot know until OSHA finalizes the rule, is the extent to which the agency has addressed those concerns. In that sense, at least, today's hearing is premature.

In another sense, this hearing is being held too late. As Chairman Ballenger has noted, Assistant Secretary Jeffress was invited by the majority to participate in the hearing but has declined to do so. Because the formal notice-and-comment period has ended, I believe it is wholly appropriate for Mr. Jeffress to have declined to appear.

Under the Administrative Procedures Act, Congress has precluded agencies from considering any comments on a proposed rule after the close of the notice-and-comment

period. Accordingly, the Department of Labor is prohibited from considering any of the comments of a limited number of stakeholders who appear before us today as it drafts the final recordkeeping rule for publication.

It would put the Department of Labor in an untenable position to ask them to appear before us and ``pretend not to hear'' the comments of our distinguished witnesses. For that reason, I believe Mr. Jeffress has acted appropriately in declining to testify, and I commend Chairman Ballenger for not insisting on his presence.

Again, I want to thank all of our distinguished witnesses for being here. I yield back the balance of my time.

WRITTEN OPENING STATEMENT OF MAJOR R. OWENS, RANKING MINORITY MEMBER OF THE SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES – SEE APPENDIX B

Chairman Ballenger. Thank you, Mr. Owens.

Now, I would like to introduce our panel of witnesses. Mr. Frank White, the Vice President of Organization Resources Counselors, Inc. (ORC); Mr. Eamonn McGeady, Martin G. Imbach, Inc., testifying on behalf of the National Federation of Independent Businesses; Mr. William Steinmetz testifying on behalf of the National Roofing Contractors Association; Mr. Eric Frumin, Union of Needletrades, Industrial and Textile Employees; and Mr. Eugene Scalia of Gibson, Dunn & Crutcher, LLP.

Let me remind the witnesses that under our Committee rules they must limit their oral statements to five minutes, but their entire written statements will appear in the record. We will also allow the entire panel to testify before questioning the witnesses.

And let me apologize to you right now. We never had one of these things where the vote did not come and interrupt us, and I just got the word that we might get our first person through testimony before the first buzzer goes off, and we will break, and come back, and I apologize to all of you. So, if I may, Mr. White, you may go ahead.

Mr. White. Thank you, Mr. Chairman, members of the Committee. Good morning. I will try to summarize my remarks.

Thank you for the opportunity to discuss the issues surrounding OSHA's rulemaking to revise its injury-and-illness recordkeeping requirements and, more generally, to review the now almost 15-year effort that has led us to where we are today.

Organization Resources Counselors has been involved in virtually every step of this sometimes difficult journey and has been among the strongest supporters of the process that has led us to this point. ORC's sole objective throughout its involvement in the issue has been to assure that the information reported on the OSHA log is a meaningful reflection of the injury-and-illness experience at each facility. In ORC's opinion, the vast majority of employers believe that the logs do contain much data that is not meaningful and that the rules must be changed in order to improve the usefulness of the information reported.

ORC's position, in a nutshell, is that OSHA must not let the opportunity to make significant improvements in the recordkeeping system slip away by retreating from the balanced policy choices presented in the 1996 proposed rule and by failing to modify those elements of the existing system that have long undermined the system's credibility and usefulness.

It was those very choices, policy choices and modifications, that led to substantial industry support for the 1996 proposal. However, public statements by OSHA's leadership in recent months to the effect that the final rule will make relatively minor changes in the recordkeeping system and that it will look more like the current rule than the proposal raise concern by ORC and others that the opportunity for OSHA to score a significant regulatory victory and to make needed and meaningful changes in the system is severely threatened by the agency's apparent unwillingness to make some difficult policy choices.

Now, ORC hopes that it is not overreacting to these statements by OSHA, which have been, frankly, fairly frequent and fairly public, and that the final rule will, in fact, address the important issues and will result in significant improvements to the system. Indeed, we would argue that the risks of making only minor changes are far greater than any risks associated with making some important revisions that will result in more meaningful and useful data.

For example, it makes no sense to require employers to make minor changes to their recordkeeping systems that will still entail substantial expense and retraining in the

intricacies of the system but will not significantly improve the existing data or significantly simplify the system. Employers are only willing to invest in changes that result in proportionately better data.

And, second, and perhaps most important, the credibility of OSHA's rulemaking process will be even more severely undermined if this rulemaking, for nearly a decade viewed as a model of tripartite cooperation and collaboration, yields only a paltry harvest.

Briefly, the most serious shortcoming of the injury-and-illness recordkeeping, in ORC's view, is that it requires employers to count incidents that are both relatively minor in nature and injuries with almost no causal relationship to the work place. And as a result, the information recorded often does not truly depict either the effectiveness of the employer's safety-and-health efforts or the true nature of the injury-and-illness experience of particular work places.

And as such, many employers do not believe that the data can legitimately be used, either internally for stewardship or accountability purposes or externally by OSHA, as a basis for targeting its inspection resources or for measuring the effectiveness of its own programs.

In essence, ORC believes strongly that the current system must be revised so that the cases recorded on the OSHA log first must be reasonably and demonstratively related to work and, second, must reasonably constitute injuries or illness of more than a very minor consequence. These data will constitute a more meaningful reflection of safety-and-health performance, be easier to verify, and result in more consistent recordkeeping practices among industries and establishments.

As another administration kind of winds down to the final six months here, and OSHA kind of narrows its focus to those initiatives that it believes it can feasibly complete in the next 180 days or so, ORC thinks that maybe it makes sense to step back a bit and look a little bit further into the future and consider ways to make OSHA more effective in the coming years and in the next administration.

And OSHA's regulatory process has already come under a great deal of scrutiny by OSHA itself, by NIOSH, and by Congress, but no one has yet kind of proffered a new model for rulemaking that will make rulemaking faster, less contentious, and more productive.

And the search for solutions should and will continue. I believe that the recordkeeping rulemaking offers some hints, both about how to improve the process and about, frankly, what is broken about the process.

