Republicans in the Senate Health, Education, Labor and Pensions Committee recently released a series of questions for labor secretary nominee Thomas Perez, as well as his responses.
Below are pertinent questions related to OSHA matters (lightly edited). A hearing to address Perez’s nomination is scheduled for May 16.
HELP committee: Does the Department of Labor have the responsibility to ensure that its rulemakings and policies are based on the most recent and comprehensive data to ensure that they are timely, fully informed and scientifically valid?
Perez: The Department of Labor has the responsibility to ensure that its rulemakings and policies are developed and issued in accordance with federal regulatory requirements and authorizing legislation. I strongly believe that affected stakeholders have a right to fully participate in the rulemaking process, and if confirmed, I assure you that the department’s rulemaking process will be open and transparent.
HELP committee: Under the current economic climate – with slow overall growth and lagging job creation – should [DOL] refrain from issuing regulations that may impact job growth? Why or why not?
Perez: [Executive Order] 12866 (.pdf file) requires that every regulation have a Regulatory Impact Analysis, which focuses on the monetized costs and benefits of regulations and also generally report the impact of the regulation on employment. The department’s regulatory approach must strike a balance between the benefits and any untendered consequences as well as adherence to the statutory requirements it is charged to uphold.
HELP committee: As you know, when regulations are proposed by [DOL], the general public is given an opportunity to submit comments. What impact should these comments have on whether a regulation is finalized? Under what circumstances would you ignore the public’s comments on proposed regulations? Under what circumstances would you withdraw a proposed regulation in light of public reaction?
Perez: The rulemaking process is required to be open and transparent and invite public participation. It is the agency’s job to assess the information and determine whether to regulate and if so, the best regulatory approach.
HELP committee: Regulators have the responsibility to carefully balance requirements so that the costs do not exceed the benefits. To what extent should the costs of implementing a new regulation be a factor in determining the final regulation? Should a regulation be implemented if the cost is significant, such as more than $100 million annually?
Perez: Consistent with the Executive Orders, I believe it’s very important that agencies ensure that the benefits justify the costs when issuing regulations and that they select the least burdensome alternatives consistent with obtaining regulatory objectives. Examining costs and benefits of a regulation is important, but it is not intended to be determinative of whether to regulate or not. The purpose is to identify and use the least costly option for obtaining the regulatory objective. If confirmed, I will work to maintain a common-sense balance between our obligation to protect the health and safety of Americans and our commitment to promoting economic growth, job creation, and innovation.
INJURY AND ILLNESS PREVENTION PROGRAM
HELP committee: As you know, one of OSHA’S top priorities for this year is mandating employers to implement an Injury and Illness Prevention Program (I2P2). Do you not believe the authority that OSHA administers currently has significantly contributed to the declination of work-related injuries?
Perez: There is ample evidence that the work of OSHA has contributed substantially to the decline of workplace injuries. Yet every year, there are still thousands of workers killed in the workplace each year, and another 4 million are injured. I am interested in learning more about what we can do to ensure safe and healthy workplaces, and I look forward to working with Congress on this important priority.
HELP committee: What universal mandates do you believe would reduce workplace injuries and illnesses without significant cost or burden to the employer?
Perez: Employers are required by the [Occupational Safety and Health] Act to provide a safe and healthy workplace. If confirmed, I will work to ensure that all OSHA standards effectively reduce injuries and illnesses without putting an undue burden on employers.
HELP committee: “Find and fix” is an extraordinarily broad concept. What should be the limits to requiring employers to “find and fix” hazards in their workplaces?
Perez: I have not examined this issue in sufficient detail at this point; as a result, I do not have a position on this issue. I look forward to familiarizing myself with OSHA’s plans to issue an Injury and Illness Prevention Program Standard if confirmed.
HELP committee: If confirmed, will you withdraw the silica proposal from [Office of Information and Regulatory Affairs] review and commit to a thorough audit of it before any steps are taken to publish it for notice and comment?
Perez: According to the department’s semi-annual regulatory agenda, the Occupational Exposure to Crystalline Silica NPRM is expected to be published in May 2013. If confirmed, I assure you that any initiative will allow the public the opportunity to comment and participate in public hearings on the proposal.
