Put simply, cost-benefit analysis is entirely inappropriate in the context of regulatory programs that are designed to protect public health and safety. We don't have the quantitative tools necessary to engage in finely-tuned analyses of the cost and benefits of lifesaving health and safety requirements. My book, "Reinventing_Rationality" devotes two full chapters to that and it's just very clear that we don't have the tools themselves. Even if we did, I think it would be wrong to assign a value to a worker's life based on his or her willingness to pay for greater safety, as the current practitioners of cost-benefit analysis nearly always do.

That kind of analysis assumes that workers do not have a right to reasonably safe employment but must, instead, purchase safety from employers through lower wages or benefits. It was precisely to address this view of the world, I think, that Congress enacted the Occupational Safety and Health Act in the first place.

Another aspect of the bill is devoted, as Mr. Sheinkman has testified in some detail, to White House review of OMB decisionmaking. It would require that OSHA place in the written record all comments and communications and a summary of all verbal communications, and these would include communications from the executive branch. Once again, I wholeheartedly support this attempt to open up an otherwise secret review process that has evolved under Executive Order 12291 and more recent memoranda issued by the Council on Competitiveness.

During the past 12 years, OMB has so thoroughly insinuated itself into OSHA's decision-making process that it is not often clear who is actually making the decisions. In nearly every OSHA rulemaking during the last decade and I have looked at virtually every one of them-OMB has played a prominent role, consistently demanding that OSHA reduce the stringency of its proposed regulations.

More recently, the Council on Competitiveness, chaired by Vice President Quayle, has played an equally clandestine and intrusive role. I am unaware of any instance in which either OMB or the Competitiveness Council has insisted that OSHA provide more protections for workers in that entire 12-year history. The only way to render the institutional entities in the executive branch like OMB and the Competitiveness Council accountable to the public that elects the President is to make the contents of such communications open to public scrutiny.

The bill further provides that the necessity of OMB review may not serve as a justification for withholding or delaying action. OSHA's recent history is full of cases in which dedicated employees at OSHA work long hours and weekends to produce a timely ruleone project manager even told me that she had her children come in to Xerox documents over the weekend because she was trying to get a rule out-only to see the product of those efforts languish in the in-box of an OMB desk officer or staffer.

The provision on updating the PELS, which is another provision that I think is quite needed here, has already been implemented to some extent in OSHA's 1988 standard, but the periodic updating needs to continue. The primary difference in this bill and one that I support is that I would give presumptive effect to NIOSH's recommendations rather than, as in the case of the 1988 proceeding,

the recommendations of private standard-setting organizations which do not always or even generally reflect the full range of scientific and policy input.

In conclusion, I think two decades' worth of experience with Occupational Safety and Health have demonstrated that OSHA has the potential to provide much needed protections to workers. There can be little doubt that OSHA has saved many lives and has prevented thousands of debilitating injuries. The agency's performance, however, has not come up to its promise. In the last decade, the agency has at times been rudderless and at times has headed off in the wrong direction. H.R. 3160 offers a commendable midcourse correction and has the potential to steer OSHA back in the direction that Congress originally intended.

Thank you.

[The prepared statement of Thomas McGarity follows:]

THOMAS O. MCGARITY

William Stamps Farish Professor of Law

University of Texas School of Law

My name is Tom McGarity. I am the William Stamps Farish Professor of Law at the University of Texas School of Law, where I teach courses in Administrative Law and Environmental Law. I have studied Occupational Safety and Health Law since I entered law teaching in 1977. In 1986 Professor Sidney A. Shapiro and I conducted a study on standard setting in the Occupational Safety and Health Administration for the Administrative Conference of the United States (ACUS) that resulted in several ACUS recommendations to OSHA concerning that agency's standard-setting procedures. 1 Professor Shapiro and I have recently completed a book on OSHA, entitled "Workers at Risk," addressing all aspects of OSHA's implementation of its obligation to provide safe and healthful places of employment for workers.2 The book contains many recommendations for reforming OSHA through legislation. I am, therefore, very pleased to be able to share with you my impressions of H.R. 3160 and a few suggestions for how it can be improved.

The current regulatory regime that has evolved through two decades under the Occupational Safety and Health Act of 1970 has badly failed to fulfill the statute's promise. To a large extent that failure is attributable to a lack of desire in the executive branch to give high priority to reducing workplace injuries and disease. But even when OSHA was under the leadership of an industrial hygienist who was committed to promulgating standards to protect occupational safety and health, the agency's accomplishments were modest. To some extent, the failure is also attributable to some fundamental flaws in the statute itself. H.R. 3160 implicitly recognizes this in acknowledging that workplace diseases, deaths and injuries "continue to occur at rates that are unacceptable and that impose a substantial burden upon employers, employees, and the Nation in terms of loss production, wage loss, medical expenses, compensation payments, and disability."