First, the good news. As I indicated earlier, in many ways the open and collaborative process that OSHA engaged in to develop its proposal in 1996 could really serve as a model for the development of future rules. OSHA's proposal was, for the most part, a fair reflection of several years of discussion and debate among the principal business, labor, and government stakeholders involved in the recordkeeping process and reflected policy choices that carefully balanced those interests. In short, the parties worked collaboratively with OSHA, there was give and take, OSHA was open about what it was doing, and a critical element of trust was developed.

The bad news, however, is that since the proposal, in the last three years, that sense of positive momentum, of balanced policymaking, of responsiveness and trust, has dissipated, frankly. First, too much time has elapsed between the proposal and final rule; and, second, OSHA's staff and policymakers have sort of isolated themselves from the stakeholders. They have abandoned really the openness or the sunshine of previous phases because once the record closes and concerns about ex parte communications become paramount, OSHA backs away, and Mr. Owens reflected some of those concerns. But the collaboration stops, the process drags on, and, frankly, the trust turns to suspicion.

We hope the Committee will explore this and related issues, and we hope that OSHA can yet avoid snatching defeat from the jaws of victory by making the kinds of important changes to the recordkeeping system that will improve the usefulness of the data.

Thank you, Mr. Chairman. I would be happy to answer questions.

STATEMENT OF FRANK A. WHITE, VICE PRESIDENT, ORGANIZATION RESOURCES COUNSELORS, INC. (ORC), WASHINGTON, D.C. –

SEE APPENDIX C

Chairman Ballenger. Again, Mr. McGeady, we apologize. We will be back in about 10 minutes, if we run real fast.

Mr. McGeady. The water pitcher is full, Mr. Chairman. We will survive.

[Whereupon, at 10:50 a.m., a brief recess was taken.]

Chairman Ballenger. Let me just say, if I may, Mr. McGeady, that even though I am the oldest member on this panel, somehow I have better speed than those other guys, and so I met the Major, and he said, ``Cass, you go ahead. I will catch up with you in a minute. '' So if it is all right with you, Mr. McGeady, you can go right ahead.

Mr. McGeady. Thank you, Mr. Chairman. My name is Eamonn McGeady. I am president of Martin G. Imbach, Inc., a family-owned, heavy marine, construction firm. And somebody often says, ``Do you build Marines?'' Well, no. We do piles for piers, and I do not mean hemorrhoids for the nobility.

I have had extensive background in the earlier working life. I started out in a shipyard in Baltimore, so I have been very active in OSHA activities from the very beginning, in the late-sixties, early seventies.

I endorse what Mr. White said earlier. This proposed rule now really has legs, as they say. Some of the work is 15 to 17 years' old. And as I will say at the end of my testimony, that I think it is time to start with the proverbial clean sheet of paper, and I will try to outline why I think that way.

Very bluntly, I think OSHA, from the small-business standpoint, has clearly exceeded its statutory authority by proposing recordkeeping criteria that will result in recording of data not required by the legislation. Congress's clear mandate to OSHA was to track and prevent serious injuries and illnesses in the work force. How sunburn or poison ivy, both of which are recordable under this rulemaking, fall within that mandate escapes me, to be candid. The expression I use is that it seems to me that given all of the do's and don't's in Appendix B of the rulemaking, that OSHA really is trying to pick the fly specks out of the pepper. It just does not work for small businesses, not to mention the fact that given the various levels of bloodborne pathogens and hearing and so forth.

I did a rough computation before I came over here this morning. I talked to our medical people that we contract with. They believe that, just a back-of-the-envelope calculation, that the pre-employment physical cost would rise by about $225 per employee. I do not think OSHA has even thought about that under SBREFA or any other act. I would seriously urge that they take a look at that.

For example, you have hearing requirements, you have bloodborne-pathogen requirements, all of which have certain levels. You have to protect yourself against hiring an employee with a pre-existing condition. You still might hire the employee, but from an insurer standpoint, an insurance-carrier standpoint, I can guarantee you that they are going to want to know what the pre-employment levels of some of this recordkeeping was under OSHA's standards.

The rule, I think, would result in a substantial increase in the amount of cases that would need to be recorded. There is no doubt about that. Specifically, some of the items are keeping a summary of the previous year's logs, being updated within seven days, as required by the rule. Particularly in small businesses, I think that that is an unnecessary and uncalled-for burden. We referred earlier to the rule reducing the severity threshold for musculoskeletal disorders and recording of instances of discomfort accompanied by swelling, redness, or loss of motion.

I am at the age where one gets gout every now and then, which is very treatable, but I have a little bit of gout in my right, big toe that started on Tuesday. Today, that would be a recordable injury in my business because there is still redness and swelling of the joint is clearly recordable under Appendix B standards.

I believe that we need to really start with the proverbial clean sheet of paper. For example, our company offers flu shots and pneumonia shots to all employees and their families sometime late in the summer or early fall, which is what the medical people recommend. That is a ``recordable injury'' under Appendix B because Appendix B only excludes one type of preventive-medicine shot, tetanus, et cetera. So it seems to me that OSHA has not really looked at the unintended consequences of this rulemaking.

Why, as I said earlier, poison ivy and sunburn, over which an employer has absolutely no control usually, is a recordable injury escapes me completely. You said in your opening remarks they are looking to fix a problem that does not exist. I thoroughly concur. The most dangerous part of working today in any industry is driving to work, and the second most dangerous part, according to OSHA reports and logs, is getting shot, getting murdered. Automobile injuries and murder are the two highest employee injuries in business today.

Obviously, I will be glad to answer any questions, Mr. Chairman. Thank you for the invitation to testify.

STATEMENT OF EAMONN MCGEADY, PRESIDENT, MARTIN G. IMBACH, INC., BALTIMORE, MARYLAND – SEE APPENDIX D

Chairman Ballenger. Thank you, Mr. McGeady. Mr. Steinmetz, you may begin.

Mr. Steinmetz. Thank you, Mr. Chairman.

