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Walberg Statement: Hearing on "OSHA’s Regulatory Agenda: Changing Long-Standing Policies Outside the Public Rulemaking Process"

In recent weeks there has been a great deal of discussion about the use of executive power. President Obama promised in his State of the Union address to go around Congress when necessary to advance his own agenda. The president’s remarks fit a pattern we’re all too familiar with under this administration, and goes well beyond the attitudes and actions of past administrations of both parties. 

Be it through non-recess recess appointments, waiving the work requirements in welfare reform, or unilaterally delaying parts of the health care law, time and again the administration has made end-runs around Congress and the American people to serve its own political interests. Today we will discuss instances of this executive overreach within the Occupational Safety and Health Administration.   

Like most federal agencies, the Administrative Procedure Act or APA governs OSHA’s regulatory process. Enacted during the Truman administration, the law requires agencies to issue a proposed rule, collect public feedback, and review and respond to comments before issuing a final rule. 

In 1948 Senator Pat McCarran, Democrat from Nevada and chairman of the Senate Judiciary Committee, described the APA as a “bill of rights for [those] Americans whose affairs are controlled or regulated in one way or another by agencies of the federal government.” Senator McCarran also said the law was designed to “provide due process in administrative procedure.”

In addition to following the guidelines set forth in the APA, before moving forward with a proposed rule OSHA is also required to determine that a health and safety risk exists, examine the economic impact of the proposed rule, and evaluate the technical feasibility of compliance. These legal guidelines are in place to protect the public against excessive regulations, provide important transparency over the work of federal agencies, and ensure the right policies are in place.  

It’s very troubling to see the administration circumvent the public rulemaking process in order to significantly alter health and safety standards. Assistant Secretary David Michaels has openly expressed his frustration with the rules he must follow before imposing new regulations on workplaces. Instead, he has promised to find creative solutions to adopt his policy priorities, and that is precisely what the agency is now doing.

For example, OSHA recently issued a “letter of interpretation” that dramatically changes policies surrounding non-employee participation in workplace inspections. For years OSHA has prohibited non-employees from participating in safety inspections of non-unionized workplaces. The only exception allows certain specialists to participate in order to conduct an effective and thorough physical inspection of the workplace.

Now the agency is allowing virtually anyone to accompany OSHA inspectors, including union organizers. This raises a number of important questions: Who is responsible for ensuring the non-employee receives the proper health and safety training? Is the employer liable for an accident involving this non-employee? Should safety inspections provide a Trojan horse to union bosses who want to organize a workplace? These and other concerns have not been addressed because the agency has refused to solicit public feedback.

OSHA is also denying the public the right to weigh in on its unprecedented decision to inspect family farms. Since 1978 Congress and the President have agreed to statutory language that prevents OHSA from inspecting farms with 10 or fewer employees. Yet without any notice, public review, or change in the law, OSHA issued guidance that allows for the inspection of family farms.

To justify its new policy, OSHA’s flawed logic suggests anything outside the growing of crops or raising of livestock is considered “non-farming operations” and therefore subject to inspection. It would surprise most farmers to learn the storage of grain, corn, or wheat is not a vital part of their farming operation. As Chairman Kline and I noted in a recent letter to Assistant Secretary Michaels, “The guidance simply does not reflect the reality of family farming or the will of Congress [and] should be withdrawn.”

I expect we will discuss in more detail these and other examples of OSHA’s executive overreach during this morning’s hearing. We all want to ensure America’s workers are employed in safe and healthy workplaces. Unfortunately, rewriting the law through executive fiat and circumventing the public rulemaking process undermines this goal, creating confusion and uncertainty for workers and job creators. I strongly urge the administration to reverse course.

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