More Confusion Rather than Safer Workplaces

Today, the NAM filed supplemental comments to OSHA’s proposed rule publicizing injury and illness data of private employers. In January, the NAM’s Labor and Employment Policy team participated in a public hearing on this rule and from the outset, the NAM has opposed this rule for a few very simple reasons: 1) OSHA has the tools they need to improve workplace safety at their disposal already; 2) This data would be presented without context and could result in a serious misrepresentation of a particular company or industry; 3) This rule gets us no closer to the shared goal of a safer workplace. Nothing has changed to mitigate these concerns – improbably, the rule is getting worse

In August, OSHA reopened the rule posing several questions, without any actual regulatory text. What OSHA appears to be doing is adding new provisions to the rule as well as additional burdens and confusion to employers.

For example, if an employer has a stellar record for being injury and illness free for several months, the employer, to boost morale and to show the company’s safety record, may prominently post this for employees and customers to see.  Defying logic, however, supplements to the rule would a classify this type of posting as discouraging employees from reporting injuries and illnesses in the workplace. OSHA could therefore cite an employer for this.  Despite a reality devoid of data, scientific studies or research to back up OSHA’s assertion, they are moving forward in this misguided thinking.

OSHA should take time now to apply the fundamental question to its rule making process – does it make the workplace safer? Unfortunately, in this case it misses the mark.

Amanda Wood is Director of Employment Policy for the National Association of Manufacturers

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NAM Testifies on OSHA Silica Proposal

Today, the NAM testified before an Administrative Law Judge and a panel of OSHA officials on the agency’s proposal to lower the permissible exposure limit to respirable crystalline silica. Joe Trauger, Vice President of Human Resources Policy and Amanda Wood, Director of Employment and Labor, spoke on behalf of manufacturers in all sectors. Their testimony, which you can find here, highlighted some of the difficulties manufacturers will face with the new standard.

In particular, concerns were raised about whether employers will have certainty they are complying with the new lower exposure limit given challenges with testing technologies and inherent error rates with any in-field testing regime. Also of note, is the feasibility of employing engineering controls to limit the risk of exposure. OSHA has estimated the new regulation would cost roughly $640 million for industry to adopt, but business estimates range up to ten times higher.

OSHA’s hearing on the new silica standard is set to conclude on April 4. The NAM has filed formal written comments, submitted its testimony today and will file post-hearing comments with the agency on this proposal. A final rule is expected next year.

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Transparency—A One Way Street

Yesterday, OSHA convened the first day of a three-week public hearing on the proposed silica rule, which would reduce the permissible exposure limit (PEL) when working with crystalline silica (or sand).  The proposed rule has been over a decade in the making, consists of over a thousand pages of rule text and economic impact.  And, although the comment period came to a close last month, OSHA announced it would have a public hearing for stakeholders to present information and question one another. Equally important, the hearing was supposed to provide stakeholders an opportunity to question OSHA and the data it presented as its justification for the rule.

One would think this is what an open and transparent government is all about, right? Well, not exactly.  It became abundantly clear from the first couple hours of this hearing that the openness and transparency of this government comes only when it is convenient for them and is often a one way street—only open for travel by the stakeholder.

Notwithstanding the volumes of material OSHA has put in the public record, the agency allotted itself only two-and-a-half hours to take questions from stakeholders and experts.  In fact, each inquirer was given a mere five minutes to question the validity of the data used to justify the rule change.  At one point, the OSHA panel even declined the judge’s direct request to work through lunch so as to not answer questions.  You would think with three weeks for the hearing and if the rule change is indeed on solid ground, OSHA could have withstood more than a few dozen questions. Maybe the rule really isn’t as strongly supported after all?    The farce of this hearing process is one that is likened to a one-way mirror in an interrogation room—only one side is really subject to questioning and they are not permitted to have knowledge of what the full story looks like.

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Silica Rule Unnecessary and Based on Outdated Data

Yesterday, the NAM filed its comments in response to the Occupational Health and Safety Administration’s (OSHA) proposed rule, which would cut the permissible exposure limit (PEL) to respirable crystalline silica (or sand) in half from its current level.  To breakdown what this means is if you took a basic sugar packet and then dispersed it into a building that is the length of a football field and 13 feet high—this would be the amount of sand we are talking about.

