Mr. ANDERSON. It seems two out of 108 is a small percentage. Mr. STEIGER. Some were rejected for procedural grounds and have been reapplied for this year to meet that.

Mr. ANDERSON. One further suggestion in my prepared statement is perhaps by allowing immediate variance of appeals the process might be a little more complicated, but might be more appropriately responsive. Maybe it is an administrative problem, and perhaps the fact of this hearing and the fact some officials in the Department of Labor are going to be made aware of this hearing and some of the problems, then maybe these hearings will help. But the complaints are pouring in.

The fourth point that I wanted to make, is that I think it would be fair to require OSHA to pay the court costs and reasonable legal fees if an employee goes to court and wins. This would help protect the small businessman from what would be a prohibitory expense.

I have specific examples in my statement and, interesting as they are to me I think in fairness to the committee and because of the time problem you have, I won't take time to go through all the details. Maybe you would let me cite one or two.

Mr. DANIELS. I read your statement earlier this morning and I consider it a fine statement and want to thank you for the views you state therein.

Mr. ANDERSON. Let me mention one letter from Rochelle, Ill., citing the example of how the act comes down on small businesses that may have machinery in violation of the standards which is used only once or twice during the year. This letter cites the example of manlifts or ladders in some older grain elevators which do not meet stringent OSHA requirements.

These are used once or twice a year to lubricate and service the drive units on grain handling legs. The letter goes on to explain that many small businesses are locked into long term leases, and thus are forced to improve and alter buildings they do not even own. OSHA also states that any spray painting requires a ventilated room. No doubt this is appropriate in most cases, but it essentially prohibits a small business, which only infrequently spray paints, from doing so.

Another letter which I received was from the W. E. Kautenberg Co. in Freeport, Ill., which employs 60 persons to manufacture sponge mops, spring level mop sticks, brooms, et cetera-work which involves stamping metal parts.

In October 1971, as part of a modernization process, the company purchased a new building and planned to move their present operation there by June of this year. However, they have postponed their move at least a year because of OSHA.

It seems that under section 1910.217(a), concerning "Mechanical Power Presses," all new installations are required to immediately comply with these regulations while existing installations have until August 31, 1974, to comply. However, OSHA directive No. 100-6, issued March 23, 1972, defines new installations as "any existing machine installation moved to a new plant ***". In this particular instance, the regulations have served to slow down modernization which would have substantially improved the overall safety program of that company.

Let me say in conclusion, I have not joined in the plea that has been made by some for total exemption for businesses under a certain size. I think that safety ought to be irrelevant to size, generally speaking, and when I read, as you are well aware, that 90 percent, I believe, of our employers employ less than 25 employees and that this is 30 percent of the 60 million workers covered under the act, I am not interested in total exemptions that will make the act meaningless as far as millions of workers are concerned.

My plea to you is to try to do some of the things I think you can do, both to encourage better administration and in some cases through the enactment of substantive changes in the present law to make it possible for small businesses to comply without putting them under the gun, without applying the same standards to some local machine shop with two employees that I mentioned here in my full statement and United States Steel, because I don't think basically that is fair.

One other point that I would make is that I certainly realize that this is a new program and it is one that is improving, I think, as time goes on, and I think the administration will improve. I don't want merely to be here to criticize, I want to end on a positive note. I think Mr. Guenther, Assistant Secretary of OSHA, should be commended for modifying some of the initial frivolous requirements laid down, including the notorious split toilet provision and the ice water ban. That is the kind of spirit, along with some of these other changes I recommended specifically today, that I think can make this effective and beneficial legislation for our employers in the country who are trying to do a good job, and have no desire other than to provide safe and healthful working places for their employees.

Mr. DANIELS. I would like to compliment you for your appearance. I think you have offered constructive advice to this committee. I have no questions.

Mr. Steiger, do you have any questions?

Mr. STEIGER. I want to join the chairman on congratulating you for your specific statements as to what could be done. You are aware that the Department has moved in response to the work with the National Association of Home Builders and other groups to try and administratively modify existing standards.

One other problem: Which of the standards ought to be different for light and heavy construction?

Mr. ANDERSON. Well, the point is, you know, one of those points that is rather generally made when you talk to people in the homebuilding industry. They always insist that anybody in his right mind should know there is a difference between building the John Hancock Building in Chicago and building a single family residence. I am trying to think of a requirement that if you had a man on the roof, you had to have some kind of protective balustrade around the entire roof. That has been cited to me by local builders as something that was unnecessary and prohibitive in expense, that it might be warranted on a large commercial building, but not a single family home.

I am not sure I can more specifically answer these complaints other than I know they have come in considerable volume and maybe, because of some of the efforts you described, they have abated in recent months.

Mr. STEIGER. May I suggest one of the things that would be helpful to this committee, to all of us, would be as you go along and hear these

complaints, the more specific they can be, the better you can deal with whether or not it makes sense to make a change.

