David Michaels Archives - Shopfloor

Regulations Create Jobs? Yes, the Jobs of Regulators

By | Economy, Regulations | No Comments

James Gattuso of the Heritage Foundation applies Bastiat’s “broken windows” fallacy to the arguments of David Michaels, OSHA Administrator, to shattering effect. From “Jobs, Regulations and Broken Windows“:

[Michaels] cited OSHA’s recently withdrawn proposal to limit workplace noise. The standard was criticized for imposing excessive costs. But Michaels argued the requirements would be a boon to private enterprise. “[B]ecause OSHA has a weak noise standard…,” he explained, “U.S. employers have no incentive to buy modern, quieter machines, which means that U.S. manufacturers don’t build them, and there are few jobs in the United States for engineers who could design them.” Imposing mandates would presumably create those jobs, boosting the economy.

That would be a good thing if true. Think of how easy it would be for regulators to rev up the economy. Just place more burdens on businesses, and see the economy grow as they spend money to comply with them. That, however, is simply not the way the world works. Michaels’ argument is nonsense on stilts.

Frederic Bastiat, the 19th Century French economist, refuted the argument that breaking windows produced net economic benefits. Yes, glaziers did well in the repairs, but the work misallocated capital that could be better spent on more productive investments.

It’s not only regulators who base their arguments on jobs without the context of productivity or greater economic good, Gattuso notes.

[Some] have argued that pending FCC “net neutrality” rules would destroy jobs because the marketplace “losers” would be telephone and cable firms who employ large numbers of people, while the “winners” would be lean Internet content firms such as Google and Amazon.com, who have relatively small workforces. But such arguments completely miss the point. The problem with net neutrality rules has nothing to do with protecting fat telephone and cable payrolls. The problem is that, by interfering with innovation and investment, the recently-adopted rules will stymie growth of the Internet. That will probably mean fewer jobs for the economy as a whole – but certainly it would mean fewer benefits for society.

The goal should not be jobs, but wealth creation.

Whom to Believe? Washington Post Editorialists or OSHA Spokeswomen?

By | Human Resources, Labor Unions, Policy Experts | No Comments

Or neither…

Washington Post editorial, “The right balance on business regulations“:

On Wednesday came the first concrete result of the president’s new emphasis: withdrawal of a proposed Occupational Safety and Health Administration rule that would have required businesses to protect workers from shop-floor noise by changing schedules or installing new equipment rather than by passing out earplugs, as current rules require. Strongly backed by organized labor, the proposed rule had triggered loud business protests, especially from manufacturers, who said it would cost billions and destroy jobs. Now it will be progressives’ turn to howl.

Our emphasis. Associated Press, “Feds drop plan to change workplace noise standards“:

OSHA spokeswoman Diana Petterson said the noise standards decision was “completely unrelated” to Obama’s order. The proposal did not involve issuing a new rule, but reinterpreting an existing rule.

The Post comments after OSHA pulled its noise plan, “Now it will be progressives’ turn to howl.” While it’s a safe prediction that “progressives” will howl just on general principle, on the OSHA interpretation they’ve been quiet. We looked for expressions of outrage from organized labor and the usual suspects who supported OSHA’s noise plan, and nothing.

Our guess is that the noise plan was so unworkable and business’ objections so persuasive, even the activists expected it to be pulled.

P.S. OSHA Administrator David Michaels will address the American Bakers Association next week. We’ll be interested to see his responses to questions about the noise rule and President Obama’s regulatory instructions.

OSHA Withdraws Unworkable Occupational Noise Plan

By | Regulations | One Comment

From the Occupational Safety and Health Administration, “US Department of Labor’s OSHA withdraws
proposed interpretation on occupational noise

The U.S. Department of Labor’s Occupational Safety and Health Administration today announced that it is withdrawing its proposed interpretation titled “Interpretation of OSHA’s Provisions for Feasible Administrative or Engineering Controls of Occupational Noise.” The interpretation would have clarified the term “feasible administrative or engineering controls” as used in OSHA’s noise standard. The proposed interpretation was published in the Federal Register on Oct. 19, 2010.

