Mr. Speaker, pursuant to House Resolution 150, I call up the joint resolution (H.J. Res. 83) disapproving the rule submitted by the Department of Labor relating to ``Clarification of Employer's Continuing Obligation to Make and Maintain an…
Mr. Speaker, pursuant to House Resolution 150, I call up the joint resolution (H.J. Res. 83) disapproving the rule submitted by the Department of Labor relating to ``Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness'', and ask for its immediate consideration in the House.
Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and include extraneous materials on H.J. Res. 83.
Mr. Speaker, I rise today in strong support of H.J. Res. 83, and I yield myself such time as I may consume.
Mr. Speaker, America's workers deserve responsible, commonsense, regulatory policies to ensure safe and healthy working conditions. Let me say that again. America's workers deserve responsible, commonsense regulatory policies to ensure safe and healthy working conditions.
They deserve a Federal Government that holds bad actors accountable, and a government that takes proactive steps to help employers improve safety protections and prevent injuries and illnesses before they occur. Just as importantly, they deserve to know that Federal agencies are following the law.
For years, Republicans have called on OSHA to reject a top-down approach to worker protections and, instead, collaborate with employers to identify gaps in safety and address the unique challenges facing workplaces.
Unfortunately, under the Obama administration, our concerns usually fell on deaf ears. In fact, one of the administration's parting gifts to workers and small businesses was a regulatory scheme that reflects not only a backwards, punitive approach to workplace safety, but one that is completely unlawful.
Here's why. Under the Occupational Safety and Health Act, employers have long been required to record injuries and illnesses and retain those records for 5 years. The law explicitly provides a 6-month window under which OSHA can issue citations to employers who fail to maintain proper records; 6 months. It is written in the law. This approach helps ensure workplace hazards are addressed in a timely manner.
However, in 2006, OSHA took action against Volks Constructors for recordkeeping errors that occurred well beyond what the law allows, well beyond 6 months. The errors were from nearly 5 years earlier. That is why a Federal appeals court unanimously rejected OSHA's overreach. The opinion for the Court stated: ``We do not believe Congress expressly established a statute of limitations only to implicitly encourage the Secretary to ignore it.'' Even President Obama's Supreme Court nominee, Judge Garland, agreed OSHA's action was ``not reasonable.''
What came next was an outright power grab. OSHA decided to take its unlawful action one step further. This time it would not only ignore the law, but rewrite it. The agency finalized the ``Volks'' rule, unilaterally extending the statute of limitations from 6 months to 5 years. OSHA undertook for itself the power that only this Congress has to write laws.
The agency created significant regulatory confusion for small businesses. Many would likely face unwarranted litigation because of unlawful regulatory policies. Of course, further judicial scrutiny also means hardworking taxpayers will foot the bill when OSHA is forced to defend its lawless power grab once again.
Simply put, OSHA had no authority to do this. We have a Constitution that grants Congress, not Federal agencies, the power to write the law. But that is not the only reason we are here today. We are also here because this rule does nothing to improve workplace safety.
Maintaining injury and illness records is vitally important and can help enhance worker protections. But that is not the goal of this rule. This rule only serves to punish employers. As we have said repeatedly, OSHA should, instead, collaborate with employers to help them understand their legal responsibilities and ensure safe measures are in place to prevent workplace hazards in the future.
Fortunately, Congress has the authority to reject this failed approach to workplace safety and block an abuse of executive power that began under the Obama administration.
I urge my colleagues to support this resolution, and I hope we can all work together to encourage a more proactive approach that prevents injuries and illnesses from happening in the first place.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to read very briefly a quote from the court's decision: ``We find this statute to be clear and the agency's interpretation unreasonable in any event''--in any event.
There is no way to rewrite this regulation to comply with the law that is clear. There is no way for the agency's interpretation to become reasonable. It is unreasonable according to the court in any event.
