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Congressman Bobby Scott

Representing the 3rd District of Virginia


January 11, 2017
Floor Statements

Mr. SCOTT of Virginia. Mr. Chairman, this amendment to the Regulatory Accountability Act, H.R. 5, if adopted, would exempt regulations proposed by the Mine Safety and Health Administration or the Occupational Safety and Health Administration, MSHA and OSHA, which are needed to prevent or reduce the incidence of traumatic injury, cancer, or irreversible lung disease.

   I am deeply concerned that this legislation would impose layers of unnecessary procedures to the rulemaking process and provide incentives for frivolous litigation, while hindering workplace safety agencies trying to help keep workers safe.

   Current procedures that govern OSHA's rulemaking already involve an extensive review process and stakeholder engagement from small business review panels, risk assessments, economic feasibility determinations, public hearings, and multiple opportunities for public comment.

   According to the GAO, to meet these requirements, it takes OSHA 7 years to issue a new safety standard. In fact, it required 18 years for OSHA to update a rule that reduces exposure to beryllium, a metal that causes irreversible lung disease, even though there was broad agreement between employers and unions on the new standard.

   H.R. 5 imposes 60 additional procedural steps in order to issue a new rule, on top of extensive layers of review already required by the Administrative Procedure Act, the Regulatory Flexibility Act, Data Quality Act, and numerous executive orders. The goal of adding these layers is obvious: to tie agencies such as OSHA and MSHA in red tape so they can't do their jobs protecting workers and improving workplace safety.

   One especially troubling part of the bill would require a super-mandate that requires agencies to use the least cost alternative instead of the most protective rule. Nobody favors excessive cost, but this requirement overrides the carefully balanced requirements in OSHA that require life and limb must be fully protected, provided that the safety requirements are technically and economically feasible. That is the present law.

   The question that needs to be asked is: The least cost to whom and at what cost to others? What is the least cost mandate protection of workers? Is the least cost mandate secondary to worker safety in order to limit cost to corporations? And then again, who decides?

   Under the bill, some regulations could be delayed until the end of any litigation, the final determination in a lawsuit which, with trials and appeals, could take years. The bill prohibits the rules from going into effect until the end of the litigation. Now, normally, you can get an injunction, but that would require the court to consider the likelihood of success of the lawsuit and the potential harm done if the injunction is issued or not issued.

   Under H.R. 5, rules could exceed the least cost alternative, but only if the agency demonstrates that the additional benefits outweigh the additional costs. This eliminates a well-established test under OSHA which requires ``the most productive standard which is feasible,'' and that standard obviously just invites litigation which will delay the final rule for years.

   The problem with the least cost framework is that it would tilt the playing field to ensure the least cost for industry but at the expense of workers and the American public. According to expert witnesses before the Judiciary Committee, this bill will add another 2 or 3 years to the regulatory process, and these delays will allow preventable injuries and occupational diseases to continue unabated.

   Mr. Chairman, the premise behind this legislation is based on the erroneous assumption that regulations issued over the last 8 years have obstructed job growth; however, employment statistics do not bear this out. Since the end of the recession, the U.S. economy has gained almost 16 million jobs, while establishing the longest consecutive months of job growth on record.

   I urge my colleagues to support the amendment to ensure that, even if the bill passes, OSHA and MSHA will be able to prevent or reduce the incidence of traumatic injury, cancer, and irreversible lung disease.