AMERICAN SOCIETY OF SAFETY ENGINEERS

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September 15, 2003

The Honorable Charlie Norwood
Chairman
Subcommittee on Workforce Protections
Committee on Education and the Workforce
U.S. House of Representatives
2181 Rayburn House Office Building
Washington, DC 20515-6100

RE: Comments on HR 2728, HR 2729, HR 2730 and HR 2731

Dear Chairman Norwood:

The American Society of Safety Engineers (ASSE), on behalf of its 30,000 member safety, health and environmental professionals, sincerely commends you for your continued leadership in advancing occupational safety and health issues. ASSE appreciates the opportunity to offer the following comments concerning the series of bills you have introduced aimed at addressing long-standing fairness issues in occupational safety and health regulation. As you know, ASSE is a professional society whose members are dedicated to workplace safety and health and who deal every day with the same concerns your legislations seeks to address.

The Society has reviewed these bills and offers these comments to provide support for your efforts where we can but also to suggest changes that ASSE believes can help the bills achieve their overall purpose of improving the ability of small businesses in good faith to meet federal occupational safety and health requirements without excessive burdens that may take away incentives to make such improvements.

HR 2728 - "Occupational Safety and Health Small Business Day in Court Act of 2003"

ASSE understands the reasoning underlying HR 2728, which is to codify giving some lee way to employers who, because of unique circumstances or despite their best efforts, miss the 15-day contest deadline to respond to Occupational Safety and Health Administration (OSHA) citations and, for the same reason, to give the Occupational Safety and Health Review Commission (OSHRC), on a case-by-case basis, the ability to reopen a final order for similar failures to respond.
ASSE's members agree that 15 days can, in some unique circumstances, be an unnecessarily difficult deadline to meet.

For a truly small business owner who is a sole manager and may be out of town on vacation, 15 days to contest may not be enough time. For some small businesses in remote areas, finding the appropriate safety, health and environmental resources to give advice or help respond adequately may be difficult in that time frame. For nearly all businesses in nearly all situations, however, 15 days is time enough, and as written, the suggested language -- "unless such failure results from mistake, inadvertence, surprise, or excusable neglect" - is far too broad. The language would give too many businesses too easily achieved excuses for not meeting the deadline and, ultimately, eviscerate the 15-day deadline.

ASSE urges a more practical solution to this problem, which is simply to expand the 15-day contest time period to 18 days. The 3 extra days could give just enough additional time to help small companies in unique situations without unduly compromising the requirement that employers respond quickly.

HR 2729 - "Occupational Safety and Health Review Commission Efficiency Act of 2003"

HR 2729 contains several provisions aimed at changing OSHRC. ASSE can only support one of these proposed changes - expansion of the OSHRC from 3 to 5 members. The work of the OSHRC could be more efficiently accomplished with the addition of two more members.

ASSE cannot support the other provisions of this bill, however. Requiring members to be lawyers goes against the history of some very good, productive OSHRC members who were not lawyers and would mean that most safety, health and environmental professionals, who ASSE represents, could not be members no matter how otherwise well qualified they might be.

Provisions that would give the President dramatically increased control over OSHRC members appointments also cannot be supported by ASSE. Giving the President at-will power to extend a member's term without limit as well as the power to remove a member "for inefficiency, neglect of duty, or malfeasance in office" effectively takes away any independence of the OSHRC. The power the Presidency has in making appointments should be power enough. Federal law already adequately protects the public from members who might abuse or neglect their responsibilities during their terms of office.

Finally, if it is advisable to expand the OSHRC from three to five members, as HR 2729 proposes, ASSE does not understand why it would be advisable to allow OSHRC's powers to be delegated to groups of three members, where a quorum of two members would be allowed, as HR 2729 also provides. For the same reasons we support an expansion of OSHRC, we cannot support a provision that would allow as few as two members to decide issues that can impact worker health and safety.

HR 2730 - "Occupational Safety and Health Independent Review of OSHA Citations Act of 2003"

ASSE agrees that fundamental fairness demands that employers should have the opportunity for a fair and independent review of any charge against them as envisioned in the legislative history of the Occupational Safety and Health Act. Recent case law decisions have required OSHRC to defer extensively to the Secretary of Labor's interpretation of standards or enforcement actions, which essentially alters the burden of proof placed upon employers. This approach is corrected by HR 2730, which clarifies that, on appeal, OSHRC's decisions "with respect to all questions of law" are to be given "deference if reasonable." OSHRC would then be free to review the facts and applicable law de novo.

ASSE is sympathetic with the intent of HR 2730, but we cannot support the bill. Attempting to address the limits on OSHRC's ability to review cases is a laudable effort. Yet, the phrase "if reasonable" only serves to change where the difficult question of appropriate review is conducted, not solve it. Frankly, we do not see how these provisions can be rewritten to provide the best, appropriate balance. If that is the case, ASSE must rely on the judicial decisions have seen fit to defer to the Secretary of Labor. While not a perfect solution, at least the Secretary of Labor's decisions are more visible to Congress and the American people, providing another kind of check and balance to inappropriate actions.

HR 2731 - "Occupational Safety and Health Small Employer Access to Justice Act of 2003"

Finally, ASSE has evaluated the expansion of relief under HR 2731, which would entitle employers with fewer than 100 employees and $1.5 million in revenues to attorney fees if they prevail in OSHA litigation. ASSE understands that it can be extremely difficult, under current law, for small companies to gain relief by establishing that OSHA's position was not "substantially justified" when going against the Office of the Solicitor with a great deal of experience in carrying this minimal burden. As a result, small companies may both "win" a case but "lose" because attorney fees could exceed the amount of proposed civil penalties. Some added protections for truly small employers are needed.

ASSE supports providing small employers the ability to recover attorney fees that HR 2731 proposes. However, ASSE can only support its application to truly small employers. The definition of small employer in the bill must be lowered to 25 and $1 million in assets. If the concern is to address a disproportionate burden placed on small employers in challenging OSHA actions, a 100-employee company with $1.5 million in assets, which the bill defines as a small employer, would appear to be able to assume the risk of litigation. Awarding attorneys fees is a dramatic step in limiting the power of the government to fulfill its enforcement powers and only where experience shows that individuals or companies may be powerless. That case can be made for truly small employers.

Conclusion

ASSE appreciates your continued commitment to workplace safety and health through your thoughtful consideration of practical, workable means that encourage employers to be invested the welfare of their employees. ASSE hopes that our comments help you and the Subcommittee to determine the best way to meet the goal of these bills. Giving small employers new tools to help them work with OSHA in addressing workplace safety and health risks is a goal we share with you. As always, ASSE appreciates your consideration of these comments and looks forward to continued cooperation with you in enhancing workplace safety and health.

Sincerely,

James "Skipper" Kendrick, CSP
President

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