My friend from Virginia talked about the fact that OSHA just updated the regulation to impose a continuing obligation. OSHA does not have that authority. Only this Congress has that authority. No agency can unilaterally decide to change a statutory provision that the court has said is clear. He said this applies to only a few categories of employers. It applies to nearly every category of employers that has 10 employees or more. So you could have an employer with 50 employees, and they are subject to this regulation. This applies to virtually any employer.
OSHA has 6 months to enforce this law--6 months--from any violation. Now, why 6 months? Because it is important to investigate these things quickly and determine whether there has been a violation because things get lost and people leave their employment. Congress made the decision for 6 months because that was a period of time in which OSHA could perform its duties reasonably, and we could get justice the way it ought to be done.
We can amend OSHA, but we have not chosen to do so. Until this Congress chooses to change OSHA, the agency has to comply with the clear wording of the statute as it has been passed by this Congress. The agency does not have the right to do this. It would be a waste of taxpayer money and time to force an employer to go challenge this in court when we already know what the result is going to be. It is not up to the committee or to the Congress to go back and review an agency interpretation we know, as a matter of law, is wrong.
So this is a responsible act to take, and I would suggest to the agency and to my fellow Members of Congress that if we want to reconsider a statute of limitations we do it on this floor and not in that agency.
Mr. Speaker, I yield such time as she may consume to the gentlewoman from
North Carolina (Ms. Foxx) who is the chairwoman of our committee.
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the gentleman from Virginia referred to continuing violations. There is no provision in this law for continuing violations.
Looking again at the court's decision. They said this: the statute of limitation provides that ``no citation may be issued . . . after the expiration of six months following the occurrence of any violation.''
They go on to say this: ``Like the Supreme Court, we think the word `occurrence' clearly refers to a discrete antecedent event--something that `happened' or `came to pass' `in the past.' ''
By any common definition, there was no occurrence; i.e., no discrete action, event, or incident, no coming about, and no process of happening within the requisite 6 months. You can't take that wording and slip into it a continuing violation requirement unless you change the statute. The agency can't change the statute.
The court, in its decision on the Volks rule, also looked at something very important, and that is: Why do we require this agency to do its work in a good period of time?
It says: ``Nothing in this statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed.''
In other words, we gave the agency 6 months to do its job, and it should do its job.
Now, other people have looked at this, people who are experts in workplace safety. I refer you, Mr. Speaker, to a letter that was written on October 27, 2015, by the American Society of Safety Engineers, which I include in the Record.
American Society of
Safety Engineers,
Park Ridge, IL, October 27, 2015.
Re ASSE Comments on OSHA Notice of Proposed Rule
Clarification of Employer's Continuing Obligation to Make
and Maintain an Accurate Record of Each Recordable Injury
and Illness [Docket No: OSHA-2015-0006].
Hon. David Michaels,
Assistant Secretary, Occupational Safety and Health
Administration, OSHA Docket Office, U.S. Department of
Labor, Washington, DC.
Dear Assistant Secretary Michaels: As you well know, the
more than 37,000 member safety, health and environmental
(SH&E) professionals of the American Society of Safety
Engineers (ASSE) intimately know the details of collecting
workplace injury and illness data, recording that data for
employers, and the careful work needed to report that data to
the Occupational Safety and Health Administration (OSHA).
Perhaps more than any stakeholders, our members understand
the value of this data in managing workplace safety and
health risks as well as its appropriate use by OSHA in
developing better means to focus the agency's resources on
the most difficult risks facing American workers. Our members
use injury and illness data to help them protect workers.
They expect no less of an effective OSHA.
