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Amendment No. 3594, As Modified -- (Senate - June 22, 2000)

without giving it any guidance.

   OSHA will claim they have made changes in response to the concerns of the businesses. They will point to the grandfather clause they included. That is truly a laugh. The only problem is the grandfather clause is worthless. 

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Not a single company in the country which currently has an ergonomics program could qualify for it. OSHA's grandfather clause requires a company to put OSHA's program in place so they can be relieved of having to comply with the OSHA program. That sounds absurd. It doesn't make any sense, but that is what they require. They said: If you will put into place this OSHA program, whatever it is--and nobody knows what it is--then you will have complied with the grandfather clause. But to our knowledge--and OSHA hasn't told us of any--nobody has one in place that meets the impossible and unworkable and unknowable standards of this rule and regulation. Grandfather? That looks like some other kind of relative, not often seen at a family picnic when you apply it to this clause.

   OSHA's pursuit of this regulation has been so single minded, they have cut corners with the rulemaking process. Under the proposed regulation, an employer's obligation to implement the full ergonomics program is triggered when an employee has an OSHA-recordable MSD injury. OSHA's definition of a recordable MSD injury is one where ``exposure to work caused, contributed to the MSD, or aggravated a pre-existing MSD.'' An employee could actually have an injury caused entirely by nonwork-related factors. This regulation would require the employer to implement a full-blown ergonomics program if the employee's job requires them to do something as simple as standing, which aggravates the injury.

   I have had an ergonomic injury trying to pull up carpet tacks in a new house. I spent a weekend pulling up carpet tacks. I could not move my arm the next day. I went into work. I couldn't use the typewriter, even a pen, but I knew what caused that: pulling up the carpet tacks and ripping up the rug.

   Under this rule, if I had gone in and told the employer, darn, I can't use the typewriter, I can't pick up a pencil today, I can't lift the law books, under this definition, that would have been a recordable MSD injury for my employer.

   That would not have made him happy. What is even more remarkable about this regulation is that the language comes directly from OSHA's 1996 proposal to revise the recordkeeping standard which has not yet been finalized. OSHA is actually trying to finalize their proposed recordkeeping standard by inserting that language in the ergonomics proposal. That is an outrage and a clear violation of the principles of fairness and disclosure that underlie the rulemaking process that must be and should be subject to challenge under SBREFA and the appropriate procedures and actions.

   The fact that OSHA has taken liberties with the rulemaking process is hardly new. Most of us remember in January when OSHA tried to impose on employers the obligation to check the homes of employees who telecommute for safety hazards. OSHA was attempting to do this through a letter of interpretation in response to a legitimate inquiry from an employer. The outcry over this move was so loud and so bipartisan that the Secretary of Labor herself had to withdraw that crazy idea the next day.

   One of the reasons OSHA's attempts blew up in their face so badly was because of this ergonomics regulation. Employers immediately realized that if they were responsible for safety hazards in an employee's home, the ergonomics regulation would require them to intrude into their employees' private lives far too deeply. The regulation already expects employers to be responsible for injuries that are not caused by workplace exposures. If employers were to be responsible for safety issues at home, there would be no limit to what they would have to cover. Employers would never be able to control the exposure to ergonomic risk factors in the home, or distinguish which risks were part of work activities and which risks were part of everyday life like picking up their children.

   This is the most expensive, complicated, expansive, burdensome, and destructive regulation that OSHA has ever proposed. That is no small title to achieve. When you are dealing with OSHA, that is a high stump to jump. But they have done it on this one. Indeed, it could be one of the most burdensome regulations ever proposed by the Federal Government. OSHA is pursuing this regulation with no concern for the impact it would have on employers, or the fact that employees will lose their jobs because of this regulation.

   I call on my colleagues to pass the Enzi-Bond amendment to the Labor-HHS appropriations bill to stop OSHA from finalizing this horribly flawed regulation and force them to reconsider their approach and listen to the scientific evidence and to the people who are making their best efforts, successful in part already today, to reduce ergonomics injuries. To vote against this amendment is to say that an agency can promulgate a regulation without providing an adequate scientific foundation, and they can impose a crushing burden that would drive small businesses out of business and deprive employees of their jobs without considering the impact. That must not be the case.

   I strongly urge and beseech my colleagues to support this amendment and put a stop to a terribly bad idea before OSHA takes the bull whip to small businesses throughout this country.

   CLOTURE MOTION

   Mr. REID. Mr. President, I send a motion to the desk.

   Mr. BOND. Mr. President, I believe I have the floor.

   Mr. REID. It is a cloture motion.

   The PRESIDING OFFICER. The Chair will examine the motion.

   The Senator has a right to send a cloture motion to the desk without having the floor.

   The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.