My name is Bill Steinmetz. I am the risk-management consultant for the National Roofing Contractors Association based in Chicago. Before that, I was for 15 years the safety-and-loss-control manager for the Midland Engineering Company, roof-and-sheet-metal contractors from South Bend, Indiana.

NRCA commends you, Chairman Ballenger, for holding this hearing and has been a supporter of your legislative efforts regarding the Occupational Safety and Health Administration. The Subcommittee's hearing on OSHA's proposed revisions to the recordkeeping requirements is particularly important, given the onerous changes it would bring to the existing requirements.

Our members are well aware that roofing is a high-hazard industry and know that the safety and health of their employees, their most valuable asset, is essential. NRCA takes pride in its roofing-industry partnership program for safety and health, developed in conjunction with OSHA, the United Union of Roofers, Waterproofers, and Allied Workers; CNA Insurance, and the National Safety Council.

It was put into effect in OSHA's Region V in 1996. Subsequently, as reported by the National Erectors Association, construction fatalities from falls dropped by 50 percent in Region V.

NRCA is an association of roofing, roof-deck, and waterproofing contractors. Founded in 1886, it is one of the oldest associations in the construction industry and has over 4,700 members. NRCA contractors are small, privately held companies. The average NRCA member employs 35 people, with sales of just over $3 million per year.

Small businesses such as roofing contractors have found it difficult to cope with the volume and complexity of federal regulations they are required to comply with. NRCA members that were delegates to the 1995 White House Conference on Small Business called for strengthening the Regulatory Flexibility Act and were grateful when Congress passed, and the President signed, the Small Business Regulatory Enforcement Fairness Act, SBREFA, in 1996.

OSHA's current recordkeeping rule already places a significant burden on our nation's small businesses. It is paper-work intensive and requires contractors to maintain OSHA 200 logs of injuries and illnesses. The new rule would replace the OSHA 200 log with a new, reconfigured format and new definitions that OSHA claims will be simpler and more efficient. NRCA opposes the new rule because, in fact, it would create even more subjectively enforced compliance requirements and increase the level of paper work.

For example, the proposed recordkeeping rule contains such broad definitions for injuries and illnesses that even minor ailments, such as redness and swelling, as you have heard about, would have to be recorded. The rule also requires employers to record injuries that originally occurred outside the work place, which would, in effect, hold employers liable for activities outside of their control.

Further, the rule requires subcontractors to give employee injury-and-illness records to general contractors and employers to provide all such forms to employees, former employees, or employee representatives. This creates a number of privacy concerns and could potentially lead to further litigation for employers.

Perhaps the basis for OSHA's attempt to dramatically expand all aspects of recordkeeping is the suspicion that employers habitually underreport injuries and illnesses. However, this assumption is contradicted by research recently done by the agency. In a report to OSHA's National Advisory Committee on Occupational Safety and Health, on January 18, 2000, Assistant Secretary Jeffress stated: ``OSHA's most recent, recordkeeping, data-gathering initiative shows that 90 percent of employers are accurately reporting injuries and illnesses.'' This raises serious questions as to why the agency is going forward with this rulemaking in the first place.

On May 9, 1999, NRCA and 23 national associations sent a letter to Assistant Secretary Jeffress to formally request that OSHA reopen the rule so that additional information can be provided and the reopened rulemaking be subject to SBREFA, beginning with SBREFA's small-business, advocacy-review-panel process.

On August 2, 1999, Assistant Secretary Jeffress responded by letter and denied the requests. We were very disappointed by this response. Many organizations and people fought very hard to make SBREFA the law for exactly this kind of situation.

Once again, I appreciate the opportunity to comment on these revisions, and I will be happy to answer any questions.

STATEMENT OF WILLIAM R. STEINMETZ, RISK AND SAFETY CONSULTANT, LAKEVILLE, INDIANA (ON BEHALF OF THE NATIONAL ROOFING CONTRACTORS ASSOCIATION) – SEE APPENDIX E

Chairman Ballenger. Thank you, Mr. Steinmetz. Mr. Frumin, you may begin.

Mr. Frumin. Thank you, Mr. Chairman. On behalf of the officers and the 250,000 workers represented by UNITE, I thank you for providing us with the opportunity to testify here today. Like most Americans, UNITE members rely on the wisdom and judgment of the members of this subcommittee to assure that workers who need protection on the job can get it from the government.

I also want to say that I chair an advisory committee to the Bureau of Labor Statistics on health and safety statistics, but I am not testifying on behalf of that committee.

Your predecessors understood the importance of the mission of OSHA. They enacted the OSHA Act and have defended it against many unfortunate efforts to weaken it in the past. We all know the results of their wisdom. During the past 30 years we have seen how the act and OSHA's standards enforcement and assistance programs have made a real difference in the lives of workers and in saving employers from terrible costs of worker death, injury, and disease, seeing the job-fatality rate and injury rates decline, and major hazards significantly reduced.

Unfortunately, too many other hazards still go unregulated. Despite years of OSHA's commitments to adopt new standards, including new limits, PELs for toxic chemicals, several key, cancer-causing chemicals like hexavalent chromium and perchloroethylene, reactive chemicals, which the Chemical Safety Board has just, for instance, pointed out are glaringly omitted from OSHA's process safety-management standard, which has led to catastrophic results in communities around the country.

Of course, OSHA has made a recent effort to adopt a standard on musculoskeletal disorders, with tremendous scientific support and a long, deliberative process, and we certainly support that work.

One of the reasons OSHA has been able to knowledgeably address the critical question of MSDs and some other issues as well is that since 1992 they have been able to rely on the BLS's expanded data on worker injuries and illnesses. Events leading to that expanded survey are instructive.

In 1981, then-OSHA director told his inspectors to cease their inspections in general injury when the employer's injury records were below average. That directive, in our view, gave employers an additional, substantial incentive to engage in or encourage deceptive practices regarding the recording of such injuries.