“Hearing loss caused by excessive noise levels remains a serious occupational health problem in this country,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. “However, it is clear from the concerns raised about this proposal that addressing this problem requires much more public outreach and many more resources than we had originally anticipated. We are sensitive to the possible costs associated with improving worker protection and have decided to suspend work on this proposed modification while we study other approaches to abating workplace noise hazards.”

This is the right outcome, and OSHA is to be commended for reaching it. The National Association of Manufacturers had worked diligently on the issue, raising serious objections based on the proposal’s unworkability. (A formal statement from the NAM is coming.)

[UPDATE, 11:05 a.m.: The Wall Street Journal reports, “Workplace-Noise Rule Gets Shelved,” citing the NAM: “Clearly the message has been heard by OSHA,” said Joe Trauger, NAM vice president of human-resources policy.”]

For more, see the NAM’s backgrounder on the OSHA noise proposal. The NAM’s ManuFact summarized the most serious objections, noting that the NAM successfully sought an extension in OSHA’s deliberations. Earlier blog posts:

The announcement is a pretty good way to reinforce President Obama’s new emphasis on reasonable regulation. Of course, this proposal’s excess was so obvious and simply to explain — even if ear plugs and individual noise-reducing earmuffs worked effectively, businesses would still have to redesign their operations — it was an easy one to back away from.

OSHA’s administrator, David Michaels, spoke Tuesday at Public Citizen, one of the leading advocacy groups for the expanded regulatory state. Judging by Public Citizen’s reporting (Tweeting) on the event, Michaels did not give the group a head’s up about the pending withdrawal. Boy, they must feel burned, especially as it came in the wake of President Obama’s executive order on regulations.

Interesting, too, that Reina Steinzor of the all-regulations, all-the-time Center for Progressive Reform decried the President’s regulatory announcement with this observation: “[The] President’s newly stated position diminishes EPA’s Lisa Jackson, FDA’s Margaret Hamburg, and OSHA’s David Michaels, siding instead with his regulatory czar, Cass Sunstein, who has steadily pushed to issue an executive order that throws a net over his colleagues rather than helping them do their jobs.”

OSHA Needs to Explain Its Unfounded Noise Proposal

By | General, Human Resources | 4 Comments

OSHA formally announced in the Federal Register this morning that that the agency will be extending the comment period for their proposal to change noise abatement requirements. However, many on Capitol Hill are asking OSHA if the agency understands the impact that this proposal will have on manufacturers of all sizes.

From OSHA’s notice in the Federal Register:

Two commenters, the National Association of Manufacturers and the Coalition for Workplace Safety (CWS), representing employers who would be affected by the proposed interpretation, have requested an extension of 90 days to assess the operating changes that their members would be required to make to comply with the interpretation.

While this announcement makes the extension official we appreciate that OSHA has recognized that it would take much longer than then initially proposed 60 day window to accurately assess the impact of the agency’s proposal.

We say “proposal” and not “proposed rule” because the agency is attempting to make these changes outside of the formal rulemaking process. While OSHA officials are accepting comments to the regulatory docket the agency is not compelled to take stakeholder feedback into account. Manufacturers, particularly smaller sized manufacturers, will be impacted by these changes, which come at staggeringly high costs without any evidence that the current process of protecting employees is deficient.

David Michaels, the Assistant Secretary of Labor for OSHA, told The Hill newspaper that the agency is “sensitive to possible costs associated with improving worker protection”. Further he said:

Our common objective is to ensure that workers don’t lose their hearing without overly burdening employers. OSHA will take all stakeholder comments seriously and will fully consider impacts on business and workers before determining what final action, if any, we will take.

We hope OSHA does take these comments seriously and realize that the costs of making these changes far outweigh potential benefits (if any) that may result.