   The assistant legislative clerk read as follows:

   Cloture Motion

   We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, hereby move to bring to a close the debate on the motion to commit H.R. 4577 to the Appropriations Committee with instructions to report back forthwith with the amendment No. 3598:
Jeff Bingaman, Richard Bryan, Daniel Akaka, Joe Biden, Richard Durbin, Bob Graham, Barbara Boxer, Byron Dorgan, Max Cleland, Thomas Daschle, Daniel Inouye, Harry Reid, Paul Wellstone, Joseph Lieberman, Charles Robb, John Rockefeller.

   Mr. REID. I express my appreciation to the Senator.

   The PRESIDING OFFICER. The Senator from Missouri still has the floor.

   Mr. BOND. I thank the Chair and yield the floor.

   The PRESIDING OFFICER. The Senator from Alabama is recognized.

   Mr. SESSIONS. Mr. President, I would like to share some thoughts on the OSHA regulations, these ergonomic regulations.

   First, I want to say that it is a worthy goal to improve safety and health in the workplace, but we ought to look at it carefully and we ought to, as a representative body of the people, look at the democratic aspect of this process and be prepared to examine these regulations before we authorize them to go forward and make sure they meet a scientific standard, and in addition to the extraordinary costs we know they will cause, we need to know that they will actually improve safety and health in the workplace.

   Last year, before OSHA published its proposed ergonomic rules, Senator BOND introduced a bill, which I supported, prohibiting OSHA from publishing its final ergonomics standard until the National Academy of Sciences completes a congressionally mandated peer-review of all the scientific literature concerning ergonomics.

   Unfortunately, a minority number of Senators in this body were able to block its consideration. This year, I am pleased to join with Senator ENZI, who has tenaciously and effectively pointed out the problems with this rule and why it ought to be delayed.

   I just believe that we have to remember that experts have characterized this legislation as ``the costliest government job mandate since the founding of the United States.'' That is a matter that should give us all pause.

   I believe it is important to base whatever regulations we have on sound science, and I don't believe that OSHA has done so. This is an important issue. I am going to talk about three cases in recent years in which OSHA has been found not to have based its regulations 

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on sound science or justifiable procedures. I do that because a lot of people think, well, if OSHA says it, it must be good. Somehow they are blessed with ``all-knowing wisdom.'' But you have already heard from Senators who pointed out a number of things that OSHA has done that are certainly not justifiable. It is not what I say to you today, but what the courts have said about this that is important.

   Certainly, it is important to provide a safe environment. Ergonomics, though, are based upon decisions and recommendations made by ergonomists and/or engineers, and not physicians, and their medical theories have proven to be controversial.

   OSHA has attempted to apply ergonomics in three legal cases that they litigated to judgment. In each instance, OSHA suffered major losses. These cases demonstrate the vast uncertainty surrounding these regulations and the science OSHA claims supports their implementation. Even the ``experts'' on ergonomics at OSHA admit there is a great deal of uncertainty in these regulations.

   OSHA has litigated these claims under the ``general duty'' clause of the Occupational Safety and Health Act of 1970. This clause provides a general obligation on every business in America, all employers, to protect workers from ``recognized hazards'' of ``death or serious physical harm'' and functions as a catchall under which OSHA frequently attempts to expand its regulatory power.

   One important aspect in the cases I will discuss is that OSHA had the burden of identifying hazardous job conditions. In the cases I am talking about, OSHA had to prove these were hazardous job conditions, and they have to show how they would be corrected. In the rule we are debating, the burden will be put on the employers to make these decisions. We are going to find out that OSHA could not do it. Yet they are going to demand that every employer in America--many of them small businesses--are to meet these kinds of standards.

   No. 1, in the 1995 case, Secretary of Labor v. Beverly Enterprises, OSHA sought to prevent nursing home employees from lifting up residents in order to care for them and move them about the room. OSHA would have preferred carting the elderly residents about with mechanical hoists.

   In a 31-day trial before a Federal administrative law judge, OSHA presented four expert witnesses, each with a Ph.D. in this field. These were some of the leading ergonomics theorists in the Nation, some of which had done extensive research on the practice of lifting in nursing homes.

   The federal administrative law judge concluded ``There is no reliable epidemiological evidence establishing lifting as a cause of low back pain. Science has not been successful in showing when and under what circumstances lifting presents a significant risk of harm, none of the experts could say with reasonable medical certainty that any injury claimed by Beverly employees was caused by their job tasks.''

   With all of the resources of the federal government, including numerous experts, the Department of Labor and OSHA were not able to fulfill their obligation to ``define the hazard in such a way as to advise Beverly of its obligations and identify the conditions and practices over which Beverly may exercise control so as to reduce or eliminate the hazard.'' That is a direct quote from the judge. If a federal agency is unsuccessful, how are employers expected to meet this burden under the ergonomics rule.

   The courts have also spoken in regards to the ``flawed'' science that is the basis for this proposed ergonomics rule. In the 1998 case Secretary of Labor v. Dayton Tire, OSHA launched an attack on 22 different manufacturing jobs in a single tire-manufacturing plant.