That being said, ASSE cannot support the requirement that
employers have a duty to record an injury or illness
continues for the full duration of the rccord-retention-and-
access period--five years after the end of the
calendar year in which the injury or illness became
recordable--that OSHA proposes in its July 29, 2015 Notice of
Proposed Rulemaking (NPR) Clarification of Employer's
Continuing Obligation to Make and Maintain an Accurate Record
of Each Recordable Injury and Illness [Docket No: OSHA-2015-
0006]. ASSE respectfully opposes the adoption of a Final Rule
as proposed in this rulemaking for the reasons that follow.
nature of violations
ASSE members do not look at the issues raised in this
rulemaking with the same viewpoint of the occupational safety
and health bar that, no doubt, will provide substantive legal
arguments against the case OSHA makes for addressing the
Volks II decision through this rulemaking. Rather, our
members' view is a practical one that comes from years of
experience on the job as the professionals charged with
meeting OSHA's recordkeeping requirements.
Our members know the inadvertent mistakes they themselves
can make in recordkeeping and reporting. They also know what
they typically find when they are hired by a company to help
improve workplace safety and health. As they assess the
workplace's risks and past safety performance to help them
develop safety and health management plans, the reporting
mistakes our members typically find are not very often the
worst cases that, unfortunately, seem to be creating this
rulemaking. The errors in reporting they see are, by far,
minor, isolated, and, if continuing, it is only in the sense
that a typo can be repeated day after day.
They also see mistakes that come from a widespread lack of
understanding of OSHA's detailed reporting requirements. When
seasoned safety and health professionals consistently use
ASSE's educational conferences, our social media, and
opportunities to meet with OSHA staff through the ASSE-OSHA
Alliance to get the best and latest information about OSHA
recordkeeping requirements, we know that, even for them, the
task of meeting those requirements can be too often
confusing. Given that the vast majority of employers report
to OSHA without the help of a safety and health professional,
it is not difficult to see that the significant increase in
records retention that OSHA is attempting to require of
employers here will not succeed in a significant impact on
safety and health among American workers.
unintended consequences
No reporting error is excusable. But a company's errors to
which OSHA is determined to have access to for a period that
can be up to six years through this rulemaking will not very
often correlate to the risks facing workers, especially the
risks a safety and health professional is trying to address
for the company in the present. The statements OSHA makes
about the value of data collected through current injury and
illness recordkeeping are merely conclusory and are counter
to our members' experience.
Measured against our members' belief that the additional
data will provide little help to them or OSHA, they are
particularly concerned that this rulemaking can only succeed
in driving more employers towards greater expectations that
safety and health professionals will focus energy and
resources on collecting and reporting the lagging indicators
that OSHA requires, taking them away from risk assessment and
management tasks and their efforts to move their employers
towards performance measurements based on leading indicators
that we know can better measure a company's safety and health
performance.
Many of our members, especially those who work in or for
mid-sized and small companies, face a difficult uphill climb
in selling their employers risk management and moving from
lagging to leading indicates. We know OSHA values these
approaches also. But when OSHA uses its limited resources to
focus on measures that do not reflect cutting-edge safety
principles and push our members' efforts backwards, OSHA is
making their job more difficult. Our members value OSHA but
want an OSHA that works with them to advance the best ideas
for advancing workplace safety and health. Requiring this
data to be available for OSHA's use for nearly six years does
not meet our members' hope for an effective OSHA.
direct burden
ASSE is also concerned that the OSHA's estimates of the
direct burden this rulemaking will place on employers are
inadequate. The economic analysis states that there will not
be a new cost burden. This was based on a 2001 analysis that
it takes 0.38 hour to record an injury or illness, with a
total cost per case of $17.75. From an informal survey of
involved ASSE members, a more realistic estimate is that an
hour is needed for each case over the five-year period,
taking into account the variety of tasks involved, including
determining if there was medical treatment beyond first aid,
verifying lost and restricted day counts, and adjusting for
changes in the status of a case. An updated economic analysis
is needed, which we urge OSHA to conduct before a Final Rule
is proposed.
a measure of the problem
Related to our members' concern over the rulemaking's
direct burdens on employers is OSHA's failure to discuss in
the NPR why OSHA faces such difficulty in obtaining adequate
data from employers. No doubt, employers are responsible for
meeting OSHA's reporting requirements. Our members suspect
that OSHA's reporting rules and. deadlines are not effective
and cost employers unnecessarily.