My concern with the bill is that it sets up a blanket distinction that may or may not be a good idea. I am not sure anyone knows that. Why don't you, as time goes on and you are back in Illinois in Winnebago County, put together a specific list as they come to you.

Mr. ANDERSON. I tried to do that in this statement, but this relates more to some of the industrial applications of the act. I will certainly try to do that in homebuilding.

Mr. DANIELS. Mr. Gaydos?

Mr. GAYDOS. I was pleased to hear you cite the example of the machine shop. Do I understand you would be supporting at the proper time some type of legislation dealing with that type of distinction, not alone in the construction industry, but other industries?

Mr. ANDERSON. Yes; I am mindful of the differences that my colleague from Wisconsin has pointed out. I think we have to be careful in approaching this problem. We define the difference in very precise terms if there is a difference and I don't want to come in here just in a very heavy footed, heavyhanded way and draw artificial distinctions if there are none.

To my lay, nonexpert mind, there should be a difference between a one-man machine shop and a giant industry like United States Steel. It should be possible to draft administrative standards pointing out the difference or encompassing that in legislative language. My answer would be in the affirmative.

Mr. DANIELS. Mr. Veysey.

Mr. VEYSEY. I want to commend Congressman Anderson for the excellent job he has done in communicating with his constituents, and relating the problems to us. It seems clear to me, as you have stated, that this has to be at least in the earlier stages mostly an educational process on the part of employees and employers to understand the need for safety and to understand the regulations. Also it appears that not the least part of the educational process is taking place in the Department and those involved both in the field and offices are promulgating the regulations and enforcing them.

I am glad to hear your report that there is a learning process taking place there.

Mr. DANIELS. I have a question, but before I ask, I would ask unanimous consent that your statement be incorporated in the record of your testimony this morning.

(The statement referred to follows:)

STATEMENT OF HON. JOHN B. ANDERSON, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF ILLINOIS

Mr. Chairman and Members of the Subcommittee, I am most grateful to you for this opportunity to appear before you today to testify on the Occupational Safety and Health Act of 1970, and I especially want to commend you on holding these hearings during this session of Congress. I am sure your own mail, like mine, reflects the great concern many of our constituents have about the implementation of the Act, and this further reflected in the scores of bills which have been introduced to amend the Act. So, your willingness to hold these oversight hearings this late in the session is a most encouraging development and a clear indication of your conscientious effort to exercise your oversight responsiiblities and respond to this growing concern.

When I learned of your intention to hold these hearings, I sent letters out to various interested parties in my Congressional District requesting their specific

comments, suggestions and experience with OSHA. As a result of this informal survey, I do not feel a majority of the respondents believe the Act should be changed so as to defeat its original intent of providing a safer working place for all employees. However, the consensus of those responding was that the implementation of the Act has ignored the spirit of the law. Perhaps as the many letters from employees and employers alike indicate, all that is really needed is a little common sense.

More specifically, though, I am making four proposals on the basis of these letters in an attempt to make OSHA a more responsive and effective program. First, I think OSHA regulations should make a distinction between light and heavy construction industries as originally proposed by Congressman Thone in a bill which I have cosponsored.

Secondly, employers should be permitted to request that OSHA officials come into their facilities to advise and consult with them concerning any changes required by OSHA. This I believe would clear up much of the ambiguity and frustration surrounding the Act by allowing employers to obtain advance warning about potential violations of health and safety standards in their plants. It is my understanding that Congressman William Steiger has introduced an amendment along these lines (H.R. 16508) which would apply to firms having 50 or less employees.

Third, employers should be allowed to file for a variance, that is, alternative means of compliance, immediately. As it stands under the present Act, an employer must first pay the penalty for a cited violation and then file for the variance. Allowing a variance initially should encourage greater flexibility in the application of OSHA regulations.

And finally, OSHA should be required to pay the court costs and reasonable legal fees should an employer appeal and win. This would protect particularly those small businessmen for whom the appeals process can be a prohibitory

expense.

Now I would like to elaborate briefly on each of these four suggestions, beginning with the proposed distinction in regulations between light and heavy construction. Obviously, there is a need for safe standards for the entire construction industry, yet it is equally obvious that the engineering and safety requirements are considerably different for a two and a twenty story building, just as the equipment used in light and heavy construction is considerably different. For these reasons I have cosponsored Congressman Thone's bill (H.R. 12296) which would require such a distinction to be made in the regulations. Since I am sure Congressman Thone will have much to say about this, I will not take anymore of the Subcommittee's time in discussing it; suffice it to say that I fully back this bill and urge favorable action on it.

