Letter on H.R. 3043, the "Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2008"

July 18, 2007

TO THE MEMBERS OF THE U.S. HOUSE OF REPRESENTATIVES:

As you debate H.R. 3043, the "Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2008," the U.S. Chamber of Commerce, the world's largest business federation representing more than three million businesses and organizations of every size, sector, and region is deeply concerned with several of its policy provisions. The Chamber strongly opposes these provisions and would support amendments to strike these sections, should they be offered.

The bill, and its accompanying report, directs the Occupational Safety and Health Administration (OSHA) to proceed on a variety of regulations and standards, and even specifies exactly what the agency is to issue. Micromanaging OSHA in this way denies the agency the ability to make solid professional judgments about what areas are appropriate for regulating.

Section 110, under General Provisions, specifies that OSHA is to issue a regulation by November 30, 2007 that would require employers to pay for employee personal protective equipment (PPE) in all circumstances. The agency proposed and took comments on a regulation that would describe when employers have to pay for PPE in 1999. OSHA has committed to issuing a final regulation on this matter by the same time indicated in the bill. For Congress to dictate the content of the OSHA regulation would completely override the rulemaking process and the value of all comments that many interested parties submitted.

The committee report directs OSHA to issue standards on pandemic influenza and diacetyl exposure. In both cases the Appropriations Committee directs OSHA to issue these standards on "an expedited basis" without giving any indication what this means. The Chamber is concerned that such an "expedited basis" would mean foregoing certain rulemaking procedures as mandated by both the Occupational Safety and Health Act, and the Administrative Procedure Act, that are necessary for achieving the balance needed for a well tailored and effective regulation. More importantly, in neither of these areas does data exist to support such a regulation. Without sufficient data about the level of exposure against which employers must protect their employees, OSHA simply cannot develop these regulations.

The Committee also directs OSHA to develop guidelines on reducing musculoskeletal disorders (MSDs) in 13 industries identified by the National Advisory Committee on Ergonomics and submit timetables indicating when these guidelines will be completed. The Chamber has raised serious concerns about such guidelines that were issued for three other industries bearing too close a resemblance to the Clinton administration's regulation on ergonomics invalidated by Congress under the Congressional Review Act in 2001. Since the invalidation of the regulation, medical research has been unable to establish appropriate thresholds of exposure or movements to avoid MSDs, or settle on approved approaches that employers should follow for protecting their employees. In fact, a growing body of research now indicates that more activity, not less, is the best response to MSDs. The rate of MSDs has declined steadily, even in the absence of guidelines for most industries, all of which argues strongly against producing any more guidelines.

In addition, Section 521 of the bill mandates that any companies receiving contracts under this bill use the Basic Pilot program to check employee identification, a program which has been shown to have serious flaws. The current Basic Pilot system is only internet based with no telephonic capabilities for small employers that have no high-speed internet access. Furthermore, the databases used for checking employee identification have an unacceptable level of inaccuracies that would prevent employment-authorized individuals from being approved for work. Section 521 also does not provide safeguards from litigation for employers making decisions based on the information provided by the system nor does it preempt states and localities from mandating conflicting requirements. Basic Pilot does not even solve the underlying issue of illegal workers getting jobs because the program can only verify if the information that an individual presents is valid. It cannot detect if a worker presents valid documentation that belongs to another person or counterfeit documentation that contains valid information and appears authentic.

The Chamber does not agree with the approaches taken by the Committee in detailing how OSHA should proceed in various matters, and mandates the use of the Basic Pilot program beyond its known capacity. For these reasons, the Chamber urges you to support efforts to strike these provisions, and may consider including votes on, or in relation to these issues, in our annual "How They Voted" scorecard.

Sincerely,
R. Bruce Josten