A halted inspection in December 1993 in Elk Grove, Illinois, prevented the inspector from observing the highly dangerous conditions at the film-recovery plant, conditions which would two months later lead directly to the death of Mr. Stefan Golub,

a production worker. The Cook County coroner ruled the death a homicide based on such evidence as the willful covering of the poison label on drums of cyanide. It resulted in the first-ever indictment of an employer by then-State's Attorney Richard Daley for homicide in a work place fatality.

At the same time, the epidemic of MSDs among meat-packing workers was also revealed by an investigation of the House Government Operation Committee. The Congress directed BLS to do a study of the quality and accuracy of health and safety statistics, which the BLS commissioned from the National Academy of Sciences.

The pattern of employer recordkeeping abuses were vividly exposed on April 1, 1986, when Labor Secretary Bill Brock announced the $1.8 million penalty against Union Carbide in Institute, West Virginia, for the nearly 180 instances of deceptive recordkeeping. And OSHA then thereafter issued similar citations against other large employers for deceptive, record-keeping practices, including employers with large numbers of MSDs.

Finally, in 1987, the NAS produced a report with their key recommendations, including the importance of collecting additional important, injury-illness data.

OSHA., as has been pointed out, then convened a multistakeholder effort by the Keystone Group to produce a series of recommendations, and many of those were included in the proposal that we have before us, and I certainly share Mr. White's portrayal of that report as an inclusive and effective one.

What remains now is to ensure that the changes in the recordkeeping regulation continue to support an effective, injury-illness data system, including effective measures to, first of all, assure that employers accurately record all appropriate cases, and secondly, that all appropriate data is collected by BLS and OSHA to allow them to properly lead our national prevention program.

In addition, it is also vital that the existing BLS annual survey be expanded so we can get further information and finally get a full picture and clear focus of the current burden of worker injuries and illnesses. This would include getting additional detail, for instance, on so-called, restricted-activity cases, light-duty cases, which are accounting for a growing proportion of the total worker-injury-illness burden and, in fact, in manufacturing have now accounted for a higher rate than lost-time injuries.

Finally, we also need to identify specific types of cases by, for instance, job title or special types of hazards to allow OSHA to focus in on key hazards. That sort of data, for instance, was critical in OSHA's ability to develop the a lock-out standard, which is one of OSHA's most important tools, and one of employers' most important tools, in preventing serious worker injuries.

So there are some key issues still on the agenda, and we hope that the administration and the Congress together can work to support that activity. We appreciate the opportunity to testify, and I would be happy to answer any questions. Thank you very much.

STATEMENT OF ERIC FRUMIN, DIRECTOR OF OCCUPATIONAL SAFETY AND HEALTH, UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES (UNITE), NEW YORK, NEW YORK – SEE APPENDIX F

Chairman Ballenger. Thank you, Mr. Frumin. Mr. Scalia, you may begin.

Mr. Scalia. Good morning, Mr. Chairman and members of the Committee. My name is Eugene Scalia. I am a lawyer with the firm, Gibson, Dunn & Crutcher, here in Washington. My practice concentrates in labor and employment law, including the Occupational Safety and Health Act. Most recently, I have been heavily involved in OSHA's ergonomics rulemaking. I thank you for the honor of testifying here today.

I think from what we have heard this morning, there is certainly a consensus among all concerned with occupational safety and health that there is a need to revise the OSHA recordkeeping rules, and I think there is also consensus that this proposed rule does contain some valuable revisions.

I would add that I think it is commendable that OSHA is proceeding now by notice and comment, since for too long recordkeeping requirements have been dependent on guidance issued without the benefit of the public's scrutiny and public input. I actually have an example here today.

It is a letter that was issued by OSHA at one point to an employer, inquiring whether something was recordable. OSHA instructed that if an employer required limited medical treatment caused by a voodoo hex being placed on him by coworkers, then that would be a recordable illness. So less recordkeeping voodoo would be a welcome result of revision to the recordkeeping rule; and, therefore, I think OSHA has taken a valuable step here.

Unfortunately, I think it is also evident this morning there are problems with this rule. I would not like to concentrate on two. First, I would like to emphasize what I think is OSHA's lost sense of mission. OSHA's mandate is occupational injuries and illnesses. This rule requires recording conditions that are none of the above--not injuries, not illnesses, and not occupational--none of the above. Let me give you an example.

Under this proposed rule, an employee could hurt himself playing football on the weekend, and if the pain from that caused him difficulty performing his job during the week, and some job restrictions were necessary as a result, then that would have to be recorded as an occupational injury or illness. I do not think that makes sense to any of us, but that is one result of this rule.

As you have heard, the proposal does not even require that there be an injury. You can have just soreness, again, from a football game, and if that were exacerbated by doing job tasks, then under this rule that symptom would have to be recorded if it resulted in a restriction of job duties. Again, that is wrong, and it is wrong not just because it is wrong. That is, it is wrong not just because it is inaccurate and untrue; it is wrong because it is going to make OSHA records confusing and misleading.

OSHA. records are used in order to help employers and OSHA find where there are problems that the employer can fix or that OSHA might be able to prosecute under the OSHA Act or under the standards. To go back to the football injury, if you have somebody who is hurt playing football, and because the symptoms are aggravated at work it ends up being work recordable, and that person is out for three months because of what everybody knows is a football injury, and that gets put as three months off from work on your OSHA records, your records have suddenly become a lot less valuable. And if you have a lot of those kinds of conditions, you as the employer, you as the union, you as OSHA, are getting sent around looking at a lot of conditions that are not really work problems and that the employer is not going to be able to fix. The employer cannot stop the football injury.

The second issue I would like to touch on is the relationship between this rule and ergonomics. OSHA recently admitted that correlation, saying it was going to delay the recordkeeping rule pending the conclusion of the ergonomics rulemaking. Ergonomics receives more discussion in the preamble to this proposed rule than any other medical condition. It is the number-one-discussed medical condition in the preamble to this rule.