Particularly noteworthy in this rulemaking is that OSHA has been working on the rule for well over a decade, starting back in 2003 with the Small Business Review Panel, and then using data points from the 2002-2007 timeframe to justify OSHA’s cost analysis. It is, therefore no wonder OSHA’s cost estimate of $656 million and industry’s of $5 billion are so far apart. Yet, OSHA gave the public only 157 days to read and analyze well over 1,500 pages and gain an understanding of whether a lower PEL and implementing engineering controls were even feasible for companies who work with silica every day.

One thing is for sure, the NAM has serious concerns with lowering the current PEL and what that will mean for manufacturers and questions whether the rule is necessary, the methodologies relied upon are valid and process has been fair.

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Workplace Safety Requires the Full Story

NAM’s Labor Employment Policy Team took part in OSHA’s public meeting on their proposed rule to publicize injury and illness data. From the outset, the NAM has opposed this rule for a few very simple reasons: 1) OSHA has the tools they need to improve workplace safety at their disposal already; 2) This data would be presented without context and could result in a serious misrepresentation of a particular company or industry; 3) This rule gets us no closer to the shared goal of a safer workplace.

A safe workplace is the top priority of manufacturers. Joe Trauger, NAM’s VP of Human Resources Policy, and Amanda Wood, NAM’s Director of Employment Policy, spoke on behalf of manufacturers at today’s public meeting. The comments they offered centered around the following themes – the current regulations are already working, public disclosure is detrimental to employers, the forced disclosure of proprietary information, and a violation of individual privacy rights. These themes were repeated throughout the day by other participants concerned with the impact of OSHA’s proposed rule.

Mr. Trauger closed the NAM’s comments by stating, “I would like to take a moment to remind the agency that manufacturers do not and cannot view regulations singularly as we so often do here in Washington. Manufacturers don’t have the luxury of focusing on or complying with one regulation at a time – they must comply with them all. This proposed regulation, on the heels of the recent Letter of Interpretation with respect to unions and or community organizations accompanying an OSHA inspector in non-unionized facilities, is alarming and viewed with great skepticism within the employer community.”

He’s absolutely right – the fallout from such a rule could be devastating to a company or industry judged on incomplete or misleading data. Instead let’s get OSHA focused on working more collaboratively with employers so they can reach the goal they both share – a safer workplace.


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SBA Agrees Extension of Time for Silica Comments is Necessary

The business community is not the only stakeholder concerned about the short 90-day deadline to comment on OSHA’s proposed silica rule.  Just yesterday, the Small Business Administration’s Office of Advocacy sent a letter recommending OSHA extend the public comment period on the silica rule by 90 days. The recommendations mirror the NAM’s, as well as others in the business community, request several weeks ago.  The NAM request was reported on shortly after it was filed and was viewed as a stalling tactic by some in the labor community – a bold accusation considering the agency dumped 1400 pages of economic analysis on the public that’s incomplete, muddled and downright delusional. The one office within the Administration that’s charged with protecting and advocating for small business agrees with the NAM position that there ought to be more time to consider the ramifications of the proposed rule.

The Administration has considered this proposal for ten years, beginning in 2003 with a small business panel review.  It therefore, borders on the ridiculous to give all stakeholders, and especially small business entities, a mere 90 days to meaningfully comment on the hundreds upon hundreds of pages of information that was finally unleashed a month ago. The rule was held up by the Administration itself at the Office of Information and Regulatory Affairs before any business groups or the public were allowed to see it. Does OSHA want to receive meaningful and robust comments, or is it simply trying to achieve something – anything? The silica rule is complex and has far-reaching effects up and down the supply chain. It will increase costs of raw materials, production and consumption. At least one office within the federal government thinks that’s worth having a serious look at before marching headlong into yet another debacle.

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Regulations Create Jobs? Yes, the Jobs of Regulators

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.

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The President’s Budget: Creating Jobs Through Increased Enforcement?