In connection with this, however, there are also distinctions between small and large businesses which I feel should be given greater consideration in implementing the Act. As an example, a machinist in Rockford, Illinois, employing two fulltime employees, was forced to lay both of them off in order to avoid the impact of OSHA, which, as you know, only applies to firms employing at least one person. Prior to the enactment of OSHA, this machinist had purchased two reconditioned machines for $60,000 and had mortgaged his home and business at $1,000 a month to pay for them. Both machines have open running shafts prohibited by OSHA, and the price of compliance would have meant bankruptcy. The price for the nation, and Rockford, was two unemployed machinists. I might add that the owner is looking into a loan under Section 28 of the Act which authorizes SBA assistance in such cases, but in the meantime he was left with no alternative but to fire his employees.

Similarly, OSHA comes down hard on small businesses which have machinery that may be in violation of the Act's standards, yet which they use only once or twice a year. One letter I received from Rochelle, Illinois, cites the example of manlifts or ladders in some older grain elevators which do not meet stringent OSHA requirements. These are used once or twice a year to lubricate and service the drive units on grain handling legs. The letter goes on to explain that many small businesses are locked into long term leases, and thus are forced to improve and alter buildings they do not even own. OSHA also states that any spray painting requires a ventilated room. No doubt this is appropriate in most cases, but it essentially prohibits a small business, which only infrequently spray paints, from doing so.

Another letter which I received was from the W. E. Kautenberg Company in Freeport, Illinois, which employs 60 persons to manufacture sponge mops, spring lever mop sticks, brooms, etc.-work which involves stamping metal parts. In

October, 1971, as part of a modernization process, the company purchased a newer building and planned to move their present operation there by June of this year. However, they have postponed their move at least a year because of OSHA. It seems that under Section 1910.217 (a), concerning "Mechanical Power Presses." all new installations are required to immediately comply with these regulations while existing installations have until August 31, 1974, to comply. However, OSHA directive No. 100-6, issued March 23, 1972, defines new installations as "any existing machine installation moved to a new plant. . . ." In this particular instance, the regulations have served to slow down modernization which would have substantially improved the overall safety program of that company.

The above is not cited with the thought in mind that exemptions should be made for specific business sizes or activities. The issue is not as defined as it is, in say, the construction industry. Nevertheless, I think it is obvious that, more often than not, it is the cost of compliance, not the penalty, which is he true burden which is borne by small businesses. Safety should be irrelevant to size, and as statistics show, 90% of America's employers employ less than 25 employees, who comprise 30% of the 60-million workers covered under this Act. Yet, as the plight of the above businesses vividly demonstrates, flexibility and discretion are necessary when applying like standards to U.S. Steel and a local machine shop. And, as you will note from the examples I have cited, the cost of compliance may be prohibitive in terms of necessary renovation and modernization-something which surely was not intended by the authors of this Act.

I would like to move on now to the matter of consultation, the second proposal which I have made. It seems to me that prividing for onsite consultations would further an explicit intention of OSHA as expressed in Section 21 (c) (2), that is, "to consult with and advise employers and employees as to effective means of preventing occupational injuries and illnesses." Such consultation could help to break down a major barrier to the effective implementation of the Act thus far, and that is a lack of communication and information flow. As one businessman wrote me:

"We can (only) call the Regional Office and talk to a technical advisor as I have done. Results are very poor and most confusing. I asked seven pointed questions with full explanation of conditions. I received two straight answers and five answers that "this office believes you can do this, but an inspector may not and still give you citations."

Another executive wrote that, "In many cases, these standards require companies to interpret requirements, causing many unneeded cash outlays because of errors committed in good faith." This situation is understandable to a certain extent when considering the nature and scope of the Act, but onsite consultations would essentially provide an interpretation of these rules. Furthermore, onsite advice would foster the voluntary compliance basic to the program's success. Consultation would be strictly a privilege and option of an employer. Once officially inspected, the terms should remain as they are today-citations and a period of abatement with daily penalties following if the employer has not complied.

No doubt, it would also be reasonable to make fines a little stiffer at the official inspection if the employer had had onsite consultation about the problem. Thus, the incentive would be retained which would otherwise be lost if, for example, employers were given a period of grace to correct the violation and avoid the fine. This would only lead employers to wait until inspections to act and consequently destroy the overall objectives of uniformity, voluntary compliance and equal competition under safe working conditions.

Now, I would like to discuss my third proposal on variance. An additional means of increasing flexibility and reducing resistance to the Act would be to allow a reasonable variance as an alternative to abatement of a cited violation. Assuming the goal of OSHA is to develop better health and safety practices and not rote obedience to a digest of regulations, it seems to me it is impractical to require an employer to first come into compliance by abating the violation and then appeal on the basis of another method of achieving the same end. Moreover, I would like to see a little more administrative flexibility on the variance Section (6) of the Act.

According to the President's Report on Occupational Safety and Health, as of the end of 1971, the Department of Labor had received 108 applications for variances but had rejected all but two on either substantive or procedural grounds. Applications have apparently continued to increase this year, but, as of yet, the Department has not been particularly liberal regarding "the other