I think the blurring of injuries and symptoms that I have discussed and the blurring of work and non-work causes exists in this rule largely to capture what OSHA considers to be ergonomic problems in the job. I think ergonomics is a principal reason that line has been left fuzzy here, just as that line has been left very, very fuzzy, and deliberately so, in the ergonomics rulemaking. And so, I think, you can say this recordkeeping rule is the second punch in a one-two punch of ergonomic regulation by OSHA.

In fact, I should say I am concerned that this rule would be used for ergonomics enforcement by OSHA even if the ergonomics rule were not finalized. As you know, employers have an obligation under the OSHA Act to eliminate recognized hazards of serious injury or illness. In prosecuting cases under the OSHA Act, OSHA has had a very hard time establishing that there are ergonomic hazards in the work place. If this rule were finalized in this form and forced employers to record symptoms not caused by work as ergonomic problems, it would strengthen OSHA's case in general-duty- clause ergonomic litigation, and I think that is wrong.

To conclude, OSHA recordkeeping is important, and it is important enough to do well. This proposal has some good provisions, but they currently are overshadowed by problems that improperly expand OSHA's authority, and it will diminish the value of OSHA recordkeeping.

Thank you, and, of course, I would be pleased to answer any questions.

STATEMENT OF EUGENE SCALIA, PARTNER, GIBSON, DUNN & CRUTCHER, LLP, WASHINGTON, D.C. – SEE APPENDIX G

Chairman Ballenger. Thank you, Mr. Scalia. I want to thank the witnesses for their testimony and remind the members that the Committee Rule 2 imposes a five-minute limit on questions. The Chairman will now recognize members for any questions they may wish to ask, and since I am the Chairman, I get to go first.

Mr. White, knowing that you have worked on this thing almost from the word go, the process that you came up with a proposal in 1996 that continued several needed reforms, and they enjoyed broad support at that time, why hasn't, in your opinion, hasn't the proposal been finalized by now? What do you believe OSHA's intentions are in not finalizing it up to now, or do you have an opinion that you could discuss?

Mr. White. Well, and it is my opinion--it is not fact.

Chairman Ballenger. Okay.

Mr. White. But in a sense I agree with one of the panelists who said, I think, OSHA has kind of lost its way here. And part of that is a function of time that has passed. Eric Frumin mentioned the Keystone report, which was kind of the consensus document from which the proposal grew and which reflected many of the things in the Keystone report. And there was widespread, stakeholder support for that document, but since that time OSHA has been extracted by its ergonomics rulemaking, and it, frankly, I think, has lost and is no longer in touch with the consensus that was reflected in the proposal.

And now that it comes time to finalize the rule, for some reason, and I think time is one, change in personnel, change at the top of the agency, has caused OSHA and its staff to go back and try to rethink issues that had already been thought through quite clearly and cite collaboratively at the outset. And the tendency is to kind of retreat to the familiar, and rather than make some of the difficult policy choices that were made in the proposal, I think the instinct is sometimes to say, well, why don't we just stick with what we have got because we know we can defend it, when, in fact, as I say, there had been a long history of support for the kinds of changes that were in the proposal.

So I think the passage of time, the change, the turnover at the top of the agency, has caused the agency's resolve to be weakened to some extent, and that is the importance of getting things done in a timely way.

And Eric mentioned some other rules that, frankly, have languished and that should be addressed, and I think it is very important for the agency to just exert the will to make the necessary changes that were reflected in some of the consensus that was reached early on.

Chairman Ballenger. Mr. McGeady, OSHA states in its preamble to the recordkeeping proposal that some employers mistakenly believe that recording an injury implies fault on the part of the employer. In light of the fact that injury records are used to target employers for OSHA's inspections, to set insurance rates, and under the ergonomics regulation may trigger an ergonomics program, how do you as an employer react to this statement? I know how you are going to react, but could you give us a little bit of background on that?

Mr. McGeady. Several points come to mind, Mr. Chairman, and first, it struck me in preparing my testimony that, as Mr. White indicated, some of the studies associated with this rulemaking are nearly a generation old, three years short of what most people consider a generation, and OSHA appears to have sort of missed the improvements that have incurred in industry in that period of time.

In prior years, I would have agreed with the idea that there was some fudging, for lack of a better word, of recordkeeping to prevent either waving your hand and saying, ``Hey, look at me. I have got a high incident rate,'' or having your insurance company land on you like a ton of bricks, or whatever.

Based on OSHA's studies, based on my own personal knowledge, I do not believe that to be a valid argument at this time, in the Year 2000. Recordkeeping, if some of us remember the old ``Z'' standards, where if you injured a finger, and you had the tip of your finger taken off, it was not reported until you took a piece of bone, then you had to report it, well, here is this poor guy walking around with his arm in a sling and cannot use his hand, on light duty, and so forth. He does not show up anywhere in recordkeeping. That is no longer true.

In today's environment an employer must have, if he wants to stay in business, he must have the ability to have a safe work place, attract employees. Under the proposed rule even, as I read it, the business of counting work days lost is simplified, and it goes to work days, not calendar days. It makes an awful lot of sense. Things like that have advanced, and I think this rulemaking sort of believes in the thing that I have always maintained, Mr. White referred to it, that OSHA's thrust a while back was to become consultive and cooperative rather than confrontational. This appears to put it back in the confrontational standpoint, and I, frankly, think it is a wrong way to go for that agency.

Suffer me one real quick, not apocryphal story, a true story, regarding recordkeeping. We were inspected some years ago on one of our job sites and had a welder welding galvanizing. When you weld galvanizing you have to have some respiratory protection. The welder had the respiratory. The box that the filters came in was in a trailer that was about from me to you from where the welder was welding. We are cited for not having that box on the job site. Clearly ludicrous, but it cost us several thousands of dollars to fight to have that citation dismissed. That is the kind of ``gotcha'' atmosphere that I think OSHA has fallen back on, and I just do not think it is the right way to go.

Chairman Ballenger. Let me just say that since I have been Chairman of this Subcommittee, that is the one thing I have been trying to get, is more working together for the good of the safety of the employees. I think it is Major's turn.