Before requiring more extensive reporting, it would be
helpful both to OSHA and the safety and health community to
know more about why employers do not report. How many
employers blatantly disregard the requirements and how many
are simply making errors? What do employers and their workers
not understand about the requirements? What training or level
of expertise would help fill the gaps in reporting that OSHA
believes exist? We urge OSHA to examine these issues as an.
extension of its economic analysis. With more knowledge,
there may be better ways to address recordkeeping that can
support better employer reporting.
conclusion
As we say above, our members want a strong and effective
OSHA, But their view of an effective OSHA is an OSHA that can
embrace the best our members already understand about how to
achieve safe and healthy workplaces. An OSHA injury and
illness prevention plan standard that is truly risk-based
would help make OSHA more effective. Greater reliance on
control banding to achieve better protection limits, as we
have recently suggested to OSHA, would. Establishing
professional competencies to define ``competent person'' in
OSHA standards would. Finding a better way to update
consensus standards in OSHA's standards would. Rethinking
OSHA's reporting requirements to help move employers towards
leading indicators and more advanced ways to measure safety
performance certainly would. The areas where OSHA and our
members agree on making OSHA more effective are many. Adding
lengthier reporting burdens that will do little to help OSHA,
employers or occupational safety and health professionals
better manage workplace safety and hcalth will not.
As always, ASSE is more than willing to discuss these
concerns further. Thank you for listening to our members'
views.
Sincerely,
Michael Belcher, CSP,
President.
What it says is that this regulation does nothing to enhance workplace safety. That is from the American Society of Safety Engineers.
Also opposing this regulation is the Coalition for Workplace Safety. I include in the Record a letter from them dated February 17 of this year.
Coalition for Workplace Safety,
February 17, 2017.
Hon. Paul Ryan
Speaker, House of Representatives,
Washington, DC.
Hon. Kevin McCarthy,
Majority Leader, House of Representatives,
Washington, DC.
Hon. Steve Scalise,
Majority Whip, House of Representatives,
Washington, DC.
Hon. Virginia Foxx
Chairwoman, Committee on Education & the Workforce,
Washington, DC.
Hon. Bradley Byrne,
Chairman, Subcommittee on Workforce Protections, Washington,
To the point, there is nothing in this statute that allows for continuing violations, and there is nothing in this regulation that provides for workplace safety. This is a power grab by an agency in violation of its authorizing statute and by a clear decision of this circuit court of appeals.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would remind the gentleman that the experts on this, the American Society of Safety Engineers, have said that this regulation does not enhance workplace safety. So if we are about workplace safety, this regulation isn't it. Let's talk about something that will help with workplace safety, not something that is a lawless power grab by a Federal agency.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I appreciate the comments of the gentleman from California. He said that, if we pass this resolution, we will be granting amnesty to bad actors. We are not granting amnesty to bad actors. They will have no amnesty if OSHA does its job in a timely fashion. Five years is not timely under anybody's commonsense definition. They need to do their job within the 6 months that we have allowed for them to do it, and they have the tools to do their job within 6 months.
So there is no amnesty being granted here. We are expecting a Federal agency that has a lot of money and has a lot of power to simply do its job within 6 months, and they come forward and try to make a new statute of limitations because they don't do their job within 6 months.
I say to this body, I would say to people outside this body, it is time for OSHA to get its job done in the time allotted by the United States Congress and not come running out with some unilateral change in the statute which they have no power to do because, for some reason, they don't think they can do it.
Mr. Speaker, I reserve the balance of my time.
Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, I include in the Record a letter dated February 28, 2017, from the Associated General Contractors of America; a letter dated February 28, 2017, from Associated Builders and Contractors; a letter dated February 27, 2017, from the National Association of Home Builders; and a letter dated February 28, 2017, from the United States Chamber of Commerce.
The Associated General
Contractors of America,
Arlington, VA, February 28, 2017.