Yesterday Senators Olympia Snowe (R-ME) and Joe Lieberman (I-CT), who co-chair the Senate’s Task Force on Manufacturing, sent a bipartisan letter to Labor Secretary Hilda Solis asking for more information on why the proposal has been put forth. The Senators point to important data that shows that the number of hearing loss incidents in the workplace is quite low and is improving significantly.

OSHA does not appear to support this change with data or any suggestion that employees require this new level of protection. Indeed the most recent Bureau of Labor Statistics (BLS) data on hearing loss injuries shows that from 2004-2009, incidences of hearing loss injuries have decreased from just under 29,000 per year to 19,500 per year and the rate of injuries has gone from 3.2 per 10,000 employees down to 2.2

More importantly the Senators posed several important questions to the Secretary of Labor that we very much look forward getting answers to as well:

-Did OSHA consider alternative interpretations prior to deciding to publish the proposed interpretation in the Federal Register? If so, what were these alternatives?
-Did OSHA consider any unintended consequences the proposed interpretations could have on small businesses? How did the agency address these concerns during formulation of the proposed interpretation?
-Does OSHA have any quantitative data affirming the necessity to change this policy, given that numerous organizations have noted that the current policy is effective?

The First Speech by OSHA’s New Administrator, David Michaels

By | Economy, General, Human Resources, Regulations | No Comments

Fresh from his Senate confirmation, David Michaels, the new Assistant Secretary of Labor for Occupational Safety and Health, made his maiden speech as OSHA Administrator Wednesday. He spoke at a conference sponsored by the National Institutes of Occupational Safety and Health, an address entitled, “Making Green Jobs Safe: Integrating Occupational Safety & Health into Green and Sustainability.” Excerpt:

I think it’s very fitting and proper that my first speech as Assistant Secretary should address the issue of green jobs – what green jobs mean for the earth, for our economy and for American workers.

We’re all aware of the job opportunities that green jobs offer, and in the present economy, new technologies with the potential of new jobs are especially welcome.

Secretary of Labor Hilda Solis recently announced nearly $55 million in green job grants, authorized by the American Recovery and Reinvestment Act of 2009. These grants will support job training and labor market information programs to help workers, many in underserved communities, find jobs in expanding green industries and related occupations.

Is it fitting, really, that the first comments by a powerful federal regulator single out one segment of the economy for implicitly favored treatment? No one really knows what “green jobs” or “green industries” are; subjective definitions and standards are enemies of consistent regulation — and the rule of law, for that matter.

To be fair, the occasion was a forum dedicated to greenness, so comments to the topic were to be expected. But when speaking about the broader economy, Michaels offers even more of this subjectivity and invidiousness. This is a striking statement, coming as it does from a powerful regulatory and enforcement official who should embrace fairness and objectivity.

Where, and when possible, OSHA must move ahead on rulemaking for urgently needed standards – and to create good standards, we’ll need the input of scientists and engineers, academics, students and workers. We’ll also need allies in the progressive business community who will say “yes” to sensible changes and participate in the rulemaking process with constructive comments and insight.

Those comments divide employers into good business and bad business, progressives and reactionaries, those to be rewarded, those to be punished. In other words, “If you go along with us, support our proposals with our ‘sensible changes’ you’re progressive and good, and we’ll get along just fine. If you disagree with our proposals, object to our ‘sensible changes,” well, then, we won’t pay any attention to you. If you’re lucky. If you’re not, we might pay a lot of attention to you, and you won’t like it a bit.”

We would have expected a top official in the jobs-minded Obama Administration and Department of Labor to begin his tenure with speech that says, “We are going to work with everyone to create good jobs in a safe and healthy workplace.” Instead, we get a speech that told employers to fall in line with whatever OSHA says or pay the consequences.

Senate Confirms David Michaels to Head OSHA

By | Regulations | No Comments

The Senate yesterday evening confirmed the nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health, i.e., administrator of OSHA.