Rep. Owens. Mr. Frumin, you and Mr. White both follow OSHA issues very carefully. Do you share Mr. White's concern that OSHA is likely to alter the proposed rule to make it too similar to the current recordkeeping rules?

Mr. Frumin. I am sorry. I missed the part--do I share his concern that what?

Rep. Owens. That OSHA is likely to alter the proposed rules to make it too similar to the current recordkeeping rules.

Mr. Frumin. Well, of course, we are speculating here about what OSHA might and might not do. It is a little unusual to be part of the congressional process at the same time that the agency is deliberating.

We know that there are some important changes that should be made. I think the example that Mr. McGeady gave about day counts, for instance, is a useful one.

We are concerned, in some respects, that the rule might be too different, frankly. For instance, the question of attribution of fault, so to speak.

Rep. Owens. Attribution of what?

Mr. Frumin. The question of attribution of fault. Is it really work related, dependent upon preexisting conditions and so forth? The proposal included an option that was, frankly, ludicrous from our standpoint. ``Predominate cause,'' I think, was the term used, which would eliminate many, many cases.

In fact, Mr. Chairman, I think the textile industry attempted some time ago in North Carolina to blame all of the brown-lung disease in cotton-mill workers on tobacco, and the tobacco industry did not take kindly to that.

So, you know, there are some realistic problems with these issues, and I think a thoughtful approach is important. I am not so concerned that we will end up with a rule that is too similar. I am more concerned we will end up with a rule that is different, and we will have a mission creep that is not of Mr. Scalia's concern, but one where OSHA might conceivably lose sight of the very important number of work place injuries that are going on.

Rep. Owens. Since you have followed it closely, would you agree that virtually all of the concerns that have been raised today concerning the impact of the proposed rule on small businesses or the issue of work-relatedness were also raised during the notice-and-comment period?

Mr. Frumin. Yes. I have not heard any new concerns being raised here, frankly. I think most, if not all of them, came up during the rulemaking period.

Rep. Owens. Mr. McGeady, did you have an opportunity to follow the rulemaking process, or did the National Federation of Independent Businesses participate in the rulemaking?

Mr. McGeady. Mr. Owens, two questions, really. I personally have followed it, but not as closely as Mr. White or Mr. Scalia. I will make the excuse that I do have a company to try to operate. But the problem here is that several of the standards that I have seen today in Appendix B may have been there in '96, '96 or '97. I candidly do not remember them.

The baseline requirements for preemployment physicals that would be imposed on an employer by implication, if he wants to keep his workers' comp. insurance, he is going to have to do it. I do not recall being there. Maybe they were. Frankly, I do not recall them.

Rep. Owens. So you also were at the hearing held by the Small Business Committee on OSHA's rulemaking.

Mr. McGeady. Similar testimony was presented at the Small Business Committee hearing of the nature of three years ago. I could be challenged on the date, but it has been a while back.

Rep. Owens. Mr. White, would you agree that virtually all of the concerns that are being raised today concerning the impact of the proposed rulemaking on small businesses or the issue of work relatedness were also raised during the notice-and-comment period, since you did follow it closely?

Mr. White. Sure. There is no question that all of the issues, and many more, were raised during the rulemaking process. What we are responding to in this hearing is OSHA's own public statements, which seem to indicate that OSHA is backing away from some of the all-but-consensus--

Rep. Owens. Public statements they have made since the comment period ended?

Mr. White. Yes, sir, yes.

Rep. Owens. Give me an example.

Mr. White. I believe, Mr. Jeffress, at the AIHA Convention, before thousands of people, talked about the OSHA rulemaking probably resulting in only minor changes to the rule, and there have been other similar public statements which have indicated that some of the significant changes that would have taken place through the proposal may not be implemented.

And by the way, I should mention that we are not, and did not testify, in favor of all of the provisions of the proposal, but some of the significant ones, like applying the injury criteria to illnesses, narrowing the restricted work definition, we think are good, and we hope that OSHA will implement those in the final rule. But we are concerned, based upon public statements.

Rep. Owens. I think my time is up. Thank you.

Chairman Ballenger. Mr. Hoekstra.

Rep. Hoekstra. Thank you, Mr. Chairman. I have got some interest in how the revised rule will interact with the proposed. And, Mr. Scalia, under the recordkeeping proposal employers would be required to record an injury that was aggravated but not caused by work. Is that correct?

Chairman Ballenger. That is correct, sir.

Rep. Hoekstra. What is the definition of ``aggravation'' under the proposal, and how significant must the work place contribution be for an injury to be considered work related? Is that outlined?

Mr. Scalia. To answer first the question of how significant work related must be, not significant at all. The rule is clear that if work has any effect on it, if it is aggravated at work, regardless of how minor a role in the overall condition it played, the rule is clear that at that point you do have a recordable injury.

So I will give you again the example of the football player, the person who hurts himself on the weekend. Under this rule, and also under the ergonomics rule, that person shows up to work and does his job, does not feel well doing it, just as he would not feel well doing a whole lot of other things. This rule and the ergonomics rule would require you to treat that like a work place problem, even though everybody knows that the condition had its origin somewhere else and may feel worse at work but would feel worse elsewhere.

As to what ``aggravation'' means, it is not defined, but OSHA has treated that in the past as just making things more apparent, more manifest. If the symptoms are experienced at work, I think we have to expect that would be enough under the rule. And, again, that is enough also under the ergonomics rule.

Lest there be any dispute what ``symptoms'' mean, you go to the ergonomics rule, and this is an example of how the two rules would interact, you would go to the ergonomics rule, and you would see that symptoms are defined to include pain, cramping, stiffness, all things you could get from playing football, and it might not mean there is an injury at all.

Rep. Hoekstra. Which at some point would begin to create an undue hardship on the business, whether you are a small or a large business, either the interpretation or just the recordkeeping. Correct?

Mr. Scalia. Just having to write these things down is going to be time consuming, and I think especially onerous for small business. Having to respond to them when you know they are not caused by work is a considerable additional burden.

