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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

[Page: S5633]  GPO's PDF

   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.

[Page: S5634]  GPO's PDF

   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.

   Mr. ENZI. I thank Senator HUTCHINSON for his great delivery on the way the rulemaking process works and the way it has been forced in this instance. I thank Senator BOND not only for the speech he gave on the floor a while ago but for his continued interest and knowledge on the issue of ergonomics and his particular concern for the small businessman and how this rule and former ``rumored'' rules would affect them.

   This is the furthest a standard has ever gotten on ergonomics. It has now been published. It is the first one to be published. Now people have an opportunity to see how harmful or damaging it can be.

   I am the chairman of the subcommittee on workplace safety and training. I have worked a number of OSHA issues since I have been here. I have always tried to be reasonable on the issues on which I have worked. I appreciate comments from the other side of the aisle about the way I have worked with the other people.

   I need to let everybody know what is happening. There are the votes to pass my amendment, so there is a filibuster to keep it from ever coming to a vote. There are people who would prefer not to vote on this measure at all. If they are listening to the debate, they should be interested in making sure that the rules get the full amount of time needed to decide properly whether that will provide the workplace safety about which we have been talking.

   I offered an amendment, and there was a motion to commit. Some may not know what a motion to commit is, using another bill. It sends it back to committee to put in a completely different provision from ergonomics. There was an insistence it be read in full. It took only an hour and a half out of our day. That is Senate procedure.

   Now we have an amendment on the bill again that brings us back to the ergonomics amendment. It is essential we get a vote on this ergonomics amendment. It is essential the Senators get an opportunity to say whether they think OSHA has been rushing a bad product. You will see a very conclusive vote on that when it comes to a vote.

   This is a vote about how your Government, more specifically your bureaucracy, operates. This is not about safety necessarily, because if it was about safety, there are some other approaches OSHA would take. OSHA is not necessarily a safety organization. It is about fines, not necessarily prevention.

   One of the things that has come up since I have been working on the OSHA issues is an explanation of how much injuries have increased since we passed the OSHA Act. I decided I would go back another 30 years before the OSHA Act and see what has been happening with injuries in this country. Do my colleagues know what I discovered? Injuries were decreasing at the same rate since 30 years before we thought of OSHA.

   Do my colleagues know why that is? It is because businesses are concerned about their people. They are concerned about them. If they do not have a worker there, they are not getting the work done that they expect that person to do. Injuries cost money. Injuries are difficult to work with.

   When we were doing the hearing on the work restriction protection--that is the part where workers comp will supersede State workers comp on the Federal level, which is poorly designed, very inadequate, and there is no money to do it--during that hearing, we received testimony from Under Secretary Jeffress. I was pleased to read his testimony. Witnesses get a short time before the committee to present testimony. During the course of that, I will read the rest of the testimony so I know what they intended to say if they could have said everything they wanted to say.

   I ran into a paragraph about New Balance shoe manufacturing facilities. That caught my eye because for years my wife and I ran a shoe store in Gillette and in a couple of other places. New Balance was one of the shoes we sold. I was very pleased they make narrow shoes. It is a very good tennis manufacturing company.

   In the statement, it said this New Balance shoe manufacturing company cut their workers compensation costs from $1.2 million to $89,000 a year and reduced their lost and restricted days from 11,000 to 549 during a 3-year period.

   I asked Secretary Jeffress how much they had to fine this company to get them to do that fantastic work. They did not have to fine them. Of course not. Can you imagine the economics of reducing your cost from $1.2 million to $89,000 a year? That is good business. It also saves employees.

   There are other examples of companies that have reduced their injuries dramatically. I said if OSHA was not there to fine them, how would that possibly have happened? Again, companies, for the most part, are extremely concerned about

   their employees. In fact, when the ranking member of our subcommittee spoke earlier, he mentioned that in his State of Minnesota, GM and 3M, and some other companies I did not get written down, are reducing their injuries dramatically. What I would like for him to do is to call those companies and see if they think this standard is essential to continue to do that.

   The answer will be a resounding no, this will cost them a lot of money which will be diverted from the things they are already doing.

   I wonder how many people know that ergonomic injuries, according to Department of Labor statistics, have gone down 24 percent since 1994. Imagine that. This rule was not in place. This rule is just proposed. Yet American business reduced ergonomic injuries 24 percent. There were no fines, no penalties, no standard, no rule, just concern for their employees. It is pretty amazing.

   Can you imagine what those businesses would be able to do if OSHA saw as their mission preventing injuries--not fining, I did not say fining--preventing injuries and focused their efforts on helping businesses, particularly the small businesses for which Senator BOND expressed deep concern, the people who do not have all of the experts on board to make the best care possible? If the focus of OSHA helped those small businesses figure out what they could do differently, I bet we could get that decline rate up to about 50 percent, but it takes some experts helping out, not total concentration on a phony rulemaking procedure.

   Oh, did I say ``phony''? I am sorry, but not very sorry because when I explain how this rulemaking procedure is working this year, everybody in this Chamber might agree that it is a phony process.

   OSHA is paying witnesses to testify. They are not paying expenses, they are

[Page: S5635]  GPO's PDF

   OK, a $10,000 expert, and then they have them come and do a mock hearing. An expert needs a mock hearing? I do not think the whole $10,000 goes to the testimony, because from some documents I have been able to look at, it appears to me $2,000 of that is really supposed to be to tear apart any testimony in opposition OSHA gets. They are paying people to tear other public testimony apart. Does that sound like something your Government ought to be doing? That is how badly OSHA wants this rule.

   It was mentioned this morning that this is a proposed rule. Of course, it is a proposed rule. There is a process that it is supposed to go through, and it is not supposed to just take a year. That would be a record for OSHA even when they are doing much simpler rules. This is a very complicated one, a very expensive one, time consuming, and a damaging one. They are going to force it in a year. Every indication I find says they can do it unless we adopt this amendment. Is that why we are getting so much opposition through a filibuster to adopting this amendment?

   Yes, this is about your Government, specifically your bureaucracy. This is about how your Government can control the business you work for without getting anything for the employee in return.

   We heard some stories this morning about working people's lives, and we are concerned about those working people's lives. I was in small business, and when you work with people in small business, it is not a boss-employee relationship. If you cannot get along better than that, you probably will not have them as employees.

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