If this county's laudatory goal of providing its workers suitably safe and healthful workplaces is to be recognized in the foreseeable future, Congress must amend the statute to reduce the burdens that OSHA currently faces and to empower workers to play a greater role in OSHA decisionmaking and enforcement. H.R. 3160 is a comprehensive attempt to accomplish this result, and I congratulate its authors and sponsors for seizing the bull by the horns in such a direct and forceful way.

1

Although time constraints prevent me from commenting on every aspect of the Bill,

1 C.F,R.

305.87-1, 305.87-10 (1991). See Sidney A. Shapiro and Thomas O. McGarity, Reorienting OSHA: Regulatory Alternatives and Legislative Reform, 6 Yale J. on Regulation 1 (1989).

2 Sidney A. Shapiro and Thomas O. McGarity, Workers at Risk (to be published this year by Praeger Press)

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I will attempt to address each of the provisions about which I have sufficient familiarity to offer useful insights.

TITLE I-SAFETY AND HEALTH PROGRAMS

Each employer would be required to establish and carry out a "safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to employees." The Bill sets out specific requirements for such safety and health programs. A safety and health program is a sensible vehicle for ensuring that safety and health risks are communicated to employees and that management obtains valuable feedback from employees. Many large companies have already initiated and implemented written safety and health programs to cut down on unnecessary accidents and injuries. In the long run, the programs will no doubt pay for themselves in lowered worker's compensation payouts, training costs, etc.

TITLE II - SAFETY AND HEALTH COMMITTEES

The Bill would amend Section 28 of the Occupational Safety and Health Act to require employers of more than 10 employees to establish safety and health committees at every work site. The Bill sets out detailed requirements for the number of employee representatives on a workplace committee, and provides for how employee representatives shall be selected.

The heart of the provision is the section defining the rights of such committees. The committee's functions are by-and-large procedural and advisory in nature. The most significant substantive power of the committee is to conduct inspections periodically and in response to employee complaints. But the committee lacks the power to take any action in response to such investigations beyond advising the employer of steps that it might take to improve worker safety and health.

Most observers of occupational safety and health regulation agree that employeremployee safety and health committees are a good idea. Some observers would, however, assign the committee responsibilities that go somewhat beyond the advisory role envisioned by the Bill. For example, Professor Shapiro and I have recommended that such committees be empowered to shut down production processes upon a determination that those processes pose an imminent hazard to employee safety or health. Two or three companies are already empower workplace committees to do this, and it is fairly routine done in Sweden.

Some unions have expressed concern that employer-employee safety and health

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committees may give rise to union liability for accidents that are allegedly attributable to the negligence of the union representative on the safety and health committee. This sort of lawsuit offers a vehicle for bypassing the limitations on liability imposed by state worker's compensation legislation. The employee does not sue the employer; rather, the employer sues his or her union for damages greatly in excess of the potential worker's compensation recovery. The Bill could be amended to avoid discouraging union participation in workplace safety and health committees by providing immunity for individuals serving on the committee and unions designating individuals to the committees.

Title IV - OCCUPATIONAL SAFETY AND HEALTH STANDARDS

One of the most important aspects of the Bill is its attempt to reform OSHA's standard-setting process. Throughout its history, OSHA's standard-setting pace has been unbearably slow. Part of the problem is the fact that OSHA has so many topics on its agenda that it cannot decide which ones to concentrate on. Another reason for OSHA's ponderous standard setting pace is its general reluctance to address controversial topics. During the last 12 years, OMB review of OSHA regulations has also contributed to rulemaking delays. Finally, OSHA's leadership has not always been enthusiastic about its statutory obligation to protect workers through the standard-setting process. The Bill addresses the problem of delay in regulation writing in several ways.

Deadlines for Rulemaking

The Bill would amend section 6(b)(2) of the act to provide deadlines for issuing rules. Section 6(b)(2)(A) would provide that if OSHA receives a recommendation from an advisory committee, NIOSH, EPA, or a petition from an interested person, OSHA must within 90 days publish in the Federal Register "a response stating where the Secretary intends to publish a proposed rule promulgating, modifying or revoking such standard." If the response states that the agency does not intend to publish a proposed rule, it must set forth the reasons for that decision. In all other cases, OSHA must within 12 months following the receipt of the recommendation or petition publish a proposed rule in the Federal Register.

The Bill would further add a new section 6(h) to the statute providing that any person adversely affected by the Secretary's decision not to propose a rule may within 60 days seek judicial review in a court of appeals. The Secretary's determination must be set aside if found to be arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law.

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