And, again, an employer also faces the risk that even if we do not have an ergonomics rule finalized, because these things are in their records and because football injuries are being put down as work did it, OSHA is going to come in and inspect them and treat them as if they are causing problems, when they have not caused the problem, and OSHA is going to be wasting its time, and the employer is going to be subject to needless prosecution.

Rep. Hoekstra. Now, under the recordkeeping proposal, if an employee developed carpal-tunnel syndrome while playing tennis and the injury caused pain at work that caused the employee to be placed on a restricted work schedule, would the employer be required to record this injury as an occupational injury?

Mr. Scalia. That is correct.

Rep. Hoekstra. Okay. And then if the employer were required to record an MSD injury, such as carpal tunnel, even though the injury was not caused by work, what would the employer be required to do as a result under the proposed ergonomics regulation?

Mr. Scalia. Under the proposed ergonomics rule, the employer would have all the same obligations toward that condition as if the employer actually had caused it. The employer would have to make enormous changes in the job, possibly in an elusive attempt to eliminate a supposed ergonomic risk factor, even though, again, the employee came in and said, ``I have developed carpal-tunnel syndrome, and my doctors told me it is a genetic condition in my case. That is what happened to me, and it hurts me to work.'' The employer would have to say, ``Well, I had better change your job, and I had better go around and look at probably changing all the other jobs that are similar to it if there is a chance that those jobs also might aggravate such a condition.''

Rep. Hoekstra. Okay. And under the recordkeeping proposal, what is the significance of listing musculoskeletal disorders in Mandatory Appendix B?

Mr. Scalia. I think a couple of things. First, it certainly makes even more clear to employers that they are required to record these conditions and that there is a fairly low trigger for them. Incidentally, one of the triggers for them, these tests, Tenils-Falens tests, that are referred to in the rule; in the ergonomics hearings I asked a doctor who is very responsive of the ergonomics rule and OSHA is very responsive of him, and he agreed, these tests are not reliable at all, but that mandatory Appendix B would require you to record the conditions anyway.

I also want to add, however, that I am not especially alarmed about that provision in Mandatory Appendix B because it is evident to me that even if you took it out, OSHA thinks you would be required to record those same conditions under the general recordability requirement they have. They have got a clear statement that it is an either/or. If it meets Appendix B or if it meets the general criteria, you would have to write that tennis injury down.

Rep. Hoekstra. So what you are saying is that the threshold to trigger the recordkeeping is relatively low or very low.

Mr. Scalia. It is extraordinarily low, so low that employers and OSHA are going to end up spending an awful lot of time tracking down problems that they cannot do anything about, as opposed to having a recordkeeping system that focuses everybody on the problems that are really severe and are really likely to be fixable by OSHA and employers and unions and employees.

Rep. Hoekstra. Okay. Thank you. Mr. Chairman?

Chairman Ballenger. Ms. Woolsey?

Rep. Woolsey. Thank you, Mr. Chairman. There is a cause and effect and a nexus between good management practices and good human-resources philosophies and policies that fit right into whether a person has a football injury and comes to work and blames it on the company.

When an employer fights OSHA and decides that protecting their employees is secondary to protecting some position that they do not want to protect their employees, we end up with a mess.

I was a human-resources professional for 25 years. I show absolutely that when you care about your employees, they care about the business, and the idea of recording near misses actually prevents the big problems in the end. And so I think what you are doing, you are getting all defensive about the wrong things, and you are overlooking the fact that work-related injuries, the definition has been narrowed. It sounds to me like what you are working on is going back to the olden days when we did not have OSHA at all, because OSHA actually pointed out that there are problems in the work force.

Now, what I really want is for Mr. Frumin to be able to respond to the things that he has been hearing, because we have not given him enough time to do that, but I want to say one thing. When near misses, recording what goes on when I was a human-resources manager, a woman who is a diabetic stapled her finger accidentally. We put that down in our records. That woman almost lost that finger because she is a diabetic. If we had not known and had not followed, the company would not have known what was going on. None of us would have been able to track the history, and I will tell you, it is not too much to ask that employees record near misses so that we know what is been going on and that we care about our employees, and that is very important.

Now, I gave a speech. I did not mean to. Mr. Frumin, you want to respond to some of this, I know that, not just to me, but what you have been hearing.

Mr. Frumin. Thank you. There has been a lot of speculation here today. Mr. White was asked to speculate about, you know, what has accounted for the delay. Mr. Scalia has speculated generously in his testimony about various different scenarios. And, frankly, during the 1996 public meeting on the recordkeeping rule there was a fair amount of speculation about how various options would affect employer practices. There has been painfully little factual evidence presented by employers regarding the effects of different recordkeeping-requirement scenarios on their recordkeeping practices.

I think it is incumbent upon employers who have those problems to present facts about that, the real-world instances, to show us the logs, take out the names of the employees, if you like, for a public discussion like that, but show us the logs, or in the words of Jerry Maguire, was it ``show us the money''? Where is the beef here? I do not see it.

We need to have a realistic discussion of what this is like. We have seen a lot of logs that employers have filled out using good-faith efforts that have been very useful to employers under the current recordkeeping rules, various scenarios about how that might change. We have discussed with employers, and in the real world we are not seeing these problems, and I think it is just unfortunate is that those complaining so terribly about the injustice that is about to be visited upon them have not presented the real-world logs from real work places with real workers and real employers and real hazards and described in real terms about how they might have that problem.

And, frankly, we spent a lot of time wasted at the '96 rulemaking listening to that sort of discussion, and we would benefit from those real-world descriptions, and hopefully OSHA will be able to make the best decision it can using the actual information, actual experience, that was presented to them that is reliable as an experience.

Rep. Woolsey. Mr. Scalia.

Mr. Scalia. Thank you. I would welcome an opportunity to address, first of all, your statements and then what Mr. Frumin has said. I am glad you raise the point of how employers and human-resources professionals would respond. I think you are absolutely right that employers should, and I believe they will, respond to a lot of conditions, regardless of their cause, because that is good business practice, and it is the decent and human thing to do, and they should do it. And I think the responsible employers, large and small employers, do that. The problem becomes when we move beyond the realm of what is voluntary into the realm of what employers are subject to a $10,000 fine for.