   This is yet another case of the federal agency utilizing their large financial and personnel resources to prove their case. OSHA assigned three compliance personnel to a six-month inspection and investigation of the facility. At trial before the administrative law judge it called more than three dozen witnesses, including 31 employees, 4 doctors from the facility, 3 OSHA investigators, and 2 experts.

   Thousands of man hours were spent in preparation for the trial, studying the jobs they claimed caused the injuries. The trial lasted 6 months, even though the company only called one witness.

   The OSHA witnesses had extensive experience with ergonomics, with one having spent the last six years as an analyst for OSHA whose ``primary job'' was conducting ergonomic analysis.

   OSHA's medical expert in the case was a university professor who was certified as an expert in ergonomics, who with the assistance of three other faculty members and six residents, had conducted extensive analysis of the medical records of the Dayton Tire employees who allegedly suffered from musculosketetal disorders. The Professor confessed during the trial that ``if he had been the treating physician, he would not have felt comfortable making a diagnosis of the conditions, nature and cause'' of those injuries.

   This uncertainty is quite alarming coming from a man with expertise in the area. The fact that he conceded that his study did no more than ``present a red flag that something may be wrong'' at the plant concerned the judge.

   The judge ruled and held that this method was ``not trustworthy'', ``scientifically valid'', or ``scientifically reliable'', stating that ``Conjectures that are probably wrong are of little use''.

   Ultimately, the judge concluded that the expert's analysis ``failed to meet the minimal requirements for evidentiary reliability established in Daubert v. Merrel Dow Pharmaceuticals, Inc., the 1993 Supreme Court decision that requires judges to exclude ``expert'' testimony that uses scientifically invalid methodology or reasoning. This standard is generally referred to as the ``junk science'' standard.''

   This testimony was rejected as not even valid testimony under the ``junk science'' doctrine. That is what OSHA was relying on in that case.

   The fact that OSHA characterized the methods of their experts in the Dayton Tire as ``widely used and generally accepted'' among ergonomics experts, clearly shows that when scrutinized the science that is the basis of this ergonomics standard is fundamentally flawed.

   In the 1997, Pepperidge Farm case, OSHA had its only opportunity to have an ergonomics case decided by the full Occupational Safety and Health Review Commission.

   The risks that OSHA identified in the case were ``capping'' cookies--employees lifted the top of a sandwich cookie from one assembly line and placed it on top of the bottom of the cookie on another assembly line in a repetitious fashion.

   To abate these conditions, OSHA ordered the company to increase its staff, slow assembly line speeds, increase rest periods, or simply automate the entire operation.

   Automation means job loss. People complain that when we automate we are losing jobs. One reason that is happening is these kinds of regulations that drive up the costs; and to make it more economic for a company to avoid these kinds of lawsuits and Federal complaints, they could just go on and create some new form of a machine that could do the work without people.

   While the commission did accept some of the major premises of ergonomics, such as repetitive workplace motions causing worker injuries--I am sure under the circumstances that can happen; I would not dispute that--the commission ruled that OSHA failed to show that its proposed ergonomics measures were appropriate means of reducing musculoskeletal disorders purportedly caused by the worksites.

   The Commission found that some ergonomic measures had been implemented by the company and that the additional measures proposed by the agency's expert ergonomists were not shown to be feasible and effective.

   The decision is particularly damaging because OSHA had enlisted enormous resources and leading experts to show what the company should have done to avoid worker injury. Yet OSHA and its experts could not prove in open court what works, again raising the question of how businesses can make such determinations when OSHA can't.

   In these three cases OSHA deployed hundreds of experts and millions of dollars to target what they considered to be particularly hazardous worksites. 

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But because of the flawed science the agency could not determine what if anything was wrong, or how to correct it. And the courts rejected their view. This is why business is concerned.

   Some think just because they have the name OSHA, that they do everything right. They have been knocked down time and again by the courts. Businesses do not understand and do not have confidence that the 300 pages of these proposed regulations are going to apply fairly, and they do not believe it is scientifically based. I can understand their concerns. Employers should not be held to a standard that has consistently alluded the agency that seeks to regulate them.

   I believe we should pass Senator ENZI's amendment and delay the ergonomics standards until the uncertainties regarding the science and implementation of this can be further explored. I don't know the answer. OSHA has, through these three cases, established that they don't have the answers either. Why don't we allow the National Academy of Sciences' study to be completed? Why don't we get opinions of the physicians and medical experts who can understand these issues before we rush to force these regulations into play?

   That is what we should do. That is why I believe the amendment by Senator ENZI is the proper amendment.

   Let's get the scientific basis before we act.

   I thank the President.

   I yield the floor.

   The PRESIDING OFFICER. The Senator from Wyoming.

   Mr. ENZI. Mr. President, I thank the Senators on my side of the aisle who have spoken on the ergonomics amendment and the detrimental method by which OSHA is trying to force the standard through.

   I ask unanimous consent Senator DOMENICI be added as a cosponsor.

   The PRESIDING OFFICER. Without objection, it is so ordered. 

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