His approval came on a voice vote as a part of a package of nominees. So the head of a major sub-cabinet agency important to employees and employers both was confirmed with neither a committee hearing nor a Senate debate. Accountabil……..

Congratulations and best of luck, and remember: If jobs creation is the priority, it’s best to work WITH jobs creators — the employers.

Earlier posts.

Ending the Hysteria over BPA

By | Briefly Legal, Regulations | No Comments

From Michael Shaw at HealthNewsDigest.com, “It’s Time To End The Anti-BPA Hysteria,” covering numerous examples of the bad science, hyped reports, campaigning journalism and fear-mongering on the useful plastics additive, Bisphenol A.

Finally, “hysteria” is the best way to refer to the posture of Consumer Reports on BPA, as presented in the December, 2009 issue. The piece “Concern over canned foods” is rife with errors, but space allows me to mention only two.

Consumer Reports claims that dietary exposure to BPA is close to levels shown to cause harm in animal studies. Yet, the lowest oral exposures to BPA that cause adverse effects in animals are 500,000 times higher than typical human exposure.

Consumer Reports conflates oral ingestion data with animal studies in which BPA was directly injected into the blood, thus bypassing all metabolic pathways. As author Trevor Butterworth reminds us, every regulator and risk assessment in the world has rejected injection studies as a relevant method for assessing human risk from BPA, since our exposure to the chemical is through ingestion. Large, statistically rigorous, multi-generational reproductive toxicity studies have failed to reproduce the findings of injection-based studies.

Indeed, an EPA-funded rodent study recently published in Toxicological Sciences found that low-dose exposures of bisphenol A (BPA) showed no effects on the range of reproductive functions and behavioral activities measured.

See also this summary of a new EPA report from STATS, non-profit, non-partisan Statistical Assessment Service at George Mason University, “New independent study by EPA refutes BPA risk“: [A] second independent study by the Environmental Protection Agency, published in the leading toxicological journal, Toxicological Sciences, has failed to find evidence of the low-dose hypothesis claimed by environmental activists and widely reported in the media.”

Unfortunately, as former Ohio Treasurer Ken Blackwell has written, a BPA scare can help drum up business, for trial lawyers especially. See “A Chemical Scare Campaign Is Good Business for Some.”

The public would be well served by a high-profile, dispassionate assessment of these issues. We suggest a Senate hearing as venue.

David Michaels, President Obama’s nominee to head the Occupational Safety and Health Administration, has been a prominent promoter of the “BPA is DANGEROUS” school of thought from his position as director of the Project on Scientific Knowledge and Public Policy.  A headline on a piece Michaels wrote for The Washington Post on BPA proclaimed, “If Two Similar Studies Completely Disagree, Look at How the Funders Framed the Issue.”

Agreed, SKAPP was formed with money from the trial lawyer industry and is supported by George Soros’ Open Society Institute. And Business Insurance reports, “Surging legal action over BPA targets manufacturers.”

So, yes, a Senate hearing would be a good place to explore the issues surrounding BPA, science and political advocacy as front for the litigation industry. How about at the Senate HELP Committee’s confirmation hearing for Michaels?

Alas, too late. Chairman Tom Harkin pushed through Michaels’ committee approval with no hearing.


By | Regulations | No Comments

The Senate Health, Education, Labor and Pensions Committee is scheduled to vote today on President Obama’s nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health (OSHA). Despite Michaels’ controversial writings on science, litigaton and the Second Amendment, Chairman Tom Harkin (D-IA) did not schedule a committee hearing on his nomination allowing for a public exploration of his views.

The business meeting starts at 10 a.m.

For previous posts on Michaels, go here.

UPDATE (10:10 a.m.): The first item on the committee’s schedule is mark-up of S. 510, the FDA Food Safety Modernization Act. Sen. Harkin says he hopes to work through the bill by noon.