Rep. Woolsey. Well, I think I am losing my time. My time is up, but I would like to respond and say, take my time back, and we would not have OSHA in the first place if employers responded to their employees. It isn't the good, responsible employer we are worried about; it is the employer that does not respond to the needs of their employers, and I yield back my time.

Chairman Ballenger. I did not mean to cut anybody off, but let me--and this will be short, and I will yield to Mr. Hoekstra and Major also if they would like. But the one thing, as a businessman, I know that workmens' compensation insurance somehow has been continuing to go up and up and up, and somehow it appears, just practical experience, it just appears to me if you report more and more accidents, somebody is going to get those reports. Does anybody have any idea what effect it would have? Yes, sir. Mr. McGeady.

Mr. McGeady. Well, Mr. Chairman, I compliment Ms. Woolsey. That also is my prior profession. We called it personnel manager in those days.

Chairman Ballenger. Do not use up too much of my time being--

Mr. McGeady. No. I will try not to, Mr. Chairman.

Rep. Woolsey. He is saying nice things about me.

Mr. McGeady. If I have a few of your seconds left, I want to respond to her. To answer your question directly, our firm has the lowest experience modification in our industry in the State of Maryland. We work at it. If we were to report approximately 15 more recordable injuries, and under this standard that would occur in one week by the way I read it, we would lose probably close to 20 to 30 percentage points.

As you may know, experience mods work on a basis of one, and it can go up to about 2.5, and it cannot go below about .62 or .60. Our current experience mod is .63, and that number is applied to your compensation rate, and it results in savings on your premiums.

Conversely, if you go above one, your premiums multiply. You are allowed a certain number of ``hits,'' and beyond that it costs you on your experience-modification rate. The statistical professionals will tell you how they set those under the laws of large numbers, but basically they say if we have 62 employees, which we do, you are entitled to so many ``injuries.'' We, of course, try not to have any, but then beyond that it costs you literally, both dollar-wise and, more important, people-wise.

And responding to Ms. Woolsey, I do not understand how sunburn and Band-aid and poison ivy causes heartburn.

Chairman Ballenger. Mr. Frumin, we are short of time. I think the buzzer is going to go off, and Mr. Hoekstra had a question.

Rep. Hoekstra. I just wanted to say that I want to build off the comment of Ms. Woolsey that if we had all good employers, we would not need OSHA. That may lead us to develop some legislation in companion that said for good employers maybe we will not have OSHA and a certain degree of flexibility.

So I look forward to working through that with you and reward those employers, of which there are many, who put employee safety and health at the top of their lists, and maybe there should be some allowances for them being treated differently so that we can really focus on those companies that do not put employee health at the top of their lists.

Mr. Steinmetz, a question for you. The proposed recordkeeping regulations require the site-controlling or general contractor at a construction site to maintain injury logs for all subcontractors. How would this provision impact general and subcontractors, and specifically does this provision create unnecessary paper-work burdens and perhaps a privacy concern?

[Mr. Frumin was excused.]

Chairman Ballenger. Fire away.

Mr. Scalia. I worked for 15 years as a safety and loss-control manager for a roofing contractor and we used to get asked frequently, by my previous employer, for our OSHA 200 form. We are a small employer. We kept an OSHA 200 form company wide. It would have as many as 30 recordable injuries. We had to keep one of those for each construction site. We did a lot of construction work. t is another paper-work requirement that I do not see has a lot of benefit.

We used to do a lot of new construction work. You know, on Tuesday, I have got three guys there. On Friday, I have got five guys there, then I am not back for two weeks because we got caught up. On Monday morning, I show up. It rains. You know, it is just another little paper-work ball I have got to keep in the air to keep OSHA happy. OSHA shows up: "Where is my site-specific OSHA 200 form?" "Well, I do not have it." "Oh, you are cited."

Rep. Hoekstra. Okay. Thank you. I am disappointed Mr. Frumin is not here. For those of us that watch OSHA like some of you do, each and every day, I think it is very important for us to be skeptical of the paper-work requirements and the new rules and regulations that they may bring forward.

And I think the best example that we have had this year for people who are really in touch with reality was the home-office requirement that said we are going to apply OSHA standards to the home. So I am glad that you are here and that we are all watching. Mr. McGeady?

Mr. McGeady. Mr. Hoekstra, another, in my judgment, law of unintended consequences. The general contractor in many instances does not control the site. Under OSHA's own rules, the lead subcontractor frequently controls the site, so does that apply to the subcontractor for all of the other lesser subcontractors?

We, for example, are pile driving. We are one of the first ones in, but are we required to talk to the electrician who may be running temporary lights or the scaffold builders or to fill out the balance where we are the lead sub and, therefore, site responsible under OSHA rules? I cannot answer that question. I do not know. It is a nightmare.

Rep. Hoekstra. Well, thank you for being here. I yield back to the Chairman.

Chairman Ballenger. Major, have you got anything?

Rep. Owens. No.

Chairman Ballenger. Well, let me just say to you folks that I think the questions have been raised and very well should be raised because we do not know what the standards are going to be. And, Mr. Frumin, when you raised your hand and said you were going to have to leave, I wonder if we cut you off from that.

Mr. Frumin. No. I just wanted an opportunity to leave for one minute. I have nothing to add.

Chairman Ballenger. Okay. Well, let me thank our witnesses for the valuable testimony and members for their questions, and thank everybody for bringing up, I think, a question that we do not know what the answer is because we do not know what they are going to throw at us. And so it will be quite interesting to find out when the time comes if what we said here today was correct.

I wish they would come up and make up their mind. No, I do not either. I would just as soon as they did not make up their mind and just leave it alone for a while. But thank you all for being here.

[Whereupon, at 12 p.m., the Subcommittee was adjourned.]