Re AGC Key Vote--Support Joint Resolution Disapproving of
``Volks Rule.''
Hon. Paul Ryan,
House of Representatives,
Washington, DC.
Dear Speaker Ryan: On behalf of the Associated General
Contractors of America (AGC) and its 26,000 commercial
construction company members, I strongly urge you to support
the Congressional Review Act (CRA) joint resolution of
disapproval to stop the Occupational Safety and Health
Administration's (OSHA) expansion of the statute of
limitations for recordkeeping violations in the ``Volks
Rule.'' AGC will score this vote as a key vote for the
education of its members on its congressional candidate
scorecards.
This resolution repeals a rule that was issued by OSHA as a
challenge to the judicial branch and congressional authority.
Section 9 of the Occupational Safety and Health Act
subsection (c) says ``No citation may be issued under this
section after the expiration of six months following the
occurrence of any violation.'' That seems pretty clear and
the courts agreed. In 2012, the U.S. Court of Appeals for the
District of Columbia Circuit held in AKM LLC dba Volks
Constructors v. Secretary of Labor that section 8(c) of the
OSH Act (the section that requires accurate recordkeeping)
does not supersede 9(c) and therefore does not permit a
continuing violation for paperwork errors and that the agency
is overstepping its authority. Additionally, in 2016 the
Fifth Circuit endorsed the Volks decision in Delek Ref. Ltd.
v. Occupational Safety & Health Review Commission. When OSHA
issued its rule, it deliberately and specifically designed
the rule to counter the ruling in the Volks case. Because the
final rule directly contradicts both clear statutory language
and two U.S. Courts of Appeals rulings, it must not be
allowed to stand.
The rule is designed to be punitive. It is a regulatory
attempt to expand opportunities to cite companies for
paperwork violations. It was issued in the waning days of the
Obama Administration as an attempt to get around the existing
statute of limitations for recordkeeping violations and
expand that limitation to sixty-six months. It creates no new
recordkeeping requirements. It does not change the data
required under recordkeeping requirements. It does not exempt
smaller companies from this regulation or these
investigations. It does not create any new, safer work
practices. The rule tells OSHA inspectors and company
employees to fix typos from years ago rather than walking the
jobsite, providing safety training or otherwise preventing
tomorrow's accidents. We take worker safety very seriously
and, unfortunately, OSHA's rule would require a colossal
misallocation of resources. That is why we urge you to
support the Congressional Review Act resolution.
Thank you for your consideration of this request.
Sincerely,
Jeffrey D. Shoaf,
Senior Executive Director,
Government Affairs.
All of those groups I just mentioned support the repeal of this regulation that would come about by virtue of the bill that is before us. Why? Because we have a right to expect in this country that these regulatory agencies that Congress sets up will do their job with the significant sums of taxpayer money that they are provided by this Congress, the money that comes from the people of America to do their job in a timely fashion. And this agency comes forth and tries to act like it doesn't have the money or the authority to investigate violations and enforce the law within 6 months of a violation. That is balderdash. The American people have a right to expect more from these agencies than that.
But more to the point, the reason we are here today is really simple. We are here today to overturn a rule that is blatantly unlawful. We are here to put a stop to a rule that does nothing--I repeat nothing--to improve workplace safety. We are here to put a check on the very top of executive overreach the Congressional Review Act sought to address.
By blocking this punitive and overreaching rule, we will affirm Congress' commitment to proactive health and safety policies that help prevent injuries and illnesses before they occur. If we wait until the illness or injury has occurred, we have waited too late. OSHA has waited too late. It is time for OSHA to work with these employers, work with these people in the workplace to make the workplace safe, not show up 5 years after the fact when they don't have the authority and say: now we are going to issue a violation.
Mr. Speaker, the approach that we have demanded of OSHA for years is to proactively work in the workplace to ensure that it is safe, and we will continue to do that under this new administration. I urge my colleagues to overturn OSHA's unlawful power grab.
Mr. Speaker, I yield back the balance of my time.