UPDATE (11:13 a.m.): With no discussion, the Committee passes out the nomination of Michaels to the Senate floor. Sen. Tom Coburn (R-OK) and Sen. Richard Burr (R-NC) voted no.

UPDATE (3:15 p.m.): Hans Bader of the Competitive Enterprise Institute revisits the many red flags in Michaels’ record. On the other hand, the American Public Health Association hails the committee action and urges quick confirmation by the full Senate.

OSHA Nomination: Tradition. TRADITION!

By | Labor Unions | One Comment

David Michaels has been nominated to serve as the Assistant Secretary of Labor for Occupational Safety and Health. Although the NAM and many other employer groups have urged the Senate HELP Committee to hold a formal hearing on his nomination, the Committee appears to be moving forward with no such public inquiry. On Wednesday the Committee will consider his nomination in a business meeting with a vote likely to follow.

Senator Harkin (D-IA) who chairs the Senate HELP Committee has expressed his commitment to adhere to long standing Committee precedent and tradition. He recently asserted during the executive session that considered the nomination of Craig Becker to serve on the National Labor Relations Board that it “has been the tradition in our Committee, we will vote on this group of nominees en bloc.” He added that it’s uncommon for the Committee to hold hearings on individual nominees to the NLRB.

If tradition is the determining factor, then the Chairman should hold a hearing on Michaels. As we noted in a joint letter from many employer groups to the Committee:

Finally, nominees for OSHA Assistant Secretary have traditionally had to appear at a hearing, even when the administration and the Senate were controlled by the same party. With the aggressive posture for OSHA being signaled by the Obama administration, Professor Michaels’ nomination should be treated no differently than the other nominees who were given a hearing.

HELP Committee to Move on OSHA Nominee Without Hearing

By | Briefly Legal, Regulations | No Comments

The Senate Health, Education, Labor and Pensions Committee has scheduled an executive session Wednesday, Nov. 18, to vote on the nomination of David Michaels to become Assistant Secretary of Labor for the Occupational Safety and Health Administration, i.e., OSHA administrator. No hearing, no questioning, just a vote.

Many business groups and others have sought a confirmation hearing on Michaels to explore his views on key issues. For example, Michaels has headed the Project on Scientific Knowledge and Public Policy (SKAPP), created with money the trial lawyers funneled to it from the silicone breast implant settlement. SKAPP’s views closely align with those of the plaintiffs’ bar, especially in Michaels’ attack against the Daubert v.Merrell Dow Pharmaceuticals that put limits on the introduction of “junk science” into civil suits. (See this 2003 discussion at Overlawyered.com.) Michael’s book, Doubt is Their Product, exudes a world view in which business is always malign and intellectually corrupt.

Defenders of Second Amendment rights have also been alarmed at Michaels’ view of guns as a workplace safety issue warranting strict regulation. See Dave Kopel, “How President Obama’s latest anti-gun appointee—proposed OSHA Director David Michaels—could place sweeping restrictions on your Right to Keep and Bear Arms.”

The National Association of Manufacturers is a member of the Coalition for Workplace Safety, which on October 8 sent a letter to the HELP Committee asking for a hearing. Excerpt:

Because workplace safety is everyone’s concern and we are committed to working with OSHA to meet our shared goal of improving safety in the workplace, we believe a hearing is warranted to thoroughly explore Professor Michael’s views on key areas of OSHA operations, the direction the agency will take, and how his professional career might influence the decisions he would make in this position.

The letter notes that nominees to head OSHA have traditionally appeared before the committee for a confirmation hearing. Indeed, President Bush’s nominee, Ed Foulke, testified in a hearing on January 31, 2006.

It’s been a week since Chairman Tom Harkin’s press secretary offered this excuse for not scheduling a hearing: “If we had a hearing on every single nominee, nothing would ever get done.” We await a more substantive explanation the committee abandoning accountability, but have our doubts one will be forthcoming.