HELP committee: The 2003 [Small Business Regulatory Enforcement Fairness Act] panel recommended (.pdf file) that OSHA not pursue this rulemaking citing that increasing the compliance with the current PEL would yield significant benefits without putting a wide variety of workplaces out of compliance. What value do you attach to the SBREFA small business review process?
Perez: I highly value the opinions of small businesses and the SBREFA process. If confirmed, the department will take into account the recommendations of the SBREFA panel and of individual small businesses.
HELP committee: The OIRA review of the silica proposal has become very contentious and the target of much criticism from unions and others who want this proposal to be cleared. Several reports have been issued attacking OIRA as an obstacle to OSHA’s rulemaking process. Do you believe OIRA has taken too long to clear this proposal? Do you agree that OIRA is an obstacle to OSHA advancing its regulatory agenda?
Perez: I have not been privy to the discussions surrounding this rulemaking and have not had an opportunity to study this issue in any detail. As a result, I am not able to provide an informed opinion at this time.
HELP committee: Despite efforts by the prior Secretary and Assistant Secretary for OSHA Dr. Michaels, whistleblower claims at OSHA continue to take years to process in part because of the explosion of new rights and remedies. What will you do to try and address this problem?
Perez: I understand that OSHA’s whistleblower program has added staff and made significant administrative and organizational changes that have improved the agency’s ability to address whistleblower complaints. I will continue to work with OSHA to address these challenges, if confirmed.
HELP committee: Do you intend to pursue efforts to promulgate an ergonomics standard?
Perez: I am not aware of any efforts to promulgate an ergonomics standard.
HELP committee: To the extent that you have not formed an opinion about pursuing efforts to promulgate an ergonomics standard, what factors would you consider in that determination, with who would you consult, and what deliberative process would you utilize?
Perez: If confirmed, any regulatory initiative would involve consultation with affected stakeholders, ensure robust public input, and follow the legally mandated regulatory process.
HELP committee: Should OSHA be trying to regulate ergonomics despite a strong, bipartisan message from Congress that such a regulation is not appropriate? If so, what weight do you attach to expressions of Congress on specific regulations?
Perez: If confirmed, I will respect Congressional directives with regard to the issuance of an ergonomics standard.
HELP committee: The feasibility reinterpretation under the noise standard example represents several missteps by OSHA, including trying to do through a guidance approach what should have been done through a rulemaking, and not keeping the White House (through OIRA) informed of what it was doing. What is your view of whether this action was appropriate and properly supported?
Perez: I cannot speak to whether OSHA’s actions were appropriate because I was not at the department at the time. Workplace noise, however, is a serious problem causing permanent hearing loss for thousands of workers each year. If confirmed, I am looking forward to learning more about what can be done to address this problem.
HELP committee: Should OSHA be imposing the new interpretation of feasibility (anything is feasible unless it puts the company out of business) through enforcement actions even though the proposal had to be withdrawn? If yes, how are employers to know what is required, and how is OSHA justified imposing new requirements without rulemaking? If no, will you commit to reining in OSHA’s enforcement so that employers are not forced to implement the new requirements absent a rulemaking?
Perez: I do not know enough about this issue to have an informed opinion at this time. If confirmed, I will evaluate OSHA’s enforcement activities in order to get a better understanding of this issue.
HELP committee: If lack of compliance with a requirement is the reason for not achieving as much benefit from a regulation as possible, is the answer to make those requirements more restrictive? Should OSHA employ more compliance assistance?
Perez: If confirmed, I will consider a variety of different means to ensure compliance with current OSHA standards.
HELP committee: What is your view on assisting businesses, especially small businesses, comply with regulations?
Perez: Making sure that businesses are able to understand and comply with the law is a critical part of ensuring that workers are protected, workplaces are fair and safe, and worker benefits are secure. I know that most businesses want to do the right thing by their workers, and it’s important that the department continue to help these businesses do so.
HELP committee: Programs like the Voluntary Protection Program save the government millions of dollars and allow the department to focus their resources where they are truly needed. If confirmed, will you commit to continue supporting and strengthening this program?
Perez: I will support the VPP within the budgetary means available, if confirmed.
HELP committee: Do you believe that employers and labor unions should be able to recover attorneys’ fees from OSHA, upon prevailing in civil actions, including administrative reviews?
Perez: I do not have enough information about this issue to have an informed opinion at this time. If confirmed, I would be interested in learning more about this issue. If you or members of the Committee have views, I look forward to hearing them.
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