President Obama has made it very clear that he wishes to work with employers to help ensure they have an environment to creating jobs. We appreciate this commitment and look forward to see how his recent Executive Order on federal rulemaking is implemented. The Obama Administration has sent many signals that they’re going to be carefully reviewing regulations that may hinder job creation.

However, as analysis of the President’s budget continues it appears that the Administration is sending mixed signals. Specifically, the Department of Labor’s budget request does trim $1.1 billion dollars for FY 2012, it would still increase spending for agencies that regulate employers. Looking specifically at OSHA, there are increases for “safety and health standards” for the agency to develop new rules and spending on whistleblower programs. We should note that this request does slightly increase funding for compliance assistance programs, but the agency has proposed rules that would gut many employer outreach efforts like the on-site consultation program. A half a step forward, a full step back.

Looking beyond OSHA, the President’s budget would increase spending to “combat” employee misclassification. The Administration has often stated that they perceive a problem a widespread misclassification of employees as independent contractors by employers to skirt obligations associated with employees. The President’s request would increase spending for the Wage and Hour Division of the Department of Labor to beef up federal employees to investigate misclassification. This comes on the heels of the Department’s fall regulatory agenda that indicates that the Department is still in the process of developing “Right to Know” regulations that would likely impose a new burden on employers to perform extensive employee audits of each worker – independent contractor and employee alike.

Also troubling is the Department’s proposal to lure states into launching paid-leave programs. The Department is looking to increase spending to encourage states to start programs that would create new entitlements, which inevitably lead further funding down the road.

If the President is serious about assisting employers to create jobs, the Administration needs to do more than simply sign executive orders calling for a review of regulations; he needs to focus on supporting an environment that allows employers to create jobs.

Joe Trauger is the NAM’s vice president for human resources policy.

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Coalition for Workplace Safety Testifying on OSHA

The National Association of Manufacturers co-chairs the Coalition for Workplace Safety, so we pass on this from the Coalition’s website, “CWS Spokesman To Tell Congress of OSHA Priorities“:

From the House Education and Workforce Committee:

On Tuesday, February 15 at 10:00 a.m., the Workforce Protections Subcommittee, chaired by Rep. Tim Walberg (R-MI), will hold a hearing on “Investigating OSHA’s Regulatory Agenda and Its Impact on Job Creation” in room 2175 of the Rayburn House Office Building. Since 1970, the Occupational Safety and Health Administration has been charged with enforcing federal safety and health standards in America’s workplaces. With nearly 14 million individuals out of work, members of the committee will examine OSHA’s current policies and priorities and how they affect job growth.

Among those testifying is Stuart Spencer on behalf of the Coalition for Workplace Safety.

More information is available from the Committee’s website.

The detailed budget summary for OSHA’s FY12 budget is available from the Department of Labor here. The President’s budget requests $583.4 million for the sub-cabinet agency, up $24.8 million from current spending, about a 4.3 percent increase.

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Letter to Issa: The Manufacturers’ Priorities

An entirely predictable, nakedly apparent campaign of political outrage flurried briefly after Rep. Darrell Issa (R-CA) sought input from business groups and others about regulations that his House Oversight Committee could review in committee hearings. See, see, he’s letting Big Business set his agenda!

Phhpt. A committee chairman who seeks information about the economic impact of regulations logically talks to the people who are being regulated. If you’re concerned that excess regulations discourage hiring, it makes sense to talk to groups that represent employers.

The Daily Caller summarized the artificial controversy in a piece Thursday, including links to letters sent to Issue from business groups, including the National Association of Manufacturers.

From, “In letters to Issa, industry and policy groups target expanding reach of EPA regulators“:

A series of letters solicited by top GOP oversight official Rep. Darrell Issa put the Environmental Protection Agency in crosshairs, urging the aggressive new chairman of the House Oversight and Government Reform Committee to investigate a series of strict new regulations finalized by the Obama administration.

Letters from the Business Roundtable, National Association of Manufacturers, Competitive Enterprise Institute and Heritage Foundation all focus on a slew of new EPA regulations, especially the agency’s “endangerment finding” giving it the green light to regulate to stop global warming.

Of course EPA raises the most concern. It’s the source of the largest number of jobs-killing regulatory proposals, as the Administration itself documents!

(continue reading…)

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